author: MR. JUSTICE MORAN

text:
    (No. 53796.

      In re ROGER B., Appellant (Morgan M. Finley, Circuit Clerk, Appellee).

      Opinion filed March 18, 1981.

      SIMON, J., took no part.
    Patrick T. Murphy, of Goldberg & Murphy, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and John A. Dienner III, and Penny Nathan Kahan, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The circuit court of Cook County dismissed the amended petition of plaintiff, Roger B., which sought a judgment declaring section 18 of the Adoption Act (Section) (Ill. Rev. Stat. 1977, ch. 40, par. 1522) unconstitutional. That statute places adoption records and original birth records under seal. The appellate court, in a two-to-one decision, affirmed. 85 Ill. App. 3d 1064.

Plaintiff argues before this court that the Section is invalid in that it (1) infringes upon a fundamental right, (2) creates a suspect classification, in violation of the equal protection clause of the United States Constitution, and (3) violates plaintiff’s right to receive information.

The facts are uncontradicted. Plaintiff, who was born in 1949, filed an amended petition in the circuit court, asserting that his status as an adult adoptee who had feelings of inadequacy and uncertainty as to his background permitted access to his adoption records. Alternatively, plaintiff alleged that the Section is unconstitutional. At the hearing, plaintiff testified that he had been searching for his biological family for three years. Plaintiff regarded himself as “emotionally, physically, and financially comfortable.” He testified that his search was not based on any psychiatric or medical need. Rather, the search emanated from plaintiff’s desire to know “information which pertains to [him] as a person.” The trial court upheld the validity of the statute. It also found that the statute requires a showing of good cause, which plaintiff failed to establish. The appellate court affirmed, upholding the constitutionality of the Section. The court also held that adulthood, in and of itself, does not constitute good cause to allow access to sealed adoption records.

The Section provides in pertinent part:

“Upon motion of any party to an adoption proceeding the court shall, or upon the court’s own motion the court may, order that the file relating to such proceeding shall be impounded by the clerk of the court and shall be opened for examination only upon specific order of the court, which order shall name the person or persons who are to be permitted to examine such file.” (Ill. Rev. Stat. 1977, ch. 40, par. 1522.)

A companion statute, sections 17(2)(a) and 17(4) of the Vital Records Act (Ill. Rev. Stat. 1977, ch. 111½, par. 73 — 17), provides that, after an adoption, the original birth certificate shall be sealed from inspection except upon court order.

Neither party disputes the trial court’s finding that the statutory scheme allows the records to be unsealed upon a showing of good cause. The statute, unlike those of several other States (e.g., New York Dom. Rel. Law sec. 114 (McKinney 1977)), does not explicitly provide a good-cause standard. However, the legislature has given the court authority to issue an order providing access to the records. Although we find no Illinois cases interpreting the standard to be applied, we agree that the discretion conferred by the statute was intended to be exercised upon a showing of good cause.

Plaintiff contends that the right to know his own identity is a fundamental right. He argues that the Section infringes upon this right without serving a compelling State interest, thereby violating the equal protection clause of the Federal Constitution. Plaintiff maintains that the right to determine one’s natural identity finds its basis under one’s right to privacy. He relies on several Supreme Court cases involving familial relationships, rights of family privacy, and freedom to marry and reproduce: Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (woman’s right to terminate her pregnancy); Eisenstadt v. Baird (1972), 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (matters involving contraception); Loving v. Virginia (1967), 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (freedom to marry); Prince v. Massachusetts (1944), 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (matters involving child rearing); Skinner v. Oklahoma ex rel. Williamson (1942), 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110 (the right to procreate).

These cases concern the most intimate areas of personal and marital privacy. The Supreme Court has been very hesitant in expanding the list of fundamental rights. (San Antonio Independent School District v. Rodriquez (1973), 411 U.S. 1, 29-33, 36 L. Ed. 2d 16, 40-43, 93 S. Ct. 1278, 1294-97.) In San Antonio, the Supreme Court, holding that the right to education is not a fundamental right, stated, “It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.” (411 U.S. 1, 33, 36 L. Ed. 2d 16, 43, 93 S. Ct. 1278, 1297.) The court indicated that the key to discovery if a right is fundamental “lies in assessing whether there is a right [that is] explicitly or implicitly guaranteed by the Constitution.” (411 U.S. 1, 33-34, 36 L. Ed. 2d 16, 43, 93 S. Ct. 1278, 1297; see Dandridge v. Williams (1970), 397 U.S. 471, 485, 25 L. Ed. 2d 491, 502, 90 S. Ct. 1153, 1161 (the recognition of the fact that the administration of public welfare assistance involves the most basic economic needs of impoverished human beings did not render it a fundamental right).) We have found no case holding that the right of an adoptee to determine his genealogical origin is explicitly or implicitly guaranteed by the Constitution. Several courts, however, have found that the right asserted here is not a fundamental right. Alma Society, Inc. v. Mellon (2d Cir. 1979), 601 F.2d 1225, 1231-33; Application of Maples (Mo. 1978), 563 S.W.2d 760, 762-64; Mills v. Atlantic City Department of Vital Statistics (1977), 148 N.J. Super. 302, 309-10, 372 A.2d 646, 650.

In Alma Society, Inc. v. Mellon, the plaintiff adoptees similarly claimed that a statute allowing the seating of adoption records, unless good cause is shown, violated their fundamental right to “personhood.” The court upheld the statute, concluding that the right to unseal birth records does not come within any recognized category of privacy. After examining two Supreme Court cases, Quilloin v. Walcott (1978), 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549 (upholding a Georgia statute allowing adoption of an illegitimate child without the father’s consent), and Zablocki v. Redhail (1978), 434 U.S. 374, 54 L. Ed. 2d 618, 98 S. Ct. 673 (invalidating a Wisconsin statute that interfered with the fundamental right to marry), the court concluded that those two cases illustrate the necessity of looking at the entire family relationship. The court held that the right of an adoptee to discover his identity should not be considered exclusive of the interests of other family members. Alma Society, Inc. v. Mellon (2d Cir. 1979), 601 F.2d 1225, 1233. Accord, Ap plication of Maples (Mo. 1978), 563 S.W.2d 760, 763-64; Mills v. Atlantic City Department of Vital Statistics (1977), 148 N.J. Super. 302, 311-12, 372 A.2d 646, 651; In re Sage (1978), 21 Wash. App. 803, 806-07, 586 P.2d 1201, 1203.

Virtually every State statute affects important rights. (San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 31, 36 L. Ed. 2d 16, 41, 93 S. Ct. 1278, 1295.) Although information regarding one’s background, heritage, and heredity is important to one’s identity, it does not fall within any heretofore delineated zone of privacy implicitly protected within the Bill of Rights. We believe the adoptee does not have a fundamental right to examine his adoption records.

Inasmuch as a fundamental right is not involved, the statute will be upheld if it is not arbitrary and bears a rational relationship to a legitimate State objective. Village of Belle Terre v. Boraas (1974), 416 U.S. 1, 8, 39 L. Ed. 2d 797, 803, 94 S. Ct. 1536, 1540; San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 17, 36 L. Ed. 2d 16, 33, 93 S. Ct. 1278, 1288; Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 120.

Section 18 and its related statutes represent a considered legislative judgment that confidentiality promotes the integrity of the adoption process. Confidentiality is needed to protect the right to privacy of the natural parent. The natural parents, having determined it is in the best interest of themselves and the child, have placed the child for adoption. This process is done not merely with the expectation of anonymity, but also with the statutory assurance that his or her identity as the child’s parent will be shielded from public disclosure. Quite conceivably, the natural parents have established a new family unit with the expectation of confidentiality concerning the adoption that occurred several years earlier. (Application of Maples (Mo. 1978), 563 S.W. 2d 760, 763; In re Sage (1978), 21 Wash. App. 803, 806, 586 P.2d 1201, 1203; Mills v. Atlantic City Department of Vital Statistics (1977), 148 N.J. Super. 302, 311, 372 A.2d 646, 651. See In re Christine (1979),---R.I.---,---, 397 A.2d 511, 513.) In Application of Maples, the Missouri Supreme Court stated:

“[T] he state at the behest of those concerned undertook through the adoption process to sever the parental relationship, award custody and establish a new relationship of parent and child. Much of the information coming into the court’s records during that process is for good reason treated as a confidence, offering a fresh start to the parties so that natural parents making this agonizing decision are assured the parent-child relationship will be completely severed, both legally and socially and may put behind the mistakes and misfortunes precipitating this fateful act. They are assisted in this traumatic experience by the knowledge that the records may be compromised only on order of court and that neither the child nor the adoptive parents may question why they consented to the adoption or the circumstances of the abandonment or neglect. If it were otherwise, the adopted child might reenter their lives with disastrous results. There must be finality for the natural parents and a new beginning; if there is a right of privacy not to be lightly infringed, it would seem to be theirs.” 563 S.W.2d 760, 763.

