author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 52873.
    GENEVIEVE N. BENTLEY, Adm’r, Appellee, v. SAUNEMIN TOWNSHIP et al., Appellants.

      Opinion filed December 1, 1980.

      William F. Costigan, of Costigan & Wollrab, of Bloomington, for appellants.
    James Walker, Ltd., of Bloomington, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Genevieve N. Bentley, administrator of the estate of Bonnie Ann Holzhauer, filed this wrongful death action in the circuit court of Livingston County against Saunemin Township, the township highway commissioner, Livingston County, the county superintendent of highways, and Doris Sexton, administrator of the estate of Gerald Holzhauer, Bonnie Ann’s husband. Plaintiff later dismissed Sexton. The basis of plaintiff’s claim against the remaining defendants was the alleged negligence of those defendants in failing to maintain visibility of a stop sign at the intersection of State highway 47 and a Saunemin Township road. A jury returned a verdict for defendants and stated, as its finding in response to a special interrogatory, that the husband of Bonnie Ann Holzhauer — driver of the automobile in which she rode — was guilty of negligence which was the sole proximate cause of Bonnie Ann’s death. The trial judge entered judgment on the verdict and denied plaintiff’s motion for judgment n.o.v, On appeal by plaintiff, the appellate court held that the trial judge should have granted plaintiff’s motion for judgment n.o.v. as to the township and its highway commissioner. (77 Ill. App. 3d 598.) The appellate court found that Bonnie Ann Holzhauer was not guilty of contributory negligence, that the negligence of the township and its highway commissioner was a proximate cause of the death of Bonnie Ann Holzhauer, and that any negligence on the part of her husband was not sufficient to relieve the township and the commissioner of liability. The court accordingly reversed the judgment of the circuit court and remanded the cause to the circuit court to address the question of damages. We granted the petition for leave to appeal filed by the township and its highway commissioner. No queston is raised as to the liability of the county and its superintendent of highways, and our discussion is limited to the defendant township and its highway commissioner.

On the date of the accident, July 27, 1975, Bonnie Ann Holzhauer was a passenger in an automobile driven by her husband, Gerald Holzhauer. They were proceeding westbound on a gravel-surfaced township road, they entered State highway 47, a north-south highway, and they there collided with a northbound vehicle. Both Holzhauers were killed.

The State had placed a stop sign at the intersection to regulate access from the township road onto Route 47. Photographs of the intersection which were admitted into evidence indicate that branches of a tree hung to the ground and extended to the edge of the township road, thereby obscuring visibility of the sign. Livingston County Coroner Keith Von Qualen testified on behalf of plaintiff that the foliage obscured visibility from beyond 120 feet of the sign. Dr. John Baerwald, Director of the University of Illinois Traffic Center, was called as an expert witness by plaintiff and testified that, based on generally accepted reaction times and stopping distances, a driver approaching the intersection at 35 miles per hour would not be able to stop within 120 feet. He also testified that 45 miles per hour would have been a safe speed on the road on which the Holzhauers were traveling. There was no evidence of the speed of the Holzhauer vehicle or of whether a stop was attempted.

The photographs admitted into evidence also show no sign indicating “Stop Ahead,” which could have alerted Gerald Holzhauer to the approach of an intersection, and it was conceded at oral argument in this court that no such sign existed. There was also no evidence that Gerald Holzhauer might have known of the presence of the intersection or stop sign because of prior travel in the area.

Under the Illinois Highway Code and our recent decision in Janssen v. City of Springfield (1980), 79 Ill. 2d 435, it cannot be seriously questioned that defendants owed plaintiff’s decedent a duty of reasonable care in maintaining visibility of the stop sign. Under the Code, a township highway commissioner is responsible for maintaining township roads (Ill. Rev. Stat. 1975, ch. 121, par. 6 — 201.7), and as we said in Janssen, “Our courts have long recognized that, in the absence of an act by the State which divests a local government of jurisdiction over a highway, a local government has an obligation to maintain public highways within its boundaries in a safe condition.” (79 Ill. 2d 435, 450.) We note parenthetically the duty imposed upon defendants by the Illinois Vehicle Code to “place and maintain such traffic-control devices upon highways under their maintenance jurisdiction as are required to indicate and carry out the provisions of this Chapter, and local traffic ordinances or to regulate, warn, or guide traffic.” (Ill. Rev. Stat. 1975, ch. 95Vs, par. 11 — 304.) No argument is made by plaintiff, however, that this duty was breached by defendants’ failure to place a “Stop Ahead” sign alongside the road. We therefore need not decide whether the duty to place and maintain such a sign is within the obligation of defendants “to warn motorists of those hazards which are incident to that portion of a highway which remains under local maintenance jurisdiction” (Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 448).

That defendants’ duty was breached is also, we believe, apparent from our recitation of the plaintiff’s evidence. As the appellate court stated, it is not “seriously disputed that some governmental entity was negligent in failing to clear a tree from the north side of the township road some 95 feet east of the intersection.” (77 Ill. App. 3d 598, 601.) Given the duty of defendants to maintain visibility of the stop sign, we consider that their failure to do so here is negligence as a matter of law.

We also note the absence of evidence of contributory negligence on the part of Bonnie Ann Holzhauer. There is no indication that, as a passenger of the vehicle, she in any way was responsible for her husband’s actions or that she otherwise caused the accident.

The crucial issue, as we see it, and as the parties seem to acknowledge, is that of proximate cause. Seeking reinstatement of the jury’s verdict, defendants argue that the appellate court, in resolving the proximate cause issue, improperly directed entry of judgment n.o.v. in favor of plaintiff. Defendants cite the testimony of witnesses called by plaintiff and defendants who stated that, upon visiting the accident scene, they could detect indications of an intersection from 300 to 500 feet away; the witnesses testified that a portion of Route 47 could be seen to the south of the intersection or that they could detect a difference in texture of the intersecting roadways. Dr. Baerwald, plaintiff’s expert witness, also acknowledged that one approaching the intersection could detect Route 47 leading to the south and possibly to the north, but that one might not readily discern whether the road leading to the south is a private driveway or a public road. The evidence also shows that the collision occurred during the daytime, that the sun was shining, and that both roads were fairly straight and flat. Defendants also note the finding stated by the jury, in response to a special interrogatory, that the negligence of Gerald Holzhauer was the sole proximate cause of Bonnie Ann’s death. Relying on the Pedrick standard for considering judgments n.o.v., defendants argue that the evidence and reasonable inferences therefrom, when viewed in a light most favorable to defendants, do not so overwhelmingly favor plaintiff that the verdict for defendants cannot stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510; see also Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 86.) We do not agree.

The negligence of a defendant will not constitute a proximate cause of a plaintiff’s injuries if some intervening act supersedes the defendant’s negligence, but if the defendant could reasonably foresee the intervening act, that act will not relieve the defendant of liability. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 111-12; Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380-81.) Judged by this and the Pedrick standard, we believe that the evidence, when viewed in its aspect most favorable to defendants, indicates that defendants should have foreseen the failure of Gerald Holzhauer, without the benefit of a stop sign, to recognize other indications of an approaching hazard. We therefore hold that the omissions of Gerald Holzhauer do not relieve defendants of liability for their negligence. Indeed, a purpose of a stop sign is to obviate the need to rely on other indications of hazard, and we do not consider it reasonable to absolve defendants of responsibility because of Gerald Holzhauer’s shortcomings in dealing with a situation created by defendants’ own negligence. (Phelan v. Santelli (1975), 30 Ill. App. 3d 657, 663-65.) As Prosser states:

“[T] he intervention of the later cause is a significant part of the risk involved in the defendant’s conduct, or is so reasonably connected with it that the responsibility should not be terminated. ***
* * *
Obviously the defendant cannot be relieved from liability by the fact that the risk, or a substantial and important part of the risk, to which he has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant’s negligence. The courts are quite generally agreed that intervening causes which fall fairly within this category will not supersede the defendant’s responsibility.
***
The risk created by the defendant may include the intervention of the foreseeable negligence of others. *** [T] he standard of reasonable conduct may require the defendant to protect the plaintiff against ‘that occasional negligence which is one of the ordinary incidents of human life, and therefore to be anticipated. ’ Thus a defendant who blocks the sidewalk and forces the plaintiff to walk in a street where he will be exposed to the risks of heavy traffic becomes liable when he is run down by a car, even though the car is negligently driven; and one who parks his automobile on the highway without lights at night is not relieved of responsibility when another negligently drives into it. By the same token, one who spills gasoline can expect it to be negligently set afire, and when a drunken passenger is ejected from a bus into the midst of traffic it may be anticipated that he will be negligently run down.” (Prosser, Torts sec. 44, at 272-74 (4th ed. 1971).)

