text:
      In re M.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. B.S., Respondent-Appellant).
    Second District
    No. 2 — 90—0556
    Opinion filed April 4, 1991.

      Richard H. Schmack, of Sycamore, for appellant.
    Michael R Coghlan, State’s Attorney, of Sycamore (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The respondent, B.S., appeals from the trial court’s order of March 28, 1990, terminating her parental rights to her son, M.S. The respondent raises the following issues: (1) whether the State proved, by clear and convincing evidence, that she is an unfit parent; and (2) whether the trial court erred in admitting the respondent’s medical records into evidence. We affirm.

On October 12, 1989, the State filed a petition for termination of parental rights which was subsequently amended to include additional statutory grounds which had been omitted from the original petition. At the hearing on the amended petition, the following testimony was elicited. M.S., the respondent’s son, was born on November 25, 1983. On January 27, 1984, the State filed a petition claiming that M.S. was abused and neglected due to an environment that was injurious to his welfare in that his father, the respondent’s husband, “did handle the child in such a manner as to injure the child and cause bruises.” On October 31, 1984, an adjudicatory order was entered, finding M.S. to be abused and neglected for the reasons set forth in the petition. The court placed M.S. in the custody of the Department of Children and Family Services (DCFS). On December 11, 1985, the trial court ordered that the guardianship of M.S. remain in DCFS but that he be returned to his parents’ home.

M.S. resided with both of his parents until approximately June 1987 when his parents separated. He continued to reside with his father until November 4, 1987, when DCFS again placed him in a foster home. The basis for that placement was violence between M.S.’s father and the woman with whom he was living. It was stipulated that M.S.’s father had agreed to the voluntary termination of his parental rights to M.S.

On October 12, 1989, the State petitioned to terminate respondent’s parental rights. The petition alleged that the respondent had failed to maintain a reasonable degree of interest, concern, or responsibility as to M.S.’s welfare, that she had substantially neglected M.S., that she failed to protect M.S. from conditions within his environment, and that she had failed to make reasonable efforts to correct the conditions which were the basis of M.S.’s removal. (See Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(b), (D)(d), (D)(g), (D)(l).) On February 28, 1990, the State amended its petition to allege additional statutory grounds for unfitness.

On March 28, 1990, the case proceeded to hearing. Veronica Cavell, the DCFS caseworker assigned to the case from 1984 to 1989, testified that through family counselling in 1984, it was determined that the respondent and M.S.’s father had problems with alcohol. She further testified that the respondent was to attend counselling sessions and that, although she had participated initially, she never had completed either family or alcohol-abuse counselling.

Cavell also testified that sometime around October 12, 1987, she received a letter from Aleare, a facility that evaluates and treats chemical abuse, stating that the respondent had an alcohol- and cannabis-dependency problem requiring inpatient treatment. The letter, which was admitted over objection, suggested that the respondent enter an inpatient chemical dependency program.

Cavell further testified that she prepared a client service plan for the respondent for the time period from July 30, 1986, to February 1987. A service plan is a case plan whereby DCFS and the parent are assigned tasks to meet a named objective. The plan included addressing the respondent’s substance-abuse problem by requiring her to enter into inpatient treatment and to participate in counselling to improve the stability of her family life. She was also to refrain from consuming alcohol. Cavell stated that the goal of the service plan was to allow M.S. to resume living with the respondent. The respondent did not achieve the goals set forth in that service plan.

From March 10, 1987, to July 1987, a second service plan was in effect. Cavell testified that she “had information” that the respondent consumed alcohol while the service plans were in effect. The respondent also failed to achieve the goals of subsequent service plans, which were in effect until January 1989.

In January 1989, the original “goal” of returning M.S. to the respondent’s home was changed to the placement of him in substitute care pending the court’s decision. The change in goal resulted in the reduction of the number of times that the respondent was allowed to visit M.S. to one visit a month. The respondent was present when the goal was changed. Cavell testified that the respondent “continually and regularly” visited M.S. from 1987 until the summer and fall months of 1989 “when she moved and didn’t let us know where she was.” After Cavell “found [the respondent after her move] and tracked her down,” B.S. again began to visit M.S. At the end of October 1989, Cavell ceased being the respondent’s caseworker. She did not tell the respondent that she was no longer her caseworker, but she testified that if the respondent had telephoned the DCFS office, they would have told her who her new caseworker was.

Susan Todd, M.S.’s foster mother from July 1989 to February 1990, also testified for the State. She stated that M.S. had his sixth birthday on November 25, 1989, and B.S. visited him that day. M.S. was excited before the visit, but was “quiet” after the visit. Todd testified that when she asked M.S. how things went and if he got the cake and presents he was promised, he was sullen and replied that all he got was a can of pop for his birthday.

Adrian Riipi, the respondent’s caseworker from November 1989 until the time of trial, testified that she never had told the respondent that she could not visit M.S. She had, however, only seen the respondent twice in five months. To her knowledge, the respondent had not seen M.S. since November 1989.

Over the respondent’s objection of confidentiality, the trial court admitted the respondent’s records from Aleare and her records from the Ben Gordon Community Health Center (Gordon).

The respondent testified that on November 4, 1987, she placed M.S. in foster care since she “couldn’t take him because [she] didn’t have a place to, live” and that M.S.’s father wanted M.S. in a foster home. She stated that when she visited M.S. on his birthday in 1989, she could not afford to buy him a birthday gift because she was “flat broke” and only had “enough money to get food for the week.” She said that M.S. was not upset or distraught but was laughing and having fun and understood that she could not afford to buy him a birthday present.

The respondent testified that in 1984 DCFS required that she and M.S.’s father go to group therapy, alcohol treatment, and parent training counselling. Aleare assessed her as having a problem with alcohol or cannabis in 1987. The Aleare counsellor suggested that she either go into inpatient care for 28 days or go into outpatient care. She chose the outpatient care since she was still living with M.S.’s father at the time, and he was unemployed “and drinking.” She had to be at home because “somebody had to be there for [M.S.].” No one at either Aleare or DCFS did anything to aid her in outpatient therapy, but “kept pushing inpatient.”

The respondent testified that, as of the date of trial, she was not using illegal substances. She admitted that she smoked marijuana in 1980. She testified that she used to drink every four or five days, consuming about two drinks each time. However, the last time that she had two drinks was two years ago, and there are days when she does not drink at all. She disagreed with the Aleare assessment that she has a drinking problem.

The respondent testified that she did not go to the parent training classes because she did not receive a letter telling her the date or location of the classes. She had, however, in 1986, gone to four group parent training meetings since the court report advised her where and when to go. Since 1986, she had been told to go to parent training, but not where and when the classes were conducted.

The respondent stated that she did start counselling at Gordon and attended individual and group sessions. She ceased going to the counselling sessions because “[t]hey weren’t helping me.”

The respondent testified that Veronica Cavell never told her that she was not continuing as her caseworker. She was not informed of the change until January 1990. Further, she never received a copy of her last service plan and was never informed that the goal had changed from returning M.S. to her custody to placing him in a foster home. She did not try to visit M.S. during Christmas 1989 because she was again moving. Although she did not get M.S. a Christmas gift, she did send him a card which was delivered by her boyfriend. She did not recall whether she contacted anyone at DCFS after she moved.

Two years before the hearing, DCFS required the respondent to submit for psychological testing. The respondent testified that Cavell told her that she would “set up” the testing, but never told her the date or place of the test.

After the respondent’s testimony and summations by both parties, the trial court ordered that the respondent’s parental rights be terminated. This appeal followed.

Before reaching the issues that the respondent raises on appeal, we note that the State has asked that we reconsider our denial of its motion to dismiss this appeal for lack of jurisdiction. The State argues that respondent’s notice of appeal was filed after the 30-day period for filing an appeal.

On March 28, 1990, the trial court orally ruled that it was terminating the respondent’s parental rights. It entered its written order to that effect on March 30, 1990, and the respondent’s notice of appeal was not filed until May 24, 1990. However, on April 17, 1990, the respondent moved for the appointment of appellate counsel since she sought to appeal the trial court’s decision. On April 24, 1990, the trial court granted the respondent’s motion and further ordered that the clerk of the court prepare and file a notice of appeal on the respondent’s behalf.

Supreme Court Rule 606(a) states that if a criminal defendant requests “in open court at the time he is advised of his right to appeal or subsequently in writing, the clerk of the trial court shall prepare, sign, and file forthwith a notice of appeal.” (134 Ill. 2d R. 606(a).) Although the termination of parental rights is a civil matter (see In re Marriage of Engelbach (1989), 181 Ill. App. 3d 563, 571), article VI of the supreme court rules (134 Ill. 2d Rules 601 through 663) pertains to appeals in criminal cases, post-conviction cases, and juvenile court proceedings. With reference to Rule 606(a), then, we find that given the court’s order to the clerk to file a notice of appeal on behalf of the respondent, the respondent should not be charged with responsibility for the delay in filing the notice in this proceeding which is governed by the Juvenile Court Act of 1987 (Juvenile Court Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.). (See also People v. Sanders (1968), 40 Ill. 2d 458.) This appeal will, therefore, not be dismissed for late filing.

