author: MR. JUSTICE RYAN MR. JUSTICE WARD, MR. JUSTICE MORAN,

text:
    (No. 52547.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JIMMY EUGENE BARKER, Appellee.

      Opinion filed December 19, 1980.
    Rehearing denied January 29, 1981.

      WARD and MORAN, JJ., dissenting.

      William J. Scott, Attorney General, of Springfield, and Ronald Dozier, State’s Attorney, of Bloomington (Donald B. Mackay, Melbourne Noel, Thomas E. Holum, and William M. Wippold, Assistant Attorneys General, of Chicago, and Gary J. Anderson and Jane F. Bularzik, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Richard J. Wilson and Daniel D. Yuhas, Deputy Defenders, and James K. Zerkle, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The defendant, Jimmy Eugene Barker, pleaded guilty to two counts of attempted murder in the circuit court of McLean County. After sentencing in accordance with a written plea agreement, the defendant moved to vacate his guilty pleas under Supreme Court Rule 604(d) (73 Ill. 2d R. 604(d)). This motion was denied. The appellate court, in a Rule 23 order (73 Ill. 2d R. 23), reversed the defendant’s two convictions for attempted murder and remanded the cause to allow defendant to plead anew. (72 Ill. App. 3d 1110.) We allowed the State’s petition for leave to appeal. 73 Ill. 2d R. 315.

The defendant urges us to affirm the appellate court’s order, claiming that (1) the indictment to which he pleaded guilty was fatally defective for failing to allege an essential element of the offense, and (2) his guilty pleas were not supported by a factual basis as required by Supreme Court Rule 402 (73 Ill. 2d R. 402), and (3) that his pleas were not voluntary since the trial judge failed to admonish him as to the “intent to kill,” an essential element of attempted murder. We do not agree and reverse.

On May 25, 1978, an indictment replacing an information charged the defendant with two counts of unlawful use of weapons, one count of armed violence, and two counts of attempted murder. The attempted-murder counts, to which the defendant later pleaded guilty, were identical in their language except for the name of the victim. They stated of the defendant that “he knowingly with intent to commit the offense of murder, did acts which constitute a substantial step towards the commission of murder, to wit: firing a sawed-off shotgun in the direction of Ed Moser [Richard Ryan], a police officer.” A negotiated plea agreement was presented to the court on July 6, 1978, in which the defendant agreed to plead guilty to the two counts of attempted murder. In return, the State agreed to nol-pros the remaining three counts, as well as several other unrelated offenses. It was further agreed that the defendant would not be sentenced to more than 20 years’ imprisonment. A hearing was held at which the attempted-murder charges were read to the defendant. He was also admonished in accordance with Supreme Court Rule 402 (73 Ill. 2d R. 402). At no time was the defendant specifically informed by the court that the “intent to kill” was a necessary element of attempted murder. After admonishing the defendant, the court requested the prosecutor to relate the factual basis for the pleas. After the prosecutor did so, the court asked the defendant if he agreed with the prosecutor’s statement and if that was what in fact happened. The defendant answered in the affirmative to both questions. The court then found that there was a factual basis for the pleas and that the pleas were voluntary. The court, after accepting the pleas of guilty, ordered a presentence investigation and report and continued the matter for a sentencing hearing.

A sentencing hearing was held on August 10, 1978, during which the defendant stated, “I never had no intentions of taking no one’s life. I was just scared that night and trying to get away.” After being sentenced to 20 years’ imprisonment, the maximum term provided by the agreement, defendant filed a motion to withdraw his pleas of guilty. Defendant’s motion contended that he was not properly admonished as to the nature of the charge and that the factual basis underlying his pleas of guilty did not establish the requisite intent to kill. The motion was denied.

In the appellate court the defendant challenged the denial of his motion and for the first time raised the claim that the indictment was defective. The appellate court ruled that both the indictment and the factual basis were sufficient but reversed the conviction as a matter of “fundamental fairness *** since it is arguable that his plea related to the lesser mental state [for murder],” that is, a specific intent other than to kill. Throughout all of these proceedings, the defendant was represented by counsel, and no claim has been made challenging the adequacy of that representation.

Defendant argues that the indictment to which he pleaded guilty was fatally defective for failing to allege an essential element of the offense — the intent to kill. We do not agree. In People v. Trinkle (1977), 68 Ill. 2d 198, this court held that, to convict one for attempted murder, the State must prove that the accused acted with the intent to kill. Since Trinkle, the court has adhered to that holding. (See People v. Harris (1978), 72 Ill. 2d 16; People v. Roberts (1979), 75 Ill. 2d 1; People v. Jones (1979), 81 Ill. 2d 1.) The defect common to all those cases was not, as is claimed here, a failure to allege an essential element of attempted murder. Rather, the error arose from defining the substantive offense of murder in the instructions in such a way that a lesser mental state other than intent to kill would seemingly support a conviction for attempted murder.

In Hams, for example, the defendant was charged with attempted murder. The jury was instructed both as to the elements of an attempt and the substantive offense of murder. The instruction on murder stated:

“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual.” (72 Ill. 2d 16, 20.)

This instruction was held defective for it allowed the jury to return a guilty verdict if the defendant acted only with intent to do great bodily harm and if he did not have the intent to kill. If it were not necessary to prove intent to kill to convict one for attempted murder, any defendant who committed a battery intending only to harm his victim would automatically be guilty of attempted murder. People v. Trinkle (1977), 68 Ill. 2d 198, 201.

The guilt of the defendant in the case before us was not determined by a trier of fact but by pleas, so we do not have the possibility of a jury, because of an erroneous instruction relative to the requisite intent, convicting a defendant when he, in fact, did not have the intent to kill. It was the erroneous instruction defining murder which was present in People v. Muir (1977), 67 Ill. 2d 86, People v. Trinkle (1977), 68 Ill. 2d 198, People v. Harris (1978), 72 Ill. 2d 16, and People v. Roberts (1979), 75 Ill. 2d 1, that created the difficulty in those cases. In fact, the language that was so troublesome, which is found in the alternate definitions of murder — “He either intends to kill or do great bodily harm ***” and “He knows that such acts create a strong probability of death or great bodily harm ***” (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 1(a)(1), 9 — 1(a)(2))—is totally absent in this case. None of this language was contained in the indictment. It was not used by the court when admonishing the defendant. At no stage of the proceeding was it even intimated that a person could be found guilty of attempted murder if he only had the intent to do great bodily harm.

As stated earlier, the indictment charged that the defendant with the intent to commit the offense of murder did acts which constituted a substantial step toward the commission of murder, to wit: firing a sawed-off shotgun in the direction of a police officer. The Criminal Code of 1961, in defining the inchoate offense of attempt, provides:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4(a).)

In this case, the literal requirement of the statute has been complied with. The defendant was charged with the attempt to commit a specific offense (murder) and with doing acts which constituted a substantial step toward the commission of that offense (firing a sawed-off shotgun in the direction of a police officer). Admittedly the indictment could have been in more detail and, in addition to the two allegations it now contains, could have further stated that the acts were performed with the intent to kill. However, this further allegation would have been redundant. Under section 9 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)) a person may commit murder without specifically intending to kill anyone. However, since all murders involve a killing, a person cannot intend to commit murder without intending to kill. It is not logical to argue that an indictment charging one with the intent to commit murder does not charge that he had the intent to kill. Since the indictment has charged that the defendant, with the intent to commit murder, did certain acts, it is unnecessary to again charge that the acts he performed, as a substantial step toward the commission of that offense, were committed with the specific intent to kill. If the indictment had only-charged the defendant with the intent to kill and did not include the allegation that the defendant acted with the intent to commit murder, it would have been defective under section 8 — 4(a) of the Criminal Code, quoted above, in that it would not have charged the defendant with an intent to commit a specific offense. The act of killing, or even intending to kill, is not necessarily a criminal offense (self-defense, for example).

The indictment is not defective. It is sufficiently clear and certain to apprise the defendant of the crimes with which he stands charged in order that he may intelligently prepare a defense and plead the judgments in bar of subsequent prosecutions for the same offenses. (People v. Patrick (1967), 38 Ill. 2d 255, 257.) The indictment charges the offenses in the language of the statute and, contrary to defendant’s contention, does not omit an essential element.

Defendant next argues that his guilty pleas were improperly accepted since there was no factual support regarding an essential element of the offense — intent to kill. Supreme Court Rule 402(c) requires that, before a court enters final judgment on a plea of guilty, there must be a determination that a factual basis exists for the plea. (73 Ill. 2d R. 402(c).) However, the quantum of proof necessary to establish a factual basis for the plea is less than that necessary to sustain a conviction after a full trial. (People v. Nyberg (1976), 64 Ill. 2d 210, cert. denied (1977), 430 U.S. 970, 52 L. Ed. 2d 362, 97 S. Ct. 1654; People v. Ginder (1975), 26 Ill. App. 3d 295; People v. Arnold (1974), 18 Ill. App. 3d 95.) All that is required to appear on the record is a basis from which the judge could reasonably reach the conclusion that the defendant actually committed the acts with the intent (if any) required to constitute the offense to which the defendant is pleading guilty. (People v. Hudson (1972), 7 Ill. App. 3d 800.) In evaluating the sufficiency of the factual basis to support a plea of guilty, a trial judge is in much the same position and would apply similar standards as those used in determining the sufficiency of the State’s evidence at trial to withstand a motion for a directed verdict of not guilty.

