author: MR. JUSTICE WARD MR. JUSTICE CLARK,

text:
    (No. 49515.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RAYMOND SCOTT LARSEN, Appellant.

      Opinion filed January 26, 1979.

      KLUCZYNSKI, J., took no part.
    CLARK, J., and GOLDENHERSH, C.J., dissenting.
    James J. Doherty, Public Defender, and Richard D. Kharas, Assistant Public Defender, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay, Assistant Attorney General, of Chicago, and Lee T. Hettinger, Michael John Madden, and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for the People.
   MR. JUSTICE WARD

delivered the opinion of the court:

Raymond Scott Larsen was convicted of murder (Ill. Rev. Stat. 1971, ch. 38, par. 9—1) following a bench trial in the circuit court of Cook County, and sentenced to a term of 100 to 300 years’ imprisonment. The appellate court affirmed (47 Ill. App. 3d 9), and we granted the defendant’s petition for leave to appeal (58 Ill. 2d R. 315).

The facts of the case are fuUy set out in the appellate court opinion, and will be restated only to the extent necessary on this appeal. The defendant admitted having committed the homicide but relied upon the affirmative defense of insanity at the time of the slaying. (The defendant earlier had been examined by Dr. Robert Reifman and found fit to stand trial.) The People filed a written pretrial motion to require the defendant to submit to examination by a State-designated psychiatrist (Ill. Rev. Stat. 1971, ch. 38, par. 115—6). There was one day’s delay between the hearing on the People’s motion and entry of the order allowing it, to permit the designation of the psychiatrist and the date and place of examination. At the hearing, the court indicated its intention to enter an order granting the motion upon being furnished the pertinent information by the prosecution, and an assistant State’s Attorney stated: “I will inform counsel of the name, location and time, if he likes, of the psychiatric examination. At this time I have not set it up.” The order was entered August 16, 1973 (the following day), appointing Dr. Robert Reifman, assistant director of the Psychiatric Institute of the Circuit Court of Cook County, to conduct an examination “on August 23, 1973, or on any date subsequent, necessary to complete such examination.” The defendant’s counsel did not receive notice of the location and time, or of the name of the psychiatrist prior to the examination, which was conducted on August 24, 1973.

At trial, the defendant offered the testimony of his psychiatrist, Dr. Marvin Ziporyn, who was of the opinion that the defendant suffered from organic brain syndrome associated with cerebral trauma. Dr. Ziporyn’s response to a hypothetical question incorporating the defendant’s life history and behavior was that the hypothetical person had a mental defect, that he had the capacity to appreciate the criminality of his conduct, but that he lacked substantial capacity to conform his conduct to the requirements of law. In addition, lay testimony was given concerning the circumstances of the defendant’s unhappy childhood in support of the insanity defense.

Based upon the court-ordered psychiatric examination, Dr. Reifman testified for the People on rebuttal that the defendant had an antisocial personality, but was not suffering from organic brain syndrome. He responded to a hypothetical question positing the defendant’s life experience and activities by concluding that such a person did not suffer from a mental defect or disease and had substantial capacity to conform his conduct to the requirement of the law and to appreciate the criminality of his conduct. The People offered evidence that the defendant had no disciplinary problems while living and working within a minimum security area of the penitentiary from which he had been furloughed for good behavior at the time of the murder. A prosecution witness also testified as to remarks the defendant had made while taking a rifle and money from her apartment at gunpoint on the day of the killing, which was offered to show he appreciated the criminality of his conduct.

The principal questions raised by the defendant are (1) whether our Rule 413 (58 Ill. 2d R. 413) requires that the defendant and his counsel be given reasonable notice of the time and place of the ordered psychiatric examination, and (2) whether the court-appointed psychiatrist’s examination was a “critical stage” of the prosecution that entitled the defendant to the presence of counsel. Rule 413 reads in part:

“(a) The person of the accused. Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the accused, among other things, to:
* * *
(ix) submit to a reasonable physical or medical inspection of his body.
(b) Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the State to the accused and his counsel, who shall have the right to be present. ***” 58 Ill. 2d R. 413.

The defendant contends that the psychiatric examination ordered on the People’s motion and conducted by a psychiatrist of the People’s choosing was a “medical inspection of his body.” If that is so, he argues, the rule requires giving reasonable notice of its time and place, as well as conferring the right to the presence of his counsel. We do not, however, consider that the psychiatric examination was a “medical inspection” of the type contemplated by the rule. The specific authority to order a psychiatric examination for purposes of the People’s independent ascertainment of an accused’s mental condition at the time of a criminal occurrence, with reference to the affirmative defense of insanity, is not founded on Rule 413, but on statute. Section 115—6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 115—6) provides:

“Appointment of Psychiatrist. If the defendant has given notice that he may rely upon the defense of insanity *** or if the facts and circumstances of the case justify a reasonable belief that the aforesaid defenses may be raised, the Court shall, on motion of the State, order the defendant to submit to examination by at least one psychiatrist, to be named by the prosecuting attorney.
*** The reports of such experts shall be made available to the defense. Any statements made by defendant to such experts shall not be admissible against the defendant unless he raises the defense of insanity *** in which case they shall be admissible only on the issue of whether he was insane ***.”

The legislature has expressly provided in the statute that experts’ reports be made available to the defense. It is significant that no provision was made by the legislature for the presence of counsel at the examination. It is the statute and not Rule 413 that establishes the procedures in a criminal proceeding with respect to a court-ordered psychiatric examination on the People’s motion when it appears that a defendant may raise the affirmative defense of insanity. The submissions that may be required under Rule 413(a), and which give a right to the presence of counsel under 413(b), obviously relate to physical eviden ce. A mental examination is not one of the possible submissions enumerated in Rule 413(a), and clearly it is not intended to be comprehended by “medical inspection of his body” as that term is used in the rule. This is illustrated by the fact that specific reference is made to “mental examinations” in Rule 413(c), and correlatively in Rule 412(a)(iv) allowing reciprocal discovery, among other tests, of any expert reports of “mental examinations” upon written motion.

The defendant also contends that Dr. Reifman’s psychiatric examination constituted a critical stage of the prosecutorial proceedings and gave rise to a constitutional right to the presence of counsel. United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, and Thornton v. Corcoran (D.C. Cir. 1969), 407 F.2d 695, are cited as supporting this position. In Wade, the Supreme Court held that a post-indictment lineup, due to its inherent suggestability and grave potential for prejudice, was such a critical stage. When the issue is raised, the Supreme Court said, a court must “analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” (388 U.S. 218, 227, 18 L. Ed. 2d 1149, 1157, 87 S. Ct. 1926, 1932.) The purpose underlying the right to counsel’s presence at any critical stage is “to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” United States v. Wade (1967), 388 U.S. 218, 227, 18 L. Ed. 2d 1149, 1157, 87 S. Ct. 1926, 1932.

In Thornton v. Corcoran (D.C. Cir. 1969), 407 F.2d 695, the petitioner sought a writ of mandamus directing the district court to issue an order permitting his counsel and psychiatrist to attend a hospital staff conference concerning the petitioner’s competency to stand trial and his mental condition at the time of the offense he allegedly committed. The court refused to issue the writ saying that mandamus was not an appropriate remedy, ha dicta, however, the court observed that the petitioner’s claim was “anything but frivolous.” (See 407 F.2d 695, 698-702.) In a separate opinion, then Circuit Judge Burger disagreed with the dicta. Likening the hospital staff conference to a Civil Rights Commission investigation (see Hannah v. Larche (1960), 363 U.S. 420, 4 L. Ed. 2d 1307, 80 S. Ct. 1502), he stated that it “ ‘is purely investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone’s civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short *** [it] does not and cannot take any affirmative action which will affect an individual’s legal rights. The only purpose of its existence is to find facts ***.’ [363 U.S. 420, 441, 4 L. Ed. 2d 1307, 1321, 80 S. Ct. 1502, 1514.] ” (407 F.2d 695, 711.) And he further noted:

“There is no legal basis for equating a Medical Staff Conference to a ‘confrontation’ either in the traditional sense or within the meaning of Wade-Gilbert. Those cases apply only to critical prosecutive stages. The vice of requiring a sensitive diagnostic process to be conducted as though it were an adversary matter seems too obvious to need discussion. The value of that process is undermined by anything which inhibits the free exchange of views; the integrity of the process makes privacy imperative. The presence of a lawyer for the patient at a staff conference would obviously inhibit the free expression and exchange of ideas which normally occurs. The check on the processes *** is the power to cross examine ***.
The legal method of inquiry is unsuited to the medical investigation to be conducted. Medical diagnostic procedures should not be inhibited by non-medical notions of procedural ‘due process.’ Indeed it is far more consonant with the sympathetic relationship existing between Doctor and patient that the medical inquiry be divested as much as possible of an adversary character. Our approach should encourage an attitude of cooperation rather than partisanship; emphasis must be on the common pursuit for an objective, uninhibited inquiry, uncluttered by the techniques and devices of the courtroom.” 407 F.2d 695, 711.

