author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 50142.
    HARRIET WALSKI, Appellant, v. MARVIN TIESENGA et al., Appellees.

      Opinion filed September 19, 1978.

      Silberman & Gershon, Ltd., of Chicago (Jules S. Gershon and Richard J. Hollander, of counsel), for appellant.
    Bernard E. Harrold and Donald M. Flayton, of Chicago (Wildman, Harrold, Allen & Dixon, of counsel), for appellees.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This appeal involves an action in malpractice against two doctors, Marvin Tiesenga and James Walsh, for personal injuries arising from the alleged negligence of the doctors during an operation on plaintiff’s thyroid gland in which her left recurrent laryngeal nerve was cut. The case was tried before a jury in the circuit court of Cook County. At the close of the plaintiff’s case in chief, the defendants moved for a directed verdict contending that plaintiff had failed to present evidence that the defendants’ actions did not conform to the standard of care in the medical community. The trial court directed a verdict in favor of the defendants. The appellate court affirmed on the ground that plaintiff had failed to establish the requisite professional standard of care against which the defendants’ conduct was to be judged. (53 Ill. App. 3d 57.) We allowed plaintiff’s petition for leave to appeal to this court (65 Ill. 2d R. 315). After viewing all the evidence in its aspect most favorable to plaintiff, as mandated by Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, we agree that the trial court did not err in directing a verdict for defendants.

The evidence is set forth at length in the opinion of the appellate court and need not be restated in detail here. The plaintiff, Harriet Walski, had a long-standing history of problems with her thyroid gland. In 1949 she underwent thyroid surgery subsequent to which she received radioactive iodine treatment and took thyroid pills on an irregular basis. Dr. Walsh, a general practitioner, had treated plaintiff for an unrelated ailment prior to July 1971. During an office visit on July 19, 1971, Dr. Walsh detected that plaintiff’s thyroid gland was enlarged and was pressing on her trachea. The enlarged thyroid interfered with plaintiff’s breathing. Dr. Walsh arranged for Dr. Tiesenga, a general surgeon, to perform a subtotal thyroidectomy on November 30, 1971. Dr. Walsh assisted in the surgery. After surgery, plaintiff experienced problems in breathing and speaking.

Plaintiff called Dr. Tiesenga as an adverse witness under section 60 of the Civil Practice Act (111. Rev. Stat. 1975, ch. 110, par. 60). He indicated that a recurrent laryngeal nerve lies on either side of the thyroid gland. If that nerve is severed, cut or crushed, paralysis of the vocal chords would be expected. Dr. Tiesenga testified that prior to surgery he was aware of plaintiff’s medical history and, in particular, the fact that she had had prior surgery on her thyroid gland. He testified that as a result of the prior surgery and radioactive treatment, there was scar tissue or adhesions around the gland and that the anatomical landmarks used to locate the recurrent laryngeal nerves were not in their normal positions, although the nerves themselves would be more or less in their usual locations. Plaintiff’s gland was markedly swollen. Dr. Tiesenga identified the right recurrent laryngeal nerve. He stated he made no attempt to identify the nerve on the left but, in removing tissue from the left side of the gland, made a wide cut so as to avoid the area where the nerve might possibly be. Dr. Tiesenga testified that basically it is better practice to identify the nerve when doing an extensive thyroidectomy, certainly in the case of a thyroid which had never been operated upon before. According to the testimony, however, plaintiff’s thyroidectomy was the most difficult thyroid surgery which can be performed. Because plaintiff’s gland was very large and firmly adherent to the surrounding structures and because the nerve is a delicate structure which could be damaged in the process of identifying it, Dr. Tiesenga determined it was more prudent to avoid the area where the nerve might possibly be, rather than try to identify it. Dr. Tiesenga also indicated he agreed with the textbook procedure of first exposing and identifying the recurrent laryngeal nerve in those cases where the patient had had no previous thyroid surgery.

Plaintiff also called Dr. Walsh under section 60 of the Civil Practice Act. He testified that because the scarring and adhesion were so massive it was unsafe to expose the left recurrent laryngeal nerve. When asked if Dr. Tiesenga’s procedure of identifying the right nerve and not identifying, but skirting, the left nerve was good practice when compared to the standards of the medical community, Dr. Walsh responded, “I wouldn’t know what else he could have done.”

Subsequent to the surgery plaintiff was examined by Dr. Leonard Saxon, her family physician, and Dr. Ronald Kowal, a specialist in the field of otolaryngology. Both doctors diagnosed that plaintiff had permanent vocal-chord paralysis, bronchitis, and tracheitis. During trial, Dr. Kowal indicated that he was familiar with the technique in performing thyroid surgery. When asked by plaintiff’s attorney whether he had any opinion as to whether or not in performing thyroid surgery it is customary to identify the laryngeal nerve, Dr. Kowal responded, “There are many procedures on the thyroid, and in some cases, you have to identify the nerve, and in other cases, you do not.”

Dr. David M. Berger testified as an expert witness on plaintiff’s behalf. He examined plaintiff in January of 1976 and found vocal-chord paralysis. His direct testimony concerning acceptable procedures for thyroid surgery was that “in my feeling the standards by which I feel are acceptable practice, one must identify and preserve the recurrent laryngeal nerves on all occasions.”- On cross-examination Dr. Berger testified that there are always options available in surgery but that in his own mind it was not a proper option to skirt the left recurrent laryngeal nerve. He stated he could not testify generally but only “on the basis of my own opinion as to what I consider a proper option.” When asked on cross-examination if there existed a contemporary school of surgeons that will skirt the nerve when they encounter a host of adhesions, Dr. Berger responded that “in the institutions in which I trained that is not the teaching. And I can’t speak for other institutions or other areas of training. I can only speak for my own.” Defense counsel read a quotation to Dr. Berger from a medical textbook which indicated that there existed a certain amount of controversy in the medical community concerning deliberate exposure of the laryngeal nerve. The quotation concluded with the remark that the situation remained one in which each surgeon will find the approach which suits him best. Dr. Berger indicated that he did not fully agree, with that statement, but indicated the decision whether or not to expose the nerve depends on the surgeon and the technique and care he uses. Dr. Berger stated that “[e] verybody who is a certified surgeon doesn’t use the same methods, obviously.”

One element of a cause of action for medical malpractice is proof of the standard of care by which the defendant physician’s conduct is to be measured. (Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 65; see Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 330-32; Illinois Pattern Jury Instructions, Civil, No. 105.01 (2d ed. 1971) (herinafter cited as IPI Civil); see also, e.g., Davis v. Virginian Ry. Co. (1960), 361 U.S. 354, 357, 4 L. Ed. 2d 366, 369, 80 S. Ct. 387, 389; Larsen v. Yelle (1976), 310 Minn. 521, 523, 246 N.W.2d 841, 844; Kortus v. Jensen (1976), 195 Neb. 261, 268, 237 N.W.2d 845, 850; Bruni v. Tatsumi (1976), 46 Ohio St. 2d 127, 131, 346 N.E.2d 673, 677; Versteeg v. Mowery (1967), 72 Wash. 2d 754, 755, 435 P.2d 540, 541.) As this court recognized in Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, the appellate decisions in this State have held that the plaintiff in a medical malpractice action generally must establish the standard of care through expert testimony. The plaintiff must then prove that, judged in the light of these standards, the doctor was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff. Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423; see IPI Civil No. 105.01.

Generally, expert testimony is needed to support a charge of malpractice because jurors are not skilled in the practice of medicine and would find it difficult without the help of medical evidence to determine any lack of necessary scientific skill on the part of the physician. (See IPI Civil No. 105.01, Comment at 321; Baoust v. Kraut (Del. 1977), 377 A.2d 4, 6-7; J. Dooley, Modern Tort Law sec. 34.31, at 517 (1977).) However, in those situations where the physician’s conduct is so grossly negligent or the treatment so common that a layman could readily appraise it, the appellate decisions indicate that no expert testimony is necessary. (Stogsdill v. Manor Convalescent Home, Inc. (1976), 35 Ill. App. 3d 634, 662; Lundahl v. Rockford Memorial Hospital Association (1968), 93 Ill. App. 2d 461, 465; Scardina v. Colletti (1965), 63 Ill. App. 2d 481, 488; Graham v. St. Luke’s Hospital (1964), 46 Ill. App. 2d 147, 158; cf. Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, concerning application of res ipsa loquitur in medical malpractice cases which is not at issue here.) A requirement that the standard of care be established through expert testimony except where the common knowledge of laymen is sufficient to recognize or infer negligence is broadly recognized throughout the country. See, e.g., Pendleton v. Cilley (1978), 118 Ariz. 84, 86, 574 P.2d 1303, 1305; Cobbs v. Grant (1972), 8 Cal. 3d 229, 236, 502 P.2d 1, 5, 104 Cal. Rptr. 505, 509; Huffman v. Lindquist (1951), 37 Cal. 2d 465, 473, 234 P.2d 34, 39-40; Baoust v. Kraut (Del. 1977), 377 A.2d 4, 6-7; Karrigan v. Nazareth Convent & Academy, Inc. (1973), 212 Kan. 44, 49-50, 510 P.2d 190, 195; Larsen v. Yelle (1976), 310 Minn. 521, 523, 246 N.W.2d 841, 844; Swope v. Printz (Mo. 1971), 468 S.W.2d 34, 39; Kortus v. Jensen (1976), 195 Neb. 261, 268, 237 N.W.2d 845, 850 (expert testimony is necessary); Hammer v. Rosen (1960), 7 N.Y.2d 376, 380, 165 N.E.2d 756, 757, 198 N.Y.S.2d 65, 67; Morgan v. State (1972) (mem.), 40 App. Div. 2d 891, 337 N.Y.S.2d 536, 537; Bruni v. Tatsumi (1976), 46 Ohio St. 2d 127, 130, 346 N.E.2d 673, 676-77; Versteeg v. Mowery (1967), 72 Wash. 2d 754, 755, 435 P.2d 540, 541; Annot., 81 A.L.R.2d 597 (1962).