In the instant case a factual recital was made by the State’s Attorney, who described the events leading up to a gun battle in which the defendant was injured. The recital described a chase on foot during which five police officers pursued Barker and attempted to surround him. Speaking specifically of the shooting incident, where the defendant employed a sawed-off shotgun, the State’s Attorney said, “Mr. Barker fired one shot in the direction of Detective Richard Ryan and also fired one shot in the direction of Officer Ed Moser.” The following discussion was then held in court:

“THE COURT: Mr. Barker, you’ve heard what Mr. Murphy said here this morning about what happened in this incident, I take it.
THE DEFENDANT: Yes.
THE COURT: You understand what he said?
THE DEFENDANT: Yes, sir.
THE COURT: And is there any question about what he said that you have?
THE DEFENDANT: No.
THE COURT: Do you agree that that’s what in fact did happen?
THE DEFENDANT: Yes.”

From the above facts, freely adopted and in no way controverted by the defendant, a jury could infer an intent to kill. While the intent to kill is not the only inference to be drawn from firing a sawed-off shotgun in the direction of police officers, it is a permissible one. This inference, drawn from the uncontroverted fact that defendant committed the act of firing the weapon, provides a factual basis for both elements of attempted murder, the intent to commit the offense of murder and the doing of acts which constitute a substantial step toward the commission of that offense. Thus the provisions of Rule 402 (c) have been satisfied. We discuss later the effect of a defendant’s protestation of innocence upon compliance with Rule 402(c).

Defendant argues that the trial court’s failure to admonish him with respect to the requisite “intent to kill” renders his plea involuntary. We find the trial court’s admonishments were sufficient and that the defendant has failed to establish a basis for withdrawal of his guilty plea.

In People v. Krantz (1974), 58 Ill. 2d 187, this court held that Rule 402 requires only substantial and not literal compliance with its provisions. (People v. Krantz (1974), 58 Ill. 2d 187, 192.) The holding of Krantz was expanded in People v. Robinson (1976), 63 Ill. 2d 141, to include the notion that a guilty plea, accepted in substantial compliance with Rule 402, will not be set aside absent an allegation and proof of prejudice to the accused. (People v. Robinson (1976), 63 Ill. 2d 141, 146.) As noted earlier, the indictment adequately alleged the requisite intent to kill, an element essential to a conviction for attempted murder. The indictments were each read to the defendant before his guilty pleas were accepted. He also acknowledged having received copies of them. In reply to the court as to each indictment, he stated that he had no question about “what the charge is or what it means.” In People v. Robinson this court stated that the requirement of Rule 402(a)(1) (58 Ill. 2d R. 402(a)(1)) is two pronged. The court, in admonishing the defendant, (1) must inform him of the nature of the charge and (2) must determine that he understands the nature of the charge. In this case the court did not enter judgment on the pleas of guilty until after the prosecutor had stated the factual basis for them. After the factual basis had been stated, the court questioned the defendant concerning them and the defendant agreed that “that’s what in fact did happen.” This acknowledgment, coupled with defendant’s response following the reading of the indictment to him in open court that he had no question about “what the charge is or what it means,” satisfied the requirement of substantial compliance with the provisions of Rule 402. The record satisfactorily shows that the defendant was informed of the nature of the charges, including the requirement of the specific intent to commit murder, and that he understood the nature of the charges. The fact that the court did not, in addition to informing the defendant he was charged with committing the acts with the intent to commit murder, also inform him that he must have had the specific intent to kill does not demonstrate a failure to substantially comply with Rule 402, nor does it indicate that the pleas were not voluntary.

The defendant asserts that his statement that he didn’t intend to kill anyone made on August 10, 1978, at the sentencing hearing, which he argues negated the requisite mental state for the offense, put the court on notice of his misapprehension of the law and rendered his pleas involuntary. In support of this point, the defendant relies on Henderson v. Morgan (1976), 426 U.S. 637, 49 L. Ed. 2d 108, 96 S. Ct. 2253. The accused in Henderson, charged with first-degree murder in a State trial court, pleaded guilty to second-degree murder without having been informed by the court of the requisite intent to kill. At a sentencing hearing, the defendant’s attorneys made a statement explaining their client’s version of the events, particularly noting that respondent “meant no harm to that lady” (426 U.S. 637, 643, 49 L. Ed. 2d 108, 113, 96 S. Ct. 2253, 2256). Defendant’s efforts at vacating his plea having failed, he filed a petition for writ of habeas corpus in the United States district court. At an evidentiary hearing on his petition, the defendant testified that he would not have pleaded guilty had he known that an intent to cause death was an element of the offense.

A significant difference between our case and Henderson is found in the fact that no formal charge of second-degree murder was ever made against the defendant in Henderson. He had originally been charged with first-degree murder, a crime which requires a different mental state than second-degree murder. His attorneys had attempted to have this charge reduced to manslaughter. The prosecution, however, would agree to nothing less than second-degree murder. Defendant’s attorneys recommended that he plead to the reduced charge, but never explained to him the required intent for that offense. The Supreme Court noted that had the defendant been charged with second-degree murder, the indictment would necessarily have included the charge of the required mental state. The Supreme Court then noted that had he been charged in an indictment which alleged the necessary mental state, that element of the offense could then have been proved by the objective evidence, even if the defendant’s actual state of mind were consistent with innocence.

In our case, unlike in Henderson, the indictment informed the defendant that he was charged with performing certain acts with the intent to commit murder. Since he was charged with having the requisite mental state, as the court stated in Henderson, this element of the offense could be proved by the objective evidence that the defendant fired the shotgun in the direction of the officers. From the evidence summarized in the statement of the factual basis, a jury could find the defendant guilty of attempted murder regardless of his protestations that he did not intend to kill anyone when he fired the gun. We therefore do not agree with the defendant’s contention that his statement made at the sentencing hearing negated the requisite mental state or that it put the court on notice of his misapprehension of the law so as to render his pleas involuntary.

This is essentially the rationale of the Supreme Court in North Carolina v. Alford (1970), 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160. In that case the defendant was indicted for first-degree murder, a capital offense in North Carolina. On recommendation of his attorney, the defendant pleaded guilty to second-degree murder. Before accepting the plea, the court heard a summary explanation of the State’s case, after which the defendant was permitted to testify. He stated he had not committed the murder but was pleading guilty because he was faced with the threat of a death sentence if he did not do so. Nonetheless, he reaffirmed his desire to plead guilty. The Supreme Court stated that without more than the defendant’s protestations of innocence, it could be argued that a conviction entered on his guilty plea was invalid since his assertion of innocence negated his admission of guilt, which, as was observed in Brady v. United States (1970), 397 U.S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463, is normally central to the plea and the foundation for entering judgment against the defendant. The court, however, noted in Alford that there was strong evidence of guilt which substantially negated the defendant’s claim of innocence and that the defendant may have intelligently concluded that because of this evidence his interest required the entry of a guilty plea. The Supreme Court concluded that because of the strong factual basis for the plea and the defendant’s desire to enter the plea despite his professed belief in his innocence, the judge did not commit constitutional error in accepting it.

While Alford was decided on a constitutional basis, it noted that various State and Federal decisions cautioned that pleas of guilty, coupled with claims of innocence, should not be accepted unless there is a factual basis for the plea. The court also pointed out that Rule 11 of the Federal Rules of Criminal Procedure expressly provides that the court shall not enter judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea. 400 U.S. 25, 38 n.10, 27 L. Ed. 2d 162, 171-72 n.10, 91 S. Ct. 160, 167 n.10.

Rule 402(c) is based upon Rule 11 of the Federal Rules of Criminal Procedure. Although a record which shows an absence of a factual basis for a plea would reflect noncompliance with Rule 402(c), a court is not precluded from accepting a plea of guilty, in spite of a defendant’s claim of innocence, if the record reflects a factual basis from which a jury could find the defendant guilty of the offense to which the plea was entered. In our case the strong factual basis is such that a jury could find that the defendant had the intent to commit murder even though he professes that when he fired the shots he did not intend to kill anyone. Under such circumstances, the court would not be in violation of any constitutional right, or in violation of our Rule 402(c), in accepting pleas of guilty. We likewise find that the court in this case, for the same reasons, did not abuse its discretion in its denial of defendant’s motion to withdraw his pleas of guilty.

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

Appellate court reversed; circuit court affirmed.

MR. JUSTICE WARD,

dissenting:

I join with Mr. Justice Moran in dissenting. I fear that the majority opinion will renew the confusion that developed from People v. Trinkle (1977), 68 Ill. 2d 198.

MR. JUSTICE MORAN,

also dissenting:

My departure from the majority stems from a fundamental disagreement as to the meaning of the phrase “intent to commit the offense of murder.” The majority claims that such phrase is synonymous with “intent to kill.” I disagree. In murder, death of a person occurs. To sustain a conviction for such offense the State may prove any one of three mental states: intent to kill, intent to cause great bodily harm, or knowledge that the act would create a strong probability of death or great bodily harm. This is not true when the person survives and the perpetrator is charged with attempted murder. The offense of attempt is a specific intent crime. Where the offense is attempted murder, one and only one mental state must be charged and proved — intent to kill. It is not sufficient that a defendant intentionally or knowingly caused great bodily harm, for then he would be chargeable with aggravated battery — not attempted murder. (See Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4(a); People v. Muir (1976), 38 Ill. App. 3d 1051, 1057.) This court has repeatedly held that intent to kill is the necessary mental state to be proved where the offense charged is attempted murder. (People v. Trinkle (1977), 68 Ill. 2d 198; People v. Harris (1978), 72 Ill. 2d 16; People v. Roberts (1979), 75 Ill. 2d 1; People v. Jones (1979), 81 Ill. 2d 1.) Thus, when an indictment states that a defendant acted with the “intent to commit the offense of murder,” the charge not only fails to eliminate the other two mental states which can constitute murder — intent to cause great bodily harm or knowledge that the act will create a strong probability of death or great bodily harm — but also fails to charge a necessary element of the offense of murder.

