text:
    INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellee, v. ROLLAND E. ADKISSON et al., Defendants (Larry Enderlin, Defendant and Third-Party Plaintiff-Appellant, v. Pekin Insurance Company, Third-Party Defendant-Appellee).
    Third District
    No. 3—83—0223
    Opinion filed January 17, 1984.

      David R. Hultgren, of Stansell, Critser & Whitman, of Monmouth, for appellant.
    Roger L. Williamson, of West, Neagle & Williamson, of Galesburg, for appellee Insurance Company of North America.
    Burrel Barash, of Barash, Stoerzbach & Henson, of Galesburg, for appellee Pekin Insurance Company.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal lies from an order in declaratory judgment by the circuit court of Warren County finding that the insurance companies involved were not liable for the loss sustained under certain exclusionary clauses in their policies.

The unusual factual situation, which is not controverted by the parties, is as follows. Defendant Larry Enderlin was the owner of a stud bull; he and defendant Rolland Adkisson entered into an oral agreement for the services of the bull to Adkisson’s cow herd, the consideration being that Enderlin had the option of buying any calves born to the cows at market price. The record does not disclose the date of the bull’s first mission to the Adkisson herd, but it is stated that on October 13, 1980, Adkisson called Enderlin’s son to inform him that the mission had not been accomplished as to three cows. It was then agreed that the bull would be returned to the Adkisson farm. Enderlin’s son farmed in partnership with him and had authority to make the agreement.

Adkisson then drove his truck to the Enderlin farm and there secured Enderlin’s livestock trailer to the truck. Adkisson was accompanied by his son, and they, together with Enderlin’s son, loaded the bull onto the trailer. Adkisson closed the trailer’s door, but it is admitted that neither he nor his son secured the latch on the door. He then began towing the trailer to his farm, and about a quarter of a mile into the journey he felt the trailer jerk. He looked back and saw the bull lying in the road, having fallen from the trailer through the unlatched door. The bull later died of his injuries.

Enderlin later filed suit in the circuit court of Warren County against Adkisson and recovered a judgment of $14,000 for the loss of the bull.

Adkisson had a general farm liability policy with the plaintiff, Insurance Company of North America (INA), and Enderlin had an automobile policy with Pekin Insurance Company (PIC). INA filed this action to determine coverage under its policy against Adkisson and Enderlin. Enderlin then by a third-party action brought in his insurer, PIC. The trial court concluded after a bench trial on the uncontested facts that the exclusionary clause in each policy was applicable. Enderlin has appealed, and we affirm.

The pertinent clause of the INA policy excluded coverage for: “Property damage to *** property occupied or used by the insured or rented to or in the care, custody, or control of the insured or as to which the insured is for any purpose exercising physical control.”

The pertinent clause of the PIC policy excluded coverage for:

“Property damage to *** property rented to or in the care, custody, control of the insured or as to which the insured is for any purposes exercising physical control.” .

The trial court found the exclusionary clauses unambiguous. Relying on Country Mutual Insurance Co. v. Waldman Mercantile Co. (1981), 103 Ill. App. 3d 39, 430 N.E.2d 606, the court said there is a two-part test to determine whether liability is excluded under such clauses: (1) the property must be within the possessory control of the insured at the time of the loss, and (2) the property must be a necessary element of the work performed. The court found both conditions fulfilled here. We agree.

These clauses appear to be common in one form or another to almost all policies, as found in the reported cases. They are sometimes called “bailment clauses.” In Country Mutual, for example, the loss was of merchandise on consignment to the insured. One court has described a reason for the exclusion:

“One purpose is to prevent the general liability insurer from becoming a guarantor of the insured’s workmanship in his ordinary operations. Failures of workmanship are a normal business risk which the insured is in the best position to prevent. If such risk be transferred to the insurer via general liability provisions, the cost of general liability coverage will be greater. The ‘care, custody or control’ exclusion is designed to avoid such result.” Stewart Warner Corp. v. Burns International Security Services, Inc. (7th Cir. 1975), 527 F.2d 1025,1030.

Enderlin seeks to distinguish Country Mutual, Stewart-Warner, and other cases which have dealt with the “care, custody and control” clause, by arguing that in all those cases the negligent act and the damage coincided, while in the instant case they were separated. His theory is that the negligent act was the failure to latch the trailer door and that this preceded and was separate from the damage which was the fall and consequent death of the bull. He argues that it is not sufficient that the damage occurred while the insured was in possession of the property; he must also have been in possession when the negligent act occurred.

In our opinion we need not reach such a hypothesis under the facts of this case. We believe that the bull came into possession and “in the care, custody and control” of Adkisson, the insured, at the time he closed the trailer door. The latching of the door would be at most only cumulative to his manifestation of possession and control and incidental thereto.

All parties have cited Lakatos v. Prudence Mutual Casualty Co. (1969), 113 Ill. App. 2d 310, 252 N.E.2d 123. We find it has no application to the instant case. In Lakatos some musical instruments belonging to passengers in an automobile were damaged in an accident. The insured was the driver of the car. The exclusionary clause contained not only the familiar “in charge of the insured” language, but in addition “property *** transported by the insured.” The court’s decision was based upon the latter. No such specific language appears in the policies in the instant case.

Enderlin makes an additional argument concerning the theory which has come to be called “reasonable expectations.” He asserts that Adkisson, as a prudent businessman, procured a farm liability policy, and that he, in a like show of prudence, procured an automobile liability policy; that each of them took all possible precautions to protect themselves against losses; yet the insurers are relying on fine print in the contracts to escape liability for Adkisson’s claim.

The doctrine of reasonable expectation has as its principal advocate Professor Keeton. (Keeton, Insurance Law Rights at Variance with Policy Provisions, 83 Harv. L. Rev. 961 (1970); Keeton, Reasonable Expectations in the Second Decade, 12 Forum 275 (1976).) He has defined the doctrine as follows:

“The objectively reasonable expectation of all applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.” (R. Keeton, Basic Text on Insurance Law sec. 6.3, at 351 (1971).)

New Jersey has formulated the doctrine as follows:

“ ‘When members of the public purchase policies of insurance they are entitled to the broad measure of protection necessary to fulfill their reasonable expectations. They should not be subjected to technical encumbrances or to hidden pitfalls and their policies should be construed liberally in their favor to the end that coverage is afforded “to the full extent that any fair interpretation will allow.” *** Where particular provisions, if read literally, would largely nullify the insurance, they will be severely restricted so as to enable fair fulfillment of the stated policy objective.’ ” Linden Motor Freight Co. v. Travelers Insurance Co. (1963), 40 N.J. 511, 525, 193 A.2d 217, 224-25, citing and quoting from Kievit v. Loyal Protective Life Insurance Co. (1961), 34 N.J. 475, 482, 170 A.2d 22, 26.

In the past 20 years, some 17 States have adopted the doctrine in one form or another. However, we note that in nearly every case it has been used as a rule of construction. For example, the Supreme Court of North Dakota stated:

“The invocation of the Doctrine of Reasonable Expectations may not always be appropriate but is when, as here, ambiguity is created by confusingly dissimilar exclusionary language buried in the bodies of two policies ostensibly providing comprehensive farm liability coverage. What the one hand bestows, the other imperceptibly takes away. This kind of leger-demain by draftsmanship, the lack of notice to the buyer of the policy exclusions, the inconspicuous placement of the exclusionary clauses in the contracts, their obscure relationship to each other, and the reasonable belief of the insured that he was securing general liability coverage for his ‘normal farming operations’ all foster coverage expectations which must be fulfilled in this instance.” Mills v. Agrichemical Aviation, Inc. (N.D. 1977), 250 N.W.2d 663, 673.

It is noteworthy that in Mills only one justice joined in the principal opinion and that three concurred specially. We are not disposed to engraft such a novel doctrine upon the law of Illinois.

First of all, it has been held that the “care, custody and control” clauses are not ambiguous. (Maryland Casualty Co. v. Holmsgaard (1956), 10 Ill. App. 2d 1, 133 N.E.2d 910.) Therefore, the reason for the rule fails. Secondly, apart from the question of ambiguity, if such a principle is to become the law of Illinois generally, it is not the province of this court so to say. We have found no Illinois case in which the doctrine of reasonable expectations was even discussed. Furthermore, Enderlin was not a party to Adkisson’s insurance contract. We are unable to see how Enderlin’s reasonable expectations were any part of it.

