author: PRESIDING JUSTICE KARNS JUSTICE HARRISON,

text:
    KENNETH COOLEY, Plaintiff-Appellee, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Defendant-Appellant.—(Sargent & Lundy, Inc., Defendant.)
    Fifth District
    No. 81—344
    Opinion filed October 4, 1982.
    Rehearing denied November 18, 1982.

      HARRISON, J., dissenting.
    Hoagland, Maucker, Bernard and Almeter, of Alton (Robert B. Maucker and Donald Smith, of counsel), for appellant.
    Law Offices of William W. Schooley, of Granite City (William W. Schooley and John H. Hustava, of counsel), for appellee.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Plaintiff, Kenneth Cooley, recovered a judgment for damages for personal injuries received in a construction project accident that occurred because of an alleged violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60) after a jury trial in the circuit court of Madison County, against Central Illinois Public Service Company. The jury returned a verdict for defendant on the negligence counts of the complaint. The trial court denied defendant’s motion for directed verdict and its post-trial motions in arrest of judgment and for judgment notwithstanding the verdict.

On appeal, defendant contends that judgment should be entered in its favor as plaintiff’s complaint neither stated nor did the evidence at trial prove a cause of action arising under the Structural Work Act. Defendant further contends that there was no proof that defendant wilfully violated the Act.

Plaintiff was employed as an operating engineer by a joint venture known as Newton Associates, the general contractor for the construction of a power plant for defendant at Newton, Illinois. His particular employment was to operate a crane known as a “creter” crane, derived from the word concrete, a large vehicle weighing approximately 100,000 pounds, which consists of a long-boom crane attached to conveyor belts used to transport concrete to various elevations at a jobsite by the raising and lowering of the conveyors by use of the crane boom. The conveyor belt is activated by motors powered by a generator located at the rear of the crane. Power to the generator is furnished by a diesel engine located behind the cab. All controls, including the generator controls, are located in the cab of the crane which is five feet off the ground.

Plaintiff was injured on Monday, May 8, 1978. On the Friday prior to this date, while the crane was in use pouring concrete at the job-site, the generator which powered the conveyor belts quit operating. Plaintiff was directed to move the crane to a road away from the construction area so the generator could be repaired by mechanics employed by the general contractor. Plaintiff did not work Saturday and Sunday. When he returned to work at 8 a.m. on Monday, it had been raining, as it had been off and on for the prior week. At 8:20 a.m. it stopped raining and the men were instructed to report to work. Plaintiff went to the site where he had parked the crane on Friday. A mechanic then began to remove the generator from the crane. Plaintiff proceeded to the cab, intending to enter the cab and, apparently, start the engine. He was unable, however, to state any reason for so doing as the crane was temporarily out of service. The crane had no ladder, steps or grab-bars as a means of climbing into the cab and plaintiff proceeded, as he had always done for approximately four years, to climb into the cab by first stepping up onto the steering bar with his left foot, then placing his right foot onto the axle, then his left foot. As he swung his right foot over to enter the open door of the cab, his left foot slipped from the axle and he fell to the ground injuring his back. His feet were muddy from the mud on the roadway, a temporary construction road, which had been built by the general contractor. It was rocked but nonetheless would become muddy after rain, causing the rubber tires of the crane to sink into the roadway. The road was sometimes used by operating personnel of defendant.

Section 1 of the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60) as here pertinent provides:

“[A]ll *** cranes *** or other mechanical contrivances erected or constructed by any person *** for use in the erection, repairing, alteration *** of any *** structure, shall be erected or 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 engaged 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.” (Emphasis added.)

Defendant’s first contention is that there were no allegations in plaintiff’s second amended complaint or proof at trial that at the time of the accident the crane was being used in the erection of any structure in connection with the construction of the power plant as it was inoperative, out of service, and was parked on a construction road undergoing repairs; therefore, the crane was not being used in construction at the time of the accident. The allegations of the complaint are that defendant wilfully violated the Act by failing to require placement of rock on the construction road; by permitting operation of the crane on the muddy construction road under weather conditions that were unsafe; by permitting the operation of the crane without adequate steps and grab-bars; and by failing to require that the crane be repaired on a hard surface area. Defendant does not deny that it was in charge of the work being performed.

Plaintiff argues that repair of the equipment is “operation” of the crane as it is an integral part of the entire operation of erecting a power plant and that the construction contract between the defendant owner and the general contractor contemplated that equipment would be required to be repaired as the defendant agreed to reimburse the general contractor for the cost of repairs to equipment under the “cost-plus” contract between the parties. This theory derives from McNellis v. Combustion Engineering, Inc. (1973), 13 Ill. App. 3d 733, 301 N.E.2d 96; aff’d (1974), 58 ILl. 2d 146, 317 N.E.2d 573.

In McNellis, a workman received fatal injuries while removing large, 20,000 pound pedestals from a railroad car located one-half mile from the construction site of Commonwealth Edison’s power-generating plant. The pedestals were eventually to be installed in the plant as part of the steam generating units. Cranes were available to assist in unloading the pedestals but were not used. The workman was assisting in cutting loose the metal plates that secured the pedestals to the gondola car when one of the pedestals fell, pinning him to the car. The cranes could have been used to hold the pedestals in place.

In response to defendant’s argument that unloading of equipment was not a structural work activity, the appellate court reasoned that the agreements between the owner, Commonwealth Edison, and the general contractor, who subcontracted the unloading of the pedestals to the deceased workman’s employer, contemplated that unloading was a part of erecting the generators within the plant and that considering the size of the construction project, unloading of equipment some distance from the plant was required. The appellate court concluded that “the unloading in question was an integral part of the entire operation of erecting the generating units.” (13 Ill. App. 3d 733, 741, 301 N.E.2d 96, 102.) The court reasoned that the failure of Commonwealth Edison to require the use of cranes was, therefore, a violation of the Act just as the failure to require safe scaffolding would be actionable under the Act. (See Louis v. Barenfanger (1968), 39 Ill. 2d 445, 236 N.E.2d 724.) The supreme court agreed with the reasoning of the appellate court and stated, “under the terms of this contract and facts of this case the unloading may fairly be viewed as an integral part of the erection operation.” (McNellis v. Combustion Engineering, Inc. (1973), 58 Ill. 2d 146, 151, 317 N.E.2d 573, 576.) Plaintiff reasons that repair of equipment, as unloading of equipment, was an integral part of the construction of this power plant, and was anticipated and provided for under the contract between the owner and general contractor. Therefore, the Structural Work Act was applicable to the activity in which plaintiff was engaged at the time of his injury.

Defendant argues that the reasoning of Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817, should control our decision in this case. In Crafton, plaintiff, an iron-worker, was engaged in moving structural steel from a rail siding to the site of a building construction project being done for Caterpillar Tractor Company. Structural steel was fastened to a cable hoist, part of a tractor equipped with a 30-foot, side-boom hoist. The structural steel was tied into bundles and fastened to the cable hoist. The bundles were then lifted off the ground and transported by the tractor to the building site where plaintiff would unfasten the steel, which would then be lifted by other hoists onto the structure being erected. At the time of his injury, plaintiff was in the process of getting onto the tractor to ride the distance from the rail siding to the building site, an area covered with deep mud. Plaintiff slipped from the track of the tractor, which was muddy and slick, as the operator started the tractor in motion and fell, sustaining injuries. The court concluded that notwithstanding a liberal construction of the Structural Work Act is mandated, the Act does not apply to any and all construction activities and that the hoist attached to the tractor had nothing to do with plaintiff’s injury, which was caused by the lurching of the tractor as plaintiff was attempting to board it as a means of transportation. The court stated:

“It is difficult for us to understand how, from the plain wording of the statute, the *** tractor was ‘erected or constructed *** for use in erection, repairing, alteration, removal or painting of any *** structure’.” 46 ILl. 2d 533, 537-38, 263 N.E.2d 817.819.

The appellate court opinion in McNellis distinguished Crafton on the basis that McNellis received his injury because of the failure to employ cranes in the unloading process, stating that the tractor from which plaintiff in Crafton fell was used solely for transportation and had no connection with the cable hoist. Plaintiff in Crafton was injured because of the lurching of the tractor, not because of the use or failure to use the cable hoist. The supreme court opinion in McNellis considered the two cases dissimilar and adequately distinguished in the appellate court opinion.

