author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROLAND E. DANIELS, SR., Defendant-Appellant.
    Second District
    No. 81—697
    Opinion filed March 21, 1983.
    — Rehearing denied April 27, 1983.

      Mary Robinson, of Palatine, for appellant.
    Robert J. Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendant, Roland Daniels, appeals his conviction for the offense of felony theft (111. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)) and his sentence of 18 months of periodic imprisonment, a fine of $6,900, and restitution in the amount of $2,100.

Defendant was indicted for felony theft (111. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)) “in that he knowingly exerted unauthorized control over property of Louis J. Stein, property being a 1978 Cadillac Seville, True VIN #6S69B8Q468916, False VIN #6S69B8Q468116 having a total value in excess of $150.00, intending to deprive Louis J. Stein permanently of the use of the property.”

At the trial on these charges on July 6, 1981, Louis J. Stein testified that he purchased a 1978 dark grey Cadillac Seville bearing the VIN #6S69B8Q468916 on December 31, 1977; that it was missing from in front of his Evanston home on the morning of February 16, 1978, after he had parked it the previous evening; that he never gave anyone permission to drive or keep the car; and that he never saw the car again and signed title over to his insurance company pursuant to a claim settlement.

A special agent for the Illinois Department of Law Enforcement testified that he examined a 1978 silver-grey Cadillac Seville in the possession of the Indiana State Police in July 1980 and found it to have an altered public VIN number glued into the dashboard holder. Specifically, the third-to-last digit in the metal plate, originally a numeral 9, had been rendered flat and a numeral 1 had been die-stamped in its place, though slightly out of line with the other numbers so that it read 6S69B8Q468116. All the other VIN numbers were unaltered and read 6S69B8Q468916. Documents and testimony established that the Illinois Secretary of State’s office had no record of an Illinois title issued for a 1978 Cadillac bearing the serial number 6S69B8Q468116 and that an Illinois title had been issued in 1978 for a 1978 Cadillac bearing the serial number 6S69B8Q468916, but it had not been licensed in 1978, 1979 or 1980 and a salvage certificate was issued for it in February 1979.

Documents and testimony established that defendant licensed a 1978 Cadillac Seville with the altered VIN number on February 16, 1978, and licensed it in 1979 and 1980; that such car was added to defendant’s automobile insurance policy by telephone request on February 17, 1978; and that defendant or Kathleen Kelly, with whom defendant lived, brought the car into an Aurora dealership for repairs six times between July 1978 and July 1979. The court reporter who transcribed defendant’s grand jury testimony read portions of that testimony in which defendant described his purchase of a 1978 Cadillac for $7,500, when he was living in Aurora in 1978. He later moved to Woodridge, and neighbors there testified that defendant had and drove a 1978 silver or grey Cadillac during summer 1979 and for about one year and that both defendant and Kelly drove the automobile during that time.

After hearing arguments of counsel, the court found defendant guilty. His post-trial motion was filed August 5, 1981, and alleged inter alia that the evidence was insufficient to support the conviction. It was denied on August 14,1981, immediately prior to sentencing.

The presentence report included defendant’s bachelor’s degree and nine-year employment with the Department of Corrections and his resignation as Chief of Advocacy Services upon conviction for this offense. Individuals who worked with him praised his work. The report also noted his 1958 narcotics conviction and 10- to 12-year penitentiary sentence as well as his 1971 gambling conviction and $25 fine. The report detailed his assets and liabilities. It also stated that Stein had paid a $100 deductible, according to the terms of the insurance policy on the car, and that his wife lost about $2,000 worth of merchandise that she was taking to her store in Wisconsin because the merchandise was in the car at the time it was stolen.

At the sentencing hearing, defense counsel tendered seven letters in support of a request for probation. After hearing arguments of both sides, the court imposed a sentence of periodic imprisonment for 18 months, with three separate two-week periods (the first two weeks, another two weeks after one year, and the last two weeks of the sentence) to be served in the Kane County Correction Center. Defendant was also ordered to pay costs of $70, a fine of $6,900, and restitution in the amount of $2,100, which was to include payment to Stein’s wife for the lost merchandise.

Defendant first argues on appeal that he was not proved guilty of felony theft beyond a reasonable doubt for three reasons: (1) the State failed to prove defendant possessed the particular automobile described in the charging instrument, (2) the State failed to prove defendant exerted control over the victim’s automobile in Kane County, and (3) the State failed to prove defendant possessed the vietim’s automobile with the requisite criminal intent. While it is true that proof of these matters was mainly circumstantial, a conviction may be sustained upon circumstantial as well as direct evidence. (People v. Bernette (1964), 30 Ill. 2d 359, 367.) In this first issue, defendant has critically examined each discrete item of circumstantial evidence, pointed out its flaws and diminished its weight, and he has drawn the conclusion that the evidence was, therefore, insufficient for conviction. We disagree.

In People v. Kilgore (1975), 33 Ill. App. 3d 557, this court concluded that the evidence in that case was sufficient to prove defendant guilty of the offenses of felony theft and possession of a motor vehicle with a falsified identification number (111. Rev. Stat. 1973, ch. 38, par. 16 — 1(a)(1); ch. 95x/2, par. 4 — 103(b)), stating:

“In order to warrant a conviction based on the circumstances of a defendant’s recent exclusive and unexplained possession of a stolen vehicle or a vehicle with falsified identification numbers the evidence must be of ‘such a conclusive nature as to lead, on the whole, to a satisfactory conclusion, and such as to produce, in effect, a moral certainty that the accused, and no one else, committed the crime, and it must be such that the circumstances proved cannot, upon any reasonable theory, be true and the defendant innocent.’ (People v. Hooper, 364 Ill. 320, 325 (1936). See also People v. Burton, 6 Ill. App. 3d 879, 890-91 (1972).) It is not necessary, however, that circumstantial evidence exclude every possibility of the defendant’s innocence or produce absolute certainty in the mind of the trier of the facts. (People v. Smith, 107 Ill. App. 2d 267, 270 (1969).)” (33 Ill. App. 3d 557, 560.)

The trier of fact need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the fact-finder of the accused’s guilt. People v. Marino (1970), 44 Ill. 2d 562, 580; People v. Bernette (1964), 30 Ill. 2d 359, 367.

The requirement that defendant’s guilt be proved beyond a reasonable doubt does not mean that the factfinder must disregard the inferences that flow normally from the evidence before it. Here the inferences from the evidence pointed toward defendant’s guilt. (People v. Russell (1959), 17 Ill. 2d 328, 331.) While the circumstantial evidence relied upon must not give rise to any reasonable hypotheses under which the defendant could be innocent of the crime charged, that does not mean that the trier of fact is required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt. People v. Huff (1963), 29 Ill. 2d 315, 320.

With these principles in mind, we examine defendant’s three bases for his contention that he was not proved guilty beyond a reasonable doubt.

(1) Sufficiency of proof that defendant possessed the particular automobile described in the charging instrument.

While evidence putting defendant in possession of a car described only by make and model is insufficient (e.g., People v. Stone (1979), 75 Ill. App. 3d 571), the vehicle in this case was identified by YIN number as Stein’s. (Compare People v. Hope (1979), 69 Ill. App. 3d 375.) A vehicle bearing the altered YIN number of the stolen car was added to defendant’s insurance coverage within a few days after the theft and deleted in October 1979, which indicated that defendant did not possess it after that date, including the June 1980 date of the car’s recovery in Indiana. Defendant licensed an automobile with the altered YIN number a day after the theft, even though no automobile title for that YIN number ever existed. Defendant appears to argue that the certified documents showed an alteration of the critical digit and implies that the alteration may have occurred after the certification. However, defendant made no objection or inquiry at trial to any alterations in the State’s title record certifications, objecting solely on other grounds which were denied, and, contrary to defendant’s argument, these documents have persuasive probative value. Repair records from a local Cadillac dealership indicated that defendant or Kathleen Kelly brought the automobile in for repair several times and paid for such repair, sometimes by check. The confusion in YIN numbers on repair bills was in all probability caused by the alteration of the windshield public YIN plate while the public YIN number in the door was unaltered. Moreover, the notation of both the altered and unaltered YIN numbers contradicts defendant’s argument that no evidence was adduced showing when the windshield YIN plate was altered and shows, in fact, that the public YIN plate was in an altered state while defendant possessed the car. As defendant points out, the lack of evidence of personal knowledge of the maker of the insurance and automobile repair records that defendant was responsible for those documents affects the weight to be accorded them, but they are admissible evidence. 87 Ill. 2d R. 236; Ill. Rev. Stat. 1979, ch. 38, par. 115-5.

