text:
    (No. 52702.

      In re MARRIAGE of ALBERT ASCHWANDEN, Appellant, and EDITH BRIGITTA ASCHWANDEN, Appellee.

      Opinion filed September 29, 1980.

      Rosenberg, Rosenberg, Bickes & Johnson, Chartered, of Decatur (Wayne L. Bickes, of counsel), for appellant.
    Richard J. Welsh and Richard L. Heavner, of Welsh, Kehart & Shafter, P.C., of Decatur, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

On October 6, 1977, after 25 years of marriage, plaintiff, Albert Aschwanden, filed a petition for dissolution of marriage from defendant, Edith Aschwanden. Defendant counter-petitioned for legal separation and, thereafter, for dissolution of marriage. The circuit court of Macon County granted plaintiff’s petition and ordered, inter alia, that plaintiff transfer to defendant stocks valued at $120,000 but retain all other marital properties in his possession, that plaintiff pay to defendant, as maintenance, $15,000 per year for 10 years (later modified to 12 years) or until her death or remarriage, and that plaintiff pay $14,000 of defendant’s attorney’s fee. On appeal by defendant, the appellate court affirmed that portion of the judgment ordering dissolution of the marriage but reversed the remaining portion of the judgment and remanded the cause for further proceedings. (76 Ill. App. 3d 680.) We granted plaintiff leave to appeal.

Plaintiff and defendant, both born in Switzerland, were married there on May 31, 1952. Two weeks later they moved to New York, where both were employed. For approximately seven years, defendant worked full time as a dental assistant but left this employment when plaintiff began to work for his present employer, Archer-Daniels-Midland Company (ADM) in Minnesota. Shortly thereafter, defendant became ill and, subsequently, underwent three back operations. In 1963, defendant returned to work part time, again as a dental assistant. In 1969, the couple followed ADM’s move to Decatur, Illinois, where they purchased a home for over $70,000. They had household help for about two years, after which defendant did the housework.

Plaintiff was transferred to Brussels, Belgium, in 1973, where his business responsibilities included entertaining customers of ADM. ADM executives often visited the couple’s home, and several of them stayed overnight at various times. The couple occupied a two-story, seven-bedroom, four-bath villa, and though they had a full-time, live-in maid, defendant did the shopping and planned the meals.

In March of 1977, when plaintiff was transferred back to Decatur, the couple separated. Defendant rented an apartment in Lucerne, Switzerland, where her family lived. She began looking for work in the autumn of 1977 and, in Febmary of 1978, found employment as a dental assistant. Defendant works 22 hours per week, earning about $500 per month, and testified that she cannot work more hours because of her back ailment. She also testified to her monthly expenses, and to the fact that her standard of living decreased since the separation. The testimony was conflicting as to the employment opportunities in the area where defendant lives, but, according t'o defendant, she is earning as much money as possible.

Plaintiff’s income has increased steadily since he began his employment with ADM. In the three years ending with 1978, his income has ranged from $81,300 to $116,024. Through a stock-option plan for key management employees, under which stock options were awarded on a merit basis, plaintiff has acquired 37,400 shares of ADM stock. The cost of the shares to plaintiff was $129,675.29 and, as of the hearing date, their market value was $565,675. A relatively minor amount of other property is owned by the couple, and all of their property is marital property. (See Ill. Rev. Stat. 1977, ch. 40. pars. 503(a), (b).) The couple’s net worth was calculated to be $543,310.57.

At the time of the hearing, plaintiff was 51 years old and defendant was 46. The couple has remained childless.

On April 25, 1978, when the case was called for hearing, section 403(e) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1977, ch. 40, par. 403(e)) required that contested trials be on a bifurcated basis, i. e., 48 hours must intervene between trial on the alleged grounds for dissolution and trial on the remaining issues. The parties, however, agreed to waive the 48-hour requirement and to present evidence at a single hearing.

Following the hearing, the court granted plaintiff’s petition for dissolution, finding that plaintiff had proved the material allegations of his petition but that the defendant had failed to prove the material allegations of her counter-petition.- The court further found that plaintiff had made a greater contribution to the acquisition of the marital assets than had defendant, but that defendant lacked sufficient resources (from marital property apportioned to her as well as from that attainable through appropriate employment) to provide for her reasonable needs and support, so that defendant should receive maintenance from plaintiff. The order described earlier was then entered.

The appellate court utilized two separate bases for reversing all but that portion of the judgment which ordered dissolution of the marriage. First, the court held that the trial court’s property award failed to meet the “just proportions” requirement of section 503(c) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(c)), and that the maintenance and attorney’s fee awards did not make the property award equitable. Second, the court held that under Strukoff v. Strukoff (1979), 76 Ill. 2d 53, the 48-hour waiting period under section 403(e) is mandatory and cannot be waived. The appellate court further ordered the trial court, upon remand, to take judicial notice of the value of the stock on the date of the further proceedings.

Plaintiff contends: (1) the trial court did not abuse its discretion in disposing of the marital property between the parties; (2) the appellate court erred by not considering the amount of maintenance awarded in reviewing the division of marital property; (3) the 48-hour waiting period requirement of section 403(e) is not applicable here because the case was not “contested”; and (4) the recent amendment to section 403(e) expressly permits the parties to waive the 48-hour waiting period and should apply to this case.

We note that the portion of the trial court’s judgment dissolving the marriage of the parties has not been challenged; it is therefore affirmed.

As to the remaining issue, however, section 503(c) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(c)), which governs disposition of property, provides in pertinent part:

“In a proceeding for dissolution of marriage or declaration of invalidity of marriage, *** the court shall assign each spouse’s non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, inluding the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
(5) any obligations and rights arising from a prior marriage of either party;
(6) any antenuptial agreement of the parties;
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(8) the custodial provisions for any children;
(9) whether the apportionment is in lieu of or in addition to maintenance; and
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.”

Several of the foregoing numbered factors, which the court is to consider in dividing the marital property in “just proportions,” are relevant here. Initially, we find to be without merit plaintiff’s argument that the appellate court failed to consider the maintenance award, contrary to the dictates of section 503(c)(9). The appellate court’s statement that “[t] he [trial] court’s maintenance award and award of attorney’s fees do not make the marital property award equitable” (76 Ill. App. 3d 680, 682) demonstrates that the court did consider the maintenance award in determining that the marital property awarded defendant was insufficient.

We note that the Act expressly directs the court to consider contributions of a spouse as a homemaker or to the family. The evidence reveals that, although at times the couple employed domestic help, defendant contributed substantial services as a homemaker over the long duration of the couple’s marriage. Moreover, she also helped to entertain ADM executives and customers. As noted by the appellate court, the marital property awarded to defendant represents only about 22% of the couple’s net worth. Plaintiff’s occupation and his long-standing employment with ADM afford him both a very high and steady income and the prospect of continued high income in the future. He is also assured of a generous pension upon retirement. His opportunity for future acquisition of capital assets is excellent. By contrast, defendant’s station and health leave her with little opportunity to regain and maintain the standard of living to which the couple had become accustomed or acquire significant amounts of assets or income in the future.

We do not view the Act’s property-disposition section, the constitutionality of which was upheld in Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, as mandating an equal distribution of marital property. Rather the section provides the trial court with discretion to divide the marital property in what it considers to be “just proportions,” taking into account the listed factors, along with any other factors that are deemed relevant in a particular case. According to the record herein, defendant’s basic living expenses will require complete use of the maintenance award along with her present salary income. Based upon this fact and upon our foregoing review of the other facts and circumstances, we conclude that the trial court abused its discretion in awarding defendant only $120,000 worth of stock out of the couple’s $543,000 net worth of marital property. The trial court’s judgment, therefore, other than that portion which dissolved the marriage of the parties, is reversed. The cause is remanded with directions that the trial court reassess and modify its marital-property division, in accordance with the guidelines set forth in section 503(c) of the Act, as well as take any other action which the court deems advisable. While we perceive some difficulty in assessing the value to be placed on the different forms of contribution, we caution against placing too much emphasis on monetary contributions over nonmonetary contributions. At all times, the court is to keep in mind that the ultimate objective is to achieve a division of property which is in “just proportions.” Where the property available to the defendant spouse is sufficient to satisfy that spouse’s needs and entitlements, the use of maintenance should be limited. (Auerbach, An Introduction to the New Illinois Marriage and Dissolution of Marriage Act, 66 Ill. B.J. 132, 137 (1977).) Thus, if sufficient marital property is found, an award of maintenance may be unnecessary. If there is not sufficient marital property, however, maintenance should be considered.

As a separate basis for its partial reversal of the trial court’s judgment, the appellate court held that it was error to permit the parties to waive the 48-hour waiting period requirement of section 403(e) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 403(e)). The version of this section which was in effect during the trial and the first appeal provided:

“Contested trials should be on a bifurcated basis with the grounds being tried first. Upon the court determining that the grounds exist, the court shall allow not less than 48 hours for the parties to settle amicably the remaining issues before resuming the trial.”

