author: MR. JUSTICE MORAN

text:
    (No. 51625.
    THOMAS D. CULLOTTA, Appellant, v. KEMPER CORPORATION et al., Appellees.

      Opinion filed December 3, 1979.

      Richard C. Kelly, of Crystal Lake, for appellant.
    John Narusis, Jr., of Crystal Lake, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The circuit court of McHenry County granted a motion for summary judgment in favor of defendants, Kemper Corporation and Economy Fire & Casualty Company (insurer), after finding that plaintiff’s auto insurance coverage was not in effect at the time of plaintiff’s loss. The appellate court affirmed (66 Ill. App. 3d 812) and we granted plaintiff (insured) leave to appeal.

The following facts were established by the pleadings and affidavits. The insurer issued a policy of automobile insurance to the insured for the period of May 15, 1975, to November 15, 1975. On December 8, 1975, the insurer sent the insured notice that, effective December 18, 1975, his policy would be cancelled for nonpayment of a renewal premium of $218.50, due November 15, 1975. On December 30, 1975, the insurer received an undated check from the insured in the amount of $218.50. One of the insurer’s employees made a notation — “Reinstate 12-30-75 KJ” — on the in-house copy of the insured’s cancellation document. The insurer then sent a renewal policy of insurance to the insured which stated that the policy was reinstated to cover the period from November 15, 1975, to May 15, 1976.

On January 4, 1976, the insured reported to the police that his automobile had been stolen. The next day, the police notified both the insured and the insurer that the automobile in question had been found in Chicago but that it had been destroyed by fire.

The insured’s check, marked “insufficient funds,” was returned to the insurer by the bank on either January 6 or 8. The insured’s account had contained sufficient funds to cover the check until January 6, 1976. On January 9, 1976, the insured received notification from his bank that the check had not cleared, and, on January 15, 1976, without notice to the insurer, he deposited $500 in his checking account to cover the check. The insurer did not present the check a second time for payment. On January 20, 1976, the insurer sent a letter to the insured in which it advised him of the return of his check due to insufficient funds and notified him that his coverage was terminated as of November 15, 1975. The letter also stated that coverage under the policy was “contingent upon payment of the premium.” This was the first time conditional language was used in any communication between the parties. On January 22, the insured received the letter and immediately forwarded a cashier’s check for the amount due on the policy. The insurer refused to negotiate the cashier’s check.

The question presented for review is whether a contract for insurance was formed when the defendant insurance company received the insured’s check of $218.50 for the overdue premium or whether the contract was conditioned on the check being honored upon presentation for payment. The appellate court, in affirming the trial court’s grant of summary judgment in favor of the insurer, held that there were no facts presented to suggest that the check was accepted unconditionally. We reverse that holding.

The general rule is embodied in the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 2 — 511(3)):

“[P] ayment by check is conditional and is defeated as between the parties by dishonor of the check on due presentment.”

However, it is clear that the rule may be altered by the express or implied intentions of the parties. 43 Am. Jur. 2d Insurance sec. 565 (1969); Annot., 50 A.L.R.2d 630, 633, 642 (1956); 6 Couch, Insurance sec. 31:45 (2d ed. 1961).

This court has not addressed the specific issue before us. Of those jurisdictions which have passed upon the effect of a dishonored check as payment for insurance premiums, the majority have found that, under proper circumstances, a check may act as absolute satisfaction despite the fact that the check is later dishonored. (E.g., National Life Co. v. Brennecke (1938), 195 Ark. 1088, 115 S.W.2d 855; Thorson v. Wisconsin Life Insurance Co. (1938), 227 Wis. 254, 278 N.W. 416; Phillips v. Lagaly (10th Cir. 1954), 214 F.2d 527.) Some jurisdictions have focused on the question of whether the insurer intended the acceptance of the check to be absolute or conditional. (New York Life Ins. Co. v. Miller (9th Cir. 1943), 135 F.2d 550; Bartleman v. Humphrey (Mo. 1969), 441 S.W.2d 335.) Other jurisdictions have viewed the determinative issue as one of waiver when it was found that the insurer intended to accept the premium check as absolute payment. (Martin v. New York Life Ins. Co. (1925), 30 N.M. 400, 234 P. 673.) The result under both approaches is that, absent fraud on the part of the insured, once the insurer accepts the check without evidencing an intent to do so conditionally, it can no longer exercise its right to declare the policy lapsed due to nonpayment, even though the check is later dishonored. Van Hulle v. State Farm Mutual Automobile Insurance Co. (1969), 44 Ill. 2d 227, 230; National Life Co. v. Brennecke (1938), 195 Ark. 1088, 1095, 115 S.W.2d 855, 858; Bartleman v. Humphrey (Mo. 1969), 441 S.W.2d 335, 343; New York Life Ins. Co. v. Miller (9th Cir. 1943), 135 F.2d 550, 551; Thorson v. Wisconsin Life Insurance Co. (1938), 227 Wis. 254, 257, 278 N.W. 416, 417.

The classification of the acceptance as absolute or conditional is determined according to the facts and circumstances surrounding the transaction and is a question of fact to be determined by a jury or trier of fact. Bartleman v. Humphrey (Mo. 1969), 441 S.W.2d 335, 343; Central States Life Ins. Co. v. Johnson (1937), 181 Okla. 367, 369, 73 P.2d 1152, 1154; State Life Ins. Co. v. Nolen (Tex. App. 1930), 24 S.W.2d 22, 23.

In Bartleman v. Humphrey (Mo. 1969), 441 S.W.2d 335, the insured was covered by an automobile insurance policy, issued by M.F.A. Mutual Insurance Company, which was paid up through November 29, 1960. The insured received notice that a renewal premium would be due on that date. The notice included a statement that the policy would be void if a check for premium was dishonored. When the renewal premium was unpaid, the policy lapsed. The insured went to the office of the company’s local agent, applied for new insurance with different coverage, and gave the agent a check to cover a three-month premium. Coverage under the new policy was to commence, retroactively, on November 29, 1960. The agent issued a 30-day binder which contained the same conditional language as the notice of renewal. The agent mailed the check and application to the company’s central office, where it was accepted and processed, and a policy was printed and issued to the insured for coverage from November 29, I960, to February 29, 1961. The policy contained no conditional language. The check was subsequently dishonored upon presentation for payment, the insured was so advised by the insurer’s letter of December 27, 1960, and was therein notified that the policy had lapsed for nonpayment of premium. The insured received this letter on January 6, 1961, and immediately forwarded a money order for the same amount. The insurance company received the money order on January 9, 1961, and reinstated the policy effective that date at 9 a.m. At 6:10 a.m. of the same day, the insured had a collision. The insurance company denied coverage of the claims arising from that accident asserting that, at the time it occurred, the policy had lapsed.

The Supreme Court of Missouri held that these facts presented a submissible case in which the jury must determine whether the check was accepted as absolute payment and stated:

“Under such circumstances, the policy was the equivalent of an unconditional receipt, at least to the extent of raising a jury question on unconditional receipt of premium, thereby placing insurance in force with a period extending through the date of casualty.” (Bartleman v. Humphrey (Mo. 1969), 441 S.W.2d 335, 344.)

Factors which the Bartleman court found indicative of the insurer’s unconditional or absolute acceptance were the issuance of the policy document, the absence of conditional language within the policy, and the treatment and processing of the check as though a cash premium had been paid. See also Martin v. New York Life Ins. Co. (1925), 30 N.M. 400, 234 P. 673 (acceptance of a personal check and issuance of an official receipt); Thorson v. Wisconsin Life Insurance Co. (1938), 227 Wis. 254, 278 N.W. 416 (absence of conditional language on check receipt and the insured’s reliance on the insurer’s past conduct in accepting checks as cash); National Life Co. v. Brennecke (1938), 195 Ark. 1088, 115 S.W.2d 855 (premium notice was marked “paid” and the good faith of the insured was shown by the fact that there were sufficient funds in his account when the check was drawn and the fact that he forwarded a money order when notified of the check’s dishonor).

This court is cognizant of the fact that proof of the insurer’s intent at the time it accepted the insured’s check is necessarily within the control of the insurer itself. It is imperative to allow issues as to the intent of an insurer to go to the jury upon the presentation of some evidence by the insured of unconditional acceptance, inasmuch as the insured is limited in his ability to prove the opposing party’s subjective state of mind.

The general rule in Illinois is that delivery of a receipt showing payment upon acceptance of a check raises a presumption that such payment has been made. (Greenough v. Taylor (1856), 17 Ill. 602, 603-04.) In the case at bar, the renewal policy of insurance, issued without conditional language, is, under Bartleman v. Humphrey (Mo. 1969), 441 S.W.2d 335, 344, equivalent to a receipt and, therefore, raises the presumption that the check was taken in absolute payment of the premium. Where the insured has introduced evidence of an unconditional receipt, the burden shifts to the insurer to show that it intended to accept the check conditionally. Martin v. New York Life Ins. Co. (1925), 30 N.M. 400, 407, 234 P. 673, 676; National Life Co. v. Brennecke (1938), 195 Ark. 1088, 1097, 115 S.W.2d 855, 859.

