author: JUSTICE McCULLOUGH

text:
      In re ESTATE OF RONALD E. ANDERSON, Deceased (James David Anderson et al., Ex’rs, Petitioners-Appellees, v. Gertrude Lucille Anderson, Respondent-Appellant).
    Fourth District
    No. 4—89—0699
    Opinion filed March 28, 1990.
    Rehearing denied April 25, 1990.

      Charles C. Hall, of Welsch & Hall, of Danville, for appellant.
    William Garrison, of Saikley, Garrison & Colombo, Ltd., of Danville, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This appeal concerns a prenuptial agreement and life insurance proceeds. Prior to their marriage, respondent, Gertrude Lucille Anderson, and decedent, Ronald E. Anderson, entered into an ante-nuptial agreement (agreement). After decedent’s death on May 23, 1988, respondent received $5,000 in life insurance proceeds pursuant to a Federal Employees Group Life Insurance policy insuring decedent’s life and purchased by the Office of Personnel Management. In a citation of assets proceeding initiated by the coexecutors of decedent’s estate, the trial court (probate division) concluded respondent was barred by the agreement from receiving the insurance proceeds. Respondent contends the agreement does not prevent her from receiving the proceeds under the default provisions of title V, section 8705, of the United States Code (5 U.S.C. §8705 (1988)), which governs Federal group life insurance. We affirm.

Respondent and decedent were married on January 30, 1980, in Danville, Illinois. On January 25, 1980, the parties entered into a prenuptial agreement. The agreement stated the parties were contemplating marriage and desired to execute an agreement “for the purpose of prescribing, limiting and determining the interest and control which each will have in the Estate of the other during their marriage, and after the death of one of them.” The agreement also included a list of the assets and liabilities of both parties. Decedent revealed in the agreement he owned three parcels of real estate, along with life insurance with a cash value of $10,000 and other cash and bank deposits. Respondent owned one parcel of real estate and promissory notes, along with cash and bank deposits. Paragraphs 2 through 8 of the agreement read as follows:

“2. In the event of the death of the husband during the continuance of their marriage, the wife surviving him, then except as in this Agreement provided the wife shall receive nothing from the estate of the husband and she agrees that she will make no claim to any part of his estate and she hereby releases, waives and relinquishes all right of curtesy, dower, statutory fee, homestead, surviving spouse’s award, right to renounce the Will of the husband, or other rights in and to the property, real or personal, which the husband now owns or may hereafter acquire.
3. Any property hereafter acquired, held or owned in the names of the parties as tenants by the entireties or joint tenants with right of survivorship, or which is in the name of either of them as trustee for the benefit of the other, or which is payable to either of them as co-owners, survivor or named beneficiary shall, upon the death of one of the parties, pass and be taken by the other as survivor or beneficiary.
4. Each party to this Agreement may make such disposition of his or her property by gift, trust, or Will as each sees fit, to or for the benefit of the other, and this Agreement shall not [affect] the right of the other party to receive such property as donee or beneficiary.
5. During the continuance of the marriage, each of the parties is to have the full right to own, control, and dispose of his or her separate property the same as if the marriage did not exist, and each of the parties is to have the full right to dispose of or and sell any and all real and personal property now or hereafter owned by either of them without the other party joining, and a transfer of property by either of the parties to this contract will convey the same title that the transfer would convey if the marriage had not existed. It is further agreed that in case either of the parties desires to mortgage, sell or convey his or her real or personal estate, the other will join in the deed of conveyance or mortgage as may be necessary to make the same effectual.
6. The purpose of this Agreement is to define and limit the claims and demands which each of the parties shall have against the estate of the other. Should either party die, then the rights of the other party as herein stipulated and defined shall be the limit which the survivor shall have in the estate of the decedent, except for any other property passing to the survivor as described in Paragraphs 3 or 4. ***
7. This Agreement is entered into with full knowledge that each of the parties has a separate estate and each agrees that the amount hereinafter fixed and determined shall be sufficient participation in the estate of the other, unless either shall make additional provision for the other.
8. In the event of the prior death of the husband, then the wife agrees that unless additional provision is made for her by the husband, her participation in the estate and assets of the husband shall be limited to the following:
a. The husband has recently acquired the residence property at 203 Cedar Avenue, Danville, Illinois, and intends to improve and furnish the same; and in the event said property constitutes the marital residence of said parties at the time of the death of the husband, then the wife shall be entitled to receive the absolute fee simple title to said property, and the household furnishings therein, either as beneficiary of the husband’s Will or as surviving joint tenant or as beneficiary of any trust to which said property may be conveyed by the husband. In the event said property does not constitute the marital residence of the parties at the time of the death of the husband, then the wife shall be entitled to receive the household furnishings of any residence which then does constitute the marital residence of the parties and the wife shall be entitled to receive the sum of $67,000.00 from the estate of the husband and the husband agrees to provide for such payment in a duly executed Will, said payment to be due the wife in lieu of said residential property.
b. The husband is now receiving a civil service pension and agrees to name the wife as survivor annuitant, which, in the event the wife survives the husband, would at present, entitle the wife to a monthly pension of approximately $761.00. It is understood that such an election to designate the wife as survivor annuitant will not be effective for a period of 1 year following the marriage of the parties and therefore, until such election shall be effective, the husband agrees that he will designate the wife as beneficiary of his three life insurance policies, the proceeds of said policies to be in excess of $15,000.00.
c. The wife shall be entitled to receive from the estate of the husband, any passenger automobile which is in the name of the husband at the time of his death.”

Following decedent’s death, his will, dated August 3, 1978, and codicil dated February 3, 1980, were admitted to probate. By codicil, decedent bequeathed to respondent the real estate and personal property as provided for in paragraphs 8(a) and 8(c) of the agreement. The residue of decedent’s estate passed to his three children from his first marriage, Pamela Sue Whitaker, Steven Ronald Anderson and James David Anderson. Steven and James were appointed coexecutors of the estate on June 22,1988.

On March 9, 1989, the coexecutors filed a petition for citation in the circuit court for Vermilion County (probate division), alleging respondent received certain life insurance proceeds properly belonging to the estate. At a hearing on April 20, 1989, respondent testified she received $5,000 as the proceeds of a life insurance policy from the office of Federal Employees Group Life Insurance (Federal office). Respondent stated she knew nothing of a Federal policy of life insurance prior to receiving the forms to apply for the death benefits.

The record includes two letters addressed to respondent from the Federal office. The letter dated October 12, 1988, states the policy on decedent’s life was purchased by the Federal government and this policy provided since there was no designated beneficiary, payment was to be made to the surviving spouse. A second letter to respondent dated March 9, 1989, stated Federal law preempts State law in regard to the payment of the Federal Employees Group Life Insurance and, therefore, respondent was the payee of the proceeds. The policy is not included in the record.

On May 4, 1989, the coexecutors filed a motion for turnover of the aforementioned life insurance proceeds to the estate. The coexecutors alleged respondent was not entitled to the proceeds by virtue of the agreement, which expressly limited respondent’s rights and interest in the decedent’s estate. On August 9, 1989, the trial court found the monies received by respondent “are included within the terms of the ante nuptial agreement *** and are properly an asset of the estate.” Respondent was ordered to turn over the proceeds to the estate. The order was stayed pending this appeal.

Respondent argues the language of the agreement does not preclude her from receiving the insurance proceeds. Respondent first claims the proceeds are not part of the decedent’s “estate” and the agreement concerns only property included in the probate estate. Second, respondent maintains the language in paragraph 3 of the agreement allows respondent to receive proceeds as a “survivor.” Third, paragraph 4 of the agreement allowed both respondent and decedent to give additional property to each other during their respective lifetimes. Last, respondent points out that the decedent had eight years within which to designate another beneficiary of the insurance if he did not intend for the respondent to receive the proceeds. It is respondent’s contention that the agreement is clear and unambiguous in supporting respondent’s right to the proceeds.

The coexecutors argue the agreement concerns more than the probate estate and point to the language in paragraph 2. The coexecutors further maintain the language of paragraph 3 of the agreement referring to “survivor” does not extend to this situation but was intended to include only those circumstances where decedent actively named respondent as a beneficiary of additional property. The coexecutors also refer to paragraph 6 of the agreement, which expressly states the purpose of the agreement was to limit and define the claims and demands of each party against the estate of the other. The coexecutors reject respondent’s argument that decedent made a “gift” of the proceeds to respondent by not naming an alternate beneficiary, and rely on Genung v. Hagemann (1968), 103 Ill. App. 2d 409, 242 N.E.2d 790.

In her reply brief, respondent relies on several divorce cases where the court stated that where life insurance proceeds are not specifically addressed in a property settlement agreement, the agreement is not construed as a renunciation of the right to receive the proceeds. (Williams v. Gatling (1989), 186 Ill. App. 3d 21, 542 N.E.2d 121; O’Toole v. Central Laborers’ Pension & Welfare Funds (1973), 12 Ill. App. 3d 995, 299 N.E.2d 392; Cox v. Employers Life Insurance Co. (1975), 25 Ill. App. 3d 12, 322 N.E.2d 555.) Respondent further states her interest in the life insurance policy during decedent’s lifetime was only a mere expectancy and decedent could have changed or named another beneficiary at any time. Because he did not, it is clear decedent intended respondent to receive the proceeds.