Enderlin has argued that the concept of adhesion contracts in relation to reasonable expectations. We are aware of only one case in which a court has ignored the explicit language of a contract using a concept of adhesion. In Star Finance Corp. v. McGee (1975), 27 Ill. App. 3d 421, 326 N.E.2d 518, a debtor sought vacation of a judgment by confession. The debtor maintained that she was unaware of the “confession clause.” The trial court denied the motion to vacate, but the appellate court reversed, holding that whether a contract is one of adhesion is a question of fact and the record would not justify a conclusion on this point either way. The court further stated that the contract was on a standardized form, prepared by the creditor and that the debtor’s affidavit that she did not understand the “confession clause” was uncontradicted. “If that be so, she could not intelligently and knowingly waive her right to pretrial notice.” 27 Ill. App. 3d 421, 426, 326 N.E.2d 518, 522.

Illinois courts have spoken of adhesion contracts in other situations. (See American Food Management, Inc. v. Henson (1982), 105 Ill. App. 3d 141, 434 N.E.2d 59; Eisele v. Ayers (1978), 63 Ill. App. 3d 1039, 381 N.E.2d 21.) However, we know of no decision holding an insurance contract to be one of adhesion. In fact, quite the opposite is true. Our courts have consistently held that insurance contracts are to be interpreted as any other ordinary one. Seeburg Corp. v. United Founders Life Insurance Co. (1980), 82 Ill. App. 3d 1034, 403 N.E.2d 503; Rivota v. Kaplan (1977), 49 Ill. App. 3d 910, 364 N.E.2d 337; Bituminous Casualty Corp. v. North River Insurance Co. (1977), 46 Ill. App. 3d 654, 361 N.E.2d 60.

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

Affirmed.

GREEN and MILLER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER JUSTICE BARRY,

license: Public Domain

text:
    LARRY CLARKSON, Plaintiff-Appellant, v. WILLIAM WRIGHT, Defendant-Appellee.
    Third District
    No. 82—659
    Opinion filed January 17, 1984.

      BARRY, J., dissenting.
    Robert W. Burnett, of Lester Berry Smith, Ltd., of Peoria, for appellant.
    Duncan B. Cooper III and Philip R. Meisinger, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Peoria County entered upon the return of a jury verdict for the plaintiff-appellant, Larry Clarkson, and against the defendant-appellee, William Wright, for $3,620 with an additional finding of 50% comparative negligence on the part of Clarkson.

On February 28, 1980, Clarkson was driving his employer’s automobile north on Monroe Street in Peoria. As he was driving, he approached the intersection of Monroe and Hayward streets. Clarkson’s lane of traffic was not regulated by a traffic signal and was not required to stop. There was a stop sign on Hayward. Wright was driving a truck westbound on Hayward and stopped at the intersection. He pulled forward on to Monroe, saw Clarkson’s car coming towards him, and stopped while in Clarkson’s lane of traffic. Clarkson’s car then collided with Wright’s truck. The investigating police officer issued Wright a citation for failure to yield the right of way, to which the defendant subsequently pled guilty. Clarkson suffered various injuries as a result of the collision. He filed suit seeking damages for the injuries which he alleged were the result of the defendant’s negligence. Following a jury trial, defendant was found negligent. In addition the jury found the plaintiff to be 50% negligent and the jury award was therefore reduced by one half. On appeal, plaintiff raises two issues: (1) whether the trial court erred in refusing to give certain of plaintiff’s tendered jury instructions; and (2) whether the trial court erred in refusing to grant plaintiff’s motion for a new trial as to damages only or, in the alternative, a motion for a new trial as to all issues. We affirm.

At trial, plaintiff tendered three instructions, Nos. 27, 33, and 34, regarding the effect of the violation of a statute on the plaintiff’s theory of the case. All three instructions were rejected by the trial court. Plaintiff contends that failure to give any of these instructions constitutes reversible error. We disagree.

While plaintiff was entitled to give the jury instructions regarding the effect of a statutory violation, the instructions tendered were not applicable to the circumstances of the case. Instruction No. 27 was based on a statute concerning movement of vehicles after passing a yield right of way sign. Since the accident in this case occurred after the defendant passed a stop sign, this instruction was not relevant.

Instruction No. 33 dealt with an intersection not controlled by traffic signs. Since there was a stop sign in the case at bar, this instruction is also inapplicable. Inasmuch as these instructions were not applicable to the circumstances of the case, their presentation to the jury would have been confusing and would have introduced irrelevant issues into the case. We find no error in the trial court’s rejection of these instructions.

Plaintiff’s instruction No. 34 was also refused by the trial court, which instead issued defendant’s instruction No. 8 to the jury. The trial court’s reason for doing so was that, in its judgment, plaintiff’s instruction did not adequately instruct the jury on the issues of the case dealing with plaintiff’s negligence. It is within the trial court’s discretion to determine which instruction shall be given and the exercise of discretion will not be disturbed on review unless it has been clearly abused. (Schmidt v. Blackwell (1973), 15 Ill. App. 3d 190, 304 N.E.2d 113.) We see no such abuse of discretion here.

Plaintiff’s second issue is whether the trial court erred in refusing to grant plaintiff’s motion for a new trial on the issue of damages only or in the alternative, his motion for a new trial on all the issues. He bases his contention that the trial court erred in refusing to grant his motion on three arguments.

First, he contends that evidence concerning plaintiff’s failure to use a seat belt was improperly admitted. Evidence regarding the nonuse of a seat belt may be introduced for its relevance in mitigating damages, although it may not be introduced on the question of liability or fault. (Mount v. McClellan (1968), 91 Ill. App. 2d 1, 234 N.E.2d 329.) To lay a proper foundation for introducing this evidence, the defendant must establish (1) the availability of a seat belt and (2) a causal connection between the failure to use the seat belt and the injuries sustained. (Dudanas v. Plate (1976), 44 Ill. App. 3d 901, 358 N.E.2d 1171.) Plaintiff contends neither requirement was met. We disagree.

With respect to the'availability of the seat belt, there was uncontested evidence that seat belts were installed in plaintiff’s car. However, plaintiff testified that on the last occasion on which he had attempted to use the seat belt prior to the collision, it would not work. Therefore, plaintiff argues, there was not an available seat belt. We believe plaintiff’s testimony was not sufficient to establish nonavailability of a seat belt. Failure of the seat belt to work at some time in the past is not sufficient to prove that on the day of the accident the seat belt did not work. Had the plaintiff established the defect in the seat belt and that he had not had a chance to remedy the problem, there might be a different result. Such is not the situation here, however. We do not know why the seat belt did not work in the past nor do we know it did not work on the day of the accident. We believe evidence of the installation of a seat belt is sufficient to establish the availability of the seat belt in the absence of countervailing evidence regarding nonworkability of the seat belt.

The requirement of proving a causal connection between the failure to use the seat belt and the injuries sustained was also met. The evidence deposition of Dr. Corley, a plastic and reconstructive surgeon, stated that seat belts were helpful in reducing the type of injuries plaintiff suffered. Dr. Van Etten, a seat-belt safety expert, testified that if plaintiff had been wearing a seat belt, he would not have sustained the injuries he did in the accident. This is sufficient evidence of causality. Since both requirements for laying a proper foundation were met, the evidence regarding nonuse of the seat belt was properly admitted.

Plaintiff’s second argument is that the court erred in refusing to give plaintiff’s instruction No. 32 to give the jury guidance on what effect was to be given to evidence introduced by defendant of prior and subsequent injuries suffered by plaintiff. We find no error here. Plaintiff’s proposed instruction covered the same matters already covered by other instructions. As a result, the trial court could properly refuse the instruction. Kofahl v. Delgado (1978), 63 Ill. App. 3d 622, 380 N.E.2d 407.

Plaintiff’s final argument is that the verdict as to damages is contrary to the manifest weight of the evidence. There was evidence of lost wages of $3,120 and medical bills of $3,897. The jury determined the damages to be $3,620. Plaintiff claims this verdict is not supported by the evidence and the determination is obviously inadequate. We disagree.

While plaintiff’s special damages are higher than the determination, there are other factors to be considered. First, there was evidence of nonuse of the seat belt. There was testimony that had the seat belt been used, plaintiff’s injuries would have been lessened. As discussed earlier, nonuse of a seat belt may be taken into account in mitigating damages. Second, there was evidence introduced regarding prior and subsequent injuries. This could also have affected the jury’s determination.

The amount of a verdict is largely discretionary with the jury and will not be disturbed unless it is against the manifest weight of the evidence. In view of the evidence in this case, we do not find the determination to be against the manifest weight of the evidence.

For the abovementioned reasons, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SCOTT, J., concurs.

JUSTICE BARRY,

dissenting:

I disagree with my colleagues.

The plaintiff on appeal contends that the trial court erred in refusing to grant a new trial because, inter alia, the defendant failed to establish the foundation for admitting evidence of the plaintiff’s nonuse of a seat belt. I agree with the plaintiff on this issue and would hold that a new trial should have been granted.

