author: PRESIDING JUSTICE SULLIVAN

text:
    JEROME KLUBECK, Indiv. and d/b/a J. Klubeck Investments, Plaintiff-Appellant, v. DIVISION MEDICAL X-RAY, INC. et al., Defendants-Appellees.
    First District (5th Division)
    No. 81 — 1289
    Opinion filed August 13, 1982.

      Siegan & Weisman, Ltd., of Chicago (Kenneth R. Siegan and Keith M. Kanter, of counsel), for appellant.
    Paula M. Uscian, of Collins & Amos, of Chicago, for appellees.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiff appeals from a judgment in a bench trial finding that the agreement upon which he based his breach of contract action (the Agreement) violated section 11 — 3 of the Illinois Public Aid Code (Ill. Rev. Stat. 1979, ch. 23, par. 11 — 3) (the Code) and was therefore void. On appeal, he contends that there was no such violation because the agreement (1) created a security interest, (2) contained an assignment, and (3) had portions which were severable and enforceable.

Only count I of the amended complaint is involved in this appeal, and in it plaintiff alleged in substance that defendants agreed to jointly factor their financial paper and accounts receivable to plaintiff; that under the terms of the Agreement, plaintiff was to pay defendants 79% of the face value of such receivables which were derived from welfare reimbursements for medical services rendered; that such receivables were thereafter to be assigned to plaintiff by defendants; that defendant Greenview Medical Laboratory, Inc. (Greenview), executed a written contract as evidence of the Agreement, but defendant Division Medical X-Ray, Incorporated (Division), failed to deliver to plaintiff the contract which it allegedly executed; that defendants represented to plaintiff that they were and would remain authorized to receive welfare payments from the State of Illinois during the course of their dealings with plaintiff; that in consideration of the parties’ mutual promises, plaintiff advanced to defendants $129,353.70 based on the welfare receivables due defendants but was unable to obtain payment on the receivables from the State; that defendants were obligated under the contract but refused to pay to plaintiff the difference between the amount loaned to defendants and the amount paid plaintiff by the State; and that as a result of defendants’ alleged breach of contract, plaintiff incurred damages amounting to $129,353.70, which represented the total receivables factored to plaintiff.

In their separate answers to the complaint, both defendants in substance denied entering into the Agreement with plaintiff and further alleged that any such Agreement would be illegal and void under section 11 — 3 of the Code. Defendant Greenview further alleged that while plaintiff advanced it such funds, he recovered the full amount from the State “pursuant to void assignment of benefits,” and that it had no duty under the Agreement to pay plaintiff. In its answer, Division generally denied all other allegations of count I.

As presented in the record, the Agreement names “Greenview Clinical Lab. & X Ray” as the “debtor” and plaintiff as the “secured party.” It is undisputed, however, that the party referred to in the Agreement is defendant Greenview and that defendant Division, although not mentioned therein, entered into the same Agreement which purported to grant plaintiff “a security interest in certain medical welfare and/or public assistance accounts receivable now due him or which may hereafter become due to him from account debtors and all proceeds thereof.” Among the designated account debtors were the Illinois Department of Public Aid, the Illinois Department of Welfare, county departments of public aid, and various insurance carriers.

Paragraph 1 of the Agreement provided that plaintiff would lend Greenview a sum equal to 89% of amounts which in plaintiff’s opinion represented disbursements made by the account debtors on each “Statement of Services Rendered” submitted to such account debtors for payment. Paragraph 2 required plaintiff, in addition to making loans, to provide “all necessary bookkeeping, billing and administrative services” in the processing of Greenview’s accounts receivable. In return therefor, Greenview agreed to pay plaintiff 100% “of the amount upon which the loan was based within 120 days after each loan was made” and thereafter to pay interest on any unpaid balance thereof.

Paragraph 3 granted plaintiff the power of attorney to establish a mailing address in Greenview’s name “for the receipt of payments and other correspondence from account debtors” and further granted plaintiff “the authority to receive, sign, endorse, execute, and deposit any checks or drafts payable to [Greenview] and to apply said payments against amounts due” plaintiff from Greenview. The power of attorney was coupled with an interest and was irrevocable while any money was owed by Greenview to plaintiff. Paragraph 4 provided in part that all correspondence in the form of payments and accompanying vouchers received by Greenview which pertained to statements and accounts in which plaintiff had a “security interest” were to be delivered to plaintiff within 72 hours of receipt by Greenview.

Paragraph 5 provided that if the account debtors paid less than 100% of the amount upon which the loan was based or refused to honor statements of services rendered within 120 days of the date of submission to them by plaintiff, then the difference between the amount paid by the account debtor and 100% of the amount upon which the loan was based was to be paid by Greenview. Paragraph 9 authorized plaintiff to deal directly with account debtors on behalf of Greenview by notifying them to make payments directly to plaintiff on statements and accounts in which plaintiff had a “security interest.” It further authorized plaintiff to collect and control such proceeds, to settle and compromise disputed claims, and to collect such accounts. Finally, paragraph 11 provided that plaintiff was to retain 10% of all outstanding receivables to be collected under the Agreement in order to cover any amounts which account debtors refused or failed to pay.

In its judgment order, the trial court found that the Agreement upon which count I of the amended complaint was predicated was “a subterfuge to avoid the prohibition found in” section 11 — 3 of the Code and thus was void. Accordingly, judgment was entered for defendants, and this appeal followed.

Opinion

Section 11 — 3 of the Code provides that “[a]ll financial aid given under Articles III, IV, V, VI and VII shall be absolutely inalienable by assignment, sale, attachment, garnishment, or otherwise.” (Ill. Rev. Stat. 1979, ch. 23, par. 11 — 3.) “Financial aid” is defined, in relevant part, in section 2 — 6 of the Code as “a money or vendor payment to or in behalf of a recipient for basic maintenance support or medical assistance ***.” (Ill. Rev. Stat. 1979, ch. 23, par. 2 — 6.) “Vendor payment” is defined in section 2 — 5 as “a payment made directly to the person, firm, corporation, association, agency, institution or other legal entity supplying goods or services to a recipient.” (Ill. Rev. Stat. 1979, ch. 23, par. 2 — 5.) The legislative purpose underlying those cited provisions of the Code was stated in First National Bank v. Coleman(1979), 68 Ill. App. 3d 256, 258, 385 N.E.2d 879, 881:

“[T]he class of individuals which the legislature sought to protect by this legislation are the public aid recipients and not the vendors of medical services. Although the language of sections 11 — 3, 2 — 5 and 2 — 6 is phrased in absolute terms that all vendor payments are exempt from garnishment, it must be reasonably construed so that absurd and unjust consequences will be avoided.”

We think it unnecessary to determine whether the Agreement creates a security interest or an assignment, since it is apparent from the record that the enforcement of the Agreement, irrespective of its formalities, would produce absurd or unfair results. Although the Code seeks to protect public aid recipients rather than vendors of medical services, it is apparent that the Agreement would involve State agencies too heavily in private contractual arrangements and, by diverting such agencies from the primary tasks of alleviating and preventing poverty (Ill. Rev. Stat. 1979, ch. 23, par. 1 — 1) and providing “essential medical care and rehabilitative services” (Ill. Rev. Stat. 1979, ch. 23, par. 5 — 1), their energies would be needlessly dissipated. Such, in our view, was not the legislative intent behind section 11 — 3.

In Coleman, which plaintiff cites in support of his position, a physician’s judgment creditor sought to garnish funds which were due to be paid from the Illinois Department of Public Aid (the Department) to the physician for medical services rendered to public aid recipients. The issue before the court was thus whether such monies payable by the Department were subject to garnishment by the physician’s judgment creditor despite the prohibition on inalienability of section 11 — 3 of the Code. Holding that such reimbursement funds were not exempt from garnishment, the court rejected the contentions that permitting such garnishment would discourage vendors from furnishing essential medical services to indigents and that, as a matter of policy, allowance of such garnishments would place an undue burden upon the State.

In our view, Coleman is distinguishable from the present case, since the judgment against the physician there was not predicated upon his statutory right to receive vendor payments. Here, by contrast, plaintiff’s asserted right to defendants’ vendor payments forms the basis of his claim for judgment against defendants. Furthermore, the contract and the record before us indicate an attempt by the parties to alienate defendants’ vendor payments in favor of plaintiff. As the testimony of plaintiff reveals, the Agreement was purposely drafted in order to avoid the reach of section 11 — 3. A contract which necessarily contemplates a violation of law or seriously injures the public welfare is void and unenforceable (Shanahan v. Schindler (1978), 63 Ill. App. 3d 82, 379 N.E.2d 1307), and a statute need not expressly declare a contract void and unenforceable to render it available to a defendant as grounds for the defense of illegality (American Buyers Club of Mt. Vernon, Illinois, Inc. v. Grayling (1977), 53 Ill. App. 3d 611, 368 N.E.2d 1057). It is therefore immaterial whether the Agreement contemplated a security interest or an assignment. Furthermore, while section 11 — 3 is primarily a shield for the protection of certain disadvantaged persons — such as welfare recipients who, without such protection, might be oppressed by their creditors (see Cochennour v. Lofton (1978), 62 Ill. App. 3d 955, 379 N.E.2d 922; Kaufman v. Hicks (1974), 17 Ill. App. 3d 274, 307 N.E.2d 615 (abstract)), the enforcement of agreements such as the one in question would have adverse indirect impact. If, for example, a physician who had entered into such an arrangement could not be assured of direct payment for services rendered or if a. medical laboratory could not expect direct reimbursement for performing its procedures, the incentive to provide health care to the needy might be seriously reduced and thereby defeat the ends of the Code. For the above reasons, we believe the legislature designed the Code to proscribe the alienability of vendor payments like those in question.