These interests of the natural parents do not cease when the adoptee reaches adulthood. (Alma Society, Inc. v. Mellon (2d Cir. 1979), 601 F.2d 1225, 1236; Mills v. Atlantic City Department of Vital Statistics (1977), 148 N.J. Super. 302, 316, 372 A.2d 646, 653.) In Stanley v. Georgia (1969), 394 U.S. 557, 564, 22 L. Ed. 2d 542, 549, 89 S. Ct. 1243, 1248, the Supreme Court held that “ ‘*** the right to be let alone [is] the most comprehensive of rights and the right most valued by civilized man.’ [Citations.] ”

Confidentiality also must be promoted to protect the right of the adopting parents. The adopting parents have taken into their home a child whom they will regard as their own and whom they will love, support, and raise as an integral part of the family unit. They should be given the opportunity to create a stable family relationship free from unnecessary intrusion. (In re Christine (1979),---R.I.---,---, 397 A.2d 511, 513; In re Sage (1978), 21 Wash. App. 803, 806, 586 P.2d 1201, 1203; Mills v. Atlantic City Department of Vital Statistics (1977), 148 N.J. Super. 302, 307-08, 372 A.2d 646, 649; In re Adoption of Spinks (1977), 32 N.C. App. 422, 427, 232 S.E.2d 479, 483.) The Section creates a situation in which the emotional attachments are directed toward the relationship with the new parents. The adoptive parents need and deserve the child’s loyalty as they grow older, and particularly in their later years. (Application of Maples (Mo. 1978), 563 S.W.2d 760, 764.) As stated in Alma Society:

“The adoptee’s attainment of majority is a definite event in the adoptee’s life; but it occurs independent of either the legally terminated natural family relationship or the legally assumed adoptive one and does not affect termination or continuation of those relationships.” 601 F.2d 1225, 1231.

The State’s concern of promoting confidentiality to protect the integrity of the adoption process is well expressed by the following excerpt from Klibanoff, Genealogical Information in Adoption: The Adoptees Quest and the Law, 11 Fam. L.Q. 185, 196-97 (1977):

“The primary interest of the public is to preserve the integrity of the adoptive process. That is, the continued existence of adoption as a humane solution to the serious social problem of children who are or may become unwanted, abused or neglected. In order to maintain it, the public has an interest in assuring that changes in law, policy or practice will not be made which negatively affect the supply of capable adoptive parents or the willingness of biological parents to make decisions which are best for them and their children. We should not increase the risk of neglect to any child, nor should we force parents to resort to the black market in order to surrender children they can’t care for.
***
No one has yet shown that decades of policy protecting the anonymity of the biological parents and the security from intrusion of the parent-child relationship after adoption have been misguided. Quite the contrary. The overwhelming success of adoption as an institution which has provided millions of children with families, and vice versa, cannot be easily attacked.
The public has a strong interest, too, in preserving the confidential non-public nature of the process. Public attitudes toward illegitimacy and parents who neglect or abuse children have not changed sufficiently to warrant careless disclosure of the circumstances leading to adoption.
But the public also has an interest in the mental health of children who have been adopted — in order that they not become burdens to society. Some provision for the relatively small group of adoptees whose psychological needs are compelling would appear necessary.”

We note that only three States, Alabama, Florida and Kansas, grant the adoptee access to original birth records. Confidentiality is perceived to promote the efficacy of the adoption process in 42 States, where the statutes provide for sealed birth records. Alma Society, Inc. v. Mellon (2d Cir. 1979), 601 F.2d 1225, 1235.

The State certainly must protect the interest of the adoptee, as well as the rights of the natural and adopting parents. When the adoptee is a minor, there is no dispute that the sealed-record provisions serve this end. The child, in his new family environment, is insulated from intrusion from the natural parents. The child is protected from any stigma resulting from illegitimacy, neglect, or abuse. The preclusion of outside interference allows the adopted child to develop a relationship of love and cohesiveness with the new family unit. Prior to adulthood, the adoptee’s interest is consistent with that of the adopting and natural parents.

Upon reaching majority, the adoptee often develops a countervailing interest that is in direct conflict with the other parties, particularly the natural parents. The adoptee wishes to determine his natural identity, while the privacy interest of the natural parents remains,- perhaps stronger than ever. The Section recognizes that the right of privacy is not absolute. It allows the court to evaluate the needs of the adoptee as well as the nature of the relationships and choices made by all parties concerned. The statute, by providing for release of adoption records only upon issuance of a court order, does no more than allow the court to balance the interests of all the parties and make a determination based on the facts and circumstances of each individual case.

We find the statute to be rationally related to the legitimate legislative purpose of protecting the adoption process. Consequently, the Section does not unconstitutionally infringe upon an adoptee’s right to discover his own identity.

Plaintiff argues that the Section creates a suspect classification for which there is no compelling State justification, thereby violating the equal protection clause of the Constitution. He compares his classification as an adoptee to legislative classifications that have been held suspect, such as race (Loving v. Virginia (1967), 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817), alienage (Graham v. Richardson (1971), 403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848), national origin (Korematsu v. United States (1944), 323 U.S. 214, 89 L. Ed. 194, 65 S. Ct. 193), and classifications that have been analyzed as “quasi-suspect,” such as illegitimacy (Trimble v. Gordon (1977), 430 U.S. 762, 52 L. Ed. 2d 31, 97 S. Ct. 1459) and sex (Frontiero v. Richardson (1973), 411 U.S. 677, 36 L. Ed. 2d 583, 93 S. Ct. 1764). Only race, alienage, and national origin have been definitively recognized as suspect classifications. Just as is true with respect to fundamental rights, the Supreme Court has been very hesitant in expanding the list of suspect classifications. See San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 28, 36 L. Ed. 2d 16, 40, 93 S. Ct. 1278, 1294; Kahn v. Shevin (1974), 416 U.S. 351, 355-56, 40 L. Ed. 2d 189, 193, 94 S. Ct. 1734, 1737. See also Alma Society, Inc. v. Mellon (2d Cir. 1979), 601 F.2d 1225, 1234; In re Estate of Karas (1975), 61 Ill. 2d 40,50-51.

Again, the Supreme Court has not enunciated specific criteria by which a suspect class is determined, but has suggested that suspect classes are those that suffer from “an immutable characteristic determined solely by the accident of birth” and have had a history of the relegation of the class to an inferior status. Frontiero v. Richardson (1973), 411 U.S. 677, 684-86, 36 L. Ed. 2d 583, 590-91, 93 S. Ct. 1764, 1769-70.

The status of adoptee does not result at birth, it is derived from a legal proceeding, the purpose of which is to protect the best interest of the child. (Ill. Rev. Stat. 1977, ch. 40, par. 1525.) Such status, conferred by the Adoption Act, actually improves the position of the child by providing a home, support, a family unit, and loving care that might otherwise not be present. (See Mills v. Atlantic City Department of Vital Statistics (1977), 148 N.J. 302, 308, 372 A.2d 646, 649.) Further, the child inherits from the adopting parents. (Ill. Rev. Stat. 1977, ch. 110½, par. 2 — 4.) We find that section 18 of the Adoption Act does not create a suspect classification.

Inasmuch as a suspect classification is not involved, the State need only have a rational basis for the statutory classification. (San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 17, 36 L. Ed. 2d 16, 33, 93 S. Ct. 1278, 1288; Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 120.) In this case, there is at least a rational basis between the statutory classification and a legitimate State purpose.

As discussed earlier, the legislature perceived a need for confidentiality. This confidentiality performs the socially and legally vital role of balancing the interest of the child, the interest of the natural parents, and the interest of the adopting parents. The prohibition against seeing the records is not restricted to the adoptees. It applies equally to the adoptees, adopting parents, natural parents, and any curious third party who seeks to look at the record. Further, as stated earlier, the preclusion on viewing the records is not absolute. The court may, for good cause, order the records to be seen. Inasmuch as a rational relationship exists between the creation of the status of adoptee and the State’s interest in promoting the adoption process, we find no unconstitutional infringement.

Plaintiff also argues that his constitutional right to receive information is violated by the Section. We disagree. Although the Constitution protects the right to receive information and ideas (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 756-57, 48 L. Ed. 2d 346, 355, 96 S. Ct. 1817, 1823), the first amendment does not guarantee a constitutional right of special access to information not available to the public generally. (Branzburg v. Hayes (1972), 408 U.S. 665, 684, 33 L. Ed. 2d 626, 641, 92 S. Ct. 2646, 2658.) The information sought here is the product of the judicial process, gathered under the State’s adoption laws. Control of records to support the highly desirable adoption scheme stands in contrast to the prevention of transfer of films (Erznoznik v. City of Jacksonville (1975), 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct. 2268), ideas (Stanley v. Georgia (1969), 394 U.S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243), and birth information (Griswold v. Connecticut (1965), 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678) in the cases cited by plaintiff. See Application of Maples (Mo. 1978), 563 S.W.2d 760, 762.

Just as we held that plaintiff’s right to know his identity is not absolute, plaintiffs right to receive information cannot be considered at the exclusion of the right of the other concerned parties. (Alma Society, Inc. v. Mellon (2d Cir. 1979), 601 F.2d 1225, 1233; Application of Maples (Mo. 1978), 563 S.W.2d 760, 762; Mills v. Atlantic City Department of Vital Statistics (1977), 148 N.J. Super. 302, 312-13, 372 A.2d 646, 652.) As stated earlier, the Section does not totally deny plaintiff access to his birth records. It simply requires a court to determine that sufficient justification exists before releasing the information. This limitation, founded upon protecting the adoption process, is not an unconstitutional exercise of State power.

