text:
    (No. 49106.
    ELAINE FEFFERMAN et al., Appellees, v. THE INDUSTRIAL COMMISSION et al.-(Otha Butts, Appellant.)

      Opinion filed Jan. 27, 1978.

    Rehearing denied March 30, 1978.

      Victor H. Goulding, Peter N. Kamberos, and Joseph A. Rosin, of Chicago, for appellant.
    Morris A. Haft of Haft, Davis, Shapiro & Haft, of Chicago, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The Industrial Commission affirmed an arbitrator’s award of workmen’s compensation to the claimant, Otha Butts, for injuries sustained while employed in the dismantling of a building beneficially owned by the late Manuel Fefferman, his wife Etta, and daughter Elaine. The circuit court of Cook County set aside the decision of the Commission, and Butts appealed under our Rule 302(a) (58 Ill. 2d R. 302(a)).

The parties agree that the basic issue is whether the owners (Feffermans) of a building are liable to pay workmen’s compensation to the injured employee (Butts) of an uninsured contractor (Charles Dixon Wrecking Co.) who had been hired by the owners to demolish the structure.

Manuel Fefferman was in the business of general merchandise, textiles, government surplus and hospital supplies. He, with his wife and daughter, was the beneficiary of a land trust; title was held by the Central National Bank. The real estate was improved by a building, which was used for the storage of Fefferman’s mercantile goods, and was located at 1222-26 S. Michigan in Chicago. Fefferman had not elected to come under the Workmen’s Compensation Act (hereafter Act) (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.).

The Dixon Wrecking Company was hired by Fefferman to demolish the building. It carried no workmen’s compensation insurance. Butts was in the employ of the Dixon Company on January 18, 1973, when he was injured as a result of falling three stories while demolishing the structure. Butts filed a claim with the Industrial Commission, which afterwards affirmed the arbitrator’s award. The circuit court set aside the award as against Fefferman but confirmed as against the Dixon Company.

The question can be narrowed to whether Fefferman was engaged in the business of maintaining or demolishing a structure as enumerated in section 3 of the Workmen’s Compensation Act (automatic application of the Act when an employer elects not to become subject to the Act; Ill. Rev. Stat. 1973, ch. 48, par. 138.3). If so, Fefferman is liable under section 1 (Ill. Rev. Stat. 1973, ch. 48, par. 138.1). Section 1 in part reads:

“This Act may be cited as the Workmen’s Compensation Act.
(a) The term ‘employer’ as used in this Act means:
* * *
3. Any one engaging in any business or enterprise referred to in subsections 1 and 2 of Section 3 of this Act who undertakes to do any work enumerated therein, is liable to pay compensation to his own immediate employees in accordance with the provisions of this Act, and in addition thereto if he directly or indirectly engages any contractor whether principal or sub-contractor to do any such work, he is liable to pay compensation to the employees of any such contractor or sub-contractor unless such contractor or sub-contractor has insured, in any company or association authorized under the laws of this State to insure the liability to pay compensation under this Act, or guaranteed his liability to pay such compensation.” (Emphasis added.)

Section 3 in part states:

“The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, town, township, incorporated village or school district, body politic or municipal corporation, and to all employers and all their employees, engaged in any department of the following enterprises or businesses which are declared to be extra hazardous, namely:
1. The erection, maintaining, removing, remodeling, altering or demolishing of any structure.
2. Construction, excavating or electrical work.”

Claimant Butts contends that Fefferman was in the business of “maintaining or demolishing” a structure under the Act. He cites the relevant cases, relying especially on National Alliance of Bohemian Catholics v. Industrial Com. (1936), 364 Ill. 249, and Pulliam v. Industrial Com. (1969), 43 Ill. 2d 364.

In National Alliance, the claimant was injured as the result of a fall while doing carpentry work, in the employ of an uninsured contractor, on a building owned by National Alliance. The latter, a nonprofit organization, received revenue from rents. The circuit court confirmed the award of the Industrial Commission. In affirming the circuit court, this court, citing Walsh v. Industrial Com. (1931), 345 Ill. 366, held that “where one maintains buildings or structures for profit, whether that profit be as compensation for his services or by way of rentals received, and such maintenance requires a substantial portion of his time and attention, he must be said to be engaged in the business of maintaining a structure within the meaning of the Compensation act.” (364 Ill. 249, 251.) (This court has determined, however, that maintaining a building as ahorne or as an incident to a business is not maintaining a structure for purposes of the Act. (Jacobi v. Industrial Com. (1930), 342 Ill. 210, 214. Accord, Iowa-Illinois Gas & Electric Co. v. Industrial Com. (1950), 407 Ill. 360, 363-64, 366-67, T. Johnson Co. v. Industrial Com. (1922), 306 Ill. 197, 201-02, Davis v. Industrial Com. (1921), 297 Ill. 29, 32.) In short, for a building owner who has elected not to be subject to the Act, to be liable for the injuries of an employee of an uninsured contractor under the Act, that owner must be engaged in an extrahazardous business or enterprise. Maintenance of a structure is one such business.

The claimant also relies on Pulliam v. Industrial Com. (1969), 43 Ill. 2d 364. There the owner of a funeral home, having previously elected not to be subject to the Act, was found to be maintaining a structure within the purview of the Act and therefore liable for the injuries of his employee. The employee, who was the driver for and aide to the owner, painted the funeral home when work was slack. He was hurt as the result of a fall from a ladder while painting. This court’s rationale likened the use of a funeral home for wakes and services to the renting of rooms in hotels and motels for various activities. Although a separate charge for renting the rooms of a funeral home is not made, the cost of such use is figured into the final bill. The use of the building figured prominently in the revenues the owner received from his business.

Walsh v. Industrial Com. (1931), 345 Ill. 366, and its progeny attach much weight to the test of receipt of revenues from buildings in determining the issue of maintaining a structure. Consistent with that, Pulliam held that the revenue received from a building used in conjunction with a business need not be directly received in order for the owner to be found to be maintaining a structure. Rather it is enough that the use generating the revenue “constitutes apart of the charge” by the owner. (43 Ill. 2d 364, 366.) Although Pulliam analogized the use of a funeral home to the renting of a hotel or motel room for a wedding reception or other ceremony, its clear rationale was that the building was a capital asset which had a noticeable or conspicuous impact on the generation of revenue from his business to the owner of the building. Pulliam effectively, albeit sub silentio, overruled the Walsh line of cases insofar as they held that maintaining a building as an incident to a business is not maintaining a structure under the Act.

We find that the use of the building for storage of his mercantile goods also figured prominently in the revenue Fefferman received from his business. The building was a capital asset used in conjunction with Fefferman’s business: he stored his goods there. There can be no doubt that this contributed, even if indirectly, to the revenue he received from his business. The buildings in Pulliam and in this case were similarly, if not equally, central to the revenues of the respective businesses.

Hence, under the Act, Fefferman was an employer engaged in the extrahazardous business of maintaining a structure. As such, he was liable for injuries received by an employee, including the employee of an uninsured independent contractor, in the course of any work done on the building, here dismantling the structure. We find it unnecessary to reach the issue of whether or not Fefferman was engaged in the enterprise of demolishing a structure.

The Feffermans maintain that the findings of the Commission were against the manifest weight of the evidence. In support of that contention they make essentially two points: Butts’ hospital records, because they were not certified as true by the hospital superintendent, were improperly received into evidence; and the only medical evidence offered was that of a letter from a physician who examined Butts IV2 years after the injury occurred.

Initially, we wish to note that, from our review of the record, we find the circuit court set aside the decision of the Commission as against the Feffermans only and not as against the Dixon Company. The inference we draw is that the tribunals below all agreed that Butts was injured while in the course of his employment, which was, at the time of the injury, dismantling the Feffermans’ building. Further, the circuit court ruled in favor of the Feffermans only because, apparently, it found no employer-employee relationship existed between Manuel Fefferman and Otha Butts, an issue we disposed of above. The record does not indicate that the arbitrator, Commission and circuit court found the evidence insufficient to support the conclusion that Butts was injured in the course of his employment.

Our review of the record also leads us to conclude that Butts successfully carried the “burden of proving by competent evidence that not only [did] the accident” occur “but that also the accident was the proximate cause of the condition of incapacity from which he suffered.” (American Smelting & Refining Co. v. Industrial Com. (1933), 353 Ill. 324, 328. Accord, generally, Board of Trustees v. Industrial Com. (1969), 44 Ill. 2d 207, 214.) Butts himself testified. The hospital records received into evidence clearly supported his claim of injury. (The record does not show whether or not the copies of the hospital records were certified as true, but there is no allegation of lack of authenticity. Counsel for the Feffermans simply objected without stating the basis for the objection.) Although such records are not conclusive proof (Ill. Rev. Stat. 1973, ch. 48, par. 138.16), they are obviously supporting evidence.

