text:
    (No. 50330.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN WILLIAM BILYEW, Appellee.

      Opinion filed November 22, 1978.

      William J. Scott, Attorney General, of Springfield, and Robert H. Howerton, State’s Attorney, of Marion (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Bruce D. Irish and Raymond F. Buckley, Jr., of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Michael J. Rosborough, Deputy Defender, and Randy E. Blue, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On June 7, 1974, a grand jury indicted John William Bilyew for rape, murder and concealment of homicidal death in connection with the death of Frances Buckner. On defendant’s motion the circuit court of Williamson County appointed two psychiatrists and two psychologists to examine the defendant regarding his fitness to stand trial. The court held a fitness hearing on November 21 and 22, 1974; three weeks later the trial judge ruled that defendant was fit to stand trial. On March 3, 1975, defendant pleaded guilty to murder and concealment of homicidal death, and was sentenced to 50 to 100 years’ imprisonment for murder and 1 to 3 years’ imprisonment for concealment of homicidal death, the sentences to run consecutively. On appeal, the appellate court vacated the finding of fitness and all subsequent proceedings and remanded for a new fitness hearing. (55 Ill. App. 3d 69.) The appellate court held that the trial judge presumably had erroneously allocated the burden of proof to the defendant in the fitness hearing, pursuant to a statute then in effect but subsequently held unconstitutional by this court in People v. McCullum (1977), 66 Ill. 2d 306. We granted the People leave to appeal.

Defendant’s confession, introduced in support of the guilty plea, stated that on June 1, 1974, defendant was sitting on the front steps of his apartment building when he saw the deceased, a young girl to whom he had spoken once before, walking down the street. He approached her and asked her to come over and sit on his porch. She began to comply, but as they reached his yard he asked her for sex. When she refused he lost his temper and choked her to death with his hands. After undressing the body, he wrapped it in a blanket that he got from his apartment and hid it under a nearby house. Three days later, after hearing a “voice” commanding him to turn himself in, defendant dragged the body into the street and threw a rock through a neighbor’s window to attract attention.

At the fitness hearing two of the expert witnesses, Dr. Harris B. Rubin and Dr. Gordon E. Rader, testified for the defendant and the deposition of a third defense witness, Dr. A.S. Norris, was admitted into evidence. One expert witness, Dr. Leonard Horecker, testified for the People. Two of defendant’s witnesses were of the opinion that defendant was not fit to stand trial; one of defendant’s witnesses and the People’s witness were of the opinion that defendant was fit.

Dr. Rubin, a psychologist specializing in sexual problems, testified that defendant had never matured socially and had difficulty relating to people, especially females. The witness expressed doubt about how meaningful the defendant’s understanding of the charges against him and of the legal process were. The defendant appeared not to understand the seriousness of the charges because he thought that he would be sentenced to only 1 to 12 years’ imprisonment. Dr. Rubin further testified that during the interview he had been able to manipulate the defendant’s responses to questions. He concluded from this that defendant could not always tell fact from fantasy and would not be able to assist counsel effectively because he would attempt to respond in the way his attorney considered appropriate.

The evidence deposition of Dr. Norris, a psychiatrist, relied heavily on I.O. scores. In 1968 defendant was classified as mildly mentally retarded, with an I.O. of 63, equivalent to a mental age of approximately 10 years. In 1972 his I.O. was measured as 41, equivalent to a mental age of approximately six years. Dr. Norris based much of his testimony on this latter score. The witness observed that defendant was functionally illiterate, knew little arithmetic, and could not recall the witness’ name although it had been told to him several times. Dr. Norris testified that defendant understood the charges against him but did not appreciate their seriousness, since he kept asking when he was going to get out of jail. Defendant understood what bond was and was aware of prison but would not, in Dr. Norris’ opinion, appreciate what 20 years in prison meant. The witness testified that defendant could cooperate with counsel, but only to the degree that a six-year-old child could.

Dr. Rader, a clinical psychologist, gave defendant standardized psychological tests, one of which measured defendant’s I.O. at 66. The witness concluded that defendant was mentally deficient. He testified, however, that defendant could understand the basic purposes of the legal proceedings and the potential consequences of a conviction and could assist counsel with his defense, although “to a lesser extent than a person who is fully functioning.”

Dr. Horecker, a psychiatrist, testified that defendant was alert, spoke coherently and rationally, and gave the witness a detailed chronological history of himself. Defendant understood what murder and rape were and considered them serious charges, and he was aware in a general sense of criminal trial proceedings and prison. The witness testified that defendant could make judgments concerning questions and suggestions of his counsel and therefore could assist in his own defense. Dr. Horecker stated in response to cross-examination that defendant may have been better able to answer his questions because of the prior interviews with the other doctors.

In ruling that defendant was fit, the trial judge analyzed the evidence in detail; her findings clearly indicate what evidence she considered most probative. Noting that fitness involves only the defendant’s ability to function within the context of the trial, the judge disregarded the evidence of defendant’s social immaturity and his hearing of voices, neither of which the experts had testified would make him unfit. The judge found the evidence to indicate that defendant understood what rape and murder were and what the purpose of the proceedings was. The judge noted that all the experts agreed that defendant could communicate with his counsel, though they differed on the degree of communication. The judge further noted Dr. Norris’ reliance on the I.O. score of 41 and she specifically found that the score of 66, recorded after Dr. Norris’ examination, was more reliable. Finding that defendant understood the nature and purpose of the proceedings and could cooperate with his attorneys in his defense, the trial judge ruled that defendant was fit to stand trial.

The statute governing fitness to stand trial at the time of the hearing had been amended in 1972 to include a provision allocating this burden of proof at a fitness hearing:

“The burden of proving the defendant is not fit is on the defendant if he raises the question and on the State if the State or the court raises the question. ” (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—l(i).)

The Council Commentary stated that this provision merely clarified prior law. (Ill. Ann. Stat., ch. 38, par. 1005—2—1, Council Commentary, at 220 (Smith-Hurd 1973).) In fact, however, this court had consistently held that in a competency hearing the People bore the ultimate burden of establishing the defendant’s fitness by a preponderance of the evidence and that any allocation of this burden to the defendant denied him due process of law. (People v. Thompson (1967), 36 Ill. 2d 332, 334-35; People v. Bedford (1964), 31 Ill. 2d 227, 228-29; People v. Bender (1960), 20 Ill. 2d 45, 53-54.) Consequently, section 5—2—1(i) was unconstitutional on its face when enacted.