We now turn to the merits of the appeal. The respondent first argues that the petition and the amended petition insufficiently allege that she is an unfit parent. In its petition and amended petition against the respondent, the State alleged that the respondent was an unfit parent under section l(D)’s subsections (b), (d), (g), and (l) (Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(b), (D)(d), (D)(g), (D)(£)).

The essential test of the sufficiency of the petition is whether it reasonably informs the respondent of a valid claim against her. (See In re Harpman (1986), 146 Ill. App. 3d 504, 512.) The requirement of pleading with specificity does not mandate that there be more than a setting forth of the specific statutory grounds of unfitness. In re G.W.S. (1990), 196 Ill. App. 3d 107,109.

In its original petition, the State tracked the language of section l(D)’s subsections (b), (d), (g), and (l) (Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(b), (D)(d), (D)(g), (D)(Z)). The amended petition alleged additional instances of unfitness and incorporated the original petition. We find that since the amended petition set forth the specific statutory grounds of unfitness, it was sufficient to apprise the respondent of the claim against her. See G.W.S., 196 Ill. App. 3d at 109.

The respondent then argues that the State did not prove, by clear and convincing evidence, that she was an unfit parent (see Ill. Rev. Stat. 1989, ch. 40, par. 1501) and, therefore, that she should not have had her parental rights terminated.

Section 1(D) of the Adoption Act (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)) defines an “unfit person” as “any person whom the court shall find unfit to have a child, without regard to the likelihood that the child will be placed for adoption.” Section 1(D) then states the grounds of “unfitness.” Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(a) through (q).

A finding of parental unfitness must be supported by clear and convincing evidence. (See In re Paul (1984), 101 Ill. 2d 345, 352.) Also, the trial court’s findings of unfitness must be given great deference since the court has the opportunity to view and evaluate the testimony of the witnesses, and the trial court’s decision should not be reversed on appeal unless it is contrary to the manifest weight of the evidence. In re Allen (1988), 172 Ill. App. 3d 950, 956.

The State contends that it proved the respondent to be unfit under section l(D)’s subsections (b) and (m), which define as grounds of unfitness:

“(b) failure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare; * * *
(m) failure by a parent to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parent, or to make reasonable progress toward the return of the child to such parent within 12 months after the adjudication of neglected minor, abused minor or dependent minor.” Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(b), (D)(m).

“Reasonable progress” requires, at a minimum, measurable or demonstrable movement toward the goal of return of the child, but whatever amount of progress exists must be determined with proper regard for the best interests of the child. (In re R.M.B. (1986), 146 Ill. App. 3d 523, 528.) Such an inquiry might well involve consideration of the limitations of the parents. In re Edmonds (1980), 85 Ill. App. 3d 229, 233.

Before we consider the respondent’s argument on the sufficiency of the evidence, we first consider her assertions of evidentiary error. The respondent first argues that only the first 12-month period after M.S.’s adjudication as an abused and neglected minor was relevant to her alleged failure “to make reasonable progress” under subsection 1(D)(m). On October 17, 1984, M.S. was adjudicated an abused and neglected minor. Thus, more than 12 months had elapsed since M.S. was adjudicated when the State brought its petition to terminate the respondent’s parental rights. The State’s evidence was not limited to the first 12 months following M.S.’s adjudication.

In In re R.S. (1988), 174 Ill. App. 3d 132, the State sought to prove the respondent parent’s unsatisfactory progress under subsection (m). Its supplemental petition to terminate parental rights was filed more than two years following the child’s adjudication as dependent. The respondent there argued essentially identically to the respondent here that only evidence from the first 12 months following the child’s adjudication was relevant to her unfitness under subsection (m).

The R.S. court considered what period of the parent’s conduct toward the child was relevant to the parent’s unfitness under subsection (m). (174 Ill. App. 3d at 133-34.) It interpreted subsection (m) and found that “it is clearly in the best interest of the child to consider the parent’s conduct during the entire post-adjudication period.” (174 Ill. App. 3d at 133-34.) With reference to the reasoning in R.S., we find that the testimony at issue here was properly admitted and considered in determining whether the respondent was unfit.

The respondent also argues that the trial court erred in admitting her Aleare report and medical records pursuant to the Juvenile Court Act.

The respondent first contends that the trial court should have sustained her objection and refused the admission of her Aleare report on the grounds of confidentiality. However, under section 2— 18(4)(e) of the Juvenile Court Act, “[t]he privileged character of communication between any professional person and patient or client, except privilege between attorney and client, shall not apply to proceedings subject to this Article.” (Ill. Rev. Stat. 1989, ch. 37, par. 802—18(4)(e).) Since section 5—31(2) of the Juvenile Court Act (Ill. Rev. Stat. 1989, ch. 37, par. 805— 31(2)), which states that a parent must be found unfit under the Adoption Act, is part of the “Article,” this proceeding is under the Juvenile Court Act. We, therefore, find that the trial court did not err in admitting the respondent’s Aleare report into evidence.

The respondent also argues that the admission of her medical records under the business records exception to the hearsay rule (134 Ill. 2d R. 236) was improper. The respondent correctly points out that medical records are excluded from the business records exception to the hearsay rule. (See 134 Ill. 2d R. 236(b).) She further argues that section 2 — 18(4)(a) of the Juvenile Court Act, which provides an exception to the general limitation on the admission of medical records as business records, does not apply in this case. The State argues that the records were admissible under section 2 — 18(4)(a) of the Juvenile Court Act.

Section 2 — 18(4)(a) of the Juvenile Court Act provides, in pertinent part:

“(4)(a) Any writing, record *** made as a memorandum or record of any condition *** relating to a minor in an abuse, neglect or dependency proceeding, shall be admissible in evidence as proof of that condition *** if the court finds that the document was made in the regular course of the business of the hospital or agency and that it was in the regular course of such business to make it ***. A certification by the head or responsible employee of the hospital or agency that the writing, record *** is the full and complete record of the condition *** and that it satisfies the conditions of this paragraph shall be prima facie evidence of the facts contained in certification.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 37, par. 802—18(4)(a).

Having already determined that the rules of evidence, as modified by the Juvenile Court Act, apply in proceedings for the termination of parental rights, we must now determine whether the trial court properly admitted the respondent’s medical records.

Respondent claims that, since the medical records introduced at the trial relate to her condition and not to that of the minor, they fail to satisfy the statutory prerequisite that they be made as a “memorandum or record of any condition, act, transaction, occurrence or event relating to a minor.” (Ill. Rev. Stat. 1989, ch. 37, par. 802—18(4)(a).) Respondent cites no case to support that interpretation.

It is clear that the legislature intended that the provisions of the Juvenile Court Act be liberally construed. (See Ill. Rev. Stat. 1989, ch. 37, par. 801—2(4).) We find that the medical records of the respondent, which were created as a direct result of the ongoing juvenile proceeding and relate to a condition which is also directly related to the proceeding, satisfy the statutory requirement of “relating to a minor” and are, therefore, admissible under the Juvenile Court Act. (Ill. Rev. Stat. 1989, ch. 37, par. 802—18(4)(a).) We therefore find that the trial court did not err in admitting the medical records.

Having considered the respondent’s evidentiary arguments, we lastly return to her argument that the evidence here was insufficient. We observe that the respondent has admitted that she had not successfully completed any of the service plans drawn by the State when the established goal was for M.S.’s return to the respondent’s home. Further, she testified that transportation to any outpatient treatment would not have been a problem, yet she did not attend any outpatient meetings. She also stopped attending other counselling sessions two months after M.S. was returned to the home even though every service plan required her attendance at those meetings. We cannot find that the finding by the trial court that the respondent failed to make “reasonable progress” was against the manifest weight of the evidence. See In re Allen (1988), 172 Ill. App. 3d 950, 956.

The decision of the circuit court of De Kalb County is affirmed.

Affirmed.

DUNN and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    ARACHNID, INC., et al., Plaintiffs and Counterdefendants-Appellees, v. PAUL F. BEALL, Defendant and Counterplaintiff-Appellant (TBI Games Unlimited, Inc., Plaintiff).
    Second District
    No. 2 — 90—0868
    Opinion filed April 3, 1991.

      Edward J. Enichen and G. Michael Scheurich, both of Guyer & Enichen, and Thomas D. Luchetti, both of Rockford, for appellant.
    Scott C. Sullivan, of Williams & McCarthy, of Rockford, and Joel T. Pelz, of Jenner & Block, of Chicago, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Paul F. Beall, appeals from the trial court’s order entered April 24, 1990, dismissing certain counts of his counterclaim against plaintiffs, Arachnid, Inc. (Arachnid), Stephen M. Tillery and Michael L. Tillery (Tillerys). Defendant states that the appeal is taken pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), the trial court having declared its order of dismissal final as to fewer than all the claims set forth in the counterclaim and having stated that there was no just reason for delaying the appeal therefrom. Notwithstanding the trial court’s declaration, we find that the order of dismissal does not meet the jurisdictional requirements of finality and appealability. We therefore dismiss defendant’s appeal as premature.

