author: JUSTICE GREEN

text:
    APCON CORPORATION, as Joint Venturer, et al., Plaintiffs-Appellants, v. DANA TRUCKING, INC., Defendant (Northland Insurance Company, Defendant-Appellee).
    Fourth District
    No. 4—93—0239
    Opinion filed October 28, 1993.
    Michael J. Tague, of Flynn, Palmer & Tague, of Champaign, for appellants.
    James K. Horstman, David E. Neumeister, Barry L. Kroll, and Lloyd E. Williams, Jr., all of Williams & Montgomery, of Chicago, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiffs Apcon Corporation (Apcon) and its liability insurer Bituminous Casualty Corporation filed this action for declaratory judgment on February 27, 1992, in the circuit court of Champaign County. Plaintiffs claimed that Apcon was entitled to coverage under a liability insurance policy issued to defendant Dana Trucking, Inc. (Dana), by defendant Northland Insurance Company (North-land) with respect to a wrongful death action filed by the estate of Ellen Schulze. The dispute turned upon the question of whether Apcon’s actions at the time of decedent’s injury constituted “use” of one of Dana’s vehicles within the meaning of the liability policy.

On February 26, 1993, following a hearing on the parties’ cross-motions for summary judgment, the trial court granted Northland a summary judgment, finding as a matter of law Northland did not owe a duty to defend or indemnify Apcon in the underlying case, because Apcon was not an “insured” under the policy.

Plaintiffs maintain on appeal the trial court erred in concluding that Apcon was not a permissive user of the trucking company’s vehicles when an employee of Apcon, acting as a “spotter,” directed— through the use of hand signals — the backing up of a truck which was leased to Dana Trucking, so that the truck struck and injured decedent Ellen Schulze. We affirm.

In the underlying third-amended complaint of the wrongful death action against Apcon, Dana Trucking and Joseph Bermingham, who was the driver of the truck, Frank Schulze, administrator of the estate of Ellen Schulze, deceased, alleged in part as follows: (1) on September 15, 1989, Ellen was working as an employee of the Illinois Department of Transportation at a construction site in Champaign County; (2) Apcon was in charge of the erection, construction and paving of a road at that site; (3) on that date, a truck operated by Bermingham was backing into the construction site to deliver materials and struck Ellen, causing her death; (4) Bermingham was an employee or agent .of Dana Trucking, which was a subcontractor to Apcon; (5) at the time of the accident, Apcon had a contractual right to direct and control the vehicles of subcontractors and suppliers of equipment and materials as they entered the construction site; and (6) an employee of Apcon, identified as a spotter, directed and controlled the operation of the truck driven by Bermingham when it struck and injured the decedent.

The complaint alleged Apcon was negligent in one or more of the following respects:

“(a) directed and controlled the movement of the vehicle driven by defendant BERMINGHAM so as to strike and injure decedent, ELLEN MARIE SCHULZE;
(b) failed to warn the driver of the truck that workers were in the area, including plaintiff’s decedent;
(c) failed to direct the driver of the truck as he backed into the construction site to avoid plaintiff’s decedent;
(d) failed to require motorized vehicles at the construction site to have audible warnings when being backed into the construction site;
(e) failed to stop the unsafe practice of Joseph E. Bermingham of backing into the construction site without audible warning signs.”

At the time of the incident, Dana Trucking was insured by a liability insurance policy issued by Northland, which provided in part:

“PART IV - LIABILITY
A. WE WILL PAY
1. We will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership maintenance or use of a covered auto.
2. We have the right and duty to defend any suit asking for these damages.
* * *
D. WHO IS INSURED.
1. You are an insured for any covered auto.
2. Anyone else is an insured while using with your permission a covered auto you own, hire or borrow ***.”

In the complaint for declaratory judgment, plaintiffs alleged the truck which struck the decedent had been furnished by Dana Trucking to Apcon pursuant to a master subcontract agreement. In that agreement, Apcon was identified as “Contractor” and Dana Trucking as “Subcontractor.” The agreement provided as follows:

“3. Subcontractor Status.
The relationship of Subcontractor to Contractor shall be that of an independent contractor and nothing herein shall be construed as creating an employer/employee or principal/ agent relationship between the parties. Subcontractor shall be solely responsible for the equipment, means, methods, techniques, and safety precautions used to perform the work or any part thereof, and for the furnishing of and payment for all costs, expenses, and taxes incurred to perform the work on any part thereof.”

The agreement also provided that Dana Trucking was to supply insurance coverage for Apcon to cover claims for personal injury which might arise from operations under the subcontract.

Apcon admitted in the complaint for declaratory judgment it was insured by a liability policy issued by Bituminous Casualty with liability limits of $1 million per occurrence. Apcon contended, however, it was also entitled to coverage under the Northland policy issued to Dana Trucking pursuant to the clause stating Northland would provide insurance to anyone “using” a covered auto with permission of Dana Trucking.

Appended to Apcon’s motion for summary judgment was the deposition of Bermingham. Bermingham stated when he was on the construction site, there was always a spotter to direct him when he backed his truck up, and an Apcon foreman, Mike Eastin, told him what to do. He said the spotter would use hand signals to communicate.

Wardell Briggs, an employee of Apcon, testified in a deposition that he often assisted trucks backing onto the construction site. He denied, however, that he was present or that he participated in any way in the backing operations of the truck at the time of the accident.

The circuit court, in ruling in favor of Northland, specifically found that no genuine issue of material fact existed, and Northland was entitled to judgment as a matter of law. The court noted Apcon and Bituminous had failed to present any authority to justify an extension of the “permissive user” concept to the circumstances alleged in the Schulze complaint. The court determined that when the parties entered into the policy contract, they did not contemplate the definition of “user” to include a spotter working for a road contractor, who is guiding an independently contracted truck delivering materials to a jobsite. The court then entered a finding pursuant to Supreme Court Rule 304(a). 134 Ill. 2d R. 304(a).

In Illinois, an insurer’s duty to defend an action against an insured is determined by the allegations of the underlying complaint. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 393, 442 N.E.2d 245, 247.) Plaintiffs maintain the complaint against the insured should be liberally construed, with any doubts as to coverage to be resolved in the insured’s favor. (Western Casualty & Surety Co. v. Adams County (1989), 179 Ill. App. 3d 752, 757, 534 N.E.2d 1066, 1068.) To do so would require a finding that Apcon is an “insured,” because it was “using” the truck with permission of the insured.

Plaintiffs argue that no basis exists for a conclusion that only one person at a time can be “using” a vehicle. They cite Orrill v. Garrett (1968), 100 Ill. App. 2d 194, 197, 241 N.E.2d 1, 3, where this court indicated “the word ‘use’ is much broader than the term ‘operate’ or ‘drive.’ ” This court noted, however, that the implied permission to use a vehicle, such as to bring into effect the clause of a liability insurance policy covering persons using the vehicle with permission of the owner, involves an inference or circumstances arising from a course of conduct or relationship between the parties in which there is a mutual acquiescence or lack of objection under circumstances signifying permission. This court stated:

“We assume there was an implied permission for Garrett to use the truck by leaning against it if he were tired or rest his foot on the bumper while he tied his shoe. It is submitted that such use does not mushroom into a permission to operate the truck.” Orrill, 100 Ill. App. 2d at 198, 241 N.E.2d at 4.

