text:
    MOODY’S INVESTORS SERVICE, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants.
    Fourth District
    No. 4—82—0170
    Opinion filed February 17, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Georgene M. Wilson, Assistant Attorney General, of counsel), for appellants.
    Richard C. Godfrey, Michael R. Levinson, and James R. Browne, all of Kirkland & Ellis, of Chicago, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

The defendants (Department) appeal from an order of the circuit court of Sangamon County, sitting in administrative review, which reversed a determination by the Department that the sales of plaintiff’s (Moody) publications were subject to taxation pursuant to the provisions of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.) (ROTA) and the Use Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 439.1 et seq.).

Before considering the merits of the appeal, we must first thread our way through an extremely convoluted procedural maze. The root of the procedural problem lies principally with the enactment during the pendency of these proceedings of a statute (Ill. Rev. Stat. 1979, ch. 127, par. 39b20) which authorized the appointment of a board of appeals (Board) by the Department.

Moody sells publications containing financial information to subscribers within the State of Illinois. Eight of these publications are concerned here. A brief description of each follows.

1. News Reports and Manuals: the Reports are issued twice a week and give current comprehensive financial information on specific commercial or governmental enterprises in six areas: Municipal and Government, Bank and Finance, Industrial, OTC Industrial, Public Utilities, and Transportation. The Reports are compiled into the Manuals each year and are supplementary to the Manuals which are revised annually. Old Manuals are generally discarded. For the purpose of the instant proceedings the Department treated the News Reports and Manuals as a single publication. The News Reports come in loose-leaf form, while the Manuals are hardbound, and together they account for about 55 percent of the sales involved.
2. Bond Survey: this is published weekly and is of primary interest to brokers, bond dealers and bankers. It breaks down the bond market into seven sectors and the current status of each sector is analyzed with Moody’s recommendations on each.
3. Stock Survey: this is also published weekly and contains articles about the stock market, the economy, events in Washington, the international situation, business changes, and industrial and corporate developments. It also includes specific buy-hold-sell recommendations and investment policy suggestions, together with charts, tables, and statistical comparisons. This publication and the Bond Survey account for about 15 percent of involved sales.
4. Handbook of Common Stocks: this is soft-bound and is published every three months. It contains a brief description of 850 common stocks and background information on over 2,500 stocks. Each new issue supplants the prior one. It accounts for about 7 percent of involved sales.
5. Dividend Record: this is published twice a week and shows the dividends of approximately 6,000 companies. It is cumulative and used for a full year. It accounts for approximately four percent of the sales.
6. Bond Record: this is published monthly and contains data on over 19,000 bonds. Much of the information is subject to change and is constantly updated. The prior issue becomes obsolete upon issuance of the current issue. It accounts for approximately three percent of involved sales.
7. Municipal Credit Reports: this is published irregularly and entitles the subscriber to receive credit reports on newly issued bonds or on bonds which receive a revised Moody’s rating. A description of the bonds is offered together with an opinion on the issue.
8. Commercial Paper Reports: this also is published irregularly and entitles the subscriber to reports on commercial paper of the same nature as municipal bonds. This publication and Municipal Credit Reports account for less than one percent of involved sales.

The remaining sales, approximately 15% of the total, are represented by combined subscriptions to the Stock Survey and the Bond Survey.

The Department commenced an audit of Moody’s sales of the publications for the period July 1, 1970, through March 31, 1974. This culminated in the issuance by the Department on June 26, 1974, of a notice of tax liability (NTL) of $36,192.72 in delinquent taxes, $7,238.54 in penalties, and $9,048.27 in interest. Within 20 days as provided in section 6b of ROTA (Ill. Rev. Stat. 1979, ch. 120, par. 445b) Moody protested the NTL and requested a hearing. This hearing was held on February 6, 1975. Moody claimed at that hearing, and has claimed throughout all these proceedings, that it is exempt under the “newspaper” provision of section 1 of ROTA. Ill. Rev. Stat. 1979, ch. 120, par. 440.

The hearing referee recommended that the NTL be made final as issued with interest computed to May 31, 1975. Moody requested a rehearing and deposited $14,200 with the Department. This is referred to in the record as a “good faith” deposit. Rehearings spanned the period from February 24, 1976, until August 17, 1977, at which time they were concluded. A “Revised Final Assessment” was issued as a result of the rehearings. It did not materially alter the original; it indicated $767.23 less in delinquent taxes and $153.45 less in penalties; interest was computed through February 28, 1979. The record does not disclose the reason for the long lapse of time between the conclusion of the rehearings on August 17, 1977, and the revision approved March 16, 1979.

Moody apparently then requested another rehearing on the revised final assessment of March 1979. The record indicates that such rehearing was concluded on October 18, 1979, with no alterations of the revised final assessment except to calculate interest through December 31, 1979. The Department participated in both the rehearings of 1977 and 1979. Meanwhile, the Department processed the $14,200 good faith payment made by Moody and described above, together with another payment of $28,225 made on July 1, 1979. The total liability after the 1979 rehearings was alleged to be $72,700.20 with interest accumulating from January 1, 1980. Moody was served with this assessment on February 12,1980.

Within the time limited by ROTA in March 1980, Moody filed a complaint for administrative review in the circuit court of Sangamon County under local number 80-L-108. On July 31, 1980, Moody sought and was granted a voluntary dismissal of this action under section 52 of the Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 52).

The parties have been at great odds over suit number 80-L-108. Earlier in this proceeding the Department sought to supplement the record in this appeal with the proceedings in 80-L-108. This court denied the motion. The Department again sought to supplement the record with only a portion of the proceedings in 80-L-108. That motion was taken with the case and it is now denied.

The controversy stems from a divergence of views as to the reason for the voluntary dismissal. The Department has claimed that Moody failed to file a bond as required by section 12 of the ROTA (111. Rev. Stat. 1979, ch. 120, par. 451) and being apprehensive that this would terminate the proceedings in favor of the Department, took the voluntary dismissal. Moody, contra, has insisted that it dismissed because it was unsure of its remedy. The statute creating the Board had become effective only on January 1, 1980, and on its face appeared to add yet another tier to the administrative procedure. Moody therefore withdrew its administrative review in the circuit court after filing a petition with the Board.

Eventually the Board declined jurisdiction and on May 15, 1981, Moody again filed a complaint for administrative review in the circuit court of Sangamon County. This was done pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a). As is more fully explained below, we hold that Moody had the right of voluntary dismissal and refiling within one year. Therefore, the reasons become immaterial, as does the question of the jurisdiction of the Board.

The Department moved to dismiss because the complaint was not filed within 35 days of the order of February 11, 1980, as required by section 4 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 267). The trial court denied the motion and entered judgment with a brief docket entry as follows:

“The Complaint for Administrative Review is allowed. The Court finds that the Department’s- finding of facts are against the manifest weight of the evidence and the publication of Plaintiff is exempt from taxation as being a newspaper. Cause dismissed. Cause stricken.”

The parties have argued a number of procedural issues. As has been indicated, Moody dismissed its first complaint pursuant to section 52(1) of the Civil Practice Act, which provides in part as follows:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, only on terms fixed by the court ***.” Ill. Rev. Stat. 1979, ch. 110, par. 52(1).

The Department argues that since it had filed a motion to dismiss this petition, a “hearing” had started and therefore Moody was not at liberty to dismiss voluntarily. The contention is without merit. (See LaBarge, Inc. v. Corn Belt Bank (1981), 101 Ill. App. 3d 741, 428 N.E.2d 711.) There had been no hearing on the motion, a fact admitted by the parties.

The second, or 1981, complaint for administrative review was filed pursuant to section 24 of the Limitations Act, which provides in part:

“In the actions specified in this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict for the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the 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 ***.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 83, par. 24a.

