author: MR. JUSTICE UNDERWOOD MR. JUSTICE CLARK,

text:
    (No. 50467.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. FRANKLIN CREQUE, Appellee.

      Opinion filed Oct. 6, 1978.

    — Rehearing denied Dec. 1, 1978.

      CLARK, J., dissenting.
    Bernard Carey, State’s Attorney, of Chicago (Lee T. Hettinger and Mary Ann Callum, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (John Thomas Moran, Assistant Public Defender, of counsel), for appellee.
    Roosevelt Thomas and Akim Gursel, of Chicago, for amicus curiae the Cook County Bar Association.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The defendant, Franklin Creque, was charged in Cook County with the March 13, 1977, aggravated battery and attempted murder of Martha Creque, his wife. At the conclusion of a March 31 preliminary hearing on these charges, the judge found no probable cause existed for the attempted murder charge, but did find probable cause to hold defendant for the aggravated battery (Ill. Rev. Stat. 1977, ch. 38, pars. 109 — 1 through 109 — 3). On April 11, a Cook County grand jury indicted defendant on both charges. The circuit court subsequently dismissed the indictment for attempted murder on due process grounds, the State appealed, and we allowed a joint motion to transfer that appeal to this court under Supreme Court Rule 302(b) (58 Ill. 2d 302(b)).

The State’s sole witness at the preliminary hearing was the victim, Martha Creque. She testified that she was in the living room of her apartment when she heard someone attempting to break in the back door and that she ran to a bedroom and hid behind a door. Defendant, however, succeeded in breaking down the back door and found her in the bedroom. He beat her with his fists and then stabbed her three times in the neck and once in the chest, hand and arm. She testified that defendant’s brother, who had also come into the bedroom, told defendant to “come on” and to “stop” and eventually persuaded defendant to quit. Both then ran out the door. Mrs. Creque was uncertain whether defendant’s brother actually had to pull defendant away from her.

The State’s Attorney’s subsequent presentation to the grand jury involved only one witness, an investigating officer whose testimony was essentially a summary of the victim’s earlier statements at the preliminary hearing. He did not indicate that defendant quit stabbing his wife when defendant’s brother intervened.

The circuit court cited four reasons for its action in allowing defendant’s motion to dismiss. First, it found that the prosecution failed to show a “compelling justification” for the use of only hearsay evidence in obtaining the indictment. The difficulty with that finding, of course, is that there is no requirement that the prosecutor meet a “compelling justification” standard before presenting hearsay evidence to the grand jury.

The Supreme Court held in Costello v. United States (1956), 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406, that an indictment may be based solely on hearsay. Speaking for the court, Mr. Justice Black rejected the contention that an indictment is open to challenge because only hearsay evidence was presented to the grand jury. “If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury.” (350 U.S. 359, 363, 100 L. Ed. 397, 402, 76 S. Ct. 406, 408.) He also there noted: “Neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act. *** An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” (350 U.S. 359, 362-64, 100 L. Ed. 397, 401-03, 76 S. Ct. 406, 408-09.) The Supreme Court reaffirmed this rule in United States v. Dionisio (1973), 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764, wherein it was stated: “A grand jury has broad investigative powers to determine whether a crime has been committed and who has committed it. The jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge.” (410 U.S. 1, 15, 35 L. Ed. 2d 67, 80, 93 S. Ct. 764, 772.) (See also Branzburg v. Hayes (1972), 408 U.S. 665, 701, 33 L. Ed. 2d 626, 651, 92 S. Ct. 2646, 2667.) And again, in United States v. Calandra (1974), 414 U.S. 338, 344-45, 38 L. Ed. 2d 561, 569, 94 S. Ct. 613, 618, the Supreme Court noted: “The grand jury’s sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence ***.” The Standards Relating to the Administration of Criminal Justice of the American Bar Association (The Prosecution Function, Standard 3.6 (1971)) state that a prosecutor should present to a grand jury only evidence which he believes admissible at trial. It recognizes, however, that “in appropriate cases the prosecutor may present witnesses to summarize admissible evidence available to him which he believes he will be able to present at trial.”

This court has considered the question on numerous occasions. In People v. Jones (1960), 19 Ill. 2d 37, 41, the court examined earlier cases stating that “an indictment will not be quashed unless all the witnesses were incompetent or all the testimony upon which it was found was incompetent [citations] ” and noted that “[t] he use of the word ‘incompetent’ with reference to both the witnesses and testimony before a grand jury is misleading.” The court then explained that those cases should be interpreted to mean “that ‘incompetent testimony’ before a grand jury is only that testimony given by a witness disqualified by law (such as complete mental derangement); and, therefore, if the witness is competent, his testimony before the grand jury is competent.” (19 Ill. 2d 37, 42.) Quoting Costello the court held that there was no bar to the return of a true bill based on hearsay evidence alone. The court noted that the “law favors promptness in the dispatch of criminal business of the courts when in harmony with the effective protection of the rights of the accused and the interests of the public. The delay is great when an accused can assail an indictment on this ground [incompetent evidence] and cause the trial court to review all the evidence presented to the grand jury, as was done in this case. Such procedure adds nothing to the assurance of a fair trial to which the accused is entitled.” (19 Ill. 2d 37, 43.) The principles of People v. Jones were reaffirmed in People v. Hopkins (1973), 53 Ill. 2d 452.

Professor Wigmore noted in his treatise on evidence:

“Proceedings before a grand jury are both ‘ex parte’ and interlocutory; moreover, the grand jury only seeks for a ‘probable cause’; hence, on all principles, the jury-trial rules of Evidence should not apply. Moreover, in point of policy, no rules should hamper their inquiries, nor need a presentment amounting only to probable cause be based on a system of rigid sifting of evidence ***.” (1 Wigmore, Evidence sec. 4, at 21 (3d ed. (1940).)

We agree “on all principles” that the holdings of Costello, Jones and Hopkins apply the proper rule and are dispositive of the contention that an indictment may not be based on hearsay.

Secondly, the circuit judge stated that he dismissed the indictment because the prosecution did not affirmatively disclose to the grand jury the hearsay nature of its evidence. In support of this reasoning, defendant relies on United States v. Estepa (2d Cir. 1972), 471 F.2d 1132, and United States v. Basurto (9th Cir. 1974), 497 F.2d 781. Both cases have been readily distinguished by the courts, and the validity of their holdings has been questioned in light of subsequent Supreme Court cases (see United States v. Marchand (2d Cir. 1977), 564 F.2d 983, 1001 n.29, cert. denied (1978), 434 U.S. 1015, 54 L. Ed. 2d 760, 98 S. Ct. 732, re Estepa, and United States v. Bracy (9th Cir. 1977), 566 F.2d 649, 655, re Basurto), but even assuming their continued vitality, neither supports the trial court’s ruling. Estepa held that an indictment must be dismissed when the grand jury has been misled into thinking that it is hearing the direct evidence of an eyewitness when it is not. However, the court noted that “ ‘[t] here is no affirmative duty to tell the grand jury in haec verba that it is listening to hearsay,’ United States v. Malofsky, 388 F.2d 288, 289 (2d Cir.), cert. denied, 390 U.S. 1017, 88 S. Ct. 1273, 20 L. Ed. 2d 168 (1968) ***.” (471 F.2d 1132, 1136.) In Basurto, the court merely held that due process is violated when a defendant must stand trial on an indictment which the government knows is based on material, perjured testimony, but the court noted that “no independent inquiry may be made to determine the kind of evidence considered by the grand jury in making its decision. Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956). To do so would further invade the independence of the grand jury. The holding reached by this court does not affect that established rule.” 497 F.2d 781, 785.

