author: JUSTICE ALLOY JUSTICE STOUDER,

text:
    RICHARD HEINTZ et al., Petitioners-Appellants, v. RICHARD J. VORWERK et al., Respondents-Appellees.
    Third District
    No. 82-176
    Opinion filed April 14, 1983.
    Rehearing denied August 2, 1983.
    STOUDER, J., dissenting.
    Robert I. Auler, of Auler Law Offices, and Kenneth L. Halvachs, both of Urbana, for appellants.
    James E. Garrison and William V. Kozel, both of Garrison, Fabrizio and Hanson, Ltd., of Joliet, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This appeal arises out of an automobile collision at the intersection of River Street and Indiana Avenue in Kankakee, Illinois. The trial court granted the city of Kankakee’s motion for summary judg- ■ ment, and the plaintiff appeals. The plaintiffs and the city are the only parties to this appeal.

The plaintiff was driving east on River Street, a four-lane street with traffic flowing in both directions. Plaintiff was in the inside lane of the eastbound traffic. As he passed the intersection, the defendant Vorwerk, traveling southbound in the left lane of Indiana Avenue, collided with the plaintiff as he made a left turn onto River Street. The intersection of Indiana Avenue and River Street is controlled by three-way stop signs: traffic in all directions except River Street eastbound must stop. Indiana Avenue is a one-way street directed southbound. Although it continues south of River Street, it quickly becomes a dead end.

The plaintiffs’ allegation against the city focuses upon the control of the intersection. Although the plaintiffs alleged a violation of the city’s duty to use due care in the construction, maintenance and operation of the intersection, this appeal concerns only the city’s duty to warn approaching motorists of the dangerous intersection ahead. Specifically, the plaintiff contends the city had a duty to warn southbound motorists on Indiana Avenue that eastbound traffic on River Street does not stop.

The city moved for summary judgment in its favor. Relying upon two agreements between the State of Illinois and the city of Kankakee, the city argued that it had no maintenance jurisdiction over the intersection. In particular, the city argues it had no authority or responsibility for traffic warning or control signs.

The two agreements concern the construction and maintenance of the intersection and Indiana Avenue. In 1970, the State and the city contracted for the reconstruction of Indiana Avenue and River Street, including the intersection in which the collision occurred. Under the terms of the agreement, the State was to widen and improve both of these streets. On Indiana Avenue, the State undertook to construct two traffic lanes and two parking lanes. The city agreed to reimburse the State for the costs of constructing the parking lanes. The agreement specifically required the State to “maintain or cause to be maintained” the two through lanes of Indiana Avenue and all four lanes of River Street. The city agreed to maintain the parking lanes of Indiana Avenue.

In 1977, the State and the city executed another agreement. In this agreement, in force at the time of the collision, the city agreed to “operate and maintain” River Street and Indiana Avenue. The agreement states that “operation and maintenance includes but is not limited to all routine surface and pothole repairs, temporary full-depth patches, expansion bump removal on all bituminous surfaces, crack and joint sealing, cleaning and litter pickup, snow and ice control and all other routine operational services.” The State agreed to pay the city $14,390.04 in consideration for satisfactory performance of the services. This is a form contract of one-year duration and, apparently, was renewed annually by the parties.

In its motion for summary judgment, the city argued the State is responsible for warning motorists that eastbound traffic on River Street does not stop, because the State has maintenance jurisdiction over the intersection. The plaintiff argued the 1977 agreement vested maintenance jurisdiction in the city. Furthermore, relying upon Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, the plaintiff contended the city still had a duty to warn motorists traveling south on Indiana Avenue that the approaching intersection was hazardous, even if the intersection itself was in the State’s maintenance jurisdiction. The plaintiff based his argument on the jurisdiction the city has over a portion of Indiana Avenue under the 1970 agreement. The city contends, however, that, not only does it not have jurisdiction over the intersection, it does not have jurisdiction over the traveled portion of Indiana Avenue. After reviewing the agreements by the city and the State, the trial court agreed with the city and ordered a summary judgment in its favor.

A party is entitled to summary judgment when there is no genuine issue of material fact and when the movant is entitled to judgment as a matter of law. (Kubik v. CNA Financial Corp. (1981), 96 Ill. App. 3d 715, 422 N.E.2d 1.) At the outset, we note there is no dispute that the intersection is hazardous. The sole controversy concerns the city’s maintenance jurisdiction over the streets and the intersection.

The plaintiff first complains that the trial court improperly addressed the question of jurisdiction over Indiana Avenue. As the plaintiff notes, the motion for summary judgment asks the court to determine the city’s jurisdiction over the intersection, not Indiana Avenue. More generally, however, the motion asks the court to award summary judgment in its favor. In their briefs and arguments to the trial court, both parties addressed the issue of maintenance jurisdiction over Indiana Avenue. The trial court, therefore, could properly consider this issue in its determination of the motion for summary judgment.

Turning to the merits, we note there are two questions here, though they are interrelated: Does the city have maintenance jurisdiction over the intersection? If not, does the city have maintenance jurisdiction over Indiana Avenue, directly north of the intersection? If the answer to the former question is in the negative, an affirmative answer to the latter question may still impose a duty upon the city to warn drivers of the danger. The duty is articulated in Janssen, which held that section 11 — 304 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 304), imposed a duty “on local authorities to warn motorists of those hazards which are incident to that portion of a highway which remains under local maintenance jurisdiction.” Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 448.

Resolution of both of these questions requires an interpretation of the agreements between the city and the State. The plaintiff strenuously argues that Janssen is directly on point and controls this appeal. The city cites no authority in support of its arguments, but seeks to distinguish Janssen.

In Janssen, the city of Springfield and the State agreed to construct a 52-foot paved north-south road — Fifth Street — up to the southern boundary — Stanford Avenue, an east-west street — of the city. The northern edge of Stanford Avenue constituted the city’s boundary. The intersection of these two roads, therefore, was outside the city. The city and the State also agreed that, as long as Fifth Street was a State highway, the State would maintain the center 24 feet of the road and the city would maintain the remaining 28 feet of roadway. The State, on its own, continued the construction and paving of Fifth Street south of Stanford Avenue. The State also constructed the intersection of Fifth Street and Stanford Avenue. Unfortunately, the road narrowed at the intersection, producing a traffic island which, in effect, protruded into the left lane of traffic traveling southbound on Fifth Street. The plaintiff sustained serious injuries when his motorcycle, traveling in this lane, unexpectedly struck the traffic island. There were no warning signs to caution motorists that the road narrowed.

After the construction was completed, the State made annual agreements with the city for the maintenance of the center 24 feet of Fifth Street. The city agreed to repair and maintain this portion of the road, and the State agreed to reimburse the city. In 1972, the city annexed an area south of Stanford Avenue, including the intersection.

The supreme court, characterizing the contracts between the parties, stated that a jury could reasonably conclude that the city had jurisdiction and control of the outer 28 feet of roadway and that the State had jurisdiction and control of the center 24 feet and subsequently contracted with the city for services on this portion of the street. Noting that the traffic island blocked the continuation of Fifth Street’s left lane, constituting a hazard to motorists using the city-controlled part of the road, the court concluded that section 11 — 304 of the Illinois Vehicle Code imposed a duty upon the city to warn motorists of that hazard.

In the case at bar, the city has jurisdiction over the parking lanes of Indiana Avenue. This fact, however, does not automatically create a duty to warn motorists of the hazardous intersection ahead. In Janssen, the actual hazard — a traffic island — protruded into the continuation of a lane which, regardless of any maintenance agreement or contract, the city already owned and controlled. The island presented a danger incident to that portion of a road which remained under local maintenance jurisdiction. (79 Ill. 2d 435, 448.) In the instant case, the intersection poses no danger to motorists using the portion of the street — the parking lanes — which remained under the city’s control. If the city does have a duty to warn motorists of the dangerous intersection, that obligation must be the result of the 1977 maintenance agreement between the city and the State.

The question becomes, therefore, whether an agreement between the city and the State, in which the city agrees to maintain a road in exchange for a fee, gives the municipality maintenance jurisdiction over that road within the meaning of section 11 — 304. Janssen does not answer this question. The fact that the city, in Janssen, agreed to maintain the center 24 feet was irrelevant to the court’s determination. As we already noted, the traffic island was a hazard only to motorists using the outer lanes, which the city already controlled. Neither party to this appeal cites authority on this point and we can find none.

In response to this question, the city argues that the maintenance agreements are no more than the contracts for services in consideration of a fee. Furthermore, the fact that the State is contracting for maintenance services demonstrates that it has authority and control over the traveled portion of the street and the intersection. Viewed as mere contracts for services, the city argues, the agreements cannot confer maintenance jurisdiction.

We agree with the city. The State designed and constructed the intersection and Indiana Avenue. The fact that the city reimbursed the State for the improvement of the parking lane on Indiana Avenue does not give the city any maintenance jurisdiction over the traveled portion of that street or the intersection. Moreover, the maintenance agreements specifically limit the city’s rights and responsibilities. The agreements do not refer to any right of the city to control or exercise any jurisdiction over the streets. On the contrary, the construction agreement stipulates the State’s obligation to maintain the roads and the maintenance agreement details the services the city is to perform and the fee it is to be paid. The city is even free to cancel the maintenance agreement and to refuse to renew the contract. If the city had maintenance jurisdiction, it could not so easily avoid its responsibilities under the Illinois Vehicle Code.

We hold, therefore, that an agreement between a municipality and the State, to repair and maintain streets under the jurisdiction and control of the State, does not confer maintenance jurisdiction upon the locality within the meaning of section 11 — 304. The city, in conclusion, had no duty to warn the plaintiff that he was approaching a dangerous intersection. The trial court properly entered summary judgment of the city.

The judgment of the circuit court of Kankakee County is affirmed.

BARRY, P.J., concurs.

JUSTICE STOUDER,

dissenting:

I dissent from the majority view that the city of Kankakee had no duty to warn the individual defendant, Richard Vorwerk, that he was approaching a dangerous intersection.