Plaintiff argues that here, unlike Crafton, the “creter” crane was used in the construction of defendant’s power plant and was only temporarily out of service for repairs. Admittedly, the crane was not being used at all at the time of plaintiff’s injuries.

In McNellis, the deceased workman was engaged in an extrahazardous activity which was an integral part of the steel erection operation. This cannot be said of plaintiff here. Plaintiff was required to be present at the crane under union rules while the mechanic was repairing the crane and to assist if requested. A fair reading of the record discloses no evidence that any assistance was required by the mechanic, who could not state why plaintiff would enter the cab of the crane the morning of the accident. The plaintiff was not assisting the mechanic in removing the generator from the crane, nor was he requested to do so. The plaintiff was not engaged in repairing the generator. We do not believe that the activity of repairing this crane was a use in the erection of the power plant within the scope of the Act. Nor do we believe that the activity in which plaintiff was engaged at the time of his accident was a Structural Work Act activity. This conclusion finds support in other cases. In Kenworthy v. Young (1979), 70 Ill. App. 3d 144, 388 N.E.2d 217, a grain auger collapsed throwing plaintiff to the ground. In rejecting plaintiff’s claim that the supporting legs of the auger were a scaffold, the court stated that the supports were not being used to perform work upon a building or structure. In Burkhart v. Illinois Power Co. (1973), 9 Ill. App. 3d 139, 291 N.E.2d 673, a workman was electrocuted while trimming trees below a power line. Plaintiff argued that the power line was a “structure.” The court, assuming the line to be a structure within the Act, concluded that the Act would not apply as at the time of the injury the deceased was trimming trees, not working on the power line, and thus not engaged in erection of any building or structure.

The courts have always stated that the purpose of the Structural Work Act is to prevent injuries to persons employed in the dangerous and extrahazardous occupation of construction. To this end the Act has always been given a liberal construction. The court referred to that policy in concluding that the injured workman in McNellis was engaged in a hazardous activity in removing the heavy, axial pedestals from the railroad car. Here, not only was the crane out of service but the activity in which plaintiff was engaged, entering the cab of the crane, was not a hazardous construction activity.

Recently, the first district decided the case of Rayfield v. Homart Development Co. (1981), 100 Ill. App. 3d 620, 427 N.E.2d 193. Plaintiff was the operator of a traxcavator, a tractor with a front bucket, which the court found was being used as a “mechanical contrivance” within the meaning of the Act. While operating the machine on a slope, it tipped and plaintiff fell to the ground. Plaintiff claimed the failure to equip the machine with a seat belt was a violation of the Act. The court first reviewed the relationship between the Structural Work Act and the Workers’ Compensation Act and then stated that “the Act should not be interpreted so that it is extended unnecessarily to cover neoteric theories of liability where the existing workmen’s compensation and tort remedies protect and give reasonable and satisfactory relief to construction workers.” (100 Ill. App. 3d 620, 622-23, 427 N.E.2d 193, 195.) The court concluded that the failure to have seat belts was not a violation of the Act and liability under the Act could only be imposed where “injuries to third parties occurred because of the unsafe operation of the mechanical contrivance as well as cases in which injuries occurred due to a functional or operational defect of the mechanical contrivance.” (100 Ill. App. 3d 620, 623, 427 N.E.2d 193, 196.) Here, plaintiff essentially claims that the failure to have footholds and grab irons is actionable under the Act. But these deficiencies do not involve a functional or operational defect of the crane. Plaintiff was entering the cab of the crane in the same manner as he had for four years. He slipped on this occasion because of the presence of mud on his shoes, not because of a functional or operational defect of the crane. He also claims that defendant violated the. Act by allowing mud to accumulate on the roadway. But this is not a functional or operational defect in the operation of the crane; it has nothing to do with the safe operation of the crane which the Act was intended to require so to prevent injuries to construction workmen in the dangerous and extrahazardous activities associated with the construction trades. (Schultz v. Henry Ericsson Co. (1914), 264 Ill. 156, 106 N.E. 236.) Plaintiff’s injury had no connection with the potentially hazardous nature of the crane. See Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 863, 325 N.E.2d 607.

It is also clear that this crane was not itself a “structure” within the Act. In Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 328 N.E.2d 318, plaintiff was injured when he fell while standing on a drum in assembling a large shovel used in strip mining of coal. Distinguishing McNellis, which the court stated was predicated upon the contractual provisions, the court concluded that the large self-propelled shovel was not a “structure” within the meaning of the Act.

While the word “crane” does appear in the Structural Work Act as a specific contrivance covered by the Act, neither the use of the crane, which was out of service for repairs, nor the activity or “work” in which plaintiff was engaged at the time of the injury, entering the cab, can be fairly said to be structural work covered by the Act.

We need not decide defendant’s second contention that there was no proof of a wilful violation of the Act.

The judgment of the circuit court of Madison County is reversed.

Reversed.

WELCH, J., concurs.

JUSTICE HARRISON,

dissenting:

I respectfully dissent.

The majority predicates its decision on its belief that repairing the crane was not a construction activity covered by the Structural Work Act. (Ill. Rev. Stat. 1977, ch. 48, par. 60.) The appellee relies on ' McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573, which the majority attempts to distinguish by stating that, although the plaintiff in McNellis “was engaged in an extrahazardous activity which was an integral part of the steel erection operation^] [t]his cannot be said of plaintiff here.” I feel this conclusion is unsupported by the record and is belied by a more careful analysis of McNellis.

Under the McNellis ruling, the plaintiff is entitled to recover from the defendant if the repair of the crane can be characterized as an integral part of the construction of the power plant. The supreme court formulated the rule as follows:

“The determinative question is whether the unloading activities being performed by the decedent at the time of the accident constituted the ‘erection of any building or other structure’ within the meaning of this statutory provision.
We have held on previous occasions that the Structural Work Act should be given a liberal construction to effectuate its purpose of protecting persons engaged in extra-hazardous occupations of working in and about construction, repairing, alteration, or removal or buildings, bridges, viaducts, and other structures. [Citations.] Consistent with that policy, we agree with the appellate court that under the terms of this contract and facts of this case the unloading may fairly be viewed as an integral part of the erection operation.” (Emphasis added.) 58 Ill. 2d 146,151.

In the case sub judice, the majority opinion ignores the contract between the defendant and the contractor. This contract contained a clause entitled “SCOPE OF WORK” which provided that the contractor would perform certain duties regarding “the following phases comprising the Scope of Work: *** b) All tool and construction equipment and all services, supplies and maintenance thereof.” (Emphasis added.) This provision places the repair of construction equipment squarely within the scope of the construction work. Under McNellis, such a contract provision is not only relevant, but taken with the facts of the case, is dispositive of the determinative question of whether the repair of the crane constitutes the “erection of any building or other structure” within the Act. (58 Ill. 2d 146, 151.) The contract language above quoted is evidence that even the defendant contemplated the repair of the crane to be an integral part of the erection process. The other facts of the case point to the same conclusion.

As the majority indicates, plaintiff was required by union rules to be present during repair. The majority’s characterization of the mechanic’s testimony colors this important account of events. The majority maintains that “no assistance was requested by the mechanic who could not state why plaintiff would enter the cab of the crane the morning of the accident.” The crane was out of service for generator repair and the mechanic testified that all controls, including those for the generator, were inside the cab. The following colloquy ensued under direct examination: “Q. Okay. So to do any operation at all you would have to climb up into the cab to do the operation? A. Yeah, you would have to get into the cab on it.” (Emphasis added.) The mechanic was later asked what he remembered of the accident itself and was not, as the majority recitation of facts implies, asked why plaintiff would enter the cab. In response to the actual question, the mechanic’s answer was that “Well, I was on the back of it taking the generator off of it, which is a portable generator that mounts on the back of it. And Ken went around front, Cooley did, to get in it or something. I don’t remember what. But anyhow I heard him yell. And when he came back around.he said he slipped and hurt his back.” (Emphasis added.) The mechanic never stated that “no assistance was requested ***”; on the contrary, he testified on cross-examination that the reason an operator stays at the equipment during repair is because “a mechanic goes out by himself and they [sic] is so many things that one guy can’t do on a piece of equipment like that where you need some help. So it’s just set up so the operator stays and works on his own equipment.” (Emphasis added.) Defense counsel then asked whether the operator actually would assist the mechanic or if he merely stayed. The witness replied, “Yes, if you need help he helps you.” Defense counsel later inquired, “Do you remember needing any assistance prior to him slipping?” The witness answered, “Yeah, I had to have assistance getting it off because the way it bolts on there ain’t no way one guy can get to the top and the bottom of the bolts to get them off. You’ve got to have assistance there.” This testimony establishes that the plaintiff was not only present during the repair work, but actually assisted in the repair of the crane. This fact, coupled with the contract provision discussed above, brings this case squarely within the ruling of McNellis. I conclude that the plaintiff was injured while engaged in activity which was an integral part of the construction operation and is therefore covered by the Act.