We hold that the facts and circumstances presented in the pleadings and affidavits were sufficient to pose for the jury or trier of fact the question of whether the insured’s check was accepted by the insurer as absolute payment of the premium due or was accepted on condition of its being honored upon presentation for payment. Other facts to be considered in deciding the question include, but are not limited to, (1) the fact that, upon receipt of the insured’s check, the insurer’s employee made a notation (“Reinstate 12-30-75 KJ”) on the in-house copy of the insured’s cancellation document; (2) the fact that the insured had sufficient funds in his checking account to cover the check when it was drawn and up to January 6, 1976; (3) the fact that the insurer received the check in question marked “insufficient funds” on either January 6 or 8 but did not return the check to the insured until January 20, 1976; and (4) the fact that upon notice by the insurer of the dishonored check, the insured immediately forwarded a cashier’s check in the same amount, as evidence of his good faith.

Insurance, and particularly automobile coverage, now plays a critical role in society. Countless numbers of persons who have been injured in collisions would be dependent upon public aid were it not for the financial protection afforded by the insurance industry. Therefore, “[f] orfeiture of an insurance contract for nonpayment of premium is not favored in the law, and courts are prompt to seize upon circumstances which indicate a waiver of forfeiture.” (Van Hulle v. State Farm Mutual Automobile Insurance Co. (1969), 44 Ill. 2d 227, 232.) We note that other courts have taken a similar stance on insurance forfeitures. National Life Co. v. Brennecke (1938), 195 Ark. 1088, 1098, 115 S.W.2d 855, 859; Martin v. New York Life Ins. Co. (1925), 30 N.M. 400, 406-07, 234 P. 673, 675-76; Bartleman v. Humphrey (Mo. 1969), 441 S.W.2d 335, 343.

For the reasons stated, the judgments of the circuit court and the appellate court are reversed and the cause is remanded to the circuit court for further proceedings in accordance with the views expressed herein.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 51628.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHARLES MALONE, Appellee.

      Opinion filed December 3, 1979.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr, Iris E. Shoulder, and Joel A. Eisen-Stein, Assistant State’s Attorneys, of counsel), for the People.
    Ralph Ruebner and Gordon Berry, Deputy Defenders, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, the defendant, Charles Malone, was convicted of armed robbery. The appellate court reversed and remanded for a new trial (67 Ill. App. 3d 150), holding that defendant’s prior convictions for misdemeanor theft were not admissible to impeach his credibility. We granted the State leave to appeal.

Richard Mitchell, the victim of the armed robbery, testified, in pertinent part, as follows. At 4:15 a.m., on June 20, 1976, Mitchell entered the lobby of a residential building at 559 East Browning, in Chicago. He saw the defendant, already present in the lobby, push the button to summon the elevator. The elevator (which was illuminated by two light bulbs) arrived and the two embarked, Mitchell to go to his mother’s apartment on the seventh floor. Defendant pushed the third-floor button. The elevator stopped at the latter floor and, after the doors opened, defendant held them open with his foot, pointed an object covered with a bag at Mitchell, and said, “Give it up, brother, this is a stick up.” Mitchell handed defendant $40 he had in his pocket. Upon defendant’s further demand, and after observing the handle of a gun, exposed when defendant partially removed the bag, Mitchell gave his wristwatch to the defendant. Defendant exited, allowing the elevator doors to close. The elevator carried Mitchell to the seventh floor, where he entered his mother’s apartment, armed himself with a butcher knife, and left to search the neighborhood for the defendant. After an hour of fruitless search, Mitchell returned to the apartment to await his mother, who arrived at approximately 10:30 a.m. Shortly thereafter, he called the police and subsequently gave the details of the incident and a description of the defendant to the attending officer, Duhig, who testified in corroboration. (On cross-examination, Mitchell stated that the description he gave the police included the fact that the offender had an Afro, or “natural,” hairstyle.)

Mitchell further testified that, in the late afternoon of September 3, 1976, as he drove in the neighborhood of his mother’s apartment, he saw the defendant standing with several other people. Mitchell summoned a nearby police car and told the two patrol officers that he had just seen the man who had earlier robbed him. He got into the police car and directed the officers to the place where defendant stood. The driver stopped the car near the group. After Mitchell got out of the police car, the defendant saw him and started to run, but halted when the officers ordered him to do so. Defendant was the only member of the group who attempted to run. Mitchell’s testimony in this regard was corroborated by Officer Triche, who, with Officer Montgomery, had manned the patrol car which Mitchell approached that afternoon.

For the defense, defendant’s aunt and uncle both testified that defendant, who had lived with them during the summer of 1976, had a “perm,” or straightened, hairstyle during that time. Lloyd Moore and Ralph Love, friends of the defendant, also testified that defendant had a “perm” hairstyle during that summer.

Defendant took the stand and testified that, at the time of the alleged robbery, he was asleep at the home of his aunt and uncle, about 3M> blocks from the scene of the incident. He also stated that during that summer, including the day of June 20, he had a “perm” hairstyle. When cross-examined as to why he ran when Mitchell and the police officers exited the police car on September 3, 1976, defendant stated he had not run, but had merely taken two steps to avoid being hit by the police car.

As part of the State’s rebuttal, certified copies of two of defendant’s prior convictions for misdemeanor theft were read into the record to impeach defendant’s credibility. One of the convictions had been entered on March 15, 1974, and the other on December 23, 1974.

The appellate court held the evidence of these convictions inadmissible because of its belief that, under People v. Montgomery (1971), 47 Ill. 2d 510, misdemeanor theft is not a crime involving dishonesty. (67 Ill. App. 3d 150, 153-55.) Since the date of the appellate court opinion, however, this court has considered precisely the same issue in People v. Spates (1979), 77 Ill. 2d 193. There, the court held that theft is a crime involving dishonesty or false statement. (77 Ill. 2d 193, 202-03.) We therefore find the appellate court’s resolution of that issue in error.

Montgomery’s holding renders prior convictions inadmissible when the judge determines that the probative value of the evidence of the crime is outweighed by its prejudicial effect. In Spates, we stressed that this determination involves the exercise of discretion on the part of the trial judge. (77 Ill. 2d 193, 204-05. See also People v. Ray (1973), 54 Ill. 2d 377, 380-83.) In the case at bar, defendant made a motion in limine to prohibit the introduction of any of his prior convictions. The State responded by disclosing its intention to introduce four prior convictions of defendant, but the trial judge limited the State to two of the four convictions.

Defendant does not contend that the trial judge abused his discretion at the time of that ruling. Rather, defendant argues that introduction of prior convictions was unnecessary and denied him a fair trial because, prior to their introduction, other evidence introduced had the same impeaching effect as the introduction of prior convictions. Specifically, defendant points to two instances wherein the jury was allegedly exposed to such evidence. First, during cross-examination of defendant, when asked, “Who gave you that hairstyle?”, defendant responded, “Well, I got the hairstyle in the County Jail.” Second, as part of the State’s rebuttal, police officer Fashingbauer was called to describe defendant’s appearance on July 31, 1976, and to identify a photograph taken of defendant on that date. The photograph depicted defendant with a “natural,” rather than a “perm,” hairstyle. This testimony contradicted the earlier defense testimony regarding defendant’s appearance at the time in question.

Defendant does not contend that, such evidence was inadmissible. Instead, he argues that, because this testimony effectively exposed his prior encounters with legal authorities, evidence of his prior convictions was inadmissible. We note, additionally, that, at trial, defendant did not object on this basis to the subsequent introduction of prior convictions. We deem defendant’s contention to be without merit and conclude that the trial judge did not err in exercising his discretion by allowing the introduction of the two prior convictions.

Also, defendant contends that he was denied a fair trial by a damaging “trial within a trial” regarding the prior misdemeanor theft convictions, by the reading of the two convictions, and by the improper closing argument of the prosecutor.

The two prior misdemeanor theft convictions which the State intended to use to impeach defendant’s credibility were in names other than that of Charles Malone. The trial judge refused to allow the State to use them unless either the defendant stipulated that he was the person convicted in the prior proceedings or the State proved it. Defendant refused to so stipulate. The State thereafter proceeded, over objection, to present identification evidence. Specifically, the State called the arresting officers in each of the prior proceedings and a patrolman technician from the Chicago Police Department Identification Section. The arresting officers both testified that defendant was the same person whom the officers had arrested and fingerprinted in the prior cases. The patrolman technician testified that the fingerprints taken in each of the prior cases matched each other and that both, in turn, matched the fingerprints taken of the defendant in the instant proceeding. Defendant argues that this testimony constituted a “trial within a trial” which caused the jury to focus its. attention on the prior convictions. In support thereof, defendant cites People v. DeHoyos (1976), 64 Ill. 2d 128, and People v. Madison (1974), 56 Ill. 2d 476, wherein this court denounced the introduction of excess evidence of prior convictions for impeachment purposes. In DeHoyos, it was held error to impeach a witness with evidence concerning a prior conviction by any means other than by proof of the conviction itself. (64 Ill. 2d 128, 131-33.) In Madison, the court reiterated the rule that impeachment of the defendant should be by means of the record of conviction or an authenticated copy and not additionally by cross-examination. (People v. Madison (1974), 56 Ill. 2d 476, 488; People v. McCrimmon (1967), 37 Ill. 2d 40, 45, cert denied (1967), 389 U.S. 863, 19 L. Ed. 2d 131, 88 S. Ct. 120. But see People v. Davis (1976), 65 Ill. 2d 157, 164.) In these cases, however, unlike the case at bar, identification was not an issue. Although proof of prior convictions for impeachment purposes need not be made beyond a reasonable doubt (People v. Stewart (1961), 23 Ill. 2d 161, 164; People v. Buford (1947), 396 Ill. 158, 161), such proof includes identification of the defendant as the same person convicted in the previous case (People v. Davis (1976), 65 Ill. 2d 157, 164). Inasmuch as, here, the names were different on the prior convictions and defendant refused to stipulate that he was the same person, the State was required to prove that defendant was, in fact, the same person as was convicted earlier.

