author: JUSTICE JOHNSON

text:
      In re V.W., a Minor.—(The People of the State of Illinois, Petitioner-Appellee, v. V.W., Respondent-Appellant.)
    First District (4th Division)
    No. 81—2434
    Opinion filed January 27, 1983.

      Steven Clark and Elizabeth Clarke, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and James Klein, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court;

Respondent, V.W., a minor, and two other minor respondents, Wayne Fair and Earl Carson, were adjudicated delinquent for committing the offenses of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4) and compelling organization membership of a person under 17 years (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 6.1). The trial court declared V.W. and his co-respondents wards of the court and committed them to the Juvenile Division of the Department of Corrections. The minors, Fair and Carson, are not parties to this appeal. V.W. appeals from the judgment of the trial court and raises the following issues for review: (1) whether the representation of all three minors in the same hearing by a single public defender denied respondent his right to effective assistance of counsel; (2) whether there was sufficient evidence to find respondent guilty of compelling organization membership of the victim, and (3) whether the statute which prohibits compelling organization membership by force is unconstitutionally vague and overbroad.

We reverse and remand.

A petition for adjudication of wardship of V.W., Wayne Fair and Earl Carson was filed by the State on May 12, 1981. At the adjudication hearing on August 27, 1981, the State’s evidence showed the following: on April 24, 1981, at about noon, 15-year-old Christopher Me-Bee was in the schoolyard of the Beethoven grammar school on Chicago’s south side. McBee was approached by V.W., Wayne Fair, Earl Carson and another boy. The four boys crossed their fists in a particular way and V.W. asked McBee, “What do you ride?” According to McBee, that meant that V.W. and his companions were inquiring about McBee’s gang affiliation. When McBee denied belonging to any gang, V.W. pulled out a chain approximately one inch in diameter and two feet in length. McBee tried to ran away but V.W. and his companions caught him. V.W. beat McBee about the head and back with the chain. One of V.W.'s co-respondents, Earl Carson, held McBee while V.W. and the others kicked and beat him. Mr. Griffen, the school’s truant officer, was on the playground during the attack.

McBee was able to free himself and ran to the principal’s office. While he was talking with the principal, V.W. and the three other boys came into the office and continued beating him. The principal called the police, but the four assailants fled before the police arrived. However, later, in the schoolyard, McBee pointed out Carson to Officer Yancy of the Chicago police department as one of the assailants. Carson was taken into custody at that time.

At the adjudication hearing, neither the truant officer, Mr. Griffen, nor the principal, Mrs. Folks, testified. McBee stated that V.W. and the three others beat him to force him to join the El Rukin street gang. McBee said that he was not and had never been a member of a gang. At the hearing, McBee identified all three respondents as his assailants.

Chicago police officer Earl Yancy testified that he received a call on April 24, 1981, in which it was reported that there were several armed teenagers in the principal’s office at the Beethoven school. When he arrived at the school, the principal told him that several boys had come into her office and had attacked McBee in her presence. Yancy noticed that McBee had bruises, cuts and what appeared to be marks from a chain on his head, neck and shoulders, and his face was swollen. Yancy took McBee to the schoolyard where he pointed out Carson as one of the assailants, whom Yancy then arrested.

All three respondents were represented by the same assistant public defender at the adjudication hearing in which they were all found to be delinquent. Each respondent testified in his own behalf. Carson stated that he was at the Beethoven school on the date in question but did not see McBee that day and knew nothing of the incident in which McBee was beaten. Fair stated that he was not at Beethoven school at any time on the day in question and was attending class at DuSable high school at the time of the incident.

Respondent V.W. testified that he was in the schoolyard with Carson, Fair and another boy when McBee and several other boys approached. McBee and his friends identified themselves as members of the Disciples gang and then attacked V.W. and his three companions. V.W. stated that McBee stabbed another boy during the fight. He also said that he used the chain in self-defense when McBee attacked him. V.W. denied trying to force McBee to join a gang.

At the conclusion of the testimony, the court made a finding of delinquency on both counts and adjudicated all three minor respondents wards of the court.

On September 15, 1981, when respondent V.W. appeared before the court for sentencing, he made a motion for a new trial. His attorney argued that because of the inconsistent statements of the respondents at the adjudication hearing, and the failure of the attorney representing all three respondents to withdraw, V.W. was denied his right to effective counsel. In denying the motion, the judge noted that no motion for a mistrial had been made either at the hearing or immediately afterward, and there was no apparent conflict at the time. V.W. was sentenced to the Juvenile Division of the Department of Corrections.

On appeal, V.W. argues that representation of joint respondents by a single public defender in the same hearing denied him his right to effective assistance of counsel. In support of this argument, V.W. states that the alibi defenses given by the other two co-respondents conflicted with his testimony. Specifically, the co-respondents testified that they were elsewhere at the time of the incident, while V.W. testified that all three were present but that he (V.W.) acted in self-defense. V.W. gave no account of the involvement of his two co-respondents other than their presence at the scene.

The State argues that V.W. has not shown an actual conflict of interest such as is necessary to show that his representation by the public defender was inadequate. We disagree with this argument.

While V.W.’s co-respondents gave alibi testimony concerning their whereabouts on the day of the attack, V.W.’s testimony placed them at the scene. The defense counsel was thus presented with a situation in which it appeared that at least one of his three clients was lying. He could not examine his own clients in detail to bring out the truth. For example, a detailed direct examination of Fair establishes his alibi but suggests that V.W. is lying about Fair’s presence at the scene of the crime. Thus, to adequately represent Fair, the defense attorney may have weakened his defense of V.W. On the other hand, a detailed persuasive examination of V.W. destroys the alibi of Fair. A detailed examination of both establishes that one of the two is not telling the truth. A decision not to put any of them on the witness stand would deprive the accused minors of their right to tell their versions of the incident. This is a classic dilemma which no defense attorney should face. Moreover, since the defense attorney was representing all three minors, he could hardly take an adversarial posture and vigorously cross-examine his own clients.

The closing arguments also presented a problem for the defense attorney. While it was possible for him to argue vigorously that V.W. acted in self-defense, he could hardly argue with the same vigor that the two co-respondents’ alibis were to be believed, without implying that V.W. had lied under oath when he said that the others were present.

While it is true that it is not per se violative of constitutional guarantees for a single attorney to represent co-respondents, joint representation of conflicting interests is suspect (see Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173). In Holloway, three defendants, charged with rape and robbery, were represented at their consolidated trial by a single public defender. One of the defendants had initially made a confession in which he stated that he had acted as a lookout while the other two defendants committed the crimes but that he had not actually taken part himself. He later recanted the confession. The trial court ruled the confession admissible but ordered the deletion of references to the co-defendants. At trial, each defendant testified in his own behalf. Each denied involvement in the crimes and offered alibis for their whereabouts at the time of the crimes. The defense attorney could neither examine them regarding the truth of their statements nor assume an adversarial role and cross-examine each one. All three defendants in the case were convicted. On appeal to the Supreme Court of Arkansas and, later, to the United States Supreme Court, defendants argued that representation by a single attorney violated their constitutional right to effective assistance of counsel. The United States Supreme Court agreed and reversed the convictions.

In a case of joint representation of conflicting interests, the evil is in what the attorney finds himself compelled to refrain from doing. (Emphasis added.) (435 U.S. 475, 490, 55 L. Ed. 2d 426, 438, 98 S. Ct. 1173, 1182.) We find this principle to be applicable to the instant case.

We hold that under the facts of this case respondent was denied effective assistance of counsel. The adjudication of delinquency must, therefore, be reversed.

We next address respondent’s contention that there was insufficient evidence to find him guilty of compelling organization membership of a person under 17 years of age. Respondent argues that the beating was an act of self-defense; but, even if it was not, the most that the trial court could have concluded from the evidence was that McBee was beaten because he was not a member of a gang and not that he was beaten for recruitment.

It is undisputed that the victim was severely beaten. The victim testified that he was being recruited to join the El Rukin street gang and that was the purpose of the beating. He also testified that he knew respondent and the other assailants to be members of that gang. The respondent testified that he was not recruiting McBee for a gang and the beating was an act of self-defense. The issue, thus, presents a question of credibility. On questions involving credibility, we will not substitute our judgment for that of the trier of fact unless the evidence is so improbable as to raise a reasonable doubt as to respondent’s guilt. (People v. Lindsey (1979), 72 Ill. App. 3d 764, 773-74, 391 N.E.2d 382, 389.) We find no such improbability here. It was reasonable for the trial court to make a finding of guilt based on the evidence and the logical inferences that flowed therefrom.