The great majority of courts that have considered the question both prior and subsequent to Thornton have held that there is no right to have counsel present at the examination. These decisions include: United States v. Trapnell (2d Cir. 1974), 495 F.2d 22; United States v. Greene (7th Cir. 1974), 497 F.2d 1068, cert. denied (1975), 420 U.S. 909, 42 L. Ed. 2d 839, 95 S. Ct. 828; United States ex rel. Stukes v. Shovlin (3d Cir. 1972), 464 F.2d 1211; United States v. Mattson (9th Cir. 1972), 469 F.2d 1234, cert. denied (1973), 410 U.S. 986, 36 L. Ed. 2d 183, 93 S. Ct. 1513; United States v. Smith (5th Cir. 1971), 436 F.2d 787; United States v. Bohle (7th Cir. 1971), 445 F.2d 54; United States v. Baird (2d Cir. 1969), 414 F.2d 700, cert. denied (1970), 396 U.S. 1005, 24 L. Ed. 2d 497, 90 S. Ct. 559; United States ex rel. Wax v. Pate (7th Cir. 1969), 409 F.2d 498, cert. denied (1969), 396 U.S. 830, 24 L. Ed. 2d 81, 90 S. Ct. 83; United States v. Albright (4th Cir. 1968), 388 F.2d 719; United States v. Fletcher (D.D.C. 1971), 329 F. Supp. 160; People v. Martin (1971), 386 Mich. 407, 192 N.W.2d 215, cert. denied (1972), 408 U.S. 929, 33 L. Ed. 2d 342, 92 S. Ct. 2505; State v. Whitlow (1965), 45 N.J. 3, 210 A.2d 763; State v. Wilson (1971), 26 Ohio App. 2d 23, 268 N.E.2d 814; Commonwealth v. Stukes (1969), 435 Pa. 535, 257 A.2d 828. There have been contrary decisions: Lee v. County Court (1971), 27 N.Y.2d 432, 267 N.E.2d 452, cert. denied (1971), 404 U.S. 823, 30 L. Ed. 2d 50, 92 S. Ct. 46 (counsel’s role limited to passive observer); In re Spencer (1965), 63 Cal. 2d 400, 406 P.2d 33, 46 Cal. Rptr. 753 (but certain procedural safeguards held sufficient to justify exclusion of counsel at examination).

A psychiatric examination is to be distinguished from a lineup. An examination by a qualified, court-appointed expert is not inherently suggestive, and it does not ordinarily pose a grave potential for substantial prejudice. We consider that the defendant’s rights were adequately safeguarded by the opportunity to present his own expert psychiatric testimony at trial, to cross-examine Dr. Reifman as to his methodology and conclusions, and by the statutory prohibition against the defendant’s statements being admitted into evidence on any issue other than his affirmative defense of insanity (Ill. Rev. Stat. 1971, ch. 38, par. 115—6). We do not find anything in the record to suggest that the presence of the defendant’s counsel was required to insure his right to a fair trial.

There are also contentions by the defendant that the assistant State’s Attorney made a “specific promise,” at the hearing on the motion, to give notice of the time and place of the examination and the name of the psychiatrist, and that the defendant was prevented from receiving the benefit of counsel’s advice prior to examination. The assistant State’s Attorney’s offer to “inform counsel of the name, location and time, if he likes,” was conditional at best and must be deemed waived. According to the record, no request was made by the defendant’s attorney to be so advised. The record does not show any prejudice because there was no notification. The court had indicated at the hearing that the State’s motion would be allowed, and the order, signed the following day, provided that the examination was not to be conducted until at least one week after the order was entered. Considering the circumstances, there was adequate opportunity for the defendant to have consulted with his attorney.

For the reasons given the judgment of the appellate court is affirmed.

Judgment affirmed.

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

MR. JUSTICE CLARK,

dissenting:

I believe the judgments below should have been reversed and the cause remanded to the circuit court.

The majority, of course, correctly states that the authority to order a psychiatric examination for the State’s “independent ascertainment of an accused’s mental condition at the time of a criminal occurrence” is found in section 115—6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 115-6). (74 Ill. 2d at 352.) But that is not germane here. The issue is whether the defendant was entitled to reasonable notice of and presence of counsel at the pretrial psychiatric examination once he indicated he would rely on the defense of insanity. Our Rule 413 (58 Ill. 2d R. 413) provides:

“(a) The person of the accused. Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the accused, among other things, to:
* * *
(ix) submit to a reasonable physical or medical inspection of his body.
(b) Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the State to the accused and his counsel, who shall have the right to be present. Provision may be made for appearances for such purposes in an order admitting the accused to bail or providing for his release.” (Emphasis added.)

The plain reading of this rule evidences the intent to require notice and presence of counsel whenever an accused must submit to a “medical inspection of his body.” The majority asserts that Rule 413 refers to physical evidence only. I disagree. I do not believe the rule indicates an intention or implication to distinguish between medical and psychiatric inspection or examination. Webster’s Third New International Dictionary 1832 (1971) defines psychiatry as “a branch of medicine that deals with the science and practice of treating mental, emotional, or behavioral disorders ***.” Medical genetically encompasses psychiatric.

But more importantly, Rule 413 only allows what the •sixth amendment (U.S. Const., amend. VI) requires: the presence of counsel at a pretrial psychiatric examination, or a satisfactory substitute for presence, because the examination is a critical stage of the prosecution. In United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, the Supreme Court held that a post-indictment lineup was a critical stage of the proceedings necessitating the presence of counsel. Its rationale, which I find pertinent here, was that an accused “is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” (388 U.S. 218, 226, 18 L. Ed. 2d 1149, 1157, 87 S. Ct. 1926, 1932.) The presence of counsel at the psychiatric examination “is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witness against him and to have effective assistance of counsel at the trial itself.” Wade, 388 U.S. 218, 227, 18 L. Ed. 2d 1149, 1157, 87 S. Ct. 1926, 1932; Comment, Right to Counsel at the Pretrial Mental Examination of an Accused, 118 U. Pa. L. Rev. 448 (1970).

The very nature of a psychiatric examination, ordered by a trial court on the State’s motion, warrants definition as a critical stage of the proceedings. The examination is adversary in that a State-appointed psychiatrist (Ill. Rev. Stat. 1971, ch. 38, par. 115—6) gives the tests and asks the questions. A defendant may not be confronted by the State per se, that is by the prosecutor, but the defendant is confronted by an appointed agent of the State. Moreover, a defendant may be lulled into believing that the psychiatrist is impartial. (See Diamond & Louisell, The Psychiatrist as an Expert Witness: Some Ruminations and Speculations, 63 Mich. L. Rev. 1335, 1344 (1965).) The purpose of the examination may not be to gather evidence; nevertheless, the examination is of an investigative character resulting in statements, sometimes incriminating, getting before the trier of fact through the testimony of the examining physician. (In re Spencer (1965), 63 Cal. 2d 400, 410, 406 P.2d 33, 40, 46 Cal. Rptr. 753, 760.) This leads to the second point—effective cross-examination.

For meaningful cross-examination, a defense attorney must “have some understanding of the psychiatrist’s diagnostic techniques” and “know the methodology and approach followed if he is to be able to challenge effectively the validity of the conclusions reached by the state psychiatrist.” (Meister, Miranda On the Couch, 11 Colum. J.L. & Soc. Prob. 403, 445 (1975).) The psychiatrist’s theories and techniques must be comprehended before they may be challenged at trial. It is doubtful that anyone, attorney or psychiatrist, can acquire this comprehension from frequently conclusional, summary or otherwise inadequate reports of examinations by the examining psychiatrists. (For an example, see Calloway v. United States (D.C. Cir. 1959), 270 F.2d 334, 335.) This is to say nothing of impediments sometimes erected to limit access to such medical and institutional reports. Thornton v. Corcoran (D.C. Cir. 1969), 407 F.2d 695, 702-03; Comment, Right to Counsel at the Pretrial Mental Examination of an Accused, 118 U. Pa. L. Rev. 448, 449 (1970).

A third consideration is the possible undue reliance by a trier of fact on expert opinion evidence by the examining psychiatrist. Psychiatry is not an exact science and psychiatric evidence is only derivative: the psychiatrist studies the mental state of a patient indirectly via the patient’s speech and behavior. Such evidence is a necessity, but its usefulness is effective only if we recognize that reliance on the testimony of a psychiatrist “is measured by the probability that what he has to say offers more information and better comprehension of the human behavior which the law wishes to understand. The psychiatrist offers a hypothesis explaining” a patient’s or an accused’s thoughts, feelings and actions, and attaches value to them. But the “legal usefulness of such hypotheses and values will depend less upon their scientific precision than upon their wisdom.” (Diamond & Louisell, The Psychiatrist as an Expert Witness: Some Ruminations and Speculations, 63 Mich. L. Rev. 1335, 1342 (1965).) In other words, such testimony, however accurate and wise it may be, is value laden. It is so because the psychiatric science is still imprecise, and not fully understood or embraced by the many but only by the few who may possess “technical knowledge of some depth.” For this reason the trier of fact may attach an overriding credence to such an expert. This is a problem that the defense, through its own psychiatric experts and through cross-examination, must contend with. To adequately do so, the defense attorney must be thoroughly familiar with the hypotheses and methods of the State-appointed psychiatrist.