To relieve defendants of responsibility here would expand the meaning of superseding cause beyond that contemplated by the respective authorities on which Prosser relies, including our appellate court (Prosser, Torts sec. 44, at 274 n.15 (4th ed. 1971), citing Johnson v. City of Rockford (1962), 35 Ill. App. 2d 107), and we are not willing to take that course. A ruling favorable to defendants on this point would be analogous to allowing one to absolve himself of responsibility for a fire because firefighters experienced difficulty in extinguishing the flames, and we would not countenance such a result.

As to the jury’s special finding that Gerald Holzhauer’s negligence was the sole proximate cause of Bonnie Ann’s death, we find that it cannot withstand scrutiny under the Pedrick standard. The evidence, when viewed in its aspect most favorable to defendants, so overwhelmingly favors plaintiff that the finding for defendants cannot stand. Since the failure of Gerald Holzhauer to detect the existence of a hazard would not, under the facts of this case, relieve defendants of liability, it could not be said that Gerald Holzhauer’s negligence was the sole proximate cause of Bonnie Ann’s death. There may be more than one proximate cause of an injury (Ray v. Cock Robin, Inc. (1974), 57 Ill. 2d 19, 23; Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 88), and that may well be the case here. It cannot be said, however, that the omissions of Gerald Holzhauer were the sole proximate cause of this accident.

Under our view of the jury’s finding, we need not address plaintiff’s constitutional argument that the use of special interrogatories required by the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 65) constitutes a legislative usurpation of judicial functions. (See Albaugh v. Cooley (1980), 88 Ill. App. 3d 320.) Under our disposition of the case, we also need not address plaintiff’s numerous allegations of trial error.

The judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    (No. 53442.

      In re MAHENDRA R. MEHTA, Attorney, Respondent.

      Opinion filed December 1, 1980.

    Carl H. Rolewick, of Chicago, for the Attorney Registration and Disciplinary Commission.
    Frederick F. Cohn, of Chicago, for respondent.
   PER CURIAM:

This matter is before the court on the record, the report of the Hearing Board of the Attorney Registration and Disciplinary Commission, the report of the Review Board, respondent’s objections to the latter report, and the Administrator’s reply to the objections. The parties have waived the filing of briefs and oral argument and have jointly requested that the case b'e considered upon the matters now filed.

Respondent, Mahendra R. Mehta, was convicted of making false statements to an agency of the United States in violation of 18 U.S.C. section 1001, in connection with immigration cases in which respondent represented Indian citizens who were seeking permanent-resident status in the United States. He was sentenced to concurrent terms of one year and a day on four counts and placed on probation for three years on three counts. The conviction was affirmed on appeal. In May 1976 an order was entered under Rule 761 (73 Ill. 2d R. 761) suspending respondent from the practice of law.

A hearing was held before the Hearing Board in June 1979, and the record of respondent’s conviction was introduced in evidence. Respondent did not testify on his own behalf, although he was examined briefly by the attorney for the Administrator under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). The attorney for the Administrator recommended that respondent be suspended for a further period of three years and until further order of this court. The attorney for respondent stated that he had no objection to such an order and would not appeal from it. The report of the Hearing Board, issued in November 1979, recommended suspension for five years, commencing with May 1976, when respondent was suspended under Rule 761, and until further order of this court. This recommendation was more lenient than that suggested by the Administrator and agreed to by respondent.

The report of the Review Board, issued in March 1980, recommended a further three-year suspension, and until further order of this court. Respondent objects to the increase and cites cases where other attorneys who were convicted of criminal offenses received lesser suspensions. (See In re Bass (1971), 49 Ill. 2d 269; In re Lytton (1971), 48 Ill. 2d 390.) Respondent says he stands by his agreement not to contest a further three-year suspension but points out that he has already been suspended for over four years, and says he did not understand that the further suspension would not commence until final review by this court.

Upon full consideration, we are of the opinion that suspension from the practice of law for a period of three years from June 15, 1979, the date of respondent’s agreement, is an appropriate form of discipline, and it is so ordered.

Respondent suspended.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 53216.

      In re ALYCE TALLMANN NEFF, Attorney, Respondent.

      Opinion filed December 1, 1980.

      Philip Schickedanz, of Springfield, for the Administrator of the Attorney Registration and Disciplinary Commission.
    No appearance for respondent.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On February 2, 1979, the Administrator of the Illinois Attorney Registration and Disciplinary Commission filed a petition pursuant to Rule 763 (73 Ill. 2d R. 763) alleging that on January 2 the respondent, Alyce Tallman Neff, also known as Alyce Neff Browne, had been suspended indefinitely from the practice of law in the State of Wisconsin. The order of the Supreme Court of Wisconsin indicates, in addition to the indefinite suspension, that respondent would not be permitted to petition for reinstatement for at least six months and would not be reinstated unless and until she paid $500 costs to the Board of Attorneys Professional Responsibility and had made whole the former client upon whose complaint the action was based. The Administrator’s petition sought an order of this court subjecting respondent, who was licensed in 1961 to practice law by this court, to the same disciplinary sanction in this State to run concurrently with the Wisconsin discipline.

Respondent requested a hearing upon the Administrator’s petition, and the cause was referred by us to the Hearing Board pursuant to Rule 763. A panel of that board held a hearing and recommended “that the Respondent be suspended from the practice of law in the State of Illinois on the same terms and conditions as previously imposed upon Respondent by the State of Wisconsin, to run concurrently with the discipline imposed by the State of Wisconsin.” Respondent excepted to the recommendation of the Hearing Board. Although she filed no brief, respondent did appear before the Review Board, which noted in its order that she was “the mother and sole support of five (5) children,” and that her practice was limited and her income sparse. There is no transcript in this record of the proceedings before the Review Board, and we have nothing before us indicating the basis for those findings. We do note, however, that respondent had testified before the hearing panel that she was receiving support from two former husbands. The Review Board concluded, with two members dissenting, that substantially less discipline was warranted in Illinois and dismissed the complaint. The cause is before us pursuant to leave granted the Administrator to file exceptions to the Review Board’s action.

Rule 763, on reciprocal disciplinary action, provides:

“If an attorney licensed to practice law in this State and another State is disciplined in the foreign State, he may be subjected to the same discipline in this State, to run concurrently with the discipline in the foreign State, upon proof of the order of the foreign State imposing the discipline.
The Administrator shall initiate proceedings under this Rule by filing a petition with the court, to which a certified copy of the order of the foreign State is attached, together with proof of service upon the attorney. Within 21 days after service of a copy of the petition upon him the attorney may request in writing a hearing on the petition. The hearing shall be held before the Hearing Board no less than 14 days after notice thereof is given to the attorney respondent and the Administrator. At the hearing the attorney may be heard only on the issues as to (1) whether or not the order of the foreign State was entered; (2) whether it applies to the attorney; (3) whether it remains in full force and effect; (4) whether the procedure in the foreign State resulting in the order was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process of law; and (5) whether the conduct of the attorney warrants substantially less discipline in this State.
If an attorney is suspended or disbarred in this State pursuant to this Rule, the reinstatement in this State shall be governed by the provisions of Rule 767.
Nothing in this Rule shall prohibit the institution of independent disciplinary proceedings in this State against any attorney based upon his conduct in another State, and, in the event the Administrator elects to proceed independently, any discipline imposed in this State shall not be limited to the discipline ordered by a foreign State.” 73 Ill. 2d R. 763.

The only issue here is whether the conduct of the respondent warrants substantially less discipline in this State.

The Wisconsin proceedings were the result of a complaint by a client of the respondent with that State’s Board of Attorneys Professional Responsibility. The complaint by that board to the Supreme Court of Wisconsin alleged that in 1974 respondent accepted $75 from the client for representation in a bankruptcy action; that she informed the client that bankruptcy papers were filed; that the statement so made was not true; that the client thereafter obtained other counsel to represent him and demanded of the respondent the return of the money paid as a retainer; and that she failed and refused to return such funds. A “Second Claim for Discipline” in that complaint consisted of allegations that respondent failed on at least three occasions to answer correspondence concerning the client’s complaint from representatives of the State bar and the district grievance committee. These failures by the respondent constituted a violation of Wisconsin’s standards of professional conduct.

Respondent appeared at a prehearing conference in Wisconsin and requested and was granted an opportunity to answer the complaint, but did not do so. She failed to appear at the subsequent default hearing on the complaint, following which a referee made findings in accordance with the complaint and the supreme court entered its order of suspension based upon those findings.