Defendant further argues that the testimony of the police officers should have been given in camera and, if the trial judge determined that identity was established, then read back to the jury. In this regard, we note the general rule that when the admissibility of evidence depends upon an incidental question of fact, such question is for the judge, rather than the jury, to resolve. (Hoch v. People (1905), 219 Ill. 265, 279; McCormick, Evidence sec. 53 (2d ed. 1972); Maguire & Epstein, Preliminary Questions of Fact in Determining the Admissibility of Evidence, 40 Harv. L. Rev. 392 (1927).) The admissibility of the prior convictions in this case depended upon whether defendant was the person convicted of the earlier crimes, a question of fact. Because the prior convictions were in names other than that of Charles Malone, absent a stipulation, the court had to have evidence before it to establish that the persons named were one and the same. While it may have been preferable, as defendant suggests, for the judge to take this evidence in camera, we find no reversible error here, where the singularity of identities was clearly established and where the State was permitted to elicit only such testimony as was necessary to establish identity. Moreover, the jury was instructed that evidence of defendant’s previous convictions was to be considered only insofar as it may have affected his credibility, and not as evidence of guilt of the crime charged.

Defendant’s challenge to the reading of the two conviction statements is not well taken in that, as noted earlier, this is the proper method by which a defendant’s credibility may be impeached with a prior conviction.

Finally, we have reviewed the record in connection with defendant’s argument that the prosecutor made an improper closing argument. We find that the complained-of comments were either proper comment on the evidence or proper rebuttal, or that objections were made and properly sustained, resulting in no substantial prejudice to the defendant.

For the foregoing reasons, the judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 51705.
    SALLY KRASNOW et al. v. BRUCE BENDER et al. (Heller & Morris, Appellants, v. Yellow Cab Company et al., Appellees).

      Opinion filed December 3, 1979.

      Heller & Morris, of Chicago (Benjamin H. Cohen and Hugh J. Schwartzberg, of Schwartzberg, Barnett & Cohen, of counsel), pro se.

    Jesmer & Harris, of Chicago (Charles Tannen and A1 Wiederer, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This cause is before the court on appeal from an order of the Appellate Court, First District, dismissing the appeal on the ground that the orders from which it was taken were not final and appealable. In the first order from which review was sought, the circuit court of Cook County directed counsel for the plaintiffs to pay a fixed sum of money on a specified date for the cost of a scheduled medical examination and for attorney’s fees. The order imposed sanctions authorized under our Rule 219(c) (58 Ill. 2d R. 219(c)) for failure to comply with discovery. In the second order, the circuit court denied plaintiffs’ counsel’s motion to vacate the order imposing the sanctions.

The challenged orders were entered in the course of a personal injury action filed by Sally Krasnow and Anna Nazarowski against Yellow Cab Company and its employee, Bruce Bender. At a pretrial conference, the parties agreed, with the acquiescence of the trial judge, that plaintiff Krasnow would be examined by Dr. I. Joshua Speigel pursuant to our Rule 215 (58 Ill. 2d R. 215). Krasnow appeared for the examination, but, on advice of counsel, she refused to give a medical history. Dr. Speigel then refused to conduct the examination.

Thereafter, Yellow Cab Company petitioned the court for, among other relief, sanctions to be imposed on plaintiffs’ counsel, Heller and Morris, for obstructing the medical examination to which Krasnow had agreed. After a hearing, the trial court, on August 19, 1977, ordered Krasnow to appear for a physical examination and to give a medical history in connection with the examination. The August 19 order further directed that “[t] he law firm of Heller and Morris shall, within 7 days from today pay to Yellow Cab Company $75.00 to reimburse it for Dr. Speigel’s fee, and to Jesmer and Harris [defense counsel] the sum of $100.00 as attorney’s fees.”

On August 30, 1977, the trial court denied Heller and Morris’ motion to vacate the August 19, 1977, order. The court found that the petition for sanctions adjudicated in the August 19 order was a matter separate and distinct from the issues to be tried between the parties, that the court retained jurisdiction of the issue of compliance with and enforcement of the sanctions, and that any proceedings concerning the enforcement of the sanctions would not delay or interfere with the trial of the underlying case. By August 30, 1977, Krasnow had already complied with the order to be examined and give a medical history.

On September 1, 1977, Heller and Morris filed a timely notice of appeal under Rule 303(a) (65 Ill. 2d R. 303(a)), from the August 19 and August 30 orders. On September 27, 1977, pursuant to a settlement agreement, an order was entered dismissing the personal injury action as to all matters between the parties. The court retained jurisdiction to enforce the sanctions imposed on counsel by the August 19 order, pending the outcome of the appeal in the appellate court. On October 13, 1977, Heller and Morris filed a second notice of appeal. The two appeals were docketed under separate numbers in the appellate court and were later consolidated.

On motion of the YeHow Cab Company, the appellate court dismissed the consolidated appeals on the ground that the orders appealed from were not final or otherwise appealable. The appellate court denied Heller and Morris’ petition for rehearing, and we allowed the petition for leave to appeal filed by Heller and Morris (65 Ill. 2d R. 315).

We hold that, under the circumstances of this case, the order of the circuit court directing plaintiffs’ counsel to pay a fixed sum of money on a specified date as a sanction for obstructing discovery was final and appealable. Following settlement of the underlying action, there was no reason to delay appeal of the sanctions order. Whatever doubt there may have been as to the appealability of the order was removed once settlement was reached. To hold that the order was not appealable following settlement would effectively bar plaintiffs’ counsel from any opportunity of obtaining judicial review of the sanctions imposed. In this regard, it is significant to note that plaintiffs’ counsel properly safeguarded its appeal rights by filing a second notice of appeal foUowing settlement.

Defendants cite the principle that orders pertaining to discovery generally are not appealable until the conclusion of the underlying action, but that principle can have no application in a situation such as that presented here in which the underlying action is settled. “[T]he only opportunity for review *** of the correctness of the order is by appeal from that order.” (Eskandani v. Phillips (1975), 61 Ill. 2d 183, 194.) The appellate court erred in dismissing the appeal.

The parties have briefed the merits of the question of whether the circuit court properly imposed on plaintiffs’ counsel the attorney’s fees and the cost of the medical examination. In addition the full record is before us. Under these circumstances, it is appropriate in the interest of judicial economy that we decide the merits of this cause at this time, even though the appellate court dismissed the appeal and therefore did not reach the merits (see People v. Berland (1978), 74 Ill. 2d 286, 310) and even though the petition for leave to appeal raised only the question of the appellate court’s dismissal of the appeal. See Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 437.

Under our discovery rules reasonable expenses may be imposed upon a party who “unreasonably refuses to comply” with the discovery rules or “fails to comply” with orders of court under the rules (58 Ill. 2d R. 219(c)). The parties here agreed, with the acquiescence of the trial court, that plaintiff would submit to an examination by a physician -under discovery Rule 215(a) (58 Ill. 2d R. 215(a)). That rule authorizes medical examinations as a tool of discovery. No order of court directing the medical examination was necessary in this case since the parties had agreed at a pretrial conference to comply with Rule 215(a) and thereby waived the necessity of an order. In this situation, an unreasonable refusal to submit to the medical examination authorized by Rule 215(a) would be a noncompliance with discovery rules which would justify the imposition of sanctions.

The question here is thus whether counsel’s advice that plaintiff not give any medical history was an unreasonable refusal to submit to an examination by a physician. The circuit court held that the medical history was an integral and necessary part of the physical examination to which plaintiff had agreed. Decisions in other jurisdictions provide explicit and implicit support for the circuit court’s ruling (Simon v. Castille (La. App. 1965), 174 So. 2d 660, 666 (medical history is necessary and integral part of medical examination); Sharff v. Superior Court (1955), 44 Cal. 2d 508, 510, 282 P.2d 896, 897 (doctor should be free to ask questions necessary to formulate an intelligent opinion regarding the nature and extent of plaintiff’s injuries)). Furthermore, it is clear as a matter of common practice and common understanding that a medical history is part of every medical examination. Therefore, we find that the advice not to provide any medical history was an unreasonable interference with the medical examination.

Plaintiffs’ counsel argues that a medical examination should not be used as an unlimited inquisition to obtain admissions against a plaintiff but recognizes that an examining physician should be permitted to pose questions necessary to determine the nature and extent of a plaintiff’s injuries and disabilities (Sharff v. Superior Court (1955), 44 Cal. 2d 508, 510, 282 P.2d 896, 897). Counsel here did not merely advise plaintiff not to answer specific questions which might have been improper. Such a situation is not before us. Instead we are faced with a situation in which counsel advised his client not to give any medical history at all prior to the examination. This is an unreasonable interference with the medical examination even under counsel’s own argument.

Plaintiffs’ counsel further contends that, because other medical records containing medical histories were to be made available to the examining physician, plaintiff did not have to answer any questions concerning her medical history. The availability of other medical records does not justify a blanket refusal to give a medical history, since each physician may consider different or additional matters important (Simon v. Castille (La. App. 1965), 174 So. 2d 660, 666). In addition, possible further developments after the date of the prior histories would require further inquiries and a new additional medical history.