Plaintiff further contends that even if the Code invalidates portions of the Agreement, the remainder is severable and enforceable. We disagree.

The theory upon which a case is tried in the trial court cannot be changed on review, and an issue not presented to or considered by the trial court cannot be raised for the first time on review. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417; Women’s Athletic Club v. Hulman (1964), 31 Ill. 2d 449, 202 N.E.2d 528.) Moreover, an appellate court should not consider different theories or new questions if proof might have been offered to refute or overcome them had they been presented at trial. (Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.) In the present case, it is evident from the record that plaintiff’s entire theory at trial was that the Agreement as a single entity was valid and enforceable under th Code. Plaintiff did not assert a contract severance theory. To permit him to do so at this stage would greatly prejudice the opposing parties. See Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 424 N.E.2d 1279.

Assuming no waiver, plaintiff’s contention is, in any event, without merit. In general, the intention of the parties is determinative on the question of contract severability. (Kaplan v. Keith (1978), 60 Ill. Ap. 3d 804, 377 N.E.2d 279.) A contract is not severable, however, if the parties assented to all the promises as a single whole and if striking any promise or set of promises would destroy the basis of the bargain. (Bonner v. Westbound Records, Inc. (1979), 76 Ill. Ap. 3d 736, 394 N.E.2d 1303.) Stated otherwise, where a contract by its terms, nature and purpose contemplates and intends that each of its parts and the consideration are to be performed as a whole, it is an entire contract. State Security Insurance Co. v. Linton (1978), 67 Ill. App. 3d 480, 384 N.E.2d 718.

In paragraphs 2 and 5 of the Agreement in question, defendants agreed to repay the loans by tendering to plaintiff the full amount upon which the loans were based. Thus, those provisions suggest a simple loan transaction and defendants’ obligation to repay to plaintiff the full amount due under the Agreement. However, the granting to plaintiff of certain rights in anticipated payments from the State was not, as plaintiff maintains, a separate and distinct portion of the Agreement. Rather, the Agreement was founded upon the purported right of plaintiff to seek reimbursement from defendants’ vendor payments. It is significant in this regard that plaintiff testified he had no document in his possession which showed that he had made a demand for repayment of any loan that had become 120 days old. Moreover, plaintiff kept only a running total of all money out, against which he subtracted all money in. This method of bookkeeping failed to show what balances remained due 120 days after.the alleged loans were made. Thus, despite plaintiff’s contention as to the severability of paragraphs 2 and 5, plaintiff apparently did not record the ad-vanees to defendants as individual loans, nor did he discharge repayments under a 120-day schedule. To strike the promise of vendor payments to plaintiff while allowing the remaining portions of the Agreement to survive would, in our view, destroy the basis of the instant parties’ bargain. In other words, plaintiff's asserted right to receive vendor payments and defendants’ ultimate obligation to repay the loan were intended to be performed as a whole. We think it clear, therefore, that plaintiff would not have entered into the Agreement if the right to vendor payments had not been made an integral and inseparable part of the bargain.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McGLOON

license: Public Domain

text:
      In re TARUS MARK STOKES, a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. TARUS MARK STOKES, Respondent-Appellant.)
    First District (1st Division)
    No. 80 — 2178
    Opinion filed August 16, 1982.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Kim R. Kardas, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Respondent was charged by separate juvenile petitions with two counts of burglary. After a jury trial, respondent was acquitted of one charge and found delinquent on the second. He was adjudicated a ward of the court and committed to the Illinois Department of Correetions under the habitual juvenile offender act (Ill. Rev. Stat. 1981, ch. 37, par. 705-12).

On appeal, respondent contends that (1) the order of commitment is void because the State failed to prove notice to respondent’s father; (2) the two offenses were improperly joined for trial; (3) there was no proof of entry into a building and therefore he was not proved guilty of burglary beyond a reasonable doubt; and (4) sentencing under the habitual juvenile offender act was improper where the State failed to prove prior adjudications of wardship.

We affirm.

Respondent was charged with the burglaries of the Fleming residence at 10948 S. Wallace and the Snow residence at 11043 S. Peoria. The trial court allowed both offenses to be joined for trial before a jury. The evidence produced is as follows.

Mrs. Sandra Fleming testified that she left for work at 8 a.m. on March 4, 1980. In the early afternoon, she received a call from her neighbor and returned home. When she entered her home, she found the kitchen cabinets open and a basement window forced off the hinges. Later that day, Mrs. Fleming went to the police station where Officer Murphy returned a radio which had been removed from Fleming’s home.

Ethel Page, a neighbor of the Flemings, testified that at 11:45 on the morning in question, she saw respondent crawling from a basement window in the Fleming residence. When Mrs. Page tapped on her window, respondent and another youth fled. Neither boy was carrying any property.

Officer Catherine Murphy testified that she received a radio message at 12:30 on the day in question and proceeded to the Snow residence. She spoke to a woman and went to the rear of the building where she saw respondent running up a stairwell leading from the basement. The basement door was open. Respondent ran past Officer Murphy toward the alley. At the bottom of the stairwell, Murphy found a stereo speaker and a large green garbage bag containing several items. Murphy also observed that the side molding adjacent to the basement door lock had been removed.

Murphy radioed a description of the offender to responding units. Five minutes later, she saw respondent in the custody of Officers Ci-raulo and Skerrett. Murphy and Ciraulo entered the basement and saw a boy running up the stairs. This boy and another were arrested in the home. Murphy further testified that property in the bag was returned to Mrs. Snow and Mrs. Fleming.

Officer Skerrett testified that at 12:30 p.m. on March 4, 1980, he responded to a burglary in progress call. Officers Ciraulo and Solana were also in the squad. Skerrett drove to an alley behind 11043 S. Peoria street. He and Ciraulo walked down the alley and Solana went to assist Officer Murphy. Skerrett saw the respondent cross the street and pursued him. He found respondent crouching in a gangway near a garage. Respondent was wearing a blue pea coat and a dark cap. Skerrett took respondent to the Snow residence where Officer Murphy identified respondent. Anthony Maxie and Christopher Marsh were also taken into custody. Skerrett brought respondent and Maxie to the Fleming residence where Mrs. Page identified them as the persons who had entered the Fleming home.

The parties stipulated that if Anthony Maxie were called by defendant to testify, he would state that he did not see respondent on the day in question until they were both in custody and that he had no knowledge of respondent’s involvement in the burglaries. Respondent testified that he saw Christopher Marsh at the police station. Marsh was wearing a blue coat and green hat.

The jury returned a verdict of delinquent on the charge of burglary of the Snow residence. Respondent was found not delinquent on the charge of burglary of the Fleming residence. Respondent was sentenced under the habitual juvenile offender act (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 12) and committed to the Department of Corrections until his 21st birthday.

First, respondent contends that the order of commitment is void because the State failed to notify respondent’s father. The petition for adjudication of wardship stated that respondent’s father’s address was unknown. Respondent therefore maintains that the State was required to serve his father by publication and its failure to do so deprived the court of jurisdiction.

Initially, we note that respondent’s mother was the custodial parent. She had actual notice of the proceedings, was present during the hearings on the charges, and testified on behalf of respondent. On the other hand, respondent’s father apparently had little contact with his son. Under these facts, respondent’s father should not be treated as an indispensable party and his absence does not deprive the minor of substantial protection or assistance. (In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501.) In fact, service by publication on respondent’s father was unnecessary where the custodial parent was present and no judgment or order was entered against the father. (People v. Rollins (1980), 86 Ill. App. 3d 245, 407 N.E.2d 1143.) We therefore find that the order of commitment was not void.

Second, defendant maintains that the two offenses were improperly joined for trial where the offenses were distinct and unrelated.

Separately charged offenses may be joined for a jury trial where it appears that the offenses were part of the same comprehensive transaction or scheme. (People v. Henderson (1976), 36 Ill. App. 3d 355, 344 N.E.2d 239.) Whether offenses should be joined for a single prosecution is a matter for the discretion of the trial court. People v. Higgins (1979), 71 Ill. App. 3d 912, 390 N.E.2d 340; People v. Olson (1978), 59 Ill. App. 3d 643, 375 N.E.2d 533.

In this case, the crimes occurred approximately one-half hour apart. The homes in which the crimes occurred were only a few blocks apart. The bag abandoned by respondent in the stairwell of the Snow residence contained the proceeds of both burglaries. Considering all these facts, the trial court could have reasonably concluded that the offenses were part of a comprehensive scheme. We therefore find no abuse of discretion.