Defendant and the Tillerys were stockholders in certain related . and closely held corporations. On December 8, 1986, defendant and the Tillerys executed three agreements: “Arachnid Corporations Stock Restriction and Purchase Agreement” (Purchase Agreement), “Arachnid Corporations Stock Restriction and Purchase Agreement Regarding Stephen M. Tillery,” and an “Employment Agreement.” These agreements had an effective date of January 1, 1987. The Purchase Agreement provided a specified method by which one of the parties could either purchase or sell his stock to the other. The Employment Agreement was executed by defendant and by Arachnid through its vice-president, Michael Tillery. The Employment Agreement defined defendant’s employment as president of Arachnid.

The record reveals that on or about January 27, 1989, by means of a notice to Michael L. Tillery, defendant triggered the buy-sell provisions of the Purchase Agreement. In accordance with those provisions, Michael Tillery agreed to purchase defendant’s stock. The closing date of the purchase was to be within 60 days of the date of notice of the decision to purchase (February 24, 1989) or on a date mutually agreed upon. During this interim period until the closing date, defendant remained as president.

On April 7, 1989, plaintiffs, Arachnid, TBI Games, and the Tillerys, filed an emergency motion for a temporary restraining order along with a verified complaint alleging that defendant was taking certain actions detrimental to Arachnid and to the other shareholders. Count I of the complaint for injunctive relief averred, inter alia, that, to the detriment of plaintiffs, defendant removed the corporate checkbooks and checkwriting machine from Arachnid’s offices, that he changed the authorized signatures of two corporate bank accounts so that his was the only authorized signature, that he terminated the employment of the purchasing agent, and that he paid himself a dividend of $288,000 without the approval of the board of directors. Plaintiffs sought to restrain defendant from taking certain enumerated actions in the conduct of corporate affairs without the consent of Michael Tillery and also sought to maintain the status quo until the rights of the parties could be determined. Count II sought a declaratory judgment to establish the rights of the parties during and after the closing and specifically prayed for a finding that Michael and Stephen Tillery had the right to operate the businesses during the period prior to closing.

In a temporary restraining order dated April 7, 1989, the trial court enjoined defendant from certain conduct involving the affairs of the corporations without the express consent of Michael Tillery and directed defendant to take certain specific actions with respect to the financial management of the corporations. Plaintiffs’ motion for a preliminary injunction was set for hearing on April 17, 1989. On that same date, defendant sold his shares of stock in Arachnid and its related corporations to Michael Tillery and, pursuant to paragraph 21 of the Purchase Agreement, also resigned his position from all offices which he held. Nevertheless, by letter dated April 17, 1989, addressed to Michael Tillery as president, defendant asserted that he still considered himself an employee of Arachnid under the terms of the Employment Agreement.

On August 25, 1989, defendant filed his answer to the original complaint and also filed a four-count counterclaim. Count I of the counterclaim sought a declaratory judgment to establish the rights of the parties under the Purchase Agreement and the Employment Agreement. Defendant specifically asked the court to declare that the two agreements were separate undertakings, that Arachnid honor the provisions of the Employment Agreement, that the $288,000 distribution was valid, and that defendant be awarded the unpaid salary and accrued benefits due to him under the Employment Agreement.

Count II incorporated the allegations of the first 14 paragraphs of count I and sought damages against the Tillerys for their alleged tortious interference with defendant’s employment contract with Arachnid.

Count III of the counterclaim incorporated the first 14 paragraphs of count I and sought to establish (contrary to the accusations of the Tillerys individually and on behalf of Arachnid that defendant had engaged in misconduct) that defendant had performed his duties faithfully as president. In this count, defendant sought a declaration that neither Arachnid nor the Tillerys had any claims against defendant related to his prior conduct as president.

Count IV of the counterclaim was based in replevin and sought damages from the Tillerys for their alleged conversion of defendant’s personal property.

On September 28, 1989, Arachnid and the Tillerys moved to strike and dismiss all counts of the counterclaim. These plaintiffs argued that counts I and III for declaratory judgment improperly sought a declaration of nonliability for past conduct, and they argued that such a remedy should not supersede or preempt plaintiffs’ right to obtain relief under other well-recognized remedies or causes of action arising from the contract of employment. Regarding count II (tortious interference), these plaintiffs argued that the Tillerys, as shareholders and directors, were conditionally privileged to take action with respect to defendant’s employment agreement with Arachnid and that defendant’s allegations in count II were insufficient in pleading the element of the Tillerys’ lack of justification in inducing a breach of the employment contract. With respect to count IV, plaintiffs contended that none of defendant’s property was being wrongfully detained at defendant’s former office at Arachnid.

In response, defendant argued that, at least with respect to count I, he was properly seeking a declaration of his rights under the Employment Agreement. Defendant’s response does not seem to address the issues raised with respect to count III. As to count II, defendant conceded that shareholders and directors were conditionally privileged to interfere with the contracts of the corporation. Nevertheless, defendant maintained that his allegation was sufficient in stating that the Tillerys, with knowledge of a valid agreement between defendant and Arachnid, “intentionally and unjustifiably induced the breach of that agreement.” Citing HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, defendant asserted that, as a requisite element of the tort of intentional interference with a contract, “malice” meant only the intent to interfere without sufficient justification. Defendant did not respond to plaintiffs’ argument concerning count IV of the counterclaim.

On April 24, 1990, the trial court granted the motion to dismiss counts I, II, and III, but excepted those claims in count I which had accrued through April 17, 1989, under the Employment Agreement. Count IV was allowed to stand. In its order, the court explained that both the Purchase Agreement and the Employment Agreement together defined defendant’s contractual relationship with the other parties. The court noted that it was defendant who, on January 27, 1989, initiated the proceeding by which he was divested of all his stock in Arachnid and that this necessarily resulted in his resignation on April 17, 1989, which thereby terminated his employment as president of Arachnid. The court opined that defendant should not be heard to complain of the termination for which he was responsible and which he should have expected to occur. The language of the order also implied that the only properly justiciable issues remaining were those that had survived the motion to dismiss and those that had been placed in issue by his answer to the complaint.

On July 6, 1990, in response to defendant’s request for findings pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), the trial court entered an order finding that its prior order of April 24, 1990, was “a final judgment as to the various causes of action set forth therein” and was “final as to fewer than all the claims set forth in the Counterclaim; there being no just reason for delaying appeal therefrom, the Court so orders.” The order noted (erroneously, we believe) that count I had been dismissed. The order of April 24 actually left standing certain claims under count I which had accrued prior to April 17, 1989.

As this appeal taken pursuant to Supreme Court Rule 304(a) presents procedural difficulties affecting jurisdiction, we will closely examine the basis of our jurisdiction, and we will dismiss the appeal if we lack jurisdiction. (See Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440.) The determination of whether this court has jurisdiction to entertain an appeal from a judgment which does not dispose of the entire proceeding initially turns on whether there has been compliance with Rule 304(a), that is, whether the trial court has made an express “written finding that there is no just reason for delaying enforcement or appeal” (134 Ill. 2d R. 304(a); Lurz v. Panek (1988), 166 Ill. App. 3d 179, 181). Absent such an express finding, a judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable. (Ferguson, 111 Ill. 2d at 442.) The purpose of this seemingly harsh rule is to discourage piecemeal appeals (First National Bank v. Lewis (1987), 163 Ill. App. 3d 160, 161), and we believe the rule is particularly applicable to the case at bar.

Supreme Court Rule 304(a) requires a trial court to make a two-pronged written finding that there is no just reason for delaying (1) enforcement or (2) appeal. Our review of prior decisions on this subject persuades us that, for a trial court’s finding under Rule 304(a) to confer jurisdiction to a reviewing court, the finding must address both prongs: enforceability and appealability; moreover, the finding must also track the language expressly stated in the rule. (See, e.g., Lurz, 166 Ill. App. 3d at 182 (absence of the enforcement language in the trial court’s statement contravened requirements of Rule 304(a)); Lewis, 163 Ill. App. 3d at 162 (failure of trial court to include language of appealability rendered order neither final nor appealable); Rauscher v. Albert (1985), 138 Ill. App. 3d 799, 803-04 (finding must address both prongs of enforceability and appealability to confer appellate jurisdiction, and failure to mention appealability in express written finding rendered finding jurisdictionally deficient). But cf. Lawyers Title Insurance Corp. v. Kneller (1988), 172 Ill. App. 3d 210, 212-13 (without citation to authority, the majority determined that the trial court’s mere reference to Rule 304(a) without stating the language of the rule itself constructively fulfilled the technical language requirement; a vigorous dissent by Justice Barry advocated a strict construction of the rule); Kucharski v. Floro (1989), 191 Ill. App. 3d 1032, 1033 (mere citation to Rule 304(a) without reciting exact language of the rule was sufficient to render order final and appealable).) We agree with the rationale in Justice Barry’s dissent (Kneller, 172 Ill. App. 3d at 215-17 (Barry, J., dissenting)) that the supreme court’s rules of appellate jurisdiction must be followed strictly. The language of Supreme Court Rule 304(a) is mandatory and precise, and the rule is not unduly burdensome to follow. We decline to follow the recent trend of decisions applying a liberal construction of the rule as has been done, for example, in Kneller and Floro.