The McNellis rationale, however, does not constitute the only reason we should affirm the circuit court. The equipment upon which plaintiff was working was a crane and therefore is itself covered by the Act. (Ill. Rev. Stat. 1977, ch. 48, par. 60.) Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 328 N.E.2d 318, is distinguishable because that case did not involve a crane, and so the plaintiff in that case was relegated to arguing, unsuccessfully, that he was working on a “structure.” In the ease at bar, plaintiff was not provided with a stepladder or other support for use in entering the machine. “The absence of a suitable support for plaintiff’s use in the utilization of the machine is equally actionable under the statute since it was required to be '*** operated as to give proper and adequate protection to the life and limb of any person *** employed or engaged thereon.’ ” (Acquaviva v. Sears Roebuck & Co. (1979), 68 Ill. App. 3d 588, 591, 386 N.E.2d 381.) In the instant case, a proper application of the statute would place a duty upon the defendant to provide a safe and suitable method of entry into the cab of the crane. This was not done, and therefore I would affirm the trial court.

The majority cites Rayfield v. Homart Development Co. (1981), 100 Ill. App. 3d 620, 427 N.E.2d 193, for the proposition that liability under the Act may only be imposed where “injuries to third parties occurred because of the unsafe operation of the mechanical contrivance as well as cases in which injuries occurred due to a functional or operational defect of the mechanical contrivance.” (Emphasis added.) (100 Ill. App. 3d 620, 623.) The passage in Rayfield on which the majority relies cites no authority at all for the rule which it purports to derive. Such a radical change in the policy of this State is best left to the supreme court and the legislature and not to the appellate court. Returning to the case at bar, the facts adduced at trial meet even the novel test set forth in Rayfield. Where an injury is caused because of difficulty entering the machine, an operational defect exists because the machine is impossible to operate without encountering the defect.

Finally, I would also note that Crafton v. Lester V. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817, is distinguishable because the plaintiff in the instant case was engaged in repairing the generator which provided power to move conveyors along the boom of the crane. This activity concerns the crane qua crane and not, as in Crafton, as an item of personal transportation.

For these reasons I conclude that the trial court’s decision was supported by both the law and the evidence, and I therefore respectfully dissent from the majority opinion.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
      In re S.W.C., a Minor.—(The People of the State of Illinois, Petitioner-Appellee, v. S.W.C., Respondent-Appellant.)
    Fourth District
    No. 4—82—0353
    Opinion filed December 2, 1982.

      Daniel D. Yuhas and Gary S. Rapaport, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

In a juvenile supervision revocation proceeding, is proper notice required of anyone other than the custodial parent?

No — certainly in this context.

We affirm.

5. W.C. was originally placed on supervision after his admission to theft as alleged in a petition for adjudication of wardship. S.W.C.'s mother, with whom he resided, was properly notified of the petition and the hearing upon it. His father, whose address was listed as unknown on the petition, was served by publication only and did not appear.

Before accepting his admission, the court informed S.W.C. of his right to a hearing, to confront witnesses against him, and to have the State prove his guilt beyond a reasonable doubt. The court also ascertained that S.W.C. understood his rights and that he was waiving them by admitting the allegations in the petition.

S.W.C. was further informed that if he violated the conditions of the order of supervision, a finding could be entered on his admission, he could be declared a ward of the court, and a formal disposition could be entered sentencing him to probation, placing him in a youth home or with someone other than his mother, or committing him to the Department of Corrections. S.W.C. indicated his understanding; the court accepted his admission and placed him on supervision.

The State subsequently sought to revoke S.W.C.’s supervision. S.W.C.’s mother was again properly notified and did appear. At the initial hearing on the petition, the court inquired as to how best to notify S.W.C.’s father. The transcript reflects that although the minor informed the court of his father’s address, notice was nevertheless furnished by publication only.

S.W.C. admitted the burglary set forth in the petition to revoke, pursuant to an agreement with the State.

After inquiring whether the agreement was acceptable to S.W.C., the trial judge again informed S.W.C. of his rights and the consequences of his admission. Finding that S.W.C. understood his admonitions, the judge accepted S.W.C.’s admissions and revoked his supervision. Following a dispositional hearing, S.W.C. was committed to the Department of Corrections. His motion to withdraw his admission and vacate the order of commitment was denied.

In this court, S.W.C. contends that because his father was not given proper notice, the trial court lacked jurisdiction to enter any order against him and that the trial court improperly failed to require a factual basis before accepting his admission.

I

S.W.C. is correct that due process does require notice to a juvenile’s parents in a delinquency proceeding. (In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428.) Further, notice by publication is inadequate unless the State has exercised due diligence in finding the parents’ address, and sends a copy of notice to the last known address of the parent. In re T.B. (1978), 65 Ill. App. 3d 903, 382 N.E.2d 1292.

While the State in this case exercised less than due diligence in serving S.W.C.’s father with notice, this deficiency did not deprive the trial court of jurisdiction to adjudicate S.W.C. delinquent, revoke his supervision, or require reversal of those orders. In re J. W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501.

Gault does not compel a contrary result. There, the minor was taken into custody and neither of his parents was given formal notice of any hearing or the charges against their son until after they had filed a habeas corpus petition on his behalf. Here, the minor’s mother, with whom he resided, was given notice and did appear. Gault required notice, but not specifically to both parents.

The supreme court in J.W. left open the possibility that where a parent has a more significant relationship with a minor child than J.W. had with his father, a more concerted effort to furnish notice might be required. The minor in J.W. was illegitimate and did not know who his father was. On such facts, even notice by publication was not required.

By way of contrast, S.W.C. knew who his father was and there is some indication in the record that he knew where he lived. This is certainly indicative of a more significant relationship than existed in J.W. However, S.W.C. apparently communicated infrequently with his father and was not sure whether his father knew about the delinquency petitions or not. Thus, the significance of S.W.C.’s relationship cannot have been very great, and service by publication was sufficient.

Two cases decided since J.W. dealing with the question of when notice is required to a noncustodial parent support our decision here. In re Stokes (1982), 108 Ill. App. 3d 637, 439 N.E.2d 514, found that an order committing a minor to the Department of Corrections was not void because the minor’s father — whose address was unknown— was not served by publication. The court inferred from the fact that the minor did not know his father’s address that there was little contact between the two. As the custodial parent was served and did appear, the father was not an indispensible party and the order could be entered in his absence.

In In re Vaught (1981), 103 Ill. App. 3d 802, 431 N.E.2d 1231, the father’s identity was known and his whereabouts were indicated as “Bremen, KY.” The court read J.W. as indicating that failure to notify the father in no way affected the court’s jurisdiction. Further, it only required reversal of the minor’s commitment to the Department of Corrections if the father was an indispensible party. As the minor was apparently in the custody of his mother, who was notified, and since the record showed no right of the father which was affected by the adjudication, the father was not an indispensible party.

Thus, notice to the custodial parent is what is crucial. That is all that is required under section 4 — 4(2) of the Juvenile Court Act. (Ill. Rev. Stat. 1981, ch. 37, par. 704 — 4(2).) Unless a minor shows some significant relationship with a noncustodial parent that is affected by the adjudication, he cannot stand silent at a hearing where he is represented by counsel and where his custodial parent is present and then later be heard to complain about lack of notice.

The noncustodial parent should be served personally or by mail whenever possible and the court should endeavor to ascertain the full extent of the minor’s relationship with him or her, but failure to do so is not fatal on the facts of this case.