Third, respondent maintains that his presence in the stairwell did not constitute an entry of a building or part thereof and therefore he was not proved guilty of burglary beyond a reasonable doubt. Respondent, however, raises no issues regarding authority to enter or proof of intent.

The Criminal Code of 1961 defines burglary as follows:

“A person commits burglary when without authority he knowingly enters *** a building *** or any part thereof, with intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a).)

The element of the offense may be proved by circumstantial evidence and inferences drawn therefrom. (People v. Earl (1980), 89 Ill. App. 3d 980, 412 N.E.2d 645; People v. Cokley (1977), 45 Ill. App. 3d 888, 360 N.E.2d 545.) The circumstantial evidence must be sufficient to convince the trier of fact of defendant’s guilt beyond a reasonable doubt and to a moral certainty. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6; People v. Morton (1981), 95 Ill. App. 3d 280, 419 N.E.2d 1276.) Flight from the scene of a crime may also be considered with other evidence of guilt. Cokley, citing People v. Watson (1975), 28 Ill. App. 3d 786, 329 N.E.2d 512.

In Cokley, defendants were seen in the yard of the liquor store building and fled when police approached. Defendants were not seen inside the building. Several empty boxes were scattered outside. The back door of the store had been broken and inventory was missing. The appellate court found that the circumstantial evidence was sufficient to prove defendants’ presence at the scene of the crime.

Similarly, we find that the requisite element of entry was proved in this case. The Snow resident had been forcibly entered. Defendant fled up the basement steps when Officer Murphy arrived. A bag containing the proceeds of the burglary was found in the stairwell from which defendant fled. We find that sufficient evidence from which the jury could conclude that respondent entered the dwelling was presented. Because of our decision, we need not address the specific point raised by respondent.

Fourth, respondent contends the trial court erred in sentencing him under the habitual juvenile offender act (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 12). Respondent admits that he was twice found delinquent on charges which would have been felonies had he been tried as an adult. However, he argues that sentencing under the act requires proof of not only prior findings of delinquency but also of prior adjudication of wardship on the findings. He concludes that the State’s failure to prove wardship precludes sentencing under the act.

Delinquency and wardship are distinct concepts. A delinquent minor is defined as “any minor who prior to his 17th birthday has violated *** any federal or state law or municipal ordinance ***.”' (Ill Rev. Stat. 1981, ch. 37, par. 702 — 2.) An adjudication of wardship follows only if the court finds such an adjudication to be in the best interest of the minor and the public. (In re J.R. (1980), 82 Ill. App. 3d 714, 403 N.E.2d 114.) Thus, wardship does not automatically arise from a finding of delinquency. In re Beasley (1977), 66 Ill. 2d 385, 362 N.E.2d 1024, cert. denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734; People v. T. H. (1979), 70 Ill. App. 3d 522, 388 N.E..2d 862.

The habitual juvenile offender act provides in part:

“Any minor having been twice adjudicated a delinquent minor *** and who is thereafter adjudicated a delinquent minor for a third time shall be adjudged an Habitual Juvenile Offender ***.” (Ill. Rev. Stat. 1981, ch. 37, par. 705-12.)

This act requires only prior adjudication of delinquency. There is no express requirement that the minor must have been adjudged a ward of the court in order for the act to apply. We therefore disagree with respondent’s assertion that proof of wardship was required for sentencing under the act and find no error by the trial court.

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

Judgment affirmed.

CAMPBELL, R J., and O’CONNOR, J., concur.


author: JUSTICE McNAMARA

text:
    ROBERT COX, Plaintiff, v. LUMBERMENS MUTUAL CASUALTY COMPANY, INC., Defendant and Third-Party Plaintiff-Appellant.—(W. E. O’NEIL CONSTRUCTION COMPANY, INC., Third-Party Defendant-Appellee.)—AMERICO PASQUALE, Plaintiff, v. LUMBERMENS MUTUAL CASUALTY COMPANY, INC., Defendant and Third-Party Plaintiff-Appellant.-(W. E. O’NEIL CONSTRUCTION COMPANY, INC., Third-Party Defendant-Appellee.)—MITCHELL FALCO, Plaintiff, v. LUMBERMENS MUTUAL CASUALTY COMPANY, INC., Defendant and Third-Party Plaintiff-Appellant.—(W. E. O’NEIL CONSTRUCTION COMPANY, INC., Third-Party Defendant-Appellee.)
    First District (3rd Division)
    Nos. 81 — 1734, 81 — 1735, 81 — 1736 cons.
    Opinion filed August 11, 1982.

      Brydges, Riseborough, Morris, Franke and Miller, of Waukegan (Louis W. Brydges and John H. Krackenberger, of counsel), for appellant.
    Crooks & Gilligan, Ltd., of Chicago (John W. Gilligan, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Robert Cox, Americo Pasquale, and Mitchell Falco, brought separate actions against defendant Lumbermens Mutual Casualty Company for personal injuries sustained on May 18, 1978, when they fell from a scaffold while working at a construction site. One count of each complaint alleged that Lumbermens was in charge of the work in progress at the site and that it wilfully violated the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60-68), by failing to erect safe, suitable and proper scaffolds or other temporary support for plaintiffs’ protection. The other count charged negligence. Lumbermens filed a third-party complaint in three counts against plaintiffs’ employer W.E. O’Neil Construction Company, seeking in count II contractual indemnification for any liability it might have to plaintiffs as a result of the principal action. The trial court granted O’Neil’s motions to dismiss count II in each third-party complaint, and Lumbermens appeals. The three appeals have been consolidated.

Prior to May 18, 1978, Lumbermens and O’Neil contracted that O’Neil would act as contractor and construct the building project in question. Lumbermens alleged in count II of its third-party complaint that the alleged injury to plaintiffs was caused, not by any active negligence on its part, but by the negligence or omissions of O’Neil. The portion of the contract between Lumbermens and O’Neil on which Lumbermens bases it claim for contractual indemnity provides in pertinent part:

“To the extent permitted by applicable law, contractor shall assume all liability for, and shall protect, defend, indemnify and save harmless the Owner and the Architect and their Agents and Employees from all damages and liability including liability under the provisions of the Illinois Scaffold Act, Chapter 48, Section 60 — 69, Illinois Revised Statutes, 1965, for injury to any person or persons (including sickness, disease or death) and injury to, loss of use of, or destruction of tangible property (other than the work itself) and all property adjacent or neighboring the Owner’s premises arising out of operations under their Contracts or those of their Sub contractors or anyone directly or indirectly employed by either of them during the term of their Contract or any extension thereof. In any and all claims against the Owner or the Architect (or any of their Agents or Employees) by any employee of the Contractor, any Sub contractor, anyone directly or indirectly employed by any of them or anyone [sic] whose acts any of them may be liable, the indemnification obligation herein shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any Sub contractor under Workmen’s Compensation Acts, disability benefit acts or other employee benefit acts. The obligations of the Contractor under this paragraph shall not extend to the liability of the Architect, his Agents or Employees arising out of the preparation of or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications, or the giving of or the failure to give directions or instructions by the Architect, his Agents or Employees providing such giving or failure to give is the primary cause of the injury or damage.”

The trial court dismissed count II in each third-party complaint, finding that the contractual indemnity sought therein was condemned under the provisions of section 1 of the indemnity statute. (Ill. Rev. Stat. 1977, ch. 29, par. 61.) Section 1 voids as against public policy any contract or agreement to indemnify another person from that person’s own negligence. On the authority of Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881, the trial court recognized that a violation of the Structural Work Act was in essence a negligent act and therefore any contract providing for the indemnification of such violation was void pursuant to section 1.

Relying on Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp. (1946), 395 Ill. 429, 70 N.E.2d 604, Lumbermens first contends that the contract in question, strictly construed, does not provide that Lumbermens be indemnified for its own negligence. In Westinghouse the court set out the general rule, prior to the enactment of section 1, that an indemnity contract should not be construed as indemnifying one against liability for his own negligence absent clear and explicit contractual language to that effect. Recognizing the extraordinary nature of the liability assumed by an indemnitor who agrees to such a provision, the court adopted this rule of strict construction against the indemnitee so as to limit the enforcement of such contractual provisions to situations in which the indemnitor was fully aware of the extent of his liability. Obviously, with the enactment of section 1, which prohibited contracts for the indemnification of a party’s own negligence, the reason for the Westinghouse rule disappeared. It still applies, however, where an indemnity contract was executed prior to the date section 1 became effective. (Zadak v. Cannon (1974), 59 Ill. 2d 118, 319 N.E.2d 469; Quilico v. Union Oil Co. (1978), 58 Ill. App. 3d 87, 374 N.E.2d 219; Cotter v. Consolidated Construction Co. (1977), 50 Ill. App. 3d 332, 365 N.E.2d 636.) In the present case, the contract was executed after the date section 1 became effective, and the Westinghouse rule is ineffective.

