author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BETTY M. SMITH, Defendant-Appellant.
    First District (5th Division)
    No. 83—500
    Opinion filed May 11, 1984.
    James J. Doherty, Public Defender, of Chicago (Judith A. Stewart, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Sara Dillery Hynes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant appeals following a bench trial in which she was convicted on January 18, 1983, of aggravated battery in the stabbing of an individual she knew to be an employee of the State of Illinois, Department of Public Aid (Ill. Rev. Stat. 1981, ch. 38, par. 12— 4(b)(5)). She was subsequently sentenced to 30 months’ probation conditional upon her continued treatment as an outpatient at a mental health facility.

Defendant contends that her conviction should be reversed because (1) the stabbing was not intentionally or knowingly committed, as it was accidental; and (2) the State failed to rebut expert testimony which showed the defendant to be insane at the time of the offense.

The State’s evidence established that defendant was present at the office of the State of Illinois Department of Public Aid located at 3910 West Ogden Avenue, Chicago, Illinois, on February 3, 1982, in an attempt to receive public assistance.

Marcella Keller, supervising caseworker for the Department of Public Aid (Department) testified that the defendant was brought into her office shortly before 10 a.m. on February 3, 1982, by one of Keller’s employees who had had a problem dealing with defendant in her request for public assistance and food stamps.

When Keller discovered that defendant already had an active public assistance file under another name at the Department’s Michigan Avenue office, she informed her that she would have to go to the Michigan Avenue office for any further assistance. After defendant protested that she did not wish to go, Keller proceeded to complete an interoffice referral along with a carfare slip to transfer defendant to the other office. While she was writing out these forms, with her head down towards the desk, she heard another caseworker shout, “Miss Keller, she has a knife,” in reference to defendant.

Keller looked up from her desk and saw defendant coming “across” the desk with a knife in hand. She got out of her seat and backed up against the wall. At this point, two other Department employees hustled defendant out of Keller’s office and into the hallway.

Keller, who followed them out of her office, further testified that defendant refused to surrender the knife to Naomi Pryor, a uniformed security guard, who then tried to disarm the defendant; that thereafter, Pryor shouted that she was cut; that Keller observed Pryor bleeding from the hand; but that she could not determine from her perspective whether the defendant released the knife once Pryor started to bleed.

The victim, Naomi Pryor, testified on behalf of the State that on February 3, 1982, she was employed by Great Lakes Security and assigned to the Department’s office on Ogden Avenue; and that at approximately 10 a.m. on February 3, 1982, she was seated at her desk, approximately 50 feet from Keller’s office, where she observed the defendant being led out of the office by the Department employees. As Pryor started down the hallway toward the office, the defendant came within arms length of her and she noticed a knife in defendant’s right hand which was held down beside her coat.

After defendant refused to surrender the knife as requested, Pryor grabbed defendant’s right wrist and a tussle ensued. She was shoved against a cubical as she held defendant’s arm. Defendant then started “coming over” her back. Pryor took one of her hands off defendant’s hand that was holding the knife, and held her elbow up against defendant’s chin to prevent her from “coming over” her. As she did this, she continued to hold defendant’s right hand which contained the knife.

When defendant started falling back, Pryor stretched her hand out to try to hold defendant, who was still holding the knife in her hand. Although she did not feel the five-inch blade cut through her fingers she soon realized that she had been cut. The defendant had twisted the knife while it was lodged in her hand, causing further damage. Her injury required two surgeries and a hospital stay of six days.

On cross-examination, Pryor testified that defendant had never threatened her with her knife; that defendant never raised the knife at her, but that defendant’s knife had cut her as defendant jerked away from her; and that she was unable to release the knife during her struggle with the defendant.

Defendant’s motion for directed finding based on the accidental nature of the injury was denied.

Doctor Henry Stipes, a psychiatrist employed by the Psychiatric Institute of the circuit court of Cook County, testified on behalf of the defendant. He examined defendant on March 31, 1982, and July 28, 1982. Pursuant to his examination of July 28, 1982, he formulated the opinion that defendant was suffering from schizophrenia, paranoid type. It was his opinion, based upon his (1) personal examination of defendant, (2) review of defendant’s previous psychological records, and (3) the police record in this case, that defendant was not able to appreciate the criminality of her conduct on February 3, 1982, the date of the stabbing. Further, it was his opinion that defendant was not subject to involuntary admission on the hearing date. Stipes further testified that defendant was currently an out-patient in a mental center and was receiving 100 milligrams of Mellaril daily.

On cross-examination, Stipes acknowledged that he was the first psychiatrist to diagnose her as paranoid schizophrenic; and that defendant had previously been treated by psychologists at the Elgin Mental Health Center where she was diagnosed as having a paranoid disorder, mental retardation and paranoid personality disorder.

Stipes spent a total of approximately two hours interviewing defendant, and concluded that her inappropriate behavior on February 3, 1982, led him to believe she suffered from psychosis on that date, although he admitted that not all inappropriate conduct under the instant circumstances would equate to psychotic behavior. He further stated that her conduct, in and of itself, did not lead him to believe she was psychotic on February 3, 1982, but that it was her delusional thinking (related to him later by defendant), concerning people trying to harm her which illustrated a psychosis.

Finally, Stipes testified that he was not aware of the length of time defendant’s psychotic state existed prior to his examination of her; that it could have arisen subsequent to defendant’s incarceration; and that he did not know for a fact whether she was psychotic on February 3, 1982.

The trial court found defendant guilty of aggravated battery and sentenced her to 30 months’ probation with the condition she continue to receive outpatient treatment at the Bobby E. Wright Community Health Center, as well as continue her prescribed medication.

Opinion

Defendant initially contends the stabbing was accidental and therefore not the intentional or knowing act required for a conviction based on aggravated battery.

The State conversely maintains that while defendant may not have intentionally stabbed the victim, she nonetheless acted knowingly, under Illinois law, where the conduct she consciously engaged in — pulling out a knife, refusing to give it to a uniformed security guard, and struggling with the security guard for possession of the knife — was practically certain to cause the result — cutting the security guard’s hand.

Section 12 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4) provides in pertinent part that the offense of aggravated battery is committed when:

“(b) A person who, in committing a battery *** either:
(1) Uses a deadly weapon;
* * *
(5) Knows the individual harmed to be a caseworker, investigator, or other person employed by the State Department of Public Aid *** and such *** person is upon the grounds of Public Aid office ***.” Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 4(b)(1), (5).

It is the State’s position that the requirements of section 12— 4(b)(1) or (5) are satisfied by virtue of the fact that the victim was employed as a security guard at a public aid office and for the further reason that the injury was inflicted by defendant using a knife, which has been held to be a deadly weapon. People v. Mastin (1969), 110 Ill. App. 2d 400, 402-03, 249 N.E.2d 658.

Defendant contends that Pryor’s own testimony recounts only an accidental injury; that defendant was not using the knife in a threatening manner before or during the encounter with Pryor; that when defendant refused to hand the knife over to Pryor, it was Pryor’s jamming of her elbow into defendant’s chin which led to defendant’s fall; and that it was the fall that precipitated the cut of Pryor’s hand and not defendant’s voluntary act.

Defendant cites section 4 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 1) for the proposition that “A material element of every offense is a voluntary act ***,” and because defendant states as her position that she accidentally fell upon Pryor, she cannot and should not be guilty of aggravated battery due to her lack of the requisite mental state needed for this act.

We agree with the State’s position that the issue raised by the defendant is whether the State proved the battery was committed intentionally or knowingly.

Section 12 — 3 of the Criminal Code of 1961 provides:

“(a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3(a).

Defendant takes no issue with the fact that bodily harm was caused to Pryor as a result of this scuffle. Thus, the issue revolves around whether defendant acted knowingly.

Section 4 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 5) provides in pertinent part:

“A person knows, or acts knowingly or with knowledge of:
* * *
(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” Ill. Rev. Stat. 1981, ch. 38, par. 4 — 5.

In the instant case, defendant should have realized or been “consciously aware” that injury to the victim was the natural and probable consequence of her taking the knife in her hand, and her refusal to relinquish such to the victim. Awareness is the primary distinction between the mental states of knowledge and negligence. (Ill. Ann. Stat., ch. 38, par. 4 — 3, Committee Comments, at 256-57, 260 (Smith-Hurd 1972).) Knowledge and intent involve an awareness of the harm resulting from one’s act. (People v. Herr (1980), 87 Ill. App. 3d 819, 822, 409 N.E.2d 442.) Knowledge, due to its very nature, is ordinarily proven by circumstantial evidence, rather than by direct proof. People v. Sedlacko (1978), 65 Ill. App. 3d 659, 663, 382 N.E.2d 363.

In a case similar to the case at bar, People v. Rickman (1979), 73 Ill. App. 3d 755, 391 N.E.2d 1114, the court held that in order for the defendant to be proved guilty of aggravated battery, the State need only show that defendant- knowingly scuffled with victim and that the victim received great bodily harm (here it was a broken ankle) as a result of the scuffle; the fact that defendant didn’t intend to break the victim’s ankle was immaterial where it was shown that defendant did intend to scuffle with the victim. “Anyone who engages in a scuffle must be deemed to be aware that someone may be injured as a result.” 73 Ill. App. 3d 755, 760.

Defendant, by refusing to surrender her knife to the victim, should have known that a scuffle would naturally ensue. “One who does an unlawful act is liable for the consequences even though they may not have been intended.” People v. Hickman (1973), 9 Ill. App. 3d 39, 44, 291 N.E.2d 523.