The malpractice alleged here was Dr. Tiesenga’s failure to identify the left recurrent laryngeal nerve during what the defendants testified was extremely difficult thyroid surgery involving a thyroid gland which was surrounded by scar tissue as a result of prior surgery and treatment. This is not the type of situation in which the common sense of laymen could provide the standard of care. Cf. Comte v. O’Neil (1970), 125 Ill. App. 2d 450, 454, listing as instances of malpractice claims actionable without expert medical testimony: sponges left in the abdomen, instruments left after surgery, and X-ray bums.

This court has recognized two exceptions to any requirement of expert testimony to establish the standard of care in medical malpractice cases in addition to the common-knowledge or gross-negligence exception. In Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, hospital licensing regulations, accreditation standards, and bylaws, like evidence of custom, were admissible as evidence of the standard of care by which the conduct of the defendant hospital would be judged. In Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, this court held that explicit instructions furnished by the manufacturer for the proper manner of intravenous injection of a drug and the warning of hazards accompanying its improper adminstration provided the proof of the proper standards which would ordinarily be shown by expert medical testimony. No similar evidence was adduced here to prove the standard of care.

A second issue decided in Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 335-36, was whether an expert witness could be cross-examined concerning recognized treatises in their field where they did not purport to base their opinions on the views of these authorities. This court determined that such cross-examination was permissible, despite the hearsay nature of the treatises, in order to insure that expert testimony will be more accurate and a more effective tool in the attainment of justice. In the instant case, counsel for both the plaintiff and the defendants exercised the right to cross-examine the experts with statements from treatises on thyroid surgery. The treatises were thus admitted as impeachment but not as substantive evidence.

Plaintiff argues, however, that the treatise used to cross-examine Dr. Tiesenga, and recognized by him as an authority, established the requisite standard of care and should be admissible as substantive evidence. Such is not the law in this jurisdiction at this time, and it is unnecessary for us to decide now whether and under what circumstances a plaintiff may introduce medical treatises as substantive evidence; plaintiff has made no attempt to introduce the treatise used to cross-examine Dr. Tiesenga as substantive evidence. Cf. Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 556-58, holding that it was not improper for defendant’s expert to testify that he based his opinion on clinical studies published in the literature since the law cannot ignore that medical science is a mass of transmitted and collated data.

Plaintiff here had the burden of establishing that the defendant doctors were guilty of malpractice. She failed, however, to introduce evidence of the standard of care to which the defendants were bound to adhere. Plaintiff’s expert, Dr. Berger, testified only concerning his own personal preference for isolating the laryngeal nerve under the facts presented to him in the hypothetical question. He at no time testified that there was a generally accepted medical standard of care or skill which required the identification of the laryngeal nerve under the circumstances. Plaintiff’s witness Dr. Kowal testified that the decision whether to isolate the nerve varied from case to case.

The appellate courts have held that the testimony of the defendant doctor may be sufficient to establish the standard of care (Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 65; Comte v. O’Neil (1970), 125 Ill. App. 2d 450, 453), but it is apparent that the defendants’ testimony here did not indicate a standard at variance with their actual conduct. Dr. Tiesenga testified that because of prior surgery on and treatment of plaintiff’s thyroid, it would have been unwise to attempt to isolate her laryngeal nerve. The better practice, according to Dr. Tiesenga’s testimony, was to skirt the area where the nerve might possibly be. Dr. Walsh concurred. When confronted with a statement from a recognized treatise that the first step in performing a thyroidectomy is to expose and identify the recurrent laryngeal nerve, Dr. Tiesenga agreed with the statement only as a general proposition. He testified that where there has been prior surgery and treatment, it is not always good practice to follow the procedure indicated in the treatise.

In sum, the evidence presented two conflicting opinions in the medical community concerning the proper procedure to be observed under the circumstances. Absent is any statement of a standard Dr. Tiesenga was required to follow in this case.

This court has refused to affirm a directed verdict where there was positive expert testimony concerning the applicable standard of care even though the opinions were weakened on cross-examination and were contradicted by defendant’s experts. The weight to be given to the expert testimony in such cases is for the trier of fact. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423-24.) However, the appellate court, when presented only with testimony of the existence of methods other than those employed by the defendant but no testimony that the method used by the defendant was not considered proper by the medical community, has affirmed directed verdicts for defendants. See Ybarra v. Cross (1974), 22 Ill. App. 3d 638; Estell v. Barringer (1972), 3 Ill. App. 3d 455.

Other jurisdictions, when presented only, as we are here, with conflicting opinions by testifying physicians of what they personally consider correct technique under the circumstances, have concluded that the plaintiff has failed to present sufficient evidence of a standard of care in the medical community to submit the case to the jury. (Davis v. Virginian Ry. Co. (1960), 361 U.S. 354, 4 L. Ed. 2d 366, 80 S. Ct. 387; Cable v. Cazayou (La. App. 1977), 351 So. 2d 797; Swope v. Printz (Mo. 1971), 468 S.W.2d 34; Kortus v. Jensen (1976), 195 Neb. 261, 237 N.W.2d 845; Fernandez v. Baruch (1968), 52 N.J. 127, 244 A.2d 109; Versteeg v. Mowery (1967), 72 Wash. 2d 754, 435 P.2d 540; see Cornfeldt v. Tongen (Minn. 1977), 262 N.W.2d 684, 697.) Bruni v. Tatsumi (1976), 46 Ohio St. 2d 127, 346 N.E.2d 673, cited by plaintiff to support her contention that it was error to direct a verdict here, fails to support plaintiff’s argument. There the medical expert testified that in the specialized medical community to which the defendant belonged, it was not considered good medical practice to use the riskier procedure the defendant employed despite the existence of more than one recognized surgical procedure to accomplish the same surgical result. Under those circumstances, the Ohio court held that a question for the jury was presented and that it was error to direct a verdict for the defendant. By contrast, no medical evidence presented here indicated that the procedure used by defendant was unacceptable in the medical community. The only evidence in favor of plaintiff was that Dr. Berger would have used a different procedure. Mayers v. Litow (1957), 154 Cal. App. 2d 413, 316 P.2d 351, also relied upon by plaintiff is inapposite since the decision was based upon the existence of expert testimony that a severance of the nerve should not occur.

It is insufficient for plaintiff to establish a prima facie case merely to present testimony of another physician that he would have acted differently from the defendant, since medicine is not an exact science. It is rather a profession which involves the exercise of individual judgment within the framework of established procedures. Differences in opinion are consistent with the exercise of due care. (See Ybarra v. Cross (1974), 22 Ill. App. 3d 638, 644; Kortus v. Jensen (1976), 195 Neb. 261, 271-72, 237 N.W.2d 845, 852.) As the Supreme Court of Washington noted in a similar case:

“[A] jury is no more capable of choosing between conflicting standards in this highly technical area than it is in creating a standard for itself. For this very reason it has always been the rule that:
The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant, or a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence. In such cases, the court must hold that there is nothing upon which the jury may pass, the reason being that the jury may not be allowed to accept one theory to the exclusion of the other. [Citations.] ” Versteeg v. Mowery (1967), 72 Wash. 2d 754, 758-59, 435 P.2d 540, 543.

Without evidence of a standard of care to which the defendant doctors were bound to adhere there is nothing against which a jury could measure the defendants’ conduct and no means for it to resolve the factual question of whether the defendants deviated from the established standard and, therefore, were negligent. In the absence of an essential of plaintiff’s cause of action, even looking at the evidence in the light most favorable to plaintiff, it is clear that no verdict in her favor could ever stand. Therefore, applying the Pedrick standard, it was not error to direct a verdict for defendants.

For the above reasons the judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 50501.
    HEALTH & HOSPITALS GOVERNING COMMISSION OF COOK COUNTY, Appellant, v. THE INDUSTRIAL COMMISSION et al.-(Ella B. Johnson, Appellee.)

      Opinion filed September 19, 1978.

      William P. Tuggle, Joan M. Pucillo, Robert C. Samko, and Gail D. Hasbrouck, of Chicago, for appellant.
    Ella B. Johnson, of Markham, pro se.

   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

In proceedings under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, pars. 138.1 to 138.28), an arbitrator for the Industrial Commission found that claimant, Ella B. Johnson, was disabled as a result of two separate accidents sustained while she was employed by respondent, Health and Hospitals Governing Commission of Cook County, doing business as Oak Forest Hospital. The arbitrator awarded her compensation for medical expenses incurred following her accident on January 2, 1975, temporary total disability payments for the same accident until July 7, 1975, and permanent partial disability payments following her accident of August 31, 1975. On review, the Industrial Commission affirmed the arbitrator’s decision in part, with a slight modification as to permanent partial disability payments. The Commission’s decision ordered payment of $1,993 in medical expenses, $124.30 per week for 26 3/7 weeks for temporary total incapacity, and $96.90 per week for 47 weeks for 20% loss of use of the right arm. On certiorari the circuit court of Cook County confirmed the decision of the Industrial Commission, and respondent appealed to this court pursuant to Rule 302(a)(2) (58 111. 2d R. 302(a)(2)). Respondent contends that the judgment must be reversed or in the alternative that the award of the Industrial Commission be modified for the reason that it is against the manifest weight of the evidence and not in accordance with provisions of the Act.