Defendant’s basic point is that the only car connected with him was the one he admitted to the grand jury that he purchased for $7,500 in March 1978 from a private party whose name defendant could not recall and, as attested to by his neighbors, he drove openly; that this was perfectly legitimate conduct; and that the State’s evidence was inadequate to prove the corpus delicti of the offense. While defendant’s handwriting on the critical documents was not proved by exemplars, which the State could have taken (87 Ill. 2d R. 413(a)(viii)), it is highly improbable that some other third person would apply for license and insurance coverage and order and pay for repairs on the stolen car especially by check, all in defendant’s name, and use defendant’s two home addresses over a period of IV2 years. The circumstantial evidence sufficiently established that the car defendant possessed was the same vehicle stolen from Louis Stein.

(2) Sufficiency of proof that defendant exerted control over the victim’s automobile in Kane County.

Defendant asserts that the State showed, at best, that he lived at a Kane County address at the time he purchased and licensed the car but that it cannot be inferred that he physically possessed the car at his residence or otherwise exerted control over the stolen car in that county necessary to sustain a conviction in a Kane County prosecution. (See Ill. Rev. Stat. 1979, ch. 38, par. 1 — 6(g); People v. Choura (1980), 84 Ill. App. 3d 228.) As the State persuasively argues, evidence in this case was not limited to his place of residence, but the evidence also showed that defendant and Kathleen Kelly had repairs done to the car while they lived in Kane County, that the odometer showed increased mileage each time and that they openly used the car at their next residence, which was in Du Page County. Such evidence would support an inference of use in Kane County. Also, the car dealership to which defendant and Kathleen Kelly brought the car for repairs was located at 2500 N. Farnsworth in Aurora, and this court may take judicial notice that this location is within the boundaries of Kane County (see People v. Luigs (1981), 96 Ill. App. 3d 700, 702-03), indicating use in Kane County.

A charge that a crime was committed in a particular county is a material averment that must be proved beyond a reasonable doubt to sustain a conviction, although it may be proved by circumstantial evidence. (People v. Clark (1979), 71 Ill. App. 3d 381, 396.) The circumstantial evidence at trial is sufficient to establish that defendant exerted control over the stolen car in Kane County. Therefore, his conviction need not be reversed for failure to prove venue.

(3) Sufficiency of proof that defendant possessed the victim’s car with the requisite criminal intent.

Defendant maintains that the State failed to prove that he possessed the stolen car with the requisite intent to permanently deprive the owner of its use or benefit. (See People v. Mertens (1979), 77 Ill. App. 3d 791, 794-95.) Basically, he argues that there was absolutely nothing surreptitious about his dealings concerning the car, that no evidence was offered to show that the car was worth more than the $7,500 he paid for it, and that the $9,000 figure notated on the insurance change report was not directly shown to have been provided by defendant and could have reflected the fact that the car was damaged and would be repaired. According to defendant, the State offered no independent evidence to show the circumstances under which defendant came to possess the car and did not preclude the reasonable hypothesis that defendant purchased and operated the car innocently. See People v. McIntosh (1977), 48 Ill. App. 3d 694, 700.

It is well established that exclusive possession of recently stolen property creates an inference of guilt which can be rebutted by defendant’s explanation. (E.g., People v. McIntosh (1977), 48 Ill. App. 3d 694, 700.) A defendant who chooses to explain his possession of stolen property must offer a reasonable story or be judged by its improbabilities. (48 Ill. App. 3d 694, 700; People v. Kilgore (1975), 33 Ill. App. 3d 557, 560.) While the defendant’s story was not preposterous on its face, there does not appear to be error in the implicit finding of the trier of fact that it was not reasonably believable. See People v. Ward (1980), 80 Ill. App. 3d 253.

Defendant here stated that he bought the car in March 1978 from a private party whose name he could not recall. He apparently received no title, and the evidence showed that no title for a car with the altered YIN number was ever issued. The evidence also showed that defendant made license application on the date of the vehicle theft on February 16, 1978, and insured it the next day, thus contradicting his claim that several days passed between the time he saw it and the time he bought it. This case is distinguishable from People v. Dickerson (1976), 41 Ill. App. 3d 464, because, in that case, the evidence showed that the defendant came into possession of the property under innocent circumstances, even though he later sought to protect his friend by his initial statement to police, which he subsequently changed.

To summarize, the evidence in this case was sufficient to show defendant’s possession of the stolen vehicle with the windshield public YIN plate in an altered condition. The same evidence contradicted defendant’s explanation of his possession of the vehicle and established venue. Defendant’s position would require acceptance of an unreasonable hypothesis — that someone else, unbeknownst to defendant, ordered the licenses in defendant’s name, ordered the changes in defendant’s automobile insurance policy, and ordered and paid for repairs to the vehicle — in order to find the evidence insufficient. A review of the entire record leads to the conclusion that there was sufficient evidence to establish defendant’s guilt beyond a reasonable doubt. Therefore, the conviction is affirmed.

Defendant’s next issue on appeal is that the term of periodic imprisonment and fine imposed were excessive. Basically, he maintains that the judge misapplied the statutory sentencing criteria in that he based the sentence on deterrence alone and compounded that by failing to find as mitigating the fact that defendant had led a law-abiding life for a substantial period of time before the commission of the offense. The sentence imposed, according to defendant, is antagonistic to rehabilitation because the three two-week periods of incarceration will hamper defendant’s efforts to secure new employment and the $6,900 fine invites defendant’s financial ruin.

It is by now axiomatic that the determination and imposition of a sentence is within the trial court’s discretion and will be altered only where the trial judge abused his discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 492; People v. Perruquet (1977), 68 Ill. 2d 149, 153.) The Unified Code of Corrections (HI. Rev. Stat. 1979, ch. 38, par. 1001 — 1—1 et seq.) gives wide discretion to sentencing judges in order to permit reasoned judgments as to the penalty appropriate to the particular circumstances of each case. (People v. LaPointe (1981), 88 Ill. 2d 482, 492.) It is true, as defendant maintains, that the judge must fashion a sentence which balances the rehabilitation of the offender and the need to protect society. (88 Ill. 2d 482, 493.) The judge’s sentencing determination depends on several factors, and, by presiding over the trial and the sentencing hearing, he is in the best position to make the evaluations and determine the proper sentence. People v. Perruquet (1977), 68 Ill. 2d 149, 154.

In the instant case, defendant was convicted of a Class 3 felony; the unenhanced penalty for that offense is a term of incarceration within the range of two to five years. (111. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(6).) He argues that the trial court erred in not imposing a term of probation and goes on to argue that the conditions of periodic imprisonment were unlike the standard imposition of that type of sentence and more like probation so that the judge’s stated reason for denying probation, that probation would deprecate the seriousness of the offense, “rings hollow and the court’s exercise of discretion in denying probation is rendered highly suspect.”

In support, defendant cites People v. Knowles (1979), 70 Ill. App. 3d 30, and People v. Lloyd (1981), 92 Ill. App. 3d 990, for the proposition that the need to deter others, standing alone, is not a permissible basis for denying probation, and he argues that the trial court, having excluded punishment as the purpose of the sentence, left deterrence as the only purpose for the sentence imposed. However, the trial judge denied probation because he found that, in light of the totality of the case and defendant’s history, probation would deprecate the seriousness of the offense and be inconsistent with the ends of justice. (111. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1(2).) This is in direct contrast to Knowles, where the court found sentencing error in that the trial court acknowledged deterrence as the only purpose and the sentence did not reflect “a knowing quest to be consistent with the ends of justice.” (70 Ill. App. 3d 30, 35.) In Lloyd, the court affirmed the trial court’s imposition of a prison term upon a finding that probation was improper because defendant’s imprisonment was necessary for the protection of the public and, as here, because probation would deprecate the seriousness of the offender’s conduct and be inconsistent with the ends of justice. 92 Ill. App. 3d 990, 993.

Lloyd goes on further to cite People v. Kuesis (1980), 83 Ill. 2d 402, which in turn cites People v. Cox (1980), 82 Ill. 2d 268, for the proposition that, where there has been compliance or even substantial compliance with section 5 — 6—1 of the Unified Code of Corrections (111. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1), a reviewing court may alter the sentencing judge’s disposition only upon a finding of an abuse of discretion in that a sentence was excessive. (92 Ill. App. 3d 990, 993-94.) After denying probation, the trial judge here articulated in great detail his rationale for the sentence imposed. He specifically found in mitigation that serious physical harm was not caused, threatened or contemplated but could not say that the conduct was the result of circumstances unlikely to recur. (111. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.1.) In aggravation he specifically found that defendant had a history of prior delinquency or criminal activity and that the sentence was necessary to deter others from committing the same crime. 111. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2.

Although defendant’s felony conviction was over 20 years old, such history is a factor to be considered in imposing a sentence of imprisonment; the degree of recency is not limited by the statute and thus is a matter of weight to be accorded this factor. (111. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)(3).) Deterrence is also a valid factor to consider. (111. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)(7).) Insofar as the fine is concerned, it is an authorized disposition in this case (111. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3(b)(6)), and the record is clear that its purpose was to reflect the seriousness of the conduct and defendant’s ability to pay, although such fine would probably “dent” defendant’s lifestyle. Defendant’s contention that the trial judge did not consider his law-abiding lifestyle as a mitigating factor is belied by several of the judge’s comments, e.g., that he considered the presentence investigation report, evidence and information offered by the parties, and argument and that he read letters from various individuals concerning defendant’s employment activities and character. The judge is not obliged to recite, and assign a value to, each fact presented in evidence at the sentencing hearing. People v. Meeks (1980), 81 Ill. 2d 524, 534.