Plaintiffs also cite Thomas v. Aetna Casualty & Surety Co. (1975), 28 Ill. App. 3d 363, 328 N.E.2d 374, where this court examined the question of whether the actions of Thomas and O’Brien, in mounting the front fender of a car driven by Campbell, were a “use” of the Campbell car pursuant to a liability insurance policy. In holding that this conduct did not constitute such “use,” this court indicated that a number of factors determine whether “use” brings about coverage as an additional insured. Among those factors was the “[cjontrol of operation.” Thomas, 28 Ill. App. 3d at 367, 328 N.E.2d at 377.

Plaintiffs maintain that the allegations of the Schulze complaint indicate Apcon was in control of the Dana truck in two ways: first, Apcon could determine whether the truck could even be present on the construction site; and second, it determined what materials were to be delivered, where those materials would be loaded, and where they would be unloaded. Apcon also claims that the spotter’s use of hand signals to the backing truck was a way of controlling the vehicle. Apcon contends Briggs, as the spotter, and Bermingham, as the driver, were jointly operating or jointly driving at the time of the accident. Finally, plaintiffs argue Apcon was “using” the Dana truck and its driver in the sense that it was employing them to move concrete pursuant to the master subcontract agreement, regardless of whether anyone was spotting.

Plaintiffs maintain they are entitled to coverage under Dana’s Northland policy, because plaintiffs were liable for acts and omissions of Dana due to plaintiffs’ ordering or directing the acts that caused the harm. Dvorak v. Primus Corp. (1988), 168 Ill. App. 3d 625, 633, 522 N.E.2d 881, 886.

Plaintiffs also cite cases from other jurisdictions in support of their contention that a spotter who uses hand signals to guide the driver of a truck is “using” the vehicle, such that he would be an additional insured.

For example, Liberty Mutual Insurance Co. v. Steenberg Construction Co. (8th Cir. 1955), 225 F.2d 294, was a case construing Minnesota law, where a general contractor was seeking indemnity from a subcontractor following a judgment in a personal injury action. The court determined that, in the absence of any controlling local criteria, liability insurance policy language similar to that in the instant case provided coverage to a general contractor who directed the movements of a subcontractor’s truck, by supervising and signalling from the rear of the truck. The trial court held, in granting recovery against the subcontractor’s insurer, that the directing by the general contractor of the backward movement of the truck made the participation of the general contractor such an immediate part of the actual operating of the truck as to make the general contractor “a person ‘using the automobile’, or in any event a person ‘legally responsible for the use thereof’, within the language and coverage of the omnibus clause of the policy.” Steenberg, 225 F.2d at 296.

Similarly, in Woodrich Construction Co. v. Indemnity Insurance Co. (1958), 252 Minn. 86, 89 N.W.2d 412, the plaintiff insured (Woodrich) brought an action against three insurers to recover the amount it had paid in settlement of damages to a man injured when a subcontractor’s truck backed over him. In the underlying case, the jury awarded the injured plaintiff $80,000 against Woodrich only. The subcontractor and the driver of the truck were found to be not liable.

On appeal, the court noted that Woodrich assumed exclusive control over the truck the moment the truck entered into the congested area, because Woodrich employed the truck to carry out its own purpose of constructing a concrete pavement. (Woodrich, 252 Minn. at 93, 89 N.W.2d at 418.) The court determined Woodrich was “using” the motor vehicle by controlling or guiding its movement.

Contrary to plaintiffs’ assertion, however, because of the small number of cases that have raised this issue, there does not appear to be a clear minority/majority view on it.

In Wellman-Lord Engineers, Inc. v. Northwestern Mutual Insurance Co. (Fla. Dist. Ct. App. 1969), 222 So. 2d 436, in an action by a plaintiff for indemnification from subcontractor Redi-Mix Company’s liability insurance, the appellate court affirmed the trial court’s grant of a defendant’s motion for summary judgment. The court noted the sole question on appeal was whether the trial court erred in granting that defendant’s motion on the issue of liability as a matter of law.

The record in Wellman indicated plaintiff was a general contractor in the process of constructing an underground vault. On the date in question, John Atkins, an employee of plaintiff, was in charge of directing the unloading of concrete trucks, and he directed a truck driven by Joseph Gates, an employee of Redi-Mix, alongside the pit. Gates had been instructed by Redi-Mix to rely upon an employee of the plaintiff for directions in backing the truck alongside the pit prior to unloading. Atkins negligently directed Gates to back the truck too close to the edge of the pit, and the truck fell in, damaging the truck and injuring Gates.

Redi-Mix had a liability insurance policy which defined the word “insured” in virtually the same language as that used in the North-land policy in question here. Plaintiff contended it was “using” Redi-Mix’s truck within the meaning of the policy when the truck fell into the pit. Plaintiff cited the previously discussed case of Woodrich.

The Wellman opinion noted that although Woodrich supported the plaintiff’s contention, the weight of authority and better view was to the contrary. No Florida case on this point was cited or found. The court held that merely giving directions for a movant is not such “use” of the truck as to bring the contract within the truck’s liability insurance coverage and concluded the defendant was entitled to judgment on the issue as a matter of law. Wellman, 222 So. 2d at 438.

We conclude Apeon was not a user of the Dana vehicle within the meaning of the Northland policy. The Illinois cases of Or-rill and Thomas do not require that the term “use” be extended as plaintiffs suggest. No Illinois case has been cited or found in which a court has determined a general contractor’s directing the movements of a subcontractor’s truck through use of hand signals is a “use” of the truck under a policy with language such as that here. If that interpretation were to be given to the policy, would not a store employee’s directing a delivery truck where to park by pointing, or a police officer’s directing a motorist where to go by hand signals, also be a “use” of a vehicle within the meaning of similar policies? We reject the reasoning of Steenberg and Woodrich and conclude that Wellman was properly decided.

We conclude that in order to constitute a “use” or to be a “user” under the policy, such as to be an insured, one must be in operation of the vehicle.

Finally, any conflict between the testimony of Briggs and Bermingham as shown by their depositions presented with the motion for summary judgment does not create a question of fact such as to defeat a motion for summary judgment relating to a duty to defend. The trial court granted defendants’ motion for summary judgment, assuming Briggs was acting as a spotter and assisted Bermingham in the backward movement of the truck, on the basis that Briggs was not a “user” of the vehicle under the policy. We agree with the court’s conclusion.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    JEARL KESSINGER, JR., Special Adm’r of the Estate of Jearl Kessinger, Sr., Deceased, Plaintiff-Appellant, v. GREFCO, INC., et al., Defendants-Appellees.
    Fourth District
    No. 4—93—0183
    Argued August 24, 1993. —
    Opinion filed November 15, 1993.

