author: JUSTICE RYAN

text:
    (No. 55063.
    THE PEOPLE ex rel. GERALD ROBERTS, Petitioner, v. MICHAEL ORENIC, Respondent.

      Opinion filed December 18, 1981.

      Jeffrey H. Haas and Jonathan C. Moore, of Chicago, for petitioner.
    Tyrone C. Fahner, Attorney General, of Springfield, (Herbert Lee Capian, Melbourne A. Noel, Jr., Michael B. Weinstein, and Carolyn B. Notkoff, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE RYAN

delivered the opinion of the court:

This is an original mandamus action, which we permitted the petitioner, Gerald Roberts, to file in this court, pursuant to the prayer of his motion filed under our Rule 381. (73 Ill. 2d R. 381.) Petitioner seeks to prevent his retrial following the declaration of mistrial in a criminal case in the circuit court of Will County. We deny the prayer of the petition for writ of mandamus.

The petitioner was charged, by information, with attempted murder, armed violence, aggravated battery, and possession of marijuana. Specifically, it was alleged that he attempted to kill an undercover narcotics agent. The petitioner, Roberts, testified that the agent came to the door of his apartment that night dressed in civilian clothes and that the agent resembled a person who had robbed Roberts six days before. Roberts said that he was armed because of this previous incident and when he went toward his door, he saw the agent draw his gun. Roberts then ducked to avoid being shot. As he did so, he slipped and his gun fired accidentally.

The defendant tendered two jury instructions on self-defense during the jury instructions conference. The prosecution objected to instructing the jury on self-defense because the defendant had testified that the shooting was accidental. The trial court agreed with the prosecution and refused to give the tendered instructions.

During their deliberations, the jury sent the following note to the judge:

“If self defense is a factor in a situation, can the charge of attempt murder be affected? And, if so, how?”

During a conference concerning this question, out of the presence of the jury, defendant’s counsel again requested that the court instruct the jury on self-defense. The prosecution adhered to its original position that self-defense could not be a factor because the defendant testified that the shooting was accidental. The court again refused to give a self-defense instruction; however, in view of the jury’s inquiry, the judge indicated that he thought that a self-defense instruction should have been given. There was a lengthy discussion between the defense counsel, the prosecutor, and the court concerning whether self-defense was an issue in the case. Although the court felt that a self-defense instruction should have been given, it refused to give such an instruction at that time, since counsel had not had an opportunity to argue that question to the jury. The court then posed two questions: “Could I give an instruction on self-defense? Would I have to go to a mistrial right now?” Defense counsel replied: “It is a good question.” The prosecutor stated: “I think you would have to go to a mistrial, because we have all done our arguments.” There followed another lengthy discussion on whether a self-defense instruction was required under the facts of the case. Finally, the bailiff informed the judge that the foreman of the jury told him that he wanted an answer to the question. The court then asked defense counsel if he wanted to make a motion for a mistrial. His response was that his first motion would be to give the jury the self-defense instruction. The judge said he could not do so at that time. The following exchange then took place:

“MR. HAAS [Defense Counsel]: Judge, I think the defendant’s position, we would move to dismiss with prejudice and if that is not allowed, we would move for a mistrial.
THE COURT: I am not going to dismiss it with prejudice.
e e #
MR. LI VAS [Prosecutor]: Yes. I understood that the defendant made a motion for mistrial?
THE COURT: Yes. They made a motion before that, they wanted a mistrial with prejudice. I denied that motion.
MR. LI VAS: We agree.
THE COURT: Fine.
MR. HAAS: Our first motion, Judge, was to give the instructions.
THE COURT: Yes. I have come to the conclusion that there is no way *** I could allow that, to put instructions in that have not been argued, that have not been, you know, explained or argued to the jury at the time the other instructions went in. I think that is improper.
999 So, okay, I am going to instruct them.
MR. LIVAS: Mistrial?
THE COURT: Mistrial.”

The court, apparently in dictating the minutes to the clerk, then stated:

“You can show on the minutes 999 that 999 the Court came to the conclusion that the self defense instruction probably should have been given. Show that the defense moved at that time that the instruction be given 999. That was denied 999.
Defendant at that time moved for a dismissal with prejudice. I denied that. At which time the defense moved for a mistrial. That was concurred in by the People and I am allowing that motion. Bring the jury in.
MR. HAAS: Judge, we think also the mistrial should really be on the Court’s motion, since we don’t think we were the cause of the mistrial.”

The judge never responded to the defense counsel’s last statement. The jury was brought in and the court declared a mistrial.

Thereafter, the petitioner moved for a substitution of judge and the case was referred to Judge Michael Orenic, respondent herein. The petitioner then moved to bar retrial alleging double jeopardy. Judge Orenic denied the motion and the petitioner filed the motion for leave to file a petition for an original action of mandamus in this court.

We will first consider whether an original petition for mandamus is the proper proceeding in which to decide whether a trial court properly denied defendant’s double jeopardy claim. The second issue is whether the double jeopardy clauses of the fifth amendment to the United States Constitution and article I, section 10, of the Illinois Constitution bar reprosecution of the defendant under the facts of this case.

This court did not disapprove the present remedy for double jeopardy claims in People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527. In that case this court stated:

“A defendant in an Illinois criminal case who has a meritorious double jeopardy defense is not foreclosed from pretrial correction of a trial judge’s erroneous denial of a motion to dismiss. A motion under our Rule 381 (58 Ill. 2d R. 381) for leave to file an original petition for a writ of prohibition, mandamus, or perhaps even habeas corpus, as may be appropriate, accompanied by suggestions in support of the petition will receive the serious consideration of this court.” (People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 540.)

The present case falls within the above rule and therefore this is a proper action in light of our decision in People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527.

In this case, since the mistrial was declared after the jury was selected and sworn, jeopardy had attached. This does not, however, necessarily preclude a second trial. The facts of each case must be examined to determine the credibility of a double jeopardy claim. (People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527.) Since the early case of United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165, it has been held that whether a defendant may be retried after a mistrial has been declared without the defendant’s request depends on whether there was a manifest necessity for the mistrial. (See United States v. Dinitz (1976), 424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075.) However, if the mistrial can be said to be attributable to the defendant by virtue of his motion or consent, different considerations apply. People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527.

The standard to be applied in the event the defendant requested a mistrial, or at least consented to one, was stated in United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547, and followed by this court in People ex rel. Mosley v. Carey. The Jorn court stated:

“[WJhere circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” United States v. Jorn (1971), 400 U.S. 470, 485, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 557.

It is clear that the defendant sought, or at least consented to, the mistrial that the trial court declared. Although there was mention of the possibility of the necessity of a mistrial by the court and by the prosecutor during the conference, there was no motion made to that effect until the court, in its colloquy quoted above, asked the defense counsel if he wanted to make a motion for a mistrial. Defense counsel then replied that his first request was to give the self-defense instruction. When the court said he could not do that, defense counsel, as noted above, stated:

“MR. HAAS [Defense Counsel]: Judge, I think the defendant’s position, we would move to dismiss with prejudice and if that is not allowed, we would move for a mistrial.” (Emphasis added.)

The judge then denied the motion to dismiss with prejudice and granted the motion for a mistrial. The defendant never objected to the declaration of a mistrial, other than to state:

“MR. HAAS: Judge, we think also the mistrial should really be on the Court’s motion, since we don’t think we were the cause of the mistrial.”

This statement neither amounts to a reversal or withdrawal of the defendant’s previous request for a mistrial, nor an objection to the entry of a mistrial.

It cannot be said that the judge’s or the prosecutor’s conduct in the conference coerced defense counsel into moving for a mistrial. In United States v. Bobo (5th Cir. 1978), 586 F.2d 355, the mistrial was held to have resulted from the defendant’s motion, although there was a substantially stronger suggestion by the trial judge and a greater participation by him in procuring the declaration of a mistrial than in this case. The defense counsel’s disclaimer as to the cause of the mistrial does nothing more than state that it was caused by someone other than the defendant, presumably the trial judge, by failing to give the self-defense instruction and the prosecutor by insisting that the instruction not be given.

Many mistrials are requested or consented to by defendants, even though the error or perceived error necessitating the mistrial was that of the prosecutor or the judge. “Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” United States v. Scott (1978), 437 U.S. 82, 93, 57 L. Ed. 2d 65, 76, 98 S. Ct. 2187, 2195.

The major consideration, for double jeopardy purposes, is that “the defendant retain primary control over the course to be followed in the event of such error.” (United States v. Dinitz (1976), 424 U.S. 600, 609, 47 L. Ed. 2d 267, 275, 96 S. Ct. 1075, 1080.) The defendant, in our judgment, clearly retained “primary control” over the proceedings. He could have permitted the jury to continue deliberations and to reach a verdict. If the verdict were against him, the defendant, in his post-trial motion, would have had the benefit of the trial judge’s acknowledgment in the conference that he should have given the self-defense instruction. The defendant was in a position that if he won, he would have had the benefit of the verdict and would have been acquitted. If he lost, he was assured a new trial. He elected not to let the jury decide his case. When the judge refused to give the requested instruction, instead of letting the case go to verdict, the defendant gave the judge two alternatives: dismiss the case with prejudice or declare a mistrial. We conclude that the declaration of the mistrial “may fairly be said to have been attributable to [the] defendant.” People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 535.