In summary, we find section 18 of the Adoption Act contains no equal protection violation of the Constitution resulting from an unwarranted infringement of a fundamental right or creation of a suspect classification. In addition, we find no constitutional violation of plaintiff’s right to receive information.

In this case, plaintiff’s attempt to have his adoption records released did not result from any physical or psychological medical need. It arose from plaintiffs desire to discover his natural identity. Further, the record does not show that the natural parents have ever waived their privacy right by consenting to divulgence of the information. We find that the trial court did not abuse its discretion in concluding that plaintiff’s desire to obtain release of the records should not prevail over the potential infringement of the rights of other parties. Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: MR. CHIEF JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 53340.
    ROBERT A. KOSS et al., Appellants, v. THE CITY OF WAUKEGAN, Appellee.

      Opinion filed March 18, 1981.

      MORAN, J., took no part.
    Morrison & Nemanich, of Waukegan (Willian J. Nemanich, of counsel), for appellants.
    Diver, Bollman, Grach & Quade, of Waukegan (Robert M. Bollman and Bernadette Cole, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, the city of Waukegan, appealed from the judgment of the circuit court of Lake County entered in favor of plaintiffs, Robert A. Koss, Douglas R. Koss, and the Waukegan Savings and Loan Association, in their action for declaratory judgment. The circuit court found that defendant’s zoning ordinance, as applied to plaintiffs’ property, was unconstitutional and void and that a savings and loan facility could be constructed thereon in accordanee with the preliminary plan received in evidence. In a Rule 23 order (73 Ill. 2d R. 23) the appellate court reversed (80 Ill. App. 3d 1205), and we allowed plaintiffs’ petition for leave to appeal (73 Ill. 2d R. 315).

The record shows that the property in question is situated in northwestern Waukegan, is triangular in shape and approximately one-half acre in size, and is bordered on the north by Buck Avenue, on the east by North Jackson Street, and on the southwest by Golf Road, with street frontage there of 296.2 feet.

The record further shows that in the area in question Golf Road is a major four-lane road which runs at a diagonal. Golf Road is traversed by 15,000 to 20,000 vehicles daily, and has been designated as a “local truck route,” with a posted speed limit of 30 miles per hour. The testimony of plaintiffs’ witnesses showed that the volume of traffic on Golf Road has increased in recent years, resulting at least in part from the designation of the road as a truck route and the movement of vehicular traffic between industrial areas near Lake Michigan on the east and major highways west of Waukegan. That portion of North Jackson Street which extends north from Golf Road is utilized for access to residences in that area. There is a traffic-control light at the comer of Golf Road and North Jackson Street.

The parcel in question was purchased by plaintiffs Koss approximately seven years earlier and was zoned R-3 (single-family residential, lot area not less than 6,200 feet) under defendant’s then-existing zoning ordinance. Plaintiff Waukegan Savings and Loan Association contracted to purchase the property from the Kosses and proposed to erect a one-story savings and loan facility with 5,000 square feet of building area, and parking and drive-in facilities. The plaintiffs filed an application seeking a change of zoning classification from R-3 to B-l (retail business district). The application was denied by defendant, and the plaintiffs instituted the present action.

The record shows that the property to the north and east of the plaintiffs’ lot is occupied by single-family residences and is so zoned. The property to the south is also occupied by single-family residences and is so zoned up to a point near Greenwood Avenue, where an area of B-3 (retail service business) zoning exists east to west from North to Western Avenues respectively. The property to the west of the parcel and east of Western Avenue is, with the exception of one B-3 and one R-5 (multifamily residential) parcel, also occupied by single-family residences and so zoned. The existing use and zoning of property on Golf Road, however, is not exclusively single-family residential in nature. A similar triangular tract immediately to the southwest across Golf Road from the Koss property is zoned B-3 and occupied by a Citgo service station. The property located immediately to the southeast of the Koss parcel on the north side of Golf Road is zoned R-4 (two-family residential) and was vacant at the time of trial. Apparently two residential buildings have now been erected on that site. A single-family residence, church and parking lot are located immediately south of Golf Road across from plaintiffs’ property. A fire station is situated south of Golf Road and immediately east of the aforementioned church, on the southeast comer of Golf Road and North Jackson Street. Immediately to the west of plaintiffs’ property and north of Golf Road is a one-block area zoned R-3 (single-family residential) and occupied by a three-unit apartment structure and a home. West of the home, across Linden Avenue, is a one-block area zoned R-5 (multifamily residential) and occupied, at least in part, by several large three-story apartment buildings adjacent to Golf Road.

Plaintiffs introduced into evidence a “preliminary concept plan” for the proposed savings and loan building. According to Peggy Gupton, a vice-president and director of plaintiff Waukegan Savings and Loan, the structure would be approximately twice as large as an existing office in Waukegan and would serve as a full-service branch facility. The existing facility accommodated about 30 drive-in customers daily. Rolf C. Campbell, a city planning and zoning consultant who designed the plan, testified that the structure would be surrounded by landscaping or brick walls and would provide “a screen to the high intensity thoroughfare of Golf Road ***.” The facility was designed to limit disrupting the flow of traffic on Golf Road by providing that traffic could only enter the facility from Golf Road if moving northwesterly. Traffic leaving the facility would not exit onto Golf Road but would exit only onto Buck Avenue or North Jackson Street, and proceed onto Golf Road via presently existing intersections. Twenty parking spaces and a “stacking” area for nine cars awaiting service at the drive-in facility would be provided. Campbell testified further that the facility, as designed, would be compatible with the existing family homes in the area. He was also of the opinion that the noise from the traffic made the lot unsuitable for residential development.

Plaintiff Robert A. Koss testified that since he and his brother had purchased the property approximately seven years earlier a number of changes had occurred in the neighborhood, primarily due to the increased traffic on Golf Road. Traffic had tripled in the seven-year period, and there was a substantial increase in truck and commercial traffic in general. The neighborhood is now extremely noisy both day and night. Traffic is especially heavy during a change of shifts at certain factories. In the seven-year period of their ownership, they have received no inquiries from potential purchasers who would use the property for residential purposes; only commercial uses have been proposed by buyers. There has been no residential building on Golf Road in the immediate area since 1971.

A builder and realtor who resided in Waukegan testified that he was formerly the president of a construction company which built more than 800 homes in Waukegan and in other areas in Lake County. He was familiar with the general demand for single-family residential building sites in the city and testified further that the parcel was not suitable for use as residential property in any manner. He stated that the principal problem was that the longest side of the lot fronted on Golf Road and the lot provided no privacy. Although homes which were built facing Golf Road were still occupied and well maintained, the owners were now unable to obtain the selling price requested, because of the heavy traffic. A real estate appraiser called by plaintiffs testified that the value of the property as presently zoned was $20,000, and as proposed to be used by plaintiff Waukegan Savings and Loan was worth $140,000. He saw no injury to adjoining residences, because the single-family homes facing the institution would view the walls and landscaping and not the parking lot or building.

Called on behalf of the defendant, a planning architect for the city testified that he was familiar with the parcel in question, that the best use for the property was the predominant use in the area, single-family residential, and that the proposed development would have an adverse impact upon traffic in the area. He further testified that the general range of setbacks in the area was 30 feet, while the setbacks proposed for this facility were approximately 10 to 15 feet. Further commercial development on Golf Road would exacerbate an already existing traffic problem and would present hazards for school children who cross at the intersection.

Peggy Gupton, called by defendant under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), testified that it was expected that the volume of drive-in traffic would double at the new location and that more space was needed at the association’s present facility. A real estate broker called by the city testified that the highest and best use of the property was R-3, single-family residential, “with some R-4 duplex.” Joann Callahan, a Waukegan real estate broker, testified that the highest and best use for the property was for duplex housing requiring R-4 zoning.

In its order the appellate court noted:

“Plaintiffs’ witnesses testified that the subject property was unsuitable for residential development because of its triangular shape, its natural orientation towards a high volume truck route, the high noise levels, and a total lack of privacy. These factors were not challenged by the city and, when considered together, clearly demonstrate the unsuitability of the parcel for any type of residential use.”

