author: JUSTICE MORAN

text:
    (Nos. 55060, 55061 cons.
    GLENN MILLIS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Clifford-Jacobs Forging Company, Appellee).

      Opinion filed March 16, 1982.

      Perz & McGuire, of Chicago (Frank M. Perz and James J. Marszalek, of counsel), for appellant.

      Phebus, Tummelson, Bryan & Knox, of Urbana (George G. Bryan, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, Glenn Millis, filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) on September 28, 1976, and a claim under the Worker’s Occupational Diseases Act (Occupational Diseases Act) (Ill. Rev. Stat. 1977, ch. 48, par. 172.36 et seq.) on February 14, 1978, both claims alleging a hearing loss incurred in his employment with defendant, Clifford-Jacobs Forging Company. With respect to the workmen’s compensation claim, the arbitrator found that on September 24, 1976, plaintiff sustained accidental injuries arising out of and in the course of his employment. He held that plaintiff suffered injuries causing “the permanent and complete loss of the hearing of the right ear to the extent of 73.05% thereof *** and *** of the left ear to the extent of 84.3% thereof” and awarded plaintiff $140.16 per week for 79 weeks. With respect to the occupational diseases claim, the arbitrator determined that plaintiff failed to prove his exposure to the hazards of an occupational disease as defined by the Occupational Diseases Act.

On review, the Industrial Commission concluded, with respect to the workmen’s compensation claim, that plaintiff did not sustain any accidental injuries at work on September 24, 1976, and set aside the arbitrator’s decision. With respect to the occupational diseases claim, the Commission found that plaintiff had been exposed to the hazards of an occupational disease but that he had failed to prove that he sustained any permanent disability as a result of that exposure after July 1, 1975, and denied relief. The claims were consolidated, and both decisions of the Industrial Commission were confirmed by the circuit court of Champaign County.

We note parenthetically that the original application under the Workmen’s Compensation Act alleged an accident date of September 24, 1976, although at the time of arbitration the application was amended to show an accident date of September 30, 1976. As indicated above, the decisions of the arbitrator and Industrial Commission refer to an accident date of September 24, 1976. In accordance with plaintiff’s request, with which defendant is in agreement, this court’s decision will refer to an alleged accident date of September 30, 1976.

This case presents two issues: (1) Was the Commission’s decision on the workmen’s compensation claim contrary to the manifest weight of the evidence? (2) On the occupational diseases claim, did the Commission err in its application of the law under the facts contained herein?

On September 30, 1976, at age 65, plaintiff retired from his employment with defendant, where he had worked for approximately 39 years. Most of that time was spent in the forge shop, which contained as many as 14 steam-drop forging hammers ranging in size from 1,500 to 25,000 pounds. A noise-and-exposure profile report disclosed that, in operation, the hammers emitted noise between approximately 94 and 115 decibels. Plaintiff testified that sometime during the early 1960’s he noticed he was having hearing difficulties and that by 1965 he began experiencing “head noises” which were described as, among other things, a humming in his head. Plaintiff stated that in 1969 and in the early 1970’s his hearing declined and his head noises increased, and that in 1975 his hearing deteriorated still further. He also testified that he occasionally wore a hearing aid in 1964 and 1965, that he had worn a hearing aid in one ear since 1969 and hearing aids in both ears since 1974. Plaintiff also testified that on September 30, 1976, nothing out of the ordinary happened to him at work, and that he did not sustain an accident on that date.

Plaintiff’s expert, Dr. Elmer Friedman, conducted a hearing examination on December 30, 1976. He testified that plaintiff suffered a severe to profound sensorineural hearing loss in both ears, probably caused by acoustic trauma. In response to a hypothetical question, Dr. Friedman opined that a causal connection existed between plaintiff’s employment and his hearing loss. The medical reports of defendant’s expert, Dr. William Youngerman, who examined plaintiff on January 3 and January 17, 1977, stated that plaintiff suffered a moderate, bilateral, neurosensory hearing loss apparently resulting principally from acoustic trauma.

Defendant’s expert, Dr. G. D. Castillo, conducted hearing examinations of plaintiff on June 6, 1974, and October 13, 1978. Dr. Castillo testified that audiometric testing revealed a sensorineural hearing loss of approximately 55 decibels at a 250-cycle frequency and a descending pattern of hearing loss with no response at the 8000-cycle frequency. He stated that the audiogram he performed in 1978 was identical to, within five decibels (which could be attributable to testing variables), and revealed “essentially unchanged hearing” from, the audio-gram he performed in 1974, and that both audiograms were nearly identical to another audiogram purportedly administered to plaintiff on March 31, 1972. Dr. Castillo also stated that, except for the recovery shown in the 8000-cycle range, the December 30, 1976, test by Dr. Friedman and the January 3, 1977, test by Dr. Younger-man demonstrated the same hearing loss as the 1972, 1974 and 1978 tests.

Plaintiff’s expert, Dr. Irwin Horwitz, administered an audiogram to plaintiff on November 19, 1979, which, he stated, revealed permanent, sensorineural noise-induced hearing loss. Dr. Horwitz testified that the hearing loss shown on the March 31, 1972, and June 6, 1974, audio-grams was basically the same as the hearing loss shown on the audiogram he administered on November 19, 1979, except that this latter audiogram demonstrated some hearing recovery at the 6000- and 8000-cycle levels. He also indicated that the tests showing a failure to respond at high frequencies could be a function of ineffective masking at high decibel levels. Finally, in response to a hypothetical question, Dr. Horwitz testified that he would have expected no fluctuations in plaintiff’s hearing from June 6, 1974, up to the time of his examination on November 19, 1979.

We turn first to the workmen’s compensation claim. Plaintiff concedes in his brief that he experienced no sudden loss of hearing due to trauma, but a gradual deterioration of hearing. He also states that the arbitrator made the correct finding as to disability but concedes that the arbitrator applied the wrong remedy by allowing an award under the Workmen’s Compensation Act rather than the Occupational Diseases Act. This court has repeatedly held that a recovery under the Workmen’s Compensation Act must be based upon an accident that is traceable to a definite time, place and cause. (E.g., Bunney v. Industrial Com. (1979), 75 Ill. 2d 413, 422; International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84, 89.) This court has also repeatedly held that it will not reverse a decision of the Industrial Commission unless the decision is contrary to the manifest weight of the evidence. E.g., Keystone Steel & Wire Co. v. Industrial Com. (1981), 85 Ill. 2d 178, 185; Seiber v. Industrial Com. (1980), 82 Ill. 2d 87, 97; Caterpillar Tractor Co. v. Industrial Com. (1980), 82 Ill. 2d 1, 6.

Plaintiff testified that he sustained no accident on September 30, 1976. Further, the record discloses no indication of any specific accident, occurring on any date, to which plaintiff’s hearing loss can be attributed. Accordingly, the Commission’s decision denying relief under the workmen’s compensation claim is not contrary to the manifest weight of the evidence and will not be disturbed.

With respect to the Occupational Diseases Act claim, plaintiff argues that the Commission erred by denying him compensation because he was exposed to the hazards of an occupational disease on September 30, 1976, a date on which a statutory remedy was provided for permanent partial loss of hearing. He asserts that the Commission improperly applied section 7(d) of the Occupational Diseases .Act, enacted September 15, 1980, retroactively to bar his recovery. Defendant asserts that plaintiffs hearing loss was suffered prior to July 1, 1975, when neither the Workmen’s Compensation Act nor the Occupational Diseases Act allowed compensation for partial hearing loss, and that no change occurred in plaintiff’s hearing after July 1, 1975. Defendant further maintains that in reaching its decision, the Commission did not apply the 1980 amendments to section 7 of the Occupational Diseases Act.

Prior to July 1, 1975, the Occupational Diseases Act provided recovery for total and permanent loss of hearing but excluded recovery for permanent partial loss of hearing. (Sections 8(e)(14) and (e)(16) of the Occupational Diseases Act (Ill. Rev. Stat. 1973, ch. 48, pars. 172.43(e)(14), (e)(16)).) As of July 1, 1975, the Occupational Diseases Act was amended and, by incorporation of the Workmen’s Compensation Act, provided compensation for permanent partial loss of hearing. (Section 7 of the Occupational Diseases Act (Ill. Rev. Stat. 1975, ch. 48, par. 172.42); section 8(e)(14) and (e)(16) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, pars. 138.8(e)(14), (e)(16)). See also Ill. Rev. Stat., 1976 Supp., ch. 48, par. 172.42.) Effective September 15, 1980, section 7 of the Occupational Diseases Act was amended by paragraphs (a) through (f). Paragraphs (a), (b) and (c) establish guidelines for determining compensation for hearing losses, including partial hearing loss. Paragraph (d) provides:

“If a hearing loss is established to have existed on July 1, 1975, by audiometric testing the employer shall not be liable for the previous loss so established nor shall he be liable for any loss for which compensation has been paid or awarded.” Ill. Rev. Stat., 1980 Supp., ch. 48, par. 172.42(d).