The Department argues that section 24 of the Limitations Act has no application to proceedings in administrative review, but cites no authority for that position. We disagree.

The Administrative Review Act has no provision relating to voluntary dismissals and therefore the Limitations Act does not contradict it, as might happen when a general statute, such as the Limitations Act, is sought to be applied to a specific enactment. (Compare People ex rel. Myers v. Pennsylvania R.R. Co. (1960), 19 Ill. 2d 122, 166 N.E.2d 86.) Furthermore, the Limitations Act is expressly designed to apply to the kind of filing deadline as is found in the Administrative Review Act.

There appears to be no prior authority relating to voluntary dismissal under the Administrative Review Act, but other operative clauses of section 24 of the Limitations Act have been applied. Bruer v. Livingston County Board (1978), 66 Ill. App. 3d 938, 383 N.E.2d 1016 (plaintiff allowed to refile after involuntary dismissal because of want of prosecution); O’Hare International Bank v. Zoning Board (1976), 37 Ill. App. 3d 1037, 1038, 347 N.E.2d 440 (plaintiff allowed to refile within one year after appellate court reversed favorable judgment).

Section 24 of the Limitations Act has a broad remedial purpose. (People ex rel. L’Minggio v. Parker (1978), 65 Ill. App. 3d 296, 298-99, 382 N.E.2d 613, 614-15.) No good reasons appear in our judgment to single out voluntary dismissal for special treatment.

The next procedural problem relates to the admitted fact that Moody did not file a bond in the first administrative review proceeding as required by section 12 of ROTA. (Ill. Rev. Stat. 1979, ch. 120, par. 451.) The Department argues that, assuming arguendo the second complaint for administrative review was properly entertained under section 24 of the Limitations Act, the taint of failure to file a bond in the first proceeding carries over to the second. We do not agree. The failure to file a bond is a nonjurisdictional, procedural defect. Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 427 N.E.2d 90.

We know of no authority which holds that a procedural defect survives a voluntary dismissal. Section 24 of the Limitations Act refers to a “new” action commenced within one year; if an action be new, it can scarcely be said to carry with it any of the shortcomings of its predecessors. The clear implication of the statutory wording is that the parties start afresh. The Department would appear to adopt such a position in that in its motion to dismiss the second complaint, no mention is made of the failure to file a bond in the first proceeding. The motion relates principally to the 35-day limitation and asserts that the order of the Board was not the final order, but rather the “revised final assessment” of February 12, 1980.

Having held that any action concerning the Board is irrelevant, we agree that the final order was that of February 12, 1980. We do not agree that the 35-day limitation was violated. The first suit for administrative review was timely filed; there is no contention otherwise. The subsequent voluntary dismissal and refiling under the Limitations Act does not vitiate that fact. To hold otherwise would render nugatory the provisions of section 52 of the Civil Practice Act and section 24 of the Limitations Act which we have already held to be applicable to the instant case. The Department argues that this will allow taxpayers to delay by an extra year that payment of their liabilities. If so, the remedy lies with the legislature. We add, parenthetically, that this record does not disclose any extraordinary speed on the part of the Department in disposing of the rehearings; the Department also ignores the good faith deposits made by Moody.

We turn at last to the merits of the controversy: viz., whether Moody’s publications are exempt.

ROTA imposes a tax on persons engaged in the retail sale of tangible personal property. (Ill. Rev. Stat. 1981, ch. 120, par. 441.) An exemption is provided which relieves from taxation “[t]he purchase, employment and transfer of such personal property as news print and ink for the primary purpose of conveying news.” (Ill. Rev. Stat. 1981, ch. 120, par. 440.) Under Rule 2 of ROTA promulgated by the Department, the statute has been interpreted as exempting “sales of newspapers and magazines.” The Department has established the following tests for evaluating whether a publication is a newspaper or magazine:

“There is one test which must be met and a variety of lesser tests that should be considered in determining whether a publication is a magazine and consequently not subject to Illinois sales tax. The test which must be met is that the publication must come out periodically and must be published on more than an annual basis. This periodicity test is met whether the magazine is a weekly or a monthly or even a quarterly or semi-annual publication. Other considerations in order of diminishing importance include the following:
(1) Does the publication contain articles and items which have value to the general public rather than to a specialized class of people?
(2) Is the publication one that has the basic format of a magazine, i.e., soft cover, individual pages, indexed articles, etc.?
(3) Can the publication be subscribed to?
(4) Does the publication contain general advertising?
(5) Is the publication commonly accepted as a magazine?
An affirmative response to any of these considerations should tend to indicate the publication in question is a magazine, assuming the initial test of periodic publication is met.
Thus, a publication which had ‘February, 1977, Volume 1, Number 1’ printed on its cover and which came out periodically, would be a nontaxable magazine even though it has no advertising, as long as it has as its primary purpose the conveying of news. Likewise, a crossword puzzle magazine is nontaxable as a magazine even though it is published on a monthly rather than a weekly basis.” Illinois Department of Revenue, Research Reference manual — ROT & Related R. 01579, at 686 (1979).

It should be noted at the outset that the question presented is one of law; there is little, if any, factual dispute between the parties. Their principal divergence is over whether the information contained in Moody’s publications is transitory in nature.

We are of the opinion that the rationale of Time, Inc. v. Hulman (1964), 31 Ill. 2d 344, 201 N.E.2d 374, largely controls the outcome of this case. In Time the contention was that the statute exempted newspapers but not magazines. The supreme court delved at length into the history of the exemption and pointed out that the legislative purpose was to prevent discrimination against newspapers in favor of radio and television which also transmit information but not in tangible form. As in Time, the Department here relies heavily on the preamble to the statute which distinguishes information which is permanent in form, as in books, from that which is fleeting and transitory, as in newspapers. The Department claims that Moody’s information is of a permanent character and thus is taxable. We not agree. It is true that some of the publications are in the form of manuals and some of the weekly and twice-weekly reports are supplementary to the manuals, but this alone is not controlling. Most newspapers maintain a file of their editions, either in bound volumes or on microfilm, for historical purposes, but this does not detract from the fleeting or transitory character of the information contained. Much of the information contained in Moody’s publications is identical with that appearing in other publications which are admittedly newspapers. Nearly all large metropolitan dailies and several national newspapers publish the results of the stock exchanges, the bond markets, the commodity markets, and other similar financial transactions.

The Department’s emphasis on what it deems transitory information ignores the several other criteria mentioned in its rule. The Department further argues that much of the information contained in Moody’s publications could not be transmitted by radio or television and therefore there is no discrimination. However, it is a matter of common knowledge that brokerage offices today are linked to computers and other retrieval systems which furnish instant information of the type found in Moody’s publications. Such arrangements were not in existence when the statute was passed in 1961, but the concern over discrimination between electronics and print media should be no less real today. We also note that the supreme court in Time did not compare magazines with radio and television, but with newspapers; if it had applied the Department’s analysis as urged in this case, the publications would undoubtedly have been denied exemption.

The Department has established rules and it is required to abide by them. It is precluded from being arbitrary and inconsistent in applying those rules on a case-by-case basis. Congressman Robert L. “Muley” Doughton, Chairman of the Ways and Means Committee of the United States House of Representatives during the 73d through 79th Congresses, is reputed to have said that the essence of tax policy is to obtain the greatest number of feathers with the fewest squawks from the goose. Such a policy is apparent here when by its own rule reproduced above the Department considers a crossword puzzle magazine “news,” but denies that Moody’s publications are the same.

The motion to take jurisdictional notice of certain documents (Sangamon County case 80-L-108) is denied. The order of the circuit court of Sangamon County is affirmed.

Affirmed.