Although we quarrel not with defendant’s claim that she did not intend to harm the victim, we do not, however, see this as an accidental act on the part of defendant.

We therefore find that it was not unreasonable for the trial court to have inferred from these facts that defendant was consciously aware (knew) that serious injury was practically certain to be caused by her conduct.

Defendant next contends that the State failed to meet its burden of proving her sanity beyond a reasonable doubt because the testimony of the defense psychiatrist was not contradicted by other expert evidence and lay witness testimony cannot support a finding of sanity.

It is defendant’s position that Dr. Henry Stipes, the only expert witness to testify in the instant case, stated that defendant suffered from a mental illness-schizophrenia, paranoid type — and that as a result of this illness, she would have been unable to appreciate the criminality of her actions or to conform her actions to the requirements of the law on February 3, 1982, the day of the alleged stabbing.

Thus, defendant contends that she met the statutory definition of insanity contained within section 6 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 2), which provides in pertinent part:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Ill. Rev. Stat. 1981, ch. 38, par. 6 — 2(a).

Defendant posits that Stipes elicited delusional beliefs from her during his March 1982 interview with her regarding Chinese, Japanese, street gangs and her family being out to harm her; that as a result of these delusions defendant carried the knife for protection; and any overt action on the part of the security guard would make her act aggressively.

The State conversely contends that it did not have the burden of proving defendant sane, and cites People v. Martin (1980), 87 Ill. App. 3d 77, 409 N.E.2d 114, where the court stated, “While all men are presumed sane, if the defendant raises the affirmative defense of insanity by presenting sufficient evidence of insanity as to create a reasonable doubt of sanity, the burden shifts to the State to prove beyond a reasonable doubt that the accused was legally sane at the time the offense was committed.” 87 Ill. App. 3d 77, 81.

It is our belief that the testimony of Dr. Stipes in the instant case did not raise a reasonable doubt as to defendant’s sanity. Dr. Stipes had testified that defendant was treated at the Elgin Mental Health Center by psychologists where she was diagnosed as having a paranoid disorder, paranoid personality disorder, and mental retardation with an I.Q. of 64, but was not diagnosed as being psychotic. Stipes admitted that disorders of this nature can exist without psychoses.

Additionally, Stipes admitted, at the close of defendant’s case that he was not aware of the length of time defendant’s present psychotic state existed prior to his initial examination of defendant in March 1982; that it could have arisen subsequent to defendant’s incarceration; and that he did not know for a fact whether defendant was psychotic on February 3, 1982.

Although an abnormality diagnosed as psychosis qualifies as a mental disease sufficient to relieve one of criminal responsibility (see People v. Kuhn (1979), 68 Ill. App. 3d 59, 64, 385 N.E.2d 388), we believe defendant’s sanity at the time of the crime was a question of fact to be determined by the trier of fact. People v. Ford (1968), 39 Ill. 2d 318, 320, 235 N.E.2d 576.

The trial court heard Dr. Stipes’ testimony that he was unable to determine that defendant was, for a fact, psychotic on the date of the offense and as trier of fact, weighed the testimony and determined the credibility of the witnesses, both lay and expert, without being required by law to accept the opinions of psychiatrists concerning defendant’s sanity. (People v. Goodwin (1980), 83 Ill. App. 3d 203, 403 N.E.2d 1051.) We will not disturb this determination of the trier of fact unless it is palpably erroneous. People v. Arndt (1972), 50 Ill. 2d 390, 396, 280 N.E.2d 230.

We therefore find the trial court correct in its determination that Stipes’ testimony failed to raise a reasonable doubt as to defendant’s sanity on the date of the offense, as only insanity shown to exist at the very time of the crime can excuse it. People v. Dunigan (1981), 96 Ill. App. 3d 799, 820, 421 N.E.2d 1319.

Further, it is therefore irrelevant that Dr. Stipes’ testimony was not contradicted by the State via other expert evidence, because it is well established that the State need not call an expert to rebut testimony by an expert called by the defense. People v. Young (1978), 60 Ill. App. 3d 351, 353, 376 N.E.2d 739.

Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, this court awards the State costs in the amount of $50.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MEJDA, P.J., and WILSON, J., concur.

      This opinion was adopted as the opinion of the court prior to the death of Mr. Justice Wilson.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    JUDY HOLECEK, Adm’x of the Estate of Jerry Alios Holecek, Deceased, Plaintiff-Appellant, v. E-Z JUST, Defendant (Sterling Models, Inc., et al., Defendants-Appellees).
    First District (5th Division)
    No. 83—1142
    Opinion filed May 11, 1984.
    Leonard M. Ring & Associates, of Chicago (Judith E. Fors, of counsel), for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (Shaun McFarland, of counsel), for appellee Sterling Models, Inc.
    VanDuzer, Gershon, Jordan & Peterson, of Chicago (Horace W. Jordan, of counsel), for appellee LaGrange Hobby Center, Inc.
    Haskell & Perrin, of Chicago (James V. Marcanti, of counsel), for appellee Perfect Parts Company.
    Lord, Bissell & Brook, of Chicago (Hugh C. Griffin, of counsel), for appellee Sullivan Products, Inc.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Judy Holecek, administratrix of the estate of Jerry Alios Holecek, deceased, appeals from the summary judgments entered in her suit based on strict liability in tort in favor of defendants Sterling Models, Inc. (Sterling), Perfect Parts Co. (Perfect), Sullivan Products, Inc. (Sullivan), and LaGrange Hobby Center, Inc. (Hobby Center).

Deceased was plaintiff’s husband. He had purchased a model airplane kit from the Hobby Center. The kit manufactured by Sterling contained only those parts necessary to construct a balsa wood airplane. It did not contain any accessories or parts making the wooden model plane capable of being flown. In order to fly it, decedent purchased also from the Hobby Center, (a) a control wire manufactured by Sullivan, (b) a swivel connector manufactured by Perfect Parts, and (c) a control handle manufactured by E-Z Just and Elwood Phillips d/b/a Phil/Lays and distributed by SIG Manufacturing. E-Z Just and Elwood Phillips were never served. A summary judgment in favor of SIG was not appealed.

Plaintiff’s husband assembled the plane and on August 1, 1979, flew it for approximately one hour. On August 2, 1979, he was flying it adjacent to his home on land containing overhead electrical wires carrying 345,000 volts. He had leased this land from Commonwealth Edison Company (not a party to this litigation). While flying the model, it came into contact with the overhead wires — or at least within arcing distance. There was a large boom and a flash. He was severely burned and died August 23, 1979.

Shortly after the occurrence, he told a neighbor that he did not know how the accident happened, “but he thought that the power lines were higher than they apparently were.”

Plaintiff’s amended complaint against Hobby Center, Sterling, Perfect and Sullivan was grounded in essence on the contention that defendants’ products were defective and unreasonably dangerous in that they neither insulated the users from the foreseeable hazards of electricity nor gave sufficient warning of this danger. It alleged that the balsa wood airplane kit sold by Hobby Center and the parts manufactured by each of the other defendants respectively were “in a defective condition, unreasonably dangerous to users or consumers, in that they exposed users or consumers to the foreseeable and anticipated danger of electrocution from contact with high voltage electrical lines.”

With reference to Sterling, the manufacturer of the kit, and Hobby Center from whom it was purchased, the amended complaint alleged that the kit and the control handle were unreasonably dangerous in one or more of the following ways:

(a) The model airplane kit was not supplied with a nonconducting control line;
(b) The model airplane kit was not supplied with a handle capable of insulating the user from high voltage which the model airplane may encounter in flight;
(c) The model airplane kit was not supplied with sufficient warnings about the danger of using electrically conducting control lines and noninsulating control line handles.
(d) The model airplane control line handle was defectively designed and manufactured in that it allowed the hand of the user to contact the metal control line.

The trial court granted defendants’ motions for summary judgment,

“based on the lack of any duty to warn of the dangers of electricity as so ruled in Genaust v. Illinois Power Co., and further upon the lack of any defective and unreasonably dangerous conditions of any of aforesaid defendants’ products as alleged by the plaintiff, and not based upon the doctrines of assumption of the risk of misuse; ***.”

Plaintiff contends that the trial court in so holding was in error.

We disagree.

A failure to warn of a product’s dangerous propensities can be characterized as the defective condition which causes injury and may serve as the basis for holding a manufacturer or seller strictly liable in tort. Nelson v. Hydraulic Press Manufacturing Co. (1980), 84 Ill. App. 3d 41, 404 N.E.2d 1013; Woodill v. Parke Davis Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194. See also Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779.

In Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, a galvanized steel citizen’s band antenna and tower which plaintiff was installing came in close proximity to overhead, uninsulated power wires located close to the boundary of plaintiff’s property. Electric current arced from the overhead power lines through the antenna severely injuring plaintiff. Thereafter, plaintiff filed a strict liability action against the manufacturer of the.antenna alleging that the antenna was in an unreasonably dangerous condition since it did not have adequate warnings or labels informing plaintiff of the dangers of using, installing, or bringing the antenna in close proximity to overhead power wires.

