author: MR. JUSTICE CLARK

text:
    (No. 51321.
    VERITONE COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Mildred Myslewiec, Appellee).

      Opinion filed May 22, 1980.

      Murges & Bowman, of Chicago (George J. Murges and Gerald M. Chapman, of counsel), for appellant.
    Gerald B. Saltzberg, of Fishman & Fishman & Saltzberg, P.C., of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The claimant, Mildred Myslewiec, was injured when she fell from a chair on which she was standing while stacking boxes on May 17, 1973. At a hearing before an arbitrator, the respondent, Veritone Company, stipulated that the injuries arose out of and in the course of the claimant’s employment but disputed the nature and extent of the claimant’s disability. The arbitrator found that as a result of the claimant’s condition, which was diagnosed by one medical witness as “agitated depression,” the claimant suffers from a total and permanent disability. The arbitrator awarded the claimant compensation of $75 per week for a period of 304 weeks and $48 for one week, and thereafter an annual pension for life of $2,760, pursuant to section 8(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(f)). The claimant was also awarded $11,818 for medical and hospital services under section 8(a) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)). The Industrial Commission affirmed the decision of the arbitrator. On a writ of certiorari, the circuit court of Cook County confirmed the order of the Commission. The respondent appeals pursuant to Rule 302(a). 73 Ill. 2d R. 302(a).

On May 17, 1973, the claimant was employed by respondent as an inspector and packer. She was stacking boxes to a level about nine feet high while standing upon a chair when she lost her balance and fell backwards. According to the claimant’s testimony during a bedside arbitration hearing, as she fell she “twisted” her back and neck. While still unconscious, the claimant was carried to a car and driven to a clinic. Upon regaining consciousness, she received an injection for the pain she was suffering, and medication was prescribed for her. The claimant was then taken home and put to bed. For the next week the claimant traveled to the clinic daily for heat treatments and injections to ease the pain. The claimant testified that as the week progressed the pain worsened each day to the point where she felt she was unable to walk. She was taken to the Elmhurst hospital where she remained in traction for three weeks. After being released from the hospital, the claimant returned home. The pain had not abated, however, so the next day she returned to the hospital, where she stayed another three weeks. Upon returning home again, claimant was confined to a hospital bed which had been ordered by the physician treating her, Dr. Newman. From July 6, 1973, the day the claimant returned home, to August 31, 1973, Dr. Newman called upon the claimant in her home approximately once every other week. Throughout that time, the claimant testified, she was confined to bed except for unsuccessful attempts to use a walker. On September 12, 1973, Dr. Newman ordered the claimant to return to the Elmhurst hospital a third time. The claimant was again placed in traction. In addition, a laminectomy and disc excision were performed on September 21, 1973, to correct a herniated L-4 intervertebral disc. The claimant was released from the hospital on October 28, 1973.

From October 1973 to the arbitration hearing conducted in October and December 1975, the claimant continually received treatment, including traction and the use of a corset, while intermittently spending time in the hospital undergoing other treatment. Additional testimony taken of the claimant revealed that she has a long and varied history of illnesses and injuries. For purposes of this appeal, the most significant prior injury was an undescribed injury the claimant received to her left leg while employed elsewhere than for respondent. The injury occurred on September 24, 1970. On December 22, 1972, a settlement of $5,040 for the claim pertaining to that injury was approved by the Industrial Commission.

Medical testimony of three physicians was adduced at a subsequent, continued hearing before the arbitrator. Dr. Marshall Falk, a psychiatrist called by the claimant, testified that he examined the claimant in her home for approximately 45 minutes. His diagnosis of the claimant’s illness was an “agitated depression,” a psychological illness which, in his opinion, was directly related to the incident in 1973. Dr. Falk stated he thought the claimant’s condition to be permanent and, since the emotional aspect of the claimant’s illness had been untreated for nearly three years, it would be difficult to predict any significant improvement regardless of the treatment.

On cross-examination, counsel for the respondent asked Dr. Falk whether it would have made any difference in the doctor’s diagnosis that the claimant had suffered an injury in 1970 for which she collected $5,000. The doctor replied, “It might have. ” Later, the doctor was asked by respondent’s counsel, with regard to whether the claimant might have been malingering:

“Q. The fact that she failed to mention to you, Doctor, recovery of a large sum of money in 1970, for an injury to her back and leg, wouldn’t that put some element of doubt in your mind, Doctor?
A. No.”

Subsequently, on redirect examination, Dr. Falk had the following exchange with counsel for the claimant:

“Q. You indicated that were you aware of this disability of 40 per cent of a leg and her compensation of five thousand and some odd dollars in 1969 or 1970, that might have made a difference in your diagnosis, is that right—
A. I indicated that would make a difference?
Q. That might have made a difference in your diagnosis?
A. Possibly.
Q. In what way?
A. Well, if there was more of an extensive injury at that time and there was some credibility problem that I was having it would have been a difference. But I don’t think it would have at all in terms of the present situation.”

A second medical witness, Dr. Joseph Cascino, was called by the respondent. Dr. Cascino, a neurosurgeon, testified that he examined the claimant for neurological findings for approximately one hour in her home on June 7, 1975. On direct examination, Dr. Cascino was asked by counsel for respondent:

“Q. Were you able to make a determination at that time that she was malingering or that she did have an anxiety state?
A. I was unable to. That being the case I would rely more on my opinion that this was a functional or anxiety state.
* * *
Q. What was your diagnosis?
A. That the primary diagnosis that I would have to make here, based on my one examination and what I saw, that the patient had a very large functional component. Or, in other words, an anxiety state.”

Another medical witness called to testify by the respondent was Dr. Joseph Geller. Dr. Geller, a general practitioner, testified that he had treated the claimant from 1969 to 1975 for a number of illnesses and injuries. Dr. Geller also stated that he had instructed the claimant to be admitted to Gottlieb Hospital from June 7, 1975, to June 27, 1975, primarily because of a complaint of pain in her left breast. The doctor said he observed the claimant each day during her stay in the hospital. Dr. Geller testified that the claimant was ambulatory when she entered the hospital, when she left the hospital snd, at least half the time, while she was in the hospital. The doctor also testified that the last time he saw the claimant in his office, on September 6, 1975, she had been able to walk and was able to sit on the examining table. On re-cross-examination, Dr. Geller stated that the claimant had assistance in walking to the bathroom during her stay in the hospital.