On January 2, 1975, claimant was employed as a nurse at Oak Forest Hospital (Oak Forest). While walking outside of the side entrance of the hospital, claimant slipped on some ice and fell backwards, landing on her back, and hitting her right arm. She went to the emergency room, where her right arm was bandaged, and she was told to return the next day. She returned to the hospital the next day for X rays of her lower back and right wrist. A few days later, complaining of pain in her back, legs and arms, she again returned to Oak Forest and saw Dr. Pasquale M. Garramone, in charge of the emergency room, who prescribed certain medication, placed her right wrist in a sling, advised bed rest, and told her to return if the pain persisted. Claimant testified that approximately two days thereafter she telephoned Dr. Garramone and requested physical therapy treatment, but such treatment was refused. Claimant further testified that it was not until after January 22, 1975, when her attorney filed a written demand for medical treatment, that she began to receive physical therapy treatment from Oak Forest. Two more written demands were subsequently filed by claimant’s attorney.

Following her accident, claimant sought private care from Dr. Boguslaw A. Herse, a general practitioner, and received treatment from him beginning on January 10 and continuing to the end of March 1975. The therapy consisted of ultrasonic heat treatments, hot packs, back rubs, and exercise programs twice a week to relieve her lower back pain and the pain in her legs and right wrist.

Respondent denied refusing claimant the requested physical therapy treatment and asserted that it never instructed her to seek outside medical care. It claims that commencing with January 9, 1975, and continuing until the end of February, Oak Forest provided claimant with physical therapy treatments three times a week. During this time, it appears that she was under the care of orthopedic surgeons and a doctor specializing in physical medicine. Respondent claims that claimant needed constant supervision while undergoing treatment at Oak Forest since she would not cooperate with the physical therapist and refused to attend appointments for psychiatric consultations made for her by respondent.

Claimant continued receiving treatment from Dr. Herse at the same time that she was receiving medical care from Oak Forest. She testified that after January 22 the therapy that she received from Oak Forest doctors was similar to that received from Dr. Herse. Claimant, however, complained of the therapist who had been administering to her at Oak Forest, and, consequently, a different therapist was substituted. Claimant further complained that personnel of Oak Forest, in administering physical therapy treatments after January 22, mistreated her and burned her with the ultrasonic heat treatments on numerous occasions.

In the beginning of March 1975 respondent advised claimant that its doctors had concluded from medical tests that she could return to work. Instead of doing so, claimant returned to Dr. Herse, who hospitalized her at South Suburban Hospital from March 6 to March 11, 1975, for the continued pain in her back and legs. At that time she was placed in 15-pound pelvic traction and given physical therapy treatments which included ultrasonic heat, whirlpool baths, back rubs, and pain and muscle-relaxant medication. She fell during her stay at South Suburban Hospital, injuring her neck and back. She wrote a letter to respondent, requesting medical leave of absence commencing on April 11, 1975, for a condition, she stated, which was unrelated to an on-duty injury. She also sought the care of new physicians, Dr. A.M. San Jose, a general practitioner, and Dr. Alex B. White, a specialist in neurology. Dr. San Jose treated claimant for back and accompanying leg pain with a back brace, muscle relaxants and pain pills. Dr. White provided treatment for her head, neck and accompanying arm pain with a cervical collar, cervical traction, muscle relaxants and pain pills. On May 11, 1975, Dr. San Jose hospitalized claimant in Ingalls Memorial Hospital. She received treatments for pain in her head, neck, right arm, legs and back. She was released from Ingalls on May 18, 1975, but remained under doctor’s care until she returned to work on July 7, 1975. Even though claimant continued to experience a dull pain in her legs and back, she was able to perform her assigned duties during the time from July 7 to August 31, 1975.

Claimant’s second accident at Oak Forest occurred on August 31, 1975, at approximately 12:30 a.m. While pushing a medication cart up a ramp, a defective wheel caused claimant to lose control. Attempting to regain control, she experienced a sharp pain in her back which radiated into her legs. Claimant testified that she went directly to the emergency room, where she saw a doctor. She was told to go home and return the next day for X rays, at which time X rays were taken of the lower back.

A few days later she returned to a doctor at Oak Forest for pain and muscle-relaxant medication and was informed that Oak Forest had made an appointment for her to be examined by Dr. Howard W. Schneider, an orthopedic surgeon. Prior to her appointment with Dr. Schneider, claimant, on the recommendation of a fellow employee, chose to see Dr. Jose Songco, a general practitioner. Dr. Songco prescribed physical therapy treatment twice a week for claimant, as well as pain and muscle-relaxant medication. On November 25, 1975, claimant was examined by Dr. Dimitrios G. Sereleas, substituting for Dr. Schneider, and was hospitalized in Ingalls Memorial Hospital. Dr. Sereleas prescribed a back brace, pain and muscle-relaxant medication, 15-pound pelvic traction, therapy treatment, and bed rest. He discharged claimant on December 3, 1975, and, as the record indicates, no objective findings were recorded during this hospital stay.

Claimant testified that, upon her discharge from Ingalls, Dr. Sereleas advised her to consult another physician for a second opinion since he could no longer do anything more for her condition. Respondent denied this allegation and further asserted that claimant was uncooperative, that she did not return to see Dr. Sereleas after her hospitalization, and that she failed to appear for three scheduled appointments. Claimant, on the other hand, stated that she did not keep one appointment with Dr. Sereleas because she did not like the way that he was treating her and, in fact, she was looking for another doctor. She further stated that she was unaware of any other appointments with Dr. Sereleas after December 9, 1975, although she stated on cross-examination that she could have conceivably telephoned him January 13, 1976, to tell him that she could not keep an appointment.

In January 1976 claimant sought medical treatment from Dr. Paul Ashley, a general practitioner, and remained under his care until August 1976. Dr. Ashley administered cortisone injections for claimant’s back pain, and prescribed pain pills, muscle-relaxant medication, and physical therapy treatment which included ultrasonic heat, back rubs and deep heat treatments. On June 9, 1976, claimant received a certificate from Dr. Ashley indicating that she was able to return to work and perform light duties. On June 17, claimant took the certificate to Dr. Garramone at Oak Forest. She testified that he read it, but said that she could not return to work because she was on restricted duty which precluded heavy lifting, that there was no light duty work to assign to her, and that she should go home.

Claimant continued under Dr. Ashley’s care until shortly before August 24, 1976, when she was advised that she could return to her regular work duties. On August 24, she stated that she presented another certificate from Dr. Ashley to Dr. Garramone of Oak Forest which indicated that she could return to regular work duties. At that time Dr. Garramone gave claimant a complete physical examination, including blood, urine, sensitivity and X-ray tests. Later that day, Dr. Garramone told her that Dr. Lawrence Krain, chairman of community medicine at Oak Forest, would have to authorize her return to work, and an appointment was scheduled for claimant to see him. Claimant asserts, however, that she was continually refused an appointment with Dr. Krain to discuss her return to work. Dr. Krain testified, however, that he met with claimant on August 31, 1976, and told her that it was routine that she submit to a complete physical and psychological examination. When claimant refused, Dr. Krain said that Oak Forest would be willing to accept any physical evaluation from a private doctor of her own choice as long as the report also included an examination of her mental state. Claimant’s response allegedly was that she was not going to be “told what to do” and that she intended to talk to her attorney about the matter. Dr. Krain testified that he told claimant that she could return to work if she would take a physical examination, but since she threatened litigation, that he could not deal with her directly. He said that he would consult with the county attorney and abide by his advice.

Claimant further testified that she still suffers from pain in her lower back, legs, right arm and wrist, that the back and leg pain is amplified when she is on her feet for any long period of time, and that pain results even when she sits for too long. Claimant stated that, as a result, her ability to do housework has diminished and that, as a student at Governors State University, she experiences difficulty attending classes.

The Commission resolved conflicts in the testimony in favor of claimant, and its findings were not disturbed by the circuit court. We do not disturb the Commission’s findings unless contrary to the manifest weight of the evidence. (Hiram Walker & Sons v. Industrial Com. (1978), 71 Ill. 2d 476, 479.) Permissible inferences will not be set aside merely because we would reach a different conclusion. Board of Trustees v. Industrial Com. (1978), 71 Ill. 2d 287, 295.

The first issue for review is whether claimant is entitled to $1,993 for medical expenses that she incurred following her January 2, 1975, accident. This amount does not include the cost of treatment provided by Oak Forest.

The claimant’s entitlement to reimbursement is governed, as are other issues to be resolved, by the law in effect at the time of the injury. (Sroka v. Industrial Com. (1952), 412 Ill. 126, 131.) The parties are in dispute as to what that law is.

Prior to a 1975 amendment of the Act, section 8(a) (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(a)) read in part as follows:

“The employer shall provide the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.
The employee may elect to secure his own physician, surgeon and hospital services at his own expense.”

The 1975 amendment, however, relieves the employee of the expense of securing his own medical services. The section as amended provides in part (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(a)):

“The employer shall provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury. ***
The employee may at any time elect to secure his own physician, surgeon and hospital services at the employer’s expense ***.”

The effective date of the amendment, however, was July 1, 1975. Claimant’s right to reimbursement is therefore to be determined under the law as it reads without the amendment. Even so, we believe that claimant is entitled to reimbursement.

Under the law as it stands without the amendment, an employee may recover medical expenses for personally obtained services if the treatment is necessary and the employer was aware of such treatment. (Bell & Gossett Co. v. Industrial Com. (1972), 53 Ill. 2d 144, 150-51; Barricks Corp. v. Industrial Com. (1969), 44 Ill. 2d 9, 14; Quaker Oats Co. v. Industrial Com. (1953), 414 Ill. 326, 338.) The employee must make a claim upon the employer for medical services, and the claim must be sufficient to apprise the employer of the employee’s desire for treatment and to allow the employer the opportunity to provide such treatment. (Barricks Corp. v. Industrial Com. (1969), 44 Ill. 2d 9, 14; American Distilling Co. v. Industrial Com. (1968), 40 Ill. 2d 350, 352.) Where the employee justifiably concludes that the employer has disclaimed responsibility for medical care and seeks treatment elsewhere, that will not be deemed a decision to “elect to secure his own physician, surgeon and hospital services at his own expense” (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(a)) within the meaning of the Act. Barricks Corp. v. Industrial Com. (1969), 44 Ill. 2d 9, 14; Jewel Tea Co. v. Industrial Com. (1968), 39 Ill. 2d 180, 183-84.