The Feffermans next assert that the letter from the physician who treated Butts a year and a half after the injuries occurred should not have been admitted into evidence. As authority, they cite American Smelting & Refining Co. v. Industrial Com. (1933), 353 Ill. 324, in which an award was set aside. That case is distinguishable. There the claimant’s case rested solely upon his testimony; the letter he unsuccessfully sought to have admitted was “said to have been written by a physician who attended” (353 Ill. 324, 326) him a year after the injury occurred; and two witnesses, one the company physician, testified on behalf of the company. In the case before us, Butts’ claim rested not only on his testimony but on the hospital records. The letter from the examining physician (and the examination itself) was clearly more trustworthy than that in American Smelting. The examination was at the prompting of the arbitrator, with the knowledge of all the parties. And the Feffermans offered no witnesses.

The rule quite clearly is that the decision of the Commission will not be set aside unless it is against the manifest weight of the evidence. (E.g., United States Steel Corp. v. Industrial Com. (1976), 65 Ill. 2d 374, 382.) We find that the decision of the Commission was not against the manifest weight of the evidence.

For the reasons stated above, we reverse the judgment of the circuit court which found for the Feffermans.

Judgment reversed; award reinstated.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    (No. 48699.
    THE CITY OF CHICAGO, Appellee, v. HERTZ COMMERCIAL LEASING CORP. et al., Appellants.

      Opinion filed April 3, 1978.

    Rehearing denied May 26, 1978.

      Kirkland & Ellis, of Chicago (Don H. Reuben, Lawrence Gunnels, Leo K. Wykell, and Shane H. Anderson, of counsel), for appellant Hertz Commercial Leasing Corporation.
    Friedman & Koven, of Chicago (Howard R. Koven, Phil C. Neal, Martin M. Ruken, and Lawrence M. Templer, of counsel), for appellants Avis Rent A Car System, Inc., and Chrysler Leasing Corporation.
    William R. Quinlan, Corporation Counsel, of Chicago (Daniel Pascale and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This case involves the interpretation of a parking ordinance of the city of Chicago (City) with respect to an owner’s responsibility for vehicles illegally parked by a person other than the owner. In August of 1967, the City brought three actions, consolidated in the trial court, against Hertz Commercial Leasing Corporation, Avis Rent-A-Car System, Inc., and Chrysler Leasing Corporation (defendants). In count I of its amended complaint, the City sought to recover payment of fines from the defendants as the registered owners of vehicles allegedly parked in violation of municipal ordinances during 1966. The City prayed for judgments of $88,185 against Hertz, charging 5,879 violations; $73,425 against Avis, charging 4,895 violations; and $37,395 against Chrysler, charging 2,493 violations. Count II requested a declaratory judgment, conceding that the violating vehicles were probably in the possession of lessees of the defendants at the time of the violations. The City, nevertheless, sought to have the applicable parking ordinance interpreted to preclude the defendants from raising the defense that the owner was not in possession of the vehicle at the time of the violation.

The trial court dismissed count I, finding that it did not sufficiently inform the defendants of the details of the alleged violations. The appellate court reversed and remanded count I for trial. (38 Ill. App. 3d 835.) This aspect of the decision is not before us.

On count II, the trial court entered a declaratory judgment finding that the applicable parking ordinance creates a presumption that the registered owner was in possession of the vehicle at the time of the parking violation, that the presumption may be rebutted by a showing that the vehicle was not in fact in the possession of the registered owner, and, ultimately, that the defendants were not responsible for violations while the vehicles were in the possession of their lessees. A majority decision of the appellate court reversed, holding that the parking ordinance imposes vicarious liability on the registered owner and that an owner is not absolved of responsibility if, at the time of the parking violation, he had “voluntarily transfer [red] possession [of the vehicle] for hire.” (38 Ill. App. 3d 835, 844.) We granted the defendants’ petition for leave to appeal.

The adopted municipal ordinance in question provides:

“Whenever any vehicle shall have been parked in violation of any of the provisions of any ordinance prohibiting or restricting parking, the person in whose name such vehicle is registered shall be prima facie responsible for such violation and subject to the penalty therefor.” (Emphasis added.) Chicago-Municipal Code, ch. 27, sec. 364(a).

We emphasize at the outset that the ordinance cannot be read to treat owners who lease vehicles for hire any differently from owners who gratuitously lend their vehicles to friends or family members. The issue, though framed differently by the parties in response to the appellate court’s opinion, is whether the ordinance purports to impose liability on the owner as the presumptive driver of the vehicle at the time of the parking violation, or whether it purports to impose vicarious liability on the owner, regardless of who actually parked the vehicle. If the former, then an owner — any owner, not merely an owner who leases vehicles for hire — may absolve himself of liability by showing that he was not the person who parked the vehicle alleged to have been in violation of a parking ordinance.

Parking ordinances similar to, and almost identical to, the above cited ordinance have been examined by courts throughout the country over the past 50 years. The controversy almost invariably emerges as a concerted attempt by the courts to discern the intention of the local authority in regulating parking. Some local authorities seek to impose liability ultimately on the driver and do so by summoning the registered owner to court, at which time the owner is presumed to have parked the vehicle. The owner may successfully rebut this presumption, in which case the local authorities are thrust into the dilemma of either securing personal jurisdiction over the driver, or dismissing the case. Other local authorities seek to impose liability directly on the registered owner, in which case the owner is held vicariously responsible for the violation. In either case, the person subject to the penalty is strictly liable, in the legal sense that the owner or driver need not have intended to commit the offense to be responsible for the violation.

The defendants vigorously argue that the plain meaning of the words “prima facie responsible” in the Chicago ordinance indicates that it was the municipality’s clear intention to allow the registered owner to rebut the presumption that the vehicle was parked by the owner. The issue cannot be so facilely resolved. The words “prima facie” mean nothing more than “at first sight” or “so far as can be judged from the first disclosure” or “presumably” or “without more.” (Black's Law Dictionary 1353 (4th ed. 1957); Iowa City v. Nolan (Iowa 1976), 239 N.W.2d 102, 105.) In its statutory context, the words “prima facie” mean that the City has established its case against the registered owner by proving (1) the existence of an illegally parked vehicle, and (2) registration of that vehicle in the name of the defendant. Such proof constitutes a prima facie case against the defendant owner. There is no indication in the ordinance that the owner, to be presumed responsible for the violation, must be presumed to have been the person who parked the vehicle. In practice, the defendant, to absolve himself of responsibility, may show that the vehicle was not parked illegally or that he was not the registered owner of the vehicle at the time of the alleged violation. The defenses are limited, but the plain meaning of-the ordinance admits of no more. A predecessor of the ordinance in question provided:

“Whenever any vehicle shall have been parked in violation of any of the provisions of this chapter prohibiting or restricting parking, the person in whose name such vehicle is registered shall be subject to the penalty for such violation.” (Chicago Municipal Code, ch. 27, sec. 34.1.)

This unambiguous language imposes both strict and vicarious liability on the owner whenever his vehicle is illegally parked, irrespective of whether the owner was the person who parked the vehicle.

The defendants assert that, because the present ordinance added the words “prima facie responsible for such violation,” the City deliberately chose to incorporate into the ordinance the presumption that proof of ownership is prima facie evidence that the vehicle was parked by the owner. We interpret the development of the ordinance differently.

In City of Chicago v. Crane (1943), 319 Ill. App. 623, the appellate court was called upon to construe the predecessor ordinance to determine whether an owner could be subject to the penalty for a parking violation which he did not commit or authorize. The trial court had found that an ordinance which “purports to make the owner of a car liable whenever the car is illegally parked *** is completely without basis in law.” (319 Ill. App. 623, 627.) The appellate court reversed, holding that the City established a prima facie case against the owner by proving that the defendant owned the car that was parked within 15 feet of a fire hydrant. The defendant had offered no evidence to rebut the prima facie case. In its opinion, the court cited cases from other jurisdictions which involved ordinances, all of which attached liability to the owner, but which differed in that they found the owner either liable as the owner or as the presumptive driver at the time of the violation. Because, in Crane, the owner did not introduce any evidence to rebut the prima facie case, the court was not called upon to determine if that Chicago ordinance imposed liability on the owner as owner or as the presumptive driver. It did, however, emphasize that the City had “made out a prima facie case.” (City of Chicago v. Crane (1943), 319 Ill. App. 623, 631.) We can assume only that the City amended its ordinance to indicate, as intimated in the Crane decision, that proof of a violation and of registered ownership establishes the City’s prima facie case against a defendant and that the defendant may rebut either element of the prima facie case. See K. Levin, Ownership as Evidence of Responsibility for Parking Violation, 41 J. Crim. L. & Criminology 61, 62 (1950).