Plaintiffs’ counsel argues also that the advice not to provide a history was justified because a nurse rather than the physician initiated the taking of the medical history. This argument is unreasonable since the fact the nurse might have asked the questions does not make them less the questions of the examining physician or less essential to the medical examination.

In sum, counsel’s advice that plaintiff totally refuse to provide a medical history was an unreasonable disregard of Rule 215(a) with which plaintiff, with the acquiescence of the trial court, had agreed to comply. Under these circumstances the court properly imposed sanctions in the amount of attorney’s fees and medical costs incurred as a result of plaintiff’s refusal to provide a medical history.

F or the reasons stated, the judgment of the appellate court dismissing the appeal is reversed. The order of the circuit court imposing attorney’s fees and medical costs is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE CLARK

text:
    (No. 51641.
    MARY R. WAGGONER, Appellant, v. JOHN R. WAGGONER, JR., Appellee.

      Opinion filed December 3, 1979.

      Wendell Durr, of Edwardsville, for appellant.
    Donald E. Groshong, of Groshong and Moorman, Ltd., of East Alton, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

A decree for divorce was entered on February 23, 1977, in the circuit court of Madison County. Appended to the decree and made a part thereof was a property settlement agreement which specified that the plaintiff, Mary Waggoner, would “retain the residence of the parties, the motor vehicle and the furnishings, subject to the indebtednesses on said items ***.” On May 31, 1977, the plaintiff filed a “motion for enforcement and finding of contempt” with the circuit court, requesting that the court order the defendant, John Waggoner, to remove a judgment lien which had been recorded against the residence on December 8, 1976. That motion was denied on June 3, 1977. The plaintiff later filed both a motion to reconsider the prior motion and a “motion to clarify and in the alternative to amend and in the alternative to modify” the decree with the court. The defendant filed a motion to strike the plaintiff’s motion to clarify, amend or modify the decree. After a hearing was held on July 22, 1977, the trial court denied the plaintiff’s motions. The plaintiff appealed and the appellate court affirmed, with one justice dissenting. (66 Ill. App. 3d 901.) We granted the plaintiff’s petition for leave to appeal. 65 Ill. 2d R. 315(a).

The parties to this divorce separated in October 1976. In November 1976 the defendant made a promissory note in favor of his parents for approximately $7,700. The underlying consideration for the note was $5,000 which the defendant’s parents had given the couple to enable them to make a down payment on their residence, plus smaller loans of unspecified amounts. At the time the $5,000 was exchanged, defendant’s parents wished to have a note signed by the plaintiff and defendant, but plaintiff refused, stating that it was a good-faith obligation and would be repaid. On December 8, 1976, the defendant’s parents took judgment on the note, and recorded a memorandum of judgment with the recorder of deeds, thereby creating a lien on the residence of the parties. A divorce was granted on February 23, 1977. The property-settlement agreement, which was incorporated into the decree, was drafted by the plaintiff’s attorney. It provided that the plaintiff would take title to the residence, a motor vehicle and furnishings, “subject to the indebtednesses” thereon. The defendant, with some recalcitrance, conveyed his interest in the residence to the plaintiff through a quit claim deed. The plaintiff alleged that she was not aware of the judgment lien at the time the decree was entered, and did not learn of it until she attempted to sell the residence in May 1977. After a title search revealed the judgment lien in the amount of $7,700, the sale was abandoned. The plaintiff then moved the court to hold the defendant in contempt until he removed the judgment lien and a second-mortgage lien from the chain of title. The second mortgage had been given by the parties to secure a loan for $5,000 taken to purchase a fishing cabin in defendant’s name only. Both parties acknowledged signing the second-mortgage agreement. The court initially denied the plaintiff’s motion. That motion was renewed by means of a motion to reconsider. The plaintiff also filed a motion to clarify or amend the decree to read that the plaintiff was to take title to the residence subject only to the first mortgage. Alternatively, that motion sought to modify the decree to increase the child-support payments by $125 per month, the amount the plaintiff alleged she would be required to pay to extinguish the second mortgage on the residence. A request was not made to increase child support because of the judgment lien.

The first issue we consider is whether the trial court possessed subject matter jurisdiction even to entertain the motions herein. The final decree of a court of record in every civil case is a conclusive adjudication after the passage of 30 days from the date of its rendition. (Ill. Rev. Stat. 1975, ch. 110, par. 50(5); Meyer v. Meyer (1951), 409 Ill. 316, 319.) However, a court in a divorce proceeding retains jurisdiction for the purpose of enforcing its decrees. (People ex rel. Kazubowski v. Ray (1971), 48 Ill. 2d 413, 417.) Further, the jurisdiction invoked in the divorce proceeding will extend to a contempt proceeding as the appropriate procedure to enforce the provisions of the divorce decree. (People ex rel. Kazubowski v. Ray (1971), 48 Ill. 2d 413, 417, cert. denied (1971), 404 U.S. 818, 30 L. Ed. 2d 118, 92 S. Ct. 78; Shaffner v. Shaffner (1904), 212 Ill. 492, 496; Taapken v. Taapken (1976), 39 Ill. App. 3d 785, 787.) The plaintiff by her motion seeks to compel the defendant to remove the judgment lien and the second-mortgage lien from the chain of title. The decree did not provide that the defendant was to perform these acts. Thus, the plaintiff does not seek to enforce the terms of the decree, but instead to engraft new obligations onto the decree. The effect would alter the substance of the decree. A contempt proceeding may not be used for that purpose. Therefore, the trial court was without jurisdiction to entertain the plaintiff’s motion to hold the defendant in contempt, as well as the motion to reconsider that motion.

We also think no basis exists to establish jurisdiction to hear that portion of the plaintiff’s motion to clarify or amend the decree. Section 17 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 18, repealed as of October 1, 1977, but in effect at the time the decree was entered in this matter) does not provide for clarification or amendment of the property rights of the parties subsequent to the entry of the decree. In Craig v. Craig (1973), 11 Ill. App. 3d 275, the plaintiff wife moved to modify the decree to require the defendant husband to make mortgage payments on the residence where plaintiff lived, but which was still held in joint tenancy. The trial court modified the decree to provide that any payments made by the plaintiff be credited to her equity in the property and that the portion of the mortgage payments that she paid or would pay should be deducted one-half from the defendant’s net share in the event of a sale of the premises. The appellate court reversed, holding that the trial court lacked subject matter jurisdiction to modify the vested rights of the parties in their jointly owned real estate. The same principle applies here. Thus the trial court was in error even to consider the plaintiff’s motion to clarify or amend the provisions of the decree relating to the liens on the residence. Accord, Bratkovich v. Bratkovich (1962), 34 Ill. App. 2d 122 (court without jurisdiction to vacate decree after 30 days, even though parties stipulated to order).

Finally, we consider whether that portion of the plaintiff’s motion which sought to modify the award of child support was properly before the court. The plaintiff alleged in her motion that she would require an additional $125 per month in child support to offset the payments she would be required to make to extinguish the second mortgage. The plaintiff also alleged that if the court did not relieve her of the obligation to pay the second mortgage, then the circumstances of the parties would be substantially changed from the time the decree was entered. While it is certainly true that the court possesses jurisdiction to modify a decree as to child-support payments (Ill. Rev. Stat. 1975, ch. 40, par. 19), it may only do so when conditions and circumstances of the parties have materially changed since the entry of the divorce decree. (Nye v. Nye (1952), 411 Ill. 408, 416; Dixon v. Dixon (1977), 45 Ill. App. 3d 934, 937.) In Nye this court refused to permit the trial court to modify a child-custody order, because the immoral relationship which was allegedly taking place between the parent who had custody and another person had been ongoing since before the entry of the decree. The court reasoned that since the decree is res judicata as to the facts which existed at the time it was entered but not as to facts arising thereafter, only new conditions warrant modification of a divorce decree. (Nye v. Nye (1951), 411 Ill. 408, 416; accord, Nordstrom v. Nordstrom (1976), 36 Ill. App. 3d 181, 185.) The plaintiff has not made any demonstration that circumstances have changed so as to warrant a modification of the child-support provisions of the decree. While there is a statement in the record by plaintiff’s counsel that the defendant was making the payments on the second mortgage, there is no indication that he ceased making those payments. Thus, there simply is no evidence in the record to support the plaintiff’s allegation that circumstances have changed since the entry of the decree. Of course, we do not intimate whether the defendant’s failure to make payments, if indeed it has occurred, would constitute a material change in circumstances. Rather, the plaintiff may seek to modify the decree if she can establish a material change of circumstances as grounds therefor (Ill. Rev. Stat. 1975, ch. 40, par. 19). We simply do not think she has shown any such change of circumstances herein. Hence, as to that portion of the plaintiff’s motion which seeks to modify the decree, we affirm the appellate court.

Therefore, for the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 51744.
    ILLINOIS CENTRAL GULF RAILROAD CO., Appellee, v. SANKEY BROTHERS, INC., Appellant.

      Opinion filed December 3, 1979.

      Thomas W. Kelty, Esq., of Pfeifer & Kelty, P.C., of Springfield, for appellant.
    Paul E. Adams, of Mohan, Alewelt 8c Prillaman, of Springfield, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This action was brought by Illinois Central Gulf Railroad Company (ICG) against Sankey Brothers, Inc. (Sankey), to recover the difference between the freight rates mistakenly quoted by ICG and paid by Sankey and the published rates which should have been quoted and paid. The appellate court affirmed the Sangamon County circuit court’s summary judgment in favor of ICG (67 Ill. App. 3d 435), and we allowed leave to appeal. We affirm.