Since July 1, 1975, where it provided (by reference to the Workmen’s Compensation Act) compensation for hearing loss resulting from an occupational disease, section 7 of the Occupational Diseases Act stated:

“[F]or this purpose [compensation] the disablement[,] disfigurement or death of an employee by reason of an occupational disease, arising out of and in the course of his employment, shall be treated as the happening of an accidental injury.” (Ill. Rev. Stat. 1975, ch. 48, par. 172.42.)

Hence, just as the law in effect at the time of the injury governs a workmen’s compensation proceeding (Wilson-Raymond Constructors Co. v. Industrial Com. (1980), 79 Ill. 2d 45, 51; Health & Hospitals Governing Com. v. Industrial Com. (1978), 72 Ill. 2d 263, 271; Stanswsky v. Industrial Com. (1931), 344 Ill. 436, 438-40), the law in effect at the time of the disablement governs an occupational diseases proceeding.

Plaintiff, as he points out, was exposed to the hazards of an occupational disease on September 30, 1976. However, the record discloses that the disablement or impairment suffered occurred prior to July 1, 1975. Both Dr. Castillo and Dr. Horwitz testified that audiograms administered to plaintiff in 1972 and 1974 were generally comparable to audiograms given in 1978 and 1979. In addition, Dr. Horwitz, testifying for plaintiff, stated that he would have expected no fluctuation in plaintiff’s hearing from June 6, 1974 (the date of the last audiogram taken prior to July 1, 1975), to the date of the examinati on he performed on November 19, 1979.

This court has held that it is for the Commission to evaluate all the evidence, including the testimony and medical records produced, to judge the credibility of witnesses, to resolve conflicts in medical evidence and draw reasonable inferences and conclusions from the facts. The Commission’s findings will not be disturbed on review unless they are contrary to the manifest weight of the evidence. (E.g., Flores v. Industrial Com. (1981), 87 Ill. 2d 48, 54-55; Vestal v. Industrial Com. (1981), 84 Ill. 2d 469, 473. See Parris v. Industrial Com. (1977), 69 Ill. 2d 31, 37.) In light of the medical testimony presented regarding the hearing loss displayed on audiometric tests administered to plaintiff, the Commission’s finding that plaintiff did not sustain a permanent disability as a result of exposure after July 1, 1975, was clearly not contrary to the manifest weight of the evidence.

We find no merit in plaintiff’s argument that the Commission retroactively applied the September 15, 1980, amendment, paragraph 7(d), which excluded an employer’s liability for a hearing loss suffered prior to July 1, 1975. The Commission’s findings contain no indication that the decision was reached based upon that provision. Irrespective of any subsequent amendment, the law in effect at the time plaintiff suffered his disablement, which the evidence revealed to be prior to July 1, 1975, excluded compensation for permanent partial loss of hearing. Accordingly, the Commission properly denied recovery under the Occupational Diseases Act.

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

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE WARD

license: Public Domain

text:
    (No. 54568.
    WARREN S. PARK et al., Appellees, v. DENNIS P. SOHN et al., Appellants.

      Opinion filed March 16, 1982.

      H. Wayne Carmichael, of Groen, Groen & Carmichael, of Pekin, for appellants.

      Harold H. Kuhfuss, of .Kuhfuss & Kuhfuss, of Pekin, for appellees.
   JUSTICE WARD

delivered the opinion of the court:

The plaintiffs, Warren and Josephine Park, brought an action against the defendants, Dennis Sohn and his wife, for damages because of defects in the house sold to them by the defendants. Their complaint set out two counts: The first alleged that the plaintiffs were defrauded into making the purchase through the defendants’ misrepresentations of facts and failure to disclose defective conditions. The second alleged that the defendants had breached a warranty of habitability implied in the sale of the house. After a bench trial in the circuit court of Tazewell County, the court entered judgment in favor of the plaintiffs on both counts. The appellate court reversed the judgment as to count I. The court reversed as to count II and remanded the cause for a new trial as to damages only. (90 Ill. App. 3d 794.) We granted the defendants’ petition for leave to appeal under Rule 315 (73 Ill. 2d R. 315).

. On May 25, 1973, the defendants purchased the lot upon which the house was constructed. They built the house and moved in sometime in August 1974, although it appears from the testimony of Dennis Sohn that construction work on the house was still being performed in the summer of 1975. Prior to moving in, the defendants lived in another house that Sohn had constructed. He was not a full-time builder, but since building the plaintiffs’ house he has constructed six other houses. It appears that he was trained in construction work by his father, who assisted him in the building of the house sold to the plaintiffs. Mr. Sohn testified that the house was listed with a realtor for sale before he and his wife moved in, although he contradicted that statement in response to leading questions by his attorney. Mrs. Sohn testified that the house was listed with a realtor sometime prior to August 22,1974.

The defendants sold the house to the plaintiffs in October 1976. Since April or May 1976, Mr. Sohn had represented or advertised himself as a general contractor by word of mouth. There was no evidence at trial that the defendants or their realtors had made any representations to the plaintiffs about the existence of a sump pump in the backyard, or about water seepage into the crawl space below the house. Mrs. Sohn had told the plaintiffs that the defendants had had no problem with the septic system except that it had once become clogged when a child flushed a popsicle stick into it.

On November 13, 1976, an electrician working beneath the house informed the plaintiff, Warren Park, that there was water in the crawl space. Park investigated the situation, and he discovered a dry well with a sump pump in a hill about 20 feet from the house. There was conflicting testimony as to whether the cover of the pump was visible from the house. The realtor who had shown the plaintiffs the property testified that he had not seen it. The pump had been installed by the defendants in 1975 to prevent surface water from accumulating along the edge of a road located upon ground above the house. The pump was not working when Park discovered it. He testified, though, that the pump was connected and that power was flowing to it. He purchased a new pump for $80.31 and installed it. He testified that the new pump did not completely solve the water problem because puddles continued to form in the crawl space under the house, causing odors. The plaintiffs paid $627 to install two trenches with drain tile in the rear of the house for additional drainage. Also, they were required to use dehumidifiers.

In the summer of 1977, the plaintiffs learned that the sump pump is actually located upon the land of an adjoining landowner. The area in which the pump was located had been sodded, and shrubbery had been placed there by the defendants. This had given the plaintiffs the impression that the area was part of the lot they were purchasing. The plaintiffs admitted, however, that no one had told them that the lot extended to the area where the pump was located, and no contention was made that the description in the deed and contract was incorrect.

Moreover, their house actually was located in violation of a subdivision lot-line restriction. A sidewalk and a drain for their eaves encroached upon the adjoining landowner’s property. The plaintiffs bought a portion of the adjoining lot for $4,000 from the owner, although it appears that the plaintiffs purchased somewhat more land than was required to conform to the restriction and to acquire the sump pump area. In addition, the plaintiffs altered the drain of the eaves to direct it away from the adjoining property.

The plaintiffs also experienced difficulties with the septic system. In the spring of 1977 sewage appeared on their lawn. They had the septic tank repeatedly pumped, but a flow of sewage into the lawn and street, causing odors, continued. A contractor testified it would cost approximately $4,500 to eliminate the problem in accordance with recommendations made by the Tazewell County health department. This work would entail completely removing the present seepage-field system and installing a sand filter, which has an overflow-type system. A change of systems would be necessary because underground water that surfaced at different times of the year interfered with the seepage-field system.

At the time the house was built, some other homes in the area had seepage-field systems. Sohn testified that a sand-filter system could not have been installed by him because he did not have a drainage easement, which was needed for that kind of system. The contractor, who testified for the plaintiffs, agreed that an easement would have been necessary. Sohn also testified that when the house was being constructed a health inspector told him that the seepage system was being conditionally approved, but he warned that it might or might not prove to be inadequate. The inspector said that if there were to be problems with it they would soon manifest themselves. Sohn and his wife testified that they had experienced no problems with the septic system while living in the house, except when the sewer connecting the house and the septic tank had become clogged by a popsicle stick. They, therefore, had no knowledge of a defect.

On March 16, 1979, the trial court entered judgment for the plaintiffs for $4,000 on count I of their complaint, which alleged fraud by misrepresenting or concealing the claimed defects. The court entered judgment for the plaintiffs for $2,707.31 on count II, which alleged a breach by defendants of an implied warranty of habitability. As we have stated, the appellate court reversed the judgment on the first count and held that the amount of damages awarded on the second count was inadequate and remanded the cause for a new trial on the question of damages.

The reversal as to the fraud count was proper. There was no evidence that the defendants made any representation to the plaintiffs that they knew to be false, nor was there evidence that they knowingly concealed defects from the plaintiffs. We agree with the appellate court that the plaintiffs failed to show scienter, an essential element of actionable fraud. Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286 (fraudulent misrepresentation consists of a false statement of a material fact known or believed to be false by the maker); Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 332 (scienter is an element of an action for fraud); Semmens v. Semmens (1979), 77 Ill. App. 3d 936, 940 (concealment, to constitute fraud, must be proved to have been done with the intent to deceive under circumstances creating an opportunity and duty to speak).

