text:
    (No. 51417.
    CHICAGO EXTRUDED METALS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Thurman Chennault, Appellee).

      Opinion filed October 2, 1979.

      Keith C. Hult, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    Victor J. Cacciatore, of Chicago (Anthony F. Provenzano, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Thurman Chennault, the claimant, was awarded compensation under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 etseq.) by an arbitrator of the Industrial Commission for injuries he sustained while in the employ of Chicago Extruded Metals, the respondent. The award was affirmed by the Commission and confirmed by the circuit court of Cook County. The respondent has appealed under our Rule 302(a). 58 Ill. 2d R. 302(a).

The circumstances of the accident, which resulted in a 5% permanent loss of use of the claimant’s right leg and a 20% permanent loss of use of his left great toe, are not in dispute. On April 6, 1976, the claimant, a mechanic employed by the respondent for 27 years, took a shower in the plant’s locker room after work. His testimony at the hearing before the arbitrator described what then occurred:

“Well, after I was through taking a shower, I was drying myself and at that moment I saw a cockroach going up the wall and I took my towel and I climbed up on the bench and went to swat it and at that very moment the bench fell forward towards me. I slipped off, the bench fell on top of my left big toe and with my right foot I fell on top of the bench. My right knee striking the lockers.”

The locker and shower rooms are provided by the respondent for the use of employees, and the claimant testified that it was common for the men with whom he worked to use the facilities.

The contention of the respondent is that the Industrial Commission erred in finding the claimant’s injuries to have arisen out of and in the course of his employment. The respondent says that, because the evidence is uncontroverted, the question involved is one of law, and that this court should not apply the standard of whether the Commission’s decision was contrary to the manifest weight of the evidence. We consider, however, from the circumstances, that what this court expressed in Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272, 275, is the relevant criterion:

“If undisputed facts upon any issue permit more than one reasonable inference to be drawn therefrom, the determination of such issue presents a question of fact, and the conclusion of the Commission will not then be disturbed on review unless it is contrary to the manifest weight of the evidence, but if the undisputed facts are susceptible of but a single inference, then the issue becomes one of law, to be determined by this court.”

We would observe that Union Starch involved a question of “personal comfort.” To explain: It is clear that injuries sustained by an employee while in the performance of reasonably necessary acts of personal comfort may be found to have occurred “in the course of” his employment, since they are incidental to the employment. (Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272, 277; Grola v. Industrial Com. (1944), 388 Ill. 114, 122; Wabash Ry. Co. v. Industrial Com. (1935), 360 Ill. 92, 95; Steel Sales Corp. v. Industrial Com. (1920), 293 Ill. 435, 437-38; 1A A. Larson, Workmen’s Compensation sec. 21 et seq. (1979).) But injuries resulting from the assumption of risk related to an activity which is strictly personal to the employee are not compensable. Fisher Body Division, General Motors Corp. v. Industrial Com. (1968), 40 Ill. 2d 514,515-16.

It is conceded by the respondent that the claimant was using the facilities at a time and in the manner in which the respondent intended that they be used. It is conceded, too, that had he slipped on a bar of soap or slid on a wet floor his injuries would be compensable as having resulted from an act of personal comfort incidental to his employment. But the respondent argues that it may be reasonably inferred that the claimant, by his conduct in climbing the bench to swat the insect, voluntarily was assuming a strictly personal risk totally unrelated to his duties. But it can be reasonably inferred, too, that the claimant’s act was not an undertaking of a risk strictly personal to himself. His conduct was not totally unrelated to the taking of a shower, an activity incidental to his employment. This created a question of fact for resolution by the Commission. The insect, the Commission could reasonably find, triggered a feeling of distaste. The claimant’s reaction was understandable and not unreasonable. The shower and locker rooms were intended and expected by the respondent to be in a sanitary condition. The act of the claimant was an act really in the respondent’s interest. Differing, yet reasonable, inferences thus could be drawn from the circumstances. We cannot say it was not proper for the Commission to find that the injuries arose out of and in the course of employment. The findings of the Commission were not contrary to the manifest weight of the evidence (Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272), and the judgment of the circuit court of Cook County is accordingly affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 51668.
    THOMAS B. FORREST, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Caterpillar Tractor Company, Appellee).

      Opinion filed October 2, 1979.

      K. Michael Latshaw, of Bennett, Willoughby 8c Latshaw, P.C., of Decatur, for appellant.
    Robert F. Fahey, of Peoria, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Claimant, Thomas B. Forrest, filed a claim for compensation with the Industrial Commission, alleging that he was injured while working at the Caterpillar Tractor Company on November 18, 1975. The arbitrator awarded claimant temporary disability payments and compensation for 25% loss of use of both legs. On review sought by respondent, Caterpillar, the case was submitted to the Industrial Commission on the record, and the Commission vacated the award, ruling that claimant had failed to prove that his injury arose out of and in the course of his employment. Claimant appealed to the circuit court of Macon County, and that court confirmed the Commission’s decision. The cause is brought to this court by claimant under Rule 302(a) (58 Ill. 2d R. 302(a)).

Claimant was the first witness to testify. On direct examination, claimant’s attorney directed claimant’s attention to November 17, 1975, rather than November 18, the date indicated in his claim form as the date of injury. Claimant first related the details of the alleged accident. He was working with a heavy metal drill, and he had attached it to a hoist to facilitate its movement over a drill fixture. In attempting to position the drill, he pulled the drill toward him, but it moved more quickly than he expected, and it hit him in the stomach. He said that the hoist was too far from the drill fixture. He was pushed against the fixture and experienced a burning sensation in his back. Claimant left work that day without reporting the accident, but developed difficulty in moving as he completed a bus ride home.

Claimant returned to work the following day and told his foreman, Larry Safford, about his accident and the danger of the hoist position. According to claimant, Safford said that similar accidents had occurred before. Claimant was assigned to work with a lighter drill.

Claimant did not work on the second day following the alleged accident, but went deer hunting. He explained that the trip was prearranged. He experienced much pain and difficulty in traveling and in hunting, and the hunting party returned prematurely.

On the day following his return, claimant visited Dr. Harold F. Haines, a chiropractor. He obtained temporary relief and returned to work the next day. He continued to work and over the first few weeks had occasional checkups with the company nurse.

According to claimant, he experienced greater pain as time progressed, and he grew tired more easily. His legs especially weakened. Beginning on April 12, 1976, and continuing through June 4, 1976, claimant periodically visited Dr. Haines for treatment. He told Dr. Haines that the injury was sustained on November 18, 1975. Due to pain and weakness, he stopped working on June 3. Beginning on or about June 6, 1976, claimant began consulting Dr. J. Peter Frechette. The doctor’s records indicated that claimant said that the accident was on November 19, 1975, rather than November 18, as indicated in his claim for compensation. Following preliminary examinations, Dr. Frechette recommended hospitalization and X rays of the spine. A problem was detected in the lower spine, and, in early July of 1976, Dr. Frechette performed a laminectomy on claimant. In addition to removing parts of vertebrae, Dr. Frechette also removed some ligaments and two defective discs from claimant’s lower spine. His condition improved to the point where he could walk, move around and “do some things” with less discomfort. He remained under Dr. Frechette’s supervision.

Pursuant to respondent’s request, claimant visited Dr. H. O. Hoffman three times to check claimant’s progress. Also pursuant to respondent’s request, claimant visited two company doctors, one of whom, on March 30, 1977, recommended that claimant return to work after claimant had expressed a desire to do so.

Claimant returned to work the next day, but his legs tired quickly, and on the following day, he experienced severe pain. His legs cramped, he experienced difficulty walking, and he almost fell from his porch as he returned home that night.