In the present case, although defendant moved for a finding pursuant to Rule 304(a), the trial court only found that its order was final and that there was no just reason for delaying the appeal. There was no language with respect to enforceability. Accordingly, we do not consider the order final and appealable, and we must dismiss the appeal for want of jurisdiction. See Lurz, 166 Ill. App. 3d at 182.

We also point out that there is an additional reason why we do not have jurisdiction to hear this appeal. While Supreme Court Rule 304(a) permits appeals from orders that do not dispose of the entire controversy if there is the required finding described above, the fact that an order contains the required language does not make an otherwise nonfinal order appealable. (Carl Sandburg Village Condominium Association No. 1 v. First Condominium Development Co. (1990), 197 Ill. App. 3d 948, 951.) An order is considered final if it disposes of the rights of the parties either with respect to the entire controversy or some definite and separate portion thereof. (Hull v. City of Chicago (1987), 165 Ill. App. 3d 732, 733.) It is well established that the statement of a single claim in several ways, even by multiple counts, does not warrant a separate appeal. (Brown v. K.J.S. Co. (1989), 189 Ill. App. 3d 768, 770-71.) Generally, the controlling factor in determining whether an order appealed under Rule 304(a) is a final order is whether the bases for recovery under the counts that were dismissed are different from those under the counts left standing. Carl Sandburg, 197 Ill. App. 3d at 951-52.

With respect to counts I and III, defendant’s counterclaim, although stated in more than one count but stemming from the same operative facts, is premised on a theory of breach of contract, and defendant was seeking a declaration of his rights under two interrelated contracts. The trial court struck only a portion of defendant’s claim in count I. This partial adjudication of the rights of the parties stemming from their contractual relationship could not form the basis of a final order as to a separate branch of the controversy. The order of April 24, 1990, striking only a portion of count I and all of count III did not fully dispose of that part of defendant’s counterclaim sounding in contract. Under these circumstances, the order cannot be considered final. (See, e.g., Palatine National Bank v. Charles W. Greengard Associates, Inc. (1983), 119 Ill. App. 3d 376, 381; see also Cashmore v. Builders Square, Inc. (1990), 207 Ill. App. 3d 267, 271.) Additionally, count II, which alleged tortious interference with contractual rights, necessarily depends for its resolution on the trial court’s findings with respect to the existence of a valid and enforceable employment contract and a determination of the parties respective rights thereunder. Here, defendant’s basis of recovery in count II is inextricably intertwined with the contract action and, based on the facts of this case, cannot be resolved at this stage of the proceedings as an independent or separate branch of the controversy. We conclude that a finding under Rule 304(a) with respect to counts I, II, and III was premature.

Finally, even assuming arguendo that count II could stand alone because it sounds in tort, we would be forced to conclude that this count was not pleaded with the specificity required by our supreme court in HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 159. Because a conditional privilege had been interposed as a defense by the plaintiff shareholders and officers, defendant, in his counterclaim, was required to allege more than that the Tillerys “intentionally and unjustifiably” induced a breach of the employment contract. Such conclusory statements without supporting factual allegations are clearly insufficient to state a cause of action for intentional interference with contractual rights. (HPI, 131 Ill. 2d at 159.) Defendant was required to allege specifically how the breach was unjustified.

For the foregoing reasons, the appeal is dismissed.

Appeal dismissed. ■

WOODWARD and UNVERZAGT, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE FIRST NATIONAL BANK OF GENEVA, Plaintiff-Appellant, v. NORMAN E. LIVELY et al., Defendants-Appellees (The First National Bank of Geneva, as Trustee, Defendants).
    Second District
    No. 2—90—0497
    Opinion filed April 1, 1991.

      Paul A. Lewis and Lisa M. Nyuli, both of Alschuler, Putnam, McWethy, Funkey & Lewis, P.C., of Aurora, for appellant.
    Stephen M. Cooper, of Cooper, Storm & Petesch, of Geneva, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, The First National Bank of Geneva (Bank), appeals from an order entered in the circuit court of Du Page County granting the motion of defendants, Norman E. Lively and Shirley J. Lively (Livelys), to dismiss plaintiff’s action pursuant to section 2— 619(a)(6) of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(6)). The issue raised on appeal is whether the trial court erred in granting defendants’ motion to dismiss based on a previous release executed between the Livelys and the Bank. We reverse the judgment and remand the cause for further proceedings.

On May 29, 1982, a promissory note and a mortgage on property located in St. Charles, Illinois, were executed by the Livelys to the Bank. This property was later conveyed to a land trust of which the Bank became trustee and Mrs. Lively the sole beneficiary. The Livelys also had other dealings with the Bank as a result of the Livelys’ connection to Sunstream Aircraft, Inc., and Sunstream Jet Express, Inc. The Livelys and the two corporations subsequently were involved in litigation with the Bank which resulted in a settlement ending the litigation. The settlement consisted of three documents, contemporaneously entered into by the Livelys, the corporations, and the Bank. These documents, dated January 23, 1989, are: the “Final Settlement Agreement” signed by Mr. and Mrs. Lively individually, Mr. Lively as president of Sunstream Aircraft, Inc., and the First National Bank of Geneva, Inc., by its president John Van Thournout; the “Mutual Release” signed by the Livelys, Mr. Lively as president of Sunstream Aircraft, Inc., and the Bank; and the “Release” signed by First National Bank of Geneva, Inc., by John Van Thournout, its president. At the time these documents were signed, the bank was continuing as trustee of the property now in default.

In December 1989 the Bank instituted this suit to foreclose on the property it held in trust. The defendants filed a motion to dismiss under section 2—619(a)(6) of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(6)). The defendants asserted that under the “Mutual Release” the note held by the Bank and signed by the Livelys had been discharged. The “Mutual Release” contained very broad language of general release. The relevant parts include:

“THIS MUTUAL RELEASE is executed on the 23rd day of January, 1989, by and between NORMAN E. LIVELY, SHIRLEY LIVELY, and SUNSTREAM AIRCRAFT, INC. (hereinafter collectively referred to as ‘Lively’), and the FIRST NATIONAL BANK OF GENEVA, an Illinois banking corporation, its officers and directors (hereinafter collectively referred to as the ‘BANK’);
WHEREAS, LIVELY is indebted to the BANK by virtue of various notes, some, but not all of which have been reduced to judgment;
WHEREAS, LIVELY, has made certain claims against the BANK, which claims have been denied by the BANK;
WHEREAS, LIVELY and the BANK have settled and compromised all matters between them, and each agrees to release and discharge the other from any and all obligations arising from any and all past and present relationships now or previously existing between the parties.
NOW, THEREFORE, in consideration of payments made contemporaneously made [sic] with the execution hereof and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, LIVELY and the BANK hereby mutually release and discharge each other, their heirs, and legal representatives from all claims, demands, and causes of action, known or unknown, that either may now have or may claim to have arising out of or connected with, whether directly or indirectly, any relationship now or previously existing between them.”

The circuit court agreed with the Livelys that under the “Mutual Release” the note had been discharged, and the action for foreclosure was dismissed.

The plaintiffs now appeal and argue that the “Mutual Release” was not intended to have such a broad effect as the defendants assert since the “Mutual Release” does not mention specifically the note and mortgage in question or the trust relationship. The plaintiff also argues that the three documents executed on January 23, 1989, must be read together to discern the actual claims being released.

The recent case of Gillilan v. Trustees for Central States, Southeast & Southwest Areas Pension Fund (1989), 183 Ill. App. 3d 306, clearly states how releases are to be treated in Illinois.

“A release is a contract, whereby one party abandons a claim to another against whom the claim exists, and its interpretation is governed by the principles that govern contract law cases. (Aqua-Aerobic Systems, Inc. v. Ravitts (1988), 166 Ill. App. 3d 168, 171; Shultz v. Delta-Rail Corp. (1987), 156 Ill. App. 3d 1, 10.) The intention of the parties controls the scope and effect of the release, and such intent is to be discerned from the language used and the circumstances of the transaction. (Whitehead v. Fleet Towing Co. (1982), 110 Ill. App. 3d 759, 762-63.) Where a written release is clear and explicit, the court must enforce the release as written, and the meaning and intention of the parties should be gathered from the face of that document.” Gillilan, 183 Ill. App. 3d at 312.

In the present case, there are several problems with the release presented by the defendants. The “Mutual Release” itself speaks only very generally. While it does mention notes, it does not mention any specific notes, and again while it mentions claims the Livelys might have against the Bank, it does not mention specific claims. The “Mutual Release” then goes on to release both the Livelys and the Bank in very general terms.