The primary case relied upon by the plaintiffs in support of their position is Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, which is summarized in the majority opinion. Contrary to the view of the majority, I believe that the reasoning of the holding in Janssen can be applied directly to the case at hand in support of the plaintiffs’ argument that the city of Kankakee had a duty to warn the individual defendant of an approaching dangerous intersection.

The court in Janssen stated that section 11 — 304 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 Va, par. 11 — 304), requiring local authorities to post signs to regulate, warn or guide traffic on highways under their maintenance jurisdiction, “imposes an obligation on local authorities to warn motorists of those hazards which are incident to that portion of a highway which remains under local maintenance jurisdiction.” (Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, 219.) The court further stated that the traffic island projecting into the continuation of the outer part of the street on which the plaintiff was traveling presented a hazard to motorists using the part of the street, a part which was within the original maintenance jurisdiction of the city of Springfield (the outer 14 feet of pavement on each side of the road).

The city of Springfield was, therefore, under a duty to warn motorists of this approaching hazard even if the hazard itself, the traffic island, was not within a city controlled part of the street. I agree with the majority and the city of Kankakee that the Janssen court's decision was not premised upon the fact that the city had entered into a subsequent maintenance contract with the State in which the city agreed to maintain that portion of the subject street the State had originally promised to maintain (the center 24 feet of pavement) in return for reimbursement of expenses by the State, resulting in actual maintenance of the entire street by the city. Contrary to the argument made by the plaintiffs, the existence of the subsequent maintenance contract was not relied upon by the Janssen court to support its holding. Therefore, the fact that the city of Kankakee entered into a subsequent maintenance contract with the State of Illinois in which the city ultimately bore responsibility for the maintenance of the entire street in question is not a consideration in my opinion.

Here, we have a situation which is quite similar to that presented in Janssen. An individual defendant was traveling on a street in the city of Kankakee which was controlled jointly by the city and by the State in that the city had maintenance jurisdiction over the parking lanes on either side of the road and the State had maintenance jurisdiction over the traffic lanes of the street. The plaintiffs have stated that the parking lane on the left side of the street becomes an area available for turning as it approaches the allegedly dangerous intersection. Nothing in the complaint would preclude the possibility of producing evidence at trial showing that the defendant driver turned left into the intersection from this turning area over which the city had maintenance jurisdiction. This area, controlled by the city of Kankakee, would be immediately incident to an allegedly hazardous intersection, and, therefore, subject to the reasoning set forth in Janssen, namely, that the city had a duty to warn motorists of hazards incident to that portion of the roadway under the maintenance jurisdiction and, therefore, control of the local authorities.

Based upon by interpretation of Janssen and the facts presented in the case at hand, I would reverse the decision of the trial court granting the city of Kankakee’s motion for summary judgment.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARK SAMEL, Defendant-Appellee.
    Second District
    No. 82—203
    Opinion filed April 6, 1983.
    Rehearing denied May 12, 1983.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    Stanley H. Jakala, of Berwyn, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendant, Mark Samel, was charged by indictment of the grand jury with two counts of conspiracy (counts I and XV) under section 8 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 2(a)), five counts of official misconduct (counts II, III, VI, IX and X) under section 33 — 3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33 — 3(b)), and eight counts of official misconduct (counts IV, V, VII, VIII, XI, XII, XIII and XIV) under section 33-3(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33 — 3(c)). On motion of the defendant, the trial court dismissed' all thirteen counts of official misconduct (counts II through XIV), and the State has taken an interlocutory appeal from that order. 87 Ill. 2d R. 604(a).

The charges against the defendant, a police officer of the village of Burr Ridge, arose from defendant’s purported use of the Law Enforcement Agency Data System (LEADS) for discovering the names and addresses of the owners of vehicle registration numbers for the purpose of facilitating burglaries of the respective premises of the owners.

With reference to all of the charges of official misconduct brought pursuant to section 33 — 3(b) of the Criminal Code of 1961 except counts III and X, the indictment charged, in substance, that defendant, a public officer, in his official capacity as a police officer, knowingly performed an act which he knew to be forbidden by law to perform, that law being the LEADS (Law Enforcement Agency Data System) Regulations and Policies, section IXA and IXB, 3; to wit: the procuring of information, that being the name and address of a specified vehicle registration number owner from LEADS for. purposes other than that of law enforcement.

With reference to all of the charges of official misconduct brought pursuant to section 33 — 3(c) of the Criminal Code of 1961 the indictment charged, in substance, that defendant, a public officer, in his official capacity as a police officer, with intent to obtain a personal advantage for himself or for Joseph DeCicco, performed an act in excess of his lawful authority; to wit: the procurement of information, that being the name and address of a specified vehicle registration number owner by means of a computer check through LEADS for purposes other than that of law enforcement.

The official misconduct statute provides in relevant part:

“Official Misconduct. A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts:
* * *
(b) Knowingly performs an act which he knows he is forbidden by law to perform; or
(c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority;
* * * o
A public officer or employee convicted of violating any provision of this Section forfeits his office or employment. In addition he commits a Class 3 felony.” (Ill. Rev. Stat. 1981, ch. 38, par. 33 — 3(b), (c).)

We note that the general provisions of the official misconduct statute require that the person charged be a “public officer or employee” and that he somehow acted in his “official capacity” in the commission of the offense (see People v. Deal (1979), 69 Ill. App. 3d 74, 77) in the sense that he manipulated his public office or employment in order to achieve illicit gain or perform a proscribed act. People v. Steinmann (1978), 57 Ill. App. 3d 887, 897-98.

Subparagraph (b) of the misconduct statute contains two additional elements which must be pleaded and proved by the State in order to completely set forth the charge. First, the State must allege that defendant knowingly performed an act which he knew he was forbidden by law tó perform. (People v. Campbell (1972), 3 Ill. App. 3d 984, 987, appeal denied (1972), 50 Ill. 2d 649.) Thus, the maxim that a ■ party is presumed to know the law has no application to criminal proceedings under section 33 — 3(b). (See 3 Ill. App. 3d 984, 987-88, appeal denied (1972), 50 Ill. 2d 649.) Second, the indictment must specify the precise “law” which the defendant is alleged to have violated in cases of questionable criminal conduct under subsection (b) of the official misconduct statute (People v. Adams (1978), 64 Ill. App. 3d 547, 548-50), since section 33 — 3(b), standing by itself, does not delineate specific criminal conduct but rather derives its meaning by referring to acts which are known to the defendant to be “forbidden by law” (64 Ill. App. 3d 547, 549).

The gist of subparagraph (c) of the misconduct statute, on the other hand, is that a public official has attempted to personally enrich himself or another by an act exceeding his “lawful authority” as a public servant. (People v. Barlow (1974), 58 Ill. 2d 41, 43-44; see People v. Hajostek (1977), 49 Ill. App. 3d 148, 152.) Stated more accurately, the two additional elements required in a charge under section 33 — 3(c) of the Criminal Code of 1961 are that the defendant act with an intent to obtain a personal advantage for himself or another and that he perform the act in excess-of his lawful authority, specifying in detail the act performed. .Like subparagraph (b), subparagraph (c) standing alone does not delineate "specific criminal conduct (see People v. Adams (1978), 64 Ill. App. 3d 547, 549; People v. Thoms (1977), 50 Ill. App. 3d 398, 402), but it derives its meaning by specifying an act described as being “in excess of [defendant’s] lawful authority” (Ill. Rev. Stat. 1981, ch. 38, par. 33 — 3(c)). The term “lawful authority” derives its meaning from a set of rules not contained in the official misconduct statute, and the phrase" “in excess of his lawful authority” is sufficiently definite to enable public officials and employees to determine the propriety of their actions. See People v. Kleffman (1980), 90 Ill. App. 3d 1, 4.

The State’s main contention on appeal is that the violation of any statute, rule, or regulation, whether civil or criminal, can form the basis for conviction under sections 33 — 3(b) and (c) of the Criminal Code of 1961. In dismissing the official misconduct counts, the trial court held that such convictions may be predicated upon the violation of a rule or regulation promulgated by an administrative body, provided such rule or regulation is penal in character. To be penal, the circuit court would require the rule or regulation in question to prescribe a penalty for its violation, either in express terms or by reference to the Criminal Code of 1961.

In support of the trial court’s order of dismissal of the official misconduct charges, the defendant would broaden considerably the basis for the trial court’s ruling. The defendant posits that only “state law” can be the basis upon which a charge of official misconduct may rest, and, since the rules and regulations of an administrative agency do not constitute statutory law, the counts in this matter were fatally flawed and properly dismissed. In support of this position, defendant relies upon our opinion in Fox v. Inter-State Assurance Co. (1980), 84 Ill. App. 3d 512, but defendant’s reliance upon Fox is misplaced.

In Fox this court held that the phrase “provisions of state laws governing insurance” as used in an agency contract was not intended by the parties to that contract to include the rules and regulations of the director of the State department of insurance. The misconduct statute, in contrast, does not speak in terms of “state law.” The Fox holding, which construed the provisions of a contract between private parties, has no bearing on the meaning of “law” or “lawful authority” as used by the legislature in sections 33 — 3(b) and (c) of the Criminal Code of 1961.

A properly promulgated administrative rule or regulation, like a civil statute, is an expression of legislative policy — not in the sense that a rule constitutes legislation (see, e.g., Fox v. Inter-State Assurance Co. (1980), 84 Ill. App. 3d 512, 515-16), but, rather, because an agency in the proper exercise of its rule making power gives expression to legislative policy. Indeed, when an administrative agency exercises its rule making power, it performs a quasi-legislative function. (Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App. 3d 264, 270.) Administrative rules and regulations have the force and effect of law and, like a statute, enjoy a presumption of validity. (Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53, 58, cert. denied (1979), 444 U.S. 844, 62 L. Ed. 2d 57, 100 S. Ct. 87; Du-Mont Ventilating Co. v. Department of Revenue (1977), 52 Ill. App. 3d 59, 63, aff'd (1978), 73 Ill. 2d 243.) Neither at the trial court level nor on appeal has the defendant challenged the validity of the regulation in question on the basis that it was not properly promulgated pursuant to legislative authority or that it was not binding on him.