The following day, April 2, 1977, claimant contacted Dr. Frechette, who directed claimant not to work. About three weeks later, Dr. Frechette again X-rayed claimant’s spine and prescribed a back brace which was worn for two weeks. With Dr. Frechette’s approval, claimant returned to work on July 11, 1977, again working with a lighter drill.

At the close of direct examination, claimant testified that he had some back trouble in 1973, for which he consulted Dr. Haines. As a letter from Dr. Haines to claimant’s attorney showed, the visit was actually in October of 1972. Claimant was not then employed by respondent.

On cross-examination, claimant was questioned about previous consultations with Dr. Haines. One of respondent’s exhibits, the letter from Dr. Haines to claimant’s attorney, stated that X rays were taken during claimant’s October 1972 visit which indicated a mild degenerative hypertrophic osteoarthritis of the lower spine, with possible disc problems. During this visit, claimant spoke of back difficulties in April of 1971. Also, according to the letter, claimant visited Dr. Haines a second time in September of 1975. X rays then taken showed no appreciable change in condition.

Respondent’s attorney, apparently misinterpreting the letter, asked claimant if he had visited Dr. Haines in 1971. Consistent with the letter, claimant answered that he did not see or even know Dr. Haines in 1971. He also stated that he did not recall having visited Dr. Haines in September of 1975 nor missing two or three days of work that month.

Respondent’s attorney then questioned claimant concerning the contents of a medical report prepared by a company nurse during claimant’s visit to the company first-aid office. The report states that claimant said that he was injured in September of 1975 when a hoist swung and hit him and that he missed two or three days of work. In response to the attorney’s questions, claimant said that he did not tell the nurse that he had been injured in September or that he had missed work. The exact questions and answers were as follows:

“Q. Did you tell her that you didn’t work for two or three days after this incident in September?
A. Yes. In December?
Q. No, sir, I asked about September.
A. I didn’t tell her anything in September.”

Claimant’s wife, Thelma, was next called to testify on her husband’s behalf. She said that when claimant came home on the day of his injury, he was stooped over and holding his back. He told her that he had hurt his lower back at work, and he explained how he had done so. He also complained of a weakness in his legs. The discomfort prevented him from sitting in one position for too long, and he began pacing back and forth. The injury was not discussed for a few days thereafter.

She further said that claimant never before had lower back pain, although he did once experience upper back pain “towards his shoulder blades.” He visited a chiropractor to obtain relief from the upper back pain “about a couple of months before” the November 1975 accident.

Mrs. Forrest testified that she had never before seen her husband in such a condition as he was following the accident. His movements were curtailed, and he tired more quickly than before the accident. Since the accident, his legs bothered him more also. She further testified her husband was never before injured at Caterpillar.

On cross-examination, Mrs. Forrest was asked about prior injuries, specifically claimant’s upper back problem, and she responded that there was no actual accident or injury, but that he had developed pain between the shoulder blades. This problem arose, she said, at a time when claimant was self-employed. She also said claimant did not see a chiropractor for a lower back problem before 1975. She was not aware of any complaints about lower back pain prior to the present injury.

F oil owing the testimony of claimant and his wife, the arbitrator admitted various records and correspondence into evidence. All were received without objection except for two of respondent’s exhibits. The first exhibit to which objection was made is the medical report prepared by a company nurse in which she indicated that claimant told her that his injury resulted from an accident in September, rather than November of 1975. The objection made by claimant’s attorney was that the exhibit is incompetent. The second exhibit in question is Dr. Haines’ letter to claimant’s attorney. The objection raised was that the letter is of no particular bearing in this case. In this court, claimant contends that the exhibits are inadmissible due to respondent’s failure to establish authenticity or foundation. Because of the potential significance of these two exhibits, we first address the issue of their admissibility, and we agree with respondent that the arguments now made for the first time on appeal were waived by claimant’s failure to raise them before the arbitrator (Hays v. Illinois Industrial Home for the Blind (1958), 12 Ill. 2d 625, 631; Town of Cicero v. Industrial Com. (1949), 404 Ill. 487, 495). The arbitrator’s decision to admit the exhibits must therefore be tested against the objections made by claimant at that time, and we again agree with respondent that the objections then made were insufficient to require exclusion of the evidence. As to the medical report, the objection was to its competency, but “[t]he word ‘incompetent’ as applied to evidence means no more than inadmissible, and thus cannot be said to state a ground of objection.” (McCormick, Evidence sec. 52, at 116 (2d ed. 1972).) As to Dr. Haines’ letter, the objection to relevancy is without merit. Both exhibits were properly admitted.

These exhibits, when compared to the testimony of claimant and his wife, create substantial conflicts in the evidence, and we find no cause to set aside the Commission’s determination that claimant has failed to prove that his injury arose out of and in the course of his employment (Oliver v. Industrial Com. (1976), 65 Ill. 2d 228, 230-31). “Questions of fact, including the resolution of conflicts in medical testimony, are within the province of the Industrial Commission (Long v. Industrial Com. (1976), 62 Ill. 2d 289, 292; Seay v. Industrial Com. (1976), 62 Ill. 2d 241, 244), even where the Commission’s findings differ from those of the arbitrator and no further evidence has been taken by the Commission. (Crane v. Industrial Com. (1974), 57 Ill. 2d 158, 164).” Scuderi v. Industrial Com. (1978), 73 Ill. 2d 277, 281.

In summary, the Commission’s decision is not against the manifest weight of the evidence. The circuit court’s judgment confirming the Commission’s decision is therefore affirmed.

Judgment affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 51123.
    RONALD HOOVER et al., Appellees, v. THE MAY DEPARTMENT STORES COMPANY, Appellant.

      Opinion filed October 2, 1979.

      Howard J. Trienens, Newton N. Minow, Henry L. Mason III, and Kirk B. Johnson, of Sidley & Austin, of Chicago, and Robert S. Allen and Frank P. Wolff, Jr., of Lewis, Rice, Tucker, Allen & Chubb, of St. Louis, for appellant.
    Richard Shaikewitz, of Wiseman, Shaikewitz, Mc-Givem 8c Wahl, of Alton, Jerold S. Solovy, Richard T. Franch, Carter H. Klein, and Larry M. Wolfson, of Jenner & Block, of Chicago, and Neil Bernstein, of Clayton, Missouri, for appellees.
    Wilson & Mcllvaine, of Chicago (Robert F. Forrer and Robert K. Olendzki, of counsel), for amicus curiae Illinois Retail Merchants Association.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The circuit court of Madison County entered summary judgment in favor of plaintiffs, Ronald Hoover and Sheila Ruth, individually and as representatives of a class, against the defendant, May Department Stores Company, for violations of the Illinois Retail Installment Sales Act (Ill. Rev. Stat. 1973, ch. 12114, par. 501 et seq.), and the Missouri Retail Credit Sales Law (Mo. Rev. Stat. 1969, sec. 408.250 et seq.). The plaintiffs represent a class of credit purchasers from the defendant-owned Famous — Barr Stores. The defendant was enjoined from further violations of the acts and ordered to give notice to the members of the class, to pay back excess finance charges, to set aside a fund of $9 million, and to make an accounting to the court of finance charges collected from members of the plaintiff class. The court found no just reason to delay the appeal as to certain issues (58 Ill. 2d R. 304(a)), and since it was felt portions of the order were interlocutory, the court made findings pursuant to our Rule 308 (58 Ill. 2d R. 308) that substantially all of the content of its order involved questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. The appellate court allowed defendant’s motion for an interlocutory appeal and affirmed the judgment of the circuit court, with one justice dissenting. (62 Ill. App. 3d 106.) We granted the defendant’s petition for leave to appeal.

