author: MR. JUSTICE WARD MR. JUSTICE SIMON,

text:
    (No. 53353.
    MAX D. McCORMICK, Appellee, v. CATERPILLAR TRACTOR CO. et al. (Caterpillar Tractor Co., Appellant).

      Opinion filed June 26, 1981.

      Westervelt, Johnson, Nicoll 8c Keller, of Peoria (Wayne L. Hanold and J effrey W. Jackson, of counsel), for appellant.
    Jerome Mirza, of Bloomington, for appellee.
    Douglas B. Stevenson, of Rooks, Pitts, Fullagar & Poust, of Chicago, for amicus curiae Illinois Manufacturers’ Association.
   MR. JUSTICE WARD

delivered the opinion of the court:

On January 16, 1976, Max McCormick injured his left foot during the course of his employment at the Caterpillar Tractor Company in Peoria. He was first treated at the plant by Dr. M. E. Godby, who was one of a number of licensed physicians employed by Caterpillar Tractor on a full-time basis. After concluding from an X-ray examination that McCormick’s left foot was not fractured, Dr. Godby attributed the swelling and tenderness in the foot to a strain. He told the claimant to return to work and also instructed him to wrap the foot and apply ice to it. On February 9, McCormick returned to the main medical-treatment room of the company, where the foot was examined by Dr. L. B. Patalinghug, another physician employed by the respondent. The left foot was still swollen in the region of the second and third metatarsal bones, and Dr. Patalinghug prescribed whirlpool treatments and told McCormick to return to work.

One week later, he again returned to the treatment room, complaining of aggravated swelling in his foot, and was seen by Dr. M. T. Neu, another company physician. Dr. Neu was of the opinion that the slowness in healing was due to continued stress from walking and similar activities. He, nevertheless, directed the claimant to wrap his foot with an elastic bandage and return to duty.

The pain and swelling did not subside, and on February 23, McCormick returned to the main treatment room, where he was treated by Dr. Patalinghug. Upon detecting an increase in the skin temperature at the swollen portion of the left foot, she referred McCormick to Dr. Flaherty. His examination disclosed a stress fracture of the second and third metatarsal bones of the left foot. McCormick filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), and the Industrial Commission made an award in favor of McCormick for 25% permanent loss of use of his left foot.

Subsequent to the entry of this award, McCormick filed two lawsuits in the circuit court of McLean County, which were later consolidated. The suits named as defendants Caterpillar Tractor and Drs. Neu, Godby, and Patalinghug and alleged negligence in the diagnosis and treatment of McCormick’s injury. The court allowed a motion to dismiss as to Caterpillar Tractor and Dr. Neu and granted a motion for summary judgment as to Drs. Godby and Patalinghug. The appellate court, with one judge dissenting (82 Ill. App. 3d 77), held that the exclusive-remedy provision of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a)) did not bar a common law suit in tort against Caterpillar Tractor. Citing this court’s decision in Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, and Duprey v. Shane (1952), 39 Cal. 2d 781, 249 P.2d 8, the court held that by furnishing medical services to its employees directly rather than having them provided at outside facilities by private medical personnel, Caterpillar Tractor subjected itself to tort liability under the “dual capacity” doctrine. The court held, too, that the exclusive-remedy provision of the compensation act, as applied to co-employees, could not be “abrogated” by the doctrine, and it affirmed the dismissal of the suit against Drs. Neu, Godby, and Patalinghug. We granted Caterpillar Tractor’s petition for leave to appeal. 73 Ill. 2d R. 315(a).

The question for us is whether an employee whose injury arose out of and in the course of employment is barred by the exclusive-remedy provision of the Workmen’s Compensation Act from recovering damages in a negligence action against the employer-company for aggravated injuries sustained in medical treatment by employees of the same company.

The design underlying the Workmen’s Compensation Act was that the cost of industrial injuries should be borne by industry and not by the injured employee or by the general public. Thus our act provides that if an employee’s injury arises out of and in the course of employment it is compensable, and questions of negligence, contributory negligence, and assumption of risk are not to be considered. Balanced against the imposition of no-fault liability upon the employer are statutory limitations upon the amount of the employee’s recovery, depending upon the character and the extent of the injury. As part of this “balancing,” the Act further provides that the statutory remedies under it shall serve as the employee’s exclusive remedy if he sustains a compensable injury.

Section 5(a) of the Act provides:

“No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee *** other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or anyone otherwise entitled to recover damages for such injury.” Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a).

Section 11 of the Act states:

“The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and whose election to continue under this Act, has not been nullified by any action of his employees as provided for in this Act.” Ill. Rev. Stat. 1977, ch. 48, par. 138.11.

In relatively recent years an exception to the exclusive-remedy provision of the Workmen’s Compensation Act has developed under what has come to be called the dual-capacity doctrine. Professor Larson, in his treatise on Workmen’s Compensation Laws states: “Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.” (2A A. Larson, Workmen’s Compensation sec. 72.80, at 14 — 112 (1976).) The doctrine of dual capacity was applied by this court in Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313.

Under the circumstances here the doctrine will not permit the plaintiff to maintain a negligence action against the employer. The decisive test to determine if the dual-capacity doctrine is invocable is not whether the second function or capacity of the employer is different and separate from the first. Rather, the test is whether the employer’s conduct in the second role or capacity has generated obligations that are unrelated to those flowing from the company’s or individual’s first role as an employer. If the obligations are related, the doctrine is not applicable.

Our workmen’s compensation act requires that an employer “provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a).) The respondent here, in providing medical services to its employees, was meeting a duty imposed upon it as an employer under the Workmen’s Compensation Act. That it chose to provide the services directly rather than through physicians hired independently does not alter the fact that medical services were rendered in response to the Act in its capacity as an employer. Larson states that it is clear that dual capacity will not be found simply because an employer has a number of departments with separate functions and operations. 2A A. Larson, Workmen’s Compensation sec. 72.80 (1976).

The majority of the appellate court panel in this case relied strongly on Duprey v. Shane (1952), 39 Cal. 2d 781, 249 P.2d 8. There the plaintiff was employed as a practical nurse at her employer’s clinic and was injured in the handling of a patient. She was treated by her employer, Dr. Shane, a chiropractor, and another chiropractor employed by him. She later filed a personal injury suit against both chiropractors, whose treatments, she claimed, had aggravated her injury. The court held that her suit was not barred by the exclusive-remedy provision in California’s workmen’s compensation act. Upon first observing that a compensation award would not bar a personal injury suit against an independent physician engaged by an insurance company, the court stated: “ [I] t would seem to follow that the employee does not lose his right to such an action simply because the employer who happens to be a doctor treats the injury. In such event, the employer-doctor is a ‘person other than an employer’ within the meaning of *** [.the] Labor Code. *** In treating the injury Dr. Shane did not do so because of the employer-employee relationship, but did so as an attending doctor, and his relationship to *** [plaintiff] was that of doctor and patient.” (39 Cal. 2d 781, 793, 249 P.2d 8, 15.) Here Caterpillar Tractor provided treatment on the basis of the employer-employee relationship and not as a treating physician.

We would observe also that in Dixon v. Ford Motor Co. (1975), 53 Cal. App. 3d 499, 507, 125 Cal. Rptr. 872, 877, it was said that California courts, in decisions subsequent to Duprey v. Shane, refused to extend its doctrine to different factual contexts. The court cited a treatise on workmen’s compensation laws in California to the effect that “ ‘The Duprey case represented a unique situation in which the employer was also a doctor. Subsequent attempts to extend its holding were unsuccessful.’ ”

The circumstances in Dixon strongly resemble those here. A widow brought a wrongful death action against the Ford Motor Company and two employees of its medical staff for what she claimed was negligent treatment of her husband in the employer’s first-aid station, which she said caused her husband’s death. The court held that the dual-capacity doctrine was inapplicable and that the exclusive remedy was under the workmen’s compensation statute. Among the cases cited by the court was Deauville v. Hall (1961), 188 Cal. App. 2d 535, 10 Cal. Rptr. 511. There, where an employer had furnished medical treatment to an injured employee, it was claimed that the employee should be permitted to file an independent action where his original compensable injury “was aggravated by the carelessness of an unqualified doctor” and that the negligence of other medical personnel in diagnosing the employee’s injury “[gave the employer] a status separate and apart from that of the employer ***.” (188 Cal. App. 2d 535, 540, 10 Cal. Rptr. 511, 514.) The court rejected this argument and, in holding that the workmen’s compensation act provided the claimant’s exclusive remedy, stated that “there is nothing in the Act or the authorities to warrant an action in a court of law against an employer for the latter’s negligence in providing *** medical treatment.” 188 Cal. App. 2d 535, 540-41, 10 Cal. Rptr. 511, 514.

Also, in Trotter v. Litton Systems, Inc. (Miss. 1979), 370 So. 2d 244, the Supreme Court of Mississippi held that an employer could not be liable under the dual-capacity doctrine for the negligence of employees at its first-aid station in treating an employee’s industrial injury. The court rejected the claim that under Duprey the plaintiff could recover and, in holding that the exclusive-remedy provision of the workmen’s compensation statute precluded the plaintiff’s recovery, cited Dixon v. Ford Motor Co. The court relied too on Warwick v. Hudson Pulp & Paper Co. (Fla. App. 1974), 303 So. 2d 701, in which the court refused to allow, under the dual-capacity doctrine, a recovery for the alleged negligence of staff nurses, employed by the company, who had treated the employee’s industrial injury in the company’s clinic.