      James Wylder (argued), of James Walker, Ltd., of Bloomington, for appellant.
    Edward D. D’Arcy, Jr. (argued), of Johnson & Bell, Ltd., of Chicago, for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Jearl Kessinger, Jr., special administrator of the estate of Jearl Kessinger, Sr. (deceased), appeals from an order of the circuit court of McLean County which dismissed the wrongful death action against defendant Grefco, Inc. (hereinafter defendant), with prejudice, finding a prior judgment obtained against it by the deceased during his lifetime barred the action. We affirm.

On October 28, 1992, plaintiff was appointed special administrator of the estate of Jearl Kessinger, Sr., his father. On that same day, plaintiff filed a two-count complaint, in his capacity as special administrator, against defendant and Cape Industries, PLC, and Joan Holtze.

Count I was a wrongful death count directed solely at defendant. It alleged defendant sold diatomaceous earth, an ingredient in pipe covering and cardboard insulation products, to decedent’s employer, Union Asbestos and Rubber Company, of Bloomington, Illinois, to which decedent was exposed between 1953 and 1967. It further alleged decedent contracted fibrosis of the lungs as a result of this exposure. It also contended defendant sold the diatomaceous earth knowing exposure to its particles would cause fibrosis of the lungs and knew the plant workers were unaware of the hazardous properties of the material. Defendant was cited as being negligent by (1) failing to warn decedent exposure to the diatomaceous earth caused fibrosis of the lungs and (2) failing to provide decedent with instructions as to safe methods of handling and processing the material. This negligence of defendant was alleged to have been the proximate cause of decedent’s death. Decedent died on October 28, 1990. As a result of decedent’s death, plaintiff alleged he and his brother, Tracy Kessinger, suffered pecuniary losses. Count II of the complaint was directed solely at Joan Holtze and Cape Industries, PLC.

In response to plaintiff’s complaint, defendant filed a motion for involuntary dismissal of plaintiff’s action, pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2— 619). Defendant contended in 1985 decedent brought a products liability action against it, seeking to recover damages for lung problems allegedly caused by exposure to the diatomaceous earth manufactured by it. A jury later found defendant liable to decedent in the amount of $275,000, which was reduced to $260,000 because of a prior settlement between decedent and Raymark Industries, Inc. On appeal, the Federal Court of Appeals entered judgment on the jury verdict in favor of decedent, finding the evidence supported a conclusion defendant breached its duty to warn decedent. (See Kessinger v. Grefco, Inc. (7th Cir. 1989), 875 F.2d 153.) The judgment was satisfied in 1989. Because decedent brought a suit against defendant during his lifetime for his injuries and received a verdict in his favor, defendant contended decedent would be precluded by principles of res judicata from bringing a similar suit had he lived, and, therefore, plaintiff was precluded from bringing the instant action.

By order dated February 11, 1993, the court granted defendant’s motion to dismiss, finding the previous judgment obtained by decedent against defendant for injuries sustained by his exposure to diatomaceous earth barred the wrongful death action based on the same exposure. It further made a finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), stating there was no just reason to delay enforcement or appeal of this order. This appeal followed.

The single issue presented is whether the judgment entered in the personal injury action against defendant in favor of decedent during his lifetime bars the instant wrongful death action.

At common law there was no cause of action to recover damages for the wrongful death of a decedent, and there is no such action presently, except as provided by the legislature. (Li Petri v. Turner Construction Co. (1967), 36 Ill. 2d 597, 600, 224 N.E.2d 841, 843; Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, 61, 382 N.E.2d 784, 785.) Also, at common law a decedent’s cause of action for negligence abated upon death. (National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 172, 383 N.E.2d 919, 923.) In 1853, the legislature enacted the Wrongful Death Act (Act) (see Ill. Rev. Stat. 1991, ch. 70, par. 0.01 et seq.) and created an independent cause of action for damages arising from decedent’s death caused by wrongful act, neglect or default. (Ill. Rev. Stat. 1991, ch. 70, par. 1; Fountas v. Breed (1983), 118 Ill. App. 3d 669, 672, 455 N.E.2d 200, 203.) Its purpose is to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to decedent’s death. (In re Estate of Finley (1992), 151 Ill. 2d 95, 101, 601 N.E.2d 699, 701.) Although the action is to be brought under the Act by and in the name of the personal representative of the deceased person, the legislative intent of the Act is that the claims brought are those of the individual beneficiaries. Mitchell v. United Asbestos Corp. (1981), 100 Ill. App. 3d 485, 502, 426 N.E.2d 350, 362; Wilbon, 73 Ill. 2d at 68, 382 N.E.2d at 788.

Because there was no cause of action for wrongful death at common law, the wrongful death statute is the source of determining who shall sue and under what conditions. (Forthenberry v. Franciscan Sisters Health Care Corp. (1987), 156 Ill. App. 3d 634, 636, 509 N.E.2d 166, 167; Johnson v. Village of Libertyville (1986), 150 Ill. App. 3d 971, 973, 502 N.E.2d 474, 476.) Under general rules of statutory construction, statutes in derogation of common law are to be strictly construed and nothing is to be read into them by intendment or implication. Summers v. Summers (1968), 40 Ill. 2d 338, 342, 239 N.E.2d 795, 798; see Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 220, 447 N.E.2d 394, 399.

The dispute at hand essentially involves the construction and interpretation of section 1 of the Act, which provides:

“Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 70, par. 1.

The language of this section has been construed in several Illinois Supreme Court cases. In Mooney v. City of Chicago (1909), 239 Ill. 414, 423, 88 N.E. 194, 196, the court stated:

“The statute gives a right unknown to the common law in cases where the wrongful act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages. One condition upon which the statutory liability depends is that the deceased had a right of recovery for the injuries at the time of his death, and there is no right in the administrator to maintain an action unless the deceased had the right to sue at the time of his death. There being but one cause of action there can be but one recovery, and if [the deceased] had released the cause of action the statute does not confer upon his administrator any right to sue.” (Emphasis added.)

In that case, the decedent had been injured on May 5, 1903. After the accident, he executed an instrument of release in satisfaction of the damages attributed to the accident, acknowledging full satisfaction of all claims against his employer on account of the injuries sustained, and received full payment prior to his dying on May 23, 1903. The supreme court maintained if decedent had released the cause of action, the administrator had no right to sue under the Act and held an instruction was erroneous in ignoring the affirmative defense of release.

Similarly, in Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 513-14, 30 N.E.2d 14, 18, the court stated:

“[T]he liability *** created [by section 1 of the Act] depends upon the condition that the deceased, at the time of his death, had he continued to live, would have had a right of action against the same person or persons for the injuries sustained. If the deceased had no right of action at the time of his death, the personal representative has none under the [Act]." (Emphasis added.)