In People v. McCullum (1977), 66 Ill. 2d 306, this court held section 5—2—1 (i) unconstitutional as a violation of due process “to the extent that it places on the defendant the ultimate burden of proving unfitness to stand trial.” (66 Ill. 2d 306, 314.) The Appellate Court for the Fifth Judicial District had previously held the statute unconstitutional on the same grounds. (People v. Garlick (1977), 46 Ill. App. 3d 216.) That court in this case held that McCullum required reversal of the trial judge’s determination that defendant Bilyew was fit to stand trial.

We agree with defendant that the trial judge must be presumed to have followed the fitness statute in effect at the time of the hearing. Unless a trial court holds a statute unconstitutional, the court must follow the mandate of the statute until its validity is determined. (People v. Papas (1942), 381 Ill. 90, 94.) However, not every determination made pursuant to a statute, one provision of which is unconstitutional, requires automatic reversal. In this case the record fails to support the conclusion that the unconstitutional burden of proof provision entered into the trial court’s determination.

The statutory allocation of the burden of proof becomes significant in a given case only when the evidence is so nicely balanced that neither fitness nor unfitness is established by a preponderance of the evidence. In such a case, the determination must be adverse to the party bearing the burden. As the United States Court of Appeals for the Third Circuit said in United States v. DiGilio (3d Cir. 1976), 538 F.2d 972, 988:

“Allocation of the burden of proof will be significant, in theory at least, only in the rare case when, assuming the evidence is weighed by the preponderance of evidence standard, the conflicting evidence is in equipoise in the mind of the fact finder. At that point the triability of a defendant will depend on where the burden of proof is placed. To put the question another way, what we are determining is a rule of law, of due process dimensions, that a defendant, about whom the evidence of competency to stand trial is in equipoise, should or should not be tried.”

In this case the trial judge’s lengthy and careful statement of her reasons for finding defendant fit, fairly read, gives no indication that she was concerned about the burden of proof or believed that defendant had not met anything required of him. Rather the statement is entirely consonant with, and gives substantial confirmation to, the conclusion that the trial judge found defendant fit by a preponderance of the evidence.

The fact that the defendant offered his witnesses first at the hearing is not incompatible with this conclusion. This fact indicates only that the court required, in accordance with the statutory provision, that defendant proceed first. Since its first reference to the subject in 1963, the statute has always placed the burden of going forward with the evidence on the party raising the issue, and this provision has not been held unconstitutional. (Ill. Rev. Stat. 1977, ch. 38, par. 1005—2—l(j).) There is no indication that this provision refers, as defendant argues, only to the defendant’s raising of a bona fide doubt requiring the court to grant a fitness hearing. (Ill. Rev. Stat. 1977, ch. 38, par. 1005—2—1(c).) In this case the trial judge granted the hearing on the basis of the experts’ reports, the substance of which was the same as the experts’ testimony at the hearing.

Similarly, the fact that the four medical experts were evenly divided on the ultimate question of whether the defendant was fit is not controlling here. The appellate court found:

“[T]his case is an ideal example of a situation where the allocation of the burden of proof would be most likely to influence the court’s decision for the experts were equally divided on the ultimate issue. Thus, we feel it is insignificant that the court did not articulate that its decision turned on which party bore the burden.” (55 Ill. App. 3d 69, 73.)

However, the opinions of the expert witnesses on the ultimate question of fitness were not the most important parts of their testimony, and the appellate court has unduly emphasized those opinions, which are only as valid as the bases or reasons for them. The ultimate issue was for the trial court, not the experts, to decide. In reaching her determination, the trial judge properly analyzed and evaluated the factual bases for the experts’ opinions rather than relying on the ultimate opinions themselves. The credibility and weight to be given psychiatric testimony are for the trier of fact. (People v. Burress (1971), 1 Ill. App. 3d 17, 19.) While the judge did not refer expressly either to preponderance of the evidence or burden of proof, she clearly indicated that she had disregarded some evidence, discounted other evidence, and relied most heavily on evidence about which the experts were essentially in agreement. Specifically, all four experts found that defendant understood the charges and the legal process and could cooperate with counsel, although they differed on the depth of his understanding and the extent of his ability to communicate.

The present case is also distinguishable on its facts from McCullum. There a jury was the fact finder at the fitness hearing and was instructed that the burden was on the defendant to prove herself unfit. (66 Ill. 2d 306, 310.) Because a court of review cannot know what entered into the jury’s determination, such instructions were held to constitute reversible error. As this court said in People v. Thompson (1967), 36 Ill. 2d 332, 334:

“In view of the fact that the jury may have considered the entire pretrial sanity hearing upon an erroneous theory, we hold defendant was deprived of due process of law.”

The case is otherwise here, however. Here the trial judge was the fact finder and her careful analysis of the evidence does not support the conclusion that she resorted to the burden of proof in reaching her determination.

The appellate decision invalidating the burden of proof provision in People v. Garlick (1977), 46 Ill. App. 3d 216, is also distinguishable from the present case. In Garlick the trial judge was the fact finder, but his findings indicate that he did rely on the burden of proof in reaching his determination:

“The party who filed the Petition has the burden of proving this by the preponderance of the evidence. As counsel has said, there has been one psychiatrist who has said that he is able to assist in his defense; the other psychiatrist says no. One psychologist says yes; the other says no. *** The court has heard all this evidence and believes that the motion has not been sustained; that the defendant is fit to stand trial under the statute and will make an order so finding ***.” 46 Ill. App. 3d 216, 218-19. See also United States v. DiGilio (3d Cir. 1976), 538 F.2d 972, 988-89.

Defendant concedes that the presumed fact that the trial judge followed the statute’s unconstitutional mandate would be harmless error had the judge specifically stated that defendant’s fitness had been established by a preponderance of the evidence. However, an automatic reversal in the absence of such statement is not required by McCullum where, as here, the record contains no specific indication that the burden of proof was a factor in the trial judge’s conclusion.

The record does not substantiate defendant’s claim that he has been denied due process of law, and the judgment of the Appellate Court for the Fifth Judicial District is accordingly reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 50558.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROGELIO TAMAYO, Appellee.

      Opinion filed November 22, 1978.