For the reasons given, we hold that the Workmen’s Compensation Act provided the sole means of recovery for the plaintiff’s compensable industrial injury. That portion of the judgment of the appellate court which held that Caterpillar Tractor could be sued under the dual-capacity doctrine is reversed. Since no petition for leave to appeal was filed as to the appellate court’s affirmance of the circuit court of McLean County’s action dismissing the plaintiff’s suits as to Drs. Neu, Godby, and Patalinghug, there is no question before us as to them.

Appellate court affirmed in part and reversed in part; circuit court affirmed.

MR. JUSTICE SIMON,

dissenting:

I dissent because I take a view different from that of the majority of Caterpillar’s role in the malpractice that aggravated McCormick’s original injury. My appraisal is that Caterpillar’s conduct in employing doctors to provide medical services generated obligations other than those flowing from Caterpillar’s role as McCormick’s employer. I believe the dual-capacity exception to the exclusive-remedy provision of the Workmen’s Compensation Act should apply.

It is significant to point out that when McCormick went to Caterpillar’s doctors for treatment the relationship was entirely voluntary. Caterpillar and McCormick had an employment relationship; then, separately, McCormick and the doctors entered a patient-doctor relationship.

Caterpillar did not have to employ doctors of its own to treat McCormick. Its duty was only to make sure that adequate treatment was available; it could have brought in doctors as independent contractors, or referred McCormick to outside doctors.

“The medical treatment of injuries is a separate and distinct function *** which does not concern the employer and is not part of the employer’s business operations.” (Tropiano v. Travelers Insurance Co. (1974), 455 Pa. 360, 363, 319 A.2d 426, 427.)
“There is nothing in the Workmen’s Compensation Act which requires a compensation carrier, any more than an employer, to maintain and operate a clinic. ***
* * *
[The defendant] would avoid the realities of the case. It was under no statutory or other obligation to run a clinic. Since it undertook to do so, it had the unquestioned duty of exercising reasonable care (the same standard as would be applicable to any other clinic or hospital facility) ***.” Mager v. United Hospitals (1965), 88 N.J. Super. 421, 427-29, 212 A.2d 664, 667-68, adopted by supreme court (1966), 46 NJ. 398, 217 A.2d 325.

More significantly, McCormick did not have to go to the Caterpillar clinic. Section 8(a) of the Workmen’s Compensation Act allowed him to go to any doctor he chose, and to send Caterpillar the bill. Ill. Rev. Stat. 1975, ch. 48, par. 138.8(a).

There was no medical urgency; the injury could have been treated elsewhere. Even on McCormick’s first visit, there was evidence that the injury was not treated for several hours. McCormick returned to the clinic at intervals for more than a month, working and generally getting around in the meanwhile.

Thus, the only reason McCormick was treated by Caterpillar doctors was that the employer chose to offer medical services through its own doctors and McCormick went to the company clinic for treatment. There was, of course, a doctor-patient relationship between the Caterpillar doctors and McCormick, just as between any doctor and patient. This relationship had to be voluntarily assumed by both sides; it did not just naturally grow out of the employment and the work-related injury.

The majority’s cases may be distinguished along these lines. Under Mississippi (Trotter v. Litton Systems, Inc. (Miss. 1979), 370 So. 2d 244) and Florida (Warwick v. Hudson Pulp & Paper Co. (Fla. App. 1974), 303 So. 2d 701) law, as Trotter stresses, the employer has the right to choose the doctor; if the injured employee goes to his own, he pays his own bill. The connection between the doctor and the employer is therefore closer than is required in Illinois. (Cf. Vesel v. Jardine Mining Co. (1940), 110 Mont. 82, 104-05, 100 P.2d 75, 85 (distinguishing States that require the employer to furnish medical aid from Montana, which does not).) A close connection between medical treatment and employment may also be provided by medical urgency. If the employee is seriously injured so that he requires immediate attention, he may have no chance to leave the employment setting, and the employer may have no chance to call in an outside doctor. First aid must be provided by someone who is always available, often probably an employee, and often not a doctor. When the victim’s condition is aggravated because the person responsible for first aid does not realize the seriousness of the injury or sends him to an incompetent doctor (Deauville v. Hall (1961), 188 Cal. App. 2d 535, 10 Cal. Rptr. 511) or slouches at his desk, smoking and reading (Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229), the essence of the plaintiff’s complaint is that the employer failed to provide necessary medical care — failed, that is, to discharge a duty imposed on it as an employer, by the Act. A stranger, even if a doctor, is not required to provide first aid or maintain a list of competent doctors. Here, in contrast, the complaint is that the employer breached a duty owed by every doctor to every patient, a duty imposed neither by the Act nor by the employment relationship, but assumed by Caterpillar when it decided to provide medical services.

McCormick’s malpractice claim and his compensation claim are not only different legal theories, different ways of talking about the same claim. The malpractice claim is based on a second injury, a distinct event, an obviously separate nexus of facts. Caterpillar is hable for McCormick’s aggravated injury in two ways: it is liable for the original injury even as aggravated, and it is liable for aggravation. Caterpillar was responsible, under the compensation act, for the effects of the initial work-related accident no matter how the first injuries might be aggravated, much as at common law the tortfeasor is responsible for all proximate results of the tort including aggravation by imperfect medical care. That responsibility did not depend on how the aggravation came about; Caterpillar would have been responsible if McCormick aggravated his injuries by falling while getting out of bed (G.H. Hammond Co. v. Industrial Com. (1919), 288 Ill. 262) or stumbling on the street near his house (Bailey v. Industrial Com. (1919), 286 Ill. 623). But also, Caterpillar may be liable like anyone else if it actually causes the aggravation by its negligence, or its servants’ negligence. Does the employer’s immunity from a tort suit for the original accident carry over to its later conduct in aggravating the injury?

The frequently cited decision in Duprey v. Shane (1952), 39 Cal. 2d 781, 249 P.2d 8, holds that it may not. Because the first injury was work related does not mean that the aggravation, as such, is also work related. As one court said, in allowing a tort action against a compensation insurer:

“The suggestion that runs through the insurer’s argument *** is that what happened at the clinic was nothing more than a sequel to the original work-connected injury. [The defendant’s] brief refers to the sequelae as an ‘aggravation’ of the original injury. This is merely another way of seeking the protection of the employer’s liability, limited as it is to the schedules in [the act].” (Mager v. United Hospitals (1965), 88 N.J. Super. 421, 428, 212 A.2d 664, 668, adopted by supreme court (1966), 46 N.J. 398, 217 A.2d 325.)

Another court explained in allowing a tort action against an employer:

“The injury complained of — death—is not alleged to have arisen out of and in the course of employment. [The plaintiff] alleges only that the strains and sprains requiring the medication ultimately resulting in death occurred during the employment. She does not allege that the medical treatment itself arose out of and in the course of employment.” (Szydlowski v. General Motors Corp. (1975), 59 Mich. App. 180, 183, 229 N.W.2d 365, 367.)

The victim is not necessarily out of luck if the aggravation happens to be caused by the original employer or another employee.

The majority opinion tries to present Duprey as a freak, given little credence even in California. Quite the contrary, California courts have recently reaffirmed it (D’Angona v. County of Los Angeles (1980), 27 Cal. 3d 661, 613 P.2d 238, 166 Cal. Rptr. 177), applied it to sustain a malpractice action against a company doctor who negligently treated an industrial injury, as in the present case (Hoffman v. Rogers (1972), 22 Cal. App. 3d 655, 99 Cal. Rptr. 455), and extended the doctrine to the product liability context (Douglas v. E. & J. Gallo Winery (1977), 69 Cal. App. 3d 103, 137 Cal. Rptr. 797). In D’Angona, the California Supreme Court disposed of Deauville v. Hall (1961), 188 Cal. App. 2d 535, 10 Cal. Rptr. 511, on which the majority opinion relies, by stating that Deauville involved a fundamentally different situation, in which the employee was trying to hold the employer liable for the aggravation of an injury by an outside physician to whom the employee was referred — not by an in-house doctor:

“Larson recognizes the difference ***, stating that there is a ‘crucial difference’ between ‘Paying for services and physically performing them’ because it is ‘virtually impossible to cause physical injury by writing a check’ but ‘very possible’ to do so by ‘administering medical treatment ....’” (D’Angona v. County of Los Angeles (1980), 27 Cal. 3d 661, 668, 613 P.2d 238, 243, 166 Cal. Rptr. 177, 182.)

Duprey, moreover, was not a narrowly written opinion; much of the language applies to this case. For example:

“ ‘That independent professions by the fact of business contact with the employer should be absolved of responsibility for mistake, avoidable or unjustified neglect resulting in secondary affliction, seems obnoxious to the purpose and spirit of such a statute. To so hold might induce industry to encourage quackery, and place a premium upon negligence, inefficiency and wanton disregard of the professional obligations of medical departments of industry, toward the artisan.’ ” 39 Cal. 2d 781, 791, 249 P.2d 8, 14.