In Biddy, plaintiff brought an action under the injuries act (Ill. Rev. Stat. 1939, ch. 70, pars. 1, 2 (predecessor to the Act)) and alleged defendants’ negligence in the operation of the airplane was the cause of decedent’s death. Prior to decedent’s death, he and his employer had elected to be bound by the Workmen’s Compensation Act of the State of Michigan. Under the Michigan act, the decedent, had he lived, could have elected whether to demand compensation from his employer or sue defendants in an action for damages. The court stated:

“Had he [(decedent)] survived the accident and made the election to accept compensation and later died from the injuries, the plaintiff could not now maintain this action, for at the time of her intestate’s death he had no cause of action against the defendants.” (Biddy, 374 Ill. at 514, 30 N.E.2d at 18.)

Decedent died, however, without having made an election. Since the decedent’s dependents chose to accept compensation from his employer under the Michigan law, the supreme court held they were bound by the provisions of that act, and the trial court erred in sustaining the plaintiff’s motion to strike the defendant’s defense setting up the Michigan statute. The court asserted plaintiff had no greater right to maintain an action against defendant under the act than decedent would have had if he lived. Biddy, 374 Ill. 2d at 515, 30 N.E.2d at 19.

Appellate courts have likewise interpreted section 1 of the Act as requiring decedent to have a viable cause of action at the time of death in order for the next of kin to maintain a death action. In Fountas, the court asserted:

“While the language of the statute would seem to be oriented toward the question [of] whether the defendant’s conduct gives rise to a cause of action, the statute has been interpreted to require that the decedent on the date of his death be able to bring a cause of action. [Citation.] Thus a release or accord and satisfaction by the deceased during his lifetime constitutes a defense to a wrongful death action. [Citation.] Likewise it has been held that if the deceased once had a claim but it was barred by limitations on or before the date of his death, a wrongful death action will not lie. [Citations.] But the controlling date is the date of his death. For example, the administrator may bring a wrongful death action even though the time to bring a survival action has expired. [Citation.]
*** It is of course true that if a person brings a suit during his lifetime which lawsuit is adjudicated either for or against plaintiff during his or her lifetime, plaintiff cannot again bring the same action and thus a wrongful death action will not lie. (Little v. Blue Goose Motor Coach Co. (1927), 244 Ill. App. 427.)” (Emphasis added.) Fountas, 118 Ill. App. 3d at 674, 455 N.E.2d at 204-05.

While these cases are factually distinguishable, it is clear there can be no recovery under the Act where decedent is barred from maintaining an action and recovering damages from defendant at the time of his death. (See also Lambert v. Village of Summit (1982), 104 Ill. App. 3d 1034, 1037, 433 N.E.2d 1016, 1019; Real v. Kim (1983), 112 Ill. App. 3d 427, 433, 445 N.E.2d 783, 787; Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 613, 131 N.E.2d 525, 528; Howlett v. Doglio (1949), 402 Ill. 311, 319, 83 N.E.2d 708, 713; Clarke v. Storchak (1943), 384 Ill. 564, 571-72, 52 N.E.2d 229, 234; Little v. Blue Goose Motor Coach Co. (1931), 346 Ill. 266, 271, 178 N.E. 496, 498.) Although the supreme court in Herget National Bank v. Berardi (1976), 64 Ill. 2d 467, 356 N.E.2d 529, rejected such a contention and appeared to resurrect the notion a wrongful death claim is separate from a survival action, the holding there should be limited to its unusual facts, i.e., the contemporaneous death of a husband and wife with the claim being asserted on behalf of the surviving children.

Decedent must have a viable cause of action at death, and the application of the principle is clearly exemplified in cases where the expiration of the limitations period during decedent’s life bars a later death action. (Malinowski v. Mullangi (1991), 223 Ill. App. 3d 1037, 586 N.E.2d 323 (held, where parent’s medical malpractice claim was barred before he died under statute of repose, based on passage of four years from the alleged negligence, wrongful death action was also barred); Real, 112 Ill. App. 3d at 432-34, 445 N.E.2d at 787-88 (an action under Act could not be maintained where, on date of his death, patient would have been barred from bringing action on acts which reportedly caused his death); Lambert, 104 Ill. App. 3d 1034, 433 N.E.2d 1016 (held, since deceased was not entitled to maintain an action and recover damages for his injury at the time of his death because two-year personal injury statute of limitations had run, his administrator could not maintain action for wrongful death); cf. Wolfe v. Westlake Community Hospital (1988), 173 Ill. App. 3d 608, 527 N.E.2d 912 (where limitations period on decedent’s medical malpractice action had not expired at time wrongful death action was filed or action was within two years of decedent’s death, wrongful death action was not time barred).) It is also shown in cases where decedent has executed a release in satisfaction of his injuries. Mooney, 239 Ill. at 423, 88 N.E. at 196; Biddy, 374 Ill. at 514, 30 N.E.2d at 18.

While our research does not reveal any Illinois case which has barred a death action because decedent, during his lifetime, recovered against defendant for his injuries and later died as a result of the same injury, the fact remains under the Act decedent must have been able to maintain an action against defendant for his injuries had death not ensued. As previously explained, decedent brought a personal injury action against defendant prior to his death for lung problems caused by exposure to diatomaceous earth manufactured and sold to decedent’s employer by defendant. A jury found defendant liable for decedent’s injuries and awarded him damages. On appeal, the judgment was affirmed. Because of this recovery, decedent could not have maintained a second action against defendant for his injuries during his lifetime. Since decedent could not have maintained an action against defendant for his injuries if he lived, the present action for wrongful death cannot be maintained. See Schlavick v. Manhattan Brewing Co. (N.D. Ill. 1952), 103 F. Supp. 744, 746; W. Keeton, Prosser & Keeton on Torts §127, at 955 (5th ed. 1984) (“[A] judgment for or against the decedent in an action for his injuries commenced during his lifetime, or the compromise and release of such an action, will operate as a bar to any subsequent suit founded upon his death. The wrongful death action for the benefit of survivors is, like other actions based on injuries to others, derivative in nature, arising out of and dependent upon the wrong done to the injured person and thus barred when his claim would be barred”); Mellon v. Goodyear (1928), 277 U.S. 335, 72 L. Ed. 906, 48 S. Ct. 541 (Supreme Court held a settlement and release of all claims entered into by an injured employee under the Federal Employers' Liability Act (citing 35 Stat. 65 (1908); 36 Stat. 291 (1910)) barred a subsequent wrongful death action by his survivors); see also Little, 346 Ill. at 271, 178 N.E. at 498 (where the court found since the issue of negligence was decided adversely to decedent in a property damage suit, at the time of his death decedent could not have maintained a personal injury action and, consequently, the administrator of his estate was barred from maintaining a wrongful death action).