In construing an antenuptial agreement, the rules governing construction and interpretation of contracts generally are applicable. (Guhl v. Guhl (1941), 376 Ill. 100, 109-10, 33 N.E.2d 185, 189.) Prenuptial agreements should be considered in their entirety to ascertain the general scope or purpose and to give effect to the real intentions of the parties. (Guhl, 376 Ill. at 110, 33 N.E.2d at 189; Genung, 103 Ill. App. 2d at 414, 242 N.E.2d at 793; In re Estate of Klinker (1979), 80 Ill. App. 3d 28, 30, 399 N.E.2d 299, 301.) Resort will be had to the recitals of a contract if necessary to determine the intention of the parties and of the operative provisions of the agreement. (Guhl, 376 Ill. at 110, 33 N.E.2d at 189.) A right in the estate of a spouse can be relinquished without the use of precise words to that effect, providing the contract contains language sufficiently showing it was the intention of the parties to release such a right in an ante-nuptial agreement. Guhl, 376 Ill. at 110, 33 N.E.2d at 190; Genung, 103 Ill. App. 2d at 414, 242 N.E.2d at 793.

As noted, respondent first argues the agreement concerned only decedent’s probate estate. The agreement repeatedly referred to “estate,” yet this term is not defined in the agreement. In ordinary usage, the “estate” refers to the degree, quantity, nature, and extent of interest which a person has in real or personal property. (Black’s Law Dictionary 490 (5th ed. 1979).) Under the Probate Act, “estate” refers to all interest in property, real and personal, to which the deceased may be entitled. (Ill. Rev. Stat. 1973, ch. 3, par. 1 et seq.; In re Estate of Rudder (1979), 78 Ill. App. 3d 517, 397 N.E.2d 556; In re Estate of Weldon (1949), 337 Ill. App. 270, 85 N.E.2d 840.) Respondent cites no authority for this argument. Further, a reading of the entire agreement suggests the parties intended to include property outside the so-called “probate estate.”

In paragraph 8(b), decedent agreed to designate respondent as beneficiary of his civil service pension. In this paragraph, reference is made to three life insurance policies. Further, the life insurance is again referred to on the schedule for assets and liabilities of both parties. While the parties seem to agree that this reference to life insurance does not refer to the policy in question, the inclusion of a pension and life insurance in the agreement evidences an intent that the parties were considering their entire estate and not only their probate estate. We find this argument has no merit.

Next, we believe respondent’s interpretation of one word in paragraph 3 for support that respondent is entitled to the insurance as “survivor” is strained. Standing alone, paragraph 3 lends some support for respondent’s position because she received the proceeds as surviving spouse pursuant to a Federal statute. However, when considered together with paragraph 4, the language evidences that the parties contemplated the making of inter vivos gifts to each other, by trust or outright gift, and the possibility of allowing for further dispositions by will. As coexecutors point out, paragraph 4 evidences an intent that the parties may give additional property to each other by actively including their spouse’s name as coowner, beneficiary, donee, or survivor but does not extend to this situation where respondent received the proceeds by default under a Federal statute.

Even if we assume some validity to respondent’s “survivor” argument, other provisions of the agreement evidence a contrary intent. The opening recitals in the agreement state the parties entered into the agreement to prescribe, limit, and determine the interest and control each will have in the estate of the other. Paragraph 2 states the respondent, except as provided in the agreement, shall receive nothing from the decedent’s estate; that respondent agrees to make no claim to any part of his estate; and that respondent releases, waives, and relinquishes all right of curtesy, dower, statutory fee, homestead, surviving spouse’s award, right to renounce the will of the husband, and other rights in and to the property, real and personal, which decedent then owned or may acquire. Paragraphs 6, 7, and 8 restate the purpose of the agreement and use such terms as: fix, define, and limit.

The entire agreement in this case establishes the parties intended to limit their interest in the estate of the other by the terms of the agreement. The provisions allowing each party to give additional property to the other “by gift, trust, or Will” do not extend to the situation presented here where the decedent failed to make a beneficiary designation for the life insurance. The Genung court considered a similar provision in an antenuptial agreement and found an affirmative act was required by the donor-spouse, such as ordering or directing the giving of the property or by making a will. Intestacy was analogous to a failure to act. (Genung, 103 Ill. App. 2d at 417, 242 N.E.2d at 795.) We find this analysis persuasive.

In the present case, decedent failed to designate by written document his beneficiary of the life insurance. Therefore, the proceeds were payable to respondent by operation of law. The fact the insurance proceeds must be paid to respondent under section 8705 does not affect the litigation between respondent and the coexecutors regarding entitlement to the proceeds.

As noted, respondent, in her reply brief, directs this court to three divorce cases involving life insurance. All three cases may be distinguished from the case presented because they involve a divorce situation where a former spouse was the named beneficiary of a policy of insurance insuring his former spouse. In all three cases, the divorce decree or settlement agreement did not mention insurance policies specifically. The courts held that the agreement or decree did not bar the former spouse from receiving benefits as named beneficiary of the policy. We find this rule is confined to a divorce situation with a named beneficiary and is not applicable to the situation presented by this appeal.

Based on the language in the agreement, we conclude the insuranee policy was included within the provisions of the agreement and the respondent is barred by the agreement from keeping the proceeds.

Respondent next argues even if the language of the agreement could be construed to bar respondent from receiving the proceeds, the Federal preemption doctrine applies to prohibit the parties from making an agreement regarding the proper beneficiary of Federal life insurance. The coexecutors argue Federal preemption has no applicability to this case and the Federal statutes relied upon by the respondent concern only the relationship between the payor (office of Federal Employees Group Life Insurance) and respondent-payee as the surviving widow and do not concern this litigation between the respondent and decedent-insured’s estate.

Title V of the United States Code concerns Federal Employees Group Life Insurance (5 U.S.C. §8701 et seq. (1988)). Section 8709(d)(1) provides:

“The provisions of any contract under this chapter which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any law of any State or political subdivision thereof, or any regulation issued thereunder, which relates to group life insurance to the extent that the law or regulation is inconsistent with the contractual provisions.” (5 U.S.C. §8709(d)(1) (1988).)

Section 8705(a), which governs the payment of death benefits, provides:

“(a) The amount of group life insurance and group accidental death insurance in force on an employee at the date of his death shall be paid, on the establishment of a valid claim, to the person or persons surviving at the date of his death, in the following order of precedence:
First, to the beneficiary or beneficiaries designated by the employee in a signed and witnessed writing received before death in the employing office ***. For this purpose, a designation, change, or cancellation of beneficiary in a will or other document not so executed and filed has no force or effect.
Second, if there is no designated beneficiary, to the widow or widower of the employee.” (5 U.S.C. §8705(a) (1988).)

Respondent was paid as “widow” pursuant to section 8705(a) because no beneficiary was designated by the decedent. Respondent argues the prenuptial agreement was not an effective change of beneficiary designation as required by this provision and, therefore, she is entitled to the proceeds. Respondent cites two Federal cases, Huff v. Met ropolitan Life Insurance Co. (6th Cir. 1982), 675 F.2d 119, and Metropolitan Life Insurance Co. v. Manning (2d Cir. 1977), 568 F.2d 922, in support of her position.

In our view, Huff and Manning are distinguishable from the case before us because these cases involve suits by individuals against an insurer for proceeds payable pursuant to section 8705. That is not the situation presented here. In fact, coexecutors seem to agree that pursuant to section 8705, the government-insurer was required to pay the proceeds to respondent as decedent’s widow.

We find the Federal preemption issue to be without merit. We note, as did the courts in Huff and Manning, that Congress, when enacting the current provisions in section 8705(a), intended to alleviate the administrative difficulties previously suffered by the Civil Service Commission and the insurance companies when paying death benefits and to avoid serious delay in paying these benefits to the survivors of Federal employees. While the statute dictates the order of payment where no beneficiary designation has been made, we conclude it does not preclude a third party from bringing an action against the payee to compel payment of the proceeds to another party properly entitled to the proceeds. Further, a payee under the aforementioned default provisions is not prohibited from entering into a private contract regarding ultimate disposition of any benefits payable under the Federal statute. We acknowledge a recent case from the Seventh Circuit, Rollins v. Metropolitan Life Insurance Co. (7th Cir. 1988), 863 F.2d 1346, which provides support for our conclusion.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    HELEN A. DICK, Plaintiff-Appellant, v. PEOPLES MID-ILLINOIS CORPORATION et al., Defendants-Appellees.
    Fourth District
    No. 4—89—0536
    Opinion filed March 22, 1990.
    Rehearing denied April 25, 1990.

      Helen A. Dick, of Moline, appellant pro se.

    John E. Pick and William M. Rice, both of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Helen A. Dick is before this court for the fourth time on a matter involving the actions of defendant, Peoples Bank of Bloomington (Bank), now Peoples Mid-Illinois Corporation (holding company), as trustee of the estates of George E Dick, Jr. (George Jr.), and Althea M. Dick. The trial court dismissed plaintiff’s pro se amended complaint filed in May 1989, finding it was barred by res judicata, collateral estoppel, and the applicable statute of limitations. Plaintiff on appeal contends (1) her action is not barred by the statute of limitations; and (2) res judicata does not apply because this is a new action against the Bank and holding company. We affirm in part, reverse in part and remand.

This court is well acquainted with the parties and the subject matter of their ongoing dispute. Because the facts have been set out in prior appeals, they will now be stated only as necessary to a determination of the appealed issue. Peoples Bank v. Dick (1985), 135 Ill. App. 3d 1170 (unpublished order under Supreme Court Rule 23); Dick v. Dick (1988), 169 Ill. App. 3d 1175 (unpublished order under Supreme Court Rule 23); In re Estate of Dick (1989), 187 Ill. App. 3d 77, 543 N.E.2d 339.