At the subsequent hearing on the complaint now before us respondent stated that she received notice December 9, 1978, from the Supreme Court of Wisconsin that she had been suspended from membership in the State bar of Wisconsin for failure to comply with that State’s 1977 continuing-legal-education requirements. Respondent further testified that she did not pursue the subsequent Wisconsin disciplinary matter because she did not intend to practice in Wisconsin and would limit her practice to Illinois. Respondent indicated that she did not refund the retainer fee because she believed she was entitled to it as a result of more than three hours spent with the client. She also introduced into evidence a copy of her petition for reinstatement and “Immediate Inactive Status” addressed to the Supreme Court of Wisconsin. Her unexecuted supporting affidavit states that she met the conditions for reinstatement and “has forwarded” the $500 costs to the Wisconsin board and repaid her client. An affidavit by that client also indicated repayment of $75. Upon questioning by the panel members, respondent indicated she had not actually forwarded the documents but intended to execute and forward the originals of the documents and the $500 costs to the Wisconsin bar that afternoon, “within two hours.” She did not do so.

The Administrator notes in his brief that when respondent appeared before the Review Board six months later she still had taken no action to resolve her Wisconsin suspension. The respondent has not filed a brief in this court, and we have no indication that her representation to the Hearing Board has been fulfilled.

The Review Board majority based its conclusion that substantially less discipline was warranted in Illinois on its finding that restitution was made to the client, only $75 was involved, respondent’s income was sparse, and there did not appear to be any fraud, deceit or misrepresentation attributable to her.

It is settled that final responsibility for determining the discipline to be imposed rests in this court and that in determining the appropriate penalty we may properly consider all facts and circumstances in aggravation and mitigation, including respondent’s actual conduct. (In re Cook (1977), 67 Ill. 2d 26; In re Lytton (1971), 48 Ill. 2d 390.) Determining the discipline to be imposed upon an erring attorney is never a simple matter, but there are few of our functions more important than our supervision of the disciplinary system. The purpose of that system is to safeguard the public and maintain the integrity of the legal profession. (In re Spencer (1977), 68 Ill. 2d 496.) The principal objective of a disciplinary inquiry is to determine whether the attorney is a proper person to be permitted to practice his profession. In re March (1978), 71 Ill. 2d 382; In re Andros (1976), 64 Ill. 2d 419.

It is established here that respondent had accepted a fee to represent a client in a bankruptcy matter and told him she had filed the necessary papers. In fact she had not done so and did not do so. She refused to refund the fee, and she failed to answer repeated attempts by disciplinary personnel to contact her regarding the client’s complaint. Respondent’s explanation to our hearing panel that she believed she had earned the fee was, of course, an explanation which would have been appropriate in the Wisconsin proceedings. It was not appropriate here, since the contrary Wisconsin findings are res judicata. (In re Cook (1977), 67 Ill. 2d 26, 32; In re Andros (1976), 64 Ill. 2d 419, 423.) After the Wisconsin disciplinary complaint was filed, respondent requested and was granted an extension of time within which to file an answer but did not do so, and was ultimately defaulted. The Wisconsin sanctions seem clearly justified, and respondent has not improved her position by her failure to implement her statement to the Illinois hearing panel that she was mailing the documents to the Wisconsin Supreme Court.

Under ordinary circumstances we would agree with the hearing panel that substantially less discipline in Illinois is inappropriate. These circumstances, however, are not ordinary. The six months’ minimum period of suspension imposed in the Wisconsin proceedings has now expired. Respondent has refunded the retainer fee to the former client. Presumably she would be reinstated in Wisconsin if she paid the $500 costs incurred in that proceeding and met the continuing-education requirements. She indicates, however, that she does not intend to seek reinstatement, a choice which is hers to make.

While we acknowledge respondent’s right to refrain from seeking reinstatement, we are under no obligation to permit her to practice law in Illinois while ignoring the order of the Wisconsin court requiring her to pay the accrued costs of that disciplinary action. Respondent’s conduct there not only reflected unfavorably upon her but also upon the integrity of the legal profession. She has displayed a remarkable lack of concern and indifference to those proceedings and regarding her representations to the hearing panel in this case. Considering, however, that the proceedings before us arose solely because of the Wisconsin incident, and respondent apparently is now eligible for reinstatement there except for the continuing-education requirements, we believe it a sufficient sanction to suspend her pending payment by her of the $500 in accrued court costs.

It is accordingly ordered that respondent be suspended from the practice of law in this State until such time as she files with the clerk of this court a receipt from the clerk of the Supreme Court of Wisconsin showing payment of the accrued court costs in the amount of $500.

Respondent suspended.


text:
    (No. 52974.

      In re EDWARD DONALD GROSHONG, Petitioner.

      Opinion filed December 1, 1980.

      Carl H. Rolewick, of Chicago, and Philip Schickedanz, of Springfield, for the Attorney Registration and Disciplinary Commission.
    Burt Greaves, of Greaves, Lemer & Gadau, of Champaign, for petitioner.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

On January 31, 1977, the court allowed the motion of petitioner, Edward Donald Groshong, to strike his name from the roll of attorneys. The circumstances which preceded that action are not in dispute and are essentially as follows. In 1972, petitioner was retained by Miss Alma Bremmer to probate the estate of her deceased sister, Mary Bremmer McGinnis. In July of 1972, it became apparent that petitioner had misappropriated $19,000 from the assets of this estate. On July 27, 1972, full restitution was made to Miss Bremmer, and she continued to employ petitioner to complete the proceedings related to the estate. After disciplinary proceedings in this matter, the board of governors of the Illinois State Bar Association, sitting as commissioners of this court, recommended that petitioner be censured. The court adopted the recommendation of the board of governors, and on October 12, 1973, petitioner was censured. In January of 1976, a complaint was filed against petitioner alleging that he had misappropriated $15,000 from the estate of Lola Neese. Prior to a hearing on this complaint, petitioner began restitution to this estate, and full restitution was accomplished on November 17, 1976. Thereafter, petitioner filed a motion to voluntarily strike his name from the roll of attorneys, as stated previously, and the motion was allowed. At the time that this motion was allowed, however, only petitioner was aware of the fact that the restitution of $15,000 made to the McGinnis estate on July 27, 1972, was made with funds which petitioner, on that same day, misappropriated from the Neese estate.

On August 21, 1978, petitioner filed the present petition for reinstatement. A panel of the Hearing Board of the Attorney Registration and Disciplinary Commission recommended that the petition for reinstatement be denied. Petitioner filed exceptions, and the Review Board recommended that the petition for reinstatement be denied.

The facts introduced into evidence at the hearing before the panel in December 1978 are not in dispute and, briefly summarized, are as follows. Petitioner was admitted to the bar in 1941. Shortly after he entered practice, he was called to serve in the United States Army. Following his discharge in 1946, he resumed the practice of law. In January of 1951, petitioner was called to serve in the Korean War. He again resumed the practice of law on October 13, 1951. Petitioner stated that as a result of these interruptions of his professional endeavors, it occurred to him that he would have to “play some kind of catch up ball.” Petitioner’s efforts to “catch up” consisted of several bids for public office, the first of which was successful, and various business ventures, all of which failed. The net result of these activities was that in 1972 petitioner found himself in financial ruin. Petitioner stated that he converted the funds of his clients to satisfy his Federal income tax liability of $20,000. At the time of the conversion, the Internal Revenue Service had instituted collection proceedings against him.

Petitioner admitted that he knowingly failed to disclose to this court the method by which he accomplished restitution to the McGinnis estate. He added that this was not disclosed to counsel who represented him, nor to any members of his family. He stated that, at the time, he was unable to acknowledge and confront his financial and political failures. Petitioner stated that had he been able to confront his failures and discuss his financial problems with his family and friends, he would not have engaged in the “panic stricken and shameful conduct” which led to his disbarment on consent. He stated that his withdrawal from the practice of law gave him the opportunity to reflect on his prior conduct. He noted that while his financial circumstances had not markedly improved — his debts totalling approximately $57,468 — his appreciation of his prior conduct had placed his behavior in perspective. He stated that he was no longer attracted to “get rich quick schemes and dreams of political power” and that he requested readmittance to the bar for the limited purpose of providing his son, also an attorney, with the benefit of his experience.

In addition, petitioner offered the letters and testimony of many members of the bar, the judiciary, his family, and his creditors. All unequivocally recommended his re admission to practice law, several noted his prior contributions to the profession through his representation of indigent clients, and all noted, with the exception of the circumstances which led to his disbarment on consent, his unblemished reputation in the community. Several of these witnesses noted that they were not fully informed of the circumstances which led to petitioner’s withdrawal from practice until shortly before the hearing, and one was unaware of the circumstances.

The panel found that petitioner’s reputation in the community was unblemished, and it stated that it was impressed with the character witnesses presented on petitioner’s behalf. They noted, however, that one witness was unaware of the circumstances of petitioner’s withdrawal from practice and that several were only recently apprised of these circumstances. The panel further found that petitioner’s financial circumstances had not improved. The panel found that petitioner’s financial condition might subject him to “be harassed by” his creditors, and it noted that such “harassment” by the Internal Revenue Service led to the first conversion of his client’s funds. In light of these circumstances, the panel ruled that the petition for reinstatement was premature and that petitioner had not met his burden of proof.