The vast majority of other jurisdictions having legislation including the phrase “if death had not ensued” have similarly held a settlement by the injured party or a suit reduced to judgment during the lifetime of the injured party barred a later suit by the next of kin. Simmons First National Bank v. Abbott (1986), 288 Ark. 304, 307-08, 705 S.W.2d 3, 5, citing Woodward Iron Co. v. Craig (1951), 256 Ala. 37, 53 So. 2d 586; Walrod v. Southern Pacific Co. (9th Cir. 1971), 447 F.2d 930; Kling v. Torello (1913), 87 Conn. 301, 87 A. 987; Perry v. Philadelphia, Baltimore & Washington R.R. Co. (1910), 24 Del. (1 Boyce) 399, 77 A. 725; Variety Children’s Hospital v. Perkins (Fla. 1983), 445 So. 2d 1010; Perry’s Adm’r v. Louisville & N.R. Co. (1923), 199 Ky. 396, 251 S.W. 202; Harris v. Illinois Central R.R. Co. (1916), 111 Miss. 623, 71 So. 878; Schmelzer v. Central Furniture Co. (1913), 252 Mo. 12, 158 S.W. 353; Kelliher v. New York Central & Hudson River R.R. Co. (1914), 212 N.Y. 207, 105 N.E. 824; Edwards v. Interstate Chemical Corp. (1916), 170 N.C. 551, 87 S.E. 635; Mc-Cafferty v. Pennsylvania R.R. Co. (1899), 193 Pa. 339, 44 A. 435; Price v. R.R. Co. (1890), 33 S.C. 556, 12 S.E. 413; St. Louis Southwestern R.R. Co. v. Hengst (1904), 36 Tex. Civ. App. 217, 81 S.W. 832; Legg v. Britton (1892), 64 Vt. 652, 24 A. 1016; Virginia Electric & Power Co. v. Decatur (1939), 173 Va. 153, 3 S.E.2d 172; Frescoln v. Puget Sound Traction, Light & Power Co. (W.D. Wash. 1915), 225 F. 441.

Although courts recognize the wrongful death action as an independent cause of action which does not arise until after death, the action is derivative of the injury to the decedent and is grounded on the same wrongful act of defendant whether it was prosecuted by the injured party during his lifetime or by a representative of the estate. The remedy depends upon the existence, in the decedent, at the time of his death, of a right of action to recover for such injury. A suit adjudicated in his favor precludes decedent from maintaining a subsequent action for the same injuries. Consequently, plaintiff’s action for wrongful death is barred. While plaintiff’s argument — i.e., the award which decedent received during his lifetime should not be allowed to prejudice the rights of the personal representative — is appealing on public policy grounds, it fails by virtue of the provisions of the Act.

In summary, section 1 of the Act is clear and unambiguous and precludes the present action based on the fact decedent was barred from maintaining an action for personal injuries against defendant at the time of his death because of the prior recovery.

For these reasons, the trial court’s judgment is affirmed.

Affirmed.

COOK and GREEN, JJ., concur.


author: JUSTICE BOWMAN

text:
    MICHAEL J. McCLEARY, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF WOODSTOCK et al., Defendants-Appellees.
    Second District
    No. 2—92—1409
    Opinion filed November 2, 1993.

      James T. Harrison, of Woodstock, for appellant.
    Caldwell, Berner & Caldwell, of Woodstock (Michael T. Caldwell, of counsel), for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

The plaintiff, Michael J. McCleary, was discharged from the Woodstock police department by the defendant, the Board of Fire and Police Commissioners of the City of Woodstock (Board), on the basis of his violation of an order of protection and a domestic battery he committed upon his wife, Bonnie McCleary. The plaintiff filed a complaint for administrative review. On review, the trial court affirmed the Board’s decision. The plaintiff appeals, contending that (1) the Board’s decision was based upon prejudicial evidence which should not have been admitted; (2) the Board’s refusal to grant a stay of proceedings raised an irreconcilable constitutional dilemma; (3) the Board deprived the plaintiff of his right to due process of law by refusing to permit his witnesses to testify; (4) the defendant, Chief of Police Herbert J. Pitzman (Chief), failed to meet his burden of proof to sustain discharge of the plaintiff from the force; (5) the Board erred in failing to express the standard of proof it utilized in rendering its decision; and (6) the Board erred in rendering a harsher sanction against the plaintiff than it rendered against another police officer who allegedly committed a similar offense. We affirm.

At about 3 a.m. on January 21, 1992, the plaintiff went to his home located at 1400 Red Coach Lane in Algonquin. The residence was held in joint tenancy by plaintiff and his estranged wife, Bonnie McCleary. The McClearys were, at that time, separated and involved in litigation over their pending divorce. Bonnie McCleary had been staying at the couple’s jointly owned residence on Red Coach Lane, and the plaintiff had been staying at the home of a co-worker in Woodstock.

Although he had keys to the residence, the plaintiff rang the doorbell and knocked upon the door. Roused from sleep, Bonnie McCleary shortly thereafter arrived at the door. The plaintiff informed his wife that he wanted to come inside their house to use the washroom and to see the children. Bonnie McCleary refused to open the door for her husband, told him to leave, and threatened to call the police. The plaintiff instructed his wife to go ahead and call the police.

The plaintiff then walked to his car, used the garage door opener to open the garage door, walked to the door leading from the garage into the house, inserted his key into the lock, and began to enter the residence. Bonnie McCleary placed her body against the door and attempted to prevent the plaintiff from entering the house. The couple then involved themselves in a pushing contest wherein the plaintiff attempted to enter the house and Bonnie attempted to prevent the plaintiff from entering the house. Eventually, the plaintiff was successful in his attempt to get into his home; in the process, Bonnie Mc-Cleary was pushed down as the door was pushed open. Once inside the residence, the plaintiff went upstairs to check on his son and to use the washroom.

While the couple was involved in their struggle with the door, Bonnie McCleary was on the portable telephone calling the police. Shortly after the plaintiff had entered the residence and gone upstairs, the Algonquin police arrived at the home. The officers began their investigation by having the plaintiff come down from upstairs and go outside onto the porch with two officers. Another officer spoke with Bonnie McCleary inside the residence. Bonnie McCleary told the officers that an order of protection had been issued against the plaintiff. She also related that she had been pushed down when he forced his way in.

The Algonquin police officers contacted their dispatch center and were incorrectly informed that an order of protection had been issued and was enforceable against the plaintiff. Based upon their belief that an enforceable order of protection had been issued against the plaintiff, and based upon Bonnie McCleary’s representations to the police officers, the Algonquin police took the plaintiff into custody and transported him to the Algonquin police department. When the officers advised him that he was under arrest, the plaintiff offered no resistance and was escorted to one of the police vehicles. The plaintiff was charged with the violation of an order of protection and with domestic battery, with Bonnie McCleary as the the named complainant.

Also on January 21, 1992, the Chief, Herbert Pitzman, filed a complaint with the Board against the plaintiff. The complaint alleged the plaintiff had committed a violation of an order of protection and that he had committed a domestic battery upon Bonnie McCleary; both allegations were in violation of the Illinois revised statutes. The complaint also alleged that the plaintiff had violated certain departmental rules and regulations by allegedly committing the predicate statutory violations.