In May 1982, plaintiff filed a diversity action in the Federal court in Maine against the Bank, and requested money damages for the transfer of Bank shares by George F. Dick III (George III) to himself, or an injunction directing the Bank as trustee to file suit against George III as former trustee under George Jr.’s will. Plaintiff obtained a voluntary dismissal of that action in July of 1982.

In an action filed in September 1982 (1982 action) by the Bank as successor trustee against George III as former trustee, it was determined by the court that the transfer of shares to George III prior to Althea’s death violated the provisions of George Jr.’s will. The order in the 1982 action directed George III to account for all shares from March 31, 1959, the date of the transfer of shares to George III, through October 10, 1976, the day of his mother’s death. Before any accounting was prepared, the Bank and George III entered into a settlement of all issues raised in the 1982 action.

Plaintiff was a named defendant in the 1982 action and participated in it by filing a counterclaim against George III, alleging breach of his fiduciary duties to Althea’s estate. In her counterclaim, plaintiff requested, inter alia, (1) George III account for all his acts as fiduciary, and all dividends and profits and gains achieved as a result of the using of the shares as collateral for personal loans; (2) exemplary damages for George Ill’s breach of fiduciary duty; and (3) an injunction barring George III from voting any bank shares for the benefit of plaintiff. Plaintiff objected to the settlement between the Bank and George III and was not a party to the settlement. The trial court dismissed plaintiff’s counterclaim, and plaintiff appealed the dismissal to this court. One of the issues plaintiff raised was the impropriety of the settlement between the Bank and George III. This court found plaintiff was barred from raising the impropriety of the settlement when she had not raised the issue in the trial court. The order of the trial court in the 1982 action was affirmed. (Peoples Bank v. Dick (1985), 135 Ill. App. 3d 1170 (unpublished order under Supreme Court Rule 23).) No appeal was taken by George III or the Bank from the order regarding the shares entered in the 1982 action. The settlement agreement is not part of the record before this court.

In March 1986, plaintiff attempted to reopen Althea’s estate by alleging George III engaged in fraud while executor of the estate and, thus, the order of discharge George III obtained was void. The trial court dismissed three of the four counts. The remaining count alleged the order of discharge George III obtained for Althea’s estate was void because George III fraudulently failed to file a will Althea executed jointly with George Jr.’s will. Further, plaintiff alleged the improper transfer of shares in 1959 to George III and the improper use of such shares as collateral for personal loans. Plaintiff requested the order of discharge be vacated, an accounting be made of the proceeds of a personal loan George III obtained, and damages. The trial court denied the petition, finding George Ill’s final report as executor of his mother’s estate, filed in 1979, was binding on the plaintiff. Plaintiff appealed the order to this court, arguing it was against the manifest weight of the evidence. This court concluded plaintiff was barred by res judicata from relitigating the shares issue against George III. This court further concluded the settlement was determinative of claims brought against George III, including those involving improper benefits received as a result of the stock transfer. Dick v. Dick (1988), 169 Ill. App. 3d 1175 (unpublished order under Supreme Court Rule 23).

In November 1988, plaintiff attempted to reopen her father’s estate to litigate the ownership of the aforementioned bank shares. Plaintiff filed a document entitled “Revocation of Waiver,” and four other documents entitled “Petition for Citation.” Plaintiff’s claims were denied by the trial court. This court affirmed, finding res judicata barred plaintiff from relitigating the ownership of the Bank stock. In re Estate of Dick (1989), 187 Ill. App. 3d 77, 543 N.E.2d 339.

Plaintiff filed the action which is the subject of this appeal in December 1988. Plaintiff amended her complaint in May 1989. In essence, plaintiff alleged the Bank breached its fiduciary duty as trustee to her by, inter alia, (1) not informing her of facts necessary for her to protect her interests as beneficiary; (2) failing to obtain all of the trust property for George Jr.’s estate from George III; (3) improperly settling all claims with George III without the court-ordered accounting in the 1982 action; (4) improperly transferring shares of Bank stock rightfully the property of George Jr.’s estate to George III; (5) improperly allowing the commingling of shares owned by George Jr.’s estate with those owned by George III; (6) improperly allowing the Bank’s shares owned by George Jr.’s estate to be pledged by George III as collateral for various personal loans; (7) failing to compel the holding company to deliver the Bank shares to the Bank as trustee of George Jr.’s estate; (8) failing to ask that a different trustee be appointed for the 1982 litigation against George III because George III was then a director of the holding company; and (9) depriving the trust beneficiaries, including plaintiff, of the highest possible income by withholding cash dividends on Bank shares to accumulate profits. Plaintiff asked for (1) a declaratory judgment that 38,400 shares of Bank stock properly belong to the estate of George Jr.; (2) an accounting and delivery of such shares and dividends which should have been paid since 1976; (3) damages; (4) removal of the Bank as trustee of the trust; (5) an accounting and delivery of all management fees collected by the Bank as trustee; and (6) an accounting and delivery of all director’s fees, bonuses, and gifts paid to George III by the Bank and holding company since March 1980. The trial court found plaintiff’s prior actions involving the same subject barred this action and dismissed the complaint pursuant to sections 2 — 619(a)(4) and (a)(5) of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, pars. 2—619(a)(4), (a)(5)). The trial court also found the action was barred on limitations grounds.

Plaintiff first argues the trust in this matter is an express active trust and the five-year statute of limitations in section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205) does not begin to run until the trust is repudiated or terminated. Since neither event has occurred, the trial court erred in finding plaintiff’s action was time-barred. Next, plaintiff contends the finding in the 1982 action that the transfer of shares in 1959 violated the provisions of George Jr.’s will is binding against the Bank and holding company in this action, but does not bar plaintiff from suing the Bank in this action. Third, plaintiff argues this action is not the same as previous actions involving these parties but presents issues never litigated between the plaintiff, the Bank, and the holding company.

When considering a motion to dismiss, all well-pleaded facts are admitted and taken as true. (Long v. City of New Boston (1982), 91 Ill. 2d 456, 440 N.E.2d 625.) In determining the propriety of the dismissal of a complaint, the reviewing court is concerned only with the questions of law presented in the pleadings. People ex rel. Lee v. Kenroy, Inc. (1977), 54 Ill. App. 3d 688, 690-91, 370 N.E.2d 78, 80.

We first consider the limitations issue. The trust in this case is an express active trust because it was created in express terms in George Jr.’s will and the trustee was charged with active duties to carry out the purpose of the trust. (Price v. Illinois (1979), 79 Ill. App. 3d 143, 148, 398 N.E.2d 365, 370.) The statute of limitations does not begin to run against such a trust until the trust is repudiated or the trust relation between the parties comes to an end. (Piff v. Berresheim (1950), 405 Ill. 617, 626, 92 N.E.2d 113, 118.) The trust in this case does not terminate until the death of Eleanor D. Lyon, one of the beneficiaries now living. Further, the trust has not been repudiated. We conclude the statute of limitations does not bar plaintiff’s action and find error in the trial court’s finding to the contrary.

Next, we address the res judicata issues raised in this action. The trial court found both res judicata and collateral estoppel barred plaintiff from bringing this action. Res judicata is a doctrine which reflects the public policy favoring finality of litigation and judicial economy. (Decatur Housing Authority v. Christy-Foltz, Inc. (1983), 117 Ill. App. 3d 1077, 454 N.E.2d 379.) The doctrine of res judicata provides:

“ ‘[A] final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. [Citations.]’ ” Housing Authority for La Salle County v. YMCA (1984), 101 Ill. 2d 246, 251, 461 N.E.2d 959, 961-62.

Collateral estoppel is a branch of res judicata but is narrower in its scope. (Decatur Housing Authority, 117 Ill. App. 3d at 1082, 454 N.E.2d at 383.) It applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in a former suit. (Housing Authority, 101 Ill. 2d at 252, 461 N.E.2d at 962.) Thus, where the parties are the same and the same subject matter is the basis for the action, but there is a different claim or demand, the prior judgment operates to bar relitigation of only those matters in issue and is conclusive only as to those questions actually raised and determined in the earlier action. (In re Estate of Garrett (1969), 109 Ill. App. 2d 243, 247, 248 N.E.2d 539, 541.) The test to determine whether the second cause of action presents a new action is whether the underlying facts are identical in both actions and whether the same evidence would sustain both actions. Bass v. Scott (1979), 79 Ill. App. 3d 224, 226, 398 N.E.2d 236, 238.

We find the trial court erred in dismissing plaintiff’s entire complaint. However, we also find plaintiff is barred from relitigating any issue regarding (1) the impropriety of the 1959 transfer of shares to George III; (2) the impropriety of the settlement between the Bank and George III; (3) the impropriety of George Ill’s use of the Bank shares as collateral for personal loans; (4) any impropriety in actions of the Bank and holding company in collecting bank shares plaintiff alleges belong to George Jr.’s estate; and (5) any impropriety in the actions of the Bank in allowing bank shares owned by the estate of George Jr. and those owned by George III to be commingled. It is true plaintiff’s prior actions involved George Ill’s fiduciary duties while trustee and executor of his father’s and mother’s estates. However, these actions involved the several matters we heretofore noted, which were litigated and, thus, cannot be raised again. In portions of the amended complaint, petitioner is looking to recover against the Bank for violations of its fiduciary duties owed to her as successor trustee. The same evidence will not sustain these claims as sustained the findings in the prior actions.