This court, in adopting the idea of dual capacity in Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, cited Duprey as one of the leading cases on the subject. Employer liability for medical malpractice, as in Duprey, has been recognized in Ohio (Guy v. Arthur H. Thomas Co. (1978), 55 Ohio St. 2d 183, 378 N.E.2d 488), Michigan (Szydlowski v. General Motors Corp. (1975), 59 Mich. App. 180, 229 N.W.2d 365), New York (Garcia v. Iserson (1974), 33 N.Y.2d 421, 353 N.Y.S.2d 955; Volk v. City of New York (1940), 284 N.Y. 279, 30 N.E.2d 596), and Montana (Vesel v. Jardine Mining Co. (1940), 110 Mont. 82, 100 P.2d 75). Pennsylvania (Tropiano v. Travelers Insurance Co. (1974), 455 Pa. 360, 319 A.2d 426) and New Jersey (Mager v. United Hospitals (1965), 88 N.J. Super. 421, 212 A.2d 664, adopted by supreme court (1966), 46 N.J. 398, 217 A.2d 325) have held the employer’s compensation insurance carrier liable for the malpractice of its doctors on reasoning that would apply equally .to the employer. The majority’s Mississippi authority (Trotter v. Litton Systems, Inc. (Miss. 1979), 370 So. 2d 244) amounts to a flat rejection of the idea of dual capacity; it is grounded in the notion that if the employer is liable for compensation he cannot also be liable in tort. This court, even before Smith, rejected the position Trotter advances. In Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill. 2d 437, this court held that a general contractor who hired a subcontractor without compensation insurance might be liable both for compensation and in tort.

The reasoning of Laffoon was that a victim should not be denied tort recovery because of merely fortuitous circumstances. That is the same idea that underlies the dual-capacity doctrine, as is clear from Smith, which relied on Laffoon. A victim should not be barred because the “third party” tortfeasor happened to be the employer. Laffoon, as its dissent points out, went beyond most States in allowing tort recovery. That same dislike for fortuitous bars to tort recovery led this court, even earlier, to hold unconstitutional a version of the Workmen’s Compensation Act that denied recovery from anyone who was an employer under the Act, even if not the victim’s employer. (Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179.) I would therefore not have expected this court to exhibit hostility to the dual-capacity idea.

There is nothing unfair in the employee having the protection of both the compensation system and the tort law, for he could have had both by going to an independent doctor, as the legislature has determined he was entitled to do. The doctor would have been liable in a tort action for any malpractice he committed; and his fee, which the employer would have had to pay, would naturally have reflected that fact. In effect, the employer would have had to bear some share of the cost of the independent physician’s malpractice insurance. The employer would still have had to pay compensation for any aggravation, whatever the cause. If the aggravation were tortious, the employer could get back its money from the doctor; but otherwise, the employer would bear that cost as well.

Under the workers’ compensation system, in return for the loss of his right to sue for his initial injuries, McCormick got no-fault, though limited, protection against such industrial accidents. What did McCormick get for going to the Caterpillar clinic and thereby, under the decision in this case, giving up his malpractice claim? Not no-fault protection — he already had that. He received nothing. That is the kind of arrangement this court struck down in Grasse:

“[T]he classification of injured employees *** is arbitrary and in no way promotes any of the objectives of the act. *** Those injured by third party tort-feasors bound by the act are not entitled to common-law damages from such persons, whereas those injured by third party tort-feasors not bound by the act are allowed to institute actions for damages. Both classes of injured employees may be entitled to compensation from their own employers, so that the amount of compensation, if any, received by the injured employee is not the basis for differentiation between the classes. * * *
* * *
***[T]he fact that the third party tort-feasor may have to pay his own employees compensation or is entitled to compensation himself, does not justify denying the injured employee recovery against such tortfeasor.” (412 Ill. 179, 195-97.)

Common law rights of action should not be deemed taken away except when something of value has been put in their place. 2A A. Larson, Workmen’s Compensation sec. 65.10 (1976).

The only possible advantage McCormick got by going to the clinic was convenience. But convenience is not enough to make an injury work related and bar tort recovery. In Tipple v. High Street Hotel Co. (1941), 70 Ohio App. 397, 41 N.E.2d 879, the plaintiff worked for a hotel, running a cigar stand. She often ate in the hotel restaurant nearby, so that she could keep an eye on the cigar stand and run back when customers appeared. She also got a substantial discount at the restaurant, as an employee. Nevertheless, when she got sick on the food, she was allowed to sue in tort. The court emphasized that while she found it convenient to eat at her employer’s establishment she was not required to do so; it helped her do her job, but it was not part of her job.

Why should Caterpillar be able to shield itself and its doctors from liability by paying them a salary instead of a fee? As the United States Supreme Court said:

“Pan-Atlantic has not pointed and could not point to any economic difference between giving relief in this case, where the owner acted as his own stevedore, and in one in which the owner hires an independent company. *** Petitioner’s need for protection from unseaworthiness was neither more nor less than that of a longshoreman working for a stevedoring company. As we said in a slightly different factual context, ‘All were subjected to the same danger. All were entitled to like treatment under law.’ ” Reed v. The Yaka (1963), 373 U.S. 410, 414-15, 10 L. Ed. 2d 448, 452-53, 83 S. Ct. 1349, 1352-53.

McCormick’s waiver of his tort rights by going to the Caterpillar clinic is especially unfair because there was nothing to warn him of the legal effect of his apparently innocuous choice of doctors. He did not understand what he was giving up for the convenience of a doctor on the work premises. Patients and doctors have deeply rooted expectations about their roles in our system of medical care and the legal aspects of their relation. The law, for example by according a physician-patient privilege, recognizes the relation as unusually important and gives it special protection. Doctors are professionals, who encourage patients to have trust and confidence in them; if the doctor blunders or is disloyal, the doctor and not the patient will pay, at least in money. If a private doctor attempted to disclaim liability for malpractice, the law would take a hard look at that agreement. Yet the majority decision holds that that is what the patient will get as part of his “implied contract” of workers’ compensation (Keller v. Industrial Com. (1932), 350 Ill. 390, 397) if he is so naive as to rely on his employer’s clinic, even though that arrangement is contrary to the patient’s reasonable expectations, and normally disfavored by the law.

To regard the aggravation by malpractice of McCormick’s injury as an industrial accident, for which workers ’ compensation is the exclusive remedy, does not fit in with the purpose and theory of the Workers’ Compensation Act. Workmen’s compensation laws were enacted because the common law defenses of contributory negligence, assumption of risk, and the fellow-servant doctrine made tort recovery for industrial accidents extremely difficult; only about 20% of injured workers recovered. (Note, Dual Capacity Doctrine: Third-Party Liability of Employer-Manufacturer in Products Liability Litigation, 12 Ind. L. Rev. 553 (1979).) “The evil to be remedied *** was that under the common-law rules of master-servánt liability, employees injured in the course of their employment had to bear practically the full measure of their loss, hence a substitute system of liability was provided.” (Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179, 195.) The theory of workmen’s compensation was that industrial accidents were not to be considered anyone’s fault in particular; fault was not to be disputed; rather, accidents were an inherent risk of employment. The great producing cause of injury was regarded as the industry itself, and the industry, not the worker, was to bear the cost like any other cost of production. Ross v. Erickson Construction Co. (1916), 89 Wash. 634, 639, 155 P. 153, 156; see O’Brien v. Rautenbush (1956), 10 Ill. 2d 167, 173-74.

• At least in this State, none of the three classical defenses to employees’ tort claims at common law would have hindered people in McCormick’s position. The fellow-servant doctrine would not have barred recovery, for it applied only to those employees cooperating on a particular project or whose habitual association allowed them influence over one another. (Aldrich v. Illinois Central R.R. Co. (1909), 241 Ill. 402.) The Caterpillar doctors would not have been regarded as fellow servants of McCormick. Similarly, a worker assumed only the natural and ordinary risks incident to the business (Western Stone Co. v. Whalen (1894), 151 Ill. 472, 484), that is, those risks he must have contemplated and accepted in taking the job. Negligent medical treatment was not one of those. And while workers may often get careless on the job and contribute to their initial injuries, there is no reason to believe that the victims of industrial accidents are more likely than other patients to be contributorily negligent in their medical care. Industrial medical malpractice is just like any other medical malpractice, with none of the special problems that led the legislature to a special solution for industrial accidents.

Medical malpractice is not an inherent risk of the tractor business, or of whatever line of work McCormick was in when first injured. It is a feature of medical practice, and its costs should be borne by the medical profession, an ancient and distinct one. The legislature has not seen fit to pass a Patients’ Compensation Act. This court should not, in effect, provide the practitioners of one medical specialty, industrial medicine, with a no-fault malpractice scheme. The Workers’ Compensation Act is not, and was not intended to be, a complete system of social insurance. When an employee is hired, he assumes the hazards and risks of employment that naturally flow from that employment. The risks he accepts should not be extended to those not really incident to the employment, like the risk of medical mistreatment. See Douglas v. E. & J. Gallo Winery (1977), 69 Cal. App. 3d 103, 111-12, 137 Cal. Rptr. 797, 801-02.

I recognize that in some instances the aggravation itself, as well as the initial injury, is sufficiently within the employment context that workers’ compensation is the exclusive remedy. But, for the reasons stated above, we should not, as the majority does, routinely sweep into the compensation system all aggravations of industrial accidents by the negligence of the in-house medical staff.