The holding in United States v. Jorn would thus not prevent the retrial of defendant unless it can be said that the circumstances which brought about the defendant’s motion for a mistrial were attributable to prosecutorial or judicial overreaching, or bad faith. The fact that the motion was necessitated by prosecutorial or judicial error is not sufficient to preclude retrial. Defendant’s final contention therefore is that the mistrial was necessitated by “judicial and prosecutorial overreaching.” The basis of this contention is that the prosecution argued against the jury’s being instructed on self-defense and that the trial court ruled in favor of the prosecution.

In United States v. Dinitz (1976), 424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075, the Court expounded on “judicial or prosecutorial overreaching” as follows:

“It bars retrials where ‘bad-faith conduct by judge or prosecutor,’ United States v. Jorn [(1971), 400 U.S. 470, 485, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 557] threatens the ‘[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.” (United States v. Dinitz (1976), 424 U.S. 600, 611, 47 L. Ed. 2d 267, 276, 96 S. Ct. 1075, 1081.)

This exposition contemplates error that was “intended to provoke” the mistrial motion or was otherwise “motivated by bad faith or undertaken to harass or prejudice” the petitioner. Lee v. United States (1977), 432 U.S. 23, 53 L. Ed. 2d 80, 97 S. Ct. 2141; United States v. DiFrancesco (1980), 449 U.S. 117, 66 L. Ed. 2d 328, 101 S. Ct. 426; United States v. Leppo (3d Cir. 1981), 641 F.2d 149, 152-53.

The prosecutor’s position that self-defense was not a factor in this case cannot be characterized as “prosecutorial overreaching.” The prosecutor was merely an advocate for his position that an instruction on self-defense was improper because the defendant testified that the shooting was accidental. The prosecution adhered to this position throughout the trial.

The defendant also contends that the trial judge was guilty of “overreaching” because of his original refusal to give the self-defense instruction and his latter refusal to give the instruction in response to the jury’s inquiry. It is unnecessary for us to determine whether a self-defense instruction should have been given in this case. Assuming, however, that it was error to refuse such an instruction, this error does not amount to judicial “overreaching.” Mere error by a trial court does not amount to “judicial overreaching” so as to bar the reprosecution of a defendant who has requested a mistrial. (United States v. Dinitz (1976), 424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075; Mitchell v. Smith (2d Cir. 1980), 633 F.2d 1009.) Nothing in this case indicates that the judge’s conduct was motivated by anything other than sincere concern over his failure to have instructed the jury on the self-defense issue. He certainly did not act with the “intent to provoke” a mistrial motion by the defendant or in “bad faith so as to harass the defendant.” We view the conduct of the trial judge as nothing more than an acknowledgment of what he thought was trial error.

For the above reasons we deny the petition for a writ of mandamus.

Writ denied.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 54692.
    MILDRED KOZMEL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Sears Bank and Trust Company, Appellee).

      Opinion filed January 21, 1982.

      Roderick F. Mollison, of Chicago, for appellant.
    Discipio, Martay & Caruso (William H. Martay, of counsel), of Chicago, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Petitioner, Mildred Kozmel, appeals from the judgment of the circuit court of Cook County confirming an award of the Industrial Commission. (73 Ill. 2d R. 302(a).) She was injured on September 8, 1971, while in the employ of respondent, Sears Bank and Trust Company. On August 30, 1974, a hearing was held before an arbitrator for the Industrial Commission who died prior to entering an award. Following considerable delay, not explained in the record, the case was heard before another arbitrator. The arbitrator, on July 13, 1979, awarded petitioner compensation based on the rate in effect on the date of the injury. Petitioner sought review, and the Industrial Commission affirmed the award and adopted it as the decision of the Industrial Commission. On certiorari the circuit court confirmed the decision of the Industrial Commission.

Petitioner contends that it was the duty of the Industrial Commission to process her claim expeditiously, and that it was the duty of respondent to insure that her claim was resolved promptly. Petitioner argues that because both the Industrial Commission and respondent have failed in the performance of their duties, the rate of compensation applicable to the award should be that which was in effect at the time the award was made and not the rate in effect on the date of the injury.

In Grigsby v. Industrial Com. (1979), 76 Ill. 2d 528, the court considered the contention that the Industrial Commission had erred in failing to apply the compensation rate which was in effect at the time of making an award based on an injury suffered prior to the enactment of the statute increasing the rates. The court reviewed its prior decisions and concluded that the amendment to the Workmen’s Compensation Act which changed the rate of compensation concerned substantive rights and liabilities of the parties, and that the rate of compensation was governed by the law in effect at the time of the injury. We find no basis for holding that delay caused by the Industrial Commission should alter or modify that rule.

If respondent was responsible for undue delay in the processing of the claim or improperly refused to pay compensation, the Worker’s Compensation Act contains several provisions under which the Industrial Commission can impose penalties for such conduct (see Ill. Rev. Stat. 1979, ch. 48, pars. 138.16, 139.19(g), 138.19(k) and 138.19(l)), and petitioner’s remedy was to invoke one of these provisions. Retroactive application of newly enacted amendments increasing the rate of compensation is not the appropriate remedy.

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

Judgment affirmed.


author: JUSTICE SIMON

text:
    (No. 54754.
    SILAS ODIE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Eclipse, Inc., Appellee).

      Opinion filed January 21, 1982.

      Tuite, Morrissey, Gesmer 8c Finnegan, of Rockford (Jason N. Gesmer and Gerald F. Tuite, of counsel), for appellant.
    Braun, Lynch, Smith & Strobel, Ltd., of Chicago (John A. Strobel, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The question presented by this appeal is whether the denial by the Industrial Commission of a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) for reimbursement of a physician’s fees and hospital charges for a lumbar fusion operation should be sustained. Its resolution turns on whether the Commission’s decision that the surgery was not necessary and reasonably required to cure or relieve the effects of the claimant’s work-related injury was against the manifest weight of the evidence. The circuit court of Winnebago County confirmed the decision of the Industrial Commission.

Silas Odie, the claimant, sustained a lower back injury on May 13,1976, while lifting heavy objects in his employer’s plant in Rockford. He reported the accident to his employer and was referred by the employer to a Dr. Norbeck.

Dr. Norbeck treated claimant from the date of the injury until September 8, 1976, prescribing heat treatments and medication. Hospitalization, additional testing and surgery were not recommended by Dr. Norbeck. Claimant was not under any medical care between the time of his last visit to Dr. Norbeck on September 8, 1976, and January 1977, when a Rockford attorney referred him to Dr. James S. Berry in Freeport, 40 miles away from claimant’s home in Rockford. During the period he was not under medical care, claimant went pheasant hunting a few times and did much walking. He had left his job voluntarily on September 24, 1976. Odie claims he quit because of low back pain, but his foreman testified that Odie told him he was quitting because he was not making enough money and that Odie did not mention any back pains in explaining his reason for leaving.

Dr. Berry referred the claimant to Dr. K. M. Vaidya for a nerve-conduction test. Dr. Vaidya found straight-leg-raising tests to be negative or 90 degrees bilaterally and found no electrical evidence of lower motor neuron involvement including radiculopathy. Subsequently a myelogram was performed by Dr. Berry, and this procedure was likewise negative for disc pathology. Notwithstanding the absence of objective clinical findings, Dr. Berry, after putting a body cast on the claimant which he wore for one month, performed a lumbar fusion on March 28, 1977, for what he diagnosed as “lumbar instability.” At the time of surgery neither a herniated disc nor any other abnormality was found.

The claimant’s employer submitted a medical report dated November 14,1977, prepared by a Dr. Leonard, with a stipulation that if the physician were testifying, he would state, basing his opinion on the negative EMG and clinical findings of Dr. Vaidya and the negative myelogram, that there was no causal connection between the injury sustained on May 13, 1976, and the surgery Dr. Berry performed. On the other hand, the claimant submitted another physician’s report (Dr. McDonald’s), dated December 30, 1977, with the stipulation that, if he testified, his testimony would be that the accident might or could be causally related to the surgery.

The arbitrator allowed the claim for medical and hospital services for the lumbar fusion operation. The Commission concluded that there was “no evidence in the record to prove that the spinal fusion was reasonable or necessary to cure the effects of” the injury and reduced the arbitrator’s award by the amount attributable to hospital and medical charges for the surgery performed by Dr. Berry.

This case involves the application of section 8(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(a)), which provides: “The employer shall *** pay for necessary medical, surgical and hospital services oe#, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.” This limitation should be applied cautiously so that the Industrial Commission does not set itself up as the arbiter of what is proper or satisfactory medical practice. On the other hand, the statute must be applied vigorously and realistically enough to prevent unnecessary medical and hospital charges. What medical treatment is necessary is a question of fact for the Industrial Commission to determine. Hill Freight Lines, Inc. v. Industrial Com. (1967), 36 Ill. 2d 419, 423.