Following the general guidance of Mount, we said in Eichorn v. Olson (1975), 32 Ill. App. 3d 587, 593, 335 N.E.2d 774, 778, regarding jury instructions on the nonuse of seat belts:

“In order to be entitled to such an instruction, the defendant must prove, by competent evidence, a causal connection between the plaintiff’s nonuse of an available belt and the injuries and damages sustained.”

Therefore the two-fold foundation to be satisfied for the introduction of such evidence, and as subsequently recognized by Dudanas (plaintiff’s expert specified how wearing of an available seat belt would limit certain of the injuries), and Kassela v. Stonitsch (1978), 57 Ill. App. 3d 817, 373 N.E.2d 608 (any reference to seat belts deprived plaintiff, who did not know whether he was wearing his seat belt, of a fair trial — and was reversible error), is, as indicated by the majority here, “(1) the availability of a seat belt and (2) a causal connection between the failure to use the seat belt and the injuries sustained.”

Obviously the availability of the seat belt must be established first. The party choosing to use the evidence, as in any case, bears the burden of proof — here, the defendant. The quantum of evidence needed to establish availability must be at least a preponderance, the general civil standard. It was not sufficient merely to show that the car was equipped with a belt in this case. The defendant was also required to prove by a preponderance of the evidence that the belt was usable if it was to be considered “available.” My thorough review of the record reveals that the plaintiff acknowledged that there was a seat belt in the car, he was not wearing it on the day of the accident, but testified that the last time he attempted to use the seat belt it did not function. The only other testimony regarding availability of the seat belt was from the defendant’s engineer who indicated that the car was equipped with a seat belt, but that he did not enter the vehicle to determine anything more. Therefore, the only “availability” evidence was that the car was equipped with a seat belt, but when the plaintiff last attempted to use it, it was inoperable.

The lack of evidence that the seat belt was, in fact, usable, defeated the “availability” prong of defendant’s foundation for presenting the “mitigation defense.” Consequently, there was no need for the plaintiff to rebut defendant’s attempt to lay the foundation, and the trial court should have allowed the plaintiff to prevail in his attempts to suppress that “defense.” There is no duty for any party to affirmatively prove compliance with a nonexistent duty, whether that duty be expressed in terms of due care for the purposes of liability or duty to mitigate damages, as technically was at issue in this case. The concept of “availability,” at least in my view, is not interchangeable with “installation.” Failure to rebut plaintiff’s testimony that the seat belt did not operate destroyed any presumption that might have been acceptable — that the seat belt installed, was a seat belt “available,” i.e., installed, workable and useable. As I see it, the majority has effectively created a negative burden for the plaintiff to disprove or negate the defendant’s attempt to show “availability,” and I cannot agree with my colleagues when they say:

“We believe plaintiff’s testimony was not sufficient to establish nonavailability of a seat belt. Failure of the seat belt to work at some time in the past is not sufficient to prove that on the day of the accident the seat belt did not work. Had the plaintiff established the defect in the seat belt and that he had not had a chance to remedy the problem, there might be a different result. Such is not the situation here, however. We do not know why the seat belt did not work *** on the day of the accident. We believe evidence of the installation of a seat belt is sufficient to establish the availability of the seat belt in the absence of countervailing evidence regarding nonworkability of the seat belt.”

The majority has thus shifted the defendant’s burden of persuasion in this case to the plaintiff and reached, as did the trial court, the erroneous conclusion that the “mitigation defense” could be presented to the jury. This resulted in an unfair trial (see Kassela). It is apparent to me that admission of the evidence of the plaintiff’s nonuse of the seat belt in this case controlled the jury’s verdict. The unrebutted evidence of special damages for the plaintiff’s fractured wrist and serious facial lacerations incurred was $2,509 and the unrebutted evidence of the plaintiff’s lost wages was $3,120. If evidence of the non-use of the seat belt had been refused the damages awarded by the jury would have had to have been at least $5,629. (Thereafter reduced by 50% based upon the jury’s determination of the parties’ comparative negligence.) Obviously the unreduced award of $3,620 (which translated into an award of only $1,810 after application of the reduction for the plaintiff’s comparative negligence) proves that the seat belt evidence was used to “mitigate” damages here.

I would reverse and remand this case for a new trial.

      Although neither party has asked us to reconsider the judicially-created seat belt “defense,” I have grave doubts that under the law of comparative negligence, which has come into existence since Mount, Dúdanos, Kassela and other Illinois cases, juries can be expected to dismiss liability from their minds upon considering “mitigation of damages,” particularly where, as here, there is no specific medical evidence identifying which injuries may have been reduced or eliminated by the use of a seat belt. In my opinion the time has come to reevaluate principles underlying the admission of seat belt evidence. More than 15 years have passed since Mount. Extensive technological developments, studies pro and con, and the relative values of various systems of restraint should be considered now. Our supreme court has never spoken to the issue. And the legislature has only recently declared our public policy and has limited the mandated use of seat belts to infants only. Perhaps the onset of comparative negligence dictates that Illinois courts should be reviewing this area of the law taking into consideration the extensive body of authority in sister jurisdictions which have considered the admissibility of evidence of nonuse of seat belts given that the majority of those courts have concluded that such evidence should not be permitted under circumstances as presented in the case before us. See, e.g., Amend v. Bell (1977), 89 Wash. 2d 124, 570 P.2d 138; Fischer v. Moore (1973), 183 Colo. 392, 517 P.2d 458; Birtton v. Doehring (1970), 286 Ala. 498, 242 So.2d 666; Miller v. Haynes (Mo. App. 1970), 454 S.W.2d 293; Miller v. Miller (1968), 273 N.C. 228, 160 S.E.2d 65; Toplin v. Clark (1981), 6 Kan. App. 2d 66, 626 P.2d 1198; Nash v. Kamrath (1974), 21 Ariz. App. 530, 521 P.2d 161; Stallcup v. Taylor (1970), 62 Tenn. App. 407, 463 S.W.2d 416; Romankewiz v. Black (1969), 16 Mich. App. 119, 167 N.W.2d 606. But cf. Gibson v. Henninger (1976), 170 Ind. App. 55, 350 N.E.2d 631 (stating Indiana law allows for admitting evidence of plaintiff’s nonuse of a seat belt on the issue of contributory negligence); Spier v. Barker (1974), 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (discussed extensively in Dudanas to support conclusion that nonmedical expert’s testimony was sufficient to satisfy causal connection prong of foundation).


author: JUSTICE SCOTT

text:
    PATRICK HAILEY, Plaintiff-Appellant, v. INTERSTATE MACHINERY COMPANY et al., Defendants-Appellees.
    Third District
    No. 3-83-0407
    Opinion filed January 19, 1984.
    Law Offices of Kurt A. Leinweber, Ltd., of Joliet, for appellant.
    James R. Fabrizio, of Garrison, Fabrizio and Hanson, Ltd., of Joliet, for appellee Buffalo Forge Company.
    Linda Unger, David L. Joslyn, and Peter V. Bustamante, all of Conklin & Adler, Ltd., of Chicago, for appellee Interstate Machinery Company.
   JUSTICE SCOTT

delivered the opinion of the court:

The issue raised by this appeal is whether the use of fictitious names in a complaint timely filed can toll the statute of limitations until the proper party can be identified and named as a defendant.

The plaintiff, Patrick Hailey, was injured at work while operating a sheet metal roller on May 6, 1980. Exactly two years later, on May 6, 1982, the last day for filing a complaint, the plaintiff instituted an action against John Roe, unknown designer of sheet metal roller and Jane Doe, unknown manufacturer of said sheet metal roller. With the action commenced, the plaintiff used the subpoena power to obtain from his employer the names of the defendants mentioned in the complaint under the fictitious names of John Roe and Jane Doe. Those defendants, Interstate Machinery Company and Buffalo Forge Company filed motions to dismiss in the circuit court of Will County. The circuit court granted the motions to dismiss.

The plaintiff appeals, urging that the doctrine of misnomer applies and inter alia relies upon the statutory provision of our Code of Civil Procedure relating to the misnomer of parties. (See Ill. Rev. Stat. 1981, ch. 110, par. 2 — 401.) Plaintiffs reliance upon this statutory provision, however, is misplaced. Our reviewing courts have held that the misnomer rule is narrow and applies only when an action is brought and served upon a party intended to be made a defendant (thus giving actual notice of the lawsuit against the real party in interest), but the process and complaint do not refer to the person by his correct name. See Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319.

The plaintiff attempts to rely as well on a statutory provision which permits amended pleadings to relate back to the date of filing the original pleading. (See Ill. Rev. Stat. 1981, ch. 110, par. 2— 616(d).) This reliance is also misplaced in that the relied-upon statutory provision is not applicable to the facts in the instant case since service of summons upon the correct defendant is required, albeit in the wrong capacity or as agent of another.