GREEN and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN JUSTICE MILLS,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT H. SMITH, a/k/a Robert Henry Snyder, Defendant-Appellant.
    Fourth District
    No. 4—82—0305
    Opinion filed February 14, 1983.
    MILLS, J., concurring in part and dissenting in part.
    Charles McRae Leonhard, of Allen & Korkowski & Associates, of Rantoul, for appellant.
    James R. Benson, State’s Attorney, of Paxton (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On July 28, 1981, an information was filed in the circuit court of Ford County purporting to charge defendant, Robert H. Smith, with the offense of reckless homicide (Ill. Rev. Stat. 1981, ch. 38, par. 9— 3(a)). On March 30, 1982, at the conclusion of a trial, the jury returned verdicts finding defendant guilty of that offense and of the offense of failing to reduce speed to avoid an accident (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 601(a)). The latter verdict was returned upon a form submitted to the jury at defendant’s request upon his contention that, under the circumstances, the offense of failing to reduce speed was an included offense of reckless homicide. On that same day, judgments of conviction were entered on both verdicts. On May 3, 1982, defendant’s motions in arrest of judgment and for a new trial were denied. On May 3, 1982, the court sentenced defendant on the reckless homicide conviction to 30 months’ probation conditioned upon 24 consecutive weeks of periodic imprisonment to be served on weekends. No sentence was imposed for the other conviction.

Defendant appeals both convictions and the sentence. He maintains the reckless homicide conviction is invalid because, as alleged in his motion in arrest of judgment, the information failed to charge the offense of reckless homicide, because it did not allege that the acts he was charged with were performed recklessly. He further requests that, if the reckless homicide conviction is permitted to stand, the other conviction should be reversed on double jeopardy grounds.

Section 9 — 3(a) of the Criminal Code of 1961 defines reckless homicide in the following manner.

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide.” Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a).

Section 4 — 6 of the Criminal Code of 1961 describes recklessness in these words:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. An act performed recklessly is performed wantonly, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.” Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.

The information charged that on July 26, 1981, defendant “committed the offense of Reckless Homicide” in that:

“Above defendant did unintentionally kill an individual without lawful justification by committing an act which was likely to cause death or great bodily harm to an individual, said act consisting in the driving of a motor vehicle at an excessive rate of speed resulting in the crash which resulted in the death of Christopher Gulliford, Age 22, of Gibson City, said act occurring within the Corporate limits of the City of Gibson, Ford County, Illinois.”

Other than alleging that defendant committed the offense of reckless homicide, the information did not use the word “reckless.”

A charge must allege every essential element of the offense. (People v. Pettus (1980), 84 Ill. App. 3d 390, 405 N.E.2d 489.) The only act charged of defendant in the information was that he drove at an excessive rate of speed. Excessive speed is insufficient, of itself, to constitute recklessness. (People v. Potter (1955), 5 Ill. 2d 365, 125 N.E.2d 510; People v. Clark (1970), 130 Ill. App. 2d 558, 265 N.E.2d 191; aff’d in part, rev’d in part on other grounds (1972), 50 Ill. 2d 292, 278 N.E.2d 782.) However, a charge alleging that an accused drove at an excessive speed on a particular occasion and at a particular place was held to state the offense of reckless homicide under the predecessor to section 9 — 3(a) (Ill. Rev. Stat. 1951, ch. 38, par. 364a) when the charge also alleged that the accused drove recklessly (Potter). Thus, the crucial question is whether the element of recklessness can be inferred from the information as a whole.

In People v. Alequin (1973), 12 Ill. App. 3d 837, 298 N.E.2d 723, and People ex rel. McLain v. Housewright (1973), 9 Ill. App. 3d 803, 293 N.E.2d 911, the charges alleging the offense of burglary did not include the statutory language “without authority” (Ill. Rev. Stat. 1971, ch. 38, par. 19— 1(a)), but the court deemed the element to have been inferred by allegation of the intent to commit a theft. Similar results have been reached in theft cases where “without authority” was not alleged, but intent to permanently deprive the owner was alleged. (People v. Wade (1970), 131 Ill. App. 2d 415, 264 N.E.2d 898; People v. Hayes (1971), 133 Ill. App. 2d 885, 272 N.E.2d 423.) On the other hand, when other allegations of the complaint do not imply the missing element, the charge fails when tested by a motion in arrest of judgment. In People v. Pruden (1982), 110 Ill. App. 3d 250, 442 N.E.2d 284, and People v. Pettus (1980), 84 Ill. App. 3d 390, 405 N.E.2d 489, lack of authority was not implied from allegations of the other elements of the offense of home invasion. Here, the information alleged that defendant’s conduct was likely to cause death or great bodily harm, but section 9 — 3(a) states that the accused’s conduct must be such as to be likely to do so and be performed recklessly. Thus, the conduct that is likely to cause death or great bodily harm does not, of itself, imply that the conduct was reckless.

We are aware of no authority for judging the sufficiency of the charge by anything other than the description of the acts contained in the charge which the defendant is alleged to have performed. No case has been cited which indicates that the discovery given or the understanding of the parties can cure defects in a charge which are reached by a timely motion in the trial court.

The implication that defendant’s conduct in driving at an excessive rate of speed was reckless also cannot be derived from the use of the word “[rjeckless” in naming the offense with which defendant was charged. In People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437, a case concerning the sufficiency of a charge of the offense of unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, par. 24 — l(a)(10)), the court stated:

“We do not agree with the People’s contention that the citation of the statutory provision alleged to have been violated served to incorporate the statute, by reference, into the complaint. The clear and explicit language of section 111 — 3 of the Code of Criminal Procedure required that both the statutory provision cited and the nature and elements of the offense charged be set forth. One of the elements of the offense proscribed by section 24— l(a)(10) is that the weapon be loaded, and section 111 — 3 requires that it be alleged.” (Emphasis added.) (61 Ill. 2d 335, 338, 335 N.E.2d 437, 439-40.)

In Pettus, designation of the offense as home invasion was insufficient to imply that the entry made into the home was without authority.

In Pujoue, the supreme court set forth the now well-recognized rule that when the sufficiency of a criminal charge is raised for the first time on appeal, the charge is sufficient if it contains sufficient specificity to enable the defendant to prepare his defense and to plead a resulting conviction as a bar to a subsequent prosecution arising from the same conduct. Clearly, the charge here met that standard, but the insufficiency asserted on appeal was raised in the trial court by a post-trial motion in arrest of judgment. Pujoue was a giant step forward in rejecting a procedure whereby a defendant adequately advised of the charges he must meet might remain silent about inadvertent shortcomings in the charge and then, if convicted, obtain reversal. However, the Pujoue doctrine has not been extended to situations, such as that here, where the sufficiency of the charge was raised by a motion in arrest of judgment in the trial court. The Pujoue opinion stated that the court was not deciding whether its relaxed requirements would be so extended. Later, in People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171, the supreme court expressly refused to do so.

Thus, where a charge has an apparently inadvertent error of the nature here, a defendant may remain silent about the error until after verdict and by making a motion in arrest of judgment, have his conviction set aside. We are required to reverse the conviction for reckless homicide.

Defendant’s conviction for failing to reduce his speed to avoid an accident is covered by his notice of appeal. He does not dispute the validity of that conviction if his other conviction is reversed. As he requested the jury be permitted to find him guilty of that offense as an included offense, he is estopped to maintain it was not an included offense of the reckless homicide charged. Pettus.

The conviction and sentence for reckless homicide are reversed. The conviction for failure to reduce speed to avoid an accident is affirmed. The case is remanded for sentencing on the latter conviction.

Affirmed in part, reversed in part and remanded.

LEWIS, J., concurs.

JUSTICE MILLS,

concurring in part, dissenting in part:

Dissent I must on the pivotal issue of this appeal.