The complaint, as finally settled in the trial court, contained four counts against the defendant charging violations of the Illinois Retail Installment Sales Act, the Missouri Retail Credit Sales Law, the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1973, ch. 12114, par. 261 et seq.), and the Missouri Merchandising Practices Act (Mo. Rev. Stat. 1969, sec. 407.010 et seq.). It is clear from the order of the trial court that its decision was not based on the consumer fraud statutes of the two States, but was based solely on the Illinois Retail Installment Sales Act and the Missouri Retail Credit Sales Law. We therefore judge the correctness of the order entered by the standards of the two acts involved, and we do not consider the order in light of the two consumer fraud statutes.

Famous-Barr Department Stores are owned by the defendant, May Department Stores Company, and have operated in the St. Louis area since 1879. For nearly 60 years, Famous-Barr has distributed Eagle trading stamps to its customers. It is the method by which these stamps were issued that'is questioned in this case. We need not detail the facts. Briefly, when a customer purchases an item for cash, he receives Eagle stamps at the rate of 100 for each $10 purchase. If the customer does not pay cash, he receives no stamps at that time, but if he pays his account within 30 days after billing, he receives a slip which can be exchanged for stamps. If he does not pay his account within that time, he receives no stamps. The stamps can be exchanged at any Eagle Stamp exchange point regardless of where the purchases were made. It is plaintiffs’ contention that the failure to issue Eagle stamps to the last class of credit customers mentioned constitutes an additional charge which defendant has not disclosed to the customers and is a violation of the two retail credit sales statutes. The action seeks to recover the value of the trading stamps that this class of customers did not receive by virtue of paying for their merchandise in more than the allotted time after billing. It is estimated that no single customer will receive more than $20.

Numerous issues have been raised in this court which we need not consider because we hold that, at the time covered by the complaint, a private cause of action could not be maintained under either of the statutes involved in this appeal.

We will first consider the Illinois act. Prior to 1968, the Illinois Retail Installment Sales Act made certain provisions for the consequences of violations of the Act. Section 17 provided:

“Sec. 17. Failure to comply — Remedy of buyer. In case of failure of the seller or holder to comply with the provisions of this Act, the buyer has the right to recover from the seller or holder, as the case may be, an amount equal to the finance charge or 10% of the cash price if no finance charge is specified *** plus reasonable attorneys’ fees.” (Ill. Rev. Stat. 1965, ch. 1211/2, par. 240.)

In addition to authorizing a private cause of action, the Act, in section 20, provided that any person who wilfully and knowingly violated any provisions of the Act could be punished by a fine of not more than $500, and further provided that “[a]ny person violating any of the provisions of Sections 2 to 17, inclusive, *** is barred from recovery of any finance charge, delinquency or collection charge or refinancing charge ***.” (Ill. Rev. Stat. 1965, ch. 121V2, par. 243.) No provision was contained in the pre-1968 act for the enforcement of its provisions by the Attorney General or a State’s Attorney.

In 1967 the General Assembly enacted a new retail installment sales act, which specifically repealed the Retail Installment Sales Act of 1957 as amended, but provided that the repealed act remain in effect as to transactions entered into before January 1, 1968. (Ill. Rev. Stat. 1973, ch. 1211/2, par. 533.) The 1967 act was approved July 26, 1967, and became effective January 1, 1968. The case now before us does not involve transactions entered into prior to January 1, 1968.

The present act does not contain a provision authorizing a private cause of action by a buyer against one who violates the provisions of the Act similar to that contained in section 20 of the 1957 act. Thus, although the present act repealed the 1957 act and reenacted a substantial portion of the former act’s provisions, it did not reenact the remedy provision creating a private cause of action in the buyer. The present act, however, does contain a provision for the enforcement of the Act by the Attorney General or a State’s Attorney. As noted above, the 1957 act had no such enforcement provision. Section 30 of the present act provides:

“Sec. 30. The Attorney General or the State’s Attorney of any county in this State may bring an action in the name of the State against any person to restrain and prevent any violation of this Act. ***” (Ill. Rev. Stat. 1973, ch. 12iy2, par. 530.)

Also, section 31 of the present act (Ill. Rev. Stat. 1973, ch. 1211/2, par. 531) contains a penalty provision substantially the same as that contained in section 20 of the 1957 act set out above. Thus, under the present act, as under the 1957 act, the violations of the Act constitute a misdemeanor for which the seller can be punished, and the seller is prohibited from recovering any finance charge in connection with the retail installment sales contract. However, the new act, instead of leaving the enforcement to private actions, has vested in the Attorney General or a State’s Attorney the authority to bring actions against violators to restrain and prevent violations.

In 1967 the General Assembly not only repealed the 1957 Retail Installment Sales Act and enacted anew one, but also it enacted legislation creating a new Motor Vehicle Retail Installment Sales Act, a new Sales Finance Agency Act, and adopted several amendments to the Consumer Fraud and Deceptive Business Practices Act. These three new acts, and the amendments to the latter, are all interrelated and were all approved July 26, 1967. In fact, these changes were all made by a package of bills which were introduced in the General Assembly on the same day, January 4, 1967, all of which had the same principal sponsors. These bills had sequential Senate Bill numbers. The amendment to the Consumer Fraud and Deceptive Practices Act was contained in Senate Bill No. 25; the Sales Finance Agency Act was created by Senate Bill No. 26; the repeal of the 1957 Retail Installment Sales Act and the creation of the new act were accomplished in Senate Bill No. 28, and the Motor Vehicle Retail Installment Sales Act was provided for in Senate Bill No. 29. Two other related bills, which are not relevant to this case, were also contained in this package. Senate Bill No. 27 was related to Senate Bill No. 26 and provided for supervision of sales finance agencies. Senate Bill No. 30 amended the law concerning rates of interest. See 1967 Ill. Laws 2062, 2068, 2143, 2149, 2163, 2211.

The Motor Vehicle Retail Installment Sales Act (Ill. Rev. Stat. 1973, ch. 12114, par. 561 et seq.) provides in section 23 (Ill. Rev. Stat. 1973, ch. 12114, par. 583) for enforcement by the Attorney General or a State’s Attorney in the same manner as section 30 of the present Retail Installment Sales Act. Section 24 of the Motor Vehicle Retail Installment Sales Act (Ill. Rev. Stat. 1973, ch. 12114, par. 584) contains the same penalty provisions for violations of the Act as are contained in section 31 of the present Retail Installment Sales Act (Ill. Rev. Stat. 1973, ch. 12114, par. 531). In neither act is there any provision authorizing a buyer to maintain a private cause of action against a violator.

The Sales Finance Agency Act (Ill. Rev. Stat. 1973, ch. 12114, par. 401 et seq.) was also a new act approved on July 26, 1967, as a part of the package of bills. It specifically provides in sections 8.3, 8.4, 8.5 and 8.9 (Ill. Rev. Stat. 1973, ch. 121%, pars. 408.3, 408.4, 408.5, 408.9) that certain violations of the Retail Installment Sales Act and the Motor Vehicle Retail Installment Sales Act (including willful violations and fraudulent misrepresentations under either of the two acts) constitute violations of the Sales Finance Agency Act. Section 16 of that Act (Ill. Rev. Stat. 1973, ch. 121%, par. 416) provides that an individual who sustains loss as a result of an act of a sales finance agency violative of the Act may, in a civil action, recover the excess paid over the maximum time differential as limited by the Retail Installment Sales Act, or the Motor Vehicle Retail Installment Sales Act along with other provisions for recovery.