The foregoing provision has been held constitutional and the waiting period mandatory. (Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 61-62.) We note that, although no cross-examination was conducted by either side during the first portion of the trial which established the necessary grounds, each party had petitioned for dissolution of marriage from the other and each presented evidence in support of his or her petition, much of it conflicting. Furthermore, resolution of the remaining issues was strongly disputed. The trial, therefore, was “contested” within the meaning of section 403(e).

An amendment to this section, however, was approved just prior to the appellate court’s opinion on denial of rehearing. Although not mentioned by the appellate court, the amendment expressly permits the parties to waive the 48-hour waiting period and proceed immediately to trial on the remaining issues. (Ill. Rev. Stat. 1979, ch. 40, par. 403(e).) Being procedural in character (see Ogdon v. Gianakos (1953), 415 Ill. 591, 595-96), this amendment applies retrospectively to this case so that the parties’ waiver of the 48-hour period was valid. See Landesman v. General Motors Corp. (1978), 72 Ill. 2d 44, 48; Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 337.

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

Affirmed as modified.


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 52665.
    BILL JOINER, Appellant, v. BENTON COMMUNITY BANK, Appellee.

      Opinion filed September 29, 1980.

      Elmer Jenkins, of Benton, for appellant.
    John E. Jacobsen, of Campbell, Furnall, Moore & Jacobsen, of Mt. Vernon, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The circuit court of Franklin County entered summary judgment for the Benton Community Bank, defendant in a malicious prosecution action brought against it by Bill Joiner, plaintiff. A divided appellate court reversed and remanded the cause for trial (76 Ill. App. 3d 871), and we allowed defendant’s petition for leave to appeal.

In 1976, when the occurrences from which this litigation arose took place, plaintiff had been a used car dealer in Benton for some 16 years. During most of that period defendant had furnished “floor plan” financing for the used car business up to a maximum of $35,000. Under that arrangement plaintiff purchased used cars in Illinois and surrounding States and kept them on his lot until they were sold. Bills of sale, promissory notes and trust receipts for those cars were executed by plaintiff to defendant, the terms of which limited plaintiff to cash sales of the financed cars. The document terms also required plaintiff to report to defendant the sale of any car so financed on the day of sale, keep the proceeds of the sale segregated from plaintiff’s personal funds and pay those proceeds to defendant on the sale date.

During October 1975 a routine check of the used car lot by defendant disclosed that some 12 of the financed cars were missing. Those cars had been sold by plaintiff without payment of the proceeds to defendant, and indictments were subsequently returned against plaintiff in February 1976, charging him with theft in that he “knowingly obtained by deception control over” defendant’s property, permanently depriving defendant thereof in violation of sections 16 — 1(a) and (b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 16 — 1(a), (b)), and with disposing of collateral security without paying the party secured by the security agreement in violation of section 9 — 306.01 of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 9 — 306.01). Those indictments were dismissed on July 21, 1976, by the Franklin County circuit court, the docket entry reading:

“On motion of the special prosecutor William Meehan, previously appointed by the Court, and at the request of the complaining witness and in view of the fact that full restitution has been made to the complaining witness and because of the state of ill health of the defendant Robert Ewing and for other good cause shown the above case is dismissed upon motion of the special prosecutor.”

On January 7, 1977, plaintiff filed his complaint for malicious prosecution. In a subsequent deposition taken by defendant, plaintiff testified that, following discovery by defendant that plaintiff had sold 12 cars without remitting the proceeds, defendant replevied and sold the remaining cars, applying the proceeds to plaintiff’s indebtedness and leaving a balance of about $24,000 plus interest owed by plaintiff to defendant. Plaintiff further testified that following his indictment he had many conversations with defendant’s employees.

“A. I can’t tell you all the conversations, you know, that I had with them. I mean, they had me arrested and I went in and talked to them, and still seeing if I couldn’t make some kind of arrangements to pay this debt that I owed. And I talked to Mr. Davis and Mr. Wagner and Mr. Newcomb at various times.
Q. Were these had after you were indicted or before you were indicted?
A. That was after I was arrested and after I was indicted.
***
Q. As to those conversations, can you tell me the substance of any of them?
A. Well, they had me indicted for theft and they had me indicted for fraud, and what I wanted to do was to pay the bank what I owed them, but I wanted these indictments, well, I wanted these charges dropped against me. That’s the essence of the whole thing, I guess.
Q. Do you recall what any of the bankers said when you explained this to them?
A. Yes. They stipulated that a few times. They didn’t know what they could do. They also stipulated that they were interested in their money, only in getting their money.
Q. Who said that?
A. Mr. David and Mr. Wagner, all they were interested in was getting their money.
Q. Then what happened next?
A. Well, I was brought before, I was told to appear in court and my partner and I, Bob Ewing, we appeared in court. We talked to the prosecuting attorney.
Q. Who was that?
A. Bill Meehan, and we discussed it very thoroughly.
We never did go before the judge. We were never arraigned, and if I would pay my money there was an agreement that charges could be dismissed.
***
Q. What kind of response did you make to what Meehan told you?
A. I told him I would pay what I owed them if they would drop these charges.”

Thereafter, plaintiff testified, he and his wife borrowed from another Benton bank, where his wife was employed, sufficient funds to pay defendant, and the special prosecutor dismissed the criminal charges.

The summary judgment for defendant entered by the trial court is a salutary means of disposing of litigation in which there is no genuine factual dispute. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 586; Allen v. Meyer (1958), 14 Ill. 2d 284, 292.) Section 57 of our Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57(3)) authorizes summary judgment where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Our inquiry focuses, then, upon whether the pleadings in this case, together with plaintiff’s deposition, pose a genuine issue of material fact for, if they do, the trial court erred in its summary disposition. We believe, however, that they do not, and that the summary judgment entered by the trial judge was proper.

This court and others have indicated that suits for malicious prosecution are not favored in law. (Schwartz v. Schwartz (1937), 366 Ill. 247, 250; Shedd v. Patterson (1922), 302 Ill. 355, 359-60; Ada Oil Co. v. Dillaberry (Tex. Civ. App. 1969), 440 S.W.2d 902, 914.) Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy. Persons acting in good faith who have probable cause to believe crimes have been committed should not be deterred from reporting them by the fear of unfounded suits by those accused. It was for the purpose of encouraging and protecting those who exercise their constitutional right to appeal to our courts for redress of private or public grievances that the circumstances in which malicious prosecution actions may be brought have been rather narrowly circumscribed.

Plaintiff, in order to state a cause of action for malicious prosecution, must allege facts showing “(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.” (Ritchey v. Maksin (1978), 71 Ill. 2d 470, 475.) If the absence of one or more of these essential elements has been established to the point that it may fairly be said that no genuine issue of fact as to its absence exists, summary judgment was appropriate. It seems apparent from plaintiff’s deposition that this may well be true of several elements, but defendant, the trial judge and the appellate court have concentrated their attention upon whether the criminal proceedings were terminated pursuant to an agreement or compromise procured by plaintiff or to which plaintiff consented. It is clear that the settled law bars a malicious prosecution action predicated upon criminal proceedings which were terminated in a manner not indicative of the innocence of the accused (Restatement (Second) of Torts sec. 660(a) (1977); 52 Am. Jur. 2d Malicious Prosecution sec. 43 (1970); Annot., 67 A.L.R. 513 (1930); Schwartz v. Schwartz (1937), 366 Ill. 247, 252; Ewe v. Angland (1945), 325 Ill. App. 677, 60 N.E.2d 774.) Thus, one who procures or agrees to a disposition of the charges against him in a manner which leaves the question of his innocence unresolved may not bring a malicious prosecution action based upon such charges. (See, e.g., above citations and Zebrowski v. Bobinski (1938), 278 N.Y. 332, 16 N.E.2d 355; Leonard v. George (4th Cir. 1949), 178 F.2d 312, cert, denied (1950), 339 U.S. 965, 94 L. Ed. 1374, 70 S. Ct. 1000; Baird v. Aluminum Seal Co. (3d Cir. 1957), 250 F.2d 595, 601-02; Merritt-Chapman & Scott Corp. v. Elgin Coal, Inc. (E.D. Tenn. 1972), 358 F. Supp. 17, 20, affd (1973), 477 F.2d 598; Gowin v. Heider (1963) 237 Or. 266, 386 P.2d 1; Cline v. Flagler Sales Corp. (Fla. App. 1968), 207 So. 2d 709, 710; Lloyd v. Almeda State Bank (Tex. Civ. App. 1961), 346 S.W.2d 947; Kabnick v. O’Malley (1977), 58 App. Div. 2d 804, 805, 396 N.Y.S.2d 253, 255.) Many of the cases state the reason for the rule to be that plaintiff admits the existence of probable cause when he enters into or procures a compromise or an agreement for dismissal of the charges against him; others state that plaintiff is thereafter “estopped” to deny that probable cause existed.