We disagree with the claimant’s argument that the facts in this case are essentially undisputed, and that thus the court is asked to resolve only a question of law. Factual issues presented by the record are the reason claimant left his job, the extent to which his injury required further treatment, and the reasonableness and necessity of the surgery Dr. Berry performed; the credibility of Odie and his physician is important in making these determinations. Even if the evidence is regarded as undisputed, and that is not the case here, it permits more than one inference. In this situation the determination of which inference should properly be drawn has been held to be a question of fact; only if the undisputed facts are susceptible of a single inference has this court held that the issue can be characterized as one of law. (M&M Electric Co. v. Industrial Com. (1974), 57 Ill. 2d 113, 117.) The resolution of questions of fact and causation is the Industrial Commission’s responsibility. (County of Cook v. Industrial Com. (1981), 87 Ill. 2d 204.) Even though a court might draw different inferences, the Commission’s factual evaluations will not be disturbed on review unless they are contrary to the manifest weight of the evidence. Flores v. Industrial Com. (1981), 87 Ill. 2d 48.

The Commission concluded that the evidence was inadequate to establish that the spinal fusion Dr. Berry performed was reasonable or necessary to cure the effects of the injury claimant sustained 10½ months earlier. The record contains ample evidence to support this finding. Dr. Norbeck treated claimant for four months and then discharged him. He did not find further testing, hospitalization, or surgical intervention necessary. Petitioner was responding well to conservative management; he hunted and did quite a bit of walking. In fact, in the 4½ months between being discharged by Dr. Norbeck and his first visit to Dr. Berry, he received no treatment whatsoever; he neither saw Dr. Norbeck nor asked to be referred to any other physician. Subsequently, however, he was referred by his attorney to a physician 40 miles away in Freeport who eventually performed the surgery. Dr. Berry went ahead with the surgical procedure even though the findings of Dr. Vaidya and the myelogram results did not indicate there was any need for it. And the surgery established that claimant did not have a herniated disc or any other abnormality requiring such treatment. Reluctant as we are to set aside the independent judgment of the operating physician, the facts here so clearly justify the conclusion that the lumbar fusion was not reasonably required that we cannot say the Commission erred.

The Commission’s determination not being against the manifest weight of the evidence, this court is obliged to accept it. The Commission’s factual resolution which accepted the findings of Dr. Vaidya and Dr. Leonard and rejected those of Dr. Berry and Dr. McDonald should not be disturbed by this court, as it is the Commission’s prerogative to decide which testimony is most reasonable and most entitled to belief. In Barricks Corp. v. Industrial Com. (1969), 44 Ill. 2d 9, the Commission, confronted with disputed expert testimony concerning whether additional treatment was necessary and proper, chose to believe one medical opinion rather than another in denying medical reimbursement to the claimant. This court, in affirming the Commission’s determination, said:

“The most substantial ground supporting the Commission’s disallowance of expenses, however, is the question of the necessity for the described treatment. 000 Dr. Reiffel testified that in his opinion the treatment was necessary; however, Dr. Scuderi stated that the claimant exhibited none of the objective symptoms which would be expected if her condition did require treatment, and that she did not need the treatment which she described. Where the evidence is conflicting on a question of medical fact, resolution of that conflict by the Commission will not be disturbed unless against the manifest weight of the evidence. [Citations.] Dr. Scuderi’s testimony before the Commission was clearly a sufficient basis for the decision to disallow the claim for expenses, and his testimony was not manifestly outweighed by that of Dr. Reiffel.” (Emphasis added.) 44 Ill. 2d 9, 15.

In City of Chicago v. Industrial Com. (1968), 41 Ill. 2d 143, 146-47, the court, after observing that there was substantial conflict in the testimony of the medical witnesses, concluded:

“The weight to be given particular testimony is within the province of the Commission, which determines the facts and draws whatever reasonable inferences and conclusions are warranted by the evidence. eoe
[I]t is not the function of this court to determine facts and make computations in matters of this kind. The award for medical services has not been shown to be against the manifest weight of the evidence, and it must therefore remain undisturbed.”

Claimant contends that the Commission’s refusal to order payment for the expenses of his surgery was inconsistent with its finding that at the time of the surgery he was temporarily totally incapacitated. We see no inconsistency. It is entirely possible for a person to be still recovering from an injury and yet not need a lumbar fusion, or, for that matter, any further treatment. Compare Quick v. Industrial Com. (1972), 53 Ill. 2d 46 (where the treatment was plainly suited to cure the claimant’s condition and the only issue was whether that condition was work related, it was inconsistent to award compensation for incapacity, thereby implicitly finding the incapacity work related, and yet deny the necessary expenses of relieving the incapacity).

Claimant argues that the Commission’s decision to terminate his temporary total compensation at a date on which nothing medically significant happened and on which he was still recovering from the effects of surgery was arbitrary. He suggests that the Commission simply did not approve of his choice of doctors and made up its mind to deny him his medical expenses by any means available. The reasoning behind the Commission’s finding about when the period of temporary total incapacity ended is not clear. Perhaps the Commission concluded that because the back surgery was unnecessary, any incapacity resulting from the surgery itself, rather than directly from the original injury, was not compensable, and then estimated when the claimant would have completed his recovery if he had not prolonged his incapacity by the ill-advised surgery. We have no occasion to consider whether such a conclusion would be proper, because claimant does not challenge the award of temporary compensation. Any error in the award of compensation for temporary incapacity would not justify overturning the Commission’s finding that the surgery was not required for claimant’s condition. If anything, the Commission’s decision not to award temporary compensation for the whole period during which the claimant was recuperating from the surgery supports the finding that the surgery was unnecessary. If the Commission believed the medical treatment was necessary, it would have awarded compensation for the time the claimant was incapacitated by the treatment. There is therefore no inconsistency between the two parts of the the Commission’s order.

The judgment is affirmed.

Judgment affirmed.


author: JUSTICE WARD

text:
    (No. 54532.
    CALAHAN WHITE, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Keystone Steel & Wire Company, Appellant).

      Opinion filed January 21, 1982.

    Swain, Johnson & Card, of Peoria (Timothy W. Swain and Robert W. Scott, Jr., of counsel), for appellant.
    james E. Bowles, of Goldfine & Bowles, P.C., of Peoria, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

Calahan White filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977 and 1978 Supp., ch. 48, par. 138.1 et seq.) for injuries allegedly arising out of and in the course of his employment with Keystone Steel & Wire Company (Keystone) in Peoria. After hearing, an arbitrator awarded him compensation for temporary total incapacity, for partial permanent loss of the use of his legs, and for necessary medical, surgical, and hospital services. The Industrial Commission, after taking further evidence, found that the claimant failed to prove that he sustained accidental injuries arising out of and in the course of employment and set aside the award of the arbitrator. The circuit court of Peoria County held that the Commission’s decision was against the manifest weight of the evidence and reinstated the award. The respondent brought a direct appeal to this court under Rule 302(a). 73 Ill. 2d R. 302(a).

The claimant testified that on June 27, 1978, a wire coil which he was pulling fell from a conveyor, causing him to slip. He said that his side and back “popped.” He felt a tingling sensation at the time, and his back and legs have since pained him. The claimant stated that he completed his shift and worked the next three days, although he could neither sit down nor sleep. On July 5, 1978, he was hospitalized for a week and was in traction for three days of his hospital stay. He returned to work on July 24, 1978, but had to return to the hospital three days later. A lumbar laminectomy was performed on his lower back, and he resumed work on November 9, 1978. He testified that he continues to experience pain in his back and left leg.

The claimant’s foreman, Charles Duffield, testified that he could not remember whether White reported an injury to him on June 27, 1978. He testified, however, that he always notifies the company’s first-aid station and summons an ambulance whenever an injury is reported. Keystone’s head nurse, Martha Thompson, testified that Keystone’s medical records did not show a report of injury of the claimant on June 27, 1978. There was a nonoccupational injury notation to the effect that on July 27, 1978, White called Keystone’s medical center and stated that he had been hospitalized with a pinched nerve. Another medical entry, dated July 19, 1978, indicated that White was examined by a company physician before being allowed to return to work on July 24.

On the review of the arbitrator’s decision, Dr. Robert Martin, Keystone’s medical director, testified before the Industrial Commission that no surgeon’s report had been prepared concerning the claimant and that there would have been a report if White had reported a work-related injury.

A medical report dated July 5, 1978, by White’s personal physician, Dr. Ralph E. Seward, stated that pain in White’s left leg had become more severe over the preceding three weeks and that “there was no sharp episode or onset related to any injury that he knows of, no falls or no slips.” This of course indicated that the claimant’s physical complaints antedated June 27, 1978, the date of the alleged accident and that in fact there had not been an accident. Another report, dated July 7, 1978, made by a consulting neurologist, stated that White had suffered a sudden onset of pain three weeks earlier, indicating, too, that White’s complaints existed prior to the claimed accident.

Keystone contends here that the Commission’s finding that there was no injury arising out of and in the course of employment was not contrary to the manifest weight of the evidence and should have been confirmed; that in any event White failed to give proper notice of the accident and that therefore his claim is barred; and that if the circuit court was correct in reversing the Commission’s decision, it should have remanded the cause to the Commission to review the arbitrator’s award as to the nature and extent of White’s disability.