The supreme court affirmed the dismissal of the strict liability count for failure to state a cause of action, saying (62 Ill. 2d 456, 465-66):

“Plaintiff’s basis for maintaining that counts III, IV and V state a cause of action under strict liability is predicated on the theory that the tower and the antenna were products which were unreasonably dangerous because they failed to have adequate warnings or labels attached informing users of the danger of electrical arcing if either of the products were brought in close proximity to power wires. He contends that the failure to warn of the possible danger is sufficient to constitute an unreasonably dangerous condition without the need to allege a specific defect in the design or construction of the product. While there is no dispute that contacting electrical wires poses a known danger, plaintiff maintains that it is not common knowledge that electricity can arc if a metal object is brought into close proximity with an uninsulated electrical transmission wire. He suggests this type of wire is used extensively in modern urban areas where many outside antennas are installed at heights equaling or exceeding the height of such wires thereby giving rise to a duty to warn of the danger of electrical arcing.
The determination of whether a duty to warn exists is a question of law and not of fact. (See Fanning v. LeMay (1967), 38 Ill. 2d 209; Mieher v. Brown (1973), 54 Ill. 2d 539, 541.) Underlying such a determination is necessarily the question of foreseeability (see 72 C.J.S. Products Liability, sec. 26 (1975 Supp.)), which, in the context of determining the existence of a duty, is for the court to resolve. ‘A foreseeability test, however, is not intended to bring within the scope of the defendant’s liability every injury that might possibly occur. “In a sense, in retrospect almost nothing is entirely unforeseeable.” [Citation.] Foreseeability means that which it is objectively reasonable to .expect, not merely what might conceivably occur.’ (Emphasis in original.) Winnett v. Winnett (1974), 57 Ill. 2d 7, 12-13.
Reviewing the facts alleged in the complaint, we do not find it was objectively reasonable for Hy-Gain, Rohn and Lurtz to expect a user of their products to be injured in the manner in which plaintiff was injured. As plaintiff admits, the danger of electricity is common knowledge. Moreover, it is common knowledge that metal will conduct electricity. Accordingly, it is not objectively reasonable to expect that a person knowing the danger of electricity if metal should contact electrical wires, would attempt to install a metal tower and antenna in such close proximity to electrical wires. The fact that plaintiff’s injury was the result of electricity arcing to the tower or the antenna rather than from actual contact with the wires is not controlling. The controlling fact is that it was not reasonably foreseeable a user would install the products in such proximity to electrical wires when the harsh consequences of the slightest mishap, which would cause the metal to contact the wires, are so obvious.”

and at page 467:

“Although comment j to section 402A of the Restatement (Second) of Torts recognizes that a failure to warn can make a product unreasonably dangerous, we conclude that a duty to warn is not required where the product is not defectively designed or manufactured, and where the possibility of injury results from a common propensity of the product which is open and obvious. Since the facts alleged in counts III, IV and V demonstrate on their face that plaintiff would never be entitled to recover under strict liability, these counts were properly dismissed. Burke v. Sky Climber, Inc. (1974), 57 Ill. 2d 542, 545.”

Plaintiff seeks to avoid the clear language of Genaust by asserting that it “should be grouped with those Illinois cases finding no duty to warn members of a trade or profession well-acquainted with a particular hazard.” This contention was explicitly rejected in Miscevich v. Commonwealth Edison Co. (1982), 110 Ill. App. 3d 400, 442 N.E.2d 338. In that case the court affirmed the granting of summary judgment for a defendant who manufactured a forklift. Plaintiff’s decedent in Miscevich had been killed when a forklift which had been used to raise a light pole came into contact with an electric power line. This caused a current of electricity to pass through the lift and to strike plaintiff’s decedent. The trial court, relying on Genaust, granted summary judgment in favor of the manufacturer of the forklift and against plaintiff’s decedent. On appeal, plaintiff urged reversal on the ground that in Genaust plaintiff was an electrical contractor while in Miscevich plaintiff’s decedent was a 19-year-old nonelectrician.

The court said:

“We do not believe Genaust can be read as narrowly as plaintiff contends. ***
Plaintiff has not cited any case which under similar facts limits the Genaust holding to plaintiffs who are knowledgable in electrical work. We conclude that the danger of electrical energy present under the facts is a matter of common knowledge to all persons of ordinary intelligence and experience and, as such, to the decedent. Thus, Genaust is controlling, and a duty to warn is not required under these facts.” Miscevich v. Commonwealth Edison Co. (1982), 110 Ill. App. 3d 400, 404, 442 N.E.2d 338.

Plaintiff’s decedent in the case at bar was a 40-year old man with experience in welding. He was of “ordinary intelligence and experience” to whom the danger of electrical energy present under the facts here was a matter of common knowledge for him. Where readily apparent and well-known dangers are involved, it is not foreseeable that a person could bring an object which conducts electricity into contact with or in close proximity to exposed electric wires.

On the record before us, the trial court correctly held that, as a matter of law, there was no duty on defendants to warn of the dangers of electricity and that there was a lack of any defective and unreasonably dangerous conditions of any of defendants’ products. Its holding, which we affirm, is not to be construed as establishing that the maker or seller of any product has no duty to warn any user of any electrical hazard at any time. Each case will depend on its own facts.

We note that the lease of the land upon which plaintiff’s decedent was standing when the accident occurred provided:

“THIRTEENTH: Due to the presence of Licensor’s electrical facilities located on the licensed premises, Licensee shall not allow any vehicles or equipment having a height in excess of 15 feet from the original ground grade level to be parked, used, driven or stored on the licensed premises. Licensee shall prohibit any activities such as flying kite or model airplanes or the transportation or movement of anything having a height in excess of 15 feet from original ground grade level on the licensed premises. In the event any crop on the licensed premises exceeds a maximum height of 15 feet, Licensee shall remove said crop at his sole cost and expense.” (Emphasis added.)

The summary judgments are affirmed.

MEJDA, P.J., and WILSON, J., concur.

      This opinion was adopted as the opinion of the court prior to the death of Mr. Justice Wilson.


author: JUSTICE DOWNING

text:
    DAVID C. DISHER, Plaintiff-Appellant, v. GIAN M. FULGONI et al., Defendants-Appellees (Gerald J. Eskin et al., Nominal Defendants-Appellees).
    First District (2nd Division)
    No. 83—2517
    Opinion filed May 1, 1984.
    Rehearing denied June 7, 1984.

      Gary M. Elden, Daniel A. Edelman, and Gerald E Lutkus, all of Reuben & Proctor, of Chicago, for appellant.
    William E. Snyder, of Chad well & Kayser, Ltd., of Chicago, for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

The issue in this case is whether, under Illinois law, an employee confidentiality agreement can be invalidated on the basis of being overly broad in scope and duration. Plaintiff, David C. Disher, contests the propriety of an order entered by the trial court denying his motion for preliminary injunctive relief. Plaintiff had sought, by virtue of this motion, to nullify or restrain enforceability of a confidentiality agreement executed by him while in the employ of Information Resources, Inc. (IRI), the corporate defendant in this action.

IRI is a marketing research company which designs, develops and maintains computer-based systems and services for the collection, as well as analysis, of market information on sales of packaged consumer goods. Essentially, IRI assists manufacturers of consumer goods in the testing and evaluation of their marketing plans for new products, media advertising, pricing and sales promotions.

In August 1981, plaintiff received an offer of employment from IRI, a Delaware corporation with its principal offices in Chicago. In order to commence working for IRI, plaintiff liquidated his marketing research business in Cincinnati, sold his home there and moved to Illinois. At the outset, plaintiff was employed by IRI as vice-president of operations; thereafter, he directed all market operations of “BehaviorScan,” including market fieldwork, data input and in-market quality control. The “BehaviorScan” system measures the effect of different marketing strategies on product purchases and thereby enabled IRI to (1) target television advertisements over cable television to groups of preselected consumer panelists, (2) collect panelist purchase data through the use of supermarket “point-of-sale” scanners, and (3) analyze the effect of client advertising by means of IRI’s computer systems.

At the time the instant action commenced, defendant Gian M. Fulgoni occupied the position of president and chief operating officer of IRI; defendant John L. Malee occupied the position of chairman of the board and chief executive officer of IRI; defendant William C. Walter occupied the position of vice-chairman of the IRI board; and the nominal defendants, joined so as to purportedly necessitate the determination of certain issues to be raised before the trial court, all occupied various positions as employees of IRI.

On January 19, 1982, plaintiff signed what was entitled an “Employee Confidentiality Agreement” (the Agreement). When first presented with the Agreement, plaintiff objected to being a signatory on the grounds of vagueness and overbreadth; however, after he was told that the Agreement was a nonnegotiable condition of employment, plaintiff proceeded to sign it out of fear of losing his job.

Specifically, plaintiff agreed as signatory not to disclose IRI’s trade secrets and confidential information to any third party. The restricted subject matter included, but was not limited to, client lists, marketing and business plans, computer programs and systems, test designs, IRI television converter specifications and lists, panel household identifications, matching routines, analytical models used for projecting data obtained from various stores, and financial data, generally referred to as proprietary information. The Agreement further precluded disclosure to any third party of confidential information and trade secrets belonging to IRI’s clients. All inventions, discoveries and improvements relating to IRI’s business, which were conceived by plaintiff in his individual capacity as an IRI employee, or in conjunction with other IRI employees, were also regarded as being confidential and thus subject to the nondisclosure commitment. Finally, the Agreement included this statement: “This agreement of confidentiality will survive my employment at IRI.” (Emphasis added.)