The purpose of the official misconduct statute (Ill. Rev. Stat. 1981, ch. 38, par. 33 — 3) is manifestly to compel public officials and employees, while acting in their official capacity, to do so in a lawful manner. Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority and having binding legal force. (Black’s Law Dictionary 795 (5th ed. 1979).) We believe that it is in this sense that the term was used by the legislature in defining the offense of official misconduct.

Support for our position that we are not limited to statutory violations as a basis for charging official misconduct is found in case law. (People v. Nickson (1978), 58 Ill. App. 3d 470, 478 (defendant knowingly performed an act which he knew he was forbidden by law to perform; to wit: he accepted compensation for overtime work which he failed to perform); People v. Thoms (1977), 50 Ill. App. 3d 398 (prosecution predicated on police chief’s violation of various supreme court rules concerning citations, bonding and the court appearance required of the accused).) Accordingly, we conclude that a violation of a rule or regulation properly promulgated by an administrative body may form the basis for prosecution under sections 33 — 3(b) and (c) of the Criminal Code of 1961. Defendant’s position to the contrary is rejected.

Further, we deem it unnecessary that an administrative rule or regulation contain a penalty clause before it can act as a basis for bringing a charge of official misconduct.

No party disputes on appeal that convictions under sections 33— 3(b) and (c) may be predicated upon a knowing violation of a civil or penal statute. There is also authority in this area of the case law that indictments charging offenses under sections 33 — 3(b) and (c) can properly be predicated upon a statute or supreme court rule which itself does not prescribe a penalty for its violation. (See People v. Kleffman (1980), 90 Ill. App. 3d 1 (section 33 — 3(c) prosecution predicated on city mayor’s attempt to circumvent section 24 — 6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 24 — 6), which required the destruction or use by a police agency of confiscated firearms); People v. Thoms (1977), 50 Ill. App. 3d 398 (section 33 — 3(b) prosecution based upon supreme court rules).) We discern no fundamental differences between imposing criminal liability under section 33 — 3(b) and (c) of the Criminal Code of 1961 based on the violation of a civil statute or supreme court rule that does not expressly or explicitly provide for criminal penalties and imposing such liability based on the violation of an administrative rule or regulation which also makes no reference to criminal penalties.

We therefore hold that it is not necessary that an administrative rule or regulation provide for criminal sanctions or constitute a criminal offense in order to form the basis upon which to predicate a charge of official misconduct.

Contrary to defendant’s claim, this holding does not run afoul of the legal principles applied in People v. Graf (1968), 93 Ill. App. 2d 43; see People v. Campbell (1972), 3 Ill. App. 3d 984, 988, appeal denied (1972), 50 Ill. 2d 649. Graf simply held that a defendant could not be prosecuted for a violation of the Dramshop Act where it did not expressly describe the conduct as an offense and did not itself provide a penalty. (93 Ill. App. 2d 43, 48.) The reason for that holding was that a penalty clause of some sort is, in a sense, an element of a penal statute; a criminal offense cannot by definition be stated without such a clause. See 93 Ill. App. 2d 43, 48.

In the present case, however, the defendant was not charged with the criminal offense of violating any LEADS regulation. Such regulation is only relevant in that it establishes the lawful obligation which the defendant is compelled to obey (see People v. Campbell (1972), 3 Ill. App. 3d 984, 988, appeal denied (1972), 50 Ill. 2d 649); it is not the offense with which the defendant was charged. The offenses for which the defendant was indicted were charges of official misconduct under sections 33 — 3(b) and (c) of the misconduct statute, which specifically provides that a public officer or employee convicted of a violation of any provision of that statute forfeits his office or employment and, in addition, commits a Class 3 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 33 — 3.) Defendant’s suggestion that section 4 — 8(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 8(b)(1) constitutes a limitation on the ability of the State to formulate an indictment charging an offense under sections 33 — 3(b) or (c) is without foundation.

We conclude, therefore, that the trial court erred in dismissing the official misconduct counts on the grounds that the LEADS regulations did not contain a penalty provision.

In counts III and X, however, the defendant was charged with official misconduct based upon burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)) in that he procured information, that being the name and address of a vehicle registration number owner from LEADS for purposes other than that of law enforcement. Procuring the name and address of a vehicle registration number owner from LEADS for purposes other than law enforcement is not an act forbidden by the burglary statute. The allegations of counts III and X of the indictment were therefore insufficient to charge an offense of official misconduct under section 33 — 3(b) of the Criminal Code of 1961 and were properly dismissed by the trial court even though the trial court did so for another reason. Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 9.

That part of the trial court’s order dismissing counts III and X of the indictment is affirmed, the balance of the trial court’s order dismissing counts II, IV, V, VI, VII, VIII, IX, XI, XII, XIII and XIV is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

NASH and LINDBERG, JJ., concur.


author: JUSTICE GOLDBERG

text:
    JAMES C. BRYCE, Plaintiff-Appellee, v. JOHNSON & JOHNSON, Defendant-Appellant.
    First District (1st Division)
    No. 82—0379
    Opinion filed June 6, 1983.
    Rehearing denied July 18, 1983.

      Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Ronald L. Lipinski and Cynthia G. Swiger, of counsel), for appellant.
    Carey & Scheuneman, Ltd., of Chicago (Peter B. Carey, Regina K. McCabe, and John J. O’Toole, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

This appeal involves an action for retaliatory discharge brought by James C. Bryce, an employee (plaintiff), against Johnson & Johnson, a corporation, his employer (defendant). After trial by the court, judgment was entered in favor of plaintiff for $350,000. Defendant has appealed.

Plaintiff was employed by defendant since 1969. The mutual rights and obligations of the parties are covered by a comprehensive collective bargaining agreement between defendant and Textile Workers Union of America (union). The pertinent facts are not easily stated. There are several conflicts in the evidence. Also, both sides have departed from the applicable rule requiring the facts to be stated “accurately and fairly without argument or comment.” 87 Ill. 2d Rules 341(e)(6), 341(f).

Defendant has a plant in Chicago which manufactures ointments and gauze products used for dressings. Part of this work is done in a sterile environment. Commencing about. November of 1969, plaintiff worked for defendant as a material handler for about eight months. He left for a short time and returned to work again during 1970. Plaintiff worked in the so-called aseptic room and in two other associated rooms. Plaintiff was then in good health. His duties in the aseptic room required him to lift certain items including bottles and bottle cases which varied in weight and were often as heavy as approximately 40 to 50 pounds. No heavier weights were lifted by him without the aid of a machine or another person. Racks of bottles were placed on trays which were put on a movable truck and pushed into a sterilizer. Plaintiff also worked in the adaptic room which required him to lift trays weighing 52 pounds up from the floor to a refrigerator shelf about as high as his head.

On January 6, 1975, while working in the aseptic room, plaintiff sustained a back injury. Plaintiff’s foot slipped as he was loading bot-ties onto a tray for washing. This mishap occurred “out of and in the course of” plaintiff’s employment. Ill. Rev. Stat. 1981, ch. 48, par. 138.2.

Dr. Evelyn Adams, employed by defendant, recommended plaintiff receive medical treatment from Dr. John E Flynn, Jr. During February of 1975, plaintiff- was operated on by Dr. Flynn for partial removal of one of the discs between the vertebrae. This surgery is referred to as a “partial laminectomy.” Dr. Flynn did not discharge plaintiff from his care until January 19, 1976, approximately one year after the mishap.

On March 20, 1975, plaintiff filed an application for adjustment of claim with the Illinois Industrial Commission. Plaintiff received tern- . porary total compensation and defendant assumed and paid all of the medical expenses as well as additional compensation. The arbitrator also awarded plaintiff compensation of $83.20 per week for 150 weeks.

Plaintiff testified that during late November 1975, he spoke to Joseph Beemster, who managed safety and security for defendant. Beemster told plaintiff he “didn’t need a lawyer, that Johnson & Johnson [defendant] would take care of me.” Beemster denied this conversation. He testified he told plaintiff that he should get back to work as soon as he could. Beemster testified he had a conversation with plaintiff about August of 1975. Plaintiff said he was going “to screw” Dr. Adams, the company and the union. Beemster told plaintiff that he (Beemster) “was very upset.”

Beemster also testified to a conversation with plaintiff near the end of 1975. At that time plaintiff told him he wanted to come back and do his job. Plaintiff picked up some heavy boxes to demonstrate. Beemster advised plaintiff to put the boxes down. He said, “Don’t get hurt.” Beemster testified that these were the only conversations he had with plaintiff. He testified he never at any time told plaintiff not to file a workmen’s compensation claim and he never did anything to discourage plaintiff from filing such a claim.

During the summer of 1975, plaintiff visited defendant’s plant. John Devine, department manager of defendant, asked plaintiff when he would return to work. Plaintiff stated this was up to his doctor. Plaintiff testified Devine told him “he was not going to hold the job open too long” for plaintiff.

During plaintiff’s extended absence the question of posting plaintiff’s old position came up. The union president requested that the posting wait because plaintiff was on a workmen’s compensation leave. Defendant’s representative agreed to wait “2 weeks or so” before posting.

After a wait, the defendant did post the job. In late 1975, plaintiff’s position was filled after posting and bidding in accordance with the collective bargaining agreement. Both of the briefs comment and argue upon this situation. On October 29, 1975, plaintiff’s union filed a grievance based upon posting of plaintiff’s job. However, the grievance was denied by defendant. The union officials suggested to defendant that plaintiff’s real concern was to work on the first shift. The grievance was apparently then dropped. When plaintiff returned to work in January of 1976, he took a new job as janitor but he retained all of his seniority rights including the right to bid on any posted job.