The essential issue here is whether McCormick and Caterpillar stepped outside their employment relation and entered a new relation, a new status, namely that of doctor (or doctor’s employer) and patient, assuming corresponding new rights and responsibilities. I believe the issue is essentially one of social reality: How did the participants and those around them perceive what they were doing? What expectations would ordinary people in those circumstances have? How does it strike us now? Is this a case of a tenacious lawyer dredging up some unrealistic legal theory to enable his client, the employee, to evade the compensation limits for an accident that everyone can plainly see arose out of and in the course of employment? Or do we have a company desperately shoving out of sight the hat it was sporting when the malpractice occurred, and grabbing for the helmet labeled “employer”? In the phrase “company doctor,” which word is more significant? As the California courts have put it:

“It is true that the law is opposed to the creation of a dual personality, where to do so is unrealistic and purely legalistic. But where, as here, it is perfectly apparent that the person involved — Dr. Shane — bore towards his employee two relationships — that of employer and that of doctor — there should be no hesitancy in recognizing this fact as a fact. Such a conclusion, in this case, is in precise accord with the facts and is realistic and not legalistic.” Duprey v. Shane (1952), 39 Cal. 2d 781, 793, 249 P.2d 8, 15.
“Our society is pluralistic. The same person (real or artificial) from time to time obviously adopts many roles in relationship with others. Our law is replete with these many different roles.
This is not a legalistic machination; nor is it ‘conjuring a nonemployer doppelganger’ out of the manufacturer’s activity. There is nothing ghostly or fictional about two capacities. *** Which combination of jural opposites or jural correlatives apply is dependent in the specific role assumed at the particular time involved. While it may be that a defendant cannot simultaneously be two distinct entities, a defendant can act in two distinct capacities sequentially. Douglas v. E. & J. Gallo Winery (1977), 69 Cal. App. 3d 103, 110-11, 137 Cal. Rptr. 797, 801.

In the average medical-aggravation case, dual capacity is appropriate because of the thick mystique surrounding the roles of doctor and patient. There is no more distinct calling than that of the doctor (Aetna Life Insurance Co. v. Watts (1931), 148 Okla. 28, 35, 296 P. 977, 984); professional responsibility has ancient roots, much like the warranty of seaworthiness (Reed v. The Yaka (1963), 373 U.S. 410, 10 L. Ed. 2d 448, 83 S. Ct. 1349). Patients tend to look upon themselves, and to be looked on, temporarily, as patients, whatever else they may be out of the medical setting. Presidents and Caterpillar employees both obey doctors’ orders.

There is one feature of this case, however, which, as Caterpillar stresses, makes this case less appropriate for the dual-capacity doctrine than, for example, Duprey v. Shane. The main difference between this case and Duprey is that the Caterpillar clinic served only employees, not the public. The clinic did not limit itself entirely to the treatment of work-related injuries; but, still, the atmosphere of a clinic for employees must be more employment permeated than the office of Dr. Shane, who gave his employee-patient the same service he would have offered anyone who walked in. Playing a role for the public gives it greater distinctness and defining power, and makes the fact that employees are involved seem more fortuitous. But, the importance of this factor is debatable; the New York Court of Appeals, for example, changed positions on the issue, first deciding that an employee could recover for malpractice in a facility limited to employees (Volk v. City of New York (1940), 284 N.Y. 279, 30 N.E.2d 596), then overruling that case and holding that only public practice creates a dual capacity (Garcia v. Iserson (1974), 33 N.Y.2d 421, 353 N.Y.S.2d 955).

I do not see sufficient reason to limit application of the dual-capacity doctrine to public medical practice. I do not understand why a standard role that the defendant plays in fact only for insiders should not also give rise to tort liability. See Hoffman v. Rogers (1972), 22 Cal. App. 3d 655, 99 Cal. Rptr. 455; Szydlowski v. General Motors Corp. (1975), 59 Mich. App. 180, 229 N.W.2d 365; Tropiano v. Travelers Insurance Co. (1974), 455 Pa. 360, 319 A.2d 426; Mager v. United Hospitals (1965), 88 N.J. Super. 421, 212 A.2d 664, adopted by supreme court (1966), 46 N.J. 398, 217 A.2d 325; Vesel v. Jardine Mining Co. (1940), 110 Mont. 82, 100 P.2d 75 — all cases in which employers, their insurers, or their doctors have been held liable for malpractice in a facility provided only for employees.

In Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, this court held the defendant partner liable in a dual capacity as lessor of a defective product, although there was no indication it ever leased anything to anyone but the partnership. Certainly, the lease was no arm’s length deal: the partnership got a substantial discount off the going price for such items. What was significant in that case was that the partners, by their arrangement, indicated that they meant to separate the lease from the venture as a whole, the partner from the partnership; in their own minds and contracts, the lease was real.

There is no reason why the public character of a role should be more important in malpractice cases than in product liability cases, that is, cases where an employee sues his employer on the theory that the employer not only furnished the employee the machine or whatever that injured him, but actually produced, sold, or leased it, and is therefore strictly liable in tort, in a dual capacity, for the defects of the product. If anything, public sales of the product should be regarded as more essential in products cases than public practice is in medical malpractice cases. In a products case, the injury, an element of the tort, occurs directly in the employment context; there is no second injury as in a malpractice case. Thus, if employees can recover from their employers on product liability claims even when there is no product distribution to the public at large, the liability, for negligent treatment, of an employer who provides medical services only for his employees becomes clearer.

Similarly, in Reed v. The Yaka (1963), 373 U.S. 410, 10 L. Ed. 2d 448, 83 S. Ct. 1349, another classic case for dual capacity, reaffirmed in Jackson v. Lykes Brothers Steamship Co. (1967), 386 U.S. 731, 18 L. Ed. 2d 488, 87 S. Ct. 1419, the court held a bareboat charterer liable on the warranty of seaworthiness to a longshoreman it employed directly instead of using a stevedoring company as was usual. There was no indication that anyone but employees worked on or near the vessel or could in fact be at risk from the unseaworthiness. It was enough that in legal principle the warranty did not depend on the employment but ran to all alike. The same can be said of the obligations of doctors.

In the present case, the different people involved had conflicting expectations. Caterpillar may well have felt that it was merely discharging its duties as employer as best it could. McCormick probably felt like a patient rather than an employee. If someone had asked what he was doing at the clinic, neither McCormick nor anyone else would have said, “working.” The doctors probably felt like doctors: they did not go to school all those years to become Caterpillar employees, and when strangers ask them what they do they probably do not say they are employees of Caterpillar. Since Caterpillar was not personally there, and can justly be held responsible for the image projected by its doctors, its view is less important than that of the other participants. On the whole, I believe the activities of the clinic are more aptly described as medicine than as employment, and would be so perceived by an observer on the spot.

Sound reasoning and the bulk of authority, both from this State and other jurisdictions, favor allowing the tort action McCormick sought to bring against his employer. I find this a stronger case for dual capacity than Smith. The majority ruling in this case seems to me a retreat from Smith. I would affirm the appellate court rather than retreat from Smith, and allow the suit to proceed.


source: Caselaw Access Project

author: MR. JUSTICE WARD MR. JUSTICE MORAN,

license: Public Domain

text:
    (No. 53453.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LANCE GATES et al., Appellees.

      Opinion filed June 26, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield, and J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Melbourne A. Noel, Jr., Assistant Attorney General, of Chicago, and Robert L. Thompson, Assistant State’s Attorney, and James Salsbury, law student, of Wheaton, of counsel), for the People.
    James W. Reilley and Barry E. Witlin, of Chicago, for appellees.
   MR. JUSTICE WARD

delivered the opinion of the court:

On May 3, 1978, the Bloomingdale police department received by mail an anonymous handwritten letter which alleged that Susan Gates and Lance Gates, her husband, were planning to travel to Florida in a few days for the purpose of obtaining illegal drugs. The letter read:

“This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Green-way, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida where she leaves it to be loaded up with drugs, then Lance flys [sic] down and drives it back. Sue flys [sic] back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement.
They brag about the fact they never have to work, and make their entire living on pushers.
I guarantee [sic] if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often.
Lance & Sue Gates Greenway
in Condominiums.”

The chief of police delivered the letter to Charles Mader, a detective of the Bloomingdale police department and he requested one of the department’s radio operators to seek assistance from the Secretary of State’s office in Springfield in obtaining a specific address for the Gateses. That office advised that an Illinois driver’s license had been issued to a Lance Gates residing at a stated address in Bloomingdale. Mader then communicated with a confidential informant who had, he claimed, provided reliable information to Mader during the previous two years. Upon examining certain financial records to which the informant had access, he reported a new address on Greenway Drive in Bloomingdale for the Lance Gates who had previously resided at the address in Bloomingdale furnished by the Secretary of State’s office.

Upon inquiry, Mader was told by an officer of the Chicago police department assigned to O’Hare Airport that “L. Gates” had made a reservation with Eastern Airlines on its flight 245, which was to depart from O’Hare on May 5, at 4:15 p.m. The final destination of the flight was West Palm Beach, Florida.

On May 5, Mader was told by William Morely, an agent of the Drug Enforcement Administration, that “Lance Gates” had boarded Eastern Airlines flight 245 bound for Florida. The following day Morely informed Mader that Gates had arrived in West Palm Beach, had proceeded by cab to the West Palm Beach Holiday Inn, and had entered a room registered to Susan Gates. Agent Morely told him that he observed Gates and an unidentified woman leave the room at 7 a.m. and enter a red-vinyl-over-gray Mercury with 1978 Illinois license number RS 8437. Records at the Secretary of State’s office showed that the license plate was registered for Lance B. Gates, but had been issued for a different automobile.

Based on the anonymous letter, the described information obtained from the law-enforcement authorities, and the verification of the address obtained from the confidential informant, Mader, on May 6, sought and obtained in the circuit court of Du Page County, a search warrant for both the Gateses’ residence in Bloomingdale and the car they were driving from Florida.