We reject the plaintiffs’ argument that the defendants are hable for misrepresentation because shrubbery they had planted was mistakenly planted beyond the lot line. The plaintiffs contend that the placement of the shrubbery was tantamount to a pointing out to them of the boundary, upon which representation they relied. There is, however, no evidence that the defendants or their realtors ever indicated to the plaintiffs that the shrubbery demarcated the lot, or that the defendants had that intention. There is no indication that the plaintiffs ever requested the defendants to point out to them the lot line. In such circumstances, we do not think that the defendants could be considered as having made a false representation of the lot line to the plaintiffs. Cf. Malchow v. Tiarks (1970), 122 Ill. App. 2d 304 (seller’s agent’s statement to buyer that a particular stake marked the boundary of lot being purchased was an assumption of a duty to locate the boundary correctly).

The appellate court was correct in its holding that the trial court’s judgment for the plaintiffs on the second count should be affirmed, except on the question of damages. Here there was an implied warranty of habitability, which this court recognized in Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, and the evidence showed it was breached.

Prior to the decision of this court in Petersen, decisions of the appellate court were in conflict as to the existence and scope of the warranty. (See generally Roeser, The Implied Warranty of Habitability in the Sale of New Housing: The Trend in Illinois, 1978 S. Ill. U. L.J. 178, 186-91.) The specific language this court used in Petersen was: “[I] n the sale of a new house by a builder-vendor, there is an implied warranty of habitability which will support an action against the builder-vendor by the vendee for latent defects and which will avoid the unjust results of caveat emptor and the doctrine of merger.” (76 Ill. 2d 31, 39-40.) That warranty, implied in the contract of sale, was that the house, when conveyed, would be reasonably suited for its intended use. 76 Ill. 2d 31, 42.

The defendants make several contentions of error by the trial court in finding them liable for breach of the implied warranty. First, they argue that they could not be considered builder-vendors for purposes of the warranty. They say that the warranty is implied only in sales by those vendors who are mass producers of houses. We cannot accept so narrow a definition. See McDonald v. Mianecki (1979), 79 N.J. 275, 293, 398 A.2d 1283, 1292 (implied warranty applies regardless of whether a builder-vendor is a “mass producer”).

Courts have defined the builder-vendor as one who is engaged in the business of building, so that the sale is of a commercial nature, rather than a casual or personal one. See, e.g., Elderkin v. Gaster (1972), 447 Pa. 118, 123 n.10, 288 A .2d 771, 774 n.10 (a builder-vendor is “one who buys land and builds homes upon that land for purposes of sale to the general public”); Hartley v. Ballou (1974), 286 N.C. 51, 62, 209 S.E.2d 776, 783 (warranty arises in contracts for sale where the vendor is “in the business of building such dwellings ”); Klos v. Gockel (1976), 87 Wash. 2d 567, 570, 554 P.2d 1349, 1352 (the essence of the implied warranty requires that the builder-vendor be one “regularly engaged in building,” so that the sale is commercial in nature).

This “commercial” requirement, however, does not demand that the builder-vendor have a long and extensive experience in the construction industry. There would be an unsupportable and unjust discrimination in offering less protection to purchasers from a builder who has recently entered the construction business than to those purchasers who purchase from the same builder after his business has become established. It has been held that even a builder constructing his first house may be considered to be in the business of building if the primary reason for constructing the house was to sell it. (Mazurek v. Nielsen (1979), 42 Colo. App. 386, 388, 599 P.2d 269, 271.) Moreover, the sale of a house by its builder has been held to be a commercial sale even though the builder began construction for use by his own family, but in the course of construction decided to sell the house upon completion. Sloat v. Matheny (Colo. 1981), 625 P.2d 1031.

Here, there was sufficient evidence to regard Sohn as a builder-vendor. He had built one house before he constructed the one here, and he went on to build six more houses prior to the time of trial. It was not necessary that he have been a full-time professional builder. Sohn testified that he did not build the house for the purpose of selling it. Nevertheless, both he and Mrs. Sohn testified that the house was listed for sale by the end of August 1974, and Sohn testified also that work was still being done on the house to complete it in the summer of 1975.

We cannot accept the defendants’ second contention that the plaintiffs had to prove that they in fact relied upon Sohn’s skill as a builder in making their decision to purchase. The warranty of habitability was recognized because there is implicit reliance on a builder-vendor in the purchase of a house, and habitability is the justifiable expectation of any purchaser of what is proposed to be a residence. As the court put it in McDonald v. Mianecki (1979), 79 N.J. 275, 289, 398 A.2d 1283, 1290:

“Clearly every builder-vendor holds himself out, expressly or impliedly, as having the expertise necessary to construct a livable dwelling. It is equally as obvious that almost every buyer acts upon these representations and expects that the new house he is buying, whether already constructed or not yet built, will be suitable for use as a home. Otherwise, there would be no sale.”

The contention that the house here was not “new” within the meaning of the implied warranty in the sale of new houses, as the defendants had lived in the house for approximately two years before the sale, is not, considering the circumstances, persuasive. The holding in Petersen does not require that the house be sold at the time the last nail is put into place for the warranty to be effective. Rather, whether the house is new for purposes of the issue of a warranty is a question of fact to be determined on a case-to-case basis. Here, Sohn testified that the construction of the house had not yet been completed in the summer of 1975. The sale took place in October 1976. We cannot say there was error in regarding the house as new.

Moreover, that the defendants resided in the house before the sale did not deprive the plaintiffs of the protection of the warranty. (See Mazurek v. Nielsen (1979), 42 Colo. App. 386, 599 P.2d 269 (fact that builder-vendor lived in the completed house approximately two years prior to sale did not preclude assertion of warranty); De Roche v. Dame (1980), 75 App. Div. 2d 384, 430 N.Y.S.2d 390 (brief and temporary occupancy by builder-vendor did not deprive purchasers of the implied warranty) . Sohn testified that he listed the house for sale prior to moving in. He later contradicted the statement; the question of credibility was for the trier of fact. To hold that the warranty was not in effect simply because the defendants had occupied it for a time would provide builders with a simple artifice for avoiding the warranty.

Finally, the defendants contend that recovery should be denied because the plaintiffs did not plead and prove that they made a diligent inspection of the premises, and that the defects complained of were not observable from that inspection. The contention is based on a misunderstanding of language in Petersen. Petersen recognized an action for “latent defects” that frustrated or interfered with the buyer’s expectation of a house reasonably fit for habitation. A latent defect has been defined, the defendants say, as one that cannot be discovered in an ordinarily careful inspection. (McGourty v. Chiapetti (1962), 38 Ill. App. 2d 165, 174; Smith v. Morrow (1923), 230 Ill. App. 382, 390.) Obviously, however, this court in Petersen did not speak of latent defects in that sense. If it had, it would not have recognized a breach of the warranty, because the defects of which the plaintiff complained — a basement floor pitched in the wrong direction, deterioration and nailpopping in the dry wall on the interior, an ill-fitting bay window — were not latent defects according to that definition.

Instead, latent defects would include defects that were not apparent to the purchaser on viewing the property. That meaning of the term is more consistent with the premise on which the warranty is founded — that the purchaser typically is unskilled in the building trade and must rely on the training, knowledge and skill of the builder-vendor.

The last question to be considered is the remedy for a breach of the warranty. In Petersen, the defects were substantial and were discovered before the conveyance to the purchasers had been completed. This court allowed the purchasers to rescind their contract and to recover a money judgment for their earnest money and for the labor and materials they supplied. 76 Ill. 2d 31, 44.

Here the plaintiffs brought an action seeking damages for defects found after the conveyance of the property. The recovery of damages is an appropriate remedy. The measure of damages should be the cost of correcting the defective conditions. If, however, the defects could be corrected only at a cost unreasonably disproportionate to the benefit to the purchaser, or if correcting them would entail unreasonable destruction of the builder’s work, the amount by which the defects have reduced the value of the property should be the measure of damages. See Mason v. Griffith (1917), 281 Ill. 246, 256; Witty v. C. Casey Homes, Inc. (1981), 102 Ill. App. 3d 619, 624-26; Hanavan v. Dye (1972), 4 Ill. App. 3d 576, 580.

The appellate court correctly held that the cause should be remanded for a new trial on the issue of damages only. The trial court awarded $2,707.31 for breach of the implied warranty. From the record, it is clear that the court could not have awarded damages in that amount had it applied the measure of damages we have just described.

The appellate court, while it reversed the judgment on count II, said that the trial court had properly entered judgment for the plaintiffs. (90 Ill. App. 3d 794, 799.) The court stated that it reversed and remanded for a new trial as to damages only. (90 Ill. App. 3d 794, 799.) We consider it would have been preferable for the court to have affirmed the trial court’s judgment on the question of liability, to have vacated the portion of the judgment awarding damages, and to have remanded for a new trial on the question of damages only.

For the reasons given, we affirm the judgment of the appellate court as to count I and reverse its reversal as to count II. The judgment of the circuit court is reversed as to count I and, with respect to count II, is affirmed as to liability and vacated as to damages. The cause is remanded to the circuit court for a new trial, in accordance with this opinion, on the issue of damages only.