Our own research reveals four cases from other jurisdictions which interpret the words “prima facie responsible” in precisely the context presented in this case. In City of Columbus v. Webster (1960), 170 Ohio St. 327, 328, 164 N.E.2d 734, 735, the applicable ordinance read, in pertinent part:

“ ‘If any vehicle is found *** in violation of any *** ordinance of this city, regulating the stopping or standing or parking of vehicles, and .the identity of the driver cannot be determined, the owner, or person in whose name such vehicle is registered shall be held prima facie responsible for such violation. ’ ” (Emphasis added.)

Ohio’s supreme court, in holding the owner vicariously liable for the parking violation, expressly rejected the interpretation that the ordinance made “proof of illegal parking and registered ownership prima facie evidence that the vehicle was parked by the owner.” It stated that the ordinance “merely places prima facie responsibility for the illegal parking of a motor vehicle on the public streets upon the owner of such vehicle. It thus places the responsibility upon the person who is in the best position to know the identity of the operator.” City of Columbus v. Webster (1960), 170 Ohio St. 327, 331, 164 N.E.2d 734, 737.

The Supreme Court of Missouri reached the same conclusion in interpreting a Kansas City ordinance which provided that “the owner or person in whose name such vehicle is registered in the records of any city, county or state shall be held prima facie responsible for such violation, if the driver thereof is not present.” (Emphasis added.) (499 S.W.2d 449, 451.) The court concluded that “[t] he words ‘prima facie’, as used in this ordinance, do not mean that the owner is presumed to be the driver,” and held that the ordinance “places responsibility upon the owner without any requirement that he be found to have been the driver, whether that finding is premised on a presumption or direct evidence.” (Emphasis in original.) (499 S.W.2d 449, 452.) The court further noted that an ordinance “imposing liability for the parking violation fine on the owner as well as the driver may well result in fewer violations and thereby assist in the reduction of traffic problems.” (City of Kansas City v. Hertz Corp. (Mo. 1973), 499 S.W.2d 449, 452-53.) We note that the case provided an identical factual context to this case, in that a rental company had leased its car to a person whose identity was known by the court and who assumedly committed the violation.

In Iowa City v. Nolan (Iowa 1976), 239 N.W.2d 102, 103, the applicable ordinance provided similarly:

“If any vehicle is found stopped, standing or parking in any manner violative of the provisions of [applicable ordinances] and the identity of the operator cannot be determined, the owner or person or corporation in whose name said vehicle is registered shall be held prima facie responsible for said violation." (Emphasis in original.)

Iowa’s supreme court, citing the Kansas City case, held that, under the ordinance, a registered owner may be held vicariously liable for his illegally parked vehicle.

In a distinguishable case, an intermediate appellate court did reach a different conclusion. In City of Portland v. Kirk (1974), 16 Ore. App. 329, 331 n.1, 518 P.2d 665, 666 n.1, the ordinance provided that “[t] he registered owner of the vehicle is prima facie responsible for the violation charged by the parking citation.” (Emphasis added.) The court concluded that the ordinance established a permissive inference that the owner of the vehicle was the party who parked the vehicle. We note, however, that the Portland ordinance permitted imprisonment for up to six months for parking offenses. Although the court did not imply that it reached its conclusion in light of the possibility that an owner could be subject not only to fine but to imprisonment, it is recognized that vicarious liability should not be extended as readily to crimes which may subject a defendant to imprisonment. W. LaFave & A. Scott, Criminal Law sec. 32, at 223 (1972); F. Sayre, Criminal Responsibility for the Acts of Another, 43 Harv. L. Rev. 689, 723 (1930).

We are in accord with the results reached by the supreme courts of Ohio, Missouri and Iowa. We believe that the City intended, under both the previous and the present ordinances, to subject the owner of an illegally parked vehicle to the penalty for such parking violation. The incorporation of the words “prima facie responsible” merely clarified that the defendant is not conclusively subject to penalty once the City establishes its prima facie case of a violation and ownership, but that he can come forward with evidence contraverting either element of the case against him. Accordingly, we hold that the Chicago parking ordinance imposes vicarious liability on the registered owner and that proof that the vehicle was in the possession of another at the time of the violation is irrelevant to the substantive offense.

A question then arises as to whether the imposition of vicarious liability on an owner who rents a vehicle for hire, thereby voluntarily relinquishing the possession and control of the vehicle for the term of the lease agreement, is a constitutional denial of due process. The United States Supreme Court had occasion to consider the extent to which liability could be imposed on a vicarious party without depriving the party of its constitutional right to due process in Van Oster v. Kansas (1926), 272 U.S. 465, 71 L. Ed. 354, 47 S. Ct. 133. There a Kansas statute declared that a vehicle used in the illegal transportation of liquor was a common nuisance and subject to forfeiture. An owner voluntarily entrusted his vehicle to another who unlawfully used the vehicle without the owner’s knowledge. In affirming the constitutionality of the statutory forfeiture procedure, the court stated:

“It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. ***
So here the legislature, to effect a purpose clearly within its power, has adopted a device consonant with recognized principles and therefore within the limits of due process.” (Van Oster v. Kansas (1926), 272 U.S. 465, 467-68, 71 L. Ed. 354, 358, 47 S. Ct. 133, 134.)

Since that time, the United States Supreme Court has approved vicarious liability for violations which subject the vicarious party to criminal as well as civil liability. (United States v. Dotterweich (1943), 320 U.S. 277, 88 L. Ed. 48, 64 S. Ct. 134; United States v. Park (1975), 421 U.S. 658, 44 L. Ed. 2d 489, 95 S. Ct. 1903.) Vicarious criminal liability has been found within the limits of due process to the extent that the person who is unaware of the wrongdoing stands “in responsible relation to a public danger.” (United States v. Dotterweich (1943), 320 U.S. 277, 281, 88 L. Ed. 48, 51, 64 S. Ct. 134, 136.) The responsible relation of an owner of a vehicle to its operation and use is a natural one. The public has a right to expect that a vehicle owner who voluntarily surrenders control of his vehicle to another is in the best position both to know the identity and competence of the person to whom he entrusts the vehicle and to deter the commission of parking violations. As one court has stated, “The knowledge of the ordinary user of another’s car that the owner who permitted its use would have to respond to a summons and submit to a trial *** would in all likelihood be a strong deterrent ***.” Kinney Car Corp. v. City of New York (1968), 58 Misc. 2d 365, 295 N.Y.S.2d 288, 292, aff'd (1971), 28 N.Y.2d 741, 269 N.E.2d 829, 321 N.Y.S.2d 121.

As to owners who rent vehicles for hire, contractual provisions — such as an express acknowledgment of personal liability to pay the lessor on demand for all parking fines and court costs or the requirement of security deposits— would also serve to deter the irresponsible commission of parking violations. Therefore, the imposition of vicarious liability on an owner who voluntarily relinquishes control of his vehicle to another is constitutionally permissible. Accord, Commonwealth v. Minicost Car Rental, Inc. (1968), 354 Mass. 746, 242 N.E.2d 411.

We do not have occasion, under the facts of the instant case, to decide whether a vehicle owner can be held vicariously liable for a violation committed by a person, such as a thief, to whom the owner may have no “responsible relation” and no means of deterring such violation.

In an attempt to respond to the appellate court’s opinion, the defendants rely on three distinct constitutional arguments based, upon (1) the creation of an irrebuttable presumption, (2) the denial of equal protection, and (3) the retroactive creation of a penal offense.

An irrebuttable presumption may be a constitutional denial of due process if it deprives a party of the opportunity to prove the nonexistence of an essential element of the substantive offense. The defendants’ position assumes that an essential element of the ordinance is the presumption that the owner was the person who parked the vehicle. As we have previously stated, the ordinance does not purport to incorporate that presumption into the substantive offense. The two elements of the substantive offense are rebuttable by a showing that a violation was not committed or that the defendant was not the owner at the time of the violation. The constitutional requirement of procedural due process is satisfied because the defendant is not precluded from rebutting either element of the substantive offense.