On April 6, 1983, plaintiff was informed that his services were no longer needed at IRI, and that he could use the company’s offices for 90 days in order to assist his transition to another job. Regarding such future employment, plaintiff was first told that the IRI executives preferred that he not work for the Burke Companies. By early June 1983, this preferential restriction was expanded to include the A.C. Nielsen Company as well as SAMI, a division of Time, Inc. Subsequent thereto, plaintiff received from IRI a four-page draft “letter agreement,” dated June 22, 1983, which, amongst other things, stated: “It is the Executive Committee’s view that it would be impossible for [plaintiff] to work for certain competitors in the near term without unfairly using confidential information adverse to the company’s best interest.” The letter then provided that plaintiff “will be under an obligation of nondisclosure of confidential information to any third party indefinitely, until that information otherwise becomes publicly known through legitimate origins.” A precise recitation of such confidential information was regarded by the executive committee as being “beyond the scope of this (or any) agreement ***.”

Following plaintiff’s refusal to agree to the June 22 nondisclosure proposal, he received a Western Union mailgram on June 29, 1983, which ordered relinquishment of all IRI materials in his possession, denied him further access to IRI facilities and, for the second time, informed him that his employment with IRI was terminated.

Two interviews with the A.C. Nielsen Company resulted in an offer to plaintiff of employment as field operations manager; however, this offer was withdrawn on July 22, 1983, due to a letter sent by IRI’s counsel, dated July 15, 1983, apprising A.C. Nielsen’s general counsel of the existence and nature of the Agreement signed by plaintiff in 1982. This letter further indicated that IRI would enforce and maintain, to the fullest extent, its proprietary rights under the Agreement.

On July 27, 1983, plaintiff filed a verified complaint claiming, inter alia, tortious interference with prospective economic advantage. Injunctive relief was thus sought to restrain IRI and the individual defendants from enforcing the Agreement. On August 16, 1983, IRI filed a verified counterclaim requesting that plaintiff be enjoined from disclosing, or otherwise using, any trade secrets or other proprietary information received by plaintiff while in IRI’s employ. This counterclaim further sought to preclude plaintiff from implementing any plans for the establishment of a competitive business.

On September 9, 1983, plaintiff agreed to a second employment offer from the A.C. Nielsen Company which was contingent on the entry, by October 15, 1983, of a declaratory judgment or an injunction invalidating or restraining enforcement of the Agreement. That same day, September 9, plaintiff filed an amended verified motion for preliminary injunctive relief which apprised the trial judge of the second employment offer. An evidentiary hearing on this motion commenced October 12, 1983. On October 14, 1983, following arguments by counsel, the trial court ruled that no basis existed by which it could grant injunctive relief. Acknowledging the novelty of plaintiff’s theory, the court nonetheless found “confidential information of a substantial sort” so as to obviate any likelihood of invalidation when a ruling on the merits would later be made. The trial court also held that the contract was not so overly broad that it should be nullified as a matter of law. It is the propriety of this determination which plaintiff now contests on appeal.

I

The sole issue raised by plaintiff on review is whether, under Illinois law, an employee confidentiality agreement can be invalidated on the basis of being overly broad in scope and duration. We answer this question, one of first impression in Illinois, in the affirmative.

A

As a general rule, Illinois courts have sought to encourage fair competition in the business sector in order to avoid restriction of an employee’s freedom to pursue a particular occupation. (Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 355, 425 N.E.2d 1034; TAD, Inc. v. Siebert (1978), 63 Ill. App. 3d 1001, 1004, 380 N.E.2d 963, appeal denied (1978), 71 Ill. 2d 621.) Since our free economy is based upon competition, one who has worked in a particular field cannot be compelled to erase from his mind all of the general skills, knowledge, acquaintances and overall expertise acquired during his tenure with the former employer. (Revcor, Inc. v. Fame, Inc. (1967), 85 Ill. App. 2d 350, 357, 228 N.E.2d 742; see also Schulenburg v. Signatrol, Inc. (1965), 33 Ill. 2d 379, 387, 212 N.E.2d 865, cert. denied (1966), 383 U.S. 959, 16 L. Ed. 2d 302, 86 S. Ct. 1225.) Our supreme court has held that where an employer seeks to enforce a palpably unfair and unconscionable agreement, there is no entitlement to the equitable remedies of injunction or specific performance. (Victor Chemical Works v. Iliff (1921), 299 Ill. 532, 551, 132 N.E. 806.) Consequently, “restraints have not been lightly placed upon an employee’s right to compete in a field in which he is most familiar.” Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 356, citing ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 94, 273 N.E.2d 393.

It is an uncontroverted principle of law that the enforceability of a restrictive covenant in restraint of trade is conditioned upon its reasonableness in terms of the resultant effect upon the parties to the contract and the public. (House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 37, 225 N.E.2d 21.) Essentially, noncompetition agreements are not favored by law; Illinois public policy requires that their chronological and geographical limitations, as well as the business interests they seek to protect, be carefully scrutinized by the courts. Konicki v. Oak Brook Racquet Club, Inc. (1982), 110 Ill. App. 3d 217, 223-24, 441 N.E.2d 1333; Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 764-65, 424 N.E.2d 719.

Similarly, we believe Illinois public policy dictates that employee confidentiality agreements should be subject to careful scrutiny. These agreements, like covenants not to compete, affect State interests, i.e., the flow of information necessary for competition among businesses. (Nasco, Inc. v. Gimbert (1977), 239 Ga. 675, 676, 238 S.E.2d 368, 369.) Hence, the validity of such agreements are to be determined in accordance with the public policy of the State of Illinois. This is to ensure that the restraint imposed will not cause undue hardship to the employee, and that it will not be greater than is necessary to protect the proprietary interests of the employer.

Therefore, in recognition of every individual’s fundamental right to pursue that vocation in which he is most proficient, the instant confidentiality agreement can be enforced only if, as in the case of a noncompetition agreement: (1) the chronological and geographical limitations are reasonable; (2) the information sought to be protected is, in fact, confidential; and (3) the restriction is reasonably necessary for the protection of a legitimate proprietary interest. See Konicki v. Oak Brook Racquet Club, Inc. (1982), 110 Ill. App. 3d 217, 223-24; Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 764-65.

B

It was not until oral argument before this court that counsel for plaintiff finally clarified that he sought more than the mere resolution of the theoretical question of law addressed above. Specifically, plaintiff contests the propriety of the order entered by the trial judge denying his request for a preliminary injunction.

The function of the trial court in considering a motion for preliminary injunctive relief is to grant the injunction if it is established by a preponderance of the evidence that: (1) a certain and clearly ascertainable right exists which needs protection; (2) there is no adequate remedy at law; (3) irreparable injury will occur without the protection of an injunction; and (4) there is a reasonable likelihood of success on the merits of the case. (Lawter International, Inc. v. Carroll (1983), 116 Ill. App. 3d 717, 729, 451 N.E.2d 1338, appeal denied (1983), 96 Ill. 2d 540.) The trial court is vested with a large measure of discretion in the granting or denial of a preliminary injunction, and its determination will not be disturbed absent a showing of the abuse of that discretion. Hayden’s Sport Center, Inc. v. Johnson (1982), 109 Ill. App. 3d 1140, 1144-45, 441 N.E.2d 927.

In the present case, for plaintiff to prevail on his motion for a preliminary injunction, it was necessary for him to demonstrate a reasonable likelihood of success on the merits. The trial court held that plaintiff had failed to do so. We regard this conclusion to be incorrect, for plaintiff was not required to make out a case which would, in all event, warrant relief at the final hearing. (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 234, 445 N.E.2d 418, appeal denied (1983), 94 Ill. 2d 553.) Rather, plaintiff needed only to “raise a fair question as to the existence of the right claimed, lead the court to believe that he probably will be entitled to the relief prayed for if the proof should sustain his allegations, and make it appear advisable that the position of the parties should stay as they are until the court has had an opportunity to consider the case on the merits.” Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 500, 422 N.E.2d 1166, appeal denied (1981), 85 Ill. 2d 563.

Based on the record in the case at bar, we are of the opinion that plaintiff did, in fact, raise a fair question as to the invalidity of the nondisclosure agreement. The unconscionable nature of plaintiff’s commitment is readily discernible. First, in order to begin working for IRI, plaintiff liquidated his marketing research business in Cincinnati, he sold his home there, and he then moved to Illinois. Second, in order to continue working for IRI, plaintiff was required to sign the Agreement as a nonnegotiable condition of his employment.

Even more palpably unfair is the fact that the Agreement, as written, contained neither chronologic or geographic limitation. We believe the lower court could have reasonably concluded that this unrealistic restriction as to time and place far exceeded what would have been necessary for the protection of IRI’s legitimate proprietary interests.

In addition, plaintiff’s duty of nondisclosure extended to “any third party.” The subject matter of his obligation of confidentiality was explicitly left open-ended. Taken together, these terms further highlight the probability that plaintiff is entitled to have the Agreement declared null and void. Under no circumstances can we find that such broad, undefined restrictions had any reasonable relation to the orderly operation of the business of the corporate defendant joined in this action.

In essence, the Agreement’s unlimited scope and duration strongly suggests that the Agreement contravenes Illinois public policy. Purely from the face of the document, plaintiff evinced a reasonable likelihood of success on the merits of the case. The inordinacy of the duty of confidentiality that plaintiff was compelled to assume out of fear of losing his job made it appear advisable, in our opinion, that the respective positions of the parties should have remained as they were until consideration of the case on its merits. The lower court’s denial of preliminary injunctive relief thus constituted an abuse of discretion.

For the reasons set out herein, we reverse the trial court’s interlocutory order, and remand this cause to the circuit court of Cook County for further proceedings.