Here, there clearly was no attempt to mislead the grand jury. Its members could not, in our judgment, have thought from the investigator’s statements that he was relating his personal observations of the incident. (See United States v. Beltram (2d Cir. 1968), 388 F.2d 449, 451, cert. denied (1968), 390 U.S. 1017, 20 L. Ed. 2d 168, 88 S. Ct. 1273; 391 U.S. 955, 20 L. Ed. 2d 869, 88 S. Ct. 1860.) At the outset, he told the grand jury that he was the officer assigned to investigate the stabbing incident, and it is therefore quite apparent that his testimony was not direct evidence but information gathered by his investigation after the stabbing had occurred. The investigator’s testimony was in response to a request to “summarize” what his investigative work had produced. Neither the prosecutor nor he represented the testimony as eyewitness testimony. Indeed, this is obvious from the nature of the testimony itself; for example: “Her husband, Franklin, arrived at the back door; found it locked and subsequently broke the door down and searched the apartment for her and found her behind a door.” Defendant cannot seriously contend that the grand jury mistook such testimony by the police officer assigned to investigate as an eyewitness account of what went on inside the apartment.

As a third reason for dismissing the indictment, the trial court noted that the prosecutor did not advise the grand jury that it had the power to secure the presence of the victim by subpoena. Again, of course, there is no requirement that he do so. The prosecutor presented acceptable evidence apparently sufficient to satisfy the grand jury that probable cause existed for the return of an indictment. The prosecutor is under no duty to present all the incriminating evidence he has, nor to inform the grand jurors of the existence of additional or more direct evidence. If the evidence presented was not sufficient to convince the grand jury that there was probable cause to charge the defendant, it, of course, would have voted a no true bill or inquired as to the existence of additional evidence. We note that the prosecutor did advise the grand jury of its right to subpoena anyone against whom the State might seek an indictment, thereby fulfilling his statutory duty (Ill. Rev. Stat. 1975, ch. 38, par. 112 — 4(b)).

The trial judge gave as his final reason for dismissing the indictment the fact that the prosecution did not advise the grand jury that a judge had previously found no probable cause to believe defendant had committed attempted murder. In addition, defendant contends that absent extraordinary circumstances the prosecution is barred by section 7 of article I of the Illinois Constitution of 1970 from obtaining an indictment from a grand jury after a no-probable-cause determination at a preliminary hearing. This contention, however, was rejected in People v. Kent (1972), 54 Ill. 2d 161, wherein the court stated:

“In our opinion the language of the constitutional provision, as well as the history of its evolution, negates any thought that its purpose was to attach finality to a finding of no probable cause, or to establish mutually exclusive procedures so that grand jury proceedings would be barred if an accused had been discharged upon preliminary hearing.” 54 Ill. 2d 161, 163-64.

As the court in Kent noted, the record of proceedings of the Sixth fllinois Constitutional Convention makes it quite clear that this provision was intended to permit the prosecutor to seek the indictment of one who has been previously discharged on a finding of no probable cause.

In his written statement of his findings and conclusions the trial judge indicated in his opinion that the combined effect of what he regarded as the State’s errors necessitated dismissal of the indictment “in order to protect the integrity of the judicial process and upon the basis of fundamental fairness and due process.” Neither he nor defendant, however, has called to our attention any authority requiring the State to inform grand jurors of a prior finding of no probable cause, or invalidating an indictment returned without knowledge that such a finding had been made.

In our judgment, unless the finding by the preliminary hearing judge of no probable cause is to preclude presentation to a grand jury of evidence of the same crime, which Kent holds it does not, the grand jury need not be apprised of that finding. We believe the prosecution acted properly by informing the grand jury of neither the preliminary finding of probable cause as to aggravated battery nor the finding of no probable cause as to attempted murder.

Defendant also contends that the investigator’s failure to tell the grand jury that defendant stopped knifing the victim when his brother told him to “come on” and to “stop” prejudiced him because such evidence shows that he lacked intent to kill. Although the viciousness of the attack as testified to by the victim produces considerable doubt as to any prejudice, we decline to make the substantive determination defendant seeks. A defendant may not challenge an indictment on the ground that it is not supported by adequate evidence. (People v. Jones (1960), 19 Ill. 2d 37.) Guilt or innocence is to be determined at trial.

Defendant claims that the indictment should be dismissed because the prosecutor did not instruct the grand jury as to the difference between aggravated battery and attempted murder. Defendant is entitled to a proper instruction at trial, but that requirement is not applicable at the accusatorial stage.

Lastly, defendant asserts a right to counsel and a right of cross-examination during grand jury proceedings. “A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated. Rather, it is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.” (United States v. Calandra (1974), 414 U.S. 338, 343-44, 38 L. Ed. 2d 561, 569, 94 S. Ct. 613, 618.) Neither the defendant nor his counsel had a right to participate in grand jury proceedings except as provided by our statute (Ill. Rev. Stat. 1977, ch. 38, par. 112 — 4), which is not applicable here.

While in cases such as this there is some temptation to transform the grand jury proceedings into a “kind of preliminary trial” (Costello v. United States (1956), 350 U.S. 359, 363, 100 L. Ed. 397, 402, 76 S. Ct. 406,408), the most important protection for the accused in our system of law is a fair trial itself. We recognize, of course, that a trial is inconvenient, time-consuming and expensive — a burden not repaid by acquittal — but there appears little logic in adopting burdensome, costly and time-consuming grand jury procedures as a remedy. As the Supreme Court has put it: “Any holding that would saddle a grand jury with mini trials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” United States v. Dionisio (1973), 410 U.S. 1, 17, 35 L. Ed. 2d 67, 81,, 93 S. Ct. 764, 773.

Accordingly, the judgment of the circuit court of Cook County dismissing the indictment is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

MR. JUSTICE CLARK,

dissenting:

As I see it, the central issue in this case is whether the circuit court may dismiss an indictment obtained through the suppression of substantial evidence tending to negate the existence of an essential element of the offense charged. The majority’s answer apparently is that the circuit court may not dismiss such an indictment, because prohibition of such prosecutorial tactics would unduly burden the administration of justice. I disagree. If the grand jury is to have any hope of fulfilling its “historic function” of protecting “citizens against unfounded criminal prosecutions” (United States v. Calandra (1974), 414 U.S. 338, 343, 38 L. Ed. 2d 561, 568, 94 S. Ct. 613, 617) courts ought not permit prosecutors to manipulate grand jurors through suppression of substantial exculpatory evidence.

The key to understanding the significance of the evidence suppressed in this case is that the indictment at issue here charged the defendant with the offense of attempted murder (Ill. Rev. Stat. 1977, ch. 38, pars. 8 — 4 (attempt), 9 — 1(a) (murder)), of which the intent to kill is an essential element. (See People v. Harris (1978), 72 Ill. 2d 16, 27.) The evidence suppressed might well have led the grand jurors to conclude, as had Judge Pompey, that there was not probable cause to believe that the defendant had intended to kill his wife.

It was not necessary to tell the grand jury that Judge Pompey had decided that there was not probable cause to believe that defendant had intended to kill his wife. Indeed, telling the grand jury what a judge thought about the evidence presented to them would have been improper and prejudicial, because it would have intruded upon the right of the grand jury independently to evaluate that evidence. However, the prosecutor’s suppression of that part of the evidence which had led Judge Pompey to conclude that the intent to kill was lacking even more seriously intruded upon the independence of the grand jury. Suppression of that evidence was the functional equivalent of telling the grand jury that such evidence did not exist and that even though they were getting their facts “secondhand,” they were getting all of the material facts then available. Less than the whole truth, however, is not the truth and no amount of philosophizing about the need for efficiency and speed in the administration of criminal justice can change an indictment based on half the truth into one based upon the whole truth. Acquittal is poor compensation for months of anxious uncertainty, for massive, and perhaps crushing legal expenses, for the loss of one’s good name, and for the public humiliation of one’s family. (See People v. Sears (1971), 49 Ill. 2d 14, 36.) The power to indict therefore is tantamount to the power to destroy, if its exercise is not tempered by a basic sense of justice and fair play.

This court has not, before now, given the prosecutor carte blanche with the grand jury. As recently as last year, in Hughes v. Kiley (1977), 67 Ill. 2d 261, 267, this court implicitly reaffirmed its commitment to providing a “pretrial examination of potential prosecutorial misconduct before the grand jury.” The court indicated by way of dicta (which at least the author intended be followed) that where a defendant clearly alleges a legal and factual basis for dismissal of an indictment so obtained, “[t] he court hearing the motion, having found such clear allegations to be present, may examine the record to determine whether the indictment should be dismissed.” (67 Ill. 2d 261, 267.) The above-quoted statement was not a hypothetical application of some obscure new theory, but rather, was based upon substantial authority from this and other courts’ decisions. (See People v. Sears (1971), 49 Ill. 2d 14, 34-36.) Both courts and the profession have recognized the wrongfulness of the prosecutorial conduct at issue here:

“The prosecutor should disclose to the grand jury any evidence which he knows will tend to negate guilt.” (ABA Standards, The Prosecution Function sec. 3.6(b) (1971).)