Lumbermens next contends that a party can violate the Structural Work Act by conduct that does not amount to negligence. It urges therefore that a contract requiring indemnification for violations of the Act should not be considered a per se violation of section 1.

Section 9 of the Structural Work Act provides for a cause of action only when there is a wilful violation or a wilful failure to comply with the statute. (Ill. Rev. Stat. 1977, ch. 48, par. 69.) Illinois courts have consistently held, however, that a wilful violation for purposes of section 9 requires neither wilful misconduct nor a reckless disregard of the statute’s provisions. Rather, the term “wilful” has been interpreted to mean “knowing.” (McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 338 N.E.2d 868; Juliano v. Oravec (1973), 53 Ill. 2d 566, 293 N.E.2d 897.) A wilful violation is committed when a party in charge knows or when, in the exercise of reasonable care, he should have discovered the dangerous condition. (Juliano v. Oravec.) In Davis v. Commonwealth Edison Co., the court recognized this judicial interpretation of “wilful” as typical negligence language and reasoned that the legislature, at the time it enacted section 1 of the indemnity statute, must have been aware that Structural Work Act violations had been so characterized. It therefore found that the legislature must have intended to include contracts for the indemnification of such violations within the prohibitions of section 1. The court also noted that a contract to indemnify against wilful misconduct, as it is normally defined outside section 1, is contrary to public policy and unenforceable even absent a statute to that effect.

We reject Lumbermens’ argument, however, that a cause of action can arise under the Structural Work Act from conduct which is less than negligent. Fault of some kind is required although it may range from passive negligence to wilful misconduct. The passive nature of a violation has been found relevant in determining whether or not the violator can seek indemnification from one who was more actively negligent. (Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 373 N.E.2d 1354; Rovekamp v. Central Construction Co. (1964), 45 Ill. App. 2d 441, 195 N.E.2d 756.) It does not, however, operate to exempt the violator from the prohibitions of section 1. Allowing persons in charge of construction work to avoid liability by contract for their passive violations of the Structural Work Act would reduce any motivation they might have to lessen the extent of the danger. It would thereby prejudice the worker’s safety, contrary to the purpose of section 1. Davis v. Commonwealth Edison Co.

The present contract specifically provides that O’Neil indemnify Lumbermens from all liability under the Structural Work Act. Such liability could only stem from either wilful acts or negligent acts. Since contracts to indemnify both types of acts are void as against public policy, the trial court correctly determined that the provision in question was void. Davis v. Commonwealth Edison Co.; Ill. Rev. Stat. 1977, ch. 29, par. 61.

Lumbermens relies on Cotter v. Consolidated Construction Co. (1977), 50 Ill. App. 3d 332, 365 N.E.2d 636, and Schuch v. University of Chicago (1980), 87 Ill. App. 3d 856, 410 N.E.2d 258, for the proposition that a contract requiring indemnity for liability under the Structural Work Act does not necessarily violate section 1. The contract in Cotter, however, was executed prior to the enactment of section 1, and the court never addressed the question at issue in the present case. And the holding in Schuch is contrary to Davis v. Commonwealth Edison Co. We, of course, follow Davis.

We must note Lumbermens’ argument that the saving language at the beginning of the contractual provision in question requires this court to presume that the parties intended to limit indemnification for Structural Work Act violations to those for which contractual indemnification is “permitted by applicable law.” Since we find, however, that there are no Structural Work Act violations for which contractual indemnification is permitted, the saving clause would likewise operate to void the provision providing for such indemnification. Voidance of this provision, whether due to the saving clause or to the prohibitions of section 1, requires dismissal of count II of the third party complaint.

For the reasons stated, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

WHITE, P. J., and R1ZZI, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMY SIMS, Defendant-Appellant.
    First District (1st Division)
    No. 81 — 99
    Opinion filed August 16, 1982.

      James J. Doherty, Public Defender, of Chicago (Frank P. Madea and Ira Chur gin, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester Joseph, and John A. Ward, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After a jury trial, defendant Jimmy Sims was found guilty of official misconduct. He was sentenced to 30 months’ probation, the first 6 months to be served in the Cook County work release program. On appeal, defendant raises issues regarding the sufficiency of the indictment and the propriety of a jury instruction.

We affirm.

Defendant was charged by indictment with violating sections 33— 3(b) and 33 — (c) of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, pars. 33 — 3(b) and 33 — 3(c).) Prior to trial, defendant moved to dismiss the indictment. The trial court granted the motion only as to count I based on section 33 — 3(b).

During trial, Hattie Harris testified that Jerry Lewis had been her foster child until July 1977. Defendant, a social worker employed by the Department of Children and Family Services (the Department) had been Lewis’ caseworker. In August, September and October of 1977, Harris received room and board payments from the Department even though Lewis no longer resided with her. After receiving each payment, Harris phoned defendant who told her to cash the check, keep some of the money herself, and pay him the remainder. Defendant gave Harris a receipt for each transaction. He told Harris he would give the remainder to Lewis’ new foster mother Carolyn Coch-rane.

Harris further testified she spoke with Cochrane and thereafter saw Wilmette Gray, defendant’s supervisor in the Department. Harris showed Gray the receipts given her by defendant. In December 1977, Harris received a notice from the Department stating that she had been overpaid. On December 21, 1977, defendant came to Harris’ home to collect the overpayment. She gave defendant $100. Harris also testified that on all occasions, she paid defendant in his capacity as a Department employee.

Wilmette Gray testified that she spoke to Carolyn Cochrane in September, October and November of 1977. As a result, she called Harris to her office on December 1, 1977. Harris brought the receipts given her by defendant. The following day, Gray met with defendant. She showed him copies of the receipts. Defendant admitted taking the money from Harris and using it to pay for auto repairs. Defendant also admitted that he gave no money to Cochrane. Gray informed Glenne Gervais, her supervisor, of the conversation with defendant. In January 1978, Gray sent defendant a letter advising him that his conduct violated the accepted standard of conduct for Department employees.

Gray further testified that it was a social worker’s responsibility to notify the Department of changes in a ward’s residence, to stop payments when a ward moves, and to initiate payments to the new foster parents. If a foster parent received money which was not due, the social worker was to advise that the check be returned. If checks or cash were returned to the caseworker, the caseworker was to return it to the Department. No caseworker was authorized to use money for personal expenses.

Glenne Gervais testified that at the time of the incident, she was a program coordinator for the Department. On February 15, defendant, in the presence of Gervais, signed a document which stated he would repay the funds he used without authorization or face civil charges.

Defendant first contends that count II of the indictment was insufficient because it failed to specify the conduct which violated section 33 — 3(c) of the Criminal Code of 1961 and failed to define the scope of his duties. He therefore argues the trial court erred in denying his motion to dismiss that count.

The section of the Criminal Code of 1961 relevant to this case provides that a charge must set forth the nature and elements of the offense. (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 3(a)(3).) Case law requires that an indictment be specific enough to inform the accused of the offense with which he is charged, to enable the accused to prepare a defense, and to permit him to plead the judgment as a bar to future proceedings for the offense. People v. Brownell (1980), 79 Ill. 2d 508, 404 N.E.2d 181; People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244; People v. Miller (1979), 75 Ill. App. 3d 775, 394 N.E.2d 783.

The indictment by which defendant was charged alleged that:

“Jimmy Sims committed the offense of official misconduct in that he, being a public employee, to wit: an employee of the Illinois Department of Children and Family Services, a Division of the State of Illinois, while acting in his official capacity with intent to obtain a personal advantage for himself, he performed an act in excess of his lawful authority, to wit: the said Jimmy Sims received approximately $383.00 United States currency, as an agent of the State of Illinois, from Hattie Harris, a foster mother, for and on behalf of the Illinois Department of Children and Family Services, and did not turn said monies over to the Illinois Department of Children and Family Services and spent said monies for his own personal use and benefit, in violation of Chapter 38, section 33 — 3(c), of the Illinois Revised Statutes 1975 ***.”

The elements of the offense of official misconduct charged in this case are (1) an act performed by a public officer or employee in his official capacity which is in excess of his lawful authority (2) an intent to obtain a personal advantage for himself or another. (Ill. Rev. Stat. 1979, ch. 38, par. 33 — 3(c); People v. Barlow (1974), 58 Ill. 2d 41, 317 N.E.2d 49.) The indictment in this case alleged the elements of the offense and the specific acts which violated the law. Beyond a doubt, the indictment was sufficient to inform defendant of the charge, to allow for preparation of a defense, and to permit the use of a judgment as a bar to other prosecutions for the same charge. The fact that defendant’s scope of lawful authority was not defined does not render the indictment insufficient. A public employee’s lawful authority is not so poorly defined or understood that the employee is unable to determine the propriety of his acts. (People v. Kleffman (1980), 90 Ill. App. 3d 1, 412 N.E.2d 1057.) For these reasons, we find that the trial court did not err in denying the motion to dismiss count II of the indictment.

Second, defendant contends the trial court erred in giving the following instruction:

“A public employee is a person who is authorized to perform official functions on behalf of and is paid by the State. A social worker for the Illinois Department of Children and Family Services is a public employee.”