II

S.W.C.’s second argument that a factual basis must be found was raised and rejected in In re Beasley (1977), 66 Ill. 2d 385, 362 N.E.2d 1024, cert. denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734. In Beasley, the court held that Supreme Court Rule 402 (87 Ill. 2d R. 402) is inapplicable in juvenile proceedings and that a minor’s admissions may be accepted without requiring a factual basis. It also held that the Juvenile Court Act and due process require only that a minor know and understand his right against self-incrimination, his right to confront witnesses against him, his right to trial, and that by his admissions he waives these rights and subjects himself to any disposition authorized by the Juvenile Court Act before the minor’s admission may be accepted by the court.

While it is clear that no factual basis to the theft or the burglary was before the trial judge when he accepted S.W.C.’s admissions, the record here affirmatively demonstrates S.W.C.’s knowledge and understanding of his rights as well as the consequences of his admissions. S.W.C. was represented by counsel. When the trial judge informed him of his rights, he represented that he understood them and was waiving them. Beasley does not require more, and we decline to go beyond its requirements.

Contrary to S.W.C.’s assertion, McCarthy v. United States (1969), 394 U.S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166, does not hold that a factual basis is constitutionally required. McCarthy involved a construction of Rule 11 of the Federal Rules of Criminal Procedure, and not any constitutional question. Thus, McCarthy casts no shadow of doubt on Beasley.

Affirmed.

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


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY WELLS, Defendant-Appellant.
    Fifth District
    No. 81—27
    Opinion filed November 1, 1982.

      Randy E. Blue and John W. McGuire, both of State Appellate Defender's Office, of Mt. Vernon, for appellant.
    Donald W. Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant Stanley Wells was charged in the circuit court of Madison County with murder, voluntary manslaughter and armed violence, all three charges being based upon the fatal stabbing of Edward Stem in Madison, Illinois, on August 8, 1980. In the defendant’s trial, the jury was instructed to consider those three offenses as well as the offense of involuntary manslaughter. The jury returned verdicts of not guilty of murder and voluntary manslaughter and guilty of involuntary manslaughter and armed violence. The court sentenced the defendant to 10 years’ imprisonment on the armed violence count only. The defendant appeals and argues that the court failed to instruct the jury, sua sponte, that the State must disprove that the defendant’s acts were unjustified in order to convict him of involuntary manslaughter and armed violence. He also contends that the evidence introduced at trial does not support a conviction for involuntary manslaughter or armed violence and that his sentence was excessive.

At about 2 a.m. on August 8, 1980, the defendant was at his home, in his pajamas, when he heard loud voices coming from the house of his neighbors, the Sterns. He went to investigate, and found his brother, Jeff Wells, and the Stem brothers, Eddie and Danny. The three had been drinking Jack Daniel’s whiskey and cola since earlier that evening. After the defendant arrived at the Stem residence, Jeff Wells departed for the Wells home and the defendant remained with the Sterns.

Eddie and Danny were roughhousing with each other, and the defendant attempted to break up the scuffle. Danny responded by challenging the defendant to fight, and the defendant replied that if he wanted to fight, he would have to do so at the defendant’s house. At trial, Danny stated that the defendant’s invitation to fight at his house occurred after he suggested to the defendant, who had been “talking loud,” to be quiet or leave.

The defendant then departed the Stern residence and went home, where he changed from his pajamas into a pair of jeans and obtained a butcher knife with a seven-inch blade from the kitchen. The Stern brothers followed the defendant to his home, and the defendant came out of the back door with a knife to meet them. There were several differing accounts of the events that followed, four of which were presented to the jury.

Danny Stern testified that, when he came out of the back door, the defendant appeared to be carrying something behind his back, although Danny could not discern what it was because of darkness. As he approached and moved to within five feet from Danny the defendant said “now talk bad.” Eddie then circled around behind the defendant and pushed him in the back. Danny did not know if his brother had anything in his hand when he pushed the defendant. According to Danny, the defendant did not fall, but instead turned and “made a swinging motion” towards Eddie. Danny testified that he did not see the defendant stab Eddie. The next thing he remembered was seeing Eddie’s body lying on the defendant’s back porch, because, as Danny stated at trial, he blacked out for a period of time which he estimated at 15 minutes.

The remaining versions of these events were offered by the only other surviving occurrence witness, the defendant, who did not testify at trial. Madison County Deputy Sheriff Randall Lamb stated that he arrived at the Wells residence at 2:18 a.m. on the morning of August 8, 1980, where he found the body of Eddie Stern lying on the rear porch. After speaking with Danny Stern, who appeared “highly intoxicated,” Lamb decided to take an oral statement from the defendant.

According to Lamb, the defendant told him that he had walked outside with the knife and “kind of waved” it around to induce Danny to go home. He was then hit from behind with something that felt like a brick and as a result of the blow, he fell to the ground. As he fell, he raised his arms to protect his face, and in the fall, the defendant felt that he had cut himself on the left forearm. When the defendant realized that he was bleeding, he went into his house for a paper towel, and as he attempted to go back outside, he discovered Eddie lying on his back steps, bleeding and blocking the door. The defendant informed Lamb that he might have stabbed Eddie when he raised his arms during the fall, but he did not know whether he had done so.

Later on the morning of August 8, the defendant gave two oral statements to Madison County authorities. Both of these were videotaped and transcribed and the tapes were played to the jury. During the first interview, taken at 5:25 a.m. on August 8, the defendant again stated that when he went outside with the knife, he was struck in the back with a brick. As he fell, his right hand, which held the knife, swung back over his right shoulder at the level of his ear. When he hit the ground, he cut his lip. The defendant maintained, as he had done earlier, that he went back inside when he noticed that he was bleeding, and he first discovered that Eddie was injured when he saw him lying on the back porch, preventing him from opening the door.

In his second videotape interview, taken at 8:59 a.m., the defendant said that he wanted to correct some statements he had made in the earlier taped interview. This time, the defendant recalled that he was carrying the knife at his side, where Danny could have seen it, as he exited the rear door after changing clothes and obtaining the knife. He was struck from behind, and he fell, either making contact with the ground or coming close to doing so. In the fall, he injured his lip and cut himself on the arm. The defendant then ran back into the house with only the screen door closed behind him, set the knife on the sink and washed the blood from his arm. He picked up the knife once again and went to shut the door, where he confronted Eddie and Danny outside the door. He opened the screen door nearly all the way, thrust the knife “back at ’em” and told them “you guys go home before somebody gets hurt.” The defendant related in the interview that “Eddie Stern and Danny, they kept moving like *** trying to scare me *** so I just stuck it out a little farther then they, one of them *** I turned my head to look at Danny and I guess Eddie jumped on me *** or was gonna jump on me and I just stuck him.”

It was established at trial that the cause of Eddie Stern’s death was loss of blood from a stab wound to the heart. That wound was approximately V-h inches long, 3k of an inch wide and two inches deep and was described by the coroner’s pathologist as “more or less a straight-on wound with no angle to it at all.” The coroner’s report stated that the weight of the decedent was 180 pounds, and an analysis three hours after death showed a blood alcohol content of .20% and a urine alcohol content of .14%.

The defendant argues that the evidence introduced at trial fails to meet the State’s burden of proving beyond a reasonable doubt that his act of stabbing Eddie Stern was unjustified. In support of his position, the defendant notes that because the Stem brothers were intoxicated and because Eddie had struck him with a brick, the defendant believed when they approached his back door that they intended to cause further serious injury to him and that his life was in danger. The defendant maintains that this belief was reasonable under the circumstances as a matter of law. (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 1.) He contends that his response to this threat, by picking up the knife, partially opening the door and thrusting the knife at the nearest of his two attackers in order to scrape him slightly and scare him away, was entirely justified.

The People respond that there was no evidence presented to support the defendant’s claims of self-defense. They assert that the defendant, by advancing upon Danny with a butcher knife, was the aggressor, who was therefore required to withdraw from the confrontation. (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 4(c).) It is insisted that Eddie was entitled to use force, perhaps even deadly force, against the defendant, since he could have reasonably believed that the defendant intended to stab Danny. Ill. Rev. Stat. 1981, ch. 38, par. 7 — 1.