My reading of Pujoue is not as narrow as that of my colleagues. In addition to the language from Pujoue set forth in the majority opinion, the supreme court went on to say:

“We are not here presented the question and we do not decide whether this complaint could withstand a pretrial motion filed pursuant to section 114 — 1 or a motion in arrest of judgment filed pursuant to section 116 — 2 of the Code of Criminal Procedure. While we do not approve of any failure to comply strictly with the explicitly stated requirements of section 111 — 3 of the Code of Criminal Procedure, the sufficiency of a complaint attacked for the first time on appeal must be determined by a different standard, and we do not agree with the appellate court that failure to allege an element of the offense in the complaint, per se, rendered it void.” 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440.

I do not read Pujoue as imposing a straitjacket upon this court that we must automatically reverse in this situation when a motion in arrest of judgment is filed. The court specifically declined to decide whether the complaint in Pujoue would withstand either a pretrial motion or a motion in arrest of judgment. Furthermore, the Pujoue court specifically disagreed with the intermediate appellate tribunal that “failure to allege an element of the offense in the complaint, per se, rendered it void.” In other words, the supreme court has not ruled on precisely the issue before this court, and — as the majority correctly points out — specifically declined to do so in Pujoue. And Lutz followed suit.

More recently, in People v. Hall (1982), 96 Ill. 2d 315, 324, 450 N.E.2d 309, the supreme court again found it “unnecessary to consider whether the literal requirement of [the statute] or a lesser ‘actual prejudice’ standard should apply in assessing this challenge to the sufficiency of an information, raised for the first time by a motion in arrest of judgment.”

Ergo, our court of last resort has not shut the door on this question.

The charge in this appeal told the defendant exactly what he was charged with — “reckless homicide” — that he unintentionally killed an individual without lawful justification, by committing an act likely to cause death or great bodily harm, by driving a motor vehicle at an excessive speed, which resulted in a crash and a death. The four corners of that charge, read in its totality, fully apprised the defendant of the violation of our criminal laws with which he was charged. Indeed, the title of the charge itself — “reckless homicide” — furnishes the magic word, the very element, of which the majority complains.

This case was called a “reckless homicide,” was treated as a “reckless homicide,” discovery was conducted as though it were a “reckless homicide,” it was tried before a jury as a “reckless homicide,” it was argued both to the court and to the jury as a “reckless homicide,” and all of the motion practice was phrased in the context of “reckless homicide.” The defendant knew all he needed to know to conduct his defense.

To permit the defendant to literally lay in ambush in the weeds, wait until the trial is fully completed, then leap out to claim a pointless technicality for the purpose of avoiding conviction and just punishment is both a travesty and a miscarriage of justice. Even more important, it does serious violence to common sense and any reasonable definition of fairness — certainly fairness to the People.

On this issue, I respectfully dissent.

On the remaining issues, I concur.


author: JUSTICE HEIPLE

text:
    JEFFREY MONTAG, Plaintiff-Appellant, v. THE BOARD OF EDUCATION, SCHOOL DISTRICT NO. 40, ROCK ISLAND COUNTY, et al., Defendants-Appellees.
    Third District
    No. 82—146
    Opinion filed March 4, 1983.

      Robert J. Noe, of Bozeman, Neighbour, Patton & Noe, of Moline, and James M. Hood, of Peart & Hood, of Davenport, Iowa, for appellant.
    Martin H. Katz and Robert T. Park, both of Katz, McAndrews, Durkee, Balch & Lefstein, of Rock Island, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

On February 17, 1976, Jeffrey Montag, a 16-year-old junior student at Moline High School, sustained spinal injuries during a gymnastics team practice session which resulted in paralysis. The team was coached by Brent Simmons, an employee of the Rock Island County Board of Education School District No. 40 (the Board). Mon-tag brought suit in three counts against Simmons and the Board.

The first count, against both defendants, alleged they negligently failed to exercise proper supervision over Montag and negligently failed to ensure the proper use of the safety equipment in the gym. The second count, also against both defendants, alleged the defendants’ conduct was wilful and wanton. The third count, only against the Board, alleged the Board negligently failed to supply the gym with adequate safety equipment.

The trial court granted defendants’ motion to dismiss count one. The court reasoned that the language of section 24 — 24 of the School Code and the trend of supreme court decisions, following Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, interpreting the section, preclude any action for personal injury against a school district or employee thereof on a negligence theory. Section 24 — 24 provides in relevant part as follows:

“Teachers and other certified educational employees shall maintain discipline in the schools, including school grounds which are owned or leased by the board and used for school purposes and activities. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.” Ill. Rev. Stat. 1977, ch. 122, par. 24 — 24.

After a trial on counts two and three, the jury returned a verdict in favor of both defendants on both counts. Montag, then, submitted a post-trial motion for a judgment notwithstanding the verdict, or in the alternative a new trial, which was denied by the trial court.

On appeal, Montag presents three issues from his post-trial motion: (1) the trial court erred in disallowing the action for negligent supervision; (2) the jury’s verdict, insofar as it did not find that the Board negligently failed to supply the gym with adequate safety equipment, was against the manifest weight of the evidence; (3) the trial court committed reversible error by permitting the defendants to introduce a movie depicting the gymnastics routine in question under conditions dissimilar to those in issue.

We affirm the rulings of the trial court and the verdict of the jury.

Before discussing the issues before this court, a brief review of the incident is in order. On the day of the injury, Montag was practicing for competition in the still rings event. The wooden rings were connected to a steel frame by nylon cords and were positioned seven to eight feet above the ground. Two one-inch thick rubber mats and one four-inch thick landing mat were underneath the rings while Mon-tag was performing. Montag had started with the team approximately three months prior to the date of the injury. Nevertheless, he could not be considered an inexperienced beginner. Montag had prior experience with the rings as a gym class student of Simmons’ and later, as a team member, exhibited skills which permitted Montag to compete in all but one interscholastic competition.

In competition, a gymnast performs a routine which is composed of a series of individual gymnastics moves. A routine commences when a performer grabs hold of the rings and is completed when the participant performs a dismount. Montag used a dismount called the back uprise dismount in his routine at the time of the injury. This dismount, in part, consists of an airborne backward somersault to a standing position on the ground. The dismount takes place within two seconds. It is considered to be a move of, at most, intermediate difficulty. Montag testified that he had mastered this dismount two weeks before the injury. While Montag was performing, Coach Simmons was nearby acting as a spotter. A spotter is someone who stands close by in order to assist the performer with physical support or with instructions should the performer encounter difficulty during the routine. Tragically, Montag’s dismount went awry. Simmons was unable to reach Montag. And, Montag landed on his back, immediately suffering paralysis.

In support of his first issue, Montag proffers several subarguments. Montag suggests that Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, in abolishing the tort immunity of school districts, established a right to an action in negligence. Further, the trial court’s denial of this right was predicated upon an erroneous interpretation of section 24 — 24 by the supreme court. In Kobylanski v. Chicago Board, of Education (1976), 63 Ill. 2d 165, the supreme court recognized a loco parentis relationship and concomitant defense for teachers and other certified educational employees, under section 24 — 24, for activities beyond simply disciplining students. Montag misunderstands Molitor and interprets the School Code section too narrowly. Molitor only laid to rest the remnants of an antiquated common-law construct of sovereign immunity. Molitor did not suggest that it is unconstitutional for the legislature to enact a statutory governmental immunity. The issue at hand is not the validity of statutory governmental immunity, but its scope.

In reading the statute, Montag relies upon the reasoning of the dissenting opinion in Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 175, and argues that section 24 — 24 does not apply to nondisciplinary circumstances, such as gymnastics team practice. According to this reasoning, Simmons’ coaching would fall outside the scope of the section’s immunity and Montag could thus proceed on a negligence theory. This is a clever argument. But, it is also an argument which has been rejected by the majority of the supreme court on several occasions. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165; O’brien v. Township High School District 214 (1980), 83 Ill. 2d 462; Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165.) We are compelled to follow the interpretation of the high court and rule that the language of the statute extends the loco parentis relationship to circumstances other than just disciplinary conduct.