      William J. Scott, Attorney General, of Springfield, and Daniel D. Doyle, State’s Attorney, of Rockford (Donald B. Mackay, Melbourne A. Noel, Jr., and James A. Devine, Assistant Attorneys General, and Phyllis J. Perko, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
    Ralph Ruebner, Deputy Defender, and Daniel Cummings, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On June 30, 1975, a grand jury in Winnebago County indicted Rogelio Tamayo on one count of attempted murder and two counts of aggravated battery. After a hearing at which he was found fit to stand trial, defendant was convicted in a jury trial of attempted murder and one count of aggravated battery. The court sentenced him to four to six years’ imprisonment for attempted murder and imposed no sentence for aggravated battery. The appellate court reversed (56 Ill. App. 3d 800), holding that the controlling statute then in effect, section 5—2—1(i) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005—2—1 (i)), impermissibly allocated to the defendant the burden of proving himself fit. That court also held that jury instructions given by the trial judge were reversibly prejudicial under People v. Trinkle (1977), 68 Ill. 2d 198, in that they aHowed the jury to find defendant guilty of attempted murder on evidence not showing that he intended to kill his victim but only that he knew his acts created a strong probability of great bodily harm. We granted the State leave to appeal.

Defendant is from Cuba. He moved to the United States in 1968, but his command of English remains minimal. In December 1974, defendant was placed in a detoxification unit at Rockford Memorial Hospital after he was found lying in the snow, intoxicated. He then spent a month at the Singer Zone Center before being transferred to Bridgeway House, a halfway house for alcoholics. He had lived at Bridgeway for six months at the time of the shooting. The Illinois Department of Vocational Rehabilitation (DVR) had paid for defendant’s room and board at Bridgeway and arranged for him to see a psychiatrist, to attend Alcoholics Anonymous meetings, and to take English classes in order to prepare him for job training.

On June 4, 1975, defendant was told that DVR had withdrawn its support because he was not cooperating with the program and that he would have to find a job by June 15. Dan Spiro, the director of Bridgeway, testified that, after being told on June 4 that he would have to find a job, defendant said that he would not return to Bridgeway. Defendant testified that on the afternoon of June 4 he drank two beers, and then returned to Bridgeway where Spiro told him to take a walk to refresh himself. He walked the streets of Rockford all night. At 10:30 the next morning defendant returned to Bridgeway. Spiro testified that at this time he granted defendant’s request to remain in the house until 5 p.m. to wait for a ride. Defendant testified that Spiro refused his request to stay in the house for two or three more days. The two men ate lunch together that day. Later in the afternoon they had a short conversation in the lounge. As Spiro was leaving, defendant called him back, and when Spiro came within arm’s length defendant shot him twice, once in the chest and once in the arm. Defendant testified that he shot Spiro only after Spiro had again denied him permission to remain at Bridgeway for a few more days.

At the nonjury fitness hearing Dr. Thomas Eliseo, a clinical psychologist, and Dr. J.G. Graybill, a psychiatrist, testified for the defendant; Dr. Enrique Martinez, a psychiatrist, was called by the State. Dr. Eliseo’s testimony was based on a one-hour interview with the defendant which was hampered by the fact that the psychologist knew very little Spanish and the defendant spoke only broken English. Dr. Eliseo testified that defendant was evasive, guarded and of low intelligence and had difficulty relating to people. The witness thought that defendant would not be able to understand the legal proceedings against him. Dr. Graybill had two interviews with the defendant; an interpreter was present part of the time. Dr. Graybill testified that defendant’s intelligence was minimal and that he did not really understand the charges, although he said he did. The witness stated that defendant was psychotic, and he believed that defendant would be unable to cooperate with his attorney, mainly because of the language barrier. Both Dr. Eliseo and Dr. Graybill recommended that defendant be examined by a Spanish-speaking psychiatrist because, as Dr. Graybill noted, “a more accurate estimation of this man’s comprehension, as well as his intellectual ability” would be provided. Dr. Elíseo specifically recommended defendant’s referral to Dr. Martinez.

The native language of Dr. Martinez, who testified for the State, is Spanish. He first saw defendant in December 1974 at Singer Zone Center and after that had weekly sessions with him for a period of 13 weeks. Dr. Martinez testified that defendant was not psychotic; he diagnosed the defendant’s condition as passive-aggressive personality disorder, with mild depressive neurosis and excessive episodic drinking. The witness stated that defendant was culturally deprived but not retarded. The witness also testified that defendant could definitely understand the whole of the legal proceedings against him, that he was very concerned about the trial, and that he could aid defense counsel even without an interpreter. Dr. Martinez thought defendant would not trust his attorney, at least at first.

In finding the defendant fit to stand trial, the trial judge expressly indicated that Dr. Martinez was the most credible of the three witnesses because of the length of time he had had to observe the defendant. The judge also remarked that in his view defendant was knowingly refusing to cooperate with his attorney. He admonished the defendant to begin confiding in counsel, and he appointed a Spanish-speaking co-counsel to facilitate communication.

At the time of the hearing, a provision of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005—2—1(i)) allocated the burden of proof in a fitness hearing to the defendant, la. People v. McCullum (1977), 66 Ill. 2d 306, this court held that the statute constituted a denial of due process. Relying on McCullum, the appellate court in this case reasoned that because the record did not reveal any express allocation of the burden of proof at the hearing, due process required automatic vacation of the trial court’s determination. We do not agree.

This issue was discussed and decided in People v. Bilyew (1978), 73 Ill. 2d 294. In that decision, this court held that where the record below did not contain any specific indication that the burden of proof had been a factor in the trial court’s determination, but on the contrary was wholly consistent with and gave substantial support to the conclusion that defendant had been found fit by a preponderance of the evidence, vacation of the trial court’s determination was improper. The record in this case comes squarely within the rationale of Bilyew. The trial judge stated his reasons for finding defendant fit. The defense’s two expert witnesses testified that defendant was not fit, but their contact with defendant was limited and their communication with him was further impeded by the language barrier. The State’s expert witness, who testified that defendant was fit, was a native Spanish speaker and had treated defendant over a considerable period of time. The trial judge expressly indicated that he believed the State’s witness rather than the two defense witnesses. The record contains no specific indication that the burden of proof was a factor in the trial judge’s determination, and the appellate court’s vacation of his finding was therefore improper. Our conclusion is not altered by the fact that at the fitness hearing after both sides had rested, the assistant State’s Attorney stated: “Your honor, I believe it’s the Defense Counsel who has the burden in this particular hearing,” and defense counsel then commenced summing up. The reference to “burden” seems to have been related to the burden of going forward with the evidence or argument upon which we earlier commented. However intended, it cannot be interpreted as in any way indicating that the judge considered the fact to be of significance.

