author: MR. JUSTICE MORAN MR. JUSTICE UNDERWOOD,

text:
    (No. 51229.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARLA ZEGART, Appellee.

      Opinion filed December 1, 1980.
    Rehearing denied January 29, 1981.

      UNDERWOOD and RYAN, JJ., dissenting.
    William J. Scott, Attorney General, of Springfield, and J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and John T. Eisner III, Assistant State’s Attorney, of Wheaton, of counsel), for the People.
    A. E. Botti, Douglas Drenk and Gregory N. Freerksen, of Wheaton, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The question in this case is whether defendant’s conviction for the offense of driving across a highway dividing median bars a subsequent prosecution for reckless homicide when both charges arise out of the same occurrence.

On December 19, 1975, an eastbound automobile, driven by defendant, Marla Zegart, crossed over a dividing median of the East-West Tollway and struck a westbound vehicle driven by Raymond Mcjohn, Jr. As a result, two passengers in the Mcjohn vehicle, Margaret Mcjohn and Kathryn J. Grayheck, were killed. A State trooper at the scene issued a traffic complaint to defendant, charging her with crossing over a highway dividing median in violation of section 11 — 708(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95y2, par. ll-708(d)). On January 14, 1976, in the circuit court of Du Page County, defendant submitted a plea of guilty, was convicted, and was fined. Approximately four months later, defendant was indicted on two counts of reckless homicide (Ill. Rev. Stat. 1975, ch. 38, par. 9 — 3(a)). Defendant moved to dismiss the indictment based on sections 3 — 3 and 3 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 3 — 3, 3 — 4) and on the fifth amendment to the Federal Constitution. In support of her motion, defendant stated that, at all times relevant to her initial prosecution, the Du Page County State’s Attorney knew of the two fatalities which arose out of the occurrence. On March 15, 1977, the Du Page County circuit court granted defendant’s motion to dismiss. The appellate court, by order (73 Ill. 2d R. 23), affirmed. (88 Ill. App. 3d 1200.) It concluded that the case was indistinguishable from, and thus controlled by, the recent case of In re Vitale (1978), 71 Ill. 2d 229. We granted the State leave to appeal.

In Vitale, an automobile driven by the minor respondent struck and killed two small children. The investigating police officer issued a traffic citation charging respondent with failing to reduce speed to avoid an accident (Ill. Rev. Stat. 1973, ch. 9514, par. 11 — 601). Subsequently, in a bench trial, the respondent was convicted and fined for the traffic violation. Thereafter, the State filed a petition for adjudication of respondent’s wardship based on the same occurrence. The petition alleged that respondent was delinquent because he committed the offense of involuntary manslaughter while recklessly driving an automobile (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 3). We held that the subsequent prosecution for manslaughter was barred by sections 3 — 3(b) and 3 — 4(b)(1) (Ill. Rev. Stat. 1973, ch. 38, pars. 3 — 3(b), 3 — 4(b)(1)) of our Criminal Code of 1961 (In re Vitale (1978), 71 Ill. 2d 229, 234-35), and by the double jeopardy clause of the fifth amendment to the United States Constitution (71 Ill. 2d 229, 235-40). Following the allowance of the State’s petition for a writ of certiorari, the United States Supreme Court vacated the judgment and remanded the cause to this court for further proceedings because of its “doubts about the relationship under Illinois law between the crimes of manslaughter and a careless failure to reduce speed to avoid an accident, and because the reckless act or acts the State will rely on to prove manslaughter are still unknown ***.” Illinois v. Vitale (1980), 447 U.S. 410, 421, 65 L. Ed. 2d 228, 238-39, 100 S. Ct. 2260, 2267-68.

It should be emphasized that Vitale was before the Supreme Court on a pretrial order dismissing a petition for adjudication of wardship. At this stage of the proceedings, the court was unable to determine if, in fact, the respondent had a valid double jeopardy claim, since no evidence had been introduced and the State had not disclosed whether, in the pending manslaughter charge, it intended to rely upon respondent’s failure to reduce speed to avoid the collision.

After discussing when double jeopardy may or may not occur, depending upon whether the failure to reduce speed is or is not “always” a necessary element of manslaughter by automobile, the court, in referring to Brown v. Ohio (1977), 432 U.S. 161, 169, 53 L. Ed. 2d 187, 196, 97 S. Ct. 2221, 2227, stated:

“In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma [(1977), 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912].” Illinois v. Vitale (1980), 447 U.S. 410, 420, 65 L. Ed. 2d 228, 238, 100 S. Ct. 2260, 2267.

In Harris, defendant’s conviction for felony murder arose out of an armed robbery. Subsequently, the State sought prosecution for the robbery, which was held to be barred under the double jeopardy clause. In relating that holding to the Vitale case, the court commented:

“[U]nder In re Nielsen [(1889), 131 U.S.176, 33 L. Ed. 118, 9 S. Ct. 672], a person who has been convicted of a crime having several elements included in it may not subsequently be tried for a lesser-included offense — an offense consisting solely of one or more of the elements of the crime for which he has already been convicted. Under Brown, the reverse is also true; a conviction on a lesser-included offense bars subsequent trial on the greater offense.
By analogy, if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution.” Illinois v. Vitale (1980), 447 U.S. 410, 421, 65 L. Ed. 2d 228, 238, 100 S. Ct. 2260, 2267.

In the instant case, unlike Vitale, the State has filed an amended bill of particulars informing defendant of the basis for the prosecution. (See Illinois v. Vitale (1980), 447 U.S. 410, 426-28, 65 L. Ed. 2d 228, 242-43, 100 S. Ct. 2260, 2270-71 (Stevens, J., dissenting).) The bill states:

“That the People do not, at this time, expect to rely upon the act of driving across the median strip per se as a reckless act of the defendant. The People do expect to introduce evidence that the defendant did actually cross the median strip but only in so far as it is necessary to prove the allegations of the indictment, the remainder of the Bill of Particulars and the Additional Bill of Particulars. Specifically, the People expect to introduce evidence that the defendant crossed the median strip in order to show the causal nexus between the defendant’s conduct prior to actually crossing the median strip and the death of the two victims named in the indictment. Also, such evidence will be introduced in support of the allegation that the defendant was driving too fast for conditions, failing to reduce speed to avoid a collision, failure to drive a vehicle in the proper lane of the roadway and improper passing on the left.”

In its pleading the State concedes, prior to trial, that it intends to sustain the manslaughter charge by introducing evidence that defendant drove across the median. While it is true that reckless homicide does not “always” entail proof of driving across a median strip, under the particular facts in this case, as disclosed by the amended bill of particulars, the State does expect to rely on such conduct “insofar as it is necessary to prove the allegations of the indictment.” In sum, the State intends to use the factual basis which led to the first conviction as the basis for the second conviction. We conclude that by doing so the State would be violating the double jeopardy clause of the fifth amendment to the United States Constitution (see the majority and dissenting opinions in Illinois v. Vitale). Having reached this conclusion, we find it unnecessary to address the arguments based on sections 3 — 3 and 3 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 3-3, 3-4).

For the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE UNDERWOOD,

dissenting:

The court’s opinion does not completely reflect the history of In re Vitale (1980), 71 Ill. 2d 229, a case which I believe is, in principle, indistinguishable from this one. My colleagues in Vitale held a prior conviction for failure to reduce speed precluded a subsequent manslaughter prosecution. The State sought certiorari, which was allowed, and we were subsequently requested by the Supreme Court to certify whether Vitale had been decided on- State or Federal grounds. On March 23, 1979, we responded as follows:

“IT IS HEREBY certified that the judgment of this Court, as expressed in its opinion in this cause, is based upon federal constitutional grounds.”

Despite this, my colleagues now say that Vitale was decided on the basis of Illinois statutory provisions as well as Federal double jeopardy provisions. That statement is, however, directly contradicted by our certification quoted above and this court’s opinion in Vitale. There, the late Mr. Justice Dooley, speaking for my colleagues, removed any doubt as to the basis for the majority opinion by concluding it with the following paragraph:

“For the reasons herein expressed, under the double jeopardy clause the conviction on the traffic charge of failure to reduce speed precluded the prosecution in a separate action for involuntary manslaughter.” 71 Ill. 2d 229, 240.

I dissented at some length in Vitale because I thought the issue an important one and because I believed then, as I do now, that double jeopardy considerations barred the manslaughter prosecution only if manslaughter always included the lesser charge of failure to reduce speed. Plainly, it seemed to me, it did not.

In Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 237-38, 100 S. Ct. 2260, 2267, the opinion of the Supreme Court states:

“The point is that if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the ‘same’ under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution.
IV
If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the ‘same’ under Blockburger and Vitale’s trial on the latter charge would constitute double jeopardy under Brown v. Ohio. ” (Emphasis added.)

The italicized portions indicate that double jeopardy considerations apply only if involuntary manslaughter always involves a failure to reduce speed. Since one can be guilty of involuntary manslaughter without even using a car, it is apparent that a failure to reduce speed is not always included in the offense of involuntary manslaughter; the fact that failure to reduce speed may be an element of that offense in some cases “would not be sufficient to bar the latter [manslaughter] prosecution.” Illinois v. Vitale (1980), 447 U.S. 410, 419-20, 65 L. Ed. 2d 228, 237, 100 S. Ct. 2260, 2267.

My colleagues quote and rely upon later language in Vitale indicating that reliance by the State in the manslaughter case upon a failure to slow down would pose a “substantial” double jeopardy claim. The fact that the dissenting members of the Supreme Court viewed that same claim as “not merely *** ‘substantial,’ ” but “dis-positive” (447 U.S. 410, 426, 65 L. Ed. 2d 228, 241, 100 S. Ct. 2260, 2270 (Stevens, J., dissenting)) lends support to my belief that the majority thought otherwise.