Defendant objected to the instruction at trial. On appeal, he contends the second sentence, in effect, proved an element of the State’s case and decided a question of fact which should have been decided by the jury.

We find no error in this instruction. The Illinois Department of Children and Family Services is a state agency established pursuant to section 1 of the Public Aid Code (Ill. Rev. Stat. 1979, ch. 23, par. 5001). Beyond a doubt, a person employed by a State agency is a public employee. The conclusion stated in the instruction was not one to be made by the jury.,

Rather, we believe the relevant facts to be proved in this regard are that defendant was a social worker for the Department and that the acts constituting the crime were performed by defendant in his official capacity. The tendered instruction did not interfere with this burden of proof.

Furthermore, the evidence of guilt is overwhelming and thus any error in the instruction would not have prejudiced defendant. Therefore, assuming that the instruction was improper, the verdict of the jury need not be disturbed. People v. Nelson (1979), 73 Ill. App. 3d 593, 392 N.E.2d 602.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.


author: JUSTICE LORENZ

text:
    HAROLD SULLIVAN, Plaintiff, v. POWER CONSTRUCTION, INC., Defendant and Counterplaintiff-and Third-Party Plaintiff-Appellant.—(THE ROBERT IRSAY COMPANY, Defendant and Counterdefendant-Appellee; AMERICAN HOSPITAL SUPPLY CORPORATION et al., Defendants; JAMES MANSFIELD & SONS COMPANY, INC., Third-Party Defendant-Appellee.)
    First District (5th Division)
    No. 81 — 1199
    Opinion filed August 13, 1982.
    Jerome H. Torshen, Ltd., of Chicago (Jerome H. Torshen, Abigail K. Spreyer, and Aaron M. Spiezer, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stanley J. Davidson, Karl M. Tippet, and Frederick S. Mueller, of counsel), for appel-lees.
   JUSTICE LORENZ

delivered the opinion of the court:

Power Construction, Inc. (Power), appeals from an order of the circuit court of Cook County dismissing, with prejudice, its third-party amended complaint for indemnification against James Mansfield & Sons Company, Inc. (Mansfield), and its counterclaim against counter-defendant The Robert Irsay Company (Irsay).

On appeal, Power contends that (1) the trial court erred in dismissing, with prejudice, its third-party complaint for failure to state a cause of action for indemnity, and (2) the trial court erred by denying Power leave to file a third amended complaint and counterclaim.

Plaintiff, Harold Sullivan, filed suit against Power, Irsay, and various other defendants not involved in this appeal, to recover damages for personal injuries suffered while performing roofing work as an employee of Mansfield on March 2, 1977.

The complaint charged that plaintiff was injured as a result of Power’s negligence when he fell two stories through an uncovered 30-inch square ventilation shaft opening on the construction site of the American Hospital Supply building in Evanston, Illinois.

A review of the pleadings indicates that Power functioned as general contractor for construction of the building while Irsay was the subcontractor in charge of furnishing, installing and completing all the ventilation and air conditioning work. Mansfield was the subcontractor in charge of roofing.

Count I of the complaint was based on common law negligence and alleged, inter alia, that defendants carelessly and negligently (1) left the ventilation shaft opening uncovered, (2) failed to erect guardrails and toeboards around the opening, and (3) failed to erect warning and caution signs around the open shaft.

Count II was based on the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60) and alleged that defendants were in charge of construction at the building and wilfully breached their duty to construct, erect and furnish the roof in a safe manner. The underlying complaint is not at issue in this appeal.

Power’s answer to the complaint admitted that it had a contract for certain construction work being performed on the building, but denied that it was in charge of the work in the area of the ventilator shaft opening.

Power subsequently filed a single third-party complaint against both Irsay and Mansfield in a three count “Counterclaim and Third Party Complaint.” Count I sought indemnification from both defendants based upon alleged breaches of the subcontractor contracts between the parties, in addition to violation of certain OSHA requirements. Count II sought contractual indemnification from Mansfield based upon the Structural Work Act, and count III sought indemnification based upon an active-passive theory of common law negligence.

Mansfield moved to dismiss count I on the grounds that any contractual agreement providing that Power could be indemnified against its own acts of negligence was void as against public policy, pursuant to section 1 of “An Act in relation to indemnity in certain contracts” (Ill. Rev. Stat. 1971, ch. 29, par. 61).

Irsay moved to dismiss counts II and III based upon its argument that Power failed to plead facts establishing a qualitative distinction between Power’s conduct and that of Irsay and Mansfield. The trial court struck all three counts and granted leave to amend.

This amended pleading was subsequently stricken and Power again filed a one-count “Second Amended Counterclaim,” which is the pleading in issue here.

The first portion of the second amended counterclaim was premised upon ¿ theory of contractual indemnity, and set forth the violation of certain contractual obligations contained within the subcontractor’s agreement.

It alleged, inter alia, that Irsay had contracted with Power to perform all work necessary in connection with the air conditioning and ventilation for the building; and that Irsay agreed to comply with all codes, statutes, and safety requirements regarding that work, including an OSHA regulation requiring a guardrail around a skylight opening where a danger of falling through it exists.

The latter portion of the pleading was based upon an active-passive theory of implied indemnity. Paragraph 7 set forth that any fault of the defendant would arise as a result of vicarious liability under the Structural Work Act. Paragraph 8 alleged certain major and primary acts of negligence without identifying the culpable party.

On April 16,, 1981, the trial court granted Irsay’s motion to strike and dismiss the counterclaim, with prejudice. The court stated that since there is no vicarious liability under the Structural Work Act, paragraph 7 was insufficient to allege acts of passive negligence. The trial court also denied Power’s oral motion for leave to file a third amended counterclaim because of the “age of the case” and because Power had already had “three shots at [amending] it.”

Power thereupon filed a motion to vacate the April 16 order and requested leave to file a third amended counterclaim and third amended third-party complaint, which were presented to the court.

The trial1 court denied Power’s motion to vacate and refused to consider whether the amended pleadings stated a cause of action. The court again based its decision on the age of the case and its determination that Power would not lose any of its substantive rights by dismissal of the second amended counterclaim with prejudice.

Shortly after the entry of this order, however, the trial court granted Irsay leave to file a third-party complaint against Mansfield.

Opinion

Initially, Power argues that the trial court erred in dismissing its second amended pleading because the combined pleading in issue stated a cause of action for indemnity. We do not agree.

As a preliminary matter, we note here that the indemnity issues of this case are controlled by the traditional Illinois rule prohibiting contribution among joint tortfeasors since the instant cause of action arose prior to March 1, 1978. Bednar v. Venture Stores, Inc. (1982), 106 Ill. App. 3d 454, 436 N.E.2d 46.

As developed by Illinois courts, the judicially created theory of ordering indemnity evolved to circumvent the harsh effect of the no-contribution rule. Mierzejwski v. Stronczek (1968), 100 Ill. App. 2d 68, 75, 241 N.E.2d 573; see also Kissel, Theories of Indemnity as Related to Third Party Practice, 54 Chi. Bar Rec. 157 (1973).

Third-party indemnity was traditionally allowed to a tortfeasor whose misconduct was passive in comparison to the misconduct of another tortfeasor whose wrongdoing could be characterized both as active and as the primary cause of plaintiff’s injuries. (Peterson v. Tam O’Shanter Racquet Club, Inc. (1980), 90 Ill. App. 3d 1029, 414 N.E.2d 181.) Shifting the entire burden from one tortfeasor to another is historically based upon the legal principle that one should be held responsible for one’s own actions.

A line of Illinois cases holds that this active-passive theory of indemnity is applicable to cases arising under the Structural Work Act (Ill. Rev. Stat. 1973, ch. 48, par. 60 et seq.), where, as here, wilfullness rather than negligence is an element of the original claim. Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630.

Under the Act, liability for injuries is placed upon those persons “having charge of” the work in progress. (Ill. Rev. Stat. 1973, ch. 48, par. 60 et seq.) More than one person may be “in charge of” the work and be liable to the injured party; however, there can be degrees of fault among those who are liable and the passively delinquent party, if held accountable, may transfer its statutory liability to the actively delinquent party. Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 401 N.E.2d 1032.

As Judge Bua once succinctly observed: “It often happens that it is the plaintiff’s employer who has direct control and thus the plaintiff is barred by the provisions of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a)), from suing his employer directly. However, the employer can be held liable to indemnify and be brought into a third party action.” (Bua, Third Party Practice in Illinois: Express and Implied Indemnity, 25 DePaul L. Rev. 287, 307 (1976) .) The resulting effect, as another author has aptly commented, is that “liability of the blameless is transferred to liability of the immune.” Guy, Trends in Third-Party Practice (1977), 65 Ill. B.J. 448 (1977) .

We turn now to consider Power’s argument that its second amended complaint against Mansfield and counterclaim against Irsay set forth a cause of action for indemnity.

As previously discussed, a third-party complaint for indemnity must allege a qualitative distinction between the conduct of the parties, in addition to a pre-tort relationship between the parties, which is not at issue here.