The sixth amendment to the Constitution of the United States and article I, section 8, of the Constitution of Illinois require that, in criminal prosecutions, a defendant has the right to be apprised of the nature and cause of the accusations against him. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8.) This constitutional requirement is embodied in section 111 — 3(a)(3) of the Code of Criminal Procedure of 1963, which directs that a criminal charge set forth “the nature and elements of the offense charged” (Ill. Rev. Stat. 1977, ch. 38, par. Ill — 3(a)(3)).

The question of when an indictment sufficiently informs a defendant of “the nature and cause of the accusation” had been painstakingly reiterated by the United States Supreme Court. In 1850 that court confronted the issue of whether an indictment for forgery is fatally defective for failure to charge that the crime was committed with a felonious intent. The court stated:

“The general rule is, that the charge must be laid in the indictment so as to bring the case within the description of the offence as given in the statute, alleging distinctly all the essential requisites that constitute it. Nothing is to be left to implication or intendment. ***
In all cases of felonies at common law, and some, also, by statute, the felonious intent is deemed an essential ingredient in constituting the offence; and hence the indictment will be defective, even after verdict, unless the intent is averred. The rule has been adhered to with great strictness; and properly so, where this intent is a material element of the crime.” (United, States v. Staats (1850), 49 U.S. (8 How.) 41, 44, 12 L. Ed. 979, 981.)

See United States v. Heller (6th Cir. 1978), 579 F.2d 990, 998-99; United States v. Morrison (9th Cir. 1976), 536 F.2d 286, 287-89; United States v. Mekjian (5th Cir. 1975), 505 F.2d 1320, 1324; United States v. Wabaunsee (7th Cir. 1975), 528 F.2d 1, 4; United States v. Musgrave (5th Cir. 1971), 444 F.2d 755, 761.

In United States v. Cook (1872), 84 U.S. (17 Wall.) 168, 21 L. Ed. 538, the court again addressed the question of when an indictment will be found insufficient to charge a defendant. The court stated:

“[T] he rule is universal that every ingredient of which the offense is composed must be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested, or reversed on error.” (United States v. Cook (1872), 84 U.S. (17 Wall.) 168, 174, 21 L. Ed. 538, 539.)

See United States v. Vesaas (8th Cir. 1978), 586 F.2d 101, 103-04; United States v. Camp (8th Cir. 1976), 541 F.2d 737, 741; United States v. Wabaunsee (7th Cir. 1975), 528 F.2d 1, 3-4.

In United States v. Carll (1882), 105 U.S. 611, 26 L. Ed. 1135, the court ruled that an indictment for forgery failed to charge the defendant with any crime when it did not allege that the defendant knew the instruments in question to be false, forged, counterfeited, and altered. “The omission is a matter of substance, and not a ‘defect or imperfection in matter of form only,’ ***.” United States v. Carll (1882), 105 U.S. 611, 613, 26 L. Ed. 1135, 1136.

The court again emphasized:
“No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly, and not inferentially, or by way of recital.
* * *
*** Such particulars are matters of substance, and not of form, and their omission is not aided or cured by the verdict.” (United States v. Hess (1888), 124 U.S. 483, 486-89, 31 L. Ed. 516, 517-18, 8 S. Ct. 571, 573-74.)

Russell v. United States (1962), 369 U.S. 749, 765, 8 L. Ed. 2d 240, 251, 82 S. Ct. 1038, 1047-48; United States v. Heller (6th Cir. 1978), 579 F.2d 990, 999; United States v. King (9th Cir. 1978), 587 F.2d 956, 963; United States v. Camp (8th Cir. 1976), 541 F.2d 737, 739-40; United States v. Mekjian (5th Cir. 1975), 505 F.2d 1320, 1324; United States v. Huff (5th Cir. 1975), 512 F.2d 66, 69; United States v. Wabaunsee (7th Cir. 1975), 528 F.2d 1, 3-4; United States v. Musgrave (5th Cir. 1971), 444 F.2d 755, 761.

Indictments which fail to allege an essential element must be distinguished from indictments which are defective only as to matters of form. Defects which are merely matters of form and not of substance are cured by verdict, and objections after verdict come too late, regardless of the fact that they might have rendered an indictment bad if timely raised. Joplin Mercantile Co. v. United States (1915), 236 U.S. 531, 536, 59 L. Ed. 705, 708, 35 S. Ct. 291, 293; United States v. Huff (5th Cir. 1975), 512 F.2d 66, 69.

It is clear that all fundamental rules above set forth have retained “their full vitality under modern concepts of pleading.” Russell v. United States (1962), 369 U.S. 749, 765-66, 8 L. Ed. 2d 240, 252, 82 S. Ct. 1038, 1048; Hamling v. United States (1974), 418 U.S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887; United States v. Vesaas (8th Cir. 1978), 586 F.2d 101; United States v. Heller (6th Cir. 1978), 579 F.2d 990; United States v. King (9th Cir. 1978), 587 F.2d 956; United States v. Camp (8th Cir. 1976), 541 F.2d 737; United States v. Morrison (9th Cir. 1976), 536 F.2d 286; United States v. Huff (5th Cir. 1975), 512 F.2d 66; United States v. Wabaunsee (7th Cir. 1975), 528 F.2d 1; United States v. Mekjian (5th Cir. 1975), 505 F.2d 1320; United States v. Musgrave (5th Cir. 1971), 444 F.2d 755.

The defendant’s right to know the nature and cause of the offense is guaranteed not only by the Constitution of the United States, but also by the Constitution of the State of Illinois. It “is no empty technicality, but a substantial provision that may not be ignored.” People v. Green (1938), 368 Ill. 242, 254, overruled in part on other grounds in People v. Griffin (1967), 36 Ill. 2d 430; People v. Abrams (1971), 48 Ill. 2d 446, 458-59.

Illinois cases have shown a long history of treating the “nature and elements” requirement of an indictment in conformance with the dictates of the United States Supreme Court. In People v. Sowrd (1938), 370 Ill. 140, 143-44, it was stated:

“No rule of law is better settled than that an indictment or information must charge all the elements of the offense. As we said in People v. Sheldon, 322 Ill. 70: ‘An indictment or information charging an offense defined by statute should be as descriptive of the offense as is the language of the statute and should allege every substantial element of the offense as defined by the statute. ’ The information here, put to that test, does not charge the defendant with any offense known to the law.
We said in People v. Green, 368 Ill. 242: ‘It is a rule, even in civil pleading, that if a complaint fails to state a cause of action the defect may be reached and the question raised on writ of error, even if there has never been any demurrer, motion for a new trial or motion in arrest of judgment. * * * The same rule applies to criminal pleading, and if an indictment is void the error may be reached in this court even though there has been a plea of guilty in the trial court.’ ”

See People v. Patrick (1967), 38 Ill. 2d 255, 257; People v. Furman (1962), 26 Ill. 2d 334, 336; People v. Harris (1946), 394 Ill. 325, 327; People v. Chiafreddo (1942), 381 Ill. 214, 219-20.

Technical objections to matters of form are waived by a defendant’s failure to present a motion to quash. (People v. Barney (1959), 15 Ill. 2d 503, 507; People u. Harris (1946), 394 Ill. 325, 327; People v. Pond (1945), 390 Ill. 237, 239;People v. Novotny (1939), 371 Ill. 58, 61.) However, if an indictment fails to allege an essential element of the offense charged, the sufficiency of the indictment may be attacked by a motion to quash, motion in arrest of judgment, or an appeal. (People v. Furman (1962), 26 Ill. 2d 334, 335; People v. Valley Steel Products Co. (1978), 71 Ill. 2d 408, 425; People v. Gregory (1974), 59 Ill. 2d 111, 112; People v. Edge (1950), 406 Ill. 490, 494; People v. Nickols (1945), 391 Ill. 565, 571; People v. Sword (1938), 370 Ill. 140, 143-44; People v. Green (1938), 368 Ill. 242, 250-51, overruled in part on other grounds in People v. Griffin (1967), 36 Ill. 2d 430; People v. Minto (1925), 318 Ill. 293, 295.) Such an indictment will be subject to attack even if the accused has submitted a plea of guilty. “ ‘The effect of a plea of guEty is a record admission of whatever is weU aUeged in the indictment. If the latter is insufficient it confesses nothing.’ ” Klawanski v. People (1905), 218 Ill. 481, 484. See also People v. Furman (1962), 26 Ill. 2d 334, 335; People v. Nickols (1945), 391 Ill. 565, 571; People v. Pond (1945), 390 Ill. 237, 239; People v. Green (1938), 368 Ill. 242, 251, overruled in part on other grounds in People v. Griffin (1967), 36 Ill. 2d 430; People v. Minto (1925), 318 Ill. 293, 295; People v. Wallace (1925), 316 Ill. 120, 122.

Since the indictment here faEs to clearly and unambiguously set forth the essential element of specific intent to kEl, it is fatally defective and cannot support a conviction. This is true despite the fact that the defendant submitted a plea of guEty, because such a plea only confesses that which is clearly charged in the indictment. Since the indictment charges no offense, the plea of guEty cannot cure the defect.