An enlightening discussion relating to the use of unknown or fictitious parties is found in 59 Am. Jur. 2d Parties sec. 17 (1971). The rule throughout this discussion provides that jurisdiction to sue unknown or fictitious persons must be obtained pursuant to some express statute. Since no such statute exists in our State, the circuit court of Will County correctly dismissed the lawsuit against the defendants, Interstate Machinery Company and Buffalo Forge Company. The judgment of dismissal should be affirmed.

Affirmed.

BARRY and HEIPLE, JJ., concur.


author: JUSTICE BARRY JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY A. LAMBERT, Defendant-Appellant.
    Third District
    No. 3—83—0025
    Opinion filed January 19, 1984.
    HEIPLE, J., dissenting.
    Michael E. Brandt, of Peoria, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Timothy A. Lambert, was charged and convicted of one count of indecent liberties with a child. The indictment charged that he “performed an act of deviate sexual conduct upon ***, a child under the age of 16 years, in that he placed his mouth upon the sex organ of [the child] in violation of par. 11 — 4(a)(2)” of the Criminal Code of 1961. The defendant appeals his conviction on grounds that the State failed to prove the corpus delicti. We reverse.

The State presented the testimony of two witnesses. The first witness was Debbie Carlson, the mother of the victim. At the time in question, the defendant, who was 23 years old, was living as a permanent boarder with the Carlson family. The family consisted of: Mr. Carlson; a daughter; the victim, a four-year-old boy; and herself. Mrs. Carlson indicated that on May 26, 1982, the defendant accompanied the victim and his family to a movie. When they returned home, Mrs. Carlson gave the victim his pajamas. She then observed the victim go downstairs to the basement. She also observed the defendant go to the basement, where the defendant slept while living with the Carlsons. The victim slept in the basement with the defendant. Approximately two weeks later, Mrs. Carlson observed a pinkish color and swelling around the victim’s rectum.

The second witness presented by the State was Peoria Police Officer Conrad Hlavacek. Officer Hlavacek testified that when he observed the victim on June 8, 1982, at Proctor Hospital, he noticed that the victim’s anus had a light reddish cast to it, but that since he had no medical training he could not say that what he observed was unusual. The officer also testified to statements given by the defendant on June 8 and 9, 1982. The defendant admitted to Hlavacek that on the date in question, May 26, he went downstairs with the victim. The defendant also admitted to fondling the victim’s penis and buttocks, sucking on the minor’s penis, and rubbing his penis against the minor’s buttocks. The defendant denied that he penetrated the victim’s anus. (He was not charged with any offense involving the victim’s anus.)

On cross-examination, Officer Hlavacek testified that he took two statements from the defendant prior to the statement testified to on direct examination. In both the earlier statements the defendant denied any sexual activity. According to the statement testified to there was no other sexual activity with the minor before or after the incident of May 26. Following Officer Hlavacek’s testimony, the State rested.

The defendant presented no evidence. The jury found the defendant guilty of indecent liberties as charged, and the jury instructions were so limited. The defendant was sentenced to an eight-year term of imprisonment.

Specifically, the defendant was convicted of one count of indecent liberties “in that he placed his mouth upon the sex organ of the victim.” On appeal, the defendant argues that the State failed to prove the corpus delicti of that offense.

The relationship between a defendant’s confession and proof of the corpus delicti was set forth in People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861. In Willingham, the Illinois Supreme Court, after stating:

“The corroboration requirement stems from an attempt to assure the truthfulness of the confession and recognizes that the reliability of a confession ‘may be suspect if it is extracted from one who is under the pressure of a police investigation ***.’ ” 89 Ill. 2d 352, 359, 432 N.E.2d 861,

cited to People v. Perfecto (1962), 26 Ill. 2d 228, 186 N.E.2d 258, and stated:

“ ‘ “The true rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. ***” ’ ” 89 Ill. 2d 352, 359, 432 N.E.2d 861.

Mr. Justice Thomas J. Moran speaking for the Willingham court then concluded that to establish the corpus delicti:

“[Tjhere must be some evidence, apart from the confession, demonstrating that a crime occurred. Once the required showing has been made, the circumstances along with the confession . may be considered in determining whether the corpus delicti is sufficiently proved (as well as the guilt of the defendant).” (Emphasis added.) 89 Ill. 2d 352, 360, 432 N.E.2d 861.

In the instant case, the only evidence of sexual activity introduced pertained to the child’s presence in the basement and the light redness and, according to the victim’s mother, some swelling around the child’s rectum. While it is true that this evidence corresponds generally with the circumstances of the confession, we cannot say, that this evidence “demonstrates that a crime occurred.”

The child’s anal redness was not observed until almost two weeks after the date the defendant and victim allegedly slept together. There was no evidence of a complaint by the child to his mother. There was no evidence indicating sexual activity involving the child’s penis. There was no evidence presented as to the reason Mrs. Carlson brought her son to the hospital. The State did not present medical evidence as to the possible causes of the condition of the child’s rectum. There was no confession to support the condition that was observed. In short, the State failed to present evidence which established any relationship between the victim’s condition on June 8 and the commission of a crime which was charged by indictment to have occurred on May 26.

The quantum of evidence introduced in the case at bar to corroborate the defendant’s confession is well below that upheld by the court in Willingham. Willingham was convicted of attempt (armed robbery). The evidence included that the victim in Willingham was shot, and subsequently died. The defendant testified he was in the victim’s apartment at the time. He confessed that he planned with two other men to rob the victim of cocaine. In addition to Willingham’s confession, the State introduced evidence that the defendant borrowed a gold Camaro which apparently was the one seen in the crime scene parking lot shortly before the crime occurred. The State presented testimony that the victim told the police he had been shot by two men wearing stocking masks. A search of the Camaro revealed a nylon stocking and men’s pants stained with blood. Cocaine was found in the victim’s apartment. Suffice to say the evidence in Willingham which demonstrated that the crime of armed robbery had occurred far exceeded the evidence of any crime in the instant case. Here we have only an opportunity two weeks earlier and otherwise unexplained light redness and the alleged swelling.

We find the instant case to be most analogous to the cases of People v. Lueder (1954) 3 Ill. 2d 487, 121 N.E.2d 743, and People v. Hougas (1968), 91 Ill. App. 2d 246, 234 N.E.2d 63. In both Lueder and Hougas, the defendants were convicted of arson based solely on the evidence of the defendant’s confessions and the fact that a building had burned. The courts in both cases reversed the convictions, ruling that the lack of evidence that the fires were caused by criminal acts resulted in insufficient corroboration of each confession.

Just as a building may burn for any number of reasons unrelated to a criminal act, a child may develop swelling and redness on his body for many reasons. In the instant case, the lack of evidence that the condition of the child’s anus was caused by a criminal act leads us to conclude that the defendant’s confession was not sufficiently corroborated. The evidence that on one occasion, two weeks earlier, the defendant and the victim slept in the same room does not provide the missing proof of the corpus delicti.

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

Reversed.

SCOTT, J., concurs.

JUSTICE HEIPLE,

dissenting:

The facts in this case are clear and admit of only one conclusion; the defendant took indecent liberties with a four-year-old child. Casting aside euphemisms, the jury found that the defendant was a child molester. Yet the majority has gone out of its way to set him free. This result is both outrageous and indefensible. I dissent.

The defendant argues that his conviction must be reversed because his confession was not supported by sufficient independent proof of the corpus delicti. The majority accepts this argument and cites People v. Willingham (1982), 89 Ill. 2d 352, as the controlling case. I agree that Willingham controls, but I disagree with the majority’s application.

The rule announced in Willingham is succinctly stated:

“In summation, if *** independent evidence tends to prove that an offense occurred, then such evidence, if corroborative of the facts contained in the confession, may be considered along with the confession in establishing the corpus delicti. In such event, the independent evidence need not establish beyond a reasonable doubt that an offense did occur.” (89 Ill. 2d 352, 361.)

The independent evidence in this case consists of the testimony of Mrs. Carlson, the victim’s mother, and Officer Conrad Hlavacek. Mrs. Carlson testified that on the night of May 26, 1982, she had given her son his pajamas and observed him go downstairs to the basement to sleep. She also saw the defendant, who usually slept in the basement, follow the victim downstairs. Thirteen days later when Mrs. Carlson had occasion to examine her son, she noticed redness and swelling around the victim’s rectum. This prompted her to call the police. Officer Hlavacek, who later arrested the defendant, also noticed a reddish color around the victim’s rectum. This evidence was sufficient to compel Officer Hlavacek to pick up the defendant for questioning on the following day after which the defendant confessed to the crime.