We hold that there was sufficient evidence from which a finding of guilty of compelling organization membership could be made. However, in light of our holding on respondent’s first issue, we remand the case to the circuit court of Cook County for a new adjudication hearing. In light of these findings, it is unnecessary to determine, at this time, the constitutionality of the statute.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the case is remanded for a new hearing.

Reversed and remanded.

LINN and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN PRESIDING JUSTICE WEBBER,

license: Public Domain

text:
    JANET MARTINO, Plaintiff-Appellant, v. FAMILY SERVICE AGENCY OF ADAMS COUNTY et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0188
    Opinion filed December 9, 1982.
    — Modified on denial of rehearing February 25, 1982.

      WEBBER, RJ., concurring in part and dissenting in part.
    Leahy and Leahy, of Springfield (Mary Lee Leahy and Andrew J. Leahy, of counsel), for appellant.
    Delmer R. Mitchell and Mark A. Drummond, both of Schmiedeskamp, Robertson, House, Neu & Mitchell, of Quincy, and Cornelius Thomas Ducey, Jr., and Mark R. Osland, both of Ducey, Feder & Ducey, Ltd., of Belleville, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

On November 18, 1980, plaintiff, Janet Martino, brought suit in the circuit court of Sangamon County against defendants, Family Service Agency of Adams County (Family Service) and Jane Balke. The venue was subsequently transferred to the circuit court of Adams County. On March 8, 1982, upon defendants’ motion, that court entered a judgment dismissing, with prejudice, plaintiff’s five-count, third amended complaint. Plaintiff appeals.

The principal issue on appeal is whether the various counts of the third amended complaint stated causes of action. Although based on different theories, the various counts had a common theme. They alleged: (1) Family Service offered family and marriage counseling services to the public; (2) on or about October 7, 1979, Family Service contracted with plaintiff to provide counseling service in an effort to improve the marital relationship between plaintiff and her husband; (3) defendant Balke, who was Family Service’s chief executive officer, was assigned to counsel with plaintiff and did so between October 1, 1979, and May 1, 1980; and (4) during this period Balke (a) used against plaintiff’s interest information obtained by Balke from plaintiff during counseling, (b) revealed those confidences to others, (c) fell in love with plaintiff’s spouse, pursued him, and engaged in “intimate relations” with him, and (d) after developing this conflict of interest failed to either inform plaintiff of the conflict or terminate her counseling relationship with plaintiff.

Count I, II and III were directed solely against Family Service and counts IV and V were directed solely against Balke. Count I was based upon the theory that Family Service breached a contract with plaintiff to furnish counseling services to her that would be performed with skill, care and ethics commonly exercised in the counseling profession in Quincy or similar places. Count II alleged that through the master-servant relationship, Family Service was liable for the tort of malpractice of the profession of social work. Count III maintained Family Service, acting through Balke, violated the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1979, ch. 91V2, par. 801 et seq.) and the Social Workers Registration Act (Ill. Rev. Stat. 1979, ch. Ill, par. 6301 et seq.). Counts IV and V charged Balke as an individual with the tort of social worker malpractice and of violations of the two aforesaid acts.

We consider first counts II and V which. purport to sound in the tort of malpractice. Although count II, directed solely against Family Service, alleges it failed to provide a competent counselor and to train and guide her as well as alleging liability of Family Service under the doctrine of respondeat superior, plaintiff’s theories are all dependent upon the counselor, Balke, having provided service in a manner constituting malpractice.

Plaintiff has failed to present any direct statutory or common law authority as precedent for applying the tort of malpractice to the social work profession. Similarly, we have been unable to discover any such precedent. Plaintiff seeks to draw analogy to the medical profession, where a breach of duty has been held to arise from a psychiatrist having intercourse with his patient as part of her prescribed therapy (Roy v. Hartogs (1976), 85 Misc. 2d 891, 381 N.Y.S.2d 587), a psychiatrist beating a patient (Hammer v. Rosen (1960), 7 N.Y.2d 376, 165 N.E.2d 756), and a hospital negligently failing to abide by licensing regulations (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253). Plaintiff points out that a code of ethics has been adopted by the National Association of Social Workers which would have been violated by the conduct of Balke alleged here. Plaintiff also maintains that breach of the social worker’s code alleged here would be similar to a breach by a lawyer of codes promulgated by various bar groups such as the American Bar Association.

Plaintiff emphasizes the loyalty and trust that should be at the heart of a relationship between a social worker and a client, likening it to a fiduciary relationship. Plaintiff cites Suchy v. Hajicek (1936), 364 Ill. 502, 4 N.E.2d 836, where the court stated:

“In general, a fiduciary or confidential relationship exists where trust and confidence are reposed by one person in another, who, as a result, gains an influence and superiority over the first.” (364 Ill. 502, 509, 4 N.E.2d 836, 840.)

In Steinmetz v. Kern (1941), 375 Ill. 616, 32 N.E.2d 151, the court held that the existence of such a relationship “prohibits the one trusted from seeking or obtaining any selfish benefit for himself during the course of the relationship.” (375 Ill. 616, 620, 32 N.E.2d 151, 154.) However, neither of the above cases held a breach of a fiduciary duty to be a tort.

Plaintiff also relies on the following statements:

“The therapist-patient relationship is one of great intimacy and trust, in which the therapist encourages the patient to confide in the therapist, and the therapist has a corresponding fiduciary responsibility to the patient.” 20 Proof of Facts 2d 433 (1979).
“Psychiatrists, psychologists, and other mental health professions are required to exercise due skill and care in conformity with that ordinarily exercised by qualified professionals in their respective fields.” 20 Proof of Facts 2d 439 (1979).

The most authoritative texts give a broad scope to the types of endeavor in which the tort of malpractice may be committed:

“Sec. 299 A. Undertaking in Profession or Trade Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.” Restatement (Second) of Torts sec. 299 A (1965).
“Beyond this the American courts have extended the tort liability for misfeasance to virtually every type of contract where defective performance may injure the promisee. An attorney or an abstractor examining a title, a physician treating a patient, a surveyor, an agent collecting a note or lending money or settling a claim, or a liability insurer defending a suit, all have been held liable in tort for their negligence. The same is true of contractors employed to build a structure, to transport people or goods, to install a windmill or a lightning rod, or to shoot an oil well, or a beauty shop giving a permanent wave; of suppliers of chattels, and of many others.” Prosser, Torts sec. 92, at 617 (4th ed. 1971).

Plaintiff also relies on the recent decision in National Bank of South Dakota v. Leir (1982), S.D., 325 N.W.2d 845, and cases cited therein in support of her theory. Leir and those other cases were decided on the issue of whether social workers employed by governmental units had sovereign immunity. However, the implication in Leir and some other cases was that social workers were liable for negligence in their furnishing of services for their clients.

Despite the implications of the foregoing cases, the directives of the Restatement (Second) of Torts and Prosser on Torts and the inference arising from the quoted material that the tort of malpractice is applicable to one engaged in the profession of social work, we are unwilling to recognize such a tort at least when it arises from conduct not intended to harm. No Illinois court of review has done so in the past. Although the conduct alleged here was clearly improper, determination of the propriety of conduct of social workers and the relationship it might have to injury suffered by clients generally would be most difficult to ascertain. The damages a client might receive from the improper practice of social work are unlikely to be pecuniary in nature and extremely unlikely to be physical in nature. The supreme court rejected similar arguments against upholding a right to recover for the tort of intentional infliction of severe emotional harm in Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157. Nevertheless, the court then stated:

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

In the absence of Illinois precedent we find no compelling policy reason to initiate the recognition of the tort of social worker malpractice for unintended “hurts” most of which we deem likely to be “slight hurts which are the price of a complex society.” We decline to do so. The trial court properly dismissed counts II and IV.

We view count I charging breach of contract in a different light. It alleged that a contract was entered into between plaintiff and Family Service for the furnishing of counseling and that competent counseling was not provided to the damage of plaintiff. It alleged that competent counseling included (1) a duty of loyalty to the client, (2) a withdrawal by a counseling social worker if a conflict of interest developed, and (3) an avoidance of revelation to others or use by the social worker against the interests of the client of confidential information obtained during the counseling. The factual allegations set forth a breach of that promised service. We are also unaware of case precedent for such a suit in contract. However, no specific precedent is necessary to support the viability of a complaint which alleges a contract from which certain promises are implied, a breach of those implied promises and damages.