Defendant argues in his reply brief that he is not complaining of an alleged failure of the trial judge to consider or articulate evidence or sentencing alternatives but rather that the judge found against defendant on the mitigating factor concerning criminal history and recent lifestyle (DI. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.1(aX7)), that this finding was erroneous, and that it, therefore, requires reversal (People v. Conover (1981), 84 Ill. 2d 400). It should be observed that there is no express finding in the record on this factor, nor does the statute call for one. The statute provides that the trial court may consider in mitigation that defendant either has no prior history of delinquency or criminal activity or that he has led a law-abiding life for a substantial period of time prior to the present crime. In Conover, the trial court improperly considered the taking of proceeds as an aggravating factor of compensation for a crime in burglary and theft cases and, because the court could not determine how much weight that factor was accorded, the cases were remanded for resentencing. (84 Ill. 2d 400, 405.) In this case, there is every indication that the trial judge considered defendant’s recent lifestyle in mitigation as well as his prior criminal history in aggravation and, unlike Conover, both factors were proper to consider.

A sentence imposed by a trial court will not be disturbed unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose. A sentence which both reflects the seriousness of the offense and the rehabilitative potential of the defendant will be upheld. (People v. Brown (1982), 103 Ill. App. 3d 306, 310.) The trial court followed both the letter and spirit of the law and did not abuse its discretion in imposing the sentence in this matter, and it will not be disturbed.

Defendant’s final contention is that the trial court erred in ordering $2,000 in restitution paid to the wife of the owner of the stolen automobile for display merchandise owned by her which was in the car at the time of the theft. Relying on People v. Pearson (1982), 108 Ill. App. 3d 241, 244, the State initially responds that this court should not address this issue because defendant failed to object to the order of restitution in the trial court. Defendant’s contention, however, unlike the question posed in People v. Pearson, raises the issue of the authority or jurisdiction of the court to enter such an order and therefore is not waived by defendant’s failure to make a timely objection. People v. Daugherty (1982), 104 Ill. App. 3d 89, 92-93.

Turning to the merits of defendant’s final contention, we find that the trial court was without authority to order $2,000 in restitution paid to Mrs. Stein. Section 5 — 5—6 of the Unified Code of Corrections (111. Rev. Stat. 1979, ch. 38, par. 1005 — 5—6) provides that if restitution is ordered as part of the disposition of the case, “the defendant shall make restitution to the victim in accordance with” certain requirements set out in the statute. (Emphasis added.) An insurance company that has paid its policyholder for the loss is not “the victim” as that phrase is used in section 5 — 5—6. (See People v. Wilson (1980), 87 Ill. App. 3d 544, 550, cert. denied (1981), 451 U.S. 989, 68 L. Ed. 2d 848, 101 S. Ct. 2327.) Neither the residents nor the insurers of a student dormitory damaged by arson are victims as that term is used in the restitution statute where the information charging the arson offense does not allege fire damage to any property other than that owned by the college. (See People v. Knowles (1980), 92 Ill. App. 3d 537.) Mrs. Stein is likewise not “the victim” of the offense in this case.

The indictment in this matter charged the defendant with theft of a Cadillac automobile owned by Louis Stein. Defendant was convicted of that offense and no other. The victim of that offense was Louis Stein. Defendant has not been charged or convicted of stealing the property which may have been in the Cadillac when it was stolen. The evidence adduced at trial did not establish that any such goods were taken or that, if any were taken, they belonged to Mrs. Stein and were taken by the defendant. The evidence before the trial court that Mrs. Stein’s property was in the car at the time it was stolen by defendant is contained in unsworn hearsay in the presentence report. The trial court incorrectly considered this statement of loss. See People v. Knowles (1980), 92 Ill. App. 3d 537, 539-40.

The conditions of restitution may not extend to matters unrelated to the charge before the trial court, nor is it empowered to order restitution for such extraneous matters. (People v. Mahle (1974), 57 Ill. 2d 279, 284.) Subsection (a) of section 5 — 5—6 (111. Rev. Stat. 1979, ch. 38, par. 1005 — 5—6(a)) provides for a hearing in which the trial court determines the amount and conditions of payment of restitution. To extend the meaning of the word “victim” to include others who also claimed to have been damaged by the actions of the defendant in committing the crime charged might well necessitate conducting this hearing as a full-fledged civil suit for damages in the form of restitution for losses that are unrelated to the particular offense for which the defendant offered his defense at trial and for which he stands convicted.

While the loss in question, that of Mrs. Stein’s display merchandise, may have been proximately caused by the defendant in the theft of the automobile, any such loss was not incurred by the victim of the auto theft, who was Louis Stein. Subsection (b) of section 5 — 5—6 (HI. Rev. Stat. 1979, ch. 38, par. 1005 — 5—6(b)) provides in relevant part that “[Restitution shall be made in an amount not to exceed the actual out of pocket expenses or loss to the victim proximately caused by the conduct of the defendant ***.” (Emphasis added.) Therefore, the trial court was without authority to order restitution for a loss not incurred by a victim of the offense charged.

Since Mrs. Stein was not the victim of the offense charged and proven at trial, the trial court was not authorized to include in the order of restitution the sum of $2,000 to Mrs. Stein for the loss of her display merchandise. The amount of restitution to be paid by defendant is therefore modified to $100.

Affirmed as modified.

HOPE and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    GENE J. CARTWRIGHT, Plaintiff-Appellant, v. CHARLES GARRISON, Defendant-Appellee.
    Second District
    No. 82—500
    Opinion filed March 15, 1983.

      David N. Barkhausen, of Waukegan, for appellant.
    Ronald E. Griesheimer, of Griesheimer & Thompson, of Waukegan, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Gene J. Cartwright, appeals from the trial court’s dismissal of his complaint, which alleged he had been defamed by defendant, Charles Garrison. Plaintiff raises the following issues on appeal: (1) whether the statement made by defendant was incapable of an innocent construction; (2) whether the innocent-construction rule should be replaced with a reasonable-construction rule.

Plaintiff’s complaint alleged that plaintiff was the superintendent of the Zion-Benton High School, District No. 126, Lake County, Illinois, and that defendant was a member of that district’s school board. Plaintiff alleged he was “a person of good name and reputation and was and is held in high esteem within his profession and in the community.” He further alleged that defendant made the following defamatory statement to a reporter for the News-Sun newspaper which appeared in an article headlined “Garrison won’t quit” beginning on the front page of the newspaper’s October 7, 1981, edition:

“ ‘Whatever legal ramifications result from that investigation— which could range from the superintendent losing his certification to criminal penalties — is up to the state’s attorney.
I think that the public will demand changes once all the information is brought out by the state’s attorney.’ ”

Plaintiff alleged that defendant made the statement “knowing that there was no basis for it or, at least, having a reckless disregard as to its truth or falsity.” He alleged that the statement “inevitably leads those who read it to conclude that, at the least, Plaintiff is a criminal” and that he had been injured by the statement both personally and professionally. He further alleged that defendant made the statement with a malicious intent to impute criminal behavior to the plaintiff, to injure plaintiff in his professional capacity, and to jeopardize plaintiff’s new position as superintendent of another school district.

The statement in issue appeared near the end of the article. The story began by reporting a closed meeting of the Zion-Benton High School Board. Defendant was quoted as saying that he had been asked to resign from the school board during this meeting. The article reported that defendant believed the board’s action was in response to his discussing, with the State’s Attorney, alleged Open Meetings Act (111. Rev. Stat. 1981, ch. 102, par. 41 et seq.) violations by the board and “misdeeds by the administration.”

The article stated that defendant declined to comment on any specific allegations and that he indicated there was sufficient proof to justify his allegations to the State’s Attorney. The story identified plaintiff as superintendent of the school district.

The article stated that at the meeting defendant was presented with a letter requesting his resignation and that defendant said the letter dealt with his taking information to the State’s Attorney. Defendant was quoted as saying some board members had threatened to sue him and that he viewed it “all as a threat to try to intimidate me so I will not pursue the allegations that have been made to the state’s attorney.” The allegedly defamatory statement appeared immediately after this quotation.

The article closed by noting that plaintiff had resigned as superintendent the previous month to take a superintendent’s position elsewhere.

The record on appeal does not contain an answer by defendant. Defendant did file a motion for summary judgment (111. Rev. Stat. 1981, ch. 110, par. 57) supported by his affidavit together with several documents. He later filed plaintiff’s discovery deposition. Plaintiff filed a response in opposition to the motion for summary judgment supported by excerpts from defendant’s deposition. The trial court treated defendant’s motion for summary judgment as a motion to dismiss and granted a dismissal. The memorandum order does not clearly state the trial court’s actual basis for the dismissal, although the innocent-construction rule was referred to in the memorandum.