My colleagues acknowledge the obvious fact that in this case the subsequent charges of reckless homicide against defendant Zegart do not always involve crossing a highway dividing median, the lesser charge to which defendant had earlier pleaded guilty. Consequently, the fact that the proof in the trial of the homicide cases will show that defendant crossed the median strip does not, in my opinion, bar the reckless-homicide prosecutions.

The Blockburger test providing that a prosecution for the lesser offense does not preclude subsequent prosecution for the greater offense unless the lesser is always included within the greater has been a workable, easily understood and easily applied rule. In my opinion we should adhere to it in the absence of an unequivocal pronouncement by a majority of the Supreme Court that it has been superseded. I do not find that announcement in Vitale, and I would not voluntarily abandon the Block-burger test. Particularly would I not exchange it for the amorphous concept now adopted by this court.

I would reverse the double jeopardy holding of the appellate court.

MR. JUSTICE RYAN joins in this dissent.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 53206.
    TERRI JO EVANS et al., Appellants, v. GENEVA GILES et al., Appellees.

      Opinion filed December 1, 1980.
    Rehearing denied January 29, 1981.

      Elmer C. Hawkins, of Woollen, Brown, Hawkins & Basóla, of Decatur, for appellants.
    William M. Rice and James W. Ailing, of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellees.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This is an action for partition and an accounting. The circuit court of Macon County entered a decree granting the relief requested. On appeal by defendants, the appellate court reversed the judgment of the circuit court and ordered that the property in its entirety be awarded to defendants. (80 Ill. App. 3d 270.) We allowed plaintiffs leave to appeal.

The facts relevant to the disposition of this cause have been adequately developed in the appellate court opinion and as stated therein are as follows:

“This c.ase concerns title to 320 acres of Macon County farmland. At issue is the construction of the will of Sard Giles who died November 22, 1925. Article Third of his will devised the land to his daughter Leta Timmons for life,
**** with remainder over to the heirs of the body of her, the said Leta Timmons, and in the event of the death of the said Leta Timmons without issue, then in that event, the real estate herein *** I give, devise and bequeath to Elmo S. Giles for and during his natural life with remainder over to the heirs of the body of him, the said Elmo S. Giles.’
The parties agree that this devise created a life estate in Leta Timmons followed by alternate contingent remainders.
On April 8, 1972, Leta G. Timmons died never having had children. The parties agree that this caused the failure of the first contingent remainder to the heirs of her body. Previously on February 9, 1951, Elmo S. Giles, son of Sard Giles, died leaving Elmo S. Giles, Jr., the only child ever born to him. On February 26, 1968, also prior to Leta’s death, Elmo S. Giles, Jr., died never having had children. The precise question to be decided is whether all estates after the life estate of Leta Timmons failed causing the title to the tract, in the absence of a residuary clause, to revert to the heirs of Sard Giles, thus enabling plaintiffs as devisees of Leta Timmons to take her one-half interest in that reversion, or whether defendants, the devisees of the contingent remainder interest of Elmo S. Giles, Jr., take through him and are entitled to the remainder in fee.”

The circuit court ruled that Sard Giles’ will created alternative contingent remainders and that both remainders had failed. The court reasoned that the first contingent remainder, to the heirs of the body of Leta Timmons, failed at the date of her death without issue. The court further reasoned that the alternate contingent remainder, to Elmo S. Giles, Sr., for life with remainder to the heirs of his body, failed because both he and Elmo S. Giles, Jr., predeceased Leta Timmons. The court accordingly ruled that the failure of both remainders caused the property to revert to Sard Giles, to pass by intestacy to Leta Timmons and Elmo S. Giles, Jr., and thereafter to be distributed under the wills of Leta Timmons and Elmo S. Giles, Jr. The court then entered its decree partitioning the property, as requested by plaintiffs. The appellate court, one justice dissenting, reversed the judgment of the circuit court. (80 Ill. App. 3d 270.) Relying primarily upon the decision of the court in Hofing v. Willis (1964), 31 Ill. 2d 365, and the public policy against partial intestacy, the appellate court reasoned that a contingent remainderman, such as Elmo S. Giles, Jr., in the absence of an express provision by the testator, need not survive the life tenant in possession, Leta Timmons. The appellate court therefore ruled that the property in its entirety should pass under the will of Sard Giles to Elmo S. Giles, Jr., and thereafter according to the will of Elmo S. Giles, Jr., to defendants. We affirm.

The parties agree that the devise in question created alternative contingent remainders, and they agree that the first contingent remainder failed on the death of Leta Timmons without issue. Plaintiffs contend, however, that a condition precedent to vesting of the alternative remainder of Elmo S. Giles, Jr., is that he and Elmo S. Giles, Sr., survive Leta Timmons.

As noted by the appellate court, a threshold issue in characterizing the respective interests of the parties is the application of the Rule in Shelley’s Case. That rule, in effect at the date of testator’s death, has been defined as follows:

“ Tn any instrument, if a freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his body, he takes a fee tail; if to his heirs, a fee simple.’ 1 Preston on Estates, 263.” (Frazer v. Board of Supervisors (1874), 74 Ill. 282, 287.)

The rule expressed, as noted by one commentator, is a condensed statement of the common law, for it is not the Rule in Shelley’s Case which creates in the first taker a fee or a fee tail, but the operation of the doctrine of merger. (Young, The Rule in Shelley’s Case in Illinois: A New Analysis and Suggestions for Repeal, 45 Ill. L. Rev. 173, 186 (1950).) The Rule in Shelley’s Case operates only on the contingent remainder given to the heirs of the ancestor, converting the contingent remainder into a vested remainder in the ancestor himself. The doctrine of merger then operates to vest in the first taker a fee or fee tail. (Moynihan, Introduction to the Law of Real Property 142 (1962).) The Rule in Shelley’s Case is applicable to remainders limited to the heirs of one’s body (Barker v. Walker (1949), 403 Ill. 302, 306; Winchell v. Winchell (1913), 259 Ill. 471, 475; see generally Young, The Rule in Shelley’s Case in Illinois: A New Analysis and Suggestions for Repeal, 45 Ill. L. Rev. 173, 186-97 (1950)) and therefore operates to transfer the remainders in fee tail to the life tenants, Leta Timmons and Elmo S. Giles, Sr. The doctrine of merger operates to give these takers alternative estates in fee tail.

Also in effect at the death of Sard Giles, and applicable to the devise created, was the Illinois entailment statute (Ill. Rev. Stat. 1925, ch. 30, par. 5). The statute provided:

“In cases where, by the common law, any person or persons might hereafter become seized, in fee tail, of any lands, tenements or hereditaments, by virtue of any devise, gift, grant or other conveyance, hereafter to be made, or by any other means whatsoever, such person or persons, instead of being or becoming seized thereof in fee tail, shall be deemed and adjudged to be, and become seized thereof, for his or her natural life only, and the remainder shall pass in fee simple absolute, to the person or persons to whom the estate tail would, on the death of the first grantee, devisee, or donee in tail, first pass, according to the course of the common law, by virtue of such devise, gift, grant or conveyance.” (Ill. Rev. Stat. 1925, ch. 30, par. 5.)

As was stated in Moore v. Reddell (1913), 259 Ill. 36, 44, “[T]he purpose of the act was to provide that issue which was in existence at the time of the grant or should be born afterward should be invested with the fee simple and the reversion in the grantor be destroyed.” As the entailment statute applies to the present devise, the fee tail to Leta Timmons is converted to a life estate in Leta with a contingent remainder in fee in her children. The parties agree, and the appellate court determined, that the death of Leta Timmons without issue destroyed the contingent remainder in the heirs of her body. This conclusion is clearly proper.

We also agree with the appellate court that the entailment statute operated on the limitation to Elmo S. Giles, Sr. Although this point is not disputed in this court, both the trial court and the dissenting justice in the appellate court, relying upon the literal language of the entailment statute, believed that the operation of the provision was triggered only when the taker became “seized in possession.” (80 Ill. App. 3d 270, 278.) The legislature’s inclusion of persons who “might hereafter become seized” belies any argument that actual possession is necessary, and we do not believe that the legislature intended that the entailment statute would be rendered inoperable simply because Elmo S. Giles, Sr., never actually took possession of the property. We believe that the purpose of the statute, to vest the issue with the fee simple at the time of the devise or as soon as they should be bom in order to destroy the reversion in the grantor, can best be accomplished by applying the statute to the limitation in favor of Elmo S. Giles, Sr.

To summarize, the interests involved here are a life estate in Leta Timmons, contingent remainder in fee in her children, a contingent gift over to Elmo S. Giles, Sr., for life upon a definite failure of issue of Leta Timmons, and a contingent remainder in fee in Elmo S. Giles, Jr.

Plaintiffs contend, however, relying principally upon Golladay v. Knock (1908), 235 Ill. 412, that both Elmo S. Giles, Sr., and Elmo S. Giles, Jr., were required to survive Leta Timmons. Defendant contends, relying principaHy upon Hofing v. Willis (1964), 31 Ill. 2d 365, that in the absence of an intent to the contrary, there is no implied condition of survivorship. We find the reasoning of Golladay to be in conflict with that of Hofing, that Hofing is the more recent pronouncement of the court, and that Hofing offers the preferred analysis of the issue presented.