The Review Board concurred in the recommendation of the panel, stating as its reasons that the petition was premature and that petitioner had not met his burden of proof on the issue of fitness. In support of its conclusion, the board stated, “Painful remorse has a value in rehabilitation but it is not the whole score. We believe that fitness cannot be demonstrated by an inner renouncement of wrongdoings and a literary purging of one’s soul.” The board, discounting petitioner’s involvement in community theatre and his long-term association with the “Optimists Club,” was of the opinion that petitioner had declined community service and concluded that this was the explicit evidence of rehabilitation required. The board queried, “Is the same kind of secrecy exhibited by petitioner after converting clients’ funds being used to conceal his rehabilitation efforts in the community?” The board then noted that petitioner’s reputation in the community continued unblemished and that several of his character witnesses were unfamiliar with the details of his withdrawal from practice until shortly before the hearing. The board further found that petitioner’s financial condition had not changed significantly. As of the time of filing the petition in this court, petitioner has substantially reduced his financial obligations. With the assistance of his son, petitioner has reduced his indebtedness from $57,468 in 1978 to $23,626.87, of which one-half represents the balance on petitioner’s mortgage on his home.

In a petition for reinstatement to the roll of attorneys, the petitioner has the burden of introducing evidence of his rehabilitation, and this must be established by clear and convincing evidence. (In re Wigoda (1979), 77 Ill. 2d 154, 158; In re Nesselson (1979), 76 Ill. 2d 135, 138.) As we stated in Wigoda, “Rehabilitation, the most important consideration in reinstatement proceedings, is a matter of one’s ‘return’ to a beneficial, constructive and trustworthy role.” (In re Wigoda (1979), 77 Ill. 2d 154, 159.) We believe that petitioner has met his burden and that the petition should therefore be granted.

We note at the outset that we in no way minimize the serious breach of trust which originally led to petitioner’s disbarment on consent. We find, however, sufficient evidence of rehabilitation to allow petitioner to resume a position of public trust.

The circumstance which originally led to the petitioner’s disbarment on consent — his precarious financial situation — has, through the efforts of petitioner and his son, been significantly improved. We do not find, nor does petitioner suggest, that his prior financial situation in any way justifies or mitigates the seriousness of his misappropriation of clients’ funds. We do find, however, that petitioner’s improvement of this situation, without incurring additional liabilities, is significant evidence of petitioner’s resolve to “ ‘return’ to a beneficial, constructive and trustworthy role” (In re Wigoda (1979), 77 Ill. 2d 154, 159). We are also persuaded, as we were in Wigoda, that petitioner has lived a blameless life since he voluntarily removed his name from the roll of attorneys. The instant case is thus distinguishable from In re Starr (1976), 64 Ill. 2d 407, also involving the conversion of funds, where petitioner’s activities subsequent to withdrawal raised serious questions concerning his purported rehabilitation. We especially note the relevance of petitioner’s participation in community services and the probative value of such participation. The Review Board’s conclusion that petitioner’s activities evidenced no interest in community service is unfounded. Testimony concerning these activities, including petitioner’s prior representation of indigent clients and his intent to resume this activity if his privilege to practice is restored, was offered at the hearing. While evidence of petitioner’s community involvement may not have been overwhelming, we reject the inference, which one might draw from the Review Board’s recommendation, that community service is the sine qua non of rehabilitation.

We do not find, as the Review Board suggested, that the limited publicity attendant to petitioner’s wrongdoings suggests the insincerity of his resolve. Petitioner complied with all requirements of the court when he withdrew from practice, and he has exhibited a great concern in these proceedings. (Compare In re Neff (1980), 83 Ill. 2d 20, 26.) That some of his character witnesses were only recently apprised of his misconduct does not render their recommendations meaningless. As we stated in Wigoda, “these individuals are morally and legally bound by their oaths not to recommend respondent if they are not satisfied that he is rehabilitated.” (In re Wigoda (1979), 77 Ill. 2d 154, 163.) Though expressing some reservation, both the panel and the Review Board were impressed with these witnesses, and we find their testimony to be strongly indicative of rehabilitation.

In summary, we believe that petitioner has made significant efforts to demonstrate his resolve to return to a position of public trust, and we find that he has sufficiently demonstrated his rehabilitation. The petition for reinstatement to the roll of attorneys is therefore granted.

Petitioner reinstated.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 53400.
    MID-CITY ARCHITECTURAL IRON COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Katherine Goodrick, Appellee).

      Opinion filed December 1, 1980.

      Cohn, Lambert 8c Ryan, Ltd., of Chicago (Pamela Karoff Kesler, of counsel), for appellant.
    Peter F. Ferracuti & Associates, of Ottawa (Eric B. Deobler, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission awarded petitioner, Katherine Goodrick, workmen’s compensation at the rate of $231.42 per week for life for the death of her husband, Winfield Richard Goodrick, an employee of respondent, Mid-City Architectural Iron Company. On review the Industrial Commission ordered the award modified in certain respects not relevant to this appeal and affirmed the decision. On certiorari the circuit court of Bureau County confirmed, and respondent appealed. 73 Ill. 2d R. 302(a).

The record shows that at approximately 7 a.m. on January 10, 1977, at the construction site of the Commonwealth Edison nuclear power plant in Brookfield Township in La Salle County, the decedent collapsed. On arrival at Community Hospital of Ottawa a short time later, he was pronounced dead. He was 65 years of age, an ironworker by trade, of moderate height and heavyset. Until approximately five or six months prior to his death, he had been employed at the same construction site by Walsh Construction Company (hereafter Walsh) on a “service” truck delivering materials in and around the jobsite. Thereafter decedent was employed by respondent in its “toolroom” or tool shed, distributing, collecting and performing minor repair work on tools. He would customarily arrive early before beginning work at 7:30 a.m. and would either prepare coffee in respondent’s tool shed or converse with others in the Walsh “change shack.” This structure was used by Walsh employees as a place to change into work clothes.

The testimony shows that on the morning of January 10 decedent left his home in Spring Valley at 6 a.m. and drove approximately 35 miles to the construction site. The temperature was extremely cold, snow was falling, and although there was conflicting testimony as to its direction, a brisk wind was blowing. Goodrick parked his car in a lot designated for use by employees. The parking area was approximately 2,100 feet from the tool shed where the deceased was employed. He walked 1,200 feet through several inches of blowing and drifted snow to the Walsh change shack. The shack was located directly on the path from the parking area to respondent’s tool shed. The falling snow had partially blocked the door to the change shack, making it difficult to open. A laborer shoveling snow saw Goodrick walk past in the direction of the change shack and heard him fall. He was found at the base of the doorway lying on his stomach. His glasses were shattered, he was bleeding from the nose and mouth, and some dark red blood was found in his mouth. Although Goodrick was breathing when found, a witness testified that he was making a “gurgling” sound at the time.

At the hearing before the arbitrator, petitioner offered in evidence the records of Dr. Louis Paul Lukancic, the deceased’s personal physician. Upon objection the offer was withdrawn. Dr. Robert Bettasso, a physician whose practice was in the field of general and thoracic surgery, in response to a hypothetical question which did not include the information contained in those medical records, testified that Goodrick had died of ventricular fibrillation and cardiac arrest. The opinion was to some extent based on Dr. Bettasso’s analysis of an electrocardiogram admitted into evidence as a part of the records of the Community Hospital of Ottawa. In Dr. Bettasso’s opinion, the temperature, wind, and “exertional” elements present in Goodrick’s walk from the lot and entry into the change shack were all precipitating factors of an acute myocardial infarction from which he died. The hospital records also contained an emergency room outpatient report prepared by Dr. D. E. Morehead, listing as a diagnosis of Goodrick’s death a “probable myocardial infarct.” The evidence does not show whether an autopsy was conducted. Respondent presented no testimony before the arbitrator.

After the hearing, respondent obtained other counsel and, over petitioner’s objection, was given leave to take evidence depositions for use on review before the Industrial Commission. The evidence depositions of Dr. William Brice Buckingham and Robert Resch, project manager for respondent at the construction site, are contained in the record of proceedings on review. Resch testified that on the morning of January 10, 1977, Goodrick’s duties did not require him to be in the change shack. Dr. Buckingham testified that insufficient information exists to determine the cause of Goodrick’s death, and that all the circumstances, including the presence of dark red blood in Goodrick’s mouth when he was found, indicate that he did not die from a myocardial infarction, but from (in decreasing order of likelihood) a bleeding esophageal varix, a duodenal ulcer, or bleeding neoplasm of the stomach and lower esophagus.