The respondent asserts that the decision of the Industrial Commission was against the manifest weight of the evidence because Dr. Falk’s opinion was based on incomplete information. First, it is argued that Dr. Falk’s statement that his diagnosis “might have” been different had he known of the claimant’s receipt of a prior award for a leg injury weakens the doctor’s diagnosis. We do not agree. Dr. Falk’s subsequent response on redirect examination indicated that while a prior injury could have made a difference if it had been more extensive and if there had been a credibility problem, he did not find those conditions to be present in the claimant’s case. The doctor’s response was clearly an attempt to rehabilitate his prior answer. The meaning and weight to be attributed to the doctor’s testimony was for the Commission to determine. Swift & Co. v. Industrial Com. (1972), 52 Ill. 2d 490, 495.

Secondly, the respondent argues that Dr. Falk’s testimony “tended to” be impeached when he testified he was not certain of whether the claimant deceived him during his examination, but he doubted that she did. Also, the respondent argues that Dr. Falk’s testimony was impeached because he was unaware of “Dr. Geller’s testimony about previous complaints of arthritis and various back problems and more particularly of the fact that Dr. Geller had seen [the claimant] ambulatory at a time when she claimed not to have been.” Again, we are not convinced by this argument. The testimony and medical records adduced during the hearing constitute evidence; the evaluation thereof and the conclusions to be drawn therefrom were within the peculiar province of the Industrial Commission. Swift & Co. v. Industrial Com. (1972), 52 Ill. 2d 490, 495.

It is well established that, where a claimant has suffered an accident causing a total and permanent incapacity for work, it is immaterial that the incapacity exists by reason of a mental disorder rather than a physical one, providing it resulted from the injury. (Jefferson Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 85, 93; Pathfinder Co. v. Industrial Com. (1976), 62 Ill. 2d 556, 563-64; City of Chicago v. Industrial Com. (1974), 59 Ill. 2d 284, 287; Spetyla v. Industrial Com. (1974), 59 Ill. 2d 1, 5; Hook v. Industrial Com. (1972), 53 Ill. 2d 245, 248; South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 489; International Harvester Co. v. Industrial Com. (1970), 46 Ill. 2d 238, 247; Thomas J. Douglass & Co. v. Industrial Com. (1966), 35 Ill. 2d 100, 104.) The record in this case indicates that both Dr. Falk and Dr. Cascino were of the opinion that the claimant suffers from an “agitated depression,” an “anxiety state” or a “mild neurosis” caused by the accident in 1973. Both doctors also testified that the claimant was not, in their opinions, malingering. While Dr. Geller’s testimony established that the claimant could walk to a certain extent, that testimony is not entirely inconsistent with the claimant’s testimony. She testified that she could walk at times with the help of a walker or while wearing a corset with steel stays. Questions relating to witness credibility and conflicting testimony are determined by the Industrial Commission, and will only be set aside if against the manifest weight of the evidence. (Riteway Plumbing v. Industrial Com. (1977), 67 Ill. 2d. 404, 408.) The Commission’s findings are not against the manifest weight of the evidence, and accordingly they will not be disturbed.

The respondent raises as a second issue the Commission’s failure to order an examination of the claimant in a hospital by a physician chosen by the respondent. A review of the record indicates that the motion for an examination pursuant to sections 12 and 19(c) of the Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.12, 138.19(c)) was taken under advisement by the Commission, but never decided. The respondent never attempted to renew the motion; it rested at the close of proof before the Commission. The respondent contends that the motion was impliedly denied and that such a denial was an abuse of discretion. We need not reach that issue, however, because we believe the respondent’s failure to renew the motion, when it was provided with sufficient opportunity to do so, waived the right to raise the failure of the Commission to order an examination. Central Illinois Public Service Co. v. Industrial Com. (1922), 302 Ill. 27, 31-32.

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

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 52591.
    GERTRUDE R. WILLIAMS, Appellant, v. JERALD A. CRICKMAN, Ex'r, et al., Appellees.

      Opinion filed May 30, 1980.

      Phillip B. Lenzini, of Peoria (Kavanagh, Scully, Sudow, White & Frederick, of counsel), for appellant.
    Rosenberg, Rosenberg, Bickes & Johnson, Chartered, of Decatur (Wayne L. Bickes, of counsel), for appellees.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Plaintiff, Gertrude R. Williams, a residuary legatee under an instrument admitted to probate purporting to be the last will and testament of Florence M. East, filed a will contest in the circuit court of Piatt County. In the action, she sought a declaration that one paragraph in the instrument, allegedly executed as a result of the undue influence of defendant Jerald A. Crickman and decedent’s attorney, Wayne L. Bickes, is null and void. The circuit court ruled that the sole issue in a will contest is the validity of the instrument as a whole and that it was without authority to invalidate one provision only. In addition, the court found that plaintiff, not an heir of decedent, could take only under the provisions of the instrument and therefore ruled that she was not an interested person under section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 1101/2, par. 8 — 1) and dismissed the action with prejudice. The appellate court, relying upon Snyder v. Steele (1922), 304 Ill. 387, affirmed the rulings of the circuit court (75 Ill. App. 3d 1105) in an unpublished order issued pursuant to Supreme Court Rule 23 (73 Ill. 2d R. 23). Plaintiff appealed to this court pursuant to Supreme Court Rule 315 (73 Ill. 2d R. 315), and we granted leave to appeal.