If the testimony of the claimant is to be believed, it could reasonably be found that respondent had not fuHy and adequately assumed responsibility for claimant’s care. In this regard we note claimant’s testimony suggesting that she received unsatisfactory treatment from Oak Forest and that she even suffered physical abuse at the hands of respondent’s personnel. Claimant’s version of events was accepted by the Commission, and it affirmed the arbitrator’s award of reimbursement for medical expenses. No reason appears as to why that ruling should be disturbed, and we do not do so inasmuch as credibility of witnesses is to be determined by the Commission (Jewel Tea Co. v. Industrial Com. (1968), 39 Ill. 2d 180, 184).

The second issue to be resolved is whether claimant is entitled under section 8(b) of the Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(b)) to compensation for temporary total disability payments from the time that respondent contends that she was able to work until her return to work on July 7, 1975. Payments of $124.30 per week for 26 3/7 weeks were awarded. Payments accruing during the last four months of the period are at issue.

“Within the meaning of the compensation act, temporary total disability exists from the time an injury incapacitates an employee for work until such time as he is as far recovered or restored as the character of the injury will permit.” (Arbuckle v. Industrial Com. (1965), 32 Ill. 2d 581, 586.) The employee must prove not only that he did not work, but also that he was unable to do so. (Arbuckle v. Industrial Com. (1965), 32 Ill. 2d 581, 586; Lehigh Stone Co. v. Industrial Com. (1925), 315 Ill. 431, 436.) Evidence introduced by the parties below revealed conflicting medical opinions as to whether claimant was capable of returning to work. The Commission is in the best position to resolve conflicts in the evidence, and we will not set aside its findings if based on reasonable inferences. (Board of Trustees v. Industrial Com. (1978), 71 Ill. 2d 287, 295.) We cannot say that the record does not support the Commission’s determination, and therefore will not disturb its findings. We note especially that claimant was under doctor’s care and was twice hospitalized after respondent informed her that she could return to work.

Finally, we address the issue of permanent disability payments under section 8(e) (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e)) of $96.90 per week for 47 weeks for 20% loss of use of claimant’s right arm. Respondent argues that the Commission’s decision is not substantiated, is contrary to the manifest weight of the evidence, and is excessive.

Evidence introduced by claimant showed that she injured her right arm in the accident of January 2, 1975, that it was bandaged, X-rayed and treated, and that claimant still experiences pain and difficulty in manipulating the arm. The Commission found that claimant suffered a 20% loss of use of the arm on the basis of this evidence, and respondent has presented no sound arguments as to why that finding should be set aside. We cannot say that claimant’s claim is not substantiated or that it is contrary to the manifest weight of the evidence.

Nor can we say that the award is excessive. The award complies with the formula of section 8(e)(10) (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e)(10)) of the Act and does not appear to be unreasonable in light of the evidence introduced.

Although claimant testified that she still experiences pain in her back and legs also, no finding of additional permanent disability was made by the Commission. On appeal, claimant has not raised any issue relating to the Commission’s decision in this regard.

For the foregoing reasons the judgment of the circuit court is affirmed.

Judgment affirmed.


author: MR. JUSTICE GOLDENHERSH

text:
    (No. 50233.
    MEMORIAL MEDICAL CENTER et al., Appellants, v. THE INDUSTRIAL COMMISSION et al.-(Wanna Clemons, Appellee.)

      Opinion filed September 19, 1978.

      Henry D. Noetzel & Associates, of Peoria (William J. Thomas, of counsel), for appellants.
    Grady E. Holley, of Springfield, for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that petitioner, Wanna Clemons, was permanently and totally disabled as the result of an accidental injury sustained while she was employed by respondent, Memorial Medical Center, and awarded her compensation for permanent and total disability and a pension for life. On review, the Industrial Commission admitted into evidence the report of a physician who had examined petitioner for respondent, and affirmed the arbitrator’s decision. On certiorari the circuit court of Sangamon County confirmed the decision of the Industrial Commission and respondent appealed. (Supreme Court Rule 302(a), 58 Ill. 2d R. 302(a).) Respondent contends that the judgment must be reversed for the reason that the evidence shows that at the time of the alleged accident petitioner was not subjected to any risks arising out of her employment greater than the ordinary risks to which the general public was exposed. It contends further that “petitioner’s continuing inability to work is due to factors entirely unrelated to any injury sustained in her employment.”

The testimony shows that respondent operated Memorial Hospital in Springfield and that petitioner was employed in the hospital’s housekeeping department. She had been seated, cleaning chrome on a door. When she stood up, she saw that there was a spot on the door’s kickplate. She bent over to polish the spotted area and was unable to straighten up. She was taken to the hospital’s emergency room, treated and released. Approximately 17 or 18 days later she was admitted to the hospital and placed in traction and given physical therapy. Following her release from the hospital numbness and pain persisted in her back and legs. She was in the hospital several more times, and on one of the subsequent admissions surgery was performed. Following the surgery she continued to have numbness in her back; was unable to sleep, and suffered severe pain in her back when she attempted to do any sort of work. She wears a back brace at all times and suffers pain when she walks. She is five feet six inches tall and weighs approximately 250 pounds.

Dr. Basilius Zaricznyj, an orthopedic surgeon, called by petitioner, testified that when the conservative treatment of traction and medication did not appear to give her any relief, he performed a laminectomy. The disc between lumbar 5, sacral 1 had not ruptured but was bulging posteriorly. Describing her current condition, he testified: “She has an obvious abnormal disc, the one I removed, because once a disc is injured or removed then it’s' gone. She is also very overweight, so she has two conditions. She has an abnormal disc and second, she has a chronic lumbral-sacral strain due to her obesity.” He expressed the opinion that the accident might or could have contributed to her condition. While agreeing that losing weight would probably lessen her pain, he did not know whether it would do so to the extent that she could return to work.

Dr. David Chatara, petitioner’s family physician, testified that he had been treating her for years for high blood pressure and obesity. While agreeing that high blood pressure can, in some circumstances, be disabling, he stated that in her case it was not. She was able to work prior to the accident but has been unable to work since. He stated that in his opinion the difficulties with her back resulted from the occurrence which she described, that she was disabled and that her condition was permanent.

By deposition, Dr. John G. Meyer, who had examined petitioner for respondent, testified that she had a good range of motion, her pelvic tilt appeared normal and the paravertebral tests indicated that the muscle tissue tom as the result of the lumbar disc problem had healed. He was of the opinion that her elevated blood pressure and obesity caused her disability. Dr. Walter Baisier’s report, offered into evidence by respondent, on review, stated that there were not clinical findings of significance except petitioner’s obesity.

Citing numerous cases, the most recent being County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, respondent argues that the act of bending forward is a routine motion not peculiar to petitioner’s work, that the true cause of her disability was her obesity and that the evidence shows that she was not, as a result of her employment, subjected to any greater risk than the public at large.

In County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, the petitioner had suffered a stroke when she rose from her desk to go to lunch. The Commission awarded compensation and this court reversed on the ground that the petitioner had failed to prove a causal connection between the stroke and the activities of her employment. In contrast, the record shows that both Drs. Zaricznyj and Chatara testified that the act of bending forward contributed to petitioner’s injury and that neither Dr. Meyer nor Dr. Baisier expressed an opinion concerning the causal connection between the occurrence and petitioner’s condition.

We find apposite here the following statement from County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17-18:

“Respondent recognizes that an employer takes his employees as he finds them [Rock Road Construction Co. v. Industrial Com. (1967), 37 Ill. 2d 123, 129), and that a compensable injury will be found on a showing that a preexisting illness was aggravated or accelerated by the employment (Illinois Valley Irrigation v. Industrial Com. (1977), 66 Ill. 2d 234, 240).
An accidental injury can be found to have occurred, even though the result would not have obtained had the employee been in normal health. (Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32, 43-44.) If an employee’s existing physical structure gives way under the stress of his usual labor, his death is an accident which arises out of his employment. To come within the statute the employee need only prove that some act or phase of the employment was a causative factor of the resulting injury. Wirth v. Industrial Com. (1974), 57 Ill. 2d 475, 481.
The mere fact that an employee might have suffered a fatal heart attack, even if not working, is immaterial, for the question before the Commission is whether the work that was performed constituted a causal factor. (Laclede Steel Co. v. Industrial Com. (1955), 6 Ill. 2d 296, 302-04.) The sole limitation to the above general rule is that where it is shown the employee’s health has so deteriorated that any normal daily activity is an overexertion, or where it is shown that the activity engaged in presented risks no greater than those to which the general public is exposed, compensation will be denied. (County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 32-33; Rock Road Construction Co. v. Industrial Com. (1967) , 37 Ill. 2d 123, 127; Illinois Bell Telephone Co. v. Industrial Com. (1966), 35 Ill. 2d 474, 477.) Whether, however, the above factors are present is a question of fact for the Commission. Okaw Homes, Inc. v. Industrial Com. (1968) , 40 Ill. 2d 81, 84.”

As the court observed in County of Cook v. Industrial Com., 69 Ill. 2d 10, 19-20:

“The Commission is entitled to draw reasonable inferences from both direct and circumstantial evidence. This court will not disregard those permissible inferences merely because other inferences might be drawn. Beloit Foundry v. Industrial Com. (1976), 62 Ill. 2d 535, 538-39.
Accordingly, we find that the Commission’s decision was not against the manifest weight of the evidence.”

For the reasons stated the judgment of the circuit court of Sangamon County is affirmed.