The allegations of damages require discussion. They were as follows:

“a. Plaintiff revealed highly personal and intimate information which she would otherwise not have revealed, which information was transmitted to others and was used against plaintiff’s interests.
b. Plaintiff was deprived of the opportunity to have relations between herself and her husband improved.
c. Plaintiff gave up her residence in Quincy, Illinois.
d. Plaintiff gave up her employment in Quincy, Illinois.
e. Plaintiff suffered embarrassment and emotional distress.
f. Plaintiff suffered a loss of confidence in the integrity of counselors and has been deprived of the ability to obtain counseling.”

Items a. and b. are proper elements of damages for breach of the implied condition of the contract alleged. The giving up of a residence or employment is not a proper element of damage particularly when no monetary loss therefrom is specifically alleged. Embarrassment, emotional distress and loss of confidence in the integrity of counselors are not proper elements of damage for breach of contract. The deprivation of the ability to have counseling, to the extent that it constitutes proper damage, is a restatement of item f.

As count I stated a contract, a breach and some proper elements of damage, the trial court erred in dismissing it.

Counts III and V, directed against Family Service and Balke, respectively, are primarily based upon allegations of violations of sections 3 and 15 of the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act), which provide in part:

“Sec. 3. (a) All records and communications shall be confidential and shall not be disclosed except as provided in this Act.
* * *
Sec. 15. Any person aggrieved by a violation of this Act may sue for damages, an injunction, or other appropriate relief. Reasonable attorney’s fees and costs may be awarded to the successful plaintiff in any action under this Act.” Ill. Rev. Stat. 1979, ch. 9172, pars. 803, 815.

Section 2 of the Act (111. Rev. Stát. 1979, ch. 9172, par. 802(1), (9)) defines “Confidential communication” or “communication” as “any communication made by a recipient *** to a therapist *** during or in connection with providing mental health *** services to a recipient.” The term “Therapist” is defined to include “[a] social worker *** providing mental health *** services ***.” Section 5(a) (111. Rev. Stat. 1979, ch. 9172, par. 805(a)) exempts certain communications from this prohibition. However, there are no allegations in this case of any such exempted communications.

Counts III and V also allege violations of section 20 of the Social Workers Registration Act (Registration Act) (111. Rev. Stat. 1979, ch. Ill, par. 6324), which prohibits a social worker from disclosing “any information he may have acquired from persons consulting him in his professional capacity which was necessary to enable him to render services” in that capacity to those persons. Section 20 also provides for exceptions not applicable here. Interestingly, one of the exceptions permitting disclosure is in an action for “malpractice” civil or criminal against the social worker. Section 19 of the Registration Act provides for criminal penalties for violations of the Registration Act but no provision is made in the Registration Act for civil causes of action for violations.

Both counts III and V alleged that Balke revealed to others information she had gained in counseling plaintiff. Defendants maintain the services allegedly rendered here were not within the purview of the Confidentiality Act. In the case of In re Marriage of Semmler (1980), 90 Ill. App. 3d 649, 413 N.E.2d 502, the court held that a wife’s claim of privilege under section 10(a) of the Confidentiality Act (Ill. Rev. Stat. 1979, ch. 9172, par. 810(a)) to her communications with her marital therapist was properly allowed in a marriage dissolution proceeding. This interpretation of the Confidentiality Act is consistent with the recommendations of the 1976 Report of the Governor’s Commission for Revision of the Mental Health Code of Illinois chaired by the Honorable Joseph Schneider of the circuit court of Cook County. This report introduced the proposed Confidentiality Act by stating that it was intended to include all those persons entering into a therapeutic relationship with clients. That would include marriage counseling.

Balke was alleged to be a social worker. Section 20 defines social workers as therapists. Semmler correctly includes marriage counseling within the purview of the Confidentiality Act. Allegations of Balke’s revelations of confidential communications were allegations of violations for which damages are provided under section 15.

Defendants also complain that counts III and V fail to set forth what information was revealed or to whom. Such particularity is certainly highly desirable. However, in view of the lack of precedent as to the requirements for stating a cause of action under the statute, we do not hold the failure of plaintiff to make the allegation to be fatal in this case. Upon remand the trial court should require plaintiff to set forth the requested information. Defendants also maintain the counts fail to negate the exceptions to confidentiality set forth in section 5(a) of the Confidentiality Act and in section 20 of the Registration Act which also provides exceptions. The respective motions upon which the complaint was dismissed did not complain of that. Even if the exceptions are required to be negated in the complaint, defendants cannot complaint of that in this appeal. The Registration Act has no provision for civil actions. Accordingly, we hold that allegations to that act are superfluous. In any event, the breach of either act would be the same and damages under the Registration Act, or a common law action based on it, would be no broader than under the Confidentiality Act.

The allegations of damages for counts III and V were the same as for count I. Items a and b, concerning transmission of the information to others and use against plaintiff’s interest, her deprivation of the opportunity to have her relations with her husband improved, and item e., concerning plaintiff’s embarrassment and emotional distress are damages flowing naturally from the statutory breach charged and are properly pleaded. Items c and d concerning plaintiff’s abandonment of her home and job do not naturally flow from the revelation of the information and are not alleged with enough specificity to show a proper connection to the statutory breach. The same is true of item f.

Defendants object to all of the allegations of damages on the basis that the gist of the action here is for alienation of affections. Accordingly, they argue the measure of damages should be limited to “actual damages sustained as a result of the injury complained of” (Ill. Rev. Stat. 1979, ch. 40, par. 1902) and should not include various types of emotional injury (Ill. Rev. Stat. 1979, ch. 40, par. 1904). As to those counts permitted to stand, we do not agree that the action is similar to one for alienation of affections. We are not permitting plaintiff recovery for the loss of her husband’s affections because Balke wooed him away from her. We are permitting recovery for the loss of effective social work arising from a breach of contract to provide those services and from a breach of statutory duty to withhold confidential information.

We affirm the judgment of the trial court as to the dismissal of counts II and IV. We reverse the judgment as to the dismissal of counts I, III and V and remand for further proceedings.

Affirmed in part; reversed in part and remanded.

LEWIS, J., concurs.

PRESIDING JUSTICE WEBBER,

concurring in part and dissent-

ing:

I concur in the dismissal of counts II and IV, the malpractice counts, but I dissent from the reinstatement of counts I, III and V.

As to count I, breach of contract: I find a close analogy in the prior authorities in which a plaintiff sought damages for malpractice against a physician based on (1) negligence and (2) breach of contract. An appropriate summary is contained in Rogala v. Silva (1973), 16 Ill. App. 3d 63, 65, 305 N.E.2d 571, 573:

“Our research indicates that heretofore no court of review in Illinois has been required to consider whether an action based upon the contract of a physician to effect a particular cure will lie, although it appears that such an action has been recognized in other jurisdictions. [Citations.] These jurisdictions have insisted that the contract be set forth explicitly in the complaint, proved by clear and convincing evidence and supported by some consideration separate from the plaintiff’s agreement to pay the physician for his services. [Citation.] After reviewing these authorities we are inclined to agree with our statement in Gault v. Sideman (1963), 42 Ill. App. 2d 96, 191 N.E.2d 436, that if the Illinois courts would consider enforceable such a warranty by a physician, it would be necessary to allege and prove the making of the warranty, the plaintiff’s reliance thereon and a separate consideration.”

In Gault, cited in Rogala above, the court quoted at length from an article entitled “The Contractual Liability of Physicians and Surgeons' by Arnold J. Miller in Wash. U.L.Q. 413 (1953), a portion of which states:

“ ‘There are compelling arguments, then, as outlined in the foregoing, that a strong public policy permeates all aspects of any contractual arrangement between physician and patients and operates to lift it out of the field of discourse of ordinary commercial contracts. It operates to prevent the physician from escaping his responsibilities to the society he serves, and should operate, it is here contended, to protect the physician in the pursuit of his healing art against strict liability for the consequences of unguarded utterances and from the fertile imaginations of the fraudulently minded.’ ” Gault v. Sideman (1963), 42 Ill. App. 2d 96, 109, 191 N.E.2d 436, 443.