At 5:15 a.m. on May 7, Lance and Susan Gates returned by car to their home on Greenway Drive. They were immediately served with a search warrant by waiting Bloomingdale police officers. In the trunk of the Mercury the officers found several large bundles of marijuana weighing a total of approximately 350 pounds. A search of the Gateses’ residence uncovered more marijuana, weapons, ammunition, drug paraphernalia, and several scales presumably used for weighing the drugs. Police also ascertained that the couple had cocaine in their possession. They were indicted for unlawful possession of cannabis with intent to deliver and unlawful possession of a controlled substance. Lance Gates was separately indicted for possession of an unlicensed firearm.

The defendants filed a pretrial motion to quash the search warrant and to suppress all physical evidence obtained as a result of the search, arguing that the anonymous letter did not set forth the underlying circumstances or manner in which the informant acquired the information or that the information was reliable as required under the test for probable cause described in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509. The defendants also argued that the separate evidence obtained by Detective Mader in his independent investigations did not corroborate the anonymous informant’s accusations that the Gateses were involved in criminal activity so as to support the issuance of a search warrant based on probable cause. The motions to quash and to suppress evidence were allowed by the circuit court of Du Page County, and its action was affirmed by the appellate court (82 Ill. App. 3d 749). We granted the State’s petition for leave to appeal. 73 Ill. 2d R. 315(a).

Both the Constitution of the United States (U.S. Const., amend. IV) and the Constitution of Illinois (Ill. Const. 1970, art. I, sec. 6) provide assurance against unreasonable searches and seizures of person and property. The determination of probable cause for the issuance of a search warrant must be made by a “neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” (Johnson v. United States (1948), 333 U.S. 10, 14, 92 L. Ed. 436, 440, 68 S. Ct. 367, 369.) This determination also must be based upon the sworn observations or on other sufficient facts or circumstances presented under oath before a magistrate. The Supreme Court in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, considering its decisions in Giordenello v. United States (1958), 357 U.S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245, Johnson v. United States (1948), 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367, Nathanson v. United States (1933), 290 U.S. 41, 78 L. Ed. 159, 54 S. Ct. 11, and United States v. Lefkowitz (1932), 285 U.S. 452, 76 L. Ed. 877, 52 S. Ct. 420, announced the constitutional standard to be used by courts in deciding whether a search warrant might properly issue when the complaint for the search warrant is based in whole or in part upon information supplied by an anonymous or unidentified informant. The court stated:

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant [citation], the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed [citation], was ‘credible’ or his information ‘reliable.’ ” 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.

The first part of this standard or test is often referred to as the “basis of knowledge prong” and the second part as the “veracity prong.”

In Aguilar, an officer of the Houston police department applied for a search warrant on the ground that “ ‘reliable information [had been received] from a credible person’ ” that the defendant was known to have drugs on his premises for purposes of sale and personal use. The court described the affidavit as containing “ ‘no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein’ ” or “that the affiant’s unidentified source ‘spoke with personal knowledge.’ ” The court further stated that “the source here merely suspected, believed or concluded that there were narcotics in petitioner’s possession. The magistrate here certainly could not ‘judge for himself the persuasiveness of the facts relied on *** to show probable cause.’ He necessarily accepted ‘without question’ the informant’s ‘suspicion,’ ‘belief’ or ‘mere conclusion.’ ” (378 U.S. 108, 109, 113-14, 12 L. Ed. 2d 723, 725, 728-29, 84 S. Ct. 1509, 1511, 1513-14, quoting Nathanson and Giordenello.) The court held that the evidence obtained from a search conducted with the warrant was inadmissible and remanded the case for further proceedings.

The first prong, or the “basis of knowledge” part of the test announced in Aguilar, is concerned with the facts and circumstances showing that the informant knew that the person named has been or will be involved in criminal conduct. The most common means of satisfying this requirement is by the informant’s declaration that he is revealing personal knowledge gathered through some physical sensory faculty such as that of sight, smell or sound. (See, e.g., Stanley v. State (1974), 19 Md. App. 507, 531, 313 A.2d 847, 861.) Statements containing mere conclusions of criminal activity without a statement regarding independent facts and personal observations do not provide a sufficient basis for a neutral magistrate to decide to issue a search warrant.

Looking at the anonymous handwritten letter here one can only observe that it does not contain any statement showing that the information was acquired through firsthand or personal knowledge of the informant. The informant states that the defendants make their living by selling drugs but he does not set out the source of this knowledge or the ground for his conclusion. There is the statement that the defendants boasted of their illegal occupation, but one does not know whether they made these comments to the informant or whether this was hearsay. Similarly, the informant states that the defendants will be returning from Florida with over $100,000 in drugs and that there is over $100,000 worth of drugs in their basement. No basis of knowledge for this is given. There is no statement made that the informant ever saw drugs or was inside the defendants’ residence or even that someone had told him of any of these claimed facts. The letter set out mere conclusions and contained no statements of personal observation or firsthand knowledge.

The second part of the Aguilar test, often, as noted, referred to as the “veracity prong,” requires a showing of the underlying circumstances from which it was concluded that the informant was “ ‘credible’ ” or his information “‘reliable.’” (378 U.S. 108, 114-15, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.) Though it is not necessary to consider this “prong” where the “basis of knowledge” part has not been satisfied, we shall comment on it because of the State’s arguments discussed later relating to self-verifying detail and corroborating evidence as support for the search warrant here.

The name of an informant need not be revealed to the magistrate before a search warrant is issued so long as it is established that the informant is credible. This requirement is usually satisfied by reciting in the affidavit previous instances in which the affiant police officer has obtained information from the informant that led to various arrests and convictions. (See McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056; People v. Garcia (1975), 27 Ill. App. 3d 396.) Here, the informant’s identity was not known to the affiant, Detective Mader. There was simply no basis on which either Mader or the magistrate could conclude that the anonymous person was credible.

The failure to satisfy under Aguilar that the informant was credible does not of itself mean that the “veracity prong” requirement cannot be met. It may be satisfied by a showing that the informant’s tip was reliable. United States v. Harris (1971), 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075, shows that a plurality of the court considered that the alternative requirement of reliability of the information supplied was satisfied where the informant, in giving the information, admitted activities which were against his penal interest. In Harris a warrant was issued to Federal and local officers permitting them to enter and search the defendant’s premises where they found containers of whiskey on which the Federal tax had not been paid. The affidavit accompanying the request for a warrant stated that information was received from an individual who claimed, as a confederate, personal knowledge that the defendant was a “trafficker of nontaxpaid distilled spirits.” (403 U.S. 573, 575, 29 L. Ed. 2d 723, 729, 91 S. Ct. 2075, 2077.) The court held that the informant’s admission of complicity with the defendant in these activities over an extended period of time, which subjected him to possible indictment under section 5205(a) of title 26 of the United States Code (26 U.S.C. sec. 5205(a)), generated some measure of reliability. It was held that under the facts and circumstances of the case that probable cause had been established. Assuming, arguendo, that we were to follow the view of the plurality in Harris it would have no significance, because there was no admission against penal interest here.

Concluding that the letter standing alone cannot satisfy the requirements under Aguilar, we consider now the State’s contention that the “self-verifying detail” within the letter, coupled with the corroborating nature of the information acquired by Detective Mader, established probable cause for the issuance of the search warrant.

The notion of “self-verifying detail” is found in Spinelli v. United States (1969), 393 U.S. 410, 417, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 589. The court had granted certiorari “[b]elieving it desirable that the principles of Aguilar should be further explicated ***.” (393 U.S. 410, 412, 21 L. Ed. 2d 637, 641, 89 S. Ct. 584, 587.) There are important resemblances between the circumstances here and those in Spinelli. A search warrant had been issued, and the affidavit submitted in support of it cited a report from an unidentified informant and also one of an independent FBI investigation which was said to corroborate the informant’s tip. The affidavit was more persuading than the one here. It described the informant as “a confidential, reliable informant” and stated that Spinelli was known to the affiant - special agent and to Federal and local law-enforcement officers as a gambler and bookmaker. According to the affidavit the informant had advised the FBI that Spinelli was operating a handbook and was using specified telephone numbers in its operation. The Supreme Court held that the affidavit was insufficient and that the search warrant had been issued without probable cause. The court observed: “Though the affiant swore that his confidant was ‘reliable,’ he offered the magistrate no reason in support of this conclusion. Perhaps even more important is the fact Aguilar’s other test has not been satisfied. The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI’s source received his information — it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable. [Citation.] In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip described the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” (393 U.S. 410, 416, 21 L. Ed. 2d 637, 643-44, 89 S. Ct. 584, 589.) As can be said of the investigative activities by the law-enforcement officers here, the court in Spinelli stated: “[W]e find nothing alleged which would permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed. As we have already seen, the allegations detailing the FBI’s surveillance of Spinelli and its investigation of the telephone company records contain no suggestion of criminal conduct when taken by themselves — and they are not endowed with an aura of suspicion by virtue of the informer’s tip.” (393 U.S. 410, 418, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 590.) The court commented that the report from the informant was meager and could easily have been obtained from an offhand remark heard at a neighborhood bar.

The court in Spinelli did say that while an affidavit may not satisfy the “basis of knowledge” prong of the Aguilar test by failing to set out adequately the circumstances explaining how the confidential information was obtained, this may be cured if the information set out is so detailed that a magistrate “could reasonably infer that the informant had gained his information in a reliable way.” (393 U.S. 410, 417, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 589.) Thus an informant’s report, if detailed sufficiently, may in effect verify itself in the sense that the magistrate, when presented with such detail, can reasonably infer that the informant had gained his information in a reliable way and may be a sufficient basis for a magistrate’s finding of probable cause for the issuance of a search warrant. The court cited Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329, a pre-Aguilar decision, as a “suitable benchmark” upon which to measure this sufficiency of detail. (393 U.S. 410, 416, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 589.) It is important to observe that in Draper there was not, as here or in Spinelli, an anonymous or unidentified informant but a named informant whose information, when given to law-enforcement officers on earlier occasions, had been reliable.