On the basis of previous prices mistakenly quoted by it over the telephone, ICG periodically billed Sankey Brothers for switching charges incurred in the years 1973-1976. It is undisputed that Sankey Brothers paid each of those bills promptly, but refused to pay for subsequently discovered deficiencies in the original amounts charged, and it is these deficiencies, totaling $25,747.85, which are the subject matter of this suit. The proper tariffs for the years in question were published and thus available for inspection by all shippers. Nevertheless, Sankey Brothers maintains that ICG should be estopped from collecting the deficiencies since the error in quoting the wrong rates was that of ICG, it did not make a timely demand for the corrected switching charges, and defendant would have employed alternate carriers had it realized what the ultimate rates would be.

Resolution of the present controversy requires an understanding of the statutory obligation of a carrier to collect full tariffs as provided in its published schedules. This duty is imposed by the Public Utilities Act, which provides in pertinent part:

“[N]o public utility shall charge, demand, collect or receive a greater or less or different compensation for any product, or commodity furnished or to be furnished, or for any service rendered or to be rendered, than the rates or other charges applicable to such product or commodity or service as specified in its schedules on file and in effect at the time.” Ill. Rev. Stat. 1977, ch. 111 2/3, par. 37.
“No public utility *** shall directly or indirectly, by any device or means whatsoever, suffer or permit any corporation or person to obtain any service, commodity, or product at less than the rate or other charge then established and in force as shown by the schedules filed and in effect at the time. No person or corporation shall, directly or indirectly, by any device or means whatsoever, whether with or without the consent of connivance of a public utility or any of its officers, or employees, seek to obtain or obtain any service, commodity, or product at less than the rate or other charge then established and in force therefor.” (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 39.)

Additional statutory language demonstrates that the purpose of this duty to collect full tariffs is to prevent “any preference or advantage to any corporation or person or subject any corporation or person to any prejudice or disadvantage” in the rates charged by carriers for services rendered. Ill. Rev. Stat. 1977, ch. 111 2/3, par. 38.

Although the early decision of this court in Illinois Central R.R. Co. v. Seitz (1905), 214 Ill. 350, did permit the estoppel of a carrier from collecting deficiencies in previously paid tariffs, that case has been distinguished in subsequent decisions in this and in the appellate court (see Kirby v. Chicago & Alton R.R. Co. (1909), 242 Ill. 418, rev’d on other grounds (1912), 225 U.S. 155, 56 L. Ed. 1033, 32 S. Ct. 648; Baxter v. Atchison, Topeka & Santa Fe Ry. Co. (1941), 310 Ill. App. 616), and it stands in stark contrast to the case law of Federal and sister State jurisdictions.

While Federal case law does not control our resolution of this question, which deals only with intrastate commerce (State Public Utilities Com. ex rel. Allis Brick Co. v. Chicago, Milwaukee & St. Paul Ry. Co. (1919), 287 Ill. 412, 419; Luken v. Lake Shore & Michigan Southern Ry. Co. (1911), 248 Ill. 377, 383), we nevertheless find it persuasive, given the similar statutory mandate imposed by Federal law on carriers. (49 U.S.C. sec. 1004 (repealed 1978; current version at 49 U.S.C. sec. 10741 (1979).) There is some Federal authority permitting a government entity to raise the defense of estoppel when a carrier attempts to collect a deficiency in tariffs that were previously paid (see, e.g., United States v. Western Pacific R.R. Co. (1956), 352 U.S. 59, 1 L. Ed. 2d 126, 77 S. Ct. 161; Chicago, Burlington & Quincy R.R. Co. v. United States (Ct. Cl. 1971), 439 F.2d 1224), but the Federal courts have consistently refused to entertain the defense of estoppel when raised by a private party against a carrier’s demand for a deficiency in charges previously paid. New York Central & Hudson River R.R. Co. v. York & Whitney Co. (1921), 256 U.S. 406, 65 L. Ed. 1016, 41 S. Ct. 509; Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Fink (1919), 250 U.S. 577, 63 L. Ed. 1151, 40 S. Ct. 27; Louisville & Nashville R.R. Co. v. Maxwell (1915), 237 U.S. 94, 59 L. Ed. 853, 35 S. Ct. 494; Main Island Creek Coal Co. v. Chesapeake & O. Ry. Co. (6th Cir. 1928), 23 F.2d 248; see also Consolidated Freightways Corp. v. Admiral Corp. (7th Cir. 1971), 442 F.2d 56; Central Warehouse Co. v. Chicago, R.I. & P. Ry. Co. (8th Cir. 1927), 20 F.2d 828; 38 Cornell L.Q. 596 (1953).

Moreover, this general rule among the Federal courts also represents the position of those State jurisdictions which have considered the same question in conjunction with similar statutory obligations on carriers to collect the full charges imposed by published tariffs. Nashville, C. & St. L. Ry. Co. v. Gilliam (1924), 212 Ala. 120, 101 So. 889; Main Central R.R. Co. v. Fred I. Merrill, Inc. (1961), 157 Me. 484, 174 A.2d 112; New York, New Haven & Hartford R.R. Co. v. Lord & Spencer, Inc. (1931), 273 Mass. 583, 174 N.E. 179; Mobile & Ohio R.R. Co. v. Laclede Lumber Co. (1919), 202 Mo. App. 630, 216 S.W. 798; New York, New Haven & Hartford R.R. Co. v. Tonella (1920), 79 N.H. 464, 111 A. 341; Railway Express Agency, Inc. v. Youngstown Plant & Flower Co. (C.P. Mahoning County 1960), 85 Ohio L. Abs. 440, 171 N.E.2d 220; Cleveland, C., C. & St. L. Ry. Co. v. Southern Coal & Coke Co. (1922), 147 Tenn. 433, 248 S.W. 297; see also Annot., 88 A.L.R.2d 1375 (1963), and Annot., 83 A.L.R. 245 (1933).

The general rule refusing to estop a carrier from collecting deficiencies in previously paid tariffs is consonant with the explicit duty imposed on carriers by the provisions of the Illinois Public Utilities Act set forth earlier herein. To hold otherwise would risk eroding the explicit statutory prohibition against discriminatory rate charges. The inequities to shippers arguably resulting in this and other cases are not persuasive since the rates to be charged are published and, thus, are available for examination by carrier customers. We accordingly hold that, under the circumstances herein presented, ICG is not estopped from collecting the deficiencies in freight charges previously paid. To the extent it is inconsistent with this holding, the opinion in Illinois Central R.R. Co. v. Seitz (1905), 214 Ill. 350, is hereby overruled.

Sankey also argues that the trial court erred in dismissing its counterclaim for damages allegedly sustained through reliance on the erroneous price quotations by ICG. However, Sankey’s notice of appeal seeks review only of the summary judgment order of April 5, 1978, and makes no mention of the earlier order of December 6, 1977, which dismissed the counterclaim. In these circumstances the appellate court correctly ruled that the propriety of the dismissal order was not properly before it. 58 Ill. 2d R. 303(c)(2); Place v. Improvement Federal Savings & Loan Association (1962), 24 Ill. 2d 245, 247; City of Chicago v. Baran (1972), 6 Ill. App. 3d 29, 32; Scheffler v. Ringhofer (1966), 67 Ill. App. 2d 222, 225; 6 Nichols, Illinois Civil Practice secs. 6133, 6135 (rev. vol. 1975).

The judgments of the appellate court and the circuit court of Sangamon County are affirmed.

Judgments affirmed.


text:
    (No. 51855.
    GOLDBLATT BROS., INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Leo Wilcoski, Appellee).

      Opinion filed December 3, 1979.

      Bernard Rosencranz, of Chicago, for appellant.
    Perz and McGuire, of Chicago (Frank M. Perz, Robert F. Ferbend, and James M. Ridge, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This is a workmen’s compensation case in which the employer, Goldblatt Bros., Inc. (Goldblatt), appeals the judgment of the circuit court of Cook County confirming an award by the Industrial Commission to Leo Wilcoski of 306 weeks temporary total disability and thereafter a pension for life based on a finding of permanent total disability. Goldblatt urges that the finding of permanent total disability is against the manifest weight of the evidence and that any disability suffered by Wilcoski beyond losing the use of one leg is attributable to his refusal to have the leg amputated rather than to the accident which produced the injury.

On November 3, 1971, while claimant was acting in the course of his employment with Goldblatt, the jeep he was driving overturned and crushed the lower part of his left leg. Wilcoski was taken to the Franklin Boulevard Hospital, where the treating doctor noted that he had, among other injuries, a fracture of the femur and compound fractures of the lower tibia and fibula. The doctor questioned the viability of the foot but operated, fusing the ankle, repairing the tendons, and inserting a Steinmann pin in the femur. Claimant remained in the hospital for 109 days and thereafter was treated as an outpatient at the hospital and subsequently at the Kildare Clinic until October 1974.

At a hearing before an arbitrator of the Industrial Commission in the summer of 1973 claimant testified that the leg caused him pain and kept him awake at night and that in May 1972 he had developed an ulcerating wound on the ankle which continued to drain at the time of the hearing. He also submitted the report of a medical examination by Dr. Robert C. Busch in February 1972. The report noted that claimant limped, that he had lost almost all mobility in the ankle, that the mobility of his left knee and thigh was impaired, that the left leg was one inch shorter than the right, that he had osteomyelitis in the ankle, that he suffered marked discomfort in the leg, that he required further treatment, and that he was completely unable to return to work.