The appellate court held that the circuit court had correctly determined that the zoning ordinance was unconstitutional as applied to the parcel in question. The appellate court, however, also concluded that plaintiffs’ proposed use was unreasonable, stating:

“Here, the very evidence relied upon by plaintiffs to demonstrate the invalidity of the city zoning restrictions — i. e., the high volume of car and truck traffic on Golf Road — also demonstrates the unreasonableness of the use proposed by plaintiffs for the property — a savings and loan association serving drive-in customers. According to the city’s planning architect, a bank or savings and loan association is considered a ‘high traffic generating use.’ This testimony was not seriously controverted by plaintiffs. Rather, plaintiffs chose to show that the adverse effects of additional traffic attributable to the savings and loan association could be minimized by controlled ingress and egress to the building. In our view, a use generating a high volume of automobile traffic in a residential area already burdened with heavy car, truck, and commercial traffic is clearly unreasonable. This is particularly true where the site for the proposed use is a comparatively small lot surrounded by streets on all sides.
We further note that while the evidence established the adequacy of on-site parking for present purposes, projections by one of plaintiffs’ witnesses established the likelihood that available parking would eventually become insufficient. A vice-president for Waukegan Savings and Loan testified that the association estimated the number of necessary parking spaces by assuming these requirements would be roughly equivalent to its 10th Street facility. However, the witness frankly admitted that business was expected to at least double over the years and that more space was now needed at the 10th Street facility. In short, the undisputed evidence established that present parking requirements would be adequate while future requirements were not. In light of the inability of the association to expand because of the limited size of the Koss parcel, we believe that the use proposed by the plaintiffs is unreasonable under the circumstances presented in the case at bar and that the trial court’s finding of reasonableness is clearly against the weight of the evidence.”

Plaintiffs contend that the appellate court erred in holding that the circuit court’s finding was against the manifest weight of the evidence. They argue that the decision of the appellate court based on the evidence that the proposed use will cause an increase in traffic on a heavily traveled road, and showing inadequate provision for future parking requirements, conflicts with the decision in La Salle National Bank v. Village of Skokie (1962), 26 Ill. 2d 143. Further it is contended that the appellate court “decision leaves the property unzoned and permanently vacant” since the court affirmed a finding that the property is unsuitable for any type of residential use, but ruled “that the property cannot be utilized for its highest and best use.”

Defendant argues that the facts of this case are similar to and controlled by Schultz v. Village of Lisle (1972), 53 Ill. 2d 39, and that “it would seem that the appellate court need not have determined that the Waukegan ordinance was unconstitutional.” Further defendant contends that the residential character of the neighborhood makes the proposed commercial use unreasonable. Defendant also argues that the property is not unzoned and asks that judicial notice be taken of the enactment of an ordinance which rezones the property to “R-4A” and “would permit the erection of three duplexes” on the parcel. Defendant further notes that “In rezoning the property in question to multi-family use, the City conceded the fact that it is not appropriate for single-family residences.”

We take judicial notice of the rezoning of the subject parcel to R-4A, which is a multifamily use under defendant’s zoning ordinance. (Ill. Rev. Stat. 1979, ch. 51, par. 48b.) In view of the rezoning of the property to multifamily use, we need not consider whether the ordinance was valid as it affected plaintiffs’ property. The sole question for determination is whether the plaintiffs proved by clear and convincing evidence that the use proposed for the property was reasonable. National Boulevard Bank v. Village of Schaumburg (1980), 83 Ill. 2d 228.

From our examination of the record we conclude that the evidence adduced by plaintiffs, at most, presented a difference of opinion as to the reasonableness of the proposed use and whether the denial of rezoning to permit the proposed use is reasonably related to the health, safety, morals and welfare of the community. The appellate court did not err in holding that plaintiffs had failed to sustain their burden of proof and the judgment of the appellate court is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE SIMON

text:
    (No. 53420.
    ARTHUR PARSONS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Wabco Construction & Mining Equipment Corp., Appellee).

      Opinion filed March 18, 1981.

      Warren E. Danz, of Peoria (Richard G. Leiser, of counsel), for appellant.
    Robert W. Scott, of Swain, Johnson & Gard, of Peoria, for appellee.
   MR. JUSTICE SIMON

delivered the opinion of the court:

The only question here is whether Arthur Parsons was injured while at work. The arbitrator found that he was not. The Industrial Commission heard additional testimony from Parsons and agreed. The circuit court of Peoria County confirmed the Commission’s decision. Parsons contends that these determinations were against the manifest weight of the evidence.

Parsons was employed by Wabco Construction and Mining Equipment Group and had previously suffered injuries at work. On January 13, 1975, he injured his back and was off work for 30 days. In April of 1975 Parsons’ left knee was injured. He underwent surgery and was not able to return to work until August of 1975. Parsons received a workmen’s compensation award for a 35% loss of use of his left knee. When Parsons reported back to Wabco he was assigned to light work. However, there was not enough such work available, and he was sent home after about a month.

Wabco called Parsons back to work on January 19, 1976. On his first day, he began training as a hacksaw operator, a job that required him to feed 10-foot-long sections of steel into a saw, then remove the pieces into which the section was cut. A jib crane was available for use in lifting the steel. Parsons was being trained by John Bridge-man, who testified that Parsons assisted him, but did not actually run the machine.

Parsons testified that just before lunch break, after working for 4 hours, he manually picked up a piece of steel about 18 inches long and 4 inches in diameter. Bridgeman said that such a piece would weigh over 70 pounds. Parsons said that he felt a sharp pain in his lower back which radiated down his legs. During the lunch break, he went to the nurse at the first-aid station. He explained that he had reinjured his back by picking up a piece of steel and said that he “couldn’t hack it anymore” and was going home. Bridgeman testified that he never saw Parsons pick up any steel by hand, although because of his work he was not constantly watching Parsons. Bridgeman also said that Parsons never complained to him of back pain.

On the evening of January 19, 1976, Parsons went to his family doctor, who had treated him for his earlier back problem. He told the doctor that he had returned to what was supposed to be an easy job, but developed back pain which became severe with lifting. The doctor sent him to an orthopedic surgeon who prescribed a course of hospitalization, traction, and physical therapy. When space opened up at a nearby hospital, Parsons was admitted for 24 days in February 1976. The orthopedic surgeon and the family doctor both felt that Parsons was suffering from a bulging herniated disc. The family doctor thought that the problem had aggravated Parsons’ arthritis. Another physician testified for Wabco that he had examined Parsons’ X rays and that they showed arthritic changes in the lumbar spine which could have caused the lower back pain. He found no evidence in the X rays of a herniated disc.

The arbitrator found that Parsons had failed to prove that he was injured in the course of his employment. After hearing Parsons testify about his continuing back pain, the Industrial Commission affirmed the decision.

The Industrial Commission’s decision that Parsons failed to sustain his burden of proof must be affirmed unless against the manifest weight of the evidence. (Laboy v. Industrial Com. (1978), 74 Ill. 2d 18, 24; Wise v. Industrial Com. (1973), 54 Ill. 2d 138, 142.) The burden was on Parsons to prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. O’Dette v. Industrial Com. (1980), 79 Ill. 2d 249, 253.

Parsons’ case rested on his own testimony. Disputed questions of fact, such as credibility, are to be resolved by the Industrial Commission. (Gladstone v. Industrial Com. (1980), 79 Ill. 2d 236, 240; Allen v. Industrial Com. (1975), 61 Ill. 2d 177, 183.) Parsons’ proof was contradicted by Bridgeman’s testimony that he did not see Parsons lifting steel and that Parsons never complained to him of any back pain. In addition, the Industrial Commission, to favor Parsons, had to believe that he picked up heavy steel bars weighing approximately 70 pounds, by hand instead of using a jib crane specifically provided for the task.

The medical testimony was also conflicting. Parsons’ physicians testified about a bulging herniated disc. Wabco’s physician found only the arthritis which Parsons’ family doctor said predated the alleged accident. The law gives the Industrial Commission responsibility for resolving such conflicting medical evidence. Perry v. Industrial Com. (1977), 66 Ill. 2d 418, 421.

From the record it appears that the Industrial Commission’s decision was not against the manifest weight of the evidence. (See Marshall v. Industrial Com. (1976), 65 Ill. 2d 203; Moore v. Industrial Com. (1975), 60 Ill. 2d 197.) The judgment of the circuit court is therefore affirmed.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 53668.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. EARNEST JACKSON, Appellee.

      Opinion filed March 18, 1981.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Terry A. Mertel, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Thomas Lilien, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The defendant, Earnest Jackson, was found guilty of two counts of armed robbery and one count of aggravated kidnapping by a jury in the Will County circuit court and sentenced to three concurrent 12-year terms. The appellate court reversed, one judge dissenting (84 Ill. App. 3d 172), holding that rebuttal statements made by the prosecution during closing argument constituted plain error mandating a new trial. We allowed the State’s petition for leave to appeal. A review of the evidence will be helpful in assessing the validity of the appellate court’s reasoning.

The charges on which defendant was convicted arose from an incident on June 3, 1978, involving admitted prostitutes Loretta Sutherland and Patty Casterberry. Miss Sutherland testified that she was walking down Eastern Avenue in Joliet with Miss Casterberry at 11:30 that night. A brown car pulled up and a man got out, walking slowly in front of the women. As they came up to him he turned and pulled an automatic pistol, told them not to run, and ordered them into the brown car which pulled alongside. As the women entered the back seat of the car the driver ordered them to lie on the floor. Miss Sutherland identified the defendant as that driver. The gunman told defendant to get on Interstate 80 and ordered the women to throw their purses to him. Miss Sutherland stated there was about $200 in her purse at the time and the gunman said they had hit the jackpot. She then testified that the defendant said, “I told you Joliet was easy.”