In Kobylanski, the plaintiffs were injured during physical education class while using gymnastic equipment. The defendants raised the loco parentis relationship immunity of the School Code as a defense. The court reasoned that the statute indicates “this relationship applies to all activities in the school program. Since physical education is a required part of the academic curriculum (Ill. Rev. Stat. 1967, ch. 122, pars. 27 — 5 to 27 — 7), the classes in which [the plaintiffs] were injured are clearly ‘activities connected with the school program.’ ” (63 Ill. 2d 165, 172.) An argument could be made that gymnastics team practice is an extracurricular event which is not required by the school program and thus not connected with the program. Thomas indicates that such a reading would be unduly narrow. (77 Ill. 2d 165, 172.) First, there is not a reference in the statute to activities required by the program, only activities connected with the program. Second, extracurricular activities, such as gymnastics, are within the legislative mandate that “School Boards *** shall provide for *** the physical education *** of pupils” (Ill. Rev. Stat. 1977, ch. 122, par. 27 — 5), and therefore are connected with the school program. Consequently, it is the opinion of this court that the coaching of a gymnastics team practice session is within the loco parentis immunity provided by section 24 — 24.

Next, Mon tag seems to raise three constitutional arguments. First, it is claimed that the statute is irrational because it allows an immunity from negligence for teachers but not for other noncertified school personnel who may engage in the same activity. There must be a rational basis for any statute in order to render it constitutional. The rationality of the section’s scope was explained in Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 175, and need not be. repeated here. Furthermore, other noncertified school employees are granted an immunity by the Local Governmental and Governmental Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, par. 3 — 108). See Edmonson v. Chicago Board of Education (1978), 62 Ill. App. 3d 211.

Second, plaintiff questions the application of the statute and suggests there is not a rational basis for distinguishing between the type of equipment supplied and the type of supervision provided. In the former case, courts have allowed an action in negligence against school districts. In the latter, teachers have been held immune to suits in negligence. The rationale is clear. The section only applies to teachers acting within the student-teacher relationship. The actions of a school board in purchasing and supplying the equipment does not come within this special relationship. The instructor need only make a reasonable inspection of the equipment. In Thomas, the court explained “[a] coach’s duty to inspect the equipment is subsumed within his or her duty to supervise but does not fall under the school district’s authority to furnish. In practice we believe it would be difficult to beneficially and intelligently distinguish inspecting equipment from supervising students and their use of it.” (77 Ill. 2d 165, 171.) Where a student is injured, the possible liability of the teacher and the possible application of the statutory immunity is based upon causation. The student-teacher relationship must give rise to the conduct which was the proximate cause of the plaintiff’s injuries. (Griffis v. Board of Education District 122, Oak Lawn (1979), 72 Ill. App. 3d 784, 789) in order for the immunity to apply. Where something or someone outside this relationship is the proximate cause of the injury, then an action in negligence may lie.

Third, Montag, again following the dissent in Kobylanski, states that classifications designed to confer immunity on a local government entity must be based upon the type of activity or function involved, not on the nature of the governmental entity. Montag does not explain how this rule applies to section 24 — 24. By its term, the statute does not grant immunity to school districts. Moreover, the immunity conferred upon teachers is directly related to their activity and function — that is, the immunity fosters the development of a secure student-teacher relationship uninhibited by the possibility of a suit in negligence against the instructor. Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 171.

Lastly, Montag offers two arguments to support the proposition that the wilful and wanton standard is inapplicable. First, it is argued the statute does not require wilful and wanton conduct and the supreme court has never directly held that negligence cannot be a standard in an action between parties in loco parentis. We disagree. The high court in Kobylanski reasoned “it logically follows that teachers, standing in loco parentis, should not be subjected to any greater liability than parents ***.” (63 Ill. 2d 165, 172-73.) The court then concluded section 24 — 24 “conferfs] upon teachers and other certificated educational employees immunity from suits for negligence ***. In order to impose liability against such educators, a plaintiff must prove wilful and wanton misconduct.” 63 Ill. 2d 165, 173.

Secondly, Montag proffers the interesting supposition that under the rule announced in Alvis v. Ribar (1981), 85 Ill. 2d 1, the doctrine of wilful and wanton misconduct has been abolished in favor of the weighing of the relative fault of the parties. Again, we must disagree. The adoption of comparative negligence principles in other States has not led to an elimination of the wilful and wanton standard of conduct. The issue raised concerning the wanton, or reckless, standard, by the introduction of comparative negligence, has questioned the status of the contributory negligence defense, but not the standard of liability itself. Some courts have continued the pre-comparative-negligence principle that a reckless defendant cannot raise the issue of the plaintiff’s contributory negligence. Others have allowed the defendant to establish contributory negligence on the part of the plaintiff in order to weigh the relative fault of the parties. (Cf. Amoco Pipeline Co. v. Montgomery (W.D. Okla. 1980), 487 F. Supp. 1268; Danculovich v. Brown (Wyo. 1979), 593 P.2d 187; Nga Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 825-26, 532 P.2d 1226, 1241, 119 Cal. Rptr. 858, 873; Bielski v. Schulze (1962), 16 Wis. 2d 1, 16, 114 N.W.2d 105, 113; B. Schwartz, Comparative Negligence sec. 5.3, at 104 et seq. (1974); Kionka, Comparative Negligence Comes to Illinois, 70 Ill. B.J. 16 (1981).) Had our supreme court wished to eliminate posthaste the wilful and wanton standard it would have so indicated in Alvis. It did not do so and we shall not do so here. Therefore, it is the opinion of this court that the trial court did not err in disallowing Montag’s action based upon negligent supervision.

We next turn to Montag’s second issue, which is whether the jury’s verdict, that the school board did not negligently fail to provide adequate safety equipment, was against the manifest weight of the evidence. Plaintiff’s attorneys support this contention with several references to the record. Their expert, in unrefuted testimony, stated that the gym as a whole was unsafe because there were not enough mats to adequately supply every piece of equipment in the gym. Also, it is undisputed that a safety belt was not available for use with the rings prior to and at the time of the injury. Plaintiff’s attorneys concede that a safety belt would not have been normally used at the time of the routine and dismount in question; but, they add, prior availability of a safety belt would have allowed Montag to better learn the dismount, possibly saving him from injury. They note also that the only 12-inch mat in the gym was not under the rings because it interfered with the performance of taller teammates. Plaintiff’s attorneys suggest that a higher mat may have changed the angle at which Jeffrey struck the ground, also perhaps saving him from injury. And, lastly, they direct the court’s attention to the testimony of one of the defendants’ experts, a consulting engineer in biomechanics. He agreed, on cross-examination, that any combination of four-inch and 12-inch mats could not have prevented a neck injury in the situation in question. At the time of the injury, there were two one-inch mats and one four-inch mat under the rings. Coach Simmons testified that in competition only six inches of matting is normally allowed under the rings, and that he was trying to simulate competition conditions. The team was preparing for district competition which was three days away.

The issue at hand is one of causation. Plaintiff’s attorneys extend the causational chain too far into the abstract. We can only speculate what prior use of a safety belt could have done for Jeffrey. Further, it should not be asked whether the gym as a whole was unsafe, but whether there was adequate matting in use under the rings at the time of Jeffrey Montag’s injury. Granted a slight turning may have protected Jeffrey and it would seem more matting would have been better; however, plaintiff’s witnesses did not show that more matting would have prevented the injury. Defendants’ expert in biomechanics, in unrefuted testimony, explained, on direct examination, that only three feet of nonresilient padding could have prevented Jeffrey’s injury, and as of yet no one has invented such a matting.

The only question is whether the jury’s verdict was against the manifest weight of the evidence. There is not undeniable evidence that the matting used was in any way defective, or improperly used, or that a 12-inch mat, instead of a four-inch mat, could have prevented the injury. There is evidence that Coach Simmons was using the type and thickness of matting normally used for the upcoming competition and that the only type of matting which would have prevented the injury did not, and does not exist.