We conclude plaintiff’s amended complaint, while repetitive in parts and replete with conclusions and irrelevant information, contains some allegations which would support a new action and, thus, these claims are not barred by the principles of res judicata. We express no opinion on the merits or success of these claims, but merely find plaintiff is entitled to her day in court on these claims. We direct, however, that those portions of plaintiff’s amended complaint dealing with matters barred by res judicata and collateral estoppel are to be stricken on remand.

Accordingly, the order of the trial court is affirmed in part, reversed in part and this cause is remanded for proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

SPITZ and GREEN, JJ., concur.


author: JUSTICE MURRAY

text:
    AETNA CASUALTY AND SURETY COMPANY, Plaintiff-Appellant, v. PRESTIGE CASUALTY COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—89—0346
    Opinion filed March 16, 1990.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, Edward J. Zulkey, and Thomas W. Cushing, of counsel), for appellant.

      Bresler, Brenner & Moltzen, of Chicago (Edward W. Moltzen, Sheldon A. Brenner, and Theodore J. Castanes, of counsel), for appellant.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Aetna Casualty and Surety Company (Aetna) appeals orders granting defendant Prestige Casualty Company’s (Prestige’s) cross-motion for summary judgment and denying Aetna’s summary judgment motion in a declaratory judgment action. The facts underlying this case are as follows.

On March 11, 1984, James P. Shramek, who had slowed down his automobile to avoid potholes on Sheridan Road in Waukegan, was struck from behind by a cab driven by Bradford K. Collins, Sr. (decedent). The men subsequently parked their cars and got out. An argument ensued whereupon Shramek allegedly struck decedent with his fists and wrestled him to the ground in the middle of the road. As the men were wrestling, a car driven by Tammy L. Voss struck both men. Decedent Collins died as a result of injuries he sustained from the Voss car. At the time, Shramek was insured under a homeowners policy issued by Aetna and an automobile liability policy issued by Prestige.

In December 1984, decedent’s family (plaintiffs) filed a six-count civil suit against Shramek and Voss in Lake County, Illinois. Counts I through III pertained to Shramek: count II was a loss of consortium claim and count III was brought under the family expense act. In all three counts, plaintiffs alleged:

“4. That immediately after said collision the defendant, JAMES P. SHRAMEK, without legal cause or justification, struck the decedent, BRADFORD K. COLLINS, Sr., with his fists about the face, neck and body and otherwise negligently dragged and caused the decedent to be upon the travelled portion of Sheridan Road.
5. That as a direct and proximate result of said negligence and attack by the defendant, JAMES P. SHRAMEK, the decedent, BRADFORD K. COLLINS, Sr., was put upon the travelled portion of Sheridan Road and while being in such location, he was struck by a southbound automobile driven upon Sheridan Road by the defendant, TAMMY L. VOSS.
6. That the decedent, BRADFORD K. COLLINS, Sr., then and there sustained severe injuries, both internally and externally, which caused him extreme and severe pain, suffering and discomfort until the time of his death. That said injuries were the direct and proximate of his death.”

On January 30, 1985, Prestige sent two letters to Shramek informing him that it had retained a law firm to represent him, that the policy limits could be exceeded, and that Shramek was free to retain additional counsel to protect his financial interests. On March 7, 1985, Prestige sent a letter to Shramek informing him that after a thorough review of the situation, Prestige was denying coverage because “[tjhis policy does not apply to bodily injury or property damage caused intentionally by or at the direction of the insured.”

After being notified of the occurrence in December 1984, Aetna filed a motion for summary judgment against Shramek and Prestige in its declaratory judgment action. In September 1986, Shramek failed to appear in court to contest Aetna’s motion and the trial court granted a default summary judgment in favor of Aetna and against Shramek. No declaratory relief was entered against Amy Collins, a plaintiff in the sub judice case and an out-of-State resident, since no service was obtained upon her. As the underlying case approached its trial date, and since the plaintiffs were not bound by the default judgment, Aetna prepared to defend Shramek under a reservation of rights and eventually settled the case against him for $55,000 in January 1987. In June 1987, Aetna amended its declaratory judgment claim against Prestige, asserting that the occurrence was not covered by Aetna’s policy because of a provision excluding coverage for bodily injury or property damage arising out of the ownership, maintenance, use, loading, or unloading of a motor vehicle owned or operated by any insured. Aetna’s complaint also alleged that the incident did arise out of the ownership, maintenance, or use of Shramek’s automobile, thus requiring Prestige to indemnify and defend him in the underlying action. Furthermore, Prestige, by its actions, was estopped to deny coverage. Aetna requested that it be reimbursed for sums it expended for Shramek’s defense and settlement. This appeal followed the trial court’s rulings adverse to Aetna.

On appeal, Aetna claims that the trial court erred because Prestige is estopped from asserting a policy defense since it initially assumed Shramek’s defense and then refused to either defend under a reservation of rights or file a declaratory judgment action to determine coverage. Aetna also argues that the injuries alleged in the underlying suit arose out of the ownership, maintenance, or use of an automobile and thus were covered by the Prestige policy. Prestige contends that the trial court rulings were proper in that Prestige’s denial of coverage created no estoppel because no prejudice was shown to have resulted to Shramek and, furthermore, decedent’s injuries arose out of Shramek’s intentional tortious conduct, not from the use of his car.

For the following reasons, we must reverse and remand this cause.

It is settled law in Illinois that an insurer has two duties to an insured when a lawsuit is filed that may trigger the insurer’s policy coverage: the duty to defend and the duty to indemnify. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23.) These are separate and distinct duties, and the duty to defend is broader than the duty to indemnify. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388.) The duty to indemnify arises only after the insured becomes legally obligated to pay damages in the underlying action. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23.) On the other hand, the duty to defend is triggered by the allegations in the underlying complaint that bring the claim within or potentially within the policy coverage. (Thornton v. Paul (1978), 74 Ill. 2d 132.) Furthermore, the duty to defend arises where the complaint alleges several causes of action or theories of recovery against an insured even if only one or some of them are within the policy coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187.) Unless the complaint, on its face, clearly alleges facts which, if true, would exclude coverage, the potentiality of coverage is present and the insurer has a duty to defend. Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777.

When an insurer is in doubt regarding its duty to defend, it may defend the suit under a reservation of rights or seek a declaratory judgment as to coverage. (Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184.) If the insurer refuses to defend and does neither, it is estopped from later alleging that the insured was not covered under the policy or that there were policy defenses in a subsequent action by the insured or the insured’s subrogee. Casualty Insurance Co. v. Northbrook Property & Casualty Insurance Co. (1986), 150 Ill. App. 3d 472.

According to these precepts, the question of whether Prestige had a duty to defend Shramek depends on an examination of the underlying complaint. Prestige argues that the phrase “struck without legal cause or justification” is a direct reference to our statute defining battery: “A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual ***.” (Ill. Rev. Stat. 1983, ch. 38, par. 12—3(a)(1).) However, the complaint continues, “struck the decedent *** with his fists *** and otherwise negligently dragged and caused the decedent to be upon the travelled portion of Sheridan Road.” The following paragraph of the complaint alleges “[t]hat as a direct and proximate result of said negligence and attack” decedent was struck by the Voss automobile. Prestige considers the negligence allegations to be “impertinent verbiage.” Thus, it argues, the complaint clearly alleged an intentional tort, thereby placing the incident outside the ambit of its policy. We disagree.

At the same time that Prestige asserts that the underlying complaint clearly alleges an intentional tort, it also acknowledges that the situation wherein injuries are incurred in a fight following a traffic accident has never been considered by Illinois courts in their construction of the policy language “arising out of.” It is clear that our courts interpret this phrase broadly. In Maryland Casualty v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 154, the court stated, “[t]he phrase ‘arising out of’ is both broad and vague, and must be liberally construed in favor of the insured; accordingly, ‘but for’ causation, not necessarily proximate causation satisfies this language.”

In the present case, we have an insurer (Prestige) asked to defend a suit against its insured (Shramek) in which the complaint may allege a battery and clearly refers to negligence several times. Furthermore, the events leading up to the complained-of injuries have never been considered by our courts within the broad context of the phrase “arising out of.” Under such circumstances, it is apparent that the underlying complaint alleged facts that would potentially trigger coverage under Prestige’s automobile liability policy. Prestige therefore had a duty to either defend the suit under a reservation of rights or seek a declaratory judgment as to its coverage. It did neither and is thus estopped from asserting any policy defenses in a suit by Shramek’s subrogee, Aetna.

Prestige’s contention that estoppel is inapplicable because Shramek suffered no prejudice is without merit. Estoppel arises as a direct result of the insurer’s breach; such breach is not exonerated by a defense of the insured by another insurer. (Casualty Insurance Co. v. Northbrook Property & Casualty Insurance Co. (1986), 150 Ill. App. 3d 472.) Since Prestige is estopped, there is no necessity for determining whether the homeowners or automobile policy was applicable to this situation.

Accordingly, summary judgment for Prestige was improper. We must therefore reverse the trial court’s orders and remand this cause for a determination of the sum reimbursable to Aetna by Prestige.

Reversed and remanded.

LORENZ and GORDON, JJ., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRE BOULRECE, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—0394
    Opinion filed March 16, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Paul D. Bellendir, Assistant Public Defender, of counsel), for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

After a jury trial, defendant, Andre Boulrece, was found guilty of the murder, armed robbery and robbery of Elio Evangelista, and of the robbery of Gavino Miguel. He was found not guilty of the aggravated battery of Miguel. The trial court sentenced defendant to concurrent terms of 30 years’ imprisonment for murder, 15 years for armed robbery, and 7 years for each of the two robbery convictions. On appeal, defendant contends that the language contained in the voluntary manslaughter instruction was improper; that a police officer was erroneously permitted to testify as to Miguel’s out-of-court identification of defendant when the victim could not make an in-court identification; that an unfair trial resulted from testimony about an anonymous unidentified declarant; that evidence of gang involvement was prejudicial and irrelevant; that defendant was erroneously precluded from inquiring into the illegal alien status of the State’s eyewitnesses; that defendant was improperly convicted of the lesser offense of robbery; and that the trial court erred in denying defendant’s motion to quash his arrest.