On the afternoon of February 19, 1992, in the 19th Judicial Circuit, McHenry County, a hearing was held with regard to defendant’s, Michael McCleary’s, motion to dismiss the criminal charge of “Violation of an Order of Protection.” As a result of that hearing, the court determined, as a matter of law, that Michael McCleary had not been served with the order of protection. The court reasoned that because he had not received the service of the order, he had no actual notice of the contents of the order, and since he had no knowledge of the contents of the order, he therefore lacked the requisite knowledge element required by the statute in order to be held civilly or criminally liable thereunder. The court granted Michael McCleary’s motion to dismiss the charge of “Violation of an Order of Protection” and entered an order in that regard. At that point the criminal domestic battery charge was pending.

Hearings into the administrative complaint against the plaintiff were held by the Board beginning on January 24, 1992. On the evening of February 19, 1992, the Board reconvened to continue hearings into the Chief’s administrative complaint. At that time, Michael Mc-Cleary filed with the Board a motion to dismiss count 4(b) of the administrative complaint. Count 4(b) related to Michael McCleary’s alleged criminal violation of the order of protection. The Board made several findings, one of which was that Michael McCleary committed a battery upon Bonnie McCleary in violation of section 12 — 3.2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12— 3.2(a)(1) (now 720 ILCS 5/12-3.2(a)(l) (West 1992))). On March 23, 1992, the Board, in a two to one split decision, discharged the plaintiff from the Woodstock police department.

On April 27, 1992, the plaintiff filed his complaint for administrative review in the 19th Judicial Circuit, McHenry County. Following several months of pretrial procedural matters, on October 30, 1992, a hearing on the plaintiff’s complaint for administrative review was held. The trial court affirmed the decision of the Board. The plaintiff timely filed his appeal.

An appellate court’s proper function in reviewing administrative decisions is to ascertain if the agency’s findings are against the manifest weight of the evidence. (Burgett v. City of Collinsville Board of Fire & Police Commissioners (1986), 149 Ill. App. 3d 420, 422.) The appellate court is not to reweigh the evidence, determine the credibility of the witnesses, or substitute its judgment for that of the administrative agency. (Burgett, 149 Ill. App. 3d at 422.) The appellate court is only to determine if enough evidence exists in the record to support the findings. Burgett, 149 Ill. App. 3d at 422.

At the outset, we note that evidentiary rulings by the Board are part of the basis for this appeal. The strict rules of evidence that apply in a judicial proceeding do not apply in proceedings before an administrative agency. (Przislicki v. City of Chicago (1991), 212 Ill. App. 3d 661, 669-70.) According to the statute (Ill. Rev. Stat. 1991, ch. 110, par. 3—111(a)), in direct review of administrative orders by the appellate court, the appellate court has all of the powers which are vested for administrative review by the trial court. (134 Ill. 2d R. 335.) As regards administrative review, the trial court is charged as follows:

“Technical errors in the proceedings before the administrative agency or its failure to observe the technical rules of evidence shall not constitute grounds for the reversal of the administrative decision unless it appears to the court that such error or failure materially affected the rights of any party and resulted in substantial injustice to him or her.” (Ill. Rev. Stat. 1991, ch. 110, par. 3—111(b) (now 735 ILCS 5/3—111(b) (West 1992)).)

Thus, the appellate court may reverse an administrative ruling only if there is error which prejudiced a party in the proceeding.

In the first issue on review, the plaintiff argues that the Board’s denial of the plaintiff’s motion to dismiss count 4(b) of the amended administrative complaint was in error. Count 4(b) related to Michael McCleary’s alleged criminal violation of the order of protection. The Chief’s allegations against Michael McCleary in count 4(b) of his complaint were:

“4.) [0]n January 21,1992, *** the Respondent ***:
b.) Violated the terms, provisions and limitations of an Order of Protection issued by the Circuit Court of the Nineteenth Judicial Circuit, McHenry County, Illinois, in Case No. 91 D 307 on May 2, 1991, in the [sic] he did harass, interfere with the personal liberty of, and intimidate and physically abuse Bonnie Lynn McCleary at 1400 Red Coach Lane, Algonquin, Illinois on January 21, 1992. In violation of Section 12 — 30 of the Illinois Criminal Code (Ill. Rev. Stat. 1989, Ch. 38, Sec. 12-30).”

In support of McCleary’s motion to dismiss, the Board was provided with the trial court’s findings and order dismissing the charge of “Violation of an Order of Protection.” The Board denied Mc-Cleary’s motion to dismiss count 4(b) and ruled that it would proceed on all counts in the Chief’s complaint, including count 4(b), and that it would hear evidence relating to the alleged criminal violation of the order of protection.

On appeal, the plaintiff contends that such decision by the Board admitted evidence that was irrelevant, that promised no probative value whatsoever, and that resulted in substantial prejudice to the plaintiff. We agree with the plaintiff in part. Relevancy of evidence is established where a fact offered tends to prove a matter in controversy. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 519.) The determination of whether particular evidence is relevant is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. (Benson v. Bradford Mutual Fire Insurance Corp. (1984), 121 Ill. App. 3d 500, 510.) In the present case, the criminal charge of violation of an order of protection had been dismissed in the trial court. Therefore, the violation of the statute was not properly at issue before the Board. Thus, the evidence was irrelevant, its admission was error, and count (b) of the administrative complaint should have been dismissed. However, we determine that the admission of the evidence was harmless error, as the Board had evidence of plaintiff’s conduct before it, that is, because the Board had other evidence before it that it could rely on to support its decision, the fact that the Board admitted evidence to support count 4(b) was not critical to the outcome of the hearing. Where it appears that an error did not affect the outcome below, the judgment will not be disturbed. (Cairns v. Hansen (1988), 170 Ill. App. 3d 505, 511.) In conclusion, we determine that the admission of the evidence regarding count 4(b) was harmless error.

The plaintiff next contends that the Board’s refusal to grant a stay of proceedings forced the plaintiff into a position wherein he had to choose between his constitutional right to refrain from testifying about matters pertaining to the criminal charges against him and his constitutional right to present evidence in his own defense in the hearing before the Board.

On February 5, 1992, Michael McCleary filed a motion to stay the administrative proceedings of the Board pending the disposition of the underlying criminal case against him. The Board denied the motion. The plaintiff contends that, if on the one hand, Michael McCleary were to testify before the Board prior to the State court criminal trial regarding the circumstances that resulted in his arrest, he would constructively waive his right to remain silent in the criminal case. He contends that this would be in contradiction to his civil rights as guaranteed by the fifth amendment to the United States Constitution. (U.S. Const., amend. V.) According to the plaintiff, on the other hand, if Michael McCleary exercised his fifth amendment rights and did not testify before the Board, prior to his State court criminal trial, he would be constructively denied the opportunity to be heard in his own defense in the administrative proceedings, in contradiction to his constitutional due process rights and his statutory rights pursuant to section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1991, ch. 24, par. 10-2.1-17 (now 65 ILCS 5/10-2.1-17 (West 1992))).