Judgment affirmed.


text:
    (No. 49917.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHN EDWARD MULCAHEY, Appellant.

      Opinion filed September 19, 1978.

    UNDERWOOD, J., took no part.

      Richard J. Wilson, Deputy Defender, of the Office of the State Appellate Defender, of Springfield (Karen Munoz, Assistant Defender, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of Macon County defendant, John Edward Mulcahey, was convicted of the offenses of aggravated kidnaping (Ill. Rev. Stat. 1973, ch. 38, par. 10 — 2) and attempt (armed robbery) (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 4) and sentenced to concurrent terms in the penitentiary. The appellate court affirmed (50 Ill. App. 3d 421), and we allowed defendant’s petition for leave to appeal. The facts are set forth in the opinion of the appellate court and will be reviewed here only to the extent necessary to discuss the issues. Defendant gained entry to the home of John Luttrell, president of a bank in Decatur, and forced Mrs. Luttrell to telephone her husband at the bank. He informed Mr. Luttrell that his wife was being held hostage and instructed him to bring $25,000 to the Colonial Mall shopping center where he would meet him. He taped Mrs. Luttrell to a chair, took her automobile and drove to the place where he was to meet Mr. Luttrell. Mr. Luttrell told the police what had occurred and where the money was going to be delivered. He requested that there be no police in the area because he wanted to be certain that his wife was unharmed. The police agreed to comply with his wishes but indicated that there might possibly be some plainclothes officers in the vicinity.

Mr. Luttrell placed $25,000 in a briefcase and drove to the shopping center. He could not recall whether he had been instructed to wait with the money or leave it at the rear of Nino’s restaurant. He waited several minutes and left the briefcase containing the money at the rear of the restaurant. He drove to his home and learned that Mrs. Luttrell had been able to free herself and was unharmed. He returned to the shopping center and saw the briefcase where he had placed it. He saw his wife’s automobile and thinking that the driver was a plainclothes policeman, he flagged him, opened the door and told him that his wife was alright. The driver of the automobile (defendant) pointed a gun at Mr. Luttrell and said, “Get in the car or you’re a dead man.” Mr. Luttrell slammed the car door, dodged and ran toward the rear of the automobile.

While conceding that the evidence was sufficient to prove the offense of unlawful restraint (111. Rev. Stat. 1973, ch. 38, par. 10 — 3) defendant contends that it failed to show that Mrs. Luttrell was secretly confined; that secret confinement is a necessary element of the offense of aggravated kidnaping and must be proved beyond a reasonable doubt; and that because there was no proof of secret confinement the conviction cannot stand.

The statutes in pertinent part provided:

“Kidnapping occurs when a person knowingly:
(1) And secretly confines another against his wEI, ***.” Ill. Rev. Stat. 1973, ch. 38, par. 10 — 1(a)(1).
“A kidnaper within the definition of Section 10 — 1(a) is guilty of the offense of aggravated kidnaping when he:
(1) Kidnaps for the purpose of obtaining ransom from the person kidnaped or from any other person, ***.” Ill. Rev. Stat. 1973, ch. 38, par. 10-2(a)(l).

In People v. Bishop (1953), 1 Ill. 2d 60, the defendant had pleaded guilty to the crimes of kidnaping and kidnaping for ransom. Under the statute in force and effect at the time of the occurrence in question (Ill. Rev. Stat. 1947, ch. 38, pars. 384, 386) the offenses, inter alia, could be committed by secret confinement of the victim. In denying defendant relief in his coram nobis proceeding the court rejected the argument that there can be no secret confinement in an automobile so long as the vehicle was in motion upon the highway.

“Secret” has been variously defined as: “Concealed; hidden; not made public; particularly, in law, kept from the knowledge or notice of persons liable to be affected by the act, transaction, deed, or other thing spoken of.” (Black’s Law Dictionary 1519 (4th ed. 1951).) Although there are differences in the language of the relevant statutes, our review of the authorities (State v. Weir (Mo. 1974), 506 S.W.2d 437; Johnson v. State (Miss. 1974), 288 So. 2d 842; Jackson v. State (Tenn. Crim. App. 1976), 540 S.W.2d 275) persuades us that the secret confinement contemplated by the statute may be shown by proof of the secrecy of both the confinement and place of confinement, or of either. The victim in this case was “secretly confined” as effectively in her own home as if defendant had asported her to some remote isolated place of confinement. We hold that defendant secretly confined Mrs. Luttrell within the meaning of the statute.

Defendant contends next that the evidence failed to prove that in pointing a gun at Mr. Luttrell and ordering him to get in the automobile, defendant acted with the intent to commit armed robbery, and that the conviction for attempt must be reversed. The statutes in pertinent part provided:

“8 — 4. Attempt, (a) Elements of the offense.
A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” Ill. Rev. Stat. 1973, ch. 38, par. 8 — 4(a).
“18 — 1. Robbery, (a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” Ill. Rev. Stat. 1973, ch. 38, par. 18 — 1(a).
“18 — 2. Armed Robbery, (a) A person commits armed robbery when he violates Section 18 — 1 while armed with a dangerous weapon.” Ill. Rev. Stat. 1973, ch. 38, par. 18 — 2(a).

Although it is not entirely clear from the testimony of Mr. and Mrs. Luttrell whether defendant had instructed Mr. Luttrell to meet him with the ransom money or to leave it in a briefcase at the rear of Nino’s restaurant in the Colonial Mall, in defendant’s statement, read into evidence, he stated that he had directed Mr. Luttrell to bring the money to the shopping center and that he would meet him there in a half hour.

The evidence shows that defendant was armed with a gun and proof of intent to commit armed robbery did not require that he make a specific demand of Mr. Luttrell for the money which he had instructed him to bring. (People v. Murff (1963), 29 Ill. 2d 303, 305.) He knew that his victim had been freed and under these circumstances, where there was no longer any incentive for Mr. Luttrell to pay the ransom, the intent to take the money from him by force could be inferred from the evidence.

For the reasons stated the judgment is affirmed.

Judgment affirmed.

MR. JUSTICE UNDERWOOD took no part in the consideration or decision of this case.


text:
    (No. 49880.
    (No. 50020.
    THE DEPARTMENT OF TRANSPORTATION, Appellant, v. HERBERT A. SCHIEN et al., Appellees.-THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS, Appellant, v. BERNARD J. VOGT et al., Appellees.

      Opinion filed September 19, 1978.

      CLARK, J., took no part.
    William J. Scott, Attorney General, of Springfield (Roy E. Frazier, Jr., Assistant Attorney General, and Robert F. Scott and Raymond L. Terrell, of Springfield, and Harry J. Sterling, of Fairview Heights, Special Assistant Attorneys General, of counsel), for appellant.
    Barber & Barber, of Springfield (Carl O. Hoffee and Barry O. Hines, of counsel), for appellees.
    William J. Scott, Attorney General, of Springfield (Roy E. Frazier, Jr., Assistant Attorney General, and Harry J. Sterling, of Fairview Heights, Special Assistant Attorney General, of counsel), for appellant.
    Walker & Williams, P.C., of Belleville, for appellees.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

These consolidated appeals present the question whether, subsequent to entering an order pursuant to the “quick-take” provisions of the Eminent Domain Act (Ill. Rev. Stat. 1977, ch. 47, pars. 2.1 through 2.10) making a preliminary finding of just compensation and ordering the taking of the land and the vesting of title, the circuit court may dismiss the petition for want of prosecution.

In cause No. 49880, petitioner, the Department of Transportation of the State of Illinois, appealed from the order of the circuit court of Sangamon County in which the court denied petitioner’s motion to vacate and expunge a previous order of the court granting respondent’s motion to dismiss the petition for condemnation for want of prosecution, and fixing just compensation for the taking in the same amount found to be preliminary just compensation. The appellate court affirmed the order. 50 Ill. App. 3d 73.

In cause No. 50020, petitioner, the Department of Public Works and Buildings of the State of Illinois, appealed from the judgment of the circuit court of Monroe County dismissing its petition for condemnation for want of prosecution and vacating the “quick-take” order fixing preliminary just compensation and vesting title in petitioner. The appellate court affirmed the order. (51 Ill. App. 3d 770.) We allowed the Departments’ petitions for leave to appeal and consolidated the cases for further proceedings.

Because we have concluded that the issues in cause No. 50020 have become moot and the appeal must be dismissed, we consider briefly the record and the subsequent developments which indicate that no actual rights or interest of the parties will be affected by a decision in this cause. The petition for condemnation was filed on August 25, 1971, and on November 16, 1971, petitioner filed a motion for immediate vesting of title. On November 30, 1971, the court entered an order which contained the requisite findings (Ill. Rev. Stat. 1971, ch. 47, par. 2.2) and fixed the amount of preliminary just compensation. On January 25, 1972, it entered an order vesting title in petitioner. The matter was set for hearing for the determination of just compensation but on a number of occasions, for various reasons, was continued and reset. The procedural history of this case is adequately reviewed in the appellate court opinion and it suffices to say that the circuit court ultimately entered an order granting respondents’ motion to dismiss and ordering that the sums previously deposited pursuant to the quick-take order be refunded to petitioner. The order also states that nothing contained therein prevents the refiling of the petition for condemnation, subject, however, to the proviso that, if and when refiled, the date on which it was refiled would be the valuation date for just compensation for the taking of the property. The order of dismissal was entered on September 18, 1975.

Appended to respondents’ reply to petitioner’s petition for rehearing in the appellate court, as a “Supplemental Record,” are copies of documents executed by respondents on March SO, 1977, designated as dedications of right-of-way for a freeway, a release for freeway, temporary construction easements and a special agreement, in return for which they were paid sums greatly in excess of the amounts fixed by the court as preliminary just compensation for the taking of the property. In a response to respondents’ reply to the petition for rehearing, petitioner stated that the matter was not moot “inasmuch as the issues involved in the original petition sought the taking of the fee interest in question while the documents set forth in the supplemental record clearly establish that the interest purchased was not the fee but rather a dedication.” The petition for leave to appeal does not address the question of mootness, and no supplemental brief has been filed for petitioner. In an answer to the petition for leave to appeal respondents have suggested that the case is moot. Asked in oral argument why the appeal should not be dismissed for mootness the assistant Attorney General reiterated the position taken in the appellate court.