Miguel and his cousin, Carlos China, testified that on August 15, 1985, they were walking on North Avenue in Chicago with Evangelista. At 10:30 p.m., they were approached by a group of six young men, including defendant and a man named Jose Padilla. The six men attacked Evangelista, Miguel and China. Evangelista died that night as the result of the attack.

Miguel’s watch was taken by someone with a knife, who later was identified as defendant. Miguel was knocked unconscious with a baseball bat. At trial, Miguel was unable to identify defendant. China fought with Padilla.

Officer Joseph Sparks testified that at 11:20 p.m. on that night, he and Officer Joseph Fallon, accompanied by Officer Maddux of the Los Angeles police department, were on patrol and saw two men running down an alley. They stopped and asked the men why they were running. Defendant stated that they had been in a fight with some Mexicans near Grand and Cicero, and that the Mexicans were chasing them. Sparks conducted a pat-down search of defendant, and asked for and received identification from him. The officers permitted the two men to leave.

The officers left, and V-k blocks away they saw Evangelista in an alley, crawling on his hands and knees, with puncture wounds in his stomach. For the limited purpose of showing the basis for further investigation, Sparks was allowed to testify that a passerby informed his partner that he had seen the victim in the alley fighting with a black man and a Spanish man.

Forty-five minutes later, the officers found defendant and Padilla on the street. They were arrested. Defendant told the police that he had been carrying a knife. He led them to a building where a bloody knife was found under a porch. Defendant wore a watch which he admitted taking from a Mexican during a fight. Miguel later identified it as his watch. Defendant carried $107 in his wallet, and the bills were bloodstained. He also carried some Mexican currency. Defendant admitted taking the money from a Mexican on North Avenue. Officer Fallon testified that during the search for defendant, Officer Maddux mentioned that he had noticed a knife in defendant’s pocket during the first stop.

At the police station, defendant stated that he and Padilla fought with three Mexicans. Defendant took a watch from one man and money from another. One victim chased them. When defendant got tired, he turned and began stabbing the man. He and Padilla threw the victim to the ground and kicked him in the head. They then went through his pockets and took some more money. They ran until they were stopped by the police. Defendant later made a written statement which was essentially the same as his earlier oral statement to the police.

Defendant called no witnesses at trial.

Defendant initially contends that the voluntary manslaughter instructions to the jury erroneously stated the burdens of proof on the issue of whether defendant acted under the unreasonable belief that his actions were justified (see People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141), and that the voluntary manslaughter instructions did not inform the jury that the State had the burden to prove the absence of legal justification.

However, the jury found defendant guilty of murdering the victim in the course of an armed robbery. Under the applicable statute, it would be impossible for a defendant committing murder while “attempting to commit, committing, or escaping after the commission of, a forcible felony” to be guilty of voluntary manslaughter. (Ill. Rev. Stat. 1985, ch. 38, pars. 2—8, 7—4(a), 9—1(a)(3); see also People v. Moore (1983), 95 Ill. 2d 404, 447 N.E.2d 1327.) Thus, there is no issue of manslaughter in this case, and no error in the manslaughter instructions would require reversal. See People v. Austin (1989), 133 Ill. 2d 118; People v. Daniel (1989), 191 Ill. App. 3d 837, 548 N.E.2d 354; People v. Beacham (1989), 189 Ill. App. 3d 483, 545 N.E.2d 392; People v. Skipper (1988), 177 Ill. App. 3d 684, 532 N.E.2d 44; People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531.

We find no merit in defendant’s next contention that he was denied due process when a police officer was permitted to testify as to Miguel’s identification of defendant in a lineup, when Miguel was unable to make an in-court identification. Identification was not an issue in this case, where defense counsel conceded in opening statement that defendant stabbed Evangelista and defendant repeatedly confessed to the stabbing. See People v. Curtis (1986), 113 Ill. 2d 136, 497 N.E.2d 1004; People v. Spicer (1987), 163 Ill. App. 3d 81, 516 N.E.2d 491.

Defendant also contends that he was denied a fair trial when a police officer testified that an anonymous unidentified passerby stated he saw the victim fighting with a black man and a Spanish man, and when the State made this point in closing arguments.

No error occurred where the court properly limited this hearsay testimony to the purpose of explaining the actions of the police during their investigation of the crime. (See People v. Leverston (1985), 132 Ill. App. 3d 16, 476 N.E.2d 1344; People v. Young (1983), 115 Ill. App. 3d 455, 450 N.E.2d 947.) This is true even where the content of the conversation is admitted for this narrow purpose. Moreover, evidence of a hearsay statement made to a police officer will not affect the validity of a conviction where the evidence could not have changed the outcome of the trial (People v. Wright (1974), 56 Ill. 2d 523, 309 N.E.2d 537). Here, the evidence that defendant stabbed Evangelista was overwhelming. We also note that during closing argument, the prosecutor made only a brief reference to the officer’s testimony and that comment was in response to defense counsel’s comments. No reversible error occurred.

Defendant contends further that he was denied a fair trial when the State violated the court’s order by eliciting irrelevant and prejudicial evidence of gang involvement. Defendant’s argument is unpersuasive. Both Officers Sparks and Fallon testified that their position was “Gang Crimes Specialist.” There was no evidence indicating defendant was involved in a gang, or that the stabbing and robbery involved gang activity. The jury was made aware that Sparks and Fallon came across defendant only coincidentally, and there was no indication that the officers were investigating any gang activity when they happened to see defendant running down the alley while they were on routine patrol. No error occurred when the officers were permitted to testify as to their position in the police department.

Defendant contends that he was denied a fair trial when he was not permitted to inquire into the illegal alien status of Miguel and China. There were no deportation proceedings pending against these witnesses, and there was no suggestion that they had been offered leniency on a charge of illegal entry, which would have been beyond the power of the State’s Attorney. Furthermore, evidence of commission of prior criminal acts may not be used to impeach a witness unless there has been a conviction for that crime. Defendant had no right to impeach the witnesses on this point. See Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 363 N.E.2d 805; People v. Kavanaugh (1980), 85 Ill. App. 3d 783, 408 N.E.2d 23.

Defendant also contends he was improperly convicted of the lesser included offense of the robbery of Evangelista, where it arose out of the same occurrence as the armed robbery, and he requests a new sentencing hearing. Where there are separate acts there can be separate convictions. (People v. Del Percio (1985), 105 Ill. 2d 372, 475 N.E.2d 528.) During the initial robbery on North Avenue, defendant took $107 from Evangelista. Later, three blocks away, during the armed robbery involving the stabbing, defendant took Mexican currency from Evangelista. Separate acts supported the separate convictions here.

In a supplemental brief, defendant contends that the trial court erred when it "denied defendant’s motion to quash the arrest. We agree with the trial court’s finding that there were two separate incidents here — the initial stop in the alley and the later arrest. There is a difference between arresting a person and stopping the person for questioning. (See People v. Fulton (1979), 68 Ill. App. 3d 915, 386 N.E.2d 605.) Defendant maintains that the initial stop of defendant and Padilla was improper because running down an alley violates no law. The trial court, however, found the stop was proper and that the officers “would be dilatory in their duties had they not stopped these individuals.” It concluded that the officers had a reasonable basis for making the minimal intrusion.

In People v. Tribett (1981), 98 Ill. App. 3d 663, 424 N.E.2d 688, defendant was stopped when police officers saw him carrying a brown bag at 10:30 p.m., and suddenly darting into an alley when the squad car came within 10 or 20 feet of him. The police exited the squad car with their guns drawn and followed defendant. They found him standing in an alley and ordered him to turn around. The court held that, while there was no question that defendant’s sudden running into the alley was not a crime, it was certainly unusual. From the officers’ viewpoint, such conduct at 10:30 p.m. was at least reasonably suspiclous enough to justify an inquiry into his sudden flight. The police in Tribett were properly investigating the suspicious behavior.

Similarly, in the present case, the police were on routine patrol at 11:30 p.m. in a high crime area. They saw defendant and Padilla running toward them. No other people were in the alley. The officers stopped the car and got out. By this time, defendant and Padilla had already stopped right in front of the police car. The police had not asked the men to stop or to approach the car. When Sparks asked defendant why he was running, defendant replied that they just had been in a fight and were being chased.

Sparks also asked defendant his name, and defendant showed him a green card with his name on it. Sparks patted down defendant to determine whether he had any weapons, as standard procedure to protect himself. It was a cursory touching of defendant’s sides and legs, and Sparks felt no weapon. He does not recall whether he felt defendant’s back pocket. After about two minutes, the officers did not detain defendant and Padilla any longer. Neither defendant nor Padilla had refused to answer any of the officers’ questions.