We cannot accept the State’s contentions, for they are based on the assumption that the defendant was the aggressor. As noted above, the evidence conflicted concerning the origins of the confrontation. Danny Stem asserted that the defendant challenged him to fight him at his house, after Danny had admonished him to be quiet. Yet, in all of the defendant’s statements, he maintained that it was Danny who had first suggested a fight, and it should be recalled that the Stern brothers followed the defendant to his home. Whether the defendant was actually the aggressor in this case, thus not entitled to use deadly force against Eddie Stern, is a question of credibility properly for the jury. (People v. Day (1972), 2 Ill. App. 3d 811, 277 N.E.2d 745.) Moreover, we are also of the opinion that the defendant’s testimony regarding his assessment of the threat posed to him by the Sterns is “some evidence” of his belief that deadly force was necessary. (People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378.) The evidence introduced at trial did therefore raise the issue of justifiable use of force.

However, we do not agree with the defendant that the State failed to disprove this defense beyond a reasonable doubt. The evidence shows that the defendant was struck either by Eddie Stern, or possibly by a brick he threw. But, as noted above, it is not obvious who initiated the confrontation. Also, there is no proof that the Sterns were armed in any way while they were on the defendant’s back porch, and, in the defendant’s second videotape statement, he told the authorities that the Stern brothers remained on his back porch while he went inside to wash the blood from his arm and the butcher knife. These factors indicate to us that whether the defendant’s belief in the need to defend himself by stabbing Eddie Stern was reasonable was a question for the jury (People v. Brophy (1981), 96 Ill. App. 3d 936, 422 N.E.2d 158; People v. Henry (1980), 86 Ill. App. 3d 602, 408 N.E.2d 228), and there was evidence from which they could conclude, as they did, that that belief was not reasonable.

Alternatively, the defendant insists that the State’s evidence relating to his mental state at the time of the stabbing proves only that he acted recklessly, but not that he acted knowingly or intentionally to cause great bodily harm to Eddie Stern. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a).) In his second videotape interview, the defendant stated that “I didn’t really want to stab him. I did not even think I did until I seen red on his shirt [sic]” and that “I just wanted to scare him.” When one of the interviewing officers asked him if he intended to cut Eddie Stern “a little bit” to show that he meant business, the defendant replied, “Yeah *** just a little bit, I didn’t mean to do like that though *** I meant to just, you know, scrape him, or you know, scare him *** is what I want to do *** is scare him ***.” The defendant asserts that this uncontradicted account of his mental state negates any inference that he intended to cause great bodily harm to Eddie Stern, and therefore his conviction for armed violence should be reversed.

The People reply that the defendant’s statements are not the only evidence of his mental state. They correctly point out that intent may be inferred from the defendant’s conduct, since it is presumed that a person intends the natural and probable consequences of his actions. (People v. Fleming (1976), 42 Ill. App. 3d 1, 355 N.E.2d 345; People v. Masterson (1967), 79 Ill. App. 2d 117, 223 N.E.2d 252.) Here, it is undisputed that Eddie Stern was killed when he received a two-inch-deep stab wound straight to the heart. This evidence is contrary to the defendant’s assertion that he did not intend to cause great bodily harm to Eddie Stem and provides support for the jury’s verdict that the defendant was guilty of armed violence based on aggravated battery. Additionally, the defendant’s second videotape statement, although it disavows the intent to kill Eddie Stern, does not deny that the defendant meant to injure the defendant with the knife, even if only to “scrape” him “a little bit.” Consequently, the State’s evidence was not insufficient to prove the defendant guilty of armed violence based on aggravated battery beyond a reasonable doubt.

Next, the defendant argues that the jury was improperly instructed concerning his defense of self-defense. The court gave to the jury Illinois Pattern Jury Instructions, Criminal, Nos. 24.06, 24.07, and 24.09 (1968) (hereinafter cited as IPI Criminal), which define justification relating to the use of force in defense of a person, use of force in defense of a dwelling, and an initial aggressor’s use of force, respectively. The jury was also provided with IPI Criminal No. 25.05, which stated that, in addition to the elements of the crime of murder, the State must prove beyond a reasonable doubt that the defendant was not justified in using the force which he used.

The court presented to the jury, without objection, IPI Criminal Nos. 11.20 and 7.08, which are the issues instructions for armed violence and involuntary manslaughter, without language requiring the State to negate the justification of the defendant’s acts. Defense counsel did not tender IPI Criminal No. 25.05 for either of these offenses, nor did he assign the failure of the court to give this instruction as error in his post-trial motion. The defendant now contends that the trial court’s use of issue instructions without self-defense language, for both armed violence and involuntary manslaughter, constituted plain error under Supreme Court Rule 451(c) (87 Ill. 2d R. 451(c)).

Very recently, the Illinois Supreme Court was presented with a similar issue. In People v. Huckstead (1982), 91 Ill. 2d 536, the defendant was charged with murder. At trial, the court presented to the jury IPI Criminal No. 7.02, which is the issues instruction for a murder case in which self-defense is not raised. Defense counsel did not object to this instruction or tender IPI Criminal No. 25.05, nor did he contend in his post-trial motion that this was error. As in this case, the defendant asserted for the first time on appeal that the omission of self-defense language from the issues instruction should be considered as plain error.

Resolving a conflict of long standing in the appellate court, the supreme court held that the instructional error alleged by the defendant should not be considered as plain error in that case. The court stated that the plain error exception to the waiver rule is restricted to the correction of “grave errors” and to situations in which the case is close factually and fundamental fairness requires that the jury be properly instructed. The omission of IPI Criminal No. 25.05 was said not to have been plain error because the jury was given a definitional instruction covering the justifiable use of force in self-defense (IPI Criminal No. 24.06) along with an instruction informing the jury that the burden of proof remained with the State (IPI Criminal No. 2.03), and because the prosecutor agreed with defense counsel in closing argument that the State.must show that the killing was not justified. The court stated that the case was not factually close, in part because of several witnesses who heard the defendant express his intention to kill the victim before he actually did so.

As an example of a case involving “grave error” the court referred to People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532. In Jenkins, the trial court submitted to the jury two separate issues instructions on attempted murder. The instruction tendered by the defendant stated that the People must prove that the defendant was not justified in using the force which he used, while the instruction tendered by the State omitted this proposition. Although the defendant failed to object to the State’s erroneous issues instruction, the Illinois Supreme Court held that the giving of that instruction constituted plain error. The court stated:

“Where the instructions are contradictory the jury is put in the position of having to select the proper instruction — a function exclusively that of the court. As far as can be known, defendant might well have been convicted on the basis of the erroneous instruction.” 69 Ill. 2d 61, 67, 370 N.E.2d 532, 534.

The People contend that here, as in Huckstead, the jury was adequately informed of the State’s burden of proof on self-defense, even if not from the issues instructions. We note that in this case, the jury was presented with IPI Criminal Nos. 2.03 and 24.06, as they were in Huckstead. It is also pointed out by the People that defense counsel, in closing argument, indicated that, in order to convict the defendant of any of the offenses, the jury would have to find that the defendant did not act in self-defense. He stated:

“Armed violence is another — you have to find he intentionally intended to inflict this wound into the individual. Again, not done in self-defense, not done in self-defense. *** and, of course, all of these things, even if you find they were done and they were done in self-defense, then, of course, you must find a not guilty verdict.”

The prosecutor did not object to these remarks, nor did he refute them in rebuttal.

The error which occurred in this case is not exactly like that in Jenkins, because contradictory issues instructions were not given on the same offense. This error is also not exactly like that in Huck-stead, because the defective issues instructions related to fewer than all of the offenses upon which the jury deliberated. In our opinion, it is this latter factor which persuades us to classify this case with Jenkins and consider the erroneous issues instructions as plain error, despite whatever curative effects the closing arguments and correct definitional instructions may have had. As the defendant argues, the issues instructions for murder in this case stated that the State had the burden of proving that the defendant’s actions were unjustified in order to convict him of that offense. The conspicuous absence of that .factor in the issues instructions for armed violence and involuntary manslaughter would lead a diligent jury to conclude that, although absence of justification was required to prove murder, it was not required to prove involuntary manslaughter and armed violence. The defendant may well have been convicted of those two offenses because the issues instructions omitted any reference to self-defense. Therefore, under the facts of this case, we hold that the result in Jenkins should obtain and the erroneous issues instructions should be considered as plain error. (See also People v. Nugin (1981), 99 Ill. App. 3d 693, 425 N.E.2d 1163.) Also, even if wé did not deem this defect to be a “grave error” warranting relaxation of the waiver rule, we believe that this case is factually close so as. to justify the use of the plain error doctrine.