The majority also correctly notes that its decision follows the view of most jurisdictions — but not all. Others recognize the right to presence of counsel at a pretrial psychiatric examination. (E.g., Lee v. County Court (1971), 27 N.Y.2d 432, 267 N.E.2d 452, cert. denied (1971), 404 U.S. 823, 30 L. Ed. 2d 50, 92 S. Ct. 46; In re Spencer (1965), 63 Cal. 2d 400, 406 P.2d 33, 46 Cal. Rptr. 753; Schantz v. Eyman (9th Cir. 1969), 418 F.2d 11, cert. denied (1970), 397 U.S. 1021, 25 L. Ed. 2d 530, 90 S. Ct. 1259. See also Thornton v. Corcoran (D.C. Cir. 1969), 407 F.2d 695.) After previous appeals and remands, the trial court, in Lee v. County Court (1971), 27 N.Y.2d 432, 267 N.E.2d 452, ordered a pretrial psychiatric examination which both the defense counsel and district attorney were permitted to attend. On advice of counsel at the examination, the defendant refused to answer questions concerning his behavior on the day of the crime; the psychiatrists were, accordingly, unable to give an opinion regarding the accused’s mental state. On motion of the State, the court ordered the defendant’s insanity defense struck, exclusion of his psychiatric evidence, and a new examination without the presence of nonmedical personnel. The New York Court of Appeals ruled that the defense should not have been struck, although preventing the defendant from presenting psychiatric evidence was acceptable. Turning to the issue of right to counsel at the examination, that court succinctly held because “pre-trial psychiatric examinations are a critical stage in the prosecution of one accused of a crime under the Wade rationale, the defendant is entitled to have counsel present to make more effective his basic right of cross-examination.” (27 N.Y.2d 432, 444, 267 N.E.2d 452, 459.) The court also determined that the prosecuting attorney could attend and that the role of counsel was passive and limited to observation.

In a habeas corpus proceeding, the Federal Ninth Circuit Court of Appeals held that “the post-indictment questioning of petitioner by a State psychiatrist on the county attorney’s instructions, without notice to and in the absence of counsel, violated petitioner’s right to the assistance of counsel at all critical stages of the criminal proceedings against him.” (Schantz v. Eyman (9th Cir. 1969), 418 F.2d 11, 13.) Schantz was decided on the basis of United States v. Wade, above, but in the context of preventing violation of the fifth amendment privilege against self-incrimination at the examination, an issue not raised here. (The Schantz court apparently would allow an active role for counsel at the examination.) The court concluded that because the petitioner was entitled to but denied assistance of counsel, his conviction could not stand.

Thornton v. Corcoran (D.C. Cir. 1969), 407 F.2d 695, cited by the majority, also recognized the right, with qualification. Thornton’s reasoning, in dicta, lends support to a claim of a sixth amendment right to counsel at the pretrial psychiatric examination although the court was addressing itself specifically to the “staff conference” (of examining psychiatrists) which follows the examination itself. (407 F.2d 695, 699-703.) In his dissent, Judge Burger viewed the staff conference, and impliedly the examination itself, as free from the adversary process. He felt the presence of defense counsel could only impair the investigation into and the decision-making process regarding a defendant’s mental state. “The presence of a lawyer for the patient at a staff conference would obviously inhibit the free expression and exchange of ideas which normally occurs between the doctor and patient.” (407 F.2d 695, 711.) I do not find this view convincing.

First, it is not so obvious that the presence of counsel would inhibit or impair an effective examination, especially where the attorney is confined to a passive role of observation as I believe he must be. Lee v. County Court (1971), 27 N.Y.2d 432, 444, 267 N.E.2d 452, 459.

Second, it is true the pretrial psychiatric examination is of an intimate nature, but portraying the examination as involving a doctor-patient relationship, where the doctor is State appointed and may have an enduring relationship with the State, is a bit strained. The State-appointment element casts the examination into the realm of investigative and adversary.

Even State v. Whitlow (1965), 45 N.J. 3, 210 A.2d 763, cited by the majority, recognized that the presence of counsel at the psychiatric examination was not inherently harmful. The court simply felt presence of counsel was not commanded by the Constitution. Like others, however, I believe the presence of counsel may have a “beneficial effect” on the examination: “The reassuring presence of counsel could do much to alleviate the accused’s feelings of isolation and distrust, and in fact contribute to the effectiveness of an examination otherwise hindered by the accused’s reluctance to respond freely to the psychiatrist.” Comment, Right to Counsel at the Pretrial Mental Examination of an Accused, 118 U. Pa. L. Rev. 448, 456 (1970).

(As has been suggested elsewhere (e.g., Thornton v. Corcoran (D.C. Cir. 1969), 407 F.2d 695, 702), alternative devices may be found which protect the defendant’s sixth amendment right to counsel at a critical stage of the proceeding without requiring counsel’s actual presence. In a particular case, psychiatrists may object for possibly legitimate reasons to the presence of an observing counsel. A videotape, for example, would intrude upon the examination only very minimally.)

I believe the defendant, under our Rule 413 and the sixth amendment of the United States Constitution, has the right to presence of counsel at a pretrial psychiatric examination, a critical stage of the prosecution. Moreover, the record shows inadequate notice of the examination. Hence, I would have reversed and remanded.

MR. CHIEF JUSTICE GOLDENHERSH joins in this dissent.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 50437.
    VICTOR L. ANDERSON et al., Appellees, v. HYSTER COMPANY, Appellant.

      Opinion filed January 26, 1979.

      WARD and KLUCZYNSKI, JJ., took no part.
    Kirkland & Ellis, of Chicago (Francis D. Morrissey, Francis B. Libbe and Edward J. Zulkey, of counsel), for appellant.
    George M. Elsener, of Elsener & Kenneally, Chartered, and Philip H. Corboy, of Philip H. Corboy & Associates, all of Chicago, for appellee Victor L. Anderson.
    David G. Mountcastle, of Moun teas tie & Da Rosa, of Wheaton, for appellee Steven G. Smith.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Hyster Company, appealed from judgments entered in the circuit court of Cook County upon jury verdicts returned in favor of plaintiffs, Victor L. Anderson and Steven G. Smith, in their actions for damages for personal injuries. The cases were consolidated for trial. The appellate court affirmed (56 Ill. App. 3d 41), and we allowed defendant’s petition for leave to appeal. The facts are set forth in the appellate court opinion and will be stated here only to the extent necessary to discuss the issues. Plaintiffs were injured as the result of being struck by a forklift truck manufactured by defendant, which plaintiffs alleged was not reasonably safe because of its defective design. Defendant contends that as a matter of law plaintiffs failed to prove that the forklift truck was not reasonably safe and that the circuit court erred in permitting the cases to go to the jury; that the conduct of the operator of the lift truck was the sole proximate cause of plaintiffs’ injuries; and that the circuit court erred in admitting irrelevant safety standards introduced by plaintiffs and in excluding evidence offered by defendant.

The forklift truck involved was equipped with what defendant called its “Monotrol” system. On the floor of the truck, to the driver’s right, was a red pedal which operated the vehicle’s speed and direction controls. If the left side of the pedal was depressed, the vehicle moved forward; if the right side was depressed, the vehicle moved in reverse. The farther the pedal was depressed the faster the vehicle moved; its maximum speed was 14 miles per hour. There were two slightly raised discs on the pedal, the disc on the left side being marked with an arrow pointing to the front of the vehicle and the disc on the right side marked with an arrow pointing to the rear. The left disc was slightly lower in height than the right disc.

To the left of the Monotrol pedal was the pedal which operated the brake and clutch. Depressing the brake pedal disengaged the clutch and the vehicle was in neutral; further depression of the pedal applied the brake. The lift truck could also be stopped by stepping on the side of the Monotrol pedal opposite to the direction in which the truck was moving, in what is known as “plugging” the engine. In addition, the vehicle was equipped with a hand brake.

Because there was no neutral position provided, the vehicle would creep forward unless the brake pedal was depressed. Upon being restarted the lift truck would creep forward, even though prior to being turned off it had been moving in reverse. As a safety measure, because of the tendency to creep, the ignition of the lift truck would start only if the hand or foot brake was engaged.

Plaintiffs were employed at a Weyerhauser Lumber Company warehouse at Franklin Park. The Monotrol forklift, being then operated by Russell Parkins, was carrying a solid-core door which plaintiff Smith was to examine. Parkins stopped the forklift directly in front of plaintiffs, left the vehicle and spoke with plaintiffs. The forklift truck was in the way of another vehicle and Parkins got back on the truck in order to move it. He testified that he started the motor, released the hand brake and stepped on the reverse or left side of the pedal and the vehicle started forward. He panicked, and thinking that he had stepped on the wrong side of the pedal, switched over to the right side. The vehicle picked up speed and struck the plaintiffs, knocking them against a lumber pile, as the result of which they were injured.

A manufacturer is held to the degree of knowledge and skill of experts (Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94, 101) and is under a nondelegable duty to make a product which is reasonably safe (Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, 85). That a product was not reasonably safe by reason of defective design may be proved, inter alia, by evidence of the availability and feasibility of alternate designs at the time of its manufacture, or that the design used did not conform with the design standards of the industry, design guidelines provided by an authoritative voluntary association, or design criteria set by legislation or governmental regulation. The appellate court has set forth in considerable detail the testimony of the experts called by the parties (see 56 Ill. App. 3d 41, 44-48), and we need not review it here. It suffices to say that the testimony supports the findings that in combining the directional and speed controls in one pedal, in failing to provide a neutral gear, and in failing to provide a direction-indicator system, defendant did not conform with either the design standards of the industry or the guidelines provided by the Society of Automotive Engineers (SAE). The expert testimony adduced by plaintiffs and defendant was conflicting, and we hold that on this record the question whether defendant failed to design a product which was reasonably safe was one of fact for the jury. We agree with the appellate court that the circuit court did not err in denying defendant’s motions for a directed verdict and for judgment n.o.v.