The trial court could find, from the officers’ viewpoint, it was reasonable to stop the two men and ask why they were running down the alley that night. Innocent behavior can provide the basis for a reasonable suspicion inquiry, since in making a determination of whether a suspicion exists, the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts. (United States v. Sokolow (1989), 490 U.S. 1, 10, 104 L. Ed. 2d 1, 12, 109 S. Ct. 1581, 1587, citing Illinois v. Gates (1983), 462 U.S. 213, 243 n.13, 76 L. Ed. 2d 527, 552 n.13, 103 S. Ct. 2317, 2335 n.13.) Here, it was reasonable for the officers to attach the requisite level of suspicion to the noncriminal acts of defendant. The initial stop was proper. The cursory pat down was a minimal intrusion justified by defendant’s own admission that he had just been in a fight.

Turning to whether there was probable cause for the arrest of defendant, the trial court had before it the information that at that time the police officers knew a crime had been committed. They had seen the victim crawling in the alley. His shirt was bloodstained, and he had a large abdominal wound. An eyewitness indicated to the police that a black male and an Hispanic male had been fighting with the victim. Just minutes earlier, the police officers had stopped defendant and his Hispanic companion running down a nearby alley, admittedly running away from a fight.

Probable cause exists in the objective sense if the circumstances known by the arresting officer are sufficient to warrant a person of reasonable caution in believing that an offense has been committed by the person arrested. (People v. Moody (1983), 94 Ill. 2d 1, 445 N.E.2d 275.) In the present case, there was clearly sufficient evidence to support a finding of probable cause to arrest defendant. The trial court properly denied defendant’s motion to quash his arrest and suppress the evidence.

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

Judgment affirmed.

EGAN and RAKOWSKI, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY FORD, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0061
    Opinion filed March 16, 1990.

      E. Steven Yonover, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a trial without a jury, defendant, Larry Ford, was found guilty of delivery of a controlled substance and was sentenced to a term of four years’ imprisonment. Defendant appeals, contending that the police officer’s identification testimony lacked credibility and thus the State failed to prove defendant guilty beyond a reasonable doubt.

Officer William Rogers testified that on December 9, 1986, he approached a third-floor apartment in a building in Chicago. He observed defendant leaving the apartment. Another man, Carl McMahon, called from the apartment door, asking “Larry” if he planned to return. Rogers testified that defendant turned to Rogers and asked if he “was there to buy cocaine.” Rogers asked for one bag of cocaine and received a bag of white powder from McMahon after defendant left. In his report, however, Rogers stated that he asked for and received heroin. Rogers corrected his testimony on cross-examination, explaining that he was confused because he had testified about cocaine at two other trials earlier that day. He in fact received a bag of heroin. Rogers testified that defendant instructed McMahon to sell Rogers the bag and departed. Rogers bought $20 worth, and then joined the surveillance team, Officers Cronin and Drodz. In his initial report, Rogers identified defendant as being 38 years old, 5 feet 9 inches tall, 165 pounds, with brown eyes and black hair, and having a thick mustache and a medium complexion. He wore a waist-length dark coat and dark pants. Rogers testified he knew defendant’s name because the “surveillance officer had his name from the information, and then from there, what is known as an TR’ number was obtained and a photo.” Within one week of observing defendant, Rogers identified defendant’s photograph at the police station.

In December 1987, defendant was arrested. He was not arrested earlier in order to protect Rogers’ undercover status until the conclusion of the particular narcotics investigation in which he was involved. If defendant and McMahon were arrested at the time the drugs were purchased, the “on-going investigation would end at that point, it would not be a continuing investigation.” Several days after Rogers observed defendant, however, McMahon was arrested by Cronin and Drodz at the apartment in question during a narcotics raid. Rogers did not participate in order to protect his undercover status.

Constance Briel, a forensic chemist expert for the police department, testified that the package inventoried by Rogers contained .29 grams of heroin.

Defendant testified that in December 1986, he was 31 years old, 5 feet 7 inches tall, weighed 140 pounds, and had a mustache. His face was severely scarred on the left side, and he wore a bandage and nylon skull cap to cover the scars. In the winter, he wore a winter coat. He denied being at the apartment in question on December 9, 1986, and denied having ever seen Rogers. He knew people in that building, knew the McMahon family, and lived one block from the apartment building. He had lived in the area all his life. Defendant knew Cronin and Drodz from a 1973 arrest.

Office Cronin testified for the defense that, at a grand jury hearing, he stated that on December 6, 1986, Rogers returned to the surveillance team and reported that he knocked on the door, McMahon answered, and Rogers bought the heroin. Cronin testified at trial, however, that he did not believe Rogers had reported knocking at the door.

Defendant contends that he was not proved guilty beyond a reasonable doubt. In a bench trial, it is for the trial court to determine the witnesses’ credibility, weigh the evidence and draw reasonable inferences therefrom, and resolve any conflicts in the evidence. While a single witness’ identification of the accused is sufficient to sustain a conviction, an identification will not be deemed sufficient if it is vague or doubtful. (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153.) The trial court’s judgment will not be set aside on review unless the evidence is so unsatisfactory, improbable or implausible as to raise a reasonable doubt as to defendant’s guilt. People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355; People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649.

In People v. Slim, (1989), 127 Ill. 2d 302, 537 N.E.2d 317, our supreme court set forth five factors used for evaluation of identification evidence, as announced in Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375.

The first factor is the opportunity the witness had to view the criminal at the time of the crime. Rogers had sufficient opportunity, in the third-floor apartment building hallway, to view defendant at the time of the crime.

The second factor is the witness’ degree of attention. Here, the trier of fact could reasonably assume Rogers’ degree of attention was high due to the fact that he was an undercover police officer buying narcotics.

The third factor is the accuracy of the witness’ prior description of the criminal. Defendant’s main complaint regarding the accuracy of the witness’ prior description is Rogers’ failure to note defendant’s scarring on the left side of his face. Defendant testified that he was in a car accident in 1982 and it resulted in severe scarring on the entire left side of his face and body. As a result, ever since the accident, including December 1986, he has worn a bandage on the left side of his face and a nylon skull cap. It is difficult to imagine how Rogers could miss seeing the scarring or bandage. This is not a case, for example, involving the omission of a minute scar. See, e.g., People v. Nims (1986), 156 Ill. App. 3d 115, 505 N.E.2d 670.

The trial court stated that defendant testified he attempted to conceal the scarring, and that he apparently had been successful. However, the police report fails even to mention the skull cap and bandage covering the side of his face. Moreover, the court’s comment that “maybe he was wearing a big hat” has absolutely no basis in the evidence. The court itself noted that defendant testified he “ha[d] always worn” the skull cap.

Considered along with the failure to mention the severe scarring are the discrepancies in the remainder of the description. Rogers reported that defendant was a male black, 38 years old, 5 feet 9 inches tall, 165 pounds, with brown eyes, black hair, a thick mustache and a medium complexion. Defendant was 31 years old, 5 feet 7 inches tall, 140 pounds, with dark hair and a mustache. While the height and weight difference would carry little weight standing alone, we believe it must be given some weight in light of the other identification problems. Rogers described only a waist-length dark coat and dark pants, which certainly is not distinctive, and thus offers little corroboration that it was defendant whom Rogers saw. In addition, the photograph Rogers purportedly identified one week after the drug purchase was never introduced into evidence, and thus it is impossible to know whether it was of defendant, or was an accurate depiction of defendant in December 1986, or matched Rogers’ description of the man he observed.

The fourth factor used to assess identification testimony is the level of certainty demonstrated by the witness at the identification confrontation. The identifying witness here, a veteran police officer, expressed certainty and demonstrated no doubts when he made the identification of defendant at trial. There is no way of knowing, however, if he expressed the same certainty when he described the man he saw with McMahon to Cronin and Drodz, who knew defendant, or when he purportedly identified defendant’s photograph a week after the drug purchase. There is no police report even mentioning defendant’s name. Neither Rogers nor Cronin offered more than the sketchiest of information regarding how defendant’s name was ever identified. Rogers simply said that “[t]he surveillance officer had his name from the information, and then from there, what is known as an TR’ number was obtained and a photo.”

The fifth factor is the length of time between the crime and the identification confrontation. Here, the trial court relied on the fact that only a week passed between the time Rogers observed defendant and identified his photograph. The record contains no clear information about how that identification came about, and there is nothing to that effect in the police report. In fact, it was over a year before defendant was arrested. Rogers explained at trial that he was working undercover, and arrests were not made at the time an accused was identified. Instead, the arrest was delayed until the conclusion of the investigation. This explanation makes no sense. McMahon was arrested three days after Rogers bought the heroin. The State merely offered the explanation that McMahon was present during the December 12, 1986, drug raid, while defendant was not present. This fails to explain how Rogers’ undercover identity was protected by delaying defendant’s arrest, but not delaying McMahon’s arrest or the drug raid of the apartment in question. Because neither defendant’s name nor the photo identification was ever included in any written report, it was not until a year later that anything written even mentioned that defendant had been involved in the December 9,1986, incident.

Rogers’ credibility suffers for several other reasons, when all the factors are viewed together. Rogers testified throughout direct examination with no effort by the State to correct him, that he asked for cocaine from defendant and received a bag of white powder. It was not until cross-examination, when confronted with his police report which stated he bought heroin, that Rogers agreed it had been heroin, not cocaine. While Rogers explained that he was testifying that day in two other trials involving cocaine, the discrepancy added to the undermining of his credibility.

Moreover, there was some discrepancy between Rogers’ testimony at trial and Officer Cronin’s testimony before a grand jury, when he said Rogers reported that McMahon answered when Rogers knocked on the apartment door. At trial, Rogers testified that when he arrived at the apartment, McMahon was already standing at the door with defendant, who was leaving the apartment and who approached Rogers and asked if he was going to buy drugs. Rogers testified at trial that Cronin’s grand jury testimony was wrong. Cronin testified at trial that he had in fact given that answer to the grand jury.