“Mindful of all of the evidence in this case, we will not substitute our judgment for that of the jury which heard the testimony and observed the witnesses; ‘the verdict is not palpably erroneous or wholly unwarranted from the manifest weight of the evidence.’ ” Lynch v. Board of Education (1980), 82 Ill. 2d 415, 428, citing Sloma v. Pfluger (1970), 125 Ill. App. 2d 347, 359.

The jury’s verdict will stand.

The last issue before the court on this appeal concerns the admissibility of a film. Defendants showed to the jury a film of college gymnasts performing the moves and routines which Montag performed in physical education class, early in his team season, and at the time of the injury. Montag argues the film was unnecessarily duplicative of evidence already part of the record and preconditioned the minds of the jurors. The admissibility of demonstrative evidence is a matter within the trial court’s discretion, and a court’s ruling in this area will not be reversed in the absence of a clear showing of abuse. (Becker v. Aquaslide ’n’ Dive Corp. (1975), 35 Ill. App. 3d 479, 341 N.E.2d 369.) The Illinois Supreme Court has written:

“[T]he fact that photographic evidence portrays something under conditions not precisely the same as those at the time of the occurrence does not necessarily render it inadmissible, so long as the jury is not misled. [Citations.] Here the jury was admonished not to consider the movie as a re-creation of the conditions of the incident *** but that the film was being shown only to demonstrate to the jury just what this unfamiliar machine, about which much testimony was given, looked like and how it performed.” (Emphasis added.) Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 391.

Likewise, in this case, the film was used to show the jury what the routines looked like and how they were performed. Up until the film’s showing, the jurors were only given verbal descriptions and a few drawings which attempted to illustrate the various movements of the body in the routine. This evidence certainly could not offer a totally accurate portrayal of the movements of the body in the whole routine. Thus, while the movie purported to show the movements in the routine, as did the pictures, it also added a visual dimension that still pictures or oral testimony could never duplicate. Furthermore, just prior to the showing, the lower court admonished the jury that “the film will be shown for the limited purpose of demonstrating the routine in question.” We believe a jury is sophisticated enough to be able to understand and follow this instruction and not be misled into believing the film was an actual re-creation of the occurrence. The trial court did not abuse its discretion in this matter.

Based upon the foregoing reasons, the verdict of the jury and the rulings of the trial court are affirmed.

Affirmed.

BARRY, P.J., and STOUDER, J., concur.


author: JUSTICE MILLS

text:
    JAMES ELVIN OGLE et al., Plaintiffs-Appellants, v. LORRAINE FUITEN, Ex’x of the Estate of William E. Fuiten, et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0486
    Opinion filed February 24, 1983.

      Duane D. Young, of Costello, Long, Young & Metnick, of Springfield, for appellants.
    Gary M. Peplow and David L. Re qua, both of Heyl, Royster, Voelker & Allen, of Springfield, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

This case alleges legal malpractice.

The complaint was dismissed below.

It should not have been.

We reverse and remand.

Plaintiffs are third-party nonclients who allege they were the intended beneficiaries of wills drafted by attorney William Fuiten. They allege that the wills failed to include a contingency which did occur, and under which the testator desired plaintiffs to be the beneficiaries. The failure of the wills to provide any beneficiaries under the contingency resulted in an intestate devolution.

The motion to dismiss was filed pursuant to sections 45 and 48 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48.) It alleged, inter alia, that (1) there is no recognized cause of action in Illinois by third-party nonclients against an attorney for allegedly negligent performance of his duty to his clients, and (2) the validity of the wills had previously been litigated and the underlying issues were not now subject to collateral attack. The trial court dismissed the action, citing Favata v. Rosenberg (1982), 106 Ill. App. 3d 572, 436 N.E.2d 49, which held that in the absence of a duty to a third-person non-client, no cause of action based on negligent performance of personal services can exist. We reject both grounds urged in the motion to dismiss.

I

One month after the filing of Favata, our supreme court filed its opinion in Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96. In Pelham, the court discussed the same cases relied upon in Favata and noted that they were premised upon the requirement of privity. After discussing the trend in tort law to abolish the privity requirement, the court stated:

“[T]o establish a duty owed by the defendant attorney to the nonclient the nonclient must allege and prove that the intent of the client to benefit the nonclient third party was the primary or direct purpose of the transaction or relationship.” (92 Ill. 2d 13, 20-21, 440 N.E.2d 96, 99.)

The court then discussed how the scope of the attorney’s liability could be limited by analogizing the scope of the duty to the concept of a third-party beneficiary.

In Pelham, the plaintiffs were the children of a divorced couple and the defendant was the attorney retained by the mother in the divorce action. The divorce decree ordered the husband to maintain his children as beneficiaries of life insurance policies. The husband did not comply, and the children claimed that defendant breached his duty by failing to notify various parties of the circumstances. The court found that no cause of action for breach of contract was stated under a third-party beneficiary theory of recovery since it failed to allege — legally or factually — that a contract was entered into for the direct benefit of the plaintiffs. Furthermore, no cause of action in negligence was stated since the attorney had no duty to a divorced client’s children under the circumstances. It then reiterated that to establish the duty, the plaintiffs must plead and prove that the relationship between the attorney and his client was entered into for the primary and direct benefit of the plaintiff, plus other traditional elements of negligence.

Defendants characterize the Pelham language as dictum and argue that without a holding creating this cause of action, Favata must control. We believe the relevant language may be construed as dictum since it was not supported by the force of an adjudicated valid cause of action. Nonetheless, we cannot ignore the clearly expressed opinion that a properly pleaded complaint would state a cause of action.

II

Defendants have also argued other bases for dismissal stated in their motion to dismiss. They assert that a will cannot be collaterally attacked following a judicial determination of its validity. It is argued that plaintiffs’ cause of action is the equivalent of an attack upon the validity of the will itself; that validity was previously determined by the admission of the wills to probate with a will contest and the final adjudication of the will construction suits herein in which this court declined to create a gift by implication (In re Estate of Smith (1979), 68 Ill. App. 3d 30, 385 N.E.2d 363); and that the action must therefore be dismissed.

While the cases relied upon by defendants support their basic legal proposition (see Allwood v. Cahill (1943), 382 Ill. 511, 47 N.E.2d 698; Dickman v. Frieling (1946), 395 Ill. 383, 70 N.E.2d 61), they also clearly involve, or refer to, an attack on the validity of the wills which is not present here. The challenge here is whether defendants are responsible for negligently drafting the wills. The provisions of the wills themselves, as effectuated, and the probate administration would remain unaffected.

It is further argued that the underlying issues of the testators’ intents were previously determined by admission of the wills to probate without a will contest and the previous will construction suits. If there is no will contest providing evidence to the contrary, the law will presume that the testator executed his will with knowledge of its contents. (Barber v. Barber (1936), 362 Ill. 634, 1 N.E.2d 44.) In the will construction suits, this court found that the text of the wills did not reveal that the testators intended the estate should go to these plaintiffs under the contingency which occurred. Rather, the wills simply failed to provide for the contingency. (In re Estate of Smith.) Although it is not specifically asserted, it appears defendants’ argument is that plaintiffs are collaterally estopped from again litigating the issue of the testators’ intent.

Collateral estoppel allows a party to prevent relitigation of a fact or question which was actually fully litigated in a prior action, which was necessary to the determination of that action, and upon which a final judgment was rendered. (Gay v. Open Kitchens, Inc. (1981), 100 Ill. App. 3d 968, 427 N.E.2d 338.) The fact that defendants were not parties in the previous will construction suits or probate actions does not bar application of estoppel since mutuality of parties is no longer a prerequisite in Illinois. Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 398 N.E.2d 9.