Plaintiff testified that he wanted to pay the bank what he owed but “I wanted these charges dropped against me. That’s the essence of the whole thing, I guess”; that “Bill Meehan [the special prosecutor] and we [plaintiff and his partner] discussed it very thoroughly [and] *** if I would pay my money [to the bank] there was an agreement that charges could be dismissed.” There is, in our judgment, only one sensible inference to be drawn from plaintiffs testimony — he entered into an agreement to pay the bank after which the prosecutor would dismiss the charges. Plaintiff made the payment, the charges were dismissed, and he is now precluded from seeking damages for malicious prosecution. The identity of the other parties to the agreement — a matter of great concern to defendant and the appellate court majority — is not consequential. Whether the agreement involved the bank, the prosecutor, plaintiff’s partner and plaintiff, or only the prosecutor and plaintiff, is of no moment. The crucial question is: Was there a compromise or agreement procured or consented to by plaintiff? He testified that “the essence” of his efforts was to pay what he owed the bank and have “these charges dropped”; and that, after he talked to the prosecutor, “there was an agreement” to dismiss them. Clearly, we believe, an untortured interpretation of plaintiff’s testimony can be only that plaintiff procured or agreed to the dismissal of the charges.

The judgment of the appellate court is reversed, and the judgment of the circuit court of Franklin County is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE CLARK

text:
    (No. 52773.
    MID-AMERICAN LINES, INC., et al., Appellees, v. THE INDUSTRIAL COMMISSION et al. (Dorothy Johnson, Appellant).

      Opinion filed September 29, 1980.

      Raymond Lannon, Ltd., of Chicago (Raymond L. Lannon and Patricia C. Lannon, of counsel), for appellant.

      Braun, Lynch, Smith & Strobel, Ltd., of Chicago (Thomas P. Smith and James W. Ford, of counsel), for appellees.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This workmen’s compensation case (see Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) arose out of fatal injuries sustained by Walter A. Johnson on September 13, 1977. The parties stipulated that his death was compensable under the Act but could not agree that he had dependents entitled to an award or on the amount of medical expenses owed. The first time this case was heard the arbitrator and the Commission found that the decedent was survived by his widow, Dorothy Johnson, and by a minor child, Dorothy Victoria (Vicky) Gilmore, the widow’s granddaughter, to whom decedent stood in loco parentis. The appropriate death benefits were ordered to be paid “to said widow, for her use and benefit and for the care, education and maintenance of said minor grandchild, subject to the further order of the Industrial Commission of Illinois. ” The circuit court of Cook County remanded the cause to the Commission “for further evidence on the issue of the relationship of Vicky Gilmore to the deceased, Walter Johnson.” In all other respects the Industrial Commission award was confirmed.

Before the Commission reheard the case, the widow filed a petition requesting attorney fees and penalties under sections 19 (k) and 16 of the Act (Ill. Rev. Stat. 1975, ch. 48, pars. 138.19(k), 138.16), for unreasonable and vexatious delay on the part of respondent in paying the awarded compensation. The Commission consolidated the hearing on the in loco parentis issue and on the widow’s petition. The respondent, however, conceded that the deceased stood in loco parentis to Vicky Gilmore. The Commission then ordered 50% of the award to “be used solely for the care, education and maintenance of Dorothy Victoria Gilmore, subject to the further order of the Industrial Commission.” The Commission also ordered respondent to pay attorney fees in the amount of $1,064.74 under section 16 of the Act and a 50% penalty in the amount of $5,323.68 under section 19(k). The circuit court of Cook County set aside the assessment of attorney fees and the penalty; otherwise the award was confirmed.

The widow first challenges the circuit court’s original order of remandment for further evidence on the in loco parentis issue. The remand order was interlocutory and therefore not appealable when issued. Pursuant to that order, the Commission had original jurisdiction subject to the remanding court’s directions. The Commission’s post-remand actions are appealable to this court after review in the circuit court. We now must review the whole record, including the propriety of the original order of remandment. See Stockton v. Industrial Com. (1977), 69 Ill. 2d 120, 124-26; Technical Tape Corp. v. Industrial Com. (1974), 58 Ill. 2d 226, 232-33; Wellman-Lord, Inc. v. Industrial Com. (1971), 48 Ill. 2d 533.

Section 7 (a) of the Act states that death benefits are payable to a surviving “widow, widower, child or children” and then defines child as “a child whom the deceased employee left surviving, including a posthumous child, a child legally adopted, a child whom the deceased employee was legally obligated to support or a child to whom the deceased employee stood in loco parentis. ” (Ill. Rev. Stat. 1975, ch. 48, par. 138.7(a).) Both parties here agree that the circuit court’s order of remandment pursuant to section 19(f)(2) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(f)(2)) was proper only if the Commission’s original finding, that the deceased stood in loco parentis to Vicky, was against the manifest weight of the evidence. See, e.g., Allis Chalmers Manufacturing Co. v. Industrial Com. (1971), 50 Ill. 2d 2; Wellman-Lord, Inc. v. Industrial Com. (1971), 48 Ill. 2d 533; Peabody Coal Co. v. Industrial Com. (1919), 289 Ill. 330.

In loco parentis did not have a monolithic common law meaning. (See Thomas v. United States (6th Cir. 1951), 189 F.2d 494, 505, cert. denied (1951), 342 U.S. 850, 96 L. Ed. 641, 72 S. Ct. 78; Banks v. United States (2d Cir. 1959), 267 F.2d 535.) A showing of in loco parentis, however, has come to require that the putative parent (1) intended to assume parental functions and (2) discharged parental duties. See Gribble v. Gribble (Utah 1978), 583 P.2d 64, 67; Lyles v. Jackson (1976), 216 Va. 797, 798, 223 S.E.2d 873, 874 (per curiam); Workman v. Workman (Okla. 1972), 498 P.2d 1384, 1386; In re Fowler (1972), 130 Vt. 176, 181, 288 A.2d 463, 466; McManus v. Hinney (1967), 35 Wis. 2d 433, 436-41, 151 N.W.2d 44, 45-48; Faber v. Industrial Com. (1933), 352 Ill. 115, 119-20.

The widow, Dorothy Johnson, was the only witness at the original hearing before the arbitrator. Much of her testimony related to the absence of dependent children from either her or the deceased’s earlier marriages. Exhibits relevant to funeral and medical expenses, her marriage to the deceased, and his death were admitted in evidence.

The widow and the deceased had no children from their marriage. She explained, however, that she had taken custody of Vicky Gilmore, 13, in 1973 under the terms of an alleged will which, concededly, was never probated and which was not introduced as evidence. (Upon remandment, it was identified as the will of Vicky’s father, the son-in-law of the widow. Because it was never authenticated, it was submitted on the record as a rejected exhibit.) Vicky lived with the widow and the decedent after their marriage on June 28, 1976. It is not clear whether they changed residences after the marriage. On cross-examination, the widow revealed that Vicky was in a special school for slow learners. In response to questions relating to the deceased’s children from prior marriages, the following colloquy took place:

“Q. Are they [the deceased’s children from a prior marriage] all physically well, self-sufficient to your knowledge?
A. Yes
Q. Are any of them retarded—
A. No sir.
Q. —or unable to support themselves?
A. They’re all married and have children.
Q. Do you know whether or not Mr. Johnson supported in whole or in part any grandchildren?
A. No sir. He didn’t. He didn’t.
Q. He did not?
A. No. The only one—
Q. Pardon
A. The only one, my granddaughter. Of course, she’s my granddaughter, living at home. He helped with her.
Q. Are you working at the present time?
A. Yes.”

On redirect examination she testified that the deceased had controlled the household money and that he wrote all checks. The arbitrator requested the production of the deceased’s income tax records, and, by stipulation, they subsequently were entered on the record, showing that from 1971 to 1976 the deceased claimed no dependents except himself.

We agree with the circuit court that this evidence was insufficient to support a finding that the deceased stood in loco parentis to Vicky Gilmore. There was no evidence that Vicky considered the deceased a surrogate father or that he functioned as a parent (see Workman v. Workman (Okla. 1972), 498 P.2d 1384, 1386; McManus v. Hinney (1967), 35 Wis. 2d 433, 436-41, 151 N.W.2d 44, 45-48) or that he considered himself her surrogate father. Evidence as to the amount or significance to Vicky of the support he provided (see Lyles v. Jackson (1976), 216 Va. 797, 798, 223 S.E.2d 873, 874 (per curiam)) was also absent; therefore it was impossible to determine whether it approximated that provided by a parent. (The deceased’s failure to claim Vicky as a dependent on his 1976 income tax return, however, is not probative of this issue. He filed singly that year, and it is doubtful that he could have claimed her as a dependent regardless of his in loco parentis status because she had not lived with him for the entire year (see 26 U.S.C. sec. 152(a)(9) (1976); 26 C.F.R. 1.152 — 1(b) (1976)).)