We will assume, arguendo, that Keystone was given proper notice of accident so that we may address Keystone’s first contention.

The burden is on a claimant to prove by a preponderance of evidence that the injury arose out of and in the course of employment. It is axiomatic that it is the function of the Industrial Commission to decide questions of fact and causation, to judge the credibility of witnesses, and to resolve conflicts in medical evidence. (O’Dette v. Industrial Com. (1980), 79 Ill. 2d 249.) Even if a court might have drawn different inferences from the evidence, an Industrial Commission finding will not be set aside unless it is contrary to the manifest weight of the evidence. (Azzarelli Construction Co. v. Industrial Com. (1981), 84 Ill. 2d 262.) The claimant’s contention that his injury was work related was based only on his testimony before the arbitrator. Medical reports, including one prepared by the claimant’s own physician, indicate that the injury was not work related and that the claimant’s complaints existed prior to the claimed accident. In light of the evidence in the record, the finding of the Industrial Commission was not against the manifest weight of the evidence, and we hold that the circuit court erred in setting the finding aside and reinstating the arbitrator’s award.

In view of this holding, we need not consider the second and third contentions of Keystone.

For the reasons given, the judgment of the circuit court of Peoria County is reversed and the finding of the Commission is reinstated.

Judgment reversed.


text:
    (No. 54343.
    HELEN BURNICKA et al., Appellants, v. MARQUETTE NATIONAL BANK, Trustee, et al., Appellees.

      Opinion filed January 21, 1982.

    Eugene P. Meegan, of Chicago, for appellants.
    French and Rogers, of Chicago (Richard G. French and Timothy G. Keating, of counsel), for appellee Petranela Ceckevicene.
   JUSTICE WARD

delivered the opinion of the court;

A default judgment that the plaintiffs, Helen Burnicka and Lawrence Burnicka, had taken in the circuit court of Cook County against Petranela Ceckevicene (hereafter the defendant) was vacated on October 31, 1979, upon the allowance of a petition filed by the defendant under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). (Marquette National Bank had been dismissed as a deferidant early in the proceedings.) The plaintiffs did not file a notice of appeal from the judgment vacating the default judgment, but within 30 days, on November 27, 1979, they filed a motion to set aside that judgment. The motion was denied, and they filed a notice of appeal within 30 days from the denial. The appellate court, in a Rule 23 order (73 Ill. 2d R. 23), dismissed the appeal for want of jurisdiction. (89 Ill. App. 3d 1201.) We granted the plaintiffs’ petition for leave to appeal. 73 Ill. 2d R. 315.

The question presented is whether the motion to set aside the judgment that vacated the default judgment tolled the running of the 30-day period for filing a notice of appeal from the judgment vacating the default judgment. We conclude that it did.

The plaintiffs brought the underlying negligence action in 1975. The suit is for injuries resulting from a fall down a flight of stairs in the defendant’s building. A default judgment was entered on July 18, 1978, after the defendant had failed to appear. On March 1, 1979, she filed a section 72 petition to vacate the default judgment. In it she alleged that she was an immigrant, and it appeared that she had an imperfect understanding of English. She alleged that she had forwarded the summons served upon her in 1975 to her insurance agent, who died while the suit was pending. She said that she had reposed great trust in him. The defendant stated that she heard no more about the suit until she was served with a garnishment , up on a trust in which she was the beneficiary in February 1979. The petition also contained allegations that she had a meritorious defense to the action.

After hearing, the court granted the petition to vacate on October 31, 1979, and set the cause for trial. The court stated it was persuaded by evidence that the defendant had difficulty in understanding English. The court also observed that the plaintiffs had taken no action regarding the default until the garnishment was begun seven months after the default judgment was entered.

On November 27, 1979, the plaintiffs filed a motion to set aside the judgment of October 31, which was entered on the section 72 petition. That motion alleged that the defendant had lied in denying knowledge of the suit at the October 31 hearing, and that the court had erred in granting the petition. The motion to set aside was denied on January 3, 1980. On January 14, 1980, the plaintiffs filed their notice of appeal.

Section 72 of the Civil Practice Act in part provides:

“(1) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section. Writs of error coram nobis and coram vobis, writs of audita querela, bills of review and bills in the nature of bills of review are abolished. All relief heretofore obtainable and the grounds for such relief heretofore available, whether by any of the foregoing remedies or otherwise, shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered. There shall be no distinction between actions and other proceedings, statutory or otherwise, as to availability of relief, grounds for relief or the relief obtainable.
(2) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof.” Ill. Rev. Stat. 1979, ch. 110, par. 72.

Rule 304 of the rules of this court provides that a judgment or order granting or denying a section 72 petition is appealable. (73 Ill. 2d R. 304(b)(3).) Rule 303(a) (73 Ill. 2d R. 303(a)) sets a 30-day limit for filing a notice of appeal. It states:

“Except as provided in paragraph (b) below [which has no relevance here], the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the motion.” 73 Ill. 2d R. 303(a).

The defendant contends that the time for filing a notice of appeal expired 30 days after October 31 when the defendant’s section 72 petition was allowed. The time for filing was not extended, the defendant says, by the plaintiffs’ filing a motion to vacate the judgment of October 31. There are decisions of the appellate court supporting that view (e.g., In re Application of County Collector (1981), 95 Ill. App. 3d 1118; City Wide Carpet, Inc. v. John (1980), 83 Ill. App. 3d 538; City Auto Paint & Supply, Inc. v. Brandis (1979), 73 Ill. App. 3d 863) and at least one holding rejecting it (Reuben H. Donnelly Corp. v. Thomas (1979), 79 Ill. App. 3d 726).

We consider that the nature and purpose of section 72 requires the conclusion that a motion to vacate the judgment entered upon the granting of such a petition is a post-trial motion within the meaning of Rule 303(a).

Section 72 makes available various post-judgment and post-decree remedies that could be obtained in legal, equitable and statutory cases. The section expressly states that a petition under it is not a continuation of the proceeding in which the prior judgment was entered. A section 72 petition is not, therefore, merely a post-trial motion in the prior proceeding. This court has held that a petition under the section is the filing of a new action, in which the petitioner must allege and prove a cause of action, that is, a right to relief, in which the rules of pleading governing complaints in other civil cases are to be applied. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505; Glenn v. People (1956), 9 Ill. 2d 335, 340. See Mitchell v. King (1900), 187 Ill. 452, 457 (at common law, the writ of error coram nobis was a suit apart and distinct from the prior proceeding and judgment). See also Davis, The Scope of Section 72 of the Civil Practice Act, 55 Ill. B.J. 820, 821 (1967), where it was said: “Procedurally, Section 72 should not present any difficulty if it is observed that the filing of a petition thereunder is the same as the commencement of a new cause of action.”) Rule 304(b), making a judgment allowing or denying a section 72 petition appealable, recognizes that the judgment is a final judgment upon a separate and distinct cause.

We consider that the party against whom a judgment under section 72 has been entered should have the same opportunity to file a post-trial motion that is available in other civil actions. There is no reason why the right to appeal in this character of case should be circumscribed when, rather than appealing, a motion is made to have the trial court correct its error. Compare Brady v. Industrial Com. (1970), 45 Ill. 2d 469 (motion to reconsider circuit court’s order confirming Industrial Commission’s decision was a post-trial motion that tolled the deadline for filing notice of appeal).

Accordingly, if within 30 days of the grant or denial of a section 72 petition a post-trial motion directed against that judgment is filed, the motion will extend the time for filing a notice of appeal until 30 days after the order disposing of the motion is entered. This holding does not, of course, indicate or suggest that successive post-judgment motions will be recognized. We have held that a second post-judgment motion is unauthorized under the Civil Practice Act and does not extend the time within which to appeal. Sears v. Sears (1981), 85 Ill. 2d 253. See also Deckard v. Joiner (1970), 44 Ill. 2d 412, cert, denied (1970), 400 U.S. 941, 27 L. Ed. 2d 244, 91 S. Ct. 232.

For the reasons given, the judgment of the appellate court dismissing the appeal for lack of jurisdiction is reversed. The cause is remanded to the appellate court for consideration of the appeal.

. Reversed and remanded.


author: JUSTICE UNDERWOOD

text:
    (No. 54490.
    NANCY CHALMERS, Appellant, v. THE CITY OF CHICAGO et al., Appellees.

      Opinion filed January 21, 1982.

      Sam Panger, Jr., of John M. Sorrentino Associates, Ltd., of Chicago, for appellant.
    Stanley Garber, of Chicago (Robert R. Retke, Jerome A. Siegan, and Jetta N. Jones, of counsel), for appellees.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

This is a personal injury action arising from an automobile accident on May 22, 1973, between plaintiff, Nancy Chalmers, and Edward Meany, a police officer for the city of Chicago, who was driving a Chicago squad car at the time of the collision. Plaintiff filed a complaint in the circuit court of Cook County against the officer and the city of Chicago alleging wilful and wanton conduct by the officer. After the evidence had been presented, the trial court, over defendant’s objection, allowed the complaint to be amended to include a count for negligence. The jury returned a verdict in open court in favor of the plaintiff and assessed damages as follows:

“We assess the damages in the sum of $1,705.99.”
“We assess punitive damages in the sum of $13,000.00.”