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


author: JUSTICE SIMON

text:
    (No. 54741.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RICKY HOLLINGSWORTH, Appellant.

      Opinion filed March 16, 1982.

    John H. Reid, Deputy Defender, and Jean Marie Reyes and Charles M. Leonhard, Assistant Defenders, of the Office of the State Appellate Defender, of Mount Vernon, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Herbert Lee Caplan, Melbourne A. Noel, Jr., and Ronald Lee Bell, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE SIMON

delivered the opinion of the court:

The circuit court of St. Clair County revoked Ricky Hollingsworth’s probation and sentenced him to six years in prison for burglary. At sentencing, the judge said Hollingsworth would get credit for time served in custody after his arrest for the probation violation; the mittimus provided similarly. The issue is whether he also is entitled to credit for the time he spent on probation.

Section 5—6—4(h) of the Unified Code of Corrections provides that “[t] ime served on probation *** shall be credited by the court against a sentence of imprisonment *** unless the court orders otherwise.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005—6—4(h).) The defendant argues that because the court did not expressly say anything about time served on probation, he must get credit for that time.

The appellate court, in affirming the defendant’s sentence as not excessive, said that the circuit judge’s statement that the defendant would receive credit for time served in custody indicated he meant to deny credit for anything else, including probation time. The appellate court held that this satisfied the statutory language “unless the court orders otherwise,” and therefore denied credit for probation time. (93 Ill. App. 3d 416.) It is this denial of credit for probation time that defendant challenges in this appeal.

In People v. Hills (1980), 78 Ill. 2d 500, 505, the circuit court stated that Hills was “to receive credit for all time spent in custody,” but nothing was said about credit for the time spent on probation. This court held that “since the sentencing order *** made no mention of credit, absent the ‘clarification’ ***, defendant would have received credit for the time spent on probation.” (78 Ill. 2d 500, 507.) The circuit court having no power to increase a sentence after it was imposed, even by way of “clarifying” its judgment, the cause was remanded “with directions to issue a corrected mittimus containing no provision for denial of credit for the time defendant was on probation.” 78 Ill. 2d 500, 509.

We see no reason to depart from the rule laid down in Hills. Appeals are not designed to decide what a judgment means, as opposed to whether it is erroneous, and yet that is what the State’s theory requires reviewing courts to do. Still less should a sentence depend on a prison warden’s personal interpretation of what the judge must have really meant. Because according to Hills the sentencing court cannot later clarify its own order so as to deny a defendant credit, the initial judgment must be unambiguous. If the court decides to deny credit for probation time, it should say so; the point should not be left to inference or interpretation. If the court does not expressly deny credit, the defendant is entitled to it under section 5—6—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-6-4(h)), which contemplates that credit will usually be allowed. The proper administration of justice requires a rule that will make it unnecessary for anyone to try to figure out what the sentencing judge had in mind where he could have properly either granted or denied credit. We reverse the appellate court because the circuit court’s sentence was ambiguous; the appellate court erroneously read into it a meaning that may or may not have been intended.

The portion of the appellate court judgment denying credit for time served on probation is reversed, and the balance of the appellate court judgment is affirmed. The circuit court’s judgment is interpreted as allowing the defendant credit against his sentence for time served both in custody and on probation for this offense, and as so interpreted is affirmed. The cause is remanded to the circuit court of St. Clair County with directions to issue a corrected mittimus plainly allowing credit for the time the defendant was on probation as well as the time he was in custody.

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


author: JUSTICE CLARK

text:
    (No. 54603.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BURNELL ROBINSON et al. (Burnell Robinson, Appellant).

      Opinion filed March 16, 1982.

      Robert Agostinelli, Deputy Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gerry R. Arnold, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
   JUSTICE CLARK

delivered the opinion of the court:

Burnell Robinson appeals the imposition of a sentence of 12 years for robbery, pursuant to the extended-term provisions of the Unified Code of Corrections, sections 5-8-2 and 5-5-3.2(b)(1) (Ill. Rev. Stat. 1979, ch. 38, pars. 1005—8—2, 1005—5—3.2(b)(1)). For the reasons stated below, we affirm.

Robinson and a codefendant, Mack Bell, were jointly indicted in the circuit court of Will County for one count each of robbery and one count each of aggravated battery. On May 16, 1979, a jury found both defendants guilty on all counts. On August 8, 1979, the circuit court sentenced Robinson to an extended term of 12 years’ imprisonment for robbery and a term of 5 years for aggravated battery, the sentences to run concurrently. Bell had previously been sentenced, in a separate proceeding, to concurrent terms of three years for robbery and two years for aggravated battery.

The appellate court, in a split decision, affirmed the imposition of the extended term on Robinson. (91 Ill. App. 3d 1128.) Bell did not appeal his sentence, nor is he involved in the appeal to this court. The appellate court also, on the authority of People v. Cook (1980), 81 Ill. 2d 176, vacated the circuit court’s order that the public defender be reimbursed from the defendants’ bail deposits.

At Robinson’s sentencing hearing, the State introduced certified copies of four previous convictions. These were as follows:

January 17, 1958 — Armed robbery, Will County, paroled April 17, 1959;
February 8, 1967 — Robbery, Kane County, sentenced to six years, paroled April 11, 1969;
April 20, 1967 — Robbery, United States District Court, Northern District of Illinois, sentenced to 25 years, paroled December 1974;
June 12, 1967 — Robbery, Will County, sentenced to two to eight years, paroled April 9, 1969.

The 1958 conviction was introduced solely for the purpose of aggravation and not for the purpose of triggering the application of the extended-term provision.

The circuit court found that section 5 — 5—3.2(b)(1) was applicable to Robinson. That section provides:

“(b) The following factors may be considered by the court as reasons to impose an extended term sentence under Section 5 — 8—2 upon any offender who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts ***.” Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(b)(1).

Section 5 — 5—3.2 was added to the Unified Code of Corrections by Public Act 80 — 1099, effective February 1, 1978. As the appellate court recognized, the question of the operation of the 10-year limitations period on the use of prior convictions as the basis for imposing an extended term is one of first impression.

Prior to the enactment of section 5—5—3.2, an extended term could be imposed only on offenders convicted of a felony in which either serious bodily harm was inflicted or threatened, or a firearm was used. (Ill. Rev. Stat. 1973, ch. 38, par. 1005—8—2.) The offender’s prior criminal record could be considered in aggravation of the sentence to be imposed (Ill. Ann. Stat., ch. 38, par. 1005—8—1, Council Commentary, at 481-82 (Smith-Hurd 1973)), but was not a statutory basis for imposing an extended term.

The 1978 amendment appears to have both broadened and narrowed the applicability of the extended term. As a result of the amendment, the extended term is now applicable to a larger number of felonies. Amended section 5—8—2 now specifies the maximum and minimum extended sentence for each class of felony, while the criteria for imposing the extended term were transferred to new section 5 — 5—3.2(b).

Section 5—5—3.2(b)(2) provides that an extended term may be imposed when the felony for which the offender is sentenced “was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” This replaces the previous provision which applied to felonies committed with a firearm or accompanied by serious injury. In addition, under section 5—5—3.2(b)(1) the extended term may now be imposed on repeat offenders on the basis of a prior felony conviction. However, the statute does limit the use of prior convictions in two ways: only a prior conviction for a felony of the same or greater class as the current offense triggers the application of the extended term; and the only felony convictions that may be considered are those that occurred within 10 years, “excluding time spent in custody,” of the conviction for which the offender is being sentenced.

With this background, we turn to the case at hand. The appellate court framed the issues as (1) whether a prior Federal conviction, entered by a Federal court sitting in Illinois, may be the basis for imposing an extended-term sentence; and (2) whether time spent in Federal custody is to be excluded when calculating the 10-year limitations period.

The appellate court thought that the phrase “excluding time spent in custody” was modified by “after having been previously convicted in Illinois of the same or greater class felony,” and hence that “time spent in custody” should be interpreted to mean time spent in custody as the result of the prior conviction. Therefore, it reasoned, the time Burnell Robinson spent in custody for his Federal offense (some five years and three months) could not properly be excluded from the computation of the 10-year limitations period unless the 1967 Federal conviction was a conviction “in Illinois” upon which the imposition of an extended term could properly be based. (Excluding the approximately five years Robinson spent in Federal custody between 1967 and 1979, his current (1979) conviction occurred within seven years of the 1967 Federal conviction. In other words, of this 12-year period only seven years were not spent in custody and only those seven years would be counted in calculating whether the 10-year limitations period had run.) The appellate court concluded, however, that the phrase “previously convicted in Illinois” applied to Robinson’s Federal conviction for a Federal offense, since it had been entered by a court sitting within the geographic boundaries of Illinois, the Federal District Court for the Northern District of Illinois.