In Hofing, this court considered the question of whether a gift to a class, contingent upon an event unrelated to survivorship, is also contingent upon survivorship. The court considered various precedents, particularly Drury v. Drury (1915), 271 Ill. 336, and other cases purporting to follow it, and the court disapproved of those cases “insofar as they announce as a mechanical and universal rule of construction that a class gift of a future interest which is contingent on an event other than survivorship is also contingent on survivorship.” (Hofing v. Willis (1964), 31 Ill. 2d 365, 373.) The court recognized that this rule of construction had been vigorously condemned (see Kales, Future Interests 302-05 (2d ed. 1920); Carey & Schuyler, Illinois Law of Future Interests 341-45 (1941); Simes & Smith, The Law of Future Interests 113-14, 116-17 (2d ed. 1956); Halbach, Future Interests: Express and Implied Conditions of Survival Part I & II, 49 Cal. L. Rev. 297, 431 (1961); Bergin & Haskell, Preface to Estates in Land and Future Interests 125-37 (1966)), and it noted that there were no policy considerations which favored retention of the rule. (Hofing v. Willis (1964), 31 Ill. 2d 365, 373.) The court ascertained the grantor’s intent and determined that the language of the deed there in question indicated an intent to grant a fee simple estate, that the interests intended should be considered of an inheritable quality, and that the interests created were therefore not contingent upon survivorship of the remaindermen. (Hofing v. Willis (1964), 31 Ill. 2d 365, 375.) In sum, the effect of Hofing is to eliminate the implied condition of survivorship as enunciated in our prior cases where the intent of the transferor is to transfer an interest in fee simple.

In the present case, the operation of the entailment statute, independent of the intent of the testator, transfers an interest in fee, and, as previously noted, the purpose of this statute is to destroy the reversion in the grantor. In light of the purpose of this provision, and the transfer of a fee by its operation, we believe that the devise falls within the rule of Hofing, and we are unwilling to imply a condition of survivorship in Elmo S. Giles, Jr. Plaintiffs’ contention that Elmo S. Giles, Sr., must survive Leta Timmons is likewise without merit. To hold otherwise would defeat the policy against destruction of remainders. The failure of this estate will not destroy the contingent interest in Elmo S. Giles, Jr. (Spicer v. Moss (1951), 409 Ill. 343, 359.) Plaintiffs do not argue, nor do we find, any expressed intent of the testator which would require survival of Elmo S. Giles, Jr.

F or the foregoing reasons, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE CLARK

text:
    (No. 52781.
    INTERNATIONAL ART STUDIOS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Tai-Sun Hyun, Appellee).

      Opinion filed October 17, 1980.
    Rehearing denied November 26, 1980.

      Wiedner & McAuliffe, of Chicago (John P. McAuliffe and Richard J. Leamy, Jr., of counsel), for appellant.
    Scott H. Reynolds, of Hoellen, Lukes, Halper & Abramson, of Chicago, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This is a case under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) in which the only disputed issue is whether respondent’s employee, Sang-Kook Hyun, received his fatal injuries arising out of and in the course of his employment. The arbitrator, the Commission and the circuit court of Cook County agreed that his injuries were so sustained, and an appropriate award for the maintenance of his widow and two children was entered. Respondent International Art Studios has appealed. See 73 III. 2d R. 302(a).

Respondent had agreed to produce a mail order catalogue for Merchandise Association, Inc. (hereafter MAI), and had planned to complete and ship this catalogue on April 2, 1976. Decedent pasted photographs on layout pages and made corrections on catalogue negatives. These were the last operations required before the catalogues could be completed. His death delayed their shipment.

The parties stipulated that decedent normally worked 40 hours each week on weekdays between 9 a.m. and 5:30 p.m. His wages were $4 per hour. On April 2, however, eight employees, including the decedent, were working overtime on the job for MAI. The decedent called his brother, according to his testimony before the arbitrator, at approximately 10:30 p.m. on April 2 to say he would not be visiting him because the MAI job had to be finished. Decedent mentioned that he was looking for someone to pick up his wife, who worked as a nurse at Presbyterian St. Luke’s hospital until 11:30 p.m. each day. Decedent’s widow testified that he customarily gave her a ride home from work.

Hayashi, respondent’s supervisor that evening, also testified before the arbitrator. He said that sometime between 9:30 and 10:30 p.m. he thought the decedent was leaving and asked him his destination. Decedent, according to Hayashi, expressed concern for his wife’s safety and said he wanted to pick her up from work, but that he would return. Respondent’s supervisor agreed that decedent’s concern for the safety of his wife was legitimate and approved this trip conditioned upon his agreement to return to work. Respondent’s employees customarily keep a record on a time sheet of the hours they work. When decedent left, he did not sign out on this sheet. Hayashi did not ask or direct him to sign out.

Laurence, another employee of respondent, prepared an accident report. Paragraph R of that report contained this question and answer: “What was employee performing when illness or injury occurred [?] Returning to work after driving wife home from her employment as nurse at St. Lukes — Presbyterian [sic] hospital as directed.” Hayashi had provided the information for this portion of the report, and he agreed that this statement was correct.

Decedent’s widow testified that her husband picked her up at the hospital around 11:30 p.m. on April 2. Decedent dropped her off at home, told her he was returning to work and then drove away. He was killed on Lake Shore Drive, apparently when an oncoming car crossed the center line and caused a collision. Decedent’s job normally was performed on respondent’s premises. He was driving his own car when he was killed.

Similar principles govern the compensability of off-premises injuries occurring during lunch breaks, while traveling to and from a recreational event connected with employment, or while traveling to and from the normal place of work (see 1 and 1A A. Larson, Workmen’s Compensation secs. 15.00, 15.50, 16.00, 22.23 (1978)). In these situations, injuries occurring in transit generally do not arise out of and in the course of employment and are therefore rendered noncompensable under the Act. (Ill. Rev. Stat. 1975, ch. 48, par. 138.2; Hess v. Industrial Com. (1980), 79 Ill. 2d 240, 241-42; Sjostrom v. Sproule (1965), 33 Ill. 2d 40, 43; see generally 1 A. Larson, Workmen’s Compensation sec. 15 (1978).) But “injuries sustained by an employee while away from the job premises of his employer have been held compensable under the Act when the injuries occurred while the employee was acting under the direction of the employer or for his benefit or accommodation.” Osborn v. Industrial Com. (1971), 50 Ill. 2d 150, 151; see also Lynch Special Services v. Industrial Com. (1979), 76 Ill. 2d 81, 91-92; Givenrod-Lipe, Inc. v. Industrial Com. (1978), 71 Ill. 2d 440, 444; Mid Central Tool Co. v. Industrial Com. (1978), 72 Ill. 2d 569, 578; Torbeck v. Industrial Com. (1971), 49 Ill. 2d 515, 516-17; 1 A. Larson, Workmen’s Compensation sec. 16 (1978).

In this case the specific exception obviously applies. Decedent could not know how late he would have to work. The Commission could reasonably infer that-he had planned to visit his brother and to take his wife home from work as was his custom. Decedent had not foreseen but nevertheless accommodated respondent’s request for overtime work on the MAI catalogue. (See Torbeck v. Industrial Com. (1971), 49 Ill. 2d 515, 516-17; Lynch Special Services v. Industrial Com. (1979), 76 Ill. 2d 81, 91-92.) Respondent never deducted the travel time from decedent’s time sheet and never gave him the option to complete his duties on the MAI project the next day. Respondent’s own report acknowledged that decedent’s travel was subject to its control and direction.

It was also the province of the Commission to resolve any ambiguities in the evidence surrounding the time decedent left respondent’s premises and his destination when he was killed. From the evidence on this record, it is apparent they drew eminently reasonable inferences, including the inference that decedent was killed while returning to work late at night to accommodate the unforeseeable demands of respondent made necessary by its deadline on the MAI project. The risk of that travel, not common to the general public, was occasioned by the demands of respondent and for its benefit and is, accordingly, compensable.

Respondent cites Public Service Co. v. Industrial Com. (1946), 395 Ill. 238, Checker Taxi Cab Co. v. Industrial Com. (1970), 45 Ill. 2d 4, and Warren v. Industrial Com. (1975), 61 Ill. 2d 373, as similar cases in which compensation was denied. In neither of the first two cases, however, was the employee subject to employer control or direction when the injuries took place. Nor did the employee travel in those cases in any way accommodate or benefit the employer. Compensation in those cases was accordingly denied.

In the latter case the Industrial Commission found insufficient evidence to support allegations that overtime work caused employee fatigue which, in turn, caused a fatal automobile collision. This court held that this finding was not against the manifest weight of the evidence and noted that the employment did not require a special employee trip home. 61 Ill. 2d 373, 376-77.

Warren in fact supports affirming this award because the court explicitly recognized that employee off-premises injuries were compensable “where the trip or travel was made necessary by special requirements of the employment.” (61 Ill. 2d 373, 377.) Cited for that proposition, in addition to three cases, were sections 16.10 through 16.12 of Professor Larson’s treatise on workmen’s compensation law (1 A. Larson, Workmen’s Compensation secs. 16.10 through 16.12 (1978)). These sections of the treatise support the result we reach here.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN MR. JUSTICE RYAN,

text:
    (No. 52456.
    JAMES O’BRIEN, a Minor, Appellee, v. TOWNSHIP HIGH SCHOOL DISTRICT 214 et al., Appellants.

      Opinion filed October 17, 1980.
    Rehearing denied November 26, 1980.