Simply stated, the record presents the anomalous situation of the vesting of fee-simple title in a quick-take proceeding and the subsequent payment of substantially greater sums of money for what petitioner now contends is a lesser title. Assuming, arguendo, that there is a distinction between the title originally sought and the title received and assuming further that petitioner may, through negotiation and voluntary payment, acquire the allegedly lesser title and thereafter seek by condemnation to acquire the greater title, it nevertheless is clear that the issues presented in the original proceeding are moot. There is no issue here of right to possession, nor is there any issue of the just compensation to be paid. Furthermore, we need not conjecture as to whether traverse would appropriately lie to challenge petitioner’s effort to obtain the fee-simple title under the circumstances shown here. It is obvious that the issues presented in the original proceeding are moot and the appeal is therefore dismissed. We note parenthetically that by what we have said here we do not indicate approval or disapproval of the holding of the appellate court concerning the merits of the cause.

Cause No. 49880 involves two parcels of land. Petitioner filed two separate petitions for condemnation, and thereafter its motions for immediate vesting were granted, preliminary just compensation for both tracts was determined, an order was entered vesting title in petitioner, and respondents thereafter withdrew the preliminary just compensation. (Ill. Rev. Stat. 1965, ch. 47, par. 2.4.) Subsequently, in accordance with a local rule of court providing that all suits begun before 1966 be disposed of before December 31, 1969, the condemnation action was dismissed. Petitioner moved to vacate the order of dismissal and reinstate the action. The motion was denied. Petitioner filed a motion for reconsideration of that motion and it was denied. Petitioner then filed a second motion to vacate and expunge the original dismissal order. The circuit court denied the motion and in the order provided that the preliminary just compensation previously fixed by the court was “ordered to be the amount of final compensation required to be found by this court for the taking of the property sought to be condemned.” The clerk was directed to refund to petitioner the excess of the deposit made by petitioner over the amount of preliminary just compensation previously deposited by petitioner and withdrawn by respondents.

Petitioner contends that the circuit court’s determination of just compensation without a jury trial on that issue is constitutionally impermissible. Respondents argue that, as stated by the appellate court, this issue was not raised, and that the contention is waived.

Although a condemnation proceeding may be dismissed for failure to prosecute it with diligence (Sanitary District v. Chapin (1907), 226 Ill. 499), the unique nature of an action in eminent domain renders inapplicable the usual rules governing involuntary dismissal. The purpose of an eminent domain proceeding is to determine just compensation to be paid the owner for land taken (Commissioners of Lincoln Park v. Schmidt (1944), 386 Ill. 550) and unlike other judgments, a judgment in eminent domain “does not impose a liability upon the condemnor but merely establishes a value that it must pay to acquire title. The condemnor is under no compulsion to pay the award, and no execution may issue upon the award” (County of Cook v. Malysa, (1968), 39 Ill. 2d 376, 379). Clearly, neither Supreme Court Rule 273 (58 Ill. 2d R. 273) nor the provisions of section 24 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 24a) apply.

The involuntary dismissal of this action was a sanction imposed for failure to diligently prosecute it. Were it not for the fact that title had been vested in the petitioner and respondents had withdrawn the sums deposited in compliance with the orders finding preliminary just compensation, the only practical effect of the dismissal would be that, upon refiling, the date of the subsequent filing would be the date for valuation of the property taken. Sanitary District v. Chapin (1907), 226 Ill. 499.

Sanctions imposed by the circuit court must be appropriate and necessary to achieve the proper completion of the litigation. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 196-97.) What is appropriate under the circumstances must be determined on the facts of each case. In addition to dismissal for failure to prosecute the action with diligence (Sanitary District v. Chapin (1907), 226 Ill. 499) a condemning authority which institutes proceedings and fails to prosecute its action with diligence may be held liable to the landowner for damages occasioned by wrongful delay. (Trustees of Schools v. First National Bank (1971), 49 Ill. 2d 408; Winkelman v. City of Chicago (1904), 213 Ill. 360.) The record shows that these actions were filed on December 31, 1964, and June 3, 1965, that quick-take orders were entered shortly thereafter, the amounts determined to be preliminary compensation were deposited by petitioner and withdrawn by respondents, and orders were entered vesting title in the petitioner. The cases were consolidated and were dismissed for the first time on September 18, 1968. A second order was entered on December 31, 1969, for failure to comply with the local rule with respect to reinstatement. On July 21, 1972, petitioner filed a motion to reinstate the cause, and that motion was denied. A motion to reconsider the denial was filed and denied, and on March 26, 1974, petitioner filed a motion to vacate the earlier order. Although it would have been better practice for the circuit court to impanel a jury for the purpose of determining just compensation, as noted by the appellate court, petitioner did not before that court assert that the determination of just compensation by the circuit court was error. Under these circumstances we are unable to say that in acting within its inherent powers to dismiss the cause of action for failure to comply with its rules, the circuit court abused its discretion. The judgment is affirmed.

49880 Judgment affirmed. 50020 Appeal dismissed.

MR. JUSTICE CLARK took no part in the consideration or decision of this case.


author: MR. JUSTICE CLARK

text:
    (No. 50443.
    MARILYN ADLER et al., Appellants, v. ILLINOIS BELL TELEPHONE COMPANY et al., Appellees.

      Opinion filed September 19, 1978.

      KLUCZYNSKI, J., took no part.
    Max & Herman Chill, P.C., of Chicago (Max Chill, Herman Chill, and Donald B. Garvey, of counsel), for appellants.
    James R. Bryant, Jr., and Edward Butts, of Chicago, for appellee Illinois Bell Telephone Company.
    William R. Quinlan, Corporation Counsel, of Chicago (Daniel Pascale and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellees Thomas J. Davies et al.

   MR. JUSTICE CLARK

delivered the opinion of the court:

This case involves a challenge to the constitutionality of the city of Chicago’s transmission of messages tax ordinance (Municipal Code of Chicago, sec. 132.30 et seq.). Plaintiffs, Marilyn and Leonard Adler (individually, and as representatives of a class of persons similarly situated), brought this action in the circuit court of Cook County, claiming inter alia (1) that the ordinance’s exemption of interstate phone calls from the tax is an unreasonable classification which denied plaintiffs the equal protection of the laws; (2) that the ordinance was, on its face, unconstitutionally vague and indefinite; and (3) that the ordinance was an unconstitutional delegation of legislative authority. After an interlocutory appeal involving these and other issues (Adler v. Illinois Commerce Com. (1977), 52 Ill. App. 3d 167), the circuit court dismissed the complaint for failure to state a cause of action. Plaintiffs filed a notice of appeal to the appellate court, and we granted the defendant city officials’ motion to transfer the case directly here pursuant to Supreme Court Rule 302(b) (58 Ill. 2d R. 302(b)). We affirm.

The city’s ordinance is not, on its face, limited to intrastate calls. However, no claim is made in this court that the ordinance is not being enforced as written, nor that the ordinance exceeds the authority granted by the General Assembly. Rather, plaintiffs claim that the distinction between interstate and intrastate calls is an unconstitutional one, and that the language of the ordinance is vague, indefinite, and an “unconstitutional delegation of legislative authority to the City of Chicago because it delegates to the City authority to define what calls are subject to the tax.” None of these contentions withstand scrutiny.

Distinguishing between interstate and intrastate telephone calls does not necessarily violate either the fourteenth amendment to the United States Constitution or section 2 of article IX of our constitution (Ill. Const. 1970, art. IX, sec. 2). The city well might seek to favor such commerce to attract business to the city. The city also could find the administration of a tax upon interstate calls unduly burdensome. Either consideration would justify the distinction in question; neither consideration is rebutted by plaintiffs’ pleadings, which therefore fail to state a cause of action as to this question. See Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432-33.

Neither have plaintiffs pleaded facts establishing that the ordinance is unconstitutionally vague and therefore an unlawful delegation of the legislative authority of the city council to city officers. As this court observed in Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 580:

“Plaintiffs have attacked several provisions of the ordinance which, they argue, are void for vagueness, indefiniteness and uncertainty. In this ordinance, as in many ordinances and statutes, the provisions contain general language, and the variety of interpretations suggested is limited only by the ingenuity of counsel who attack them.
This case is before us on the pleadings in declaratory judgment actions, and upon examination of the ordinance we conclude that there is no basis to anticipate that application of the provisions here attacked will present any undue difficulty. Should a set of facts present itself under which enforcement of the ordinance results in a deprivation of equal protection or due process, the matter can be adjudicated at that time.”

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

Judgment affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


text:
    (No. 50033.
    MICHAEL PERUSKY, Appellant, v. THE INDUSTRIAL COMMISSION et al.— (Abbott Laboratories, Appellee.)

      Opinion filed September 19, 1978.