“NOW, THEREFORE, in consideration of payments made contemporaneously made [sic] with the execution hereof and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, LIVELY and the BANK hereby mutually release and discharge each other, their heirs, and legal representatives from all claims, demands, and causes of action, known or unknown, that either may now have or may claim to have arising out of or connected with, whether directly or indirectly, any relationship now or previously existing between them.”

If this language were strictly construed, any claim arising out of any relationship existing at the time of the signing of the lease would be barred. This could potentially affect any claim arising out of the trust relationship that also existed at the time the release was signed. Under these circumstances, “Illinois courts will restrict the language of a general release to the thing or things intended to be released and refuse to interpret generalities so as to defeat a valid claim not then in the minds of the parties.” Gladinus v. Laughlin (1977), 51 Ill. App. 3d 694, 696.

It is impermissible, therefore, for a court to conclude that every claim that might have arisen under any relationship between the Livelys and the Bank is covered by the “Mutual Release.” The release alone is not clear and explicit but, rather, very general and vague. However, “in the absence of evidence of a contrary intention, where two or more instruments are executed by the same contracting parties in the course of the same transaction, the instruments will be considered together and construed with reference to one another because they are, in the eyes of the law, one contract.” Tepfer v. Deerfield Savings & Loan Association (1983), 118 Ill. App. 3d 77, 80; see also Magnuson v. Schaider (1989), 183 Ill. App. 3d 344, 357; McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 909.

Here, the two other documents executed with the “Mutual Release” provide answers concerning what relationships and claims the parties intended to be released. Of course, reading the “Final Settlement Agreement” and “Release” together with the “Mutual Release” is not a violation of the parol evidence or extrinsic evidence rule, as defendants claim, because these three documents constitute one contract. The defendants argue “[b]oth the meaning of the instrument, and the intention of the parties must be gathered from the face of the document without the assistance of parol evidence or any other extrinsic aids.” (Rakowski v. Lucente (1984), 104 Ill. 2d 317, 323.) However, because the three agreements were contemporaneously entered into, they are considered one contract and the information needed to determine what “claims, demands, and causes of action” were intended can be derived from the face of the three documents. Therefore, there is also no violation of the rule “[w]here a written release is clear and explicit, the court must enforce the release as written, and the meaning and intention of the parties should be gathered from the face of that document.” Gillilan v. Trustees for Central States, Southeast & Southwest Areas Pension Fund (1989), 183 Ill. App. 3d 306, 312, citing Costa v. Stephens-Adamson, Inc., 142 Ill. App. 3d 798, 800; Rakowski v. Lucente (1984), 104 Ill. 2d 317, 323.

We turn now to a discussion of the parties’ intentions as we discern them from the three writings that form the contract in this cause. Clearly, the intention stated on the face of the document was to create an agreement which would end the litigation, then in progress concerning the Bank, the Livelys, and the Livelys’ corporations, Sunstream Aircraft, Inc., and Sunstream Jet Express, Inc. The “Final Settlement Agreement” specifically refers to case No. L— KA — 840721 and the ongoing post-judgment matters still to be resolved by this agreement. The “Final Settlement Agreement” states in relevant part:

“WHEREAS the Bank has obtained a valid Judgment against LIVELY and SUNSTREAM in Case No. L KA 84 0721 in the Circuit Court of Kane County, and;
WHEREAS there are presently pending before the court various post judgment matters including a Citition [sic] to Dis-covey [sic] Assets, a Garnishment served on Continental Illinois National Bank and Trust Company of Chicago, and various objections and other pleadings to those post-judgment proceedings filed by the Defendants as well as Stephen M. Cooper, Attorney-at-Law, individually.”

The “Final Settlement Agreement” refers to the two releases that will be executed as part of the settlement. Even though there is general language in the “Final Settlement Agreement,” again this general language will not be so broadly construed as to allow a claim “not then in the minds of the parties.” (Gladinus, 51 Ill. App. 3d at 696.) In other words, the Bank arguably did not intend the note in question to be discharged anymore than the Livelys intended to preclude themselves from bringing a claim against the Bank as trustee for breach of its fiduciary duty.

Finally, there is another clue as to what claims were intended to be released by these three documents. In considering who signed the agreements and in what capacity, again it is clear that the documents were meant to end the still continuing litigation between the Bank and the Livelys concerning the Livelys’ corporations, Sunstream Aircraft, Inc., and Sunstream Jet Express, Inc. Both the “Final Settlement Agreement” and the “Mutual Release” were signed by the Livelys individually and Mr. Lively for Sunstream Aircraft, Inc. The “Mutual Release” itself does not even distinguish between the Livelys and Sunstream Aircraft, Inc. The entire release is written to refer to them collectively as the “Livelys.” The effect of this release was mutually to release the Bank on one side and the Livelys, collectively, on the other from potential claims and actions that could have occurred out of the litigation then in progress concerning Sunstream Aircraft, Inc. The release arguably was not intended to bar forever any action based on any possible relationship the Livelys and the Bank might have had at the time the release was signed.

We therefore reverse the judgment of the circuit court of Du Page County and remand the cause for further proceedings to determine the intent of the parties relative to the nature and extent of the release as well as other matters still pending before the circuit court.

Reversed and remanded.

McLAREN and GEIGER, JJ., concur.


author: JUSTICE McLAREN

text:
    WESTERN STATES INSURANCE COMPANY, Plaintiff-Appellant, v. KELLEY-WILLIAMSON COMPANY et al., Defendants-Appellees.
    Second District
    No. 2—90—1023
    Opinion filed April 4, 1991.

      Kevin J. Luther and Douglas J. Pomatto, both of Heyl, Royster, Voelker & Allen, of Rockford, and Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    Robert A. Fredrickson, of Reno, Zahm, Folgate, Lindberg & Powell, of Rockford, and Robert K. Slattery, of Freeport, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Western States Insurance Company, appeals from an order of the trial court dismissing its complaint for declaratory judgment and finding plaintiff is required to provide coverage to defendant, David Derwent, under its insurance agreement. Plaintiff contends the court erred by finding the policy exclusion concerning intentional acts did not apply. We affirm.

Plaintiff and defendant had entered into an insurance agreement, and this agreement was in effect at all relevant times. On July 19, 1988, defendant drove his automobile into a gas station owned by co-defendant, Kelley-Williamson Company (Kelley). Kelley filed suit against Derwent seeking damages as a result of the collision. Plaintiff filed a declaratory judgment action against both defendants, alleging plaintiff was not liable to defend Derwent or pay any judgment award under its insurance agreement as the insurance policy excluded coverage for intentional acts, and Derwent intentionally drove into Kelley’s building. Defendants claimed Derwent was insane at the time of the accident and could not have acted intentionally.

The court conducted a bench trial on July 17, 1990. Plaintiff submitted, and defendants stipulated to, the policy of insurance which included the provision excluding coverage for intentionally caused bodily injury or property damage. Defendants also stipulated to the admission of a transcript of a 1989 criminal proceeding against Derwent for criminal damage to property (Ill. Rev. Stat. 1987, ch. 38, par. 21—1(a)) arising out of the same occurrence. Lastly, defendants stipulated to the admission of a certified copy of the judgment order entered in the criminal case. The order revealed Derwent was found guilty but mentally ill of the offense charged and sentenced to 30 months’ probation.

Derwent also testified during the plaintiff’s case in chief as an adverse witness. (See Ill. Rev. Stat. 1987, ch. 110, par. 2—1102.) Derwent stated he drove his pickup truck into the gas station intending to commit suicide. Derwent also stated he knew he would damage the station by driving into it. Plaintiff rested its case after Derwent’s testimony.

Derwent then testified on his own behalf and recounted the events surrounding July 19, 1988. On July 17, Derwent gave a coworker some flowers. She responded with a note stating she was not interested as she was living with someone at the time. Derwent testified he then thought the woman was constantly screaming and yelling at him. He also believed other co-workers were saying terrible things about him.

Derwent further testified that, at approximately 3:30 p.m. on July 17, he packed his clothes in plastic trash bags, put them in the back of his truck and drove off. He did this because he thought everyone was against him and he had to escape from Freeport, Illinois, his place of residence. He intended to go to Kansas. Derwent heard voices speaking to him through his radio. The voices were calling him a sinner. He also heard voices coming through the air-conditioning ducts at a motel he stayed in that night. Derwent thought he would be killed if he returned to Illinois or continued to Kansas.

Derwent testified he turned back on July 18 intending to return home. He arrived in Cedarville, Illinois, at approximately 1 a.m. on July 19 and pulled into a parking lot.

Derwent testified he remained in the parking lot for approximately one hour. He determined that, instead of trying to escape, he would drive into the gas station and commit suicide. Derwent saw lights approaching, and he panicked. He drove into the building at a high rate of speed. Derwent testified he had never been treated for mental problems prior to the incident, but he has continued to hear voices since this incident.