The use of self-verifying detail to find probable cause is limited, though, to a situation where the informant has not otherwise disclosed the manner in which he has obtained his information and thus has failed to satisfy the “basis of knowledge” prong. While the specificity of detail may be used to supply the basis-of-knowledge requirement, it cannot establish that the informant was credible or his information reliable, in and of itself, so as to meet Aguilar’s “veracity” prong. The court in Stanley v. State (1974), 19 Md. App. 507, 533, 313 A.2d 847, 862, described this when it observed: “The notion that great detail implies personal observation rather than the overhearing of barroom gossip, presupposes an honest informant. If the informant were concocting a story out of the whole cloth, he could fabricate in fine detail as easily as with rough brush strokes. Minute detail tells us nothing about ‘veracity.’ ” See also People v. Lindner (1975), 24 Ill. App. 3d 995; Note, Probable Cause And The First-Time Informer: United States v. Harris, 403 U.S. 573 (1971), 43 Colo. L. Rev. 357, 362 (1972).

Self-verifying detail discussed in Spinelli as a means of satisfying the basis-of-knowledge prong must be accepted with great circumspection. This was expressed by Mr. Justice Harlan when, as appears in the quotation above from Spinelli, he cautioned that the tip must describe the claimed criminal activity in detail adequate to show the magistrate that he is relying on information more substantial than casual rumor or an accusation founded only on the accused’s general reputation. We cannot say that the information provided here was in sufficient detail to lead a magistrate to conclude that the tip was the product of firsthand knowledge or personal observation.

That the anonymous informant gave the name of the street where the defendants resided and stated that they would be driving from Florida in early May with drugs in the trunk of their car does not even meet the specificity of detail required by the court in Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329, so as to cure the existing deficiency of the “basis of knowledge” prong. Nor can it be reasonably concluded that the information in the letter was acquired through firsthand knowledge rather than by rumor. Also, we reiterate and emphasize that here the informant was anonymous. In Draper the informant was named and identified as one who earlier had given information to law-enforcement officers that had been reliable.

The corroborative evidence gathered by Detective Mader, when coupled with the “detail” of the informant’s letter, did not constitute probable cause under the tests of Aguilar. The appellate court, in addressing this question of corroborative evidence, rejected the State’s contention that corroboration can be used to satisfy the “veracity” prong as well as the “basis of knowledge” prong of the Aguilar test. The court held that partial corroboration may be considered only to support the contention that the information obtained was reliable. Citing Stanley v. State (1974), 19 Md. App. 508, 531, 313 A.2d 847, 861-62, the court held that corroboration may not serve as a means of satisfying the “basis of knowledge” prong.

Courts are not in agreement on the question of whether partial corroboration, combined with an informant’s tip, may cure a deficiency in either prong of the Aguilar test. See, e.g., 1 LaFave, Search and Seizure sec. 3.3 (1978); Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L. Rev. 741 (1974); Stanley v. State (1974), 19 Md. App. 507, 313 A.2d 847.

We need not consider this question, however, since the nature of the corroborating “evidence” in this case v/ould satisfy neither the “basis of knowledge” nor the “veracity” prong of Aguilar. Looking to the affidavit submitted as support for Detective Mader’s request that a search warrant issue, we note that the corroborative evidence here was only of clearly innocent activity. Mader’s independent investigation revealed only that Lance and Susan Gates lived on Greenway Drive; that Lance Gates booked passage on a flight to Florida; that upon arriving he entered a room registered to his wife; and that he and his wife left the hotel together by car. The corroboration of innocent activity is insufficient to support a finding of probable cause. See Whiteley v. Warden of Wyoming State Penitentiary (1971), 401 U.S. 560, 567, 28 L. Ed. 2d 306, 312-13, 91 S. Ct. 1031, 1036.

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

Judgment affirmed.

MR. JUSTICE MORAN,

dissenting:

The majority concludes that the letter combined with the facts gleaned from the police investigation does not satisfy either prong of the Aguilar test. I disagree. As the opinion points out, the letter did not reveal that the informant had personal knowledge of the criminal activity, the method by which the “basis of knowledge” prong is generally satisfied. However, that prong can be satisfied by sufficiently specific detail and corroborating information. (Spinelli v. United States (1969), 398 U.S. 410, 416-17, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 589.) That the necessary specificity of the initial information and the requisite corroboration were present here can be demonstrated by a comparison with three United States Supreme Court cases.

Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329, involved an arrest without a warrant. There, an informant gave a Federal narcotics agent information regarding narcotics law violations. On a motion to suppress, the agent testified that he “had always found the information given by [the informant] to be accurate and reliable.” (358 U.S. 307, 309, 3 L. Ed. 2d 327, 329, 79 S. Ct. 329, 331.) No underlying facts established this conclusion. However, the informant told the agent that Draper had gone to Chicago the day before by train and that he would return to Denver by train with three ounces of heroin on one of two specified mornings. In addition, the informant described Draper’s physical appearance, the clothes he was wearing, that he would be carrying a tan zipper bag, and that he walked quickly. The court found that the agent had probable cause to arrest when a man fitting Draper’s description stepped off the specified train.

In Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, police officers, in support of their application for a search warrant, submitted an affidavit stating:

“Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.” (378 U.S. 108, 109, 12 L. Ed. 2d 723, 725, 84 S. Ct. 1509, 1511.)

The court found that the information merely reflected the informant’s “ ‘suspicion,’ ‘belief’ or ‘mere conclusion.’ ” (378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.) In so holding, it established the two-pronged standard for evaluating if a search warrant should issue:

“[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed [citation], was ‘credible’ or his information ‘reliable.’” 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.

With this test as the standard, the Supreme Court decided Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 637, 89 S. Ct. 584. In that case, the affidavit stated that Spinelli was known to law-enforcement agents as a bookmaker and a gambler, and that the FBI had “been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of telephones which have been assigned and numbers WYdown 4-0029 and WYdown 4-0136.” 393 U.S. 410, 414, 21 L. Ed. 2d 637, 642, 89 S. Ct. 584, 588.

The court contrasted the informant’s tip with the information provided by the informant in Draper. The court concluded that a magistrate could infer from the tip in Draper that the informant had gained his information in a reliable way whereas, in the case before it, the report could have been obtained from an offhand remark heard at a neighborhood bar. The court also found that the investigative police work in Draper corroborated much more than one small detail and resulted in the inference that the report was reliable. In contrast, the investigation in Spinelli corroborated only that Spinelli could have used two telephones for gambling or for some other purpose, and was insufficient to support the reliability of the information. The court stated:

“[In Draper], the police, upon meeting the inbound Denver train on the second morning specified by informer Hereford, saw a man whose dress corresponded precisely to Hereford’s detailed description. It was then apparent that the informant had not been fabricating his report out of whole cloth; since the report was of the sort which in common experience may be recognized as having been obtained in a reliable way, it was perfectly clear that probable cause had been established.” 393 U.S. 410, 417-18, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 590.

When comparing the affidavits in Aguilar and Spinelli and the testimony of the agent in Draper to the affidavit here, it is clear that this case is more similar to Draper than to Aguilar and Spinelli. In Aguilar, the information in the affidavit consisted of mere conclusions and did not satisfy either prong of the standard established here. Similarly, in Spinelli the affidavit did not contain a sufficient statement of the underlying circumstances from which the magistrate could conclude that the informer had knowledge that Spinelli was running a bookmaking operation. Further, the court found that although the affiant swore that his confidant was reliable, he offered the magistrate no reason in support of this conclusion.

In this case, however, as in Draper, a specific, detailed and future sequence of events was supplied by the informant’s letter. As already stated, in Draper the tip was that a man fitting a particular description had gone to Chicago and would be arriving on a particular train in Denver on one of two specified mornings carrying three ounces of heroin. Here, the letter revealed that on May 3, in compliance with their usual procedure, Sue Gates would be driving down to Florida to purchase drugs. It further stated that Lance Gates would be flying down a few days later to drive their car back to Bloomingdale carrying over $100,000 in drugs in the trunk. The police investigation showed that on May 5 a person matching Lance Gates’ description flew to West Palm Beach, Florida, and proceeded to the Holiday Inn West to a room registered to Susan Gates. On May 6, 7 a.m., Gates and an unidentified female left the motel driving a red-vinyl-over-gray Mercury. The investigation disclosed that Gates and the woman left the West Palm Beach area driving northbound on an interstate highway and that the driving time to Bloomingdale was 21 to 23 hours. In this case, as in Draper, every detail of the informant’s information was corroborated by the police investigation. The specific, detailed information in the letter combined with the corroboration clearly indicates that the informant had an underlying basis of knowledge, satisfying Aguilar’s first prong.

In addition, the specific information contained in the letter which was then corroborated proved the informant’s statements to be credible and reliable, thereby satisfying Aguilar’s second prong. The majority opinion attempts to distinguish Draper by observing in that case there was a named informant who had given the agent reliable information on other occasions. However, the agent’s statement as to the informant’s reliability was a mere conclusion. It is questionable whether that naked assertion would satisfy Aguilar’s second prong in that it does not present any underlying circumstances from which the judge could determine if the informant is credible or his information reliable. The statement is not essentially different from the one made in Spinelli that the “informant was reliable.” The point is, however, that under the court’s analysis in Spinelli, the result in Draper, in light of Aguilar, does not hinge on the mere averment that the informant had previously given reliable information. Rather, the determining factor in establishing probable cause and complying with both prongs of Aguilar is the specificity of the tip combined with the police verification by investigation.