Collateral estoppel does not present a bar in this case. First, there was no opportunity in the will construction suit for full and fair litigation of the testators’ intents. Unless a will is ambiguous, a court in a will construction suit will not consider extrinsic evidence in ascertaining intent. (Griffin v. Gould (1982), 104 Ill. App. 3d 397, 432 N.E.2d 1031.) The will construction suits did not involve extrinsic evidence which would be relevant in this case.

We said in our opinion in In re Estate of Smith that even considering extrinsic facts well pleaded, no gift by implication to plaintiffs here was established. But that does not mean that extrinsic evidence was considered in that will construction case. On the contrary, our statement highlights the second reason why collateral estoppel does not apply in this case. In order to establish a gift by implication (which was what was attempted in the will construction suits), the will itself must manifest such an intent beyond a reasonable doubt. (Bradshaw v. Lewis (1973), 54 Ill. 2d 304, 296 N.E.2d 747; In re Estate of Blansett (1975), 28 Ill. App. 3d 552, 328 N.E.2d 593.) The standard of proof here is only a preponderance of the evidence. This alone is enough to preclude application of the doctrine of collateral estoppel. See Shallow v. Police Board (1981), 95 Ill. App. 3d 901, 420 N.E.2d 618.

With regard to the presumption that a testator executes his will with knowledge of its contents, we do not believe that this is the same as concluding a testator knows whether his will will operate to effectuate his intentions. Furthermore, there being no will contest concerning these wills, this factual question, although presumed, was not litigated. Collateral estoppel differs from res judicata in that estoppel applies only to questions actually litigated, not all questions which might have been litigated in the previous action. (Gay.) In sum, we conclude that the exact question presented here was not fully litigated in the previous proceeding and collateral estoppel cannot be applied.

Ill

Having concluded that a properly pleaded complaint can stand, we now must determine if the necessary allegations are present. The complaint here attempts to state a cause of action under both a third-party beneficiary/breach of contract theory and a tort negligence theory. The elements of a third-party beneficiary theory are a contract for the benefit of a third party, breach of that contract, and consequent damage. The elements of the tort of negligence are a duty, breach of that duty, proximate cause, and compensable injury. (Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 433 N.E.2d 1350.) Under Pelham, a proper allegation of duty necessary to sustain a nonclient’s action against an attorney for malpractice requires an allegation that the intent of the client to benefit the nonclient-third party was the primary or direct purpose of the transaction or relationship.

Count I essentially alleges: (1) Testators employed defendant Fuiten and the law firm of Heckenkamp and Fuiten to prepare wills in accordance with the testators’ intentions; (2) the wills were prepared; (3) neither testator intended their property to devolve by the law of intestate succession; (4) it was their intention that their property be left to plaintiffs if neither testator survived the other by 30 days; (5) this contingency occurred; (6) Fuiten owed plaintiffs the duty of ascertaining the testators’ intentions in all foreseeable events and to draft wills which would effectuate these intentions; (7) Fuiten breached this duty and negligently drafted the subject wills; and (8) plaintiffs suffered damage as a direct result of this breach.

Count II essentially alleges the first five allegations noted above and additionally alleges: (6) the purpose of the employment of Fuiten and the firm was to draft wills not only for the benefit of testators, but for the benefit of these plaintiffs; (7) Fuiten and the firm were paid the agreed consideration under the employment agreement; (8) Fuiten and the firm knew plaintiffs were intended beneficiaries of the wills and the employment agreement; (9) Fuiten and the firm had agreed to draft wills leaving the property to plaintiffs in the event neither testator survived the other by 30 days; (10) Fuiten breached this agreement in that the wills failed to fulfill the testators’ intentions; and (11) plaintiffs suffered foreseeable, direct damage as a consequence of this breach.

We believe the allegations of count I sufficiently state the traditional elements of negligence in tort and count II sufficiently states the traditional elements of a third-party beneficiary/breach of contract theory.

Count I additionally establishes defendants’ duty to plaintiffs by the allegation that the testators intended their property be left to plaintiffs if neither testator survived the other by 30 days. In Lucas v. Hamm (1961), 56 Cal. 2d 583, 590, 364 P.2d 685, 689, 15 Cal. Rptr. 821, 825, the California Supreme Court noted:

“[T]he main purpose of the testator in making his agreement with the attorney is to benefit the persons named in his will and this intent can be effectuated, in the event of a breach by the attorney, only by giving the beneficiaries a right of action *** M

Count II contains the same allegation, in addition to alleging that the purpose of the employment agreement was not only for the benefit of the testators, but for the benefit of plaintiffs. Therefore, we conclude, a valid cause of action was stated.

Defendants have requested that other pleading defects alleged in the motion to dismiss, but not ruled upon, be preserved upon remand. To the extent this opinion does not resolve any issues raised by the motion to dismiss, those issues are neither determined nor waived.

For the foregoing reasons, the judgment of the trial court dismissing the cause of action is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

WEBBER, P.J., and GREEN, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS CASHEN, Defendant-Appellant.
    Fourth District
    No. 4—82—0548
    Opinion filed February 23, 1983.
    Costello, Long, Young & Metnick, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Rebecca White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On September 17, 1981, defendant, Thomas Cashen, was charged in the circuit court of Sangamon County with the offense of reckless homicide (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a)) and tried by a jury. At the State’s request, the trial court instructed the jury that the offenses of reckless conduct (III. Rev. Stat. 1981, ch. 38, par. 12 — 5) and disobeying a traffic control device (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 305) were “included offenses” (Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9) of the reckless homicide charge. The court submitted verdict forms to the jury as to all three offenses. On April 30, 1982, the jury returned verdicts acquitting defendant of reckless homicide and reckless conduct but finding him guilty of disobeying a traffic control device. Judgment was entered on the verdicts on that day. Subsequently, defendant was fined $250 and costs.

Defendant’s motion in arrest of judgment was denied. In that motion, he asserted that the offense of disobeying a traffic control device was not an included offense of the charged offense of reckless homicide. On appeal he reasserts the contention of that motion.

Section 2 — 9 of the Criminal Code of 1961 states:

“ ‘Included offense’ means an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or
(b) Consists of an attempt to commit the offense charged or an offense included therein.” (Ill. Rev. Stat. 1981, ch. 38, par. 2-9.)

In People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189, the supreme court held it was not proper to submit to the jury the question of an accused’s commission of an uncharged but included offense of that charged, when the only element of the charged offenses which was in dispute was also an element of the included offense. In discussing the included offense doctrine, the court stated that the United States Supreme Court, in deciding whether one offense is an included offense of another, has never focused on a comparison of the offenses in the abstract, but rather on a comparison of the included offense to the greater offense as charged.

The question of whether the focus should be on the offenses as defined by statute or on the greater offense as charged has seldom been discussed. (See People v. Zegart (1980), 83 Ill. 2d 440, 445, 415 N.E.2d 341, 344 (Underwood, J., dissenting); In re Vitale (1978), 71 Ill. 2d 229, 240, 375 N.E.2d 87, 92 (Underwood, J., dissenting), vacated and remanded (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260.) Although no case directly deciding the question has been called to our attention, the tenor of the cases decided before Cramer seemed to place the focus on an abstract comparison of the statutory definition of the offenses. (People v. Foust (1980),82 Ill. App. 3d 516, 401 N.E.2d 1329; People v. Delk (1976), 36 Ill. App. 3d 1027, 345 N.E.2d 197.) However, after Cramer, in People v. Wys (1982), 103 Ill. App. 3d 273, 431 N.E.2d 38, in affirming a conviction where a defense request for an instruction on an included offense had been refused, the court examined the offense charged, and the claimed included offense on the basis of the charge. We deem the rule stated in Cramer and followed in Wys to be appropriate to this case.

