author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM SNOW, Defendant-Appellant.
    Second District
    No. 2—83—0631
    Opinion filed June 13, 1984.
    G. Joseph Weller, Paul J. Glaser, and Michael Braun, all of State Appellate Defender’s Office, of Elgin, for appellant.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After a bench trial defendant, William Snow, was convicted of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2), residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3(a)), home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a)(1)), and armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2(a)). Defendant was sentenced to concurrent terms of imprisonment of seven years for armed robbery, seven years for home invasion and five years for residential burglary. The issues presented for review are (1) whether defendant was proved guilty beyond a reasonable doubt of home invasion and residential burglary; (2) whether the State proved defendant had the intent to commit theft at the time he entered the house; (3) whether the residential burglary conviction must be vacated on one-act, one-crime principles; and (4) whether this cause must be remanded for a new sentencing hearing.

Each of defendant’s convictions was related to the entry by defendant and Michael Nord, who was tried separately, into a rented house in which Bill Olsen, John Payne and three other men resided. The home invasion charge alleged that defendant knowingly and without authority entered the home with knowledge that it was occupied and, while armed with a wooden club, threatened the imminent use of force against John Payne. The residential burglary charge alleged that defendant knowingly and without authority entered the home with an intent to commit theft. The armed robbery charge alleged that defendant, while armed with a wooden club, took guns and a stereo receiver from the presence of Bill Olsen by threatening the imminent use of force.

Bill Olsen testified in trial that on October 30, 1982, he, John Payne and three other men lived in a house they had rented from John Hingyi. Olsen heard a knock on his ground-floor bedroom window at 4 a.m. and observed Michael Nord outside the window. Nord asked where John Hingyi was and stated, “We are not fooling around, punk. We’ve got a gun.” Olsen then heard a clicking noise sounding like the mechanism of a gun. Olsen testified he believed Nord was accompanied by another person because he could see Nord and he was not making the noise with the suspected gun. Olsen told Nord that John Hingyi did not live there and when Nord asked if anyone else was in the house, Olsen advised him that he believed he was alone. A car then drove up and its occupant entered the house. When Nord directed Olsen to determine who it was, he went upstairs, then returned and told Nord it was his roommate, John Payne. He and Nord continued to talk for about five minutes through the window, during which time Nord repeated the threat, “we have a gun.” When Nord told Olsen “they” were coming into the house, Olsen headed towards the unlocked front door. Olsen testified that as he reached it the door was pushed open and he grabbed the knob and opened it the rest of the way. Olsen agreed he had not offered any physical or verbal objection to the entry, testifying that he believed there wasn’t much else he could do and that he gave no permission to enter.

Michael Nord came through the door first and pointed a shotgun at Olsen and Payne. Defendant followed Nord into the house carrying a 32-inch-long axe handle. Olsen knew defendant as he had visited the house on prior occasions. Nord wore a nylon mask or stocking over his head, and defendant wore a black knit cap pulled over his eyebrows. Olsen testified he told Payne that the men wanted John Hingyi and weren’t bothering us, and that he then just stood there and did what he was told. Defendant asked if Hingyi was there and if they were friends of his and Olsen replied that Hingyi was not in the house and did not live there anymore. Defendant then told Olsen and Payne not to fool around with them and inquired where Michael O’Reilly’s room was located. The four men then went upstairs to O’Reilly’s bedroom with Nord and defendant walking behind Olsen and Payne with the shotgun pointed at their backs. Defendant and Nord directed the others to enter a bathroom across the hall from O’Reilly’s bedroom where they stayed for about five minutes before coming out after hearing a car drive away. While in the bathroom Olsen heard glass breaking; he also heard either Nord or Snow say, “Stay in the bathroom, punks. If you move, you’re dead.” When defendant and Nord left, Payne and Olsen went to O’Reilly’s room, where they noticed that a glass china cabinet had been smashed, drawers emptied and O’Reilly’s three shotguns, BB guns, two handguns and stereo receiver were gone.

John Payne testified that he returned home at about 4 a.m. and spoke briefly with Olsen, then went into a bathroom where he removed his contact lenses. As he came out of the bathroom he saw Olsen open the door and two people enter the house. Because he was not wearing his contact lenses, Payne was unable to identify those persons. The man with the shotgun pointed it at Payne and said, “[djon’t move or you're dead”; he then unplugged the telephone in the living room. The man with the axe handle hit Payne’s dog with it. Payne testified further that just before he and Olsen were placed in the bathroom both men advised them that if they came anywhere near the door they were dead; similar threats were repeated after the two were placed in the bathroom.

Police officer Donald McCombe testified he arrested defendant at his home and was given permission to search his bedroom. Defendant advised the officer he was innocent and had nothing to hide and stated Michael Nord set him up and that there were two BB guns that Nord had given him in his room. The guns were found in a closet under a pile of clothes and were identified at trial as the property of Michael O’Reilly.

At the police station, defendant was advised of his Miranda rights and gave a statement to the officers in which he admitted his presence at the house. The officers testified defendant told them he and Nord had been at a party the evening before and that Nord persuaded defendant to drive him to John Hingyi’s house in defendant’s car. Nord did not explain why he wanted to go there, but defendant assumed it was to collect a debt as he knew O’Reilly and Hingyi owed Nord money. When they arrived at the house Nord took a piece of wood from the car’s trunk and defendant took an axe handle. The two men went to the back of the house where Nord talked to one of the residents; defendant did not participate and stood off to the side of the window. Shortly thereafter Nord went to the home’s front door with defendant following and the two went inside. Defendant told the officers the man with whom Nord had talked must have been a little crazy not to run to the front door and lock it before Nord got there. Defendant also told the officers that the only thing he recalled having said when in the house was to ask Payne and Olsen if they knew anything about what happened to his car, which was parked in the garage. He was unsure if he had made any threats, but might have done so because he thought Nord was crazy and might do something bad. Defendant also told the officers that he watched Nord go into the bedroom and take several guns and a stereo receiver down to the car.

Officer Francis Marrocco testified to the same matters as did Officer McCombe and recalled further that defendant had said he had helped Nord take the property out of the house and had also told the officers he was angry about the incident because he did not obtain any money.

Michael O’Reilly testified that when he returned home after 4 a.m. on October 30, he found that his room had been ransacked, the china closet smashed and guns and a stereo were missing. No one had been given permission to take these items. O’Reilly was aware of a dispute between Snow and Hingyi over damage to a car and the title to that car.

Defendant testified in his own behalf that he and Nord had been to a Halloween costume party the evening before entry into the home and Nord had worn the nylon stocking over his head most of the evening. At the party Nord persuaded defendant to drive him to the house in which he and defendant believed John Hingyi still lived. Defendant testified that Hingyi owed him $500 and title to a car which defendant had purchased from him about 18 months earlier. Hingyi, who still had possession of the car, had put off delivering the car’s title to defendant. Prior to that night defendant had heard that someone had damaged the car by shooting into it and stated that he only went to the house to obtain what Hingyi owed him and had no idea Nord would steal anything.

Defendant further testified that when he got to the house Nord suggested they go around the back to see if anyone was home. Defendant did so, but he was 10 feet from the back window and did not hear what Nord said to Olsen. After this conversation Nord picked up a 24-inch long board on the ground and instructed defendant to do the same with an axe handle lying there because there might be trouble inside. Defendant testified he feared there would be an argument because five people lived in the house and he had, on an earlier visit, been beaten up by them. Defendant denied that Nord had a gun.

Defendant also testified that when he and Nord reached the front porch he saw Olsen opening the front door and Nord opened the screen door and they both walked in. Nord then asked Payne and Olsen if Hingyi or O’Reilly were there, and defendant asked them if they knew who had shot into his car. Nord then ordered the two into the bathroom and threatened to kill them if they came out. Defendant denied having threatened Payne and Olsen or having any prior notice from Nord that he intended to threaten anyone for any purpose. Nord then went into O’Reilly’s bedroom and told defendant he was going to take what O’Reilly and Hingyi owed him. Defendant testified he did not want to be involved and walked out of the house and Nord followed carrying the stolen property. Defendant testified that he permitted Nord to place the property in his car only because Nord pointed one of the guns at him. The two BB guns were left at defendant’s house because Nord said he could not sell them.

Defendant testified that he did not know that his entry into the house was unauthorized and that he had not intended to commit a theft when he entered. He denied telling the officers that he had heard Nord’s threats to Olsen outside the window of the house.

It was stipulated that defendant had been convicted of burglary in 1979 and 1981.