Even though the trial court does not clearly indicate the reasons for its dismissal of plaintiff’s complaint, a reviewing court may affirm that dismissal where proper grounds for dismissal exist. (Goldberg v. Goldberg (1981), 103 Ill. App. 3d 584, 587, 431 N.E.2d 1060; White Fence Farm, Inc. v. Land & Lakes Co. (1981), 99 Ill. App. 3d 234, 239, 424 N.E.2d 1370.) A motion to dismiss is properly treated under section 48(l)(i) of the Civil Practice Act when the ground for dismissal is that the claim is barred “by other affirmative matter avoiding the legal effect of or defeating the claim or demand.” (Ill. Rev. Stat. 1981, ch. 110, par. 48(l)(i).) In a defamation action, the question whether the allegedly defamatory language is rendered non-defamatory by the innocent-construction rule is properly considered under section 48(l)(i). Nagib v. News-Sun (1978), 64 Ill. App. 3d 752, 757, 381 N.E.2d 1014; Kilbane v. Sabonjian (1976), 38 Ill. App. 3d 172, 175, 347 N.E.2d 757; see also John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105; Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427, 432-33, 444 N.E.2d 253.

Whether the innocent-construction rule requires dismissal is initially a question of law to be resolved by the trial court and depends on examination of the allegedly defamatory statement and of the context in which it appears. (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195.) Therefore, the affidavit and depositions presented here will not be considered.

Plaintiff alleges that defendant’s statement was defamatory in that it falsely accused him of committing a crime and harmed him in his profession. An allegation that a statement falsely accuses a person of committing a crime is sufficient to support a defamation action against the person making the statement. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 348, 243 N.E.2d 217; Fogus v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1060, 1062; Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 456, 395 N.E.2d 1185.) Thus, we must determine whether the statement in issue here accuses plaintiff of the commission of a crime.

In determining whether this statement accuses plaintiff of committing a crime the innocent-construction rule must be applied. This rule requires that the statement be “considered in context, with the words and the implications therefrom given their natural and obvious meaning.” (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195.) If, under this construction, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff, then it is not actionable as a matter of law. 92 Ill. 2d 344, 352, 442 N.E.2d 195.

Here, the context in which the allegedly defamatory statement appears is in an article dealing with a closed meeting of the school board at which defendant reportedly was asked to resign. The only violations of law expressly referred to in the article are “alleged Illinois Open Meetings Act violations by the board.” Violation of the Open Meetings Act is a Class C misdemeanor. (111. Rev. Stat. 1981, ch. 102, par. 44.) Nothing in the article implicates plaintiff in these violations.

The article also mentions “misdeeds by the administration.” The word “administration” covers a broad group of people beyond the plaintiff and therefore can reasonably be interpreted as referring to someone other than the plaintiff. Thus, no criminal activity is ascribed to plaintiff at any point in the article prior to the allegedly defamatory statement. As the only violations of law expressly mentioned in the article were Open Meetings Act violations by the board, the reference to “criminal penalties” in defendant’s allegedly defamatory statement, when considered in context, can reasonably be interpreted as referring to the board and not the plaintiff. If the statement may reasonably be interpreted as referring to someone other than the plaintiff, it cannot be actionable as a matter of law. Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195.

More importantly, this defamatory statement must impute to plaintiff the commission of a criminal offense. (Fogus v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1060, 1062.) While a statement need not charge a person with a criminal offense with the precision of an indictment in order to be actionable (Catalano v. Pechous (1980), 83 Ill. 2d 146, 157, 419 N.E.2d 350; Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 457, 395 N.E.2d 1185), words are not actionable if they may reasonably be innocently interpreted. Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195.

Defendant is quoted as saying “ ‘[wjhatever legal ramifications result from that investigation — which could range from the superintendent losing his certification to criminal penalties — is up to the state’s attorney.’ ” Taken in context, and given their natural and obvious meaning, these words may reasonably be interpreted to mean that the State’s Attorney would determine if any crime had been committed. The statement indicates that defendant was deferring to the State’s Attorney the decision on whether “legal ramifications” would result. The reference to loss of certification and criminal penalties may reasonably be read as defendant’s opinion on the range of possible penalties if the State’s Attorney determined a crime had been committed. Thus, the application of the innocent-construction rule requires us to hold that the words can reasonably be interpreted as not accusing plaintiff of a crime and therefore that they are not actionable as a matter of law.

Plaintiff also alleges that the statement injured him in his profession. A false statement which imputes that a person lacks ability in his profession or that he is unfit to perform his employment duties is actionable as defamation. (Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 456, 395 N.E.2d 1185; see Colson v. Stieg (1982), 89 Ill. 2d 205, 433 N.E.2d 246.) Thus, we must determine whether the allegedly defamatory statement here imputed that plaintiff lacked ability in his profession or that he was unfit to perform the duties of that profession.

Applying the innocent-construction rule, we hold that the allegedly defamatory statement may reasonably be read as not imputing any unfitness or lack of ability on plaintiff’s part. The statement reads: “ ‘Whatever legal ramifications result from that investigation— which could range from the superintendent losing his certification to criminal penalties — is up to the state’s attorney.’ ” Defendant’s statement indicates that he was leaving the determination of whether any wrongdoing occurred which warranted legal action to the State’s Attorney. Defendant did not say plaintiff would lose his certification or even that he should lose it. Defendant only indicated that such a loss of certification was a legal ramification which could result from the State’s Attorney’s investigation. Thus, the words in their entire context can reasonably be interpreted as not imputing unfitness or lack of ability on plaintiff’s part and therefore they are not actionable as a matter of law. Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195.

The statement “ T think that the public will demand changes once all the information is brought out by the state’s attorney’ ” is also capable of an innocent construction. Changes in school board policies and procedures are often sought by citizens for reasons other than criminal activities, unfitness, or incompetence. A mere difference of opinion on which policies or procedures are preferable could motivate a call for the board or the superintendent to make changes. Thus, it is reasonable to construe this statement innocently.

Such an innocent construction of this statement is further supported by the sentence that directly follows it in the article which reads: “ ‘There are honorable men on the board and once they have all the information they will do what’s right.’ ” This statement qualifies the preceding one by indicating that the information that the State’s Attorney has, when disclosed will motivate the board to do the “right” thing. Thus, the language does not accuse plaintiff of a crime, or say he will lose his certification, since these are not actions the board could take. Rather, the language can reasonably be read as defendant’s opinion that the public will demand that the board make changes in the district’s policies or procedures.

Plaintiff also asks us to replace the innocent-construction rule "with a reasonable-construction rule. In light of our supreme court’s recent modification of the innocent-construction rule in Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195, we decline consideration of any further changes in the rule.

Also, in view of our decision on the basis discussed above, we need not consider defendant’s alternate arguments for affirmance raised in his appeHate brief.

For the foregoing reasons we hold that the trial court’s dismissal of plaintiff’s complaint was proper.

Affirmed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v GEORGE MORGAN, Defendant-Appellant.
    First District (5th Division)
    No. 81—1010
    Opinion filed March 31, 1983.

      Steven Clark and Susan Kaplan, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Richard B. Levy, and Stephen Erhard Eberhardt, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant George Morgan was convicted in a bench trial of armed robbery (111. Rev. Stat. 1981, ch. 38, par. 18 — 2) and was sentenced to a term of 10 years’ imprisonment. On appeal, he contends that: (1) his warrantless nonconsensual arrest at his home was illegal because it was not based on probable cause and was not justified by exigent circumstances; and (2) the trial court erred in admitting evidence of another crime allegedly committed by him.

For the reasons hereinafter set forth, we affirm the judgment of the circuit court.

Defendant has not contended that his guilt was not established beyond a reasonable doubt and, therefore, a full summary of the facts is not provided. Facts necessary to our determination of the issues raised are as follows.

On February 8, 1979, after a week-long investigation, Chicago police officers had assembled information linking defendant to four armed robberies which had occurred during the previous 10-day period at premises located within a short distance of one another. These were the 404 Club, the Busy Corner Pharmacy (subject of the instant case), the Glass House Lounge and the 449 Food and Liquor Store. At about 12:45 p.m. on that date, three officers went to defendant’s apartment, intending to arrest him. They had not obtained a warrant. Earlier in the day, one of the arresting officers had interviewed Doris Yarbor, a witness to the 404 Club robbery. She had identified defendant’s photograph that morning at the police station and had showed this officer the defendant’s name and I.R. number written upon a piece of paper. None of the arresting officers, however, were present at the photographic identification, and none attempted to verify the information regarding her identification of defendant. One officer testified that he did not believe it was necessary to verify the information because he believed the only way she could have gotten an I.R. number was from the mug book. Prior to the arrest, the officers had also obtained a general physical description of the defendant.