As noted earlier, Senate Bill No. 25 of this package of bills introduced on January 4, 1967, made certain amendments to the Consumer Fraud and Deceptive Business Practices Act. We are here concerned with sections 2E and 2F added by that bill. (Ill. Rev. Stat. 1973, ch. 121%, pars. 262E, 262F.) Section 2E, which was added to the Act, provides:

“Any person who is regularly engaged in the business of providing or furnishing merchandise to consumers or in making loans to consumers and who has committed in any calendar year 3 or more violations, as determined in any civil or criminal proceeding, of the ‘Consumer Finance Act’; the ‘Consumer Installment Loan Act’; the ‘Retail Installment Sales Act’; the ‘Motor Vehicle Retail Installment Sales Act’; ‘An Act to revise the law in relation to the rate of interest ***’; ‘An Act to promote the welfare of wage-earners by regulating the assignment of wages ***’; or ‘An Act relating to wage deductions for the benefit of creditors ***’ *** is guilty of an unlawful practice within the meaning of this Act. ***” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 121%, par. 262E.)

Section 2F, which was added to the Act, provides:

“Any person who is held in any civil or criminal proceeding to have wilfully and materially violated any Illinois statutory provision regulating the extension of credit to borrowers or designed to protect the consumer purchasing merchandise in a credit, as contrasted from a cash, transaction is guilty of an unlawful practice within the meaning of this Act. ***” Ill. Rev. Stat. 1973, ch. 121%, par. 262 F.

In 1968 the Consumer Fraud Act provided that, in an action for injunctive relief brought by the Attorney General, the court could also enter the necessary orders to restore to any person, any money or property which had been acquired by means of practices prohibited by the Act. (Ill. Rev. Stat. 1967, ch. 121%, par. 267.) It further provided that the provisions of the Act shall not bar any claim against any person who has acquired any money or property by means of a practice declared by the Act to be unlawful. (Ill. Rev. Stat. 1967, ch. 121%, par. 269.) In Rice v. Snarlin, Inc. (1970), 131 Ill. App. 2d 434, the appellate court noted that certain sections of the Act created liability of a violator to a consumer, and also noted the language in the two sections referred to above in this paragraph provides for the right of consumers to recover. The appellate court held that the legislature clearly intended that the consumer should have a private cause of action. In 1973 section 10a was added to the Consumer Fraud and Deceptive Business Practices Act. (Ill. Rev. Stat. 1973, ch. 121%, par. 270a.) This section specifically authorized private actions for damages and, in addition, authorized the prevailing party in such an action to recover reasonable attorney’s fees and costs. The section also provided that the action must be brought within three years.

Summarizing, prior to 1968, a buyer could maintain an action against the seller, or a holder, for a failure to comply with the provisions of the Retail Installment Sales Act. After the 1967 legislative enactment of this package of bills, neither the new Retail Installment Sales Act, nor the new Motor Vehicle Retail Installment Sales Act contained any provisions for a private action. However, if there are three or more violations of either act during a calendar year, as determined in a civil or criminal proceeding (Ill. Rev. Stat. 1973, ch. 121½, par. 262E), or if a person is held in a civil or criminal proceeding to have “wilfully and materially” violated either act (Ill. Rev. Stat. 1973, ch. 121½, par. 262F), such violations constitute violations of the Consumer Fraud and Deceptive Business Practices Act, and a private action may be maintained by the consumer under section 10a of that act (Ill. Rev. Stat. 1973, ch. 12PA, par. 270a). Also, if a sales finance agency wilfully violates the Retail Installment Sales Act, or the Motor Vehicle Retail Installment Sales Act, or if there is a fraudulent misrepresentation of particular material or other aggravating circumstances specified in the statute, the buyer may maintain a private action against the sales finance agency. (Ill. Rev. Stat. 1973, ch. 12PA, pars. 408.3, 408.4, 408.5, 408.6, 408.9.) No longer is there a statutory provision for the maintenance of a private action for a mere violation of the Retail Installment Sales Act. Such action can only be maintained when aggravated violations bring the conduct within the provisions of one of the other two consumer-protection statutes.

The repeal of the 1957 Retail Installment Sales Act, which contained a provision for private action, and the failure to include such a provision in the new act, are clear indications that the legislature intended that there be no right to maintain a private action for recovery under the new act. (See People v. Jennings (1954), 3 Ill. 2d 125; City of Chicago v. Degitis (1943), 383 Ill. 171; 1A Sutherland, Statute and Statutory Construction sec. 23.28 (4th ed. 1972).) This conclusion is strengthened when we consider that the General Assembly, in the course of repealing the 1957 act and enacting the new act, provided that certain aggravated violations would constitute violations of the Consumer Fraud and Deceptive Business Practices Act and the Sales Finance Agency Act.

In Teale v. Sears, Roebuck & Co. (1976), 66 Ill. 2d 1, the question involved was whether a civil action for damages exists for a violation of the “age discrimination act” (Ill. Rev. Stat. 1975, ch. 48, par. 881 etseq.). The act did not expressly authorize a civil action for damages. The plaintiff, relying on Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, argued that when a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil as well as criminal liability, even though no provision is contained therein for the maintenance of a civil action. This court, in Teale, rejected this argument and found from a consideration of the language of the act itself, as well as the provisions of other statutes, that the legislature did not intend that a civil action be maintained for a violation of the act.

As in Teale, we note that in other consumer-protection statutes the legislature, when it intended to create a private cause of action for violations, specifically created the right of action in the statute. In addition to the Consumer Fraud and Deceptive Business Practices Act and the Sales Finance Agency Act previously discussed, the Consumer Installment Loan Act provides for a recovery of certain specified amounts within two years for violations of the Act (Ill. Rev. Stat. 1965, ch. 74, par. 70). In “An Act to revise the law in relation to the rate of interest ***” the obligor is given a right of action to recover specified amounts within a stated period of time. (Ill. Rev. Stat. 1965, ch. 74, par. 6.) In “An Act to promote the welfare of wage-earners by regulating the assignment of wages, and prescribing a penalty for the violation thereof,” the statute authorizes the employee and the employer to maintain a cause of action against one who violates the provisions of the Act. (Ill. Rev. Stat. 1965, ch. 48, par. 39.4c.) In “An Act relating to wage deductions for the benefit of creditors and regulating the issuance of deduction orders,” a private cause of action is also authorized. Ill. Rev. Stat. 1965, ch. 62, par. 87.

The totality of the circumstances, including the expungement of the private cause of action from the prior act, the inclusion of the private action in similar acts, the introduction and passage of a legislative package of bills, and the inclusion of an array of remedies in this act, compels the conclusion that the General Assembly did not intend that a private cause of action be maintained under the present Retail Installment Sales Act.

Under the Missouri Retail Credit Sales Law in effect during the period covered by the complaint, there was likewise no express provision for a private action. The law, as then in effect, provided:

“408.370. Violation, penalty — effect on time and other charges — correction.—1. Any person who shall knowingly violate any provision of sections 408.250 to 408.370 shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than six months or both.
2. Any person violating sections 408.260 to and including 408.330, except as the result of an accidental and bona fide error of computation, shall be barred from recovery of any time charge, delinquency or collection charge on the contract.
3. Notwithstanding the other provisions of this section, the failure to comply with any provision of sections 408.250 to 408.370 with respect to any retail time transaction may be corrected by the seller, or other person holding the retail time contract or account under a retail charge agreement, at any time after the execution thereof, but in any event not later than ten days after such person shall have been notified thereof in writing by the buyer, and, if so corrected, such person shall not be subject to any criminal penalty or civil forfeiture under sections 408.250 to 408.370 for such failure.” (Mo. Rev. Stat. 1969, sec. 408.370.)