Robinson contends that the appellate court improperly held that his Federal felony conviction could serve as the basis for imposing an extended sentence. He offers two arguments in support of the view that the General Assembly intended the extended-term provision, to apply only when the prior conviction was a conviction entered in an Illinois court, for a violation of Illinois law. First, he argues that the absence of an explicit reference to Federal convictions in section 5—5—3.2(b)(1) means that the legislature did not intend the provision to apply to them. He points out that other sections of the Criminal Code of 1961 and the Unified Code of Corrections do explicitly include Federal convictions, notably the habitual criminal statute (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 33B—1(a)) and the section specifying the aggravating factors that may trigger imposition of the death penalty (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)(3)). Moreover, Robinson argues, since section 5—5—3.2(b)(1) specifically refers to prior convictions for “the same or greater class felony,” it must mean felonies classified by the Illinois legislature. . Federal felonies, Robinson points out, are not divided into classes, and the statute does not provide a means of determining which Federal offenses are “of the same or greater class” as the offense for which the defendant is being sentenced. Robinson concludes that the statute is at least ambiguous as to whether a prior Federal conviction can properly serve as the basis for an extended term, and that since it is a penal statute it should be read narrowly to exclude them.

We agree with Robinson that the extended-term provision, since it is a penal statute, should be strictly construed. (People v. Perkins (1946), 395 Ill. 553, 559.) However, while conceding that section 5—5—3.2(b)(1) may be ambiguous with respect to its applicability in the case of a prior Federal conviction, we need not consider Robinson’s contentions further, since we decide the case on a different basis. In our view, the unambiguous language of the statute requires us to hold that Robinson’s 1967 Illinois convictions for robbery may be considered for the purpose of imposing an extended term, since the time Robinson spent in Federal custody must be excluded from the 10-year period, and the 1967 convictions thus occurred “within 10 years, excluding time spent in custody,” of his current conviction. This was the reasoning upon which the circuit court found the extended-term provision to be applicable, and we conclude that it was correct.

It is a primary rule of statutory construction that the intention of the legislature should be ascertained and given effect. In so doing, courts look first to the terms of the statute. (People v. Haron (1981), 85 Ill. 2d 261, 266; Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.) The statutory language itself is the best indication of the intent of the drafters (Coryn v. City of Moline (1978), 71 Ill. 2d 194, 200), and where that intent can be ascertained from the language of the statute, it will be given effect without resorting to other aids for construction. People v. Haron (1981), 85 Ill. 2d 261, 266-67; People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 369.

Section 5 — 5—3.2(b)(1) states that an extended term may be imposed “[w] hen a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody ***.” The clear implication is that “time spent in custody” is not to be counted in determining whether 10 years have elapsed since the offender’s prior conviction. Although the statute does say that the defendant must have been previously convicted “in Illinois,” it does not say “excluding time spent in custody as the result of an Illinois conviction,” and we see no reason to qualify it in this way. We conclude that “time spent in custody” means time spent in any custody as the result of a conviction of a Federal crime or violation of another State’s criminal statute.

This conclusion is reinforced by a consideration of the purpose of the extended-term provision. The aim of recidivist statutes is to impose harsher sentences on offenders whose repeated convictions have shown their resistance to correction. (ALI Model Penal Code sec. 7.03, comments 1 and 2, at 38-41 (Tent. Draft No. 2, 1954).) Realistically, one can assess an offender’s tendency to recidivism only when, having served his sentence, he has returned to society; his behavior while in custody can hardly be viewed as a reliable indicator of the likelihood of his committing another offense when released. Thus, though the General Assembly chose to create a “statute of limitations” for the use of prior convictions to extend the sentence of a repeat offender, the limitation is itself limited, so that the incorrigible recidivist will remain subject to the extended term.

The appellate court held that, for the purpose of determining the 10-year period, the date of a conviction is the date of entry of the sentencing order. Neither party to the appeal disagrees with this holding, and we find it consistent both with the statute and with this court’s decisions concerning the date of conviction for purposes of appeal. People v. Allen (1978), 71 Ill. 2d 378.

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

Judgment affirmed.


author: CHIEF JUSTICE RYAN

text:
    (No. 55233.
    ROOSEVELT PRIDGEON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Hammond Organ Company, Appellee).

      Opinion filed March 16, 1982.

      Jordan Teplitz, Ltd., and Beermann, Swerdlove, Woloshin, Barezky & Berkson, all of Chicago (Miles N. Beermann and Susan L. Brody, of counsel), for appellant.
    Kane, Doy & Harrington, of Chicago (Arthur O. Kane, of counsel), for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

In this workmen’s compensation case claimant, Roosevelt Pridgeon, suffered an injury to his left eye while employed by Hammond Organ Company. The injury caused the formation of a cataract, which was subsequently surgically removed. The arbitrator found that the claimant did not sustain any permanent disability to his left eye. On review, the Industrial Commission found that the claimant was entitled to receive compensation for the permanent and complete loss of sight in his left eye to the extent of 75%. Claimant sought review in the circuit court of Cook County, which confirmed the Commission’s decision. Claimant has now appealed to this court. (73 Ill. 2d R. 302(a).) The sufficiency of the award is the sole issue before us. It is claimant’s contention that he is entitled to an award for the total and permanent loss of use of his left eye.

Claimarit’s contention is based on the fact that in the removal of the cataract the lens of the eye was removed, which constituted either the “loss” of the eye, or the permanent and complete “loss of use of the eye” as a matter of law. In the alternative, claimant contends that the decision of the Industrial Commission was contrary to the manifest weight of the evidence.

This court has noted previously that our workmen’s compensation act contains no standards for determining the percentage of loss of use of an eye, and does not specify whether corrected or uncorrected vision shall be used in determining the extent of eye injuries compensable under the Act. In this State it has been uniformly held, that the loss of use of an eye is a question of fact and is not one to be determined by mechanical measurement as to corrected or uncorrected vision. Oscar Mayer & Co. v. Industrial Com. (1980), 79 Ill. 2d 254, 257; Motor Wheel Corp. v. Industrial Com. (1979), 75 Ill. 2d 230, 237; Walker v. Industrial Com. (1978), 72 Ill. 2d 408, 412-13; Lambert v. Industrial Com. (1952), 411 Ill. 593, 599, 606-08.

The claimant places heavy emphasis on the fact that not only did a cataract develop as a result of his injury but also that in correcting this condition the lens was removed from his left eye. There is nothing unusual about the removal of the lens in correcting such conditions. In fact, a cataract is an opacity of the lens of the eye and the customary treatment is to remove the lens and to accomplish the focusing function of the lens by the use of a spectacle lens, a contact lens, or an implanted lens. Medical Atlas for Attorneys (1 Surgical Techniques 175 (1968)); 3 R. Gray, Attorneys’ Textbook of Medicine 681 (3d ed. 1981).

The claimant correctly points out that in Walker v. Industrial Com. (1978), 72 Ill. 2d 408, which was a cataract case, the lens of the eye — that is the cataract — had not been removed. In determining the extent of the loss of use to be compensated for under the Act, we find no significance in the fact that the cataract had been removed, except that after the removal of the cataract the extent of the loss of use may be more precisely determined. Under the Act, the extent of that loss of use is still a question of fact to be determined without the application of arbitrary or mechanical standards of measurement as to corrected or uncorrected vision. The fact that the corrected vision which results following the removal of the cataract causes a deficiency which must be remedied by the use of corrective lenses is no more significant than is the correction of any other deficiency of the eye by the use of spectacles or contact lenses.

Also we cannot agree with claimant’s contention that the removal of the lens from the eye is equivalent to the “loss” of the eye. The lens is only one of many component parts of that organ. Without it the eye is still functional, although impaired. The degree of impairment in most instances can be reduced by the use of an artificial lens. In Hamilton Engineering Co. v. Industrial Com. (1947), 399 Ill. 30, this court held that the removal of the lens from an eye as a result of a cataract extraction was not the equivalent of the “loss” of an eye or of the total and permanent “loss of use” of an eye. In that case the employee had had the lenses removed from both eyes in cataract surgery prior to his employment by the employer. As a result of that surgery he had totally lost the sight of one eye, but by the use of an artificial lens the other was functional and he was able to perform the duties of his employment. He then suffered a work-related injury to the eye in which he had vision. This injury resulted in the loss of sight in that eye. The employer contended that under the Act he was entitled to a deduction due to the former loss of vision in the eye and that since the employee was industrially blind as a result of the former cataract surgery, there was no loss for which it was responsible. This court held that the employer was not liable for the loss of the eye in which the employee had no vision after the cataract surgery but that the employee was entitled to an award for the permanent and complete loss of use of the other eye. This holding is contrary to the position urged by the claimant in our case. If the removal of the lens from the eye constitutes the “loss” or the total and permanent “loss of use” of the eye as a matter of law, the employer’s contention in Hamilton Engineering Co. should have been sustained.

The facts of the case now before us present no reason to depart from the previous holdings of this court that the extent of the loss of use of the eye is a question of fact and that the finding of the Industrial Commission on that question will not be disturbed on review unless it is contrary to the manifest weight of the evidence.

The claimant here also contends that the finding of the Industrial Commission is contrary to the manifest weight of the evidence. The claimant’s cataract was removed in March 1976. In May of that year he was examined by a doctor who found that, with a corrective lens, his left eye could read 20/80. In January 1978 he was examined by another doctor who testified that the corrected vision in the claimant’s left eye was then 20/40. The claimant testified that although the contact lens he has for his left eye helps him, he does not wear it because it is uncomfortable. There is also testimony in the record that the claimant’s uncorrected vision in his left eye is essentially finger counting at six inches.