The employer submitted two medical reports. The first, resulting from an examination by Dr. Ellsworth Tannehill in January 1973, confirmed the diagnosis of Dr. Busch, bút concluded that claimant’s problems would be solved by a below-the-knee amputation. Goldblatt’s second medical report, resulting from an examination by Dr. John J. Dwyer in June 1973, also confirmed Dr. Busch’s diagnosis, and concluded that the condition of the leg might justify amputation in the future but that an attempt should be made to save the leg. Dr. Dwyer also stated that a standard below-the-knee amputation would have claimant walking on a prosthesis within eight weeks.

At the hearing the arbitrator expressed an interest in finding employment for claimant, and counsel for Goldblatt implied that Goldblatt would consider employing claimant in a clerical capacity or in any other capacity for which he was suited. The arbitrator then awarded Wilcoski temporary total disability from the date of the injury and indicated that the case would remain open for future modification.

Claimant sought review by the Commission, and a hearing was held in June 1975. He testified at the hearing that Goldblatt had refused to employ him and that he had not applied for work anywhere else. He further testified that the leg caused him constant pain, that it still drained on the ankle, that it throbbed and swelled with changes in the weather, and that he was tired after 15 minutes walking. Since his discharge from the Kildare Clinic in October 1974, he had treated the leg himself by bathing it and applying medication. He also submitted the report of an examination by Dr. Busch in August 1974 which reaffirmed the doctor’s earlier findings and stated that claimant suffered from residual complaints and disability. Goldblatt submitted the report of an examination by Dr. Carlo Scuderi in December 1974. The report confirmed Dr. Busch’s diagnosis and went on to speculate that additional surgery to change the position of the foot might be appropriate at some time in the future but did not advise an operation at that time because the extensive scarring on the foot was still extremely sensitive.

The case was then lost in the vault of the Industrial Commission until November 1977, when another hearing was held. Claimant testified that the draining had stopped, but that he walked with a limp, that he had not worked or sought work in the interim, that he tires rapidly, and that he has pain in the left leg which spreads to the hips, back, shoulders and right leg. He submitted the report of an examination by Dr. Busch in May 1977 which confirmed the earlier reports and noted that the scar area on the left foot was hypersensitive. The medical report submitted by Goldblatt, resulting from an examination by Dr. Warren Clohisy in June 1977, repeated earlier findings and concluded that Wilcoski’s present condition, which was permanent, did not require further treatment. The Commission subsequently found claimant to be permanently and totally disabled.

Whether an employee has sustained an injury which renders him permanently and totally disabled is a question of fact to be resolved by the Industrial Commission. (Board of Trustees v. Industrial Com. (1973), 55 Ill. 2d 293, 300; South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 489.) Although the Commission’s conclusion must be more than mere conjecture (Paradise Coal Co. v. Industrial Com. (1927), 324 Ill. 420, 422) and the employee must show his disability by a preponderance of the evidence (Allis-Chalmers Manufacturing Co. v. Industrial Com. (1966), 35 Ill. 2d 367, 370), it is the function of the Industrial Commission to resolve conflicting evidence, to draw reasonable inferences from the facts (Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32, 43), and to conclude from a proper evaluation of all the evidence whether the employee is permanently and totally disabled (Martin Young Enterprises, Inc. v. Industrial Com. (1972), 51 Ill. 2d 149, 153). A reviewing court may not disturb the Commission’s factual evaluation unless the Commission’s conclusion is contrary to the manifest weight of the evidence. Board of Trustees v. Industrial Com. (1973), 55 Ill. 2d 293, 300.

The record establishes that claimant sustained a severe injury seriously impairing his use of his left leg and which created a condition in the leg that still causes him considerable pain. An employee need not be reduced to total physical incapacity to be permanently and totally disabled. Total and permanent disability exists when the only services an employee can perform are “so limited in quantity, dependability, or quality that there is no reasonably stable market for them.” (C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278; Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 259; South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 488-89.) Moreover, continuing pain from an injury and the inability to obtain employment justify a finding of permanent and total disability. (Skokie Valley Asphalt Co. v. Industrial Com. (1970), 45 Ill. 2d 333, 335.) Considering claimant’s physical condition, his continuing pain, and the refusal of his former employer to retain him in any capacity, the Commission’s conclusion that he is permanently and totally disabled is not contrary to the manifest weight of the evidence.

Goldblatt concedes its liability for claimant’s loss of the use of his leg (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(e)(12)), but contends that his failure to undergo an amputation constitutes a refusal “to submit to such medical, surgical or hospital treatment as is reasonably essential to promote his recovery” (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(d)). Goldblatt therefore argues that it should not be liable for any disability consequent upon claimant’s failure to have his leg amputated.

The imposition of an additional financial burden on the employer resulting from the employee’s refusal to undergo an operation is not sufficient reason to deny an employee compensation if his decision against the operation is a reasonable one. (Keystone Steel & Wire Co. v. Industrial Com. (1978), 72 Ill. 2d 474, 481; Rockford Clutch Division, Borg-Warner Corp. v. Industrial Com. (1966), 34 Ill. 2d 240, 247-48.) Whether an employee’s refusal to have an operation is reasonable is a question of fact, and the conclusion of the Industrial Commission will not be disturbed unless it is contrary to the manifest weight of the evidence. (Gidley v. Industrial Com. (1934), 355 Ill. 586, 593; O. W. Rosenthal & Co. v. Industrial Com. (1920), 295 Ill. 182, 184.) The operation urged by Goldblatt is a serious one (Florczak v. Industrial Com. (1942), 381 Ill. 120, 129; Mt. Olive Coal Co. v. Industrial Com. (1920), 295 Ill. 429, 433), and medical opinion concerning its advisability was not conclusive. The first doctor who operated on claimant decided to try to save the leg. Several medical reports submitted by Goldblatt considered amputation, but only one advised it, and the most recent report concluded that further treatment was not necessary. Claimant’s doctor never recommended an amputation, and the record contains no indication that claimant’s refusal to undergo an amputation was made in bad faith (Keystone Steel & Wire Co. v. Industrial Com. (1978), 72 Ill. 2d 474, 481; Rockford Clutch Division, Borg-Warner Corp. v. Industrial Com. (1966), 34 Ill. 2d 240, 247), and special consideration should be given to the reluctance of an employee to undergo successive operations (Martin Young Enterprises, Inc. v. Industrial Com. (1972), 51 Ill. 2d 149, 153). The Workmen’s Compensation Act “is designed for employees with divergent personalities, beliefs, and fears. If a claimant’s response to an offer of treatment is within the bounds of reason, his freedom of choice should be preserved even when an operation might mitigate the employer’s damages.” (Rockford Clutch Division, Borg-Warner Corp. v. Industrial Com. (1966), 34 Ill. 2d 240, 247-48.) We conclude that the Commission’s finding that Wilcoski’s refusal to undergo an amputation was reasonable is not contrary to the manifest weight of the evidence.

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

fudgment affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 51420.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CRAWFORD DISTRIBUTING COMPANY, INC., et al. (Maurer Distributing Co., Appellant).

      Opinion filed December 3, 1979.

      Marshall A. Susler, Robert D. Owen and Linda M. Castleman, of Owen, Roberts, Susler & Murphy, of Decatur, for appellant.
    William J. Scott, Attorney General, of Springfield (John E. Noel and Thomas S. Malciauskas, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Following a jury trial, the defendant, Maurer Distributing Company, a corporation, was convicted in the circuit court of Macon County of engaging in a conspiracy in restraint of trade, in violation of section 3(l)(a) of the Illinois Antitrust Act (Ill. Rev. Stat. 1971, ch. 38, par. 60 — 3(l)(a)) and fined $10,000. The appellate court affirmed the conviction with one justice dissenting (65 Ill. App. 3d 790), but granted a certificate of importance, pursuant to Supreme Court Rule 316 (58 Ill. 2d R. 316).

Before considering the merits of the case, a procedural matter warrants mentioning. The primary question raised in the defendant’s application for a certificate of importance has been rendered moot by our decision in People v. Fife (1979), 76 Ill. 2d 418; however, under Rule 316, the whole case comes before us and not just a particular issue. (Nowicki v. Union Starch & Refining Co. (1973), 54 Ill. 2d 93.) Thus, we are not confined to answer only the question which the defendant sought to have certified.

The defendant contends the trial court erred in permitting the State to call Michael Maurer as a witness in front of the jury when the State was informed that Maurer would not testify but would plead his fifth amendment privilege. Michael Maurer was the president and sole shareholder of defendant Maurer Distributing Company. Prior to calling him as a witness, the State made a motion, out of the presence of the jury, to grant him immunity pursuant to section 106 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 106 — 1). That section provides for a grant of full transactional immunity to the recipient. (People ex rel. Cruz v. Fitzgerald (1977), 66 Ill. 2d 546.) Maurer objected to the motion and argued that the Attorney General had previously promised immunity not only to him personally, but also to his defendant corporation, and he refused to testify unless this immunity was given. Maurer had previously given a statement to the State in response to a subpoena pursuant to section 7.2 of the Illinois Antitrust Act (Ill. Rev. Stat. 1971, ch. 38, par. 60 — 7.2) during the State’s investigative procedure, and he had testified before the grand jury. The State argued that it could not grant any broader immunity than a transactional immunity. The court granted the State’s motion. The State then requested that Maurer be called as a witness. However, since Maurer continued to argue that he would not testify but rather plead the fifth amendment, the court determined to have the witness called out of the presence of the jury so that the jury would not be prejudiced. The State called Maurer and he stated his name and address, but when asked where he worked, he claimed his privilege and read from a prepared statement on why he refused to testify.