Admittedly the defendant Family Service Agency against which the contract count is directed is not a physician, but in my judgment the rationale is the same. Family Service provides services in the mental health field; it is staffed by persons who have had professional training; it is not a farmer selling carrots in the common market; and hence any contracts which it might make are “out of the field of discourse of ordinary commercial contracts.” (Gault.) The allegations in count I of the third amended complaint tell us about this contract only this:

“On or about October 7, 1979, Plaintiff and Defendant, Family Service Agency, entered into an agreement whereby Defendant would provide counseling services in an effort to improve the marital relationship between Plaintiff and her husband and Plaintiff would pay fees for such services pursuant to the Defendant’s fee schedule. The agreement was oral.”

This fails the tests mandated in Rogala; the contract is not explicitly set forth and there is no allegation of a separate consideration. We have only the bare-bones allegation of an oral contract, and under the circumstances of such a special contract it is not sufficient to say that further information might be developed by discovery.

By remanding for trial on this “contract” the majority has accomplished a severe degringolade on the law of professional agreements.

As to counts III and V, violation of the Confidentiality Act: I agree that the statute creates a cause of action, but I cannot agree that the damages have been sufficiently pleaded. The majority states, “The damages a client might receive from the improper practice of social work are unlikely to be pecuniary in nature and extremely unlikely to be physical in nature.” I agree and further conclude that the damages must therefore be pleaded with great specificity. The cause of action was unknown at common law and therefore a general and traditional allegation of damage is entirely insufficient. Plaintiff had four opportunities to rectify this omission and failed each time.

I would affirm the trial court’s order in its entirety.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiffs-Appellees, v KURT ALLAN TEDFORD, Defendant-Appellant.
    Second District
    No. 82—747
    Opinion filed February 2, 1983.
    Gregory E. Barrett, of Schlueter, Eklund, Olson & Barrett, of Rockford, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Robert G. Gemignani, Assistant State’s Attorney, and Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant Kurt Tedford was charged by a two-count information with involuntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3) and aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(8)). After a bench trial in Winnebago County defendant was found guilty on both counts. On appeal he alleges error only in sentencing.

Defendant was sentenced to 15 months’ probation on each count, to be served consecutively. A condition of each probationary sentence was that six months be served in county jail, also to be served consecutively.

Defendant makes three arguments on appeal. First, he contends the trial court erred in sentencing him to multiple terms of probation running consecutively; secondly, he contends that he cannot be required to serve a period of more than six months’ confinement as a condition of probation. Defendant’s final contention is that it was error for the trial court to deny him credit for time served after his arrest.

Briefly stated, the facts of this case show that on July 25, 1981, defendant was charged by criminal complaint with the involuntary manslaughter of Dean Rawson, and the aggravated battery of the victim’s daughter, Julie Rawson. After a finding of probable cause the State filed an information charging defendant with involuntary manslaughter and aggravated battery. After a bench trial defendant was found guilty of both crimes. On July 22, 1982, a sentencing hearing was held. Defendant was sentenced to 15 months’ probation on each of the two counts. The trial court made a specific finding that the two offenses were not committed as part of a single course of conduct. A condition of each probation sentence was that the defendant serve six months in the county jail, and the trial court specifically stated that the sentences were to run consecutively, both as to probation and jail time, one after the other.

At the sentencing hearing the court stated that the purpose for these sentences was to (1) punish defendant for his crime and deter him from future conduct from the same criminal source; (2) protect the public from having defendant imperil people’s lives, and; (3) give defendant a chance to rehabilitate himself. Defendant was advised that if he failed to comply with the probationary terms he would go to the penitentiary.

Defendant’s first contention on appeal is that there is a statutory prohibition to his being sentenced to multiple terms of probation that run consecutively when the sentences are imposed at the same time. A controlling provision of the Unified Code of Corrections provides as follows:

“Multiple terms of probation imposed at the same time shall run concurrently.” Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6— 2(b).

Thus, it is clear that the trial court erred in imposing consecutive probationary terms for this defendant. It is a rule of statutory construction that in the application and construction of a statute the court give effect to the legislature’s intent and that this be accomplished by giving the language of a statute its plain and ordinary meaning. (Clement v. O’Malley (1981), 95 Ill. App. 3d 824, 420 N.E.2d 533.) It has also been held that the language of a statute itself is the best indication of the intent of the drafters, and that where that intent can be gleaned from the language of the statute it will be given effect without resorting to other aids for construction. (People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674.) We believe the statute requires multiple terms of probation imposed at the same time are to be served concurrently and that the trial court erred in ordering them to be served consecutively.

The State concedes that section 5 — 6—2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—2(b)) is controlling. It argues that this court should modify the probation sentences only so that they run concurrently. The State does not concede error with regard to the trial court’s imposition of jail terms as a condition of each probation term.

In a case that discusses the statutory provision in issue here, People v. Gischer (1977), 51 Ill. App. 3d 847, 366 N.E.2d 521, 527, the court discussed the question of whether or not probation sentences can be imposed so that they are served consecutively. However, in Gischer the terms of probation were not imposed at the same time. The court held that it was proper to impose a probation term that would commence upon the termination of previously imposed probation. Therefore the court held that by negative implication of section 5 — 6—2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—2(b)), the terms were allowed to run consecutively. In the case at bar the terms were imposed at the same time, therefore Gischer is inapposite.

Defendant’s second contention on appeal is closely interwoven with that just discussed. He contends that the statutes prohibit the trial court sentencing him to two consecutive six-month jail terms. Section 5 — 6—3(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3(d)) states:

“The court shall not require as a condition of the sentence of probation or conditional discharge that the offender be committed to a period of imprisonment in excess of 6 months.”

The State responds by arguing that the statute contemplates that only one term of probation has been imposed, and that it should not be applied when two separate terms of probation have been imposed. We disagree. Assuming we can separate the probationary terms from the probationary conditions, we do not think it is logical to have probationary terms that run concurrently and probationary conditions (jail time) that run consecutively.

While it has been held that the determination of terms and conditions of probation is a judicial function (People v. Brouhard (1972), 53 Ill. 2d 109, 290 N.E.2d 206; People v. Love (1980), 83 Ill. App. 3d 948, 950, 404 N.E.2d 1085), we believe the statute prohibits imposition of a period of imprisonment of greater than six months. There is a logical inconsistency to the argument that the terms of probation must be served concurrently and the conditions of probation may be served consecutively. As indicated, section 5 — 6—2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005— 6 — 2(b)) requires multiple terms of probation to run concurrently. We believe this language must be read to mean that the conditions of those probationary terms are to run concurrently as well. To hold otherwise would result in defendant serving more than six months during one term of probation.

Clearly, conditions of probation can be imposed only when there is an overall framework or term in which a defendant could fulfill those conditions. It is manifest that the intention of the legislature should be ascertained and given effect by viewing the statutory language. (People v. Robinson (1982), 89 Ill. 2d 469, 475, 433 N.E.2d 674.) While the statute requires that multiple sentences of probation be served concurrently it follows naturally and logically that the conditions of those multiple sentences of probation be served concurrently as well. If we held contra, it would take little imagination to see how much nonsense could be brooked. Therefore, the jail term conditions of probation should be modified to run concurrently. Additionally, we note that the basic theory of probation is to grant a defendant an opportunity of rehabilitation without incarceration. People v. Henderson (1971), 2 Ill. App. 3d 401, 405, 276 N.E.2d 372.

Defendant’s final contention on appeal is that the trial court erred in denying him credit for time served in the county jail from March 3, 1982, to April 28, 1982. As indicated, defendant was arrested initially on July 25, 1981, for the charges in question. He posted bond and was out of jail on July 28, 1981. However, defendant was arrested for intimidation in February of 1982. On March 3, 1982, the trial court, pursuant to defendant’s own motion, ordered that defendant be held in lieu of bond in this matter and ordered his bond order previously entered be vacated. Therefore defendant was not only held in jail on $25,000 bond for the intimidation charge between March 3, 1982, until April 28, 1982, but it would appear that defendant was also held in jail in lieu of bond on the charges here before us. However, on April 28, 1982, the defendant was released from jail on the charge of intimidation by posting a bond of $25,000.

Section 5 — 8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—7(b)) requires an offender to be given credit for “time spent in custody as a result of the offense for which the sentence was imposed ***.” It is apparent that the defendant was being held, not only as a result of the charge of intimidation, but the involuntary manslaughter and aggravated battery charge as well. People v. Leon (1980), 82 Ill. App. 3d 344, 402 N.E.2d 844, is factually quite similar to our case at bar. In that case the defendant, while on bond for an appeal of his sentence of incarceration, was placed in custody for an unrelated offense from another jurisdiction. Some seven months later the defendant surrendered himself in exoneration of his bond. In that case an issue arose as to the amount of time to be credited to his sentence while being served concurrently with the sentence from the other jurisdiction. The reviewing court ruled that the defendant would not be entitled to credit for time served from the date of the arrest of the other jurisdiction but would be entitled to credit from his date of surrender in exoneration of his bond, and any time spent in custody awaiting trial prior to his posting appeal bond.