Over respondent’s objection, petitioner was allowed to introduce rebuttal evidence consisting of testimony and medical records of Dr. Lukancic, who, in treating Good-rick for certain ailments, was aware of electrocardiograms taken of Goodrick in 1959 and 1960 which revealed heart disease and myocardial damage. Respondent filed a request for special findings. The Commission affirmed the arbitrator’s award, with modifications, and did not make special findings as requested.

We consider first respondent’s contention that the evidence fails to show that Goodrick’s death resulted from an accidental injury which arose'out of and in the course of his employment.

In Jewel Companies, Inc. v. Industrial Com. (1974), 57 Ill. 2d 38, 40, the court said:

“An accident ‘arises out of’ one’s employment if its origin is in some risk connected with or incident to the employment, so that there is a causal connection between the employment and the accidental injury. Material Service Corp. v. Industrial Com. (1973), 53 Ill. 2d 429, 433; Chmelik v. Vana (1964), 31 Ill. 2d 272, 277.”

In Peel v. Industrial Com. (1977), 66 Ill. 2d 257, 259-60, the court said:

“Generally speaking, an injury received on the premises of an employer by an employee going to or from his actual employment by a customary or permitted way will be deemed to have arisen out of and in the course of the employment. (Deal v. Industrial Com., 65 Ill. 2d 234.) This court in Chmelik v. Vana, 31 Ill. 2d 272, defined the dual aspect of the requirement of the statute (Ill. Rev. Stat. 1973, ch. 48, par. 138.2) that the injury arise ‘out of and in the course of the employment.’ The words ‘in the course of the employment’ refer to the time, place and circumstances under which the accident occurred. (31 Ill. 2d 272, 278.) This court has recognized that an accidental injury which is sustained on an employer’s parking lot within a reasonable time before or after work arises in the course of the employment. (Aaron v. Industrial Com., 59 Ill. 2d 267.) It is not enough, however, that the accidental injury arise in the course of the employment. To be compensable, it must also arise out of the employment.
As this court held in Chmelik, the words ‘arising out of’ refer to the origin or cause of the accident and presuppose some causal connection between the employment and the accidental injury/ It must have its origin in some risk connected with or incidental to the employment. 31 Ill. 2d 272, 277.
Not all parking-lot accidental injuries that may have been sustained in the course of the employment are compensable. A personal deviation by an employee can break the causal link with the employment. (Aaron v. Industrial Com., 59 Ill. 2d 267.) Also, if the accident resulted from some risk personal to the employee and not incidental to the employment, the injury is not compensable. Fisher Body Division, General Motors Corp. v. Industrial Com., 40 Ill. 2d 514.”

See also C. Iber & Sons, Inc. v. Industrial Com. (1980), 81 Ill. 2d 130.

The testimony shows that, on the morning of his death, decedent, in severely cold weather, was required to walk 2,100 feet through drifted snow in a strong wind from the employees’ parking area to his place of employment. At the time of his collapse he had walked approximately 1,200 feet. There were conflicting medical opinions concerning whether these factors contributed to an acute myocardial infarction which caused his death. It is the function of the Industrial Commission to make determinations of fact, and when the medical testimony is conflicting this court will not set aside the decision of the Industrial Commission unless it is contrary to the manifest weight of the evidence. (McLean Trucking Co. v. Industrial Com. (1978), 72 Ill. 2d 350, 357; Owens-Corning Fiberglas Corp. v. Industrial Com. (1977), 66 Ill. 2d 247, 252.) There is evidence from which the Industrial Commission could have concluded that the stress and exposure involved in walking from the parking area to his place of employment was a contributing factor in decedent’s death, and it was for the Industrial Commission to determine whether there was a causal relationship between the employment and the injury. County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10.

We consider next respondent’s contention that it was prejudicial error “for the Industrial Commission to fail to answer [respondent’s] request for special finding.” We have examined the five requests for special findings submitted by respondent and hold that the award of necessity is based on findings adverse to respondent on four of the requests. The fifth request was framed in general terms, and the Industrial Commission, in its discretion, could decline to answer it. (Guardian Electric Manufacturing Co. v. Industrial Com. (1973), 53 Ill. 2d 530.) On this record the failure to make specific findings in response to the requests was not error.

We consider next respondent’s contention that Dr. Bettasso’s opinion was improperly based on matters not included in the hypothetical question propounded to him. The transcript shows that Dr. Bettasso’s opinion was based on matters which were in evidence at that time and that any reference to the testimony or records of Dr. Lukantic was specifically excluded.

Finally we consider respondent’s contention that the Commission erred in permitting petitioner to offer the testimony and records of Dr. Lukancic in rebuttal. This testimony and the records were admitted on review and tend to show a preexisting heart condition. Under the circumstances this was proper rebuttal to the testimony of Dr. Buckingham.

We have considered the other contentions made by respondent and find them to be without merit. For the reasons stated the judgment of the circuit court is affirmed.

Judgment affirmed.


author: MR. JUSTICE WARD

text:
    (No. 52631.
    MOORE ELECTRIC COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Lyle Parish, Appellee).

      Opinion filed December 1, 1980.

      Barash & Stoerzbach, of Galesburg (Burrell Barash, of counsel), for appellant.
    Perz and McGuire, of Chicago (Frank M. Perz and James M. Ridge, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The claimant, Lyle Parish, filed an application for adjustment of claim with the Industrial Commission on April 21, 1975, to recover benefits from the respondent, Moore Electric Company, for injuries allegedly received in an accident which took place in the course of his employment on December 20, 1974. The arbitrator found that the claimant had sustained injuries which were compensable, but denied the claim on the ground that Parish had failed to give the respondent notice of his accident within 45 days as required by section 6(c) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.6(c)).

The Commission affirmed the arbitrator’s finding as to the occurrence of the accident, but found that notice had been given within the time required. It awarded Parish compensation, and ordered the respondent to pay Parish for medical expenses incurred. The circuit court of Knox County confirmed the decision of the Commission, and the respondent appealed under Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

The principal issue raised by the respondent is that the Commission’s finding that Parish gave timely notice of the accident is against the manifest weight of the evidence.

Parish testified that the accident took place on a jobsite at 2:30 p.m. while he was standing on a ladder to install a light fixture. The ladder sank into some mud on which it was positioned, and Parish, to avoid falling into the building, leaped to a concrete pavement below, a distance of approximately seven feet, landing on his heels and then falling to his knees. He immediately felt a burning sensation in the lower part of his back, but the sensation went away, and he returned to finish his job. No mention was made in his testimony of a foreman or any other employee having been present when the accident occurred.

Following work he went back to the respondent’s shop at about 4:15 p.m., where he found the owner, Virgil Moore, and four employees. Asked whether he had had a conversation with Moore at that time, Parish testified that he “just mentioned the fact I fell off the ladder,” to which Moore said only “Oh.” Parish did not testify that he told Moore of the circumstances of his fall, and Moore asked no questions.

The accident took place on a Friday. The following week Parish noticed a “catch” in his lower back whenever he sat down or got up, but he continued to work. On or about January 1, 1975, he began to feel pain when walking. He still continued to work, but on February 14, 1975, he consulted a chiropractor, whom he saw twice a week for three weeks. The treatment received consisted of the manipulation of one leg. His condition grew worse, and on March 14 he consulted a second chiropractor from whom he received similar treatment, but with no improvement in his condition. He paid each chiropractor himself, and did not request reimbursement from the respondent.

On March 20, he testified, he consulted an orthopedist, Duane A. Willander. Dr. Willander testified that Parish gave him a written personal history in which he reported his fall from the ladder and stated that he had been experiencing pain in the lower back and the left leg since January 1, 1975. Dr. Willander examined Parish, diagnosed his complaint as a herniated lumbar disc, and had him admitted to a hospital the next day, where a laminectomy was performed. Parish remained under the care of Dr. Willander after his discharge on April 9. He returned to work on May 13. Dr. Willander expressed the opinion that Parish’s fall could or might cause a herniated disc. He was also asked on cross-examination whether in his opinion the treatment reportedly given the claimant by the chiropractors would worsen the claimant’s condition, and he replied in the negative.

Virgil Moore testified and denied that Parish had ever told him that he had fallen off a ladder. Moore stated that he first learned of this on March 20 through his wife, who had received a telephone call from Parish that day. Moore stated that he had been aware that Parish had been consulting doctors, but he testified that Parish had not told him the reason.

Mrs. Moore, who was also an employee of the respondent, testified, confirming Parish’s call to her on March 20. She testified further that before Parish went to the hospital she and her husband were aware that he was feeling quite a bit of pain, and that he had been seeing a doctor. Parish had not told her and her husband what was wrong, however; nor did they inquire.