      RYAN, UNDERWOOD and WARD, JJ., concurring in part and dissenting in part.
    Ruff & Grotefeld, Ltd., of Chicago (John J. Reidy, of counsel), for appellants.
    William D. Maddux, of William D. Maddux 8c Associates, of Chicago (Thomas H. Fegan, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, a minor, brought this action by his father and next friend for personal injuries against Township High School District No. 214 (District), Ronald Freeman, Edward Cheatham and Hal Ross. The circuit court of Cook County granted defendants’ motion to dismiss the complaint. The appellate court affirmed dismissal of that portion of the complaint which alleged wilful and wanton misconduct, but reversed the order dismissing that portion of the complaint which alleged negligence. (73 Ill. App. 3d 618.) We granted defendants leave to appeal.

Defendants contend that they should not be held liable for ordinary negligence in this instance. Plaintiff counters that his complaint states a good cause of action in negligence, and that his complaint sufficiently alleges wilful and wanton misconduct.

The facts are taken from plaintiff’s fourth amended complaint, inasmuch as they have been admitted by defendants’ motion to dismiss. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 96.) The individual defendants were agents and servants of the District, although Ross was not a teacher or other certificated educational employee. (It was not explicitly stated in the complaint, but all parties agree that Freeman and Cheatham were teachers or other certificated educational employees.) Plaintiff, on September 1, 1972, was a student at the District’s high school. He had septicemia in his left knee as a result of an injury received off of school property during an activity unrelated to school.

Count I of the complaint alleged that the District, through its agents, the individual defendants, had students’ injuries cared for by a student who was not a District employee and who attempted to treat plaintiffs left leg; that defendants were negligent in having an incompetent and untrained student provide medical and surgical care to plaintiff instead of seeking competent medical assistance; that defendants committed other specified acts or omissions in the course of providing treatment to plaintiff; and that plaintiff suffered severe and permanent injuries as a result thereof. Count II of the complaint repeated the allegations of count I, but framed them in terms of wilful and wanton misconduct rather than ordinary negligence.

Defendants assert that the School Code provides teachers and other certificated employees with immunity from liability for ordinary negligence in the administration of medical treatment to students. Section 24 — 24 (Ill. Rev. Stat. 1971, ch. 122, par. 24 — 24), applicable to cities of less than 500,000 population, and section 34 — 84a (Ill. Rev. Stat. 1971, ch. 122, par. 34 — 84a), applicable to cities of more than 500,000 population, each provide, in pertinent part:

“Teachers and other certificated educational employees shall maintain discipline in the schools. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected With the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.”

Initially, we note that this case is before us at the complaint stage, without proof or defenses, and we are therefore not presented with any question as to the individual defendants’ scope of authority as agents of the District.

The above-quoted Code provision is expressly applicable only to teachers and other certificated educational employees and is, therefore, inapplicable to defendant Ross. Defendants nevertheless assert that the complaint should be dismissed as to Ross because of the complaint’s failure to specify his role in the event in question. This could easily have been objected to in the trial court and, because it was not, it is waived. Ill. Rev. Stat. 1971, ch. 110, par. 42(3).

The quoted statutory provision, although inapplicable to Ross, extends in loco parentis status to teachers and other certificated educational employees for “ ‘matters relating to the discipline in and conduct of the schools and the school children.’ ” (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 173.) This status confers immunity from liability for negligence arising out of such matters. To recover, the plaintiff must prove wilful and wanton misconduct. (63 Ill. 2d 165, 173.) The parties rely on Kobylanski and two subsequent cases decided by this court under the School Code provision in question (Gerrity v. Beatty (1978), 71 Ill. 2d 47, and Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165), in support of their respective positions. In each of the three cases, the injury occurred during a school activity: a physical education class in Kobylanski and a school football game in both Gerrity and Thomas.

This factor distinguishes the situation here from the foregoing cases. These cases demonstrate that, although the in loco parentis status of teachers is not restricted to disciplinary matters, its application is limited to activities connected with the school program. The complaint herein alleges that defendants directed an incompetent and untrained student to provide medical and surgical treatment to plaintiff. We do not view such alleged actions to be within the category of activities connected with the school program. The injury which originally caused the condition in plaintiff’s knee did not arise from any school-related activity. Furthermore, none of the defendants, according to the complaint, had the competence or training to administer medical treatment to plaintiff’s leg. In this regard, such treatment is readily distinguishable from, for example, inspection of football equipment by a coach, which was held in Thomas to be subsumed within the coach’s supervisory authority. (77 Ill. 2d 165, 171.) Teachers are not privileged to do everything that a parent may do. Any decision as to the necessity of medical treatment, at least of the type alleged to have been administered here, was for the plaintiffs parents, rather than his teachers, to make in the first instance. In our opinion, the negligence alleged clearly went beyond and was totally outside the ambit of a teacher’s supervisory function.

Moreover, public policy considerations that authorize and encourage teachers to have broad discretion and latitude in matters connected with school activities (Gerrity v. Beatty (1978), 71 Ill. 2d 47, 52) do not apply once outside the realm of such activities. Indeed, public policy, as expressed in the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1971, ch. 85, par. 6 — 106), militates in favor of holding public employees liable for negligently prescribing or administering treatment which causes injury. Interests of student-teacher harmony (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 171) must be sublimated to the interest of compensating a student injured as a result of a teacher’s negligence when the latter has ventured outside his realm of training and competence. We hold, therefore, that the School Code does not clothe defendants with immunity from liability for the negligent actions alleged in plaintiff’s complaint.

Although the defendants are the appellants herein, we may properly consider plaintiff’s contention that his complaint was sufficient to allege wilful and wanton misconduct. (73 Ill. 2d R. 318(a).) Count II of the complaint contains the same factual averments as count I but frames them in terms of wilful and wanton misconduct. We note that it fails to specifically name the individual defendants in the paragraph setting forth the particular acts and omissions alleged to constitute wilful and wanton misconduct. When viewed in its entirety, however, count II sufficiently names each of the defendants, making it clear that plaintiff is seeking to hold all of the defendants liable for the acts alleged therein.

The standard for wilful and wanton negligence or misconduct was recently reiterated in Lynch v. Board of Education (1980), 82 Ill. 2d 415, 429, quoting cases cited therein:

“ 1 “A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by ordinary care.” ’ ”

Again quoting from an earlier case, the court further stated:

“ ‘In view of the fact that it is a matter of degree a hard and thin line definition should not be attempted. As stated in Mower v. Williams [1949], 402 Ill. 486, [489-90], “[a] s to whether or not there has been wilful and wanton conduct in any given case necessitates close scrutiny of the facts as disclosed by the evidence, and while the rule of law does not vary, the facts to which the law is applicable always present divergent circumstances and facts which, in most instances, are wholly dissimilar.” ’ ” Lynch v. Board of Education (1980), 82 Ill. 2d 415, 430, quoting Myers v. Krajefska (1956), 8 Ill. 2d 322, 329.

The complaint herein does not allege that defendants intentionally caused plaintiffs injury, but we cannot conclude that the allegations of the complaint, either singularly or in combination, are insufficient to establish defendants’ reckless disregard for plaintiffs safety. Because of the necessity to closely scrutinize the facts of each case, plaintiff should be allowed to present evidence in support of his allegations of wilful and wanton misconduct. It was therefore error to strike count II of the complaint.

In sum, we hold that plaintiffs complaint, alleging causes of action based on negligence and wilful and wanton misconduct against each of the defendants, is sufficient to withstand defendants’ motion to dismiss. Accordingly, the judgment of the appellate court is affirmed in part and reversed in part, and the judgment of the circuit court is reversed. The cause is remanded to the circuit court for further proceedings consistent with the views expressed herein.

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

MR. JUSTICE RYAN,

concurring in part and dissenting in part:

While it is true that this case is before us on the pleadings, the record contains memoranda of both plaintiff and defendants in opposition to, and in support of, the defendants’ motion to dismiss. Attached to the defendants’ memoranda, as a part thereof, was a deposition of the plaintiff, James O’Brien, and also the school’s answers to plaintiff’s interrogatories. These show that the trial court was plainly correct in dismissing count I of plaintiff’s fourth amended complaint as to the defendant school district and the two teachers, Ronald Freeman and Edward Cheatham.

On August 22, 1972, plaintiff James O’Brien fell in a locker room of a public swimming pool, which was not owned or used by the school district. He suffered an abrasion about the size of a half-dollar on his knee. He treated this injury at home that night by putting some Bactine on it. The next day was the first day of football practice at the high school, where he was enrolled as a first-year student. On the first day of practice the injury he had received on his knee the day before started to bleed. During practice, he asked defendant Ross, who was a student assistant trainer for the football team, to put something on his injury. Ross sprayed a substance on it and wrapped it with a bandage, and plaintiff continued to practice. For the next several days the plaintiff did not treat the injury himself at home, but every other day Ross would change the bandage on it in the training room at school. Defendant Freeman looked at the injury “a couple of times” but said nothing. On Friday of the second week of practice, what the plaintiff describes as a boil developed at the site of the injury. The plaintiff practiced football that day, and after practice, in the training room, he showed the injury to Freeman, who said that it looked like an ingrown hair and that Ross would take care of it. Ross then put hot packs on it, opened it, cleaned it and rebandaged the injury. The complication developed thereafter.

The answers of the defendant school district to the plaintiff’s interrogatories show that defendant Cheatham was employed by the school as an instructor in social science and as freshman football coach. Defendant Freeman was employed as an instructor in physical education and as athletic trainer. Defendant Ross was a student at the school. Although not employed by the school, he was permitted to assist Freeman as a student trainer. The answers to interrogatories also show that the school provided a substantial list of medical articles and supplies in the training room for first-aid use, and that first aid was administered in the training room.