Here, the activities of March 3, 1982, constituted a surrender on these charges in exoneration of his bond and the defendant should be given credit from that date to April 28, 1982, in addition to the credit he has already been given by the court.

As to the defendant’s sentence, we believe it must be modified so that the 18-month probationary term and the two six-month jail terms run concurrently. Further, the defendant should be entitled to credit for time served in accordance with this opinion.

Affirmed in part; modified in part.

VAN DEUSEN and NASH, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    NATIONAL BOULEVARD BANK OF CHICAGO, Trustee, et al., Plaintiffs-Appellees, v. THE COUNTY OF WILL, Defendant-Appellant.—(Barbara Gerard, Intervening Appellant.)
    Third District
    No. 82—157
    Opinion filed February 9, 1983.
    Thomas M. Monahan, of Joliet, for appellant Barbara Gerard.
    Edward F. Petka, State’s Attorney, of Joliet (Randal J. Miller, Assistant State’s Attorney, of counsel), for appellant County of Will.
    Thomas A. Dunn, of Joliet, for appellee Walter E. Johnson.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Plaintiffs, an Illinois land trustee and beneficiary, brought an action for declaratory judgment invalidating a county of Will zoning ordinance which classified the land trust property as A-l (farming). Injunctive relief was sought as well to restrain the county from enforcing the ordinance. Barbara Gerard, an adjoining land owner, intervened to protest the granting of relief on plaintiffs’ suit on the theory that she had been denied her constitutional right to due process of law by the plaintiffs’ failure to provide her notice of the hearing on their petition for a zoning amendment held by the board of zoning appeals on May 22, 1979; and that, as a consequence, the administrative proceeding initiated by plaintiffs to reclassify their property to 1-1 (light industrial) was invalid and the trial court lacked jurisdiction to hear the instant suit. The matter was tried over a two-week period. After taking the case under advisement, the circuit court of Will County held that the plaintiffs had demonstrated substantial compliance with the statutory notice- requirement and that, in any event, Mrs. Gerard had waived her right to procedural due process by failing to file a motion to dismiss with the court in advance of trial. The court further held that plaintiffs had demonstrated by clear and convincing evidence that the zoning ordinance, as applied to plaintiffs’ property, was arbitrary and -unreasonable. The court declared the ordinance invalid and enjoined the county of Will from enforcing it against plaintiffs’ property.

Both the county of Will and Mrs. Gerard appealed from the court’s ruling. It is the position of both appellants that the evidence adduced at trial was insufficient to support the court’s findings. We affirm.

We have read the voluminous record in this case and will not recite in detail the evidence admitted at trial except as needed to explain our conclusions. The intervenor’s point on appeal is that she was entitled to actual — as opposing to constructive — notice of the hearing to be held by the zoning board of appeals respecting plaintiffs’ proposed zoning amendment. In support of her position, she cites section 5 of “An Act in relation to county zoning” (Ill. Rev. Stat. 1979, ch. 34, par. 3158), which provides in relevant part:

“At least 15 days notice of the time and place of such hearing shall be published in a newspaper of general circulation published in such county ***. *** In case of written protest against any proposed amendment, signed and acknowledged by the owners of 20% of the frontage proposed to be altered, or by the owners of 20% of the frontage immediately adjoining or across an alley therefrom, *** such amendment shall not be passed except by the favorable vote of 3k of all the members of the county board ***.”

We find absolutely no authority requiring a land owner in plaintiffs’ position to serve an adjoining land owner with actual notice of a proposed amendment. Publication per statute is all that is required to satisfy the intervenor’s constitutional right to procedural due process. (Rutland Environmental Protection Association v. Kane County (1975), 31 Ill. App. 3d 82, 334 N.E.2d 215, cert. denied (1976), 425 U.S. 913, 47 L. Ed. 2d 764, 96 S. Ct. 1510.) Personal notice to adjacent property owners is not required. (Village of Riverwoods v. County of Lake (1968), 94 Ill. App. 2d 320, 237 N.E.2d 547.) There is no dispute that plaintiffs in fact complied with the statutory publication requirement in anticipation of the May 22, 1979, hearing. The trial court did not err in holding that the intervenor was given sufficient notice despite her complaints that she had not had actual notice of the proposed amendment hearing.

The second issue for our consideration concerns the county’s contention that plaintiffs’ evidence was insufficient to prove that the existing zoning ordinance is invalid as applied to the land trust property. The property in question is an approximately 10-acre parcel in Green Garden Township bordered on the west by Route 45 and on the north by Manhattan/Monee Road. The zoning ordinance in question was adopted by the county of Will in 1978. According to the county’s master plan for land use, the plaintiffs’ property was classified A-l (farming). The property was purchased with the intention of expanding Johnson’s business of fabricating structural steel into trusses and joists. In February of 1979, plaintiffs applied for reclassification of the property to 1-1 (industrial). The Will County Regional Planning Commission recommended approval of the request. Thereafter, a public hearing on plaintiffs’ application was held by the zoning board of appeals on May 22, 1979. The board also approved the proposed reclassification and made its recommendation to the Will County Board of Supervisors for their consideration. On June 14, 1979, the board of supervisors denied plaintiffs’ application. This suit followed.

The evidence established that plaintiffs’ parcel has been farmed by tenants since plaintiffs purchased it in 1978. The land surrounding the parcel is classified and used as follows: 1-2 (industrial) — a fertilizer plant; C4 (Commercial) — an implement sales store; A-l special use-storage of landscaping equipment; 1-1 (limited industrial) — nursery; and A-l (farming) — production of corn/beans. Plaintiffs’ proposed use as a site for a fabricating plant would result in the employment of 20 workers and would require one semi-truck making one trip in and one trip out of the plant per day. The amount of sewage which would be added to the community public facilities would be comparable to that of two head of cattle. The volume of noise generated by plant operations would be negligible.

The parties’ expert witnesses were divided on whether the highest and best use of the parcel was agricultural or industrial. They differed as to whether plaintiffs’ land was in a flood plain which would make it unsuitable for the proposed plant. They disputed as to whether a trend existed in the immediate area of plaintiffs’ property toward industrial development. They disagreed as to the adequacy of existing fire protection to accommodate plaintiffs’ proposed use.

The parties did not agree as to whether the products to be fabricated at plaintiffs’ plant were “agricultural” considering evidence that they would be used in the construction of farm buildings. Mr. Johnson’s testimony, however, indicated that most of the joists and trusses to be fabricated at the Green Garden site would be distributed to points outside of the immediate area. Long range plans, according to Johnson, were to add windmills and solar panels to the products made at the proposed plant.

The crucial question considered by the trial court was whether the plaintiffs’ evidence clearly and convincingly demonstrated that the existing zoning ordinance was unreasonable insofar as it excludes plaintiffs’ proposed use for the parcel in question. (Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 426 N.E.2d 1276.) In determining that plaintiffs had met their heavy burden of overcoming the presumption of validity of the ordinance (Gust v. Village of Westchester (1982), 110 Ill. App. 3d 425, 442 N.E.2d 525), the trial court applied the six factors set forth in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65, and the two additional considerations as set forth in subsequent case law. (See, e.g., Bass v. City of Joliet (1973), 10 Ill. App. 3d 860, 295 N.E.2d 53; Drogos.) We need not recite each factor here inasmuch as the trial court adequately dealt with them in its judgment declaring the ordinance invalid. Having read the record, we are convinced that the trial court properly applied the factors and correctly determined that, in fact, the ordinance, as applied to plaintiffs’ parcel, is arbitrary, unreasonable and invalid. Those facts which, in our opinion, most strongly dictate our affirmance of the trial court’s ruling are: (1) that the parcel in its present state is economically unsuitable for its present use because of its size; (2) the area immediately surrounding the parcel manifests a trend toward uses for commercial, industrial and other non-farming establishments; (3) the plaintiffs’ proposed use would result in significant economic benefit to the public, and its detrimental impact on public services, and aesthetic and monetary property values of surrounding individual owners would be minimal; and (4) both the immediate and long-range plans proposed by plaintiffs for the fabricating plant are supportive of farm constructions and could directly benefit the Green Garden farming community. In sum, we conclude that the trial court’s determination is not contrary to the manifest weight of the evidence.