In answer to a special interrogatory, however, the jury found that Officer Meany was not guilty of wilful and wanton conduct. The trial judge accordingly entered judgment for plaintiff in the amount of $1,705.99. Plaintiff thereafter filed a post-trial motion supported by affidavits of 11 of the 12 jurors, 10 of which were notarized, asking the trial judge to enter a final order conforming the verdict to the intention of the jury to award $14,705.99 in compensatory damages, or in the alternative to reassemble the jurors and poll them regarding their intentions, or to enter an order for additur because of the inadequacy of the verdict, or to grant a new trial solely on the issue of damages. The trial judge denied all post-trial relief predicated on the jurors’ affidavits, and the appellate court in the First District, noting that its decision was in conflict with the Third District’s decision in Hunter v. Smallwood (1975), 28 Ill. App. 3d 386, affirmed (92 Ill. App. 3d 54). We allowed plaintiff’s petition for leave to appeal.

The collision occurred at an uncontrolled intersection in Chicago on a rainy afternoon. Plaintiff testified that she was proceeding south on Paulina, a one-way street, at approximately 20 miles per hour, with two passengers in the front seat, one her two-year-old daughter. When she approached 85th Street, she indicated that she slowed to less than 10 miles per hour, saw a squad car approximately 100 to 150 feet to her right proceeding east, and continued through the intersection. As she was more than half way through the intersection she stated that her passenger, Patricia Knox, screamed that they were going to be hit, and when she looked to her right the squad car was 10 to 20 feet away, traveling at 45 to 50 miles per hour. She pressed the accelerator and the impact occurred. Mrs. Knox corroborated this testimony. Neither of her passengers was injured. Plaintiff was able to drive home but was subsequently hospitalized for two weeks for neck, arm and back injuries. The extent and duration of her injuries which were caused by this accident were in dispute in part because plaintiff was involved in a subsequent automobile accident as a passenger in which she sustained similar injuries, and also because plaintiff was impeached by her doctor’s testimony and the medical reports. Plaintiff testified that she underwent a dilation and curettage procedure as a result of a miscarriage while she was hospitalized. However, the medical reports did not contain such information, and one of the treating physicians testified that in fact only a pap smear had been taken. There were also other discrepancies concerning her treatment and its length while she was hospitalized. She was released in good condition. She testified, however, that she was still suffering “ill effects” from both of the accidents.

Officer Meany’s testimony conflicted with plaintiff’s in several material respects. He stated that he was on an assignment in which he was following a driver who was involved in an accident while driving without a valid license. He indicated that he was proceeding east on 85th Street escorting the other driver to the station at about 15 miles per hour. He observed plaintiff’s car approach the intersection and swerve to the right to avoid hitting the car in front of him. He slammed on his brakes, and the impact occurred. He estimated his speed at five to eight miles per hour at the point of impact. There were minor discrepancies between his testimony at trial and that given in a previous deposition. Defendant introduced a photograph of the police vehicle which showed the damage to be minimal; the headlights were not broken and the grill was not damaged. There was only a slight dent to the left of the headlight.

In his closing arguments, plaintiff’s counsel asked the jury to return a verdict for $14,500, which he explained was the approximate total of medicalexpenses of $1,705.99 plus damages for the nature and extent of plaintiff’s injury, temporary disability, and pain and suffering. He made no reference to punitive damages.

The affidavits upon which plaintiff relies were sent to each member of the jury by plaintiff’s trial counsel following a conversation he had with individual jurors in which they allegedly indicated their mistake. In pertinent part, the affidavits stated:

“[I] t was the consensus of all members of the twelve person jury that the Plaintiff should receive the entire amount of $14,705.99 for medical expenses, nature, extent and duration of the injury, disability resulting from the injury and the pain and suffering experienced, and we were confused by the form of verdicts furnished to us and were unsure of how to return verdicts in accordance with our agreement; that we were uncertain if we could request communication with the presiding judge to obtain clarification of the instructions on how to return a verdict allowing recovery for the Plaintiff for medical expenses and compensatory damages; that since we did not request clarification we placed the $13,000.00 for compensatory damages in the blank reserved for punitive damages, believing it to mean damages for nature, extent and duration of the injury, disability resulting from the injury and pain and suffering experienced by the Plaintiff.”

Plaintiff contends on appeal that the trial court erred in either failing to correct the verdict or grant a new trial. We do not agree.

It is well established in this State, and almost universally recognized, that a jury may not impeach its verdict by affidavit or testimony which shows the motive, method or process by which the verdict was reached. (People v. Preston (1979), 76 Ill. 2d 274, 288; People v. Holmes (1978), 69 Ill. 2d 507, 511; see also People v. Tobe (1971), 49 Ill. 2d 538, 543; People v. Pulaski (1958), 15 Ill. 2d 291, 300; Smith v. Eames (1841), 4 Ill. (3 Scam.) 76, 81; Fed. R. Evid. 606(b).) Thus, it is impermissible to challenge a verdict following the jury’s discharge by explaining the basis for the jury’s findings (Smith v. Eames (1841), 4 Ill. (3 Scam.) 76, 81) or by asserting that the jury was mistaken (Suver v. O’Riley (1875), 80 Ill. 104). Plaintiff argues, however, that jurors’ affidavits are competent to correct an error in recordation in the nature of a clerical mistake. She relies primarily upon the Third District’s decision in Hunter v. Smallwood (1975), 28 Ill. App. 3d 386.

In Hunter, the court held that affidavits may be considered where the record itself shows that the jury is hopelessly confused or the affidavits tend to show that the verdict rendered and recorded was not the one agreed upon by the jurors. The record there indicated that the jury was confused by the verdict forms. Two lawsuits arising from an automobile accident were tried together and four forms of verdict, two for each claim, were submitted to the jury. Both drivers’ fathers, who were the owners of the vehicles involved, sought property damages. The jury had twice sought clarification of the verdict forms from the presiding judge, but the judge deemed it inappropriate to confer with the jury outside the presence of the attorneys and accordingly denied its request. The jury returned a verdict against the owner, Smallwood, in the first action, thereby denying recovery for damage to his vehicle, and against his son, the driver, in the second action, thereby allowing recovery to the other owner for the damage to his vehicle. The verdicts so rendered were therefore entirely consistent with each other.

The affidavits of four of the six jurors, including the foreman, were submitted to the trial judge in support of defendant Smallwood’s post-trial motion for judgment n.o.v. or a new trial. They stated that the jury was confused by the forms of verdict and intended to disallow recovery for property damage in either case. The appellate court, while conceding that it may be difficult to understand jury confusion on relatively simple verdict forms to the point of returning a verdict for $2,500 when it intended to deny recovery, nevertheless reversed and remanded for a new trial. Because no petition for leave to appeal was filed, we did not have the opportunity to review the precise holding in Hunter concerning jurors’ affidavits, but it does not appear to be in accord with our subsequent decisions. See People v. Preston (1979), 76 Ill. 2d 274; People v. Holmes (1978), 69 Ill. 2d 507, 511; see also Rizzi, The Period After Closing Arguments—An Important But Overlooked Part Of A Trial, 69 Ill. Bar J. 634 (1981).

There is no single rule among the States which governs the competency of affidavits to show that a verdict was not correctly recorded. (Annot., 18 A.L.R.3d 1132, 1135 (1968); 76 Am. Jur. 2d Trial sec. 1226 (1975).) While there is substantial authority supporting the view that such evidence may be received to show mistakes of a clerical nature (e.g., Rose v. Thau (1974), 45 App. Div. 2d 182, 357 N.Y.S.2d 201; Glennon v. Fisher (1932), 51 Idaho 732, 10 P.2d 294), many jurisdictions hold to the contrary (e.g., Roberts v. Kettelle (1976), 116 R.L 283, 356 A.2d 207; Ford Motor Credit Co. v. Amodt (1966), 29 Wis. 2d 441, 139 N.W.2d 6; see generally Annot., 18 A,L.R.3d 1132 (1966).) The only Illinois cases we have found in which a clerical mistake in recordation was considered are Loucks v. Pierce (1950), 341 Ill. App. 253, 257, wherein the court recognized such an exception to the general rule but did not have occasion to apply it, and Schwamb Lumber Co. v. Schaar (1901), 94 Ill. App. 544, wherein the court ordered a new trial upon unanimous affidavits from all jurors that they signed the wrong verdict form as a result of a mistake as to the parties.

An examination of the authorities allowing such evidence reveals a lack of consistency in defining the nature of a clerical error and in many cases the failure to distinguish between impeachment of the verdict itself by explaining the basis upon which the verdict was reached. (But see Bauer v. Kummer (1955), 244 Minn. 488, 70 N.W.2d 273 (wherein the court recognized the distinction).) Unanimity is one factor that tends to influence the courts toward viewing the error as a correctable recordation one rather than as one involving the jury’s deliberations which is not regarded as correctable because the attack is on grounds which inhere in the verdict itself. (See Annot., 18 A.L.R.3d 1132, 1136 n.12 (1968).) It is apparent to us that under the facts before us plaintiff seeks to impeach the verdict not because of a “clerical” mistake in recordation but because of the jury’s misapprehension of the instructions or the effect of their findings. This type of impeachment is clearly impermissible.