In the case at bar, the third-party complaint and counterclaim set forth a contract between Power, Mansfield and Irsay whereby the latter parties were to perform work for Power. The complaint further alleged:

“7. That if the defendant and counter-plaintiff was guilty of any fault, it was minor and secondary in nature, and is the result of vicarious liability of the Structural Work Act.
8. Of major and primary Acts in that it:
(a) Removed the cover of the roof opening through which the plaintiff fell;
(b) That after removing the roof covering, failed to provide barricades as required by the OSHA regulations.”

We find that the third-party complaint is not well pleaded in that any allegations of passive negligence consist primarily of legal conclusions rather than factual averments. The complaint relies solely upon “vicarious liability under- the Structural Work Act” to indicate the passive nature of Power’s own negligence, while the actively delinquent party is unidentifiable from the face of the pleading.

A third-party complaint for indemnity is legally insufficient where it merely alleges a legal conclusion that a third-party plaintiff is passively negligent without alleging any facts to support such a conclusion^. (Preston v. City of Chicago (1975), 34 Ill. App. 3d 322, 340 N.E.2d 251.) While the Civil Practice Act provides that pleadings be “liberally construed with a view to doing substantial justice ***” (Ill. Rev. Stat. 1973, ch., 110, par. 33(3)), it will not avail to sustain a complaint which wholly fails to state a cause of action. Smith v. Chicago Housing Authority (1976), 36 Ill. App. 3d 967, 344 N.E.2d 536.

Although we are cognizant that the line between “ultimate” facts and “conclusions of law” is not easily drawn (Van Dekerkhow v. City of Herrin (1972), 51 Ill. 2d 374, 282 N.E.2d 723), we cannot sanction a theory of active-passive negligence which is based upon pure conjecture as to the identity of the actively delinquent, or as to the acts of the passively negligent.

Accordingly, we find that the assailed complaint was substantially insufficient in law and was properly dismissed.

We next consider the issues presented by the trial court’s denial to Power of leave to amend its complaint. Here, the trial court based its refusal to consider the proposed amendments upon its determination that Power “most importantly” would not lose any of its substantive rights subsequent to dismissal of the action with prejudice. We disagree.

Supreme Court Rule 273 provides that an involuntary dismissal of an action, with limited exceptions inapplicable to the case at bar, operates as an adjudication upon the merits. (73 Ill. 2d R. 273.) Consequently, any future suits instituted by the plaintiff against the defendants would be clearly barred under the principles of res judicata. Brainerd v. First Lake County National Bank (1971), 1 Ill. App. 3d 780, 275 N.E.2d 468.

Furthermore, in the present case, the underlying action had not been fully adjudicated. Instead, Power had elected to immediately seek indemnification from defendants who might be liable to it for all or part of the original plaintiff’s claim against it pursuant to section 25 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 25).

Since under the statute it is not mandatory that a party seek indemnity in the original action as the party still has the option to wait until it is found liable, and then file a third-party complaint (Security Insurance Co. v. Mato (1973), 13 Ill. App. 3d 11, 298 N.E.2d 725), the trial court order had the effect of nullifying the stated purpose of this statute, which is to avoid a multiplicity of actions and a repetition of proof by permitting a determination of all claims in a single action. Mato.

We now turn to consider whether Power’s third amended complaint and counterclaim were sufficient to cure the defects we have discussed, infra.

With respect to amendment of pleadings, the most important . question to be considered is whether the amendment will be in the furtherance of justice. (Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 356 N.E.2d 164.) As the court in Scala/O’Brien Porsche Audi, Inc. v. Volkswagen of America, Inc. (1980), 87 Ill. App. 3d 757, 762, 410 N.E.2d 205, stated: “A fundamental purpose of the Civil Practice Act is to remove barriers which prevent the resolution of a case on its merits; to that end, the trial court’s power to allow amendments should be freely exercised so that litigants may fully present an asserted cause of action [citations]. Amendment of defective pleadings should therefore be permitted unless it is clear that the defect is not curable thereby.”

With these principles in mind we have examined the proposed third amended complaint and counterclaim and we are of the opinion that the indemnitee Power could ostensibly maintain an action against the indemnitors Mansfield and Irsay.

The third amended counterclaim and third-party complaint were separate pleadings containing two counts each. Count I of the third amended counterclaim was based upon an active-passive theory of indemnity.

Paragraph 7 of count I alleged that any liability attaching to Power would arise solely under Structural Work Act provision violations having been held “in charge of the work” as a result of being general contractor on the job and not as the result of any active negligence on the part of Power. Paragraph 8 alleged that Irsay was guilty of the following acts of misconduct.

“8. (a) Built sheet metal curbing for ventilation duct work and improperly and negligently failed to properly cover the opening left in the ventilation shaft after the ventilation curb was installed.
(b) Failed to provide guardrails, a plastic bubble or give other warnings to indicate impending danger to any workmen in the vicinity of the ventilation shaft which was improperly and negligently covered after the ventilation curb had been installed.”

Paragraph 9 reiterated the active-passive distinction. Count II was based on the indemnity provision of the contract between Power and Irsay.

The allegations of the third amended third-party complaint against Mansfield were similar save that the recitation of active misconduct on the part of Mansfield included:

“(a) Failed to warn its employees of an improperly and negligently covered ventilation shaft opening.
(b) Failed to guard its employees from stepping into an improperly and negligently covered ventilation shaft opening.
(c) Permitted its employee to-remove the covering of said ventilation shaft leaving it open and unprotected.
(d) Failed to provide guardrails, plastic bubble or other warnings as to the improperly and negligently covered ventilation shaft when it knew its employees were working in close proximity to said shaft.”

In the interest of permitting full presentation of this case, we find that justice would best be served by allowing Power an opportunity to amend its third-party complaint and counterclaim so as to attempt to state a cause of action.

For the foregoing reasons we affirm in part, reverse in part and remand to the trial court for further proceedings.

Affirmed in part; reversed in part and remanded.

SULLIVAN, P. J., and MEJDA, J., concur.


author: JUSTICE ME JDA

text:
    BELMONT NURSING HOME, Plaintiff-Appellee, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellants.
    First District (5th Division)
    No. 82 — 475
    Opinion filed August 13, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellants.
    Klafter, Burke & Nathan, of Chicago (Edward M. Burke, of counsel), for appellee.
   JUSTICE ME JDA

delivered the opinion of the court:

Plaintiff, Belmont Nursing Home, filed a complaint for administrative review in the circuit court, seeking to reverse the administrative decision of the defendants to terminate and not renew its Medicaid certification. Plaintiff filed with the complaint a motion for a temporary restraining order seeking to stay enforcement of the administrative decision. The trial court granted the motion and issued an order staying the enforcement of the administrative decision. The instant interlocutory appeal is taken from that order.

The issues presented for review are whether the trial court erred in granting a stay of the administrative decision by: (1) going outside the scope of administrative review; (2) using its own observations as evidence; and (3) not applying equitable requirements for injunctive relief.

On January 5, 1982, plaintiff was notified by the' Illinois Department of Public Health and the Illinois Department of Public Aid of the decision of the Illinois Department of Public Health to terminate and not renew the Medicaid certification of the Belmont Nursing Home due to violations of Federal Medicaid regulations (42 C.F.R. sec. 442 et seq. (1981)) and the Illinois Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1979, ch. 1111/2, par. 4151 — 101 et seq.). Plaintiff requested and received an administrative hearing before both agencies. Following the hearing the Directors of both Departments issued orders affirming the decertification, thereby terminating plaintiff’s eligibility to receive funds under the Medicaid program, effective February 8,1982.

Plaintiff consequently filed the instant action for administrative review under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) and on February 3, 1982, presented its motion for a “temporary restraining order” seeking to stay enforcement of the administrative decision pending completion of the judicial review. A hearing on the motion commenced on that morning. At this hearing the trial court expressed his intention to view the conditions at the nursing home, stating:

“I will listen to everybody but I will go out there myself this afternoon and I will take a look at the place. And if I think *** that these people should not be thrown out on the street because of this action, I will rule one way *** If I feel that these people are better off staying at that home, I will grant your motion and I am going to stop them from cutting off the funds at this time.”

After hearing the testimony of three registered nurses offered on behalf of defendants, the court adjourned, and subsequently conducted its own physical inspection of the Belmont Nursing Home during the afternoon.

While at the plaintiff’s nursing home, the judge made “speeches” and interviewed patients asking them if they wanted to leave, and inquiring as to how they were being treated. At one point during his inspection, the judge noted that a heart patient had not received a “cardiogram” as prescribed and ordered it taken as soon as possible. The judge later stated that his visual inspection led ,him to believe that the nursing home “was not in the condition that was described in the complaint.”

At the morning’s hearing, defendants’ witnesses had testified regarding the availability of alternative nursing facilities which complied with applicable Federal and State standards, and which could accommodate plaintiff’s patients. During the court’s afternoon inspection, the judge, without notice to defendants, also visited one of the named nursing homes, the Lake View Home. There, the judge inquired as to the availability of patient accommodations and made observations of the facility’s relative qualities of cleanliness and habitability in comparison to the plaintiff’s nursing home.