Defendant contends first he was not proved guilty of home invasion or residential burglary because the evidence was insufficient to establish that he entered the house without authority, arguing that he and Nord were allowed to enter the house by one of its occupants, Bill Olsen. While defendant acknowledges Olsen testified he had not believed there was anything he could have done to stop the entry, defendant asserts Olsen’s failure to explicitly testify that he had been intimidated into allowing the entry, his failure to lock the door and his failure to arm himself with one of the guns present in the house, or otherwise bar the entry, negates Olsen’s testimony he had not authorized entry.

It is established that the State must prove in a prosecution for home invasion and residential burglary that entry into a house was made without authority. (People v. Hudson (1983), 113 Ill. App. 3d 1041, 1045, 448 N.E.2d 178, appeal denied (1983), 96 Ill. 2d 545; People v. Scott (1982), 108 Ill. App. 3d 607, 612, 439 N.E.2d 130.) It is also well established that a reviewing court ordinarily will not substitute its judgment for that of the trier of fact and that it was the function of the trial court to weigh the evidence, resolve any conflicts or inconsistencies therein and assess the credibility of witnesses. (People v. Lanasa (1983), 113 Ill. App. 3d 516, 521, 447 N.E.2d 1002; People v. Ortiz (1981), 96 Ill. App. 3d 497, 501, 421 N.E.2d 556.) Only when the judgment is so improbable or palpably contrary to the evidence as to raise a reasonable doubt of guilt will a reviewing court reverse. People v. Fox (1983), 114 Ill. App. 3d 593, 597-98, 449 N.E.2d 261, appeal denied (1983), 96 Ill. 2d 544.

There was evidence that Michael Nord, armed with a shotgun, and defendant, armed with an axe handle, entered a private home at 4 a.m. after Nord had threatened one of its occupants outside the rear bedroom window and advised him that they had a gun. Nord then told Olsen “they” were coming into the house, and Olsen arrived at the front door just as Nord started to open it. In these circumstances it may not be inferred that Olsen authorized entry by defendant and Nord because he failed to resist it; there was little else Olsen could have done. The trial court also expressly rejected defendant’s testimony that he was too far from the bedroom window to have heard Nord threaten Olsen, observing that he did not consider defendant’s testimony credible. We note, too, defendant testified that he had expected an altercation in the home and armed himself for that reason; it would be unrealistic in these circumstances to consider that defendant’s entry was authorized by the occupants of the home.

Defendant next contends the State failed to prove he had the requisite intent to commit theft at the time he entered the house and his conviction for residential burglary must, therefore, be reversed. Defendant points to evidence of a dispute between himself and John Hingyi, whom defendant believed lived at the house, over money Hingyi owed defendant and a car defendant had purchased from him which had been damaged while in Hingyi’s custody. Michael Nord also had a dispute with Hingyi and O’Reilly over money owed him. Defendant asserts the evidence only shows he entered the house to settle a grievance with Hingyi and the theft which occurred therein by Nord was a spontaneous act on his part to settle a claim of debt.

To sustain the conviction for residential burglary the State was required to prove that defendant unlawfully entered the home with an intent to commit theft. (People v. Vallero (1978), 61 Ill. App. 3d 413, 415, 378 N.E.2d 549.) As evidence of intent is usually not direct, it may be proved circumstantially by inferences reasonably drawn from the circumstances of defendant’s conduct. (People v. Johnson (1963), 28 Ill. 2d 441, 443, 192 N.E.2d 864.) The fact that property is taken after entry is evidence that the requisite intent existed at the time of entry. (People v. Franceschini (1960), 20 Ill. 2d 126, 130, 169 N.E.2d 244.) Moreover, in the absence of contradictory evidence, an unlawful entry into a building which contains personal property which could be the subject of theft gives rise to an inference that entry was made for that purpose. (People v. Johnson (1963), 28 Ill. 2d 441, 192 N.E.2d 864; People v. Davis (1977), 54 Ill. App. 3d 517, 523, 369 N.E.2d 1376.) It has also been held that evidence a defendant after entry, swiftly and methodically proceeded to restrain the home’s occupants and then take property from the home, supports an inference that the entry was made with the intent to commit theft. People v. Fisher (1980), 83 Ill. App. 3d 619, 622, 404 N.E.2d 859.

While defendant testified his entry was solely for the purpose of settling his grievance with John Hingyi and that he had no intent to commit a theft, the trial court did not believe that testimony and also found significant the fact defendant assisted Nord in taking property from O’Reilly, a person with whom defendant never claimed to have a dispute. We note, too, defendant’s statement to the police officers after his arrest that he was angry because he had been unable to obtain any money that night.

We conclude the evidence was sufficient to prove that at the time of entry defendant intended to settle his debt by stealing property found in the house. It is apparent he was prepared to settle his grievance with force, and did so by threat of force. The finding by the trial court is not so improbable or palpably contrary to the evidence as to allow this court to reverse it (see People v. Fox (1983), 114 Ill. App. 3d 593, 597-98, 449 N.E.2d 261, appeal denied (1983), 96 Ill. 2d 544), and the evidence supports the trial judge’s finding that defendant entered the home both without authority and with the intent to commit a theft.

Defendant next contends that the residential burglary conviction, if not reversed for lack of evidence, must be vacated either because it and the home invasion conviction were based on the same act of unlawful entry, or because it was based upon and arose from the same conduct as resulted in his conviction for armed robbery. To support his argument that residential burglary and home invasion are based on the same physical act, defendant relies on People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011. In that case, where the State confessed error, the court held that as the same physical act of entry constituted the basis for both burglary and home invasion, vacation of the burglary conviction was required. (108 Ill. App. 3d 880, 890.) The State does not confess error in the present case, but offers People v. Pavic (1982), 104 Ill. App. 3d 436, 432 N.E.2d 1074, for the proposition that both convictions are proper because neither is the lesser-included offense of the other.

While we agree that residential burglary is not a lesser-included offense of home invasion, we recognize that defendant’s argument does not rest on a lesser-included-offense analysis, but rather, whether under People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, one conviction must be vacated because both were based upon the same physical act.

In King, the supreme court held that:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a difference offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (People v. King (1977), 66 Ill. 2d 551, 566.)

Thus, if one of two offenses is not a lesser-included offense of the other, both convictions may stand unless each is “carved from the same physical act.”

It cannot be said, however, that home invasion and residential burglary are based upon the same physical act, only that they share the physical act of entry; while residential burglary is complete once an unlawful entry is made with the requisite intent (People v. Wilfong (1979), 72 Ill. App. 3d 268, 272, 390 N.E.2d 934), home invasion is not complete until, after an unlawful entry, defendant either uses force or threatens use of force upon a person in the home while armed with a dangerous weapon, or intentionally causes any injury to a person in the home. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a).) In People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180, the court considered whether multiple convictions, each of which were based upon separate blows, were proper where the defendant argued that the term “act” under People v. King (1977), 66 Ill. 2d 551, was intended to include all blows during one beating. The court held that multiple convictions were proper because the separate blows, even though closely related, were not one physical act and their interrelationship did not preclude multiple convictions and concurrent sentences for separate offenses which are not lesser-included offenses. In doing so, the court reiterated King’s definition of “act” as “ ‘any overt or outward manifestation which will support a different offense.’ ” People v. Dixon (1982), 91 Ill. 2d 346, 355.

We conclude that the offenses of residential burglary and home invasion are not based on the same physical act as the common element of unlawful entry does not complete the offense of home invasion. The fourth district, in a case subsequent to People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011, adopted the same reasoning. See People v. Rathgeb (1983), 113 Ill. App. 3d 943, 949, 447 N.E.2d 1351.

Defendant’s similar argument that his residential burglary conviction must be vacated because it was based upon or arose from the same conduct as did the armed robbery conviction is also without merit. He relies upon People v. Williams (1975), 60 Ill. 2d 1, 322 N.E.2d 819, as controlling on the question. The court in that case did hold that a burglary conviction based upon an entry with intent to commit a theft must be vacated if the defendant was also convicted of committing an armed robbery inside the home, because the entry was made with the purpose of committing a theft by means of armed robbery, that is to say, the two offenses were not independently motivated. (60 Ill. 2d 1, 13-14.) However, in People v. King (1977), 66 Ill. 2d 551, the court considered People v. Williams (1975), 60 Ill. 2d 1, 322, N.E.2d 819, and abandoned the independent motivation test insofar as it applied to separate convictions for which concurrent sentences were imposed. (66 Ill. 2d 551, 560, 564, 565-66.) Since armed robbery and residential burglary are not based on the same physical act, and neither is a lesser-included offense of the other, both convictions may stand where concurrent sentences are imposed. (See People v. Graves (1977), 54 Ill. App. 3d 1027, 1034, 370 N.E.2d 1219; People v. Coleman (1977), 50 Ill. App. 3d 40, 43, 365 N.E.2d 246, appeal denied (1977), 66 Ill. 2d 639.) Defendant has not sought review of his conviction for armed robbery.