Having found no error, we affirm the trial court’s judgment.

Affirmed.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE STOUDER

text:
    BOBBY E. NUTT, Plaintiff-Appellant, v. PIERCE WASTE OIL SERVICE, INC., et al., Defendants-Appellees.
    Third District
    No. 82-308
    Opinion filed February 15, 1983.
    Jay H. Janssen and Jerelyn D. Maher, both of Peoria,, for appellant.

      Heyl, Royster, Voelker & Allen and Cassidy, Cassidy & Mueller, both of Peoria (Rex K. Kinder and Bradford B. Ingram, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Bobby E. Nutt filed a four-count complaint seeking compensatory and exemplary damages for personal injuries allegedly occasioned by the negligence of defendants Pierce Waste Oil Services, Inc., and Central Refining, Inc. Defendants responded with the affirmative defense that plaintiff was barred from the common law action by reason of the exclusive remedy provided under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). After a hearing on the merits of the defense, the circuit court of Peoria County entered summary judgment in defendants’ favor.

The facts are undisputed. At the time plaintiff received his injuries, he considered himself an employee of Industrial Fuels, Inc. Industrial Fuels paid plaintiff, withheld his Federal and State income taxes, maintained and administered his group insurance plan, and identified itself as his employer before the Industrial Commission. Its business purpose was to process waste oil into fuel oil, which it sold and transported, and to perform mechanical work upon the transporting vehicles. At the time of his injury, plaintiff was performing such mechanical work at a garage owned by Industrial Fuels and in which all mechanical tools were located.

Pierce Waste Oil Services’ business purpose was to pick up waste oil at service stations and garages and transport it for processing. Central Refining’s business purpose was to process waste oil into motor oil. The three companies had separate addresses but operated at a common eight-acre site under common ownership. The vehicle on which plaintiff was working at the time of his injury was owned by Pierce and cleaned by Central Refining. Each defendant was asked by interrogatory whether it employed plaintiff at the time of his injury. Central Refining answered “No.” Pierce responded,

“No, Plaintiff was employed by Industrial Fuels, Inc., as a mechanic, his duties were to maintain and repair equipment owned by Pierce Waste Oil Services, Inc., because Industrial Fuels, Inc., does not own any equipment.”

Presented for our review are the issues of whether plaintiff was a joint or loaned employee of, or to, defendants. While defendants have elected to respond to only the first of these issues, their interrelationship precludes a waiver of the alternate issue.

Considering first the issue of whether plaintiff was a joint employee of Industrial Fuels and defendants, a review of the Illinois decisions on this question reveals situations which differ from the one at bar. In Page Engineering Co. v. Industrial Com. (1926), 322 Ill. 60, 152 N.E. 483, a night watchman was required to watch the properties of two companies and was paid equally by each. In Frederick A. Stresenreuter, Inc. v. Industrial Com. (1926), 322 Ill. 187, 152 N.E. 548, the situation was the same. In Krawiec v. Industrial Com. (1939), 372 Ill. 560, 25 N.E.2d 27, a group of citizens and merchants incorporated an association and recommended plaintiff’s decedent as a patrolman. He was paid by the association and the city of Chicago Heights, which also furnished a car. In Hudson v. Industrial Com. (1944), 387 Ill. 228, 56 N.E.2d 423, plaintiffs’ decedent was paid by an individual employer and a bus company, of which the employer was manager and principal stock owner. In each of these cases, it was found that the employee was serving each of his employers and was a joint employee. In American Stevedores Co. v. Industrial Com. (1951), 408 Ill. 445, 97 N.E.2d 329, the plaintiff hired the decedent employee and was a conduit through which he received his wages. Another company was served and exercised complete control over him. In City of Wilmington v. Industrial Com. (1972), 52 Ill. 2d 587, 289 N.E.2d 418, the deceased employee was employed and paid by a technical institute. During evenings and weekends, he and others used institute machinery for the benefit of plaintiff, who did not pay them. In each of the latter two cases, one employer was served and no joint employment was found.

Defendants place particular emphasis on Freeman v. Augustine’s Inc. (1977), 46 Ill. App. 3d 230, 360 N.E.2d 1245, a decision which considered the possibility of joint or borrowed employment. The plaintiff had been hired as a maid by Augustine’s Motor Lodge, underwent an operation, and became a miscellaneous worker. Although she continued to be paid by the motor lodge, her sole duty was to work in a laundry room located in a restaurant owned by defendant, where she worked under defendant’s direction. Both the motor lodge, apparently owned by Marra Corporation (see Freeman v. Augustine’s Inc. (1977), 46 Ill. App. 3d 230, 238, 360 N.E.2d 1245, 1251 (dissenting opinion)), and the restaurant benefited from her work. The court concluded:

“The foregoing facts indicate that plaintiff was under defendant’s direction and control at the time of her injury, that plaintiff agreed to work under defendant’s direction, and that defendant had the power to discharge plaintiff by barring her from the laundry room (see Fransen Construction Co. v. Industrial Com., 384 Ill. 616, 627-28, 52 N.E.2d 241, 246 (1943)). These factors all indicate that plaintiff was a loaned employee. On the other hand, both the defendant and Augustine’s Motor Lodge benefitted from plaintiff’s work. The facts also indicate that plaintiff worked in the laundry room for approximately two years and would have continued indefinitely in that capacity were it not for her injury. Both of those factors might lead one to conclude that plaintiff was a joint employee. Plaintiff’s position differs from that of a joint employee, however, because she was hired and paid only by Augustine’s Motor Lodge and was under the direction and control of only the defendant. Nonetheless plaintiff was voluntarily and permanently employed in defendant’s establishment, subject to defendant’s direction and control. We, therefore, conclude that defendant was plaintiff’s ‘employer’ under the Workmen’s Compensation Act even though the relationship between plaintiff and defendant did not encompass all the characteristics of either joint or loaned employment. In other words, an implied employment contract existed between plaintiff and defendant.” Freeman v. Augustine’s Inc. (1977), 46 Ill. App. 3d 230, 235-36, 360 N.E.2d 1245, 1249.

In the case at bar, plaintiff was performing his customary duties at Industrial Fuels, where the mechanic’s function for the three companies was centralized. Plaintiff testified that a Pierce employee told him that a baffle in the Pierce tanker needed a hole cut in it. He then proceeded to examine the project and begin work on it. There is no indication that the Pierce employee directed or controlled the work, nor that he possessed the power to discharge him. Martin Pierce, a corporate officer of all three concerns, testified that he spoke to plaintiff about the project. While Pierce unquestionably could direct and control the work, as well as discharge plaintiff, these were his powers as an officer of Industrial Fuels. While these are factors more relevant to a loaned employee consideration, they merit notice. Additional considerations are the facts that the work was performed on the premises of Industrial Fuels, and plaintiff was exclusively compensated by Industrial Fuels. The first of these facts renders Freeman inapposite. The latter is significant as in none of the cited supreme court cases has joint employment been found where salary was provided on a unilateral basis. Where control of an employee is shared by two employers and both benefit from the work, a worker is considered to be an employee of both. (American Stevedores Co. v. Industrial Com. (1951), 408 Ill. 445, 97 N.E.2d 329.) Here is present only mutual benefit, benefit which inures as a result of a multicorporate division of responsibility. Under these specific facts, we decline to hold plaintiff was a joint employee.

Considering second whether plaintiff was a loaned employee, we note part of the court’s consideration of this issue in Freeman:

“In most of the cases finding the existence of a loaned employee relationship, the employee was assigned to perform special services for the borrowing employer. In Fransen Construction Co. v. Industrial Com., 384 Ill. 616, 52 N.E.2d 241 (1943), the supreme court defined a loaned employee by saying:
'*** an employee in the general employment of one person may, with his consent, be loaned to another for the performance of special work and become the employee of the person to whom he is loaned while performing such special services. [Citation.]’ (384 Ill. 616, 624-25, 52 N.E.2d 241, 245.) (Emphasis added.)
We agree with the assumption, implicit in the foregoing definition, that the loaned employee relationship must generally be of a temporary nature. To speak of a ‘permanently loaned employee’ is self-contradictory.” (Freeman v. Augustine’s Inc. (1977), 46 Ill. App. 3d 230, 234, 360 N.E.2d 1245, 1248.)