    Sullivan, Smith & Hauser, Ltd., of Waukegan (Richard J. Smith, of counsel), for appellant.
    Discipio & DeCarlo, of Chicago (Vito D. DeCarlo, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This is a workmen’s compensation case, before us on direct appeal from the circuit court of Lake County (58 Ill. 2d R. 302(a)). The record is meager. The claimant, Michael Perusky, was injured on February 13, 1969, the arbitrator found, while in the course of his employment with Abbott Laboratories. On April 19, 1974, the arbitrator denied the claim for compensation, however, because the claimant had not filed an application for adjustment of claim until July 6, 1972. This was not within the statutorily required period of one year from the date (June 27, 1971) of the last payment of compensation by Abbott Laboratories (Ill. Rev. Stat. 1971, ch. 48, par. 138.6(c)(3)). In late October 1975, the Industrial Commission ruled that the claimant had “failed to perfect his petition for review by failing to file *** an agreed statement of the facts *** or by ordering a correct transcript of evidence of the proceedings *** within 20 days of receipt by him of the copy of the decision,” pursuant to the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(b)). Although the claimant paid $100 for the cost of preparation of the record, to be filed in the circuit court for review, within 20 days of his receipt of notice of the Commission’s decision, he did not file for a writ of certiorari until February 17, 1977. The circuit court dismissed for lack of jurisdiction pursuant to section 19(f)(1) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(f)(1)). From the moment his counsel withdrew before the arbitrator’s hearing commenced, until his appeal here, the claimant has been representing himself.

We affirm the judgment of the circuit court. Because of our disposition of the issue of the circuit court’s dismissal, we do not reach any other issue. Section 19(f)(1) allows circuit court review of the Commission’s decision concerning “all questions of law and fact presented by [the] record.” Under that section, the review must be commenced within 20 days by filing for a writ of certiorari. The section further provides:

“[N] o praecipe for a writ of certiorari may be filed and no writ of certiorari shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court a receipt showing payment of the sums so determined to the Secretary or Assistant Secretary of the Commission, except as otherwise provided by Section 20 of this Act.” (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(f)(1).)

The claimant paid the Commission to have the record prepared well within 20 days of the decision of the Commission. He did not file for the writ of certiorari until well over a year later. The statute clearly indicates two steps are required before two separate fora: the claimant must pay the Commission for preparation of the record to be presented on review before the writ of certiorari can be filed in the circuit court. The purpose of the payment is not to cover filing fees for the writ before the circuit court but to pay for the Commission’s cost of preparation of the record. Berry v. Industrial Com. (1973), 55 Ill. 2d 274. See Elles v. Industrial Com. (1940), 375 Ill. 107, 110.

In Boalbey v. Industrial Com. (1977), 66 Ill. 2d 217, where the claimant was also pro se, the circuit court also dismissed for lack of jurisdiction due to the 22-day-late filing for a writ of certiorari. There this court held that “the instant requirement that a petitioner file for a writ of certiorari within a certain time period may, by its nature, only be satisfied by literal compliance. ” (Emphasis added.) (66 Ill. 2d 217, 219.) The reason for this is clear. The circuit court’s competence to review Commission decisions is statutorily created. (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(f).) Hence, this jurisdiction “is a special statutory jurisdiction, and the parties seeking a hearing in the circuit court under this statute must comply with all the conditions prescribed.” Peter H. Clark Lodge v. Industrial Com. (1971), 48 Ill. 2d 64, 68. Accord, Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 262, Matthiessen & Hegeler Zinc Co. v. Industrial Com. (1940), 373 Ill. 293, 296, and Moweaqua Coal Mining & Manufacturing Co. v. Industrial Com. (1926), 322 Ill. 403, 404-05.

Where the legislature has prescribed certain prerequisites for the maintenance of a statutorily created cause of action, all parties, pro se or represented, must be held to the same degree of literal compliance with the legislature’s dictates. Because the claimant failed to perform timely that one vital step which would have vested the circuit court with statutory jurisdiction to review the Commission’s decision, we affirm the circuit court’s dismissal of claimant’s action for lack of jurisdiction.

Judgment affirmed.


author: MR. CHIEF JUSTICE WARD

text:
    (No. 49603.
    THE DEPARTMENT OF CONSERVATION, Appellee, v. ASPEGREN FINANCIAL CORPORATION, Appellant.

      Opinion filed September 19, 1978.

      Robert A. Downing and Arlene C. Erlebacher, of Sidley & Austin, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield (Frank S. Righeimer, Jr., and Leo N. Cinquino, Special Assistant Attorneys General, of Chicago, of counsel), for appellee.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

An action was brought by the plaintiff, the Department of Conservation of the State of Illinois, to condemn an unimproved tract of 160 acres in Lake and McHenry Counties owned by the defendant, Aspegren Financial Corporation. An award of $275,272 was made by the jury on which judgment was entered. The defendant appealed, and the Appellate Court for the Second District affirmed (47 Ill. App. 3d 118). We allowed the defendant’s petition for leave to appeal.

The defendant purchased the tract in December 1970 for $162,000, or about $1,000 an acre, with the stated intent of developing it as a recreational-residential community. In January 1971 the State announced its intention to acquire the tract as part of a proposed expansion of Chain of Lakes State Park. A petition to condemn the tract was filed on July 9, 1974.

The underlying dispute between the parties relates to the market value of the land on the latter date. On this appeal the defendant assigns numerous errors relating to the admission into evidence of testimony offered by the plaintiff, and to the exclusion of testimony offered by the defendant, in each case pertaining primarily to the question whether other property sold in the area was comparable to that owned by the defendant. The defendant also objected to the admission into evidence of the price at which it had purchased the subject tract in 1970.

The plaintiff put on two expert witnesses to testify as to the market value of the tract. One estimated it as $1,750 per acre. The other estimated it as $1,500 per acre. The defendant put on three expert witnesses whose estimates ranged from $3,000 to $3,500 per acre.

The defendant’s initial contention seems to be that the plaintiff was not entitled to have admitted into evidence the price at which the subject tract had been purchased by the defendant because no “foundation proof” was made that that price was as great as the value of the property on the date when the condemnation petition was filed. As a result, the defendant states, the onus was placed upon it to offer evidence that the price paid in 1970 was less than the value of the property in 1974. The defendant asserts that this allocation of proof runs contrary to the decisions of this court in Forest Preserve District v. Krol (1957), 12 Ill. 2d 139, and Department of Public Works & Buildings v. Bloomer (1963), 28 Ill. 2d 267.

In Krol the defendants had purchased the property in question for $75,000 in December 1951 with the purpose of continuing its existing use as a public golf course, which plaintiff contended was its best and highest use. The plaintiff’s expert witnesses testified that the value of the property as of the date of filing of the condemnation petition in September 1954 was in the neighborhood of $85,000. The defendants, who maintained that the best and highest use was for subdivision purposes, offered expert testimony that the value was from $210,000 to $262,000. Judgment was entered on an award for $100,000, and this court affirmed. It stated:

“At the time of sale the tract was being used for a golf course. The sale was, under the facts of record here, not too remote, and no error was committed in allowing evidence thereof. When a parcel of land is taken by eminent domain, the price the owner paid for it is a fact which may be considered in determining its value, provided the sale was recent and was a voluntary transaction, with no change in conditions or marked fluctuation in values having occurred since the sale. Sanitary District of Chicago v. Corneau, 257 Ill. 93; Forest Preserve Dist. v. Hahn, 341 Ill. 599.” 12 Ill. 2d 139, 147.

In Bloomer the time which elapsed between the purchase and the filing of the petition was four years. The court followed the principle stated in Krol (see 28 Ill. 2d 267, 274), and again the judgment of condemnation was affirmed. We find nothing in either of these decisions supporting the defendant’s claim that foundation testimony must be put in by the plaintiff that the purchase price fairly reflects the value of the property at the time of condemnation. See also 5 Nichols, Eminent Domain sec. 21.2 (rev. 3d ed. 1975).

Even longer periods between the purchase and the condemnation petition than that present here have been accepted in some decisions of the appellate court. (See, e.g., Department of Public Works & Buildings v. Gieseking (1969) , 108 Ill. App. 2d 105 (5 years); Metropolitan Sanitary District v. Industrial Land Development Corp. (1970) , 121 Ill. App. 2d 393 (5½ years).) The weight to be given the testimony as to the present value of the property remained of course a question for the jury to decide in the light of all the testimony.

The defendant also objects to the refusal of the trial court to give a tendered instruction which provided in part that the jury should not consider the 1970 purchase price as probative of the 1974 value “unless no change in conditions or marked fluctuation in value has occurred since 1970.” In denying this request the trial court stated that the instruction was defective in singling out one element, as to which the court had already instructed the jury. Since the defendant has not included in its excerpts from the record all the instructions given, this court cannot pass on this objection. Dempski v. Dempski (1963), 27 Ill. 2d 69, 77.

The plaintiff offered into evidence testimony as to several sales of other property which it contended were comparable. Of those sales as to which evidence was admitted, one was a 46-acre tract two miles away from the subject tract, which was sold in May 1974 for $1,300 an acre. The second was a 120-acre tract, located within three miles from the subject property, which was sold in April 1972 for $1,000 an acre. This land was subdivided into two parcels, and in November 1973 each parcel was sold at $1,500 per acre. The third sale was of a 122-acre tract located directly across a road from the subject property, which was sold in September 1970 for $900 an acre.

The defendant’s contention that none of these tracts was comparable rests primarily on the claim that the topography of the subject tract was rolling and that the tract was from 60% to 75% wooded, thus providing excellent sites for homes and a setting for riding trails, whereas the other properties were flat and much less heavily wooded, and thus unsuitable for the defendant’s proposed project. The appellate court correctly disposed of this argument by observing (47 Ill. App. 3d 118, 125):

“While the property involved in the comparable sales offered by the State may have been less desirable in meeting the qualifications of the defendant for his particular concept of a horse-oriented residential and recreational area, we think the land in question, being in the immediate area, and zoned the same, was not excludable on that ground. The test is market value and the defendant’s subjective test as to what suited him best for a particular purpose and a particular kind of development is not controlling as to what is a comparable sale. ”

Cf Housing Authority v. Kosydor (1959), 17 Ill. 2d 602, 606; City of Chicago v. Provus (1953), 415 Ill. 618; 4 Nichols, Eminent Domain sec. 12.22(2) (rev. 3d ed. 1977).