Although this evidence is undisputed, its evaluation and translation into a degree of loss of use are areas in which we are not prepared to substitute our opinion for that of the Industrial Commission. On these facts we cannot say that the determination of the Commission was against the manifest weight of the evidence. We therefore affirm the circuit court of Cook County.

Judgment affirmed.


text:
    (No. 54811.
    CHARLES SPECK et al., Appellants, v. ZONING BOARD OF APPEALS OF THE CITY OF CHICAGO et al., Appellees.

      Opinion filed March 16, 1982.

      Lord, Bissell & Brook, of Chicago (Robert A. Knuti and Daniel I. Schlessinger, of counsel), for appellants.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Philip L. Bronstein, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE MORAN

delivered the opinion of the court:

Amalgamated Trust and Savings Bank, as trustee, Daniel L. Houlihan, and Edward Ochylski, Jr. (applicants), applied for a special use permit under the Chicago zoning ordinance. The permit, if issued, would allow applicants to locate and erect an addition to an existing building to be used primarily as a meat-packing plant and slaughterhouse. The application was not approved by the zoning administrator, and a review was sought by the applicants before the zoning board of appeals (Board). Certain individuals (objectors) appeared in these proceedings and objected to the proposed use. Upon conclusion of the proceedings, the Board determined that the requested variation would not adversely affect the public health, safety and welfare, or substantially injure the value of other property in the neighborhood. It therefore approved the issuance of a special use permit, and the objectors filed suit in the circuit court of Cook County for administrative review. The court reversed the Board’s decision and ordered that the special use variation be denied.

The Board then filed a notice of appeal to the appellate court. (The applicants, who also submitted appellate briefs, were dismissed from the case by the appellate court for failure to file a notice of appeal. By not seeking further review from the order of dismissal, it became binding and, as a consequence, the applicants are not parties to this appeal.) The appellate court, after determining that the Board had standing to challenge a reversal of its decision, concluded that the proofs failed to establish that the slaughterhouse operation would conform to the applicable regulations. It further held that the Board failed to set forth the factual findings required for the approval of a special use variation. Finding the trial court’s order of reversal proper, it nevertheless vacated the order and remanded the cause to the Board for further proceedings. (93 Ill. App. 3d 460.) We granted the objectors leave to appeal.

Two questions are raised on appeal: (1) Does the Board have standing to appeal a reversal of its own decision? (2) Did the appellate court err in remanding the cause for further proceedings? In view of our disposition of this case, it is necessary to address only the first issue.

The powers and responsibilities of the Board are set forth in the Chicago zoning ordinance (ordinance) (Chicago Municipal Code 1977, ch. 194A). Of particular relevance is section 11.3 — 2 of the ordinance, which provides:

“11.3 — 2 Jurisdiction. The Board of Appeals is hereby vested with the following jurisdiction and authority:
(1) To hear and decide appeals from any order, requirement, decision, or determination made by the Zoning Administrator under this comprehensive amendment;
(2) To hear and pass upon applications for variations and variations in the nature of special uses from the terms provided in this comprehensive amendment in the manner and subject to the standards set out herein; and
(3) To hear and decide all matters referred to it or upon which it is required to pass under this comprehensive amendment.”

This section clearly indicates, and the Board concedes, that it is intended to function in an adjudicatory or quasi-judicial capacity. Primarily, the Board is empowered to conduct hearings, render decisions regarding applications for variations, and decide appeals from orders of the zoning administrator. It is noteworthy that nowhere in the ordinance is the Board authorized, expressly or implicitly, to assume the role of advocate for the purpose of prosecuting an appeal. “An administrative agency *** has no greater powers than those conferred upon it by the legislative enactment creating it.” Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503, 506.

Contrary to the Board’s contention, the fact that it must be joined as a nominal party defendant in administrative review actions (Ill. Rev. Stat. 1977, ch. 110, par. 271) does not imply that it thereby has standing to prosecute appeals. In 222 East Chestnut Street Corp. v. Board of Appeals (1956), 10 Ill. 2d 130, 135, cert. denied (1957), 353 U.S. 984, 1 L. Ed. 2d 1143, 77 S. Ct. 1284, this court stated, quoting from Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 595, “that the right to review a final administrative decision is limited to those parties of record in the proceeding before the administrative agency ‘whose rights, privileges, or duties are affected by the decision ***.’ ” (Accord, Lake County Contractors Association v. Pollution Control Board (1973), 54 Ill. 2d 16, 21.) Clearly, the Board was not a party before an administrative agency. Nor does it contend that it was personally aggrieved by the reversal of its decision. Rather, the Board asserts that its responsibility to protect the public interest authorizes it to prosecute appeals.

There is no question that the Board is entrusted with the duty of protecting the public health, safety and welfare. However, the Board’s obligation to the public is fully discharged when it conducts a hearing and, with due consideration to the public interest, determines the propriety of granting or denying a variation. (Inhabitants of the Town of Boothbay Harbor v. Russell (Me. 1980), 410 A.2d 554, 560.) Its responsibility to protect the public interest does not authorize the Board to act as a representative of the public for the purpose of vindicating its own decision on appeal. It is apparent that, in assuming the role of advocate, the Board’s required duty of impartiality is compromised.

Accordingly, we agree with the majority of jurisdictions that hold that a board like the one here lacks standing to prosecute an appeal from a reversal of its own decision. E.g., Inhabitants of the Town of Boothbay Harbor v. Russell (Me. 1980), 410 A.2d 554; Howard County v. Mangione (1980), 47 Md. App. 350, 423 A.2d 263; Hassell v. Zoning Board of Review (1971), 108 R.I. 349, 275 A.2d 646; A. Di Cilio & Sons, Inc. v. Chester Zoning Board of Appeals (1952), 158 Ohio St. 302, 109 N.E.2d 8.

For the above-stated reasons, the judgment of the appellate court vacating the judgment of the circuit court of Cook County and remanding this cause to the Board is reversed, and the order of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 54820.
    HART CARTER COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Robert Boolman, Appellee).

      Opinion filed March 29, 1982.

      Douglas F. Stevenson and James J. Stamos, of Rooks, Pitts, Fullagar & Poust, of Chicago, for appellant.
    Gary L. Shultz, of Shultz & Raymer, of Bloomington, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

This is a direct appeal of a workmen’s compensation case from the circuit court of McLean County pursuant to Supreme Court Rule 302(a) (73 Ill. 2d R. 302(a)). The arbitrator awarded Robert Boolman, who was employed by Hart Carter Company, 15 weeks’ temporary total disability pursuant to section 19(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b)), and the Industrial Commission affirmed. The circuit court of McLean County reversed and remanded with instructions that the Industrial Commission make a special finding as requested by the employer, Hart Carter Company. (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(e).) The Industrial Commission then issued a decision making the finding of fact and again affirming the decision of the arbitrator. The circuit court confirmed.

Two issues are raised on appeal: whether the award of the Industrial Commission is against the manifest weight of the evidence, and whether the special finding of the Industrial Commission met the requirements of section 19(e) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(e)).

Prior to January 19, 1976, the date of the alleged injury, Robert Boolman had been employed by Hart Carter Company in Gridley, Illinois, for approximately one year. At the time of the accident, he was working as a spin riveter, putting hardware on metal frames of farm equipment. He testified that on the day of the accident he reached up to get four frames off a shelf and in bringing them down he felt something give in his back. That day he had begun work about 6:30 a.m.; the incident occurred about 8:30 or 9 a.m. He worked until approximately 11:30, at which time he told his foreman, Bob Lovings, that he had injured himself and was in pain and needed to go home.

Boolman’s testimony is contradicted by that of Bob Lovings, who testified that Boolman told him only that his legs hurt him and that he wanted to go home. According to Lovings, Boolman did not mention his back or that an accident had occurred at work and did not ask to see the company nurse.

An absence report, but not an injury report, was later filled out. No one witnessed the accident, and Boolman apparently talked to no one else at that time.

On January 21, 1976, two days later, Boolman signed a typed statement which had been prepared by the plant superintendent, Lyle Gilmore, which stated that to the best of Boolman’s knowledge he did not injure himself at work and that he wished to be covered by group insurance. Also on that date he saw his physician, Dr. Gordon Shultz, an orthopedic surgeon in the Bloomington-Normal area. In connection with that visit and with another visit on January 23, 1976, Dr. Shultz completed an attending physician’s statement for a group insurance form. On that form, Dr. Shultz indicated his diagnosis as “low grade inflammatory disease, lumbar spine,” and answered “no” to a question as to whether the condition was due to an injury or sickness arising out of employment and “yes, April 1975,” to a question as to whether the patient had ever had the same or a similar condition. Boolman was hospitalized for his back problems from January 26, 1976, to January 31, 1976.