In the case at bar, plaintiff had worked as an Industrial Fuels mechanic for his entire six-year term of employment. This being the case, we also decline to hold him a loaned employee.

As noted by the court in McHugh-Brighton v. Industrial Com. (1969), 42 Ill. 2d 52, 56, 245 N.E.2d 480, 482:

“The definition of ‘employee’ in the Workmen’s Compensation Act makes it clear that the basis of the relationship is a ‘contract for hire, express or implied, oral or written, ***.’ [Citation.] The existence of such a relationship is determined by an application of the principles that govern other contracts. [Citation.] One does not enter the employ of another without at least an implied acquiescence in the relationship.”

For the reasons presented, the lack of an implied acquiescence in an employment relationship with defendants, and the absence of any genuine issue as to any material fact, we find summary judgment should be entered in plaintiff’s favor on the affirmative defense.

Accordingly, the judgment of the circuit court of Peoria County is reversed and this cause remanded for further proceedings consistent with the views herein.

Reversed and remanded.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ULYSSES WILLIAMS, Defendant-Appellant.
    Third District
    No. 82—604
    Opinion filed February 15, 1983.
    HEIPLE, J., dissenting.
    Robert Agostinelli and Charles W. Hoffman, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (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:

Following his guilty plea to the offense of voluntary manslaughter, the defendant, Ulysses Williams, was sentenced to five years’ imprisonment. The defendant’s motion to vacate his plea of guilty and for reconsideration of his sentence was denied.

In this appeal, the defendant raises only one issue: whether the trial judge abused his discretion in sentencing the defendant by arbitrarily denying him probation. The defendant bases his claim on certain language used by the trial judge during the sentencing hearing and the hearing denying the defendant’s motion to reconsider the sentence. We have read that language, as well as the entire transcript of both hearings, and find that the defendant was arbitrarily denied probation.

The factual basis for the defendant’s guilty plea established that the 73-year-old defendant was living in a trailer with 83-year-old Joseph Daniels, the victim, Daniels’ grandson, and Lucy Wright, the defendant’s girlfriend. Daniels and the defendant argued about some real property Daniels was buying from the defendant. According to the defendant’s testimony, Daniels began cursing and raving and walked down the hallway toward his bedroom. The defendant got a .12-gauge bolt action shotgun and shot Daniels because he believed Daniels was going to obtain a gun and shoot him. There was some dispute regarding the distance from which the defendant shot Daniels, the defendant claiming the distance was 12 to 15 feet, while the examining physician stated that the weapon was held against, or close to, the victim’s abdomen. •

At his sentencing hearing, the defendant acknowledged that he had been convicted of armed robbery in 1934 and had two prior convictions for driving under the influence of intoxicating liquor. He also testified that he had suffered from a heart condition since 1931 but stated that it had gotten worse as he got older.

Voluntary manslaughter was a Class 2 felony at the time of the defendant’s conviction, punishable by a term of probation or by a sentence of imprisonment of three to seven years. (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 2(c), 1005 — 6—2, 1005 — 8—1.) In sentencing the defendant to a five-year term of imprisonment, the trial judge remarked:

“THE COURT: Mr. Williams, you have entered a plea of guilty to a charge of Voluntary Manslaughter. Voluntary Manslaughter — under the laws of this State — is a Class 2 felony providing a penitentiary sentence of three, four, five, six or seven years. There are provisions in the Statute for extended terms. You will not qualify on extended term.
The Court is aware of your superior age which is some 73 years. Court is- aware of the fact that you are suffering a medical condition.
Your testimony in this case would have indicated that the distance from which you fired this weapon was in excess of twelve feet. My recollection is you said further than that. You indicated this dispute was going on with Mr. Daniels, who is not here to tell us what happened. You have, Mr. Williams, taken the life of another person. It seems to me that there are a lot of other ways that you could have avoided this particular incident. There is — it was a fight over property which is generally useless anyway. Not the kind of thing you shoot somebody over unless it’s a personal parking lot.
The Court cannot sit here and sentence women to the penitentiary for shooting other women or other men. [Sic.] We have done away with that prejudice in the law. We now send women to jail equally with men. I cannot send the young and not the old. It is the judgment of this Court and the sentence of this Court that you be hereby sentenced to a term of five years in the Department of Corrections, State of Illinois.”

In denying the defendant’s motion to reconsider the sentence, the judge stated:

“THE COURT: All right. Larry, everything that you have said was thought of. I didn’t sentence Mr. Williams out of anger on a given day or because the Sox lost a game the night before, because it was raining or the sun was shining or whatever, as the psychologists will tell you Judges in sentencing would indicate is the problem. I thought about the case itself. The facts. The evidence. The physical evidence. Apparently my interpretation of the physical evidence does not indicate that this incident occurred as explained by this Defendant.
This particular offense was reduced to voluntary manslaughter. The same as a burglary on the classification on the number of years for sentencing. It seems a little bizarre to send someone to the penitentiary for five years for burglary and someone on a voluntary manslaughter gets probation or gets a lesser sentence. I felt that given the crime, that it was a fair sentence. I do not find any basis for vacating the plea. And I find no basis at this time to reduce the sentence.”

These statements, even when read in conjunction with the complete transcript, remain ambiguous. Thus, we cannot say, based solely on the transcripts, that the trial judge arbitrarily denied the defendant probation. However, we must consider other remarks by the same trial judge in sentencing hearings both before and after the present defendant was sentenced.

In the case of People v. Caroline Scott (Kankakee County, No. 79 — CF—270), which involved a woman who entered a plea of guilty to voluntary manslaughter, the trial judge explicitly stated his unwillingness to grant probation in any case in which life was taken:

“The Court makes — at least this Judge has taken a position most recently that if you kill someone, you are going to go to the Penitentiary. I have imposed a Penitentiary sentence, I believe, in every killing case since we have terminated the plea agreement situation that previously existed.”

Although the trial judge went on to say that his position would be changed in the case concerning Scott and he subsequently sentenced her to four years’ probation, it is obvious that an arbitrary policy was in effect to deny probation to any defendant convicted of killing another.

The sentencing hearing in People v. Caroline Scott was held on June 4, 1982, eight days after the sentencing of Ulysses Williams. Thus, we cannot ignore the possibility that the sentence imposed upon Williams was arbitrarily given to comport with the trial judge’s stated policy.

Based on the same reasoning, this court issued a modified order in the case of People v. West (1982), 106 Ill. App. 3d 1161 (Rule 23 order), vacating the defendant’s sentence and remanding the cause with directions. The defendant in West, sentenced on October 23, 1981, was given a six-year term of imprisonment by the same trial judge upon his voluntary manslaughter conviction. Likewise, in the present case, we are compelled to vacate the defendant’s sentence in the interest of fairness and justice. Although we are reluctant to disturb the considerable discretion accorded trial court judges in the matter of sentencing, we cannot say that the sentence imposed here was not an abuse of that discretion given the publicly stated policy of the trial judge.

Accordingly, we affirm the judgment of the circuit court of Kankakee County, vacate the defendant’s sentence and remand this cause for a new sentencing hearing before a different judge.

Affirmed, sentence vacated and cause remanded.

STOUDER, J., concurs.

JUSTICE HEIPLE,

dissenting:

The sole issue here is whether under the circumstances of this case, the trial court arbitrarily denied the defendant probation. The law requires that sentence be imposed based upon consideration of the nature and circumstances of the offense and the history, character and condition of the offender. Ill. Rev. Stat. 1981, ch. 38, par. 1005— 6-1(1).

The majority has quoted comments made by the judge before he sentenced the defendant. These comments demonstrate that the judge was considering the age and health of the defendant as well as the nature and circumstances of the offense. Indeed, the majority candidly admits that based solely on these comments, it cannot be said that the trial judge arbitrarily denied the defendant probation. But instead of confining their consideration to the record in this case, the majority reaches out to two other cases in which the same judge demonstrated a general unwillingness to impose a sentence of probation in homicide cases. They are People v. West (1982), 106 Ill. App. 3d 1161 (Rule 23 order), and People v. Caroline Scott (Kankakee County, No. 79—LF—270). Those cases are not only irrelevant, they do not stand for the proposition claimed. In People v. Caroline Scott, probation was, in fact, imposed. Regardless of what this judge may have said or done in other proceedings, however, the record in the case before us demonstrates a reasonable exercise of discretion.