Mr. Hugh Knapp, vice-president of operations at Jane Addams Community Mental Health Center, also testified. Knapp interviewed Derwent at approximately 3 a.m. on July 19. Knapp diagnosed Derwent as suffering from a psychotic disorder. In Knapp’s opinion, Derwent was mentally ill and incapable of making appropriate decisions or governing his conduct with good reason. Knapp did not believe Derwent had the mental capacity to form a rational intent.

Dr. Kamal Modir, a psychiatrist, also testified. Dr. Modir first met with Derwent in August 1988 at Jane Addams Mental Health Center. Dr. Modir diagnosed Derwent as suffering from schizophrenia, a psychotic disorder in which a person loses rational thinking and becomes delusional. Dr. Modir testified he considers Derwent to have been insane at the time Derwent drove into the building.

On cross-examination, Dr. Modir opined Derwent intended to drive his truck into the building and commit suicide.

Defendant also submitted the records of Singer Mental Health Center and Jane Addams Mental Health Center into evidence.

The trial court found Derwent was clinically and legally insane at the time of the occurrence and thereby incapable of forming the necessary intent required under the policy. The court determined plaintiff was required to provide Derwent with a defense in the suit filed by Kelley and all other benefits under the policy. Plaintiff timely appeals from this decision.

A court’s findings in a bench trial will not be disturbed upon review unless they are manifestly against the weight of the evidence. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110.) The trial court has provided this court with clear and complete statements of its findings. For the reasons set forth below, we determine the trial court’s findings are not against the manifest weight of the evidence.

Plaintiff first argues the trial court erred by failing to recognize the significance of defendant’s criminal conviction to the case at bar. Plaintiff contends the trial court did not consider the criminal conviction as prima facie evidence defendant’s acts were intentional.

It is established that proof of a criminal conviction is admissible in a civil case as prima facie evidence of the facts upon which the conviction was based. (Thornton v. Paul (1978), 74 Ill. 2d 132, 151; Rockford Mutual Insurance Co. v. Shattuck (1989), 188 Ill. App. 3d 787, 790.) The facts upon which Derwent’s conviction was based were established by stipulation. One such stipulated fact indicated Derwent drove into the station intentionally. Therefore, the certified copy of Derwent’s criminal conviction constituted prima facie evidence that Derwent’s actions were intentional.

The trial court, in paragraph 18 of its judgment order, discussed the prima facie case established by the conviction and stated, “[s]uch prima facie case, however, and any admissions made by Derwent’s attorney in order to procure the acceptance of what amounted to a plea bargain, this court finds are overwhelmingly overcome by the evidence produced in this case and the findings heretofore made.” We determine the above language, within the context of a review of all the evidence contained in the record, indicates the trial court correctly considered the criminal conviction as prima facie evidence of the facts underlying the conviction.

Plaintiff also contends Derwent’s stipulations in the criminal proceeding constitute judicial admissions which cannot be controverted in this civil proceeding. Plaintiff cites Batterton v. Thurman (1982), 105 Ill. App. 3d 798, in support of this contention. In Batterton, the defendant stipulated to certain facts in a battery prosecution. The defendant admitted facts necessary to sustain a criminal battery charge, namely, that he struck the plaintiff and injured him. The defendant did not plead guilty but, based upon the stipulated facts, an order of supervision was entered. Thereafter, an order of expungement was entered which impounded the court record. In the subsequent tort action, the plaintiff called the judge in the criminal proceeding to testify as to the stipulations the judge had recorded on the docket sheet. The court found this testimony to be admissible in the civil suit because, in the criminal case, defendant “made a binding admission to the fact he struck plaintiff and injured him.” Batterton, 105 Ill. App. 3d at 802.

We note that the court in Batterton found the stipulated facts in the criminal proceeding to be admissible in the subsequent tort suit. The court did not find the stipulations to be conclusive evidence of the battery. Although a judicial admission is binding upon the party making it and cannot be controverted (Rosbottom v. Hensley (1965), 61 Ill. App. 2d 198, 215), it is only a judicial admission in the proceeding in which it was made, and, in a subsequent case, it becomes an ordinary evidentiary admission which is not binding on the party who made it. (See Goodwin v. ITT Commercial Finance Corf. (1986), 146 Ill. App. 3d 810, 813-14 (a verified pleading is a judicial admission in the case in which it is filed but not in a subsequent case).) These prior admissions are admissible in later actions but may be explained or controverted. (Goodwin, 146 Ill. App. 3d at 814.) The trial court was correct in viewing the stipulated facts in the prior criminal proceeding as not being conclusive or binding on defendant.

Lastly, plaintiff argues the trial court erred in finding Derwent did not intend to cause damage to the gas station and in determining the exclusionary clause contained in the insurance policy did not apply.

In Aetna Casualty & Surety Co. v. Dichtl (1979), 78 Ill. App. 3d 970, this court stated:

“While acts performed by an insane person do not relieve that person from civil liability for the consequences of their actions [citation], a different rule is applied when considering whether such actions are ‘intentional’ within the meaning of an exclusionary provision in an insurance policy. The majority view is that the insured must have the mental capacity to form the requisite intent at the time that the injury is inflicted.” (Dichtl, 78 Ill. App. 3d at 975.)

Intent, as it applies to an exclusionary clause in an insurance policy means the actor desires to cause the consequences of his action or believes the consequences are substantially certain to result from it. Aetna Casualty & Surety Co. v. Freyer (1980), 89 Ill. App. 3d 617, 620.

Plaintiff also cites a Virginia Supreme Court case and claims the trial court erred by failing to take into consideration the degree of mental illness suffered by Derwent when determining if he intended to damage the gas station. (See Johnson v. Insurance Co. of North America (1986), 232 Va. 340, 350 S.E.2d 616.) Plaintiff is correct in that a subjective standard is applied when determining intent as it applies to an exclusionary clause in an insurance policy. (See Dichtl, 78 Ill. App. 3d at 977-78.) Each case should be reviewed to determine the extent of the particular party’s incapacitation as it relates to his ability to form intent. (See Badger Mutual Insurance Co. v. Murry (1977), 54 Ill. App. 3d 459; Mid American Fire & Marine Insurance Co. v. Smith (1982), 109 Ill. App. 3d 1121.) However, this is a factual question to be resolved by the trier of fact.

In the case at bar, the trial court found “Derwent was incapable of exercising free will at the time which is an essential element of specific intent.” Additionally, the court found Derwent “was clinically psychotic and legally insane at the time of the occurrence of July 19, 1988 and was thereby incapable of having [the] necessary intent required under the insurance policy issued by the plaintiff to exclude him from coverage.” This language expresses the court’s finding that the degree of mental illness suffered by Derwent was extreme. The court’s findings were based upon a thorough review of the evidence presented. After reviewing this same evidence, this court is not able to determine the trial court’s findings were against the manifest weight of the evidence.

For the above stated reasons, the judgment of the circuit court of Stephenson County is affirmed.

Affirmed.

GEIGER and INGLIS, JJ., concur.


author: PRESIDING JUSTICE REINHARD

text:
    JONATHON E. CASHMORE, Plaintiff-Appellant, v. BUILDERS SQUARE, INC., sometimes known as Builders Square, et al., Defendants-Appellees.
    Second District
    No. 2—91—0123
    Opinion filed April 5, 1991.

      Richard J. Smith, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellant.
    Glen E. Amundsen and Judith A. Chapman, both of Querrey & Harrow, Ltd., of Waukegan, for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Jonathon Cashmore, appeals from the circuit court of Lake County’s dismissal of his complaint against defendants, Builders Square, Inc., K mart, Mark Jorgenson and Robert Adams (hereinafter collectively referred to as Builders Square), seeking compensation for an injury sustained when Cashmore was an employee of Builders Square. The circuit court ruled, pursuant to section 2—619(a)(9) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(9)), that Cashmore’s common-law action could not be maintained because he had recovered for his injury pursuant to the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.).

At issue on appeal is: (1) whether Builders Square should be judicially estopped from arguing that Cashmore’s injury is covered under the Act when it took the opposite position in the proceeding on the workers’ compensation claim; and (2) whether the circuit court properly dismissed Cashmore’s complaint on the basis that he had recovered under the Act.

Cashmore’s injury occurred on September 26, 1986, at the Builders Square store in Waukegan, Illinois. Cashmore was riding a forklift down from the top of a high shelf unit when two of his fingers were partially amputated. In his complaint filed September 21, 1988, Cashmore alleged that his injury was proximately caused by Builders Square’s various acts of negligence.

In his November 4, 1988, response to Builders Square’s request to admit facts and genuineness of documents, Cashmore admitted that he had filed a worker’s compensation claim with the Illinois Industrial Commission (the Commission) to recover for the same injury forming the basis of the instant suit. Cashmore admitted that Builders Square had paid his medical bills and had also paid him an additional $3,274.28. Cashmore did not admit that these payments were made pursuant to Builders Square’s obligations under the Workers’ Compensation Act. Cashmore admitted the authenticity of the memorandum of decision prepared by the arbitrator in Cashmore’s case before the Commission.