In this appeal the employer seeks to characterize the compensation claim as an “afterthought” on the part of the employee, corroborated only by “doctored” records. The employer argues that Dr. Shultz’s testimony was discredited both by the fact that he had referred the case to his son, an attorney, and by the allegedly “doctored” records. The employer further argues that after disregarding Dr. Shultz’s discredited testimony, the record contains only the employee’s uncorroborated testimony, which was itself contradicted by his written statement that he had not been injured at work. Finally, the employer argues that the employee’s uncorroborated statement cannot support an award when it is contradicted by other evidence in the record.

Based on his evaluation of the evidence presented at the hearing, the arbitrator found that on January 19, 1976, Robert Boolman had sustained accidental injuries arising out of and in the course of his employment. The evidence is indeed contradictory. At the hearing, Boolman testified that he had notified his foreman that he was injured at work. His foreman testified that Boolman had told him only that his legs were hurting and that he wanted to go home. Boolman sought to explain his signed statement that his injury did not occur at work by testifying that he misunderstood the import of what he was signing and that he did not understand the difference between group insurance and workmen’s compensation. In return, the employer suggests that since Boolman had already had both a workmen’s compensation award and a group insurance claim during his tenure at Hart Carter Company, he was bound to know the difference between the two. It is uncontradicted, however, that, when the group insurance payment did arrive, Boolman refused to accept it, saying that he had been injured at work.

Dr. Shultz testified at the hearing that he had diagnosed Boolman’s condition as “an infected disc space between the fourth and fifth lumbar vertebrae.” When asked whether lifting metal frames could have a causal relationship with the discomfort Boolman experienced, Shultz replied that Boolman’s infection was in a space between two vertebrae where a disc had been removed and that trauma can aggravate such a condition.

As indicated earlier, the employer seeks to discredit Dr. Shultz’s testimony both by the suggestion that Shultz referred Boolman’s compensation case to his son and by the suggestion that Shultz’s records had been altered, presumably to support Boolman’s claim. Specifically, the employer argues that the typewritten dates with respect to the date “symptoms first appeared or accident happened” and the date when “patient was continuously totally disabled” on the group insurance form had been interlineated to read the 19th of January, the date of the claimed accident. Secondly, the employer also attacks the validity of Shultz’s typewritten office records on the ground that they contain a handwritten notation “lifting frames off shelf” and the date, January 19, 1976. The doctor’s office notes are dated January 21, 1976, the date of Boolman’s first injury-related office visit, and contain the notation: “About 48 hours ago he had a recurrence of back pain and it is very excruciating. *** I wanted him to enter the hospital but he wants to go back to work. I just don’t see how he can.” The insurance form containing the interlineated dates was checked “no ” in answer to the question concerning whether the injury arose out of employment.

When Dr. Shultz was questioned about the alterations, he responded that he did not personally make them nor were they made at his direction, but that it was likely an employee in his office did it. There were also other handwritten notations on the doctor’s records that are not particularly relevant to the issues in this case.

We have many times held that resolving conflicts in the evidence, drawing inferences from testimony, and determining credibility of witnesses and the weight to be given to their testimony are matters within the province of the Industrial Commission, and this court will not disturb the Commission’s finding unless against the manifest weight of the evidence. (Long v. Industrial Com. (1979), 76 Ill. 2d 561, 565.) In Riteway Plumbing v. Industrial Com. (1977), 67 Ill. 2d 404, as in the instant case, the employer contended that the claimant had failed to complain of an injury to his back immediately after the accident and that this failure compelled the conclusion that the claimant was not injured at work. In that case, while' we observed that this circumstance does raise questions of credibility and conflicting testimony, we concluded: “We will not reverse the Commission merely because some evidence incompatible with its finding exists in the record.” Riteway Plumbing v. Industrial Com. (1977), 67 Ill. 2d 404, 409.

Further, the employer has sought in this appeal to make much of the fact that this was not the claimant’s first experience with back problems. However, it is well established that an employee is entitled to recover for all the consequences of an aggravation to a preexisting condition. The accident need not be the sole cause of the disability or even the principal cause of the disability. The employee must only prove that it is a causative factor. County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 29-30.

In Thrall Car Manufacturing Co. v. Industrial Com. (1976), 64 Ill. 2d 459, this court again considered the argument that a claimant’s signing of a group health insurance benefit form compels the conclusion that an injury is not work related, similar to the argument made in the instant case. The court concluded that a claimant’s signing a nonoccupational insurance form was only one of the factors to be considered. (Thrall Car Manufacturing Co. v. Industrial Com. (1976), 64 Ill. 2d 459, 464.) Further, in National Lock Co. v. Industrial Com. (1979), 75 Ill. 2d 259, 264, this court observed:

“The fact that it might be inferred that a party has made out-of-court statements inconsistent with his sworn testimony does not per se destroy the probative value of his testimony ***.”

It is for the trier of fact to determine where the truth lies. Although the employer presented evidence which would reflect adversely upon the credibility of the employee, it is peculiarly within the province of the Industrial Commission to determine the credibility of witnesses and the weight to be given to their testimony. Spiegel, Inc. v. Industrial Com. (1976), 64 Ill. 2d 226, 229.

There is evidence in the record to support the employer’s contention. However, we feel the record as a whole discloses that the Commission’s decision is not contrary to the manifest weight of the evidence. We will not set aside an award solely because we might have made a finding on the evidence different from the one made by the Commission or because we might have drawn inferences different from the ones drawn by the Commission. Converters, Inc. v. Industrial Com. (1975), 61 Ill. 2d 218, 223.

The employer relies heavily on Corn Products Refining Co. v. Industrial Com. (1955), 6 Ill. 2d 439, in which the employee signed an application for accident and insurance benefits and in which the employee’s testimony was directly disputed by that of his foreman. In that case, however, the employee had accepted insurance payments. This is different from the instant case, in that Robert Boolman refused to do so. Furthermore, in that case the court found that there was no evidence in the record that a claim for compensation had been made within the period required by the Act and that the Industrial Commission was therefore without jurisdiction to make an award of compensation. Corn Products Refining Co. v. Industrial Com. (1955), 6 Ill. 2d 439, 444-45.

Finally, the employer argues that the request for special findings pursuant to section 19(e) of the Workmen’s Compensation Act was not adequately met and that therefore the award is void under the terms of section 14 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1977, ch. 127, par. 1014). We need not address the applicability of the Administrative Procedure Act or the merits of the argument, however, since we hold that the request for special findings was adequately met by the Industrial Commission.

Specifically, the employer requested, inter alia, a special finding as to whether someone had tampered with the records of Dr. Gordon Shultz. On remand, the Commission found that there was no tampering with the records of Dr. Gordon Shultz. The employer argues that this is an inadequate response to a request for a special finding because it lacks a statement of underlying facts. We agree, however, with the determination of the circuit court that such a finding is adequate to meet the requirements of section 19(e). The circuit court concluded:

“[I] n this case the record is absent any facts to show that the medical records of Dr. Shultz were tampered with and the Commission’s special finding that the records were not tampered with is in accordance with the remanding order of this Court ***.” (Emphasis added.)

On the original review by the Industrial Commission the employer had requested special findings of fact on two issues in addition to the one discussed above:

“1. Whether an accident within the meaning of. the Act occurred.
2. Whether notice of the accident was given to Respondent as required by law.”

In its decision the arbitrator had found “that on the date last above mentioned [January 19, 1976] said Petitioner sustained accidental injuries arising ouf of and in the course of the employment; and that notice of said accident was given said Respondent within the time required under the provisions of said Act.” The Industrial Commission affirmed and adopted the decision of the arbitrator, which, as noted above, had found that on January 19, 1976, the employee had sustained an accidental injury arising out of and in the course of his employment and that notice of the accident had been given to the employer.

The record before us does not disclose whether the alleged deficiencies in the findings of fact on these two issues were ever raised in the circuit court of McLean County. The record does reflect that the case was remanded by the circuit court for a specific finding on the issue of whether Dr. Shultz’s records had been tampered with. We cannot tell from the record now before us whether the circuit court, at the time it rendered that order, was satisfied with the sufficiency of the findings on the other two issues or whether the employer had failed to ask the court to pass on the sufficiency of these findings. The record of the first review by certiorari in the circuit court is not included in the record presented to us on this appeal. There is just nothing in the record that shows that the question of the sufficiency of the findings on the two issues now raised is at this time properly reviewable by this court.

Accordingly, the judgment of the circuit court of McLean County is affirmed.

Judgment affirmed.


author: JUSTICE UNDERWOOD

text:
    (No. 54686.

      In re MARRIAGE OF JOSIE L. WRIGHT, Appellant, and LESTER L. WRIGHT, Appellee.

      Opinion filed March 29, 1982.