The People reply that, even if the improper instructions should be considered by this court, the defendant could not have been prejudiced by the instructions, as there was no evidence produced at trial to support defendant’s defense of justification. We have previously rejected this interpretation of the State’s evidence. The issues instructions on armed violence and involuntary manslaughter were certainly erroneous (People v. Ortiz (1978), 65 Ill. App. 3d 525, 382 N.E.2d 303), and that error is not rendered harmless by the testimony presented at trial.

Finally, the People insist that it was not error to fail to include the element of lack of legal justification in the issues instructions for involuntary manslaughter because justification is not a “necessary element” of that offense. In support of this .contention, they refer to People v. Suerth (1981), 97 Ill. App. 3d 1005, 423 N.E.2d 1185. As authority for this proposition, the court in Suerth cited People v. Ortiz (1978), 65 Ill. App. 3d 525, 382 N.E.2d 303. But in Ortiz, the court, although recognizing that justification is not a necessary element of involuntary manslaughter (People v. Pettis (1974), 23 Ill. App. 3d 623, 320 N.E.2d 194), held that the failure to give IPI Criminal No. 25.05 as part of the issues instruction on involuntary manslaughter was indeed erroneous.

The citation of Ortiz in Suerth may only have been for the statement that justification is not a necessary element of involuntary manslaughter. Nonetheless, the conclusion in Suerth that the failure to instruct on self-defense in connection with involuntary manslaughter is not error is not supported by authority. We find that the" rule announced in Ortiz, in addition to being consistent with other case law (People v. Singleton (1976), 41 Ill. App. 3d 665, 354 N.E.2d 464), more effectively implements the defendant’s right to accurate jury instructions. Whether the evidence introduced at trial establishes that the defendant acted recklessly or in self-defense is generally a factual question (People v. Woods (1980), 81 Ill. 2d 537, 410 N.E.2d 866; People v. Taylor (1973), 54 Ill. 2d 558, 301 N.E.2d 273), consideration of which by the jury would be significantly hindered by the omission of self-defense language from the issues instruction for involuntary manslaughter. Consequently, we follow Ortiz and Singleton and hold that such an omission is reversible error where there is sufficient evidence to support the theory of self-defense.

Because the failure to include a self-defense proposition in the issues instructions for involuntary manslaughter and armed violence deprived the defendant of a fair trial, because this defect in the instructions constituted plain error in this case, and because that error was not rendered harmless by the evidence introduced by the State at trial, we must reverse defendant’s convictions and remand this cause to the circuit court of Madison County.

Reversed and remanded.

EARNS, P.J., and JONES, J., concur.


author: PRESIDING JUSTICE EARNS

text:
    RODNEY STEVEN BIGGS, Plaintiff-Appellee, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Defendant-Appellant.
    Fifth District
    No. 81—224
    Opinion filed November 9, 1982.

      Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Richard M. Roessler and William R Gavin, of counsel), for appellant.
    Del A. Goldenhersh, of Goldenhersh & Goldenhersh, P.C., of Belleville, for appellee.
   PRESIDING JUSTICE EARNS

delivered the opinion of the court:

Rodney Steven Biggs brought this action under the Federal Employers’ Liability Act (45 U.S.C. sec. 51 et seq. (1976)) to recover damages for personal injuries sustained while employed as a track laborer for defendant, Terminal Railroad Association of St. Louis. Defendant appeals from the judgment entered in the circuit court of Madison County on a jury verdict in plaintiff’s favor.

On appeal, defendant argues that there can be no recovery under the Federal Employers’ Liability Act because plaintiff was not acting within the scope of his employment when he sustained injury and there was no evidence that defendant was negligent in hiring or retaining in its employment a vicious, ill-tempered employee.

The testimony established that plaintiff and co-employee, Robert Parr, were track laborers and had been working for defendant 15 days on April 17, 1979. On that morning, plaintiff, Parr and 10 to 12 other employees reported for work at a shanty at the railroad yards. While in the shanty, plaintiff related to the men a dream he had the night before about Parr pouring “Cheerios” in the heating and air conditioning ducts of plaintiff’s trailer. Plaintiff testified that some of the men laughed but that there was no other reaction to the story. At that time, Ron Gartner, the track foreman, told the men to get their tools and get to work. Plaintiff and Parr then walked to the tool shed. Plaintiff repeated the dream in the tool shed to Gartner at which time Parr asked Gartner if he (Parr) could beat up plaintiff. Plaintiff further testified that Gartner responded by saying he wanted to get out of the shed first. Gartner testified he responded by telling Parr and plaintiff to get to work. Gartner then left the shed. Plaintiff then testified that Parr hit him on the jaw. Subsequently, plaintiff went outside and began pulling spikes at the track. When Parr came out plaintiff said, in Gartner’s presence, “how come you hit me?” Parr then began grabbing at plaintiff and plaintiff reacted by striking Parr with a railroad spike he had in his hand. The spike cut Parr’s lip. Parr picked up a pick axe and threatened plaintiff but threw the axe down without striking plaintiff. Plaintiff testified he turned away, believing Parr was now in control of himself. At that point, plaintiff was struck on the head with a railroad spike by Parr.

Gartner testified that he saw nothing occur between plaintiff and Parr in the tool shed and that he was turned away from plaintiff and Parr outside at the track until after Parr’s lip was cut. When Parr picked up the axe, Gartner told him to drop it and get to work. When Parr did so, Gartner testified that he then turned back to his work having no reason to suspect further trouble.

Defendant’s appeal from the denial of its motion for directed verdict requires us to view all of the evidence in the light most favorable to plaintiff. Only if the evidence overwhelmingly favors defendant may this court reverse the jury verdict for plaintiff. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

The FELA makes a railroad liable for injury or death resulting in whole or part from the negligence of any of its employees, officers or agents. In order to recover under the FELA, plaintiff must prove he was acting within the scope of his employment, that defendant was negligent and that the negligence contributed in whole or part to plaintiff’s injury.

The testimony, although brief on this point, is sufficient to establish that plaintiff was acting within the scope of his employment at the time of the injury. Plaintiff was injured during working hours and he was injured while on the railroad’s premises. After Parr struck plaintiff in the tool shed, plaintiff went out to the track and began pulling spikes. His injury occurred moments later. Although plaintiff did strike Parr, the jury could find that he did so only after provocation by Parr. We reject defendant’s first contention that plaintiff was engaged in a fight with Parr and, therefore, was acting outside the scope of his employment.

The principles of law in these cases are well established. A railroad, as any employer, may be held liable under the Act where the assault by the fellow employee may be said to be within the scope of his employment, but the employee acts negligently. Liability may also be predicated upon the direct negligence of the railroad in knowingly employing, or retaining in its employ, a person with a quarrelsome disposition and vicious propensities who might reasonably be said to be a threat to other employees while performing their jobs within the scope of their employment. (Restatement (Second) of Agency sec. 213 (1958).) These theories of liability were discussed at length in Tatham v. Wabash R.R. Co. (1952), 412 Ill. 568, 107 N.E.2d 735, and have been the subject of two annotations in American Law Reports (Annots., 33 A.L.R.2d 1295 (1954); 8 A.L.R.3d 442 (1966)).

Initially, we note that plaintiff makes no claim that defendant is vicariously liable under the principles of respondeat superior, that is, negligent because Parr acted negligently while acting within the scope of his employment. Instead, plaintiff’s claim is one of direct negligence.

Plaintiff alleged three separate acts of negligence: failure to protect plaintiff from Parr, failure to provide plaintiff with a reasonably safe place to work and retention of Parr in its employ although it knew or should have known Parr was an ill-tempered and vicious person.

The reported cases establish that before the railroad may be found negligent, it must have had prior notice of the assailant employee’s violent propensities. Without any notice, defendant could not be negligent by retaining Parr in its employ. And, it could not be negligent by failing to protect plaintiff or by failing to provide plaintiff with a safe place to work if it did not know of Parr’s violent nature and thus could not foresee any harm to plaintiff.

Because we find defendant did not have sufficient notice, we hold that defendant was not negligent and under the rule of Pedrick, the judgment in plaintiff’s favor must be reversed.

It was not alleged, nor was there any evidence, that defendant was negligent in employing an employee with known vicious propensities. There was no evidence that Parr had ever been quarrelsome or a person of violent disposition. The only evidence of this kind was the attack on plaintiff, and if defendant was negligent in retaining Parr in its employ, the only evidence of prior notice of Parr’s vicious disposition was that brought to the attention of Gartner, the track foreman, on the morning of the incident.