Upon plaintiff’s return to work on January 19, 1976, he was assigned to the midnight shift. This new assignment reduced his earnings approximately 50%. He had no overtime or incentive pay. His duties included sweeping, mopping and cleaning up. Plaintiff testified he was directed to perform work which exceeded the lifting requirements of his previous job. However, there is testimony to the contrary that the normal duties of the janitor job did not require such lifting. There is testimony that this new job was worked out by discussion between the union and management representatives as temporary employment for plaintiff to protect plaintiff from possible injury.

By January of 1976, plaintiff was free from pain and he resumed his ordinary personal activities. He had a slight limp and he was still wearing a back brace. Dr. Flynn directed him to wear the brace for 30 days after he resumed work. When plaintiff returned to work, he gave Dr. Adams a note from Dr. Flynn. Dr. Flynn also wrote directly to Dr. Adams. Dr. Flynn stated that plaintiff was able to return to work but the doctor wished to continue to see him every four to six months. Dr. Flynn also write, concerning plaintiff, that he should have two or three rest periods a day and “he is to be limited with regard to lifting no more than 25 pounds.”

On January 28, 1976, plaintiff wrote to the chairman of the board of defendant. This was a lengthy communication in which plaintiff stated that when he returned to work he was given “a much harder job” on a late shift and with a reduction in pay. In this letter, plaintiff also stated that he was ordered by one of his superiors to give unsterilized bottles to machine operators in situations which required sterility. In responding to this letter, defendant’s director of personnel wrote plaintiff and told him that this charge had been “thoroughly investigated” and that since December of 1974 the defendant had strictly complied with all such regulations. On March 23, 1976, the director of personnel prepared a memorandum to the effect that plaintiff had been informed that proper procedures were being followed in the plant and that defendant company “could not tolerate any further conduct by him which in any way defamed the company or its products and further conduct of this nature by plaintiff could result in his discharge.”

As a result of plaintiff’s letter, the manager of labor relations at defendant’s plant made an investigation and a written report. This lengthy communication pointed out that restoring plaintiff to his former job would increase the risk of injury. The communication also recommended that plaintiff “be separated upon incurrence of the next Medical Leave of Absence or extended absence due to illness or injury.”

There is a quantity of testimony in the record, all conflicting, as to whether the duties imposed upon plaintiff by his new job as a janitor were harder than those of his former job in the aseptic room. Plaintiff testified he was required to move items referred to as pallets occasionally in connection with his duties. However, he used a hydraulic lift to move these items for sweeping purposes. Plaintiff mentioned the need to move steel cores weighing 130 pounds. However, he testified that these cores were moved with the help of an electric hoist. We do not regard this question as being the decisive issue in the case. In fact, as will be shown, plaintiff worked at his new post less than three months until his next injury.

The union president testified plaintiff told him privately there was no problem with the company products but he was only making these charges in an effort to get his old job back. This alleged conversation occurred on March 19, 1976, some two months after plaintiff started to work at his new post. Plaintiff also testified he was told at a meeting with defendant’s representatives that he was not going to get his old job back. Plaintiff also testified he was threatened then with termination of his employment. In any event, the meeting terminated without action by either side.

After this meeting, and on March 22, 1976, plaintiff filed a charge against defendant before the National Labor Relations Board. This charge claimed discrimination by the defendant against plaintiff because of his union activities. Plaintiff also filed an amended charge against defendant on April 1, 1976. This amended charge also alleged defendant “has discriminated against” plaintiff “because of his union” activity. Plaintiff testified that he filed these charges only against the union. Plaintiff testified he had an attorney who might have filed the charges against the employer. However, copies of the charges show that the defendant was the target. In any event, a response to the charges was filed by the defendant. After investigation by the National Labor Relations Board, plaintiff’s complaint was denied. The Board found the action of defendant in posting" and filling plaintiff’s former job was in accordance with the collective bargaining agreement and failure of defendant to reinstate plaintiff to his former job was not because of “union and/or protected concerted activities” by plaintiff.

The union president testified plaintiff’s job was temporary and was “created strictly for Jim [plaintiff] to keep him from possibly hurting himself again.” Dr. Adams testified at trial that when plaintiff returned to work he was in fact unable to perform his former job but could perform the duties of a janitor’s job and remain within the restrictions imposed by medical necessity. Some two weeks after plaintiff’s return, during March of 1976, Dr. Adams wrote to Dr. Flynn regarding a letter from Dr. Flynn advising that plaintiff could return to his usual work. Dr. Adams accordingly sent Dr. Flynn a job description of the lifting necessary if plaintiff worked in the aseptic room. Dr. Flynn returned this sheet -with the notation that after examining it and after “a long, honest discussion with the patient” he felt “the patient may resume working at his old job.” However, defendant did not return plaintiff to his job in the aseptic room. As shown, this opening had previously been filled by posting in accordance with the collective bargaining agreement.

The evidence also shows that Joseph Beemster wrote a memo dated March 4, 1976, which states he had suggested to plaintiff that plaintiff could work as a machine operator in the adaptic room. Such a position had been posted by defendant. The memo stated Beemster reviewed this with Dr. Adams who thought it feasible for plaintiff as no heavy lifting was required. Beemster stated in the memo he suggested this opening to plaintiff but plaintiff only wanted his former job. Beemster testified he telephoned plaintiff on two occasions regarding this job but plaintiff responded he was not interested. Plaintiff testified he never had knowledge' that this job of machine operator had been posted or was available. He denied that he' had spoken to Beemster about it.

Plaintiff testified that on April 2, 1976, his supervisor ordered him to weigh two large cartons of waste gauze. Plaintiff responded he was physically unable to do this. The supervisor told him to get some help. Plaintiff responded he could not find anybody and, “I can’t weigh them.” Plaintiff testified the supervisor said, “Well, do it, or else.” Plaintiff then went back to the scales and attempted to move one of the boxes with a board. This box weighed 232 pounds. Plaintiff felt a sharp pain in his back and his legs began to hurt. When he reported this to his supervisor, the supervisor, adding some strong language, told plaintiff to report to the medical department.

The testimony regarding this encounter was denied by the supervisor. His testimony was that the standard procedure for weighing cartons of gauze was to wheel the cart with the cartons on, to the scale, take a total weight reading and then deduct the weight of the cart. This weight was stenciled on the carts. Plaintiff in turn denied the existence of this procedure. The supervisor conceded he could not recall advising plaintiff thereof.

Joseph Beemster, defendant’s director of safety and health, testified that about March of 1976 he saw plaintiff take a box of gauze and slide it off of a hand truck and onto a scale. He told plaintiff, “Jim, you’re going to get hurt. Don’t do that.” Beemster stated plaintiff made no response to him.

It is undenied that plaintiff was injured on April 2, 1976. This mishap also occurred, “out of and in the course of” plaintiff’s employment. In due course plaintiff filed his application for adjustment with the Illinois Industrial Commission. The Commission found plaintiff was totally and permanently disabled. Plaintiff was allowed temporary total disability as well as a permanent disability allowance. The record shows that plaintiff was subjected to additional surgery referred to as a complete laminectomy and a spinal fusion. Plaintiff filed this suit on July 21, 1977.

Each of the briefs before us makes a number of separate contentions and cites a profusion of authorities. Under the view we take of this record, it is not necessary to consider most of these problems.

In a recent opinion of the supreme court, the thought is well expressed that common law rights and liabilities pertaining to the right and ability of an injured employee to recover for that injury from the employer have been abrogated by statute. In Sharp v. Gallagher (1983), 95 Ill. 2d 322, 326, citing Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1958), 13 Ill. 2d 460, 463, 150 N.E.2d 141, the court described the workmen’s compensation law:

“The legislature enacted the Workmen’s Compensation Act to abrogate the common law rights and liabilities which previously governed an injured employee’s ability to recover against his employer. The Act established a new ‘system of liability without fault, designed to distribute the cost of industrial injuries without regard to common-law doctrines of negligence, contributory negligence, assumption of risk, and the like.’ [Citation.]”

The legislature properly deemed it necessary to protect the cause of action thus vested in the employee to make certain that every employee whose work came within the scope of the statute was to have a free and complete right to exercise this remedy with absolute freedom from any type of discrimination of coercion. The statute provides (Ill. Rev. Stat. 1981, ch. 48, par. 138.4(h)):

“It shall be unlawful for any employer, insurance company or service or adjustment company to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his exercise of the rights or remedies granted to him by this Act.
It shall be unlawful for any employer, individually or through any insurance company or service or adjustment company, to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his rights or remedies granted to him by this Act.”

Perhaps the most pertinent authority in considering rights and remedies protected by these provisions of the statute is Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. There, the supreme court allowed an employee a cause of action for retaliatory discharge. The court described the “trade off between employer and employee” which was the basis for the Workmen’s Compensation Act. (74 Ill. 2d 172, 180.) The employee gave up common law rights to proceed against his employer in court and, in turn, recovery for injury arising “out of and in the course of” the employment was made automatic. (74 Ill. 2d 172, 180.) On the other hand, the liability of the employer was fixed to protect against “sympathies of jurors whose compassion for fellow employees often led to high recovery.” (74 Ill. 2d 172, 180.) The supreme court expressed the important thought that the entire fabric of workmen’s compensation would be dangerously threatened if any employer would abuse his power “by threatening to discharge employees for seeking compensation under the Act.” 73 Ill. 2d 172, 182.

From a factual point of view the decisive aspect of Kelsay is that after plaintiff was injured at her work the personnel manager of the defendant told her flatly “it was the corporation’s policy to terminate the employment of employees who pursued workmen’s compensation claims against it.” (74 Ill. 2d 172, 179.) Plaintiff “decided to proceed with her claim” and “was discharged.” (74 Ill. 2d 172, 179.) These were the crucial factors in Kelsay which prompted the supreme court to approve the cause of action for retaliatory discharge.