The majority in the present case found the indictment valid by a strained interpretation of People v. Trinkle (1979), 68 Ill. 2d 198, People v. Harris (1978), 72 Ill. 2d 16, People v. Roberts (1979), 75 Ill. 2d 1, and People v. Jones (1979), 81 Ill. 2d 1. The majority emphasized that the defect in each of the those cases was in the jury instructions. It concluded that since there was a guilty plea tendered by the defendant here, there was no danger of misinforming a jury. However, the basic thrust of those cases was to discard forever the notion that the mental states of intent to do great bodily harm and knowledge that such act would cause death or great bodily harm could suffice to constitute attempted murder. The necessity that the “intent to kill” be clearly set out is even more crucial when the defendant submits a plea of guilty to assure that the defendant’s rights are not lightly cast aside. He must know, after all, the exact offense to which he admits guilt. Moreover, the fact that, in the series of cases beginning with Trinkle, the reversible error was in the instructions does not support the conclusion that a similarly fatal error cannot be contained in an indictment.

The majority also discounts the Trinkle series of cases by pointing out that in each the alternative definition of murder was recited in the instructions, which included the mental states of “intent to do great bodily harm” and “knowledge that such acts create a strong probability of death or great bodily harm.” In the present case because the defendant tendered a plea of guilty, the problem of erroneous instructions was necessarily absent. Moreover, the majority points out that the indictment and admonishment did not include the language found to be troublesome in the Trinkle series of cases — “intent to do great bodily harm” and “knowledge that such acts create a strong probability of death or great bodily harm.” However, this misses the point completely. It is the failure to include the essential element of “intent to kill” that is the problem. The simple absence of other erroneous language cannot cure this flaw.

The majority’s statement that “the indictment could have been in more detail” (83 Ill. 2d at 326) is a gross understatement. The inclusion of intent to kill is not a detail. It is the cornerstone of the indictment and without it the indictment is void. The majority’s claim that the inclusion of the intent to kill would have been “redundant” (83 Ill. 2d at 326) is obviously absurd, since there was never mention of any specific intent in the first instance.

The majority attempts to bolster its holding by stating that “[i] f the indictment had only charged the defendant with the intent to kill and did not include the allegation that the defendant acted with the intent to commit murder, it would have been defective *** in that it would not have charged the defendant with an intent to commit a specific offense.” (83 Ill. 2d at 327.) This adds nothing to the argument as to the correctness of the instant indictment, since a converse proposition cannot be used, logically, to prove the reverse premise.

The end result is that nowhere in the indictment is the defendant notified that he must have had the intent to kill in order for his act to constitute the offense of at-temped murder. The legal term “murder” does not and cannot supply this omission. Consequently, the indictment is void and cannot support a conviction.

The majority rejects defendant’s argument that the trial court’s failure to admonish him with respect to the necessary element of “intent to kill” rendered his plea involuntary. By citing People v. Krantz (1974), 58 Ill. 2d 187, it points out that Supreme Court Rule 402 “requires only substantial and not literal compliance with its provisions.” (83 Ill. 2d at 329.) I agree that substantial compliance is generally necessary when a court admonishes a defendant prior to accepting a tendered guilty plea. However, it is constitutionally mandatory that a defendant be specifically informed of each and every essential element of the offense to which he confesses guilt. This requirement must be followed to the letter. I find the question to be controlled by Henderson v. Morgan (1976), 426 U.S. 637, 49 L. Ed. 108, 96 S. Ct. 2253. In Henderson, the defendant collaterally attacked his conviction, claiming that his plea of guilty was involuntary because he had never been informed that intent to cause death was a necessary element of second-degree murder. The defendant was indicted for first-degree murder after allegedly stabbing the owner of a farm on which he lived and worked. The indictment charged that he “willfully” stabbed the victim. Defendant tendered a plea of guilty to the lesser included offense of murder in the second degree. Although he was admonished as to the consequences of his guilty plea, he was at no time informed that the intent to cause the death of the victim was an element of the offense of second-degree murder. At the sentencing hearing, the defendant stated that he “meant no harm to that lady.”

The Supreme Court accepted the prosecutor’s assertion that the evidence pointing to the guilt of the defendant was overwhelming, yet stated:

“Nevertheless, such a plea cannot support a judgment of guilt unless it was voluntary in a constitutional sense. And clearly the plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” (Henderson v. Morgan (1976), 426 U.S. 637, 644-45, 49 L. Ed. 2d 108, 114, 96 S. Ct. 2253, 2257.)

The court found that the failure of the court to inform the defendant of the essential element of “intent to cause death” deprived the accused of his constitutional right to receive “real notice of the true nature of the charge against him” and rendered his plea involuntary. The court reiterated:

“There is nothing in this record that can serve as a substitute for either a finding after trial, or a voluntary admission, that respondent had the requisite intent. ***
***
*** [I] t also forecloses the conclusion that the error was harmless beyond a reasonable doubt, for it lends at least a modicum of credibility to defense counsel’s appraisal of the homicide as a manslaughter rather than a murder.” (Henderson v. Morgan (1976), 426 U.S. 637, 646-47, 49 L. Ed. 2d 108, 115-16, 96 S. Ct. 2253, 2258-59.)

As a result, the court affirmed the district court’s decision to set aside the guilty plea as it was involuntary and violated due process of law.

In the present case, the defendant was never informed by the court before his plea of guilty was accepted that the “intent to kill” was an essential element of attempted murder. He was informed of the nature of the charge against him by the reading of the indictment, which, as we have already stated, failed to contain the essential element of “intent to kill.” Consequently, the defendant’s plea, like that in Henderson, was involuntary, and the judgment of conviction was entered without due process of law. As in Henderson, too, the error cannot be claimed as harmless. The defendant was observed by police running from the scene of a recently reported crime. He was pursued by five police officers. The defendant, at the sentencing hearing, related his version of the transaction:

“I started running. They were firing. They shot me four times. I turned around and fired. I don’t know why I fired. They was firing at me, and I was hit. I just lost my head. *** I never had no intention of taking no one’s life. I was just scared that night and trying to get away.”

As in Henderson, the testimony of the defendant as to his state of mind at the time of the commission of the offense “lends at least a modicum of credibility” to his claim that he lacked the specific intent to kill. This error was not harmless and requires a reversal of his conviction.

The majority viewed the testimony of defendant protesting his lack of intent to kill as irrelevant in view of his decision to plead guilty and in view of the factual basis supporting such guilt. The majority cites North Carolina v. Alford (1970), 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160, for the proposition that a court may validly accept a plea of guilty from a defendant who simultaneously asserts his innocence. I believe that this case is inapposite, since in Alford the defendant knew all of the essential elements of the offense to which he pleaded guilty. Under the circumstances there the defendant could make an intelligent and informed decision to elect to plead guilty. Such a plea was obviously voluntary.

In the present case, the defendant did not know that the “intent to kill” was necessary to constitute the offense of attempted murder. Because he confessed to an offense without knowing that he must have intended to kill the victim, his plea admitted to nothing and was involuntary.

For the reasons stated, I would reverse.


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 52517.
    LAWRENCE A. BROWN, Appellant, v. DECATUR MEMORIAL HOSPITAL, Appellee.

      Opinion filed December 1, 1980.

      Jerome Mirza 8c Associates, Ltd., of Bloomington (David V. Dorris, of counsel), for appellant.
    Samuels, Miller, Schroeder, Jackson 8c Sly, of Decatur (Carl R. Miller and Nicholas J. Neiers, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The plaintiff, Lawrence A. Brown, filed a complaint in the circuit court of Macon County alleging that he sustained injuries as a result of the negligence of the defendant, Decatur Memorial Hospital, while he was a patient in that institution. The dismissal of two counts of that complaint was affirmed in an earlier appeal (51 Ill. App. 3d 1051). Following a subsequent trial upon an amended complaint, the jury returned a verdict in favor of defendant and plaintiff appealed. The appellate court affirmed (74 Ill. App. 3d 436), and we subsequently granted leave to appeal. We affirm.

Evidence adduced at trial indicated that plaintiff, who had a history of alcoholism, was taken to the emergency room of the Decatur Memorial Hospital, and was subsequently admitted to the hospital as an acute and chronic alcoholic. The emergency room doctor ordered plaintiff given an intramuscular injection of paraldehyde, a sedative used to sober up alcoholics. At trial the doctor stated that the plaintiff complained of stomach pains and that paraldehyde could cause delirium in the presence of pain, but testified that he could find no physical cause for plaintiff’s complaints. Although plaintiff’s brother and sister-in-law, who observed him at intervals during the preadmission period, indicated he was “trembly” and feeble, and the brother thought he was not rational, the emergency room doctor testified he appeared rational, coherent and walked without staggering. Members of the hospital staff who dealt with him during the several hours between his admission and the time he was injured all agreed that he was rational, coherent and capable of walking steadily. When he was taken to a room in the hospital, some matches were taken from him and placed in the drawer at a bedside table. Subsequently plaintiff was placed in a restraining jacket and secured to his bed. A fire later broke out in plaintiff’s bedding and he received the injuries which are the basis of this action. No one testified as to the origin of the fire. With the exception of being burned, plaintiff testified he could remember nothing from the time shortly before he was placed in the ambulance until several days after he received the burns. Plaintiff’s complaint, however, alleged that the fire started while he was lighting matches.