We consider next defendant’s contention that the sole proximate cause of the plaintiff’s injury was the operator’s failure to step on the brake. In this action, based on a theory of strict liability, in which there was sufficient evidence to sustain the finding that the product was so designed that it was not reasonably safe, the conduct attributed to the operator of the forklift truck would be a defense to plaintiffs’ actions only if such conduct constituted a misuse of the product. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 425.) Reasonable foreseeability of the misuse is measured by an objective standard (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 425), and such misuse would serve to break the causal connection between the defective product and the plaintiffs’ injuries only if such misuse was not reasonably foreseeable (Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94, 102). The expert testimony adduced at trial was sufficient to support the finding that what occurred here was reasonably foreseeable.

Defendant contends that the circuit court erred in permitting plaintiffs’ expert, Marvin Salzenstein, to testify concerning certain of the SAE standards (SAE Recommended Practices J841c and J841d). Defendant’s expert testified, and it contends here, as it did in the appellate court, that the SAE standards to which Salzenstein referred did not apply to forklift trucks. It is defendant’s position that the standards applicable to its product were those promulgated by the American Standards Association. The testimony of the experts was in conflict concerning the applicability of the SAE recommended practices in question, and the court did not err in admitting the testimony. We note further that it is clear from Salzenstein’s testimony that his opinion that the forklift truck was not reasonably safe was based on a number of considerations other than the reference to the standards. Defendant contends that the circuit court erred in sustaining plaintiffs’ objection to a letter written to A.H. Huebner, defendant’s vice-president, by a staff engineer of the Society of Automotive Engineers expressing the opinion, with reference to the SAE Recommended Practices J841c and J841d concerning which Salzenstein testified, “that the responsible SAE committee did not intend to relate the specific title or text to the forklift ***.” We interpret defendant’s argument to be that this letter determined whether the SAE standards in question were applicable to the forklift truck and that the circuit court erred in permitting any reference to them. Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, the only authority cited by defendant in support of this proposition, is wholly irrelevant to the issue presented. In Murphy the standards admitted into evidence were promulgated many years after the steps on which plaintiff had fallen were built. Here, the experts were in direct conflict as to whether the SAE standards were applicable and what they meant. This issue was for the finder of fact to determine, and its resolution did not depend upon the opinion of an engineer employed by the SAE.

Defendant’s final contention, simply stated, is that because the circuit court admitted Salzenstein’s testimony concerning the “irrelevant SAE standards,” fundamental fairness required that the letter to Huebner be admitted to show that the standards were not intended to apply to defendant’s product. Furthermore, it argues the circuit court should have admitted into evidence its exhibits 9 and 10. These exhibits are standards promulgated by the American National Standards Institute for powered industrial trucks and contain approximately 100 printed pages. When the exhibits were offered defendant did not indicate which, if any, standard was applicable to the lift truck. It appears from the colloquy between the court and counsel that the exhibits were offered for the purpose of showing that the standards contained nothing which precluded the use of the type of mechanism used in defendant’s lift truck. Admitting the standards into evidence for the purpose for which they were offered would permit the jury to draw the inference that because the use of defendant’s design was not specifically proscribed, it met the standards of the industry. Without attempting here to delineate the nature and scope of the foundation proof requisite to render admissible for that purpose standards promulgated by a voluntary association, we hold that the circuit court did not err in excluding defendant’s exhibits 9 and 10.

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

Judgment affirmed.

WARD and KLUCZYNSKI, JJ., took no part in the consideration or decision of this case.


author: MR. JUSTICE CLARK

text:
    (No. 50260.
    THE CITY OF MOUNT CARMEL, Appellant, v. CLARENCE E. PARTEE et al., Appellees.

      Opinion filed January 26, 1979.

      WARD, J., took no part.
    Robert M. Keenan, Jr., of Townsend, Townsend & Keenan, of Mt. Carmel, for appellant.
    Crain, Hall 8c Cooksey, of Centraba (Robert M. Crain and R. Edward Veltman, Jr., of counsel), for appellees.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The city of Mount Carmel, the plaintiff and a municipal corporation, petitioned the circuit court of Wabash County to condemn land in an unincorporated area for a street right-of-way. (Ill. Rev. Stat. 1975, ch. 24, par. 11—61—1.) Upon the motion of defendants Clarence E. and Clifton M. Partee for a change of venue, the cause was transferred to the circuit court of Lawrence County, which dismissed the petition. The appellate court, with a dissent, affirmed (54 Ill. App. 3d 449), and we granted leave to appeal (65 Ill. 2d R. 315).

The issue is whether the city is authorized by section 11— 61—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 11—61—1) to condemn property outside the corporate limits, a substantial portion of which is not adjacent or contiguous to those corporate limits, for street or highway purposes.

Defendants own 42 acres of unincorporated land which is improved with farm buildings and used for pasture and growing hay for raising horses. The 42 acres are bounded on the south by the city’s corporate limits, on the east by 926.09 feet of corporate limits as well as by an unincorporated area, and on the north by a county road across which is an unincorporated area. The city seeks a 2.19-acre strip which is. 60 feet wide by 1,587 feet long and runs from the city’s limits on the south to the county road on the north. The strip is adjacent and contiguous to the city’s corporate limit only for a distance of 60 feet on the south end; otherwise it fails to border the city, located just over 150 feet from and running parallel to the east edge of the Partee property.

Section 11—61—1 (Ill. Rev. Stat. 1975, ch. 24, par. 11— 61—1) provides: The defendants argue the circuit court properly granted their traverse and motion to dismiss because the property to be condemned must itself be outside but contiguous and adjacent to a municipality under the statute above, because 60 feet is insufficient contiguity, and because there is a public policy against the taking of strip or corridor property by a municipality. The city contends that under the statute the property to be condemned need not itself be contiguous and adjacent but need only be located “in unincorporated areas” which must be contiguous and adjacent to the municipality. The city maintains that, if the plain language of the statute does not, the doctrine of last antecedent certainly does, require that conclusion. Under this doctrine, relative or qualifying words or phrases modify words or phrases which are immediately preceding, and do not modify those which are more remote. (Stevens v. Illinois Central R.R. Co. (1922), 306 Ill. 370, 373; People v. Thomas (1970), 45 Ill. 2d 68, 72.) It is the city’s view that the word “areas” in section 11—61—1 of the Illinois Municipal Code is more immediately preceding than the word “property.” Hence, “areas” is the antecedent of the modifying phrase “outside of but adjacent and contiguous to”; and only “areas” must be contiguous and adjacent to the municipality — not the property sought.

“The corporate authorities of each municipality may exercise the right of eminent domain by condemnation proceedings in conformity with the provisions of the constitution and statutes of the State of Illinois for the acquirement of property useful, advantageous or desirable for municipal purposes or public welfare including property in unincorporated areas outside of but adjacent and contiguous to the municipality where required for street or highway purposes by the municipality.”

That argument is appealing. However, we believe that interpretation is not the intent of the legislature. The legislature, we conclude, intended that property outside the petitioning municipality and sought for street and highway purposes must be in an unincorporated area (as distinguished from in another municipality) and contiguous and adjacent to the municipality. People v. Thomas (1970), 45 Ill. 2d 68, 72, above, also noted that “the entire section must be read to ascertain legislative intent.” As the appellate court observed, the city’s argument — that “outside of” modifies “unincorporated areas” — would make the words “outside of” surplus language since unincorporated areas are by definition “outside of” a municipality. We have held that a “statute should be so construed, if possible, that no word, clause or sentence is rendered meaningless or superfluous.” (People ex rel. Barrett v. Barrett (1964), 31 Ill. 2d 360, 364-65.) If the legislature did not intend “outside of” to be superfluous, it must have intended the phrase to modify “property,” and it surely meant the prepositional phrase “in unincorporated areas” to refer to “property” so as to distinguish that “property” from property located outside the municipality but in another, possibly adjacent, municipality. (Cf. Village of Schiller Park v. City of Chicago (1962), 26 Ill. 2d 278, where this court found that sections 11—102—1 and 11—102—4 of the Illinois Municipal Code expressly authorized condemnation of land, for use as airports, outside a municipality of 500,000 or more in population, even though the land was in another municipality. The sections do not refer to contiguity.) In Village of Deerfield v. Rapka (1973), 54 Ill. 2d 217, 222, this court remarked that section 11—61—1 “was intended to insure a power to condemn, for street purposes, land outside but adjacent and contiguous to the municipality.” This statement is admittedly dicta, but it reflects a public policy of discouraging unlimited appropriation of unincorporated property by a municipality.

More specifically, this State has an announced public policy of not permitting the taking of a “strip” or “corridor” of land in order to join or facilitate the joining of different parts of a municipality. To accomplish this policy, the legislature requires contiguity and adjacency of the desired land. (E.g., Ill. Rev. Stat. 1975, ch. 24, pars. 7—1—1 et seq. and 11—61—1.) And “contiguous” means to “touch or adjoin *** in a reasonably substantial physical sense.” (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 352.) This court has been consistent about this policy as evidenced in its interpretation of “contiguous”:

“The intent of the legislature, as expressed by the word ‘contiguous,’ is that the territory to be annexed must have a substantial common boundary. Neither the use of a strip of land one-half mile long and 50 feet wide to connect two tracts of land to be included in the territory to be organized into a village [citation] nor the annexation of a 75-mile network of roadways leading to a village merely because one can enter this disconnected maze from a point within the boundary of the village, complies with the statutory requirements of contiguity.” (Spaulding School District No. 58 v. City of Waukegan (1960), 18 Ill. 2d 526, 529, where this court found that “a common boundary of approximately one and one-half miles, largely in the form of streets” met the requirement of contiguity.)