Florence M. East, a resident of Piatt County, died on May 17, 1978. On June 1, 1978, defendant Crickman filed a petition for probate of a will and the issuance of letters testamentary in the circuit court of Piatt County. Crick-man alleged in his petition that Florence M. East had died testate and that he had been nominated, in a will dated March 14, 1968, as executor of decedent’s estate. On July 13, 1978, the court entered an order admitting the instrument to probate and issued letters testamentary to Crickman. Plaintiff, a residuary legatee under the instrument, filed a will contest in the circuit court of Piatt County on October 12, 1978. Plaintiff alleged in her complaint that Crickman had influenced decedent’s actions as her farm manager and financial advisor for many years prior to the execution of this instrument. The complaint further charged that Crickman had employed Wayne L. Bickes, the attorney who drafted decedent’s will, as his own attorney for many years prior to the execution of this instrument and that decedent, as a result of her age, health, and business competence, was unable to resist the combined efforts of Crickman and Bickes to influence her to create an option in favor of defendant Crickman to purchase certain farmland. In addition, the complaint charged that both Crickman and Bickes stood in a fiduciary and confidential relationship to decedent and that they had breached their duties in influencing decedent to create the option to purchase at an unconscionably low price. The complaint further charged that the acts of undue influence of Crickman and Bickes affected only that provision in the will which created the option in favor of Crickman.

The instrument which purports to be the last will and testament of decedent contains bequests to various relatives, friends and charitable institutions. The residuary clause of the instrument contains 22 separate provisions for distribution of the residue of decedent’s estate. The portion of the instrument which plaintiff seeks to invalidate creates in favor of defendant Crickman an option to purchase 320 acres of farmland alleged by plaintiff to have a value of $1,280,000. The terms of the tmst allow defendant Crickman to purchase 320 acres of farmland for a total purchase price of $200,000, to be paid in installments of $8,000 per year, for a period of 26 years, at an interest rate of 3% per annum. The instrument also provides that, if defendant Crickman fails to exercise the option within six months of the death of Miss East or forfeits his interest under the terms of the trust, the property is to be sold and the proceeds distributed among the residuary legatees.

The determination of whether plaintiff is an interested person under section 8 — 1 of our probate act and therefore eligible to contest the validity of this testamentary instrument turns on the question of whether the relief sought, a declaration of the partial invalidity of the instrument, can be granted. Plaintiff does not desire invalidation of the entire will; as a residuary legatee who is not an heir of decedent, plaintiff would gain only by invalidation of a portion of the will. The narrow issue thus presented by this appeal is whether our courts have the power to declare a testamentary instrument partially invalid under the provisions of our probate act where only part of the instrument is alleged to be the product of undue influence.

Defendant Crickman, in seeking to sustain the judgments of the circuit and appellate courts, relies principally upon the decision of this court in Snyder v. Steele (1922), 304 Ill. 387. He argues that our decision in Snyder stands for the proposition that section 8 — 3 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 110%, par. 8-3) limits the issue in a will contest charging undue influence to the validity of the testamentary instrument in its entirety. Crickman asserts that the only issue presented by this appeal is whether Snyder should be overruled. In response to this question, Crickman contends that the construction of our probate act in Snyder, and the subsequent reenactment of substantially similar provisions by the legislature, presents us with a question left properly to legislative determination. In support of this position, Crickman relies upon the well-settled principle of statutory construction that the reenactment of a statute which has been judicially construed is an adoption of the construction by the legislature, since the legislature is presumed to know the construction given and, by reenactment, is assumed to have intended the new statute to have the same effect.

Plaintiff argues, relying principally upon the decision of this court in Wolf v. Bollinger (1872), 62 Ill. 368, that the power to determine whether the instrument produced is the will of the testator includes the power to pass upon the validity of part of the instrument as well as the whole. Plaintiff contends that our decision in Wolf a case which construed language substantially similar to the language contained in section 8 — 3 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 1101/2, par. 8 — 3) is determinative of whether our courts have the power to declare part of a testamentary instrument invalid. In support of this position, plaintiff points to the decisions of this court in which specific provisions of a will were declared invalid and the remaining portions were allowed to stand. See Beal v. Higgins (1921), 299 Ill. 229 (invalidation of a dispository provision under the rule against perpetuities); Wood v. Wood (1914), 263 Ill. 285 (invalidation of a fraudulently inserted provision designating an individual as heir); Wombacher v. Barthelme (1902), 194 Ill. 425 (invalidation of a provision naming the executor because of improper insertion); Lawrence v. Smith (1896), 163 Ill. 149 (invalidation of a dispository provision under the rule against perpetuities).

We agree with defendant that “ ‘the legislature is presumed to know the construction the statute has been given, and by re-enactment, is assumed to have intended for the new statute to have the same effect.’ ” (Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507, 513, quoting People ex rel. County of Kane v. Crawford (1971), 48 Ill. 2d 227, 230.) We also agree that considerations of stare decisis weigh heavily in the area of statutory construction, especially where the legislature is free to change court interpretations of its legislation. In determining whether a case is binding, however, this court has the power and the duty under the doctrine of stare decisis to reexamine pertinent legal concepts. (Bradley v. Fox (1955), 7 Ill. 2d 106, 111.) We agree with plaintiff that where the court has itself adopted conflicting interpretations of the same statute, the duty of the court in such a case is to clarify and resolve its previous decisions, and we should not assume that the legislature has approved an interpretation which is obviously conflicting.

In the case relied upon by Crickman, Snyder v. Steele, defendant Steele, an attorney, had drafted an instrument in which he was named executor of the estate and a legatee. Plaintiff, an heir of decedent, sought to have the will declared null and void due to the exertion of undue influence by defendant. In the first appeal in the cause, Snyder v. Steele (1919), 287 Ill. 159, the court set aside a verdict of the jury which sustained the validity of the will. The court held that a fiduciary relationship existed between defendant and the testator, that a presumption of undue influence existed, and that there was no evidence to rebut this presumption. In addition, the court held that the evidence did not show that the will was attested in the manner prescribed by statute, and the cause was remanded for a new trial.

Subsequent to this appeal, defendant Steele resigned as executor of the estate and renounced his legacy under the instrument. On remand, the probate court allowed Steele to testify, and the jury returned a verdict sustaining the validity of the will. On appeal, this court held in Snyder v. Steele (1922), 304 Ill. 387, 390-93, that section 7 of the evidence act (Smith’s Ill. Rev. Stat. 1921, ch. 51, par. 7) did not permit a witness, otherwise incompetent to testify by virtue of his interests adverse to decedent, to become competent to testify by release of his interest under the will if the release were made for the purpose of testifying.