On the following day, February 4, 1982, the trial court announced the results of its inspection and issued an order granting the temporary restraining order staying the administrative decision.

Opinion

As a prelude to our discussion of the issues presented herein, it is necessary to examine the nature of the instant order and to identify the statutory basis for the issuance of the order. It is noted that what has been labeled as a “temporary restraining order” has been treated by the parties, for all substantive purposes, as a “stay” order entered pursuant to section 12(1)(a) of the Administrative Review Act. (Ill. Rev. Staff 1979, ch. 110, par. 275(1)(a).) This section states that the circuit court shall have the power “upon notice to the agency and good cause shown, to stay the decision of the administrative agency in whole or in part pending final disposition of the case.” On appeal, the parties have grounded their contentions with respect to the instant order upon this section. We recognize that the order appealed from is in the nature of a stay of enforcement of the decertification of plaintiff’s nursing home. We must further recognize, however, that the administrative decision in this case was predicated substantially upon alleged violations by plaintiff of provisions of the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1981, ch. 1111/2, par. 4151 — 101 et seq.) and was rendered upon findings made by the Director of the Department of Health pursuant to this act. Section 3 — 713(b) of the Nursing Home Care Reform Act of 1979 specifically provides that “[t]he court may stay enforcement of the Department’s final decision *** if a showing is made that there is a substantial probability that the party seeking review will prevail on the merits and -will suffer irreparable harm if a stay is not granted, and that the facility will meet the requirements of this Act and the rules promulgated under this Act during such, stay.” (Ill. Rev. Stat. 1981, ch. 1111/2, par. 4153— 713.) Thus, under the rule that the terms of the more specific statute must prevail, especially where that particular provision is later in time of enactment (see Hah v. Stackler (1978), 66 Ill. App. 3d 947, 383 N.E.2d 1264); we find that granting of the instant stay order is subject to the requirements of section 3 — 713(b) of the Nursing Home Care Reform Act. of 1979, and therefore not subject to the more general provisions of section 12(1)(a) of the Administrative Review Act as contended by the parties.

On the record before us there is no indication that the trial court considered the applicable standards of section 3 — 713 in granting the instant stay order. The record is also devoid of any proper showing by plaintiff of the requirements under this provision. Accordingly, we find the granting of the stay order under such circumstances to be a clear abuse of discretion which warrants reversal.

Although we consider the above shortcomings to be dispositive of the appeal, we deem it important to consider defendants’ contentions with respect to the court’s reliance upon its personal observations in staying enforcement of the administrative decision.

Generally, it is established that facts gained from a judge’s personal observations during an inspection cannot be considered in evidence. The only legitimate purpose of an inspection is to enable the court to understand the issues and apply the evidence which is properly admitted. (Devon Bank v. Department of Transportation (1981), 95 Ill. App. 3d 690, 420 N.E.2d 605; see also Drovers National Bank v. Great Southwest Fire Insurance Co. (1977), 55 Ill. App. 3d 953, 371 N.E.2d 855.) These rules are to be strictly applied in a bench trial. (Lancer Industries, Inc. v. City of Aurora (1975), 30 Ill. App. 3d 962, 333 N.E.2d 653.) Although in a bench trial it is presumed that the trial judge has considered only competent evidence, this presumption may be rebutted where the record affirmatively shows the contrary. Drovers National Bank; see People v. Gilbert (1977), 68 Ill. 2d 252, 369 N.E.2d 849.

We have examined the instant record in view of the foregoing principles, and we find the presumption of competency of the evidence strongly rebutted. The stay order here is clearly the product of the court’s own investigation into the facts. We think it sufficient to say that we consider the trial court’s activity here to far exceed the proper scope of judicial inspection and therefore sufficient grounds for reversal.

For the foregoing reasons, the order staying enforcement of the administrative decision is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Although nothing in this opinion is to be construed as foreclosing the granting of a stay order upon a proper showing, the trial court is directed on remand to set this cause for trial at the earliest possible date in accordance with section 3 — 713(c) of the Nursing Home Care Reform Act of 1979. Ill. Rev. Stat. 1981, ch. 1111/2, par. 4153-713(c).

Reversed and remanded, with directions.

SULLIVAN, P. J., and WILSON, J., concur.


author: JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES P. FIEBERG, Defendant-Appellant.
    First District (4th Division)
    No. 80 — 951
    Opinion filed August 19, 1982.
    James J. Doherty, Public Defender, of Chicago (Frank P. Madea and Ira Churgin, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, J. Mark Lukanich, and Bruce A. Cardello, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

Following a jury trial defendant, James P. Fieberg, was convicted of possession of burglary tools, attempted burglary, burglary, aggravated battery, and robbery but was acquitted of attempted murder. Defendant was sentenced to prison terms of three years for possession of burglary tools, three years for attempted burglary, seven years for burglary, five years for aggravated battery, and an extended term of 14 years for robbery. The aggravated battery sentence was made consecutive to the robbery sentence. In addition the trial court specified that all these sentences would be consecutive to certain prison terms the defendant had been serving in Michigan before he escaped from prison, as well as being consecutive to any term the defendant might receive for escape in Michigan.

On appeal defendant contends (1) the trial court improperly instructed the jury that defendant had confessed to the robbery; (2) the trial court erred in finding that the robbery was accompanied by acts which were so exceptionally brutal or heinous as to be indicative of wanton cruelty and imposing an extended sentence on those grounds; (3) the trial court erred in sentencing defendant to consecutive sentences for aggravated battery and robbery when those two offenses arose from a single course of conduct with no change in defendant’s criminal objective.

We affirm defendant’s convictions but reduce his sentence for robbery and modify his sentence for aggravated battery to make it concurrent with the other sentences.

The pertinent trial testimony was as follows. Wilmette Police Officer Terrance Fitzpatrick testified that while on patrol on the evening of October 10, 1978, he observed the defendant standing behind the opened screen door of the alley entrance to a business located at 919 Ridge in Wilmette. The defendant walked past the officer’s squad car, ignoring his orders to halt, and fled.

Shortly thereafter defendant was seen on the grounds of Mallinck-rodt College by Wilmette Police Officer John Leydon, who also testified. Leydon repeatedly ordered the defendant to lie down but instead defendant began walking towards Leydon. Defendant told Leydon he would not stop, that he was afraid he was going to be hurt and only wanted to leave. He kept approaching Leydon, who kept backing away. Officer Fitzpatrick arrived at this point and successfully ordered defendant to stand up against a tree. Fitzpatrick approached defendant and attempted to force open one of his hands, which was formed into a fist. Defendant grabbed him and sprayed his face with a toxic chemical, apparently Mace. The chemical entered Fitzpatrick’s eyes, causing them to burn, and also entered his nose and mouth, making breathing difficult. Fitzpatrick buried his head in defendant’s stomach and grabbed his legs in order to bring him to the ground. Defendant reached over Fitzpatrick’s back and removed the officer’s gun from its holster. Fitzpatrick heard two shots as he fell to the ground; it was his belief from the feel of defendant’s arm on his back that those shots were fired at Officer Leydon. Officer Leydon testified that those two shots were fired at him as he stood about six to eight feet away but both shots missed him. Fitzpatrick testified that at this point he grabbed defendant’s gun-hand by the wrist and with his other hand grabbed the barrel of the gun. Defendant, with his finger on the trigger, kept bringing the gun down in the direction of Fitzpatrick’s face. Fitzpatrick saw that defendant was pulling the trigger back and so made a jerking motion which moved the barrel back over his head. Defendant pulled the trigger and the gun went off. Fitzpatrick hit defendant twice in the face as hard as he could. Defendant got up with the officer again holding on to party of the gun. According to Fitzpatrick defendant kept pointing the gun down at Fitzpatrick’s face with his finger on the trigger. Fitzpatrick again pushed the gun up and defendant fired it. At this point the gun was about 18 inches from the officer’s face. Fitzpatrick kicked defendant in the groin and defendant broke loose and ran. Fitzpatrick, who had rolled away, heard eight to 10 shots. He initially joined in the chase but had difficulty seeing and was taken to the hospital. He testified that in addition to the spraying of his face he injured the knuckle and one finger of his left hand during the struggle for the gun. On cross-examination he admitted that in testimony before the grand jury he stated that defendant fired two shots at Leydon, two shots at him, and then, as defendant fled, two shots at both officers. He conceded that in fact he did not know if defendant fired more shots after the first four.

Officer Leydon testified that after defendant fired the first two shots at him he lay in the grass where he could not see the struggle. He heard two more shots and then saw defendant backing away with the gun in his hand. Defendant fired once in Leydon’s direction and then ran. Leydon got up and fired six shots at the fleeing defendant. He conceded on cross-examination that he had erroneously stated in a police report that defendant fired two shots at him as defendant fled.

Defendant was captured by other police officers in the area. He was found to be carrying $9.50 in quarters, $2.20 in dimes, $1.25 in nickles, and two single dollar bills as well as a roll of 10-cent stamps and a left-hand glove. The coins and stamps were determined to have been taken in the burglary of a store at 915 Ridge. At the store police found a pair of vise grips locked on the alley door. On the», ground they found a metal pry bar and a metal retaining ring from the door lock. At the store located at 919 Ridge part of the door lock was found on the stoop. Face plates from the doors of both stores were also found in the area.