The officers went to the door of the building where defendant resided and were admitted by Charles Kelly, defendant’s brother-in-law. This building was a “family type” building. Kelly, his mother, and brother lived in the first-floor apartment. Kelly’s sister-in-law, defendant, and two children lived in the second-floor apartment, and on the third floor lived additional members of Kelly’s family. There was testimony that all the residents of the building had access to all areas of the building, that doors on all three floors were kept open or unlocked, and that access to all apartments by each occupant was not restricted.

The officers identified themselves to Kelly, himself a Chicago police officer, and told him they were there to arrest George Morgan. Kelly then led the police officers upstairs to the doorway of the apartment where defendant resided. He knocked on the door and it came open. He went into the apartment and told defendant the police wanted to talk to him about an armed robbery. The defendant came to the open doorway of the apartment and spoke to the police. While defendant was standing in the doorway, an officer told him he was under arrest. The apartment was not searched. The officers entered the apartment to accompany defendant while he changed from his pajamas into other clothes. They then took him to the police station where he was placed in a lineup. There he was identified by the victim of the Busy Corner Pharmacy armed robbery, giving rise to the instant case, and he also was identified by Osama Rasik, the victim of the robbery at the 449 Food and Liquor Store. Evidence of the latter armed robbery was admitted into evidence in the instant trial and was the subject of defendant’s motion in limine.

Prior to trial, defendant moved to quash his arrest. The trial court ruled that the arrest was legal, that the stairway was a common area, that there was probable cause to arrest defendant for the 404 Club robbery, that there were exigent circumstances and that entry into the house was consensual.

Opinion

Defendant first contends that his warrantless home arrest was illegal because it was not based on probable cause and was not justified by exigent circumstances. The State argues that defendant has waived this issue on appeal by failing to mention it in a written motion for a new trial.

The established rule is that failure to specify alleged errors in a motion for a new trial constitutes a waiver of those issues and that such issues cannot be urged as grounds for reversal on review. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739; People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.) Although Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)) provides for an exception to the general waiver rule, for such an exception to apply it must be plainly apparent from the record that an error affecting substantial rights was committed. (Jackson; People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.) Also, in applying the plain error exception, it is relevant to examine the evidence to determine if it is so closely balanced that an innocent person may have been convicted due to an obvious error of record. Jackson; People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

Defendant here has not contended that the evidence is insufficient to establish his guilt beyond a reasonable doubt, and we do not regard the evidence in this case as “closely balanced.” An eyewitness to the Busy Corner Pharmacy armed robbery positively identified the defendant as the perpetrator of that crime. Also, defendant’s identity was corroborated and his alibi defense directly contradicted by testimony of a witness to the 449 Food and Liquor Store armed robbery occurring only minutes later. Moreover, the waiver rule is appropriate since the circumstances of defendant’s warrantless arrest are not such as to demonstrate error affecting his substantial rights.

Regarding defendant’s probable cause issue, the information obtained by the arresting officers, e.g., that defendant has been identified in a photograph by an ordinary citizen, that this person had obtained an I.R. number and name of defendant, and the general physical description of the offender which was obtained from other sources, although circumstantial, taken together were enough to support the trial court’s determination that the arresting officers had knowledge sufficient to warrant a man of reasonable caution to believe that an offense had been committed and that the person arrested had committed the offense. (See generally Beck v. Ohio (1964), 379 U.S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223; People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605.) Thus, the record contains evidence sufficient to sustain the trial court’s finding of probable cause in the hands of the arresting officers.

Briefly addressing defendant’s contention that his arrest was illegal under Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, we note that the testimony established that defendant was arrested in his open doorway after consenting to meet there with the arresting officers. As a general rule, a person standing in the open doorway of his or her house is deemed to be in a “public place” for purposes of the fourth amendment. (United States v. Santana (1976), 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406; United States v. Botero (9th Cir. 1978), 589 F.2d 430, cert. denied (1979), 441 U.S. 944, 60 L. Ed. 2d 1045, 99 S. Ct. 2162; accord, Finch v. State (Okla. Grim. 1982), 644 P.2d 1378; see also People v. Lindner (1980), 81 Ill. App. 3d 15, 400 N.E.2d 1092.) In Santana the Supreme Court held that a defendant has no reasonable expectation of privacy while standing in the doorway of his home; consequently, the warrantless arrest of defendant Santana did not violate the fourth amendment. The court there reiterated that “ ‘[w]hat a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.’ ” (United States v. Santana (1976), 427 U.S. 38, 42, 49 L. Ed. 2d 300, 305, 96 S. Ct. 2406, 2409, quoting Katz v. United States (1967), 389 U.S. 347, 351, 19 L. Ed. 2d 576, 582, 88 S. Ct. 507, 511.) In this instance, there was no entry into defendant’s home for the purpose of effecting his arrest, therefore there was no violation of the Payton rule. Accordingly, defendant’s warrantless arrest, based on probable cause, in a public place, was lawful.

The case of United States v. Johnson (9th Cir. 1980), 626 F.2d 753, is to be distinguished from the instant case. There, Johnson opened the door of his dwelling after the arresting agents misrepresented their identities, thus his initial exposure to the view and physical control of the agents was nonconsensual on his part. Moreover, the arresting agents brandished weapons prior to Johnson’s invitation to them to enter. The court found these two factors controlling in determining that Santana and Botero were inapplicable, and ultimately that the warrantless arrest of Johnson in his doorway was the result of coercion and subterfuge and in violation of his fourth amendment rights. (626 F.2d 753, 757.) The circumstances of the instant case, however, do not parallel those found in Johnson and we find Santana controlling.

Defendant also contends that the trial court erred in admitting the testimony of Osama Rasik concerning her observation of defendant during the armed robbery at the 449 Food and Liquor Store during his trial for the armed robbery at the Busy Corner Pharmacy.

Evidence of other crimes committed by a defendant is inadmissible when it is independent of or disconnected from the crime with which he stands charged. (People v. Cage (1966), 34 Ill. 2d 530, 216 N.E.2d 805; People v. Copeland (1978), 66 Ill. App. 3d 556, 384 N.E.2d 391.) However, an exception is recognized when the evidence “fairly tends to place the defendant in proximity to the time and place of the offense charged, aids or establishes defendant’s identity, tends to prove intent, knowledge, motive, a common scheme or design, or a fact material to the issue on trial.” (People v. Oliver (1977), 50 Ill. App. 3d 665, 674, 365 N.E.2d 618, 625; see generally People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) The admission of such evidence, however, ultimately depends on balancing its probative value against its prejudicial effect, and the determination on this issue rests within the sound judicial discretion of the trial court. People v. De La Fuente (1981), 92 Ill. App. 3d 525, 414 N.E.2d 1355; Copeland.

We believe that Rasik’s testimony was properly admitted. The evidence established that the two robberies occurred within approximately 10 minutes of one another at locations in close proximity. Rasik’ s description of the armed robbery and defendant’s participation in it served to establish defendant’s identity as the person who committed an almost identical crime within one block and 10 minutes later. Although the proximity of the two occurrences alone would not prove this similarity (see, e.g., People v. Spencer (1972), 7 Ill. App. 3d 1017, 288 N.E.2d 612), the closeness of time and location of the two crimes together with the facts that the witnesses gave nearly identical descriptions of the armed robbers, that the perpetrator of the first robbery fled in the direction of the second, and that in both occurrences the robbers used a handgun, ordered that the money be placed in a bag, and made no effort to coneal themselves, sufficiently linked the one armed robbery with the other. (Cf., People v. Copeland (1978), 66 Ill. App. 3d 556, 384 N.E.2d 391.) The evidence was relevant to identify defendant as the armed robber of the pharmacy as charged. Moreover, the evidence was also relevant to rebut defendant’s alibi testimony. But see People v. Fuerback (1966), 66 Ill. App. 2d 452, 214 N.E.2d 330, where details of another crime admitted solely to rebut defendant’s alibi were deemed prejudicial.

Accordingly, in reviewing defendant’s bench trial, we do not find the probative value of the evidence outweighed by its prejudicial effect.

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

Affirmed.

LORENZ and SULLIVAN, JJ., concur.

       No question is raised by defendant regarding Kelly’s status as a police officer, and consequently we do not reach it.


author: JUSTICE O’CONNOR

text:
    SUSAN E. LOGGANS, Plaintiff-Appellant, v. JEWISH COMMUNITY CENTER OF MILWAUKEE, Defendant-Appellee.
    First District (5th Division)
    No. 81—3083
    Opinion filed March 25, 1983.

      William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for appellant.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Richard G. French and Dorothy F. French, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Susan E. Loggans sued defendant Jewish Community Center of Milwaukee for damages for injuries she suffered on July 21, 1978, while horseback riding at Camp Interlochen in Eagle River, Wisconsin. Camp Interlochen is a children’s camp owned by defendant. Defendant was served in Milwaukee. It filed a special and limited appearance and motion to quash service for lack of personal jurisdiction. Plaintiff and defendant each filed affidavits in support of their positions on the motion to quash. The trial court ordered discovery for the limited purpose of information concerning defendant’s special and limited appearance. After a hearing, defendant’s motion was granted.