It is immediately apparent that the record before us does not contain sufficient proof to establish defendant’s guilt of retaliatory discharge. To begin with, there was no discharge of this plaintiff. Plaintiff continued to work until the unfortunate accident which occurred on April 2, 1976. Plaintiff had previously filed a claim for compensation resulting from the injuries which he suffered while working on January 6, 1975. Plaintiff properly filed another petition for compensation before the Commission not long after April 2, 1976. It is apparent that from and after that date plaintiff was totally and permanently incapable of further work.

The entire record before us shows that the defendant did not “interfere with, restrain, or coerce” the employee in any manner whatsoever in the exercise of the rights and remedies vested in plaintiff by virtue of the Workmen’s Compensation Act. The record shows considerable friction between plaintiff and his employer. But, these various interchanges between the parties are far from showing a discharge. The blunt and inescapable fact of the matter is that plaintiff was never discharged.

Realizing that no actual discharge appears in this record, plaintiff makes the contention that where an employer deliberately makes the employee’s working conditions so intolerable that it forces him to quit, such conduct amounts to a “constructive” discharge and calls for application of the remedy for retaliatory discharge. Here again the difficulty is that plaintiff was never forced to quit and never did quit.

Plaintiff cites in this regard only a number of Federal cases which use the term “constructive discharge.” Actually, one of these authorities involves an issue of discrimination under the Federal Civil Rights Act. (See Muller v. United States Steel Corp. (10th Cir. 1975), 509 F.2d 923.) Plaintiff in the case at bar does not seek to invoke Federal law. After studying all of the testimony with the utmost of care, we cannot conclude that there was a retaliatory discharge.

Even assuming that plaintiff was unjustly treated, as may be inferred from his own testimony, there is one factor which is completely lacking to create a cause of action under this statutory enactment. The missing link is the total absence of even the slightest interference by defendant in the exercise by plaintiff of all of his rights under the Workmen’s Compensation Act. Plaintiff testified he was told by one of his superiors that he did not need a lawyer but that the defendant would take care of him. Taking this testimony at face value, it is not by any means equivalent to even the slightest violation of the above-quoted statute concerning restraint or coercion against the employee in any manner for exercising his rights under the Workmen’s Compensation Act. Plaintiff exercised these rights with complete effectiveness on each of the occasions that he was injured in the course of performance of his duties.

Plaintiff also makes a contention based upon the second portion of the Workmen’s Compensation Act above quoted. Plaintiff argues that the defendant refused to rehire him or recall him “to active service in a suitable capacity.” Plaintiff urges that defendant acted to strip plaintiff of his former job because plaintiff “had pursued his rights under the Workmen’s Compensation Act and received a remedy ***.” However, plaintiff’s own conduct has contradicted this argument.

In plaintiff’s letter to defendant’s chairman, dated January 28, 1976, plaintiff made no claim of any attempt by defendant to frustrate plaintiff’s first proceeding before the Industrial Commission. Plaintiff said only, “I was punished for having been injured.” As shown, on March 22, 1976, after plaintiff had returned to his employment, plaintiff filed a charge against defendant before the National Labor Relations Board. This charge was not based upon any alleged retaliation against plaintiff for pursuing his rights under the Workmen’s Compensation Act. On the contrary, this charge was that plaintiff had been discriminated against by defendant because of plaintiff’s union activities. Plaintiff filed an amended charge on April 1, 1976, which charged defendant with discrimination against plaintiff “because of his union activity.” This demonstrates that plaintiff himself realized and effectively proved that defendant never did anything against plaintiff “because of the exercise of his [plaintiff’s] rights or remedies granted to him by this Act.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.4(h).) It is true that defendant litigated the claims before the Industrial Commission but this certainly cannot be construed as a violation of any statute.

This record thus presents no situation regarding manifest weight or sufficiency of evidence. We have here a complete absence of proof of violation of the basic statute quoted above.

Plaintiff also relies upon Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876. Palmateer was decided on the pleadings. Plaintiff there was actually discharged. He alleged that he was discharged because he supplied information to local law-enforcement authorities that a fellow employee might be involved in commission of a crime and he agreed to assist in the investigation and trial of this employee if required.

The opinion in Palmateer cites many authorities. We learn therefrom that there should be no cause of action for retaliatory discharge unless a clear mandate of public policy is involved. (85 Ill. 2d 124, 131.) In Kelsay, there was also a clear mandate of public policy in the direct language of the statute protecting employees from coercion against exercising their untrammeled right to proceed to obtain workmen’s compensation. Palmateer and Kelsay are thus much stronger cases than the one at bar. The Palmateer complaint alleged the plaintiff was discharged for a clearly specified reason. In the case before us we have no discharge and no so-called “constructive” discharge.

In Palmateer, three justices dissented including the author of the Kelsay opinion. The dissent is best characterized as quite strong. The dissent recognized the possible danger inherent in an undue expansion of the availability of the tort of retaliatory discharge. However, in the case before us it cannot even be said that the record presents an extension of the tort. In the record before us we have no discharge of any kind and no connection with any violation of the Workmen’s Compensation Act.

Several recent decisions should be noted simply for purpose of completeness. In Robertson v. Travelers Insurance Co. (1983), 95 Ill. 2d 441, plaintiff brought a common law action for the tort of “outrage.” Involved in the case was a workmen’s compensation action. A jury awarded plaintiff a large amount of compensatory and punitive damages. A divided appellate court affirmed. Robertson v. Travelers Insurance co. (1981), 100 Ill. App. 3d 845, 427 N.E.2d 302.

The supreme court reversed on the theory that “[a] common law action should not, without other evidence of legislative intent, be held to survive the [Workmen’s Compensation] Act’s exclusivity provisions merely because the remedy provided in the Act for the injury alleged applies to other kinds of injuries as well.” (Robertson v. Travelers Insurance Co. (1983), 95 Ill. 2d 441, 447.) It seems to us that this opinion indicates an intention to avoid possible expansion of the cause of action involved in Kelsay and Palmateer.

In Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95, appeal denied (1980), 81 Ill. 2d 601, a divided appellate court held that the tort of retaliatory discharge, as considered in Kelsay, should not be extended in view of the existence of a collective bargaining agreement between the parties. (85 Ill. App. 3d 402, 406.) The plaintiff there was discharged for the alleged reason of habitual tardiness or absence. The majority of the court held that plaintiff had failed to raise the issue of retaliatory discharge in his grievance procedures and therefore had failed to exhaust his remedies. The dissent pointed out that plaintiff had submitted to arbitration under the grievanee procedure prior to the Kelsay decision. 85 Ill. App. 3d 402, 409 (Barry, J., dissenting).

A slightly different situation arose in Wyatt v. Jewel Companies, Inc. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053, appeal denied (1982), 92 Ill. 2d 573. There, the court was unanimous in holding that plaintiff need not exhaust available contractual remedies, including a collective bargaining agreement, before filing an action for retaliatory discharge under the authority of Kelsay. Wyatt has no application to the instant case. Plaintiff here engaged in an unsuccessful grievance proceeding, but as shown, that grievance was not directed to the alleged tort of retaliatory discharge as is plaintiff’s complaint.

In the later case of Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App. 3d 396, this court, after referring to Deatrick v. Funk Seeds International (1982), 109 Ill. App. 3d 998, 441 N.E.2d 669, and to Wyatt, held that where a collective bargaining agreement exists the employer does not have a complete right to discharge so that the policy which prompted the holding in Kelsay was not operative. The court thus affirmed dismissal of the complaint for retaliatory discharge.

Our analysis as above set forth convinces us that the judgment appealed from should be and it is therefore reversed.

Judgment reversed.

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


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAMONT BAGGETT, Defendant-Appellant.
    First District (2nd Division)
    No. 82—14
    Opinion filed June 7, 1983.

      Steven Clark, of State Appellate Defender’s Office, of Chicago, and Richard E. Neville, of Walsh & Neville, Ltd., of Chicago, pro bono, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Harry John Devereux, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

In a jury trial, defendant, Lament Baggett, was found guilty of murder and armed violence and judgment was entered on the verdicts. The trial court thereafter vacated the judgment on the armed violence verdict and sentenced defendant to serve 30 years in the Illinois Department of Corrections for murder. On appeal, defendant contends that the trial court improperly refused the jury’s request to review testimony and coerced the jury into returning a verdict; that the jury was not properly instructed; that he was not proved guilty beyond a reasonable doubt; that the court unduly limited defense counsel’s cross-examination of two State witnesses; and that the court improperly restricted defendant from testifying as to his state of mind immediately prior to the shooting. For the reasons which follow, we affirm.

At trial, the State’s evidence disclosed that on May 26, 1980, at approximately 9 p.m., Venita Richey was visiting her grandmother, Virgie Booker, in Booker’s apartment on North Lockwood Street in Chicago. Shortly after 9 p.m., Kenneth Jackson, whose family lived in the same apartment building, and Verdell Richey, Venita’s brother, went to Booker’s apartment to drive Venita home. Venita, Verdell, Jackson and defendant left the apartment and walked to the patio at the rear of the apartment building. Jackson then asked defendant, “Who do you think you are, you’re pussy, you ain’t nothing.” Keith Perry, Jackson’s cousin, who was waiting for him outside of Booker’s apartment, also heard Jackson tell defendant, “You need a little pussy.”

Venita, Verdell, Jackson, Perry and defendant all walked to the front of the building where Jackson’s blue Vega was parked. Jackson sat in the driver’s seat. Perry began to sit down in the back seat of the car but got out when Venita entered the car. Verdell and defendant were standing near a fence talking but as Jackson and Venita were about to leave, defendant approached the car holding a gun in his right hand. Defendant started poking Jackson with the gun and Venita heard defendant say, “I told you to stop f[------] with me, didn’t I, I told you to leave me alone.” Jackson put his arms close to his chest. According to Perry and Verdell, defendant said, “What do I care about going to jail, you ain’t s[ — ], next time I’m going to kill your mother f[......] ass.” Perry testified that Jackson replied, “Okay, man, I’m just playing.” Defendant then shot Jackson once, placed the gun in his pants and ran north on Lockwood. Venita testified that defendant shot Jackson at a distance of between six inches and one foot; Verdell stated that the weapon was about “a foot, more or less” from Jackson when it was fired.