      WARD, J., took no part.
    Edward J. Egan, Ltd., of Chicago, for appellant.
    Doss, Puchalski, Keenan, Bargiel & Dicks, Ltd., of Chicago (Owen L. Doss, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Josie Wright filed a petition for dissolution of marriage on November 21, 1977, in the circuit court of Cook County. Several months later, and after a second trial date had been set, she sought a voluntary dismissal. Her husband, Lester Wright, opposed the dismissal and filed a counterpetition for dissolution. Following extensive briefings by the parties regarding the wife’s right to voluntarily dismiss her action, the trial court granted her motion and struck the husband’s counterclaim. The husband immediately filed a notice of appeal. Several months later, on motion of the wife’s attorneys, the trial judge ordered the husband to pay attorney fees to defend the appeal in the amount of $10,000. The husband again appealed. The appellate court subsequently held that since the wife sought to dismiss her action prior to “trial or hearing” she had an absolute right to do so under section 52(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52(1)). That court further held, however, that the trial judge lacked jurisdiction to award attorney fees subsequent to the filing of the notice appeal of the earlier dismissal order. (92 Ill. App. 3d 708.) We granted the wife’s petition for leave to appeal.

We are now advised that the marriage was dissolved on September 16, 1980, and a final property settlement has been approved. The wife’s attorney has informed this court that all fee questions were resolved in the settlement. Since an actual controversy no longer exists and the interests or rights of the parties are no longer controverted, the matter is moot (People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 237, 241; La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 378; Chicago City Bank & Trust Co. v. Board of Education (1944), 386 Ill. 508, 519), and we decline to render an opinion which would be entirely advisory.

Our well-established rule is that we will not review moot or abstract propositions merely to establish a precedent or to guide potential future litigation. (West Side Organization v. Thompson (1980), 79 Ill. 2d 503, 507; Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 251; People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 93; La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 379; Siefferman v. Johnson (1950), 406 Ill. 392, 396; Tuttle v. Gunderson (1930), 341 Ill. 36, 45-46.) The public interest exception recognized by this court in People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622 (see also In re Estate of Brooks (1965), 32 Ill. 2d 361) is obviously not applicable in this case. See People ex rel. Cairo Turf Club v. Taylor (1954), 2 Ill. 2d 160, 164 (the incidental interest of the public in all litigation is not sufficient; the degree of public interest and concern must be very clear); La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 380 (extraordinary degree of public concern and interest prompted our retention of jurisdiction in Labrenz).

In an effort to avoid the mootness argument, the husband urges in section IIA of his brief the invalidity of a contingent-fee contract executed by the wife and her attorneys shortly before they moved to dismiss her dissolution action. A copy of that contract is included in the husband’s brief. It provided for compensation to her attorneys from the proceeds of a chancery action filed against the husband at the time the wife moved to dismiss the dissolution suit. The husband urges that the dismissal, new filing, and contract constituted a plan to circumvent the established rule invalidating such contracts in divorce cases as contrary to public policy. In re Fisher (1958), 15 Ill. 2d 139; see also our amended Rule 2—106(c)(4) adopted June 3, 1980, effective July 1, 1980 (84 Ill. 2d R. 2—106(c)(4)).

The wife, who is not complaining of the contract, has filed a motion to strike section IIA of the husband’s brief and a motion for summary reversal, both of which were taken with the case and are now denied. We note, however, that in the former it is stated that the invalidity of the contingent-fee contract was raised by the husband in the trial court, and that the trial judge held it valid. No appeal was taken from the order, which it is said upheld the contract and approved the property settlement, and we have before us neither that order nor the record of the proceedings in which it was entered.

Fisher and our subsequently adopted rule precluding contingent-fee contracts in dissolution actions leave not the slightest doubt of their invalidity when so employed. We reaffirm our adherence to that policy, and would not hesitate to take appropriate action where transgression of that rule has been established. However, here the contract terms are not, standing alone, violative of the rule, and we do not have before us the trial court proceedings concerning the contract’s validity. In their absence we are precluded from considering the trial court action.

Since we hold the issues to be moot, we accordingly vacate the judgments of the appellate and circuit courts and remand the cause to the circuit court of Cook County with directions to set aside its order granting prospective attorney fees and to dismiss the petition for such fees.

Judgments vacated; cause remanded, with directions.

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


text:
    (No. 55304.
    JOYCE MORGAN, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Mt. Vernon Memorial Gardens, Inc., Appellee).

      Opinion filed March 29, 1982.

      Charles W. Hendrix, of Hendrix & Lierman Law Office, P.C., of Champaign, for appellant.
    Glenn E. Moore, of Campbell, Furnall, Moore & Jacobsen, P.C., of Mt. Vernon, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Van Michael Morgan, the deceased husband of the claimant in this workers’ compensation case, was killed on March 29, 1979, in a farm accident. He had entered a silo, apparently in the process of feeding livestock, when the sileage caved in and he was suffocated. The arbitrator’s award of compensation to the widow was reversed by the Industrial Commission, and the circuit court of Jefferson County confirmed the Commission. Claimant appealed under Rule 302(a)(2). 73 Ill. 2d R. 302(a)(2).

Decedent was employed by Gene Wells, the farm owner, as a general laborer. The operation of the farm was not automatically covered by the Workmen’s Compensation Act, for it required considerably less than 500 man days per quarter (Ill. Rev. Stat. 1977, ch. 48, par. 138.3(19)), nor had the owner elected to come under the coverage of the Act. Decedent also worked for Mt. Vernon Memorial Gardens, Inc., an Illinois corporation, which operated a cemetery a few miles from the Wells’ farm. Mr. Wells was president of this corporation, but the record does not indicate its ownership. The secretary for Memorial Gardens kept the books for both the corporation and the farm. Except for occasional employment of part-time help, decedent was the only employee of the farm. There were two full-time employees of Memorial Gardens, and assistants would be hired in the summer. Decedent performed caretaking duties (i.e., mowing, digging graves) at the cemetery, but apparently was not considered a full-time employee of Memorial Gardens. Mr. Wells did much of the maintenance work at the cemetery himself.

Decedent and his family lived on the Wells’ farm in a house provided them rent free. Mr. Wells also paid the medical expenses of the Morgan family. Decedent was allowed to use the farm trucks, as needed, and Mr. Wells paid maintenance and gasoline expenses on them, as well as the cost of welding classes for decedent. In addition to his general duties on the farm, decedent raised some hogs of his own, together with those of his employer. He also did welding for others in the area, for which he charged, and he sold Mason shoes on a part-time basis.

Decedent received a weekly paycheck of $180 issued by Mt. Vernon Memorial Gardens, Inc. The accountant testified that decedent was paid through Memorial Gardens, beginning in 1975, in order to simplify the reporting and withholding procedures under Federal tax regulations. These regulations treated farm employees differently from corporation employees and, since decedent worked for both and the requirements could be met by the more frequent reporting required of corporations, he had requested the bookkeeper to pay him through the corporation. Since 1975 the corporation prepared his W-2 form and was identified on that form as “employer.” However, the farm was to reimburse the corporation at the rate of $400 per month for decedent’s salary. Although over the four years in question the records in evidence indicate that the full amount (i.e., $4,800 yearly) was reimbursed only once, tax returns for the corporation in each of those years indicate that it did not claim as employee expense any amount for which it was reimbursed. There were no records introduced to show how decedent was paid prior to 1975, but the accountant testified that Mr. Wells and not Memorial Gardens made out the W-2 forms then.

The Industrial Commission found that on the day of decedent’s death Memorial Gardens was subject to the Workmen’s Compensation Act and that a relationship of employer and employee existed between decedent and the corporation. However, it held that the claimant had failed to prove that the accident arose out of and in the course of that employment. We agree with the circuit court that this holding is not against the manifest weight of the evidence.

Claimant argues that this court’s decisions in Friend v. Industrial Com. (1968), 40 Ill. 2d 79, and Harry Fleming Washer Service v. Industrial Com. (1966), 36 Ill. 2d 272, require a different result. In both of those cases this court upheld an award of compensation to an employee of an otherwise covered business who was injured while performing duties which were not in the usual course of business of that employer. In both of those cases, however, there was a single employer, and the court held that the work being performed at the time of the accidents was so “enmeshed with the usual business of the employer” that the injuries were compensable. 40 Ill. 2d 79, 81; 36 Ill. 2d 272, 274-75.

In contrast to those cases, decedent was employed by two distinct employers, notwithstanding the fact that Gene Wells was also president of Mt. Vernon Memorial Gardens, Inc., from which decedent’s paychecks came. Although there was no testimony concerning the amount of time that he worked at the cemetery in comparison to the time he worked on the farm, an inference could be drawn from the fact that the $400 monthly reimbursement was about one-half his money wages that no more than half of his time was spent working at the cemetery. There is no doubt that he was receiving considerable nonmonetary compensation for his farm work. There is also no doubt that when the accident occurred he was performing duties solely related to his employment on the farm and wholly unrelated to any duties he had at the cemetery.

On these facts we cannot say that the Industrial Commission’s determination that the claimant failed to prove that the accident arose out of and in the course of decedent’s employment with Mt. Vernon Memorial Gardens, Inc., was against the manifest weight of the evidence. (Siens v. Industrial Com. (1981), 84 Ill. 2d 361; cf. Illinois Institute of Technology v. Industrial Com. (1977), 68 Ill. 2d 236, 246.) Accordingly, the judgment of the circuit court of Jefferson County is affirmed.

Judgment affirmed.