In view of our conclusion that defendant’s conviction for residential burglary will not be vacated, we need not consider the argument that he should be given a new sentencing hearing.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

LINDBERG and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    RICHARD H. BAKER, Plaintiff-Appellee, v. THE DEPARTMENT OF LAW ENFORCEMENT, Defendant-Appellant.
    Second District
    No. 83—613
    Opinion filed June 13, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Leslie J. Rosen, Assistant Attorney General, of counsel), for appellant.
    Richard H. Baker & Associates, of Eola, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The Illinois Department of Law Enforcement (Department) revoked the firearm owner’s identification card held by Richard H. Baker. Following a hearing on Baker’s complaint for administrative review, the circuit court reversed the Department’s decision, finding that the cause for revocation, confinement in a penitentiary within the past five years, had not been proved. The Department appeals.

Section 8(c) of “An Act relating to the acquisition, possession and transfer of firearms ***” provides as material:

“Sec. 8. The Department of Law Enforcement has authority to *** revoke and seize a Firearm Owner’s Identification Card previously issued under this Act only if the Department finds that the applicant or the person to whom such card was issued is or was at the time of issuance:
* * *
(c) A person convicted of a felony under the laws of this or any other jurisdiction within the prior 5 years or a person confined to a penitentiary within the prior 5 years', ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 83 — 8(c).

The sole issue is whether the undisputed facts, that Baker, who was an adult, was convicted of misdemeanor offenses, sentenced to 364 days’ imprisonment, and confined in the Vandalia Correctional Center, are sufficient to prove that he was confined in a “penitentiary.”

Section 3 — 2—2 of the Unified Code of Corrections establishes the basic duty of the Department of Corrections in handling persons whom the judiciary has committed to its care, and accords that Department complete control over its institutions and programs. (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 2—2. See also Ill. Ann. Stat., ch. 38, par. 1003 — 2—2, Council Commentary, at 17 (Smith-Hurd 1982); and see, e.g., People v. Williams (1977), 66 Ill. 2d 179, 187.) In particular, the Code authorizes the Department of Corrections to “designate those institutions which shall constitute the State Penitentiary System.” (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 2—2(c).) The administrative regulations of the Illinois Department of Corrections, of which we take judicial notice (see Meylor v. Boys (1981), 101 Ill. App. 3d 148, 150), list the Vandalia Correctional Center as a constituent of the penitentiary system.

Section 5 — 8—6(b) of the Unified Code of Corrections states that persons above the age of 17 who are sentenced to jail for 60 days or more “may be committed to the Department of Corrections.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—6(b).) Further, the Department of Corrections may assign any person committed to it for less than one year to “any of its institutions, facilities or programs.” Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—6(b); see People v. Paul (1981), 93 Ill. App. 3d 302, 311.

The statutory scheme is in accord with the long-standing rule in Illinois that the legislature may provide that a misdemeanant be punished by confinement to the penitentiary. People ex rel. Latimer v. Randolph (1958), 13 Ill. 2d 552, 557, cert. denied (1958), 358 U.S. 852, 3 L. Ed. 2d 85, 79 S. Ct. 80.

Thus we conclude that the trial court erred when it decided that the plaintiff, a misdemeanant, could not be said to be confined in a “penitentiary.”

The record supports the findings and conclusions of the administrative agency that Baker was confined in a penitentiary within the last five years. Accordingly, the trial court erred in reversing the Department’s decision to revoke the plaintiff’s firearm owner’s identification card.

The judgment of the circuit court of Du Page County is reversed and the decision of the Illinois Department of Law Enforcement is reinstated.

Reversed.

LINDBERG and HOPF, JJ., concur.


author: JUSTICE SCOTT

text:
    CRAIG CARLSON, Plaintiff-Appellant, v. THE MOLINE BOARD OF EDUCATION, SCHOOL DISTRICT NO. 40, MOLINE, Defendant-Appellee.
    Third District
    No. 3—83—0511
    Opinion filed June 6, 1984.
    Rehearing denied July 13, 1984.

      Joseph Michael O’Callaghan and Alice Dolan, both of O’Callaghan & Waller, of Chicago, for appellant.
    Martin H. Katz and Donovan S. Robertson, both of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This action was commenced by the plaintiff, Craig Carlson, against the Moline Board of Education, the defendant, in the circuit court of Rock Island County. The plaintiff sought to recover money damages for personal injuries he incurred. The complaint alleged three theories for recovery. The complaint recited a cause of action in common law negligence, for which both compensatory and punitive damages were sought. The complaint recited a cause of action under the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.). Finally, the complaint recited a cause of action under the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 10 — 20.21). In an interlocutory order, the circuit court dismissed the causes of action under the Structural Work Act and the School Code, finding in the dismissal order that there was no just reason for delaying enforcement or appeal. The plaintiff seeks our review of that decision.

Sometime prior to March 2, 1982, the defendant advertised for public bid a construction project to perform certain repairs on the school building owned by the defendant. Specifically, the project entailed the removal of floor tile and underlayment and the repair and replacement thereof. In the performance of this project, it was specified that an assembly of lockers would be removed to permit the floor repairs to be completed, with the locker assembly to be reinstalled at the completion of the project. Edstrom Carpets was the successful bidder and was awarded the contract to make the repairs.

The plaintiff was an employee of Edstrom Carpets assigned by his employer to perform work on the subject contract. During the course of his work, the assembly of lockers tipped over and fell on the plaintiff. The blow from the assembly of lockers, which was 8V2 feet high, 108 feet long, and 4,000 pounds in weight, caused the plaintiff severe injuries and rendered him a paraplegic.

As earlier recited, the plaintiff filed a complaint in the circuit court of Rock Island County seeking to recover damages for his tragic injuries. In response to that complaint, the defendant filed a motion attacking the pleading pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615). That motion challenged the plaintiff’s alleged cause of action under the Structural Work Act and under the School Code. The circuit court granted the defendant’s motion and dismissed both causes of action. Further, the circuit court denied the plaintiff leave to amend his pleadings. The plaintiff urges us to hold that the relief granted by the circuit court exceeded .the appropriate scope of relief available under section 2— 615.

Before reaching the issue raised by the plaintiff on appeal, we must first turn to an affirmative matter raised by the defendant in its brief. The defendant asserts that this appeal was improperly brought, and therefore we are without jurisdiction to consider its merits since no final order has been entered with respect to the cause of action alleged in plaintiff’s complaint. Supreme Court Rule 304 (87 Ill. 2d R. 304(a)) provides:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.”

The defendant urges that the order of the circuit court dismissing the causes of action under the Structural Work Act and the School Code is not a final judgment as to one or more but fewer than all of the claims of the plaintiff. We need not consider this contention at length, since the appellate court on prior occasions has considered this very issue. In each case, the court has determined that where the elements of proof for several causes of action are separate and distinct, then each cause of action constitutes a separate claim. (Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App. 3d 625, 295 N.E.2d 41; Rone v. Boncar Construction Co. (1976), 45 Ill. App. 3d 1, 358 N.E.2d 1315; Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App. 3d 884, 403 N.E.2d 495.) The cases cited by the defendant are more than adequately distinguished by these authorities for us to conclude that the order of the circuit court was a final judgment as to two separate claims brought by the plaintiff. Therefore, we do have jurisdiction of this appeal.

We cannot agree with the plaintiffs assertion that the dismissal of the claims under the Structural Work Act and the School Code exceeds the scope of relief available under section 2 — 615. We agree with the plaintiff that a motion under this section of the Code of Civil Procedure admits all well-pleaded facts. However, such a motion does not admit the conclusions of law to be drawn from those facts. (Richards v. Leimbacher (1971), 131 Ill. App. 2d 775, 267 N.E.2d 523; Chicago Teachers Union v. Board of Education (1973), 14 Ill. App. 3d 154, 301 N.E.2d 833.) In reviewing the sufficiency of the cause of action alleged, the plaintiff is entitled to all the reasonable intendments and inferences which can be drawn from the facts alleged. The court is not required to reach unreasonable and unwarranted conclusions, to draw unreasonable and unwarranted inferences, in order to sustain the sufficiency of the complaint. Where the complaint can be sustained only with such assaults on common experience, the circuit court may properly dismiss the claim pursuant to a section 2 — 615 motion.

Given, then, that the circuit court did not exceed its permissible authority in dismissing the plaintiff’s causes of action under the Structural Work Act and the School Code, we next address the issue of whether the circuit court properly exercised its permissible authority. The School Code requires that school boards such as the defendant:

"let all contracts for supplies, materials or work or contracts with private carriers for transportation of pupils involving an expenditure in excess of $5000 to the lowest responsible bidder after due advertisement ***.” (Ill. Rev. Stat. 1983, ch. 122, par. 10-20.21.)