Faber v. Industrial Com. (1933), 352 Ill. 115, cited by the widow, does not command a contrary finding. There the claimant had taken the decedent from a hospital when he was four weeks old, had “mothered” him as her own son and, at the time of his death, was dependent upon him for support. In turn, he had taken her name, referred to her as his mother and, until his death, had always given her his earnings. The court, under these facts, held that the claimant was entitled to receive the compensation due under the Act pursuant to the in loco parentis doctrine. Here, no similar indications of in loco parentis were in evidence at the original hearing.

In Superior Coal Co. v. Industrial Com. (1922), 304 Ill. 320, also cited by the widow, this court upheld a minimum award based upon a child’s grandfather’s moral obligation to support her in circumstances where one parent had died and the other parent could not support her. The court in Superior Coal, however, would not have recognized a moral obligation on the part of the deceased in the instant case, a nonblood relative. See Faber v. Industrial Com. (1933), 352 Ill. 115, 119-20; Capek v. Kropik (1889), 129 Ill., 509, 515; Brush v. Blanchard (1856), 18 Ill. 46, 47.

The circuit court’s decision to remand the cause for additional evidence was proper. The widow failed to meet her burden of proof on this issue, but all of the relevant evidence had not been produced. See Conreaux v. Industrial Com. (1933), 354 Ill. 456, 464; Latham-Lincoln Mining Co. v. Industrial Com. (1923), 306 Ill. 588, 590.

When the case was reheard, respondent conceded that the deceased had stood in loco parentis to Vicky Gilmore. The widow claims, however, that the pro-rata division of the award is contrary to law and “unduly burdensome.” We agree. Respondent, citing Snyder v. Industrial Com. (1969), 42 Ill. 2d 18, argues that where there is more than one claimant under section 7(a) (Ill. Rev. Stat. 1975, ch. 48, par. 138.7(a)) the Commission must grant each an equal share of the award. Respondent further contends that Public Act 79 — 79 (approved June 30, 1975), reenacting in substance section 7, evidences legislative approval of Snyder. Our examination of Snyder and our reexamination of section 7 convince us that respondent’s argument is overbroad.

The substance of the present section 7 as relevant here has remained relatively constant since its enactment in 1915. Section 7(a) of that year (1915 Ill. Laws 402, Hurd’s Ill. Rev. Stat. 1915-16, ch. 48, par. 132(a)) provided death benefits for “any widow, child or children whom he [the decedent] was under legal obligation to support at the time of his injury.” Section 7(f) provided that these benefits were payable, at the employer’s option, to the deceased’s personal representative or to the beneficiaries and was to be distributed “to the heirs who formed the basis for determining the amount of compensation to be paid by the employer, the distributees’ share to be in the proportion of their respective dependency at the time of the injury on the earnings of the deceased: Provided, that, in the judgment of the court appointing the personal representative, a child’s distributive share may be paid to the parent for the support of the child.” (Emphasis in original.) 1915 Ill. Laws 402, Hurd’s Ill. Rev. Stat. 1915-16, ch. 48, par. 132(f).

Paragraph (f) was reenacted in 1917 as paragraph (g). (1917 Ill. Laws 494, Hurd’s Ill. Rev. Stat. 1917, ch. 48, par. 132(g).) Paragraph (a) remained virtually the same. In 1919, paragraph (g) was amended to allow the Commission or an arbitrator thereof, “in its or his discretion,” to “order or award the payment to the parent or grandparent of a child for the latter’s support the amount of compensation which but for such order or award would have been paid to such child as its share of the compensation payable, which order or award may be modified from time to time by the Commission in its discretion.” (1919 Ill. Laws 540, Hurd’s Ill. Rev. Stat. 1919, ch. 48, par. 132(g).) The new provision also required the employer to make payment directly to the dependents and not, as before, to the deceased’s personal representative or his beneficiaries, at its option. 1919 Ill. Laws 540, Hurd’s Ill. Rev. Stat. 1919, ch. 48, par. 132(g).

In Swift & Co. v. Industrial Com. (1919), 288 Ill. 132, litigated under the 1915 statute, the employer contended that death benefits owed under the Act to a widow and child, dependents by virtue of section 7(a), had to be apportioned. The court held to the contrary:

“[Paragraphs (a) and (f) of section 7] do not provide for determination by the Industrial Commission of the proportionate share which each beneficiary is entitled to receive where the beneficiaries are all of a class specified in paragraph (a) of said section[.] *** [T] he Commission must, in order to determine the total amount of compensation, determine who is entitled to receive the same. *** [However, it is not] incumbent upon the Commission to determine how much or what proportion of the compensation every member of the class may receive.” 288 Ill. 132, 139.

The 1937 version of the statute, stemming directly from the provisions of 1919, was similarly construed in Beckemeyer Coal Co. v. Industrial Com. (1938), 370 Ill. 113:

“The persons who formed the basis for determining the amount of compensation to be paid by the employer *** were the widow of the deceased employee and the minor children. These dependents are all of the class specified in paragraph (a) of section 7. In such cases the commission is not required to determine the proportionate share of the award which each beneficiary shall receive in case of the death of an employee. (Swift & Co. v. Industrial Com. 288 Ill. 132.)” 370 Ill. 113, 115.

Although the employer had requested a proration of the benefits, none of the dependents had requested it, and, under the facts adduced, no useful purpose would have been served by proration. The court explained, however, that the Commission subsequently could modify the award, if appropriate, to designate some person other than the mother as guardian or next friend for the purpose of receiving the compensation and that, in such a case, apportionment would be required. But “[t] he arbitrator and the commission were warranted, in the exercise of the discretion vested in them by section 7(g) of the statute, to direct payment of the entire award to the mother for the benefit of herself and the minor children. Neither apportionment of the award nor the appointment of a guardian was mandatory.” 370 Ill. 113, 116.

The purpose of the amendments of 1919 and of the Swift and Beckemeyer Coal holdings is readily explained when it is remembered that the Workmen’s Compensation Act was designed to replace the common law relating to industrial accidents with a compensation program administered by an agency. It would be administratively burdensome to require the involvement of courts in appointing personal representatives before compensation benefits could be awarded or to require the judgment of the court before death benefits could be paid to the parent or grandparent of a dependent child. The Commission is charged with assessing witness credibility and drawing inferences from the adduced facts, and it makes more sense for the Commission to make this judgment at the same time. Thus the amendments of 1919 entrusted the Commission with the additional discretion to pay a child’s death benefits to grandparents as well as parents, required these benefits to be paid directly to the dependents, and allowed the Commission to decide whether compensation should be paid to a dependent child’s parent or grandparent for the benefit of that child. Swift and Beckemeyer Coal both recognized that where a dependent child and mother lived together the death benefits could be paid to the mother for the use and benefit of both.

In 1951, paragraph (g) was reworded and made section 7(e). The substance of new section 7(e) remained the same. In Snyder v. Industrial Com. (1969), 42 Ill. 2d 18, the court stated that section 7(e) “was intended to apply only to apportionment of compensation among claimants under (b), (c) or (d) when dependency is a question of fact” and that “the legislative intent is best served in cases where multiple 7(a) claimants survive by granting each an equal share of the award.” (42 Ill. 2d 18, 25.) These statements broadly interpreted were dicta and in error and should be confined to the facts as presented in that case.

In Snyder, the decedent was survived by his widow and his daughter by a prior marriage. The arbitrator found that the daughter was over 18 years old at the time of her father’s death. Under section 7(a) of the Act, she was not entitled to compensation for that reason. The daughter was domiciled in Minnesota with her mother, however, pursuant to the divorce from the decedent. The Minnesota district court had ordered the decedent to pay child support until his daughter “became self-supporting, emancipated or 21.” (42 Ill. 2d 18, 20.) The court held that the Minnesota decree constituted a legal obligation to support the daughter, despite her age, within the scope of section 7(a). She was entitled, accordingly, to a portion of the death benefits.

The widow in that case requested a remand to the Commission to determine the extent of the daughter’s actual dependency under section 7(e). The court noted, in response, that section 7(a) beneficiaries were conclusively presumed to be wholly dependent. Therefore a remand to determine actual dependency was dysfunctional. The court, however, then had to decide how to divide the award.

In deciding this issue, Snyder relied on three cases, all of which involved children and widows living apart with the widows claiming a right to the entire death benefit. In those situations the courts could not leave minor children totally unprovided for, even if they were living with another adult, without negating the beneficent purposes of workmen’s compensation. Consequently, the awards were divided evenly and sent separately to the widows and children. (See Meade v. L. G. DeFelice & Son, Inc. (1950), 137 Conn. 292, 76 A.2d 862; Coakley v. Coakley (1913), 216 Mass. 71, 102 N.E. 930; Ocean Accident & Guarantee Corp. v. Stuart (E.D. La. 1950), 92 F. Supp. 225.) The latter case acknowledged the statutory provision whereby the entire death benefit, as increased by and owed to a dependent child or dependent children, was to be paid only to the wife “where the wife and child or children are residing together.” (92 F. Supp. 225, 226.) Snyder’s facts paralleled these cases, and the court adopted their rationale and ordered the award divided equally. 42 Ill. 2d 18, 25.