Plaintiff appeals, contending that: (1) defendant’s commercial activities in Illinois were sufficiently substantial to constitute doing business under sections 13.3 and 16 of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, pars. 13.3, 16), now codified as sections 2 — 204 and 2 — 208 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, pars. 2 — 204, 2 — 208); and (2) the injuries sustained by plaintiff were sufficiently related to the business transacted by defendant to establish jurisdiction under the Illinois long-arm statute, section 17 of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, par. 17), now codified as section 2 — 209 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 2 — 209).

Plaintiff, by affidavit, stated:

During her 1969 Christmas vacation from school, she sought a summer job by reading the Chicago Tribune help-wanted ads. There was an ad by the Illinois Department of Labor for a riding instructor at a summer camp. From her home in Chicago she telephoned the Department and was told to come to their offices on La Salle Street, Chicago. She went there and was told that her employer would be defendant. Defendant mailed her information to her home in Chicago. She completed the application and mailed it from Chicago to Milwaukee. She was notified by mail that she had been preliminarily accepted and to come to Milwaukee for a personal interview. After her interview there, she was notified in Chicago that she had been accepted as the riding master at Camp Interlochen, the summer camp at Eagle River, Wisconsin. She was so employed during the summer of 1970. Each of the camp counselors, including plaintiff, were specifically invited to return on any available occasion during the year following their employment. They were told specifically that this return by camp counselors and other employees promoted the friendship and purposes of Judaism which they were attempting to instill in camp personnel.

As a result of this invitation, eight years later in the summer of 1978, she returned to the camp, accompanied by her husband. At that time the camp was closed to campers for the season. She was specifically invited to return the following year while the camp was in full operation. She returned the following year, specifically pursuant to the invitation issued the year before and years prior when she was employed there as a counselor. She considered her invitation at the camp to be her continuing responsibility as a prior employee of the camp and in furtherance of the duties and responsibilities she had undertaken at that time.

In her complaint, plaintiff alleged that on July 21, 1978, while at the camp riding horseback, she was injured when the horse slipped and fell in a wet mud hole, which existed due to the negligence of defendant.

The record shows:

Defendant is a nonprofit corporation, incorporated under the laws of Wisconsin. It owns no property, has no agents or offices and does not transact any business in Illinois. It is a social service agency whose services are designed to provide productive leisure time activity, strengthen Jewish identification and expression, and promote strengthening of Jewish family life. The services and facilities are open to all religions, all creeds and all races. Its members are all from Milwaukee, Wisconsin, area. They make use of defendant’s facilities and services. Defendant receives revenue from its membership and from program fees. There is no source of revenue received from Illinois corporations or organizations. There have been contributions from persons living out of Wisconsin. Defendant’s administrative director did not remember any specifically from Illinois residents.

Defendant has no offices in Illinois. It does not contribute to any charitable institutions in Illinois. It does not have any members residing in Illinois. It has not held any event or conducted any events in Illinois.

Defendant operates Camp Interloehen, a children’s camp at Eagle River, Wisconsin. It has residential cabins for children and staff, an office, library, recreational hall, athletic fields, riding stables and riding ring, the lake and an infirmary for overweight ill children. There are instructions (in swimming, archery and other kinds of activities), as well as athletic and social and recreational activities. The campers’ ages are from 9-16. Membership in defendant is required. There is a fee for a three-week session.

The land at this camp is owned by defendant and supervised by its members. There is seasonal, summer employment at the camp. To recruit those employees, defendant places ads in student newspapers or announcements in Hillel House. Hillel is the Jewish student organization on college campuses, a national network. There is a Hillel House at the University of Illinois.

Defendant regularly sends notices of job openings to Hillel House. It has had people from Illinois interested in working at the camp. The camp director does the interviewing and makes the ultimate decision on hiring. They are personal interviews which are in Milwaukee or in Madison, Wisconsin, where there are a lot of university students. The vast majority hired are university students. If there were sufficient applicants from Illinois, the camp director would go there. She has not gone yet.

Plaintiff came to Milwaukee for an interview at defendant’s invitation. The executive directors of defendant did not recall whether defendant paid her travel expenses. Neither defendant nor the camp has an office in Illinois; nor a mailing address; nor a telephone number.

The Jewish Community Center of Milwaukee currently uses the Hillel Counselor, Anrum Bass, at Northern Illinois University at De Kalb, as a source for staff recruitment for Camp Interlochen. Prior to 1980-81 it did not use this source in lining up applicants for interviews. It has not and does not distribute any recruitment materials except to Mr. Bass. It did not receive any applicants from Illinois for the 1981 season. It has not paid for prospective employees from Illinois to travel to Wisconsin to be interviewed.

Defendant publishes a monthly paper and program brochures which are distributed to its members in Milwaukee and to other Jewish Community Centers throughout the country. The only centers in Illinois to which these documents are mailed are the Jewish Community Centers of Chicago.

Defendant and Chicago Jewish Community Centers are part of a network of Jewish Community Centers throughout the world. No formal relationship exists between defendant and Chicago Jewish Community Centers. The network of Jewish Community Centers throughout the world are affiliated under an organization known as the Jewish Welfare Board.

The Jewish Welfare Board is a national organization involved in consultation, personnel recruitment and training for professional and lay leadership. Defendant has no formal or corporate relationship with the Jewish Welfare Board. It does pay an annual fee to the Jewish Welfare Board. The board does not make donations to defendant, nor does it have any control whatever over the activities of defendant. The Jewish Welfare Board has offices only in New York City, New York, Phoenix, Arizona, and Jerusalem, Israel. It does not have an office in Illinois nor does it have any field representatives in Illinois. Defendant does not place any advertisements or notices in the Jewish Welfare Board national newspaper.

The board has a national newspaper. Defendant has never put advertisements or notices in it. The board does not accept ads from the local centers. It has on infrequent occasions printed an article regarding a program in defendant’s center. It is only for an exchange of ideas among centers.

Ninety-five percent of defendant’s employees are local residents of Milwaukee who have had contact with defendant, either initially as volunteers who then became employed or who were trained in the local university in physical education and social work. Defendant has two employees from outside Milwaukee, both from New York City. It does not have nor ever has had any people who were originally from Chicago or were from Chicago when they came to Milwaukee to seek employment. To recruit its employees, defendant utilizes the Jewish Welfare Board, which has a national personnel bureau and lists various job vacancies for centers throughout the country. The other source is Milwaukee newspaper advertising.

If somebody at a center in Chicago obtained a copy of the Personnel Reporter published by the board and which contains job listings for openings in centers throughout the world, defendant would have listed there any jobs it would have open in Milwaukee. If someone from Chicago desired to work for defendant, he or she would be considered based on his or her qualifications.

For certain nonprofessional openings, i.e., support jobs, clerical or maintenance, defendant might use the public job service, such as the Department of Labor for notices. It has never put a notice with the Illinois Department of Labor. It has used the Wisconsin Department of Labor only for maintenance employees. It is not known whether Wisconsin exchanges information with other States.

In 1974, defendant entered into a written contract with the Chicago Jewish Community Centers, which operates Camp Chi at Lake Delton, Wisconsin, for older adults. Under that agreement, defendant paid to the Chicago Centers $50,000 as defendant’s share of expanding that camp in order to accommodate 20 Milwaukeeans each year. Defendant paid off its obligation under this contract, which is still in force and will be in perpetuity. There is no agreement between defendant and the Chicago Centers that defendant’s Camp Interlochen will take people from Chicago in exchange for sending defendant’s people to Camp Chi.

Bus transportation of people from Chicago to Camp Chi was contracted for by the Chicago Center for the benefit of its people. There was no agreement or understanding with any other Illinois Center; nor with any temples or synagogues in Illinois.

Plaintiff contends that all the above activities in Illinois were sufficiently substantial under sections 13.3 and 16 of the Civil Practice Act to constitute doing business in Illinois and that her injuries were sufficiently related to the transaction of business by defendant in Illinois to establish jurisdiction under the Illinois long-arm statute (section 17 of the Civil Practice Act). We disagree.

With reference to plaintiff’s first contention, jurisdiction may be acquired over a nonresident for a cause of action unrelated to the corporation’s activities- in this State so long as the corporation is doing business in Illinois. (Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857.) There is no all-inclusive test for determining whether a foreign corporation is doing business in this State. (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847.) Such finding, however, generally requires that the corporation conducts business in Illinois of such a character and extent as to warrant the inference that it has subjected itself to the jurisdiction and laws of Illinois. Cook Associates, Inc. v. Lexington United Corp.