The plaintiff seems to assume that there is a constitutional issue in the fact that criminal proceedings and administrative proceedings based on the same conduct are pending simultaneously, and the administrative proceedings are proceeding to hearing first. However, as to this argument, no case law or authority is cited. If, in fact or in law, choosing to testify in an administrative proceeding amounts to an actual or constructive deprivation of the right against self-incrimination, it is incumbent upon plaintiff to cite that authority. We therefore reject this argument for failure to comply with Supreme Court Rule 341(e)(7), which provides that arguments of appellants must contain their contentions and reasons therefore, including citations of authority, and the points not argued are waived. (134 Ill. 2d R. 341(e)(7).) Mere contentions, without argument or citations of authority, do not merit consideration on appeal. (In re Tally (1991), 215 Ill. App. 3d 385, 390-91.) Plaintiff’s brief does not meet this standard; therefore, we determine that the plaintiff has waived this issue.

Next, the plaintiff argues that the Board deprived him of his right to due process by improperly admitting a photocopied order which allegedly granted Bonnie McCleary exclusive possession of the marital residence, by refusing to admit a petition signed by the plaintiff’s fellow police officers, and by refusing to allow witnesses to testify for the plaintiff as to his character on the issue of mitigation. The defendants posit that the photocopied order was relevant to the assertion by Michael McCleary that his conduct was justifiable force to gain entry into his marital home, and that the petition signed by the police officers was properly excluded, as was the testimony by plaintiff’s witnesses.

On March 9, 1992, before the Board, the Chief moved to admit into evidence a photocopy of a court order entered on May 30, 1991, which allegedly granted exclusive possession of the marital residence to Bonnie McCleary. Plaintiff objected on the basis of relevance and because the order was an interim order which expired after 30 days which was before the date of the incident. The order was admitted. On appeal, the plaintiff contends that the order was untimely filed, was admitted without proper foundation, was not brought in through any witness, and was admitted only by way of the testimony of the attorney for the defendant Chief. Furthermore, plaintiff asserts that the photocopied order was not a certified or verified copy of the original. Although it is evident from the record that the proper foundation was not given (People v. Bowman (1981), 95 Ill. App. 3d 1137, 1142), since an objection to foundation was not raised at trial, this issue on appeal is waived. (People v. Barrios (1986), 114 Ill. 2d 265, 275.) As to the relevance objection made at trial, we determine that the order granting exclusive possession of the premises was relevant evidence. Furthermore, we note in the record that the order yielding exclusive possession of the premises was entered in the divorce proceeding between Bonnie and Michael McCleary, thus constituting temporary relief pursuant to the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 501 (now 750 ILCS 5/501 (West 1992))). Such an order terminates when the final judgment in the dissolution proceeding is entered. (Ill. Rev. Stat. 1991, ch. 40, par. 501(c)(3) (now 750 ILCS 5/501(c)(3) (West 1992)).) Thus, since the dissolution proceeding had not terminated as of the day of the incident, the order was valid and was properly admitted.

In addition, during the March 23, 1992, hearing regarding the factors in aggravation and mitigation for sentencing, plaintiff’s counsel attempted to enter into evidence a petition signed by several law enforcement officers of the Woodstock area which attested to their support of the plaintiff’s retention of his employment. The Chief’s counsel objected and the objection was sustained on the basis of lack of foundation. The Board’s attorney offered to mark the petition as respondent’s offer of proof exhibit No. 2. It was thus made part of the record and was not considered by the Board in making its decision. The petition stated, “We, the following law enforcement officers having full knowledge of decisions of the Woodstock fire and police commission against Officer Michael J. McCleary wholeheartedly support Officer McCleary in the retention of his employment,” and several signatures accompanied the statement.

At that point, the plaintiff’s counsel requested the court to permit each of the parties who signed the document and who was present at the hearing to testify. The defendant’s counsel objected on the basis of relevancy. Plaintiff’s counsel responded with this statement:

“The standard for a police officer discharge in the State of Illinois is some substantial shortcoming which renders the employee’s continuance in office some way detrimental to the discipline and efficiency of the service in which the law and sound public opinion recognizes as good cause for or is no longer holding the position. It’s my feeling that these witnesses who are law enforcement officers who work side by side with Mr. Mc-Cleary and who also represent a portion of the public opinion can come in here and testify as to whether or not they feel there is good cause based on this case for his no longer retaining his position. That is the standard in Illinois. I feel that it's directly relevant.”

At that point, the Board sustained the objection. The plaintiff now appeals, arguing that substantial injustice was done when the witnesses were not permitted to testify.

The general rule in Illinois is that where character evidence is proper, only reputation evidence and not evidence of personal opinion is admissible. (Voga v. Nelson (1983), 115 Ill. App. 3d 679, 684; People v. Goodwin (1981), 98 Ill. App. 3d 726, 730.) The determination of admissibility of evidence is a matter of the trial judge’s discretion and only an abuse of that discretion warrants reversal. (Skelton v. Chicago Transit Authority (1991), 214 Ill. App. 3d 554, 577.) That rule regarding the trial court’s discretion applies in this case to the Board’s decision to exclude the evidence. That is, the Board exercised its discretion in not admitting the evidence.

In the present case, plaintiff attempted to enter into evidence the petition, which was evidence that several law enforcement officers believed that Michael McCleary should not be terminated. When that attempt was denied, plaintiff’s counsel attempted to introduce as witnesses some of the officers who signed the petition, stating that the officers would testify as to whether they believed there was good cause for McCleary’s termination. We determine that such evidence constitutes improper opinion evidence and its admission would invade the province of the fact finder, which is charged with the task of deciding whether plaintiff should be terminated for cause. On the other hand, if plaintiff had intended to put on such witnesses to show Michael McCleary’s reputation for conducting himself as a law-abiding citizen, such evidence would be admissible, as (1) reputation evidence is proper character evidence, and (2) whether he was a law-abiding citizen is relevant to whether his employment as a police officer should be terminated. However, we determine that the evidence that plaintiff attempted to enter was improper opinion evidence, and on that basis we affirm the Board’s decision to exclude such evidence.

Plaintiff next contends that there was insufficient competent evidence in the record to support the Board’s decision that sufficient cause existed to discharge the plaintiff from the City of Woodstock police department. Plaintiff further contends that the testimony of Bonnie McCleary was suspect and cannot be said to establish the substantial competent evidence sufficient to establish cause for discharge. In so contending, the plaintiff is not only asking this court to set aside the penalty but also to reverse the Board’s finding of cause.

A reviewing court’s scope of review of an administrative agency’s decision regarding dismissal is a two-step process. First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence. Second, the court must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for dismissal does or does not exist. (Carrigan v. Board of Fire & Police Commissioners (1984), 121 Ill. App. 3d 303, 308.) While the findings of a city police board are presumed prima facie correct on appeal, such findings are required to be supported by the manifest weight of the evidence. (Daniels v. Police Board (1976), 37 Ill. App. 3d 1018, 1022.) However, unlike agency findings of fact, determinations of cause (for discharge) are not prima facie true and correct and are subject to judicial review. (Christenson v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 472, 476.) An administrative tribunal’s finding of cause for discharge commands respect, and it is to be overturned only if it is arbitrary and unreasonable or unrelated to the requirements of service. (Carrigan, 121 Ill. App. 3d at 310.) A single valid finding of a violation of departmental rules will authorize dismissal. Klee v. Board of Fire & Police Commissioners (1991), 214 Ill. App. 3d 1099, 1102.