The plaintiff urges that where a school board fails to let contracts to “responsible” bidders, any resulting personal injuries give rise to a cause of action against the school board. The plaintiff further alleges that Edstrom Carpets was not a “responsible” bidder, and because of its irresponsibility, the plaintiff was injured. We believe the purpose of the section of the School Code above cited was to provide protection for taxpayers of a particular school district from financially irresponsible contractors. (Beaver Glass & Mirror Co. v. Board of Education (1978), 59 Ill. App. 3d 880, 376 N.E.2d 377.) The statute was not designed to protect the safety of employees of successful bidders. Hence, we conclude that no cause of action accrued under the above-cited section of the School Code.

“Where the suit alleges injury due to violation of a statute, the doctrine of standing requires that the plaintiff be one of the class designed to be protected by the statute, or for whose benefit the statute was enacted, and to whom a duty of compliance is owed. [Citations.] The object of the statute, the nature of the duty imposed by it, and the benefits resulting from its performance dictate what persons are entitled to sue thereunder. [Citation.]” (Lynch v. Devine (1977), 45 Ill. App. 3d 743, 748, 359 N.E.2d 1137, 1140.)

Where, as here, the object of the statute was to protect the public first, not to protect the safety of laborers, the plaintiff is not one for whose benefit the statute was enacted. We conclude that the circuit court correctly dismissed the cause of action under the School Code.

The final contention raised by the plaintiff concerns the circuit court’s dismissal of his cause of action under the Structural Work Act. The statute creates “a right of action” for “any injury to person or property, occasioned by any wilful violations” of the safety requirements recited therein. (Ill. Rev. Stat. 1983, ch. 48, par. 69.) Among the safety requirements recited are the following:

“[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engage thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Ill. Rev. Stat. 1983, ch. 48, par. 60.)

In dismissing plaintiffs complaint, the circuit court concluded that at the time of the mishap the plaintiff was not using a scaffold or other similar mechanical device and a scaffold was not needed for the work being done. The lower court determined that the plaintiff was “employed or engaged” on the floor, and that the plaintiff was not injured by the floor being used as a scaffold. Finally, the Rock Island county court felt that no other legal conclusion could be drawn from the facts pleaded, regardless of any amendments plaintiff might add to his pleadings.

At issue is the scope of the definition of the term scaffold as used in the act. Clearly, under some circumstances, a floor can be a scaffold, but only if it is used in lieu of a scaffold, ladder or support on a temporary basis. Where, however, a floor is used as a floor, it is not a scaffold or other similar mechanical device within the statutory definition. (Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607.) It is also clear that failure to provide a scaffold is no defense to liability under the act where a scaffold is necessary for the proper and adequate protection of life and limb. (Louis v. Barenfanger (1968), 39 Ill. 2d 445, 236 N.E.2d 724.) In reviewing the facts as alleged in plaintiff’s complaint, we are compelled to agree with the circuit court, that is, the floor was being used as a floor, not a scaffold, and the defendant did not fail to provide a scaffold where one was necessary.

While the Structural Work Act should be liberally construed, liberal construction does not require that every place where a workman chooses to stand must be labeled a scaffold within the meaning of the statute. (Thon v. Johnson (1961), 30 Ill. App. 2d 317, 174 N.E.2d 400; accord, Herman v. Swisher (1983), 115 Ill. App. 3d 179, 450 N.E.2d 28.) Where, as here, nothing distinguishes a completed floor from any other floor as that term is commonly used and understood, but for the fact that a workman chose to stand on it, it is not, as a matter of law, a scaffold.

A more troubling question is whether the defendant failed to provide a necessary scaffold. The plaintiff correctly observes that the statutory definition of scaffold includes “stays” and “supports.” He suggests that the assembly of lockers would not have fallen if it had been adequately braced with “stays” or “supports.” While the omitted stays or supports did not provide a working platform for the plaintiff, he suggests that the act imposes no such requirement before liability attaches. In Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App. 3d 1024, 414 N.E.2d 147, the appellate court held that to come "within the act’s coverage, a case must feature harm caused by a failure of something a worker is using to support himself. Where that feature is missing, there can be no liability under the statute. Just a year later, the appellate court rejected the holding in Matthews, finding that “supports” and “stays” need not function as “scaffolds” to be within the scope of the Structural Work Act. (Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 1051.) In rejecting the Matthews decision, the Urman court reasoned that to construe “stays” and “supports” as exact synonyms of “scaffold” would judicially erase terms that the legislature thought important enough to include, thereby rendering those terms surplusage. We cannot agree. A ladder is a platform for a workman, but it is not a scaffold. While both devices perform similar functions, the terms do not describe the same device nor are the terms synonymous. While tin snips, a circular saw and a torch all function for the workman in a similar manner, i.e., to cut building materials, the devices are quite different tools and the terms which describe them are hardly synonymous. We believe the same is true of the devices described in the Structural Work Act. Accordingly, we cannot agree that we would judicially erase legislative enactments if we construe the act so that each device listed performs the same function.

The Urman court also faulted the Matthews decision for failure to cite authority for its holding. We find authority for the Matthews holding in the language of the Structural Work Act itself. The act enumerates a series of devices, and then creates a class of protected persons among those “employed or engaged” on such devices. We believe this additional language not only creates a class of protected persons, but in addition further manifests the intention that the devices described should in some manner provide a platform for workmen.

While the appellate court decisions of Urman and Matthews are in conflict, and although we believe the reasoning employed in Ur-man is suspect, nevertheless the ultimate authority by which we must be guided in our disposition of this case is found in pronouncements of our supreme court. That court, quoting approvingly from the Wisconsin Supreme Court, stated:

“The scope [of the devices described in the statute] would reasonably include any temporary structure made up of parts, viewing the term in its broadest scope, used for support while doing any kind of work mentioned in the law —any kind of an elevated platform for workmen to use in the performance of their duties. Any combination for use in doing any kind of work mentioned in the statute where the servant is dependable thereon for support, in place of an ordinary surface, such as the ground or floor, is a mechanical contrivance.” (Emphasis added.) (Louis v. Barenfanger (1968), 39 Ill. 2d 445, 450, 236 N.E.2d 724, 727.)

As the supreme court in Barenfanger unequivocally echoes the rule in Matthews, and as we are bound to follow the rules of that court over conflicting decisions of the appellate court, we are compelled to hold that the devices described in the act generally refer to contrivances on which the workman is dependent for support. (14 Ill. L. & Prac. Courts sec. 82 (1968).) It follows that failure to provide braces for the assembly of lockers, where the workman was not dependent on the assembly for support, does not state a cause of action under the Structural Work Act.

For the reasons above stated, we agree with the circuit court of Rock Island County. The plaintiff’s complaint did not state a cause of action under the School Code or the Structural Work Act, nor could the complaint be amended in any manner to present such a claim. In keeping with this view, we affirm the decision rendered below.

Affirmed.

HEIPLE and BARRY, JJ., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THEODORE WEST WARD, Defendant-Appellant.
    Fourth District
    No. 4—83—0645
    Opinion filed May 31, 1984.

      Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Perry Lee Miller, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

The defendant appeals from a summary dismissal by the circuit court of Champaign county of his pro se petition for post-conviction relief filed pursuant to section 122 — 4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 122 — 4).

Defendant had been convicted of rape and sentenced to 25 years of imprisonment. That conviction was affirmed by this court on direct appeal. (People v. Ward (1980), 83 Ill. App. 3d 766, 404 N.E.2d 847, appeal denied (1980), 81 Ill. 2d 598.) On September 1, 1983, defendant filed his pro se petition and in it alleged ineffective assistance of counsel at both the trial and appellate levels; he also claimed denial of a fair trial by reason of the court’s refusal to give an instruction on an included offense. He stated that he was indigent and requested counsel. The trial court dismissed the petition without appointing counsel and without a hearing.

Of prime significance to our decision is the fact that the statute was amended by Public Act 83 — 942, effective November 22, 1983, approximately seven weeks after the filing of the petition. Prior to the amendment the statute provided in pertinent part:

“If the petitioner is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.” Ill. Rev. Stat. 1983, ch. 38, par. 122 — 4.

Public Act 83 — 942, inter alia, added section 122 — 2.1 as follows:

“Sec. 122 — 2.1. (a) Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.
(b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122 — 4 through 122— 6.
(c) In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.” (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 122 — 2.1.)

It also amended section 122 — 4 by adding certain language as follows:

“Sec. 122 — 4. Pauper Petitions. If the petition is not dismissed pursuant to Section 122 — 2.1, and alleges that the petitioner is unable to pay the costs of the proceeding, the court may order that the petitioner be permitted to proceed as a poor person and order a transcript of the proceedings delivered to petitioner in accordance with Rule of the Supreme Court. If the petitioner is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, and the petition is not dismissed pursuant to Section 122 — 2.1, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.” (Additions underscored.) Ill. Rev. Stat., 1983 Supp., ch. 38, par. 122 — 4.