However, in 1975 this section was amended. The italicized portion of paragraph 3 of the section set forth below was added by that amendment, and also paragraph 4 was added to this section by the amendment. Paragraphs 3 and 4 provide:

“3. Notwithstanding the other provisions of this section, the failure to comply with any provision of section 408.250 and sections 408.260 to 408.370 with respect to any retail time transaction may be corrected by the seller, or other person holding the retail time contract or account under a retail charge agreement, at any time after the execution thereof, but in any event not later than ten days after such person shall have been notified thereof in writing by the buyer, and, if so corrected, such person shall not be subject to any criminal penalty, civil forfeiture, or private cause of action under sections 408.250 to 408.370 for such failure. [Emphasis added.]
4. Any buyer, who suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment of any method, act or practice in violation of section 408.250 and sections 408.260 to 408.370, which is not restored by action taken pursuant to subsection 3 of this section, may bring a private cause of action pursuant to section 407.025, RSMo.” Mo. Rev. Stat. 1979, secs. 408.370(3), (4), as amended in 1975.

Thus, prior to 1975, the Missouri statute provided for no private cause of action for a violation of the Missouri Retail Credit Sales Law, whereas, after the 1975 amendment, a private cause of action is provided for. Therefore, if the plaintiffs have a right to maintain a civil action in this case under the Missouri statute, the right to do so must be by implication. No case has been cited to us in which a Missouri court has construed this statute as authorizing a private action by implication. In Missouri the courts have regularly held that a “statute which creates a criminal offense and provides a penalty for its violation, will not be construed as creating a new civil cause of action independently of the common law, unless such appears by express terms or by clear implication to have been the legislative intent.” (Christy v. Petrus (1956), 365 Mo. 1187, 1192, 295 S.W.2d 122, 126; Giloti v. Hamm-Singer Corp. (Mo. 1965), 396 S.W.2d 711; Aluma Kraft Manufacturing Co. v. Elmer Fox & Co. (Mo. App. 1973), 493 S.W.2d 378.) In Seasongood v. K & K Insurance Agency (E.D. Mo. 1976), 414 F. Supp. 698, the Federal district court, interpreting Missouri law, refused to imply a private cause of action into the insurance code of Missouri, though the act allowed administrative orders and judicial review. As the court noted:

“Nowhere in the Act is there a provision for a private action whereby an aggrieved person could enforce the Act, and plaintiff concedes that no private cases have been brought under the Act. There is a clear line of Missouri cases which holds that a statute which creates a criminal offense and provides a penalty for its violation will not be construed as creating a new civil cause of action independent of common law, unless such appears by clear implication to have been the legislative intent. [Citations.] Although the above cases involve criminal statutes, the principle they express is clearly analogous to the penal statute at issue here. Since nothing in the Act itself or its legislative history suggests the creation of a private right of action ***, Count III does not state a claim under Missouri law.” Seasongood v. K &K Insurance Agency (E.D. Mo. 1976), 414 F. Supp. 698, 703.

We note that in other related consumer statutes the Missouri legislature, when it intended to provide for a private cause of action, expressly did so. In the Merchandising Practices Act, which is comparable to our Consumer Fraud and Deceptive Business Practices Act, the Missouri legislature provided in detail for maintaining civil actions for damages, including class actions, for violation of that act. (Mo. Rev. Stat. 1979, sec. 407.025, as amended in 1973.) Also, with regard to usury, the Missouri legislature provided that a violator of the statute “shall be subject to be sued, for any and all sums of money paid in excess of the principal and legal rate of interest of any loan, by the borrower *** and shall be adjudged to pay the costs of suit, including a reasonable attorney’s fee ***.” Mo. Rev. Stat. 1969, sec. 408.050.

These considerations, which indicate the absence of legislative intent to create a private cause of action under the Missouri act prior to the 1975 amendment, are supported by general principles of statutory construction involving amendments. Legislative enactments creating new rights presumptively are intended to change the law in relation to those rights. (Stover Bank v. Welpman (1929), 323 Mo. 234, 19 S.W.2d 740; Armor v. Lewis (1913), 252 Mo. 568, 161 S.W. 251; 1A Sutherland, Statutes and Statutory Construction sec. 22.30 (4th ed. 1972).) In the absence of any Missouri authority to the contrary, we will apply what we perceive to be the proper construction of the Missouri statute. We hold therefore that there existed no implied right to maintain a private civil action under the Missouri Retail Credit Sales Law. We therefore hold that the trial court erred in entering summary judgment for the plaintiffs for violation of the Illinois Retail Installment Sales Act and the Missouri Retail Credit Sales Law.

We noted earlier that the complaint also alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, and of the Missouri Merchandising Practices Act. Plaintiffs’ motion for summary judgment also encompassed these counts of the complaint. Although the court’s order alluded to violations of these acts, the adjudicating portion of the order held only that the defendant had violated the Illinois Retail Installment Sales Act and the Missouri Retail Credit Sales Law, and relief was granted only as to those two acts. The subsequent modification of the order, pursuant to our Rules 304(a) and 308 (58 Ill. 2d Rules 304(a), 308), to allow an interlocutory appeal, pertained only to paragraphs 1 through 5 of section VII of the order. These paragraphs— and, in fact, the entire section — do not contain any reference to the two consumer fraud acts. Thus, no appealable order was entered under these two acts, and the case must be remanded to the circuit court of Madison County.

The judgments of the circuit court of Madison County and of the appellate court are reversed and the cause is remanded to the circuit court of Madison County.

Reversed and remanded.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 51126.
    JAMES W. JOHNSTON et al., Appellees, v. THE CITY OF BLOOMINGTON et al., Appellants.

      Opinion filed October 2, 1979.

      Randall B. Ehlers, of Bane, Allison & Saint, P.C., and David L. Stanczak and H. Paxton Bowers, of Bloomington, for appellants.
    George L. Chesley, of DePew, Grimes & Chesley, of Bloomington, for appellees.
    Richard R. Wagner, Assistant State’s Attorney, of Bloomington, for amicus curiae County of McLean.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, James W. Johnston, individually and as a representative of all those similarly situated, and William Fike, appealed from the judgment of the circuit court of McLean County entered upon allowance of the motion to dismiss filed by defendants, the city of Bloomington, a municipal corporation, and Paul W. Krueger, its treasurer. The appellate court reversed and remanded (61 Ill. App. 3d 209), and we allowed defendants’ petition for leave to appeal. In counts I and III of the complaint plaintiffs Johnston and Fike, respectively, alleged that, in one instance, he pleaded guilty, and in the other was found guilty, of a violation of chapter 32, section 29, of the Bloomington Municipal Code, hereafter referred to as the speeding ordinance, and paid fines. Count II purports to be a class action brought on behalf of all persons who had paid fines for prosecutions under the ordinance. It is alleged in each count that on January 6, 1976, the circuit court of McLean County, in a separate action, declared the ordinance unconstitutional, and plaintiffs seek to recover the fines paid.

The basis for the circuit court’s holding the speeding ordinance unconstitutional cannot be determined from the record. The parties are in agreement that no appeal was taken from that judgment, and it appears that shortly after the judgment was entered the city council amended the ordinance, presumably in an effort to obviate the infirmities upon which the circuit court judgment was based.