After being shot, Jackson opened the car door, got out, walked a few steps and collapsed. Jackson’s father, Roosevelt Jackson, came out of the family’s apartment and saw his son lying on the grass. He observed that his son had been shot and noticed that his son’s car was parked on the southeast corner of Race and Lockwood with the engine running. He got into the car, backed it up 15 to 20 feet, rolled up the window on the driver’s side and exited the car. There were bloodstains on the car seat. Kenneth Jackson later died at St. Anne’s Hospital.

Dr. Uksel Konacki, who performed the autopsy, discovered three external wounds on Jackson’s body: a bullet entry wound on Jackson’s inner left arm near the fifth finger, an exit wound on the inner left arm near the thumb, and an entry wound near the left nipple. Dr. Konacki was unable to determine whether all three external wounds were caused by the same bullet. Death was caused by bullet lacerations of the heart and lungs.

Dr. Konacki testified that a bullet fired at close range could cause “stippling,” i.e., the speckling of embedded gunpowder particles around an entrance wound. Although he found no evidence of stippling around any of Jackson’s wounds, he did not perform a microscopic examination for powder residue. Dr. Konacki did not state at what exact distance stippling could occur.

Defendant testified to the following:

On the day of the shooting, May 26, 1980, he went to Virgie Booker’s apartment to visit Venita Richey. Venita’s brother Verdell and Kenneth Jackson were also present. When it was time for Venita to go home, Jackson told defendant to leave. Venita, Verdell, Jackson and defendant then left the apartment building together. They walked out to Jackson’s Vega. Jackson called defendant a “punk, fag sissy” and threatened to “kick [his] ass.”

Venita sat on the passenger side of the car and Jackson sat in the driver’s seat. Verdell stood next to the open door on the driver’s side talking with Jackson. Defendant started to leave but Jackson called him back. Defendant walked around the front of the car and stopped near the driver’s side door. Jackson told defendant that he did not want “to catch [him] around there any more.” Jackson reached up and shoved defendant who pushed him back. Verdell then handed Jackson a gun through the open car door. Jackson grabbed the weapon with his right hand and pointed it at defendant. Defendant stepped back and said, “No, don’t do that.” When defendant was four to five feet from the car, defendant pulled his own gun from his pants, closed his eyes and fired. Defendant ran to his mother’s house after the shooting. Defendant fired the gun because he was scared.

Defendant also testified that he was not upset that Jackson called him names in front of Venita nor was he bothered by the fact that Jackson told him not to return to Booker’s apartment. Defendant admitted that prior to May 26, 1980, he had known both Venita and Verdell Richey but stated that he had not met Kenneth Jackson until the day of the shooting. The first time defendant saw Keith Perry was in court.

I

Defendant contends that the trial court improperly refused the jury’s request to review the testimony and coerced the jury into returning a verdict. The facts pertinent to this discussion are as follows:

The jury began its deliberations in this case shortly after 3 p.m. At 9 p.m., the foreman sent word to the trial judge that the jury had a question. The foreman stated that the jury had come to an impasse and had not been able to reach a verdict. The foreman at first requested additional evidence, but the court replied that it could not provide such evidence. The foreman then stated that the jury’s question concerned clarification of existing testimony. The judge allowed the foreman to ask the question, and the following exchange took place:

“FOREMAN: There was an exhibit here number one of the Defense which shows the car which has initials and ‘x‘s indicating a location where a gun was passed from one person to the deceased.
This opening. Now at one time during the trial we were lead [sic] to believe that the door was shut. And that the window was down.
That was not brought to light today and it seems to be one of the main problems in coming to a conclusion.
THE COURT: There’s no way that I can answer that for you. Whatever you collectively or recall individually collectively, I don’t think I could answer it even if I were permitted to.
FOREMAN: What do we do at this point that we have come to an impasse.
THE COURT: Because of that?
FOREMAN: Apparently, so.
THE COURT: Well all I can do is give you more time. It is now nine o’clock. In about half an hour we’ll have to make overnight arrangements for you but the rules of procedure just do not permit it.
FOREMAN: We cannot go over testimony?
THE COURT: No.”

Defendant submits that the court erred in refusing the jury’s request. It is within the discretion of the trial court to allow or to refuse a request for the review of testimony. (People v. Pierce (1974), 56 Ill. 2d 361, 364, 308 N.E.2d 577.) There is error, however, when a trial court refuses to exercise discretion in the erroneous belief that it has no discretion as to the question presented. (People v. Queen (1974), 56 Ill. 2d 560, 565, 310 N.E.2d 166.) Interpreting the foreman’s question as a request for the review of testimony, defendant argues that the court committed reversible error in denying this request. We believe the premise of defendant’s argument is erroneous.

When the colloquy between the foreman and the court is considered in its entirety, it does not appear that the jury wanted to review any specific portion of the trial testimony. The foreman’s inquiry indicated that the jury was familiar with the evidence. Rather, it appears that the jury sought guidance from the court to help resolve a conflict in the evidence.

A trial judge does not abuse his discretion when he refuses to answer an improper question and directs the jury to continue its deliberations. (People v. Kelly (1980), 89 Ill. App. 3d 400, 405, 411 N.E.2d 1012.) The court may decline to answer a question which would require the judge to answer with a conclusion based on his own evaluation of the evidence. (People v. Williams (1975), 60 Ill. 2d 1, 12-13, 322 N.E.2d 819.) In the instant case, the judge refused to answer the foreman’s inquiry apparently because his answer necessarily would have reflected his own opinion of the evidence. We find no error in this. While defendant maintains that the judge’s comment, “Because of that?” had the effect of telling the jury that the disputed point was not important to its deliberations, we are unable to place such an interpretation on this comment. From our reading of the record, we conclude that the court’s remark was merely another way of asking whether there were other reasons for the impasse in deliberations.

Defendant also argues that the trial judge coerced a verdict when he informed the jury that, “In about half an hour we’ll have to make overnight arrangements for you, ***.” We cannot agree.

The jurors had been deliberating for approximately six hours and knew that it was late. They may well have been tired and in need of rest. Without being advised that there was a limit as to how long they would have to deliberate before they would be sequestered, the jurors might have felt pressured to reach an immediate decision. The trial judge’s comments had the effect of removing and not of creating any such pressure. Informing a jury that it might be sequestered cannot be considered coercive. (See People v. Green (1980), 91 Ill. App. 3d 1085, 1091, 415 N.E.2d 595.) In our judgment, the record fails to show that the trial judge coerced a verdict.

II

The jury in this case was instructed on the elements of voluntary manslaughter under section 9 — 2(b) (unreasonable belief in self-defense) of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b).) In his second argument, defendant contends that the jury also should have been instructed on the elements of voluntary manslaughter under section 9 — 2(a) (serious provocation) which states, in part:

“A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed, or
* * *
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(a).

The supreme court has repeatedly held that “[a] defendant is entitled to the benefit of any defense shown by the entire evidence, even if the facts on which such defense is based are inconsistent with the defendant’s own testimony” (People v. Scalisi (1926), 324 Ill. 131, 145, 154 N.E. 715; People v. Papas (1942), 381 Ill. 90, 96, 44 N.E.2d 896; People v. Izzo (1958), 14 Ill. 2d 203, 211, 151 N.E.2d 329) and that “very slight evidence upon a given theory of a case will justify the giving of an instruction.” (People v. Khamis (1951), 411 Ill. 46, 53, 103 N.E.2d 133; People v. Kalpak (1957), 10 Ill. 2d 411, 425, 140 N.E.2d 726.) Nevertheless, the “very slight evidence” test does establish a minimum standard to be met before instructions are required. “To hold otherwise would permit a defendant to demand unlimited instructions, which are wholly unrelated to the case but are based upon the merest factual reference or witness’s comment.” (People v. Bratcher (1976), 63 Ill. 2d 534, 540-41, 349 N.E.2d 31.) With these principles in mind, we turn to a review of the evidence which defendant cites in support of his argument that instructions on the elements of voluntary manslaughter under section 9 — 2(a) were required in this instance.

Defendant claims that there was evidence of serious provocation because of the names Jackson called him and because of their “shoving match” which defendant characterizes as “mutual combat.”

“Passion on the part of the slayer, no matter how violent will not relieve him from liability for murder unless it is engendered by a provocation which the law recognizes as being reasonable and adequate. If the provocation is not sufficient the crime is murder. It is the general rule that language, however aggravated, abusive, opprobrious, or indecent, is not sufficient provocation to reduce a killing committed with a deadly weapon from murder to manslaughter. [Citations.] The rule does not apply where as a result of insulting or opprobrious words, the parties become suddenly heated, and engage in a mutual combat, fighting on equal terms, and death results from the combat. [Citation.]
The term mutual combat has been defined as one into which both parties enter willingly, or in which two persons, upon a sudden quarrel, and in hot blood, mutually fight upon equal terms. 15 C.J.S. p. 358.
A slight provocation will not be adequate since the provocation must be proportionate to the manner in which the accused retaliated and therefore if accused on a slight provocation attacked deceased with violence out of all proportion to the provocation and killed him the crime is murder. This is especially true if the homicide was committed with a deadly weapon. [Citations.]” People v. Matthews (1974), 21 Ill. App. 3d 249, 253, 314 N.E.2d 15.

In our judgment, shooting someone is a disproportionate response to being called names and being shoved one time. Moreover, defendant testified that he was not disturbed by the names Jackson called him nor was he upset that Jackson told him not to return to Booker’s apartment. Defendant also testified that he shot the deceased because he was “scared.” None of the other witnesses testified to any conduct which would indicate that defendant shot the deceased because he was provoked. We conclude that defendant did not present evidence which would have entitled him to a voluntary manslaughter instruction under section 9 — 2(a) of the Criminal Code of 1961.