The appellate court also held that the attempted murder instructions given by the trial judge were erroneous. They are identical to instructions disapproved by this court in People v. Harris (1978), 72 Ill. 2d 16, 22, in which a majority of the court followed the earlier reasoning in People v. Trinkle (1977), 68 Ill. 2d 198, to the effect that “the instructions were defective in that they permitted the jury to find the defendant guilty of attempted murder if it concluded that the defendant knew that his acts created a strong probability of great bodily harm to another person even if the evidence did not show that the defendant had acted with an intent to kill.” People v. Harris (1978), 72 Ill. 2d 16, 26-27.

In the present case the instructional error was compounded by the prosecutor’s statement to the effect that an intent to commit murder did not necessarily imply a specific intent to kill. In his closing statement the prosecutor told the jury that the State must prove the defendant shot Spiro with the intent to commit murder. However, after summing up the evidence bearing on defendant’s intent, he concluded “I think there is no question of this man’s intent at the time he pulled the trigger three times, that was to do great bodily harm to Dan Spiro.” This remark might well have misled the jury and predisposed them to find defendant guilty of attempted murder even though they believed his only intent was to inflict great bodily harm.

Accordingly, the judgment of the appellate court is affirmed as to the instructional error and reversed as to the validity of the fitness finding. The cause is remanded to the circuit court of Winnebago County for a new trial.

Affirmed in part and reversed in part and remanded.


author: MR. JUSTICE RYAN

text:
    (No. 50530.
    CATERPILLAR TRACTOR CO., Appellee, v. THE INDUSTRIAL COMMISSION et al.—(Harley R. Stiles, Appellant.)

      Opinion filed November 22, 1978.

      Jay H. Janssen, Jerelyn D. Maher, and Kenneth L. Ott, of Peoria, for appellant.
    Robert F. Fahey, of Peoria, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Complainant, Harley R. Stiles, filed a claim under the Workmen’s Compensation Act for back and leg injuries purportedly sustained in an accident on September 25, 1973, while employed by Caterpillar Tractor Company. An arbitrator ruled in favor of Stiles, and that award was affirmed by the Industrial Commission. The circuit court of Peoria County set aside the award of the Commission. This appeal followed.

The employer, Caterpillar Tractor Company, argues that the behavior of the claimant was inconsistent with his testimony that he was injured as a result of the September 25, 1973, accident. They note that not only is there no objective evidence of the severity of the September 25 accident but also there is strong evidence that this injury was caused by claimant’s shoveling gravel on the weekend of September 29 and September 30, 1973. The question before this court is whether the allowance of a workmen’s compensation award to Stiles was against the manifest weight of the evidence. We believe that it was.

Stiles urges that on September 25, 1973, while at work, he and a co-worker, Milton Wilder, were attempting to turn over a tractor frame when a hook on the overhead hoist dislodged. The hook hit Stiles and he fell on another tractor frame behind him. Though Stiles told the foreman of his accident he complained of no injury. No witnesses other than Stiles himself testified about the alleged accident.

The events shortly after September 25, 1973, indicate that something other than the industrial accident precipitated Stiles’ medical problems. Following the accident of September 25, the complainant continued to work the remainder of the week until September 28. No medical treatment was sought and no official report of the accident was made. On September 28, tons of gravel were delivered to the home of Mr. and Mrs. Stiles. Mrs. Stiles paid for the gravel with a check and she was given a receipt, both were dated September 28, 1973. On October 1, Mrs. Stiles called the Caterpillar plant and, according to an absence notice report, told Lynn Thomas Tripp, a safety investigator for Caterpillar, that Stiles would not be to work that evening because he had hurt his back shoveling gravel at home. On October 2, Mrs. Stiles again called the Caterpillar plant and, again according to the absence notice report, told Tripp that Stiles would not be to work that evening because he had hurt his back shoveling gravel at home.

Finally, on October 3, Stiles, himself, reported to Tripp that he would not be at work because he had injured his back on September 25 at the Caterpillar plant. At that stage, Tripp investigated the alleged accident and found that the foreman did not see the accident or make a report on it, but he was told about it on the 25th. Stiles had assured the foreman on September 25 that the accident “didn’t bother him.”

From the hearing before the arbitrator, it is apparent that Stiles inaccurately recalled the events after the September 25, 1973, accident. He testified that he did not go back to work after the accident because his back was painfully sore. Yet, his wife reported to Tripp over the phone on October 1 and October 2 that Stiles’ last day of work was September 28, several days after the accident. Stiles, himself, reported to Tripp on October 3, 1973, that his last day of work was September 28, and the foreman reported to Tripp on October 3 that Stiles had continued to work through the week of the accident.

Stiles also testified that he received no gravel at his home before the weekend of September 29 and September 30. Yet, Mrs. Stiles wrote a check in payment for the gravel dated September 28, and she was given a delivery receipt for the gravel dated September 28. In addition, Mrs. Stiles reported to Caterpillar on two successive nights that her husband could not make it to work because he had hurt his back shoveling gravel over the weekend of September 29 and September 30.

While it is normally the province of the Industrial Commission to decide disputed issues of fact (Converters, Inc. v. Industrial Com. (1975), 61 Ill. 2d 218, 223; Gubser v. Industrial Com. (1969), 42 Ill. 2d 559, 562; Bernard v. Industrial Com. (1962), 25 Ill. 2d 254, 257), a court will reverse the Commission’s decision where it appears from the record that the decision is against the manifest weight of the evidence. (Rockford Clutch Division, Borg-Warner Corp. v. Industrial Com. (1967), 37 III. 2d 62, 67; Fisher Body Division, General Motors Corp. v. Industrial Com. (1960), 20 Ill. 2d 538, 543; United States Steel Corp. v. Industrial Com. (1956), 8 Ill. 2d 407, 411; Corn Products Refining Co. v. Industrial Com. (1955), 6 Ill. 2d 439, 443.) Although a claimant’s own testimony may be sufficient to support an award, when the claimant’s testimony is virtually the only evidence favoring an award, and that testimony is repeatedly contradicted by the record, then it is this court’s duty to disallow the claim. (Deere and Co. v. Industrial Com. (1970), 47 Ill. 2d 144, 149; Allis-Chalmers Manufacturing Co. v. Industrial Com. (1961), 23 Ill. 2d 497, 500; United States Steel Corp. v. Industrial Com. (1956), 8 Ill. 2d 407, 413.) That a decision favoring Stiles is against the manifest weight of the evidence is readily apparent from the testimony and exhibits presented.