Defendant also correctly points out that no one else saw him near the apartment building on that day, although Cronin observed Rogers entering and exiting the building, and that Rogers testified that the apartment faced west while his police report stated it faced east.

We would not reverse the conviction based on any single factor discussed here. However, when all the weaknesses and discrepancies are viewed together, the identification testimony suffers enough that we must conclude it is vague and doubtful. Consequently, we hold that the identification proof was so unsatisfactory, improbable and implausible as to justify a reasonable doubt as to defendant’s guilt.

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

Judgment reversed.

LaPORTA, P.J., and EGAN, J., concur.


text:
    RICKY WITT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Chicago Transit Authority, Appellee).
    First District (Industrial Commission Division)
    No. 1—89—0715WC
    Opinion filed March 16, 1990.

      Reibman, Hoffman & Baum, of Chicago (Lewis P. Gaines, of counsel), for appellant.
    Vincent J. Getzendanner, Ltd., of Chicago (Vincent J. Getzendanner and David A. Upah, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Ricky Witt, sought worker’s compensation benefits after he suffered back injuries allegedly as a result of three separate accidents which occurred over a three-year period while petitioner worked for respondent, the Chicago Transit Authority (CTA). While the arbitrator wrote three separate decisions, the Industrial Commission (Commission), the trial court and this court have considered the three claims together.

Petitioner began working for the CTA in 1972. At the time of the accidents he was a supervisor. It is undisputed that he is now permanently disabled due to continued back pain and weakness and atrophy of the lower right leg.

The first accident occurred on August 11, 1980 (81—WC—48712), when the 33-year-old petitioner’s CTA patrol car was rear-ended while stopped at a red light. The parties stipulated to the occurrence of the accident. Petitioner was hospitalized and received conservative treatment for back pain. He returned to work on December 16, 1980, without restrictions. An arbitrator awarded $268 per week for 202/? weeks as temporary total disability benefits. The Commission affirmed the arbitrator’s decision, and the circuit court confirmed that decision. On appeal, the issue is whether the Commission was required to find petitioner’s back injury resulting from this accident was completely resolved by December 1980, or was unresolved and aggravated a year or two later by the second or third accidents, thereby causing a permanent disability.

The alleged second accident occurred on August 21, 1981 (81—WC—51638), when petitioner lifted a light box at work and felt severe pain in his lower back and right leg. He was hospitalized for treatment on August 22, 1981. On September 10, . 1981, Dr. Richard Gorski performed a lumbar laminectomy at L4-L5, bilaterally. Petitioner remained off work, and on January 15, 1982, he was again hospitalized. Another laminectomy at L4-L5 and disc excision was performed. Petitioner returned to work on April 5, 1982. The arbitrator awarded no benefits, finding that petitioner failed to prove he sustained accidental injuries arising out of and in the course of his employment. The Commission affirmed the arbitrator’s decision, and the circuit court confirmed that decision. On appeal, petitioner contends the finding that this injury did not arise out of and in the course of his employment is against the manifest weight of the evidence. The question, then, is whether the Commission was required to find that any accident occurred, or whether the evidence supports its finding that any possible back injury and the two operations were unrelated to the employment.

The third accident occurred on April 28, 1982 (82—WC—32104), several weeks after he returned to work. Petitioner stepped in a pothole at work and experienced back and right leg pain. The parties stipulated to the occurrence of this accident. Petitioner was hospitalized and was treated with bed rest and physical therapy. On May 8, 1982, he was released from the hospital. On May 24, 1982, he returned to work without restrictions.

In January 1983, petitioner’s back began hurting. On January 21, he was hospitalized and X rays showed epidural fibrosis at L4-L5. Epidural fibrosis is the formation of scar tissue around the previously operated-on nerve roots where the two laminectomies had been performed. This is a chronic condition that can cause recurrent or permanent, radicular type pains. He received epidural injections and was released on February 3,1983.

Petitioner worked from February 18 to February 22, 1983. He did not work again until September 16, 1985.

In February, April and August 1983, he was hospitalized for conservative treatment of back pain.

In September 1983, petitioner was hospitalized at Mayo Clinic for treatment and tests. Dr. Gorski testified that he received a letter from Dr. David Wiebers, a neurologist at Mayo, finding petitioner had a chronic back and right lower extremity pain without any evidence of ongoing radiculopathy or myopathy. Dr. Wiebers recommended a conservative program, with physical therapy, a chemical dependency program, and treatment at a pain management center. No surgery was recommended.

On December 22, 1983, Dr. Gorski wrote that the original injury was causally connected to the first accident at work. The subsequent exacerbation at work was also causally connected to the current severe intractable pain condition. He found petitioner permanently and totally disabled.

On December 23, 1983, Dr. McCullough stated that petitioner was disabled as a result of continued low back pain and the atrophy and weakness of the right leg.

In January 1984, petitioner was hospitalized for conservative treatment of back pain.

On March 23, 1984, Dr. Audley Loughran examined petitioner at respondent’s request. Dr. Loughran stated that the weakness in the lower right leg was caused by the previous disc pathology.

The arbitrator awarded $348.28 per week for 34/? weeks as temporary total disability benefits, after finding the accident on April 28, 1982 had been, at most, a temporary aggravation of petitioner’s preexisting back condition and did not permanently aggravate that condition. The arbitrator found further that the permanent disability resulted from the two surgical procedures which were performed due to injuries not causally related to the August 1980 and June 1982 work-related accidents.

On December 27, 1984, the arbitrators filed the three decisions referred to above.

In February 1985, petitioner underwent his third and last operation, which consisted of the fusion of the affected portion of the back.

On July 18, 1985, Dr. Gorski testified in an evidence deposition that in the February 1985 surgery, he found large masses of scar tissue. Since then, petitioner had been essentially pain-free. Petitioner had developed a right hemiparesis, in which the right leg lost some of its neurological control of certain muscle groups. Essentially, it results in drop foot, where the foot tends to drag. “Some of that may have been due to the herniated disc, some of it may have been due in part to the surgery, some of it may have been due in part to the postoperative epidural fibrosis. A combination of events caused him to develop that foot drop.”

On September 16, 1985, petitioner returned to work, with various restrictions.

On November 7, 1985, the Commission heard the case, including petitioner’s testimony, and received the evidence deposition of Dr. Gorski, and other medical documentation. The case was continued.

On November 29, 1985, Dr. Loughran again examined petitioner. He found “no real neurological finding. He still has a drop foot deformity on the right lower extremity. I would think at this time that this is a permanent finding and therefore I would not expect much return of the strength of his right lower extremity.” He noted that the fusion surgery was “progressing nicely.” He also noted that petitioner complained of lower back pain with weather changes and after working all day.

On February 3, 1988, the Commission affirmed the arbitrator’s decision and adopted all findings in the three cases. It found that since petitioner failed to prove a causal relationship between the April 28, 1982, accident and his condition of ill-being, or that he sustained any permanent disability as a result of that accident, his claims for permanent disability benefits failed.

On February 23, 1989, the circuit court confirmed that decision.

Petitioner’s argument on appeal focuses on showing that, contrary to the Commission’s findings, the second accident was compensable, and that one, two, or all three of the accidents, either combined or separately, caused his present permanent condition of ill-being.

The findings of the Commission on the questions of whether an accident occurred and whether a condition of ill-being is causally related to employment are not to be disturbed unless they are against the manifest weight of the evidence. (County of Cook v. Industrial Comm’n (1977), 68 Ill. 2d 24, 368 N.E.2d 1292.) Where there is sufficient support in the evidence, a reviewing court may not substitute its judgment for the Commission’s on questions of credibility, the weight to be given medical and other evidence, and the reasonable inferences drawn therefrom. Castaneda v. Industrial Comm’n (1983), 97 Ill. 2d 338, 454 N.E.2d 632.

In regard to the first accident, of August 11, 1980, the only dispute is whether or not it was shown to be an unresolved injury which was aggravated, and thus causally connected to the subsequent accidents.

In the first accident, petitioner was stopped at a red light in his patrol car when it was rear-ended. The car sustained only $222 in damages. He was hospitalized for 10 days, and treated for low back and right leg pain, and for unrelated kidney and prostate problems. On October 8, 1980, he was hospitalized for numerous tests related to his back. All test results were normal. He was hospitalized by still another doctor on November 19 until December 9, 1980, where he received bed rest. Most significant was the fact that petitioner was asymptomatic as of December 9, 1980. Dr. Henry Acuna, the treating orthopedic surgeon, wrote on December 13, 1980: “He was completely asymptomatic at the time of his discharge.” According to petitioner, he received no further treatment and took no medication. He returned to work on December 16, 1980, without restriction. He continued to work full time, performing his normal duties, until the second alleged accident occurred, eight months later, in August 1981.

Dr. Gorski, the treating physician beginning in September 1981, traced the permanent disability back to this first accident. He testified that petitioner’s being discharged in 1980 as asymptomatic could mean he did “not have a fully ruptured disc initially, and he may have responded like a lot of disks do to conservative treatment, and sometimes they get re-exacerbations. So, that picture is not necessarily completely erroneous. It may have occurred that way.” However, the Commission could rely upon the fact that petitioner received no treatment and was taking no medication after he returned to work in December 1980. It was not until August 1981 that he returned for treatment of any kind.

The Commission was entitled to find there was insufficient evidence to establish the existence of an injury which nearly a year later would require surgery, ultimately causing scar tissue and permanent disability. The Commission was not required to give weight to petitioner’s attempts much later to refer back to this first accident.