It will thus be seen that at the time of the filing of the petition appointment of counsel, if requested, was mandatory. The failure of the court so to appoint constitutes reversible error. (People v. But ler (1968), 40 Ill. 2d 386, 240 N.E.2d 592; People v. Partee (1980), 85 Ill. App. 3d 679, 407 N.E.2d 215.) Since the petition here clearly stated that the defendant was indigent and desired counsel, the State concedes that the case must be reversed and remanded.

However, the parties differ as to what law should apply on remand. Defendant argues that he has an “accrued right” to have the case considered under the former law, i.e., mandatory appointment of counsel. The State, on the other hand, urges that there is no accrued right and that the court should consider the petition under the terms of Public Act 83 — 942, i.e., possibility of summary dismissal as frivolous.

The core question is whether the defendant possesses an accrued right and this question, in turn, depends on whether the amendment by Public Act 83 — 942 is a matter of substance or procedure. The fundamental premise is stated in section 4 of “An Act to revise the law in relation to the construction of the statutes.” (Ill. Rev. Stat. 1983, ch. 1, par. 1103.) In pertinent part it provides:

“No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to *** any right accrued, or claim arising under the former law, or in any way whatever to affect *** any right accrued, or claim arising before the new law takes effect.”

In Hogan v. Bleeker (1963), 29 Ill. 2d 181, 184-85, 193 N.E.2d 844, 847, the supreme court said:

“As a general rule, however, statutes will not be construed retroactively unless it clearly appears such was the legislative intention. [Citation.] But this general rule is not ordinarily applied to statutes which relate merely to remedies and forms of procedure and which do not affect substantive rights. [Citation.] Where a statute giving a special remedy is amended without a savings clause in favor of pending actions, all actions affected must be decided in conformity to the law then existing, both in the trial and Appellate Courts, without regard to whether the actions accrued before or after such change, or whether action had been previously instituted.”

In our opinion the amendment in question here is procedural in nature. Therefore, under the rule of Hogan it may be given retroactive application.

The right to counsel at the trial stage is so fundamental as to need no citation of authority. However, it does not follow that the right to counsel is mandated in all subsequent proceedings. The United States Supreme Court has so indicated. In Rodriquez v. United States (1969), 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715, the court held that the defendant was entitled to an appeal, but that he must prepare his post-conviction petition without the assistance of counsel. In Ross v. Moffitt (1974), 417 U.S. 600, 41 L. Ed. 2d 341, 94 S. Ct. 2437, the court held that appointment of counsel was not necessary for discretionary appeals.

Our own supreme court was faced with the question of post-conviction proceedings in misdemeanor cases. In People v. Warr (1973), 54 Ill. 2d 487, 298 N.E.2d 164, the court directed that until otherwise provided by rule or by statute a convicted misdemeanant should enjoy a procedure in the nature of a proceeding under the Post-Conviction Hearing Act, subject to certain conditions, one of which was:

“[CJounsel need not be appointed to represent an indigent defendant if the trial judge, after examination of the petition, enters an order finding that the record in the case, read in conjunction with the defendant’s petition and the responsive pleading of the prosecution, if any, conclusively shows that the defendant is entitled to no relief.” 54 Ill. 2d 487, 493, 298 N.E.2d 164, 167.

From these authorities we infer that the right to counsel at post-conviction proceedings is a matter of legislative grace and favor which may be altered by the legislature at will; hence, the defendant had no accrued right.

The trial court offered no reason for its summary dismissal in the instant case. We cannot therefore know whether it falls within the specifications of Public Act 83 — 942. Its order is therefore vacated and the cause is remanded to the circuit court of Champaign County to reconsider the petition in the light of Public Act 83 — 942.

Vacated and remanded with directions.

MILLS, P.J., and TRAPP, J., concur.


author: JUSTICE GREEN

text:
    DAVID N. PRICE, Plaintiff-Appellee, v. CARMACK DATSUN, INC., d/b/a Carmack Car Capitol, Defendant-Appellant.
    Fourth District
    No. 4—83—0464
    Opinion filed June 7, 1984.
    Bruce Meachum, of Meachum & Meachum, of Danville, for appellant.
    Glenn A. Stanko, of Reno, O’Byrne & Kepley, of Champaign, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

The principal issue in this appeal is whether plaintiff, an employee who alleged that he was discharged for submitting a claim under the group health insurance plan provided by his employer, stated a cause of action based upon the tort of retaliatory discharge. We conclude that plaintiff failed to state a cause of action for retaliatory discharge.

On January 5, 1982, plaintiff, David N. Price, filed a complaint against defendant, Carmack Datsun, Inc., d/b/a Carmack Car Capitol, in the circuit court of Vermilion County. Following a jury trial, the trial court entered an order on February 1, 1983, in favor of plaintiff and against defendant in the amount of $5,525 in compensatory damages and $2,762 in punitive damages.

On appeal defendant maintains that (1) the trial court erred in refusing to grant defendant’s motion to dismiss the complaint for failure to state a cause of action, (2) the jury verdict was contrary to the manifest weight of the evidence, (3) the amount of compensatory damages was improper, (4) plaintiff was not entitled to punitive damages, and (5) the trial court erred in allowing a motion in limine filed by plaintiff.

By filing a motion to dismiss, a defendant admits the well-pleaded facts of the complaint and raises an issue of law as to the legal sufficiency of the allegations of the complaint. Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.

Here, the complaint contained the following allegations. During the time period pertinent to plaintiffs case, defendant, an Illinois corporation, was in the business of selling new and used automobiles with its principal place of business in Danville. On August 18, 1980, plaintiff, who was employed by defendant as a car salesman, sustained injuries in an automobile accident. These injuries required plaintiff to be hospitalized for approximately three weeks, and caused plaintiff to be off work for over two months. As an employee of defendant, plaintiff was afforded coverage under a group health insurance plan with Massachusetts Mutual Life Insurance Company. Plaintiff’s medical expenses, most of which were covered by his group health insurance plan, exceeded $7,000. When plaintiff returned to work on November 26, 1980, Donald Carmack, defendant’s president, inquired as to whether plaintiff would submit a claim under his group health insurance plan. In addition, Carmack sought to dissuade plaintiff from filing such a claim. When plaintiff subsequently advised Car-mack that he was going to file an insurance claim, plaintiff was discharged from his job as a salesman with defendant.

The complaint also alleged that (1) the discharge of plaintiff by defendant was in “direct retaliation” for plaintiff’s submission of his claim for insurance benefits under the group health insurance plan, and (2) as a result of his discharge, plaintiff suffered loss of income due to his “inability to find comparable employment.”

Defendant maintains that the trial court erred in denying its motion to dismiss the complaint for failure to state a cause of action because Illinois law does not recognize a cause of action in favor of a former employee and against a former employer for retaliatory discharge for submitting a group health insurance claim.

The leading Illinois authorities on the tort of retaliatory discharge are the cases of Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, and Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876. In the Kelsay and Palmateer cases the supreme court formulated a rule granting a civil cause of action in certain circumstances to an employee under an “at will” employment relationship who is discharged by his employer in retaliation for certain conduct by the employee.

In Kelsay, the supreme court announced that, for the first time in Illinois, a cause of action should exist for retaliatory discharge in order to uphold and implement the public policy evinced by the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.). In its analysis, the court determined that the purpose of the Act would be seriously undermined if employers were permitted to abuse their power to terminate by threatening to discharge employees for seeking compensation under the Act.

In Palmateer, the supreme court granted leave to appeal to determine the “contours” of the tort of retaliatory discharge. There, plaintiff filed suit against a former employer, alleging wrongful discharge of the plaintiff in retaliation for supplying information to a local law enforcement agency that one of his co-employees might be violating the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 1 et seq.) and for agreeing to assist in the investigation and trial of the co-employee if requested. The trial court dismissed the complaint for failure to state a cause of action, and the appellate court affirmed. The supreme court reversed and determined that the plaintiff had stated a cause of action under Illinois law, and remanded the case to the trial court for further proceedings.

The supreme court in Palmateer determined that a discharged “at will” employee has a cause of action against his former employer if the employee was discharged in retaliation for his activities, and that discharge contravenes a “clearly mandated public policy.” As to the meaning of “clearly mandated public policy,” the court stated:

“There is no precise definition of [clearly mandated public policy]. In general, it can be said that public policy concerns what is right and just and what affects the citizens of this State collectively. It is to be found in the State’s constitution and statutes and, when they are silent, in its judicial decision. [Citations.] *** [A] matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed.” Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878.