The police also searched the area where the struggle took place and located Officer Fitzpatrick’s gun with five of the six bullets discharged. Also in the area they found a screwdriver, a can of Mace, and a right-hand glove. The left-hand glove recovered from the defendant was found to contain certain substances commonly left by the firing of a gun. No such substances were found on Officer Fitzpatrick’s shirt or jacket.

Defendant took the stand and admitted to having burglarized the business at 915 Ridge and attempting to burglarize the business at 919 Ridge. He admitted to having used the vise grips and also to possessing the pry bar, screwdriver, and gloves. His account of the encounter with Officers Leydon and Fitzpatrick was substantially similar to their accounts with the following important differences. When he removed the gun from Fitzpatrick’s holster he fired it into the ground with the intent of scaring the officers so he could escape. He did not even see Officer Leydon after he sprayed Fitzpatrick with Mace. After firing the first two shots he was knocked to the ground and Fitzpatrick grabbed the gun in the manner he had described. The gun discharged twice as Fitzpatrick yanked it in different directions. Defendant was not trying to point it at Fitzpatrick. Defendant then got up and was kicked in the groin at which point the gun again discharged. He then ran, discarding the gun, and climbed the wall of the college. He was arrested by other police officers in the area. Defendant denied ever intending to shoot and kill Leydon or Fitzpatrick.

I

We find no merit to defendant’s contention that the trial court erred in instructing the jury that there was evidence that defendant had confessed to robbery. It is true, as defendant notes, that the robbery indictment specified that defendant had taken the gun “with intent of permanent deprivation,” but this was mere surplusage. (People v. Simpkins (1971), 48 Ill. 2d 106, 268 N.E.2d 386.) Intent to permanently deprive a person of the use of his property is not an element of the crime of robbery. (People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244.) When defendant admitted that he had taken the gun from Officer Fitzpatrick during their struggle he confessed to having committed a robbery. Indeed it is noteworthy that at trial defense counsel, in closing argument to the jury, also conceded that defendant had admitted committing the robbery. Thus the trial court did not err in so instructing the jury.

II

We next consider the propriety of the 14-year extended-term sentence imposed on defendant for robbery. Section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2) provides in pertinent part:

“(a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.”

In this cause the trial court relied on the factors stated in section 5— 5 — 3.2(b)(2) (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(2)):

“When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.”

On this question the trial court stated:

“Here you have a police officer who’s maced, who has an impairment of the functions of his bodily organs, namely, his nose and eyes, clinging desperately to the barrel of his own revolver while it’s being discharged on at least two occasions and being discharged by the defendant’s own admission in the immediate proximity of the officer, because he fired into the ground. Obviously, that fact had to be known; because he wouldn’t testify to that fact; and, therefore, the Court is cognizant of that fact.
Then, again, we have the defendant armed with mace who was the aggressor at all times, for the reasons I’ve already indicated.
Therefore, this Court finds that the defendant’s conduct was accompanied by exceptionally brutal or heinous behavior. Also, the Officer testified that his knuckles were skinned and bleeding.”

Clearly the trial judge relied substantially on the facts of the macing of Officer Fitzpatrick. But those facts formed the basis of defendant’s conviction for aggravated battery. In People v. Evans (1981), 87 Ill. 2d 77, 87, 429 N.E.2d 520, 525, it was held that by the plain terms of the statutes at issue here “the most serious offense of which the offender is convicted must be accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” In so holding the court recognized that this legislative scheme could result in insulating a defendant from receiving an extended sentence for an offense which was accompanied by wanton cruelty simply because he was also convicted of a more serious offense not accompanied by such acts. Here the most serious offense for which defendant was convicted was robbery. Yet the trial judge, in sentencing defendant to an extended term, relied in great part on the facts establishing a lesser offense that preceded the robbery, aggravated battery. We find this to have been improperly considered as a factor in light of the holding of the Evans court. Moreover we do not find that the remaining factor cited by the court, the shots fired during the struggle for the gun, sufficed in itself to support an extended-term sentence.

The State cites, as dispositive a case relied on by the trial court in citing this factor, People v. Jones (1979), 73 Ill. App. 3d 99; 391 N.E.2d 767. In Jones defendant’s sentences were held to have been properly extended where he had, inter alia, fired a gun in such close proximity to a deputy’s head as to cause powder burns to the deputy’s face and hand as well as causing the hand to bleed. But in addition to this act the defendant had pointed the gun at several restaurant patrons and then fired repeatedly into the air despite the fact that they were cooperating with him. The court also cited the fact that one witness stated she thought she had been shot when the shots were fired. Thus in Jones the physical injury to the victims as well as the mental anguish suffered by them was demonstrably greater and better established than with the acts accompanying the robbery in this cause. Here the testimony of the two officers that defendant had fired or pointed the gun at them was clearly rejected by the jury for defendant was acquitted of charges that he attempted to murder these men. The jury apparently, accepted defendant’s testimony that the first two shots were fired into' the ground and the remaining three shots were inadvertently caused by the jerking of the gun and the blow defendant received.

As we stated in People v. Schlemm (1980), 82 Ill. App. 3d 639, 651, 402 N.E.2d 810, 818:

“We do not interpret the legislative scheme in regard to extended term sentences to intend that an extended term would be available under section 5 — 5—3.2(b)(2) unless the degree of brutality or heinous behavior was ‘exceptional.’ ”

A review of other cases in which extended-term sentences have been approved on the grounds relied on here illustrates the exceptional nature of the acts necessary to invoke such punishment. In People v. Winston (1982), 106 Ill. App. 3d 673, 435 N.E.2d 1327, the victim was.beaten until unconscious and then strangled to death; in People v. Eckles (1980), 83 Ill. App. 3d 292, 404 N.E.2d 358, the defendant told his wife by phone' he would kill her after his reconciliation efforts were rebuffed and he then drove to her workplace, shot her twice and when she fell shot her four more times; in People v. Warfel (1979), 67 Ill. App. 3d 620, 385 N.E.2d 175, the victim was grabbed by a stranger on the street, thrown to the ground, and had her face beaten against the sidewalk; and in People v. Young (1981), 96 Ill. App. 3d 426, 420 N.E.2d 1051, the victim was kidnaped, stripped, beaten, had a gun forced down her. throat, and then subjected to multiple acts of rape and sexual abuse by three men. We find that the acts which accompanied the robbery in this cause were demonstrably not comparable to those sorts of acts and do not constitute the exceptionally brutal or heinous behavior necessary for imposition of an extended term under the statute. Accordingly we reduce defendant’s sentence for robbery to the maximum permissible term of seven years. See People v. Schlemm (1980), 82 Ill. App. 3d 639, 402 N.E.2d 810.

Ill

Finally we consider the propriety of the trial court’s order that defendant’s sentence for aggravated battery be served consecutively with his sentence for robbery. Section 5 — 8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(a)) provides:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change m the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively.”

In applying this test the courts have looked to whether the crimes at issue were independently motivated. (People v. Ingram (1980), 84 Ill. App. 3d 495, 405 N.E.2d 864.) That same test was used in People v. Whittington (1970), 46 Ill. 2d 405, 265 N.E.2d 679, at a time when independent motivation was held necessary to permit convictions for separate crimes occurring during one course of conduct. In Whit-tington defendant escaped from prison, commandeering a State-owned car in doing so. He pleaded guilty to escape and theft (of the car) and received concurrent terms on those convictions. On appeal the Supreme Court of Illinois held that defendant stole the car on prison grounds as part of his plan of escape so that the theft was not independently motivated or otherwise separable from the conduct constituting the offense of escape. Accordingly defendant’s theft conviction was reversed. Here it is apparent that defendant’s act of macing Officer Fitzpatrick and the acts of taking the gun and firing it were all motivated by his criminal objective of evading capture. Indeed the trial court’s own finding on this point supports our view. The court stated:

“This Court finds there was no single course of conduct. There was the burglary, the flight from the burglary, a completely unrelated incident at the Mallinckrodt College, the escape from this college, the apprehension on the other side of the wall on Harvard Street. That’s five incidents, really.”

But the “incident” at the college in fact included both the aggravated battery and the robbery. Thus the trial court apparently saw both those crimes to be part of a single course of conduct. On appeal the State contends that defendant, having failed in his bid to escape by macing Officer Fitzpatrick, then took the gun in an effort to injure the officers, knowing he could not escape. This overlooks the fact that defendant did effectuate his escape from these two officers. But more importantly it represents an attempt to find in defendant’s actions a motivation which the jury clearly rejected by acquitting him of the charges of attempted murder. Accordingly, having found that there was no basis for the trial court’s imposition of consecutive sentences for these acts, we modify the court’s sentence for aggravated battery to a concurrent five-year term.

The judgment of the trial court is affirmed as modified.

JOHNSON, P. J., and LINN, J., concur.