Whether the Commission, in its discretion, could award the entire death benefit to a section 7(a) dependent parent or grandparent living with a section 7 (a) dependent child, for the use of both, was not before the Snyder court, and the language relied upon by respondent in the instant case was, accordingly, dicta. As such, “it is not binding authority within the rule of stare decisis. ” (Williams v. Crickman (1980), 81 Ill. 2d 105, 113.) Upon reconsideration, we reaffirm Swift and Beckemeyer Coal and hold that the Commission, in its discretion, can award a section 7 (a) widow with custody of a section 7 (a) child the entire death benefit. The contrary language in Snyder should not be deemed to have overruled Swift and Beckemeyer Coal sub silentio. Snyder holds that where such an award to a section 7(a) widow is inappropriate (in that case because widow and child lived apart), it must be divided equally and sent to each section 7(a) dependent.

Public Act 79 — 79 (approved June 30, 1975) reenacting section 7, does not alter this analysis. Language in Snyder conflicted with the holdings of Swift and Beckemeyer Coal. It is our responsibility to reconcile these cases. (See Williams v. Crickman (1980), 81 Ill. 2d 105, 111-12.) Moreover, Public Act 79 — 79, by its terms, history and purpose, manifests no legislative intent — one way or the other — on the issue here and therefore cannot be interpreted as support for respondent’s position. See H. Hart & A. Sacks, The Legal Process 1404 (tent. ed. 1957).

In the instant case, the Commission exercised its discretion to prorate the award. We do not know whether it did so thinking that Snyder compelled this result. Respondent cites no evidence, however, that the widow would fail to provide first-rate care for Vicky.

Respondent argues that Vicky’s special schooling needs justify the proration. We disagree. The widow originally provided special schooling for Vicky, and there was no evidence that, absent proration, Vicky’s education would be impaired. Nor do we think Vicky would somehow be deprived of support without proration. The widow, with no apparent thought of recompense, has taken care of Vicky since 1973, long before her marriage to the deceased. Further protection is provided by the Commission’s ability to modify the award at any future time upon an appropriate showing. (Ill. Rev. Stat. 1975, ch. 48, par. 138.7(e).) We hold, accordingly, that the death benefits should be paid to Dorothy Johnson for her use and benefit and for the use, education and maintenance of Vicky Gilmore, subject to future modification by the Commission.

The Commission’s assessment of penalties and attorney fees (see Ill. Rev. Stat. 1975, ch. 48, pars. 138.16, 138.19(h)) was improper as the circuit court held. The arbitrator rendered her original decision on December 22, 1977. The respondent thereafter made payments pursuant to this award. The Commission affirmed the award on April 25, 1978. Respondent timely filed a writ of certiorari. This writ was dismissed on November 15, 1978, pursuant to a lump-sum negotiated settlement, for which contracts were prepared and executed by the widow, but was reinstated on December 5 after the widow, at the time of the settlement hearing, changed her mind and disapproved of the settlement. The circuit court remanded the cause on January 26, 1979. The respondent had stopped its payments on June 26, 1978.

The section 19 (k) petition was filed on February 15, 1979. The respondent paid the amount that had accrued since June 1978, in May 1979, and has apparently maintained the payments thereafter. The Commission’s decision was rendered in July 1979, and the appeals to the circuit court and this court followed.

Section 19(n) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(n)) contemplates that an employer can wait until the award is final and pay 6% interest on it, accruing from the date of the arbitrator’s decision, or it can avoid interest payments by tendering the payments due after the arbitrator’s decision. When an award is final, section 19(g) (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(g)) authorizes a party to obtain a judgment thereon. In light of these sections, it is not surprising that our cases concerning a claim for unreasonable or vexatious delay have analyzed the delay from the point at which an award became final. (See Board of Education v. Industrial Com. (1932), 351 Ill. 128; Board of Education v. Industrial Com. (1968), 39 Ill. 2d 167; Sanchez v. Industrial Com. (1973), 53 Ill. 2d 514; City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99; Wilbon v. Industrial Com. (1976), 65 Ill. 2d 221.) The payments in the instant case were tendered before the award became final.

Respondent has conceded throughout these proceedings that the widow was entitled to some award. But that concession is not dispositive. In City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99, the city had neglected, during proceedings before the arbitrator, to request credit under section 8(e) of the Act (Ill. Rev. Stat. 1969, ch. 48, par. 138.8(e)(17)) for payments made to the claimant for a prior injury. The city had not sought review of the award and it had become final. Several months later the claimant filed a section 19(k) petition. The court held that, because the city, in good faith, negotiated with the claimant for credit for the prior payments, no penalty could be assessed. It is worth noting that, as in the instant case— where the respondent did not dispute the widow’s right to an award — the city clearly could only legitimately contest that portion of the award which would constitute a double recovery in light of its payments for the prior injury.

The dispute over the form of the payments in the instant case was legitimate. Although it involved only a portion of the award, the respondent was entitled to withhold payments under these facts until this issue was resolved.

The judgment of the circuit court is affirmed in part and reversed in part. The cause is remanded to the Industrial Commission for entry of an award in accordance with this opinion.

Affirmed in part and reversed in part and remanded, with directions.


text:
    (No. 52590.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RUTH MIMS, Appellant.

      Opinion filed September 29, 1980.

      Ralph Ruebner, Deputy Defender, and Fe Fernandez, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr, Iris E. Sholder and Bruce W. Lester, Assistant State’s Attorneys, of counsel), for the People.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Ruth Mims, was convicted of murder after a jury trial in the Cook County circuit court on July 21, 1977. She was sentenced to 14 to 20 years in the penitentiary. On August 8, 1977, her attorney filed a notice of appeal in the appellate court. A short record also was subsequently filed. The defendant’s motion for bail pending appeal was denied October 5, 1977. Nothing else occurred in the matter until the appellate court dismissed the defendant’s appeal for want of prosecution on June 28, 1978. Counsel made a motion to withdraw as defendant’s attorney on April 24, 1979, which was denied for want of jurisdiction. The State Appellate Defender was thereafter substituted as defendant’s attorney of record on July 27, 1979. The appellate defender made a motion to vacate the order dismissing the appeal, which was denied August 27, 1979. The defendant then filed a petition for leave to appeal with this court, which was allowed. 73 Ill. 2d R. 315(a).

The record contains an affidavit by the attorney which states that he was informed by the defendant’s family, subsequent to his filing the notice of appeal, that they could not afford to pay him to represent the defendant on appeal. He further stated he waited for the family to tell him who would proceed with the appeal. The record also contains two letters dated August 2, 1978, from the attorney, one written to the defendant and the other to the clerk of the appellate court. In the letter to the defendant the attorney relayed the fact that her appeal had been dismissed. In the letter to the appellate court clerk, the attorney admitted he received a letter notifying him of the dismissal “in the early part of July, 1978.” It was not until May 1979 that the defendant asked an attorney who was teaching a class at Dwight correctional institution what recourse she possessed. That attorney notified the State Appellate Defender’s office, which then moved to be substituted as counsel, made the motion to reinstate the appeal, and prosecuted this appeal.

The State contends that it was through the inaction of the defendant, not her attorney, that the appeal was dismissed. We do not agree. The attorney was still the attorney of record on June 28, 1978, when the appellate court dismissed the appeal. It was his responsibility either to move to withdraw as her attorney, or to prosecute the appeal. He did neither. Furthermore, the attorney made no effort to inform the State Appellate Defender’s office that the defendant wished to retain that office.

This issue has been addressed before by this court. (People v. Jacobs (1975), 61 Ill. 2d 590; People v. Aliwoli (1975), 60 Ill. 2d 579; People v. Baze (1969), 43 Ill. 2d 298; People v. Brown (1968), 39 Ill. 2d 307.) We think the following statement from People v. Brown is controlling in this case:

“In keeping with [the] judicial attitude [of providing any defendant who so desires with at least one full appellate review of his conviction], and in light of the exceptional circumstances surrounding the defendant’s representation at the appellate level, principally the strong inference that his lawyer had no intention of prosecuting his appeal, we hold the instant case is not a proper one for application of the general rule that a client is bound by the acts or the failure to act of his lawyer. In so holding, we find it irrelevant whether the attorney was paid for the appeal, since in the event of nonpayment his proper remedy would have been to move to withdraw from the case rather than take no action and thereby forfeit defendant’s appeal rights. We further find that the defendant himself at no time knowingly waived his right to appeal.” 39 Ill. 2d 307, 311-12.

Accordingly, the defendant should be granted her right to direct appeal from her murder conviction and sentence. In the exercise of our supervisory authority we order that the defendant’s appeal to the appellate court be reinstated, and the cause is remanded to that court for further proceedings. Based on our resolution of this issue, we need not reach the question of whether the defendant is constitutionally guaranteed a right to appeal in these circumstances.

Appeal reinstated; cause remanded.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 52823.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WILLIAM H. NELSON, Appellee.