A corporate defendant acts only through its officers and employees. We do not believe that this brief notice of Parr’s violent manner, brought only to the attention of the track foreman, could be considered to be notice to the corporate defendant under these facts. The Restatement (Second) of Agency sec. 213, comment d, at 459-60 (1958), states that an employee must have some antecedent reason to believe that the employee presents an undue risk of harm to others because of his vicious nature.

Both plaintiff and Gartner testified that Parr had not caused any previous trouble nor had Parr and plaintiff had any other conflicts. The incident on April 17 was an isolated, brief occurrence. It was uncontradicted that Gartner did not see Parr hit plaintiff in the tool shed. Thus, any notice defendant had of Parr’s violent nature occurred as the events at the track took place. Although the witnesses did not give a specific timetable, the events at the track were characterized as occurring very quickly.

In addition to the briefness of the events, it was uncontradicted that Gartner did not see much of what occurred. He did not see Parr strike plaintiff in the tool shed. At the track he was turned away from plaintiff and Parr as he did his work. He did not see Parr grabbing and coming at plaintiff, nor did he see plaintiff graze Parr’s lip with the spike. Not until Parr raised the axe did Gartner see any trouble, and Parr quickly dropped the axe at Gartner’s request.

Although plaintiff claims Gartner did nothing to defuse the trouble between plaintiff and Parr, we are at a loss as to what Gartner could have done, bearing in mind Gartner saw very little of a very brief occurrence. The one case that has considered the question of the duty of a supervisory employee in this situation has denied that a supervisory employee has a duty to anticipate and prevent the conduct of an employee, such as Parr, in this situation. Atlantic Coast Line R.R. Co. v. Southwell (1927), 275 U.S. 64, 72 L. Ed. 157, 48 S. Ct. 25.

Plaintiff relies on the decision in Harrison v. Missouri Pacific R.R. Co. (1963), 372 U.S. 248, 9 L. Ed. 2d 711, 83 S. Ct. 690. In that case plaintiff was assaulted by a fellow employee whom he accused of stealing a ballast fork. A jury awarded damages to plaintiff but the Illinois circuit court granted the railroad’s motion for judgment notwithstanding the verdict. The appellate court affirmed, holding there was insufficient evidence that the railroad knew or should have known of the assailant’s violent nature prior to the assault. (Harrison v. Missouri Pacific R.R. Co. (1962), 35 Ill. App. 2d 66, 181 N.E.2d 737.) In a per curiam opinion, the United States Supreme Court found the evidence sufficient to sustain the jury verdict and reversed. The testimony established that when the assailant was assigned to plaintiff’s crew, the roadmaster warned plaintiff about assailant, calling him a bad actor and a troublemaker. Plaintiff testified that he complained to the roadmaster several times about his assailant’s misconduct prior to the assault. After plaintiff reported the assault, the roadmaster again said, “I told you to watch out for him.” The Supreme Court noted that the testimony was contradicted but that if believed by the jury it was sufficient evidence to support the railroad’s notice of assailant’s violent propensities.

We find the evidence of notice in Harrison quite different from the facts here. In Harrison the railroad’s notice arose because plaintiff complained about the assailant several times and because the roadmaster knew of the assailant’s vicious nature. Neither of those factors were present here.

Finding no negligence on the part of the defendant railroad, the trial court erred in denying defendant’s motions for directed verdict and judgment notwithstanding the verdict. Accordingly, the judgment of the circuit court of Madison County is reversed.

Reversed.

JONES and WELCH, JJ., concur.


text:
    DONNA SULLIVAN et al., Petitioners, v. BONNIE SULLIVAN et al., Respondents.—(Alan C. Downen, State’s Attorney of Hamilton County, Appellant, v. Donna Sullivan et al., Appellees.)
    Fifth District
    No. 81—363
    Opinion filed November 8, 1982.

      Alan C. Downen, State’s Attorney, of McLeansboro (Martin N. Ashley and Frank J. Bieszczat, both of State’s Attorneys Appellate Service Commission, of counsel), for appellant.
    James E. Ford, of Benton, for appellee James E. Ford.
    Van Winkle & Van Winkle, of McLeansboro, for appellees Donna and Jerrel Sullivan.
   JUSTICE WELCH

delivered the opinion of the court:

The State appeals from an order of the circuit court of Hamilton County directing the county to pay $2,375 for the services of a guardian ad litem appointed by the court to represent minors at an adjudicatory hearing. The State first contends that the trial court’s order was void because the court lacked jurisdiction, and, second, that the court acted beyond its constitutional powers and was therefore not authorized to order the county to pay legal fees resulting from that action. We will first review the juvenile custody dispute which preceded the court’s order requiring the payment of legal fees.

Petitioners Donna and Jerrel Sullivan, residents of White County, are the paternal grandparents of Stacey and Shawn Sullivan, and Bonnie Sullivan is their natural mother. Their father died in 1979 after an automobile accident. The grandparents first sought custody of the children through a petition filed on February 2, 1980, in the circuit court of Hamilton County. That petition stated that, at that time, the children were residing in Hamilton County. This original petition was dismissed on June 10, 1980, and an amended petition was filed on June 25, 1980, stating that the children lived in Pope County, Illinois. The amended petition was dismissed on September 23,1980.

A second amended petition containing five counts was filed on October 10, 1980. In each of the counts, it was alleged that the children and their mother resided in Pope County. Three of the five counts were dismissed by the trial court, and a hearing was scheduled for remaining counts I and IV on March 12, 1981. Count I alleged that the children were neglected minors and were living in an environment injurious to their health. It requested that the minors be declared wards of the court pursuant to the Juvenile Court Act. Count IV sought the court’s appointment of the grandparents as guardians of the children’s estates. At the outset of the March 12 hearing, counsel for the petitioners informed the court that the children then resided in Elgin, Kane County, Illinois. However, counsel for respondent Bonnie Sullivan stated that the children were currently staying with family in Hamilton County and were available to appear in court if necessary.

During the proceedings, respondents’ counsel requested that the State’s Attorney for Hamilton County be made a party to the proceedings. The court initially expressed reservations about the matter because the children did not reside in Hamilton County; but then concluded that the Juvenile Court Act required that the State be a party to the action. Hamilton County State’s Attorney, Alan Downen, was brought into the courtroom and ordered to become a party to the proceeding. The adjudicatory hearing was then continued to a later date.

When the hearing resumed on March 16, 1981, Downen moved that the entire petition be dismissed. He argued that the Juvenile Court Act designated the State’s Attorney as the only person who could prosecute a petition under the Act. Moreover, he asserted that since none of the parties lived in Hamilton County when the second amended petition was filed, the court did not have jurisdiction over the subject matter of the petition and the People of Hamilton County did not have an interest in the action. Accordingly, he stated, he intended to exercise his prosecutorial discretion and dismiss the case.

The trial court found that it had jurisdiction since the children and their mother had lived in the county when the original petition had been filed in February 1980. The court also rejected the State’s Attorney’s assertion of prosecutorial discretion, stating that the court has a duty to protect minors.

At this point, the State’s Attorney announced that he would not proceed with the case, or even remain in the courtroom. The court then ordered Downen to be present. The trial judge stated that if the State’s Attorney refused to remain in the courtroom, he would have the sheriff compel his attendance. When Downen failed to return after a 10-minute recess, the judge directed a sheriff’s deputy to bring him into court. In court, Downen stated for the record that he was present under duress and would neither present evidence nor participate in the proceedings. The next day the trial court refused to reconsider its denial of the State’s motion to dismiss. The court decided not to require the State’s Attorney’s physical presence in the courtroom, although he still remained a party to the proceedings.

On July 16, 1981, a hearing was held on a petition for $5,050 in legal fees submitted by James Ford, the court-appointed guardian ad litem. The State’s Attorney argued that the State should not have been involved in the case in the first place, and therefore, the trial court lacked the authority to order Hamilton County to pay for a court-appointed guardian ad litem. However, the court ordered respondent Bonnie Sullivan to pay $150 in guardian ad litem fees, Hamilton County to pay $2,375, and petitioners Donna and Jerrel Sullivan to pay $2,525.