In regard to the alleged second accident on August 21, 1981, the issue is whether a work-related accident occurred. Petitioner testified that at 7:30 p.m., he was lifting a one-to-two pound box from his patrol car when he felt pain in his low back and right leg. His boss suggested he “go have a cup of coffee and see if you can shake it off.” He worked several more hours and went home at the end of his shift at 11:30 p.m. He then was admitted to a hospital where his wife worked. A myelogram revealed a herniated disc.

On September 10, 1981, Dr. Gorski performed a lumbar laminectomy at L4-L5 bilaterally. On January 15, 1982, Dr. Gorski hospitalized petitioner for back and right leg pain. Dr. Gorski performed a disc excision and lumbar laminectomy at L4-L5. Petitioner returned to work on April 5,1982.

Although it is not included in the record on appeal, the parties apparently agree that the August 1981 hospital record indicates petitioner reported having suffered “recurrent episodes of lower back pain with symptoms in his right lower extremity *** since an auto accident, approximately one year ago.” In addition, “[s]ix days ago, in bending down to pick something up, his back gave out on him, and he could not arise to a vertical position. In spite of resting at home, he has not had relief.” The arbitrator concluded that there was “nothing in the history to indicate that petitioner injured himself on the job,” and the Commission adopted that finding.

The Commission could reasonably assign little weight to the history petitioner gave. He testified that after the first accident he returned to work on December 16, 1980, and received no further treatment. His doctor reported he was completely asymptomatic. Thus, his report of “recurrent episodes of lower back pain *** since an auto accident” in August 1980 has no support in the record. Moreover, the reference to bending down “six days ago” and “resting at home” does not coincide with petitioner’s testimony that he lifted the box, experienced pain, drove home a few hours later, and immediately went to the hospital.

In addition, the history referred to his picking up “something,” but fails to include any mention of the workplace, his work duties, or August 21. (See Lyons v. Industrial Comm’n (1983), 96 Ill. 2d 198, 449 N.E.2d 1323; Caterpillar Tractor Co. v. Industrial Comm’n (1980), 83 Ill. 2d 213, 414 N.E.2d 740.) Moreover, the described box weighed only one or two pounds, and measured only the size of a large dictionary. Petitioner merely transferred it from one car to another car.

Petitioner argues that the man he was working with when he moved the box, and the boss to whom he later spoke who recommended he have some coffee, were witnesses “in the control of the CTA” and yet they failed to testify, thus leaving his own testimony “uncontradicted.” Petitioner bears the burden of establishing that a compensable accident occurred. (Deere & Co. v. Industrial Comm’n (1970), 47 Ill. 2d 144, 265 N.E.2d 129.) The employer need not present any evidence. The Commission was not required to believe petitioner’s testimony standing alone, particularly in view of the credibility problems petitioner presented in regard to his prior medical history.

Petitioner contends that the Commission virtually admitted that the second accident occurred when it found respondent was entitied to a credit of $8,524.80 for prior payment of SI5/? weeks of temporary total disability. Petitioner argues: “The Commission, in effect, allowed credit *** in the accident of August 21, 1981, in which the arbitrator had found that no accident in fact had occurred. This is inconsistent.” We do not agree with petitioner’s characterization of the credit stipulations, and, in any event, we are not bound by stipulations as to questions of law. (See American Pharmaseal v. TEC Systems (1987), 162 Ill. App. 3d 351, 515 N.E.2d 432.) Moreover, even if respondent voluntarily paid TTD benefits, it would in no way be the equivalent of an admission.

Since the first accident was resolved within a few months, and no second accident was proved, we turn to the final accident as the only possible work-related cause of petitioner’s present condition of ill-being.

Thus, in regard to the final accident, on April 28, 1982, the issue is whether it caused the permanent disability from which petitioner now suffers. Petitioner had returned to work on April 5, 1982. On April 28, 1982, he stepped into a pothole and experienced low back and right leg pain. On the following day he was admitted to the hospital and treated with medication and bed rest. He was released on May 8. On May 24, 1982, petitioner returned to his usual work duties, without restriction. He received no further treatment until January 1983, when his back “started hurting.”

In regard to the August 1980 accident, and the laminectomies performed in September 1981 and January 1982, Dr. Gorski testified that a ruptured disc could manifest pain within hours, or could be of a gradual onset, “perhaps over a period of weeks.” However, there could be “an initial injury and a weakening of the casing around the disc with subsequently slow extravasation of disc material with slowly increasing symptoms and pain. So, it can follow different pictures.”

The Commission could discount Dr. Gorski’s opinion due to the fact that what little medical history Dr. Gorski knew was learned from petitioner. The Commission could find it very significant that Dr. Gorski had seen no medical records prior to August 1980. Dr. Gorski was not aware of any similar problems prior to the August 1980 car accident.

Respondent places considerable weight on its argument that petitioner blatantly lied to the arbitrator and kept Dr. Gorski in the dark about his prior medical history. Respondent established this concealment during its cross-examination of petitioner.

Petitioner testified on direct examination that prior to the 1980 accident, he had only experienced a few illnesses or accidents. In 1967 he had an appendectomy. In 1969, he was in a minor car accident and he strained his neck and was hospitalized for a week or two. In 1973 or 1975, he had a prostate infection.

On cross-examination, it was revealed, that petitioner had been hospitalized at least 10 times prior to his first claim. Almost every hospitalization included complaints of back pain. Petitioner maintained in his responses to those questions that the backaches before August 21, 1980, were different than those following the work accidents. “It wasn’t actually back pain, sir, it was called prostatitis, and you get a backache from it, but it doesn’t radiate down .your legs or anything like that. Petitioner denied being addicted to Demerol.

Petitioner “vaguely” remembered that in September 1976, a one-week hospitalization involved a prostate infection. He complained of a backache. He did not know what pain medication was given.

He recalled a December 1976 hospitalization involving “a black speck in the urin[ary] tract, and it was removed.” He complained of aching and burning “near his butt,” and not a radiating back pain. He believed they did surgery to scrape the prostate area. He did not recall what type of pain medication he received.

Petitioner also recalled a February 1978 11-day hospitalization following a fall on ice. An orthopedic surgeon was called - in, and petitioner related a four-year history of pain near his tailbone and “hurting all the time around my testicles.” Petitioner denied giving a history of back problems. He was treated with pain medication.

He initially did not recall a September 1978 six-day hospitalization, but then stated it was probably to scrape the prostate again. He had complained of backaches which centered near his tailbone.

He believed an October 1979, 10-day hospitalization involved a problem with the urinary tract. If the records showed a lumosacral sprain, they were incorrect. An EMG was done, but it did not relate to a nerve test on his legs.

In January 1980, a five-day hospitalization involved chest pains and anxiety. He was discharged on February 1, 1980, and readmitted on February 2 by another doctor. He believed the readmission was done at the recommendation of the first doctor. He believed they discovered a hernia at that time.

In February 1980, there was also a one-night hospitalization for a test involving sticking “a tube down my throat.” From February 21 through March 6, 1980, and from March 6 through March 12, 1980, two hospitalizations involved chest pains and urinary tract problems.

Petitioner recalled an early August 1980 hospitalization which lasted two or three days, and involved a “backache,” which was different from the type of back pain suffered after the accidents. He received pain medication, “something like an aspirin or something.”

Ten days later, on August 11, 1980, the first of the alleged work-related accidents involving his back occurred.

In sum, it is notable that when asked about his prior illnesses, petitioner omitted almost all of those listed above, including the hospitalization for a backache 10 days before his first accident. During cross-examination, petitioner admitted to the numerous hospitalizations, although he characterized the backaches as prostate or urinary tract related and not related to any disc problems.

Thus, petitioner’s credibility and the foundation of Dr. Gorski’s opinion on causation suffered considerably from this testimony regarding medical treatment of back complaints. Dr. Gorski stated that if there had been complaints of back pain prior to August 1980, he would consider it. It could affect his opinion on the original cause depending “on whatever that data was and what the complaints were, the nature of the complaints, physical findings, et cetera.”

Because Dr. Gorski did not have this information, petitioner’s attorney at the deposition briefly described to him a history of a 1969 neck injury, prostate and kidney infections, backaches, and the 10 hospitalizations. He read petitioner’s testimony describing the pain as an aching near his tailbone.

In regard to that previous history of prostate and kidney problems, Dr. Gorski testified that he was not an expert in those areas, but that they could cause mimic backaches. He stated that the kind of pain petitioner described, in the buttocks, groin, and sometimes even in the lower back, could be caused by a swollen prostate or kidney problem. The cause of the discomfort was easily distinguished from a back problem. Dr. Gorski could not know, however, whether petitioner suffered for a decade previous to the first accident from prostate infections, from a deteriorating back problem, or from a gradually increasing dependency on narcotic pain medication.

In view of Dr. Gorski’s lack of knowledge of over 10 years of relevant medical records, the Commission was not required to adopt his opinion on causation.

To summarize, we hold that the commission was entitled to find: The injuries resulting from the August 1980 work-related accident were resolved within a few months. There was no work-related accident in August 1981. The surgical operations on the herniated disc in September 1981 and January 1982 were unrelated to the employment. The April 1982 work-related accident was minor and required no surgery. The 1985 fusion surgery was not work related because it corrected the residual effects of the two previous operations, which were not work related. Thus, the evidence permitted the Commission to conclude that the permanent disability of drop foot or continued back pain is not related to the employment.

For these reasons, the judgment of the circuit court of Cook County, confirming the decision of the Industrial Commission, is affirmed.

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.