With reference to plaintiff’s second contention, this court said in Veeninga v. Alt (1982), 111 Ill. App. 3d 775, 777, 444 N.E.2d 780:

“Our supreme court has stated that our long-arm statute reflects ‘a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause.’ (Nelson v. Miller (1957), 11 Ill. 2d 378, 389, 143 N.E.2d 673.) Recently, in Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436, 427 N.E.2d 1203, the court clarified this observation by stating: ‘A statute worded in the way ours is should have a fixed meaning without regard to changing concepts of due process, except, of course, that an interpretation which renders the statute unconstitutional should be avoided, if possible.’ Accordingly, ‘the boundaries or limits under our statute are not to be equated with the “minimum contacts” test under the due process clause.’ (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 197, 429 N.E.2d 847; see International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, [158].)’ [T]his due process standard represents only the outer limits beyond which a State may not go to acquire jurisdiction over nonresidents.’ Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 197.”

Under both contentions, plaintiff relies on the following activities:

(1) Defendant placed a notice with the Illinois Department of Labor. Plaintiff was hired and as an employee was invited to return to the camp at Eagle River, Wisconsin.
(2) Defendant now sends notices of job openings for the camp to Hillel Houses at the University of Illinois and Northern Illinois University.
(3) Defendant contracted with the Jewish Community Centers of Chicago in order to send 20 of its older adult campers to the Chicago community Center’s Camp Chi at Lake Delton, Wisconsin.
(4) Defendant sends its monthly newspaper and program brochures to the Jewish Community Centers of Chicago.

We hold that none of these, taken singly or in combination, constitutes either “doing business” or the “transaction of business.” See Colnar v. Baldknobbers, Inc. (1982), 107 Ill. App. 3d 234, 437 N.E.2d 718.

Taking as true plaintiff’s assertion that she read an ad in the Chicago Tribune which had been placed by the Illinois Department of Labor (even though the depositions plaintiff took of defendant’s officers showed defendant had never placed an ad with the Illinois Department of Labor), that ad, in and of itself, is an insufficient basis for Illinois personal jurisdiction. Nor do the use of Hillel Houses and the sending of defendant’s monthly paper and program brochures to the Chicago Centers aid plaintiff’s claim of jurisdiction. More than mere solicitation generally is required. (St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, 369 N.E.2d 52.) Nor does the agreement between defendant and the Chicago Community Centers concerning the use by 20 adult campers at Camp Chi at Lake Delton add anything of substance to plaintiff’s claim of jurisdiction. These activities are not sufficiently substantial to constitute the doing of business in Illinois. See Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847, where the court held that an exhibit at three trade shows where some orders were taken and a fruitless interview did not constitute doing business.

Even though the “transaction of any business” in section 17 is not to be restricted to “doing business” (Lurie v. Rupe (1964), 51 Ill. App. 2d 164, 201 N.E.2d 158, appeal denied (1964), 30 Ill. 2d 627, cert denied (1965), 380 U.S. 964, 14 L. Ed. 2d 154, 85 S. Ct. 1108; Haas v. Fancher Furniture Co. (N.D. Ill. 1957), 156 E Supp. 564), the above activities do not satisfy the requirements of section 17.

In Stephens v. Northern Indiana Public Service Co. (1980), 87 Ill. App. 3d 961, 967, 409 N.E.2d 423, the court said:

“The purpose of the phrase ‘arising from’ in section 17(1) (and of section 17(3)) is to assure that there is a sufficiently close relationship between the nonresident defendant’s business activities here and the cause of action against which he must defend. (Volkswagen Insurance Co. v. Whittington (1978), 58 Ill. App. 3d 621, 624, 374 N.E.2d 954, 957; First National Bank v. Screen Gems, Inc. (1976), 40 Ill. App. 3d 427, 434, 352 N.E.2d 285, 291; Koplin v. Thomas, Haab & Botts (1966), 73 Ill. App. 2d 242, 252-53, 219 N.E.2d 646, 651.) As the court said in Whittington:
'*** ¡Ejection 17(l)(a) of the long arm statute does not confer jurisdiction over a foreign corporation doing business in Illinois in an action bearing no relationship to the business done in Illinois. [Citation.] Simply stated, doing business in' Illinois, by itself, is not a sufficient contact with Illinois to trigger long arm jurisdiction under section 17(l)(a). The foreign corporation’s business within Illinois must be related to the cause of action in question before section 17(l)(a) will confer personal jurisdiction. If none of this business gives rise, at least in part, to the cause of action in question, then no such jurisdiction exists.’ 58 Ill. App. 3d 621, 624-25, 374 N.E.2d 954, 957.
In Chicago Film Enterprises v. Jablanow, the court again expressed the rule as stated in Chicago Silver Exchange v. United Refinery, Inc. (N.D. Ill. 1975), 394 F. Supp. 1332, 1335, that ‘ “section 17 [of the Illinois long-arm statute] clearly requires that the activities which are relied on to sustain jurisdicquestion, at least in part ***.” ’ 55 Ill. App. 3d 739, 742, 371 N.E.2d 161.”

Further, section 17 requires that a plaintiff’s claim be one which lies in the wake of the commercial activities by which defendant submitted to the jurisdiction of Illinois courts. (Koplin v. Thomas, Haab & Botts (1966), 73 Ill. App. 2d 242, 219 N.E.2d 646, appeal denied (1967), 35 Ill. 2d 629; Dalton v. Blanford (1978), 67 Ill. App. 3d 91, 383 N.E.2d 806.) The injury to plaintiff in 1978, eight years after she had been hired and had worked for one summer in 1970, cannot be said to “lie in the wake” of the activities on which plaintiff relies. Nor do the activities relied on give rise, even in part, to the suit in question.

Even if defendant’s activities could be considered “doing business” or the “transaction” of business in Illinois, there is no factual relationship and there is a complete lack of proximity in time between those activities and plaintiff’s injury eight years later.

The trial court correctly granted defendant’s motion to quash service. It is affirmed.

Affirmed.

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


author: JUSTICE JIGANTI

text:
    INLAND CONSTRUCTION COMPANY, INC., Plaintiff-Appellant, v. THE HOME INDEMNITY COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—1167
    Opinion filed March 31, 1983.
    Wildman, Harrold, Allen & Dixon, of Chicago (James A. Christman and Kathy Pinkstaff Saxton, of counsel), for appellant.
    Sandra Young and Edward C. Purcell, both of Purcell & Wardrope, Chartered, of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

Inland Construction Company, Inc. (Inland), filed a declaratory judgment action against Home Indemnity Co. (Home). Inland alleged that under the terms of the Home liability policy, Inland was entitled to full coverage in a personal injury action filed by Andrew Ratkovich. Home filed a “Motion for Judgment on the Pleadings in Lieu of Answer” alleging that endorsement No. 9 of the policy specifically excluded insurance coverage for the underlying Ratkovich action. Inland contended that the endorsement was ambiguous and created a factual issue. The trial court entered judgment on the pleadings in favor of Home and against Inland.

Endorsement No. 9 reads as follows:

“The coverage provided by this policy shall not apply [sic] work performed by the Insured at the following job sites:
1. Marban-Water Tower Place
2. Bloomingdale Venture
3. Fox Valley Venture-Aurora Shopping Center
4. Orland Park Venture-Orland Park Shopping Center.”
(Emphasis added.)

It is not disputed that Ratkovich was injured at the “Sears construction site” in the “Orland Park Shopping Center.” The dispute revolves around the particular wording of the policy, “Orland Park Venture-Orland Park Shopping Center.” Home interprets the language as being unlimited, thereby excluding Inland from coverage for all injuries occurring at job sites in the Orland Park Shopping Center. Inland’s interpretation is more limited, only excluding Inland from coverage for those injuries in the Orland Park Shopping Center which occur at a job site that is part of the Orland Park Venture. Inland in responding to Home’s motion for judgment alleged that although Inland was indeed constructing a Sears store at the Orland Park Shopping Center, neither Sears nor Inland were members of the Orland Park Venture during this construction. Consequently, since the exclusion only applies to job sites involving the Orland Park Venture, and the Orland Park Venture is not involved, Inland is not excluded from coverage.

A contract is ambiguous when .the language used is reasonably susceptible of more than one meaning. (Whiting Stoker Co. v. Chicago Stoker Corp. (7th Cir. 1948), 171 F.2d 248; St. Joseph Data Service, Inc. v. Thomas Jefferson Life Insurance Co. of America (1979), 73 Ill. App. 3d 935, 393 N.E.2d 611.) It is the function of the court to determine whether the language has more than one meaning and therefore an ambiguity exists. (URS Corp. v. Ash (1981), 101 Ill. App. 3d 229, 427 N.E.2d 1295; National Tea Co. v. American National Bank & Trust Co. (1981), 100 Ill. App. 3d 1046, 427 N.E.2d 806.) When the terms of a contract are ambiguous, extrinsic evidence must be introduced to explain the language and resolve the ambiguity. (Kokinis v. Kotrich (1979), 74 Ill. App. 3d 224, 392 N.E.2d 697.) We believe that Inland’s interpretation is reasonable and has raised the issue of an ambiguity which can only be resolved by the introduction of extrinsic evidence. Therefore, the court was in error in entering judgment in favor of Home on the pleadings.