The judgment was entered upon allowance of the motion to dismiss the complaint, and the allegations of the complaint must therefore be taken as true. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93.) Relying primarily on our decision in People v. Meyerowitz (1975), 61 Ill. 2d 200, plaintiffs contend that the effect of an ordinance which has been held unconstitutional is the same as though it had never existed and that judgments of conviction based upon it are void and can be collaterally attacked at any time; that fines paid under a void ordinance were not voluntarily paid for the reason that certain rights of the plaintiff would have been severely affected had the fines or penalties not been paid; and that because defendants did not appeal from the judgment finding the ordinance unconstitutional, they are now precluded from relitigating its validity.

Defendants contend that civil judgments obtained under an ordinance later ruled unconstitutional are not rendered void; that the ruling by a circuit court that an ordinance is unconstitutional does not effect collateral estoppel and is not binding on other circuit courts; and that plaintiffs are not entitled to the return of fines voluntarily paid. Although People v. Meyerowitz (1975), 61 Ill. 2d 200, would control if the judgments under which the fines were paid were criminal in nature it does not follow that it applies here. The prosecution of municipal ordinance violations is hybrid in nature (City of Danville v. Clark (1976), 63 Ill. 2d 408), and as the court observed in Village of Maywood v. Houston (1956), 10 Ill. 2d 117, 119: “The proceeding is not strictly or exclusively civil or criminal, but resembles both in some respects. For this reason, problems in this area cannot be solved by a mere labeling process, and the decisions of the courts, in Illinois and elsewhere, do not always have apparent logical consistency.” Although ordinances of the type here involved have long been considered quasi-criminal in character, they have been viewed as civil in form. (City of Danville v. Clark (1976), 63 Ill. 2d 408, 411; City of Danville v. Hartshorn (1973), 53 Ill. 2d 399, 401; City of Chicago v. Lawrence (1969), 42 Ill. 2d 461, 466; City of Decatur v. Chasteen, (1960), 19 Ill. 2d 204, 216.) In City of Decatur v. Chasteen, the court said that “An action to recover a penalty for the violation of a municipal ordinance, though quasi-criminal in character, is civil in form and is ordinarily termed a civil action and not a criminal prosecution.” (19 Ill. 2d 204, 216.) Judgments entered in a civil proceeding may be collaterally attacked as void only where there is a total want of jurisdiction in the court which entered the judgment, either as to the subject matter or as to the parties. (Wood v. First National Bank (1943), 383 Ill. 515, 522.) If jurisdiction has attached, no error committed by the court can render the judgment void and the judgment is binding on the parties and on every court unless reversed or annulled in a direct proceeding. If there is a total want of jurisdiction either as to the subject matter or as to the parties, the proceedings are a nullity and no rights are created by them and they may be declared void when collaterally attacked. If the court has jurisdiction, it is empowered to make either a correct or an erroneous decision and the fact that the statute or ordinance upon which the decision is based was void does not serve to deprive it of jurisdiction. See Annot. 167 A.L.R. 517, 533 (1947).

The complaint contains no allegations which purport to attack the jurisdiction of the circuit court which entered the judgments under which the fines were paid, either on the ground of lack of jurisdiction over the subject matter or of the parties. Board of Highway Commissioners v. City of Bloomington (1911), 253 Ill. 164, upon which plaintiffs rely, involved no prior judgment and is clearly distinguishable.

A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover. (Fechtner v. Lake County Savings and Loan Association (1977), 66 Ill. 2d 128, 133.) Plaintiffs can recover here only if they prevail in a collateral attack on the judgments under which the fines were paid and this, it clearly appears, they cannot do. The circuit court correctly dismissed the action, and in reversing the judgment the appellate court erred.

In view of the conclusion reached we need not consider the other questions briefed and argued in this appeal. The judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 51627.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DENNIS HALE, Appellee.

      Opinion filed October 2, 1979.

    William J. Scott, Attorney General, of Chicago, and Ronald C. Dozier, State’s Attorney, of Bloomington (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Marc D. Towler and Robert J. Biderman, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.

      Fred B. Moore, of Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, Dennis Hale, was charged with the offense of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4), in an information alleging that he “willfully, unlawfully and knowingly without legal justification, made physical contact of an insulting and provoking nature with Elijah Rusk, by striking him with his fist, knowing said Elijah Rusk to be a peace officer engaged in the execution of his official duties.”

Defendant moved to dismiss on the ground the quoted language was insufficient to state the offense of aggravated battery. The trial judge, although indicating his belief the information was sufficient to charge battery, allowed the motion and dismissed the information in order that the State might seek review of the ruling on the aggravated battery charge. The appellate court, in a Rule 23 order (64 Ill. App. 3d 1103), agreed that under People v. Lutz (1978), 73 Ill. 2d 204, the information was insufficient to charge aggravated battery because it did not allege that the police officer had suffered bodily harm. We granted the State leave to appeal.

The Criminal Code of 1961 defines battery, a Class A misdemeanor, as consisting of either of two alternative types of misconduct:

“A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 3.)

The Code then provides, in section 12 — 4, that an act of battery will constitute aggravated battery, a Class 3 felony, in certain enumerated situations, including the following:

“(b) A person who, in committing a battery either:
* * *
(3) Knows the individual harmed to be a teacher or other person employed in any school and such teacher or other employee is upon the grounds of a school or grounds adjacent thereto, or is in any part of a building used for school purposes;
(4) Knows the individual harmed to be a supervisor, director, instructor or other person employed in any park district and such supervisor, director, instructor or other employee is upon the grounds of the park or grounds adjacent thereto, or is in any part of a building used for park purposes;
(5) Knows the individual harmed to be a caseworker, investigator, or other person employed by the State Department of Public Aid or a County Department of Public Aid and such caseworker, investigator, or other person is upon the grounds of a Public Aid office or grounds adjacent thereto, or is in any part of a building used for Public Aid purposes, or upon the grounds of a home of a public aid applicant, recipient, or any other person being interviewed or investigated in the employee’s discharge of his duties, or on grounds adjacent thereto, or is in any part of a building in which the applicant, recipient, or other such person resides or is located;
(6) Knows the individual harmed to be a peace officer, or a person summoned and directed by him, or a correctional officer, while such officer is engaged in the execution of any of his official duties including arrest or attempted arrest;
(7) Knows the individual harmed to be a fireman engaged in the execution of any of his official duties;
(8) Is, or the person battered is, on or about a public way, public property or public place of accomodation or amusement; or
(9) Knows the individual harmed to be the driver, operator, employee or passenger of any transportation facility or system engaged in the business of transportation of the public for hire and the individual assaulted is then performing in such capacity or then using such public transportation as a passenger or using any area of any description designated by the transportation facility or system as a vehicle boarding, departure, or transfer location commits aggravated battery.” (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(b).)

The issue before us is whether, under section 12 — 4(b)(6), insulting or provoking physical contact knowingly inflicted upon a police officer engaged in the execution of his duties constitutes aggravated battery or whether only a battery resulting in bodily harm to the officer comes within that statute, an issue upon which the members of the appellate court are not in harmony.