The Spaulding decision, referring to the improper annexation of the 75-mile roadwork above, cited People ex rel. Adamowski v. Village of Streamwood (1959), 15 Ill. 2d 595, 601, in which this court concluded:

“To condone the unnatural and obviously unreasonable annexation as attempted by the defendant village in this case, would require us to permit strip or corridor annexation, which has always been condemned by the courts of this State and has never been permitted by the legislature.”

(Accord, Wild v. People ex rel. Stephens (1907), 227 Ill. 556, 561; Village of Morgan Park v. City of Chicago (1912), 255 Ill. 190, 192-93.) While the cases cited have involved annexation of unincorporated areas rather than condemnation as here, we believe the policy consideration and reasoning remain the same. The attempt to condemn a right-of-way, parallel with but only 150 feet away from a municipality’s corporate limits, in order to connect existing or proposed roadways of the municipality, involves the acquisition of a right-of-way that may be a convenience. But it remains an attempt to join, by strip acquisition, unconnected parts of a municipality’s street system. (Evidence shows the city intends the strip to ultimately join another city right-of-way at the northern end of the strip’s extension.) For whatever reasons, the city apparently did not try to condemn a contiguous 1,587-foot strip, nor to annex adjacent property. It is questionable whether public policy fosters, as in this case, a municipality’s mere convenience at the price of an owner’s damaged remainder.

Finally, what is troubling about the city’s perception of section 11 — 61—1 of the Illinois Municipal Code, despite the appellate court’s dissenting opinion’s assurances to the contrary, is that there is no apparent limit on the location of land — except the nearest municipality’s corporate limits —so long as it is in an unincorporated area that “eventually” is contiguous to the municipality. It is unlikely the legislature intended that. It is more reasonable to assume the legislature only intended to facilitate a municipality’s development of an efficient roadway system by permitting it to obtain by eminent domain contiguous, substantially adjoining property for streets. (See Western National Bank v. Kildeer (1960), 19 Ill. 2d 342, 352: “[T] o be considered contiguous within the meaning of the statute, the tracts of land in the territory must touch or adjoin one another in a reasonably substantial physical sense.”) This interpretation would be far more consistent with the required strict construction of eminent domain statutes. Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 324; Forest Preserve District v. Wike (1954), 3 Ill. 2d 49, 54.

For the reasons stated, we hold that section 11 — 61—1 of the Illinois Municipal Code permits a municipality to condemn property in unincorporated areas for street and highway purposes so long as the property to be taken is substantially contiguous and adjacent to the municipality. We affirm the judgment of the appellate court.

Judgment affirmed.

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


author: MR. JUSTICE UNDERWOOD

text:
    (No. 50377.
    ABUNDIO SALDANA, Appellee and Cross-Appellant, v. WIRTZ CARTAGE CO. et al., Appellants and CrossAppellees.

      Opinion filed December 4, 1978.

      WARD, C.J., took no part.
    Jacobs, Williams & Montgomery, Ltd., of Chicago (Wyatt Jacobs, Barry L. Kroll, and David A. Novoselsky, of counsel), for appellants.

      Fred Lambruschi, of Chicago (Herbert P. Veldenz, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, Abundio Saldana, brought this action in the circuit court of Cook County to recover for personal injuries he suffered when he was struck by a truck operated by defendant Roy Fitzsimmons, a driver for defendant Wirtz Cartage Company (Wirtz). The jury returned a verdict for both defendants, and the circuit court entered judgment accordingly. The appellate court reversed (55 Ill. App. 3d 440), finding that a special interrogatory submitted to the jury should have been accompanied by explanatory instructions and that this error required a new trial. We granted defendants leave to appeal.

Although Fitzsimmons was employed as a driver for Wirtz, he had been instructed to take a Wirtz truck and report to Allied Asphalt Paving Company (Allied). On November 14, 1970, he reported to Allied’s dispatcher, who directed him to haul asphalt to its paving site on Landwehr Road near Northfield. Fitzsimmons testified that after he was assigned to Allied by Wirtz, Allied decided what and where he was to haul and that he received orders and directions only from Allied’s foreman. A dispatcher for Wirtz also testified that Wirtz exercised no supervision over Fitzsimmons and that he was “taken over” by Allied or their foreman. If Allied was not satisfied with a driver such as Fitzsimmons, it could request another. Allied paid Wirtz for the truck and driver, and Wirtz paid Fitzsimmons weekly. Plaintiff was designated by Allied as a “dumpman” on a paving crew which was working at the Landwehr Road site. His job was to guide dump trucks as they backed up to a Barber-Greene asphalt paving machine, open the tail gates, signal the drivers to raise the truck bed, signal the trucks to move out, and sign reports to verify that the trucks had been unloaded. During the afternoon of November 14, plaintiff guided Fitzsimmons as he backed the truck up to the Barber-Greene machine and then signaled him to raise the bed. At that time, another driver, Jack Moore, came up to plaintiff to get his report signed. Plaintiff walked toward the front of the truck to meet Moore. As plaintiff was signing the report, Fitzsimmons pulled away from the machine. Plaintiff was positioned so that a rear tire struck his leg, causing him to fall down in such a way that his right foot was pinned under the wheel and injured. Fitzsimmons testified that plaintiff had signaled him to pull out but plaintiff denied doing so.

At trial, defendants asserted that they had exercised due care and that plaintiff was contributorially negligent. In addition, the defendants relied upon the “loaned employee” defense, which is based on the principle that an employee loaned by a “general” employer to a borrowing or “special” employer is in the same position as any other of the special employer’s regular employees, i.e., he is entitled to workmen’s compensation benefits from the special employer but he has no right to bring a common law negligence action against it or a fellow employee. After the evidence had been heard, defendants maintained that they had proved the loaned-employee defense as a matter of law while plaintiff contended that Fitzsimmons was not shown to be a loaned employee, also as a matter of law. The trial court, however, decided that this was a question of fact and, at defendants’ request, submitted to the jury the following special interrogatory: together with a special interrogatory as to plaintiff’s contributory negligence. Plaintiff, at the instructions conference, objected to the quoted interrogatory because he continued to maintain that Fitzsimmons was not a loaned employee as a matter of law. Neither plaintiff nor defendants requested or tendered instructions on this question and none , were given. The jury found that plaintiff was not contributorially negligent, but it answered the other interrogatory affirmatively, finding that Fitzsimmons was wholly subject to the control and direction of plaintiff’s employer, Allied. The jury also returned a general verdict against plaintiff.

“Was the defendant, ROY FITZSIMMONS, at the time of the occurrence wholly subject to the control and direction of the ALLIED ASPHALT PAVING COMPANY and free during such time from the direction and control ofWIRTZ CARTAGE COMPANY?”

On appeal, plaintiff alleged several trial errors which were not considered by the appellate court. While that court reversed, it did so on grounds which were neither raised nor argued by the parties — the failure of the trial court to instruct the jury on the meaning of “control and direction” as those terms were used in the special interrogatory. Other than for jurisdictional reasons a reviewing court should not normally search the record for unargued and unbriefed reasons to reverse a trial court judgment. “[W] hile this court will examine the record for the purpose of affirming a judgment it will not do so for the purpose of reversing it ***” (People ex rel. Akin v. Southern Gem Co. (1928), 332 Ill. 370, 372), for when an appellant seeks reversal, “theories not pursued nor advanced with citation of authorities are deemed waived” (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242, citing Mitchell v. Van Scoyk (1953), 1 Ill. 2d 160, 164).

Here, even if the terms “control and direction” should have been defined, the error was not preserved for review. No request for a defining instruction was made and no such instruction tendered. The appellate court quoted only an isolated segment of the record — “Your Honor, I object to the interrogatory, He has taken a position, Your Honor — Is it a matter of law?”, finding, on the basis of this quotation, that “it is evident from the record that counsel was at this point objecting to the interrogatory *** because of the lack of explanatory instructions.” (55 Ill. App. 3d 440, 445.) The quoted statement by counsel together with others in the context from which it was taken, clearly demonstrated that plaintiff objected to giving the interrogatory solely because he felt that the loaned-servant question on the facts of this case was a matter of law. Nor does the record before us contain any mention of failure to give accompanying instructions. Special interrogatories must be tendered, objected to, ruled upon and submitted to the jury in the same manner as are instructions. (Ill. Rev. Stat. 1973, ch. 110, par. 65.) To preserve an objection to an interrogatory as well as to an instruction, one must set it forth with specificity so the trial court is advised of the specific nature of the objection before ruling. (Supreme Court Rule 239(b), 58 Ill. 2d R. 239(b); Delany v. Badame (1971), 49 Ill. 2d 168, 178; see Havlovic v. Scilingo (1972), 7 Ill. App. 3d 918.) Additionally, even if plaintiff had properly objected, he is still required to tender a proper instruction. Supreme Court Rule 366(b)(2)(i), 58 Ill. 2d R. 366(b)(2)(i); Department of Public Works & Buildings v. Klehm (1973), 56 Ill. 2d 121, 127, cert. denied (1974), 417 U.S. 947, 41 L. Ed. 2d 667, 94 S. Ct. 3072.

Plaintiff contends that he was taken by surprise by defendants’ assertion of the “loaned employee” defense three days before trial. We note, however, that the instructions conference was not held until six days after this defense was first raised; that period does not seem to us an unreasonably short time within which to prepare those instructions plaintiff considered proper.

Moreover, while unnecessary to our disposition of this case, we note our serious doubt of the necessity or wisdom of attempting to further define the terms “control and direction.” Those words are, if anything, less technical than the phrase “having charge of,” and this court has held that phrase one of common usage and understanding and that further attempts at definition can only lead to confusion and error. (Voss v. Kingdon & Naven, Inc. (1975), 60 Ill. 2d 520, 526; Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 119.) “It is well established that the meaning of words, used in their conventional sense, need not be defined or explained in giving instructions to the jury.” Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 323.