      Opinion filed September 29, 1980.

      William J. Scott, Attorney General, of Springfield, and Ronald Dozier, State’s Attorney, of Bloomington (Donald B. Mackay, Melbourne A. Noel, Jr., and Faith S. Salsburg, Assistant Attorneys General, of Chicago, and Gary J. Anderson and Robert J. Binderman, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Gary R. Peterson, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of McLean County defendant, William H. Nelson, was convicted of burglary and theft over $150. He was sentenced to the penitentiary for a term of seven years on the burglary count and five years on the theft count, to run concurrently. The appellate court reversed and remanded (77 Ill. App. 3d 85), and we allowed the People’s petition for leave to appeal. In reversing, the appellate court held that the assistant public defenders who represented defendant and a codefendant were to be “treated as one lawyer or at least as though they were members of the same firm.” (77 Ill. App. 3d 85, 87.) It determined that a conflict of interest arose in the joint representation of these codefendants and that when that conflict became obvious it was incumbent upon the circuit court to effect appointment of different counsel. The People contend that the representation of defendant and his codefendant by two different assistant public defenders was not joint representation and that there was no actual conflict of interest. The People contend further that no assertion of a conflict of interest was made prior to trial and the circuit court was not required sua sponte to recognize that there was a possible conflict of interest and appoint other counsel for defendant.

In separate informations, defendant and a codefendant, John Rogers, were charged with the offenses of burglary and theft over $150, and the McLean County public defender was appointed to represent them. At their joint preliminary hearing assistant defender John Schwulst represented both defendant and Rogers. Thereafter defendant was represented by assistant defender William Paul, while assistant defender Schwulst continued to represent Rogers. Prior to defendant’s trial Rogers pleaded guilty to the charge of burglary; however, at that time he had not yet been sentenced.

The evidence at trial showed that in the early morning hours of August 15, 1978, Maupin’s Market in Saybrook was burglarized. The owner testified that a number of cartons of cigarettes, some keys, and a quantity of change were missing from the store. Witnesses were unable to describe the perpetrators, but they testified that two persons departed the scene in a light-blue pickup truck. A short time after the occurrence an Illinois State Trooper noticed a pickup truck that was parked on a rural road and matched the description given by witnesses. The officer observed grocery sacks containing cigarettes in the rear of the truck, and, after assistance arrived, defendant and Rogers were taken into custody. When defendant was searched at the McLean County jail he was found to be in possession of keys taken from Maupin’s Market and a large quantity of change.

At trial, defendant called only one witness, the co-defendant, John Rogers. The examination conducted by defense counsel consisted of the following:

“Q. Please state your name.
A. J ohn Louis Rogers.
Q. Mr. Rogers, calling your attention to August 15, 1978, at approximately 3:00 o’clock p.m., were you involved in a burglary of Maupin’s Grocery in Saybrook, Illinois?
A. I refuse to answer the questions on the ground that it may incriminate me on the Fifth Amendment.
* * *
Q. Mr. Rogers, isn’t it true that you picked up William Nelson hitchhiking after you left Saybrook on that night in question?
A. I refuse to answer the question.
Q. On the Fifth Amendment?
A. On the Fifth Amendment.
Q. Mr. Rogers, isn’t it true that you burglarized that super market with another person and then dropped that person off who lived in Saybrook?
A. I refuse to answer that question on the Fifth Amendment.
Q. Mr. Rogers, isn’t it true that you gave Mr. Nelson coins that were taken from that market in Saybrook, Illinois, on that night in question after you picked him up?
A. I refuse to answer on the Fifth Amendment.
Q. Isn’t it true that you gave him two keys along with those coins after you stopped to pick him up when he was hitchhiking outside of Saybrook?
A. I refuse to answer on the Fifth Amendment.
Q. I have no other questions, Your Honor.”

At the conclusion of this testimony the defense rested. After the conference on instructions defendant’s counsel indicated that Rogers wished to testify. The court thereupon examined Rogers outside the presence of the jury, and Rogers advised the court that he would follow the advice of his counsel, Schwulst, and refuse to testify. After closing arguments the jury retired and found defendant guilty on both counts.

At no time prior to or during trial, or in post-trial motions, did defendant suggest that a conflict of interest had arisen as a result of the alleged joint representation of defendant and Rogers by the public defender’s office, and no motion was made requesting that independent counsel be appointed for that reason. Defendant filed two pro se motions which called into question the conduct of counsel. One, a motion for retrial, suggested that defendant’s counsel, William Paul, intimidated John Rogers, resulting in Rogers’ refusal to testify. The results of the circuit court’s inquiry prior to sending the case to the jury did not support this contention. The other motion, in the form of a letter to the circuit court, suggested that there was a “conflict of interest” between defendant and his counsel because of disagreements over such matters as the waiver of a jury trial and counsel’s willingness to interview John Rogers. Defendant in this letter requested that another attorney from the public defender’s, office, or an independent attorney, be appointed to replace William Paul, but did not point out any genuine conflict of interest. In addition, defendant filed a supplemental pro se motion for retrial, alleging that he had been denied legal representation from January 1, 1979, to January 25, 1979. The basis for this motion was that assistant defender Paul resigned from the public defender’s office on January 1, 1979, and was not replaced by another assistant defender until January 25, 1979. In that interval no motions were heard, but defendant did not allege that he was prejudiced in any way.

The rule, long established in this jurisdiction, is that a criminal defendant in need of representation is entitled to have appointed for him counsel who is free from adverse interests which might prejudice such representation. (People v. Bopp (1917), 279 Ill. 184.) In furtherance of this principle, it has likewise long been held that an attorney should not be required to represent codefendants whose defenses are inconsistent, since to do so would inevitably prejudice the defense of at least one client. 279 Ill. 184, 191-92.

Although it has been determined both by the United States Supreme Court and this court that joint representation of codefendants is not per se violative of constitutional guarantees of effective assistance of counsel (see Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173; People v. Precup (1978), 73 Ill. 2d 7; People v. Durley (1972), 53 Ill. 2d 156), the question has arisen repeatedly whether particular cases involving joint representation of codefendants involve defenses so antagonistic as to create a conflict of interest. (See, e.g., People v. Vriner (1978), 74 Ill. 2d 329; People v. Echols (1978), 74 Ill. 2d 319; People v. Berland (1978), 74 Ill. 2d 286; People v. Precup (1978), 73 Ill. 2d 7; People v. Durley (1972), 53 Ill. 2d 156; People v. Johnson (1970), 46 Ill. 2d 266; People v. Robinson (1969), 42 Ill. 2d 371; People v. Ware (1968), 39 Ill. 2d 66; People v. McCasle (1966), 35 Ill. 2d 552.) The question to be addressed in cases where codefendants are jointly represented by one attorney or entity is whether there was an “ ‘actual conflict of interest manifested at trial.’ ” (People v. Vriner (1978), 74 Ill. 2d 329, 341, quoting People v. Berland (1978), 74 Ill. 2d 286, 299-300.) Once such an actual conflict is identified, it is unnecessary for a defendant to demonstrate that prejudice resulted therefrom in order to sustain a finding of a violation of the right to counsel. (Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173; People v. Stoval (1968), 40 Ill. 2d 109, 113; People v. Berland (1978), 74 Ill. 2d 286, 303.) In formulating that rule, this court relied on Glosser v. United States (1942), 315 U.S. 60, 75-76, 86 L. Ed. 680, 702, 62 S. Ct. 457, 467, where it was said:

“To determine the precise degree of prejudice sustained *** is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”

See also People v. Berland (1978), 74 Ill. 2d 286, 304.

In People v. Robinson (1979), 79 Ill. 2d 147, this court declined to adopt a per se rule that attorneys in a public defender’s office are members of an entity. We expressed the opinion that “the decisions of the Supreme Court and this court (see Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173; People v. Stoval (1968), 40 Ill. 2d 109; People v. Kester (1977), 66 Ill. 2d 162;People v. Berland (1978), 74 Ill. 2d 286; People v. Vriner (1978), 74 Ill. 2d 329) furnish guidance adequate to avoid conflicts of interest which will impede the furnishing of effective assistance of counsel.” (79 Ill. 2d 147, 159-60.) In People v. Miller (1980), 79 Ill. 2d 454, we said that where the question of conflict of interest arises “a case-by-case inquiry is contemplated whereby it is determined whether any facts peculiar to the case preclude the representation of competing interests by separate members of the public defender’s office. See, e.g., People v. Smith (1967), 37 Ill. 2d 622.” 79 Ill. 2d 454, 462.

The facts in People v. Miller (1980), 79 Ill. 2d 454, are similar to the facts here. In Miller the assistant public defender assigned to represent the defendant indicated that he would call Alfred Myles to the stand. Myles had been charged with the same offense for which defendant was being tried and defense counsel stated that Myles, if called by the defendant, would admit his participation in the robbery. The circuit court appointed another assistant public defender to advise Myles of his rights. After consulting with the assistant assigned to him, Myles refused to testify. Defense counsel requested that Myles take the stand and the court ordered him to do so. When interrogated concerning his knowledge of and participation in the offense, Myles invoked the privilege against self-incrimination. In rejecting contentions similar to those made here, this court held that Myles would in all probability have been advised not to testify by whomever served as his attorney, and that Myles’ counsel’s association with the public defender’s office was of no significance.