Notwithstanding the adverse ruling on Steele’s effort to testify, other interested parties sought to sustain the validity of the will as to other bequests and argued that only those portions of the will tainted by undue influence should be stricken. The court stated that, under the statute, the sole issue in a will contest is whether or not the instrument “is the will of the testator, and the question is as to the validity of the will as a whole. Testimony which defeats one defendant, one devisee or one legatee defeats all, and a judgment against one is necessarily a judgment against all.” (304 Ill. 387, 394.) In reaching this conclusion, the court found persuasive prior cases which precluded a legatee under the will from testifying against another unless they held a joint interest. (McCune v. Reynolds (1919), 288 Ill. 188; Campbell v. Campbell (1891), 138 Ill. 612; McMillan v. McDill (1884), 110 Ill. 47.) Under those cases, the testimony of one joint tenant is admissible against all. The court made no reference to Wolf v. Bollinger (1872), 62 Ill. 368, and cases similar thereto which allow partial invalidation.

Our examination of the opinion in Snyder leads us to conclude that the language of the court which addressed the issue of partial validity of the instrument under the statute is dicta and in error. A holding of the court in the first decision in the cause, that the instrument in question had not been attested to in the manner prescribed by the statute, renders superfluous the discussion of partial validity in the second decision; there was no competent evidence presented at the second trial of the cause on the question of attestation which would warrant a different conclusion on that issue. It is true that this dicta is entitled to consideration by the court as persuasive, but it is not binding authority within the rule of stare decisis. Department of Public Works & Buildings v. Butler Co. (1958), 13 Ill. 2d 537, 545.

We are not, however, persuaded by the reasoning employed by the court on the question of partial invalidity. In refusing to recognize the possibility of a partial invalidation, the court stated that “the greater weight of authority,” including Illinois precedents, suggested the view that the will could only be passed upon as a whole. (Snyder v. Steele (1922), 304 Ill. 387, 394.) Our review of the decisions of other jurisdictions (see Annot., 64 A.L.R.3d 261 (1975)) and the decisions of this State which preceded Snyder, beginning with Wolf v. Bollinger (1872), 62 Ill. 368, reveals that this statement is erroneous. (See Beal v. Higgins (1921), 299 Ill. 229; Wood v. Wood (1914), 263 Ill. 285; Wombacher v. Barthelme (1902), 194 Ill. 425; Lawrence v. Smith (1896), 163 Ill. 149.) As one writer said of Snyder’s reference to other authorities, “No case has been found in any other jurisdiction to warrant such an assertion.” (See Note, Wills — Undue influence —Only Clauses Affected Invalidated, 32 Yale L.J. 294 (1923).) That the reasoning in Snyder was in accord with dicta in Teter v. Spooner (1917), 279 Ill. 39, Gum v. Reep (1916), 275 Ill. 503, and Weston v. Teufel (1904), 213 Ill. 291, will not serve to support the proposition stated. (See 1 W. Page, Wills sec. 15.12, at 742 n.9 (3d rev. ed. 1960).) Further, the court’s reliance upon a rule of evidence which allows a joint tenant to testify against other joint tenants so as to defeat their interests under a will was not proper.

Section 8 — 3 of the Probate Act of 1975 provides in relevant part:

“An issue shall be made whether or not the instrument produced is the will of the testator.” (Ill. Rev. StaL 1977, ch. llOFa, par. 8-3.)

Substantially similar language was construed in Wolf v. Bollinger (1872), 62 Ill. 368, 371, wherein this court stated:

“It is said that, under this sixth section, the issue is to be, whether the writing produced and probated is the will of the testator or not; that the instrument can only be passed upon as a whole, and that the court cannot adjudge a part to be, and a part not to be, the will of the testator. But this is a distinction which is only verbal; it does not exist in reason.
The power to try and determine whether the writing produced be the will of the testator or not, includes the power to adjudge upon the validity of any part of the instrument, as well as the whole.”

Consistent with this construction, cases both before and after Snyder have recognized that part of an instrument may be declared invalid and the remainder allowed to stand where the invalid portions can be separated from the instrument as a whole without defeating the intent of the testator. (See Millikin National Bank v. Wilson (1931), 343 Ill. 55, 64-65; Easton v. Hall (1926), 323 Ill. 397, 422-23; Beal v. Higgins (1921), 299 Ill. 229, 233-35; Wood v. Wood (1914), 263 Ill. 285, 292; Wombacher v. Barthelme (1902), 194 Ill. 425, 429-31; Lawrence v. Smith (1896), 163 Ill. 149, 162-66; Wolf v. Bollinger (1872), 62 Ill. 368, 371.) We agree with plaintiff, for example, that if the contested provisions were fraudulently inserted by a third party, the court would have the power to deny probate to that provision alone {Wood v. Wood (1914), 263 Ill. 285). We can perceive no logical reason for treating those provisions of a will alleged to be the product of undue influence in a different manner. We therefore hold that, in a will contest in which it is alleged that part of a will is a product of undue influence, those portions of the will alleged to be the product of undue influence may be stricken and the remainder of the will allowed to stand if those portions of the will can be separated without defeating the testator’s intent or destroying the testamentary scheme. “The validity of any portion of a will may be passed upon.” (3 W. James, Illinois Probate Law & Procedure sec. 90.9, at 129 (1951), citing Wolf v. Bollinger (1872), 62 Ill. 368, and Wood v. Wood (1914), 263 Ill. 285. Accord, 1 H. Homer, Probate Practice & Estates sec. 95, at 194 (4th ed. 1976); C. McCulloch & F. McCulloch, Manual of the Law of Will Contests in Illinois sec. 72, at 40 (1929).) As is stated by Page, the key inquiry in determining whether partial invalidation should be allowed is whether the undue influence affected only a limited portion of the will and whether the testator would have intended that the entire will fail because of the invalidation of one provision:

“If a part of the will is caused by undue influence, and such undue influence does not affect the remaining provisions of the will, the validity of the provisions which are not caused by such undue influence depends, in part, on whether it is possible to ascertain which portions are caused by the undue influence, and whether such portions, if ascertained, can be held to be invalid without destroying the intention of the testator. If it is not practicable to ascertain what portions of the will were caused by undue influence and what were free from it, or if effect cannot be given to such provisions as are not caused by undue influence, without defeating the intention of the testator, the entire will is invalid.
***
Where it can be shown that a part of the will was caused by undue influence, and that the rest of the will was not caused thereby, and the part of such will caused by undue influence can be separated from the rest, leaving it intelligible and complete in itself, it is held in most states, that only such part of the will as is caused by undue influence is invalid, and the rest is valid.” (1 W. Page, Wills sec. 15.12, at 741 (3d rev. ed. (1960), citing, inter alia, Wombacher v. Barthelme (1902), 194 Ill. 425.)

On remand, the circuit court should consider these questions as they relate to this case, i.e., whether the alleged undue influence affected only the provision granting the option to defendant Grickman and, if so, whether invalidation of that provision would defeat the entire testamentary scheme as intended by Miss East.

We accordingly hold that plaintiff, who as a residuary legatee would benefit from partial invalidation of this instrument, is an interested person within the meaning of the Probate Act of 1975. To the extent that Snyder v. Steele (1922), 304 Ill. 387, is inconsistent with our decision herein, it is overruled. The rule expressed in the Snyder case is one which would effectively immunize from judicial scrutiny the unconscionable overreachings of those in a fiduciary relationship to a testator, and it is a rule which, under equitable principles, should not be countenanced. Our probate act should not be construed in such a way as to facilitate its use as a means by which a fiduciary can defraud those who hold him in confidence; “the door to relief should not be closed and the opportunity to show the wrong should not be denied” (5 A. Scott, Trusts sec. 489.6, at 3488 (3d ed. 1967)). Under the facts here alleged, the circuit court improperly dismissed plaintiff’s will contest; a cause of action for partial invalidation is stated and is recognized in Illinois.

The judgments of the circuit and appellate courts are reversed, and the cause is remanded to the circuit court of Piatt County for further proceedings not inconsistent with the views expressed herein.

Judgments reversed; cause remanded.


author: MR. JUSTICE WARD

text:
    (No. 52889.
    THE PEOPLE ex rel. BERNARD CAREY, State's Attorney, Petitioner, v. ROBERT J. COLLINS, Judge, et al., Respondents.

      Opinion filed May 22, 1980.

    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr and Mary A. Jischke, Assistant State’s Attorneys, of counsel), for the People.
    Lawrence J. Suffredin, Jr., of the law offices of Raymond F. Simon, of Chicago, for respondent.
   MR. JUSTICE WARD

delivered the opinion of the court:

The petitioner, the People of the State of Illinois, seeks the issuance of a writ of mandamus against the respondents, Robert J. Collins, a judge of the circuit court of Cook County, and Michael Hanrahan, directing respondent Collins to vacate an order entered December 5, 1979, which reduced the sentences that Collins had imposed on Hanrahan upon the latter’s conviction on July 15, 1976.

Hanrahan (referred to hereafter as respondent) and his father, Homer Hanrahan, were convicted by a jury in a trial held before Judge Collins on charges of criminal conduct causing the death of Marion Hanrahan, the wife of Homer and the mother of the respondent. The elder Hanrahan was convicted of murder, and he and the respondent were each convicted of aggravated kidnapping and aggravated battery. The respondent was sentenced to serve concurrent terms of 10 to 25 years on his conviction for aggravated kidnapping and 3 to 10 years for the aggravated battery. The convictions were affirmed by the appellate court (64 Ill. App. 3d 207), and its opinion contains a detailed account of the evidence given at the trial.

On the same day that sentence was pronounced the respondent filed a notice of appeal. Pursuant to Rule 609(b) (73 Ill. 2d R. 609(b)) execution of the sentence was stayed and the respondent was released on bond pending disposition of his appeal. As noted above, the appellate court affirmed his conviction. A petition for rehearing was denied by that court, as was a petition for leave to appeal to this court. A petition to the United States Supreme Court for a writ of certiorari was denied October 1, 1979. The parties agree that at no stage of his appeal did the respondent contend that the sentences imposed upon him were excessive or otherwise improper.

Following the denial of certiorari by the United States Supreme Court, this court issued its mandate to the appellate court on October 17, 1979. On November 8 the appellate court issued its mandate to the circuit court, and on November 16, the respondent filed a motion in the circuit court for the reduction of his sentences under section 5 — 8—1(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1(d)). His motion was assigned to Judge Collins as the sentencing judge.

At the time the respondent was originally sentenced section 5 — 8—1(d) (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—1(d)) read as follows:

“The court may reduce or modify, but shall not increase the length of a sentence by order entered not later than 30 days from the date that sentence was imposed. This shall not enlarge the jurisdiction of the court for any other purpose.”

The respondent’s motion represented that during the 3Vz years when he had been out on bond he had rehabilitated himself by having obtained a college degree in engineering and a master’s degree in business administration and by then securing regular employment as an engineer. The petitioner moved to strike the defendant’s motion on the ground that the court lacked jurisdiction, since more than 30 days had passed since the imposition of sentence. The motion to strike was denied, and a new hearing in aggravation and mitigation was held on December 5.

At that hearing the respondent presented testimony in support of his motion. The petitioner, in effect standing on its motion to strike, did not cross-examine the respondent’s witnesses and offered no evidence. At the close of the hearing an order was entered reducing the respondent’s sentence for aggravated kidnapping to 5 years’ probation, and reducing the sentence for aggravated battery to 1 to 10 years’ confinement in the House of Corrections. We of course are not concerned with whether the evidence presented at the hearing warranted the reductions of sentence made by Judge Collins, but only whether he had power to reduce a sentence more than 30 days after it had been imposed.