The defendants’ contention that the ordinance denies them equal protection under the law must also fall. As we emphasized at the outset, we do not interpret the ordinance to impose vicarious liability only upon owners who rent their vehicles for hire. Because the ordinance does not create a classification which distinguishes rental owners from ordinary vehicle owners, no equal protection issue is involved.

Similarly, we find no merit to the defendants’ argument that by construing the ordinance to impose vicarious liability on vehicle owners we have retroactively created an offense which could not have been reasonably ascertained from a reading of the ordinance. The fundamental principle is that a criminal law must not be given retroactive effect if judicial construction of the law is “ ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’ ” (Borne v. Columbia (1964), 378 U.S. 347, 354, 12 L. Ed. 2d 894, 900, 84 S. Ct. 1697, 1703.) On its face, the ordinance imposes liability on an owner whenever his vehicle is illegally parked. Our construction of the ordinance is entirely consistent with the result reached in City of Chicago v. Crane (1943), 319 Ill. App. 623, as well as with recognized principles of vicarious liability for parking offenses in many other jurisdictions. Supreme courts in three neighboring jurisdictions have specifically interpreted the words “prima facie responsible” to have the meaning which we ascribe to them. Moreover, one of the defendants here was the party held vicariously liable in one case interpreting an ordinance which involved similar language. (City of Kansas City v. Hertz Corp. (Mo. 1973), 499 S.W.2d 449.) We, therefore, conclude that the defendants could have reasonably anticipated a construction of the ordinance which imposes vicarious liability on the owner of an illegally parked vehicle irrespective of whether the owner actually parked the vehicle.

The defendants also contend that construing the ordinance to impose vicarious liability on the owner places it in direct conflict with sections 11—1305(a), 16—201, and 16—202 of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95%, pars. 11-1305(a), 16-201, 16-202), which, in 1966, were part of the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat. 1965, ch. 95½, pars. 188a, 236, 237). Section 11—1305(a) applies specifically to vehicle owners who lease their vehicles to others, and declares that such owners, “after receiving written notice of a violation of this Article or a parking regulation of a local authority involving such vehicle, shall upon request provide such police officers as have authority of the offense, and the court having jurisdiction thereof, with a written statement of the name and address of the lessee at the time of such offense and the identifying number upon the registration plates of such vehicle.” (Ill. Rev. Stat. 1975, ch. 95½, par. 11—1305(a).) Sections 16—201 and 16—202 state, in essence, that a person who commits a violation of the Code or an owner or other person who directs or knowingly permits a vehicle to be operated on a highway in a manner contrary to law is guilty of an offense under the Code. (Ill. Rev. Stat. 1975, ch. 95½, pars. 16—201, 16—202.) The defendants argue that the ordinance is inconsistent with section 11—1305(a) in that the statutory provision contemplates that lessor-owners be absolved of liability for parking violations by providing the names and addresses of the lessees who possessed the vehicles at the time of the offenses. They argue that the ordinance is also inconsistent with sections 16—201 and 16—202, in that those statutory provisions, by exclusion, contemplate that vehicle owners cannot be found guilty of vehicle-related offenses merely because they own the vehicle at the time of an offense.

Section 11—1305(a) is wholly consistent with a municipal ordinance which imposes vicarious liability on any owner of a vehicle. The section is absolutely silent regarding allocation of liability. It dictates only that, upon request, a vehicle lessor shall provide the name and address of the lessee. We find no basis for defendants’ assertion that the section contemplates that lessor-owners be absolved of liability for traffic violations by providing the name and address of the lessee who possessed the vehicle at the time of the offense. On the contrary, the section does not purport to limit liability to the lessee, but, rather, to facilitate the imposition of liability on either the lessor or the lessee. A municipality which permits liability to be imposed only upon the person who parked the vehicle might request the information in an effort to pursue the lessee. Another municipality, which provides for the imposition of liability directly on the owner as well as on the person who parked the vehicle, might invoke this section in an effort to attach liability on either the lessor or the lessee. The intention of section 11—1305(a) is to leave the decision of the allocation of liability to those law-enforcement officials who have authority over the prosecution of the specific offenses. The section is not in conflict with the ordinance in question and certainly does not repeal it by implication.

Sections 16—201 and 16—202 define those persons who might be criminally liable for offenses committed under the Illinois Vehicle Code. The sections do not expressly exclude vicarious liability as a basis for holding a person responsible for vehicle-related offenses. The defendants contend, however, that the sections clearly evince a legislative policy which precludes the imposition of vicarious penal liability. Assuming arguendo that such a legislative policy exists, we must still confront the narrower question of whether the imposition of vicarious liability for municipal parking violations is inconsistent with a legislative policy which pertains to penal offenses. To answer that, we must examine the statutory scheme embraced by the Illinois Vehicle Code.

Section 11—207 of the Code (Ill. Rev. Stat. 1975, ch. 95½, par. 11—207), like its predecessor (Ill. Rev. Stat. 1965, ch. 95½, par. 122), provides for the uniform enforcement of traffic laws throughout the State and in all municipalities therein. It also provides that no local authority shall enact or enforce any ordinance in conflict with the provisions of the Code unless expressly authorized in the Code, but that local authorities may adopt additional traffic regulations which are not in conflict with the Code. (Ill. Rev. Stat. 1975, ch. 95½, par. 11-207.) Section 11—208 of the Code (formerly section 26 of the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat. 1965, ch. 95½, par. 123)) authorizes local authorities to enact and enforce ordinances regulating, among other things, the parking of vehicles. It reads, in pertinent part:

“(a) The provisions of this Chapter shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of .the police power from:
(1) Regulating the standing or parking of vehicles ***.” Ill. Rev. Stat. 1975, ch. 9514, par. 11-208 (a).

Section 11 — 207 and its predecessor have been interpreted on numerous occasions by this court and by the appellate courts. The section has been consistently construed to allow local authorities to adopt traffic ordinances to the extent that they are not inconsistent with State law. The section does not attempt to preempt the field to the exclusion of local authorities. (Ayres v. City of Chicago (1909), 239 Ill. 237; City of Rockford v. Floyd (1968), 104 Ill. App. 2d 161, 169-70.) Section 11—208 underscores the State’s policy of allowing local authorities to adopt traffic ordinances by specifying areas in which local autonomy will be preserved. It is no coincidence that the Illinois Vehicle Code does not purport to extensively regulate parking. The purpose of this statutory scheme is apparent. Although the Code expresses the general preference for uniform traffic regulations throughout the State, it also contemplates limited areas, such as the regulation of parking, for which statewide uniformity is wisely sacrificed in deference to the problems endemic to the individual municipalities.

This statutory scheme of separating municipal traffic violations from statutory traffic violations is reinforced by statutes indicating that the punishment of municipal traffic offenders is limited to fines (Ill. Rev. Stat. 1975, ch. 24, pars. 1—2—1, 1—21.1) and by regarding such violations as “quasi-criminal,” endowed with many of the aspects of noncriminal cases, e.g., proof by a preponderance of evidence rather than proof beyond a reasonable doubt. (City of Chicago v. Joyce (1967), 38 Ill. 2d 368, 372-73; Village of Maywood v. Houston (1956), 10 Ill. 2d 117, 119.) In this regard, we have held that, in the absence of clear statutory language expressing an intention that State laws subsume those areas of local regulation, we will not construe local ordinances to be in conflict with State law. (City of Chicago v. Joyce (1967), 38 Ill. 2d 368, 373.) Moreover, recognized rules of statutory construction presume the harmonious operation and effect of two laws, so that specific ordinances are presumed to be consistent with and independent of general State laws. (1A Sutherland, Statutes and Statutory Construction secs. 23.10, 23.18, 30.05 (4th ed. 1972).) We do not read sections 16—201 and 16—202 to impliedly establish a policy that an owner cannot be vicariously liable for municipal parking violations. The sections apply only to criminal violations of the Illinois Vehicle Code. As we noted earlier, it is understandable that a legislative policy would preclude the imposition of vicarious penal liability under the Vehicle Code because statutory traffic violations, unlike municipal traffic violations, are criminal in nature and may subject a defendant to severe punishment, including imprisonment. In light of this bifurcated statutory scheme, we feel that it would be improper to apply a legislative policy against vicarious penal liability to the municipal regulation of parking, a province for which the Vehicle Code contemplates local autonomy. Accord, Kinney Car Corp. v. City of New York (1968), 58 Misc. 2d 365, 295 N.Y.S.2d 288, 292-93, aff'd (1971), 28 N.Y.2d 741, 321 N.Y.S.2d 121, 269 N.E.2d 829.