Defendant argues that this case is distinguishable from Miller because the assistant public defender representing Rogers had represented both Rogers and defendant at a preliminary hearing. He contends that because of this preliminary representation the public defender “was certainly in possession of confidential information relating to the defendant’s defense when he advised Rogers to plead the Fifth Amendment.” He argues that the joint representation therefore created an actual conflict of interest and the assistant public defender was placed in the position of having to fulfill his obligation to one client at the expense of another.

We note that section 3.5(b) of the ABA Standards, The Defense Function (1971), which proscribes joint representation “if the duty to one of the defendants may conflict with the duty to another,” makes exceptions “for preliminary matters such as intitial hearings or applications for bail.” Assuming, arguendo, that Mr. Schwulst’s temporary representation of both Rogers and defendant constituted joint representation, we fail to perceive in what manner it could have affected defendant’s representation by Mr. Paul at trial. Mr. Schwulst was representing a codefendant who had pleaded guilty to the offense and who had not as yet been sentenced, and it is pure speculation that there was any connection between his brief representation of defendant and his advice to Rogers not to testify. It is much more probable that the advice was given in order that he not commit some act which would enhance the sentence which was likely to be imposed. As the court said in People v. Echols (1978), 74 Ill. 2d 319, “In short, we do not know what strategy independent counsel would have pursued, and this court has in the past refused to find hostility between the interests of criminal codefendants based on the mere possibility that one strategy available to defense counsel would have helped one defendant at the expense of another. E.g., People v. Durley (1972), 53 Ill. 2d 156, 160; People v. Robinson (1969), 42 Ill. 2d 371, 374-75.” (74 Ill. 2d 319, 327-28.) An examination of the record in this case shows that Mr. Paul ably represented the defendant. By forcing Rogers to invoke the privilege against self-incrimination he laid the foundation for his closing argument to the jury that there was substantial doubt as to whether it was defendant or some other individual who was present with Rogers at the scene of the burglary. This record demonstrates “that the inbred adversary tendencies of the lawyers are sufficient protection” (People v. Robinson (1979), 79 Ill. 2d 147, 159) against the presence of inadequate representation by separate members of the public defender’s office.

We conclude that there was no conflict of interest demonstrated by this record, and for the reasons stated the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 52697.
    REPUBLIC STEEL CORPORATION, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Mico Knezevich, Appellant).

      Opinion filed September 29, 1980.

      WARD, J., took no part.
    Thomas G. Cronin, of Chicago (Carolyn C. Whittington, of counsel), for appellants.
    Keck, Mahin & Cate, of Chicago (Henry C. Szesny, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

In proceedings under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) an arbitrator for the Industrial Commission found that claimant, Mico Knezevich, failed to prove that he sustained accidental injuries arising out of and in the course of his employment with respondent, Republic Steel Corporation, and denied the claim for compensation. On review, the Commission set aside the decision of the arbitrator and awarded claimant compensation of $184.52 per week for life for complete permanent disability. On certiorari, the circuit court of Cook County set aside the decision of the Commission and reinstated the decision of the arbitrator. Claimant appealed to this court pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)). Claimant argues in this court that the decision of the Industrial Commission is not against the manifest weight of the evidence. Respondent contends that the manifest weight of the evidence supports the judgment of the circuit court that claimant failed to prove that he sustained an accidental injury which arose out of his employment. Respondent argues, characterizing the alleged injury as mysterious, that the evidence demonstrates that claimant’s accidental injury did not occur. Respondent does not dispute the fact that claimant is permanently and totally disabled.

Claimant, age 58, was called as the first witness in the proceedings before the arbitrator. He testified that on July 7, 1976, he was employed by respondent as an oiler. As an oiler, he was responsible for lubricating the machinery at respondent’s plant. His duties included transporting large drums of oil to various locations in the plant. This task was accomplished with the assistance of a crane operator. Claimant would direct the crane operator with hand signals and assist in securing the drum in its proper location when lowered. Claimant stated that on July 7, 1976, at approximately 6 a.m. he was transporting a 55-gallon drum of oil with the assistance of a crane operator. He stated that on this occasion, in order to prevent the drum from being lowered on top of him, it became necessary for him to shove the drum a distance of approximately 20 inches. Claimant testified that he immediately noticed pain in his back and dropped to the floor, where he remained for five minutes. When he recovered from this pain, he stated that he informed Virgil, his foreman, of the circumstances of his injury. Claimant then slowly changed clothes, drove home, and rested in bed. That evening he called the shift foreman, Mr. Nowak, and informed him that he was unable to work. Claimant worked the 11 p.m. to 7 a.m. shift at the time of the alleged injury. Claimant testified that he had attempted to contact his family physician but was unable to reach him because it was Wednesday.

On July 8, 1976, the following day, claimant saw his family physician, Dr. Hugo B. Cordova. Dr. Cordova examined claimant and recommended immediate hospitalization for treatment of his back. Claimant was then admitted to South Chicago Community Hospital, where he remained for one month. Claimant’s condition was diagnosed as a ruptured intervertebral disc at L4-L5. Dr. Milton Tinsley and Dr. Cordova performed a lumbar laminectomy, a surgical procedure in which they removed the ruptured disc. Claimant stated that he continued to experience constant pain in his back, his right leg, and the right side of his body generally. Claimant did not return to work.

Claimant also testified concerning his prior medical history. He stated that he had sustained three prior injuries in the course of his employment with respondent. In 1963, he sustained a fractured left leg when his leg was hit with a piece of steel. In 1973, he sustained a concussion and loss of hearing when a load of steel suspended by a crane hit his head. In 1975, he sustained a hernia while lifting a heavy object. This condition required two operations, and claimant stated that he continued to experience discomfort. Claimant did not receive compensation for these injuries. In addition, he stated that he had suffered from ulcers for the past 18 years and that in 1975 he had a cervical laminectomy.

On cross-examination, claimant again stated that he had informed Virgil, his foreman, of the circumstances of his injury, adding that, to his knowledge, Virgil did not witness the incident. Claimant stated that he had not reported to respondent’s medical department immediately following the alleged accident. He offered the fact that he had lost confidence in respondent’s physicians as his reason for not seeking treatment at the plant. Claimant stated that he did not inform Dr. Cordova of the accidental nature of his injury when he initially sought treatment for his condition. He did state, however, that at some point during his hospitalization he informed Dr. Cordova that he was injured at work. Claimant described this conversation as follows: “I tell him one time, ‘doctor, I’m hurt on job,’ and him say, T don’t want to listen to that, I don’t want it. I help you as much as I can.’ ” In response to the question of whether he had informed Dr. Tinsley of the circumstances of his injury, claimant stated: “No. I wanted to find out what him say.” Claimant also stated that he did not experience problems with his lower back prior to July 7, 1976, nor had he lost any time from work prior to the accident due to lower back pain. In addition, claimant stated that he had applied for disability pension benefits both prior to and subsequent to his alleged accidental injury on July 7, 1976. He believed that the person to whom he spoke concerning these benefits was Edna DiPasquo. He stated that he informed her that he was hurt on the job.

Claimant called as his next witness, Dr. Robert C. Busch, a practicing surgeon and instructor in surgery at the Chicago Medical School. Dr. Busch had examined claimant on April 18, 1977, and detailed his findings concerning claimant’s medical condition. He noted operative scarring of the low back area and diagnosed claimant’s condition as a herniated disc syndrome of the lumbar area and bilateral lumbosacral sprain with sciatic radiation of spasm into the right hip and down the posterior aspect of the right thigh. In addition, Dr. Busch noted myositis of the upper, mid, and lower thoracic paravertebral musculature. In summary, he found that claimant’s condition was permanent and that his disabled condition prevented him from engaging in gainful employment. In response to a hypothetical question which included the alleged circumstances of claimant’s injury at work and a detailed description of his prior medical condition, Dr. Busch testified that the accident at work and claimant’s present condition of disability were causally connected.

On cross-examination, Dr. Busch stated that it is an established practice for physicians to take a history from the patient in the course of treating injuries to the lumbar spine. He stated that this practice included inquiring whether the condition was related to a recent event which might have involved trauma. In addition, Dr. Busch stated that if the hypothetical question were modified to include treatment for low back and lumbar strain symptoms in May and August 1975, his conclusion that the accident and the condition were causally related would remain the same. Dr. Busch also stated that he would not consider it unusual for the records of a treating physician to fail to include references to an alleged trauma in the patient’s history. He stated that people in pain may not emphasize particular aspects of their condition in the diagnostic interview.