Reversed and remanded.

HARTMAN, P.J., and STAMOS, J., concur.

      Converters are devices attached to television sets which enabled IRI to target commercials to specific households.

      Panel household identifications are the names, addresses and identification numbers of households that participated in IRI’s test marketing.

      A matching routine is the methodology whereby IRI created statistical samples for employing its cable television capability.

      No identification of this abbreviated name has been provided in the record.


author: JUSTICE PERLIN

text:
    DEWAYNE PULLEM, Plaintiff-Appellant, v. EVANSTON YOUNG MEN’S CHRISTIAN ASSOCIATION et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—2241
    Opinion filed May 22, 1984.

      Barry A. Rose and Marilyn S. Rzasa, both of Cook County Legal Assistance Foundation, Inc., of Chicago, for appellant.
    Michael W. Rathsack, of Chicago (Robert B. Baal, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff brought an action in the Cook County circuit court for monetary damages and injunctive relief against defendants for defendants’ alleged wrongful eviction of plaintiff from his rented room at the YMCA. After an ex parte hearing, the trial court granted plaintiff’s motion for a temporary restraining order, ordering defendants to restore plaintiff to his room, and enjoining defendants from interfering with plaintiff’s use and enjoyment of the room. Following submission of briefs and a second hearing, the court denied plaintiff’s request for a preliminary injunction, from which plaintiff brings this interlocutory appeal.

Plaintiff’s verified petition for injunctive relief alleged that since January 1981 plaintiff had been residing in a rented room at the Evanston YMCA. On September 6, 1983, he had been orally advised by defendant Atkins, the assistant director of operations for the YMCA, that plaintiff had to vacate his room the next day because he had violated a YMCA rule which prohibited members from being in the maintenance room at the YMCA. Upon plaintiff’s failure to vacate his room, the keyhole in the room’s door had been “plugged,” thereby preventing plaintiff from entering the room. As a result, plaintiff was forced to spend the night “wandering the streets.” The complaint alleged that defendants’ actions violated the Illinois Forcible Entry and Detainer Act and the Evanston Residential Landlord and Tenant Act.

Defendants filed a motion to dismiss the complaint and to deny plaintiff injunctive relief. Therein defendants alleged: Plaintiff had failed to demonstrate he had a right which required protection or that he had suffered irreparable injury, and that plaintiff had an adequate remedy at law. Defendants also contended plaintiffs eviction was lawful because the written housing contract entered into between the parties provided that either party could terminate it upon one day’s notice. They denied “plugging” plaintiff’s room, stated that plaintiff had voluntarily vacated his room, and the room lock was then changed, as is defendants’ custom. Defendants also contended that because the relationship between the parties was that of innkeeper and guest, and not landlord and tenant, neither the Forcible Entry and Detainer Act nor the Evanston ordinance applied.

At the hearing on plaintiff’s motion for a preliminary injunction, plaintiff testified: On August 23, 1983, defendant Atkins advised him that he was not allowed in the YMCA maintenance room, and that because of plaintiff’s violation of the rule, he was to leave the YMCA the next day. Plaintiff did not know he was not allowed in that area. On the next day, Atkins told plaintiff he did not have to vacate until the end of the month. Plaintiff left the YMCA on August 31. Plaintiff left because he was asked to, but did not surrender his room key “because I thought I will talk to someone and I can probably get my room back.” Plaintiff denied receiving written notice of his eviction. Plaintiff’s belongings were left in storage at the YMCA. Plaintiff admitted signing the YMCA application card which states that the contract for a room may be terminated by either party with one day’s notice.

Defendant Steven Atkins testified that plaintiff was discovered by a YMCA employee in the maintenance room of the YMCA “in the early part of August.” When plaintiff refused to leave, Atkins went to the room and assisted in removing plaintiff. There are several notices posted which denote the area to be “for employees only.” On August 23, 1983, Atkins was again required to assist another staff member in removing plaintiff from the maintenance area. At that time plaintiff advised Atkins that plaintiff had permission from the YMCA’s executive director to be in the maintenance area. This proved to be untrue. The witness then advised plaintiff, both orally and in writing, that he must vacate his room within one week. At plaintiff’s request, Atkins gave plaintiff an additional week to find alternative housing. On September 7, 1983, plaintiff approached Atkins with a bag on his shoulder, and stated, “I’m leaving.” At plaintiff’s request, his belongings were placed in a YMCA storage room.

After hearing argument, the trial court stated “motion for preliminary injunction is denied and the basis for the ruling is that there is no showing of irreparable harm ***. I find that this is not, in my view, a landlord-tenant situation. This is an innkeeper-guest relationship.”

Plaintiff appeals from the denial of his motion for a preliminary injunction.

The sole issue presented is whether the trial court erred in denying plaintiff’s request for a preliminary injunction.

The granting or denial of a preliminary injunction is addressed to the sound discretion of the trial court and, absent an abuse of that discretion, its decision will not be disturbed by a reviewing court. People ex rel. Fahner v. Community Hospital (1982), 108 Ill. App. 3d 1051, 440 N.E.2d 200.

Generally, for a preliminary injunction to issue, plaintiff must establish (1) possession of a certain and clearly ascertained right which needs protection; (2) irreparable injury if the injunction is denied; (3) lack of an adequate remedy at law; and (4) a likelihood of success on the merits of the case. (ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1978), 62 Ill. App. 3d 671, 379 N.E.2d 1228.) Mandatory injunctive relief, such as that sought here, is granted only with great caution and in cases of great necessity. Neely v. Coffey (1979), 76 Ill. App. 3d 37, 394 N.E.2d 766, aff’d (1980), 81 Ill. 2d 439, 410 N.E.2d 839.

Under the facts presented to the trial court, it seems clear that plaintiff has not demonstrated any continuing “right” to the use of the room after being advised by the YMCA that the contract between them was terminated. In Perry v. Evanston YMCA (1981), 92 Ill. App. 3d 820, 416 N.E.2d 340, a case with similar facts, the court found that the tenant had received the applicable notice of termination and held “[t]his notice was in accordance with the rental agreement and terminated Perry’s right to possession of his room. It is the duty of a tenant to surrender possession at the expiration of his lease. [Citations.]” 92 Ill. App. 3d 820, 825.

In the instant case, plaintiff has demonstrated no basis for his claimed right to continued possession of the room. Plaintiff’s brief merely concludes “plaintiff’s clear legal protectible right is to be free from being forcibly evicted from his room at the Evanston YMCA.” However, plaintiff testified he vacated his room because he was asked to. While it is possible that plaintiff may be able to demonstrate at trial below that his eviction was unlawful, such is not equivalent to demonstrating plaintiff has a “certain and clearly ascertained right” to continued use of the room.

Illinois case law recognizes that a tenant who retains possession of a leasehold after termination of the lease has no protectible property interest in the leasehold. (General Parking Corp. v. Kimmel (1979), 79 Ill. App. 3d 883, 886, 398 N.E.2d 1104.) Absent a demonstration of some protectible property interest in the room, plaintiff is not entitled to injunctive relief.

“While, as a general rule, courts of equity will not interfere by preliminary injunction, to change the possession of real property, until the right to such change is determined at law, they will do so where it is clear from the allegations in the bill that the defendants’ possession is but an interruption of the prior possession of the complainant, to which the latter is entitled. Thus, where a lessor or lessee has forcibly taken possession of the leased premises in violation of the terms of the lease, he may be compelled by mandatory injunction * * * to surrender possession to the one entitled thereto.” (Emphasis added.) (Quinn v. Fountain Inn (1920), 218 Ill. App. 260, 263. See also Scholz v. Barbee (1951), 344 Ill. App. 630, 101 N.E.2d 845.)

Neither the parties nor independent research has produced a case finding a protectible property interest in continued possession of lodgings pursuant to a short-term contract and a one-day termination provision.

We also believe that plaintiff has failed to establish irreparable injury. Should it be determined, at trial, that defendants’ conduct violated applicable statutes or ordinances, monetary damages will compensate. When money damages will compensate a plaintiff, injunctive relief should not be granted. G. H. Sternberg & Co. v. Cellini (1973), 16 Ill. App. 3d 1, 305 N.E.2d 317.

For the reasons herein stated, the trial court’s order denying plaintiff’s request for a preliminary injunction is affirmed.

Affirmed.

HARTMAN, P.J., and STAMOS, J., concur.


author: JUSTICE WILSON

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General of Illinois, Plaintiff-Appellee, v. NATIONAL ANTI-DRUG COALITION et al., Defendants-Appellants.
    First District (5th Division)
    No. 83—981
    Opinion filed May 11, 1984.
    Victor F. Ciardelli, Ltd., of Chicago (Patrick M. Cummings, of counsel), for appellants.
    Neil F. Hartigan, Attorney General, of Springfield, pro se (Floyd D. Perkins and Danita Y. Harth, Assistant Attorneys General, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

This appeal arises from an action filed by the Attorney General of Illinois seeking injunctive relief and an accounting from the local chapter, Illinois Anti-Drug Coalition (IADC) and the national chapter, National Anti-Drug Coalition, Inc. (NADC), of an organization which solicited donations in Illinois but failed to register with the Attorney General as a charitable organization. Following a hearing on the Attorney General’s motion for partial summary judgment, the trial court ruled that because defendants were charitable organizations pursuant to the provisions of the Charitable Trust Act (Ill. Rev. Stat. 1981, ch. 14, par. 51 et seq.) and the solicitation act (Ill. Rev. Stat. 1981, ch. 23, par. 5101 et seq.), they must comply with the registration and financial accounting provisions of those statutes.