The indictment here charged defendant with committing the offense of reckless homicide in that, “acting in a reckless manner,” he performed “acts likely to cause death or great bodily harm,” because after consuming alcoholic beverages, he “operated a motor vehicle” in a certain place “and did disobey a traffic control device” at a certain intersection “so as to strike a motor vehicle driven by Debra Trask within said intersection thereby causing the death of Debra Trask.” Thus, the only wrongful act charged of defendant was that he disobeyed “a traffic control device.” Under the charge, the reckless homicide offense could not be proved without proof that defendant disobeyed the traffic control device. Accordingly, that offense was an included offense of the reckless homicide offense as the latter was charged.

Even if the uncharged offense is an included offense of the charged offense, the jury cannot be instructed properly on the included offense unless the evidence shows that there is an issue of fact involving only the greater offense. {Cramer.) If all questions of fact were common to both offenses, a reasonable jury could not acquit of the greater offense but convict of the included offense. Here, under the evidence, the jury could have concluded that defendant committed the offense of running the red light, but that this conduct was not gross enough to be reckless.

The trial court properly submitted to the jury the issue of whether defendant was guilty of the included offense of disobeying a traffic control device. Defendant’s conviction of that offense is affirmed.

Affirmed.

WEBBER, P.J., and TRAPP, J., concur.


text:
    RONALD L. MORRISON, Plaintiff-Appellant, v. MARION SANDELL et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0600
    Opinion filed February 23, 1983.
    Gary G. Johnson, of Normal, for appellant.
    John L. Swartz, of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P.C., of Springfield, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, Ronald L. Morrison, filed a complaint against defendants, Marion Sandell and John Capasso, in the circuit court of McLean County which alleged the intentional infliction of mental distress. On August 24, 1982, the court granted defendants’ motion to dismiss plaintiff’s amended complaint for failure to state a cause of action. On appeal, plaintiff maintains the conduct alleged in the complaint constituted behavior so outrageous as to be a basis for a cause of action.

Plaintiff alleged in count I of his amended complaint, that defendant, Marion Sandell, was his co-worker at Illinois State University from October 1980 until July 1981, when plaintiff resigned. Plaintiff stated that during that time, Sandell “individually and in concert with unknown others, engaged in a continuous campaign of harassment” with “intent to cause him severe anxiety and mental anguish and distress and to cause his resignation or dismissal from his job.” Plaintiff alleged the conduct involved was performed either in person or at the instigation of Sandell. The acts alleged include the following:

“a. Undermining his ability to learn his job and perform it properly by removing and mixing working papers on his desk, placing file cards out of order after he had completed work on them and by many similar such acts on an almost daily basis until his employment was terminated;
b. Deliberately giving him insufficient instruction and training and assigning him work he was unprepared to do and work which was unusually difficult, thus causing confusion and anxiety and poor work performance;
c. Removing personal items from his coat pockets and placing same on his desk, thus causing fear and anxiety over the loss of privacy and security of his personal belongings;
d. Embarrassing and belittling him by inducing other workers to make hostile stares and comments whenever he was within earshot or eye contact with them and subjecting him to the ‘silent treatment’;
e. On one occasion placing toilet tissue and human waste matter in a file drawer which he was about to use.”

Count II alleged that defendant Sandell’s actions were wilful and malicious,. and plaintiff asked for punitive damages. Count III alleged that defendant Capasso was plaintiff’s and Sandell’s supervisor, had been advised of the acts complained of, had a duty to see that those acts were stopped, and did nothing to prevent further harassment.

The supreme court has recognized that intentional infliction of severe emotional distress can be a separate tort for which damages could be recovered. (Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157.) There, a widow brought an action for damages after the defendant had communicated to her his intention to kill her husband and, later, carried out his threat. The court found the complaint stated a cause of action and cited Slocum v. Food Fair Stores of Florida, Inc. (Fla. 1958), 100 So. 2d 396, as a fair statement of the standard of

conduct to be applied in such an action.

“[I]t is uniformly agreed that the determination of whether words or conduct are actionable in character is to be made on an objective rather than subjective standard, from common acceptation. The unwarranted intrusion must be calculated to cause ‘severe emotional distress’ to a person of ordinary sensibilities, in the absence of special knowledge or notice. There is no inclination to include all instances of mere vulgarities, obviously intended as meaningless abusive expressions.” (100 So. 2d 396, 398.)

However, the court noted:

“It has not been suggested that every emotional upset should constitute the basis of an action. Indiscriminate allowance of actions for mental anguish would encourage neurotic overreactions to trivial hurts, and the law should aim to toughen the psyche of the citizen rather than pamper it. But a line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional actions wholly lacking in social utility.” Knierim v. Izzo (1961), 22 Ill. 2d 73, 85, 174 N.E.2d 157,164.

The supreme court reviewed the elements of this tort in Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765. There, the court found defendant’s countercomplaint failed to state a cause of action against the tactics of the finance company seeking to collect its debt. The court tested the two counts of the counterclaim by the requirements stated in section 46 of the second Restatement of Torts, stating:

“First, the conduct must be extreme and outrageous ***. '*** Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ***.’ Restatement (Second of Torts sec. 46, comment d (1965).
Second, *** [t]he emotional distress must be severe. *** ‘The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.’ Comment j. See also Prosser, Law of Torts sec. 12, at 54 (4th ed. 1971).
Third, *** [the] conduct [must be that] from which the actor knows severe emotional distress is certain or substantially certain to result. (Comment i.) Liability extends to situations in which there is a high degree of probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it. Prosser, Law of Torts 60 (4th ed. 1971).
Fourth, as is stated in comment e, the extreme and outrageous character of the conduct may arise from an abuse of a position or a relation with another which gives the actor actual or apparent authority over the other or power to affect his interests.” 66 Ill. 2d 85, 89-90, 360 N.E.2d 765, 767.

The conduct alleged of Sandell is not of such an extreme and outrageous nature as to constitute a basis for recovery under the theory alleged. Even if Sandell had acted with a tortious intent or an intent to inflict emotional distress, such conduct would not be enough to be characterized as extreme and outrageous when imposed upon a person of “ordinary sensibilities.” Knierim v. Izzo (1961), 22 Ill. 2d 73, 86, 174 N.E.2d 157, 164.

The most serious allegation appears to be that Sandell, or a person unknown to plaintiff but acting at the instigation of Sandell, placed “toilet tissue and human waste matter in a file drawer he was about to use.” This conduct may have been malicious and could have caused plaintiff emotional distress; however, this appears to be a single isolated act. In comment j to section 46 of the second Restatement, it is stated that the intensity and duration of the distress are factors to be considered in determining the severity of the emotional distress. (Restatement (Second) of Torts sec. 46, comment j, at 77 (1965).) This single act does not constitute extreme and outrageous conduct calculated to cause severe emotional distress.

Count II of the complaint was properly dismissed. The supreme court stated in Knierim that punitive damages could not be sanctioned in a case involving intentional infliction of emotional distress. (22 Ill. 2d 73, 88, 174 N.E.2d 157, 165.) The court stated that since the outrageous quality of the defendant’s conduct formed the basis of the action, the rendition of compensatory damages was sufficiently punitive. This rule was restated in Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App. 3d 339, 351, 330 N.E.2d 540, 548-49, rev’d on other grounds (1976), 64 Ill. 2d 338, 356 N.E.2d 75.

Finally, count III was properly dismissed against defendant Capasso. This count merely alleged that Capasso was negligent in his supervision. There was no allegation that he actually or impliedly intended to harm plaintiff. Moreover, there were no allegations of an extreme and outrageous abuse of authority as is required by the second Restatement (Restatement (Second) of Torts sec. 46, comment e, at 74 (1965)).

For the foregoing reasons, the decision of the circuit court is affirmed.

Affirmed.

WEBBER, RJ., and MILLER, J., concur.