The respondent’s position is that the 30-day period provided by section 5 — 8—1(d) was tolled by his filing of a notice of appeal, which deprived the trial court of jurisdiction to enter any order in the case, and that the 30 days did not start to run until the mandate of the appellate court was received by the circuit court. Since the respondent’s motion and the order reducing sentences were made within that time, the respondent contends that the requirement of section 5 — 8—1(d) was satisfied.

Precisely the same contention was made and rejected in People ex rel. Carey v. Rosin (1979), 75 Ill. 2d 151, in which a writ of mandamus was awarded directing a judge of the circuit court to expunge an order reducing a defendant’s original sentence. In Rosin the defendant had been convicted of obstructing a police officer, and had been sentenced on February 23, 1977, to serve 60 days in the House of Corrections. The defendant filed a notice of appeal on February 25, and execution of the sentence was stayed under Rule 609(b) pending the defendant’s appeal to the appellate court. Although the opinion in Rosin does not so state, we have examined the record and the briefs in that case, and the grounds for the defendant’s appeal did not include any complaint as to the sentence imposed.

The appeal was never heard on the merits, since it was dismissed by the appellate court for want of prosecution. The mandate of the appellate court was received by the circuit court on August 17. On or about that date the defendant filed a motion for reduction of sentence which, at the defendant’s request, was assigned to the sentencing judge. On September 25 a hearing was held before that judge in which evidence favorable to the defendant was given regarding his behavior after conviction. At the close of the hearing the judge reduced the sentence to one year’s probation.

The respondent seeks to distinguish Rosin on the ground that the holding there was only that the 30-day period begins to run from the date the sentence is imposed rather than the date it is executed. That is not a correct interpretation of Rosin. In his brief the defendant described the issue presented for review to be whether the filing of a notice of appeal, the posting of bond pending appeal, and the stay of execution of the sentence would “suspend the time within which Velasco [the defendant] could file a motion to modify or reduce his sentence.” The court answered that question in the negative (75 Ill. 2d 151, 157).

The respondent also points out that in Rosin the court did not enter its order reducing the sentence until more than 30 days after the mandate was returned. In Rosin, as here, the motion for reduction of sentence was filed within 30 days from the receipt of the mandate, and there is nothing in the opinion suggesting that the decision would have been otherwise had the order granting that motion been entered within that 30-day period.

To dispel any possible misunderstanding as to the meaning of Rosin we now hold that the respondent’s motion for a reduction of sentence was not timely made, and that the circuit court had no jurisdiction to entertain it. We have no quarrel with the respondent’s assertion that upon his filing of the notice of appeal the trial court lost jurisdiction over the cause and could not thereafter entertain a motion to reduce sentence. It does not follow, however, that the circuit court reacquired jurisdiction to do so when it received the mandate of the appellate court after affirmance of the conviction. The respondent cites no authority whatever in support of his claim that the 30-day period specified by section 5 — 8—1(d) was tolled by the filing of the notice of appeal, and we have found none.

The 30-day period within which a trial court may modify a sentence is the modern-day adaptation of the common law rule that a trial court retained power over a judgment during the term at which it was entered. (People v. Lance (1962), 25 Ill. 2d 455, 456; People ex rel. Lucey v. Turney (1916), 273 Ill. 546, 553; cf. People v. Hell (1978), 71 Ill. 2d 458, 461; People v. Green (1975), 34 Ill. App. 3d 153, 156.) A 30-day period is also prescribed for the filing of a motion for a new trial or a motion in arrest of judgment (Ill. Rev. Stat. 1977, ch. 38, pars. 116 — 1, 116 — 2). After the expiration of that period the circuit court loses power to grant such a motion (People v. Rudecki (1923), 309 Ill. 125), and the respondent concedes, as he must, that the taking of an appeal would not allow such a motion to be considered after an affirmance by the appellate court.

The council commentary to section 5 — 8—1 which appears in the Illinois Annotated Statutes states that the subsection involved in this case is “[i] n accord with” Rule 35 of the Federal Rules of Criminal Procedure. That representation is misleading. Rule 35 is as follows:

“The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law.”

Federal Rule 35 thus expressly authorizes reductions of sentence to be made after affirmance of a conviction. As the notes of the Advisory Committee on Rules disclose, such a provision has been a part of Rule 35 since the adoption of the Federal Rules of Criminal Procedure in 1946. The failure of the General Assembly to adopt a comparable provision in the Unified Code of Corrections in 1972 must be regarded as reflecting a decision not to import this facet of the Federal procedure into the law of this State. To adopt the respondent’s theory that the 30-day limit of section 5 — 8—1 is tolled by the taking of an appeal would be to ignore that legislative determination. Our conclusion in this regard is fortified by the inclusion in the Code of a provision granting the circuit court the power to reduce a sentence beyond the 30-day period in one specific instance, namely, sentences for periodic imprisonment. Section 5 — 7—7 (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 7—7) provides:

“The court which committed the offender to periodic imprisonment shall retain jurisdiction over him during the term of commitment and may order a diminution of the term if his conduct, diligence and general attitude merit ■ such diminution.”

For the foregoing reasons we award a writ of mandamus commanding the Honorable Robert J. Collins to vacate and expunge his prior order of December 5, 1979, reducing the defendant’s sentences.

While this case was under advisement the petitioner filed a motion to recall the mittimus and take the respondent into custody. In its motion the petitioner represented that the respondent had been discharged from the Illinois Department of Corrections on April 8 pursuant to a recommendation by the Prisoner Review Board. We took that motion with the case. In view of our determination that the order reducing the defendant’s sentences is to be vacated and expunged, we direct that the mittimus be recalled and that Judge Collins issue a new mittimus conforming to the sentences originally imposed upon the respondent.

Writ awarded.


author: MR. JUSTICE MORAN

text:
    (No. 52206.
    GARY SEGLER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Caterpillar Tractor Co., Appellee).

      Opinion filed May 30, 1980.