Moore testified that it was his regular practice to be in the office at 4:30 p.m. each day for the purpose of checking the employees’ time slips and to go over their day’s work. If an employee were to tell Moore that he had fallen off a ladder, a notation of that fact would be made.

Both Moore and Margie Johnson, who was employed by the respondent as a secretary, testified to a conversation between the latter and Parish in Moore’s presence on January 21. Another employee had come in with a smashed finger, and Mrs. Johnson, who was responsible for preparing reports of occupational accidents required under the Federal Occupational Safety and Health Act, made a note of this on a log which she maintained. Mrs. Johnson, who had been hired only a few days before, then noticed that Parish was limping, and asked him whether she should list him too. Her testimony and that of Moore differed from that given by Parish as to what he had replied. The respondent’s witnesses testified that he had said, “No, it is an old injury; it didn’t happen on the job.” A notation made by Mrs. Johnson in her log was to the same effect. Parish, who was recalled for further examination after the respondent had closed its case, recollected having told Mrs. Johnson that his injury was an old one, meaning, he said, that it had not occurred that day, but he did not believe he had said that the injury had not occurred on the job.

Mrs. Johnson also testified to a telephone call from Parish while he was in the hospital regarding insurance forms in which she said he admitted that he had not reported his fall at the time it occurred. A notation to that effect also appears in her log.

It is the Commission which is the judge of a witness’ credibility, and it is its function to decide questions of causation. The Commission was entitled to accept Parish’s testimony that he told Moore that he had fallen from a ladder. (See City of Rockford v. Industrial Com. (1966), 34 Ill. 2d 142, 144-45; Atlantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill. 2d 137, 142-43; Thrall Car Manufacturing Co. v. Industrial Com. (1976), 64 Ill. 2d 64 Ill. 2d 459, 465-67.) Moore and his wife were admittedly aware that subsequently Parish was having pain and was consulting doctors. Although Parish’s communication to Moore was certainly not specific, the Commission could have concluded that it gave the respondent adequate notice that Parish’s fall had resulted in a work-connected injury.

The respondent also contends that there is no evidence to support Parish’s claim that he was injured on December 20, and that that claim is inconsistent with his having continued to work after his alleged injury. We cannot agree. Dr. Willander’s testimony that Parish’s injury could have been caused by his fall was undisputed, and the respondent introduced no expert testimony designed to show that Parish would have been immediately incapacitated after his fall. The causal connection between his fall and the injury suffered is a question confided to the decision of the Commission. Though a court might draw different inferences from the evidence, it is axiomatic that findings of the Industrial Commission will not be reversed unless they are contrary to the manifest weight of the evidence. O’Dette v. Industrial Com. (1980), 79 Ill. 2d 249.

The judgment of the circuit court is accordingly affirmed.

Judgment affirmed.


text:
    (No. 53004.
    JOHN D. POTTS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (I.M.L. Freight, Inc., Appellee).

      Opinion filed December 1, 1980.

      Jordan Teplitz, Ltd., and Beermann, Swerdlove, Woloshin, Berezky & Berkson, of Chicago (Miles N. Beermann and Howard A. London, of counsel), for appellant.
    Dowd & Dowd, Ltd., of Chicago (Jospeh V. Dowd and Philip J. McGuire, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

In this workmen’s compensation case, an arbitrator awarded claimant, John Potts, 39 5/7 weeks compensation at $231.42 per week for temporary total disability and $231.42 for 25 weeks for a 5% permanent impairment resulting from the fracture of his coccyx. (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(d).) On review, the Commission found that the percentage of permanent impairment should be increased to 10% and that claimant was therefore entitled to 50 rather than 25 weeks compensation for the permanent disability of claimant “as a whole.” Claimant sought review before the circuit court of Cook County, which confirmed the award as modified by the Commission. Claimant appeals to this court (73 Ill. 2d R. 302(a)) contending that a fractured coccyx should be treated as a fractured vertebra, thereby entitling him to an award of at least 60 weeks’ compensation for permanent disability as authorized for the fracture of a vertebra (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(d)(2)).

The accident in question occurred on February 2, 1977. While checking the brakes of a truck owned by respondent, I.M.L. Freight, Inc., claimant fell. As a result of this occurrence, a partial coccygectomy was performed several months later, involving the partial excision of that skeletal part. Examinations of the coccyx showed that it had sustained a fracture.

Claimant contends that the fracture or surgical removal of the coccyx constitutes a fractured vertebra as used in section 8(d)(2) of the Workmen’s Compensation Act in effect at the time of the accident, thereby entitling him to an award under that section. Section 8(d)(2) provides in pertinent part:

“If, as a result of the accident, the employee sustains serious and permanent injuries not covered by paragraphs (c) and (e) of this Section, *** he shall receive in addition to compensation for temporary total disability under paragraph (b) of this Section, compensation at the rate provided in subparagraph 2 of paragraph (b) of this Section for that percentage of 500 weeks that the partial disability resulting for the injuries covered by this paragraph bears to total disability. If the employee shall have sustained a fracture of one or more vertebra or fracture of the skull, the amount of compensation allowed under this Section shall be not less than 60 weeks for a fractured skull and 60 weeks for each fractured vertebra. *** [T]he compensation provided in in this paragraph shall not affect the employee’s right to compensation payable under paragraphs (b), (c) and (e) of this Section for the disabilities therein covered.” Ill. Rev. Stat. 1975, ch. 48, par. 138.8(d)(2).

Claimant asserts that the coccyx may be generally considered part of the vertebral column and is therefore encompassed within the word “vertebra” as used in section 8(d)(2). To support this position, claimant notes that, prior to its amendment in 1975, section 8(d) provided additional compensation for a fractured vertebra but stated that “the surgical removal of a part of a vertebra or fracture of the coccyx is not a fractured vertebra within the meaning of this paragraph.” (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(d).) Claimant concludes that the legislature’s failure to retain the quoted language in the 1975 amendment demonstrates an intent to broaden the meaning of the term “fractured vertebra” to include surgical removal or fracture of the coccyx.

In construing the intent of the legislature, we must look to the language of the statute (Totten v. State Board of Elections (1980), 79 Ill. 2d 288, 291), and that language should normally be given its ordinary meaning (Peoria Savings & Loan Association v. Jefferson Trust & Savings Bank (1980), 81 Ill. 2d 461, 468). A statutory amendment, presumptively indicative of an intent to change the law, does not conclusively establish that the legislature intended such a change (People v. Nunn (1979), 77 Ill. 2d 243, 248), and the presumption that a change was intended may be “ ‘*** overcome by more persuasive considerations’ ” (Bruni v. Department of Registration & Education (1974), 59 Ill. 2d 6, 12, quoting Scribner v. Sachs (1960), 18 Ill. 2d 400, 411). Applying these principles to the present case, and being mindful of the medical community’s perception of the coccyx, we do not believe that claimant’s arguments are persuasive.

The coccyx is at the base of the spinal column and is generally defined as the last four, partly developed or rudimentary vertebrae. (See, e.g., Blakiston’s New Gould Medical Dictionary 265 (2d ed. 1956); 1 J. Schmidt, Attorney’s Dictionary of Medicine and Word Finder C-157 (1980).) It has thus been described as the “rudimentary remnant of the mammalian tail and consists of three or four bones, the first of which carries rudimentary cornua and transverse processes.” (1 Traumatic Medicine and Surgery for the Attorney 63 (1959).) Reference is also made to the coccyx in the definition of the word “vertebra” as being a type of vertebra. (Stedman’s Medical Dictionary 1548 (23d ed. 1976).) Our examination of various respected medical authorities, however, indicates that there are pronounced, recognizable and qualitative differences between the coccyx and the predominant parts of the spinal column, the most significant of which appear to be the absence from the coccyx of spinous and costal (rib-related) processes, pedicles and laminae (Gray’s Anatomy 97, 117 (29th ed. 1973)). It has thus been said that the coccyx differs from the cervical, thoracic and lumbar vertebrae both in form and in function, and it has been described as the “false or fixed vertebrae” as compared to the “true or movable vertebrae.” (Gray’s Anatomy 100 (29th ed. 1973); see also Stedman’s Medical Dictionary 1548 (23d ed. 1976).) This distinction leads to the conclusion that the word “vertebra” referred to in section 8(d)(2) does not encompass the coccyx.