The authorities are in accord that the testimony or affidavits of jurors cannot be used to show that the jury misunderstood the instructions or the law (see 8 Wigmore, Evidence sec. 2349 (rev. ed. 1961) and cases cited therein), the effect of a particular finding or of their verdict (see 66 C.J.S. New Trial sec. 169(n) (1950); 76 Am. Jur. 2d Trial sec. 1220 (1975)). The meaning and effect of the verdict must be judged from its terms alone. “Hence, no statements by the jurors, either unanimously or individually can be resorted to for explaining or changing its mean ing or legal effect.” (8 Wigmore, Evidence sec. 2356, at 723 (rev. ed. 1961).) As Dean Wigmore explains:

“This must be so by virtue of the general principle that a legal act is to be construed by the words used in it and not by the private meaning or intention of the person uttering them. [Citation.] To resort to the jurors’ motives, beliefs or intentions would be to violate the general principle *** [8 Wigmore, Evidence sec. 2349 (rev. ed. 1961)] [that] the verdict as uttered is the sole embodiment of the jury’s act and must stand as such without regard to the motives or beliefs which have led up to its act [8 Wigmore, Evidence sec. 2349 (rev. ed. 1961)].”

The affidavits submitted by the plaintiff to the trial court in support of the post-trial motion state that the jury intended to award damages to the plaintiff for the nature, extent and duration of her injury, temporary disability, and pain and suffering, and that the dollar figure was placed in the punitive damage blank because the jury believed that such blank was reserved for this purpose. The effect of these affidavits, if recognized, is, of course, to impeach and change the legal effect of the jurors ’ verdict in direct contravention of the established rule. (8 Wigmore, Evidence sec. 2356 (rev. ed. 1961); People v. Preston (1979), 76 Ill. 2d 274, 288; People v. Holmes (1978), 69 Ill. 2d 507, 511.) That the jury may have misunderstood the meaning of the word “punitive” is unfortunate. Nevertheless, they had been instructed that if they found the defendant guilty of wilful and wanton conduct they could assess damages to punish the defendant “in addition to any damages” to which they found the plaintiff entitled. The jury answered the special interrogatory in favor of the defendant, thus precluding an award for punitive damages. If there was an error, it should have been discovered prior to the jury’s discharge, at which point the trial judge could have taken such action as might have been appropriate. Plaintiff had a right to poll the jurors. She cannot now substitute the affidavits of the jurors following her ex parte communication with them for the purpose of impeaching their verdict.

In view of the inconsistency between the jury’s special finding and the general verdict, the trial court correctly disallowed the award for punitive damages. (See Ill. Rev. Stat. 1977, ch. 110, par. 65; Albaugh v. Cooley (1981), 87 Ill. 2d 241.) For the reasons stated the post-trial relief predicated upon the affidavits of the jurors was correctly denied.

The judgment of the appellate court affirming the judgment of the circuit court of Cook County is accordingly affirmed.

Judgment affirmed.


author: JUSTICE CLARK

text:
    (No. 55018.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. SAMUEL ROTHERMEL, Appellee.

      Opinion filed January 21, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Rita F. Kennedy, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and G. Joseph Weller, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

On April 7, 1980, Samuel Rothermel was indicted by a Kankakee County grand jury. The bill of indictment charged that the defendant on March 23, 1980, “committed the offense of Burglary in that said defendant did knowingly without authority enter into the residence building of Barbara Goldsberry and Loretta Isaacs, with the intent to commit therein a theft, in violation of Paragraph 19—1(a), chapter 38, Illinois Revised Statutes.” The defendant entered a plea of not guilty, and the case proceeded to a jury trial. After all of the evidence had been presented the defense moved for a directed verdict on the grounds that the State had not proved that the building entered was the residence of Barbara Goldsberry and Loretta Isaacs. The motion was denied, and the case was submitted to the jury. A verdict of guilty was returned. Following the trial the defendant moved for a new trial or judgment notwithstanding the verdict. Those motions were denied. The appellate court reversed the defendant’s judgment of conviction for burglary entered in the circuit court of Kankakee County. (94 Ill. App. 3d 1205.) We granted the People’s petition for leave to appeal.

The evidence showed that the defendant entered into the residence of Opal Dillon, who lives at 159 North Jackson Street in Bradley, Illinois. Mrs. Dillon had been temporarily hospitalized at the time of the burglary and requested that her two daughters, Barbara Goldsberry and Loretta Isaacs, watch over her house at 159 North Jackson Street. Barbara Goldsberry would check on the house occasionally. Mrs. Goldsberry was in possession of a key to the house, had authority to enter and, the record indicates, did in fact enter the house on one occasion. Mrs. Dillon’s other daughter, Loretta Isaacs, went by the house daily to pick up her mother’s mail.

The issue before us is whether the variance between the indictment alleging entry into the residence of Mrs. Goldsberry and Mrs. Isaacs and the proof establishing Mrs. Dillon as the owner of the burglarized premises constitutes reversible error.

The prosecution must prove the essential elements of the charging instrument. Section 19—1 of the Criminal Code of 1961 sets forth the essential elements of burglary.

“Sec. 19—1. Burglary
(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building *** with intent to commit therein a felony or theft.” Ill. Rev. Stat. 1979, ch. 38, par. 19—1.

Ownership is not an element of the offense. Since our decision in People v. Gregory (1974), 59 Ill. 2d 111, it is clear that ownership need not be alleged. The gravamen of the crime charged against the defendant was not that the house broken and entered into belonged to Barbara Goldsberry and Loretta Isaacs, but rather that the defendant broke and entered into a building not his own with the intent to commit a felony or theft. (People v. Figgers (1962), 23 Ill. 2d 516, 519.) The evidence was more than sufficient to permit the jury to conclude beyond a reasonable doubt that the defendant was not the owner of the house in question. It is also true that the recitation of a street address in an indictment is not necessary. People v. Blanchett (1965), 33 Ill. 2d 527; People v. Reed (1965), 33 Ill. 2d 535, 539-40.

It is not contested that the instrument charging Samuel Rothermel with burglary was sufficiently particular in alleging that the defendant had no authority to enter the house and possessed the requisite intent to commit the burglary. The question then becomes: Did the inaccurate allegation of ownership defeat this indictment? The answer hinges on a determination of whether the defendant was sufficiently informed of the charge against him. See People v. Johnson (1960), 20 Ill. 2d 336; People v. Pruden (1975), 25 Ill. App. 3d 47.

An allegation of ownership was at one time indispensable in charging burglary. (People v. Picard (1918), 284 Ill. 588, 591; People v. Walker (1955), 7 Ill. 2d 158, 161; People v. Mosby (1962), 25 Ill. 2d 400.) The court, however, began to recognize that the requirement of ownership had become “an empty formality.” (People v. Stewart (1961), 23 Ill. 2d 161, 168.) Failure to allege ownership no longer bars a conviction as long as the defendant was not harmed in preparing a defense. (People v. Gregory (1974), 59 Ill. 2d 111; People v. Bailey (1980), 80 Ill. App. 3d 242; People v. Viar (1971), 131 Ill. App. 2d 983; People v. Baker (1975), 33 Ill. App. 3d 898.) Our courts have previously held that, in lieu of proving ownership, the right to possession and occupancy in another must be shown as against the accused. (People v. Foster (1964), 30 Ill. 2d 106; People v. Lymore (1962), 25 Ill. 2d 305, 307; In re G.L. (1979), 73 Ill. App. 3d 467, 470; People v. Apple (1968), 91 Ill. App. 2d 269; People v. Collins (1970), 123 Ill. App. 2d 138.) The requirement of ownership was further modified so that occupancy or possession of the premises had to be alleged in someone other than the accused. (People v. Whittaker (1970), 45 Ill. 2d 491; People v. Griffin (1973), 16 Ill. App. 3d 355.) In In re W.S. (1980), 81 Ill. 2d 252, this court found the requirement of proving the corporate existence of the owner to be unnecessary. Upholding a theft offense, the court said that “*** it need only be shown that someone other than the accused possessed or held an interest in the property ***.” 81 Ill. 2d 252, 257.

The purpose of alleging a possessory interest is threefold. First, it enables the accused to prepare for trial. Second, it allows the defendant to plead a former acquittal or conviction and protect him from a second prosecution under the indictment. Thirdly, it establishes a superior interest in the premises in someone other than the defendant. See People v. Johnson (1960), 20 Ill. 2d 336; People v. Viar (1971), 131 Ill. App. 2d 983; People v. Collins (1970), 123 Ill. App. 2d 138; People v. Whittaker (1970), 45 Ill. 2d 491; People v. Peck (1963), 29 Ill. 2d 480.