      Jay H. Janssen and Kenneth L. Ott, of Peoria, for appellant.
    Robert F. Fahey, of Peoria, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Claimant, Gary Segler, filed an application for adjustment of claim alleging that he was injured while in the employ of the respondent, Caterpillar Tractor Company. An arbitrator found that the claimant sustained accidental injuries arising out of and in the course of his employment, which injuries resulted in the permanent and complete loss of use of each leg to the extent of 35% thereof. On review, the Industrial Commission reversed the decision of the arbitrator and set aside the award. The circuit court of Peoria County affirmed the decision of the Commission, and claimant appealed.

Claimant was employed by the respondent as a “punch-out monitor.” Approximately 20 to 25 feet from claimant’s work station, there was a large industrial oven through which passed a conveyor-roller system. Block-like 30-inch-high “flasks,” which contained molds, were fixed at regular intervals on the conveyor. They were transported on the conveyor into the oven. Claimant testified that, in order to reach his work area, he was regularly required to pass through the spaces between the flasks.

On the morning in question, the conveyor system was not operating, but the oven was warm. Claimant, having previously observed one employee put food into the oven, placed a frozen pot pie on a shelf inside the oven. Approximately 30 minutes later, as he reached into the oven to retrieve the pie, the conveyor system was started. The flask nearest the oven struck and moved claimant’s right foot, placing him in a position between one flask and the oven. A vertically protruding pin, approximately IV2 inches in diameter and SVz inches high, affixed to the advancing flask, struck claimant’s left hip, forcing him against the oven. Thus wedged, claimant was injured as the flask pin tore through his left, then his right, hip and buttocks.

The employer offered no evidence at the hearing before the arbitrator but, on review, introduced three photographs of the oven and flask-conveyor system.

Claimant contends that because his injury resulted from a risk inherent in the premises and because his actions did not increase that risk, the injury he suffered arose out of and in the course of his employment. The employer argues that claimant’s actions were unnecessary, inherently dangerous and unreasonable, and that the Commission’s decision was not therefore against the manifest weight of the evidence.

An injury is compensable under workmen’s compensation only if it arose out of and in the course of employment. To “arise out of” employment, an injury must have its origin in some risk connected or incidental to the employee’s duties so that there is a causal connection between the injury and the employment. An injury is “in the course of” employment when it occurs within the period of employment, at a place where the employee can reasonably be expected to be in the performance of his duties, and while he is performing those duties or doing something incidental thereto. (See Scheffler Greenhouses, Inc. v. Industrial Com. (1977), 66 Ill. 2d 361, 366-67, and cases cited therein.) Acts of personal comfort are generally held to be incidental to employment duties and, thus, are in the course of employment. However, if the employee voluntarily and in an unexpected manner exposes himself to a risk outside any reasonable exercise of his duties, any injury incurred as a result will not be within the course of employment. See Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272, 277, and cases cited therein.

In the present case, the claimant was not in the reasonable exercise of his duties at the time the injury occurred. He was performing no job task in that area, and his actions cannot be thought of as beneficial to the employer. Instead, the claimant voluntarily undertook a course of action solely for his own benefit, thereby exposing himself to a risk greater than that to which he would have been exposed had he been pursuing his assigned duties at his designated work area 25 feet away. His actions were, in fact, unnecessary, inherently dangerous and unreasonable.

Despite the fact that an employee chooses an unreasonable and unnecessary risk, the employer may, nonetheless, be held liable if he has knowledge of or has acquiesced in such a practice or custom. (Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272, 277.) In the present case, however, there is no basis for finding that the employer had knowledge of or acquiesced in such an act. The claimant himself testified that, during the 11/2 years he had worked in this area, he had seen only one person place food in the oven.

The claimant argues that his injuries are compensable since he was regularly required to pass over the conveyor in order to get to and from his work area and since his act of placing a pot pie in the oven exposed him to no greater risk than that to which he was daily exposed. At the time of injury, however, claimant was not going to or from his work station and was, in fact, between the oven and a flask, not between two fixed flasks, his customary point of crossing the conveyor.

We have often stated the rule that it is within the unique province of the Commission to draw inferences from facts presented and to determine whether the injury was the result of unreasonable, unexpected and unnecessary risks to which an employee voluntarily exposed himself. (Yost v. Industrial Com. (1979), 76 Ill. 2d 548, 551.) We find that, under the instant circumstances, the Commission could find that the claimant’s conduct constituted an unreasonable risk and, consequently, that the injury did not arise out of or in the course of employment. Such a conclusion is not against the manifest weight of the evidence.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 52357.
    C. IBER & SONS, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Harold Dean, Appellee).

      Opinion filed June 20, 1980.

    Barash & Stoerzbach, of Galesburg (Robert C. Stoerzbach, of counsel), for appellant.
    Perz & McGuire, of Chicago (Frank M. Perz and James M. Ridge, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that petitioner, Harold Dean, while employed by respondent, C. Iber & Sons, Inc., sustained accidental injuries arising out of and in the course of his employment and awarded him compensation for a period of temporary total incapacity, together with an additional sum for medical expenses. On review, the Industrial Commission, after receiving additional evidence, affirmed the decision of the arbitrator and, finding that the disabling condition was temporary and had not reached a permanent stage, awarded compensation for an additional period of temporary total disability. On certiorari the circuit court of Knox County confirmed the decision of the Industrial Commission and respondent appealed. 73 Ill. 2d R. 302(a).

Petitioner was hired by respondent to work as a laborer on a construction project at Carl Sandburg College in Galesburg. His first day of work was April 30, 1975, and on that day he rode a motorcycle to work. He parked the motorcycle near a trailer which served as a construction office but was instructed by his foreman that thereafter he was to park in a different area. The next day petitioner again rode his motorcycle to work and followed signs directing respondent’s employees to the vicinity of the construction site. As petitioner was traveling very slowly his motorcycle fell to the left and he sustained a fracture of the left tibia. In dispute is whether the injury occurred on premises under the control of the employer.