Plaintiff states in his brief that, “[a] dmittedly, the opinion of the Appellate Court was on a point not raised by the plaintiff,” but contends that we should affirm nonetheless because the result is correct on other, properly preserved grounds which were briefed and argued in the appellate court.

Plaintiff first contends that the trial court erred in refusing to rule that Fitzsimmons was not a loaned servant as a matter of law. At common law, the rule that an employee cannot recover for the negligence of his fellow employee (see, e.g., Honner v. Illinois Central R.R. Co. (1854), 15 Ill. 550) applied as well to a loaned employee. (Pioneer Fire-Proofing Co. v. Clifford (1906), 125 Ill. App. 352, aff’d (1907), 232 Ill. 150; see Illinois Central R.R. Co. v. Cox (1858), 21 Ill. 20.) This principle has been applied to Workmen’s Compensation Act cases so that one injured while working for the special or borrowing employer is entitled to receive workmen’s compensation benefits from that special employer (Raymond Concrete Pile Co. v. Industrial Com. (1967), 37 Ill. 2d 512; American Stevedores Co. v. Industrial Com. (1951), 408 Ill. 449), but as earlier noted the Act bars negligence actions by an employee against his special employer or another employee (Ill. Rev. Stat. 1969, ch. 48, pars. 138.1(a)(4), 138.5; Highway Insurance Co. v. Sears, Roebuck & Co. (1968), 92 Ill. App. 2d 214; see IB A. Larson, Workmen’s Compensation sec. 48.10, at 8 — 205 (1978).) The main criterion for determining when a worker becomes a loaned employee is whether the special employer has control of the employee’s services. (M & M Electric Co. v. Industrial Com. (1974), 57 Ill. 2d 113, 116.) “The leading case in this State is that of Allen-Garcia Co. v. Industrial Com. 334 Ill. 39. In that case we held that the Workmen’s Compensation Act should be liberally construed to bring persons within the term ‘employer-employee,’ and held that where a mining company contracted with an engineering company for certain work on a cost plus basis, and required the use of a crane, which the mining company secured from a third company, which furnished both it and the engineer, the operator of the crane became an employee of the engineering company using the crane, where he was subject to the direction of that company while using it, notwithstanding the coal company paid his wages. We followed and approved the Allen-Garcia case in Fransen Construction Co. v. Industrial Com. 384 Ill. 616.” American Stevedores Co. v. Industrial Com. (1951), 408 Ill. 449, 454.

In Fransen Construction Co. v. Industrial Com. (1943), 384 Ill. 616, Fransen Construction requested the Marland Cartage Co. to send to a construction site trucks with drivers for the purpose of hauling gravel. Fransen paid to Marland Cartage a flat rate of 50 cents per cubic yard of gravel hauled. Marland Cartage paid its drivers directly. It did not supervise the drivers but merely sent them and the trucks to Fransen Construction. The drivers were told where to get their loads and directed where to dump them by Fransen’s employees. The court held that the question of whether or not a driver, killed on the job, was a loaned employee was one of fact, and it upheld a finding that the driver was a loaned employee of Fransen Construction, a special employer.

It is clear that the issue of whether there is an employer-employee relationship, and more specifically the question of control, ordinarily “presents a question of fact for the jury, which must weigh such factors as the matter of hiring, the mode of payment, the right to discharge, and the manner of direction of the services. Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300.” (Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 123; see M.W.M. Trucking Co. v. Industrial Com. (1976), 62 Ill. 2d 245, 255.) The facts of this case present nothing to justify a departure from this rule.

Plaintiff contends that the trial court erred in permitting defendant to file an amended answer three days before trial, denying an agency relationship between defendants Fitzsimmons and Wirtz, because, asserts plaintiff, defendants admitted the agency relationship in their first answer. The record indicates that plaintiff alleged in two separate paragraphs that “defendant ***, by its agent *** Roy Fitzsimmons, *** caused [a vehicle] to collide into and against plaintiff ***” and “defendant ***, by its agent *** Roy Fitzsimmons, *** was *** guilty of the following acts of negligence ***.” In answering the first, defendants specifically denied causing a collision, and in response to the second, defendants denied “each and every allegation.” We doubt that defendants may fairly be said to have admitted the agency, but, in any event, a defendant may be permitted to amend his pleadings to change or .add a defense at any time prior to final judgment. (Ill. Rev. Stat. 1973, ch. 110, par. 46(1).) “The trial court has a broad discretion with respect to allowance of amendments to pleadings prior to the entry of final judgment ***.” (Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1, 8.) We find no abuse of that discretion here.

Plaintiff also asserts error in the refusal to admit evidence of the custom and practice in the paving industry regarding the signals and duties of a dumpman. Any error in that refusal cannot have been prejudicial, however, since plaintiff’s testimony to the same effect was not disputed. The controversy here was not whether defendant should have awaited plaintiff’s signal — rather, it was whether he had done so.

Plaintiff also objects to the showing of a movie of the Barber-Greene in action since it was taken in a parking lot where the paving crew’s movement was in a large open area rather than on a road. However, the fact that photographic evidence portrays something under conditions not precisely the same as those at the time of the occurrence does not necessarily render it inadmissible, so long as the jury is not misled. (Warner v. City of Chicago (1978), 72 Ill. 2d 100, 105, citing 3 Jones, Evidence sec. 17:53 (6th ed. 1972).) Here the jury was admonished not to consider the movie as a re-creation of the conditions of the incident, and not to consider the movements of the crew, but that the film was being shown only to demonstrate to the jury just what this unfamiliar machine, about which much testimony was given, looked like and how it performed. Additionally, the freedom of movement around the machine is principally relevant to the issue of plaintiff’s due care. Since the jury found plaintiff not to be contributorially negligent, the movie could not have been prejudicial even if its admission was error.

Plaintiff next argues that evidence introduced by defendants tended to portray plaintiff as a person of some affluence and so prejudiced the jury that plaintiff was denied a fair trial. Plaintiff had returned to Mexico following his injury and operated a supermarket there. He claimed an impairment of future earning capacity in that his income from the supermarket was less than he would have earned at Allied. The issue relating to plaintiff’s income became unclear when he, after testifying that his income was a certain amount, added that his books were inaccurate because of false entries made in order to deceive the Mexican authorities. Plaintiff’s objection at trial came when defendant sought to introduce a photograph showing that plaintiff’s store in Mexico was a modern supermarket. The trial court noted that plaintiff had in fact invited such evidence, stating to plaintiff’s counsel, “I told you in chambers if we didn’t get to the question of how good the store was or anything else, then I would not let him do this. But you got up and said that he and his wife were making $80.00 a week in that store.” A plaintiff may testify to his earnings following an injury, but the defense is entitled to dispute that testimony with relevant proof. That proof does not become inadmissible simply because it shows greater means than have been testified to.

Finally, plaintiff maintains that the trial court erred in refusing a portion of an instruction tendered by plaintiff. Plaintiff’s instruction No. 4, Illinois Pattern Jury Instructions, Civil, No. 20.01 (2d ed. 1971), as given by the court, reads in part:

“The plaintiff claims he was injured and sustained damage while exercising ordinary care and that the defendants were negligent in one or more of the following respects:
Failed to keep a proper lookout;
Failed to keep their motor vehicle under proper control;
Moved their motor vehicle without obtaining the proper signal to do so.”

The trial court refused this fourth allegation of negligence tendered by the plaintiff: “Failed to give to the plaintiff suitable, sufficient or proper notice of their intention to move the motor vehicle.” This allegation does not appear in plaintiff’s complaint, it largely duplicates the others, and we perceive no prejudicial error in its refusal. Plaintiff’s theory of the case was that the truck should not move at all until plaintiff gave the signal. The instruction, in our judgment, adequately implemented plaintiff’s theory.

The judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

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


text:
    (No. 50446.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GEORGE COLES et al., Appellees.

      Opinion filed January 26, 1979.

      WARD, J., took no part.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger, Joan S. Cherry, and Pamela L. Gray, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, and Robert P. Isaacson, Assistant Public Defender, of Chicago, for appellees.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendants, George Coles and Kevin Johnson, were convicted of armed robbery after a joint trial in the circuit court of Cook County. The Appellate Court, First District, reversed both convictions on the grounds that the trial court’s restriction of inquiry into the alleged bias of the chief prosecution witness violated the defendants’ right to confront and cross-examine the witnesses against them. (55 Ill. App. 3d 528, 529-30.) We granted the State’s petition for leave to appeal, and we now affirm as to defendant Coles and vacate and remand the cause with directions, as to defendant Johnson.

The armed robbery in question allegedly took place at the home of Phyllis and Walter Stallworth in Chicago. Mrs. Stallworth was the chief witness against the defendants at trial. She alone allegedly observed defendant Coles during the robbery. Mrs. Stallworth also happened to be the sister of defendant Coles’ wife. At trial, counsel for defendant Coles attempted to demonstrate that Mrs. Stallworth was biased against him.

A crucial aspect of this attempt to establish Mrs. Stallworth’s alleged bias was counsel’s attempt to demonstrate a motive or reason for some of that bias. However, when counsel sought to lay a foundation for inquiring whether, four months prior to the alleged robbery, Mrs. Stallworth had been beaten by her husband as a result of Coles ’ having told him that she was having an extramarital affair, the court sustained the State’s objection as to any inquiry into the alleged beating. Coles’ counsel thereupon made an offer of proof, for the record, of the questions he intended to ask of Mr. and Mrs. Stallworth regarding the alleged beating.