The court found that the 73-year-old defendant killed another man by shooting him with a shotgun at point blank range. In the judge’s mind, such conduct warranted a prison term rather than probation. Relying on these facts, the judge felt that he could not impose a sentence of probation solely because of the defendant’s age and health.

With regard to this particular defendant, the record before us provides ample support for a five-year sentence. To conclude that the sentence was arbitrary based on consideration of comments made by this judge in unrelated cases 'is beyond the proper scope of review. Moreover, the ruling is pernicious to the administration of justice. It results in a judicial defrocking of Judge Michela. Its import is that Judge Michela may, in the future, sentence homicide defendants to probation but not to prison. This is an unwarranted boon to such defendants, an improper restraint on Judge Michela and an affront to the public and the administration of justice. Therefore, I respectfully dissent.


author: JUSTICE VAN DEUSEN JUSTICE UNVERZAGT,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY LEE COOK, Defendant-Appellant.
    Second District
    No. 81—466
    Opinion filed February 2, 1983.

      UNVERZAGT, J., dissenting.
    G. Joseph Weller and Manuel Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

On January 17, 1981, defendant, Ricky Lee Cook, with two others, Michael Anderson and Larry Keen, escaped from the Winnebago County jail by breaking a window on the third floor and sliding down a rope made of blankets. Keen broke his wrist when the rope broke and was apprehended at that point. Cook and Anderson were apprehended shortly thereafter, a few blocks from the jail, and were returned to custody.

Defendant Keen, age 23, entered into a plea agreement whereby he pleaded guilty to the instant escape and to felony theft, after the indictment charging burglary was amended to felony theft. Defendant Anderson, age 25, entered into a plea agreement whereby he pleaded guilty to the instant escape and to an unrelated offense of armed robbery. On March 16, 1981, he was sentenced to a term of imprisonment of three years for the escape and 10 years for the armed robbery. The sentence for this escape was to run concurrently with the sentences for the armed robbery conviction and for a Wisconsin armed robbery conviction.

Defendant Cook, age 29, pleaded guilty to the offense of escape (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 6(a)), and, on May 1, 1981, he was sentenced for that offense to the maximum term of imprisonment of seven years. At the same time, he was sentenced to a three year term of imprisonment on a conviction for aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4), arising from an unrelated matter, to run consecutively with the sentence for escape. He was also sentenced at that time to 364 days on a petty theft conviction (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1) related to the aggravated battery and to run concurrently with the sentence for that offense.

On May 7, 1981, defendant Cook filed a motion for reconsideration of his sentence on the grounds that it was excessive and disparate from the three year sentence received by his codefendants Anderson and Keen. The trial court denied the motion and also denied defendant’s motion made pursuant to Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)) to withdraw his guilty plea. Defendant has appealed from his conviction and sentence for the offense of escape.

On appeal defendant Cook contends that his sentence was excessive due to the disparity between his sentence and that received by defendants Keen and Anderson, who were equally active in the offense of escape and whose prior records were of a more violent nature than that of defendant.

Illinois has long recognized that fundamental fairness and respect for the law requires that defendants similarly situated not receive grossly disparate sentences. (People v. Kline (1981), 99 Ill. App. 3d 540, 553-54, rev’d on other grounds (1982), 92 Ill. 2d 490; People v. Bares (1981), 97 Ill. App. 3d 728, 738.) This rule of law has its inception in the concept of equal justice under the law, a constitutional right which all persons have and which all judges must respect. (99 Ill. App. 3d 540, 554.) A disparate sentence may be supported by either a more serious criminal record or greater participation in the offense; otherwise, defendants similarly situated ought to receive similar treatment in sentencing, as is required by fundamental fairness. People v. Martin (1980), 81 Ill. App. 3d 238, 245.

In this case, the record does not contain any evidence that would in any way indicate that Cook’s participation in the escape was greater than that of Anderson and Keen. Yet, the sentence imposed was more than twice that of Anderson and Keen. The only basis for such a disparity must necessarily be found in differences among their prior criminal records.

Defendant Keen’s prior record consisted of a 1975 misdemeanor theft conviction, for which he received 30 days in the county jail, and felony convictions for a 1976 armed robbery and attempt (murder), for which he was sentenced to a term of imprisonment of four to 10 years. Defendant Anderson’s presentence report revealed that he had been sentenced to 15 years in the penitentiary for a 1980 Wisconsin armed robbery conviction, one year in the penitentiary for a 1980 Wisconsin escape conviction and 15 years in the penitentiary for a 1974 Kentucky involuntary manslaughter conviction. Defendant Cook has a lengthy criminal record commencing in 1968, when he was a teenager, consisting of the following 15 misdemeanor convictions: petty theft (3), attempt petty theft (2), reckless driving (1), glue sniffing (1), minor drinking (2), contributing to the sexual delinquency of a minor (1), criminal damage to property (1), unlawful use of weapon (1), obstructing a police officer (1), driving after license suspended (1), and battery (1). Also, he had the following five felony convictions and sentences: two to four years imprisonment for a 1980 North Carolina false pretense conviction, a one-year term in the Federal prison for a 1977 possession of heroin conviction, a sentence of five years to life for a 1974 California first degree robbery conviction, and concurrent terms of two to four years for 1972 offenses of grand theft and forgery.

Though defendant Cook has an extensive criminal record demonstrating a pattern of criminal conduct over a longer period of time than that of Anderson and Keen, the crimes for which Cook has been convicted do not exceed the violent nature or severity of the crimes committed by Anderson and Keen and cannot justify the grossly disparate seven-year sentence for the offense of escape when that sentence is compared with the three-year sentences imposed upon Keen and Anderson for the same offense. We are cognizant of the frequently stated rule that the trial court’s decisions regarding sentencing are entitled to great deference and weight. (E.g People v. Perruquet (1977), 68 Ill. 2d 149, 154.) However, a review of the report of proceedings of the hearing on the motion for reconsideration reveals that while the trial judge reiterated his reasons for imposing a seven-year sentence on Cook, there is no indication whatsoever contained in the record that he gave any consideration to the issue of the disparity among the sentences imposed upon Cook, Keen and Anderson. We are frank to admit that separate and apart from the sentences imposed upon Keen and Anderson, we would uphold the seven-year sentence imposed upon Cook. The sentence which Cook received, however, measured against the sentences imposed upon Anderson and Keen was grossly disparate. Fundamental fairness requires that defendant Cook’s sentence be reduced to be more consistent with the sentences imposed upon his accomplices. Pursuant to Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)), we hereby reduce defendant Cook’s sentence for the offense of escape (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 6(a)) to a term of five years with the Department of Corrections. See People v. Bares (1981), 97 Ill. App. 3d 728, 738-39.

Affirmed as modified.

SEIDENFIELD, P.J., concurs.

JUSTICE UNVERZAGT,

dissenting:

I respectfully dissent from the majority opinion. The majority reduces the sentences because the trial judge, while giving reasons for imposing a seven-year sentence on Cook, did not explain the reason for a greater sentence imposed on him than on his codefendants. I do not believe every conceivable reason for the sentence has to be included if the trial judge does include sufficient reasons to satisfy the requirements of section 5 — 4—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1(c)). Besides, this section has been construed not to place an independent duty upon the court to give a statement of reasons. People v. Davis (1982), 93 Ill. 2d 155.

In any event, in this case, the defendant and his codefendants did possess serious criminal records. Codefendant Keen had two prior violent felony convictions; codefendant Anderson also had two prior, violent felony convictions and had previously attempted escape from a Wisconsin jail. However, the defendant’s prior criminal record was more extensive, if not more serious, than those of his codefendants.

The circuit court noted, and the defendant personally acknowledged, that he spent the majority of the 10-year period prior to sentencing behind bars. The defendant’s prior criminal record includes 21 prior misdemeanor convictions, including traffic, weapons, sex, theft, and battery offenses, felony offenses including theft, forgery, false pretenses (North Carolina), first degree robbery (California), and possession of heroin (Federal). This prior criminal history clearly influenced the circuit court in its imposition of a severe sentence on the defendant, which sentence was nonetheless more lenient than the maximum, consecutive, extended-term sentence requested by the State. I conclude that the circuit court did not abuse its sentencing discretion regarding the seven-year sentence imposed on the defendant on the instant offense. People v. La Pointe (1981), 88 Ill. 2d 482, 492-93; People v. Cox (1980), 82 Ill. 2d 268, 280; People v. Perruquet (1977), 68 Ill. 2d 149, 154.

I therefore dissent from the majority opinion.