She requested to be let go since the men had their money, but the gunman told her to shut up and not to ask gangsters any questions. The defendant turned off Interstate 80 at Interstate 57. At this point the gunman lit a marijuana cigarette and passed it to Miss Sutherland and Miss Casterberry, who each took one puff. The defendant and the gunman finished the cigarette. The gun was held on the women throughout the drive.

The defendant left Interstate 57 at Stony Island and 103rd Street in Chicago and drove to a forest preserve, where he parked. The gunman and defendant got out of the car and talked across the hood. Miss Sutherland was allowed by the gunman at this point, as she put it, to use the bathroom, squatting on the pavement by the car. She was then put in the back seat with the gunman, and Miss Casterberry was put in the front seat with the defendant. Miss Sutherland testified that she was forced to have sexual intercourse and oral sex with the gunman without her consent.

After about an hour another car pulled into the area. Miss Sutherland testified that the men were going to switch women, but the gunman wanted to leave because of the other car. The women were told after leaving the forest preserve that they were going to be dropped off at a truck stop to make money for their pimps. Both women denied having a pimp.

The defendant drove to the rear of a 159th Street truck stop, and the women were told to get out and run and not to look back. Miss Casterberry climbed out and ran, but Miss Sutherland just walked fast, looking back to get the license plate number of the car, which she stated was a brown Buick. She thought the plate number had been 779109.

The women called a cab to take them back to Joliet, for which Miss Sutherland paid with money she had hidden in her sock when she first got into the car. She did not call the police from the truck stop, but upon returning to Joliet for Miss Casterberry’s car, they saw Officer Abernathy, whom they knew to be a Joliet police officer. They told him of the incident and asked him what they should do. He told them to report it at the police station, which they did.

Miss Sutherland stated that on June 19, 1978, she went to Chicago with Miss Casterberry, Officer Abernathy and another officer to view a lineup in a Chicago police station. Miss Sutherland and Miss Casterberry were separated at the police station, and each viewed the lineup alone. Each identified the defendant as the driver of the car.

Miss Casterberry’s testimony was essentially the same as Miss Sutherland’s. The two women had been at her cousin’s house on Eastern Avenue before they were forced into the car by the gunman. She also identified the defendant as the driver of the brown car. She threw her purse, which contained about $250, to the gunman. She noted the exchange in which defendant said, “I told you Joliet was easy,” and related the drive to the forest preserve. She asked five or six times to be let out of the car during the ride. The forest preserve parking lot was near some trees and not lighted. She was told to get in the front seat of the car, where she was forced to have sexual intercourse and oral sex with the defendant.

Miss Casterberry testified that when defendant was done having sex with her, he told the gunman to switch the women. They did not switch but decided to leave when the other car pulled into the parking lot. She was dropped off at the truck stop and ran, looking back when she was far away. She stated she looked back for the license number and got the first three numbers, 779. Upon returning to Joliet and seeing Officer Abernathy they went right to the police station to report the incident. She also testified as to the lineup at which defendant was identified as the driver.

Investigator Eshoo of the Chicago police department testified that he assisted the Joliet police in a lineup on June 19, 1978, at a Chicago police station. He told the defendant there was going to be a lineup concerning the robbery of two women from Joliet. He testified that defendant responded, “Ain’t that something, couple of whores are beefing that I robbed them.” Investigator Eshoo had not, prior to this statement by defendant, informed him that the victims in this case were prostitutes.

Officer Blanc of the Chicago police department testified that on June 19, 1978, he arranged a lineup in cooperation with the Joliet police department. He stated that Miss Sutherland and Miss Casterberry viewed the lineup separately and each identified the defendant.

Detective Abernathy of the Joliet police department testified that on the morning of June 4, 1978, he was informed by Miss Sutherland and Miss Casterberry that they had been involved in an armed robbery and kidnapping. They wanted to know what they should do, and he told them to make an official report at the police station. He later went to Chicago on June 19, 1978, with Miss Sutherland, Miss Casterberry and Detective Gerdes to view an in-person lineup. They returned to Joliet with the defendant following the lineup.

Kalousheia Marshall testified for the defendant that on June 2, 1978, he owned a tavern in Chicago. He had known defendant for some time. At 10:30 that night he had a conversation with defendant on the comer outside his bar. He testified that he talked with defendant for 45 minutes to an hour. On cross-examination he stated that he was on foot outside his bar and defendant came up to talk to him.

Earnest Jackson testified in his own defense that he was a truck driver and had previously served in the Army. He had been in Ohio on June 2, 1978, in connection with his truck-driving job. He stated that from 9 to 10 p.m. on June 3 he was at his sister’s house. He then drove in his car, a brown Buick with the license number 799109, to 52nd Street and Halsted in Chicago, where he saw his friend Kalousheia. He talked to him for about an hour. When he left he headed for the truck stop at 159th Street to buy some supplies. He had been to the truck stop on a number of prior occasions and had observed prostitutes in the area. On the way there he met a young woman named Betty Wilkes, who is a neighbor of his mother. She was waiting for a bus at 59th and Halsted, and defendant asked her if she wanted a ride home. He told her he had to first pick up some papers and would be about an hour. She accepted the ride and went with him to the truck stop. Defendant went inside to buy a road atlas and blue jeans. He met a truck driver he knew on his way out, and they talked outside the truck stop entrance about 20 feet from defendant’s car for about an hour. While talking, two women approached them and asked if they wanted to do something. Defendant said no, and the women made a smart remark and walked away. He could not identify the women but said they had a lot of makeup and wigs on. Defendant then left with Betty Wilkes and went to his mother’s home. It was about 3 a.m. when he arrived. Defendant did not remember if he had said something about two whores to a Chicago detective at the time of the lineup, and he denied ever having been to Joliet prior to June 19. On cross-examination the defendant stated that he introduced Betty Wilkes to his friend at the truck stop as she was sitting in the car. He also stated that Betty Wilkes had seen the women approach him at the truck stop.

Betty Wilkes testified for the defendant that she had known him for about two years. In response to whether she had seen defendant on June 2, 1978, between 10 and 12 in the evening, she stated she saw him between 12:15 and 12:30. She was waiting for a bus, but accepted a ride from the defendant. She rode with him to the 159th Street truck stop, where he picked up some papers. She remained in the car about an hour and dozed off once. The defendant was talking to a man when he came out of the truck stop. She did not remember seeing any women. She then left with the defendant and arrived home about 3 a.m. On cross-examination she did not remember defendant bringing the other man to meet her, as defendant had testified he did.

The prosecution called one rebuttal witness, Cindi Phillips, an investigator for the Will County State’s Attorney, who testified that two days previously she had interviewed Kalousheia Marshall outside the doors of the courtroom in the presence of the prosecuting attorney. Marshall stated in response to her question regarding his meeting with defendant about 10:30 or 11 on the night of June 3, 1978, that he came in an automobile. He drove up to 52nd and Halsted and got out of his car to talk with the defendant. He did not know whether the defendant had a car.

Defendant’s argument for reversal is mainly predicated on the following rebuttal statement by the prosecutor:

“[Defense counsel] used the term outlaw and felon. He said that’s the way you were supposed to look at Mr. Jackson from the State’s point of view.
That is the way I want you to look at him, as an outlaw and a felon. He told us Mr. Jackson came back from the Service. He has made much note of the fact Mr. Jackson was in the Service. I thank Mr. Jackson for his service to our country.
He said he came back to his job. Which job? His truck driver job or his armed robbery job?”

No objection was made to this comment, although a general objection was made to the prosecutor’s closing words. Reminding the jury of Miss Sutherland’s and Miss Casterberry’s testimony that the gunman said, “We hit the jackpot,” and that that defendant replied, “I told you Joliet was easy,” the assistant State’s Attorney stated:

“And I’m telling you, ladies and gentlemen, if you come back with a verdict of not guilty, then he is right.”

Defense counsel did not state the grounds for his objection or request a ruling on the objection. He was “just” objecting. The defendant did not raise either point as error in his motion for a new trial.

Despite the absence of any objection at the time it was made and its omission from the post-trial motion, the appellate court held the prosecution’s reference to defendant’s “armed robbery job” constituted plain error. While that statement, ambiguous as it appears to us, was neither persuasive nor desirable argument, we doubt that it, as the appellate court held, necessarily implied that defendant’s occupation was armed robbery. Nor do we agree, given the evidence as to defendant’s “easy target” statement, that the prosecutor’s closing reference was objectionable. The appellate court had noted that the reference to Joliet as an easy target might be considered harmless error under some circumstances, but the combined effect of the arguments was not harmless.

We need not, however, consider at length the merits of the appellate court’s holding that the argument was objectionable, for it is well settled that, when a defendant fails to make a timely objection at trial or in the post-trial motion, irregularities in the closing argument complained of on review are ordinarily deemed waived. (People v. Precup (1978), 73 Ill. 2d 7; People v. Killebrew (1973), 55 Ill. 2d 337; People v. Pearson (1972), 52 Ill. 2d 260; People v. Winters (1963), 29 Ill. 2d 74.) Timely and specific objection at trial affords the court an opportunity to prevent most errors by sustaining the objection or instructing the jury to disregard the answer or remark. (People v. Carlson (1980), 79 Ill. 2d 564; People v. Baptist (1979), 76 Ill. 2d 19.) And specific references in post-trial motions to the reasons why a trial judge’s actions or rulings were wrong enables him to reconsider their propriety in a less pressured environment. If an egregious error has actually occurred, the judge can order a new trial, thus avoiding the delay and expense of appellate review.