The parties have cited no case in which the tort of retaliatory discharge has been extended to a factual situation similar to the one in the case at bar. Plaintiff argues, however, that certain provisions of the Illinois Insurance Code concerning group accident and health insurance claims (Ill. Rev. Stat. 1981, ch. 73, pars. 964 through 982d) constitute the necessary “clearly mandated public policy” required by the Palmateer case.

We recognize that section 367 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 979) regulates the issuance and maintenance of group accident and health insurance. For example, section 367 requires that (1) provisions allowing the addition of new family members be contained in the policy, and (2) dependent coverage continue for at least 90 days upon the death of the insured employee. In addition, section 367e (Ill. Rev. Stat. 1981, ch. 73, par. 979e) contains elaborate provisions which allow for the conversion of group health insurance to individual policies in various situations. However, while the Workers’ Compensation Act requires covered employers to provide benefits to employees under certain circumstances, the Illinois Insurance Code does not require employers to provide group health insurance to their employees. The Code merely regulates the terms of such policies that are issued. Accordingly, we conclude that the provisions of the Code do not evince a clearly mandated public policy against an employer’s discharge of an employee for filing a group health insurance claim.

We note that section 510 of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. sec. 1140 (1976)) provides:

“It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan ***.” 29 U.S.C. sec. 1140 (1976).

In Kross v. Western Electric Co. (7th Cir. 1983), 701 F.2d 1238, the trial court concluded that plaintiff, by alleging that he was discharged for the purpose of depriving him of continued participation in Western Electric’s company-provided life and medical insurance plans, stated a claim for damages cognizable under section 510 of ERISA.

Although section 510 may provide a Federal remedy for employer conduct similar to that alleged in this case, we need not pass upon the exact application of ERISA to the case at bar because plaintiff did not allege a violation of ERISA, nor did defendant raise it as a defense. In addition, we conclude that section 510 of ERISA does not evince a “clearly mandated public policy” of this State for the purposes of extending the State common law tort of retaliatory discharge. We note that the Palmateer court stated that “clearly mandated public policy” is to be found in the “State’s constitution and statutes and, when they are silent, in its judicial decisions.” Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878.

Because the complaint in this case failed to state a cause of action based upon the tort of retaliatory discharge, we conclude that the trial court erred in denying defendant’s motion to dismiss. As a result, we need not pass upon the other issues raised by defendant in this appeal.

For the reasons stated herein, we reverse the judgment entered by the circuit court of Vermilion County.

Reversed.

MILLS, RJ., and TRAPP, J., concur.


text:
    HENRY V. BRADWAY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Pierce Glass Company, Appellee).—RAYMOND J. STEFFENS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Pierce Glass Company, Appellee).
    Fourth District (Industrial Commission Division)
    Nos. 4—84—0092 WC, 4—84—0093 WC cons.
    Opinion filed May 31, 1984.

      Cornfield and Feldman, of Chicago (Linzey D. Jones, of counsel), for appellants.
    Heyl, Royster, Voelker & Allen, of Springfield (Gary L. Borah, of counsel), for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Claimants, Henry V. Bradway and Raymond J. Steffens, suffered accidental injuries when a barrel on the premises of Pierce Glass Company exploded as one of the claimants sought to make a weld with a torch. The claimants were in the process of constructing a pontoon boat as a personal project. The arbitrator found that the injuries did not arise out of and in the course of employment. The Commission affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. Claimants appeal, contending that the employer acquiesced in the practice of employees making personal items from unused company materials while at work.

Bradway had been employed by the glass company for nine years and Steffens for 22 years. On May 19, 1978, both claimants were working on the night shift. Before work, Bradway loaded three or four empty barrels from a dumping area into his truck and transported them to the machine repair shop. During a regularly scheduled paid lunch break in the early morning hours of May 20, the claimants unloaded the barrels in the machine shop. As Steffens touched one of the barrels with the torch, it exploded, causing the resulting injuries to both claimants. It was later found that the unmarked barrel had contained gasoline which had been used for auxiliary power equipment during a previous power shortage, although gasoline was not one of the customary contents of the company’s barrels.

At the hearing before the arbitrator, Bradway testified that any employee who wanted any of the barrels was permitted to take them and that various employees, including supervisors and foremen, would take barrels periodically for their own use. He did acknowledge, however, that the company used the empty barrels for other purposes. Bradway testified that he knew about a company rule prohibiting the making of knives at the plant. Both claimants stated they had known of no other rule forbidding employees from using company scrap material or barrels for their own personal use or requiring permission to take barrels. Steffens acknowledged, however, that at the time of the accident he was aware that certain barrels were deposit barrels for which the company could receive a refund. Bradway further testified that over a period of years he had made various kinds of ash trays, bubbles and glass swans on company time and that this was not an unusual practice. A hunting knife and an ash tray made on company time with company materials were introduced into evidence. Steffens testified that some three to five years earlier he had made a small metal gate for himself on company time using its materials and welding equipment and that a foreman was present. Steffens observed another employee make a fish cooker in the machine shop approximately five years earlier, but admitted that he “didn’t see too many projects.”

Bradway testified that, at the beginning of his work shift, he informed the acting foreman about what he was doing although he did not ask him permission. Pierce Glass, however, introduced into evidence a statement signed by Bradway in which he admitted that the acting foreman did not know of the work being done on the barrels.

There is evidence on behalf of the employer that company rules and policies were posted on the bulletin board where the employees punched in and out and that they were never taken down. The posted policy prohibited making personal projects on the premises, especially if using company material.

“[I]f the employee voluntarily and in an unexpected manner exposes himself to a risk outside any reasonable exercise of his duties, any injury incurred as a result will not be within the course of employment.” (Segler v. Industrial Com. (1980), 81 Ill. 2d 125, 128.) Nevertheless, the employer may be held liable in that case “if he has knowledge of or has acquiesced in such a practice of custom.” (81 Ill. 2d 125, 128; see 1A A. Larson, Workmen’s Compensation sec. 27.31(b) (1982).) Where evidence can give rise to conflicting inferences, a reviewing court, although it might have drawn different inferences from the evidence in the record, will not set aside a Commission finding unless it is against the manifest weight of the evidence. Schultheis v. Industrial Com. (1983), 96 Ill. 2d 340, 348; see also Berry v. Industrial Com. (1984), 99 Ill. 2d 401, 406-07.

The Commission could have reasonably inferred that the employer did not acquiesce in the practice of using company materials, particularly barrels, to make personal items on the company premises. The prior personal projects were not made from barrels, Steffens knew at the time of the injury that certain company barrels were deposit barrels, Bradway knew about the company rule prohibiting the making of knives at the plant, and Bradway acknowledged that the company used the empty barrels for other purposes. Moreover, whether or not Bradway told his acting foreman that he was working on some company barrels was a question of fact which the Commission decided in favor of the employer. This decision is supported by the statement signed by Bradway and the testimony of a company witness.

Claimants’ further argument that their injuries were incidental to their employment since they were caused by a condition of the work place, namely, using unmarked barrels to transport gasoline, is not persuasive, and the citation of Material Service Corp. v. Industrial Com. (1973), 53 Ill. 2d 429, is not supportive. In Material Service the court found that the employer clearly contemplated that its employees would go out to the parking lot to start their cars and that the lot was hazardous. The conduct involved in the death of the employee in Material Service was both contemplated by the employer and was expressly authorized. Here, there is no proof that the employer contemplated that its employees would apply a torch to a barrel belonging to the employer, conduct which could be viewed as unreasonable under the circumstances and not incidental to employment.

The judgment of the circuit court of Logan County is affirmed.

Affirmed.

McNAMARA, BARRY, WEBBER, and KASSERMAN, JJ., concur.


text:
    JUNE BULLINGTON LINGWALL, Petitioner-Appellee, v. ALTHEA EILEEN HOENER et al., Respondents-Appellants.
    Fourth District
    No. 4—83—0763
    Opinion filed June 7, 1984.

      Albert W. Schimmel III, of Schimmel, Takahashi & Schimmel, P.C., of Pittsfield, for appellants.
    George J. Lewis, of Lewis, Blickhan, Longlett & Timmerwilke, of Quincy, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1983, ch. 40, par. 607(b)) provides that a circuit court, upon petition of a grandparent or a great-grandparent of a minor child, may, consistent with the best interests of the child, grant that grandparent or great-grandparent visitation privileges with the child. The issue in this case is whether such privileges may be granted even though the parent of the child, through whom the petitioner is related to the child, has been deprived of all parental rights in the child through adoption proceedings. We conclude that such privileges may be granted.

On October 20, 1981, petitioner, June Bullington Lingwall, natural parental grandmother of Michelle Hoener, a minor, brought action in the circuit court of Pike County under section 607(b) of the IMDMA seeking visitation privileges with Michelle. Althea Eileen Hoener, the child’s natural mother, and her husband, Wayne Hoener, the child’s adoptive father, were respondents to the petition. After an evidentiary hearing the trial court entered an order on November 9, 1983, granting petitioner visitation privileges. Respondents have appealed.