The court then conducted an examination outside the presence of the jury to determine whether immunity had been granted the Maurer Distributing Company. The court ruled that immunity had never been granted to the corporation, but it made no findings or conclusions with regard to the dimensions of the immunity granted Mr. Maurer. The State then asked the court to call Maurer as the court’s witness, but the motion was denied. The State then requested that Maurer be called to testify in front of the jury, and the defense counsel objected on the grounds that Maurer had indicated he would plead the fifth amendment and inferences from this procedure would prejudice their client. The court granted the State’s request and Maurer refused to testify. The court ordered him to answer the State’s question and he refused. The court then had the jury removed and held a contempt hearing and advised the witness as to his immunity and the consequences of his refusal. The witness then agreed to testify and did testify when the jury was recalled. The defense contends it was reversible error for the State to place Maurer on the stand when it knew he would plead the fifth amendment in front of the jury.

We agree with the appellate court that the episode involving the witness’ claiming his privilege did not call for a mistrial either on the theory of prosecutorial misconduct or on a theory of actual or potential prejudice. The problem presented when a witness invokes his fifth amendment privilege in the presence of the jury is not new. Our court has held on several occasions that it is reversible error for the prosecutor to compel a witness to claim his constitutional privilege before the jury when the effect is to suggest by implication or innuendo that the defendant is guilty of a crime. (People v. Myers (1966), 35 Ill. 2d 311; People v. Haran (1963), 27 Ill. 2d 229; People v. Bennett (1953), 413 Ill. 601.) However, the act of a prosecutor calling a witness to the stand with advance knowledge that the witness will invoke the fifth amendment may or may not be error. Each case must be decided in light of its own facts and circumstances, and consideration must be given to the motive of the prosecutor in calling the witness and to the likelihood of the jury drawing unwarranted inferences against the defendant from the fact that the witness has declined to testify on constitutional grounds. (United States v. Quinn (8th Cir. 1976), 543 F.2d 640.) The United States Supreme Court, in Namet v. United States (1963), 373 U.S. 179, 10 L. Ed. 2d 278, 83 S. Ct. 1151, noted two situations found in lower court opinions that constitute reversible error when a prosecutor forces a witness to assert his fifth amendment privilege in front of a jury: first, “when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial orivilege,” and second, where “a witness’ refusal to answer adds critical weight to the prosecution’s case in a form not subject to cross-examination.” Namet v. United States (1963), 373 U.S. 179, 186-87, 10 L. Ed. 2d 278, 283-84, 83 S. Ct. 1151, 1154-55.

The present situation does not fall within either of the situations noted by the Supreme Court. Here, the prosecutor had sought and obtained for the witness a grant of immunity from prosecution. Thereafter, the prosecutor did not believe the witness could claim the privilege due to the immunity granted and had every right to demand and to expect the witness’ testimony under compulsion by the court if necessary. (Lefkowitz v. Turley (1973), 414 U.S. 70, 38 L. Ed. 2d 274, 94 S. Ct. 316.) The prosecution made no conscious or flagrant attempt to bolster its case as the result of the invocation by the witness of the testimonial privilege. Nor do we find that the one unjustified invocation of the privilege was of such significance as to add critical weight to the prosecution’s case in a form not subject to cross-examination. The effect of the answer was minimized or nullified when the witness later recanted and returned to the witness stand and testified, and was subject to questioning by all counsel. Any threat to the defendant’s sixth amendment rights of confrontation and cross-examination, due to Maurer’s pleading the fifth amendment in front of a jury, was eliminated. (Namet v. United States (1963), 373 U.S. 179, 10 L. Ed. 2d 278, 83 S. Ct. 1151; United States v. Quinn (8th Cir. 1976), 543 F.2d 640; United States v. Anderson (D.C. Cir. 1974), 509 F.2d 312; United States v. Foster (7th Cir. 1973), 478 F.2d 1001; United States v. Puntillo (7th Cir. 1971), 440 F.2d 540.) Thus, we hold that the procedure followed did not give rise to reversible error.

The second issue is whether the trial court properly allowed the testimony of Frank Foley and admitted the charts prepared by him into evidence. Frank Foley, an investigator in the office of the Illinois Attorney General, was called as a State’s witness. The foundation was laid showing that he was an accountant capable of analyzing voluminous records. He testified to having examined 1,200 to 1,250 invoices selected by the prosecutor from a much larger number subpoenaed from the defendant distributors. (This case originally involved several beer distributor defendants.) He stated that he reviewed, tabulated, summarized and charted the beer price invoices. The invoices selected concerned beer sales by various defendants of the highest selling brands in the most popular container sizes for a 3-day period in late December 1969. Foley’s charts depicted the prices which these invoices indicated the defendants charged during the period, and indicated a simultaneous price increase by the distributors, including the present defendant. The charts were to graphically demonstrate to the jury what the sum of the invoices showed and to determine whether the beer invoices obtained from the defendants confirmed that they actually did increase prices in conformity with price increase announcements issued earlier by them. The defense objected to the charts being introduced into evidence, but the judge admitted them since the invoices could be admitted as evidence. The defense now argues that Foley should not have been allowed to testify as an expert, that any expertise he might have was not utilized, and that the charts should not have been admitted into evidence.

It is generally accepted in Illinois that where originals consist of numerous documents, books, papers or records which cannot be conveniently examined in court, and the fact to be proved is the general result of an examination of the whole collection, evidence may be given as to such result by any competent person who has examined the documents, provided the result is capable of being ascertained by calculation. The witness’ testimony is admissible since it is merely a statement of what those instruments show and the voluminous character of the original documents precludes their convenient examination in court. (LeRoy State Bank v. J. Keenan’s Bank (1929), 337 Ill. 173; People v. Cowgill (1929), 334 Ill. 635; People v. Sawhill (1921), 299 Ill. 393; Reinke v. Sanitary District (1913), 260 Ill. 380.) In this case the number of invoices to be examined, 1,200 to 1,250, is such that it would be inconvenient for the jurors to be expected to look at each document and plot in their minds the significance of each. Foley’s charts only simplified and clarified what the invoices would show if the jurors took the time and had the ability to chart the details. It is obvious that it is impractical to require the jury to read the entire mass of documents and entries. The convenience of the trial demands that the other evidence be permitted in the form of the testimony of a competent witness who has perused the entire mass of documents and states summarily the net result. (4 Wigmore, Evidence sec. 1230 (Chadboum rev. ed. 1972).) Also, it was necessary for the State to demonstrate to the court that Foley had the ability to summarize these invoices before his testimony or charts could be admitted into evidence. Thus, although he did not testify as an expert in that he did not express an opinion, his expertise demonstrated that he had the ability to examine and summarize the invoices.

The defendant argues that Foley’s charts should be excluded because they do not represent an examination of the whole evidence. However, the evidence indicates that the invoices presented to Foley covered all of the sales for the particular defendants of certain classes of beer and the types of containers charted for the 3-day period in question. The defendant contends that the sales of all beers sold were not charted for the dates in question. These charts were merely summaries of the results of Foley’s examination of particular invoices, setting forth what they revealed with regard to price increases for particular beers in certain container sizes. The defendant had an opportunity to, and did, cross-examine Foley at length about brands and containers not charted. Michael Maurer also testified that certain beers were not subject to the price rise. Foley’s testimony only went to prove the State’s proposition that there was a simultaneous increase in prices among the defendants in the distribution of particular beers for a limited number of days. It is within the discretion of the court to admit such statements or schedules of figures or the results of the examination of numerous documents to be introduced into evidence. (LeRoy State Bank v. J. Keenan’s Bank (1929), 337 Ill. 173.) Therefore, we find the admission of the testimony and charts was within the discretion of the court.

Thirdly, the defendant contends it was denied its statutory right to a speedy trial. In considering this question we are compelled to look at the extensive calendar of events in this case. The indictments were returned in November 1971 and the defendant filed a comprehensive discovery motion on January 7, 1972. On February 7, 1972, the defendant filed a motion for an immediate trial pursuant to section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 103 — 5). On May 19, 1972, the defendant’s motion to dismiss was allowed. The State appealed and this court reversed the lower court’s order. (People v. Crawford Distributing Co. (1972), 53 Ill. 2d 332.) The mandate was filed in the trial court on February 6, 1973. At this point, the 160 days started running anew. The trial court had still not passed on defendant’s discovery motion. On March 12, 1973, the trial judge recused himself and a new judge was assigned. On April 26, 1973, the new judge was substituted on motion of a codefendant and the defendant did not object to the action. Defendant’s discovery motion was not called for hearing until June 7, 1973. During this period after the mandate, the defendant took no steps to have its motion heard. The court ordered the State to comply with the motion by July 3, 1973, and continued the trial date from June 18, 1973, to August 20, 1973, on its own motion, knowing that the trial date was set after the 160-day limit had run. On July 12, 1973, the defendant filed a motion for substitution of judges, which was denied. However, the court made a specific finding of fact that the motion was filed as part of an attempt to delay the trial. On July 18, 1973, 161 days after filing the supreme court mandate, the defendant filed a motion for discharge, which was denied. Thereafter, the defendant and codefendants renewed their motions for substitution of judge, which were allowed, and Judge Andrew Stecyk was assigned to try the case on November 9, 1973. On January 3, 1974, the court allowed the defendant’s motion dismissing the case, but upon motion of the State, the court reconsidered and denied the motion on January 31, 1974. The jury selection began on April 15, 1974. The defendant filed another motion for discharge on April 18, 1974, before the jury selection was complete.