The questions presented for review are: (1) whether the Charitable Trust Act and the solicitation act are unconstitutionally overbroad and vague; (2) whether the solicitation act violates the first amendment to the United States Constitution; and (3) whether the Charitable Trust Act and the solicitation act violate the first amendment as applied to defendants. We affirm.

On October 16, 1981, the Attorney General filed a 13-page complaint in the circuit court of Cook County alleging that defendants were charities pursuant to the Charitable Trust Act; that they solicited contributions in Illinois for charitable purposes but that they had failed to register with the Attorney General as charitable organizations and had failed to file financial accounting information as required by the Charitable Trust Act and the solicitation act.

The relief requested as to the corporate defendants was an accounting of the assets, receipts and disbursements, liquidation of the NADC and IADC and a temporary and permanent injunction enjoining those organizations from soliciting funds in Illinois. As to the individual defendants, the complaint asked that a surcharge be levied against them individually for money which had not been spent for charitable purposes.

In response, defendants answered that they were political, not charitable organizations and were not subject to the two Acts in question. Defendants alleged as affirmative defenses that the Acts amounted to a prior restraint on their protected first amendment activities and were unconstitutionally vague and overbroad. The Attorney General’s motion to strike these defenses was granted.

Defendants then produced evidence of the political nature of their activities. Defendants Jones and Bettag stated in their depositions that the NADC and the IADC were “dedicated to the eradication of drug abuse in our society” and that to achieve this purpose defendants published War on Drugs Magazine of the National Anti-Drug Coalition. Defendants also solicited door-to-door, public and telephone contributions, and engaged in educational activities to alert the public as to the consequences of drug use. They also actively campaigned against public officials who favored the decriminalization of drugs. During these solicitations defendants sought subscriptions to War on Drugs.

The Attorney General then filed a motion for partial summary judgment and subsequently filed a motion to strike defendants’ amended affirmative defenses which were similar to their original defenses. Following a hearing on the summary judgment motion, the trial court found that defendants were charitable organizations within the meaning of the Charitable Trust Act and solicitation act and entered an order which: (1) granted the Attorney General’s motion for partial summary judgment; (2) required defendants to register under the Charitable Trust Act and the solicitation act, and (3) required that defendants provide the Attorney General with a full accounting of their assets and monies received during the time which they were not registered as a charitable organization in Illinois. The court also issued a preliminary injunction enjoining defendants from soliciting in Illinois “until further order of the court.”

The record shows that in granting the Attorney General’s motion for partial summary judgment, the trial court reasoned that defendants were not “strictly political organizations” because their stated goal was to educate the public and because the NADC had registered in New York as a charitable organization. Further, the court determined, the NADC had stated on a New York State registration certificate that its purpose was for scientific, education and charitable purposes.

Defendants then responded that a 1981 amendment to their original registration document had deleted “any aspect of charitable purpose from the education process.” Unpersuaded by this disclosure, the court reasoned that the deletion would not change the purpose of defendants’ organization in any appreciable way and that the amendment had been filed shortly after the pending matter was initiated in Illinois.

Addressing the charter filed by defendant IADC, the court pointed out that that document stated that the purpose of the IADC was to educate “the public and elected officials on the dangers of decriminalization and the reduction of drug penalties,” along with other goals. The court then focused on defendants’ nonprofit character and pointed out that charitable, educational, labor and political groups can fall within the category of nonprofit organizations. The court concluded that summary judgment was appropriate in this case because there was no genuine issue of material fact that defendants had a political as well as an education purpose and therefore qualified as charitable organizations under the statutes in question.

The court added that its order was “an interlocutory one in the nature of an injunction so it is appealable on an interlocutory basis.” This appeal followed.

Opinion

We initially note that the three issues defendants present for our consideration primarily address the alleged unconstitutionality of the Charitable Trust Act and the solicitation act. Our concern, however, is that although these issues were originally presented as affirmative defenses, they were stricken by court order, presented again in defendants’ amended answers but were not argued before the trial court at the hearing on the Attorney General’s motion for partial summary judgment, which motion was granted. Instead, the record of those proceedings reveals that the only question presented to the trial court was whether defendants were charitable organizations such to require compliance with the statutes in question. The merits of defendants’ affirmative defenses were never argued or ruled upon by the trial court.

It thus appears that these issues are presented for the first time on appeal. We have previously stated, however, that when an issue is not properly preserved for review at the trial level, the merits of the appellant’s argument are deemed to be waived. (See Sandburg-Schiller v. Rosello (1983), 119 Ill. App. 3d 318, 330-31, 456 N.E.2d 192, where we determined that the defendant waived review of one of his defenses because after the trial court denied the defendant’s summary judgment motion, he failed to plead or offer proof of that issue during the evidentiary trial.) This waiver rule applies with equal force to constitutional questions which, if not presented or passed upon by the trial court, are not reviewable. Hah v. Stackler (1978), 66 Ill. App. 3d 947, 954, 383 N.E.2d 1264; Jarvis v. Herrin City Park District (1972), 6 Ill. App. 3d 516, 520, 285 N.E.2d 564.

Moreover, we have previously rejected constitutional challenges to both acts in question here and are not constrained to do otherwise at this time. See People ex rel. Scott v. George F. Harding Museum (1978), 58 Ill. App. 3d 408, 418, 374 N.E.2d 756, where we rejected the defendants’ contention that the Charitable Trust Act was unconstitutional because it accorded different treatment to charitable trusts which operate schools and those which do not. Also see People ex rel. Scott v. Police Hall of Fame, Inc. (1978), 60 Ill. App. 3d 331, 340, 376 N.E.2d 665, where we rejected a constitutional challenge to the phrase “legitimate and reasonable expenses” in the solicitation act and ruled that those words “clearly alert all who are covered by the Act that the only fund-raising expenses which may be deducted from total contributions when tabulating gross receipts are those which are shown to have been justly incurred and related to furthering the solicitation efforts of the charitable organizations.”

For these reasons, we conclude that defendants have waived review of the constitutional challenges to the Charitable Trust Act and the solicitation act.

Turning now to the merits of the trial court’s preliminary injunction, we initially note that a preliminary injunction is an extraordinary remedy which is granted in order to preserve the status quo. (21A Ill. L. & Prac. Injunctions sec. 4 (1977).) Such an injunction does not decide controverted facts or the merits of the cause; rather it only shows that sufficient cause has been made to authorize or require the court to preserve the rights in issue until a final hearing on the merits. (People ex rel. Fahner v. Community Hospital (1982), 108 Ill. App. 3d 1051, 1057, 440 N.E.2d 200.) In order to show likelihood of success on the merits, a party is not required to make out a case which in all events will warrant relief in the final hearing. All that is necessary is that the petitioning party raise a fair question as to the existence of the right claimed, lead the court to believe that he will be entitled to the relief prayed for if the proof should sustain his allegations, and make it appear advisable that the positions of the parties should remain as they are until the court has had an opportunity to consider the case on the merits. 108 Ill. App. 3d 1051, 1057.

In the pending case, the evidence adduced at the hearing on the Attorney General’s motion for partial summary judgment included defendants’ registration statement which had been filed with the State of New York and which stated that defendant NADC had a “charitable purpose,” pamphlets, and other printed literature which showed that defendants conducted seminars to educate the public on the dangers of drug abuse and defendants’ magazine, War on Drugs, which espoused defendants’ position on drug legislation and other political issues pertinent thereto. Following arguments by both sides, however, the trial court ruled that it was unconvinced that defendants’ primary purpose was political and further ruled that there was no genuine issue of any material fact which “if [it] heard or if [it] allowed an evidentiary platform for, would change [its] opinion.” The court added that it did not know “what is behind [defendants’] reluctance to register,” but would nonetheless order registration and an accounting for the period of time in the State of Illinois that defendants had not been registered.

Our review of these proceedings, along with the entire record on appeal, convinces us that the trial court’s decision to preserve the status quo and to require defendants to register as charitable organizations was not an abuse of discretion. The courts in this State are in accord in applying a broad legal definition of “charity” to include almost anything that tends to promote the improvement, well doing and well being of social man. (People ex rel. Scott v. George F. Harding Museum (1978), 58 Ill. App. 3d 408, 415, 374 N.E.2d 756.) Moreover, charitable organizations may include organizations whose primary purpose is not to provide money or services for the poor, the needy or other worthy objects of charity, but to gather and disseminate information about and to advocate positions on matters of public concern. These organizations characteristically use paid solicitors who “necessarily combine” the solicitation of financial support with the functions of information dissemination, discussion and advocacy of public issues. They may also pay other employees to obtain and process the necessary information and to announce in suitable form the organization’s preferred positions on the issues of interest to them. Citizens for a Better Environment v. Village of Schaumburg (7th Cir. 1978), 590 F.2d 220, 225, aff’d (1980), 444 U.S. 620, 635, 63 L. Ed. 2d 73, 86, 100 S. Ct. 826, 835.

Thus, based on the evidence presented to the trial court and the authority set forth above, we find that the trial court properly entered a preliminary injunction and that it correctly ruled that defendants had a charitable purpose.