This court has, in recent years, in three cases, delineated the limits of the immunity conferred upon teachers and school districts from suits for ordinary negligence by sections 24 — 24 and 34 — 84a of the School Code (Ill. Rev. Stat. 1973, ch. 122, pars. 24 — 24, 34 — 84a). The latter section applies to school districts in cities having a population in excess of 500,000. (See Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165; Gerrity v. Beatty (1978), 71 Ill. 2d 47; Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165.) The relevant portions of the statute are set forth in the majority opinion. In Thomas we held that the immunity conferred by the statute is not lost because the program under supervision involved an extracurricular activity. (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 172.) In Kobylanski it was held that the immunity extends to all activities of the school program. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 172.) The majority opinion attempts to distinguish the holdings of these three cases by stating that they demonstrate that the in loco parentis status of teachers conferred by the statute is limited to activities connected with the school program. The opinion states that it does not view the actions of the defendants to be within the category of activities connected with the program of the school.

It appears that there are two factors which the opinion considers significant in reaching this conclusion. First, the opinion points out that the injury which originally caused the condition in the plaintiff’s knee did not arise from a school-related activity. Second, the negligent acts complained of were outside the supervisory teacher’s functions and outside his realm of training and competence.

I can see no relevance in whether the original injury did or did not arise from a non-school-related activity. The abrasion received at the swimming pool broke open and started to bleed while the plaintiff was practicing, and he requested first aid. It appears that, to that extent at least, the injury treated did arise out of a school activity, or at least was aggravated thereby. In any event, the right of one standing in the place of a parent or guardian to administer first aid should not depend upon whether the original injury which brought about the condition which requires attention arose out of an activity connected with the school. The protection afforded by the statute conferring upon the teachers the status of a parent or guardian should not be so conditioned. Using an extreme example, if a student has a headache, the teacher, before administering two aspirin, should not have to inquire of the student whether the headache originated during the school day or if the student had the headache before coming to school. If a student is in need of first aid so that he or she can continue to participate in a school activity, it would appear to me that anyone standing in the place of a parent or guardian should administer first aid and that the protection afforded to the teacher by the statute should apply regardless of the origin of the injury.

I assume that the majority, in stating that the negligent acts complained of were outside the ambit of the teacher’s supervisory function, meant that the teacher should not have been providing medical attention to the students or that he went beyond accepted limits in doing so. Every athletic and physical education department has its supplies and equipment necessary for administering first aid. Every coach and physical education teacher is called upon to treat minor injuries and ailments. Certainly, in doing so they are within the protection of the statute granting them immunity for acts of ordinary negligence. The majority opinion seems to say, however, that there is a point in the performance of these functions beyond which a teacher, if he ventures, loses this protection. In our case the argument would seem to be that it is permissible to clean, medicate and bandage the abrasion on the plaintiff’s knee, and in doing so the teachers enjoy the protection of the statute. However, as a part of the same program, the teacher who, thinking that a boil or some other infection is an ingrown hair, directs the student trainer to open it has gone beyond his area of competence and training and loses the protection of the statute. I cannot agree with this reasoning. The teacher may well have been negligent, or even guilty of wilful and wanton conduct, in having the infected area of the plaintiff’s knee opened and treated by someone not trained in medicine. However, his conduct does not determine if the activity is a part of the school program. Administering first aid as a part of an athletic program plainly comes within the ambit of an activity of the school. The statute confers upon the teacher the status of a parent or guardian in all such matters. The teacher may have ventured outside the realm of his training and competence and, as stated above, he may have performed his duties negligently or wilfully and wantonly, but This does not remove the activity of administering first aid from being a legitimate part of the school program.

In Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, this court stated the public policy considerations relevant to protecting teachers from liability for the performance of their duties in a negligent manner, and stated:

“[W]e would burden them to the extent that a teacher might become immobile in the performance of his obligations. They would ‘not be free and unhampered in the discharge of their duties, since they would live in fear that each judgment they made would bring a lawsuit. ’ (Judge, Tort Immunity Act: Only Certain Immunities Are Waived by Public Entity’s Purchase of Insurance, 63 Ill. B.J. 386, 387 (1975).) Moreover, a proliferation of such actions for negligence would drain teachers’ time, encourage second-guessing teachers’ judgment by courts, and quite possibly discourage persons from the career of teaching.” (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 172.)

I fear that if the teachers have to determine whether or not the origin of the ailment was related to a school activity before administering first aid, or whether removing an ingrown hair or opening a pimple exceeds the permissible bounds of treatment, they will be so immobilized in the performance of their duties that the fear expressed in the above quotation will be realized.

As to defendant Ross, since he was not a teacher or other certified educational employee, the protection of the statute does not extend to him and the plaintiff’s negligent action as to him can be maintained. I also agree that count II of the complaint based on wilful and wanton conduct can be maintained against the defendants and that that count should not have been stricken.

UNDERWOOD and WARD, JJ., join in this partial concurrence and partial dissent.


author: MR. JUSTICE RYAN

text:
    (Nos. 52764, 52774 cons.
    THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Beatrice L. Robinson, Appellee).

      Opinion filed January 20, 1981.

      SIMON, J., took no part.
    Michael J. Murray, of Chicago (Richard E. Girard and John L. Wren, of counsel), for appellant.
    Beatrice L. Robinson, pro se.

   MR. JUSTICE RYAN

delivered the opinion of the court:

These consolidated workmen’s compensation cases are before us on direct appeal from the circuit court of Cook County pursuant to our Rule 302(a). 73 Ill. 2d R. 302(a).

Beatrice L. Robinson, claimant, was employed by the board of education of the city of Chicago in March 1971 as a stenographer in the legal department. She filed two applications for adjustment of claims pro se with the Industrial Commission. The claims were heard together in a prolonged series of hearings before three different arbitrators. Although the applications were filed pro se, the claimant was represented by counsel during most of the hearings. However, before their conclusion, she discharged her attorney and proceeded pro se. Although the claims were heard as a consolidated case, the arbitrator issued two separate findings and orders as did the Industrial Commission on review. In this opinion we will refer to the two claims as the 1971 claim and the 1972 claim.

As to the 1971 claim, the arbitrator found that the claimant had suffered accidental injuries arising out of and in the course of her employment on the 1st, 20th, and 29th days of October and on the 14th day of December 1971. The claimant was awarded 7 4/7 weeks of compensation for temporary total disability and 4314 weeks of compensation as permanent disability for 10% loss of use of her right arm and 10% loss of use of her right leg. She was also awarded $1,200.72 medical expenses. In the 1972 case the arbitrator found that the claimant had suffered an accidental injury arising out of and in the course of her employment on October 3, 1972, and awarded her 64 weeks of compensation for temporary total disability. Although the arbitrator found that the necessary medical expenses had not been provided by the employer, no order was made with regard to the payment of them.

On review of both of the cases, the Industrial Commission, by way of adjustment, set aside the awards of the arbitrator. In both cases it found that the claimant had suffered accidental injuries on the same dates that the arbitrators had found. However, the awards for 10% permanent loss of use of the right arm and right leg were removed from the award in the 1971 case and added to the award in the 1972 case. Thus in the 1971 case the Commission found that the claimant suffered accidental injuries on the 1st, 20th, and 29th days of October and the 14th day of December 1971, and besides the medical expenses, awarded her 7 4/7 weeks of compensation for temporary total disability. In the 1972 case, the Commission found that the claimant suffered an accidental injury on October 3, 1972, and awarded her 64 weeks’ compensation for temporary total disability and 4314 weeks of compensation for 10% permanent loss of use of her right leg and 10% loss of use of her right arm. The Commission likewise made no award for medical expenses in the 1972 case. The circuit court of Cook County confirmed the award as to the 1971 case, but reversed the award as to the 1972 case.

While it is primarily within the province of the Industrial Commission to determine the credibility of the witnesses and to determine issues of fact, it is nevertheless the duty of the court to weigh and consider evidence in the record, and if it is found that the decision of the Commission is against the manifest weight of the evidence, it will be set aside. (Corn Products Refining Co. v. Industrial Com. (1955), 6 Ill. 2d 439, 443.) The burden is upon the claimant to establish the essential elements of her claim by a preponderance of credible evidence, particularly the prerequisite that her injury arose out of and in the course of her employment. (Hannibal, Inc. v. Industrial Com. (1967), 38 Ill. 2d 473, 475.) Even though there is evidence in the record which, if undisputed, would sustain the claim, such evidence is not sufficient if, on a consideration of all the testimony and circumstances shown in the record, it appears that the manifest weight of the evidence is against such finding. (Corn Products Refining Co. v. Industrial Com. (1955), 6 Ill. 2d 439, 443; State House Inn v. Industrial Com. (1965), 32 Ill. 2d 160, 164.) Although the testimony of the claimant standing alone is sufficient to sustain an award, that testimony must be considered with all the evidence in the record. The burden of proof is upon the claimant, and unless the evidence, considered in its entirety, shows the injury arose out of and in the course of the employment, there is no right to recover under the Act. (Revere Paint & Varnish Corp. v. Industrial Com. (1968), 41 Ill. 2d 59, 63.) The established principles of compensation law stated in these cases compel us to hold that the decisions of the Industrial Commission in both the 1971 case and the 1972 case were against the manifest weight of the evidence.

It is difficult to determine the nature of the injuries for which the claimant seeks to recover and the circumstances in which they were incurred. In her application for adjustment of claim in the 1971 case, she referred to “incident - injuries,” and not accidental injuries over a three-month period and alleged that she was “verbally assaulted” by various coemployees. Her testimony covers a wide range of complaints. She testified that she was over-trained and overexperienced for the job and was a speedy typist. According to her testimony, the other stenographers in the pool were inefficient. She contends that there was a conspiracy among the other stenographers. She said that they were vulgar and would stand over her and shout, using obscene and racist language, bump against her typewriter and even exchange her “fast typewriter” for a “broken-down” one, all in order to harass her and lessen her work efficiency.