The defendant’s contention that it was denied a speedy trial turns upon whether it is chargeable with the delay. If there was no delay attributable to the defendant, then its July 18 motion should have been granted. It is incumbent upon a defendant to show, when he is not tried within 160 days, that the delay of the trial is not attributable to him and the record must affirmatively establish this fact. (People v. Jones (1965), 33 Ill. 2d 357.) Certain discovery motions require much more time to fulfill than others. The information may be easily accessible or it may only be obtained after difficult search and inquiry. Therefore, some discovery motions may cause delay while others do not. This is a factual question that calls for the trial court’s appraisal and we should give great weight to the trial court’s finding. Also, it is incumbent upon the defendant to decide how he wishes to prepare for trial, and any course that he chooses that causes delay is charged to him. People v. Johnson (1970), 45 Ill. 2d 38.

In addition to the undisposed-of discovery motion, the docket sheets reveal that between March 13, 1973, and July 18, 1973, numerous motions were filed by all parties to the litigation. On March 27, 1973, the case was set for trial for May 21, 1973, and it was ordered that all motions were to be filed by April 19, 1973. However, on April 10, 1973, a motion for substitution of judge was filed by a codefendant and it was allowed on May 16, 1973. The case was assigned to Judge Sherrick from Douglas County. He could not hear the case on May 21, 1973, the date previously set for trial, so the case was reset for trial for June 18, 1973, and all motions were set for hearing on June 7, 1973. On that date, Judge Sherrick ruled on the pending motions and ordered that the evidence deposition of Oscar A. Maurer be taken on July 12, 1973. On June 29, 1973, the defendant herein, along with other defendants, moved to cancel or continue the deposition of Oscar A. Maurer. On July 12, 1973, several additional motions were presented to the court by the various defendants, including a motion by the defendant Maurer Distributing Company, for substitution of judge. The various motions for substitution of judge were denied on that date but were subsequently renewed and allowed. In view of the many motions presented by all of the defendants, and considering the fact that extensive discovery had to be complied with by the State, we will accept the trial court’s determination that the defendant was not entitled to a discharge on the July 18, 1973, motion.

When the defendant made a motion for substitution of judge and that motion was allowed, the running of the 160-day period was again tolled. (People v. Zuniga (1973), 53 Ill. 2d 550.) That term of 160 days expired on April 17, 1974, after the selection of the jury had started but prior to the defendant’s motion for discharge. We previously held in People v. Williams (1974), 59 Ill. 2d 402, that the speedy trial act is satisfied by beginning the process of selecting the jury for the trial of the case. Thus, the defendant, Maurer Distributing Company, was afforded the statutory right to a speedy trial.

The defendant alleges several trial errors which are characterized in the defendant’s brief as severally and cumulatively denying it a fair trial in accordance with due process safeguards. We have examined these contentions and have concluded that the trial court did not commit reversible error. This trial involved multiple defendants and extended over a period of time. The record is voluminous. It is highly unlikely that a trial of this magnitude involving as many defendants and as many attorneys as were involved in this case could be conducted in such a clinical atmosphere that no technical errors would be committed. The appellate court in its opinion concluded that these issues did not involve reversible error. (See 65 Ill. App. 3d 790, 799-800.) We agree. It is unnecessary for us to unduly lengthen this opinion by further discussion of these issues, which we have determined to be without merit.

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

Judgment affirmed.


text:
    (No. 51580.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. VERNON DeWITT, Appellant.

      Opinion filed December 3, 1979.

      Michael J. Rosborough and John H. Reid, Deputy Defenders, and Patricia L. Morris, Assistant Defender, of the Office of State Appellate Defender, of Mount Vernon, for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Steven J. Teplinsky, Assistant Attorneys General, of Springfield, of counsel), for the People.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, Vernon DeWitt, pleaded guilty in the circuit court of Saline County to the offense of burglary and was placed on probation for 2 years. Seven months later the State’s Attorney filed a petition for the revocation of his probation, alleging that defendant had committed a felony theft. At a subsequent probation-revocation hearing the circuit court found defendant had committed the theft, revoked probation, and sentenced defendant to a term of 1 to 3 years’ imprisonment for the original burglary. The Fifth District Appellate Court affirmed (People v. DeWitt (1978), 66 Ill. App. 3d 146), and we allowed leave to appeal. Defendant’s sole contention here is that the circuit court’s denial of his motion for discovery denied him due process of law and violated our Rule 412. 65 Ill. 2d R. 412.

Defendant argues that the United States Supreme Court opinions in Morrissey v. Brewer (1972), 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593, and Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756, require that a probationer be allowed the same discovery before a probation-revocation hearing that our rules allow a defendant before a criminal trial. Initially, we note that due process does not guarantee pretrial discovery to a criminal defendant unless the defendant is also required to furnish similar discovery to the State. (Weatherford v. Bursey (1977), 429 U.S. 545, 51 L. Ed. 2d 30, 97 S. Ct. 837; Wardius v. Oregon (1973), 412 U.S. 470, 37 L. Ed. 2d 82, 93 S. Ct. 2208; Williams v. Florida (1970), 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893.) In Gagnon the United States Supreme Court held that due process entitles a probationer to written notice of the alleged violation, to disclosure of the evidence against him, to be heard in person and to present testimonial and documentary evidence, to confront and cross-examine adverse witnesses, to be judged by a neutral and detached hearing body, to receive a written statement by the fact finders stating the evidence relied on and the reason for revocation, and, in some instances, to receive assistance of counsel. (411 U.S. 778, 782, 786, 788, 36 L. Ed. 2d 656, 662, 664-65, 93 S. Ct. 1756, 1760-63.) Illinois statutes have similar guarantees. (Ill. Rev. Stat. 1977, ch. 38, par. 1005-6-4; People v. Beard (1974), 59 Ill. 2d 220, 226.) The Supreme Court, while holding due process guaranteed the probationer these protections, also recognized that a probationer has already been convicted of the crime resulting in probation and is entitled to fewer procedural safeguards than one who has not been convicted at all. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 789, 36 L. Ed. 2d 656, 665-66, 93 S. Ct. 1756, 1763.) Because a criminal defendant is not constitutionally entitled to discovery and a probationer is not entitled to the same degree of protection as an unconvicted defendant, we conclude that the circuit court’s denial of defendant’s motion for discovery did not deny him due process.

Defendant further contends that the language of Supreme Court Rule 411 (58 Ill. 2d R. 411) grants a probationer the discovery provided in Supreme Court Rule 412 (65 Ill. 2d R. 412). Rule 411 provides that the discovery rules “[s] hall be applied in all criminal cases wherein the accused is charged with an offense for which, upon conviction, he might be imprisoned in the penitentiary. They shall become applicable following indictment or information and shall not be operative prior to or in the course of any preliminary hearing.” Although a determination that a probationer has violated the conditions of his probation may result in a sentence to the penitentiary, that sentence is imposed for the original offense of which he had been convicted rather than for the conduct constituting violation. If the acts which violated the probation also constitute a criminal offense, the State may, of course, prosecute the probationer for that offense (People v. Howell (1977), 46 Ill. App. 3d 300, 302; People v. Kondo (1977), 51 Ill. App. 3d 874, 876) and, if it does, he would then be entitled to the discovery provided by Supreme Court Rule 412 (65 Ill. 2d R. 412). While our discovery rules do not specifically exclude probation- or parole-revocation hearings, it is quite clear that they were designed for use in connection with criminal trials. Those rules apply to the probationer’s trial on the underlying offense, but a petition to revoke probation is not a criminal indictment or information and a judgment revoking probation is not a felony conviction. (People v. Howell (1977), 46 Ill. App. 3d 300, 302; People v. Kondo (1977), 51 Ill. App. 3d 874, 876.) In fact, the revocation of probation may occur for conduct which does not even involve the commission of any crime. We accordingly hold that Rule 411 does not entitle a probationer to discovery at a probation-revocation hearing.

Finally, defendant argues that we should expand the scope of the discovery rules to include probation-revocation hearings because discovery would help to implement the procedural rights specifically granted by statute — confrontation, cross-examination and representation by counsel (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—4(c)). As we earlier noted, discovery is not constitutionally required to protect those rights (Weatherford v. Bursey (1977), 429 U.S. 545, 51 L. Ed. 2d 30, 97 S. Ct. 837; Wardius v. Oregon (1973), 412 U.S. 470, 37 L. Ed. 2d 82, 93 S. Ct. 2208; Williams v. Florida (1970), 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893), and we have held that a defendant at a misdemeanor trial is not entitled to discovery (People v. Schmidt (1974), 56 Ill. 2d 572). In the absence of a constitutional requirement, the decision whether to allow discovery at probation-revocation hearings depends on the nature of the interests of the State and the probationer, and society has a compelling interest in expeditiously incarcerating a probationer who has committed further antisocial acts. (Cf. Morrissey v. Brewer (1972), 408 U.S. 471, 483, 33 L. Ed. 2d 484, 495, 92 S. Ct. 2593, 2601.) He has already been convicted of the underlying offense, and we believe the statutorily guaranteed procedural rights in hearings to revoke probation are adequate to protect the probationer’s interest in his conditional liberty.

The judgment of the appellate court is accordingly affirmed.

Judgment affirmed.