Prior to the amendment of section 8(d)(2), the legislature explicitly recognized this distinction by providing that a fracture or removal of the coccyx should not be considered an injury to vertebrae within the meaning of the Act. The deletion of this provision, however, does not persuade us that the legislature thereby intended that a fracture or removal of the coccyx should now be considered as affecting vertebrae within the meaning of the Act. First, we presume that the legislature was cognizant of the nature of the coccyx and knew that the fracture or removal of the coccyx did not have the implications of a fracture or removal of other vertebrae. Second, we believe that the legislative history of section 8(d) belies claimant’s liberal interpretation of the section’s reference to “vertebra.” Shell Oil Co. v. Industrial Com. (1954), 2 Ill. 2d 590, involved a claim for the fracture of a vertebra during a surgical procedure to correct a job-related injury involving a herniated disc. This court held that the fracture was compensable under the liberal interpretation that it felt should be afforded to section 8(d). The following year section 8(d) was amended to exclude the surgical removal of a part of a vertebra or fractured coccyx from the terms of that section (Ill. Rev. Stat. 1955, ch. 48, par. 138.8(d)), and we believe that this statutory amendment clearly indicated the legislature’s intent to limit the type of liberal construction employed in Shell Oil. Having once expressed its disapproval of the court’s liberal construction of this portion of the statute, we do not believe that the legislature intended that we again embark upon such a course. The 1975 amendments to the Workmen’s Compensation Act, which deleted the language of section 8(d) specifically precluding application of that section to a fractured coccyx, was part of a substantial amendment of the compensation statute. (1975 Ill. Laws 224, 253-54.) Section 8(d), as amended, also deleted the statutory limitations within the definitions of the terms related to the “fracture *** of the body *** of one or more vertebrae” and “fracture *** of the skull.” (1975 Ill. Laws 224, 253-54.) These deletions, however, do not indicate that a broader definition of those terms was intended than had previously existed.

In summary, we conclude that the statutory amendment upon which claimant relies is not clearly supportive of his position, and absent a definite contrary legislative modification, we hold that a fractured vertebra under section 8(d)(2) does not include a fractured coccyx. The presumption that a change was intended by the statutory amendment is, we believe, sufficiently rebutted here. The Commission therefore properly determined the extent of claimant’s permanent disability without regard to the 60-week minimum required for fractured vertebrae.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    (No. 53439.
    THERMOS CO., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Mary Bice, Appellee).

      Opinion filed December 1, 1980.

      Peel, Henning, Mathers & McKee, of Galesburg (William H. Henning, of counsel), for appellant.
    Lucie, Heiser & Slater, of Bushnell (Jim D. Lucie, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The claimant, Mary Bice, was employed in Macomb by the Thermos Company, which manufactures ice chests and thermos jugs. She worked on an assembly line located near machines that gave off chemical and plastic fumes. Complaining of respiratory difficulties, the claimant consulted Dr. Stephan L. Roth in October 1968 and was treated for acute bronchitis. In March of 1969 her condition was diagnosed as acute pharyngitis with laryngitis, and the medication prescribed by Dr. Roth provided only temporary relief. When she complained in April of chest pains, a sore throat and a productive cough caused by the bronchitis, Dr. Roth referred her to Dr. S. F. Guiang, an allergist in Burlington, Iowa. Dr. Guiang determined that the claimant had an upper-respiratory allergy caused by mold and dust and that her condition was aggravated by exposure to fumes at her place of employment.

The claimant’s condition continued to worsen, and on January 18, 1971, complaining of severe shortness of breath and chest pains, she was admitted to McDonough District Hospital. She was treated for pneumonia, acute tracheobronchitis, and acute bronchial asthma and was discharged on February 8, 1971. By her physician’s order, the claimant did not return to work until January of the following year. She was assigned to a different department in another plant to avoid exposure to irritating fumes. In her new position she cleaned and boxed samples of products for use by the company’s salespersons. In October of 1972, she was reassigned to the warehouse, where she placed thermos jugs into plastic chests for shipment to distributors. According to her testimony, some of these chests were delivered from plant No. 1, where she had first worked, before they were ventilated and, as a result, she again came in contact with noxious fumes. She consulted Dr. Roth in November of 1972, complaining of coughing spells and wheezing, and in December she was suffering from acute bronchial asthma, which caused marked shortness of breath.

The claimant was admitted to Blessing Hospital in Macomb on March 12 and remained there for six days under the care of Dr. F. C. Pajo. She did not return to work at the respondent’s factory, but obtained employment a year later at a nursing home in Macomb. The claimant testified that she still suffers from pains in her chest and shortness of breath, which she contends has limited her physical activities.

Based on this testimony and medical reports of Drs. Roth, Pajo and Guiang which attributed the claimant’s condition, at least in part, to the fumes at the respondent’s plant, the arbitrator found that the claimant was “last exposed to the hazards of an Occupational disease” on January 18, 1971, and awarded her compensation for temporary total incapacity for 96 6/7 weeks. The arbitrator further found that an occupational disease had caused a permanent partial disability and awarded her additional compensation. The Industrial Commission affirmed and its decision was confirmed by the circuit court of McDonough County. The respondent filed a direct appeal to this court under Rule 302(a)(2). 73 Ill. 2d R. 302(a)(2).

The only question presented to us is whether the Commission’s finding that the claimant was last exposed to the hazards of an occupational disease on January 18, 1971, rather than at some later date, was contrary to the manifest weight of the evidence. The respondent changed insurance carriers in 1972, and the carrier" that had coverage in 1971 claims that the actual date on which the claimant was last exposed to the hazards of an occupational disease was some time in October of 1972.

Section 1(d) of the Workmen’s Occupational Diseases Act in part provides:

“The employer liable for the compensation in this Act provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease claimed upon regardless of the length of time of such last exposufe ***.
The insurance carrier liable shall be the carrier whose policy was in effect covering the employer liable on the last day of the exposure rendering such employer liable in accordance with the provisions of this Act.” (Ill. Rev. Stat. 1971, ch. 48, par. 172.36(d).)

The carrier that was liable as of January 18, 1971, argues that the claimant’s testimony that she “was getting along pretty good” between April of 1972, three months after she returned to work, and October of 1972, when she was reexposed to the noxious fumes, supports the contention that she was symptom free of any occupational disease in that period. Therefore, it says that October 1972, when symptoms of her previous respiratory condition returned, should be considered the time of her last exposure to the hazards of an occupational disease.

We cannot agree. The record shows that by October of 1972 the claimant’s upper respiratory system had already been impaired to the extent that she had suffered a permanent partial incapacity. Though her condition had improved during the 20 months she was not exposed to the chemical fumes, the claimant did not testify, and the record does not show, that she had fully recovered. Furthermore, the medical records indicate that her earlier exposure had greatly increased her sensitivity to irritating odors and fumes and made her more vulnerable to permanent damage upon reexposure. It was for this reason that she was reassigned to another plant and why she eventually had to change her employment. We consider that the legislative intent under the circumstances here would be to determine not the date on which a claimant was last exposed in a literal and narrow sense only to the hazards of an occupational disease, but to determine the date of the last exposure which caused the claimant’s incapacity. Upon a review of the record, it cannot be said that the Commission’s finding that the claimant was last exposed to the hazard of an occupational disease on January 18, 1971, is contrary to the manifest weight of the evidence.

For the reasons given, the judgment of the circuit court of McDonough County is affirmed.

Judgment affirmed.


text:
    (No. 52972.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RICKY SKELTON, Appellee.

      Opinion filed December 1, 1980.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Charles R. Garnati, State’s Attorney, of Marion (Melbourne A. Noel, Jr., Jack Donatelli and Donald B. Mackay, Assistant Attorneys General, of Chicago, and Martin N. Ashley and Gaye Bergschneider, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Karen Mumoz, Deputy Defender, of the Office of State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, Ricky Skelton, was found guilty of armed robbery following a jury trial in the circuit court of Williamson County and was sentenced to 10 years’ imprisonment. A divided appellate court reversed, and the cause was remanded to the circuit court with directions to enter a judgment of guilty of robbery and impose an appropriate sentence. (79 Ill. App. 3d 569.) That court found that the toy gun used by the defendant was not a dangerous weapon required for conviction under our armed robbery statute (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2(a)). We granted the State’s petition for leave to appeal. 73 Ill. 2d R. 315.

The robbery of which defendant was convicted occurred around 6:30 p.m. on August 10, 1978, at the Value Store west of Marion. A plastic toy revolver was taken from defendant’s waistband when he was found lying on the ground some 300 yards from the store shortly after the robbery. This revolver was introduced into evidence and is before us. Except for the cylinder, it is constructed entirely of hard plastic. The cylinder is a thin, tinny metal. The entire gun is only about 4Vz inches in length, and it is quite light in weight. It is similar in appearance to a small-caliber revolver and might well be mistaken for the authentic gun which the witnesses apparently believed it to be. The sole issue before us is whether this toy gun is the “dangerous weapon” required under the statute to support a conviction for armed robbery. That issue is not one upon which any unanimity of opinion exists.