In United States v. Estepa (2d Cir. 1972), 471 F.2d 1132, the United States Court of Appeals for the Second Circuit-recognized this problem in a similar context. See also United States v. Marchand (2d Cir. 1977), 564 F.2d 983, 1001 n.29, cert denied (1978), 434 U.S. 1015, 54 L. Ed. 2d 760, 98 S. Ct. 732.

It is easy to reverse the dismissal of an indictment of a man accused of attempting to beat and stab his wife to death. (See, for example, the court’s discussion of the “viciousness of the attack” as it bears upon the absence of prejudice in this case (72 Ill. 2d at 527).) But the relaxed attitude which the court displays toward prosecutorial misconduct before the grand jury may eventually permit the practices at issue here to permeate the administration of justice, further eroding an important protection against those few prosecutors who, from time to time, lose sight of the higher ideals they have sworn to uphold. I therefore respectfully dissent.


source: Caselaw Access Project

author: MR. JUSTICE CLARK MR. CHIEF JUSTICE WARD,

license: Public Domain

text:
    (No. 50113.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BENEDETTO J. MASSARELLA et al., Appellees.

      Opinion filed Oct. 6, 1978.

    — Rehearing denied Dec. 1, 1978.

      WARD, C.J., dissenting.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Herbert Lee Caplan, Donald B. Mackay, and John F. Podliska, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Julius Lucius Echeles, Frederick F. Cohn, and Carolyn Jaffe, of Chicago, for appellees.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The issue is whether the Attorney General properly appeared on behalf of the People before the grand jury. The Cook County grand jury on June 8, 1973, returned a 49-count indictment for conspiracy, perjury, theft and tax evasion against Benedetto J. Massarella; Bee Jay’s Truck Stop, Inc., a corporation of which Massarella was president and sole shareholder; Mideast Transport, Inc., a corporation controlled by Massarella; and several others. Prior to trial, all but five counts were dismissed. Massarella was found guilty by a jury of conspiracy, theft and one count of perjury; sentenced to five years’ probation, including two years’ periodic imprisonment (for theft) and one to three years in the penitentiary (for perjury), both sentences to run concurrently; and ordered to pay a $10,000 fine and $425,407 in restitution to the State.

Massarella raised 15 issues for review before the appellate court, which reversed the conviction on the basis of one of those issues. (53 Ill. App. 3d 774.) Massarella had argued, as he does here, that the indictment should have been dismissed due to the Attorney General’s presentation to the grand jury and prosecution of the case, which were, he maintains, unauthorized and prejudicial. The appellate court agreed, finding that the Attorney General’s common law powers were not so broad as to allow him to “take exclusive charge” of the prosecution, that the Attorney General was statutorily limited to “assisting” the State’s Attorney in the prosecution of the case and could not assist the State’s Attorney absent a request, and that the statutory provision for grand jury secrecy (Ill. Rev. Stat. 1973, ch. 38, par. 112 — 6) denied the Attorney General access to grand jury proceedings. (53 Ill. App. 3d 774, 786.) We allowed the State’s petition for leave to appeal. 58 Ill. 2d R. 315.

The facts as to Massarella’s alleged illegal activities and perjury, set out in the appellate court’s opinion, are not relevant to our disposition of the appeal. Pertinent facts will be related as is necessary in the course of the opinion.

The Attorney General acknowledges that the bill of indictment was presented to the grand jury by two assistant Attorneys General and that neither the State’s Attorney nor assistant State’s Attorneys were present during the presentation. Four days later, on June 12, 1973, and again on June 15, assistant State’s Attorneys, representing the People at the arraignments of the defendants, told the court the Attorney General was handling the case. At all subsequent stages of the proceedings, the Attorney General has been representing the State.

Under the Illinois Constitution, the Attorney General is the chief legal officer of the State and has “the duties and powers that may be prescribed by law.” (Ill. Const. 1970, art. V, sec. 15; Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394.) At common law in England by the 16th century, the Attorney General, as the king’s representative, instituted and conducted suits and proceedings for the enforcement of laws in all the courts. (6 W. Holds worth, History of English Law 461-62, 467 (1924).) In the course of its development, the common law gave to Attorneys General the competence to control all litigation on behalf of the State including intervention in and management of all such proceedings. This encompassed appearances before the grand jury. (Commonwealth ex rel. Minerd v. Margiotti (1936), 325 Pa. 17, 188 A. 524; Margiotti Appeal (1950), 365 Pa. 330, 75 A.2d 465; 2 Ruling Case Law 915-16 (1929); DeLong, Powers and Duties of the State Attorney-General in Criminal Prosecution, 25 J. Grim. L. & Criminology 358 (1934); Note, Appointed Attorney General’s Power to Supresede an Elected District Attorney, 33 Temple L.O. 78 (1959). See also People v. Miner (1868), 2 N.Y. 396; Note, The Relationship Between the Attorney-General and the State’s Attorney in Illinois, 1949 U. Ill. L.F. 507; Holdsworth, The Early History of the Attorney and Solicitor General, 13 Ill. L. Rev. 602 (1918).) In 1915, Fergus v. Russel (1915), 270 Ill. 304, 335-42, held that, under the 1870 Illinois Constitution, the Attorney General not only retained his common law powers and duties but also could not be deprived of them by the legislature. The legislature could only add to the powers. It is beyond dispute that the 1970 Constitution has kept those powers intact. (E.g., People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 500, Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394, 399. See also 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1312-16, especially Delegate Lewis’ comments at page 1316 regarding the Attorney General’s authority “over the prosecution branch of state government, including that of the state’s attorneys.”) Fergus v. Russel still has life. What is before us is the narrow issue of whether, where the State’s Attorney has expressed no objection, the Attorney General may properly initiate and prosecute an action including appearing before a grand jury. If so, did the State’s Attorney object here?

Although the appellate court looked to sections 4 and 5 of “An Act in regard to attorneys general and state’s attorneys” (Ill. Rev. Stat. 1973, ch. 14, pars. 4, 5), People v. Flynn (1940), 375 Ill. 366, and section 112 — 6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 112 — 6) for guidance, we disagree with its analysis.

By statute among the duties of the Attorney General are:

“First — To appear for and represent the people of the state before the supreme court in all cases in which the state or the people of the state are interested.
Second — To institute and prosecute all actions and proceedings in favor of or for the use of the state, which may be necessary in the execution of the duties of any state officer.
***
Fourth — To consult with and advise the several state’s attorneys in matters relating to the duties of their office; and when, in his judgment, the interest of the people of the state requires it, he shall attend the trial of any party accused of crime, and assist in the prosecution.” (Ill. Rev. Stat. 1973, ch. 14, par. 4.)

The State’s Attorney has among his obligations the duty:

“(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county maybe concerned.” (Ill. Rev. Stat. 1973, ch. 14, par. 5.)

We are concerned especially with the fourth duty of the Attorney General, the duty to “consult with and advise the several state’s attorneys” and “attend the trial *** and assist in the prosecution.” That statutory duty authorizing the Attorney General to advise the State’s Attorney and assist the prosecution was the foundation for this court’s holding in People v. Looney (1924), 314 Ill. 150, 153-54, that the defendant had no basis for objecting to the appearance of the Attorney General before the grand jury where the State’s Attorney made no objection.