Having determined that defendants’ constitutional issues were not preserved for our review and that the trial court’s entry of a preliminary injunction was proper, we now address the question of the Attorney General’s common law authority to enforce charitable trusts, which authority we note was specifically recognized by this court in People ex rel. Scott v. George F. Harding Museum (1978), 58 Ill. App. 3d 408, 413, 374 N.E.2d 756. In that case, we clearly stated that:

“The purpose of the Charitable Trust Act is to assist the Attorney General in carrying out his common law powers and duties to enforce charitable trusts and to see to the application of their funds to their intended charitable uses. [Citation.] Prior to enactment of the Charitable Trust Act, trustees of charitable trusts had no duty to make the Attorney General aware of the existence of charitable trusts or of the manner of their operation. The Act is intended to give the Attorney General the tools with which to discharge his responsibilities. The 1963 amendments to section 3 of the Act, which redefined ‘trustee,’ were intended to bring all foundations and not-for-profit corporations ‘holding property for any charitable purpose’ within the scope of the Act.” (Emphasis added.)

We further note that our supreme court has determined that pursuant to article V, section 15 of the Illinois Constitution, the Attorney General is the sole officer who is authorized to represent the people of the State of Illinois in any litigation in which the people are the real party in interest, absent a contrary constitutional directive. (People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 359 N.E.2d 149.) In the Briceland decision, the court explained that section 15 added to the language of the prior (1870) constitutional provision which had created the office of Attorney General and had provided only that he “shall perform such duties as may be prescribed by law.” (Ill. Const. 1870, art. V, sec. 1.) The court further noted that in Fergus v. Russel (1915), 270 Ill. 304, 110 N.E. 130, the court held that the 1870 constitution granted the Attorney General all the powers associated with that office at common law and that while the legislature could add to these powers, it could not reduce the Attorney General’s common law authority. People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 492-93.

In our opinion, therefore, it is evident that both the Illinois Constitution and the supreme court have recognized the common law authority of the Attorney General to protect the rights of the people of Illinois. This responsibility includes the duty to protect, supervise and enforce charitable trusts. (See G. Bogert, Trusts & Trustees sec. 411 (2d ed. 1977).) We thus conclude that because the Attorney General properly initiated this action pursuant to its statutory as well as its constitutionally prescribed authority, the trial court’s decision in this matter will be upheld.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.

      This opinion was adopted as the opinion of the court prior to the death of Mr. Justice Wilson.

      We are cognizant of the fact that defendants’ notice of interlocutory appeal requested that this court declare the acts to be unconstitutional; however, for the reasons given in this opinion, such request, without more, is insufficient to preserve the constitutional issues for our review.

      The court further stated that its order was interlocutory “*** so it is appealable on an interlocutory basis if that becomes one's intention. If not, I think it would move after the period of accounting to a final order and you can reserve your right to appeal until such time as the full order becomes final.” Defendants filed a timely appeal; however, the record is devoid of the entry of a final order on this issue.

      Article V, section 15 of the Illinois Constitution of 1970 provides that “The Attorney General shall be the legal officer of the State, and shall have the duties and powers that may be prescribed by law.” Indeed, the right of the State acting through the Attorney General to interfere in the handling of a public charity to prevent or correct abuses cannot be denied. Regarding the Attorney General’s authority under the Charitable Trust Act, see Metropolitan Sanitary District ex rel. O’Keeffe v. Ingram Corp. (1981), 85 Ill. 2d 458, 478-79, 426 N.E.2d 860; In re Estate of Tomlinson (1976), 65 Ill. 2d 382, 388, 359 N.E.2d 109; and People ex rel. Scott v. Silverstein (1980), 86 Ill. App. 3d 605, 609, 408 N.E.2d 243. Regarding the Attorney General’s authority under the solicitation act, see People ex rel. Brown v. Illinois State Troopers Lodge No. 41 (1972), 7 Ill. App. 3d 98, 105, 286 N.E.2d 524.


author: JUSTICE SCOTT

text:
      In re ESTATE OF MARIE SWANSON, Deceased (The People of the State of Illinois, Plaintiff-Appellant, v. Dorothy Leigh, Ex’r of the Estate of Marie Swanson, Defendant-Appellee).
    Third District
    No. 3—83—0612
    Opinion filed May 24, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Edward C. Hurley, Assistant Attorney General, of counsel), for the People.
    Dawn A. Conolly, of Lucas, Brown & McDonald, of Galesburg, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Marie E. Swanson died on April 18, 1981, a resident of the State of Florida. Among her assets was an undivided one-third beneficial interest in an Illinois land trust. The single issue raised by this appeal is whether the decedent’s interest was property subject to the Illinois inheritance tax. Ill. Rev. Stat. 1981, ch. 120, par. 375 et seq. (repealed).

On October 29, 1966, a trust was created wherein the Bank of Galesburg, Galesburg, Illinois, was the trustee. The trust estate consisted of real estate located within Knox County, Illinois. According to the trust agreement, the decedent possessed the right to manage the real estate, including the selling, renting and handling of the estate along with the responsibility to collect and handle her share of the rents, earnings, avails and proceeds of the estate.

At the decedent’s death, her interest in the land trust was appraised at $135,970. On the inheritance tax return filed February 28, 1982, the decedent’s executor, Dorothy Leigh, did not include as property subject to the tax the fair market value of the decedent’s interest in the land trust.

On May 19, 1982, the Illinois Attorney General filed objections to the inheritance tax return in the circuit court of Knox County. The objection urged the circuit court to order the inclusion of the decedent’s interest in the land trust among the taxable assets. In an opinion dated April 21, 1983, the circuit court of Knox County ruled in favor of the executor, determining that the beneficial interest in the land trust was exempt from Illinois inheritance tax because it was intangible personal property of a nonresident decedent. This appeal ensued.

The Illinois Inheritance and Transfer Tax Law imposes a duty on transfers of any real or personal property:

“When the transfer is by will or intestate laws of property within the State, or having a taxable situs in this State and not subject to inheritance, succession or estate tax in the state of the decedent’s residence, and the decedent was a non-resident of the State at the time of his death.” (Ill. Rev. Stat. 1981, ch. 120, par. 375(2).)

It is the Attorney General’s position that the beneficial interest owned by the decedent at the time of her death was real property with a taxable situs in the State of Illinois and therefore the property was subject to the inheritance tax. On the contrary, the executor asserts that the decedent’s interest was intangible personal property with a taxable situs in the State of the decedent’s domicile, Florida, and therefore not subject to the tax. Alternatively, the executor asserts that the decedent’s interest was intangible personal property of a Florida decedent exempt from Illinois inheritance tax under the reciprocal provisions of that act. Ill. Rev. Stat. 1981, ch. 120, par. 375(6).

In support of her position the executor cites numerous cases which hold that the beneficial interest in an Illinois land trust is personal property, not real property. (Duncanson v. Lill (1926), 322 Ill. 528, 153 N.E. 618; In re Estate of Peters (1966), 34 Ill. 2d 536, 217 N.E.2d 3; Levine v. Pascal (1968), 94 Ill. App. 2d 43, 236 N.E.2d 425; Sterling Savings & Loan Association v. Schultz (1966), 71 Ill. App. 2d 94, 218 N.E.2d 53; Liberty National Bank v. Kosterlitz (1946), 329 Ill. App. 244, 67 N.E.2d 876; Chicago Title & Trust Co. v. Mercantile Trust & Savings Bank (1939), 300 Ill. App. 329, 20 N.E.2d 992; Seno v. Franke (1960), 20 Ill. 2d 70, 169 N.E.2d 335.) Indeed, our supreme court, having addressed this issue on numerous previous occasions, in exasperation noted:

“We have consistently through many prior decisions held that the interest of a beneficiary in a naked title land trust of real property is personal property.” (In re Estate of Peters (1966), 34 Ill. 2d 536, 539, 217 N.E.2d 3, 5.)

Despite this apparently overwhelming authority to the contrary, the Attorney General urges us to find that for the purposes of inheritance taxation, the beneficial interest in the land trust owned by the decedent was not personal property, but rather real property. In maintaining this position the Attorney General relies almost exclusively on the decision in People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540.

The case cited by the Attorney General involved an action brought to recover unpaid real estate taxes on land held in land trust. According to section 27a of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 508a), personal liability for real estate taxes was imposed on the owner of the real estate. The action in the cited case was an attempt to hold the trustee, as holder of the legal and equitable title, personally liable for unpaid real estate taxes. In considering that question, the supreme court concerned itself with “the realities of ownership” and determined that the trustee, in reality, was not the owner. Instead, the court concluded that the beneficiaries of the trust, who had the usufruct, control and occupation of the land, were in reality the owners. In determining the nature of the interest owned by the beneficiaries, however, the court did not retreat from its earlier pronouncements. It said:

“In a land trust the legal and equitable title lies with the trustee and the beneficiary retains what is referred to as a personal property interest.” People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 488, 389 N.E.2d 540, 543.

In the instant case, ownership is not at issue. The usufruct, control and occupation of the res is not in question. It is clear from the positions of both the Attorney General and the executor that the decedent was the owner of the beneficiary interest in the Illinois land trust. It is the nature of that ownership interest, whether real or personal, which provides the point of dispute. If the beneficial interest is real property, it is given one tax treatment. If the ownership interest is personal property, it is given another tax treatment. We believe it is clear from the very precise language utilized by the supreme court in People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540) that the decision was intended as no departure from the prior rule which establishes such a beneficial interest as intangible personal property.