We agree with the results reached by the appellate court, but do so for the reasons stated above. We, therefore, affirm the judgment of the appellate court and remand to the trial court for proceedings consistent with this opinion.

Affirmed and remanded.

      In 1968, the city of New York passed an ordinance which provided that an owner who rents or leases vehicles shall be jointly and severally liable with the customer or lessee for parking violations. A report which accompanied the ordinance stated: “This proposed local law, as amended, would make auto lessors jointly and severally liable with the lessees of the vehicle for violation abuses whereby scofflaws may avoid the payment of traffic fines. At present, New York City is losing millions of dollars annually in unpaid parking tickets issued against rented vehicles. Invariably, auto lessors plead in Traffic Court that the customer and not the auto rental firm, is responsible for the traffic tickets. The court traditionally will either lay over such cases, adding to the ever-increasing backlog, or else drop the matter as a general practice due to the difficulties in securing personal jurisdiction over the actual violator.” Kinney Car Corp. v. City of New York (1968), 58 Mise. 2d 365, 295 N.Y.S.2d 288, 290, aff’d (1971), 28 N.Y.2d 741, 321 N.Y.S.2d 121, 269 N.E.2d 829.


author: MR. JUSTICE MORAN MR. JUSTICE RYAN,

text:
    (No. 48923.
    E. R. MOORE CO., Appellee, v. THE INDUSTRIAL COMMISSION et al.-(Elizabeth Applehans, Appellant.)

      Opinion filed April 3, 1978.

    Rehearing denied May 26, 1978.

      RYAN and UNDERWOOD, JJ„ dissenting.

      E. Anne Mazur, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Dowd, Dowd & Dowd, Ltd., of Chicago (Joseph V. Dowd and Philip J. McGuire, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Claimant, Elizabeth Applehans, appeals the Cook County circuit court judgment which reversed the Industrial Commission’s order awarding total permanent disability compensation to claimant for injuries sustained in a work-connected accident.

Respondent, E. R. Moore Company, rents caps and gowns for use on ceremonial occasions. The garments, after being used, are returned to the plant for dry cleaning. Claimant, a 58-year-old woman, was employed by respondent as a garment presser. On June 8, 1972, a washing machine filled with perchloroethylene, a dry-cleaning solution, overflowed;, splashing the solution upon claimant’s feet and legs. A week later, a rash appeared on claimant’s feet and legs. She continued to work although the dermatitis progressed, the rash spreading to her arms and other parts of her body. She did not seek medical attention for this condition until October 28, 1972. She had, however, informed her employer of the rash prior to her consultation with a physician.

Dr. Lenin Pellegrino, claimant’s treating physician, prescribed medication and instructed her to stay home until the condition cleared. On January 3, 1973, claimant returned to work, but the rash reappeared, this time covering her entire body. Dr. Pellegrino again prescribed medication. Claimant requested workmen’s compensation forms from her employer, but her employer first referred her to another physician, Dr. Gilbert. Dr. Gilbert administered an injection, prescribed a different type of medication, and instructed claimant to return to work. Claimant remained under Dr. Gilbert’s care for a month and a half, during which time she made several attempts to resume working. On each occasion, however, she experienced renewed discomfort. She was ultimately referred to another physician, Dr. Silas Wallk, who had her placed in a hospital. While at the hospital, claimant was given salves for her skin and instructed to take “oatmeal” baths twice a day. (As of the date of the arbitration hearing, claimant was continuing to take the “oatmeal” baths prescribed.) After her release by Dr. Wallk, claimant did not return to work.

At the arbitration hearing, claimant testified she had worked off and on for 15 years at various jobs which she described as housework. These jobs required her to use soaps and cleaning fluids. Immediately prior to her employment with the respondent, claimant worked as a maid in a hotel. Since the accident, her husband and her daughters have cleaned the floors and done the laundry. Whenever claimant is exposed to bleaches or detergents her hands are “inclined to itch a little.”

On cross-examination, claimant noted that as long as she has avoided contact with the irritant which caused her problem, her rash and itching have disappeared. On redirect, however, claimant reemphasized the fact that she has avoided contact with all cleaning detergents since her accident at work. She also stated that, after being released by Dr. Wallk, she visited Dr. Pellegrino twice for checkups, and he advised her not to return to work.

Dr. Pellegrino testified that he had treated claimant for a skin condition commonly known as contact dermatitis. Although the initial treatment resulted in a marked improvement, the condition flared up again on claimant’s return to work. Dr. Pellegrino explained that contact with a solvent like perchloroethylene removes the body oils from the skin and each exposure decreases the skin’s resistance to other less toxic irritants. He stated that claimant should avoid working at any job that would involve the use of solutions, such as detergents and cleaning solvents, that contain active chemical agents, for she runs the risk of reactivating the dermatitis.

On cross-examination, Dr. Pellegrino noted that, even though the objective manifestation of the dermatitis may disappear, claimant’s susceptibility will remain. Considering her age and her sensititivy to active chemical agents, Dr. Pellegrino suggested that there were very few jobs that claimant could perform without risking her health.

The medical reports of Dr. Pellegrino and Dr. Wallk were introduced into evidence by respondent. Dr. Wallk’s report indicated that the claimant had suffered from a case of general dermatitis and should remain cured as long as she avoids returning to her former employment. Based on the evidence submitted, the arbitrator awarded claimant total and permanent disability compensation.

On review before the Commission, the respondent introduced into evidence the testimony of Dr. Samuel M. Bluefarb, a dermatologist. Dr. Bluefarb testified that his examination of the claimant revealed no active dermatitis, but only a slight increase in the pigmentation around her ankles and some scaling of the skin of the forearms. He noted that the scaling of the forearms could be caused by a number of factors, such as age, winter weather, or too much soap. He described perchloroethylene as a primary irritant and stated that an individual would develop contact dermatitis if exposed to it. As long as the sensitized person thereafter avoided the offending substance, Dr. Bluefarb stated that, generally speaking, the dermatitis should clear and the individual should experience no further difficulty.

On cross-examination, Dr. Bluefarb stated that he did not know the severity of claimant’s initial dermatitis nor the number of times she had been exposed. He stated that damage to the skin as a result of reexposure would vary from person to person, and that the skin would not necessarily become more vulnerable to other irritants. Although a primary irritant removes the oils from the skin and makes it susceptible to other chemical solvents, Dr. Bluefarb opined that in time the oil should return. He noted, however, that if the skin was permanently damaged it would have less resistance to substances such as soaps and detergents.

Respondent then called claimant as its witness. Claimant testified that since leaving respondent’s employ she had submitted applications at two factories and had continued to look for employment. Under questioning by her own counsel, claimant stated that the two prospective employers had asked only about her age, and she had not been called back for work. She did not know if the work she applied for involved the use of solvents like perchloro ethylene.

The Commission affirmed the arbitrator’s award.

On review before the circuit court, the respondent argued that the claimant failed to prove she was unable to work. Respondent pointed out that there was no testimony to indicate that claimant’s inability to find work was attributable to her disability. The circuit court reversed and remanded the cause for the taking of further evidence concerning claimant’s inability to work. Claimant, however, filed a motion to vacate the remandment order, and, following a hearing at which claimant’s counsel stated that no further evidence could be produced, the circuit court vacated its remandment order and reversed the Commission’s award of total and permanent disability.

On appeal, claimant contends that the evidence was sufficient to sustain the Commission’s finding of total and permanent disability. She argues that, considering the nature of her disability, her age, and her limited work experience, the Commission properly concluded that there is no reasonably stable market for her services. Conversely, the respondent contends that because claimant-will remain healthy as long as she avoids contact with various irritants, she cannot be considered totally and permanently disabled for the purposes of section 8(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(f)). The respondent also argues that the Commission’s award is against the manifest weight of the evidence because there is no evidence that claimant is unable to work or that her disability has prevented her from obtaining suitable employment.

An employee does not have to be reduced to a state of total physical and mental incapacity or helplessness before total and permanent disability compensation can be awarded. (C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278; South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 488-89.) Although an employee seeking such compensation must prove that he has sustained a permanent medical disability as a result of a work-related accident (except with respect to awards pursuant to section 8(e)(18) (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(e)(18)) (Scandroli Construction Co. v. Industrial Com. (1973), 54 Ill. 2d 395, 399)), the award of compensation is not for the disability as such, but for the impaired earning capacity which results from the disability (Board of Education v. Industrial Com. (1972), 53 Ill. 2d 167, 171; Consolidated Coal Co. v. Industrial Com. (1924), 314 Ill. 526, 528).