In Looney, the defendants moved to quash an indictment, for conspiracy to furnish gambling equipment, because of the presence, of assistant Attorneys General at the grand jury presentment. The trial court denied the motion and this court agreed. Looney approvingly cited as authority for its decision State ex rel. Nolan v. District Court (1899), 22 Mont. 25, 28-29, 55 P. 916, 917. In that opinion the Montana Supreme Court said there was no “limit whatever to the assistance” which could be given to a county attorney and that when the Attorney General found it necessary to do so “he shall assist the county attorney, and must do so in the discharge of the duties which the county attorney is required by law to perform.” (See 314 111. 150, 158.) This court concluded that since the Attorney General had the statutory duty to assist the State’s Attorney, the Attorney General could properly appear before the grand jury where there had been no objection by the State’s Attorney. Accord, People v. Billburg (1924), 314 Ill. 182, People ex rel. Castle v. Daniels (1956), 8 Ill. 2d 43, 46-47 (where this court also noted that it had “never viewed the powers vested in the State’s Attorney as exclusive of those vested in the Attorney General”), and People v. Robins (1975), 33 Ill. App. 3d 634, 637-38. See also Annot., 4 A.L.R.2d 392, 405-06 (1949). Cf. People ex rel. Elliott v. Covelli (1953), 415 Ill. 79, and People ex rel. Hoyne v. Newcomer (1918), 284 Ill. 315, 323 (where this court noted that the powers of the State’s Attorney were not “co-extensive with those of the Attorney General, who is the chief law officer of the State and head of the legal department”).

The appellate court, dismissing Looney, found this case “resembles” People v. Flynn (1940), 375 Ill. 366, “wherein the Attorney General excluded the State’s Attorney from the grand jury room and took exclusive charge of the prosecution.” (Emphasis added.) (53 Ill. App. 3d 774, 785.) It is true, as the appellate court found, that the Flynn court noted that neither the statutory duty of the Attorney General to assist State’s Attorneys nor Looney authorized this. However, Flynn is not apposite here. First, the record here simply does not indicate exclusion by the Attorney General. The appellate court concedes this. What the record does show is lack of objection by the State’s Attorney and acquiescence by him. The State’s Attorney signed the true bill of indictment, as did the Attorney General. At two separate arraignments, assistant State’s Attorneys made noncommittal statements that the Attorney General was in charge of the case. These comments do not express, as the defendant urges, exclusion of or objection by the State’s Attorney. Second, in Flynn, the indictment was quashed, not because the Attorney General was involved, but because it was defective. This court’s comments in Flynn about the wrongful exclusion of the State’s Attorney by the Attorney General were not dispositive but amounted to dicta. Note, The Relationship Between the Attorney-General and the State’s Attorney in Illinois, 1949 U. Ill. L.F. 507, 512.

We believe, then, this case more closely resembles Looney. Finding no objection by the State’s Attorney, we conclude the Attorney General was within the scope of his statutory duties.

Our final concern is the appellate court’s construction of a provision of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 112 — 6(a)) so as to prohibit the appearance of the Attorney General before the grand jury. The provision is:

“Only the State’s Attorney, his reporter and 'any other person authorized by the court may attend the sessions of the Grand Jury. Only the grand jurors shall be present .during the deliberations and vote of the Grand Jury. If no reporter is assigned by the State’s Attorney to attend the sessions of the Grand Jury, the court, on petition of the foreman and 11 other grand jurors, may for good cause appoint such reporter.”

We have already determined that the Attorney General may assist the State’s Attorney to the extent that he may discharge all those powers of the State’s Attorney at all stages in a prosecution, including the preliminary proceedings such as presentations to a grand jury, where the latter does not object. Hence, we do not see a conflict with section 112 — 6(a). It was not meant to enumerate powers of the State’s Attorney but to implement a policy of secrecy of grand jury hearings by excluding unauthorized persons. We find no reason to assume that the Attorney General will be less diligent in guaranteeing their confidentiality. Moreover, the Attorney General has, in some instances, exclusive statutory power to institute and prosecute cases (e.g., section 16 of the Cigarette Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 453.16)) without specific permission to appear before the grand jury in such cases. We do not believe the grand jury provisions can be so narrowly construed as to render the Attorney General’s power to initiate and prosecute these cases a nullity. (This is not the first time this court has rejected a literal reading of the grand jury provisions in order to avoid conflict with another statutory provision (People ex rel. Sears v. Romiti (1971), 50 Ill. 2d 51, 60-61).) Finally, section 112-6(a) of the Code of Criminal Procedure of 1963 allows “any other person authorized by the court” to attend grand jury sessions. The court here implicitly authorized the Attorney General to attend; otherwise it would have quashed the indictment, since it has supervisory power over the grand jury in order to prevent abuse of its process. People v. Sears (1971), 49 Ill. 2d 14, 28.

For the reasons stated we reverse the judgment of, and remand to, the appellate court for consideration of remaining unresolved issues.

Reversed and remanded, with directions.

MR. CHIEF JUSTICE WARD,

dissenting:

I must dissent from this holding, which could importantly affect criminal prosecutions throughout the State. I judge that the appellate court was correct in concluding that there was fundamental error in the prosecution “because the Attorney General, improperly and in excess of his authority, instituted the proceedings, presented the cause to the Grand Jury, and entirely conducted the prosecution of the case.” 53 Ill. App. 3d 774, 778.

The opinion of the majority states that where the State’s Attorney does not object, the Attorney General “may discharge all those powers of the State’s Attorney at all stages in a prosecution, including the preliminary proceedings such as presentations to a grand jury.” (72 Ill. 2d at 538-39.) It is obviously error to hinge the important determination as to whether the Attorney General, by the State’s Attorney’s mere failure to object, may assume and discharge the county officer’s powers. Section 4 of “An Act in regard to attorneys general and state’s attorneys” (Ill. Rev. Stat. 1973, ch. 14, par. 4) authorizes the Attorney General:

“To consult with and advise the several state’s attorneys in matters relating to the duties of their office; and when, in his judgment, the interest of the people of the state requires it, he shall attend the trial of any party accused of crime, and assist in the prosecution.”

Thus, the Attorney General, when in his judgment the interest of the People requires it, may assist in a prosecution. There is nothing in the record to show that the interest of the People here required the assistance of the, staff of the Attorney General or that he considered that it was required. There is no suggestion that the State’s Attorney was without personnel to conduct the prosecution or that his office had refused to initiate the prosecution. I wholly agree with the reasons given by the appellate court, in its discussion of the issue, that the above statutory provision does not empower the Attorney General to participate in a prosecution in the absence of any request to do so from the State’s Attorney, and that passivity, acquiescence, and mere failure to object by the State’s Attorney does not constitute a request for assistance. The correctness of the appellate court’s decision is underscored by the unsuccessful attempt made by the Attorney General to have the legislature amend section 4, which is referred to in the appellate court opinion (53 Ill. App. 3d 774, 784).

The rejected amendment would have authorized the Attorney General to prosecute for offenses involving the collection of taxes (an offense which was prosecuted here), and would have conferred on the Attorney General all of the powers of State’s Attorneys in criminal proceedings.

Also, the Attorney General conducted the entire prosecution here. There was not even a profession or claim that he was assisting the State’s Attorney. As the appellate court observed, the Attorney General, by his assistants, appeared before the grand jury and at trial unaccompanied by the State’s Attorney or any of the latter’s staff. On the first arraignment date, an assistant State’s Attorney said simply, “This is a matter presented by the Attorney General and the State has no information.” At the second arraignment another assistant State’s Attorney said, “This is the Attorney General’s case.” (53 Ill. App. 3d 774, 783.) While the Attorney General has the statutory authority to assist when the interest of the People requires it, here there was a substitution for the State’s Attorney, rather than his being assisted. There is nothing to show that the interest of the People required the assistance of the State officer, much less his entirely conducting the prosecution, or that the State’s Attorney requested assistance.

It is also highly important to point out that quite apart from the fact that the role played by the Attorney General in the trial here went beyond that of assisting in the prosecution, there is nothing in section 4 which gives him the power to step in before the trial has even begun by attending sessions of the grand jury and presenting evidence to it. Such action is clearly forbidden by section 112 — 6(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 112 — 6(a)), which provides:

“Only the State’s Attorney, his reporter and any other person authorized by the court may attend the sessions of the Grand Jury. Only the grand jurors shall be present during the deliberations and vote of the Grand Jury. If no reporter is assigned by the State’s Attorney to attend the sessions of the Grand Jury, the court, on petition of the foreman and 11 other grand jurors, may for good cause appoint such reporter.”