Finally, the majority, citing Whiteley v. Warden of Wyoming State Penitentiary (1971), 401 U.S. 560, 567, 28 L. Ed. 2d 306, 312-13, 91 S. Ct. 1031, 1036, finds that the corroborating information combined with the tip would not satisfy either prong of the Aguilar test because the corroborating evidence was of clearly innocent activity. This conclusion is incorrect. First, in Whiteley, the corroborating evidence was simply that the sheriff knew the defendants and the kind of car they drove. The court in Whiteley specifically stated:

“[T]he additional information acquired by the arresting officers must in some sense be corroborative of the informer’s tip that the arrestees committed the felony or, as in Draper itself, were in the process of committing the felony.” 401 U.S. 560, 567, 28 L. Ed. 2d 306, 312-13, 91 S. Ct. 1031, 1036.

In Draper, the corroborating information also related to innocent activity — a man fitting a particular description stepped off a train on a specific day carrying a tan zipper bag. Yet, the court in Whiteley, as well as in Spinelli, clearly held that this type of detailed information can be used to corroborate an informant’s tip. The key is whether the corroborative evidence is endowed with an aura of suspicion by virtue of the informant’s tip. (See Spinelli v. United States (1969), 393 U.S. 410, 418, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 590.) In this case, just as in Draper, seemingly innocent activity became suspicious in light of the initial tip.

Here, the police went through the desired procedure of obtaining a warrant. The judge had before him, by way of affidavit, information from which he reasonably could conclude that the informat had knowledge that the Gateses were involved in criminal activity and that the information was reliable. Under the standard enunciated in Spinelli, the judge could conclude he was relying on more than casual rumor or reputation and that the report had not been fabricated “out of whole cloth.” (See Spinelli v. United States (1969), 393 U.S. 410, 416, 417, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 590.) Probable cause was determined by a neutral and detached judge. (See Johnson v. United States (1948), 333 U.S. 10, 14, 92 L. Ed. 436, 440, 68 S. Ct. 367, 369.) Issuance of a search warrant in the instant case is consistent with the rationale underlying Aguilar, as applied in Spinelli, and does not attenuate one’s right to be free from unreasonable searches and seizures as guaranteed by the United States and Illinois constitutions.

For the above-stated reasons, I must respectfully dissent.

MR. JUSTICE UNDERWOOD joins in this dissent.


author: MR. JUSTICE UNDERWOOD MR. JUSTICE MORAN,

text:
    (No. 53382.
    THE BOARD OF EDUCATION OF COMMUNITY UNIT SCHOOL DISTRICT NO. 101, Appellant, v. CAROLYN PARLOR et al., Appellees.

      Opinion filed April 17, 1981.

      James W. Sanders & Associates, of Marion, for appellant.
    Drach, Terrell & Deffenbaugh, P.C., of Springfield, for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, the board of education of Community Unit School District No. 101 (Board), obtained a preliminary injunction without notice in the circuit court of Pulaski County on September 19, 1979. The order enjoined defendants, striking teachers of the Meridian Education Association (MEA or the union), from picketing and ordered them back to work. Defendants’ motion to dissolve the preliminary injunction was denied on September 27, and defendants appealed that decision under our Rule 307 (73 Ill. 2d R. 307). The appellate court reversed (81 Ill. App. 3d 667), holding that notice was required under the circumstances of this case. We allowed the Board’s petition for leave to appeal.

Negotiations between the Board and MEA broke down to the point where the parties declared an impasse under their negotiation agreement. The teachers agreed to strike against the Board and set up picket lines on September 18. There is some dispute whether the Board’s attorney stated he would contact MEA’s attorney if the Board decided to seek an injunction, but it is undisputed that the Board’s attorney knew MEA’s attorney and the president of MEA. In seeking the injunction the Board did not give notice to MEA, its president or attorney, or to any member of MEA.

The Board’s complaint for injunctive relief was accompanied by affidavits from the superintendent of Community Unit School District No. 101, the secretary of the Board, the president of the Board, and a contractor performing work on one of the Board schools, all of which alleged that there was irreparable loss and injury being suffered as a result of the strike by MEA. There was no allegation that giving notice of the Board’s intent to seek an injunction would aggravate, increase or in any way affect the injury alleged.

Evidence on MEA’s motion to dissolve the injunction was heard on the issue of whether the Board’s attorney agreed to notify MEA’s attorney and whether the Board’s attorney knew who represented MEA. The circuit court denied the motion, finding that the Board’s verified complaint and accompanying affidavits were sufficient to warrant the issuance of a preliminary injunction without notice under the relevant statutory provisions (Ill. Rev. Stat. 1979, ch. 69, par. 3). They are as follows:

“No court or judge shall grant a preliminary injunction without previous notice of the time and place of the application having been given the adverse party unless it clearly appears, from specific facts shown by the verified complaint or by affidavit accompanying the same, that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon.” (Ill. Rev. Stat. 1979, ch. 69, par. 3.)

Section 3 — 1 of the Injunction Act uses similar language where a temporary restraining order is sought without notice. Ill. Rev. Stat. 1979, ch. 69, par. 3 — 1.

The sole issue before us is whether, in the factual context presented here, the allegations of immediate and irreparable injury contained in the petition were sufficient under the statute to dispense with all notice of the intended application for the injunction.

The Board has argued that, because teacher strikes are illegal (Board of Education v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill. 2d 439, cert. denied (1971), 403 U.S. 904, 29 L. Ed. 2d 679, 91 S. Ct. 2203; Board of Education v. Redding (1965), 32 Ill. 2d 567), no notice is required prior to seeking to enjoin that illegal act, since notice would serve no useful purpose. Defendants’ answer is that, since the Board did not intend to seek an injunction until the following day, a telephone call could easily have been made to MEA’s attorney without delaying the application. MEA also urges that it would then have been possible for it to suggest that the judge use his “good offices” to arbitrate the dispute, thus perhaps avoiding the injunction and resulting animosity and ill will. Or, MEA suggests, if it were determined that the injunction should issue, it should have the right to suggest conditions for the court’s consideration. The fact that the teachers’ union was then engaged in an unlawful strike does not, of course, enhance its position. Nevertheless, the fact is that the clear language of the statute does not support the Board’s contention. The statutory language explicitly requires notice unless some immediate and irreparable injury, loss or damage will result before notice can be served and a hearing had. (Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B (1976), 63 Ill. 2d 514, 523.) The Board made no allegation that in the time it would take to notify MEA’s attorney that the Board was seeking an injunction there would be greater immediate and irreparable injury than without notice.

It is axiomatic that an injunction is an extraordinary remedy requiring urgent and extreme circumstances before it may be issued without notice. In other circumstances where the identity and location of defendants and their counsel may not be known as it was here, the allegations of plaintiff’s complaint might be considered sufficient to dispense with notice prior to applying for the injunction. Certainly the circumstances here are sufficient to make unnecessary prior notice to every teacher involved in the dispute. But where counsel for the union and the Board are well known to each other and have, in fact, discussed the very dispute in issue, we believe that at least the requested telephone call should have been made. There is some indication from the record that the practice of attorneys dealing with injunctions in labor disputes is to accept a telephone call as notice when the opposing party intends to seek an injunction. While this informal notice is not to be viewed as a satisfactory replacement for formal notice, it is at least better than no notice at all, and does give opposing counsel the opportunity to appear when the petition is presented to the court. See Carroll v. President & Commissioners of Princess Anne (1968), 393 U.S. 175, 21 L. Ed. 2d 325, 89 S. Ct. 347; Bettendorf Stanford Bakery Equipment Co. v. UAW Local No. 1906 (1977), 49 Ill. App. 3d 20; Sangamo Electric Co. v. UAW (1976), 42 Ill. App. 3d 563; Board of Trustees v. Cook County College Teachers Union Local 1600 (1976), 42 Ill. App. 3d 1056; Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill. App. 271.

In Board of Education v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill. 2d 439, cert. denied (1971), 403 U.S. 904, 29 L. Ed. 2d 679, 91 S. Ct. 2203, relied upon by plaintiff, an injunction was issued against striking teachers without notice. In that case the defendants defied the court order without seeking to dissolve the injunction as erroneous. The only issue before the court was whether the defendants disobeyed an order of the court and could be held in contempt, and we do not regard that decision as dispositive of the issue here. We emphasize, however, that this opinion should not be regarded as a holding that some form of notice is always required prior to issuance of a preliminary injunction. That question is ordinarily a decision for the trial judge based upon the facts before him. We hold only that in the circumstances of this case, where counsel had discussed the case and knew each other well, a telephone call had been requested before an injunction was sought, no application was planned until the following day, and no showing was made that the giving of notice would aggravate the alleged injury, at least notice by telephone should have been given to opposing counsel. Whether an evidentiary hearing would thereafter be held, together with its nature and extent, would be a matter for the determination of the trial judge.

We accordingly affirm the judgment of the appellate court which reversed the order of the circuit court granting injunctive relief without notice.

Judgment affirmed.

MR. JUSTICE MORAN,

specially concurring:

There is but one issue in this case: Did the Board’s petition contain sufficient allegations of immediate and irreparable injury, as required by statute, to alleviate the need of notice prior to the issuance of a preliminary injunction?