However, the waiver rule is not absolute. This court has held that, even in the absence of objection in the trial court, substantial error may be considered if the argument was so seriously prejudicial as to prevent the defendant from receiving a fair trial. Our Rule 615(a) provides for this exception:

“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (73 Ill. 2d R. 615(a).)

This rule does not require a reviewing court to consider all errors involving substantial rights whether or not they have been brought to the attention of the trial court. (People v. Precup (1978), 73 Ill. 2d 7, 16.) Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed. People v. Foster (1979), 76 Ill. 2d 365, 380.

This court observed in People v. Carlson (1980), 79 Ill. 2d 564, 576:

“A significant purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to the defendant. It therefore becomes relevant to examine the strength or weakness of the evidence against him; if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved. Thus, this court has held that where the evidence is closely balanced, a court of review may consider errors that have not been properly preserved for review.”

We do not regard the evidence in this case as “closely balanced,” and we note that it is not contended that the evidence is insufficient to establish defendant’s guilt beyond a reasonable doubt. The two complaining witnesses, admitting their unsavory occupation, did positively identify the defendant as the driver of the car in which they were kidnapped and robbed at gunpoint. Defendant’s testimony was slightly contradicted by his alibi witnesses. He admitted being at the truck stop on the night in question, and his car, which matched the witnesses’ description, had a license number only one digit different from that recorded by Miss Sutherland. Additionally, defendant volunteered the comment prior to the lineup concerning the “two whores” without having been told the victims of the armed robbery were prostitutes.

A prosecutor may properly comment unfavorably on the defendant and the violence of the crime, when supported by the evidence, and speak of the evil results of crime and the benefits of a fearless administration of the law. (People v. Benedik (1974), 56 Ill. 2d 306; People v. Wright (1963), 27 Ill. 2d 497, cert. denied (1963), 375 U.S. 925, 11 L. Ed. 2d 167, 84 S. Ct. 271.) Even if the comments complained of here were considered to be error, they are not so substantial as to come within our plain error rale. In our judgment the verdict in this case could not have been otherwise had the improper remarks not been made. People v. Dukett (1974), 56 Ill. 2d 432, cert. denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226; People v. Davis (1970), 46 Ill. 2d 554; People v. Berry (1960), 18 Ill. 2d 453, cert. denied (1960), 364 U.S. 846, 5 L. Ed. 2d 69, 81 S. Ct. 87.

The judgment of the appellate court is accordingly reversed and the cause remanded to that court for consideration of the defendants’ contention that the sentences were excessive.

Reversed and remanded, with directions.


author: MR. JUSTICE CLARK

text:
    (No. 53747.
    JOHN SIENS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (The Village of Biggsville, Appellee).

      Opinion filed March 18, 1981.

      Winstein, Kavensky, Wallace & Doughty, of Rock Island (Harrison H. Kavensky, of counsel), for appellant.
    Lucas, Brown & McDonald, of Galesburg (Harry C. Bulkeley, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The claimant, John Siens, was injured on October 27, 1976, when his shotgun accidentally discharged, injuring him in the right leg. He filed an application for adjustment of a claim with the Industrial Commission. After a hearing, the arbitrator entered an award of $108.30 per week for a period of 45 3/7 weeks for temporary total disability, and $86.10 per week for 150 weeks for 75% permanent loss of the use of claimant’s right leg. The claimant has been paid $2,178 on account of the injury. Additionally, the arbitrator awarded the claimant $13,386 in medical expenses. The Industrial Commission heard additional testimony from the claimant and another witness. It then reversed the arbitrator’s decision and held for naught the award. The circuit court of Henderson County confirmed the Commission’s decision. The claimant appealed pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)). We affirm.

The claimant was the sole employee of the village of Biggsville. He was employed as the village marshal as well as the maintenance man. On October 27, 1976, the claimant was in his driveway at home. He had removed his shotgun from the truck which he used when acting as the village marshal and placed it in his personal car. He sat in the driver’s seat of the car and, with his right leg, shoved the encased shotgun over on the seat. As he did so, the weapon discharged, shooting him in the right leg. According to the testimony given before the Commission by Earl Mitchell, the ambulance attendant, the claimant said on the way to the hospital that he was injured while preparing to go hunting. In addition, one of the treating doctor’s reports stated that the claimant was going duck hunting when he accidentally shot himself. Finally, the village president, Max Lant, testified before the arbitrator that the claimant told him, while still incapacitated in the hospital, that he had intended to go duck hunting when the accident occurred.

The claimant testified before the arbitrator that he was on his way to pick up a part to repair a broken village water main from the May Company in Galesburg when the accident occurred. He also said that he intended to pick up one of his hunting dogs from its kennel.

The claimant argues on appeal that since he was planning to go to Galesburg to pick up the replacement part when the accident occurred, the Commission’s decision is contrary to the manifest weight of the evidence. Also, the claimant argues that since, as a peace officer, he is on call 24 hours a day, his injury occurred in the course of his employment, and the Commission’s decision to the contrary is in error.

The pertinent part of the Commission’s order states “[t]hat the [claimant] failed to prove that he sustained accidental injuries arising out of and in the course of his employment on October 27, 1976.” We must assume that the Commission weighed the conflicting evidence and concluded that the claimant was going duck hunting and not to pick up the replacement part. That finding is clearly supported by the evidence. We will not disturb a factual evaluation of the Commission unless it is contrary to the manifest weight of the evidence. Goldblatt Bros., Inc. v. Industrial Com. (1979), 78 Ill. 2d 62, 67.

We also do not think that the fact that the claimant was the village marshal warrants a different result. While it is generally true that a peace officer, such as a village marshal (Ill. Rev. Stat. 1975, ch. 24, par. 3 — 9—4), is on call 24 hours a day (County of Peoria v. Industrial Com. (1964), 31 Ill. 2d 562, 566), and that, generally, he is permitted to carry a weapon at all times (Arrington v. City of Chicago (1970), 45 Ill. 2d 316, 318), it does not necessarily follow that every injury suffered by a peace officer is compensable. Any injury must still be incidental to one’s employment as a peace officer.

In Jones v. Industrial Com. (1980), 78 Ill. 2d 284, an employee closed his car door on his hand while alighting from his automobile. The resulting injury was held not to be compensable because it did not originate in some risk connected with, or incidental to, his employment. 78 Ill. 2d 284, 286.

A case relied upon by claimant is County of Peoria v. Industrial Com. (1964), 31 Ill. 2d 562. There the claimant’s decedent was a deputy sheriff employed as a juvenile officer by Peoria County. He was ticket chairman for and present to assist at the annual fund-raising dance held by the Peoria County Sheriff’s Association. Following the dance, the sheriff invited several persons, including the decedent, to join him for breakfast at his cottage. While they were eating breakfast, someone entered the cottage and said that a car was in a ditch in front of the house. The sheriff, the decedent, and several other people went out to help the distressed motorist. As he was helping to push the car, the decedent was struck and killed by a passing car.

This court held the decedent’s fatal accident to be compensable. It stated:

“In our opinion the death here arose out of and in the course of decedent’s employment as a deputy sheriff. He was responding to his superior’s suggestion to ‘go out and give a hand’; he was on call 24 hours a day; aiding distressed motorists and vehicles was one of the normal, incidental functions of all deputy sheriffs in that office regardless of decedent’s more specialized duty; and, lastly, although we believe the result unchanged were decedent acting alone, he was here acting in concert with others similarly employed under the direction of his superior.” (31 Ill. 2d 562, 566.)

The instant case is readily distinguishable. The claimant was not performing an act incidental to his employment when the shotgun discharged. Instead, he was preparing to pursue a diversion unrelated to his job with the village. The injury he suffered did not occur in the course of his employment. Accordingly, the judgment of the circuit court of Henderson County, which confirmed the Commission’s decision, is affirmed.

Judgment affirmed.


text:
    (No. 53730.
    WAYNE LEE THORNTON, Appellee, v. ILLINOIS FOUNDERS INSURANCE COMPANY, Appellant.

      Opinion filed March 18, 1981.

      Thomas, Mamer, Haughey & Miller, of Champaign (Howard W. Small, of counsel), for appellant.
    James Walker, Ltd., of Bloomington (John R. Bailen, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Wayne Lee Thornton (plaintiff) filed a garnishment action in the circuit court of McLean County against Illinois Founders Insurance Company (Illinois Founders), the insurer for Ben Paul and Ben’s Den, Inc. (defendants), against whom plaintiff had been awarded a $30,000 default judgment for personal injuries. The trial court held that the exclusion clause in the policy of insurance relating to incidents arising out of assault and battery applied, thereby relieving Illinois Founders of liability. A majority of the appellate court reversed and remanded, finding that the trial court erred in striking certain evidence and in allowing costs incurred on appeal. (85 Ill. App. 3d 121.) This court allowed Illinois Founders’ petition for leave to appeal.