No court authorized any appearance by the Attorney General before the grand jury. I would also note that the foregoing provision is implemented by section 112 — 6(b) (Ill. Rev. Stat. 1973, ch. 38, par. 112 — 6(b)), of which no mention is made in the majority opinion, and which provides:

“Matters other than the deliberations and vote of any grand juror may be disclosed by the State’s Attorney solely in the performance of his duties. *** Any grand juror or officer of the court who discloses, other than to his attorney, matters occurring before the Grand Jury other than in accordance with the provisions of this sub-section is in contempt of court, subject to proceedings in accordance to law.”

The latter reference is obviously directed against those persons who may attend sessions of the grand jury, a class which does not include the Attorney General.

The secrecy of grand jury proceedings serves interests other than those of the Attorney General and the State’s Attorney, so that mere acquiescence by the latter in an unauthorized intrusion by the former could not make the intrusion lawful. See People v. French (1965), 61 Ill. App. 2d 439, 441-42.

Witnesses before the grand jury, persons who may be the subject of a presentation of evidence to the grand jury or an inquiry by it, and the general public interest are served by the secrecy of grand jury proceedings. This is a legislative design and it may not be set aside, unless, as the statute provides, the court authorizes persons other than those designated by the legislature to attend grand jury sessions. People v. Looney (1924), 314 Ill. 150, on which the majority mistakenly relies, simply did not consider this aspect of the problem. Indeed it could not, as that case was decided in 1924, and the provisions of section 112 — 6 were not enacted until 1963 (1963 Ill. Laws 2838, 2860).


author: MR. JUSTICE CLARK

text:
    (No. 49873.
    FRANK VOLOVICH, Appellee, v. THE INDUSTRIAL COMMISSION et al. —(The Metropolitan Sanitary District of Greater Chicago, Appellant.)

      Opinion filed Oct. 6, 1978.

    — Rehearing denied Dec. 1, 1978.

      Allen S. Lavin, of Chicago (Andrew A. Farenga, Paul D. Lindauer, Jr., and James B. Murray, of counsel), for appellant.
    Murges & Bowman, of Chicago (George J. Murges and John T. Bowman, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This is an appeal as of right pursuant to Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a)) from a decision of the circuit court of Cook County, which set aside the decision of the Industrial Commission in this cause on the ground that the Industrial Commission’s decision was against the manifest weight of the evidence. We disagree, and accordingly we reverse the judgment of the circuit court and reinstate the decision of the Industrial Commission, which denied relief to the petitioner.

On October 16, 1969, Frank Volovich, the petitioner, was employed as a maintenance worker by the respondent, the Metropolitan Sanitary District of Greater Chicago. That morning, he was mopping a floor in. one of the District’s facilities when he allegedly slipped on the wet floor and, as he fell, struck his lower back against a table before striking the floor with his neck, lower back and left arm. There were no other witnesses to the occurrence. Petitioner claimed that following this incident he was “semiconscious” for several minutes, after which he got up from the floor and walked the 75 or 100 feet to the office of the facility’s chief engineer, William Walsh. At the hearing before the arbitrator, Walsh testified that all Volovich said at that time was that he was sick. Volovich, on the other hand, testified that he told Walsh that he had had an accident and had fallen.

Walsh notified Volovich’s foreman, Casimir Blaszynski, who testified that Volovich told him that he had had a fainting or dizzy spell, and that “he was getting no chest pains, like a shoulder pain in his left arm.” Blaszynski’s credibility later was seriously impeached. On cross-examination Blaszynski denied having discussed the case with anyone, including Walsh. That statement was contradicted by Walsh’s admission that he had discussed the case with Blaszynski on their way to the hearing.

The next day, Volovich went to see his family physician, Dr. Alphonse Gnilka. Dr. Gnilka had no independent recollection of having seen and treated petitioner on that date, but his written records of treatment were admitted into evidence over petitioner’s objection (in support of which petitioner has cited no authority). Those notes for October 17, 1969, read, “While working everything went numb and patient did faint,” and for a subsequent visit on November 4, 1969, the notes read, “pain in left side *** muscle strain left middle back.” On October 22, 1969, petitioner returned to work, at which time he signed a report which Blasznyski prepared, describing the reason for his absence as “dizzy spell and nervous condition.” Petitioner subsequently resigned his position with the District on December 19, 1969.

On January 6, 1970, petitioner filed his claim in the instant cause. Shortly thereafter, on February 19, 1970, he was admitted to the Central Community Hospital for treatment of back problems which he claims were causally connected with the events of October 16. However, on his admission to the hospital, Volovich denied on an insurance form that his back problem related to an injury occurring in the course of employment. Petitioner’s explanation of this statement is that he was less than truthful in filling out the form because he would not have been admitted to the hospital for treatment of an injury occurring in the course of his employment.

Other incidents also tend to undercut petitioner’s current theory of his disability. On February 23, 1970, Volovich was interviewed by Dr. W. Malhas, whose report indicated that Volovich denied “any history of recent trauma or any other known illness.” On April 21, 1970, Volovich denied having any physical handicap or disability when he applied for employment with the Chicago Housing Authority. Here, too, he submits that he lied in order to get the job. Volovich was successful in obtaining that job, but on June 3, 1970, his back was injured while working there, for which he received compensation in the amount of $13,500.

Nor does the medical testimony completely support petitioner’s position. The petitioner’s expert witness, Dr. Irwin Barnett, told the arbitrator that the first accident might or could have contributed to the petitioner’s present disability. However, on cross-examination, Dr. Barnett admitted that, though it would be highly unusual, it also was possible that the second injury accounted entirely for petitioner’s present disability. Respondent’s expert, Dr. Clarence Zurfli, testified that, in his opinion, there was no causal connection between the first alleged injury and petitioner’s current disability. He further testified that X rays taken in February, prior to the second accident, indicated only normal degeneration, though he admitted that it is possible that the degeneration could have been aggravated by trauma. Another witness, Dr. Robert Busch, testified that X rays taken of petitioner following the second accident indicated certain osteopathic spurring of the L-5 vertebra and slippage leading to a narrowing of the disc space between the L-4 and L-5 vertebrae, as well as other changes in the L-l and L-2 vertebrae. In response to a question as to whether the spurring described may be due to trauma, Dr. Busch testified “it may be accentuated or it may be increased, it may increase the spurring and it also may be due to various other things.” He did indicate, however, that these changes in the vertebrae definitely antedated the second accident and indeed could have occurred as early as the first accident.

The arbitrator found in favor of the petitioner, but-the Industrial Commission, after hearing additional evidence regarding petitioner’s other claims for compensation in both related and unrelated incidents (none of which impeached his credibility), found in favor of the respondent. Although the decision of the arbitrator is a factor which may be considered in determining whether the Industrial Commission’s decision was against the manifest weight of the evidence, on this record we cannot say that the Industrial Commission’s decision was against the manifest weight of the evidence.

The record reflects substantial inconsistencies between petitioner’s testimony before the arbitrator and his prior statements and conduct. These inconsistencies seriously impeach his credibility, despite his plausible explanations of them. The weight to be accorded the demeanor evidence available only to the arbitrator did not, in our opinion, require the Industrial Commission to accept the arbitrator’s evaluation of petitioner’s credibility. Thus, on this record, even though the evidence strongly suggests that petitioner was suffering a disability, the Commission could have found that petitioner’s disability was not causally connected with his employment by respondent, and such a finding would not have been against the manifest weight of the evidence. The circuit court therefore erred in setting aside the Commission’s decision. Moore v. Industrial Com. (1975), 60 Ill. 2d 197, 203.

For the foregoing reasons, the judgment of the circuit court is reversed.

Judgment reversed.


author: MR. JUSTICE GOLDENHERSH

text:
    (No. 49954.
    GALE BRABAND et al., Appellees, v. BEECH AIRCRAFT CORPORATION et al. -(Beech Aircraft Corporation, Appellant.)

      Opinion filed Oct. 6, 1978.

    — Rehearing denied Dec. 1, 1978.

      KLUCZYNSKI, J., took no part.