The accident of September 25, 1973, according to the October 3 report, was immediately characterized by Stiles as nothing serious. Mr. Stiles continued to work after the accident, without complaint, for several days. No accident witnesses, other than Stiles, testified or provided information to the Commission, and no evidence as to the severity of the accident itself appears in the record. In addition, an alternative cause of this injury — shoveling gravel — is forcefully shown in the documents and testimony. While Stiles denied that any gravel was delivered before he reported in sick, the cancelled check and receipt both demonstrate that the gravel was delivered before the weekend of September 29 and September 30. On two separate occasions Mrs. Stiles told a representative of the company, Tripp, that her husband was injured while shoveling gravel. The claimant neither proved that the September 25 accident caused his injury, nor could he explain away the strong proof that he caused his injury by shoveling gravel.

From an analysis of the entire record, we must conclude that a finding which allows an award is against the manifest weight of the evidence and cannot stand. We therefore affirm the judgment of the circuit court of Peoria County.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    No. 49859.
    MATTHEW JAMES CORCORAN, a Minor, et al., Appellants, v. THE VILLAGE OF LIBERTYVILLE et al., Appellees.

      Opinion filed November 22, 1978.

      Victor J. Piekarski and James J. O’Hagan, of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, and Leo J. Sullivan III, of Sullivan, Smith & Hauser, Ltd., of Waukegan, for appellants.
    Hall, Meyer, Fisher, Holmberg & Snook, of Waukegan (Edward A. Puisis, of counsel), for appellee Village of Libertyville.
    Judge, Drew, Cipolla & Kurnik, Ltd., of Park Ridge (Jay S. Judge, of counsel), for appellee Township of Libertyville.
    Robert M. Bollman, David R. Quade and Kathleen C. Sweet of Diver, Bollman, Grach & Quade, of Waukegan, for appellee County of Lake.
   MR. JUSTICE MORAN

delivered the opinion of the court:

On January 23, 1974, Matthew James Corcoran, a two-year-old child, fell into a ditch in a park near his home and, as a result of the fall, suffered severe brain damage. Actions were brought in the circuit court of Lake County by the parents (plaintiffs) individually and as natural guardians of the minor against the village of Libertyville, the County of Lake, and the township of Libertyville. Plaintiffs sought to impose liability for the accident on the village as owner of the ditch in question and on the county .and township for their role in managing, maintaining and controlling the ditch.

The second amended complaint contained four counts. Counts I and II, brought by the plaintiffs on behalf of the minor, alleged negligence and wilful and wanton conduct, respectively. Count III was couched in language intended to bring it within the principles enunciated in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, which, principles had given fresh meaning to the so-called “attractive nuisance” doctrine. Count IV was brought by plaintiffs, individually, for the emotional distress they suffered as a proximate result of the negligence of each defendant.

Pursuant to motions of each of the defendants to strike and dismiss the second amended complaint, the trial court entered an order which dismissed the complaint as to the county and township, and struck count II (wilful and wanton conduct) and count IV (emotional distress of the parents) of the complaint against the village. The trial court order granted plaintiffs leave to file a third amended complaint against the village. This complaint was brought, in two counts, by plaintiffs on behalf of the minor. Count I alleged negligence, and count II invoked the principles of the Kahn case. Again, the village moved to dismiss. The trial court denied the motion to dismiss but, pursuant to Supreme Court Rule 308(a) (58 Ill. 2d R. 308(a)), certified three questions for interlocutory appeal. The first question requested the appellate court to determine whether either count in the third amended complaint stated a cause of action. The other two certified questions concerned the applicability of various provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, pars. 2—105, 2-109, 2-110, 2-201, 2-207, 3-101).

Plaintiffs appealed from the trial court order which dismissed their second amended complaint against the county and township. The village appealed from the interlocutory order which denied its motion to dismiss the third amended complaint. The appellate court, consolidating the two appeals, affirmed the dismissal of the second amended complaint against the county and township and, by answering the first of the certified questions in the negative, reversed the interlocutory order which had allowed the complaint against the village to stand. (49 Ill. App.- 3d 818.) In so doing, the appellate court did not reach the second and third certified questions. We granted leave to appeal. Prior to oral argument in this court, plaintiffs and the township entered into a covenant not to sue. The county and the village remain as defendants for purposes of this appeal.

We note that the trial court, in dismissing the second amended complaint against the county but not against the village, apparently distinguished between the status of the county as manager, maintainer or controller of the ditch in question and the status of the village as owner of the ditch. We find no merit to such a distinction. It is firmly established in Illinois that a party that creates a dangerous condition will not be relieved of liability because that party does not own or possess the premises upon which the dangerous condition exists. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 620; Stedwell v. City of Chicago (1921), 297 Ill. 486, 489-90.) A party that creates a dangerous condition or is in control of premises on behalf of the owner or possessor is subject to liability, to the same extent as would be the owner or possessor, for injury to children caused by the dangerous condition. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 620; Restatement (Second) of Torts secs. 383-87 (1965).) Plaintiffs’ second amended complaint alleged not only that the county managed, maintained and controlled the ditch, but that, in the summer of 1971, the county, with the permission of the village, actively caused the ditch’s hazardous condition by fiUing in a portion of the ditch. In considering whether plaintiffs have stated a cause of action in either their second or third amended complaints, we, therefore, do not differentiate between the status of the county and the status of the village. For the purposes of this appeal and under the pleadings in this particular case, the liability, if any, of the county and the village is coextensive.

Ever since the Kahn decision in 1955, the liability of owners or parties in possession and control of premises (hereinafter referred to as owners and occupiers of land) upon which a child is injured has been determined with reference to the customary rules of ordinary negligence. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 624; Hendricks v. Peabody Coal Co. (1969), 115 Ill. App. 2d 35, 41; Skaggs v. Junis (1960), 27 Ill. App. 2d 251, 258.) Generally, the owners or occupiers of the land are under no duty to keep their premises in any particular state or condition to promote the safety of persons who come upon the premises without invitation, either express or implied. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625; Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181, 186-88.) This rule has evolved out of the notion that the law does not require an owner or occupier of land to anticipate the presence of persons wrongfully or unexpectedly on his land. The court in Kahn, however, recognized an exception where “the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is.likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. [Citation.] ” (Emphasis added.) Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625.