Claimant alleges that, as a result of these verbal assaults and harassments, she suffered extreme nervousness. In Pathfinder Co. v. Industrial Com. (1976), 62 Ill. 2d 556, this court reviewed its previous holdings where recovery had been allowed under the Workmen’s Compensation Act for psychological disabilities, noting that in those cases recovery had only been allowed where the psychological disability arose from an accident that also involved physical contact or injury. In Pathfinder, this court, for the first time, allowed recovery on the basis of a psychological injury alone. There is in our case simply no evidence that will support a claim for a psychological disability under either the holding in Pathfinder or the decisions of this court prior to that case. The claimant’s testimony was the only evidence as to her physical injuries. Her complaints are all subjective, and there is no objective evidence of any injury or disability. Likewise, her testimony is the only evidence that connects her nervous disorder with her employment.

In the 1971 case the Commission found that the plaintiff sustained accidental injuries on four dates: October 1, 20, and 29, and December 14, 1971. The evidence concerning the occurrences on these dates is conflicting. The claimant contends that on October 1, 1971, she was in the library of the legal department of the board of education talking on the telephone to an attorney about a “very important matter” when her supervisor, Mrs. Loretta Mikula, shouted and screamed at her to get off the telephone and to go to take dictation from one of the attorneys in the office. She stated that Mrs. Mikula followed her down the hall to the attorney’s office and stood outside of the door shouting at her until another attorney came out of his office and told Mrs. Mikula to leave. This attorney then explained to the claimant that Mrs. Mikula acted this way because she hated her. Mrs. Mikula testified that she did tell the claimant to take dictation from one of the attorneys and that she had to go back to the claimant a second time and ask her to hang up the phone and take dictation, but that she did not shout at her and she did not follow her down the hall to the attorney’s office. Also, the attorney for whom the claimant was to take dictation and the attorney who supposedly told Mrs. Mikula to leave denied hearing any commotion. Claimant said that on this date there was no physical contact between her and Mrs. Mikula.

On October 20, 1971, the claimant stated that she was approaching the door to the room where the Xerox machine was kept when Mrs. Mikula stood in the doorway blocking her passage. Mrs. Mikula said nothing, but as the claimant attempted to go through the door, she struck the claimant on the right arm with her elbow and kicked her. As a result the claimant’s right arm and right leg were sore. She also stated that the next day her back hurt her. Mrs. Mikula testified that she could not recall standing in the door, or striking the claimant.

On October 29, 1971, the claimant contends, an attorney in the office asked her to make some copies of a large volume of work on the Xerox machine. She contends that while she was doing so she was interrupted several times by other people in the office and had to stand on her feet three hours or more. This, she contends, caused her to suffer pain in the left side of her abdomen. On different occasions she related the pain in her left side to “where the tubes are.” Mrs. Mikula testified that she was the one that had assigned the work to the claimant to be copied on the Xerox machine on October 29. She stated the work consisted of only about 120 pages and should have taken about one hour to copy. This is work that was normally done by the stenographers, and they were not required to stand up all the time but could take a break if one became necessary.

The claimant alleges in her application for adjustment of claim that on December 14, 1971, she was forced to type standing up and was subjected to verbal assault as a result of which she suffered extreme nervousness and sustained a painful backache. There is very little, if any, testimony specifically relating to December 14, although there were vague references injected into the testimony concerning other alleged incidents with regard to being required to type standing up.

All of these occasions involved what the claimant has described as verbal assaults and harassments, which, she contends, made her nervous. We have read this entire record, which is quite lengthy and very difficult to follow, and find nothing in it that will support recovery for a nervous disorder or psychological disability brought about by such conduct alone. The evidence does not prove that the claimant has suffered “a sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological injury or harm,” which this court held in Pathfinder constituted an accidental injury within the meaning of the Act. (62 Ill. 2d 556, 563.) The same must be said of any alleged nervous disorder that may have been associated with a physical injury. The claimant has not proved that her nervous disorders arose out of and in the course of her employment or that they were the consequence of an accidental injury. We reach the same conclusion concerning the claimant’s alleged physical injuries. Her proof in this regard relates to injuries she claimed she received on October 20, when Mrs. Mikula allegedly stmck and kicked her, injuring her right arm, right leg and lower back. She also relates the pain in her left side (“where the tubes are”) to having to stand on her feet three hours in the Xerox room on October 29. Also, supposedly, being required to type standing up on December 14 caused her to have a backache.

Although the claimant has consulted with, been examined by, and received treatment from numerous doctors, none of the reports of doctors or hospitals that were admitted into evidence lends any support to her contentions. Just two days after the incident on October 29, the claimant was hospitalized in Jackson Park Hospital under the care of Dr. Maynard Shapiro. She had been referred before that date to Dr. Shapiro by the Arthritis Foundation. Dr. Shapiro examined the claimant on October 23 and had her admitted to the hospital on October 31. Although the claimant testified that she did not have the pain of which she now complains before October 1, 1971, the history sheet of the hospital record under date of November 2, 1971, states: “pain and stiffness in all joints and muscles on right side of body off and on for last two years, stiffness in joints is more or less every day, particularly right elbow, small joints in the hands, shoulders, neck, right knee and calf muscles.” Also, the history states: “lower abdomen pain (says due to overexertion and nervousness tension) off and on for seven years.” Thus, evidence in the record shows that the claimant had the pains which she now contends are attributable to alleged accidents on October 20, 29, and December 14, long before her employment by the board of education.

The claimant was discharged from the hospital on November 5, 1971, “in satisfactory condition.” Though the records reflect that at the time of her treatment she was employed by the board of education, nowhere in the hospital records or in Dr. Shapiro’s records is there any mention of any work-related cause for her complaints. Dr. Shapiro was the claimant’s doctor and had not examined her for the respondent. On the physician’s service report, which Dr. Shapiro filled out for the Blue Shield plan of Illinois Medical Service, there is a question “Is this a Workmen’s Compensation Case?” There are boxes to be checked for yes, no, and possibly. The “no” box has been checked.

The final diagnosis of the claimant’s physician, as inserted in the hospital record by Dr. Shapiro, and also as contained in Dr. Shapiro’s notes, was stated as: “Hypothyroidism, adult, due to unknown cause. Psychophysiologic musculosketetal and nervous system reaction.” Included in Dr. Shapiro’s records is a Department of Radiology report of an examination of the claimant’s chest, complete spine, both hands and elbows, and right leg. The conclusion in this report was: “No radiographic evidence of abnormality of cervical, dorsal or lumbar spine, either elbow, either hand or the right leg.”

Claimant stated on cross-examination that she had never had pain in the left side of her body before the October 20 occasion when she was forced to stand for three hours while making copies on the Xerox machine. However, in addition to the contradiction of this statement contained in the medical records, an “employee’s cause of absence” sheet, which had been signed by the claimant, explained the reason for her absence from work on July 30, 1971, as “pain in the left side.”

In the 1972 case the Industrial Commission found that the claimant had suffered an accidental injury on October 3, 1972. The claimant testified that on that date she went to the room where the Xerox machine was located to copy some material. She testified that while she was there Doris Waller, another stenographer, slammed a steel door “on my side knocking the rib cage one-sided, put my dorsal spine out, pressure on my heart and my lungs, I couldn’t breathe. I couldn’t talk above a whisper for two weeks.”

Doris Waller testified that on October 3, 1972, she went to the Xerox room to make some copies. An attorney was using the machine so she waited for him to finish. The claimant came in while she was there. Miss Waller said she finished her work and left. During this time the claimant said nothing to her and she said nothing to the claimant. The attorney who was in the room when Miss Waller came in also testified. He stated that the claimant came in while they were there and said something like “I’ll have to wait.” When he finished, he left the Xerox room and walked down the hall. The claimant was standing in the hall at that time. He never saw anyone strike the claimant with a door, and he heard no commotion. He stated the next day that the claimant arrived at work with a police officer and asked him to tell the officer that Miss Waller had hit her with the door. The claimant insisted that he had seen the incident; however, the attorney told her that he had seen nothing of the sort. At this point in the hearing before the arbitrator, the claimant was representing herself, having discharged her attorney before the respondent put on its case. Following this testimony, the claimant, by way of cross-examination, launched into a lengthy speech about the door striking her bones and her bones resting on her heart and lungs. She also again stated that she couldn’t speak above a whisper for two weeks. In response to this, the witness said that when the claimant spoke to him that day (the day after the alleged incident), her voice was perfectly normal, the same voice she had always used in conversation since he had known her.

There is no evidence of any medical attention being sought by the claimant as a result of this incident. There is also no evidence as to the nature of the injuries which the Commission found temporarily and totally disabled her for 64 weeks. All we have in the record are the claimant’s rather exaggerated claims. We must conclude that the Industrial Commission’s findings are against the manifest weight of the evidence. This conclusion is fortified by other evidence in the record which reveals that the claimant’s disabilities stem from causes other than the alleged accidental injuries on the dates specified in the decisions of the Commission in these two cases.

After the incidents involved in the 1971 case, the claimant applied for voluntary admission to Passavant Memorial Hospital and was admitted on January 17, 1972. The admitting diagnosis stated in the hospital records was “acute anxiety reaction.” Shortly after her admission claimant became uncooperative and hard to manage. She thought her food was being poisoned and she refused medication, stating that the hospital was running tests on her, “using her as a guinea pig.” She thought that the hospital staff was plotting against her. On one occasion she called the police because she perceived a need to “protect myself.” She became involved in quarrels and one day reported that she had been attacked by another patient who, she claims, pushed a table against her. During her treatment at Passavant Memorial Hospital, claimant was under the care of Doctors R. Rovner and G. R. LaPlaca. She was in the hospital from January 17, 1972, through February 12, 1972. The discharge summary of her doctors states that her physical examination was essentially within normal limits. The discharge diagnosis was “paranoid schizophrenia.”