We affirm.

The order placed substantial restrictions on the visitation. Specifically it (1) granted petitioner visitation with Michelle once every two weeks in the presence of Rev. Jim Jenkins, (2) provided that the time, date and place of the visitations should occur according to the mutual agreement of the parties, (3) required the parties to file a written motion with the court describing the visitations, (4) provided that the trial court, after receiving the report, could then modify the visitation privileges, (5) enjoined petitioner from “having the natural father of [Michelle] present at the time of such visitations,” and (6) ordered that the visitations occur in the State of Illinois. The natural father’s parental rights had previously been terminated in the proceedings in which the child was adopted by respondents.

We need not detail the factual background giving rise to the case. Respondents contest the power of the circuit court to award visitation rights with a minor to a grandparent whose relationship to the minor is traced through a parent of the minor whose rights in regard to the minor have been terminated by an adoption decree. However, at oral argument, they conceded that if the court can properly make such an order, petitioner is a proper person to have such visitation privileges.

At common law, grandparents were granted visitation privileges only under special circumstances (1) where the mother had died and the maternal grandparents had been close to the child (Boyles v. Boyles (1973), 14 Ill. App. 3d 602, 302 N.E.2d 199), (2) where the father had died and the grandparents were the trustees of a fund of which the child was a beneficiary (Lucchesi v. Lucchesi (1947), 330 Ill. App. 506, 71 N.E.2d 920), and (3) where the father had been inducted into the armed forces and, thereafter, the mother refused visitation to the paternal grandparents (Solomon v. Solomon (1943), 319 Ill. App. 618, 49 N.E.2d 807). In the absence of special circumstances, a granting of visitation privileges to a grandparent over objections of a parent constituted reversible error. (Chodzko v. Chodzko (1976), 66 Ill. 2d 28, 360 N.E.2d 60.) Similarly, where after a divorced mother had died and her son was adopted by his father and the father’s second wife, the supreme court ruled that the court having jurisdiction of the divorce proceedings had been divested of its jurisdiction concerning the custody of the child. Accordingly, a decree of the divorce court which was entered after the adoption, granting the maternal grandparents certain custody rights, was held to be void. People ex rel. Bachleda v. Dean (1973), 48 Ill. 2d 16, 268 N.E.2d 11.

Section 607(b) of the IMDMA states in its entirety:

“(b) The court may grant reasonable visitation privileges to a grandparent or great-grandparent of any minor child upon the grandparents’ or great-grandparents’ petition to the court, with notice to the parties required to be notified under Section 601 of this Act, if the court determines that it is in the best interests and welfare of the child and may issue any necessary orders to enforce such visitation privileges. Further, the court, pursuant to this subsection, may grant reasonable visitation privileges to a grandparent or great-grandparent whose child has died where the court determines that it is in the best interests and welfare of the child.” Ill. Rev. Stat. 1983, ch. 40, par. 607(b).

Section 607(b) clearly enlarges the power to grant grandparent visitation beyond that which existed at common law. Special circumstances are no longer necessary. However, this legislation does not expressly overturn the Bachleda doctrine that an adoption decree prevents an award of rights or privileges concerning the child to an ancestor of the child’s natural parent whose parental rights were terminated by the decree. In a recent case, the appellate court for the Second District held that the foregoing rule was still in force. (In re Adoption of Schumacher (1983), 120 Ill. App. 3d 50, 458 N.E.2d 94.) That court noted that section 11 — 7.1 of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 1101/2, par. 11 — 7.1) provides for the granting of visitation rights to grandparents when both natural or adoptive parents are deceased, but excludes application of that provision in situations where the child has been subsequently adopted. The Schumacher court reasoned section 11 — 7.1 evidenced a policy that termination of a parent’s rights in a child terminated the basis for any rights in the parents of that parent. The court also felt that to allow visitation to such grandparents would defeat “the adoption statute’s basic premise of the complete severance of ties between the child and the natural family.” In re Adoption of Schumacher (1983), 120 Ill. App. 3d 50, 53, 458 N.E.2d 94, 98.

We do not agree with the Schumacher court that section 607(b) of the IMDMA enacted effective January 1, 1982, should be interpreted as a continuation of the policy of section 11 — 7.1 of the Probate Act of 1975 enacted effective October 1, 1977. After providing in section 11 — 7.1 that grandparent visitation could not be awarded where the child had been subsequently adopted, the legislature’s later failure to refer to such situations in section 607(b) indicates an intention that subsequent adoptions should not preclude an award of grandparent visitation pursuant to that section.

Such an interpretation is consistent with a trend toward allowing visitation privileges to grandparents on a broader scale. As stated in Schumacher, the majority of other jurisdictions have determined that provisions similar to section 607(b) do not authorize courts to grant visitation rights to grandparents who are parents of a parent whose rights have been terminated by adoption decrees. However, a few cases have taken a different view. (Layton v. Foster (1983), 95 App. Div. 2d 77, 466 N.Y.S.2d 723; Mimkon v. Ford (1975), 66 N.J. 426, 332 A.2d 199.) Moreover, we note that the United States House of Representatives passed House Concurrent Resolution 45 (H.R. 45, 98th Cong., 1st Sess., 129 Cong. Rec. 50, 2127-28 (1983)). This resolution (1) expresses the sense of Congress that the National Conference of Commissioners on Uniform State Laws should develop a Model State Act that provides grandparents with adequate rights to petition State courts for privileges to visit grandchildren, (2) recognizes that adoption often takes place when parents remarry, and (3) seeks to insure that visitation privileges extend to the cases in which stepparents adopt grandchildren.

In order to grant visitation to a grandparent or great-grandparent, section 607(b) requires that the court determine that visitation is in “the best interests and welfare of the child.” The adoption statute’s “basic premise of the complete severance of ties between the child and the natural family” with which the Schumacher court was rightly concerned can be upheld under our interpretation of section 607(b). That severance is of most significance in cases where the child is being adopted by strangers. Grandparent visitation should rarely be granted when a child is adopted by strangers because seldom, if ever, would such privileges in those cases be in the “best interests and welfare of the child.” In a case such as the instant one, the ties to the petitioner-grandmother need not be severed. In a case of this nature, if the visitation causes disruption or disunity, the court can terminate the privileges.

Because we deem section 607(b) to permit the type of visitation granted petitioner under the circumstances here and because petitioner is, admittedly, a proper grandparent to have the visitation, we affirm the order of visitation appealed.

Affirmed.

MILLER and WEBBER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUGLAS B. GRAVEN, Defendant-Appellant.
    Fourth District
    No. 4—83—0725
    Opinion filed May 30, 1984.

      David Y. Eberspacher, of Harlan Heller, Ltd., of Mattoon, for appellant.
    Chris E. Freese, State’s Attorney, of Sullivan (Robert J. Biderman and Timothy J. Londrigan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On August 24, 1983, after a trial by jury in the circuit court of Moultrie County, defendant, Douglas B. Graven, was found guilty of the offenses of (1) driving while the alcohol concentration in his breath was .10 or more in violation of section 11 — 501(a)(1) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11 — 501(a)(1)), and (2) unlawfully transporting alcoholic liquor in violation of section 11 — 502 of the Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 502). Subsequently, the court sentenced him to a term of six months’ probation and a fine of $250, and a fine of $50 for the respective offenses. While finding defendant guilty of the foregoing offenses, the jury also found him not guilty of driving while under the influence of alcohol as prohibited by section 11 — 501(a)(2) of the Code. Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11 — 501(a)(2).

Defendant contends on appeal that (1) section 11 — 501(a)(1) concerning the alcohol concentration in a driver’s breath is unconstitutionally vague; (2) the State failed to prove an essential element of the foregoing offense; (3) the court made improper statements and improperly questioned the jury; (4) the jury’s deliberations were tainted by confusion as to the proper manner in which to apply the law; and (5) the information charging defendant with unlawful transportation of liquor in violation of section 11 — 502 of the Code was insufficient as a matter of law. We affirm as to both convictions.

Section 11 — 501(a)(1) provides:

“(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
1. The alcohol concentration in such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11 — 501.2.” (Emphasis added.) (Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11 — 501(a)(1).)

Defendant maintains that this section is unconstitutionally vague because the term “breath units” is critical to the definition of the offense and that term is not defined either in section 11 — 501.2 or anywhere else in the Code. However, section 11 — 501.2(a)(5) does state:

“Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.2(a)(5).