Plaintiff’s theory of the case was that the defendant was negligent in failing to properly supervise him or to deny him access to matches at a time when it knew he was incapable of exercising ordinary care for his own safety. Plaintiff further contended that contributory negligence is not a defense when a hospital knows that the patient is not capable of exercising ordinary care in his own behalf. This theory was embodied in plaintiff’s instructions concerning contributory negligence, the issues and the burden of proof. The trial court gave plaintiff’s issues instruction but also gave defendant’s contributory negligence and burden of proof instructions, which did not take into account plaintiff’s proposed exception to the contributory negligence rule. The jury subsequently returned a verdict for the defendant, and on appeal the plaintiff argues that the trial court’s decision to refuse his instructions and to give the defendant’s was erroneous. In addition to opposing plaintiff’s arguments, defendant urges that evidence of plaintiff’s incapacity to care for himself is so lacking that defendant’s motion for a directed verdict should have been allowed regardless of whether incapacity to exercise due care is recognized as an exception to the contributory negligence bar. While defendant’s position is certainly arguable, we need not consider its merits since we affirm for other reasons.

The appellate court affirmed in a decision without a majority opinion. Mr. Justice Mills concurred in affirming because the plaintiff’s post-trial motion was not sufficiently specific to preserve the instructions issue. (74 Ill. App. 3d 436, 438-40 (Mills, J., specially concurring).) Mr. Justice Trapp, also specially concurring in the affirmance, thought that the post-trial motion was adequate, but voted to affirm because he believed plaintiff’s refused instructions were not legally correct. (74 Ill. App. 3d 436, 441-45 (Trapp, J., specially concurring).) Mr. Justice Green dissented, believing the giving of certain of defendant’s instructions constituted reversible error. 74 Ill. App. 3d 436, 445-46.

We need not reach the issue of the adequacy of the instructions because we conclude that plaintiff’s post-trial motion was not sufficiently specific to preserve that question. Section 68.1(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(2)) provides in part:

“The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate relief.”

This requirement has been enforced by our rule limiting the scope of review in jury cases:

“A party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” (73 Ill. 2d R. 366(b) (2)(iii).)

In contrast to the specificity required by the legislature’s statute and by this court’s rule, plaintiff’s post-trial motion stated only that “The Court refused to give Plaintiff’s tendered instructions 9, 11, and 16” and that “The Court gave, over objection of the Plaintiff, Defendant’s tendered instructions 2, 3, and 4.” Since neither of these allegations of error specifies the ground upon which it is based, they are clearly inadequate under both the statute and the rule.

Plaintiff urges, however, that we create an exception to the post-trial motion rule for questions pertaining to jury instructions. He argues that as to jury instructions the purposes of the rule are already effectuated by other rules regulating the conference on instructions and appeals from the decisions made at that conference. The purpose of the post-trial motion specificity rule is threefold. First, it allows the decision maker who is most familiar with the events of the trial, the trial judge, to review his decisions without the pressure of an ongoing trial and to grant a new trial if, on reconsideration, he concludes that his earlier decision was incorrect. (People ex rel. Gustafson v. City of Calumet City (1968), 101 Ill. App. 2d 8, 11; Larson v. Harris (1966), 77 Ill. App. 2d 430, 434, aff’d (1967), 38 Ill. 2d 436; Speers v. Wedekind (1952), 348 Ill. App. 547 (abstract of opinion); Ill. Ann. Stat., ch. 110, par. 68.1, Supplement to Historical and Practice Notes at 15 (Smith-Hurd Supp. 1980).) Second, by requiring the statement of the specific grounds urged as support for the claim of error, the rule allows a reviewing court to ascertain from the record whether the trial court has been afforded an adequate opportunity to reassess the allegedly erroneous rulings. Third, by requiring the litigants to state the specific grounds in support of their contentions, it .prevents them from stating mere general objections and subsequently raising on appeal arguments which the trial judge was never given an opportunity to consider. (Richman Chemical Co. v. Lowenthal (1958), 16 Ill. App. 2d 568; see also Ill. Ann. Stat., ch. 110A, par. 366, Historical and Practice Notes at 266 (Smith-Hurd 1976).) The rule, which is not limited to questions concerning jury instructions, has the salutary effect of promoting both the accuracy of decision making and the elimination of unnecessary appeals.

The courts of this State have also developed a rule limiting the scope of appeals from decisions regarding jury instructions. To raise an issue on appeal concerning the giving of or the failure to give an instruction, the appellant must provide the reviewing court with the content of the instruction conference establishing that the appellant there raised the argument that he advances on appeal or else he is barred from raising it in the reviewing court. (Barrett v. Fritz (1969), 42 Ill. 2d 529, 532-33; Saunders v. Schultz (1960), 20 Ill. 2d 301, 314; Raabe v. Maushak (1977), 55 Ill. App. 3d 169, 172-73; Johnston v. Basic (1973), 16 Ill. App. 3d 453, 457-58; O’Neill v. Montalbano (1972), 3 Ill. App. 3d 414, 417.) This rule does prevent a litigant from raising issues on appeal which he did not present to the trial court. It does not, however, afford the trial court an opportunity to subsequently reevaluate the merits of its earlier rulings on instructions.

In order to reconsider the correctness of the original rulings the trial court must be adequately apprised of the grounds for the litigants’ contentions that the earlier decisions were incorrect. So informing the court does not require voluminous post-trial motions. All that is necessary is a simple, succinct statement of the factual or legal basis for movant’s belief that the trial court action was erroneous. Merely listing the numbers of the supposedly erroneous instructions does not, as a rule, give the trial court sufficient opportunity to make an informed reexamination of its earlier rulings. At the time that a trial judge rules on a post-trial motion the record of the conference on instructions generally will not yet have been transcribed. In that circumstance, and without an assertion in the motion of the specific grounds urged by the litigant as support for his claim of error, the trial judge would have to rely upon his recollection of arguments made weeks, or even months, before. (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(3).) In rare instances that recollection may suffice, but we cannot endorse a procedure that would predicate the trial judge’s evaluation of past rulings upon such a fortuity.

The statement of specific grounds in the post-trial motion is also essential to a determination by a reviewing court that the trial court has been afforded an adequate opportunity to reexamine its earlier rulings. To make certain that the trial court has had that opportunity, the reviewing court must be able to ascertain from the record that the specific contentions advanced on appeal were argued before the trial court. The case now before us illustrates the difficulty of making that determination when the specific grounds have not been stated in the post-trial motion. Nothing in the record forwarded to this court indicates that the trial court was apprised after the trial of the specific arguments advanced to this court. Compliance with the current post-trial-motion rule, however, would have informed us whether the trial court had been given an adequate opportunity to reconsider its earlier rulings. The desirability of that opportunity is highlighted in this case where the trial judge denied defendant’s motion for a directed verdict, but also refused to submit to the jury plaintiff’s “incapacity to exercise due care” theory because the judge concluded there was insufficient evidence of incapacity. If those actions are, as suggested, thought inconsistent, it was particularly important that the post-trial motion specify the factual or legal foundation for that belief so that the judge might reevaluate his rulings.

The case now before us is not the first one to test in this court the adequacy of a post-trial motion alleging error in jury instructions. In Sny Island Levee Drainage District v. Meyer (1963), 27 Ill. 2d 530, 537, the appellant made a general claim of error in her post-trial motion to “every instruction that was tendered by the objectors and refused by the court. ” This court summarily rejected the argument that such language was adequate and held that the post-trial motion must state the specific grounds supporting the claim of error. Plaintiff in this case seeks to distinguish Sny Island on the basis that the motion in the instant case specified the particular instructions as to which claims of error are made. The essential point, however, is not distinguishable. The language of the motion in neither Sny Island nor in this case apprised the trial court of the grounds supporting the claim of error.

Plaintiff here also argues that the trial in Sny Island preceded the adoption of our previous Rule 25 — 1, the precursor of our current Rule 239 (73 Ill. 2d R. 239), which requires the litigants to make specific objections at the conference on instructions. He contends that the adoption of Rule 239 eliminated the need for specificity in the post-trial motion. For the reasons stated above, however, we do not believe that the requirement of specificity at the instruction conference effectuates all the purposes subserved by the requirement of specificity in the post-trial motion. Moreover, the courts of this State had developed the specificity requirement for the instruction conference before the trial in Sny Island and before the adoption of Rule 25 — 1 by this court. (Saunders v. Schultz (1960), 20 Ill. 2d 301, 314.) The court in Sny Island required specificity in the post-trial motion even though prior decisional law had already required similar specificity in the objections made at the conference on instructions.

This court reiterated the requirement of specificity in the post-trial motion in Barrett v. Fritz (1969), 42 Ill. 2d 529, 532. Although some appellate court decisions have apparently allowed a looser practice (Biehler v. White Metal Rolling & Stamping Corp. (1978), 65 Ill. App. 3d 1001; Crothers v. La Salle Institute (1976), 40 Ill. App. 3d 984; Tabor v. Tazewell Service Co. (1958), 18 Ill. App. 2d 593), this court has never done so and, given the reasons stated above, we see no reason to do so now.

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

Judgment affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 53244.
    CAMPBELL “66” EXPRESS, INC., et al., Appellants, v. THE INDUSTRIAL COMMISSION et al. (Alfred Vaitkevich, Appellee).

      Opinion filed November 18, 1980.
    Rehearing denied January 29, 1981.

      Musschoot, Womack & Galich, of Chicago (Arthur R. Musschoot and Peter Fedij, of counsel), for appellants.
    Discipio, Martay & Caruso, of Chicago (Francis M. Discipio, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

In this case, brought under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.), the arbitrator entered an award in favor of the claimant, Alfred Vaitkevich, which was affirmed by the Industrial Commission and confirmed by the circuit court of Cook County. The respondent employer, Campbell “66” Express, Inc., appealed to this court. (73 Ill. 2d R. 302(a).) The sole issue involved is whether the claimant’s injuries arose out of his employment.