Respondent called as its first witness Edna DiPasquo. Mrs. DiPasquo stated that she was employed by respondent as a pension clerk and that her duties included processing applications for retirement. She stated that she had met with claimant in October 1976, April 1977, and July 1977 to discuss his applications for retirement. On all three occasions Juanita Negreti was present and acted as an interpreter. All of these interviews were conducted in Spanish. The record reveals that claimant’s native language is Serbo-Croatian. His ability to communicate in Spanish, his second language, is superior to his knowledge of the English language. On these three occasions claimant informed Mrs. DiPasquo that he did not feel well, that he was unable to continue working, and that he desired to retire. Mrs. DiPasquo also stated that if an individual informed her that he suffered from a work-related injury she would refer them to Robert Bernardi. She stated that she did not refer claimant to Bernardi.

Respondent called as its next witness Robert Bernardi. Bernardi testified that he was employed by respondent as a supervisor of compensation. He stated that as a supervisor of compensation he has custody of records obtained in the course of workmen’s compensation investigations. One such record in his possession was an insurance benefit application filed by claimant subsequent to his alleged accident. Bernardi explained the procedure for completing this form. He stated that part A of the form would be completed by the person claiming benefits under the policy. This form would then be taken to the treating physician for completion of part B. Once these steps were taken, the form would be submitted to the insurance office of the respondent to complete the application for insurance benefits. He stated that it is customary for this form to be sent to the company by the treating physician. Dr. Cordova indicated in part B of the form submitted on behalf of claimant that the injury for which benefits were claimed did not arise out of the employment. Part A of the form, the section to be completed by claimant, contained a series of questions to be answered if the injury for which benefits were claimed was accidental. These questions requested information concerning the date of the accident, whether or not the accident happened at work, and a brief description of the accident. This portion of part A was left unanswered in the section of the form completed and signed by claimant. Part C of this form was to be completed by respondent. This section asked the question of whether or not the disability was sustained in the course of employment. This question was left unanswered by respondent. In addition, Bernardi had in his possession what he described as a medical record card. The card was admitted into evidence. He stated that this was a record of injuries or illnesses that do not pertain to work. This record indicated that claimant had lost time from his employment in March 1973 for arthritis of the lumbosacral spine. The record did not indicate lost time as a result of the alleged accidental injury in July of 1976. On cross-examination, Bernardi stated that lost time as a result of a work-related injury would not appear on the form. On redirect examination, Bernardi stated that he had searched the records of respondent and found no reference to an accident in July 1976.

Respondent called as its last witness Dr. Ben Camacho, a practicing physician specializing in industrial medicine and surgery. Dr. Camacho stated that he examined claimant on April 18, 1977. He described the procedures employed and detailed the observations that he made concerning claimant’s condition. He stated that he believed that claimant could be gainfully employed. He also stated that it was a common practice to question a patient concerning recent trauma and to include this information in the written history. On cross-examination, Dr. Camacho stated that he would not recommend that claimant be employed in a position that required heavy lifting or pushing. He also stated that if a patient spoke very little English it would be advisable to conduct the history with the assistance of an interpreter.

In addition, respondent introduced the medical records of Dr. Cordova, Dr. Tinsley, and Dr. Dobril. Dr. Cordova’s and Dr. Tinsley’s records did not indicate that claimant’s condition was related to an injury sustained at work. These records did not, however, indicate that claimant’s condition was not work related. Dr. Dobril’s records indicated that claimant had sought treatment for a condition diagnosed as acute myositis of the low back on July 31, 1973, and that this treatment continued periodically through November 1975. “Myositis” is defined as an inflamation of muscle, especially striated or striped muscle. Schmidt’s Attorney’s Dictionary of Medicine, at M-145 (1980).

In the proceedings before the Commission, claimant informed respondent that he intended to present additional evidence related to the issue of notice of the accidental injury. The nature of this evidence was a conversation between claimant and his foreman. Respondent had not been given notice of the nature of this testimony and requested a continuance to allow respondent to investigate and rebut this testimony. The continuance was granted. In the proceedings on review, claimant was the only witness to testify. He stated that he had not returned to work, that he continued treatment with his physicians, and that he continued to experience pain in his back and legs. In addition, he stated that he had a conversation with Virgil, his foreman, on May 24, 1978, at Munster Lumber Company. The conversation was as follows: “I said, ‘Virgil, what happened, why you no help me?’ He say, ‘Mike, I can’t help you. I know you tell me this morning that you got hurt. Why you no wait for the company doctor?’ ” Claimant stated that the company physician did not arrive until 10 a.m. On appeal, claimant’s counsel argued this point, and it remained unrebutted. On cross-examination, claimant stated that he was not socially acquainted with Virgil and that this was the only occasion on which he had spoken to him since the alleged accident. Claimant’s foreman was not called as a witness to testify in any of the proceedings.

Respondent argues, relying principally upon the line of cases wherein this court has rejected testimony of a claimant which is obviously false, that the decision of the Industrial Commission is against the manifest weight of the evidence. (See Caterpillar Tractor Co. v. Industrial Com. (1978), 73 Ill. 2d 311; Deere & Co. v. Industrial Com. (1970), 47 Ill. 2d 144; Rockford Clutch Division, Borg-Warner Corp. v. Industrial Com. (1967), 37 Ill. 2d 62; Mechanics Universal Joint Division, Borg-Wamer Corp. v. Industrial Com. (1961), 23 Ill. 2d 441; Fisher Body Division, General Motors Corp. v. Industrial Com. (1960), 20 Ill. 2d 538; United States Steel Corp. v. Industrial Com. (1956), 8 Ill. 2d 407; Corn Products Refining Co. v. Industrial Com. (1955), 6 Ill. 2d 439.) Respondent contends that there was no evidence introduced in the proceedings below which corroborates claimant’s alleged accidental injury and suggests that the manifest weight of the evidence contradicts and is inconsistent with claimant’s testimony. In support of this position, respondent relies primarily upon three arguments. First, respondent contends that no accidental injury was reported immediately following the alleged occurrence. Second, respondent contends that no report of the alleged accidental injury was made to claimant’s treating physicians and that claimant’s testimony was contradicted by Dr. Cordova’s statement in the application for insurance benefits that claimant’s condition was not employment related. Third, respondent asserts that the Commission did not have the opportunity to observe claimant and issues of credibility therefore should be resolved in favor of the arbitrator.

We agree with respondent that the burden is upon the party seeking an award to prove by a preponderance of credible evidence the elements of his claim, particularly the prerequisite that the injury complained of arose out of and in the course of his employment (United Airlines, Inc. v. Industrial Com. (1980), 81 Ill. 2d 85, 96). It is also true that the testimony of a claimant standing alone may support an award. An award is not justified, however, if all of the facts and circumstances preponderate in favor of the opposite conclusion. (Deere & Co. v. Industrial Com. (1970), 47 Ill. 2d 144, 149.) It is primarily the function of the Commission to judge the credibility of witnesses and to draw reasonable inferences from the testimony. If the Commission’s decision is against the manifest weight of the evidence, it must be set aside. United States Steel Corp. v. Industrial Com. (1956), 8 Ill. 2d 407, 411.

We find nothing in the record of this case to remove it from the general rule that it is the primary responsibility of the Industrial Commission to determine disputed questions of fact and to draw reasonable inferences from the evidence. Claimant’s testimony was contradicted by the statement of Dr. Cordova, in the application for insurance benefits, that the injury was not employment related, but that statement raised only questions of fact and credibility for the Commission’s resolution. (See Calendar Packing Co. v. Industrial Com. (1967), 38 Ill. 2d 506.) Claimant’s testimony, if believed, is evidence of an attempt to inform his physician of the cause of the accident. In addition, claimant’s testimony that he notified his supervisor of the circumstances of his injury was uncontradicted.

Nor can it be argued that claimant’s failure to answer the questions related to whether the injury was accidental in his application for insurance benefits renders his testimony unbelievable. As was the case in Republic Steel Corp. v. Industrial Com., in which an award was confirmed, this record neither admits nor denies an accident. (Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32, 40-42; see also United States Steel Corp. v. Industrial Com. (1964), 32 Ill. 2d 68, 73.) While it is true that claimant’s testimony concerning his prior problems with his lower back was impeached by the records introduced by respondent, the evaluation of this evidence and the conclusions to be drawn are within the province of the Commission. Spiegel, Inc. v. Industrial Com. (1976), 64 Ill. 2d 226.

Respondent’s contention that the Commission did not have the opportunity to observe claimant and assess his credibility is also without merit. The record reveals that claimant testified on review before the Industrial Commission. Questions of fact are within the province of the Industrial Commission even where the Commission’s findings differ from those of the arbitrator and no further evidence has been taken by the Commission. Forrest v. Industrial Com. (1979), 77 Ill. 2d 86, 92-93.

In summary, we do not believe, after consideration of the record, that the decision of the Commission was against the manifest weight of the evidence. For the reasons stated, we reverse the judgment of the circuit court and confirm the decision of the Industrial Commission.

Judgment reversed; award reinstated.

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