In People v. Tate (1981), 87 Ill. 2d 134, one of the counts on which the defendant was convicted was criminal damage to property. In upholding that conviction we took note of the relaxation of the requirements as to proof of ownership and went on to hold that a security guard employed by a Convenient Food Mart had a possessory interest in the premises. (87 Ill. 2d 134, 150.) Tate is a good example of how liberally the boundaries have come to be construed.

The defendant is not aided by a rigid insistence on artificial allegations. (People v. Whittaker (1970), 45 Ill. 2d 491; People v. Peck (1963), 29 Ill. 2d 480.) A possessory interest for the purposes of describing a criminal violation is not the same as a possessory interest as defined by traditional property law standards. (4 G. Thompson, Real Property sec. 1770 et seq. (repl. ed. 1979); R. Brown, Personal Property sec. 1.5 (3d ed. 1975).) We have moved away from defining a possessory interest in the criminal law context as having a real or personal interest in property to a definition that requires only that the interest be greater than that of the defendant. Barbara Goldsberry’s possession of the key to the premises at 159 Jackson Street is sufficient to demonstrate that her interest was greater than that of the defendant. The allegation as to Loretta Isaacs is mere surplus. That surplusage will not defeat the validity of this criminal conviction. See People v. Moore (1938), 368 Ill. 2d 455.

Any accused individual has a right to know the nature and cause of the accusation against him. (People v. Clark (1965), 59 Ill. App. 2d 160, 161.) The indictment charging Samuel Rothermel was inartfully drafted, but the record reveals that the defendant was fully apprised of the charge against him. That is not to say that another accused who appears to be similarly situated will be presumed to be aware of the particulars of the charge against him. This defendant was aware that the premises he was accused of burglarizing was the house of Opal Dillon at 159 Jackson Street. He was not taken by surprise. One of the accused’s defenses was entrapment. This was indicated in a pretrial report filed pursuant to Supreme Court Rule 413(d) (73 Ill. 2d R. 413(d)). It is incongruous for the defendant to indicate he will assert a defense of entrapment and now assert that he was prejudiced in the preparation of his defense because an inaccurate indictment failed to adequately identify the alleged burglarized premises. Moreover, the defendant is not risking double jeopardy. The address of the burglarized premises is clearly established in the record. The introduction of that testimony can be admitted in any subsequent prosecution as parol evidence, should it become necessary to show his defense of prior jeopardy. People v. King (1964), 50 Ill. App. 2d 421.

Since the accused here was able to adequately prepare for trial and will not be exposed to a second prosecution for the same burglary, the variance of “ownership” between the indictment and proof was not fatal and will not vitiate the defendant’s trial. The indictment charged this defendant with the offense of burglary. It was not technically correct. It was, however, sufficient. The accused was not harmed. While the variance at issue was not negligible, neither was it material. It does not constitute reversible error.

The judgment of the appellate court is reversed. The judgment of the circuit court of Kankakee County is affirmed.

Appellate court reversed; circuit court affirmed.


author: JUSTICE MORAN

text:
    (No. 54500.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ARNOLD BICKHAM, Appellee.

      Opinion filed January 21, 1982.

      SIMON, J., took no part.
    Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, and Marcia B. Orr and Iris E. Sholder, Assistant State’s Attorneys, of counsel), for the People.
    Mitchell, Hall, Jones & Black, of Chicago (Aldus Mitchell, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

On January 26, 1979, the circuit court of Cook County found Dr. Arnold Bickham (respondent) in contempt of court for failure to comply with two subpoenas duces tecum issued by the November 1978 grand jury. The court ordered respondent incarcerated until he purged himself of contempt and then stayed the order pending appeal. The appellate court affirmed, but modified the order, holding respondent in contempt of court only for failure to comply with one of the subpoenas, No. 208, which requested the medical records of Sherry Emry. It held that the information sought by the other subpoena, No. 200, did not fall within the exceptions contained in section 5.1(2) and (6) of “An Act in regard to evidence and depositions” (Act) (Ill. Rev. Stat. 1979, ch. 51, pars. 5.1(2), (6)). (90 Ill. App. 3d 897.) The State was granted leave to appeal.

Section 5.1 of the Act provides:

“No physician or surgeon shall be permitted to disclose any information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient, except only *** (2) in actions, civil or criminal, against the physician for malpractice, (3) with the expressed consent of the patient, or in case of his death or disability, of his personal representative *** (6) in any criminal action where the charge is either murder by abortion, attempted abortion or abortion ***.”

The sole issue on appeal is whether exception (2) or (6) in section 5.1 of the Act, commonly referred to as the physician-patient privilege, requires respondent to comply with grand jury subpoena No. 200.

The facts were set forth by the appellate court and will be repeated only to the extent they relate to the issue before us. The grand jury issued two subpoenas requesting that respondent, as president of the Water Tower Reproductive Center, Ltd. (Water Tower), produce medical records with respect to 63 women. Subpoena 200 listed 62 patients treated at Water Tower between August 26, 1978, and October 21, 1978. Subpoena 208 sought the medical records of Sherry Emry. The State obtained a waiver of privilege executed by the administratrix of Ms. Emry’s estate. Water Tower filed a motion to quash the subpoenas, asserting that the medical records were the personal property of respondent and that he was protected under the fifth amendment privilege as well as the physician-patient privilege. At the conclusion of the hearing on the motion to quash, the trial court, in order to determine if any privilege was applicable, ordered respondent to tender the medical records for an in-camera inspection. Respondent refused to comply with this order.

The State then filed a petition for a rule to show cause why respondent should not be held in contempt of court. At the conclusion of the hearing on the petition, the court ruled that the records belonged to Water Tower, not the respondent individually, and ordered that respondent comply with the subpoenas duces tecum. Upon his refusal, he was held in contempt of court.

On appeal, the appellate court held that the subpoenaed records were the property of Water Tower and that respondent, therefore, was prevented from invoking the fifth amendment privilege against self-incrimination. The court also found that due to the waiver by the personal representative of Sherry Emry’s estate, respondent could not assert the physician-patient privilege with respect to subpoena 208 and that he was properly held in contempt for refusing to produce her records. The appellate court found, however, that the exceptions to the physician-patient privilege for criminal actions involving malpractice or abortion were not applicable with respect to subpoena 200, and respondent should not be held in contempt for refusing to provide the grand jury with the medical records of the 62 patients listed in that subpoena. It is from this portion of the appellate court opinion that the State appeals.

According to the State, exceptions (2) and (6) to the physician-patient privilege are applicable in the instant case. Inasmuch as there is no criminal offense of “malpractice,” the State interprets exception (2) to mean conduct in relation to any aspect of a physician’s practice. The State further asserts that the information sought by subpoena 200 was in connection with a criminal investigation regarding respondent’s practice and, hence, exception (2) was applicable.

We note initially the awkward verbiage of exception (2) referring to a criminal action for malpractice which, as the State points out, is not a criminal offense. Yet, if the State’s interpretation were to be adopted, it would eviscerate subsection (6), which sets forth as an exception to the privilege criminal actions against a physician where the charge is murder by abortion, attempted abortion or abortion. That is, if exception (2) referred to a criminal action regarding any aspect relating to a physician’s practice, there would be no need for the legislature to delineate specific offenses in subsection (6).

Even if we presume the State’s interpretation as to the meaning of exception (2) to be correct, the record does not reveal a criminal investigation into respondent’s medical practice. The State argues that statements made by respondent during the course of the hearings implicitly indicated his knowledge of a criminal investigation regarding his medical practice. We have reviewed the statements pointed out by the State and find that they do not reveal respondent knew a criminal investigation relating to his “criminal malpractice” or relating to an abortion charge was being conducted. Moreover, as the State concedes, the subpoenas did not state that a criminal complaint had been filed- against respondent or that a criminal investigation was being conducted into his medical practice. The subpoenas on their face could have explicitly stated the nature of the investigation being undertaken. Yet, the subpoenas merely stated that a complaint was made before the grand jury against “John Doe.” Further, the purpose of the investigation was not revealed during the hearings before the trial court. Compare People v. Dorr (1970), 47 Ill. 2d 458, 459, cert. denied (1971), 402 U.S. 929, 28 L. Ed. 2d 863, 91 S. Ct. 1527, People v. Ryan (1951), 410 Ill. 486, 492, and People v. Allen (1951), 410 Ill. 508, 517-18, where the purpose of the grand jury investigation was revealed.

This court has recognized the desirability in maintaining the breadth of the grand jury’s power to conduct investigations regarding criminal violations. (People v. Dorr (1970), 47 Ill. 2d 458, 462, cert. denied (1971), 402 U.S. 929, 28 L. Ed. 2d 863, 91 S. Ct. 1527. See United States v. Calandra (1974), 414 U.S. 338, 344, 38 L. Ed. 2d 561, 569, 94 S. Ct. 613, 618; Branzburg v. Hayes (1972), 408 U.S. 665, 700, 33 L. Ed. 2d 626, 650, 92 S. Ct. 2646, 2666.) The legislature, on the other hand, has recognized the patient’s interest in maintaining confidentiality in his or her medical dealings with a physician, and enacted the physician-patient privilege in section 5.1 of the Act. We acknowledge that the privilege should not be used as a shield by the physician; rather, it is for the benefit of the patient. Yet, it is certainly reasonable to presume that the 62 women named in subpoena 200 obtained medical care with the expectation that their medical records would remain confidential.