In his second argument, defendant also raises certain objections to the armed violence instructions. In light of the fact that the trial court vacated the judgment of conviction on this offense, we need not address them.

Ill

Defendant contends that he was not proved guilty beyond a reasonable doubt of murder. At trial, Kenneth Jackson’s cousin, Keith Perry, testified that he observed defendant shoot Jackson. Perry, how- ■ ever, did not discuss the shooting with anyone for eight or nine months thereafter. And Verdell Richey could not recall with certainty whether Perry was present when Jackson was shot. Defendant cites People v. Coulson (1958), 13 Ill. 2d 290, 297, 149 N.E.2d 96, for the proposition that “[w]here testimony is contrary to the laws of nature, or universal human experience, [a court of review] is not bound to believe the witness.” According to defendant, the fact that Perry did not mention the shooting to anyone for eight or nine months and then gave a detailed account of the incident is too improbable to be believed. We cannot agree.

In our judgment, Perry’s testimony is not so inherently improbable that it could not be believed. At best, Perry’s dilatory actions in reporting what he had witnessed merely affects his credibility, a matter for the jury to decide. (People v. Spates (1978), 62 Ill. App. 3d 890, 893, 379 N.E.2d 869.) Furthermore, Perry’s account of the incident was corroborated by Venita and Verdell Richey. Defendant, however, asserts that their testimony was contradicted by the “physical evidence.”

Venita Richey testified that when defendant shot Jackson, the gun was between six inches and one foot from the victim. Verdell Richey estimated that the distance was “a foot, more or less.” Dr. Konacki, however, discovered no evidence of stippling which normally is found when a person has been shot at close range. Defendant thus concludes that the physical evidence contradicts the eyewitness accounts of Venita and Verdell Richey. We note, though, that Dr. Konacki did not explain what he meant by “close range.” Moreover, the eyewitnesses’ estimates were imprecise. The accuracy of those estimates and the weight to be given them were matters for the jury to resolve.

Defendant also argues that since he testified that Jackson was armed, the State was required to prove beyond a reasonable doubt that Jackson did not have a gun and that defendant therefore did not act in self-defense. Defendant maintains that it was incumbent upon the State to establish that no one removed Jackson’s gun prior to the arrival of the police.

Both Venita and Verdell Richey testified that Jackson did not have a gun. Whether Jackson was in fact armed was an issue for the jury to decide. A jury is not obligated to accept as true defendant’s testimony concerning self-defense. Rather, in weighing the evidence, the jury must consider the probability or improbability of the testimony, the circumstances surrounding the killing, and the testimony of other witnesses. (People v. Perez (1981), 100 Ill. App. 3d 901, 905, 427 N.E.2d 229.) In our judgment, there was sufficient evidence to support the jury’s verdict that defendant was guilty of murder.

IV

Defendant contends further that his counsel was unduly unlimited in his cross-examination of Roosevelt Jackson, the victim’s father, and Verdell Richey.

Jackson testified that when he moved his son’s car, he rolled up the car window. At defendant’s first trial, which ended in a mistrial, Roosevelt did not mention this fact. Defense counsel asserted that his testimony at the second trial had been fabricated and wanted to impeach him by proving that at the first trial he had not referred to raising the car window. The trial court ruled that the prior testimony did not form a proper basis for impeachment by omission. Defendant’s attorney, however, was allowed to ask Roosevelt whether, prior to September 30, 1981, the date on which he testified at the first trial, he had told the prosecutors that he had rolled up the window of his son’s car. Roosevelt answered affirmatively.

Matters of impeachment are within the sound discretion of the trial court. (O’Brien v. Walker (1977), 49 Ill. App. 3d 940, 951, 364 N.E.2d 533.) In People v. Brown (1977), 47 Ill. App. 3d 920, 928-29, 365 N.E.2d 514, the appellate court stated:

“The omission of a witness to state a particular fact under circumstances rendering it incumbent upon him to, or likely that he would state such fact, if true, may be shown to discredit his testimony as to such fact. The omission must be material ***. *** If the court fails to allow the impeachment by omission, reversal is not required unless manifest prejudice to the defendant results. [Citation.]”

Defendant has not established that it was incumbent upon Roosevelt to have mentioned at the first trial the fact that he rolled up the car window; that this omission was material and affected his credibility; or that defendant was manifestly prejudiced as a result. Accordingly, we find no error in the trial court’s refusal to allow defense counsel to pursue this line of questioning.

Defendant also contends that his counsel was improperly restricted in cross-examining Verdell Richey with regard to whether Verdell saw Keith Perry at the scene of the shooting. We note, however, that after a sidebar discussion, defense counsel was allowed both to impeach Verdell and to ask him questions about his former testimony concerning Perry’s presence at the shooting. Defendant’s argument is not supported by the record.

V

Finally, defendant contends that he was prevented from testifying as to his state of mind immediately prior to the shooting.

Since the intention or belief of the accused is a material fact in self-defense cases, the defendant must be allowed to testify directly to that fact. (People v. Pernell (1979), 72 Ill. App. 3d 664, 667, 391 N.E.2d 85.) When a defendant raises the issue of self-defense, a trial court commits reversible error if it fails to permit a defendant to testify directly as to his state of mind and the circumstances surrounding his acts. (People v. Kline (1980), 90 Ill. App. 3d 1008, 1014, 414 N.E.2d 141.) Defendant argues that he was not allowed to relate his state of mind. The record discloses the following testimony by defendant on this point:

DEFENSE COUNSEL: At this point how did you feel, Lament?

DEFENDANT: Scared because.

PROSECUTOR: Objection.

THE COURT: Objection sustained.

PROSECUTOR: Ask that his answer be stricken.

DEFENSE COUNSEL: When you saw the gun in his hand, what did you feel like?

PROSECUTOR: Objection.

THE COURT: Objection’s sustained.

DEFENSE COUNSEL: Now you say that you backed up?

DEFENDANT: Yes, sir.

DEFENSE COUNSEL: What did you do at that time?

DEFENDANT: I backed up, pulled out my gun and closed my eyes and fired one shot.

DEFENSE COUNSEL: Why did you take your gun out?

DEFENDANT: Because I was scared. ***” (Emphasis added.)

Despite defendant’s testimony that he was “scared,” defendant now contends that the effect of the trial court’s rulings prevented him from presenting a “clear picture” that he believed his life was in danger and that it was necessary that he resort to deadly force. We cannot agree. The record reflects that defendant testified that Jackson grabbed a gun and pointed it at him; and that he stepped back a few feet and shot Jackson because he was scared. The inference seems obvious that defendant was afraid that Jackson was going to shoot him. Thus, in our opinion, the trial court in the instant case did in fact permit defendant to testify as to his state of mind immediately prior to the shooting.

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

Affirmed.

DOWNING, P.J., and HARTMAN, J., concur.


author: JUSTICE ALLOY

text:
    FRANCIS VAN VLECK, Plaintiff-Appellant, v. RICHARD C. BARBEE, Defendant—(Ohio Casualty Insurance Company, Garnishee-Appellee).
    Third District
    No. 82—796
    Opinion filed June 21, 1983.
    Edward G. Vogt, of Kankakee, for appellant.
    Michael Gahan, of Thomas, Wallace, Feehan, Baron and Kaplan, Ltd., of Joliet, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The trial court dismissed plaintiff Francis Van Vleck’s garnishment action against Ohio Casualty Insurance Company, based upon an exclusion clause in the insurance policy which was the subject of the garnishment action. Van Vleck appeals from the dismissal of his complaint and argues that the policy’s automobile business exclusion clause (1) is contrary to public policy and (2) is not applicable to the insured in the instant case.

The following facts are pertinent to the issues on this appeal. On November 1, 1978, plaintiff Van Vleck and defendant Richard Barbee were involved in an automobile accident which resulted in personal injuries to Van Vleck. The automobile that Richard Barbee was driving at the time of the accident was owned by Mitzi Glumac. Richard Bar-bee, at the time of the accident, was an employee of Hilbert and Harvey Haase, who did business as Turbine Transmission Service Center. Barbee, as their agent, was delivering the car to Mitzi Glumac’s son, who worked as a physical education instructor at the local high school. Glumac’s son had requested that Barbee deliver the car to him, after repairs had been completed. Richard Barbee was a high school student and part-time worker for Turbine.

Suit was brought by Van Vleck against Richard Barbee and against the Haases, d/b/a Turbine. In it Van Vleck alleged that Bar-bee, while acting as an agent of the Haases, had been negligent, and as a result he suffered serious injury and property damage. Prior to commencement of trial in the action, Van Vleck settled with the Haases and Turbine. In consideration for the payment to him of $103,982.50, Van Vleck executed a covenant not to sue either the Haases or Turbine. One hundred thousand dollars of the payment was delineated as compensation for personal injuries. Settlement was made by Ohio Casualty Insurance Company, who was the insurer for the Haases and Turbine. Thereafter, a jury verdict in the amount of $188,800 was returned and judgment entered thereon against defendant Barbee. The amount of judgment was reduced by the $100,000 paid on behalf of Turbine and the Haases, leaving $88,800 due on the judgment.

The remaining $88,800 was the basis for this garnishment action against Ohio Casualty Insurance Company, under a policy of insurance issued to the father of Richard Barbee. Richard Barbee, at the time of the accident was a member of his father’s household and an insured under the policy. This policy of insurance, however, contained the following exclusion from coverage provision. Coverage was excluded for

“(h) a non-owned automobile while maintained or used by any person, while such person is employed or otherwise engaged in:
(1) the automobile business of the insured or of any other person or organization ***.”