The State first argues that the order requiring payment of legal fees is void because the court was totally lacking jurisdiction in the case in the absence of compliance with the statutory venue rules of the Juvenile Court Act. The State asserts that the Juvenile Court Act allows proceedings only in the county of the minor’s residence, and therefore, proceedings in any county other than the minor’s residence are void for lack of jurisdiction. We must reject the State’s position for three reasons, which will be explained in turn.

First, the county of the minors’ residence is not the only county where venue is proper under the Juvenile Court Act. Under section 2 — 6(1) of the Act, proper venue “lies in the county where the minor resides or is found.” (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 6(1).) The second paragraph of the venue section provides that “[i]f proceedings are commenced in any county other than that of the minor’s residence, the court in which the proceedings were initiated may at any time before or after adjudication of wardship transfer the case to the minor’s residence ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 6(2).) Since the statute expressly provides for venue in the county where the minor “is found” and permits transfer at the court’s discretion to the county of residence, the State’s reading of the venue requirement hardly seems tenable. Ill. Rev. Stat. 1981, ch. 37, par. 702-6(1), (2).

The single case authority cited by the State in support of its argument that venue is appropriate only in the county of the minor’s residence is In re R.D.H. (1979), 68 Ill. App. 3d 299, 385 N.E.2d 922. In that case, a minor residing in McLean County, who had previously been made a ward of the court in Champaign County, was charged in McLean County with committing a delinquent act in that county. After the minor was placed in the Champaign County Detention Center, the circuit court in Champaign County permitted the State’s Attorney of that county to file an amended petition alleging the same delinquent acts set forth in the McLean County petition. After being adjudicated a delinquent, he was committed to the Department of Corrections. On appeal, the court held that the minor’s statutory right to venue was violated by the supplemental petition since no facts showed that the minor resided in Champaign County, or became a resident while in custody there. The reviewing court did not discuss the significance of the “resides or is found” venue language of section 2 — 6(1). In addition, the court also failed to explain the significance of the transfer of venue procedure set forth in section 2 — 6(2) (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 6(2)). Although these two seemingly applicable portions of the venue section of the Juvenile Court Act were not considered, the R.D.H. majority held that the failure to establish that the minor resided in Champaign County required reversal of the trial court’s adjudicatory and dispositional orders.

It is well settled that, in construing a statute, the language should be given its plain and ordinary meaning. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 429 N.E.2d 492.) Further, a “statute should be construed, if possible, so that no word, clause or sentence is rendered meaningless or superfluous.” (City of Mount Carmel v. Partee (1979), 74 Ill. 2d 371, 376, 385 N.E.2d 687, 689; People ex rel. Barrett v. Barrett (1964), 31 Ill. 2d 360, 364-65, 201 N.E.2d 849, 851.) The dissent in R.D.H. is much more faithful to the language of the Juvenile Court Act’s venue requirement. It was noted in that dissent that since the Act expressly designates a procedure for a transfer of venue in paragraph 2 — 6(2), it is reasonable to conclude that once venue is established it continues until the venue transfer procedure is followed. (In re R.D.H. (1979), 68 Ill. App. 3d 299, 302-03, 385 N.E.2d 922 (Trapp, J., dissenting).) That procedure would be a nullity under the holding of the majority.

In the instant case, the minors did reside in Hamilton County when the original petition was filed. Venue was not defeated by their subsequent move to another county since the trial court never transferred venue to the county of the minor’s residence. (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 6(2).) In addition, at the outset of the hearing on March 12, 1981, counsel for the respondents informed the court that the minors were staying with family in Hamilton County and were available to appear in court if necessary. Therefore, the minors could also be “found” in Hamilton County, and venue was established in that manner. (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 6(1).) Accordingly, the record shows that venue was proper under either of two different theories. This determination is consistent with the court’s statement in In re Gonzales (1974), 25 Ill. App. 3d 136, 143, 323 N.E.2d 42, 47, that “the legal residence of the child does not technically affect the jurisdiction of the court, so long as the child is physically present within the State.”

The second flaw in the State’s argument is that even if venue had been improper, the defect would not have deprived the court of jurisdiction. The Illinois Supreme Court has stated that neglect proceedings “may appropriately be labelled ‘civil’ proceedings both in the legal and lay sense of the word.” (In re Urbasek (1967), 38 Ill. 2d 535, 543, 232 N.E.2d 716, 720; see also People v. Davis (1973), 11 Ill. App. 3d 775, 298 N.E.2d 350.) Thus, section 8 — 1 of the Civil Practice Act, now section 2 — 104 of the Code of Civil Procedure, effective July 1, 1982, further supports the trial court’s order. That section states:

“No order or judgment is void because rendered in the wrong venue ***. No action shall abate or be dismissed because commenced in the wrong venue if there is a proper venue to which the cause may be transferred.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 104.)

Consequently, improper venue could not have deprived the court of jurisdiction and therefore the order requiring payment of attorney fees may not be challenged as void on jurisdictional grounds.

The final reason that the State’s jurisdiction argument is without merit is that objections to venue are waived in the absence of a timely motion to transfer. The State’s Attorney of Hamilton County never objected to venue at the trial level and never presented an appropriate motion for change of venue. (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 6(2).) Instead, he sought to dismiss the entire action. By his failure to invoke the procedure for transfer of venue, the State’s Attorney waived any objection to venue which he otherwise might have had. Cf. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 104, formerly Ill. Rev. Stat. 1979, ch. 110, par. 8 — 1; Nemanich v. Dollar Rent-A-Car Services, Inc. (1980), 90 Ill. App. 3d 484, 413 N.E.2d 178 (although the statute and case law speak of waiver of improper venue by “a defendant,” the rule is sufficiently analogous to support a finding of waiver in the case at bar in light of the Juvenile Court Act’s explicit venue transfer procedure).

In sum, the State has not established that venue was improper in the instant case since the minors both resided in Hamilton County when the original petition was filed and could be found there at the time of the second amended petition. Moreover, the Illinois Code of Civil Procedure provides that venue is not jurisdictional in civil cases and any venue objection must be deemed waived in the absence of a timely objection and motion to transfer. Finally,. the logic of these rules under the facts of the case at bar is evident. If we were to accept the State’s argument, respondents in any neglect proceeding could void any juvenile court order simply by moving the minors from the county in which the petition was filed at any time during the course of the proceedings. We cannot allow any such interpretation of the Juvenile Court Act. Accordingly, the State’s argument that the trial court was without jurisdiction must fail.

The State’s second argument is that the trial court acted beyond its constitutional powers by ordering the State’s Attorney to prosecute a Juvenile Court Act petition. The Illinois Supreme Court has recently decided this issue in a manner adverse to the State’s position. (People ex rel. Davis v. Vasquez (1982), 92 Ill. 2d 132.) In Vasquez, the juvenile court sought to have a minor adjudicated a ward of the court under the belief that this was necessary to obtain special educational services for her. Toward that end, the court ordered the State’s Attorney to file a neglect petition on the minor’s behalf. The State’s Attorney subsequently argued that the order was void as violative of the constitutional doctrine of separation of powers (Ill. Const. 1970, art. II, sec. 1).

The supreme court rejected this argument, holding that the decision to file a juvenile petition is unlike the decision whether to initiate a criminal prosecution. Any responsible adult with knowledge of the circumstances may file a petition alleging a minor to be delinquent, dependent, neglected, or a minor in need of supervision (Ill. Rev. Stat. 1981, ch. 37, par. 704 — 1(1)), in order to provide minors increased access to the services of the juvenile court. The person filing the petition is merely an agent of the court and the court does not exceed its constitutional powers merely by directing the filing of a petition concerning a minor through the office of a State’s Attorney. People ex rel. Davis v. Vasquez.

Finding the Vasquez decision to be directly on point, we must reject the State’s second argument that the trial court violated its constitutional powers by ordering the Hamilton County State’s Attorney to pursue a petition under the Juvenile Court Act. Since the juvenile court neither lacked jurisdiction nor exceeded its constitutional authority in pursuing the neglect petition in the case at bar, we cannot conclude that the court’s order pertaining to legal fees in connection with that petition was void. The circuit court of Hamilton County was therefore authorized to direct the county to pay $2,375 for the services of the guardian ad litem on that petition. We affirm the order of the circuit court of Hamilton County which orders the county to pay those guardian ad litem fees.

Affirmed.

KASSERMAN and HARRISON, JJ., concur.