This case has previously been before this court; therefore, we will only review the facts necessary for an understanding of the issues. (For a full recital of the facts, see Thornton v. Paul (1978), 74 Ill. 2d 132.) In the early morning hours of January 1, 1973, Ben Paul, the proprietor of a tavern (Ben’s Den, Inc.), struck plaintiff on the head with a wooden club after plaintiff and his friends, who were drinking in the tavern and were allegedly rowdy and loud, refused to leave the premises at Paul’s insistence. Paul was charged with the offense of aggravated battery. After a bench trial on stipulated facts, he was convicted of the lesser offense of battery. Plaintiff then filed a complaint against defendants, alleging wilful and wanton conduct, for personal injuries incurred in the January 1 incident.

Defendants notified their insurer, Illinois Founders, of the pending action and requested that it defend as provided in its policy of insurance. Illinois Founders refused, claiming the policy excluded incidents arising out of assault and battery. Although plaintiff later amended his complaint to add an allegation of negligence, Illinois Founders still refused to defend. Before the default judgment was entered, the parties entered into an agreement whereby plaintiff, in consideration of $100, agreed not to execute upon any judgment it might obtain against defendants and would seek satisfaction only from Illinois Founders. Subsequent to the default, plaintiff brought the instant garnishment proceeding. At the conclusion of the garnishment hearing, Illinois Founders was ordered to pay the $30,000 judgment. Thereafter, Illinois Founders filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) to vacate the default judgment. The petition was denied. Illinois Founders appealed from both orders, and the appellate court affirmed. (51 Ill. App. 3d 337.) On appeal, this court affirmed the appellate court as to the denial of the section 72 petition but reversed and remanded as to the garnishment proceeding. The court found that Illinois Founders’ refusal to defend did not prevent its assertion of the defense of noncoverage. This finding was based upon the conflict of interests that would have arisen if Illinois Founders had undertaken the defense of defendants. This court further ruled that Paul’s criminal conviction was admissible as prima facie evidence that a battery was committed, thereby preserving the “opportunity to rebut the factual basis of the conviction insofar as those facts are applicable to the civil proceeding.” 74 Ill. 2d 132, 151.

Upon retrial the only evidence introduced by plaintiff in his case in chief was the policy of insurance entered into by defendants and Illinois Founders. Under the policy “occurrence” was defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” In addition, the following exclusion was appended to the policy:

“EXCLUSION OF ASSAULT AND BATTERY It is agreed that the insurance does not apply to Bodily Injury or Property Damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such assault and battery.”

Ben Paul was called as a witness by Illinois Founders. He testified to the following version of the occurrence. The plaintiff and four other men entered Ben’s Den and began drinking. When they became rowdy, Paul repeatedly asked them to quiet down. He finally asked them to leave, but they refused. Plaintiff stated that he was going to “whip” Paul. Paul came around the bar with a stick, initially hoping to convince plaintiff to leave. When plaintiff refused, Paul struck him with the stick. Paul stated that he intended to strike plaintiff when the blow was struck. On cross-examination Paul stated that plaintiff and his friends were scuffling and throwing beer bottles and glasses.

Plaintiff was called as an adverse witness by Illinois Founders. He stated that, when he refused to leave the tavern at Paul’s request, Paul came from behind the bar and struck him in the head with a pool cue. Patrick Dawson, one of plaintiff’s companions on the night in question, was called as a witness by plaintiff on rebuttal. He testified to substantially the same version of the incident. The trial court made the following ruling:

“that the proceedings which resulted in Ben Paul’s conviction of battery were essentially equivalent to a judgment of conviction upon a negotiated plea of guilty to a lesser included offense.
***
The mandate of the Illinois Supreme Court directs this court to consider only whether the defense of non-coverage that the defendant Paul’s conduct constituted a battery, could be established. The cases seem to limit explanations concerning criminal convictions to the reasons why the defendant decided to plead guilty (or in this case, to stipulate to facts establishing guilt). The cases appear not to permit the defendant to offer an explanation in the nature of justification, self-defense or excuse. Since such explanations are impermissible, and the other defense of non-coverage that the Defendant Paul was engaged in acts ‘in connection with the prevention or suppression of such assault and battery’ is beyond the express terms of the mandate, the testimony of the plaintiff, the plaintiff’s friends and the Defendant Paul relative to the plaintiff and his friends fighting and damaging property in Ben’s Den and the defendant’s attempt to abate such activities is inadmissible and ordered stricken.
The record in this garnishment hearing, purged of inadmissible testimony relative to justification and the activities of the defendant to suppress assault and battery, does establish an intentional striking of the plaintiff by the Defendant Paul and the injury of the plaintiff. Thus, even though the Defendant Paul’s conduct constituted negligence, there is also sufficient evidence that it constituted the intentional tort of battery which is excluded from coverage under the policy.”

At the conclusion of the garnishment proceeding, the trial court conducted a hearing on costs. The trial court awarded Illinois Founders $3,169.53 as costs incurred in this court. Included were attorney fees and the appeal-bond premium. Plaintiff appealed both orders.

The appellate court held (1) that the provisions of the insurance policy were ambiguous; (2) that Illinois Founders was not precluded from raising noncoverage defenses in addition to the exclusion provision; (3) that the trial court erred in striking the testimony presented at the garnishment proceeding regarding the events of January 1, 1973; and (4) that the trial court was not authorized to assess costs incurred in the reviewing courts.

In interpreting a contract of insurance the general rule is that where the provisions of a policy are clear and unambiguous, it is the duty of the court to enforce them according to their plain meaning. (Kirk v. Financial Security Life Insurance Co. (1978), 75 Ill. 2d 367, 370-71.) The appellate court found that the definition of “occurrence” in the policy, by itself, would exclude any intentional or wilful act. The court then found that this definition rendered the “exclusion of assault and battery” provision redundant “since a battery necessarily involves an intentional act.” The court concluded that the policy was ambiguous since “the battery exclusion removes from coverage something which was never included.” We believe the appellate court erred in reaching this conclusion. Both clauses are clear and precise on their face. The “occurrence” definition sets out broadly the type of event covered by the policy of insurance, that is, “an accident *** neither expected nor intended from the standpoint of the insured.” This definition, read together with the exclusion provisions, creates no conflict. It is clear that, under the policy, acts constituting a battery are excluded, as are intentional acts of the insured. The fact that a battery is necessarily an intentional act does not create ambiguity. Merely because these provisions tend to overlap does not render them conflicting.

We next consider if the trial court appropriately excluded the evidence introduced in the garnishment proceeding. In our previous decision, this court remanded the cause to the trial court to allow the insurer to assert its defenses of noncoverage. We did not limit the remand to the defense based on the battery conviction as concluded by the trial court. In that decision this court also stated, “We are not concerned here with the effect of a guilty plea.” (74 Ill. 2d 132, 151.) Although in People v. Stepheny (1974), 56 Ill. 2d 237, and People v. Smith (1974), 59 Ill. 2d 236, the court found that certain methods of “stipulation” were the equivalent of a guilty plea, not all stipulations of fact transform a conviction into a guilty plea. In Stepheny, a bench trial was conducted after the defendant pleaded not guilty to the offense charged. After the trial commenced, the court and defendant’s attorney agreed that, regardless of the evidence, the defendant would be found guilty of manslaughter and sentenced to 10 to 20 years’ imprisonment. The trial was thus a sham. In Smith, the parties stipulated to the facts of the occurrence and also that such evidence was sufficient to convict. In both cases, it was held that the “stipulations” amounted to the equivalent of a guilty plea and that each defendant’s right to full admonishments under Supreme Court Rule 402 (73 Ill. 2d R. 402) had been violated.

These cases are distinguishable from the case before us. There is no evidence that Paul’s criminal trial was a sham, as in Stepheny, or that he stipulated that the evidence was sufficient to convict, as in Smith. The appellate court found that where a defendant stipulates to facts underlying an offense but leaves the determination of guilt or innocence based on those facts to the trier of facts, the stipulation is not the equivalent of a guilty plea. We agree.

Illinois Founders urges this court not to remand this case to the trial court for introduction of further testimony. It argues that the evidence introduced by plaintiff does not rebut the prima facie case of battery established by Paul’s conviction and that, therefore, the exclusion of the policy applies.

From a review of the record, we conclude that the total evidence introduced in the garnishment proceeding is not sufficient, as a matter of law, to overcome the prima facie evidence that a battery occurred.

For another reason, we find defendants were not covered under the policy of insurance. The testimony elicited from Paul established that when he struck the plaintiff he did so intentionally. Therefore, under the policy, the acts of Paul would not be covered since the definition of “occurrence” includes only acts “neither expected nor intended from the standpoint of the insured.”

Plaintiff claims that it was error for the trial court to award Illinois Founders costs on appeal. This issue was answered in People v. Nicholls (1978), 71 Ill. 2d 166, 177-78. “The matter of assessing costs is governed by statute.” There is no statutory authority enabling the trial court to tax costs which are incurred in the reviewing courts. (Ill. Rev. Stat. 1979, ch. 33, par. 1 et seq.) We also point out that the trial court’s award of attorney fees and the appeal-bond premium was erroneous. Attorney fees and the cost of an appeal-bond premium are not items of cost allowable to a successful litigant in the absence of statute or agreement of the parties. See People ex rel. Horwitz v. Canel (1966), 34 Ill. 2d 306, 308; Meyer v. Marshall (1976), 62 Ill. 2d 435, 439.