Defendant points out that (1) a statute which forbids the doing of an act in terms so vague that men of common intelligence must guess at its meaning is impermissibly vague and violates due process of law (People ex rel. Armstrong v. Huggins (1950), 407 Ill. 157, 94 N.E.2d 863), and (2) statutes imposing criminal liability without regard to fault must satisfy a stricter standard of certainty than statutes incorporating a requirement of scienter (Colautti v. Franklin (1979), 439 U.S. 379, 58 L. Ed. 2d 596, 99 S. Ct. 675). In People v. Ziltz (1983), 98 Ill. 2d 38, 455 N.E.2d 70, the supreme court upheld the constitutionality of section 11 — 501.2(a)(1) against an attack which did not include the question of the vagueness of the phrase “breath units.” The court not only stated that the section imposed “strict liability,” but also stated that “[s]ection 11 — 501(a)(1) incorporates the definition of blood and breath units found in section 11 — 501.2(a) of the same act.” 98 Ill. 2d 38, 42, 455 N.E.2d 70, 72.

We deem the only reasonable conclusion that can be drawn when sections 11 — 501(a)(1) and 11 — 501.2(a)(5) are considered together is that the term “breath units” means the number of grams of alcohol per 210 liters of breath. A person of common intelligence is under no jeopardy of being required to guess as to the meaning of this term. The statutory language meets a strict standard of certainty and does not deprive an accused of due process of law.

Defendant’s second contention is closely related to the first. He asserts that the State failed to introduce any evidence as to what constitutes a “breath unit.” Our holding as to the first issue controls our holding here. There was no need to prove what constitutes a “breath unit” as that has been determined by the legislature to be the number of grams of alcohol per 210 liters of breath (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.2(a)(5)). Furthermore, the State produced evidence that approximately one-half hour after defendant was arrested for the charges in question an officer had defendant blow into an intoxilyzer unit for 10 seconds and obtained a reading showing an alcohol concentration of .14. Further evidence showed the unit to be in good working order. Defendant seems to argue that it would be necessary for the State, in order to prove the necessary elements of the case, to show the amount of breath defendant blew into the unit. Such a showing was not necessary. The statutory language provides a formula which measures the grams of alcohol contained in one’s breath, and the proper measurement may be obtained without having 210 liters of breath blown into the unit.

The remarks of the court to the jury, about which defendant complains, were made at 12:06 a.m. on August 24, 1983. At that time, the jury had been deliberating since 7:30 p.m. on the previous day. The jury was returned into court whereupon the following colloquy occurred:

“THE COURT: I have a few questions I would like to put to you [the jury foreman] before I give you a supplemental instruction. I certainly don’t mean to be coercive about anything. I don’t want to know exactly how you voted, that is whether it was for [or] against acquittal or conviction. I would like to know the last count, whether it was 5 to 7, 10 to 2, 3 to 9, that sort of thing. Have you taken more than one ballot?
[JURY FOREMAN]: Yes. Do you want to know where we are on the issue, the three issues?
THE COURT: I just want to know the last vote right now.
[JURY FOREMAN]: 9 to 3,1 think.
THE COURT: Do you have any notes in there that would help you answer that question?
[JURY FOREMAN]: No.
THE COURT: Do you think you will be able to reach a verdict within a reasonable period of time?
[JURY FOREMAN]: Yes.
THE COURT: Do you think you will?
[JURY FOREMAN]: Yes.
THE COURT: Under those circumstances, I will return you to the jury room. I will withhold this supplemental instruction. I don’t like to give you that unlfess I absolutely have to.”

Inquiry by the court as to the numerical division of the jury, although improper, is not of itself reversible error. Such error occurs only if the conduct of the court, in asking for the count, interfered with the jurors’ deliberation or hastened their verdict. (People v. Duszkewycz (1963), 27 Ill. 2d 257, 189 N.E.2d 299; People v. Golub (1929), 333 Ill. 554, 165 N.E. 196.) Here, the inquiry as to the division of the jury was not repeated as in People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984, where reversible error was held to have occurred. The court’s statement concerning its unwillingness to give an unspecified instruction was not of a coercive nature, but indicated that the jury should continue deliberations in the manner they had been instructed to do until they were told otherwise. No reversible error resulted from the court’s statement to the jury.

At the close of the evidence, the jury was instructed as to the propositions which the State had to prove to sustain the charges. Two instructions were given the jury both of which purported to state the necessary elements of the “charge” of driving under the influence of alcohol. Each listed the driving of a motor vehicle as one of the elements. The instruction concerned with proof under section 11— 501(a)(1) listed, as the other element, the defendant’s then having alcohol concentration in his breath of “0.10 or more based on the definition of *** breath units.” The instruction concerned with section 11 — 501(a)(2) listed, as the other element, the defendant’s then being “under the influence of alcohol.” A separate instruction properly defined the phrase “breath units” as being the number of “grams of alcohol per 210 liters of breath.” The jury was also given the following jury instruction without objection:

“If you find that the amount of alcohol in the defendant’s blood as shown by a chemical analysis of his breath was .10% or more by weight of alcohol, you shall presume that the defendant was under the influence of alcohol.
However, this presumption is not binding on you and you may take into consideration any other evidence in determining whether or not the defendant was under the influence of alcohol.” Illinois Pattern Jury Instruction, Criminal, No. 23.06 (2d ed. 1981).

The jury began deliberating at 7:30 p.m. on August 23, 1983. At 9:20 p.m. the jury foreman sent a note containing two questions to the trial court. In this note, the jury inquired as to whether the second paragraph of IPI Criminal No. 23.06 applied (1) only to the driving under the influence charge, or (2) also to the alcohol concentration charge.

The trial court wrote the following response at the bottom of the note:

“The Court has the legal discretion to answer your (2) questions but deems it necessary to not do so and must refer you to the instructions as given.”

The statutory context of the two separate charges and the instructions explaining them are such as to be likely to confuse a jury. Under section 11 — 501(a)(1), once the driving is proved, proof of the alcohol content in the breath of the driver is sufficient to prove that charge. On the other hand, under section 11 — 501(a)(2) even though the driving is proved, proof of the alcohol content in the breath of the driver merely creates a permissive presumption as to the driver being under the influence of alcohol. However, we do not see how any prejudice could have resulted from any confusion here. The “presumption” in issue is predicated upon proof of an alcohol content of .10 or more in the breath of the driver. Under section 11 — 501(a)(1), once that is proved, no need exists to apply the presumption. Any confusion about the applicability of the presumption under those circumstances would be harmless. As defendant was acquitted as to the charges under section 11 — 501(a)(2), he could not have been prejudiced by confusion as to the application of the presumption there.

No reversible error resulted from the court’s handling of the jury’s inquiry.

The charge that defendant had unlawfully transported alcoholic liquor arose from section 11 — 502 of the Code which, with certain exceptions not applicable here, prohibits the transportation of alcoholic liquor in a motor vehicle unless in an original container with the seal unbroken. The charge against defendant here made no allegation that defendant transported the liquor with any of the particular mental states set forth in article 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 4 — 1 through 4 — 9) (e.g., intent, knowledge, recklessness, negligence). If a mental state was required to commit this offense, the failure to allege the mental state was error. People v. Adams (1978), 64 Ill. App. 3d 547, 381 N.E.2d 738; People v. Mack (1974), 24 Ill. App. 3d 455, 321 N.E.2d 446.

In People v. Hutchison (1977), 46 Ill. App. 3d 725, 361 N.E.2d 328, this court, in a split decision, held that knowledge was an implied element of the instant offense even though the statute does not expressly require that the person have any particular mental state in order to commit the offense. The majority and dissent both recognized the existence of section 4 — 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 4 — 9), which then and now provides that a person may be guilty of an offense without requiring a mental state even where the statute does not clearly impose absolute liability if the offense is a misdemeanor for which no imprisonment may be imposed and the fine does not exceed $500. Mr. Justice Mills, in dissent, concluded that the illegal transportation of liquor was properly such an offense.

We agree with the dissent in Hutchison. Section 11 — 502 makes no statement as to the penalty for a violation of the offense. Section 11 — 202 of the Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11— 202) states that violation of the traffic laws, when no penalty is provided, constitutes a petty offense. Section 5 — 1—17 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—17) defines a petty offense as one “for which a sentence to a fine only is provided.” Section 5 — 1—2 of that Code (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1— 2) describes a business offense as a petty offense for which “the fine is in excess of $500.” Obviously, the instant offense is not a business offense. Accordingly, we conclude that this offense is one within the contemplation of section 4 — 9 of the Criminal Code of 1961 for which absolute liability may be imposed. For the reasons stated in Mr. Justice Mills’ dissent, we agree that knowledge of the existence of the open container of alcoholic beverage found in defendant’s automobile was not a necessary element of the illegal transportation charge. We adopt that dissent and overrule Hutchison.

We also hold that the charge of unlawful transportation of alcoholic liquor was properly alleged here.

Our affirmance is for the reasons stated.

Affirmed.

TRAPP and MILLER, JJ., concur.