The plaintiff was discharged by the Board upon its finding that he was guilty of a battery pursuant to section 12 — 3.2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3.2(a)(1) (now 720 ILCS 5/12 — 3.2(a)(1) (West 1992))). Although evidence of a criminal conviction of the offense of battery is not evident in the record, we determine that the Board’s finding that plaintiff was guilty of battery is supported by the manifest weight of the evidence. We so determine that because the fact that Bonnie McCleary was pushed down is not disputed, and the fact that she had the right to exclusive possession of the premises was supported by the trial court order so stating. The findings of the Board included the statement that McCleary was at all times obligated to conform his on-duty and off-duty conduct to the rules and regulations of the police department of the City of Woodstock and all the laws and municipal subdivisions of the State of Illinois. The findings stated that, by reason of his battery of Bonnie McCleary, Michael McCleary committed conduct unbecoming of an officer in violation of chapter 5, section 5 — 2, of the rules and regulations of the police department of the City of Woodstock. That section set forth the standard of conduct for members of the department, stating, “Members and employees shall not engage in any conduct which constitutes conduct unbecoming an Officer or neglect of Duty.” (City of Woodstock Department of Police, Rules & Regulations, ch. 5, par. 5 — 2.) This single finding of a violation of a departmental rule justifies dismissal. (Klee, 214 Ill. App. 3d at 1102.) Thus, the Board properly discharged the plaintiff on the basis of his violation of departmental rules.

Next, the plaintiff contends that another policeman in the Woodstock police department allegedly committed a violation comparable to his own violation, that is, domestic battery, and was not sanctioned for it; therefore, the plaintiff concludes he was wrongly punished by discharge. Plaintiff cites Wilson v. Board of Fire & Police Commissioners (1990), 205 Ill. App. 3d 984, 992, to support the contention that it is proper to hold a new hearing on the issue of sanctions if the factual scenarios of two cases are related and there is a gross disparity between the two sanctions levied.

According to the record, in this case Officer Michael P. McCluskey testified before the Board on behalf of the plaintiff. Officer McCluskey testified that during July 1991, while he was off duty as a Woodstock police officer, he was involved in a domestic argument with his girlfriend, Karol Pavelt, at a gas station in Woodstock. McCluskey testified that the sheriff’s police were called in to investigate the occurrence and that Karol Pavelt told the officers that McCluskey had battered her in that he allegedly pushed her down. Sheriff’s deputy Ronald Salgado testified that he investigated the occurrence, that he directed Karol Pavelt to the State’s Attorney’s office to pursue charges, and that he had provided the Woodstock police department with his report number for future reference. According to the briefs, Karol Pavelt did not press charges, and the State’s Attorney’s office refused to authorize charges. McCluskey testified that no disciplinary action was taken against him as a result of the incident.

The two cases may be distinguished on the basis that in the Mc-Cleary case there was evidence in the record that a battery occurred. There was no dispute that Bonnie McCleary was pushed down, and the fact that she had the right to exclusive possession of the premises was supported by the trial court order so stating. Thus, in the Mc-Cleary case there was conduct which formed the basis of the Board’s findings. In the McCluskey case, no such findings were made. Furthermore, there was no evidence of prior disciplinary problems with McCluskey whereas McCleary had been suspended once previously. On the basis of these factual differences, we determine that the two cases were not sufficiently related to give rise to a need for comparable sanctions. Launius v. Board of Fire & Police Commissioners (1992), 151 Ill. 2d 419, 442-43.

In Launius, the facts were that plaintiff Launius had abandoned his post during his shift on August 14, 1987, at police headquarters when he learned, through several telephone conversations with his wife, that his home was being flooded by water due to heavy rains and the safety of his wife and two small children was at risk. The appellate court, in Launius, found the board’s decision to be arbitrary and unreasonable in light of a less severe disciplinary penalty imposed upon another police officer, Czyzewski, for misconduct that arose during the same period of flooding. (Launius v. Board of Fire & Police Commissioners (1991), 211 Ill. App. 3d 545, 559.) This issue was on review at the supreme court and its analysis is discussed below. Launius, 151 Ill. 2d at 440-41.

The circumstances surrounding Czyzewski’s disciplinary matter were: he was not scheduled to work on August 14, 1987, and was ordered to report to the police force that day, but refused as he could not get his car out of his driveway and the street was impassible because it was filled with water. On the phone with his supervisor, Czyzewski lost his temper and uttered an obscenity. Czyzewski was suspended four days because of the language he used with his supervisor. (Launius, 151 Ill. 2d at 441.) In its analysis, the supreme court noted that Wilson stood for the proposition that an administrative tribunal’s finding of cause for discharge may be considered arbitrary and unreasonable when it is compared to the discipline imposed in a completely related case. (Launius, 151 Ill. 2d at 442, citing Wilson, 205 Ill. App. 3d at 992.) However, the court also noted that cause for discharge can be found regardless of whether other employees have been disciplined differently. (Launius, 151 Ill. 2d at 442, citing Lyles v. Department of Transportation (1989), 183 Ill. App. 3d 901, 911-12; Sheehan v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 290; Jones v. Civil Service Comm’n (1979), 80 Ill. App. 3d 74, 75.) The Launius court concluded that the facts of the Launius case, as compared to the facts of Czyzewski’s case, were not sufficiently related to render the board’s discharge decision arbitrary and unreasonable. (Launius, 151 Ill. 2d at 443.) Likewise, we determine that in the present case the facts of the McCluskey case and the McCleary case are not sufficiently related to render the Board’s discharge decision arbitrary and unreasonable.

Furthermore, the evidence in the present case is sufficient to establish that plaintiff committed the offense and that it constituted sufficient cause for discharge. It is apparent that a police officer who does not abide by the rules of the department will impair the discipline and efficiency of the police force. Sufficient cause for plaintiff’s discharge exists regardless of whether the other officers had received different treatment. Jones v. Civil Service Comm’n (1979), 80 Ill. App. 3d 74, 76.

Next, the plaintiff contends that the Board erred when it failed to announce the standard of proof it applied. In a civil proceeding where the conduct involved is criminal, the proof should be clear and convincing. (Shallow v. Police Board (1981), 95 Ill. App. 3d 901, 908.) We observe from the record that in the findings and decisions by the Board no standard was expressed. However, there is no duty by the Board to explain, announce, or otherwise define the standard used in rendering a decision. Thus, we determine that the lack of an express standard is not error.

In conclusion, we affirm the defendant Board’s decision.

Affirmed.

QUETSCH and COLWELL, JJ., concur.