      Lord, Bissell & Brook, of Chicago (Gary W. Westerberg, Hugh C. Griffin and Richard E. Mueller, of counsel), for appellant.
    Philip H. Corboy and Associates, of Chicago (Philip H. Corboy, of counsel), for appellees.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, par. 1 et seq.) plaintiffs, Gale Braband and Elizabeth Forsythe, administrators of their respective deceased husbands’ estates, brought these consolidated actions in the circuit court of Cook County against defendant Beech Aircraft Corporation, hereafter defendant, and other defendants not involved in this appeal. The circuit court denied defendant’s motion to quash the service of summons and included in its order the findings requisite to an application for leave to appeal. (Supreme Court Rule 308, 58 Ill. 2d R. 308.) The appellate court allowed defendant’s application for leave to appeal, affirmed the order of the circuit court (51 Ill. App. 3d 296), and granted a certificate of importance permitting an appeal to this court. Supreme Court Rule 316, 58 Ill. 2d R. 316.

The agreed statement of facts filed in the circuit court shows that an airplane, designed and manufactured by defendant, crashed as it approached an airport near Frobisher Bay, Northwest Territories, Canada, and that the three pilots on board were killed. Plaintiffs are the administrators of the estates of James L. Braband and Donald Forsythe, two of the pilots. The airplane was manufactured by defendant in Wichita, Kansas, and in 1966 was sold by defendant to Tex-Sun Beechcraft, Inc., located in San Antonio, Texas. In 1968 Tex-Sun sold it to Mission Broadcasting Company, located in Reno, Nevada. In 1971, Mission Broadcasting sold the aircraft to Coleman Aircraft Corporation of Morton Grove, Illinois. After being based in Illinois for a period of time, the aircraft was apparently sold by Coleman to Eagle Aircraft Services, Ltd., of London, England, and at the time of the crash was being flown from Morton Grove to London. The decedents were,and their surviving dependents have at all times been, residents of Illinois. When the airplane crashed it was owned by either Coleman or Eagle and was being piloted by Eagle’s employee, James Going.

In affirming the circuit court’s order, the appellate court majority filed two separate opinions. The lead opinion based the affirmance on the ground that defendant was amenable to service under section 17 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 17) for the reason that it had, within the contemplation of that section, committed a “tortious act” within this jurisdiction. The rationale of the special concurrence was that by reason of its contractual relationship with Hartzog Aviation Co., a distributor of defendant’s products, defendant was present and doing business in Illinois and was therefore amenable to service of process under the provisions of sections 16 and 13.3 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, pars. 16, 13.3).

The statutes in pertinent part provide:

“Sec. 13.3. Service on private corporations. A private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of said corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law. A private corporation may also be notified by publication and mail in like manner and with like effect as individuals.” Ill. Rev. Stat. 1971, ch. 110, par. 13.3.
“Sec. 16. Personal service outside State.
(1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication.” Ill. Rev. Stat. 1971, ch. 110, par. 16(1).
“Sec. 17. Act submitting to jurisdiction — Process.
(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(a) The transaction of any business within this State;
(b) The commission of a tortious act within this State;
* * *
(2) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this Section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.
(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this Section.
(4) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.” Ill. Rev. Stat. 1971, ch. 110, par. 17.

In count I of plaintiffs’ amended complaint directed against defendant as the manufacturer of the airplane, and another defendant as the manufacturer of the altimeter, a component part of the airplane, it was alleged:

“At the time and place aforesaid, the airplane and the altimeter were designed, manufactured, assembled and sold in a condition that was not reasonably safe in one or more of the following respects:
a. That the airplane was not aerodynamically sound and was likely to crash when used and/or flown in a reasonably foreseeable manner.
b. That the altimeter was manufactured in such a manner that it did not reflect accurate altitude readings for the airplane when said airplane was airborne and when the aircraft was being flown in a manner which was reasonably foreseeable.
c. That the altimeter was manufactured and sold without any warnings that it was likely not to reflect accurate altitude readings for the aircraft when said aircraft was airborne and when the aircraft was being flown in a manner which was reasonably foreseeable.”

Defendant concedes that if it was amenable to service of process in Illinois, such service was properly made. It contends, however, that the appellate and circuit courts erred for the reasons that this cause did not arise out of the commission of a tortious act within the State of Illinois and that the activities of Hartzog Aviation, Inc., a separate independent Illinois corporation, did not, in this case, serve to subject defendant to the jurisdiction of the courts of Illinois. It is plaintiffs’ position that defendant committed a tortious act in Illinois within the contemplation of section 17 of the Civil Practice Act and that defendant was “present and doing business in Illinois” and therefore amenable to service of process.

The question whether a State may appropriately assert jurisdiction over a foreign corporation has been the subject of frequent litigation. Recently, in Shaffer v. Heitner (1977), 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569, the Supreme Court reviewed the pertinent authorities commencing with Pennoyer v. Neff (1878), 95 U.S. 714, 24 L. Ed. 565, and concluded that the standards elucidated in International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, continued to be the test of a State’s jurisdiction over a foreign corporation. The standards prescribed in International Shoe Co. are that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice. ’ ” (326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.) In Shaffer, after quoting the foregoing language from International Shoe Co., the court said:

“[T]he inquiry into the State’s jurisdiction over a foreign corporation appropriately focused not on whether the corporation was ‘present’ but on whether there have been
‘such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there.’ [326 U.S. 310, 317, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.]

Mechanical or quantitative evaluations of the defendant’s activities in the forum could not resolve the question of reasonableness:

‘Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.
That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.’ [326 U.S. 310, 319, 90 L. Ed. 95,
104, 66 S. Ct. 154,. 160.] ” 433 U.S. 186, 203-04, 53 L. Ed. 2d 683, 697, 97 S. Ct. 2569,2580.

Assuming that “due process is satisfied” the assertion of jurisdiction over a foreign corporation has traditionally required the finding that it was “present and doing business” within this jurisdiction. (See discussion, Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 327.) The difficulties encountered in the application of this concept to given factual situations were noted in Shaffer v. Heitner (1977), 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569, wherein the Supreme Court said:

“The motorists’ consent theory was easy to administer since it required only a finding that the out-of-state driver had used the State’s roads. By contrast, both the fictions of implied consent to service on the part of a foreign corporation and of corporate presence required a finding that the corporation was ‘doing business’ in the forum State. Defining the criteria for making that finding and deciding whether they were met absorbed much judicial energy. See, e.g. International Shoe Co. v. Washington, 326 U.S., at 317-319. While the essentially quantitative tests which emerged from these cases purported simply to identify circumstances under which presence or consent could be attributed to the corporation, it became clear that they were in fact attempting to ascertain ‘what dealings make it just to subject a foreign corporation to local suit’. Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141 (CA2 1930) (L. Hand, J.).” 433 U.S. 186, 203, 53 L. Ed. 2d 683, 697, 97 S. Ct. 2569, 2579,

In St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, the court said:

“In the context of our evolving concepts of jurisdictional requirements, the Supreme Court has observed:
‘ “ [T] raditional notions of fair play and substantial justice” can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage. ’ Shaffer v. Heitner (1977), 433 U.S. 186, 212, 53 L. Ed. 2d 683, 703, 97 S. Ct. 2569, 2584.” 68 Ill. 2d 38, 46.

“The amount and kind of activities which must be . carried on by the foreign corporation in the state of the forum so as to make it reasonable and just to subject the corporation to the jurisdiction of that state are to be determined in each case.” (Perkins v. Benguet Consolidated Mining Co. (1952), 342 U.S. 437, 445, 96 L. Ed. 485, 492, 72 S. Ct. 413, 418.) Assuming that upon the facts shown by the record “due process is satisfied” the decision whether to take or decline jurisdiction is left to the General Assembly and the courts of this State. Perkins v. Benguet Consolidated Mining Co. (1952), 342 U.S. 437, 448, 96 L. Ed. 485,494, 72 S. Ct. 413, 420.