On August 25, 1972, after the incidents involved in the claimant’s 1971 case, and prior to that of the 1972 case, she was examined by Dr. Richard Heller, whose report, after detailing specific findings of examination, concluded: “This clinical and x-ray examination reveals no evidence of trauma to the head, abdomen, right upper extremity or right lower extremity.”

On September 22, 1975, subsequent to both the 1971 case and the 1972 case, she was examined by Dr. Leo Frederick Miller. The doctor’s report states that the claimant said she was being investigated by the FBI and by the State’s Attorney and was under constant surveillance. She told the doctor she was again assaulted three or four days before the date of this examination and was “thrown down stairs and through a door.” The report detailed the findings made during the examination. The doctor concluded that the “neurological examination from an objective standpoint in relation to trauma, was negative of any evidence of pathology.” The doctor stated that in his opinion, from an orthopedic standpoint, she could return to her occupational duties, with no deleterious effects.

We noted earlier in this opinion that the “burden of proof is on the claimant, and unless the evidence considered in its entirety shows the injuries resulted from a cause connected with the employment there is no right to recover under the act.” (Revere Paint & Varnish Corp. v. Industrial Com. (1968), 41 Ill. 2d 59, 63.) In considering this case, we cannot look only to the subjective complaints of the claimant, but we must consider the evidence “in its entirety.” In doing so, we conclude that the claimant has not sustained her burden of proving that the injuries of which she complains were accidental injuries that arose out of and in the course of her employment. The findings of the Industrial Commission in both the 1971 and 1972 cases were against the manifest weight of the evidence.

The judgment of the circuit court of Cook County is therefore reversed as to the 1971 case (Industrial Commission No. 71WC31536) and affirmed as to the 1972 case (Industrial Commission No. 72WC25895).

Affirmed in part and reversed in part.

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


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (Nos. 52646, 52648 cons.
    LUMAN BURR v. JAMES R. BROOKS et al. (Joseph F. Bohrer, Trustee, et al., Appellees; The City of Bloomington et al., Appellants).

      Opinion filed January 20, 1981.

      UNDERWOOD and SIMON, JJ., took no part.
    Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman, of Bloomington (Richard T. Dunn, Frank M. Brady, and Mark T. Dunn, of counsel), for appellant city of Bloomington.
    Ralph Turner, of Luedtke, Hartweg & Turner, of Bloomington, for appellant Morgan-Washington Home.
    William J. Scott, Attorney General, of Springfield (James L. Kappel, of counsel), appellee.
    Davis & Morgan, of Peoria, and Jay G. Swardenski and Kathleen M. McKenna, of Seyfarth, Shaw, Fairweather & Geraldson, of New York, for appellee Bloomington Board of Education.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Joseph F. Bohrer, trustee of a testamentary trust created under the will of John M. Scott, deceased, brought this action in the circuit court of McLean County seeking instructions concerning the administration of the trust. Named as parties defendant were the Attorney General and the city of Bloomington (City). Morgan-Washington Home (Morgan-Washington), a not-for-profit corporation, and Bloomington Board of Education, School District No. 87 (the School District), were permitted to intervene. The circuit court awarded six sevenths of the trust residue to Morgan-Washington and one seventh to the School District. The City appealed, the School District and Morgan-Washington cross-appealed, and the appellate court affirmed in part, reversed in part, and remanded the cause for further proceedings (75 Ill. App. 3d 80). We allowed the petitions of the City and Morgan-Washington for leave to appeal.

John M. Scott died testate on January 21, 1898. He had served 10 years as a county judge, 8 years as a circuit judge and 18 years as a justice of the Supreme Court of Illinois, including three terms as chief justice. The will, executed in 1890, provided for a life estate for his wife in his residuary estate and for the payment of fixed annuities to certain annuitants, the last of whom died on December 14, 1976. The 11th paragraph of the will, which became operative on the death of the last surviving annuitant, directed the trustee to convert most of the real estate and all of the tangible personal property to cash or interest-bearing securities. Those funds were to be paid to the City of Bloomington and used by the City to “erect and construct” a hospital on the site of the home in which the testator had resided, and an adjoining lot. This was to be called “Scott City Hospital” and was to be operated by the City, with the advice of the elders of the Second Presbyterian Church. The amount expended for erection and furnishing of the hospital was to be no more “than the amount of said trust estate will justify in the judgment of reasonable persons who may be approved by said city to have charge of the erection and furnishing of said hospital buildings.” The funds remaining after erection and furnishing of the building were to be held in trust as an endowment for the operation of the hospital. The hospital was to be for the use of “all sick or otherwise disabled persons,” especially those “who may be injured by accident and who may have no friends at hand to care for them or who may have no money or other means to pay for care and medical or surgical services.” Those who wished to be admitted and were able to pay were to be charged a “reasonable sum” for services.

The 12th paragraph of the will provided that in the event the city council by resolution “declined to accept the trust hereby created for the erection and maintenance of said hospital,” the trustee was to procure an act of incorporation for “establishing and maintaining an ‘Industrial School for Girls.’ ” The trustee was directed to convey property to the corporation for a site for the school and pay over to the corporate officers all of the trust funds which would have been paid to the City had it accepted. The 12th paragraph also provided for the advice of the elders of the Second Presbyterian Church of Bloomington and again specified that only a “reasonable sum” be expended on the building, with the balance to serve as an endowment for the support of the school.

In its answer the City requested that the assets of the trust be distributed to it in accordance with the will. On February 17, 1978, after it had filed its answer to plaintiff’s petition, the City, in response to an order of the circuit court that it notify the trustee of its intention to accept or reject the gift, filed a resolution of its council which purported to accept the trust. The resolution stated that there were “sufficient hospitals” in the area and that the real estate described in the will as the site where it was to be situated was “not now suitable” for a hospital. The resolution recited several “findings” made by the city council pertaining to the community’s need for “comprehensive, primary health care services” and improved emergency medical services. In order to meet these needs the resolution proposed that the trust be administered by the City “under the continuing jurisdiction of the circuit court’ and that (a) part of the trust income be used to provide health care for those unable to pay and who were not eligible for assistance; (b) a portion of the principal be used to establish a family care and diagnostic center which would memorialize the name of John M. Scott and provide free services to the indigent and charge a reasonable sum to others; and (c) as an alternative or supplement to (b) an emergency medical services program would be established.

Answers filed by Morgan-Washington and the School District requested that the court find (1) that it is either impossible, impractical or illegal to carry out Justice Scott’s specific charitable intent, and (2) that a general charitable intent was expressed which would justify application of the cy pres doctrine. The School District alleged the existence of a general charitable intent “to improve industrial education in the City of Bloomington,” and requested that the trust funds be used as an endowment fund for the advancement of vocational education in the Bloomington area and to finance projects “in the best interests of the area’s vocational educational needs.” Morgan-Washington alleged the general charitable intent under the 12th paragraph to be “to improve health care facilities and housing and educational training for girls in the City of Bloomington,” and alleged that there was no organization or entity which fulfilled the general charitable intent expressed in the 11th paragraph. It requested that the trust funds be used for housing and educational projects and programs at Morgan-Washington and, in the alternative, that the will be construed as having a general charitable scheme intended to benefit both types of charities named in the 11th and 12th paragraphs of the will and that it be included as a beneficiary.

At trial, evidence was presented concerning the need for another hospital in Bloomington. At the time the will was executed there was one hospital in Bloomington, but at the time of trial there were three in the BloomingtonNormal area, with a combined occupancy rate of 73%. Several witnesses expressed the opinion that there was no need for another hospital and that, if one were constructed, it would not be possible to obtain a license or permit to operate it. Testimony was presented concerning the number of indigents who, though unable to pay for medical care, nevertheless failed to qualify for assistance. The City also presented a supplemental resolution of its council which described in detail the nature of the facility it proposed in order to meet the community’s health-care needs. That facility would provide “multi-phasic health screening services” designed to facilitate the early detection and treatment of illness.

Morgan-Washington was shown to be the successor to the Women’s Industrial Home of McLean County, which was created in 1889 pursuant to “An Act to aid industrial schools for girls” (1879 Ill. Laws 309; now Ill. Rev. Stat. 1979, ch. 122, par. 646 et seq.). Industrial homes, as originally conceived, provided custodial care and vocational training for their residents. In the girls’ schools, a typical curriculum included sewing, cooking, housekeeping and ironing. These subjects were not taught in the public schools of the time, which were largely college preparatory. There are presently no industrial schools of that type, and the public schools have since taken over vocational education. Morgan-Washington presently is licensed by the Illinois Department of Children and Family Services as a residential facility and expected to be licensed as a child-welfare agency, which would permit it to recruit and license foster families. Most Morgan-Washington residents are classified as minors in need of supervision, or delinquents. They are educated either in the local public schools or at the home in cooperation with the School District.

The School District presented evidence that it has a broad program of vocational and industrial education which considerably exceeds that offered in an 1890’s industrial school for girls.