For the above reasons the judgment on the pleadings is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

ROMITI, P.J., and LINN, J., concur.


author: JUSTICE GOLDBERG

text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Plaintiff-Appellant, v. PHILIP O’CONNOR, Director of Insurance, et al., Defendants-Appellees.
    First District (1st Division)
    No. 82—1360
    Opinion filed March 28, 1983.
    Epton, Mullin, Segal & Druth, Ltd., of Chicago (Roger A. Bixby and William G. Potratz, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Chicago (Edward M. Kay, Assistant Attorney General, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Trinity Universal Insurance Company (plaintiff), an insurance company organized under the laws of Texas and authorized to do business in Illinois, brought this action against Philip O’Connor, Director of Insurance of the State of Illinois and the Department of Insurance of the State of Illinois (defendants), for declaratory judgment and for administrative review of a decision of said Department of Insurance (Department).

The trial court dismissed the administrative review proceedings without prejudice. Plaintiff then made a motion for summary judgment on the remaining issues concerning a tax refund requested by plaintiff. The defendants also made a motion for summary judgment. The trial court entered an order allowing the defendants’ motion for summary judgment and denying plaintiff’s motion. The trial judge filed a memorandum of decision in support of his ruling. Plaintiff has appealed.

We find no factual issue here. Determination of the rights of the parties rests upon an issue of law. The State of Illinois imposes a privilege tax upon foreign or alien insurance companies conducting business in Illinois. (111. Rev. Stat. 1981, ch. 73, par. 1021.) This privilege tax, equal to 2% of the net taxable premium income, is to be paid “to the Director for the State treasury *** together with any amounts due under Section 444.” With certain exceptions, the gross taxable premium income was defined as “the gross amount of premiums received on direct business during the preceding calendar year on contracts covering risks in this State ***.”

During the time pertinent here, the statute, section 409 of the Illinois Insurance Code, provided:

“There shall be deducted from the tax thus computed the amount, if any, paid during the preceding calendar year: *** as a tax to this State *** measured by net income, *** as the remainder shall be paid by such company as its annual privilege tax.” Ill. Rev. Stat. 1977, ch. 73, par. 1021(2).

In addition to this privilege tax, the State of Illinois has also levied a tax referred to as “Retaliation.” (111. Rev. Stat. 1981, ch. 73, par. 1056.) This retaliation tax provides that where any other State or country requires an Illinois corporation to comply with “more onerous or burdensome” restrictions than the rules and regulations imposed by Illinois on foreign corporations, the State of Illinois may require foreign insurance corporations doing business in Illinois “to make deposits, pay penalties, fees, charges and taxes, in amounts equal to those required in the aggregate for like purposes of Illinois companies doing business in such state or country ***.”

The State of Texas levies a premium tax on all Illinois insurance companies doing business in Texas. This tax is equivalent to 3.85% of the gross premium receipts of said insurance company. (Tex. Tax Code Ann., tit. 122, art. 7064 (Vernon 1979), now Tex. Ins. Code Ann., art. 4.10 (Vernon 1982).) For the year 1977, Illinois charged plaintiff a retaliatory tax also calculated at the same rate of 3.85% of insurance premiums. Plaintiff sought to offset against this retaliatory tax the payments made by plaintiff under the Illinois income tax, as plaintiff did in the calculation of the privilege tax. The result would be a credit to plaintiff of $17,058.23, which plaintiff presently claims should be refunded as an overpayment of its 1977 Illinois taxes.

In this court plaintiff contends that section 409 of the Code (111. Rev. Stat. 1977, ch. 73, par. 1021), pertaining to the privilege tax, is to be construed together with section 444 (111. Rev. Stat. 1977, ch. 73, par. 444), creating the retaliatory tax; that the only reasonable construction which can be given to section 409, pertaining to the privilege tax, is that the retaliatory tax payments should be offset against income tax as in the case of the privilege tax. On the contrary, defendants contend that the deduction provided by section 409 of the Code permits plaintiff to offset income tax against the privilege tax but not against the retaliatory tax.

Plaintiff’s first contention rests upon the language of section 409 which deals with the privilege tax. Plaintiff points out the statement that the insurance company shall pay for the privilege of doing business in Illinois as “tax equal to 2 per cent of the net taxable premium income, together with any amounts due under Section 444.” (111. Rev. Stat. 1981, ch. 73, par. 1021(1).) Plaintiff construes this language as to amounts due as requiring that the retaliatory tax be treated precisely as the privilege tax so as to permit an additional set off against income taxes.

We cannot agree that the words “together with any amounts due under Section 444” (111. Rev. Stat. 1981, ch. 73, par. 1021(1)) permit elimination of the retaliatory tax by offset against income taxes. If the legislature wished to give foreign insurance companies credit for the amount of retaliatory taxes paid, the legislature could easily have expressed a precise direction establishing the allowing of such credit.

In fact, a careful reading of section 409 demonstrates that the legislature did no such thing. The statute simply requires the privilege tax to be paid together with any amounts due under section 444 for the retaliatory tax. A direction that the privilege tax be paid “together with” amounts due for the retaliation tax is simply a reiteration of the requirement for payment of the retaliatory tax. It is far from constituting permission to eliminate the retaliatory tax as a credit by offset against income tax payments. Actually, if the retaliatory tax, which has no relationship either legal or factual to the privilege tax, were to be reduced or eliminated by a credit or set off, the entire purpose of the retaliation would be destroyed. If we were to reach this conclusion we would in effect be undermining and virtually eliminating the retaliatory tax. This would be an absurd consequence certainly not contemplated by the legislature. People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 493, 389 N.E.2d 540; Airdo v. Village of Westchester ex rel. Clark (1981), 95 Ill. App. 3d 568, 570, 420 N.E.2d 472.

We have above considered the language of section 409(2) of the Insurance Code as it existed in 1977, which is the tax year involved in this appeal. In 1979, the legislature amended this section by inserting the words “but only to the extent thereof.” Thus, section 409(2) of the Code presently reads (111. Rev. Stat. 1981, ch. 73, par. 1021(2), as amended by Pub. Act 81 — 603, sec. 1, eff. Jan. 1,1980):

“There shall be deducted from the tax thus computed, but only to the extent thereof, the amount, if any, paid during the preceding calendar year ***.”

This addition in effect limits the amount to be offset from income tax and would effectively prevent an additional deduction of any retaliatory taxes paid. The Act as thus amended retained all of the previous language and simply added “but only to the extent thereof.” This leads to the presumption that the legislature intended to adopt the prior meaning given to the statute before amendment. Hupp v. Gray (1978), 73 Ill. 2d 78, 85-86, 382 N.E.2d 1211.

Plaintiff cites Pacific Mutual Life Insurance Co. v. Gerber (1961), 22 Ill. 2d 196, 197, 174 N.E.2d 862, as authority for the statement that the retaliatory tax is really characterized as a privilege tax. We do not agree with that interpretation of the cited case. In fact, the plaintiff insurance company there paid personal property taxes in two Illinois counties and raised the claim that section 444 of the Insurance Code, creating the retaliation, should be set off or reduced by the amount of personal property taxes paid by plaintiff. However, the supreme court denied this contention of the plaintiff and held that the deduction of personal property taxes was not permitted by the statute creating retaliation as it existed before 1979.

In this regard, it is correct as defendants point out that “the experience of an administrative agency in matters interpretive of the law under which it operates, although not controlling, may be considered and brought to bear upon the ultimate decision to be reached.” (Heerey v. Zoning Board of Appeals (1980), 82 Ill. App. 3d 1088, 1093-94, 403 N.E.2d 617.) The practice of the agency here to reject this type of setoff should have some significance.

This court has held that the retaliatory statute is a penal enactment so that it must be narrowly construed. The purpose of the tax is simply to promote the interstate business of domestic insurance companies and thus attempt to prevent other States from handicapping Illinois domestic companies with excessive taxes. (Minnesota Mutual Life Insurance Co. v. O’Connor (1981), 98 Ill. App. 3d 1040, 1042-43, 425 N.E.2d 38, citing Western & Southern Life Insurance Co. v. State Board of Equalization (1981), 451 U.S. 648, 668-70, 68 L. Ed. 2d 514, 531, 101 S. Ct. 2070, 2083.) Permitting reduction or elimination of the retaliation as urged by plaintiff would be directly contrary to this legislative purpose.

It is also correct, as defendants urge, that the allowance of a tax deduction by the sovereign is actually a matter “of legislative grace and that the taxpayer must establish compliance with the statutory conditions imposed.” (Bodine Electric Co. v. Allphin (1980), 81 Ill. 2d 502, 509, 410 N.E.2d 828; see also United Air Lines, Inc. v. Johnson (1981), 84 Ill. 2d 446, 455, 419 N.E.2d 899.) In the case before us there is no word or hint in the retaliation section (Ill. Rev. Stat. 1981, ch. 73, par. 1056) that the legislature intended to create a set off or deduction of any kind against the full payment of the retaliation as stated.

For these reasons the judgment appealed from is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.