The import of the decision was that it rejected the implication in the “attractive nuisance” doctrine that the dangerous condition had to lure children into trespassing on the premises; it obviated the need for common law categories of trespasser, licensee and invitee as labels for children injured on the premises of another; it established the foreseeability of harm to children as the cornerstone of liability (also see Hendricks v. Peabody Coal Co. (1969), 115 Ill. App. 2d 35, 41); and it brought Illinois law into harmony with section 339 of the Restatement (Second) of Torts. (See Restatement (Second) of Torts sec. 339 (1965).) Under Kahn, a duty which would not be imposed in ordinary negligence will be imposed upon the owner or occupier of land only if such person knows or should know that children frequent the premises and if the cause of the child’s injury was a dangerous condition on the premises. If both these prerequisites are met, it is deemed that harm to children is sufficiently foreseeable for the law to impel an owner or occupier of land to remedy the condition.

As Kahn sets forth, a dangerous condition is not that which creates an unreasonable risk of harm to the general class of persons who might frequent the premises. It is one which is likely to cause injury to the general class of children who, by reason of their immaturity, might be incapable of appreciating the risk involved. The essence of the Kahn principle is to impose a duty upon those owning or occupying land to remedy conditions which, although considered harmless to adults, are dangerous to children who foreseeably wander onto the premises.

On the other hand, the Kahn principle should not be construed to impose a duty on owners or occupiers to remedy conditions the obvious risks of which children generally would be expected to appreciate and avoid. Even if an owner or occupier knows that children frequent his premises, he is not required to protect against the ever-present possibility that children will injure themselves on obvious or common conditions. As this court has observed:

“It is always unfortunate when a child gets injured while playing, but a person who is merely in possession and control of the property cannot be required to indemnify against every possibility of injury thereon. The responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself.” Driscoll v. Rasmussen Corp. (1966), 35 Ill. 2d 74, 79.

The law recognizes that children, especially those of tender age, might conceivably be injured by the most innocuous of conditions. As expressed in the comments accompanying section 339 of the Restatement (Second) of Torts:

“There are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large.” (Restatement (Second) of Torts sec. 339, comment j, at 203 (1966). Also see Prosser, Torts sec. 59, at 366-73 (4th ed. 1971).)

Unless an owner or occupier has reason to know that children of very tender age are likely to roam unattended onto the premises, the law will impose a duty on the owner or occupier only to remedy conditions which are dangerous to children generally.

Plaintiffs here sought to invoke the Kahn principle in count III of their second amended complaint and, again, in count II of their third amended complaint. Though plaintiffs averred that Matthew Corcoran was two years old at the time of the accident, they alleged that defendants knew or should have known that children generally, not specifically those of Matthew’s tender age, frequent the premises. Consequently, we examine the question of whether defendants were under a duty to remedy those conditions which would be dangerous to children generally.

Plaintiffs hope to predicate liability on the assertedly hazardous condition of a ditch. Ordinarily, a ditch, in and of itself, does not pose a danger or hazard. Under certain circumstances, the condition of a ditch in its surroundings may enhance the risks of injury to unsuspecting children and, in fact, be a danger to children. A ditch may pose such a danger because of its depth or because it is hidden from view or for other reasons. However, the burden rests with the plaintiffs to allege sufficient relevant facts to describe the condition in order for the trial court to conclude that the condition exposes children to risks greater than those which normally attend their daily lives. This, plaintiffs have failed to do.

In their complaints, plaintiffs characterize the ditch in question as having “a deceptively steep, unguarded and dangerous slope, which was eroded and caved in; an irregular embankment littered with debris and rubbish; an unnaturally pocketed bed, which unnaturally caused water to accumulate in the ditch at various depths; and an unreasonable and excessive accumulation of rubbish and debris in the ditch itself and about the approaches thereto.” Plaintiffs further alleged that Matthew fell from the bank of the ditch and struck his head on the debris and rubbish. It is apparent that, in spite of plaintiffs’ attempts to characterize the ditch as one with particularly hazardous attributes, the pleadings, stripped of their conclusional emphasis, allege nothing more than the risk of falling into a ditch, a risk which is incident to any common ditch or obvious depression in the ground and one which children generally would be expected to recognize and appreciate. Consequently, under the principles enunciated in Kahn, we hold that plaintiffs have failed to state a cause of action against the county in count III of the second amended complaint or against the village in count II of the third amended complaint.

Count I of the second amended complaint and count I of the third amended complaint were substantially similar to the counts which invoked the Kahn principle, but were founded in negligence. In ordinary negligence, the common law status of Matthew Corcoran on the premises where he was injured becomes relevant in establishing the duty owed him. The highest duty imposed by law upon an owner or occupier of land to a person on his premises is that owed to an invitee. In reviewing the counts pleaded by plaintiffs in ordinary negligence, we will assume that Matthew Corcoran was an invitee to whom defendants owed a duty to maintain the premises in a reasonably safe condition and to warn of dangerous, nonobvious conditions. (Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 157; Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343, 347; Ill. L. & Prac. Negligence sec. 51 (1957); 1 J. Dooley, Modern Tort Law sec. 19.06 (1977).) Judged by this standard, we conclude, plaintiffs failed to state a cause of action. An owner or occupier of land will not be liable, even to invitees, for harm resulting from conditions which would prompt no anticipation of an unreasonable risk of such harm. (Prosser, Torts sec. 61, at 393 (4th ed. 1971).) As we have already determined with regard to the counts which invoked the Kahn principle, the ditch, as described in the pleadings, posed no reasonably foreseeable risk of harm to children. It would indeed be incongruous to conclude that a condition which did not pose any foreseeable risk to children did pose such risk to invitees. We hold, therefore, that plaintiffs have failed to state a cause of action in negligence in either count I of the second amended complaint or count I of the third amended complaint.

The wilful and wanton count in plaintiffs’ second amended complaint must also fail. Plaintiffs here argue that, despite prior notice and knowledge of the condition of the ditch and of drownings in the ditch, defendants failed to act to remedy the condition of the ditch. Such argument is belied by plaintiffs’ own pleadings wherein it is set forth- that drownings occurred prior to 1971, in which year defendants “changed the direction and flow of the ditch” and “filled in portions of the ditch.” Though plaintiffs alleged that the work done on the ditch created its allegedly hazardous condition, no allegations are made that, subsequent to this work, defendants had notice or knowledge of any hazards or of any drownings relating to the ditch. Without such allegations, the wilful and wanton count merely realleges a cause of action in ordinary negligence, which, as we have discussed, cannot be sustained.

Finally, we find no merit to count IV of the second amended complaint which sought to recover for the emotional distress of the parents. In Illinois, to recover for emotional distress, the defendant’s conduct which gives rise to the cause of action must be extreme and outrageous. (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89.) Here, as in the other counts, plaintiffs alleged only the failure of defendants to adequately remedy conditions which we have held posed no foreseeable risk of harm. Such allegations fall far short of the severity of conduct required of a cause of action for emotional distress.