To satisfy the Willingham test, this evidence need only tend to establish that an offense was committed. It need not be proven beyond a reasonable doubt nor even by a mere preponderance of the evidence.

The majority dismisses the evidence by arguing that the victim’s symptoms could have been caused by a number of things other than criminal conduct. However, when the supreme court requires only that the evidence tend to prove that a crime was committed, this circumstantial evidence cannot be so easily written off.

The evidence here tends to show that the defendant had anal contact with the victim. There was an opportunity for such contact when the victim went into the basement with his pajamas to sleep with the defendant. Less than two weeks later, the victim’s mother noticed some unusual discoloration and swelling around the victim’s rectum. A combination of these two events points to the conclusion that the child was sexually molested and the defendant was the perpetrator. This conclusion is not absolute, but the evidence certainly tends toward it and that is enough.

The second part of the Willingham test requires that the independent evidence corroborate the facts contained in the confession. The majority admits that the evidence in this case corresponds with the defendant’s confession wherein he admits that he rubbed his penis against the victim’s buttocks. Although the defendant denied penetrating the victim’s anus, surely the symptoms observed by Mrs. Carlson and Officer Hlavacek could have been caused by an attempt to do so.

The majority finds that the instant case is similar to the cases of People v. Lueder (1954), 3 Ill. 2d 487, and People v. Hougas (1968), 91 Ill. App. 2d 246. In my opinion, they are distinguishable.

In both cases, the defendants had been convicted of arson. The convictions were reversed because there was no evidence, apart from the defendants’ confessions and the burned buildings, which indicated that the defendants may have caused the fires.

Here, there is evidence tending to show that the victim was molested and evidence which tends to show that the defendant was responsible. Furthermore, this evidence corroborates the facts contained in the defendant’s confession. Cause and effect were adequately linked up. No so in the cases cited by the majority.

I find that the Willingham test has been satisfied. So did the judge and jury in the court below. But for the majority, it is not sufficient that after sleeping with the defendant, the victim’s body bore the marks of the defendant’s deviant activities nor is it sufficient that the defendant admitted molesting the child. The majority wants proof greater than that required by our supreme court. In doing so, the majority announces a rule which allows a pervert to molest a child anytime he pleases so long as it is in private and the child is too young to realize that he has been the victim of a criminal act and testify in court.

It is difficult to see how we can expect society to place its trust in a judicial system which repeatedly seizes upon the most trifling technicalities in order to put a confessed and convicted criminal back onto the streets. I cannot concur with this result.


author: PRESIDING JUSTICE STOUDER

text:
    RADIO PAGING OF ILLINOIS, INC., Appellants, v. HOUSER COMMUNICATIONS, INC., Appellees.
    Third District
    No. 3—83—0075
    Opinion filed January 12, 1984.
    Charles W. Kohr, of Littler, Kohr & Howard, of Peoria, for appellant.
    John C. Mulgrew and Jeffrey Alan Ryva, both of Davis & Morgan, of Peoria, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from an order by the circuit court of Peoria County dismissing the complaint of the plaintiff, Radio Paging of Illinois, Inc., requesting injunctive relief and damages from the defendant, Houser Communications, Inc., for operating as a public utility without a certificate of public convenience and necessity.

On September 9, 1980, the plaintiff filed a verified petition with the Illinois Commerce Commission seeking a certificate of public convenience and necessity to construct, operate and maintain a two-way radio communications service and a one-way radio paging service within Peoria County, Illinois.

A petition for leave to intervene in the Commission proceedings was filed by the defendant claiming that in 1963 it had been issued a certificate of public convenience and necessity to operate a radio communications service within the Peoria County area. Thereafter,' the defendant was allowed to enter its appearance before the Commission and participate as a party in those proceedings.

On December 2, 1981, the Commission issued a certificate to the plaintiff to provide one-way paging and two-way radio communication services within Peoria County. The defendant appealed the Commission’s decision to the circuit court of Peoria County, case No. 82MR381, pursuant to the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.) and said court dismissed the defendant’s appeal on the grounds that the defendant lacked standing to intervene in the Commission proceedings.

In the complaint filed in the instant case on October 28, 1982, the ■ plaintiff alleged that the defendant operated his business without a certificate of public convenience and necessity. Consequently, the plaintiff sought preliminary and permanent injunctions in order to prevent the defendant from operating his business illegally, along with damages and attorney fees.

Upon the motion of the defendant, the court dismissed the plaintiff’s complaint on December 28, 1982, stating that the question of whether or not the defendant has or should have a certificate of public convenience and necessity should be determined in the first instance by the Illinois Commerce Commission. The court’s order of dismissal further stated that the decision of the circuit court of Peoria County in case No. 82MR381 was beyond the jurisdiction and power of that court and, thus, was not binding in any subsequent proceeding. Subsequently, this court reversed the trial court’s order of dismissal in case No. 82MR381 and remanded the case to the trial court in Houser Communications, Inc. v. Illinois Commerce Com. (1983), 120 Ill. App. 3d 640.

The issue which the plaintiff has raised on review is whether the trial court erred in the dismissal of the complaint. We find that the trial court did not err in this respect.

As stated previously, this court reversed the trial court’s decision in case No. 82MR381, Houser Communications, Inc. v. Illinois Commerce Com. (1983), 120 Ill. App. 3d 640, holding that only two-way radio communication services were within the subject matter jurisdiction of the Illinois Commerce Commission, and not one-way radio paging services; and that Houser did have standing to appeal the Commission’s order to the circuit court. Thus, the case was remanded to the trial court for further proceedings relative to the appeal of the Commission’s order granting Radio Paging a certificate to conduct a two-way radio communications service.

The question of whether or not the previous order on the defendant’s lack of standing is binding in subsequent proceedings is not at issue due to this court’s determination that the defendant did have standing to intervene in the Commission proceedings concerning the granting of a certificate to the plaintiff. In addition, the finding that the Commission has subject matter jurisdiction over two-way radio communication services only, having the power to issue a certificate for that type of activity, leaves the controversy concerning the propriety of the issuance of a certificate to the plaintiff in this respect at issue.

The Commission has been given the power to rescind, alter or amend any order made by it (Ill. Rev. Stat. 1981, ch. 1112/3, par. 71) and in Black Hawk Motor Transit Co. v. Illinois Commerce Com. (1947), 398 Ill. 542, 76 N.E.2d 478, the supreme court stated that the factual determination needed to support the exercise of such a power was a question for the Commission in the first instance.

Contrary to the assertion of the plaintiff, the issue involved here is not solely a legal one. A factual dispute is involved of whether the defendant holds a certificate of public convenience and necessity and, if so, whether the defendant fraudulently procured such certificate.

Due to the complex nature of this dispute and the fact that the Commission’s statutory grant of power includes the resolution of this type of matter, we believe that the Commission is better suited to determine this issue in the first instance. Therefore, the trial court did not abuse its discretion in dismissing the complaint.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY and HEIPLE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY L. LOBDELL, Defendant-Appellant.
    Third District
    No. 3—83—0218
    Opinion filed December 29, 1983.

      Robert Agostinelli and Sue Augustus, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Ricky L. Lobdell, appeals from his convictions of rape, home invasion, and residential burglary. (Ill. Rev. Stat. 1981, ch. 38, pars. 11 — 1(a), 12 — 11, 19 — 3(a).) He was sentenced to concurrent extended terms of 50 years and 30 years of imprisonment for rape and home invasion, and to eight years’ imprisonment for residential burglary, said sentence to run consecutively to the sentence for rape. We affirm.

On appeal, the defendant contends that his burglary conviction must be vacated and his cause remanded for resentencing, because it arose from the same act of entry which constituted the basis for the home invasion. The defendant also asserts that his sentence on all convictions must be vacated and his cause remanded for resentencing, because the trial court improperly considered as an aggravating factor that the defendant received compensation for committing the crimes of rape, home invasion, and residential burglary.

On October 24, 1982, at approximately 8:30 p.m., a brick was thrown through the bedroom window of 61-year-old Beulah Mosher. Mosher then saw the defendant standing in her bedroom doorway. The defendant pulled Mosher over to the front door, unlocked it, and let in his companion. The defendant then tore off Mosher’s pajamas and raped her.

After the defendant finished his attack on Mosher, the second man raped her. During the second attack the defendant hit Mosher in the face, choked her, cut her hair, demanded money, and then ransacked the house. After the two men left, Mosher noticed that $300 to $350 and five rings had been taken. On October 25, 1982, Mosher identified the defendant in a photographic display. On October 26, 1982, the day the defendant was arrested, Mosher picked the defendant out of a line-up.

As to the first issue, the defendant contends that his burglary conviction must be vacated and his cause remanded for resentencing because it arose from the same act of entry which constituted the basis for the home invasion. If, in fact, the same physical act underlies the two convictions, the defendant is correct in his assertion that one conviction must be vacated. People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273; People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.