Admittedly, the claimant is not presently experiencing pain or discomfort, nor is she likely to do so in the future as long as she avoids contact with various irritants. Medical testimony, however, indicates that the claimant is suffering from a medical disability — a sensitization to active chemical agents such as those found in common detergents and cleaning solvents — and that the disability was precipitated by her on-the-job exposure to perchloroethylene. In Dr. Pellegrino’s opinion, her susceptibility is a permanent condition. Dr. Pellegrino’s prognosis is supported, in many respects, by Dr. Bluefarb’s testimony. Although Dr. Bluefarb stated that claimant’s dermatitis was not presently active, he noted that her susceptibility to other chemical agents would be dependent upon the severity of her initial exposure and the damage caused by it, and stated that he did not know the extent or severity of that initial or subsequent exposure. Both Drs. Pellegrino and Bluefarb testified that claimant must avoid exposing her skin to any offending substance.

Determination of the extent or permanency of the employee’s medical disability is a question of fact, and the finding of the Commission will not be set aside unless it is against the manifest weight of the evidence. (Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 260.) We believe the medical testimony adequately supports the Commission’s finding that the claimant is suffering from a medical disability in that her skin has become permanently sensitized to various chemical compounds as the result of a work-related accident.

The finding of a permanent medical disability does not, however, resolve the question of whether an employee is totally and permanently disabled within the meaning of section 8(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(f)). As noted above, the degree of the disability is dependent upon the extent to which the medical disability has impaired the employee’s earning capacity or ability to work.

Evidence that the employee has been or is able to earn occasional wages or to perform certain useful services neither precludes a finding of total disability nor requires a finding of partial disability. (E.g., Smallwood v. Industrial Com. (1972), 53 Ill. 2d 151, 156; Universal Bleacher Co. Service Co. v. Industrial Com. (1969), 43 Ill. 2d 168.) For the purposes of section 8(f), a person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. (C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278; South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 489.) Conversely, if an employee is qualified for and capable of obtaining gainful employment without seriously endangering health or life, such employee is not totally and permanently disabled. Jefferson Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 85, 92-94; Cebulski v. Industrial Com. (1971), 48 Ill. 2d 289; Perry Coal Co. v. Industrial Com. (1931), 343 Ill. 525, 529.

The focus of the Commission’s analysis is on the degree to which the employee’s medical disability impairs his employability. In arriving at its determination, the Commission must consider the employee’s age, experience, training and capabilities. (Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312, 320; Springfield Park District v. Industrial Com. (1971), 49 Ill. 2d 67, 73.) The initial burden of proving the extent of the disability is on the employee to show that, as a result of a work-connected injury, he is unable to perform or obtain regular and continuous employment for which he is qualified. When, however, the nature or extent of the disability, coupled with the factors mentioned above, indicates that the employee cannot perform any services except those for which no reasonably stable labor market exists, the Commission may enter an award for total permanent disability despite the employee’s failure to show that work was not available. Cf. American Rivet Co. v. Industrial Com. (1966), 34 Ill. 2d 69, 73.

When the employee has made the above showing, it is incumbent upon the employer to come forward with evidence to show not only that the employee is capable of engaging in some type of regular and continuous employment, but that such employment is reasonably available. (2 A. Larson, Workmen’s Compensation sec. 57.61, at 10—136 to 10—137.) Placing this burden on the employer is justified in that it is much easier for the employer, by virtue of his contact with the labor market, to prove the claimant’s employability than it is for the employee to attempt to prove the universal negative of being totally unemployable. This burden of proof is somewhat similar to that borne by the employer who files a petition seeking to modify an award pursuant to section 8(f) (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(f)). Perry Coal Co. v. Industrial Com. (1931), 343 Ill. 525; Superior Coal Co. v. Industrial Com. (1926), 321 Ill. 240.

The parties have not cited nor has our research revealed any Illinois decision pertaining to an award for total permanent disability as a result of an employee’s susceptibility to dermatitis. A review of cases from other jurisdictions indicates that the result reached depended, in each instance, upon whether the court found the individual capable of performing or obtaining other suitable employment for which he was qualified without endangering his health.

A case comparable to that presented here was decided by the Supreme Court of Louisiana in Lewis v. St. Charles Parish Hospital Service District (La. 1976), 337 So. 2d 1137. There, the plaintiff, a 25-year-old black woman, was employed as a maid in the housekeeping department of the defendant hospital. Her duties involved regular exposure to a detergent germicide containing phenol compounds. As a result of this exposure, the backs and palms of her hands suffered extensive loss of pigment. The medical testimony indicated that due to the permanently sensitized condition of her hands, the claimant was unable to be employed in work involving exposure to phenol compounds or to sunlight. The record further indicated that phenol compounds are a component in most common household disinfectants and in almost all detergents and disinfectants which are widely used for routine cleaning in commercial and industrial establishments. The defendant listed various alternative occupations, but there was no evidence that the claimant was capable of performing these jobs without endangering her health. In reinstating the trial court’s award of compensation, which had been reversed by an appellate court, the Louisiana Supreme Court held that the trial court properly took into account the fact that the locality’s employment opportunities for an untrained black woman were limited to housekeeping and service occupations. It also noted that the disfigurement suffered by the claimant would further impair the chances of her finding suitable employment. Finding the claimant to be, for all practical purposes, unemployable as the result of her disability, the court affirmed the trial court’s award of total permanent disability compensation. See also Charleston v. Veri-Fresh Poultry Co. (La. App. 1973), 273 So. 2d 712, 716.

In the instant case, the 58-year-old claimant is precluded by her disability from returning to domestic service, her only earlier work experience. It can be inferred from her work history that she has no other skills or training to draw upon. Although we recognize that there may be certain types of work which the claimant could perform without endangering her health, under the circumstances of this case it was incumbent upon the respondent to prove not only what jobs these might be but, more importantly, that such jobs were reasonably available to a person in claimant’s position. Under the facts, we believe the Commission could find that there existed no reasonably stable market in which claimant could be employed.

Accordingly, the judgment of the circuit court is reversed and the award is reinstated.

Judgment reversed; award reinstated.

MR. JUSTICE RYAN,

dissenting:

I have no quarrel with the general proposition of law announced by the majority, i.e., that a person is totally disabled for purposes of section 8(f) when he cannot perform any services except those for which no reasonably stable market exists. However, I disagree with the majority’s ultimate conclusion that the claimant, in this case has offered a sufficient quantum of evidence to support a finding that she is, in fact, totally disabled within the context of section 8(f). Accordingly, I must respectfully dissent from the result reached by the majority today.

The evidence adduced both on arbitration and on review reveals the following facts. The claimant is suffering from general dermatitis that will remain cured or at least under control so long as she does not expose herself to solutions such as detergents and cleaning fluids. In this regard, the claimant testified that her allergic condition only flares up when she comes into contact with these types of toxic irritants. Further, the claimant, after being advised not to return to E. R. Moore Company, sought employment at only two other places, a garment factory and a bookbindery. For reasons not clear in the record, she did not secure employment at either place.

Given these pertinent facts, I cannot assent to the majority’s finding that the claimant is totally disabled within the meaning of section 8(f). There is no proof that the claimant is unable to return to work. In fact, the evidence shows that she is free to perform just about any type of menial or light labor, as long as she stays away from the toxic skin irritants which could trigger her allergy. Even giving due consideration to the claimant’s age, experience, training and ability, the evidence does not show that her opportunities for employment in such a diverse and large labor market as exists in the Cook County area can be considered so bleak as to permit the conclusion that she is unable to perform any services for which a stable labor market exists.

To justify such a conclusion, I believe the claimant must come forward with more evidence than that which she has proffered in this case. The evidence she has presented, that is, that she was not “called back” by the two factories at which she sought employment, proves little. First, there is no indication whether these factories had any openings for employment, or that the claimant was refused employment for any reason relating to her age, experience, training, or ability. Moreover, given the large number of factories and business establishments at which the claimant could seek and possibly find work, it would seem that two applications for employment provide little convincing evidence to support a finding of permanent disability.

The case on which the majority relies to sanction a finding of permanent disability “despite the employee’s failure to show that work was not available,” American Rivet Co. v. Industrial Com. (1966), 34 Ill. 2d 69, is inapposite to the case at hand. In American Rivet, the claimant, whose work experience had been limited to employment as a machine operator, was prevented from continuing in that line of work or any similar type, when an injury caused him to have headaches, dizziness, blurred vision, and blackouts. Also, because of a chronic leg condition, he was prevented from performing any type of a desk job. He was an immigrant with only one year of formal education, and he had difficulty with the English language. Consequently, because of the severe limitations concerning the claimant’s opportunity for any type of employment, it was concluded that the evidence sustained the finding of total and permanent disability. In the instant case, however, no such severe handicap exists as to the claimant. She is a relatively healthy individual, albeit of advanced years. Unlike the claimant in American Rivet, I do not think she should be exempted from the traditional burden of proving that she cannot perform any services except those for which no reasonably stable market exists.