The Attorney General also cites his own manual, which was revised in 1980 in apparent response to the Chicago Title & Trust Co. decision, in support of its position. That manual states in pertinent part:

“Illinois real property held under an Illinois Land Trust or other Real Estate Trust which declares that the interest of the beneficiary thereunder is personal property only shall be considered real property and not personal property for Illinois Inheritance Tax purposes in the estate of a resident or non-resident decedent, and is therefore taxable in Illinois.” Illinois Inheritance Tax Manual 20 (1980).

According to the Illinois Inheritance and Transfer Tax Law, the Attorney General does have authority over the general supervision of the assessment and collection of the tax. (Ill. Rev. Stat. 1981, ch. 120, par. 385.) This authority has been relied upon by the Attorney General as a basis for issuing binding administrative rules interpreting the Act. However, all such rule-making authority is limited by the underlying statute, and rules promulgated under that authority cannot extend or contravene the statute. (People v. Kueper (1969), 111 Ill. App. 2d 42, 249 N.E.2d 335.) Where, as here, the administrative rule extends the legislative language beyond its well-established definition, the rule represents an invalid exercise of the Attorney General’s authority.

Another well-established rule of law provides that the taxable situs of intangible personal property is the domicile of the decedent. (People v. Forman (1926), 322 Ill. 223, 153 N.E. 376; In re Estate of McCalmont (1958), 16 Ill. App. 2d 246, 148 N.E.2d 23.) The decedent here died domiciled in the State of Florida. Therefore, her intangible personal property, including the beneficial interest in the land trust, had its taxable situs in the State of Florida. The Illinois Inheritance and Transfer Tax Law provides:

“The tax imposed by this Act in respect of personal property of non-residents (other than tangible personal property having an actual situs in this State) shall not be payable *** (2) if the laws of the state or territory of residence of the transferor at the time of his death contained a reciprocal provision under which non-residents were exempted from transfer taxes or death taxes of every character in respect of personal property (other than tangible personal property having an actual situs therein) provided the state or territory of residence of such non-residents allowed a similar exemption to residents of the state or territory of residence of such transferor.” (Ill. Rev. Stat. 1981, ch. 120, par. 375(6).)

The State of Florida has adopted such a reciprocal provision. (Fla. Stat. Ann., ch. 198, sec. 198.44 (1971).) Therefore, the beneficial interest of the decedent was not taxable by the State of Illinois for inheritance tax purposes.

Accordingly, we believe the decision of the circuit court of Knox County was correct. That decision is affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE HEIPLE

text:
    MARIANNE O’CONNOR, Plaintiff-Appellant, v. OHIO CENTENNIAL CORPORATION, Defendant-Appellee.
    Third District
    No. 3—83—0576
    Opinion filed May 24, 1984.

      Stephen J. West, of Ottawa, for appellant.
    Daniel K. Russell, of Johnson, Martin & Russell, EC., of Frinceton, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Marianne O’Connor, filed a personal injury action against the defendant, Ohio Centennial Corporation. After the plaintiff’s initial complaint was dismissed for want of prosecution a third time, having been dismissed for want of prosecution and reinstated on two prior occasions, the plaintiff refiled the complaint based on section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 217). The circuit court of Bureau County then granted the defendant’s motion to dismiss with prejudice the plaintiff’s refiled complaint on the ground that the action was not commenced within the statutory time limit. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615(a).) The plaintiff appeals.

On July 14, 1979, the plaintiff was injured. She filed her initial complaint (80 — L—66), based on a theory of common law negligence, against the defendant on October 27, 1980. On December 12, 1980, the trial court ordered the plaintiff to obtain alias summons and service within 42 days or the cause would be dismissed for want of prosecution. On the court’s motion, the plaintiff’s initial complaint was dismissed for want of prosecution on February 6, 1981. The trial court reinstated the plaintiff’s initial complaint, on the plaintiff’s motion, on February 23, 1981. The statute of limitations expired on July 23, 1981.

On April 27, 1982, the trial court ordered the plaintiff to obtain summons and service within 42 days or the cause would be dismissed for want of prosecution. The plaintiff’s initial complaint was again dismissed for want of prosecution, without prejudice, on the court’s motion on June 28, 1982. On July 14, 1982, the trial court reinstated the plaintiff’s initial complaint, on the plaintiff’s motion. The plaintiff’s initial complaint was dismissed for want of prosecution, without prejudice, for the third time on the court’s motion on September 30, 1982.

On January 24, 1983, the plaintiff refiled her complaint (83 — L—8) against the defendant. On August 4, 1983, the trial court granted the defendant’s motion to dismiss with prejudice the plaintiff’s refiled complaint.

The sole issue on appeal is whether the trial court erred in dismissing the plaintiffs refiled complaint on the ground that the applicable two-year statute of limitations was not tolled or extended by section 13 — 217 of the Code of Civil Procedure. Ill. Rev. Stat. 1983, ch. 110, par. 13 — 217.

The plaintiff contends that she had an absolute right to refile her personal injury complaint against the defendant under section 13 — 217 because the third dismissal of her initial complaint for want of prosecution was the only dismissal that was final and therefore, the plaintiff only availed herself of section 13 — 217 once. The defendant contends that after the plaintiffs initial complaint was dismissed a second time, the plaintiff necessarily invoked section 13 — 217 when her complaint was reinstated a second time because the statute of limitations had already run. Therefore, the defendant argues, the plaintiff cannot now use section 13 — 217 a second time to refile her complaint.

Section 13 — 217 of the Code of Civil Procedure provides in pertinent part that:

“[Where an] action is dismissed for want of prosecution *** then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the action is dismissed for want of prosecution ***.” (Ill. Rev. Stat. 1983, ch. 110, par. 13-217.)

Section 13 — 217 is remedial in nature and is to be liberally construed. (Keilholz v. Chicago & North Western Ry. Co. (1973), 10 Ill. App. 3d 1087, 295 N.E.2d 561, rev’d on other grounds (1974), 59 Ill. 2d 34, 319 N.E.2d 46.) It is not limited to only “the diligent suitor.” Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585.

Based on the facts in this case, we find that the plaintiff had the right, pursuant to section 13 — 217, to refile her complaint against the defendant. While the plaintiff’s initial complaint was dismissed three times for want of prosecution, it was reinstated after the first two dismissals. Because each reinstatement placed the case in the same position it was in before dismissal, the first two dismissals were not final. Only the third dismissal was final because the complaint was not thereafter reinstated. Thus, there was one final dismissal for want of prosecution and the plaintiff only filed one “new action.”

The cases cited by the defendant are distinguishable. Luebbing v. Copley Memorial Hospital (1978), 60 Ill. App. 3d 780, 377 N.E.2d 345, Wallace v. Smith (1979), 75 Ill. App. 3d 739, 394 N.E.2d 665, and Manuel v. Holder (1979), 75 Ill. App. 3d 396, 394 N.E.2d 523, are distinguishable because they involved dismissals with prejudice under Supreme Court Rule 103(b), rather than dismissals for want of prosecution. (87 Ill. 2d R. 103(b).) Dismissals for lack of diligence in obtaining service under Rule 103(b) are distinct from dismissals for want of prosecution. Green v. Wilmot Mountain, Inc. (1980), 92 Ill. App. 3d 176, 415 N.E.2d 1076.

Smith v. Chicago Transit Authority (1978), 67 Ill. App. 3d 385, 385 N.E.2d 62, and Harrison v. Woyahn (7th Cir. 1958), 261 F.2d 412, are distinguishable because in both cases a complaint was filed and dismissed, a second complaint was filed and dismissed, and a third complaint was filed and dismissed. In the case at bar, there was only one new action, and so section 13 — 217 was only invoked once. The plaintiff did not use section 13 — 217 (formerly section 24 of “An Act in regard to limitations” (Ill. Rev. Stat. 1977, ch. 83, par. 24a)), to endlessly refile new cases against the defendant.

A further point raised by the defendant can be stated in the form of the following question: When the trial judge dismissed the plaintiff’s initial complaint for the second time after the statute of limitations had expired, should he have dismissed it under Rule 103(b) instead of dismissing it for want of prosecution?

A similar question was addressed by the court in Green v. Wilmot Mountain, Inc. (1980), 92 Ill. App. 3d 176, 415 N.E.2d 1076. In Green, the plaintiff’s initial complaint was dismissed, without prejudice, for want of prosecution. The plaintiff then refiled his complaint against the defendant relying on former section 24. The defendant argued that under Rule 103(b) the trial court had no discretion to dismiss the plaintiff’s complaint without prejudice because the plaintiff’s failure to exercise reasonable diligence in obtaining service occurred after the statute of limitations had expired.

The appellate court in Green refused to say that the plaintiff’s failure to serve the defendant until over 20 months after the statute of limitations had expired was a per se lack of diligence under Rule 103(b). Also, the court was not willing to speculate as to what showing, if any, was made to support the dismissal without prejudice because the record contained no report of the dismissal proceedings.

We believe that the reasoning in Green should also apply in the case at bar. As in Green, the record here contains no report of the dismissal proceeding, and in addition, contains no report of the reinstatement proceeding. The plaintiff’s initial complaint was dismissed three times for “want of prosecution, without prejudice,” on the court’s own motion. Had the trial court determined that the plaintiff had not exercised reasonable diligence after the statute of limitations expired in obtaining service, it should have stated in its order that the second dismissal of the plaintiff’s initial complaint was with prejudice under Rule 103(b). However, the trial court did not do so.

For the foregoing reasons, the order of the circuit court of Bureau County is reversed and remanded.

Reversed and remanded.

ALLOY, RJ., and STOUDER, J., concur.