The circuit court found that the City’s proposal was a “refusal of the trust,” which operated to invoke the 12th paragraph of the will. Because the operation of an industrial school for girls, as the testator used that term, was impossible or impractical at present, the court ordered distribution of the funds to the School District and Morgan-Washington under the doctrine of cy pres. The appellate court affirmed that portion of the circuit court’s judgment which held that the City’s proposal constituted a technical refusal of the trust and that the implementation of the testator’s alternative charitable purpose was impractical or impossible. The appellate court reversed that portion of the circuit court’s judgment which applied the doctrine of cy pres to the second charitable purpose but not to the first, saying:

“At rehearing, the court should determine which proposal or proposals [the City’s or the intervenors’] present a viable method of most nearly following the interest of this generous testator. The court should consider that the gift to the city for the purpose of building a hospital was his first choice, but should also consider how closely each proposal comes to meeting the design of either of the ‘two great charities’ he envisioned. The court would not be precluded from dividing the gift.” 75 Ill. App. 3d 80, 88.

The City contends that there can be no failure of the gift made under paragraph 11 “so long as the charitable purpose embodied therein may be fulfilled,” that “equity will consider the charitable purpose of the donor as the substance of the gift,” and that “the mode of effectuating that purpose is a mere incident of the gift.” It contends that the testator’s “primary charitable objective,” as articulated in the 11th paragraph of the will, was “the provision of care and medical or surgical services to the sick, disabled and injured, especially those unable to pay therefor.” It argues that the City’s proposal as to the implementation of the trust should be approved under the doctrine of equitable deviation.

The doctrine of equitable deviation is stated in section 381 of the Restatement (Second) of Trusts, at 273 (1959), as follows:

“The court will direct or permit the trustee of a charitable trust to deviate from a term of the trust if it appears to the court that compliance is impossible or illegal, or that owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purpose of the trust.”

The doctrine of cy pres is expressed in section 399 of the Restatement (Second) of Trusts, at 297 (1959), as follows:

“If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.”

The distinction between cy pres and equitable deviation is explained by comment a to section 381, which states in part:

“The rule stated in this Section has to do with the powers and duties of the trustees of charitable trusts with respect to the administration of the trust; it has to do with the methods of accomplishing the purposes of the trust. The question of the extent to which the court will permit or direct the trustee to apply the trust property to charitable purposes other than the particular charitable purpose designated by the settlor where it is or becomes impossible or illegal or impracticable to carry out the particular purpose involves the doctrine of cy pres, which is dealt with in section 399.” Restatement (Second) of Trusts sec. 381, comment a, at 273 (1959).

Citing Village of Hinsdale v. Chicago City Missionary Society (1940), 375 Ill. 220, the City argues that the testator’s “primary charitable objective” as set forth in paragraph 11 must prevail over the “secondary purpose” provided in paragraph 12. In Hinsdale the settlor conveyed certain parcels of property to the village of Hinsdale by deed which provided that a specific lot should be retained as a library site, and the proceeds of the sale of the remaining lots used as a trust fund for the construction and maintenance of the library. The deed further provided that if at any time the lot on which the library was to be situated should cease to be used for library purposes, it would pass to a church. The appropriate lots were sold according to the settlor’s instructions, but the proceeds of sale were insufficient to construct a library. The funds were invested and the income accumulated. Before a library was constructed, the village erected a multipurpose municipal building in which the public library leased space. The village then brought an action seeking approval to use the accumulated funds to maintain the library at its new location in the municipal building. The church counterclaimed, seeking title to the unsold lot, and the settlor’s heirs at law sought the accumulated funds.

The statement upon which the City relies is:

“A clearly expressed desire of the donor that his property be devoted to another purpose, unless execution of the charitable use first named is feasible in the manner specified, will be recognized, but a secondary purpose will not prevail where the primary charitable objective of the donor can be attained by a different method.” (375 Ill. 220, 234.)

Notwithstanding this language the court declined to apply either the doctrine of equitable deviation or cy pres to the lot which was subject to the alternative disposition. The court held that title to the lot would pass to the church if the village did not use it for a library site. The accumulated funds were applied cy pres to the public library, but those funds were not subject to an alternative disposition. Thus, Village of Hinsdale is not dispositive of the issues presented in this case.

In holding that the doctrine of equitable deviation did not apply to the City’s proposed use of the funds the appellate court said:

“The city cites many cases from other jurisdictions in support of its theory that its proposals met the requirements for equitable deviation. However, in those cases, either (1) the cy pres doctrine was applied, (2) it is impossible to determine that it was not being applied, or (3) the change from the specific designation of the settlor was less than here. In Rice v. Stanley (1975), 42 Ohio St. 2d 209, 327 N.E. 2d 774, the factual situation was almost the same as here and the reviewing court held that a community health facility should be built and operated with funds left in trust for the building and operating of a hospital, a use which, there as here, was deemed not to be feasible. However, there, no charitable gift over was made and it cannot be determined that the court was not applying the cy pres doctrine. In Trustees of Dartmouth College v. City of Quincy (1970), 357 Mass. 521, 258 N.E.2d 745, the deviation from the primary charitable gift which was permitted although the tmst contained an alternate charitable use by the college, was to permit a girls preparatory school established by the primary gift and long in operation to admit girls from all communities although the trust instrument provided that the school accept only girls from Quincy. The evidence indicated that it would be of economic benefit to the school to admit the additional girls.
The proposals of the city here are more of a change from the provisions of the trust instrument than merely a matter of administration as described in the comment to section 381 of the Restatement (Second) of Trusts. Although the health facility would aid the sick, disabled and injured and serve a charitable purpose, it is not a hospital. This case would be analogous to Village of Hinsdale only if the proposal was to use the trust funds for the operation of another hospital serving the same clientele intended to be served by the one described in the will. It would be analogous to Trustees of Dartmouth College only if the hospital envisioned by the testator had been in existence and operation for many years at which time a request was made to deviate from the admission policy set forth in the trust instrument in order to be in a financial position to continue to operate the institution. We hold that the doctrine of equitable deviation is not applicable here.” (75 Ill. App. 3d 80, 86-87.)

We agree. Paragraph 11 of the will provides that the funds be given to the City “to be by said city held in trust for the uses and purposes hereinafter named that is to say that said City of Bloomington with said trust funds or such portion as shall be deemed necessary for that purpose ***, erect and construct upon [the specified property], a building suitable for a hospital and to be used for hospital purposes ***.” That the testator’s intended purpose in making the gift was the construction of a hospital is further indicated by the provision in paragraph 12, by which the gift over becomes operative if “the City of Bloomington shall by resolution to be entered of record decline to accept the trust hereby created for the erection and maintenance of said hospital.” We do not agree with the City that the testator’s “primary charitable objective” was “the provision of care and medical or surgical services to the sick, disabled and injured, especially those unable to pay therefor.”

The parties are in agreement that the general rule, followed in this jurisdiction, is that where the literal execution of the charity becomes inexpedient or impracticable and the settlor has manifested a general intention to devote the property to charitable purposes the trust will not be permitted to fail, but that the courts will execute it cy pres. (Village of Hinsdale v. Chicago City Missionary Society (1940), 375 Ill. 220.) It is also well established that cy pres will not apply if provision is made for an alternate charitable gift. First National Bank v. American Board of Commissioners for Foreign Missions (1946), 328 Ill. App. 481. Accord, Simmons v. Parsons College (Ia. 1977), 256 N.W.2d 225; Smyth v. Anderson (1977), 238 Ga. 343, 232 S.E.2d 835; Mississippi Children’s Home Society v. City of Jackson (1957), 230 Miss. 546, 93 S. 2d 483; City of Belfast v. Goodwill Farm (1954), 150 Me. 17, 103 A.2d 517; Board of Trustees v. Cheney (1954), 158 Neb. 292, 63 N.W.2d 177; Edwards v. DeSimone (1969), 105 R. I. 335, 252 A.2d 327; In re Estate of Berry (1966), 29 Wis. 2d 506, 139 N.W.2d 72.

There is no contention that any proposal made by any of the parties will effect literal compliance with either paragraph 11 or 12, and neither Morgan-W ashington nor the School District contends that it is entitled to the funds under the express terms of paragraph 12 or under the doctrine of equitable deviation. It is clear that the doctrine of cy pres would apply to the general charitable purpose stated in either paragraph 11 or 12 of the will. The City argues that “the primary charitable objective attainable through cy pres should prevail over a secondary charitable objective attainable only through cy pres.” Morgan-W ashington argues that the general rule that a gift will not be executed cy pres where there is an alternate charitable gift controls here. It argues further that the provision of an alternative indicates an intent to avoid application of cy pres to the first gift. Finally, the School District argues that the funds should be distributed in a manner which furthers all the interests which the testator sought to benefit.

The parties call our attention to a provision in the 17th paragraph of the will which provides in part:

“I wish also to express the earnest hope that *** no court will ever indulge any technical rule of construction to defeat the trusts herein created or to prevent my estate from going to one of the two great charities to which it is devoted.”

With reference to this provision, the City argues that the reference to “one of the two great charities” reflects an intent not to divide the gift among more than one donee. The City’s argument that the gift to the City should be executed cy pres because it was mentioned first would, indeed, “indulge a technical rule of construction,” contrary to the testator’s express wish.

The parties have not called our attention to and our research has not revealed any authority apposite to the problem here. We are of the view, however, that the provision in the 17th paragraph of the will is not dispositive. It is obviously intended to prevent the total failure of the testator’s charitable trust, but we think it has no application in the determination of which of two or more charitable cy pres dispositions is to have priority.

We agree with the appellate court that the determination of the manner of the application of cy pres should be made by the circuit court and with its statement of the guidelines to be followed in making such determination. (75 Ill. App. 3d 80, 88.) The judgment of the appellate court is therefore affirmed and the cause is remanded to the circuit court of McLean County for further proceedings.

Affirmed and remanded.

UNDERWOOD and SIMON, JJ., took no part in the condideration or decision of this case.