Sections 16 and 17 of the Civil Practice Act were amended in 1955 (1955 Ill. Laws 2238, 2245-46), and shortly after the amendments became effective on January 1, 1956, their validity was challenged in Nelson v. Miller (1957), 11 Ill. 2d 378. In 1954 the defendant in Nelson, a Wisconsin resident engaged in the business of selling appliances, had sent one of his employees to deliver appliances to the plaintiff in Illinois. In the course of that delivery, as the result of the negligence of defendant’s employee, the plaintiff was injured. Plaintiff filed suit in 1955 and made two unsuccessful attempts to serve the defendant with summons in Illinois. In February 1956, summons was served personally on the defendant in Wisconsin. The circuit court allowed the defendant’s motion to quash the summons, and the plaintiff appealed. In reversing the order and upholding the service of process on the defendant the court said:

“The foundations of jurisdiction include the interest that a State has in providing redress in its own courts against persons who inflict injuries upon, or otherwise incur obligations to, those within the ambit of the State’s legitimate protective policy. The limits on the exercise of jurisdiction are not ‘mechanical or quantitative’ (International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945),) but are to be found only in the requirement that the provisions made for this purpose must be fair and reasonable in the circumstances, and must give to the defendant adequate notice of the claim against him, and an adequate and realistic opportunity to appear and be heard in his defense.” (11 Ill. 2d 378, 384.)

The court concluded that “Sections 16 and 17 of the Civil Practice Act reflect a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause.” 11 Ill. 2d 378, 389.

From the agreed statement of facts it does not appear that plaintiffs’ causes of action arose from any act of defendant’s distributor Hartzog, or that the relationship between Hartzog and defendant was in any manner connected with the occurrence in which plaintiffs’ decedents were killed; nor does it appear that plaintiffs’ causes of action arose from “the transaction of any business within this State” (Ill. Rev. Stat. 1971, ch. 110, par. 17(l)(a)). Relying principally upon Cannon Manufacturing Co. v. Cudahy Packing Co. (1925), 267 U.S. 333, 69 L. Ed. 634, 45 S. Ct. 250, and its progeny, defendant argues that Mr. Justice Siam os, specially concurring in the appellate court’s affirmance of the circuit court’s order, erroneously concluded that by reason of its contractual relationship with its distributor, Hartzog, defendant was “present and doing business” in Illinois. We note that Cannon was decided more than 20 years prior to the decision in International Shoe Co. and did not purport to decide any question other than whether conducting business through a wholly owned subsidiary rendered the parent corporation amenable to process in the State where the subsidiary did business. The Supreme Court stated that:

“The obstacle insisted upon is that the court lacked jurisdiction because the defendant, a foreign corporation, was not within the State. No question of the constitutional powers of the State, or of the federal Government, is directly presented. The claim that jurisdiction exists is not rested upon the provisions of any state statute or upon any local practice dealing with the subject.
The resistance to the assumption of jurisdiction is not urged on the ground that to subject the defendant to suit in North Carolina would be an illegal interference with interstate commerce. Compare International Harvester Co. v. Kentucky, 234 U.S. 579, 587-89. The question is simply whether the corporate separation carefully maintained must be ignored in determining the existence of jurisdiction.” (267 U.S. 333, 336, 69 L. Ed. 634, 642, 45 S. Ct. 250, 251.)

In our opinion the agreed statement of facts shows that defendant engaged in activities in Illinois in addition to those conducted by Hartzog, and we need not, therefore, decide whether Hartzog’s activities standing alone would serve as a sufficient basis to assert jurisdiction.

As required by International Shoe and Shaffer, we consider “the quality and nature of the activity” in which defendant was engaged and whether it is reasonable to require defendant “to defend the particular suit which is brought [here].” (International Shoe Co. v. Washington (1945), 326 U.S. 310, 317, 319, 90 L. Ed. 95, 102, 104, 66 S. Ct. 154, 158, 160.) These actions are brought by Illinois residents to recover for the wrongful deaths of Illinois residents during a flight which originated in Illinois • and are clearly “within the ambit of the State’s legitimate protective policy.” (Nelson v. Miller, 11 Ill. 2d 378, 384.) The agreed statement of facts shows that defendant and Hartzog are parties to a written agreement under the terms of which Hartzog is permitted to sell defendant’s products within a given area of the State of Illinois and which, inter alia, requires it to perform all warranty, maintenance and repair service on all Beechcraft planes covered by warranty provisions regardless of whether they were sold by Hartzog. Further, defendant was empowered to inspect Hartzog’s complete operation from time to time, including its business facilities, records, supplies and personnel, and could, under certain conditions, without advance notice, terminate the sales agreement. It also appears that defendant’s marketing manager frequently visited Hartzog with the express purpose of promoting the sales of defendant’s aircraft; that defendant, together with Hartzog, had sponsored a sales program in Illinois which included a film and slide presentation and a dinner for sales prospects in Illinois; and that, for a period of at least five years, advertisements had appeared in the Chicago Metropolitan Area telephone directories to advertise and indicate the presence of locations where defendant’s products and parts could be purchased. In view of defendant’s activities within Illinois designed to effect sales to residents of Illinois, defendant could reasonably assume that airplanes which it manufactured would be owned by residents of Illinois and in view of the high degree of mobility peculiar to its products could further assume that they would be flown both within Illinois and into other States, or as in this instance, to other countries. We hold, therefore, that as reflected by the agreed statement of facts, defendant’s activities show sufficient contacts with this State so that requiring it to defend this action does not offend “traditional notions of fair play and substantial justice.”

We hold further that these activities show defendant to be present and doing business in Illinois and amenable to service of process under sections 13.3 and 16 of the Civil Practice Act. St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, 43.

In view of our holding we do not consider plaintiffs’ contention that defendant committed a tortious act within the contemplation of section 17(l)(b) of the Civil Practice Act. '

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

Judgment affirmed.

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


author: MR. CHIEF JUSTICE WARD

text:
    (No. 50108.
    DOROTHY HAYES, Appellant, v. LOWELL RUSSELL ALSBURG et al., Appellees.

      Opinion filed Sept. 19, 1978.

    — Rehearing denied Dec. 1, 1978.

      Jerome Mirza & Associates, Ltd., of Bloomington, for appellant.
    John R. Luedtke, of Bloomington, for appellee Lowell Russell Alsburg.
    T.G. Kanppenberger, Jr., of Champaign, for appellee Sidney M. Vickers.
    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (William C. Wetzel, of counsel), for appellee Frank E. Enyart.

      Costigan & Wollrab, of Bloomington, for appellee Terry L. Hart.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

The plaintiff, Dorothy Hayes, brought an action for personal injuries in the circuit court of McLean County against the drivers of four cars involved in a rear-end chain collision, which she alleged had occurred as the result of negligence on the part of one or more of the defendants, Lowell Alsburg, Sidney Vickers, Frank Enyart, and Terry Hart. A jury returned verdicts for all four defendants, and the appellate court, with one justice dissenting, affirmed (52 Ill. App. 3d 355). We granted the plaintiff’s petition for leave to appeal (65 Ill. 2d R. 315).

There had been an earlier jury trial, at which the court directed a verdict for the plaintiff on the issue of whether she had been guilty of contributory negligence. That jury had returned verdicts in favor of the four defendants, but the trial judge allowed the plaintiff’s motion for a new trial. In the second trial, which was conducted before a different judge, the plaintiff also made a motion for a directed verdict on the issue of contributory negligence, as well as a motion for a directed verdict that one or more of the defendants had been guilty of negligence as a matter of law. The motions were denied. The jury returned verdicts in favor of the defendants, and the plaintiff’s motions for a new trial and judgment n.o.v. were denied.

The four autos involved were traveling in the southbound passing lane of Route 66 near Shirley, at 1:30 a.m. on August 30, 1969. Route 66 at that point was a four-lane divided highway. The posted speed limit was 70 miles per hour. It was clear and dark and there was heavy automobile and truck traffic. There was no lighting of any kind in the vicinity of the collisions. Autos 1, 2, 3, and 4 were driven by the defendants Alsburg, Vickers, Enyart, and Hart respectively. The plaintiff was asleep in the rear seat of auto 3 (Enyart’s). She and the other three occupants of auto 3 were returning from a vacation in Canada and had been traveling all day.

Alsburg, the driver of auto 1, testified that he had observed a sign indicating that a crossover was ahead. (A crossover is a break in the highway that allows cars to make a U-turn and join traffic proceeding in the opposite direction.) He turned on his turn signal and was slowing down preparatory to beginning a U-tum when, he said, his car was struck from the rear by auto 2. Alsburg stated that, remarkably, it was pushed several hundred feet south of, or beyond, the crossover. He had not seen any headlights approaching from the rear until seconds before the impact. Two passengers from his auto gave similar testimony.