The home invasion statute under which the defendant was convicted states in relevant part that:

“A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and *** (2) Intentionally causes any injury to any person or persons within such dwelling place.” (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a).)

The residential burglary statute states that:

“A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.” Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3(a).

The defendant argues that convictions for home invasion and residential burglary both require entry as a physical act. The defendant contends, however, that the evidence at trial showed that there was only one act of entry into the victim’s home which served as the basis for both the home invasion and burglary convictions. The defendant acknowledges that residential burglary is not a lesser included offense of home invasion. However, he asserts that the concepts of one-act one-crime and lesser included offenses are not synonymous and that his convictions for residential burglary and home invasion violate the one-act one-crime concept.

The State argues in response that the defendant misinterprets the concept of “act” for purposes of a one-act one-crime analysis when he claims that the same physical act was the basis for both his home invasion and residential burglary convictions. The State maintains that unlawful entry itself is not sufficient to prove either home invasion or residential burglary; it establishes neither crime. The State argues that the “act” necessary for the offense of home invasion is the knowing entry into the dwelling of another with knowledge that an occupant is present and intentionally inflicting injury upon a person located therein. On the other hand, the State argues that the “act” necessary for the offense of residential burglary is the knowing unlawful entry into a dwelling place of another while intending to commit therein a felony or theft.

We agree that the concept of lesser included offenses is not synonymous with the concept of one-act one-crime. (People v. Austin (1981), 93 Ill. App. 3d 495, 417 N.E.2d 671.) In this regard the Illinois Supreme Court has declared that:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (Emphasis added.) People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45.

Under the rule set forth in People v. King, we must decide whether the burglary conviction was carved from the same physical act as the home invasion conviction.

We turn, therefore, to the somewhat more complicated question of whether both offenses were “carved” from the same act. The two cases relied upon by the defendant in support of his one-act one-crime argument are not persuasive. In People v. Green (1980), 83 Ill. App. 3d 982, 404 N.E.2d 930, the defendant had been convicted of armed violence based on burglary-by-remaining and home invasion. On appeal this court vacated the armed violence conviction because the variance between the evidence presented at trial and the indictment was fatal. We did not vacate the conviction on the basis that the one-act one-crime concept was violated. In People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011, the defendant was convicted of several offenses including home invasion and burglary. On appeal the burglary conviction was vacated. However, since both parties agreed that the defendant’s conviction for burglary should be vacated the principles of the one-act one-crime concept were not contested.

We believe the reasoning in People v. Tate (1982), 106 Ill. App. 3d 774, 436 N.E.2d 272, is controlling. In Tate, the defendant was convicted of home invasion and aggravated battery. On appeal he argued that the battery conviction should be vacated since it was carved from the same physical act as that used to charge the home invasion. The aggravated battery arose from the knifing of the victim. The wound inflicted upon the victim was the bodily harm received in the aggravated battery as well as the injury sustained in the home invasion. While the knifing was a single act the defendant’s entry into the victim’s home was a separate act important only to the home invasion charge. The appellate court held that neither offense was an included offense of the other and the offenses were not “carved” from the same act.

A person can be guilty of two offenses when a common act is part of both offenses or part of one offense and the only act of the other offense. (People v. Tate (1982), 106 Ill. App. 3d 774, 436 N.E.2d 272.) In the present case, the defendant’s home invasion and residential burglary convictions both required entry as a physical act. It is true, as the defendant maintains, that there was only one act of entry into the victim’s home which served as the basis for both of the defendant’s convictions. However, as the defendant admits in his brief, home invasion involves an additional act of intentional injury. Since entry into the victim’s home was only part of the home invasion offense and the sole act of the residential burglary offense, the two offenses were not carved from the same physical act.

We conclude that the facts of this case support separate convictions of residential burglary and home invasion. In accordance with the reasoning in People v. King, the defendant’s interrelated acts support the multiple convictions because residential burglary is not, by definition, a lesser included offense of home invasion. Further, the multiple convictions do not violate the one-act one-crime concept. (See People v. Pavic (1982), 104 Ill. App. 3d 436, 449, 432 N.E.2d 1074, 1084.) Accordingly, we hold that the defendant was properly convicted of home invasion and residential burglary and both convictions are affirmed.

As to the second issue, the defendant contends that his sentence on all convictions must be vacated and his cause remanded for resentencing because the trial court improperly considered as an aggravating factor that the defendant received compensation for committing the crime of rape, home invasion, and residential burglary.

The trial court judge at the sentencing hearing stated:

“The Court: The Court finds aggravation factors: The conduct did cause serious harm to the victim, both physically and mentally, as indicated by the Presentence Investigative Report. And there was compensation that the defendant received for committing the offense. The defendant does have a previous history of criminal activity, the convictions for the offense of burglary.
Certainly in any case a sentence is necessary to deter others from committing the same crime. This is a perfect example of one that should deter others by sentencing.
*** This Court is going to impose the extended term sentence for the offense of rape and for the offense of home invasion for the reasons pursuant to that section that these offenses, both of them, were accompanied by excessively brutal and heinous behavior and indicative of wanton cruelty on the part of the defendant and that the victim in this case was a person 60 years of age or over.” (Emphasis added.)

Both parties agree that it was improper for the trial judge to consider the fact that the defendant received compensation as a result of the offense. In People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, the Illinois Supreme Court held that the factor of receiving compensation for committing the offense applies only when a defendant receives renumeration, other than proceeds from the offense itself, to commit a crime. However, the State maintains that reliance upon an improper aggravating factor does not automatically require remand for resentencing.

This issue is controlled by the decision of the Illinois Supreme Court in People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338,1340, in which the court stated:

“It is clear *** that reliance on an improper factor in aggravation does not always necessitate remandment for resentencing. Where the reviewing court is unable to determine the weight given to an improperly considered factor, the cause must be remanded for resentencing. [Citations.] However, where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required.”

After reviewing the record it is clear that the trial judge sentenced the defendant primarily on the basis of properly considered aggravating factors. The trial judge based his determination on the fact that the defendant’s conduct caused serious harm to the victim, both physically and mentally, that the victim was over 60 years of age, that the defendant had a history of criminal activity, and that the defendant’s sentence should deter others from committing the same crime. Furthermore, there were no mitigating factors. In accordance with People v. Bourke, we are able to determine here that the length of the defendant’s sentence was not increased based on the trial court’s statement that the defendant had received compensation as a result of the offense.

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

Affirmed.

STOUDER, P.J., and HEIPLE, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL EARL, Defendant-Appellant.
    Third District
    No. 3-83-0333
    Opinion filed January 19, 1984.
    Timothy J. Rathbun, of McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, of Joliet, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

This is an appeal by defendant Samuel Earl from an order of the circuit court of Will County for the destruction of guns which were seized at the time of defendant’s arrest.

The defendant was charged with unlawful use of weapons in violation of section 24 — 1(a)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1(a)(4)), and several traffic offenses — including driving while under the influence of alcohol, failure to stop at a stop sign, improper lane usage and resisting a peace officer — as a consequence of the defendant’s driving activities and subsequent conduct in the early morning of October 30, 1982. He was tried by a jury and found not guilty of all charges except for unlawful use of a weapon.

The gun which formed the basis for the conviction was a 9-mm. automatic Smith & Wesson pistol located within the passenger compartment of the defendant’s car on the floor near the driver’s seat. Following the defendant’s arrest on October 30, while the defendant was being taken to the hospital for medical attention, the car’s trunk was searched and its contents, including ammunition and 10 other firearms, were inventoried and delivered to the evidence locker at the Will County jail where the defendant was held pending the setting of bond. The latter firearms formed the basis for no charges and were neither admitted into evidence nor referred to in testimony at the defendant’s trial.

When the verdict was announced, the defendant moved for return of all weapons that were found in the trunk. Testimony at the hearing on the motion established that two of the guns in the trunk belonged to third parties, and the remainder of the guns found in the trunk were property of the defendant. The court ordered the police to return the two guns to their rightful owners and to turn the others over to the sheriff for destruction. This appeal followed.

The issue before us is apparently one of first impression in the reviewing courts of Illinois. Essentially, we are asked to interpret section 24 — 6 of the Criminal Code of 1961, as amended (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 6), to determine whether the firearms found in the trunk of the defendant’s car were proper subjects for an order of forfeiture. That section reads as follows:

“(a) Upon conviction of an offense in which a weapon was used or possessed by the offender, any weapon seized shall be confiscated by the trial court.
(b) Any stolen weapon so confiscated, when no longer needed for evidentiary purposes, shall be returned to the person entitled to possession if known. All other confiscated weapons after the disposition of a criminal case and when no longer needed for evidentiary purposes, and when in due course no legitimate claim has been made for such weapons, the court may transfer such weapons to the sheriff of the county who shall proceed to destroy them, or may in its discretion order such weapons preserved as property of the governmental body whose police agency seized the weapon. If, after the disposition of a criminal case, a need still exists for the use of said confiscated weapons for evidentiary purposes, the court may transfer such weapons to the custody of the State Department of Corrections for preservation.” (Emphasis added.)