At common law there was no distinction between simple robbery and a robbery accomplished by use of some weapon. Legislative action generally has made the latter the more serious crime, and our criminal laws provide for a greater penalty when a dangerous weapon is used:

“Sec. 18 — 1. Robbery
(a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
(b) Sentence.
Robbery is a Class 2 felony.”
“Sec. 18 — 2. Armed robbery
(a) A person commits armed robbery when he or she violates Section 18 — 1 while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.
(b) Sentence.
Armed robbery is a Class X felony.” (Ill. Rev. Stat. 1979, ch. 38, pars. 18-1, 18-2.)

(Under our statutory scheme, a Class X felony is subject to substantially more severe penalties.) Effective February 1, 1978, and applicable to this case, the General Assembly had amended the definition of armed robbery in section 18 — 2(a), which had previously read:

“Sec. 18 — 2. Armed Robbery
(a) A person commits armed robbery when he violates Section 18 — 1 while armed with a dangerous weapon.” (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2(a).)

The intent of the more severe punishment provided in such statutes is, of course, to deter the use of dangerous weapons and prevent the kind of violence that often attends the use of a deadly weapon in the perpetration of a robbery.

There is general agreement that “one who puts his victim in fear by the use of a toy gun or the simulation of a gun may be convicted of unarmed robbery.” (Annot., 81 A.L.R.3d 1006, 1010 (1977).) Broadly speaking, however, the authorities which have considered the question whether a toy gun may qualify as a dangerous weapon under the armed or aggravated robbery statutes tend to divide into two groups — those adopting a “subjective” test and those favoring an “objective” rule — neither of which is completely free of logical and practical difficulties in its application. The State urges that we adopt the former, arguing that whether armed robbery has occurred is determined by ascertaining whether the robber intended to instill in the victim the belief and fear that the robber had a dangerous weapon and whether the victim in fact so believed. See Annot., 81 A.L.R.3d 1006, 1027-28 (1977); People v. Chapman (1979), 73 Ill. App. 3d 546, 549-50.

The problem with the subjective test when carried to its logical extreme is that the victim may very well believe, and the robber may very well intend that the victim believe, that a dangerous weapon is being used in a robbery when in fact the robber has a finger or some innocuous object in his pocket. Some jurisdictions with statutory language making the victim’s belief or fear relevant have upheld armed robbery convictions for a finger in the pocket. (State v. Cooper (1976), 140 N.J. Super. 28, 354 A.2d 713, rev’d on other grounds (1979), 165 N.J. Super. 57, 397 A.2d 702.) The superior court there held the statute contemplated punishment based on the victim’s perception of the object in defendant’s possession, rather than what defendant actually had. Our statute appears to preclude this result, for it provides:

“Sec. 18 — 2. Armed Robbery
(a) A person commits armed robbery when he or she violates Section 18 — 1 [Robbery] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.” (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a).)

A fair reading of this language seems to require something more than a finger in the pocket, and to this extent, at least, it would appear that the legislature has rejected the subjective test. The victim’s belief concerning the nature of the weapon does not appear to have been an important factor in our earlier decisions, and the subjective test was disapproved in People v. Greer (1977), 53 Ill. App. 3d 675, decided prior to the 1978 amendment. The majority and dissenting opinions in that case contain a review of the Illinois decisions construing the “dangerous weapons” phrase.

There are also logical problems with the objective test proposed by the defendant. That test requires that there be literal compliance with the statute, and asks whether the instrumentality was actually dangerous in the circumstances in which it was used. This standard, however, seems to us to run afoul of logic and common sense in the case where the intended victim is behind bullet-proof glass. Presumably, an armed robbery has occurred if property is actually taken, although even a loaded gun would not be dangerous in such circumstances. Too, the weight of authority permits application of the armed robbery statute to unloaded guns, a result which has been criticized:

“The great weight of authority holds that an unloaded pistol, not used as a bludgeon, is nevertheless a dangerous or deadly weapon for armed-robbery purposes. (Some jurisdictions even hold that a toy pistol is such a weapon.) The majority view seems wrong, however: intimidation by some means is a necessary ingredient of simple robbery without violence; something additional in the way of dangerousness is needed for aggravated robbery; but the robber’s use of an unloaded (or toy) gun adds nothing extra to the bare fact that he intimidated the victim.” (Footnotes omitted.) (W. LaFave and A. Scott, Criminal Law sec. 94, at 703 (1972).)

In a footnote, LaFave and Scott add:

“Perhaps another way to express the matter is this: the greater punishment is awarded for armed robbery so as to deter the dangerous person who is actually capable of inflicting death or serious bodily harm. The robber with the unloaded or toy gun is not nice — is guilty in fact of (simple) robbery — but he is not the dangerous type for whom the greater penalty is reserved.” W. LaFave and A. Scott, Criminal Law sec. 94, at 703 n.67 (1972).

We agree that “something additional in the way of dangerousness is needed” for armed robbery. Our statute requires that “something” to be a dangerous weapon. Despite the quoted material, however, we believe a weapon can be dangerous, even though used in a manner for which it was not designed or intended. Thus, a rifle or shotgun, whether loaded or not, may be used as a club with devastating effect. Similarly, a handgun, when gripped by the barrel and used as a bludgeon, is equally dangerous whether loaded or unloaded. It is, at least in part, for these reasons that application of the armed robbery statute has been permitted even when the firearm used is unloaded. See Annot., 79 A.L.R.2d 1412, 1426 (1961); Note, An Unloaded and Unworkable Pistol as a Dangerous Weapon When Used in a Robbery, 32 La. L. Rev. 158, 160 (1971) (based upon public policy, any pistol used in a robbery is a dangerous weapon as a matter of law); People v. Manzardo (1980), 87 Ill. App. 3d 129, 132.

This issue was first addressed by this court in People v. Dwyer (1927), 324 Ill. 363, where it was noted that some weapons such as a pistol are deadly per se and thus as a matter of law satisfy the statutory requirement for armed robbery. An object not deadly per se may still be a dangerous weapon because of its capacity to inflict serious harm even though not designed for that purpose, as in the case of a baseball bat. Thus, we held in People v. Robinson (1978), 73 Ill. 2d 192, that an ordinary nail clipper containing a pointed fingernail file could be found by the jury to be a dangerous weapon. Similarly, our appellate court has held an unloaded air pistol (People v. Hill (1977), 47 Ill. App. 3d 976), an apparently unloaded gas pellet pistol (People v. Greer (1977), 53 Ill. App. 3d 675), and .22-caliber starter pistols (People v. Ratliff (1974), 22 Ill. App. 3d 106; People v. Trice (1970), 127 Ill. App. 2d 310) could all be found to be dangerous weapons.

There are policy considerations to be weighed which have been well stated in Greer-.

“On the one hand, to require the State to prove that a firearm used to commit a robbery was loaded and operable would greatly restrict the applicability of the armed robbery statute. Under such a requirement, a defendant could be convicted of armed robbery only if he were apprehended at the scene of the crime or immediately thereafter with the loaded and operable gun in his possession, or if the gun itself were discovered, identified, and found to be loaded and operable, or if the defendant actually fired the weapon. On the other hand, it would be illogical and, perhaps, unfair to convict a person of robbery ‘while armed with a dangerous weapon’ in the face of evidence indicating that his weapon was, in fact, not dangerous.” 53 Ill. App. 3d 675, 682.

We believe, however, that these concerns are not irreconcilable. As we earlier noted, many objects, including guns, can be dangerous and cause serious injury, even when used in a fashion for which they were not intended. Most, if not all, unloaded real guns and many toy guns, because of their size and weight, could be used in deadly fashion as bludgeons. Since the robbery victim could be quite badly hurt or even killed by such weapons if used in that fashion, it seems to us they can properly be classified as dangerous weapons although they were not in fact used in that manner during the commission of the particular offense. It suffices that the potential for such use is present; the victim need not provoke its actual use in such manner.

In the great majority of cases it becomes a question for the fact finder whether the particular object was sufficiently susceptible to use in a manner likely to cause serious injury to qualify as a dangerous weapon. Where, however, the character of the weapon is such as to admit of only one conclusion, the question becomes one of law for the court. (People v. Robinson (1978), 73 Ill. 2d 192, 202; People v. Dwyer (1927), 324 Ill. 363, 365.) The toy gun in this case, in our judgment, falls into the latter category. It does not fire blank shells or give off a flash as did the starter pistols in Ratliff and Trice; it is entirely too small and light in weight to be effectively used as a bludgeon as could the metal air pistol in Hill; it fires no pellets as did the gas pellet pistol in Greer; and, except that it could, conceivably, be used to poke the victim in the eye (and a finger could be used for that purpose), it is harmless. It simply is not, in our opinion, the type of weapon which can be used to cause the additional violence and harm which the greater penalty attached to armed robbery was designed to deter.

The appellate court correctly held defendant could not be found guilty of armed robbery. Its judgment reversing and remanding for entry of judgment and sentence on simple robbery is affirmed.

Judgment affirmed.