On November 29, 1975, the claimant was employed by the respondent as a truck driver and on that day was driving a tractor, pulling a loaded trailer from Springfield, Missouri, to Chicago. The trailer weighed between six and seven tons, and the load weighed in excess of 12,000 pounds. This is in addition to the weight of the tractor, in which the claimant was riding. At about 11:30 p.m., at a point north of Springfield, Illinois, near the village of Elkhart, while driving northeast on Route 1-55, the claimant encountered a sudden, heavy windstorm. He had been following two other trucks owned by the same company, and after he encountered the storm, the other two drivers signaled him to pull over to the shoulder of the road. As his vehicle came to rest on the shoulder, a tornado struck, and the claimant’s vehicle was lifted into the air and carried about 100 feet, striking a railroad-track embankment and coming to rest upright in the mud adjacent to the tracks. The claimant was wearing a seat belt, and he was injured by being thrown about violently in the tractor while being restrained by his seat belt as the truck was hurled through the air by the tornado.

It is the employer’s position that the claimant’s injuries were caused by an act of God and that the claimant was not exposed to any special or greater risk by his employment than were other members of the general public in the vicinity. The employer further contends that, since the facts are undisputed, the question is one of law and we need not therefore give the usual deference to the holding of the Industrial Commission.

Although some States may apply other tests, generally, an injury due to an act of God arises out of the employment if the employment increases the risk of this kind of harm beyond that to which the general public is subjected. (1 A. Larson, Workmen’s Compensation sec. 8.10, at 3 — 14 (1978).) As noted in sections 8.12 and 8.22 of that treatise, some States have adopted the positional-risk theory. (1 A. Larson, Workmen’s Compensation secs. 8.12, 8.22 (1978).) That is, if one’s employment places him at a particular place at a particular time when lightning or a tornado strikes, and he is thereby injured, the injury arises out of his employment. This State has not adopted the positional-risk theory, but adheres to the general requirement that one’s employment must subject him to an increased risk beyond that to which the general public is subjected.

The employer relies on Decatur-Macon County Fair Association v. Industrial Com. (1977), 69 Ill. 2d 262. In that case the employee was required to live on the fairgrounds. He and his wife purchased a house trailer, located it on the fairgrounds, and moved into it as their home. One afternoon, while they were sitting in their living room talking, a tornado struck, destroying the trailer home and other buildings nearby and killing the employee. This court specifically rejected the “positional risk” rationale and held that the facts of that case did not permit a conclusion that the conditions or duties of claimant’s employment increased the risk of this type of injury beyond that to which the general public was exposed. Since there was no proof of such an increased risk, this court held that the award of compensation was against the manifest weight of the evidence.

By contrast, where there has been evidence that the conditions or nature of employment increased the risk of injury beyond that to which the general public was exposed, this court has held that a finding that the injury arose out of the employment was not against the manifest weight of the evidence. (Eisner Food Stores v. Industrial Com. (1965), 33 Ill. 2d 474; Central Illinois Public Service Co. v. Industrial Com. (1920), 291 Ill. 256.) In Central Illinois Public Service Co. v. Industrial Com. (1920), 291 Ill. 256, 265, this court stated:

“While the risk arising from the action of the elements, such as a cyclone, is such a risk as all people of the same locality are subject to, independent of employment, yet the circumstances of a particular employment may make the danger of receiving a particular injury through such a storm an exceptional risk and one to which the public generally is not subjected.”

This same rationale has been applied both in cases where recovery has been sustained, as in Eisner Food Stores v. Industrial Com. (1969), 33 Ill. 2d 474, and in cases where recovery has been denied as in Abell Chevrolet Co. v. Industrial Com. (1939), 370 Ill. 460, the crucial difference being found in the peculiar facts of each case.

The facts in evidence and the legitimate inferences that can be drawn therefrom are such that the Industrial Commission in our case could reasonably conclude that the claimant was subjected to risks of injury from this tornado beyond that to which the general public was exposed. The claimant was a truck driver on a through run from Springfield, Missouri, to Chicago. Since he was driving late at night, the Commission could reasonably infer that he had some kind of a time schedule, however flexible, so that he did not have the same freedom of choice of whether or not to travel in inclement weather that an ordinary person would have had. The Commission could have inferred from the nature of his occupation that the claimant was subjected to dangers of traveling to a greater degree than is the general public, whether these dangers stem from collision with other vehicles or dangers associated with driving in inclement weather. Assuming no deviation from his employment, if a truck driver is injured in a collision with another vehicle, or is involved in an accident caused by ice or snow on the highway, or by poor visibility, no one would question that the injury arose out of his employment. The Industrial Commission in our case could well have viewed this accident similarly and could have concluded that the necessity for a truck driver to be on the highway at all times of the day and night, and in all kinds of weather, subjected the claimant in our case to a greater risk of injury from this tornado than that to which the general public in that vicinity was exposed. We thereby cannot hold that the decision of the Industrial Commission was against the manifest weight of the evidence. The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 53230.
    FRANK CASTRO, JR., Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.

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

      Westervelt, Johnson, Nicoll 8c Keller of Peoria (Wayne L. Hanold and David R. Aplington, of counsel), for appellant.
    John T. Pierce, Jr., of Paul L. Pratt, P.C., of East Alton, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The plaintiff, Frank Castro, Jr., filed a three-count complaint in the circuit court of Peoria County against defendant, Chicago, Rock Island and Pacific Railroad Company, under the Federal Employers’ Liability Act (FELA) (45 U.S.C. sec. 51 et seq. (1976)). The trial court granted defendant’s motion to dismiss counts I and II on the basis of release. Plaintiff’s motions for rehearing were denied. The appellate court reversed, finding that the trial court abused its discretion by failing to grant plaintiff’s second motion for rehearing. (81 Ill. App. 3d 233.) We granted defendant’s petition for leave to appeal.

On February 2, 1977, plaintiff filed his three-count complaint and jury demand. One year later, defendant moved, under section 48(l)(f) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(l)(f)), to dismiss counts I and II on the basis that the plaintiff had executed releases, thereby relieving defendant of liability. Plaintiff made a motion to strike defendant’s motion, claiming that section 48 is not applicable in an FELA action as it defeats plaintiff’s right to trial by jury. Defendant’s motion to dismiss counts I and II was granted. On May 1, 1978, plaintiff filed a. motion to reconsider (unauthorized by statute or rule), realleging the same ground previously stated. This motion was heard and denied. On March 13, 1979, almost one year after the original motion to dismiss was granted, plaintiff filed a second motion to reconsider. To this motion was attached the affidavit of plaintiff in which he stated:

“It was my understanding, when I executed [these documents], that it was solely for the purpose of receiving lost wages for time off due to accidents on the Railroad.
At no time prior [to the dates of the releases], did I have any knowledge of the fact that I had a condition of the back, which required an operation.

Defendant then moved to strike plaintiff’s affidavit claiming that it was insufficient under Supreme Court Rule 191 (73 Ill. 2d R. 191) as it sets forth only conclusions unsupported by allegations of specific facts. Plaintiff’s second motion for reconsideration was also denied. Thereafter, plaintiff voluntarily dismissed count III and appealed the dismissal of counts I and II. The appellate court found that plaintiff’s affidavit was “sufficient to establish the existence of controverted facts,” thereby defeating defendant’s motion to dismiss. 81 Ill. App. 3d 233, 238.

Defendant asserts two arguments in support of his claim that the trial court appropriately denied plaintiff’s second motion for reconsideration: (1) the filing of the motion and supporting affidavit were untimely in that they were filed almost one year after the original motion was heard; and (2) the affidavit in support of plaintiff’s motion was insufficient under Supreme Court Rule 191 to raise any material and genuine question of fact as it contained only conclusions unsupported by allegations of specific facts.

Plaintiff contends that defendant’s motion to dismiss was improper in the first instance because a section 48 motion denies plaintiff his federally protected right to trial by jury and, thus, cannot be used in an FELA action. Plaintiff also argues that even if section 48 is appropriate in an FELA case, defendant’s motion was, nonetheless, insufficient at law since it failed to meet the requirement that the motion be supported by affidavit.

We first address plaintiff’s issue of whether a motion under section 48 may be used in an FELA case. He relies on a portion of paragraph 3 of section 48 in support of his claim that the statute infringes on his right to trial by jury by allowing the court to decide a controverted question of fact. That portion states:

“If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties ***.” Ill. Rev. Stat. 1977, ch. 110, par. 48(3).

While in an FELA action, the procedural rules applied are those of the forum, a Federal substantive right cannot be lessened or destroyed by a State rule of procedure. (Brant v. Chicago & Alton R.R. Co. (1920), 294 Ill. 606, 616.) The right to trial by jury is an integral part of the rights afforded to workers under the Federal Employers’ Liability Act. (Bailey v. Central Vermont Ry., Inc. (1943), 319 U.S. 350, 354, 87 L. Ed. 1444, 1448, 63 S. Ct. 1062, 1064.) We do not, however, believe that a section 48 motion infringes upon plaintiff’s right to trial by jury in an FELA action. Paragraph 3 of section 48 further provides that the motion shall be denied if a “material and genuine disputed question of fact is raised *** if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time.” (Ill. Rev. Stat. 1977, ch. 110, par. 48(3).) Thus, in all civil cases, including those brought under FELA, the court cannot decide material and genuine disputed questions of fact when a jury demand has been appropriately filed. Contrary to the plaintiff’s argument, section 48 protects his right to trial by jury.