Lewis v. St. Charles Parish Hospital Service District (La. 1976), 337 So. 2d 1137, the case upon which the majority relies to justify an award for total disability as a result of an employee’s susceptibility to dermatitis, is unpersuasive authority to sustain such an award to the claimant in the instant case. In Lewis, there was much more than a mere susceptibility to an allergic condition. The claimant in Lewis suffered severe discoloration of her hands which resulted in their appearing disfigured and diseased. The court specifically noted that the unsightly appearance of the claimant’s hands greatly narrowed her employment opportunities. Also, the Lewis court noted that, as a result of certain demographic factors, there was virtually no market for the claimant’s services in the area in which she sought employment. (Lewis v. St. Charles Parish Hospital Service District (La. 1976), 337 So. 2d 1137, 1140.) Moreover, three justices of the Louisiana Supreme Court dissented from the majority holding and felt that susceptibility to allergy, even coupled with the physical appearance of the claimant’s hands, is not enough to support a finding of permanent disability.

The claimant here has not come forward with enough evidence, medical or otherwise, to sustain a finding of permanent disability. The shifting of the burden of proof to the employer, which the majority espouses, comes about only after the employee has established that her condition is such that she is unable to perform any services for which there is a reasonably stable market. Professor Larson stated that the employee must prima facie prove that she falls in an “odd-lot” category. That is, that only irregular or unpredictable, as distinguished from steady or continuous, employment can be performed by, or is available to, the employee. In such cases, Professor Larson states, the burden then shifts to the employer to show that some kind of suitable work is regularly and continuously available. (2 A. Larson, Workmen's Compensation secs. 57.51, 57.61.) The employee in our case, by proving that she has a dermatitis that flares up on exposure to certain irritants, and that she applied for work at two factories in a job market area as diversified as Cook County, has not established the prima facie showing envisaged by Professor Larson.

MR. JUSTICE UNDERWOOD joins in this dissent.


author: MR. JUSTICE GOLDENHERSH

text:
    (No. 49743.
    J. M. JONES COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al.—(Michael A. Paul, Appellee.)

      Opinion filed April 3, 1978.

    Rehearing denied May 26, 1978.

      Henry D. Noetzel & Associates, of Peoria (J. Jay Robeson, of counsel), for appellant.
    Ansel, Eisenberg & Marsh, of Champaign (Marc J. Ansel, of counsel), for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that petitioner, Michael J. Paul, had suffered an accidental injury while employed by respondent, J. M. Jones Company, and awarded him compensation for a period of temporary total disability of 5 3/7 weeks. Pursuant to section 19(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b)) the arbitrator found “that the injuries sustained caused the disabling condition of said petitioner; that the disabling condition is temporary and has not yet reached a permanent condition”; and that “This award in no instance shall be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability.”

On review, the Industrial Commission heard additional evidence and affirmed the award. Both petitioner and respondent sought certiorari. The circuit court of Champaign County confirmed the decision but remanded the cause to the Industrial Commission for further proceedings “specifically to make a ruling as to petitioner’s entitlement to any additional temporary total disability and/or medical services through the date of review before the Commission *** »

Prior to reviewing the substantive issues in this appeal, we consider respondeht’s contention that the circuit court, on certiorari, may only confirm the decision of the Industrial Commission or set it aside and may not, as it did here, remand the cause for the purpose of updating the award to the time of the Commission’s affirmance of the arbitrator’s order. Corollary to the question raised by respondent is the question whether, in view of the remanding order, the judgment appealed from is final and appealable.

This court has consistently held that when the circuit court has reversed and remanded awards other than the type here involved, the orders are interlocutory and not appealable. Allis Chalmers Manufacturing Co. v. Industrial Com. (1971), 50 Ill. 2d 2; Wellman-Lord, Inc. v. Industrial Com. (1971), 48 Ill. 2d 533; see Nichols v. Industrial Com. (1971), 49 Ill. 2d 431; Mayrath Co. v. Industrial Com. (1965), 33 Ill. 2d 224.

Section 19(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b)) in pertinent part provides:

“The Arbitrator *** may find that the disabling condition is temporary and has not yet reached a permanent condition and may order the payment of compensation up to the date of the hearing, which award shall be reviewable and enforceable in the same manner as other awards, and in no instance be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability, but shall be conclusive as to all other questions except the nature and extent of said disability.”

We have held that an appeal will lie from an order of the circuit court confirming such an award. Stockton v. Industrial Com. (1977), 69 Ill. 2d 120.

Section 19(e) of the Workmen’s Compensation Act provides that if a petition for review is filed “the Commission shall promptly review the decision of the Arbitrator *** and all questions of law or fact which appear from the statement of facts or transcript of evidence, and such additional evidence as the parties may submit. After such hearing upon review, the Commission shall file in its office its decision thereon ***.” Although we find no statutory impediment to its so doing, and agree with the circuit court that this record contains sufficient evidence upon which to decide the question, we conclude that the Commission was vested with discretion to determine whether some further amount of temporary total compensation or compensation for permanent disability should be awarded at that time or, as it did, merely affirm the award. The Commission was vested by statute with jurisdiction to make the determinations directed by the circuit court, and the order of the circuit court remanding the cause for that purpose was a nullity. We hold that the order appealed from is a final, appealable order, reviewable by this court.

Respondent contends that the Commission’s decision is against the manifest weight of the evidence. It argues that “the petitioner’s testimony standing alone is not sufficient to sustain an award where it is contradicted, uncorroborated and his subsequent conduct is inconsistent.” It argues too that to sustain the award for temporary total disability “the evidence must show not only failure to work but inability to work.”

The testimony shows that petitioner was employed as an “order picker” in respondent’s warehouse. A forklift driven by another employee struck him in the back and knocked him against a metal beam. On complaint to respondent’s physician he was given a muscle relaxant for a chest and arm injury. After missing several days of work he was assigned to lighter duties and, approximately six weeks later, when he returned to his regular duties, suffered back pains. Three months later he returned to work for one day and fainted while attempting to lift a box which weighed approximately three pounds. At the hearing before the arbitrator, petitioner’s physician testified that he had made a diagnosis of acute “sacrospinalis strain,” and at the hearing before the Commission he testified that he had made a diagnosis of a herniated disc and was contemplating surgery.

The testimony shows that in addition to his employment with respondent petitioner drove a school bus for approximately three hours each day. Although he was no longer working for respondent, he continued to drive the bus for approximately seven months after the injury, when he ceased to do so because of leg pains associated with his back injury.

Respondent contends that because petitioner was employed part time as a bus driver, he may not be awarded temporary total disability. In E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, we said: “Evidence that the employee has been or is able to earn occasional wages or to perform certain useful services neither precludes a finding of total disability nor requires a finding of partial disability. (E.g., Smallwood v. Industrial Com. (1972), 53 Ill. 2d 151, 156; Universal Bleacher Co. Service Co. v. Industrial Com. (1969), 43 Ill. 2d 168.) For the purposes of section 8(f) [section 19(b)], a person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists.” 71 Ill. 2d 353, 361-62.

From our examination of the record we conclude that the fact that petitioner, for some period of time following his injury, could drive a school bus for a FA-hour period each morning and afternoon does not require reversal of the Commission’s finding that he was, for the period of time involved, temporarily totally disabled. Concerning the issue of causation, the circuit court correctly found that the Commission’s decision is not contrary to the manifest weight of the evidence.

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

Judgment affirmed.


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    (No. 49508.
    WINIFRED B. KENDALL et al., Appellants, v. BLAINE W. KENDALL, Appellee.

      Opinion filed March 23, 1978.

    Rehearing denied May 26, 1978.

      Eagle & Eagle, of Rock Island (Edw. L. Eagle, Jr., of counsel), for appellant.
    Robert G. Scott, of Rock Island, for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

The circuit court of Mercer County dismissed that portion of a complaint in which the plaintiffs, Winifred B. Kendall, widow of Meigs W. Kendall, and Larene K. Lingafelter, Drucilla K. Martin and Idamae K. Kelly, his surviving daughters, sought rescission of the conveyances of a farm to defendant, Blaine W. Kendall, the son of decedent. Pursuant to Supreme Court Rule 304(a) (58 Ill. 2d R. 304(a)) the circuit court found that there was no just reason for delaying enforcement or appeal. Plaintiffs appealed, the appellate court affirmed (46 Ill. App. 3d 559), and we allowed plaintiffs’ petition for leave to appeal.