The driver of auto 2, Vickers, testified that he had been traveling in the passing lane at 60 to 65 miles per hour when he observed the brake lights of auto 1, which he said was stopped 500 feet ahead to the south of the crossover. He saw no cars approaching from the rear as he brought his auto to a halt one car length behind auto 1. He testified that his tail lights were in operating order at that time. Moments later, his automobile was struck from the rear by auto 3, and slammed into auto 1, knocking it 100 feet forward. Almost immediately his car was hit a second time, but the second impact was much less severe. The four passengers in auto 2 testified to the same effect as Vickers.

The testimony of Enyart, the driver of auto 3, in which the plaintiff was riding, seemed in defiance of physical laws. He testified that he had switched into the passing lane approximately 150 feet from what turned out to be the point of impact, and was proceeding at 60 to 70 miles per hour. He observed auto 2, stopped in his lane with no lights, as he came within 80 feet of it. He gradually applied his brakes, he said, and slowed-to 3 to 5 miles per hour within 6 feet of auto 2, when he was struck once from the rear by auto 4. The impact of that collision caused his car to strike the rear of auto 2. He said his car struck the other only once, contradicting the testimony of Vickers, who said his auto was struck twice by auto 3. He testified that he would have been able to have stopped his car without striking auto 2 had he not been struck from the rear. The plaintiff’s adult daughter, also a passenger in auto 3, gave substantially the same testimony.

The driver of auto 4, Hart, who was traveling alone, also gave testimony which seemed extraordinary. He said that he moved into the passing lane at 70 miles per hour moments before the collision. He said that he had noticed auto 3 pass him at a greater speed than his own before he switched lanes. He stated that he was 6 to 8 car lengths from auto 3 when he heard a crash. He put on his brakes immediately, but struck auto 3 once, as he was braking down to “below 50 miles per hour.” He did not observe any stop lights on auto 3.

The investigating officer, Leonard Kelly, testified that there were no highway signs indicating the existence of a crossover, and that all the skidmarks and debris from the collisions were located south of the crossover. He estimated the approximate point where auto 1 was struck to be 75 feet south of the crossover, and he testified that the driver of auto 1 told him he had realized he was proceeding on the wrong highway, and that he had intended to make a U-turn at the crossover but had “missed” it. The officer’s accident report does not indicate such a statement was given by auto l’s driver; it does, however, indicate violation by auto l’s driver for improper turning, and speeding violations by the drivers of autos 2, 3 and 4.

The plaintiff testified simply, so far as the collisions were concerned, that she was asleep in the back seat, and did not remember how long she had slept.

The questions we must determine are whether the trial court should have directed a verdict that the sleeping plaintiff was not contributorially negligent as a matter of law, and also whether the plaintiff was entitled to a directed verdict that one or more of the defendants were negligent as a matter of law.

This court has not considered the question, but it has been held that the circumstance alone that an automobile passenger is sleeping at the time of a collision is not sufficient to withdraw the question of his contributory negligence from the jury. Rather, this circumstance should be considered along with all other relevant ones by the jury in deciding whether there was contributory negligence. (Aurora National Bank v. Galauner (1967), 81 Ill. App. 2d 132, 135; Dursch v. Fair (1965), 61 Ill. App. 2d 273, 285; Thompson v. Riemer (1936), 283 Ill. App. 371, 376.) It has been held that a defendant was not entitled to a directed verdict that the plaintiff was contributorially negligent on the sole ground that the plaintiff was asleep (Ramirez v. Deters (1976), 41 Ill. App. 3d 935; Dursch v. Fair (1965), 61 Ill. App. 2d 273; Thompson v. Riemer (1936), 283 Ill. App. 371; Smith v. Courtney (1935), 281 Ill. App. 530); similarly it has been held that it was error to grant a plaintiff a new trial on the ground that his sleeping amounted to freedom from contributory wilful and wanton misconduct as a matter of law (Aurora National Bank v. Galauner (1967), 81 Ill. App. 2d 132). See generally W. Prosser, Torts sec. 65, at 420 (4th ed. 1971); 5 D. Blashfield, Automobile Law and Practice sec. 215.23 (3d ed. 1966); Comment, 44 Iowa L. Rev. 622 (1959); 17 Minn. L. Rev. 222 (1933); see also 2 F. Harper & F. James, Torts sec. 16.7, at 921-22 (1956).

Nevertheless, the plaintiff argues that under the particular circumstances of this collision her motion for a directed verdict on the issue of her contributory negligence should have been granted. She contends that there was nothing she could have seen or done to avoid the accident had she remained awake and kept a lookout, and that the courts have frequently deplored “backseat driving.” The standard governing the direction of verdicts was stated by this court in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510: “In our judgment verdicts ought to be directed and judgments n'.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 86; Walling v. Lingelbach (1976), 65 Ill. 2d 244, 247; Mizowek v. De Franco (1976), 64 Ill. 2d 303, 309; Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 157; Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 246; Walsh v. Finley (1972), 51 Ill. 2d 174, 178; Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 181; Calvetti v. Seipp (1967), 37 Ill. 2d 596, 598.) This standard was made applicable also to the question of contributory negligence: “Logic demands that one rule govern both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law, for in both situations the issue is whether a court or the jury should decide the negligence issue.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494,503.

A review of all the evidence tending to prove or disprove the plaintiff’s due care for her own safety, “viewed in its aspect most favorable to the opponent[s],” does not require one to say that it “so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” The plaintiff’s party had traveled aU day and was still on the road at 1:30 a.m.; traffic was heavy, the speed limit was 70 miles per hour, and the hour was late. The driver of auto 4 testified that the plaintiff’s car had passed his at a speed in excess of 70 miles per hour moments before the collision. A jury might have inferred that the speeding had been continuous and concluded that an ordinarily prudent passenger would not have gone to sleep under all these circumstances. (See 5 D. Blashfield, Automobile Law and Practice sec. 215.23 (3d ed. 1966).) It is not unreasonable to say that these evidentiary factors in combination produce a question of fact as to whether the plaintiff was in due care for her own safety, a question which was properly submitted to the jury.

Finally, the trial court did not err in denying the plaintiff’s motion for a directed verdict that the jury find any one or more of the defendants guilty of negligence as a matter of law. The evidence was sharply conflicting; no driver conceded liability. The evidence against any of the drivers in favor of the plaintiff clearly did not overwhelmingly favor the plaintiff so that a verdict for the defendant could not stand. See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

The plaintiff asked the trial court to instruct the jury in effect that it could discharge its duty simply by finding against one or more of the four defendants. The responsibility of the jury could not be so simply and summarily met. The circumstance that there were four defendants did not diminish or alter the obligation of the jury here to find against only the person or persons whose liability to the plaintiff had been specifically and individually established.

Prosser describes this succinctly:

“It is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant.” (W. Prosser, Torts sec. 39, at 218 (4th ed. 1971).)

He further observes:

“Some quite intricate questions arise where the plaintiff proceeds against two or more defendants. Unless there is vicarious liability or shared control, the logical rule usually is applied, that the plaintiff does not make out a preponderant case against either of two defendants by showing merely that he has been injured by the negligence of one or the other. Occasional statutes permitting the plaintiff to join the two as defendants, and to proceed against them with pleading in the alternative, have been held to be intended to avoid a nonsuit, but not to affect the ultimate burden of proof by a preponderance of the evidence against someone. The questions which arise are amply illustrated by the cases of colliding vehicles.” W. Prosser, Torts sec. 39, at 221 (4th ed. 1971).

As was aptly noted by the appellate court in this case, the directed verdict would have been internally inconsistent. On the one hand, it implies that there is overwhelming evidence against any one or more of the defendants; but on the other hand it implies that the evidence is not overwhelming against those defendants the jury chooses to find not guilty of negligence, so long as at least one is found to have been negligent. See Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 682 (English, J., dissenting).

For the reasons given, the judgment of the appellate court, affirming the judgment of the circuit court of McLean County, is affirmed.

Judgment affirmed.