In People v. Crane (1971), 3 Ill. App. 3d 716, the court reasoned that because the subsection dealing with aggravated batteries committed on teachers (par. 12 — 4(b)(3)) describes the victim as “the individual harmed,” physical contact resulting in bodily harm, not merely physical contact of an insulting or provoking nature, is a necessary element of an aggravated battery charged under this section. That court found support for its result in the fact that section 12 — 4(b)(8), dealing with batteries committed on persons on a public way, describes the victim as “the person battered.” The court concluded that the legislature intended to distinguish between “harmed” and “battered,” so that while any act of battery (either causing bodily harm or an insulting or provoking physical contact) would constitute aggravated battery under the circumstances of section 12 — 4(b)(8), only a battery causing bodily harm would suffice for section 12 — 4(b)(3). For purposes of this rationale, the language of section 12 — 4(b)(6), here in question, is identical to that of section 12 — 4(b)(3). Several other appellate decisions have adopted the reasoning of Crane: People v. Benhoff (1977), 51 Ill. App. 3d 651; People v. Haltom (1976), 37 Ill. App. 3d 1059; People v. Nance (1975), 26 Ill. App. 3d 182.

In People v. Meints (1976), 41 Ill. App. 3d 215, however, the Crane rationale was rejected. The Meints court found the legislature’s intent in defining aggravated battery was to extend special protection to “people on or about a public way or persons in positions of authority, whether they be police, correctional officers, school teachers or firemen.” (41 Ill. App. 3d 215, 220.) The court concluded that the legislature had used the words “battered” and “harmed” synonymously and had not intended to draw a technical distinction between all batteries and batteries involving bodily harm. Accord, People v. Hurlbert (1976), 41 Ill. App. 3d 300.

We agree that Meints and Hurlbert correctly characterized the legislative intent. In attempting to distinguish between the phrases “the person battered,” found in section 12 — 4(b)(8), and “the individual harmed,” found in sections 12 — 4(b)(3) to 12 — 4(b)(7), the Crane court overlooked a third variation, found in section 12 — 4(b)(9), which deals with employees and passengers on public transportation facilities. Although the wording of this section for the most part parallels that of sections 12 — 4(b)(3) to 12 — 4(b)(7), the victim is here referred to not only as “the individual harmed" but also as “the individual assaulted.” Because the word “assaulted” in this context clearly was not intended to have the technical meaning of “assault” in the statute defining that offense (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 1), it does not seem logical that the words “battered” and “harmed” in their contexts refer to the technical meanings of “battery” and “harm” in the battery statute. More reasonable, in our judgment, is the conclusion that all three words were used synonymously, and, consequently, either of the alternative acts of battery will satisfy section 12 — 4(b)(6). This conclusion is reinforced by its compatibility with the apparent legislative purpose to afford additional protection to those in positions of authority. Since a battery is committed upon ordinary persons by either causing bodily harm or by insulting or provoking physical contact, consistency would seem to require that both forms of misconduct would constitute aggravated battery when committed upon those in authority. No reason appears, and none has been suggested, as to why the legislature would have eliminated either of the alternatives in defining aggravated battery.

Furthermore, the rationale of Crane and those cases following it leads to anomalous results. Under section 12 — 4(b)(8), which does not use the term “harmed,” any act of battery committed on a public way against any person, including a fireman or a police officer, constitutes aggravated battery. Under Crane, therefore, insulting or provoking physical contact inflicted on a fireman or police officer on or about a public way, public property or public place of accommodation or amusement, whether or not he was engaged in the line of duty, would constitute aggravated battery. However, the same conduct directed against the fireman or officer while in the execution of his duties on private property would not constitute aggravated battery unless it also involved bodily harm. We do not believe the legislature could have intended such fortuitous distinctions. We believe, rather, that the legislature intended to extend special protection to all persons on a public way or public transportation facility and to persons in authority, whether teachers, park supervisors, public aid caseworkers, police or correctional officers or firemen, by providing that any act of battery, when committed against such persons, shall constitute aggravated battery.

Our holding in People v. Lutz (1978), 73 Ill. 2d 204, does not require a different result. In Lutz we did not consider whether insulting or provoking physical contact inflicted on an officer could constitute aggravated battery. The question there was whether an indictment was sufficient to charge aggravated battery.

“The indictment contained two counts. In count I it was charged that defendant ‘committed the offense of AGGRAVATED BATTERY, in that he did knowingly and without legal justification in committing a battery on Dan Wilson use a deadly weapon, to-wit: a firearm, in violation of Illinois Revised Statutes, 1973, Chapter 38, Section 12 — 4(b)(1) ***.’ Count II charged that defendant ‘committed the offense of AGGRAVATED BATTERY, in that he did knowingly and without legal justification, in committing a battery on Dan Wilson, then and there knew Dan Wilson, the individual harmed, to be a peace officer engaged in the execution of official duties, in violation of Illinois Revised Statutes, 1973, Chapter 38, Section 12-4(b)(6) ***.’ ” (73 Ill. 2d 204, 208.)

We relied on People v. Abrams (1971), 48 Ill. 2d 446, in holding that neither charge was sufficient. We noted that in Abrams “it was held that a complaint which failed to charge either that the physical contact was of an insulting or provoking nature or caused bodily harm did not allege all the material facts constituting the offense of battery.” (73 Ill. 2d 204, 211.) In light of Abrams we found that count I was obviously defective because it failed to allege either of the alternative forms of battery, and that count II, in describing the police officer as “the individual harmed,” did not sufficiently charge the “bodily harm” form of battery. Therefore, like count I, count II failed to charge either of the alternative forms of battery, and so was insufficient under the rule of Abrams. Lutz contains no mention of the question whether insulting or provoking physical contact with one known to be an officer can constitute aggravated battery.

We accordingly hold that the information sufficiently charged aggravated battery and that its dismissal was error. The judgments of the appellate and circuit courts are reversed and the cause remanded to the circuit court of McLean County for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    (No. 51149.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. HRANT KEZERIAN, Appellee.

      Opinion filed October 2, 1979.

      William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of Belleville (Donald B. Mackay, Melbourne A. Noel, Jr., and Carolyn B. Notkoff, Assistant Attorneys General, of Chicago, and Raymond F. Buckley, Jr., of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Gomric & Strellis, of Belleville (James J. Gomric and John J. Kurowski, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The State appeals from a judgment of the appellate court (63 Ill. App. 3d 610) affirming the trial court’s suppression of certain tape recordings and testimony concerning the conversations recorded thereon. The issue is whether this evidence was inadmissible, as the trial and appellate courts held, because of an alleged failure by the State to comply with the exceptions to the relevant statutory provisions prohibiting eavesdropping. Those provisions are as follows:

“A person commits eavesdropping when he:
(a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so with the consent of any one party to such conversation and at the request of a State’s Attorney;
(b) Uses or divulges, except in a criminal proceeding, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.” Ill. Rev. Stat. 1975, ch. 38, par. 14-2.
“Any evidence obtained in violation of this Article is not admissible in any civil or criminal trial ***.” Ill. Rev. Stat. 1975, ch. 38, par. 14-5.

On October 21, 1975, St. Clair County State’s Attorney Robert Rice was contacted by special agent Robert Magnusen of the Illinois Bureau of Investigation (IBI) concerning a plan to burglarize Cahokia Downs Race Track. Magnusen had learned of the plot from Ronald Fuentes, a security guard at the track, who agreed to cooperate with authorities involved in the investigation. Agent Magnusen requested from State’s Attorney Rice authorization to record electronically a conversation between Fuentes and defendant, Hrant Kezerian, which was to take place on the following day. The State’s Attorney gave an oral authorization, and the electronic surveillance was conducted successfully on the 22nd.