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

Judgment affirmed.


text:
    (No. 50555.
    CARMA LYNN HUME BOYER, Appellee, v. JOHN CARL BOYER, Appellant.

      Opinion filed November 22, 1978.

      Paul E. Riley, of Mudge, Riley & Lucco, of Edwards-ville, for appellant.
    Wiseman, Shaikewitz, McGivern & Wahl, of Alton, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Plaintiff, Carma Lynn Hume Boyer, who now resides in Madison County, filed an action in the circuit court of that county, seeking “to establish and enroll decree for divorce from the State of Georgia” as an Illinois judgment. She also prayed for an order requiring the defendant, John Boyer, her ex-husband, to pay arrearages in child-support and alimony payments and for a modification of the divorce decree increasing child-support payments. The husband resides in Georgia and was personally served with process in that State. It is plaintiff’s position that the failure of the defendant to pay child-support and alimony payments as required by the Georgia divorce decree constituted the “commission of a tortious act” in Illinois and that he thereby submitted himself to the jurisdiction of the courts of this State and service of process was properly had upon the defendant in Georgia. (Ill. Rev. Stat. 1975, ch. 110, par. 17(l)(b).) The defendant filed' a special limited appearance challenging the jurisdiction of the Illinois court and moved to quash the service of process. The circuit court of Madison County refused to exercise jurisdiction over the defendant and quashed the service as prayed. The appellate court held that the failure to make the support and alimony payments constituted the commission of a tortious act in Illinois, which authorized the circuit court of Madison County to exercise jurisdiction over the defendant for the purpose of any cause of action arising out of the tortious act, in this case an action to recover the arrearages, but not for the purpose of modifying the divorce decree (57 III. App. 3d 555). We granted the defendant leave to appeal.

The issue argued in this court is whether the failure of the defendant, who resided in Georgia, to make the alimony and support payments required by the divorce decree of the Georgia court to his wife and children who reside in Illinois constitutes the commission of a tortious act in Illinois so as to submit the defendant to the jurisdiction of our courts under section 17 of our Civil Practice Act. We must also consider this question as it relates to the minimum-contact Federal due process requirements.

The plaintiff and defendant were divorced in Georgia in 1971. The decree awarded custody of the two children to the plaintiff and required support and alimony payments to be made by the defendant in accordance with a written agreement between the parties which had been previously entered into and which was attached to the decree. The defendant husband was given visitation rights. Some time after the entry of the decree the plaintiff and the two children moved to Illinois, and about 3 years later the action in this case was instituted in Madison County. The defendant remarried and remained a resident of Georgia. The plaintiff alleges arrearages in support and alimony payments of about $1,000. Although there are some allegations in plaintiff’s pleadings to the contrary, the defendant, several times in his petition for leave to appeal, which he elected to have stand as his brief, states that he has never been in the State of Illinois. This has not been disputed by the plaintiff in either her answer to defendant’s petition for leave to appeal, or in her brief.

Section 17 of the Civil Practice Act provides that service of process may be made personally on a person outside of the State of Illinois if that person submits to the jurisdiction of this State by doing any of certain designated acts, including “the commission of a tortious act within this State.” Jurisdiction extends to “any cause of action arising from the doing of any such acts.” la Nelson v. Miller (1957), 11 Ill. 2d 378, 389, this court reviewed the history of extraterritorial jurisdiction for State courts and said that sections 16 and 17 of the Civil Practice Act “reflect a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause.” In Nelson, the defendant, a resident of Wisconsin, had committed a single tortious act in Illinois, an act of negligence which caused an injury to the plaintiff. In discussing section 17 in relation to the due process requirement, this court emphasized that the requirement that a defendant defend the action in Illinois must be reasonable under the circumstances of the case.

Section 37 of the Restatement (Second) of Conflicts of Laws (1971) provides that a State may exercise jurisdiction over a person “who causes effects in the state by an act done elsewhere,” but limits the breadth of this provision with the qualification “unless the nature of the effects and of the individual’s relationship to the state make the exercise of such jurisdiction unreasonable.” Thus, reasonableness in Nelson and again in the Restatement appears to be a touchstone against which the validity of the exercise of a State’s jurisdiction over a nonresident is measured.

In Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, the wrong complained of did not originate in the conduct of a defendant physically present in the State, but arose from acts performed in another State in the negligent construction of a safety valve. The court, in construing the term “tortious act” as used in section 17, held that for an act to be tortious it must have caused an injury, and since the injury which was caused by the defective valve occurred in Illinois, the court concluded that the tortious act had been committed in Illinois. The court noticed that Nelson had held that the statute contemplated the exertion of jurisdiction over nonresident defendants to the extent contemplated by the due process clause and that Nelson had announced the standard of reasonableness and fairness. In reviewing the authorities, this court in Gray also noted that the United States Supreme Court in International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, had held that a nonresident defendant must have certain minimum contacts with the State attempting to assert jurisdiction over it. The Gray court then held that the question of what type of conduct the defendant must commit within the State to satisfy the requirement of minimum contact must be answered by determining what is “fair and reasonable in the circumstances.” (22 Ill. 2d 432, 440.) The court went on to note the trend toward expanding State jurisdiction over nonresidents but cited Hanson v. Denckla (1958), 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228, as holding that courts cannot assume that this trend heralds the eventual demise of all restrictions on personal jurisdiction of State courts. Discussing further the standard of fairness and reasonableness, the Gray court stated:

“An orderly and fair administration of the law throughout the nation requires protection against being compelled to answer claims brought in distant States with which the defendant has little or no association and in which he would be faced with an undue burden or disadvantage in making his defense. It must be remembered that lawsuits can be brought on frivolous demands or groundless claims as well as on legitimate ones, and that procedural rules must be designed and appraised in the light of what is fair and just to both sides .in the dispute.” 22 Ill. 2d 432, 441.

The United States Supreme Court in Hanson v. Denckla emphasized that the restrictions on State jurisdiction over nonresidents are more than a guarantee of immunity from inconvenience or distant litigation (the fairness and reasonableness criteria); they are a consequence of territorial limitation on the power of the respective States. “However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.” (357 U.S. 235, 251, 2 L. Ed. 2d 1283, 1296, 78 S. Ct. 1228, 1238.) The court in that case then further stated:

“[I] t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1240.