“Automobile business” is defined in the policy as “the business or occupation of selling, repairing, servicing, storing or parking automobiles.” Ohio Casualty responded to the suit by filing its motion to dismiss, setting up in defense the exclusion provision above set forth and the fact that Richard Barbee at the time of the accident was driving a nonowned automobile while employed as an agent for Turbine, an automobile business. It is not disputed that in a related suit, a declaratory judgment action, the circuit court had concluded that Ohio Casualty’s policy of insurance for the Haases and Turbine did provide coverage for Barbee, as an employee of Turbine at the time of the accident. The court concluded that Barbee was acting as an agent for Turbine in returning the auto to Glumac’s son. This declaratory action was brought by Ohio Casualty against Van Vleck, the Barbees, and the Haases. The court also therein determined that the State Farm policy issued to Mitzi Glumac did not provide coverage to Richard Barbee. There was a final judgment in the declaratory judgment suit and no appeal was taken from the judgment. Thus, under settled principles of res judicata, specifically estoppel by verdict, there is a binding judicial determination as between these parties that Richard Bar-bee was an employee and agent of Turbine at the time of the accident involved in the instant case. Neither party contests the trial court’s application of this doctrine.

On the basis of the policy provision excluding coverage for non-owned automobiles driven by persons employed in the auto business, the circuit court granted defendant-garnishee’s motion to dismiss. Van Vleck appeals from the dismissal.

The principal argument on appeal is that the exclusion clause in the policy should be declared void, as contrary to public policy, since in this case the driver was both an agent of Turbine and a relative of the insured. It is asserted that the purpose behind the automobile business exclusion is to protect the insured from liability where a person unknown to him, i.e., employee of the auto business, is driving the car. Van Vleck contends that since the driver was known to the insured, in fact was a relative, the exclusion should not apply. We do not agree. An exclusion clause substantially similar to that involved in this case was upheld and applied in State Farm Mutual Automobile Insurance Co. v. McAnally (1977), 49 Ill. App. 3d 475, 364 N.E.2d 499. The court there found the provision to be clear and unambiguous and enforced it as such. (49 Ill. App. 3d 475, 479-80.) Plaintiff Van Vleck concedes that McAnally is precedent contrary to its position, but asks this court to reconsider that position. We decline the invitation, for we find no basis in public policy for concluding that this exclusion is void, nor does plaintiff articulate any basis. That application of the provision in this case is not consistent with an asserted purpose behind the provision, even conceding the purpose asserted, does not establish a sufficient basis for our finding that the provision violates public policy. As plaintiff also concedes, those instances where the courts have stepped in to overturn the parties’ agreement are "far more extreme” than the circumstances in the case at bar. (See Fidelity General Insurance Co. v. Nelsen Steel & Wire, Inc. (1971), 132 Ill. App. 2d 635, 270 N.E.2d 616; Blake v. Continental Casualty Co. (1934), 278 Ill. App. 232.) Where the parties’ agreement is clear and unambiguous, it is to be enforced as written, without going behind the language to speculate on the purposes underlying the provision. That Richard Barbee was both an employee of Turbine as well as a relative of the insured does not provide a sufficient basis for this court to overturn the policy provision on a public policy basis.

Plaintiff Van Vleck next argues that the exclusion should not be applied in the instant case since Richard Barbee was a relative of ■ the named insured and since Turbine, the auto business, did not customarily deliver repaired autos to their owners as part of its business. The latter fact is relied upon in plaintiff’s attempt to distinguish McAnally from the case at bar. However, as previously noted, it is the plain and unambiguous language of the policy provision that must be our guide. The provision excludes from coverage nonowned automobiles while used by any person while such person is employed or engaged in the automobile business of any other person or organization. The automobile business is broadly defined as the business or occupation of repairing, servicing, storing and parking automobiles, and Illinois courts have held that included therein is the delivery of automobiles by such businesses. (49 Ill. App. 3d 475, 479; Grahame v. Mitchell (1975), 28 Ill. App. 3d 334, 339, 329 N.E.2d 17.) The facts clearly indicate that Barbee was an employee and agent of Turbine, a company engaged in the business of repairing automobiles, at the time of the accident and that he was driving a nonowned automobile, delivering it to a customer. The policy provision, under these facts, clearly applies, as the circuit court found. The McAnally case points out that the Illinois cases are in accord that the delivery of an auto is held to be an integral part of the repair business, especially in those cases, as here, where the exclusion clause focuses upon the person engaged in the business, rather than the use of the auto. (49 Ill. App. 3d 475, 478-79.) Delivery, after repairs, by a repair company is held to be within'the definition of automobile business in such policies. Grahame v. Mitchell acknowledges that result, but distinguished the facts therein on the basis that the business there was the drive-away business, which the court found not to be within the purview of the exclusion clause. (28 Ill. App. 3d 334, 339-41.) The distinction is not applicable here, for it is undisputed that Turbine was in the auto repair business and that the delivery of the auto was made by one of its employees to a customer, as part of the business. Regardless of its customary practice, the facts indicate that the delivery was by an agent of Turbine. Thus, whether the determination is founded upon the person’s status at the time of the accident, or upon the use of the automobile at the time of the accident, the result in this case is the same. It is determined that Barbee was an agent of Turbine and was delivering the auto as part of the business. Whether or not such delivery is customarily part of the services provided by Turbine is not material herein, for this delivery was part of the business. Contrary to plaintiff’s suggestion, we do not find McAnally to be limited to situations wherein delivery is customarily a part of the business’ services.

We find the court correctly applied the policy exclusion in the case at bar and the judgment of the circuit court of Will County is affirmed.

Affirmed.

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


author: JUSTICE HEIPLE

text:
    ROGER J. HOBIN, Plaintiff-Appellant, v. SHEILA J. O’DONNELL, Adm’r with the Will Annexed of the Estate of Mary Ellen Hobin, Deceased, Defendant-Appellee.
    Third District
    No. 82—820
    Opinion filed June 24, 1983.

      Jack Cassidy, of Cassidy & Mueller, of Peoria, for appellant.
    Robert S. Calkins, of Peoria, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This appeal involves a probate claim filed by the plaintiff, Roger Hobin, pursuant to section 18 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. lUP/e, par. 18 — 1) against the estate of Mary Ellen Ho-bin, the plaintiff’s aunt. According to the terms of his aunt’s will, the plaintiff was to receive all of the decedent’s shares of stock in the Walgreen Company. However, the stock had been sold prior to the decedent’s death. The plaintiff’s claim alleged that for many years prior to her death, the decedent was a nursing home patient and incapable of managing her affairs. The claim further stated that someone other than the decedent (presumably her brother who was also the residuary legatee) sold the Walgreen stock without the decedent’s knowledge or permission and that the proceeds of the stock sale should be impressed with a constructive trust for the plaintiff’s benefit.

The personal representative of the estate filed a motion to dismiss the claim arguing that the bequest to the plaintiff had been adeemed and that a probate claim was not the proper procedure for invoking the equitable powers of the court under these circumstances. Without discussing the basis for its decision, the court granted the motion and denied the plaintiff’s motion to file an amended claim. The plaintiff appeals.

We find that the trial court erred in granting the defendant’s motion to dismiss. Contrary to the allegations in the defendant’s motion, a probate claim may be employed to impose a constructive trust on the proceeds of an estate. Also, the plaintiff’s claim raised significant questions of fact regarding the issue of ademption which should have been resolved by the trial court after conducting a hearing on the merits.

The restrictions upon the jurisdiction of a court conducting probate proceedings were removed with the adoption of the Judicial Article of 1964 (Ill. Const. 1870, art. VI (1964), sec. 9). Also, the Probate Act of 1975 provides that a claim against a decedent’s estate may be based on contract, tort or otherwise. (Ill. Rev. Stat. 1981, ch. IIOV2, par. 18 — 1.) The Act defines a claim as “any cause of action.” (Ill. Rev. Stat. 1981, ch. IVP-k, par. 1 — 2.05.) Based upon the foregoing authority, it has been held that a claim founded upon an alleged constructive trust is within the jurisdiction of a court conducting a probate proceeding. (In re Estate of Engel (1980), 87 Ill. App. 3d 273, 277; Eiseman v. Lerner (1978), 64 Ill. App. 3d 185, 187; In re Estate of Tarr (1976), 37 Ill. App. 3d 915.) Accordingly, the trial court had jurisdiction over the plaintiff’s claim seeking imposition of a constructive trust.

By granting the defendant’s motion to dismiss, the court was also in effect finding that the plaintiff had no claim because the bequest was adeemed as a matter of law. We disagree.

The Illinois Supreme Court set forth the generally accepted definition of the doctrine of ademption in Brady v. Paine (1945), 391 Ill. 596, 600-01:

“Ademption of a specific legacy or devise is the extinction, alienation, withdrawal or satisfaction of the legacy or devise by some act of the testator by which an intention to revoke is indicated; the doing of some act with regard to the subject matter of the devise which interferes with the operation of the will. It signifies an alteration in the subject matter of the legacy or devise.” (Emphasis added.)

As the plain language of Brady indicates, ademption requires some act of the testator indicative of an intention to revoke.

The plaintiff's claim alleged that someone other than the decedent had sold the stock and that the decedent was mentally impaired. Thus the claim called into question whether there was any act by the testator and whether the testator was capable of forming an intent to revoke the plaintiff’s bequest. Although there may have been some technical deficiencies in the allegations of the plaintiff’s claim, such claims under the Probate Act of 1975 need not set out a cause of action as would be necessary for a formal pleading. In re Estate of Engel (1980), 87 Ill. App. 3d 273, 277; In re Estate of Piper (1978), 59 Ill. App. 3d 325.

The trial court should have denied the motion to dismiss and conducted a hearing as to whether the decedent disposed of the stock with intent to revoke plaintiff’s bequest. If someone other than the decedent sold the stock without permission or if the decedent was incapable of forming the requisite intent, then there was no ademption. Whether the correct remedy in such a case is a constructive trust or other form of relief is a question to be answered by the trial court after conducting a hearing on the plaintiff’s claim.

For the reasons set forth herein, the judgment order of the circuit court of Peoria County is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

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