Testimony offered by the defendant as to two tracts claimed to be comparable was excluded. The first was a tract of approximately 327 acres located in Lake County 22 miles by road from the subject tract. This property had been acquired by the defendant following the State’s announcement in 1971 of its plan to expand Chain of Lakes State Park. At that time Oliver Aspegren, Jr., the sole owner of the defendant, suspended development activities for the subject site, and conducted an extensive search for other property which, as stated in the defendant’s brief, “would be equally suitable for development of his planned residential-recreational complex.” The Lake County property was not scheduled for inclusion in the park expansion, and Aspegren testified that it was compatible with the type of development which he had intended for the subject site. He purchased this replacement tract in April 1972 for $5,500 an acre.

The trial court excluded testimony on the replacement property because of its distance from the subject site, and because, unlike the latter, it had ready access to water supply and sewer facilities, and was located in a populous and developed area where real estate values would be higher. Admission and exclusion of evidence as to comparable sales rests largely in the discretion of the trial court. (Forest Preserve District v. Krol (1957), 12 Ill. 2d 139, 148.) We do not believe that the trial court abused its discretion here. And while the defendant may have regarded this tract as particularly suitable for his purposes, that, as previously noted, is not a relevant criterion.

The second tract was composed of some 213 acres located one-half a mile from the subject site. A contract for the purchase of this land by the defendant for $5,000 an acre was drawn up in 1974, but the sale never took place, since this tract also lay within the area to be acquired for enlargement of the State park, and the plaintiff accordingly filed a petition to condemn it about a month after the contract was signed.

The trial court found that in location, size, and topography the land was comparable to the subject property, but nevertheless excluded evidence of this sale as not comparable. The trial court noted that there were various qualifications attached to the sale contract as well as a difference in zoning. The court also pointed out that the contract provided for the return to the defendant of the earnest money, amounting to only $1,000, if condemnation proceedings, which were then known to be imminent, should be instituted.

In City of Chicago v. Harrison-Halsted Building Corp. (1957), 11 Ill. 2d 431, this court upheld the exclusion of an offer to purchase land from the defendant in a condemnation case. The court stated:

“The offer must be made in good faith, by a man of good judgment, acquainted with the value of the real estate and of sufficient ability to pay. It must be for cash and not for credit or in exchange and it must be determined whether made with reference to the fair cash market value of the property or to supply a particular need or fancy. Private offers can be multiplied to any extent, for the purpose of the cause, and the bad faith in which they were made would be difficult to prove. The reception of this kind of evidence stands upon an entirely different footing from evidence of actual sales between individuals or by public auction. The question of admission is one involving the discretion of the court and the decision of the court will not be disturbed unless it is manifestly against the weight of the evidence. The burden is upon the party seeking to have such evidence admitted to establish a sufficient foundation by showing that the offer was bona fide, for cash, and made by a person able to comply with the offer if it were accepted.” 11 Ill. 2d 431, 438.

That case involved an offer to purchase the parcel owned by the condemned, whereas here it is the condemnee which offered to purchase other, allegedly comparable property. We believe that the same rule should apply, however, and we hold that the offer was properly excluded.

The defendant further objects to the trial court’s refusal to permit the introduction of certain items of evidence said to relate to the probability of rezoning. To appreciate the point of this objection it must be noted that no issue is presented here respecting the type of use permitted on the defendant’s tract under the applicable zoning ordinances. Witnesses for both the plaintiff and the defendant testified that the best and highest use of the land was for residences, the use intended by the defendant. Half of the tract lay in Lake County and the other half in McHenry County. The zoning in Lake County was for agriculture, that in McHenry County for farming. In each case residences were a permitted use.

So far as we can make out from the briefs of the parties and the excerpts from the record, a zoning problem arose only because of minimum-lot-size requirements in each county. In the Lake County portion of the tract the minimum was 200,000 square feet, which is between four and five acres. In the McHenry County portion the minimum, prior to May 14, 1974, was 48,000 feet, which comes to about 11/8 acres. On May 14, prior to the date when the petition to condemn was filed, the McHenry County ordinance was amended to increase the minimum to five acres.

There was testimony on behalf of the defendant that prior to the 1974 amendment it would have been legally permissible to erect about 20 homes in Lake County and about 72 in McHenry County, and that the defendant’s initial development plan called for a total of 61 homes, far less than the aggregate of about 90 permitted under the ordinances. It is not possible to ascertain the total number of units which could have been built after the amendment to the McHenry County zoning ordinance, because the record before us does not disclose how many units were proposed for each of the two counties involved.

It appears that even prior to the 1974 amendment, while the total acreage of the tract could legally sustain the total number of dwelling units proposed, the individual homes were to be “clustered” in such a fashion that the minimum acreage per unit was less than that required under the two ordinances.

Aspegren testified that on December 8, 1970, he attended a meeting with the executive directors of the plan commissions of each county at which he outlined his proposal. One of these officials, Gerald Estes, made notes of the meeting and gave a copy, of them to Aspegren. Estes was not called to testify, and the trial court correctly refused to admit these notes in evidence.

Following the December meeting, Aspegren testified, he commissioned a firm to draw up a plan for his proposed development. That plan was never presented to the planning authorities of either county, however, because in January 1971, as previously noted, Aspegren learned of the plaintiff’s intention to acquire the property, and he abandoned further exploration into its developmental possibilities. The defendant’s tender of the plan was also refused by the trial court.

The third item of evidence allegedly bearing on the question of the probability of rezoning was a group exhibit consisting of some 60 amendments to the zoning ordinances of Lake County and McHenry County changing the zoning from agricultural use to some denser use. Counsel for the defendant represented to the court that these changes had been made sometime in the 1970’s, that they included changes made throughout each county, and that the exhibit was not offered as evidence of rezoning of land located near the subject property. In refusing admission to this exhibit the court made clear that it was not prejudging the admissibility of any zoning amendments which might relate to nearby property.

At this point in the proceedings the defendant called his three valuation witnesses. As noted earlier in this opinion each of them testified that the highest and best use of the tract was residential-recreational. None of them was asked for his opinion as to the value of the property were it to be rezoned so as to permit minimum lot areas less than those prescribed in the applicable zoning ordinances.

The defendant thereafter called as a witness Rolf C. Campbell, a land planner who was not qualified as an expert witness on land values. Campbell had prepared a plan for a possible use of the subject tract. It was not shown by the testimony that this plan incorporated the provisions of the earlier one commissioned by the defendant. Campbell was not asked to express an opinion as to the value of the land if developed in the manner indicated by his plan, nor was he asked to testify about the effect on value of a probable rezoning of the property. On the contrary, his testimony was that the tract would accommodate 32 residences under the requirements of the existing zoning ordinances as to minimum acreage without the need of any rezoning.

At this point the defendant retendered portions of its group exhibit which had now been revised so as to include only those zoning changes for property located from IVz to 7Vz miles away from the subject property.

The trial court refused to admit Campbell’s development plan in evidence. The court also refused to admit the revised exhibit relating to zoning amendments for the reason that there had been no testimony, either by Campbell or by any other witness, as to the amount by which rezoning would increase the value of the land.

The record before us supports the trial court’s rulings under the principles laid down in Department of Public Works & Buildings v. Rogers (1968), 39 Ill. 2d 109. In Rogers the property sought to be acquired was a one-acre tract zoned residential, which the plaintiff contended was its best and highest use. The defendants contended that the best and highest use of the property was a filling station, a use which was not permitted under the existing zoning. According to the testimony, the value of the property if used as a filling station substantially exceeded its value if used for residential purposes.

The court held that the trial court erred in excluding a recent ordinance which granted a special use for the construction of a shopping center on a 50-acre tract located one-half mile away on the same highway. The rationale of the decision was that the ordinance could be considered by the jury as evidence of a reasonable probability that the defendant’s property might be rezoned in the near future. Rogers also left intact the part of the appellate court’s decision which held that the trial court did properly exclude a witness’ opinion testimony as to the probability of obtaining a zoning change on the subject property. (See 78 Ill. App. 2d 141, 143-44.) In this connection the appellate court relied on Park District of Highland Park v. Becker (1965), 60 Ill. App. 2d 463, a case cited with approval in Rogers. See also Department of Transportation v. Western National Bank (1976), 63 Ill. 2d 179,185.

The holding of Rogers is thus that probability of a zoning change is significant only to the degree that such a change would result in an increase in value, in that a prospective buyer would take that factor into account in determining how much to pay for the land.

If evidence is introduced on the issue of a reasonable probability of rezoning, the owner is entitled to have appropriate instructions given to the jury on that issue. (Department of Public Works & Buildings v. Association of Franciscan Fathers (1977), 69 Ill. 2d 308.) The question of instructions is of course not presented by the instant case.

Rogers also stands for the proposition that a probability of rezoning is not properly shown by speculation as to what a zoning board might do in response to an application by the owner, but rather by what the board has done in recent cases. The defendant failed to translate any type of zoning relief into dollar terms. So far as McHenry County is concerned, moreover, the most recent action of the county had been to make the zoning more' rather than less restrictive.

The defendant urges finally that the market value of its tract should have been determined on the basis of the McHenry County ordinance prior to its amendment, since the defendant would then have been able to put up a substantially larger number of homesites. The defendant concedes-that market value is normally determined as of the date when the petition to condemn is filed, but urges that the three-year period between the initial announcement of the proposed acquisition and the filing of the petition makes application of the ordinary rule inequitable. We do not consider that the 1971 announcement by the State amounted to a de facto taking, however (City of Chicago v. Loitz (1975), 61 Ill. 2d 92), and the defendant’s counsel admitted both before the trial court and in oral argument here that the county’s decision to re zone was fortuitous, in that the plaintiff played no part in it.

For the reasons given in this opinion, the judgment of the appellate court is affirmed.

Judgment affirmed.