The appellate court in our case, in holding the failure of the defendant to make support payments constituted the commission of a tortious act in Illinois, relied upon Poindexter v. Willis (1967), 87 Ill. App. 2d 213. Poindexter held that the failure of a nonresident defendant to support his illegitimate child, a child fathered in Illinois and a resident of Illinois, was a section 17(l)(b) tortious act. The Poindexter court reasoned that the Illinois Paternity Act (Ill. Rev. Stat. 1965, ch. 106 3/4, pars. 51-66) placed a duty to support on the father. Although there is language in Poindexter which supports the holding of the appellate court in our case, the facts supporting the Poindexter decision were much broader and established a substantially greater contact by the defendant with this State than do the facts now before us.

Recently, in Kulko v. California Superior Court (1978), 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690, a case factually very similar to ours, the United States Supreme Court, considering the facts of that case in light of both the minimum-contact requirement and the reasonableness test, held that California could not exercise jurisdiction over a nonresident defendant father in a suit to modify a foreign divorce decree to change custody of the children and to increase support payments. In that case, the plaintiff wife and the defendant father had been married in California in 1959 while the defendant was on a 3-day stopover in that State en route to military service overseas. At the time of the marriage, both parties were residents of New York, and following the marriage the wife returned to New York, as did the husband after he returned from military service. The two children of the marriage were born in New York. In 1972 the parties separated and the plaintiff moved to California. She later returned to New York, where a separation agreement was executed which provided that the children would remain in the custody of the father during the school year but would spend their vacations with the mother. The agreement also provided for the payment of child support. This agreement was later incorporated in the terms of the divorce decree and the wife then returned to California, where she remarried. In 1973 one child manifested a desire to live with her mother, and the father bought his daughter a one-way plane ticket to California and permitted her to take her clothing with her. Later, the other child, unknown to the father, informed the mother of his desire to live with her, and the mother sent him a plane ticket and he went to California and took up residence with his mother. The husband appeared specially and moved to quash service of summons on the grounds that he lacked minimal contacts with the State to warrant its assertion of personal jurisdiction over him. The California Supreme Court upheld the State’s jurisdiction over the defendant (Kulko v. Superior Court (1977), 19 Cal. 3d 514, 564 P.2d 353, 138 Cal. Rptr. 586), finding that the defendant had caused an effect in the State by an act or omission outside the State. The court held that it was reasonable to exercise jurisdiction over the defendant because he had purposely availed himself of the benefits and protection of the laws of California by sending the one daughter to live with her mother in California. The United States Supreme Court held that by sending the one daughter to California the defendant had not purposely availed himself of the benefits and protection of California laws and thus he did not have the required minimum contact with that State to confer upon it the power to assert personal jurisdiction over him.

The court also noted that an essential criterion of jurisdiction is whether the “quality and nature” of the defendant’s activities are such that it is reasonable and fair to require him to conduct his defense in that State. The court found that “basic considerations of fairness” decidedly favored the State of the defendant’s domicile as a proper forum since he had remained in the State of the marital domicile, whereas the wife had moved across the continent. The single act of permitting, the child to live with its mother in California was not such as to cause a reasonable parent to believe that he would be required to litigate a child-support case 3,000 miles away. The court stated:

“It cannot be disputed that California has substantial interests in protecting resident children and in facilitating child-support actions on behalf of those children. But these interests simply do not make California a ‘fair forum’ [citation] in which to require appellant, who derives no personal or commercial benefit from his child’s presence in California and who lacks any other relevant contact with the State, either to defend a child-support suit or to suffer liability by default.” 436 U.S. 84, 100-01, 56 L. Ed. 2d 132, 146-47, 98 S. Ct. 1690, 1701.

In light of Kulko we need not decide whether the failure to pay child-support money constitutes the commission of a tortious act in Illinois. (See Mroczynski v. McGrath (1966), 34 Ill. 2d 451.) Whether the jurisdictional requirement involves the commission of a tortious act or whether, as in Kulko, it requires that the defendant cause an effect in the State by an act done elsewhere, under the facts of our case, as in Kulko, the quality and nature of the defendant’s activities in Illinois were not such that it would be reasonable and fair to require him to conduct his defense here. Also, as in Kulko, the defendant in our case derived no commercial or personal benefit from the presence of his children or his ex-wife in Illinois; thus, the facts of our case support neither the reasonableness- and-fairness test nor the minimum-contact criterion of due process.

The plaintiff in this court attempts to distinguish Kulko by saying that that case did not involve a suit for nonpayment of support money, which is the alleged tortious act, and plaintiff further argues that, in fact, Kulko supports the appellate court opinion in this case, which held that the commission of the tortious act would support jurisdiction over the defendant only for the purpose of recovering arrearages in support payments (the tortious act being the failure to make the payments), and would not support an action to modify the divorce decree. Neither the language nor the holding in Kulko is that limited. In our case the defendant’s contact with Illinois was not as extensive as were the husband’s contacts with California in Kulko and, as in that case, the husband here derived no commercial or personal benefit from his children’s presence in this State. As in Kulko, the defendant here did not have the necessary minimum contacts with this State.

Also, tihe quality and nature of the defendant’s activities are not such that it would be reasonable and fair to require him to defend an action here. As in Kulko, the husband has remained in the State of the marital domicile and also the State in which the divorce decree was entered. The wife is the one who moved to Illinois. As noted in Gray, an orderly and fair-administration of the law requires protection against being compelled to answer claims brought in distant States with which the defendant has little or no association, and in which he would be faced with an undue burden in making his defense, keeping in mind that lawsuits can be brought on frivolous demands and groundless claims. It should not lie within the choice of the plaintiff to engage in “forum shopping,” nor should the defendant be required to defend in any and all jurisdictions wherein the wife may choose to maintain her action.

The plaintiff is not left at a severe disadvantage in the collection of delinquent support payments by being deprived of the right to maintain an action in Illinois. Kulko specifically referred to this problem and noted that the Uniform Reciprocal Enforcement of Support Act would afford the wife a means of litigating her claim without returning to the State of the husband’s residence, or the State wherein the divorce decree was entered. 436 U.S. 84, 100 n.15, 56 L. Ed. 2d 132, 146 n.15, 98 S. Ct. 1690, 1701 n.15; see Ill. Rev. Stat. 1977, ch. 40, par. 1201 et seq.

For these reasons we reverse the judgment of the appellate court insofar as it held that the circuit court of Madison County had jurisdiction over the defendant for purposes of maintaining an action to recover the arrearages in support and alimony payments. That portion of the appellate court’s judgment which holds that the circuit court of Madison County did not have jurisdiction of the defendant for the other relief sought is affirmed. The order of the circuit court quashing service of process on the defendant is affirmed.

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