The court answered this question early in its opinion by stating:

“The Board made no allegation that in the time it would take to notify MEA’s attorney that the Board was seeking an injunction there would be greater immediate and irreparable injury than without notice.” 85 Ill. 2d at 401.

By continuing, the court has obfuscated the law as it relates to the type of notice, if any, required prior to the issuance of a preliminary injunction.

To hold, even under the circumstances of this case, that a telephone call in lieu of formal notice was required leads to a dangerous precedent with attending difficulties. Will a telephone call cure an insufficient complaint, as in the instant case? How is verification of such notice to be accomplished? This case is an example where an unresolved question remains: Did the attorneys agree to substitute notice via a telephone call? These and other collateral issues will arise to plague the expeditious processing of like cases.


author: MR. JUSTICE CLARK

text:
    (No. 54217.
    CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Petitioner, v. A. A. MATOESIAN, Judge, et al., Respondents.

      Opinion filed June 26, 1981.

    — Rehearing denied October 19, 1981.

    James P. Daley and Ronald J. Cuchna, of Chicago, for petitioner.
    John T. Pierce, Jr., of Paul L. Pratt, P.C., of East Alton, for respondents.
    Baker & McKenzie, of Chicago (Francis D. Morrissey and Paul B. O’Flaherty, Jr., of counsel), for amici curiae Atchison, Topeka 8c Santa Fe Railway Co. et al.

   MR. JUSTICE CLARK

delivered the opinion of the court:

This is an original proceeding for a writ of mandamus (73 Ill. 2d R. 381) requesting this court to direct the respondent judge A. A. Matoesian, of the circuit court of Madison County, to vacate his order of August 25, 1980, denying the petitioner Chicago and North Western Transportation Company’s motion to dismiss an action brought under the Federal Employers’ Liability Act (45 U.S.C. sec. 51 etseq. (1976)) (FELA).

Respondent Jeffrey S. Reddick allegedly was injured on December 20, 1979, while employed at petitioner’s railroad car shop in Clinton, Iowa. Most of the witnesses likely to be called to testify reside in or near Clinton. Reddick filed suit under the FELA on May 21, 1980, and the case was assigned to the respondent judge. On July 7, 1980, the petitioner filed a motion to dismiss the plaintiff’s complaint based on the doctrine of forum non conveniens. The motion was supported by an affidavit sworn to by John H. Caster, an assistant vice-president of petitioner, which averred facts concerning the inconvenience of maintaining the action in Madison County. Memoranda were filed in support of the motion.

The plain tiff-resp on dent filed a memorandum in opposition to the motion to dismiss. The plaintiff has subsequently filed an affidavit with the circuit court asserting that he is now a resident of Fulton County, Illinois.

The petitioner, a Delaware corporation, is licensed to conduct business in Illinois. It has its executive offices in Chicago and owns property and conducts business in numerous Illinois counties, including Madison County. The circuit court of Madison County has subject matter jurisdiction over the parties, and venue is proper in Madison County.

The petitioner contends that the circuit court of Madison County should have declined to exercise its jurisdiction and, based upon the relative inconvenience to the petitioner in maintaining the action in Madison County, should have dismissed the plaintiff’s complaint.

The respondents argue, as the plaintiff did in the trial court, that the State does not have the equitable power to decline jurisdiction under the doctrine of forum non conveniens since the plaintiff has a substantial right in choosing his forum which cannot be overridden by the inconvenience it causes the defendant. The plaintiff cites section 6 of the FELA (45 U.S.C. sec. 56 (1976)) and Pope v. Atlantic Coast Line R.R. Co. (1953), 345 U.S. 379, 97 L. Ed. 1094, 73 S. Ct. 749, to support his thesis.

The respondents also argue that the petitioner does not have a right to defeat the plaintiff’s “substantial right” to choose his own forum for the trial of his cause of action.

Finally, respondents argue that the trial court did not abuse its discretion herein in denying petitioner’s motion to dismiss. Respondents then argue that mandamus is not an appropriate remedy in this case because the trial judge’s decision to deny the motion to dismiss is an exercise of his discretion which is not a proper subject of review by mandamus.

We need not reach the substantive arguments in this matter since we think that mandamus is inappropriate in this case. Mandamus will not lie to correct mere judicial errors (Horn v. Rincker (1981), 84 Ill. 2d 139, 148; Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 334), nor will it lie to direct the manner in which a judge is to exercise his discretion (People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 180; People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515). Clark was an FELA action brought in Cook County by the administrator of the estate of a deceased employee, a brakeman, who was killed in a head-on collision between two trains in New Mexico. The decedent had resided with his wife and seven children in New Mexico. The administrator resided in Oklahoma. The defendant railroad owned property and operated its business in various States, including Illinois, New Mexico, and Oklahoma. The defendant railroad filed a motion to dismiss the Illinois lawsuit on the ground of forum non conveniens. The trial judge denied the motion on the ground that the plaintiff’s right to choose his forum under section 6 of the FELA is a substantial right which should not be taken away by the courts, “at least unless there is more of a showing than is contained [here].” This court held:

“[A] motion to dismiss based on forum non conveniens raises an issue which necessitates an exercise of discretion by the trial judge in ruling thereon. Such discretionary action of a trial judge cannot be reviewed or controlled by mandamus unless the judge refused to exercise his discretion at all ***.” (People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 520.)

Accordingly the writ of mandamus was denied.

The petitioner and amici curiae refer us to People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, wherein it is stated:

“While mandamus will not lie to direct the manner in which a judge is to exercise his discretion, (People ex rel. Dolan v. Dusher, 411 Ill. 535) it is available to compel the exercise of discretion. (People ex rel. Atchison, Topeka and Santa Fe Railway Co. v. Clark, 12 Ill. 2d 515.) Judicial discretion is to be exercised ‘within the scope of the law,’ (Whitney v. Madden, 400 Ill. 185, 190,) and where the exercise of discretion has been frustrated by the application of an erroneous rule of law, this court has intervened by mandamus to compel the exercise of discretion in a manner ‘consistent with the law.’ People ex rel. Barnes v. Chytraus, 228 Ill. 194, 200.” 30 Ill. 2d 178, 180-81.

The trial judge in Donovan had denied the defendant railroad’s motion to dismiss an FELA action based on forum non conveniens because the trial judge believed that such a motion is appropriate “only when it is shown that the defendant’s choice of forum was motivated by an actual intent to harass or vex the defendant.” (30 Ill. 2d 178, 180.) This court thereupon disavowed any language in a prior decision (Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 160) which might have encouraged such a narrow standard for deciding forum non conveniens questions. The court then issued a writ of mandamus directing the trial judge to vacate the order delaying the defendant railroad’s motion in light of the applicable standards governing forum non conveniens contained in Whitney v. Madden (1948), 400 Ill. 185, cert. denied (1948), 335 U.S. 828, 93 L. Ed. 382, 69 S. Ct. 55, and in other portions of the Cotton decision.

The petitioner contends that mandamus is appropriate in these premises because the trial judge must have “acted on the basis of erroneous law” or “gave undue weight to plaintiff’s interest in choosing his forum to the exclusion of the other criteria he should have considered.” The petitioner argues that if the trial judge had applied the proper legal criteria he would have allowed its motion to dismiss. Thus, the petitioner concludes, the trial judge did not exercise his discretion in a manner consistent with the law of this State and mandamus will lie to expunge the judge’s order and to dismiss the plaintiff’s complaint.

The record herein is not wholly clear as to the criteria the trial judge used in deciding to deny the motion to dismiss. Memoranda were submitted to the court by the parties, and oral arguments were heard by the court. The memoranda are contained in the record and set out quite well the criteria laid down by our prior cases concerning whether a motion to dismiss based on forum non conveniens should be allowed.

Moreover, the brief filed with this court on behalf of the respondent judge and the respondent plaintiff submits that “all the appropriate law was submitted to the trial court and the trial court considered all the appropriate criteria and used its discretion and came to the proper conclusion and did not abuse its discretion.” While the foregoing statement is of course self-serving, it is at least an assertion by the trial judge that he considered the applicable legal criteria for deciding the motion. Petitioner has offered no basis for concluding otherwise, other than that, if the trial judge had considered the applicable criteria, he would have decided in its favor. That assertion hardly establishes a “clear right” (Horn v. Rincker (1981), 84 Ill. 2d 139, 148) to the extraordinary remedy of a writ of mandamus.

Additionally, we cannot assume the trial judge used inappropriate criteria in denying the motion, since the record is devoid of any indication to that effect. As far as can be ascertained on this short record, the trial judge considered the appropriate criteria and denied the motion to dismiss. Whether the judge erred in denying the motion, which constituted a discretionary act, is not a proper issue in a mandamus proceeding. Mandamus is not designed to be a substitute for an appeal. (Lara v. Schneider (1979), 75 Ill. 2d 63, 64.) A determination of the correctness of the trial judge’s decision must await an appeal. See People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 116; Fender v. St. Louis South western Ry. Co. (1971), 49 Ill. 2d 1.

We of course do not intimate any view as to the merits of the parties’ respective arguments. We hold only that, in this case, mandamus is not an appropriate remedy since it would issue to direct a judge to perform a discretionary act where there is no showing that the judge either (1) failed to exercise his discretion or (2) has frustrated the exercise of discretion by applying an erroneous rule of law. People ex rel Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 180.

Accordingly, the writ of mandamus is denied.

Writ denied.