Counsel for defendant Coles was, however, permitted to inquire, inter alia, whether defendant had visited the Stallworth home, whether Mrs. Stallworth had encouraged her sister not to marry Coles, and whether Mrs. Stallworth had threatened to “fix” Coles.

It is well settled that the trial court is vested with “substantial discretion” to determine both the manner and scope of cross-examination. (People v. McCain (1963), 29 Ill. 2d 132, 134. See Aso People v. Peter (1973), 55 Ill. 2d 443, 452.) Accordingly, the trial court’s decision on such issues wiU not be overturned absent a showing of a “clear abuse” of that discretion “resulting in manifest prejudice.” (People v. Halteman (1956), 10 Ill. 2d 74, 86.) Here, we conclude that the trial court’s decision excluding inquiry into the chief prosecution witness’ allegedly having been beaten by her husband (for which she allegedly blamed Coles) constituted a clear abuse of discretion resulting in manifest prejudice to Coles, against whom that witness provided the most damaging evidence at trial. (See, e.g., People v. Barr (1972), 51 Ill. 2d 50, 52.) The potential inference, from the alleged beating, of a motive to misrepresent was neither remote nor speculative, nor unduly prejudicial to the government and therefore should have been left to the jury. Cf., generally, People v. Jones (1975), 60 Ill. 2d 300, 306 (relationship of a witness to a defendant is clearly a basis for bias as to which cross-examination is appropriate). See also Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.

Although Davis based its holding upon the confrontation clause of the sixth amendment to the United States Constitution, we see no need to elevate our decision beyond the general evidentiary principles upon which it is based. Accordingly, we eschew reliance upon either the Illinois or the United States Constitution in reaching our decisions with regard to defendant Coles.

With regard to defendant Johnson, however, we hold that the appellate court erred in reversing his conviction based upon an issue which he neither raised in the trial court nor briefed in the appellate court, and which involved the exercise of the trial court’s discretion as to matters beyond those addressed by counsel for defendant Coles.

Coles and Johnson had separate counsel in the trial court. Counsel for defendant Johnson did not seek to inquire as to Mrs. Stallworth’s alleged bias, and did not join in Coles’ counsel’s attempt to do so. In the appellate court, where Coles and Johnson shared the same counsel, the brief of the appellants expressly limited its argument regarding the prejudicial effects of the limitation of the inquiry into Mrs. Stallworth’s alleged bias to the prejudice suffered by defendant Coles.

By failing to raise this issue in the trial court, by failing to preserve it in his post-trial motion (see Ill. Rev. Stat. 1975, ch. 38, par. 116—1), and by failing to brief the issue in the appellate court, appellant Johnson has waived this issue (cf. Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379), and the “plain error” exception of Rule 615(a) (58 Ill. 2d R. 615(a)) does not save him from such waiver.

“Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed.” (People v. Precup (1978), 73 Ill. 2d 7, 17.) Although we find the trial court’s decision to have been erroneous as to Coles, we are not prepared to say that, as to Johnson, it constituted “plain error” or a “defect affecting substantial rights.” (See 58 Ill. 2d R. 615(a).) In light of the discretionary nature of the decision, and in light of the difference between the potential prejudice from the judge’s ruling to Johnson and to Coles, it is not impossible that, after full argument on the question in the trial court, a resolution of this issue could have been achieved which was not prejudicial to Johnson, whose theory of defense did not coincide with that of Coles. We therefore hold that Johnson is estopped from asserting that the trial court committed plain error by abusing its discretion as to him, because he has not even given that court an opportunity to exercise its discretion, and because it is not clear that raising the issue would have been futile.

For the foregoing reasons, the judgment of the appellate court is affirmed as to defendant Coles and vacated as to defendant Johnson. The cause is remanded to the appellate court for consideration of the remaining issues raised in that court as to defendant Johnson.

Affirmed in part and vacated in part and remanded, with directions.

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


text:
    (No. 50538.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RICHARD J. McCOY, Appellee.

      Opinion filed January 26, 1979.

      WARD, J., took no part.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger, Kenneth T. McCurry, and Margaret K. Stanton, Assistant State’s Attorneys, of counsel), for the People.
    Ralph Ruebner, Deputy Defender, and David Mejia, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Richard J. McCoy, appealed from the judgment of the circuit court of Cook County entered upon allowance of the People’s motion to dismiss his amended petition filed pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1975, ch. 38, par. 122—1 et seq.). In a Rule 23 order the appellate court reversed and remanded the cause to the circuit court “with directions to permit petitioner to plead anew” to the charge upon which he had been previously convicted (54 Ill. App. 3d 1112), and we allowed the People’s petition for leave to appeal.

It is alleged in defendant’s amended post-conviction petition that following a plea of guilty to the charge of burglary, and upon stipulating that that offense constituted a violation of an earlier probation, defendant’s probation was revoked and he was sentenced to concurrent terms of 1 to 3 years on both the plea of guilty and on the probation violation. It is further alleged that the plea of guilty “was not knowingly and intelligently made for the reason that petitioner was not advised that in addition to the penitentiary sentence imposed he would also be required to serve three years on parole.” The record shows that on September 3, 1975, represented by an assistant public defender, defendant pleaded guilty to the offense of burglary, that at the same time defendant’s probation on an earlier charge was revoked and he was sentenced to concurrent terms of 1 to 3 years at the State Farm at Vandalia. The record reflects that the plea of guilty was accepted and the sentences imposed in accordance with an agreement negotiated between the assistant State’s Attorney and the assistant public defender.

Defendant had contended in the appellate court that the circuit court erred in dismissing his amended petition in that the failure to admonish him at the time of his plea of guilty that the mandatory parole term was a part of the sentence was per se a constitutional violation entitling him to post-conviction relief. The appellate court found it unnecessary to reach the question whether the failure to so admonish him was per se grounds for reversal for the reason that it found that the transcript of the proceedings in the circuit court showed that there was no substantial compliance with the provisions of Supreme Court Rule 402 (58 Ill. 2d R. 402). In addition to the failure to admonish with regard to the mandatory parole term, the appellate court noted that the record demonstrated that defendant was not admonished as to his right to confront witnesses against him; the right to persist in his plea of not guilty; the right to a trial of the matter (although it noted that defendant said he did not want a trial by jury); and that the circuit court failed to determine whether there had been any threats or coercion in the entry of the plea. The court concluded that “the plea of guilty to the burglary charge and resultant admission to the probation violation were therefore not entered knowingly and voluntarily,” and that the court below improperly dismissed the post-conviction petition.

The People contend that an examination of the entire record shows that the guilty plea was voluntarily and intelligently made; that the appellate court improperly considered errors not raised in the post-conviction petition; and that because the record shows that the guilty plea was voluntarily and intelligently made, the failure to warn of the mandatory parole period does not show a substantial violation of defendant’s consitutional rights.

In order that defendant be entitled to post-conviction relief, he would be required to show “a substantial denial of his rights under the Constitution of the United States or of the State of Illinois.” (Ill. Rev. Stat. 1975, ch. 38, par. 122—1.) As the court said in People v. Reeves (1971), 50 Ill. 2d 28, 29, “The constitutional requirement, both pre and post Boykin, is that a plea of guilty be ‘intelligent and voluntary.’ Boykin adds the requirement that if the guilty plea is to withstand appellate or post-conviction review ‘the record must affirmatively disclose that the defendant who pleads guilty enters his plea understandingly and voluntarily.’ (Brady v. United States, 397 U.S. 742, 747 footnote (4), 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1468.)” While there appears to be no reason for failure to comply strictly with the explicitly stated requirements of Rule 402, every deviation therefrom does not require reversal. That the plea was “intelligent and voluntary” may be shown by substantial, and does not require literal, compliance with the provisions of Rule 402. People v. Krantz (1974), 58 Ill. 2d 187.

The transcript of the proceedings when defendant entered the plea of guilty and was sentenced shows that he was admonished concerning his right to waive indictment, his right to a jury trial, that if found guilty on the charge he could be sentenced from 1 to 20 years and fined up to $10,000, and that if sentenced to the penitentiary he would be required to serve not less than 1 year before being entitled to parole. The assistant State’s Attorney advised the court concerning the facts relevant to the offense and that defendant admitted that he had committed the burglary. The record shows, too, that it was stipulated that the offense was ground for revocation of the probation previously imposed when defendant pleaded guilty to three counts of burglary. After defendant stated that he pleaded guilty to the charge, the court was advised that “the State has agreed in exchange for the plea of guilty on an information that they would recommend a sentence of one to three years” and that a concurrent term be imposed by reason of the revocation of probation. Following that statement by the assistant State’s Attorney and the stipulation of defense counsel that the statement was correct, the court interrogated defendant concerning the waiver of a presentence investigation. The court accepted the plea, imposed sentence and admonished defendant pursuant to Rule 605(b) (58 Ill. 2d R. 605(b)).

Our examination of the transcript persuades us that despite the failure to admonish defendant concerning the mandatory parole period, the plea of guilty was intelligently and voluntarily made. The record shows clearly that defendant understood that the quid pro quo for the plea of guilty was the recommendation that there be concurrent sentences of 1 to 3 years, that defendant knew that the court was not bound to accept the recommendation and could sentence defendant to a term of not less than 1 nor more than 20 years. The indeterminate sentence imposed, together with the mandatory parole period, are substantially less than the maximum of 20 years to which defendant knew he could be sentenced. Under these circumstances we hold that the record fails to show that defendant was denied a substantial constitutional right under either the Constitution of the United States or the Constitution of Illinois.