The order of dismissal having been entered upon allowance of the motion to dismiss filed by defendant, Blaine W. Kendall, all facts properly pleaded in the complaint must be taken as true. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 96.) It was alleged in the complaint that in 1945 Meigs W. Kendall, husband of plaintiff Winifred B. Kendall, and father of the defendant and the remaining plaintiffs, died intestate; that at the time of his death he owned the farm described in the complaint; that in order to insure that the widow would have adequate support during her lifetime and that the decedent’s daughters would receive a share of his estate, the parties entered into a settlement agreement; that copies of the agreement, the deeds, and a form of the notes executed in compliance with the agreement were attached to the complaint as exhibits; that in disregard of the agreement the defendant has taken possession of the farm, collected the rents and profits, and has refused to account for and pay them over to the plaintiff widow; and that he has refused to pay the other plaintiffs the sums due under the terms of said notes.

Attached to the complaint as exhibits are a quitclaim deed executed by the plaintiffs and their respective spouses conveying their interests in the real estate to the defendant, a deed by means of which defendant conveyed a life interest in the real estate to the plaintiff widow and a copy of one of the three notes executed by defendant, payable to the order of his three sisters.

An amended complaint which plaintiffs were denied leave to file contained substantially the same allegations but also alleged “That in order to provide his mother with adequate support for the duration of her life, Blaine W. Kendall promised to operate and manage said farm and pay the rent therefrom to his mother ***.”

In affirming the order of dismissal the appellate court stated that the written agreement between the parties was complete and unambiguous, that it contained no provision which required defendant to support his mother for the remainder of her life, and that an obligation to support his mother could not be proved by parol evidence.

Plaintiffs contend that when a parent conveys property to a child in consideration of the child’s promise to support the parent, and the child fails to carry out the promise, equity will presume a fraudulent intent at the time of the conveyance and will grant relief to the parent by allowing rescission of the contract. They contend further that the long-established rule in this jurisdiction is that parol evidence is admissible to show the true and actual consideration of a deed of conveyance and that they can, under this rule, prove that the promise to support was the consideration for the execution of the conveyances. They argue that the appellate court erred in holding that although this rule is generally applicable, it is not here applicable for the reason that the underlying agreement sought to be proved by parol evidence was a written, rather than an oral, agreement.

Both the deed by means of which plaintiffs conveyed their interests in the farm to defendant and the deed by means of which defendant and his wife conveyed a life estate to the plaintiff, Winifred B. Kendall, recite that the consideration was “One dollar and other good and valuable considerations.”

Plaintiffs are correct in their contention that the long-established rule is that the real or actual consideration for a deed of conveyance may be shown by parol or extrinsic evidence. Here the extrinsic evidence of the consideration for the execution of the conveyances admissible under the rule was the written agreement entered into between the parties, in compliance with which the conveyances were executed. The rule, however, does not serve to render admissible parol evidence to vary the terms of that written agreement. See 9 Wigmore, Evidence 109 (3d ed. 1940).

The rule which determines whether parol evidence is admissible to vary the terms of the written agreement is stated in Telluride Power Transmission Co. v. Crane Co. (1904), 208 Ill. 218. The court said: “The rule is, that when the writings show, upon inspection, a complete legal obligation, without any uncertainty or ambiguity as to the object and extent of the engagement, it is conclusively presumed that the whole agreement of the parties was included in the writings. The fact that a point has been omitted which might have been embodied therein will not open the door to the admission of parol evidence in that regard. *** The rule is too well recognized to require citation of authorities that all preliminary negotiations, whether oral or written, are merged in the written contract.” 208 Ill. 218, 226-27.

An examination of the written agreement between the parties shows it to be complete and unambiguous. It contains no agreement for the support of plaintiff, Winifred B. Kendall, during her lifetime, and neither the complaint nor the amended complaint alleges any facts which would entitle plaintiffs to vary the terms of the written agreement by parol evidence.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.


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    (No. 49737.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES E. ALLEN, Appellant.

      Opinion filed March 23, 1978.

      Rehearing denied May 26, 1978.

      Denis McGrady, Jr., of McGrady & McGrady, of Gillespie, for appellant.
    William J. Scott, Attorney General, of Springfield, and Kelly D. Long, State’s Attorney, of Hillsboro (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Bruce D. Irish, of the Illinois State’s Attorneys Association Prosecutors’ Appellate Service, of Elgin, of counsel), for the People.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of Montgomery County, defendant, James E. Allen, was convicted of the offense of theft (Ill. Rev. Stat. 1975, ch. 38, par. 16—3(a)). He was sentenced to conditional discharge, fined, and ordered to make restitution. Holding that at the time defendant’s notice of appeal was filed, the circuit court had not as yet entered a final appealable order, the appellate court dismissed the appeal. (49 Ill. App. 3d 108.) We allowed defendant’s petition for leave to appeal.

The jury’s verdict was returned on May 5, 1976. The docket sheet shows the following entry:

“July 6, 1976. Motion in Arrest of Judgment heard and denied. Post Trial motion heard and denied. Motion that verdict of jury be vacated denied. Motion for new trial denied. Evidence in aggravation and mitigation presented. Statements of counsel heard. Deft, placed on Conditional Discharge for a term of 2 years upon usual statutory terms and also that Deft, make restitution in the amount of $234.00 and that he pay a fine in the amount of $750.00 and costs. Order to be prepared.”

The transcript of the proceedings on that date shows that the circuit court requested the State’s Attorney to prepare “a written order along those lines.” The written order, file-marked July 20, 1976, provides: “Enter: July 6, 1976.” Defendant’s notice of appeal, filed July 16, 1976, states that the judgment appealed from was entered on July 6, 1976.

Defendant contends that under Supreme Court Rule 606(b) his notice of appeal was timely filed. The People contend:

“Where the details of the judgment are clearly enunciated in writing in the records of the court at the time of its pronouncement, and there is no indication that further written orders are to be entered, the defendant may file an effective notice of appeal within 30 days thereafter. [Citations.]
However, where the court clearly indicates that its pronouncement, with or without concurrent docket entries, does not constitute the entry of judgment — by directing that the written judgment be prepared for later entry — the prospective appellant is put on notice that the judgment, although pronounced, is not yet final and appealable, as the requisite entry of judgment under Rule 606(b) is yet to be met.”

Supreme Court Rule 272 pertaining to the entry of judgment in civil cases provides:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.” 58 Ill. 2d R. 272.

Supreme Court Rule 606(b), applicable in criminal appeals, states:

“The notice of appeal shall be filed within 30 days from the entry of the order or judgment from which the appeal is taken; or if the appellant applies for probation or files a motion for a new trial or in arrest of judgment, the notice of appeal shall be filed within 30 days after the ruling of the court on the application for probation or the denial of the motion. ***” 58 Ill. 2d R. 606(b).

The Code of Criminal Procedure of 1963 contains the following definitions:

“ ‘Judgment’ means an adjudication by the court that the defendant is guilty or not guilty and if the adjudication is that the defendant is guilty it includes the sentence pronounced by the court.” (Ill. Rev. Stat. 1975, ch. 38, par. 102-14.)
“ ‘Sentence’ is the disposition imposed on the defendant by the court.” (Ill. Rev. Stat. 1975, ch. 38, par. 102-20.)

The final judgment in a criminal case is the sentence. People v. Warship (1974), 59 Ill. 2d 125, 130.

In a criminal case the pronouncement of the sentence is the judicial act which comprises the judgment of the court. The entry of the judgment order is a ministerial act and is merely evidence of the sentence. People v. Moran (1930), 342 Ill. 478; Accord, Sasser v. United States (6th Cir. 1965), 352 F.2d 796.

This record does not present the question nor need we consider what rule would apply in the event of a discrepancy between the judgment as pronounced and the order as entered. Here there is no question that the judgment order purportedly entered as of July 6, 1976, correctly embodied the judgment of the court. Under these circumstances we hold that the judgment was entered at the time of its pronouncement on July 6, 1976, and that the notice of appeal was therefore timely filed. For the reasons stated the order of the appellate court dismissing the appeal is reversed and the cause is remanded to the Appellate Court for the Fifth District with directions to reinstate the appeal.

Reversed and remanded, with directions.