The memorandum recited the arbitrator’s decision that Cashmore was entitled to receive $120 per week for a period of 274h weeks in compensation for his temporary total incapacity. The memorandum further noted that Cashmore had been paid the sum of $3,274.28 “on account of this injury.” The handwritten addendum to the memorandum of decision states, in pertinent part, as follows:

“Clearly the aforesaid accident occurred during the course of [Cashmore’s] employment by [Builders Square], but just as clearly, [Cashmore] failed to prove that this accident arose out of that employment. Claim for compensation is denied.”

Based on Cashmore’s admissions, Builders Square filed a motion pursuant to section 2—619(a)(9) of the Code seeking dismissal of Cashmore’s common-law action based on benefits he received “as a result of” his workers’ compensation claim. Citing Rhodes v. Industrial Comm’n (1982), 92 Ill. 2d 467, 442 N.E.2d 509, and Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 408 N.E.2d 198, Builders Square argued that Cashmore’s recovery of benefits pursuant to the Workers’ Compensation Act precluded him from maintaining a common-law action to recover for the same injury.

In response to the motion to dismiss, Cashmore noted that the decision of the Commission arbitrator was not res judicata because both parties had appealed from it and no final decision had yet been rendered by the Commission. Included with Cashmore’s response were copies of the parties’ petitions for Commission review of the arbitrator’s decision. Cashmore also maintained that any benefits he had received from Builders Square were not pursuant to any agreement to settle his rights under the Act. Such payments, Cashmore contended, do not constitute an admission of coverage under the Act. See Ill. Rev. Stat. 1989, ch. 48, pars. 138.8(a)(3), (b)(7).

The circuit court denied Builders Square’s section 2 — 619(a)(9) motion to dismiss Cashmore’s complaint. The record contains no report of proceedings corresponding to this order.

On February 14, 1989, Cashmore filed a motion pursuant to section 2—611 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—611) seeking sanctions against Builders Square for allegedly taking inconsistent positions in the circuit court, where it argued that the injury was compensable under the Act, and before the Commission, where it argued the opposite position.

Builders Square filed its response and affirmative defense to Cashmore’s complaint on March 28, 1989. In addition to denying Cashmore’s allegations of negligence, Builders Square contended that, because Cashmore had “received benefits paid under the Worker’s [sic] Compensation Act,” Cashmore could not recover in his common-law action. On October 20, 1989, Cashmore filed a motion to strike Builders Square’s affirmative defense. Cashmore contended that Builders Square should be estopped from arguing that Cashmore’s exclusive remedy was under the Workers’ Compensation Act when it had argued before the Commission that the Act did not apply.

On December 8, 1989, Builders Square filed a second motion to dismiss Cashmore’s complaint pursuant to section 2 — 619(a)(9) of the Code. Acknowledging that a virtually identical motion had been denied on December 22, 1988, Builders Square noted that, since that time, Builders Square had voluntarily dismissed its appeal of the arbitrator’s decision.

On January 30, 1990, the circuit court denied Cashmore’s motion to strike the affirmative defense and granted Builders Square’s motion to dismiss. The complaint was dismissed with prejudice “due to the [exclusivity provision” of the Act. (See Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a).) Again, there is no report of proceedings in the record.

After his motion for reconsideration of the order of dismissal was denied, Cashmore appealed to this court. We dismissed the appeal for want of jurisdiction because Cashmore’s section 2—611 motion had been left unresolved by the circuit court. (Cashmore v. Builders Square, Inc. (1990), 207 Ill. App. 3d 267, 565 N.E.2d 703.) The circuit court subsequently entered an order denying Cashmore’s section 2— 611 petition, and defendant has timely appealed.

We first examine Cashmore’s contention that Builders Square should be judicially estopped from arguing that Cashmore’s injury was covered under the Act when the exact opposite position was argued before the Commission. The doctrine of judicial estoppel, which precludes a party from adopting inconsistent positions in separate legal proceedings, is designed to promote the truth by preventing litigants from deliberately shifting positions to suit the exigencies of the moment. (Mijatov v. Graves (1989), 188 Ill. App. 3d 792, 796, 544 N.E.2d 809.) However, the doctrine only operates against a party who was successful in asserting the first position and received some benefit in the first proceeding. Galena Park Home v. Krughoff (1989), 183 Ill. App. 3d 206, 208, 538 N.E.2d 1366.

Here, as we will discuss more fully below, the nature of the arbitrator’s decision makes it unclear whether Builders Square’s original position was successfully argued in the proceedings before the Commission. Accordingly, judicial estoppel does not apply here.

Cashmore’s next argument is that the circuit court should not have dismissed his complaint when the Commission had not yet made a final determination of his eligibility for benefits under the Act. Section 2—619(a)(9) of the Code provides for the dismissal of a plaintiff’s complaint where it is barred by some affirmative matter avoiding the legal effect of or defeating the claim. Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(9).

Here, the affirmative matter presented by Builders Square was Cashmore’s purported recovery for his injury pursuant to the Act. It is not clear, however, that Cashmore has or will recover benefits in his proceeding before the Commission. An employee’s injury is not compensable under the Act unless it arises out of, and in the course of, the employment. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 481, 548 N.E.2d 1033.) The phrases, “in the course of,” and, “arising out of,” are used conjunctively in the statute; both elements must be present at the time of the accidental injury in order to justify compensation. Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 44-45, 509 N.E.2d 1005.

In the instant case, the arbitrator found that, while Cashmore proved that his injury occurred “in the course of” his employment, he “failed to prove that it arose out of that employment.” This finding arguably indicates that Cashmore’s injury would not be covered by the Act. (See Orsini, 117 Ill. 2d at 45, 509 N.E.2d at 1008.) However, the memorandum of the arbitrator’s decision recites that Cashmore was entitled to receive $120 per week for 274/7 weeks for temporary total incapacity, indicating that Cashmore prevailed. Whether it was the result of the arbitrator’s miscomprehension of the law or just a scrivener’s error, the memorandum of decision appears to be internally inconsistent. The parties also disagree as to what was intended by the arbitrator’s decision. Thus, it is impossible to determine on this record which party prevailed.

The record reflects, however, that Cashmore’s appeal of the arbitrator’s decision is pending. The timely filing of that appeal prevented the arbitrator’s decision from becoming the decision of the Commission (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(b)), and it is the Commission which must determine disputed questions under the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.18). The fact that Builders Square has withdrawn its appeal of the arbitrator’s decision does not necessarily mean the Commission will find that Cashmore is covered by the Act. The Commission’s review of the arbitrator’s decision is not limited to exceptions stated in Cashmore’s petition for review. Ill. Rev. Stat. 1989, ch. 48, par. 138.19(b).

Thus, the proceedings before the Commission have not yet established whether Cashmore is entitled to compensation under the Act. Cashmore’s eligibility for workers’ compensation is not admitted by Builders Square merely because they paid his medical expenses (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(a)(3)) or other compensation (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(b)(7)). Although Cashmore’s common-law negligence action would be barred if he had received compensation pursuant to an agreement executed in lieu of a claim and approved by the Commission (see Collier, 81 Ill. 2d at 241, 408 N.E.2d at 204), no such settlement agreement is present here. In fact, Cashmore continues to press his claim before the Commission for compensation under the Act. Where, as here, an employee with a pending workers’ compensation claim is uncertain of his ground for recovery, it is not improper to file a common-law action so as to toll the statute of limitations. Rhodes, 92 Ill. 2d at 471, 442 N.E.2d at 511.

In closing, we note that seeking dismissal of Cashmore’s complaint is not Builders Square’s only alternative to protect itself from exposure to duplicative claims. See Tumminaro v. Tumminaro (1990), 198 Ill. App. 3d 686, 556 N.E.2d 293 (discussing circuit court’s authority to impose a stay under section 2—619(a)(3) pending the outcome of administrative proceedings).

Accordingly, we hold that the circuit court improperly dismissed Cashmore’s complaint. The judgment of the circuit court of Lake County is, therefore, reversed, and the cause is remanded.

Reversed and remanded.

DUNN and UNVERZAGT, JJ., concur.


author: JUSTICE WOODWARD

text:
    CARY FIRE PROTECTION DISTRICT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Paul S. Anderson, Appellee).
    Second District
    No. 2—90—0321WC
    Opinion filed April 5, 1991.

      Thomas J. Flynn, of Law Offices of Jobin & Flynn, and Mary Pat Butler, of Law Offices of Tyrrell & Flynn, both of Chicago, for appellant.
    James A. Campion, Jane A. Busch, and R. Mark Gummerson, all of Holmstrom & Kennedy, of Crystal Lake, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Paul Anderson, a volunteer fireman employed by the Cary Fire Protection District (District), filed a claim for benefits against the District after he was injured while participating in a “water fight” sponsored by the Cary Fireman’s Association (Association). The arbitrator awarded benefits. The Industrial Commission (Commission) reversed the decision of the arbitrator. On review, the circuit court of McHenry County set aside the decision of the Commission and reinstated the decision of the arbitrator awarding benefits to the claimant. The District appeals. A summary of the pertinent testimony follows below.