We have considered defendant’s argument that United States ex rel. Baker v. Finkbeiner (7th Cir. 1977), 551 F.2d 180, and United States ex rel. Ferris v. Finkbeiner (7th Cir. 1977), 551 F.2d 185, require affirmance of the judgment of the appellate court. The facts here are, however, clearly distinguishable. It was not alleged in the amended post-conviction petition, nor asserted in defendant’s brief, that defendant had been promised anything more than a recommendation that the sentence be 1 to 3 years. In contrast, in Baker there was an agreement that the prison sentence would be 1 to 2 years (551 F.2d 180, 181) and in Ferris the defendant, in response to an inquiry directed to the court, was erroneously advised concerning the mandatory period of parole.

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

Appellate court reversed; circuit court affirmed.

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


author: MR. JUSTICE MORAN

text:
    (No. 50667.
    THOMAS D. THYGESEN et al., Appellants, v. EDGAR F. CALLAHAN, Director of Financial Institutions, Appellee.

      Opinion filed January 26, 1979.

      WARD, J., took no part.
    Donald E. Egan, Robert Y. Sperling, and Lee Ann Watson, of Katten, Muchin, Cities, Zavis, Pearl & Caller, of Chicago, for appellants.
    William j. Scott, Attorney General, of Springfield (Jerome Webb, Assistant Attorney General, and David Ardam, law student, of Chicago, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The circuit court of Cook County found section 19.3 of the currency exchange act (Ill. Rev. Stat. 1977, ch. 16½, par. 49.3) constitutional. Plaintiffs, two currency exchange owners and operators, were allowed a direct appeal to this court pursuant to Supreme Court Rule 302(b) (58 Ill. 2d R. 302(b)).

Section 19.3 of the Act, which became effective on October 1, 1977, provides:

“The Director [of Financial Institutions] shall, by rules adopted in accordance with the Illinois Administrative Procedure Act, formulate and issue, within 120 days from the effective date of this amendatory Act, schedules of maximum rates which can be charged for check cashing and writing of money orders by community currency exchanges and ambulatory currency exchanges. Such rates may vary according to such circumstances and conditions as the Director determines to be appropriate. The schedule so established may be modified by the Director from time to time by the same procedure. Any currency exchange may charge lower fees than those of the applicable maximum fee schedule after filing with the Director a schedule of the fees it proposes to use.
The rate schedules in effect for any currency exchange shall be prominently displayed on the premises of such currency exchanges in such fashion as shall be required by the Director.” Ill. Rev. Stat. 1977, ch. 16½, par. 49.3.

Plaintiffs each own and operate one of the approximately 613 licensed community currency exchanges in Illinois. Prior to the enactment of the section, the rates which plaintiffs and all other currency exchange licensees could charge for cashing checks and writing money orders were not regulated in any manner by the Director of Financial Institutions (defendant), by the currency exchange act, or by any other statute. Consequently, plaintiffs had set their rates in open competition with other currency exchanges, banks, savings and loan associations, food stores, drug stores and other establishments offering similar services. Plaintiffs question neither the right of the legislature to set maximum rates nor its decision to delegate to defendant the power to set maximum rates. Rather, plaintiffs direct our attention to the failure of the legislature to provide any intelligible standards or guidelines for defendant to consult in effectuating the statutory mandate to set maximum rates. The total absence of standards or guidelines, plaintiffs assert, renders the section invalid as an unconstitutional delegation of legislative power. Ill. Const. 1970, art. IV, sec. 1.

Though courts and commentators have exhaustively discussed the varied and evolving aspects of the delegation of legislative power, no meaningful consensus has been reached regarding the need for standards or guidelines to validate legislative delegation. (See Merrill, Standards — A Safeguard for the Exercise of Delegated Power, 47 Neb. L. Rev. 469 (1968); Davis, A New Approach to Delegation, 36 U. Chi. L. Rev. 713 (1969).) For this court’s most recent and comprehensive pronouncement on the delegation of power to administrative agencies, we defer to Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361. In Stofer, the court reaffirmed its adherence to the guiding principle that intelligible standards or guidelines must accompany legislative delegations of power. This court, thus, implicitly recognized both the constitutional dimensions of the principle (Ill. Const. 1970, art. IV, sec. 1) and the practical functions which standards continue to serve. Intelligible standards help guide the administrative agency in the application' of the statutes involved and, thereby, safeguard against the unwarranted or unintended extension of legislative delegation. They tend to insure that the legislature does not abdicate to the agency the legislature’s primary responsibility to determine, from among the policy alternatives, those objectives the legislation is meant to achieve. Moreover, intelligible standards are indispensable to a meaningful judicial review of any action ultimately taken by the administrative agency.

The Stofer decision should not be read as a departure from prior case law. Rather, it clearly evidenced that the court was disturbed about the inconsistent application of the principle that standards or guidelines must accompany legislative delegations of power. The most cursory reading of the case law prior to Stofer reveals that the court was justified in its concern. (Compare the rigid applications of the principle in People v. Tibbitts (1973), 56 Ill. 2d 56, and McDougall v. Lueder (1945), 389 Ill. 141, 152-55, with the permissive applications in Brown v. City of Chicago (1969), 42 Ill. 2d 501, 506, Board of Education v. Page (1965), 33 Ill. 2d 372, and People ex rel. Colletti v. Pate (1964), 31 Ill. 2d 354.) Also see 1 F. Cooper, State Administrative Law 54-70 (1965), which would abolish the requirement of standards because of its erratic application.

In an attempt to endow the requisite of intelligible standards with a conceptual foundation, the Stofer court declared that a legislative delegation is valid if it sufficiently identifies:

“(1) The persons and activities potentially subject to regulations;
(2) the harm sought to be prevented; and
(3) the general means intended to be available to the administrator to prevent the identified harm.” (Emphasis in original.) (Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 372.)

In Stofer, the legislature had delegated to the Director of Insurance the power to promulgate a standard policy as a means of ensuring uniformity in the insurance of identical risks. The legislation clearly satisfied the first prong of the test by specifying that the regulation was to apply to fire and lightning insurance issued in Illinois. As to the second prong, the court noted that the legislature had articulated its intention to prevent a chaotic proliferation of disparate fire insurance policies. In discussing the general means intended to be available to the Director to prevent the identified harm (the third prong), the court cautioned:

“[H] ad the legislature left the Director completely free to promulgate a ‘reasonable’ uniform fire insurance policy, we would have serious doubts as to the constitutionality of such uncabined discretion. [Citations.] We find, however, that the legislature has provided substantial additional standards defining the harm sought to be prevented and thereby limit [ed] the Director’s discretion.” (Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 373-74.)

The court then referred to a related statutory provision which delegated to the Director the power to order the discontinuation of any policy which contained “inconsistent, ambiguous or misleading clauses, or [any] exceptions or conditions that will unreasonably or deceptively affect the risks that are purported to be assumed by the policy ***.” The court, reasoning that the delegated authority to promulgate a reasonable uniform policy necessarily incorporated the above-quoted limitation, held that the Director’s discretion was limited sufficiently to withstand constitutional scrutiny.

Here, as in Stofer, the legislature clearly satisfied the first prong of the test. Those subject to regulation under section 19.3 of the currency exchange act are community and ambulatory currency exchanges, and the regulation is limited to the activities of cashing checks and issuing money orders. In contrast to Stofer, the legislature made no attempt to identify the “harm sought to be prevented” in delegating to defendant the power to set maximum rates and did not sufficiently identify the “means intended to be available *** to prevent the identified harm.” Section 19.3 is devoid of any reference to the harm to be remedied. The currency exchange act contains no other provision which indicates, explicitly or implicitly, general purposes which the legislature might have intended to foster with respect to setting rates for cashing checks and issuing money orders.

The legislature’s failure to convey, within the Act, the harm which it sought to remedy by the setting of maximum rates, is compounded by its failure to set forth any meaningful standards to guide defendant in setting the maximum rates. The only provision cited by defendant which in any way guides defendant’s discretion in setting maximum rates is an omnibus provision which states:

“The Director may make and enforce such reasonable, relevant regulations, directions, orders, decisions and findings as may be necessary for the execution and enforcement of this Act and the purposes sought to be attained herein.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 16½, par. 49.)

As we have already discussed, the Act fails to identify any purposes which the legislature might have sought to attain by providing for the establishment of maximum check-cashing and money-order rates. Defendant refers to various provisions in the Act that, he contends, limit his discretion to the promulgation of maximum rates which promote economic benefit and stability to both the currency exchanges and the public. The provisions cited by defendant, however, apply to regulatory matters, such as the issuance of licenses and the appointment of advisory board members, which are totally unrelated to the promulgation of maximum check-cashing and money-order rates. We find that the only statutory limitation on defendant’s discretion in establishing maximum rates is that the rates be reasonable. This court, in Stofer, rightfully expressed serious doubt as to the constitutionality of such “uncabined discretion.” Here, where the legislature has not only failed to provide any additional standards to guide defendant’s discretion, but has failed to communicate to defendant the harm it intended to prevent, it is clear that the legislature has unlawfully delegated its power to set such maximum rates.

We hold section 19.3 of the currency exchange act (Ill. Rev. Stat. 1977, ch. 16½, par. 49.3) unconstitutional; therefore, the judgment of the circuit court is reversed.

Judgment reversed.

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