On October 23 Agent Magnusen again contacted the State’s Attorney to obtain approval to record a conversation between Fuentes and defendant which was expected to take place later in the day. An oral authorization was given and the conversation recorded. On October 24, Agent Magnusen gave State’s Attorney Rice three separate written forms of authorization which had been prepared and typed by the IBI. Two of the documents confirmed the prior oral authorizations given by the State’s Attorney on October 21 and 23, while the third authorized a subsequent recording of a conversation expected to occur on the 25th. The State’s Attorney signed all three of these authorizations, and the October 25 conversation between Fuentes and Kezerian was monitored and recorded. Finally, on October 26, a further conversation between Fuentes and Kezerian was recorded pursuant to oral authorization given by the State’s Attorney on the 25th, written confirmation of which was prepared by the IBI and signed by State’s Attorney Rice on October 29.

The written authorizations, which were virtually identical except for the specified date and time limitations, provided that electronic eavesdropping could be used by the IBI in its Cahokia Downs investigation subject to the following limitations: (1) that agents of the IBI use the electronic eavesdropping device to hear or record all or any part of any conversation provided they have obtained the consent of any one party to the conversation; (2) that the eavesdropping occur only within the designated hours on the specified date unless further notice is received from the State’s Attorney’s office; (3) that the eavesdropping take place only within the confines of St. Clair County; and (4) that any information or evidence obtained through the use of the eavesdropping device be used or divulged only in criminal proceedings.

At the hearing on the motion to suppress, Agent Magnusen testified that prior to obtaining each oral authorization from the State’s Attorney, he informed Rice of the specific details of each planned electronic surveillance. The agent testified that he told the State’s Attorney of the time, place and nature of the anticipated recording, as well as the parties to be involved. Agent Magnusen also testified that the individual wired for sound, Fuentes, was not informed of any limitations or restrictions as to individuals to be recorded.

Based on this testimony the trial court suppressed the recordings and held that the informant, Ronald Fuentes, would be barred from testifying concerning his recorded conversations with defendant because (1) the request for authority to eavesdrop was made by the IBI and not by the State’s Attorney, and (2) each authorization granted by the State’s Attorney was too broad since it failed to identify the person using the eavesdropping equipment and the person or persons whose conversations were to be recorded. That order was affirmed by a divided appellate court. The majority concluded that the authorizations involved herein were too broad because they did not identify specifically the person conducting the surveillance and the person or persons to be recorded. It felt that at a minimum “the revision of section 14 — 2 applicable here required that any eavesdropping be strictly limited to those persons and times specified by the State’s Attorney.” (63 Ill. App. 3d 610, 617.) It also agreed that Fuentes’ direct testimony concerning his conversations with defendant should be suppressed under the “fruit of the poisonous tree” principle. It further held, contrary to the trial court, that the fact that the request for eavesdropping originated with the IBI rather than the State’s Attorney was not sufficient justification for suppression of the tape recordings, and that holding is not questioned here.

The earlier quoted section 14 — 2(a), of the eavesdropping statute, which was in effect at the time of these activities in 1975, differs significantly from both prior and subsequent eavesdropping enactments. The earlier version of section 14 — 2(a) provided that a person committed the crime of eavesdropping when he used an eavesdropping device to hear or record an oral conversation “without the consent of any party thereto” (Ill. Rev. Stat. 1961, ch. 38, par. 14 — 2(a)). In People v. Kurth (1966), 34 Ill. 2d 387, a divided court interpreted that language to mean that “any party who has not consented to the recording or transmission of his conversation may bar its admission in evidence against him.” 34 Ill. 2d 387, 395; but see specially concurring opinions of Schaefer and Underwood, JJ., and People v. Richardson (1975), 60 Ill. 2d 189.

The most recent version of section 14 — 2(a), which became effective on July 1, 1976, involves detailed provisions precluding recording of a conversation unless it is done either (1) with the consent of all of the parties to the conversation, or (2) with the consent of any one party to the conversation and with judicial approval pursuant to article 108A of the Code of Criminal Procedure. Ill. Rev. Stat. 1977, ch. 38, par. 14 — 2(a).

The proper interpretation of section 14 — 2(a) as it existed at the time of the activities with which we are concerned (Ill. Rev. Stat. 1975, ch. 38, par. 14 — 2(a)) has been the source of differing opinions in recent appellate court cases. On the same day in which the Fifth District Appellate Court handed down its opinion in the present case, a different panel in the same district reached the opposite conclusion on similar facts and issues. (People v. Mosley (1978), 63 Ill. App. 3d 437.) The decisions from the other districts are also in conflict. (Compare, e.g., People v. Porcelli (1st Dist. 1974), 25 Ill. App. 3d 145, with People v. Klingenberg (2d Dist. 1975), 34 Ill. App. 3d 705, and People v. Knight (4th Dist. 1975), 28 Ill. App. 3d 232.) We granted the State leave to appeal so as to enable us to resolve the controversy.

It is apparent that the only issue is interpretation rather than constitutionality of the statute, for its literal interpretation does not conflict with either the Federal or State constitutions. Monitoring and recording a conversation without a warrant, but with the consent of one of the parties thereto, is consistent with the fourth amendment. (United States v. White (1971), 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122; People v. Richardson (1975), 60 Ill. 2d 189.) In reaching this conclusion the United States Supreme Court noted:

“Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.” 401 U.S. 745, 753, 28 L. Ed. 2d 453, 459, 91 S. Ct. 1122, 1126-27.

Also, while article I, section 6, of the 1970 Illinois Constitution prohibits “unreasonable *** interceptions of communications by eavesdropping devices or other means,” this was not intended to render electronic surveillance with one-party consent unconstitutional. (People v. Richardson (1975), 60 Ill. 2d 189, 196.) Therefore, it is clear that a literal interpretation of our statute, which requires a “request” by a State’s Attorney for surveillance in addition to the consent by one of the parties to the conversation, “has not diminished the defendant’s rights but has in fact increased the protection of his rights.” People v. Richardson (1975), 60 Ill. 2d 189, 195.

In our opinion former section 14 — 2(a) is not, as defendant characterizes it, an “ambiguous statutory provision.” Rather, it seems to us to state clearly and concisely that one does not commit the offense of eavesdropping when he records a conversation “with the consent of any one party to such conversation and at the request of a State’s Attorney” (Ill. Rev. Stat. 1975, ch. 38, par. 14 — 2(a)). Stated affirmatively, this section permits recording of a conversation by means of an eavesdropping device with the consent of any party to the conversation and at the “request” of a State’s Attorney. As the appellate court held and as is now conceded, authorization by the State’s Attorney is the equivalent of a request, and it is indisputable that these conditions were met in the present case. Informant Ronald Fuentes, who was a party to each of the recorded conversations, consented to the surveillance, and St. Clair County State’s Attorney Robert Rice gave prior oral authorization to each IBI request for surveillance. Although he did so here, nothing in the statute requires the State’s Attorney to attach any restrictions or limitations on his authorization for recording, and it is not our function to impose requirements which the General Assembly apparently thought unnecessary.

We accordingly conclude that section 14 — 2(a) as it existed at the time of the activity here involved (Ill. Rev. Stat. 1975, ch. 38, par. 14 — 2(a)) did not require that the State’s Attorney’s authorization contain specific limitations as to the person conducting the surveillance, or the person or persons whose conversations were to be recorded.

It follows, of course, that the trial court improperly suppressed the tape recordings of conversations between Fuentes and defendant. They were obtained in compliance with the then-existing statutory requirements concerning electronic surveillance and, therefore, were not subject to the section 14 — 5 exclusionary rule (Ill. Rev. Stat. 1975, ch. 38, par. 14 — 5). Obviously, since the tape recordings were suppressed improperly, it also was error to suppress, under the “fruit of the poisonous tree” doctrine, the testimony of the informant, Ronald Fuentes, concerning his recorded conversations with defendant.

Accordingly, the judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.