The plaintiff also argues that the defendant’s motion under section 48 is insufficient at law because defendant failed to attach affidavits in support of the motion as required under section 48(1) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)). Such affidavits were not part of the original record certified by the trial court. However, defendant filed a certified supplemental record in the appellate court containing copies of the affidavits in support of its motion bearing the circuit court stamp showing that they had been filed a week before the motion was heard. This sufficiently establishes that the defendant did, in fact, file supporting affidavits in support of its motion in compliance with section 48(1). We find no merit to either contention raised by plaintiff.

Defendant argues that the trial court appropriately denied the plaintiff’s second motion for reconsideration because it was made one year after the hearing on the original motion.

Under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), a judgment which adjudicates fewer than all the claims presented is “not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims.” (Emphasis added.) Since count III of plaintiff’s action was pending at the time he filed his second motion to reconsider, the court had jurisdiction under Rule 304(a) to revise its order dismissing counts I and II. Although the appropriate procedure would have been for plaintiff to file his affidavit prior to a hearing on the motion to dismiss, the court, nevertheless, retained jurisdiction to entertain the motion. We do not, however, approve of plaintiff’s dilatory practice.

Defendant also argues that the affidavit of plaintiff filed in support of the motion to reconsider was insufficient at law as it contained conclusions unsupported by allegations of specific facts.

Supreme Court Rule 191(a) (73 Ill. 2d R. 191(a)) requires that affidavits in support of or in opposition to motions for involuntary dismissal under section 48 of the Civil Practice Act “shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” The affidavit of plaintiff stated that it was his understanding that the releases had to be executed in order for him to receive his back wages. He also stated that, at the time each release was signed, he was unaware of the extent of his injuries. Under Federal law, a release may be attacked on the basis of fraud or lack of consideration. (Maynard v. Durham & Southern Ry. Co. (1961), 365 U.S. 160, 161, 5 L. Ed. 2d 486, 487-88, 81 S. Ct. 561, 562; Dice v. Akron, Canton & Youngstown R.R. Co. (1951), 342 U.S. 359, 361, 96 L. Ed. 398, 403, 72 S. Ct. 312, 314.) Plaintiff’s affidavit presents no facts which he could competently testify to at trial. His “understanding” as to why he executed the releases is only a conclusion. That he was unaware of the extent of his injuries when he received the settlement award does not void the releases. It is only where the affidavit sets forth facts establishing fraud, lack of consideration or mutual mistake that the plaintiff would be entitled to overcome defendant’s motion to dismiss under section 48(l)(f). (See Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 38.) We therefore find that the trial court appropriately refused to grant plaintiff’s second motion for reconsideration.

For the reasons stated, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE WARD

text:
    (Nos. 52654, 52789 cons.
    CERRO COPPER PRODUCTS et al., Appellees, v. THE ILLINOIS COMMERCE COMMISSION et al., Appellants.

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

      William J. Scott, Attorney General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, and James E. Weging, Assistant Attorney General, of counsel), for appellant Illinois Commerce Commission.
    William E. Jaudes, of St. Louis, and Robert Broderick, of Pope & Driemeyer, of Belleville, for appellant Union Electric Co.
    Randall Robertson, of Lueders, Robertson 8c Konzen, of Granite City, and John P. Meyer, of Danville, for appellees.
   MR. JUSTICE WARD

delivered the opinion of the court:

The Union Electric Company (Union Electric) provides utility service to customers in a three-State area, including service to 69,000 Illinois customers residing in St. Clair, Madison, Jersey and Hancock counties. It filed a proposed schedule of rates with the Illinois Commerce Commission (Commission) which called for an increase in revenues of $14,389,000, which would have represented a 17.48% overall rate increase. The Commission conducted hearings into the necessity and reasonableness of the requested increase and in the course of the proceedings granted leave to intervene to several industrial corporations, including the Cerro Copper Products Company (Cerro Copper), which are provided service by Union Electric.

On February 8, 1978, the Commission issued an order which allowed $8,986,000 of the requested $14,389,000 revenue increase, and raised the existing level of operating income to $19,155,000. Attached to the order as Appendix A was a schedule of new rates, which Union Electric was directed to implement and which the Commission stated “will enable the Company to earn Illinois electric operating income of about $19,155,000 for a return of about 9.25% on the original cost rate base approved herein ***. Such amount of operating income and rate of return are fair, just and reasonable ***.”

Separate petitions for rehearing filed with the Commission by Union Electric and Cerro Copper were denied. Though no new evidence was suggested in its petition, Cerro Copper’s petition complained that the rates of residential consumers were being increased by only 8.83%, whereas large commercial and industrial customers serviced under rate 9 and rate 6 were being required to pay an additional 12.55% and 12.56% respectively. Cerro Copper argued that these rates did not reflect the intent underlying the Commission’s order, which it claims was to apply the same percentage increase to each service classification of customers. The circuit court of Jersey County, on appeal, rejected Cerro Copper’s argument and held that the order was “not against the manifest weight of the evidence” and that the approved rate increase was not a “substantial variance from the intent of the Order.” The appellate court, with one judge dissenting, stated that it affirmed the Commission’s order but was setting aside the rates as “inconsistent with the findings of fact contained in the body of the Commission’s order.” (76 Ill. App. 3d 230, 233.) (It will not be necessary to consider whether the appellate court could properly “affirm” the order and also set aside the rates the Commission had set under it.) The court calculated that the increase of $8,986,000 granted by the Commission represented the overall revenue increase of 10.92% and that each service classification rate should be increased by that percentage. The court remanded to the Commission “for the setting of rates that are consistent with the findings of fact previously made. A mere matter of arithmetic.” (76 Ill. App. 3d 230, 233.) We granted the Commission’s and Union Electric’s petitions for leave to appeal. 73 Ill. 2d R. 315.

Cerro Copper’s argument that the Commission’s rate schedule is inconsistent with parts of its order, and as a consequence illegal, is founded on several statements of opinion and comments made by the Commission in its order. On page four of the 16-page order these comments appear:

“As hereinafter stated, the Company is currently engaged in a class cost of service study which is expected to be completed during 1978. Other than the four exceptions previously discussed, [which have no relevance here,] it was suggested by the Company, and the Commission’is of the opinion, that it would be appropriate to maintain existing class-revenue relationships until such time as the results of the study would be available to the Company and this Commission for a more definitive adjustment if warranted by the results of study.
***
The Commission is of the opinion that any increase in Illinois electric operating revenues allowed by this Order should be assigned to the various service classifications utilizing approximately the same percentage increase including customers served under Service Classifications 6 and 9, except for the four exceptions previously alluded to.
***
This Commission is aware, and the record in this case indicates, that the Company is currently engaged in the completion of a detailed class cost of service study which would indicate in a more definitive way the relationship of present costs to the rates applicable to various classifications of service. The cost of service study will not be available until after an Order must be entered by this Commission under the provisions of Section 36 of the Public Utilities Act. Necessarily therefore, the results of such study will not be available to this Commission and for that reason the Commission is of the opinion that it is not appropriate to make any major adjustment in the existing class-revenue relationships of the various service classifications but rather is appropriate to substantially maintain the existing relationships.

As stated, the percentage increases that Cerro Copper complains were set for commercial and industrial consumers under rates 9 and 6 were 12.55% and 12.56%, respectively, while an 8.83% increase was scheduled for residential users. Though not challenging the order itself, Cerro Copper states that the difference in the rate increases allowed by the Commission under the new rate schedule is in conflict with the cited language in the Commission’s order.

Under the provisions of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 1 et seq.) the Commission is empowered “to ascertain the value of [a public utility’s] property” (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 30). Upon its determination under the “fair value” method (Union Electric Co. v. Illinois Commerce Com. (1979), 77 Ill. 2d 364) the utility is entitled to receive a “reasonable return on the value of [its] property.” (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 36.) When the Commission issues an order, section 65 of the Act requires that it “make and render findings concerning the subject-matter and facts inquired into and enter its order based thereon” (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 69). The purpose of announcing findings of fact, which must be based upon evidence contained in the record (Atchison, Topeka & Santa Fe Ry. Co. v. Commerce Com. ex rel. Illinois Coal Traffic Bureau (1929), 335 Ill. 624), is to enable a court to make an intelligent review of the decision. (City of St. Charles v. Illinois Commerce Com. (1961), 21 Ill. 2d 259; Brinker Trucking Co. v. Illinois Commerce Com. (1960), 19 Ill. 2d 354; Illinois Bell Telephone Co. v. Illinois Commerce Com. (1979), 67 Ill. App. 3d 616.) Where the Commission fails to set out findings supporting its decision, or if the findings are not based upon evidence in the record, the order is to be set aside. Wabash R.R. Co. v. Order of Ry. Conductors of America (1949), 402 Ill. 548; Rockwell Lime Co. v. Commerce Com. (1940), 373 Ill. 309.