The State’s authority to confiscate and destroy the defendant’s property must be found, if at all, in section 24 — 6. Cf. People v. Stankovich (1974), 20 Ill. App. 3d 162, 313 N.E.2d 276 (authority for confiscation and destruction of sawed-off shotgun found in article VI, section 9 of the 1970 Illinois Constitution).

The defendant contends that both the language of the statute and case law require return of weapons to him in this case. In support of his position, the defendant asserts that unrebutted testimony at the hearing on his motion established that he was the owner of the weapons in question and that he could, as such, make legitimate claim to them, and that the weapons found in the trunk were not used in connection with any illegal activity for which he was convicted.

The State contends that the guns removed from the trunk of j defendant’s car qualify as “any weapons seized” and for which “no legitimate claim has been made” and thus may be destroyed pursuant to the plain language of the statute. For purposes of its argument, the State equates “any weapons seized” with “every weapon seized.” The State concedes that there is neither case law nor a clear expression in the statute of the meaning of “legitimate claim,” but opines that the legislature must have intended the claim to have been made by some person other than a defendant who, as here, stands convicted of “an offense in which a weapon was used or possessed.”

The State takes the position that under current law a forfeiture order may issue for every weapon seized, regardless of whether the weapons were in any respect related to the commission of an offense, so long as a conviction is obtained against the defendant and the offense was one in which a weapon was used or possessed during its commission. In urging an affirmance of the trial court’s order of destruction in this case, the State points out that section 24 — 6 was amended by Public Act 81 — 927 effective January 1, 1980, to extend its reach beyond that of the former version.

Prior to the enactment of Public Act 81 — 927, section 24 — 6 forfeitures (Ill. Rev. Stat. 1977, ch. 38, par. 24 — 6) applied only to weapons used in the commission of the offenses stated in section 24 — 1 (unlawful use of weapons) (Ill. Rev. Stat. 1977, ch. 38, par. 24 — 1) and 24 — 3.1 (unlawful possession of firearms and firearm ammunition) (Ill. Rev. Stat. 1977, ch. 38, par. 24 — 3.1). The former statute contained all of the language that now appears, except for that portion which we have underscored in sub-paragraph (a) quoted above. In lieu of “an offense in which a weapon was used or possessed by the offender,” the prior version read “a violation of Section 24 — 1 or Section 24 — 3.1 of this Article” (Ill. Rev. Stat. 1977, ch. 38, par. 24 — 6). Consequently, under the prior statute, a conviction of aggravated assault with a shotgun would not support an order of forfeiture. People v. Collier (1972), 3 Ill. App. 3d 610, 278 N.E.2d 167.

The enactment of Public Act 81 — 927 remedied what was properly viewed as a miscarriage of justice. Obviously, there is at least as much justification for confiscating and destroying weapons used in the commission of aggravated assault, battery, murder, armed robbery or other crimes in which weapons are used for illegal conduct as there is for confiscating and destroying weapons used in the commission of offenses described under the unlawful use and possession of weapons statutes. The statute in its present form clearly authorizes forfeitures of weapons used in the commission of all of these crimes. We fail to see, however, how passage of Public Act 81 — 927 can be said to support the State’s position here, inasmuch as the offense for which a conviction was obtained in the present case was unlawful use of a weapon, a qualifying offense under either version of the statute. If the State’s construction of “any weapon seized” and “legitimate claim” were accurate, then the firearms seized from the trunk of this defendant’s car would have been fair game for a forfeiture order under the former version as well. However, since these phrases do not appear to have been construed in a factually analogous case in Illinois decided before or after passage of Public Act 81 — 927, we must consider the parties’ arguments and determine what the legislature meant by the phrases, applying appropriate rules of construction and relevant case law.

The forfeiture proceeding described in section 24 — 6 may be most accurately described as quasi-criminal. Although civil in form, it is criminal in nature since its only objective is to penalize unlawful activity. (People v. Mudd (1977), 54 Ill. App. 3d 603, 370 N.E.2d 37.) In construing the statute, we are mindful of the general principle that forfeitures of property are not favored in the law and statutes authorizing forfeitures must be strictly construed. Initially, we do not believe that the legislature intended to focus on the character of the claimant to determine whether a “legitimate claim” for return of the weapon has been made, but, rather, on the character of the weapon vis-a-vis the person claiming to have the right to possession. We believe that the legislature intended to approve the confiscation and destruction of unlawful weapons (contraband per se) and those weapons used or possessed in connection with crime committed by the person claiming the right to possession (derivative contraband). Thus, no “legitimate claim” can be made for weapons which are contraband per se, since mere possession of such weapons is unlawful. By contrast, weapons which are derivative contraband, that is, used in illegal activity but not inherently unlawful, are returnable to persons having a right to possess them and who have not been convicted of illegal activity involving their use or possession. And, weapons which are neither contraband per se nor derivative contraband are returnable to persons establishing their possessory rights to them. See Biggs v. State (Tenn. 1960), 341 S.W.2d 737.

With respect to the 9-mm. automatic pistol found in the passenger compartment of the defendant’s car, it is clear that the weapon falls within the definition of derivative contraband. Mere possession of such a weapon is not unlawful in Illinois. However, in this case, the defendant’s conviction of unlawful use of a weapon established that it was used or possessed in illegal activity. Further evidence at the hearing on the defendant’s motion for return of weapons established that the 9-mm. pistol was stolen. Consequently, the weapon was returnable to its owner, who was not convicted of illegal activity involving its use or possession. The trial judge correctly excluded that weapon from the order of destruction, as well as the two firearms seized from the trunk of defendant’s car which the defendant testified were the property of third persons.

The remaining guns were property of the defendant and returnable to him since they were neither contraband per se nor derivative contraband. Even though the defendant was convicted of the statutory offense of unlawful use of weapons for “knowingly carrying in any vehicle” a firearm in violation of section 24 — 1(a)(4) of the Criminal Code, it cannot be said that any of the firearms in the defendant’s trunk were used in the commission of that offense, since the “[transportation of weapons *** not immediately accessible” has been specifically exempted from the offense defined in section 24 — 1(a)(4). (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 2(b)(4); see People v. Reed (1979), 72 Ill. App. 3d 405, 390 N.E.2d 962 (defendant’s conviction under section 24 — l(a)(10) reversed where weapon forming basis for conviction was seized from the trunk of defendant’s car).) The State does not dispute that these weapons were not contraband per se, but posits that the definition of derivative contraband includes every weapon seized from a defendant who is later convicted of any weapon-related offense. We cannot agree.

The State’s overbroad construction would permit forfeiture orders to issue for a wide variety of innocently possessed, noncontraband items which have potential for use as weapons merely upon obtaining a weapon-related conviction. The folly of the State’s reasoning is readily demonstrated by example. If, for instance, a defendant were found guilty of assault and aggravated battery and he were arrested in his own home, all knives, gun collections, bludgeons and all other potential weapons that the officers elected to seize, even though neither actually used nor even contemplated for use in the commission of the illegal activity, would nonetheless, under the State’s view, be subject to forfeiture. Quite clearly the legislature did not intend such a result. We have serious doubts that such a forfeiture statute, if enacted, could ever withstand constitutional challenge. (See City of Cincinnati v. Jasper (1975), 46 Ohio App. 2d 276, 349 N.E.2d 332.) We hold, therefore, that the court’s authority to confiscate and destroy weapons under section 24 — 6 is limited to those weapons which are contraband per se or derivative contraband used or possessed in an unlawful manner as determined by a defendant’s conviction of an offense involving the particular weapon(s) being considered for destruction.

For the reasons stated, the order of the trial court for destruction of the defendant’s firearms is reversed and this cause is remanded with directions to enter an order for the return of the defendant’s property to him.

Reversed and remanded with directions.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GORNEY, JR., Defendant-Appellant.
    Third District
    No. 3—83—0409
    Opinion filed January 19, 1984.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

After trial by jury in the county of Will, the defendant, John Gorney, Jr., was convicted of the offense of home invasion, attempt rape and aggravated battery. The defendant was sentenced to concurrent terms of imprisonment of 14 years for home invasion, five years for attempt rape and five years for aggravated battery.

The evidence at the trial of this case was highly conflicting. The key witness for the defense was the accused defendant while the alleged victim, Patricia Woods, was the key witness for the State.