For the reasons stated, that portion of the appellate court judgment reversing the trial court’s award of costs on appeal is affirmed. That portion of the appellate court judgment remanding the cause for further proceedings because of the finding of ambiguity is reversed. The judgment of the circuit court is vacated, and the cause is remanded to that court for entry of a judgment in conformance with the views expressed herein.

Appellate court affirmed, in part and reversed in part; circuit court vacated; cause remanded, with directions.


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    (No. 53123.
    RUDOLPH VAN OVERMEIREN, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Diamond International Corporation, Appellee).

      Opinion filed March 18, 1981.

      Tuite, Morrissey, Gesmer & Finnegan, of Rockford (Jason N. Gesmer and Gerald F. Tuite, of counsel), for appellant.
    James C. Serkland, of Scheele, Serkland & Boyle, Ltd., of Chicago, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Pursuant to the provisions of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) an arbitrator for the Industrial Commission found claimant, Rudolph Van Overmeiren, had suffered work-related injuries while employed as a maintenance man by respondent, Diamond International Corporation. Claimant was awarded necessary medical, surgical and hospital expenses and compensation at $205 per week for 35 1/7 weeks of temporary total incapacity and an additional 100 weeks for 20% permanent partial disability. The employer sought review by the Commission, which reduced the award to 1 2/7 weeks’ compensation for temporary total incapacity and 20 weeks for permanent and complete loss of 5% of the use of both legs. The circuit court of Kane County confirmed the Commission’s award. Claimant’s appeal is before us pursuant to our Rule 302(a). 73 Ill. 2d R. 302(a).

Claimant had been employed by respondent for some 21 years as a maintenance man, doing various types of repair and maintenance work. He testified that on Friday, March 26, 1976, he slipped on some accumulated water and cutting oil on the floor of the machine shop in front of a knife-grinding machine which he had been using, and fell on his “fanny.” He testified that when he arose from the floor “my back was aching and my legs were rather numb.” He continued working. About an hour later as John Jackson, his foreman, walked through the shop, claimant said to him, “Hey, John, I just slipped and fell over here by the knife grinder.” There were other people around and some noise and claimant did not know whether the foreman, who looked his way but made no reply, actually heard him. Claimant finished his shift and worked the following day, Saturday, although his back and leg were still paining him. Claimant’s work sheet for Friday, on which he was required to list the work he did each day and the time spent on it, contained no reference to working at the knife grinder.

Claimant also testified that he spoke to a girl who handled insurance in respondent’s office — Beverly Tierney. While unsure of the date or content of the conversation, claimant ultimately stated he thought he told her of his injury on the date it occurred. Beverly Tierney testified, however, that claimant made no mention of an injury on March 26, but did, on Monday, March 29, tell her he had fallen a couple months earlier and wanted to see the doctor about his back. Claimant did not remember falling earlier, but when asked whether he might have told Beverly Tierney he did, said “There’s a possibility.” John Jackson testified claimant did not at any time tell him of a fall on the 2 6th — that the only injury he had any knowledge of was an accident with a saw in which claimant had cut his right leg.

It is clear that claimant did see Dr. Diesen, a doctor who cared for company employees, on March 29 regarding the pain in his back and right leg. The doctor sent him to Delnor Hospital for X rays and subsequently released him for work on April 5. Claimant returned to work, the pain persisted, and he saw Dr. Liesen again on April 26, at which time the doctor told him that he “had arthritis of the spine and deterioration of the back bones,” and that the fall had not caused it but had activated it. Although claimant testified that commencing in June or July he had “quite a bit of pain day in and day out,” and was receiving no medication or treatment, there is no indication of any complaint by him to the company prior to February 1977. During those intervening months claimant testified he performed his regular duties involving “pulling and yanking” electrical wiring and moving objects weighing up to 200 pounds.

In February 1977 claimant cut his right leg with a portable electric saw. Apparently a claim for compensation was filed and settled. The lawyers who represented claimant in that case referred claimant to Dr. J. S. Berry in May, presumably for his leg and back pain. Dr. Berry gave him a disability certificate to deliver to his employer, hospitalized claimant, and had various tests done. His diagnosis was “Possible SI radiculopathy and/or lumbar instability.” Claimant was placed in a body cast for several weeks with a laminectomy or fusion or both as future possibilities. A laminectomy and discectomy were performed in June because of a herniated nucleus pulposus at L5-S1, and claimant remained off work and under Dr. Berry’s care with periodic injections being given. In October a body cast was again used for several weeks and helped the pain while it was on. The doctor discharged claimant for return to work on January 3, 1978, with the limitation that he not lift more than 50 pounds. He applied to respondent for reemployment and was sent to Dr. Liesen, who approved his return to work with the weight limitation and an added restriction of limited bending. Claimant testified he was not called to return to work, that when he inquired he was told another person had taken over his job, and that “they were looking for something he could handle.” He drew unemployment compensation, sought work elsewhere, last saw Dr. Berry in February for an injection and now does housechores, ■ hangs clothes on the line, gets meals, etc. He has pain in his lower back and legs and it hurts to carry groceries or bend over. He rests an hour or two a day and walks two miles per day as recommended by the doctor. He wears a corset part of the time and whenever he is driving. He testified he has been unable to secure employment.

The medical evidence consisted of written reports from several doctors. Dr. Berry’s original diagnosis was noted earlier. A May 24, 1977, letter from Dr. K. Vaidya of the Department of Physical Medicine and Rehabilitation of the Freeport Clinic to Dr. Berry indicated his impression that his findings during an examination of claimant “may suggest old SI radiculopathy.” A report of the Department of Radiology at Freeport Memorial Hospital on the lumbar spine, chest and results of a lumbar myelogram found minor arthritic changes but no other abnormalities. A report from Dr. Gerald McDonald recited findings resulting from his examination of claimant and a diagnosis of “Acute injuries of the lower back and posterior pelvis with damage to the intervertebral disc at the L5-S1 segment; status, post-surgical laminectomy with residual bilateral sciatic nerve root involvement.” It was also stipulated that, if called as a witness, Dr. McDonald would testify in response to a hypothetical question encompassing claimant’s testimony that the alleged March 26 accident might or could be causally related to the current condition of ill-being, that it might or could have aggravated a previous condition of ill-being, and that the current condition is permanent. Dr. Liesen’s report was offered in evidence by respondent, but an objection to its admissibility was sustained and he was not called as a witness. A report by Dr. George Cooper was admitted, and it was stipulated that, if called as a witness, Dr. Cooper would testify, in response to alternative hypotheticals incorporating an alleged fall on March 26 and an alleged fall two months earlier, that in neither case was there a causal relationship between the fall and claimant’s condition of ill-being.

It is axiomatic, of course, that “it is primarily the responsibility of the Industrial Commission to determine questions of fact, including the nature and extent of the disability, to draw reasonable inferences from the evidence, and to determine the credibility of the witnesses. *** [I]t is not our function to disapprove of an award simply because it may not conform to our personal opinion as to the nature and extent of the injury.” (Bishop v. Industrial Com. (1980), 78 Ill. 2d 315, 317-18.) “Only when the decision of the Commission is against the manifest weight of the evidence will this court interfere.” Caterpillar Tractor Co. v. Industrial Com. (1980), 82 Ill. 2d 1, 6; Seiber v. Industrial Com. (1980), 82 Ill. 2d 87.

It is clear that the Commission agreed with the arbitrator that a fall had occurred and that notice of the accident had been given respondent. The difference lies in the fact that the Commission apparently did not accept Dr. McDonald’s opinion that a causal connection existed between the accident and the surgery performed some 15 months later. The claimant suggests the explanation for this is that the Commission disapproves of Dr. Berry, and that this bias and prejudice were apparent from the questions directed at counsel during oral argument before the Commission. That argument, however, is not reproduced in the record before us. A more likely explanation, in our judgment, is the absence of any complaint to respondent over a period of many months during which claimant maintains he was suffering considerable pain each day. It was not until he lacerated his right leg with a portable saw that claimant returned to Dr. Diesen, and only after con-suiting counsel regarding a compensation claim for that injury was he seen by Dr. Berry.

We have frequently indicated “that the burden is upon the party seeking an award to prove by a preponderance of credible evidence the elements of his claim, particularly the prerequisite that the injury complained of arose out of and in the course of his employment.” (Republic Steel Corp. v. Industrial Com. (1980), 82 Ill. 2d 76, 85; United Airlines, Inc. v. Industrial Com. (1980), 81 Ill. 2d 85, 96.) Given the conflicting medical opinions regarding causation and the credibility questions, we cannot say that the Commission’s modification of the arbitrator’s award is contrary to the manifest weight of the evidence. Moore Electric Co. v. Industrial Com. (1980), 83 Ill. 2d 43, 47.

The judgment of the circuit court of Kane County is accordingly affirmed.

Judgment affirmed.