One reason for requiring specificity in the finding of facts is that reviewing courts are not permitted to conduct a de novo review (Village of Apple River v. Illinois Commerce Com. (1960), 18 Ill. 2d 518) and are empowered only to consider whether the Commission has acted within the scope of its authority, whether any constitutional right has been infringed, and whether its findings are founded on the evidence (Killamey Water Co. v. Illinois Commerce Com. (1967), 37 Ill. 2d 345; Champaign County Telephone Co. v. Illinois Commerce Com. (1967), 37 Ill. 2d 312). An order of the Commission will be presumed to be valid (Village of Maywood v. Illinois Commerce Com. (1961), 23 Ill. 2d 447, cert. denied (1962), 369 U.S. 851, 8 L. Ed. 2d 10, 82 S. Ct. 935) and may not be set aside unless it is clearly contrary to the manifest weight of the evidence (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 72; McMann v. Illinois Commerce Com. (1967), 38 Ill. 2d 126; Village of Apple River v. Illinois Commerce Com. (1960), 18 Ill. 2d 518). In the area of setting utility rates courts have generally deferred to the Commission’s expertise. (Iowa-Illinois Gas & Electric Co. v. Illinois Commerce Com. (1960), 19 Ill. 2d 436; Brinker Trucking Co. v. Illinois Commerce Com. (1960), 19 Ill. 2d 354.) Illustrative of this was the comment in Village of Milford v. Illinois Commerce Com. (1960), 20 Ill. 2d 556, 561:

“The limits of judicial review in public utility rate cases, as well as the reasons for such limits, have been fixed by many decisions of this court and we see no useful purpose in unduly extending this opinion by repeating them here. Suffice it to say we have recognized that the determination of rates is not a matter of formulas but one of sound business judgment which has been committed by the legislature to the expert judgment of the Commission and, in deference to the judgment of the Commission, we have consistently held that its orders in such respect will not be disturbed unless the findings upon which they are based are arbitrary or against the manifest weight of the evidence, or unless in contravention of some established rule of law or constitutional right.”

See also Island Lake Water Co. v. Illinois Commerce Com. (1978), 65 Ill. App. 3d 853; Monarch Gas Co. v. Illinois Commerce Com. (1977), 51 Ill. App. 3d 892. See generally Kucera, Dismissal of Actions Before the Illinois Commerce Commission, 2 J. Mar. J. Prac. & Proc. 92 (1968).

The fundamental purpose of providing a particular rate schedule is to generate a rate of return which the Commission has approved as just and reasonable and which will enable the utility to continue operation at an acceptable level of operating income. Many and complex factors must be considered. The fair value of the utility’s property, the existing capital-formation structure, the proposed financing for any construction programs, original cost rate base, operating expenses, revenue and income, and the cost of providing electrical service to the various classifications of consumers must be examined before the Commission issues an order and announces a schedule of rates.

Here, it was the Commission’s analysis of these factors which led to its findings of fact and the schedule of rates announced, which the Commission calculated would generate an acceptable operating income of $19,155,000. The Commission specifically found that the “rates approved by this Order are reasonably justified by the record in this case. ”

We consider that the circuit court was correct in rejecting Cerro Copper’s argument and in holding that the Commission’s order was not contrary to the manifest weight of the evidence. Neither Cerro Copper nor the appellate court was critical of the Commission’s decision allowing Union Electric a revenue increase of $8,986,000, which would raise the utility’s operating income level to $19,155,000, for a return of 9.25% on Union Electric’s cost rate base. The appellate court erred when it set aside the rates established by the order and directed the Commission to increase the rates uniformly for all of Union Electric’s 69,000 Illinois customers by 10.92%.

The Commission did not order rates increased by 10.92%. Rather it granted Union Electric the right to additional operating revenues of $8,986,000 and set rates for the Illinois customers which would produce additional revenues in that amount. The appellate court, in following the argument of Cerro Copper, calculated that the $8,986,000 in additional revenues represented a 10.92% increase and that the rates in each service classification should therefore be increased by this percentage. This was oversimplification and error. The rates set by the Commission were not based upon percentage increases but rather reflected changes in the allowable rates per kilowatt hour and in minimal monthly charges. To impose a flat percentage increase on existing rates would be to apply a simplistic formula to a complex economic study, the purpose of which is to generate an acceptable operating income to insure a utility a reasonable return on the value of its property. In this case the acceptable operating income was determined by the Commission to be $19,155,000. No attempt has been made by Cerro Copper to show that the imposing of the straight increase to each rate would generate for Union Electric the amount of revenue that the Commission has determined that it requires. Nor is there any attempted calculation to show how much revenue Union Electric would receive through a straight percentage increase as the appellate court ordered. The Commission’s establishment of the rates represented a part of its findings of fact which will not be set aside unless shown to be contrary to the manifest weight of the evidence. This has not been done.

We have cited above language in the Commission’s order which sets out the opinion of the Commission that it was appropriate to maintain “existing class-revenue relationships and not make ‘any major adjustment in them.’ ” This language can be given more than one interpretation. Cerro Copper argues that the variations in the rate classification increases are violative of this language. The Commission, however, argues that “the existing class revenue relationships” under its interpretation would be undisturbed. It notes that the residential classification of Union Electric’s service under the old rate provided 24.6% of Union Electric’s total customer sales revenues and under the new rate it would be 24.2%. Under the old rate the large commercial and industrial users classification provided 43.3% of the revenue support of the utility, whereas under the new rate it would provide 43.7%.

In any event, we would observe that the comments, as to not making “any major adjustment in the existing class-revenue relationships” and as to “assigning service classifications approximately the same percentage increase,” were explicitly statements of opinion by the Commission. We consider they were not intended by the Commission to set inflexible limits on the action that the Commission might be required to order in the public interest. They might be regarded as expressions of the Commission’s aspiration or goal.

There having been no showing that the Commission’s order was contrary to the manifest weight of the evidence, we reverse that part of the appellate court’s judgment which remanded the cause to the Commission with directions. Under the disposition we make it is not necessary for us to consider the additional arguments that the appellate court improperly usurped a legislative power in ordering the Commission to impose particular rates and that it violated the provisions of section 68 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 72), under which there are only limited judicial powers of review. That part of the appellate court’s judgment which affirmed the Commission’s order is affirmed. The judgment of the circuit court of Jersey County is affirmed.

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


author: MR. JUSTICE CLARK

text:
    (No. 53241.
    ANN GARRISON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (The City of Evanston, Appellee).

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

      Joseph P. Cascino, Jr., of Evanston, for appellant.
    Musschoot, Womack & Galich, of Chicago (Arthur R. Musschoot and Hubert C. Merrick, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Claimant, Ann Garrison, was awarded compensation benefits by an arbitrator for injuries she allegedly sustained while working for respondent, the City of Evanston. Both parties sought review. The Industrial Commission modified the award, claimant appealed, and the circuit court of Cook County confirmed the Commission’s modified award. The claimant appeals to this court under Rule 302(a) (73 Ill. 2d R. 302(a)).

Claimant was employed on October 29, 1976, by the respondent as a switchboard operator and clerk-typist. On that day she walked out of her office to tell a fellow employee that he had a telephone call. As she stood talking to an employee, Stanley Warren, in the second-floor parking lot, a third employee, Gary Swanson, drove up in his car. Swanson testified he plays a great deal of tennis and gives used tennis balls away to fellow employees. Swanson testified he threw a tennis ball to Warren and shouted Warren’s name. Both Warren and Swanson testified that the tennis ball bounced once and then struck the claimant in the area of her back and shoulders. Swanson thought he was 20 to 30 feet away when he threw the ball. Warren estimated the distance to be 50 to 75 feet. The claimant testified she was struck in the back of the head. She never saw the object which struck her but said it felt like a rock.

An array of medical testimony and records was produced at the hearings before the arbitrator and the Commission. The bills relate to physical and X-ray examinations, medication and other treatment for neurological, orthopedic, psychiatric, dental, ear and eye maladies, and a consultation with a gynecologist, all allegedly arising out of this one incident. The claimant received 27 Vz weeks temporary total disability, $983.10 for a partial permanent disability, and $3,550.64 in medical expenses from the arbitrator. The Commission reduced that award to 16 3/7 weeks for temporary total disability, no award for any permanent disability, and $2,926 in medical expenses. The claimant is seeking reversal on the ground she is entitled to recover $10,500 in medical expenses, additional temporary total disability compensation, and a finding that she is totally and permanently disabled.

The extent and permanency of an employee’s medical disability are questions to be decided by the Industrial Commission. (John v. Industrial Com. (1980), 81 Ill. 2d 145, 151; Arcole Midwest Corp. v. Industrial Com. (1980), 81 Ill. 2d 11, 16.) The Commission resolves conflicts in medical testimony. Its findings will not be set aside unless they are against the manifest weight of the evidence. (Zavadil v. Industrial Com. (1979), 77 Ill. 2d 444, 445.) From our review of the record, we conclude that the Commission’s findings are not contrary to the manifest weight of the evidence.

The claimant also argues that she was discharged from her job in retaliation for her filing a workmen’s compensation claim. Such an allegation is properly brought in an independent tort action, not in a workmen’s compensation proceeding. Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 184.

Finally, the claimant seeks to have a penalty assessed against the respondent due to an alleged unreasonable and vexatious delay in paying the instant claim. (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(k).) First of all, we find no petition in the record requesting additional compensation due to delay. (See Wilbon v. Industrial Com. (1976), 65 Ill. 2d 221; A. O. Smith Corp. v. Industrial Com. (1976), 65 Ill. 2d 224; City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99.) Secondly, such a petition must be directed to the Industrial Commission, so that it may determine as a question of fact (A. O. Smith Corp. v. Industrial Com. (1976), 65 Ill. 2d 224, 228; Wilbon v. Industrial Com. (1976), 65 Ill. 2d 221, 224; Board of Education v. Industrial Com. (1968), 39 Ill. 2d 167, 170) whether such delay exists. The claimant rested her case before the Commission without presenting evidence of unreasonable or vexatious delay. There is therefore no need for us to address this question. It is not properly before us.

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

Judgment affirmed.