We agree with the appellate court that without a showing that a criminal action relating to malpractice or abortion is involved, exceptions (2) and (6) to the statutory physician-patient privilege are not applicable. Inasmuch as the record fails to establish the necessary showing, we hold that in the instant case exceptions (2) and (6) to the physician-patient privilege do not compel respondent to comply with subpoena No. 200.

We note that the grand jury has been supplied with the names of the 62 women whose records it is seeking. There has been no consent for disclosure of medical records by any of the 62 women, as there was by the personal representative of the estate of Sherry Emry. As the appellate court observed, if the State obtains expressed consent from these women, whose identities it knows, exception (3) to the physician-patient privilege would be applicable. Respondent then could be compelled to produce their medical records.

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

Judgment affirmed.

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


text:
    (No. 55231.

      In re HERMAN FELDMAN, Attorney, Respondent.

      Opinion filed January 21, 1982.

      Charles S. Morgan, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    George B. Collins, of Collins & Amos, of Chicago, for respondent.
   JUSTICE MORAN

delivered the opinion of the court:

The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint charging respondent, Herman Feldman, with professional misconduct. The Hearing Board recommended that he be suspended from the practice of law for one year. The Administrator filed exceptions with the Review Board, suggesting that respondent be suspended for two years and until further order of court. The Review Board filed a report in which it recommended that respondent be disbarred.

The issue to be determined is what, if any, sanction should be imposed under the circumstances of this case.

The facts are not in dispute. Respondent has been a sole practitioner in the general field of law for approximately 32 years. In 1974 and 1975, he served as administrator of the Koleff estate. While acting in that capacity, he converted estate money to fund a personal real estate transaction. The sum converted is not disclosed in the record. The investment eventually failed, and respondent was unable to repay the estate.

Subsequently, respondent was retained as the attorney for Genevive Michalski, the administrator for the estate of Theodore Ziemba. In 1979, he forged his client’s signature on at least nine checks, totaling approximately $29,400. Respondent converted these funds in order to repay the existing shortage in the Koleff estate, so as to permit the closing of that estate. However, he advised Mrs. Michalski that the funds had been deposited in an interest-bearing savings account, pursuant to her directions. When she discovered the defalcations she confronted the respondent, who admitted that he wrongfully signed her name to the checks. He subsequently obtained a loan, the proceeds of which were used to repay, without interest, the Ziemba estate. The loan was procured prior to the instant disciplinary hearing.

Mrs. Michalski reported the matter to the Administrator’s office. A copy of the complaint was forwarded to the respondent, and he initially denied the charges. At the hearing, however, he admitted his guilt.

Respondent, by his own admissions, converted funds from two estates for his own personal use and benefit. It has been held that the wrongful conversion of funds is “an act involving moral turpitude, and, in the absence of mitigating circumstances, such conversion is a gross violation of the attorney’s oath, calling for the attorney’s disbarment.” (In re Stillo (1977), 68 Ill. 2d 49, 54.) Adverse circumstances, whether emotional or financial, will not absolve the attorney. In re Smith (1976), 63 Ill. 2d 250, 255.

Respondent concedes that discipline is warranted, but suggests that suspension from the practice of law for one year is appropriate. This is the sanction recommended by the Hearing Board, which he asserts is entitled to great weight.

A hearing panel’s recommendation is accorded substantially the same weight as that of any trier of fact with respect to the resolution of factual matters. (In re Hopper (1981), 85 Ill. 2d 318, 323.) However, the facts in this case are not controverted. Therefore, there is no question with respect to the witnesses’ credibility, or whether in fact respondent is guilty as charged. As noted earlier, respondent has admitted his guilt. The only issue concerns the sanction to be imposed, and “when it comes to imposing discipline, the final responsibility rests with this court.” (85 Ill. 2d 318, 323; In re Sherman (1975), 60 Ill. 2d 590, 593.) Further, where the factual issues are undisputed, the Review Board is as capable as the hearing panel of assessing and recommending appropriate discipline. Therefore, its recommendation that respondent be disbarred is also entitled to consideration. See 85 Ill. 2d 318, 323.

When disciplinary action is warranted, the sanctions which may be imposed include censure, suspension and disbarment. In determining the proper sanction each case is considered unique, and the court must look to all the facts and circumstances. Nevertheless, where the facts are similar to those in other cases, a uniform standard of discipline should be sought. In re Clayter (1980), 78 Ill. 2d 276, 283.

The conversion of funds is conduct which involves a grievous departure from an attorney’s ethical obligations. ‘“Other offenses might be excused, but conversion to his own use of the property of his client is an offense that cannot in any degree be countenanced.’” (In re Stillo (1977), 68 Ill. 2d 49, 54, quoting People ex rel. Black v. Smith (1919), 290 Ill. 241, 251.) Such misconduct manifests a serious breach of trust, and “tends to defeat the administration of justice and to bring the legal profession into disrepute.” (In re Fumo (1972), 52 Ill. 2d 307, 311.) For these reasons, there is no question that the offense of conversion is sufficient to justify disbarment. (E.g., In re Stillo (1977), 68 Ill. 2d 49; see In re Snitoff (1972), 53 Ill. 2d 50.) This sanction has been imposed in situations involving similar or less flagrant misconduct than that found in the instant case.

In In re Stillo (1977), 68 Ill. 2d 49, a complaint was filed against respondent in which he was charged, in count I, with failing to repay $10,000 borrowed from a client. Count II alleged that respondent converted another client’s funds, in that he settled her claim for $1,350 and failed to submit to her the proceeds of the settlement. Instead, he forged her endorsement on the check and subsequently deposited it in his own bank account. Following an investigation by the Inquiry Board, respondent paid his client the settlement amount, plus $150 in interest for the delay in payment. This court adopted the recommendations of the Review Board and ordered that respondent be disbarred.

The amount converted in Stillo was far less than the sum involved in the instant case. Further, the attorney had converted funds on only one occasion. In the case at bar, respondent forged one client’s signature on at least nine checks, and had previously converted the estate funds of a different client.

In In re Smith (1976), 63 Ill. 2d 250, respondent settled his client’s case for $69,000, and, with his client’s consent, deposited the entire amount in his own personal bank account. Subsequently, and without authorization, respondent used the funds for his personal benefit. Only $9,000 of the proceeds were forwarded to his client. He refused to turn over the remaining settlement proceeds until the commencement of the disciplinary proceedings, at which time he repaid his client in full. Despite respondent’s assertions of mitigating circumstances, and the fact that he extracted money from only one client, this court ordered that respondent be disbarred. It found this sanction necessary “to safeguard the public, maintain the integrity of the legal profession and to protect the administration of justice from reproach.” See 63 Ill. 2d 250, 256.

In In re Snitoff (1972), 53 Ill. 2d 50, respondent in five instances drew worthless checks in favor of certain clients, presenting such checks as proceeds from personal injury settlements. In another instance, he failed to remit the full amount to which the client was entitled. Further, respondent commingled a client’s money with his own, and failed to promptly account for the amount due. Although the court recognized that the amounts involved “were relatively modest” (53 Ill. 2d 50, 54), it nevertheless held that a judgment of disbarment was warranted. As in the case at bar, the respondent “unprofessionally preferred his own affairs above those of clients, to whom he owed an unqualified fidelity and candor.” 53 Ill. 2d 50, 54-55.

Respondent asserts that, due to mitigating circumstances, disbarment is not justified in this case. He emphasizes that this is the first instance in which he has been charged with professional misconduct. However, the wrong committed does not constitute an isolated incident. Rather, respondent has manifested a pattern of behavior which clearly tends to bring the legal profession into disrepute. Nor are we persuaded by the fact that he made full restitution of the funds converted, albeit without interest. It has been consistently held that restitution will not excuse the improper conduct. (E.g., In re Sherman (1975), 60 Ill. 2d 590, 593.) Respondent further points out that witnesses attested to his good character and trustworthiness. This evidence may be considered along with the other facts of the case, “but it is not sufficient to overcome any positive facts evidenced by the record.” (In re Melin (1951), 410 Ill. 332, 335.) Finally, although respondent admitted his guilt during the hearing, the evidence was such that he could not seriously deny the charges, as he initially did.

In comporting with the requirements of fundamental fairness (In re Costigan (1976), 63 Ill. 2d 230, 236), we have balanced these circumstances against defendant’s flagrant violations of his professional duty. We hold that, in adhering to a uniform standard of discipline, the facts of this case justify an order of disbarment. This sanction is particularly warranted since the conversion and fraud involved were intentional and consisted of a series of improper acts over an extended period of time. (In re Fumo (1972), 52 Ill. 2d 307, 310.) “We cannot permit this respondent to continue the practice of law, and thus invite the public to retain the purported services of one to whom the common obligations of his profession mean so little.” In re Clark (1956), 8 Ill. 2d 314, 321.

Accordingly, it is ordered that respondent be disbarred from the practice of law.

Respondent disbarred.