Claimant testified that he is employed by the District as a volunteer fireman, his primary duty being that of engineer, which means he operates the pump unit to supply water to a fire scene. He has a classification as a Firefighter 2, which required him to obtain a certain number of hours in credited courses. There is also continuous training through the District on “drill nights,” which are held once per month. Drill nights provide training in specific areas, such as breathing apparatus, ladder climbing or other aspects of fire service work. Seminars to provide information on fire scene work are also provided. Firehose handling training would take place on Lake Julian two or three times per year. The training sessions or practices would consist of shooting water at barrels. According to claimant, the fire fighters would organize as teams and make a game of it.

Claimant testified that the Association differed from the District in that the Association was made up of the fire fighters in the District, as well as retired fire fighters. The Association was an incorporated organization that had a separate financial system from that of the District. While the District financed the equipment and maintained equipment for use in the District, the Association provided funds for expenditures not allocated for by the District.

Claimant testified further that on September 11, 1982, he participated in a water fight tournament at the McHenry County fairgrounds. He was participating as a member of the District team. Each team in the tournament got a hose and tried to push a barrel past the other team within two minutes of the referee’s command. Claimant’s team that day consisted of four men who worked with claimant in the District and one man from the Woodstock rural fire department. Claimant’s position was nearest to the nozzle. During the match with Woodstock, claimant injured his right leg. Claimant described how he was injured as follows:

“I was anticipating the barrel coming over the wire and across the Court and when it did I anticipated that movement, pulling the line with me and trying to match with that barrel going across the Court and at the end of my push, an extension of my leg, my leg snapped over.”

According to claimant, while he was participating in the tournament, he wore a helmet, coat and boots which were furnished to him by the District. He also wore a team shirt, which was paid for by the District. The other equipment, such as hoses, nozzles, engines, etc., was provided by the host team, as were the referees. The equipment used in the water fight tournament was identical to that used to fight a fire. There is a 10-pound difference in the water pressure used due to the different size tip on the hose nozzle.

The Association sponsored such tournaments two times per year at Cary. Teams from several of the surrounding counties were invited to participate. About 12 to 15 Cary firemen participated in the water fight, although the whole department would turn out for the tournament. The Association paid for insurance to cover the spectators. Refreshments were paid for by the Association. No admission fee was charged, though donations could be made, and the donated funds were used to pay expenses for the tournament, and any extra funds would be kept by the Association. A practice was held prior to the tournament at Lake Julian. The Association provided the equipment, and almost everyone from the fire department participated. It was claimant’s understanding that if the practice was held on a drill night, there was insurance coverage for the practice. Each member of the Association was given 10 tickets to sell. Ticket sales earned the Association approximately $350.

Claimant testified further that participating in water fights benefited him in that he was better able to handle the water hose in actual fire fighting and acquired feeling of camaraderie with the other fire fighters that enabled them to function as a team while fighting fires. Water fighting also built up his physical stamina. Mishandling a fire hose can severely injure both persons and property. Contact with firemen from other counties during the tournament aids in situations where different departments are fighting a common fire.

On cross-examination, claimant testified that he was never ordered or compelled by the District to participate in water fighting tournaments. He pays yearly dues of $20 for membership in the Association, which amount is not reimbursed by the District. Claimant did receive water hose training through the District. Claimant further testified that the Association sponsored parties, a Christmas party, a turkey raffle and drawings. The Association also made donations to charity such as the fire victims’ fund.

Randall Ray Schlottman testified that he was employed as a fire fighter by the District for seven years beginning 1974-75. While he was employed by the District, he participated in the monthly training sessions held by the Association. The only hands-on training utilizing the fire hoses under pressure was the water fights. According to Schlottman, about three-quarters of the men in the Association participated at one time or another in the water fights. The techniques and equipment used in the water fights were the same as were used in fire fighting. In Schlottman’s opinion, participation in the water fights benefited him as it enabled him to know the capabilities of his fellow fire fighters. It was also a good morale booster. Schlottman explained that a mishandled fire hose could cause serious injuries.

On cross-examination, Schlottman testified that participating in the water fighting tournament was voluntary.

Ernest Carlson testified that he is employed by the District as a fire fighter and has been for the past 10 years. His training on the fire hose consisted of participating in the water fights. The equipment and the techniques for water fighting are the same as they are for fire fighting. He had some training as an engineer. The engineer’s duties are in some cases the same in water fighting as they are in fire fighting. He felt that water fighting was a good training procedure because there was no training like actually handling the hose. Water fighting had given him experience in drafting water quickly, and he had trained a few firemen himself on using the engine through water fighting. He recalled one occasion on which the fire chief had said they were going to have a water fight so as to familiarize the new men with the department how to handle the fire hose.

Clifford Anderson, father of the claimant, testified that he has been a volunteer fireman with the District since 1946. He presently holds the position of assistant chief. He participated in water fights from 1946 until three or four years before the arbitration hearing. The equipment and the techniques in water fighting and fire fighting are similar.

Anderson testified that the water fights were held to attract people to activities, such as carnivals, festivals or benefits the Association was working on. Anderson would pass out tickets to each fireman and had information about water fight meets and tournaments printed in newspapers.

According to Anderson, participation in water fights gave individual firemen improved ability to handle and patrol the fire hoses. It also assisted the engineers in drafting and pumping operations. On the whole, water fighting made better firemen.

The arbitrator concluded that claimant’s injury arose out of and in the course of his employment. The arbitrator based his conclusions on the fact that all of the claimant’s witnesses believed that water fighting was a useful training device “because hose handling techniques were developed and honed, team work was encouraged and morale uplifted.” The arbitrator also relied on the fact that the fire chief, who was designated president of the Association, was responsible for training of the firemen and had in essence utilized the Association “as an instrument of his training and education program for the fire fighters.”

On review, the Commission reversed the decision of the arbitrator. The Commission found that “notwithstanding that the event [water fighting] might have enhanced the skills of participating fire fighters and the activity was similar to that engaged in at District training drills, *** [claimant] was injured while voluntarily engaging in a recreational program.”

The claimant appealed the Commission’s decision to the circuit court of McHenry County. The circuit court set aside the Commission’s decision and reinstated the decision of the arbitrator. The circuit court found that the Commission’s decision denying benefits was against the manifest weight of the evidence because the evidence supported the arbitrator’s finding that the claimant was engaged in a training activity rather than a recreational activity as the Commission had found. The District appeals from the decision of the circuit court.

The sole issue on appeal is whether the decision of the Commission is against the manifest weight of the evidence.

Section 11 of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.11) provides in pertinent part as follows:

“Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof. This exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program.”

It is undisputed that claimant voluntarily participated in the water fighting event in which he was injured. The issue to be resolved here is whether claimant was engaged in a “recreational” program which, under section 11 of the Act, would bar him from receiving compensation for his injury. The term “recreational program” has not previously been defined by our case law, nor is it defined in the Act.

The Commission’s findings of fact are not to be set aside by a reviewing court unless contrary to the manifest weight of the evidence. (Law Offices of William W. Schooley v. Industrial Comm’n (1987), 151 Ill. App. 3d 1069, 1074-75.) Its determinations will not be set aside if they are supported by credible evidence in the record. (Lyons v. Industrial Comm’n (1983), 96 Ill. 2d 198, 202.) Even though the facts are undisputed, where such facts permit more than one reasonable inference, then a question of fact is presented, and the conclusion of the Commission on the fact will not be disturbed by a reviewing court unless it is against the manifest weight of the evidence. (Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill. 2d 52, 60.) A reviewing court will not overturn the Commission’s findings simply because different inferences could be drawn, or otherwise substitute its judgment for that of the Commission. Hoegger v. Industrial Comm’n (1987), 158 Ill. App. 3d 1025, 1029.

The issue presented by this case is whether the claimant was participating in a voluntary recreational activity or program. The determination of this issue presents a factual question. It is undisputed that the claimant was not ordered to participate in the tournament; accordingly, his participation was voluntary. The portion of section 11 of the Act previously set forth clearly excludes voluntary recreational programs even if the employer pays some or all of the cost thereof. Here, the employer paid none of the cost and did not order or assign the claimant to participate in the program or event in which the claimant was injured. There was evidence that the District and Association were separate entities although sharing many of the same members. The Association rather than the District sponsored the water fighting event. The fire fighters were not compensated for participating in these tournaments.

We are of the opinion that the record in this case supports the Commission’s finding that, by participating in the water fighting tournament, claimant was engaged in a voluntary recreational activity. Such a determination by the Commission is not against the manifest weight of the evidence. We are bound by the Commission’s finding that the claimant was participating in a voluntary recreational activity when he was injured. Thus, the circuit court of McHenry County erred in setting aside the decision of the Commission.

The judgment of the circuit court setting aside the decision of the Commission is reversed, and the decision of the Commission denying benefits to claimant is reinstated.

Judgment reversed; Commission’s decision reinstated.

McCULLOUGH, P.J., and McNAMARA, STOUDER, and LEWIS, JJ., concur.