Patricia Woods, age 28, married, and mother of four children, and the 20-year-old unmarried defendant and his family lived in the same neighborhood. It was Patricia’s testimony that on October 16, 1981, after 9:30 p.m. she and her children were at home. After putting the children to bed, Patricia retired at 11:15 p.m. Her bedroom was on the upper level of the house. After falling asleep, she was awakened by a cold hand across her face and pressure, apparently from a knee, in the middle of her back. She was told not to move or scream or she would be killed. She heard something unzipping and when she rolled over in an effort to escape, a man straddled her and pinned her legs with his feet. The man had a nylon stocking over his face. Patricia struggled, but the man was able to partially pull her nightgown down when she was able to pull the stocking off his face. Patricia recognized the defendant, yelled his name, after which he began punching her in the face. The sleeping children were awakened, one of whom turned on a light, and departed for help while another turned on a light and screamed. The struggle between Patricia and the defendant continued as he persisted in his efforts to try and undress her and to have intercourse with her.

Shortly before midnight Patricia’s husband returned home from work and when the defendant attempted to flee a fight ensued between the men which resulted in the defendant being subdued and detained until the police arrived.

The defendant’s testimony was such as to raise the defense that he was intending to have intercourse with Patricia on October 16, 1981, with her consent as he had done on previous occasions. The defendant testified that commencing in June 1980 he became involved with Patricia. At first they engaged in kissing, hugging and fondling but this led to acts of sexual intercourse on occasions when Patricia’s husband was working. The defendant testified as to various degrees of intimacy with Patricia which occurred at an engagement party, a swimming party, and at nighttime meetings on the front porch of Patricia’s house. The defendant’s version of the October 16 incident was that he was with Patricia in her bedroom with her consent and as they were disrobing and preparing to have intercourse they were alarmed when they heard a car pull into the driveway. That knowing the car to be that of Patricia’s husband, they both attempted to put on their clothes. However when the front door opened, Patricia began screaming and the fight and subduing of the defendant by the husband occurred. The defendant denied striking Patricia, threatening her or exerting any force upon her. He denied that he was masked.

Additional evidence adduced at the trial was that a screen on a window in Patricia’s room had been cut and a razor blade was found in the defendant’s possession. Defendant claimed that the blade was used to clean car windows at the car dealership where he worked. A pair of panty hose was found in the bed; however, it was never established that they were Patricia’s or that they were brought to the room by the defendant.

The defendant’s sister testified that in a conversation with Patricia, she (Patricia) indicated that she had engaged in sexual intercourse with the defendant. Judy Carnes, who attended an engagement party, testified that when the party was ending she heard Patricia offer the defendant another beer and at that time Patricia was wearing a negligee.

Further facts and occurrences during the trial will be set forth as the same becomes pertinent to this appeal.

The defendant raises several issues in this appeal. The first of which is that he was denied a fair trial and his right to confront witnesses against him when the trial court blocked his attempt to impeach the credibility of Patricia, thereby preventing him from presenting evidence which would show Patricia’s proclivity for making false claims of rape.

During the course of the trial and outside the presence of the jury defense counsel indicated that he wanted to present evidence from Judy Carnes and the defendant himself about an incident which occurred prior to October 1981. Defense counsel stated that the evidence would be as follows:

“I believe it was after the engagement party that we have talked about before, Judge, that Mrs. Woods gave 11:30 that evening. There were a group of people standing on the porch. Mrs. Woods was there, and John Gorney was there, Colleen O’Hara was there, Judy Carnes was there, and there were some speeders coming down the street, and one of the boy’s names was Greg Bell (Phonetic), and there was a discussion to call the police, and then Mrs. Woods stated that she should call the police and say that the Bell boy tried to rape her in order to get even with him, and then she said that John Gorney could rip her nightgown to make it look authentic.”

The trial excluded this proffered evidence on the grounds that it was irrelevant.

The State, in its brief, argues inter alia that the proffered evidence would be excludable under the rape-shield provision (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 7); however, during oral argument it was conceded that this statutory provision would not bar the introduction of the evidence. The main thrust of the State’s argument in support of the trial court’s ruling is that the excluded testimony did not tend to prove that Patricia had ever falsely charged any man with rape but only showed that she threatened to do so. This is the reasoning set forth in the case of People v. Vaughn (1978), 56 Ill. App. 3d 700, 371 N.E.2d 1248, where a victim after engaging in kissing and fondling with an accused and assisting him in undressing then resisted his attempted intercourse and stated she had “put three men away for this.”

We quarrel not with the decision in Vaughn, but we are not satisfied that it is applicable to the situation presented in the instant case which presents a clear divergence between the evidence presented by the State and that presented by the defendant. In the statement made by counsel for- the defendant it should be noted that Patricia made her observation that she could get even with a boy by informing the police that the boy had tried to rape her and that such statement was made in the presence of three people, to wit, the defendant, Colleen O’Hara, and Judy Carnes. The latter individual did testify that at the engagement party after guests had departed Patricia was alone with the defendant clad only in her negligee.

The courts have repeatedly observed that sex charges are easy to make and hard to disprove. In the instant case, we are confronted with a situation where the testimony of the alleged victim and that of the accused is in its totality conflicting. The defendant’s defense theory was that he had a consensual relationship with Patricia and consequently the creditability of her testimony was an extremely critical question to be determined by the jury. The possession of a razor blade by the defendant and the cut window screen detract from the creditability of the defendant’s testimony, but on the other side of the case, you have the testimony of Judy Carnes to the effect that after all guests (except the defendant) had left a party she saw Patricia in her negligee offering the defendant a beer. In view of such conflicting evidence and the gravity of the alleged act and its consequences to the defendant if proved, we are of the opinion that in the instant case the proffered testimony of the defendant as to Patricia’s penchant or proclivity for making false claims of rape should have been admitted. An examination of the proffered testimony disclosed that its authenticity could have been easily proved or disproved. For in the statement are names of disinterested witnesses, namely Colleen O’Hara and Judy Carnes, who could have verified the fact that Patricia did or did not make the statement that she could get even with a boy named Greg Bell by claiming that he had tried to rape her and that the defendant could assist her by ripping her nightgown.

As previously noted, the State relies on the Vaughn case in support of the trial court’s ruling against the admission of defendant’s testimony which he offered to support his defense of a consensual relationship and which could have the effect of impeaching the testimony of the complainant Patricia. The defendant in support of his contention that the trial court’s ruling was erroneous cites the case of People v. McClure (1976), 42 Ill. App. 3d 952, 356 N.E.2d 899. In McClure, in the trial of a defendant charged with rape, it was held that the trial court committed error when it refused to permit a defense witness to testify that seven years earlier the alleged victim had accused the witness of rape when he had refused to pay after having had sexual intercourse with her since such evidence would indicate the victims predeliction under certain circumstance to charge men with rape. The reviewing court in McClure did, however, hold the error to be harmless since the defendant was not found guilty of the rape charge.

Other cases are cited by both the State and the defense in support of their respective contentions; however, they respectively rely heavily on the cases of Vaughn and McClure. Each of these cases involved a defendant charged with rape and each presented a situation similar to that in the instant case. The reviewing courts in Vaughn and McClure reached different results.

Turning to other jurisdictions, we examine the case of People v. Hurlburt (1958), 166 Cal. App. 2d 334, 333 P.2d 82. In Hurlburt a District Court of Appeals in California recognized that evidence of a prior false accusation made by an alleged victim of an illegal sexual act should be admitted since it is offered to disprove the very charge against the defendant who is before the trial court. See also State v. Baron (1982), 51 N.C. App. 150, 292 S.E.2d 741, Commonwealth v. Joyce (1981),_Mass._, 415 N.E.2d 181, and State v. McCarthy (1982),_R.I__, 446 A.2d 1034.

The evidence before the trial court in the instant case could be characterized as a “stand off.” The jury found the defendant guilty but would the result have been the same if the defendant’s proffered testimony had been admitted? That question is unanswerable, but the better practice would have been to have admitted it. If believed it would have impeached Patricia’s testimony but of more importance its probative value was such as to prove or disprove the theory of the defendant’s defense. While not wanting to belabor the point, we nevertheless are strongly of the opinion that the chances of a jury verdict being correct will definitely be enhanced if the jury has before it the fact that the complainant in a rape case had on an occasion in the past made or threatened to make a like charge against another individual even though there was no basis for such a charge.

Having concluded that reversible error was committed by denying defendant’s testimony as to Patricia’s proclivity for making false claims of rape, it is necessary that this case be reversed and remanded for a new trial and hence other issues raised in this appeal relating to convictions, sentencing and restitution need not be determined.

Reversed and remanded.

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