Respondent’s employees had access to the job area via Lake Storey Road, and there were signs and arrows which directed the way to the work site. To arrive at the work site via this route it was necessary to pass through a parking area, which was referred to as the “student” parking lot. Westward from this lot led a small road which, after a short distance, diverged into two arms so as to form a “Y.” The northernmost arm of this “Y” led to a “faculty” parking lot, and the southern arm led to the actual construction site and was the route by which material and equipment reached that site.

Petitioner testified that on his first day of work he parked all day by the trailer which served as the construction superintendent’s office. He testified that he was asked by the labor foreman, Ray Hensley, to park “on the parking lot where the students park. ” That first day petitioner was also made aware that an ironworkers’ strike was possible the next day.

Petitioner testified that the second day he followed signs and arrows “up to where we [were] supposed to park and went to pull into a parking place.” As he was doing so his motorcycle slipped out from under him and he was injured. He testified that the ironworkers “had pickets up ” and he was “going to go up to see if we were going to work. ” On cross-examination, in response to the assertion that he had actually gone beyond the last parking place in the student lot, respondent said: “No. There [are] parking places right up in there where I was going to park my motorcycle.” Respondent also indicated that there were cars “all up and down” in the area where he fell. When asked what area he was in when he fell, petitioner replied: “To the best of my knowledge I was in the parking area where we were supposed to be.” When asked whether there was a precise line of demarcation between the parking area and the road beyond it, as indicated in drawings offered in evidence by respondent, petitioner said: “No, there [were] cars parked and that is the reason I pulled up to park where the cars were. ”

Ray Hensley, the labor foreman, testified with regard to a sign in the vicinity of the southwest corner of the student lot. Several photographs which petitioner introduced into evidence portrayed the sign and the area around it. Hensley testified that one photograph which showed the sign depicted an area where employees were permitted to park. He said employees were not “supposed” to park beyond that sign, but that “Sometimes they did.” Referring to an “X” placed on a photograph next to the sign, Hensley testified that petitioner’s motorcycle fell no more than “six or ten feet from this ‘X’ either way. ” Referring to a photograph, he added, “It was out of this parking lot here ***.”

Respondent called Loren R. Nicol, the director of business services at Carl Sandburg College, and Richard Jewell, who at the time of the occurrence was the job superintendent for respondent. Neither witness saw petitioner fall and neither ever spoke with him as to where he should park his vehicle. Both witnesses testified that employees were not permitted to park west of the sign. Jewel indicated that the sign, which said “faculty and staff parking only,” was “to stop the students from coming up this road.” He also testified that on strike days employees “supposedly just turn around and go home” without checking with the foreman. Nicol testified that, pursuant to an agreement between Nicol and respondent’s construction superintendent, the southernmost row of the student lot was designated as the parking area for construction workers. Another witness called by respondent saw petitioner fall and stated that the fall occurred west of the sign.

Additional evidence was adduced at the hearing before the Commission. Jewell again testified. He testified that in order to get to the work area employees who parked in the designated spaces would walk along the road where petitioner fell. Respondent also introduced into evidence a large-scale drawing of the area in question.

Petitioner testified again, saying that the day before his fall cars were parked on the west side of the sign near where he fell.

It is respondent’s contention that petitioner’s injury did not arise out of or in the course of his employment for the reason that the injury occurred on a public way between the parking lot where he was authorized to park and the place of employment, and is therefore not compensable. It argues that petitioner was not subjected to any greater risk than a member of the general public who might be present on the roadway, that by parking in an area which was forbidden to him, he was removed from the scope of his employment and that the finding of the Industrial Commission was therefore contrary to the manifest weight of the evidence. Simply stated, respondent’s contention is that the accident occurred after petitioner had traveled through the designated parking area and entered upon the road which provided access to the construction road and where he was specifically forbidden to g°-

In Peel v. Industrial Com. (1977), 66 Ill. 2d 257, 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.” 66 Ill. 2d 257, 259-60.

In Jewel Companies v. Industrial Com. (1974), 57 Ill. 2d 38, 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.” 57 Ill. 2d 38, 40.

Whether the employer owns the parking lot is immaterial so long as it is provided for the use of the employee. (De Hoyos v. Industrial Com. (1962), 26 Ill. 2d 110, 114.) Consequently, if when the accident occurred petitioner was within the area provided by respondent for employee parking, his injury would be compensable.

It is axiomatic that resolving conflicts in the evidence, drawing inferences from testimony and determining credibility of witnesses and the weight to be accorded their testimony are matters within the province of the Industrial Commission, and the Commission’s finding will not be disturbed unless it is against the manifest weight of the evidence. [Long v. Industrial Com. (1979), 76 Ill. 2d 561; Giganti v. Industrial Com. (1978), 73 Ill. 2d 1.) The evidence was conflicting concerning whether the parking area provided by respondent was clearly defined and whether petitioner was within that area. It is clear that the fall occurred within a few feet of the sign which respondent contends marked the western end of the student lot. Obviously, the Commission chose to accept petitioner’s version of the facts and the inference that the fall was within the permitted parking area. In view of the conflicting evidence, we hold that the decision of the Industrial Commission was not contrary to the manifest weight of the evidence.

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

Judgment affirmed.


author: PER CURIAM: MR. CHIEF JUSTICE GOLDENHERSH,

text:
    (No. 51882.
    ILLINOIS BELL TELEPHONE COMPANY, Appellant, v. THE FAIR EMPLOYMENT PRACTICES COMMISSION et al., Appellees.

      Opinion filed April 18, 1980.

    Rehearing denied May 29, 1980.

      GOLDENHERSH, C.J., and CLARK, J., dissenting.

      John W. McNulty, Stephen S. Schulson, Thomas H. W. Sawyer and Marc I. Lipton, of Chicago, for appellant.
    Gary H. Palm, Amy Hilsman, Randolph N. Stone and Claire E. Pensyl, of the Mandel Legal Aid Clinic, of Chicago, for appellees Geraldine Rone et al.

    Barbara J. Hillman, of Cornfield and Feldman, of Chicago, for appellee Gail M. Pratt.
   PER CURIAM:

This is an administrative review action brought by plaintiff, Illinois Bell Telephone Company, seeking to set aside findings of sex discrimination entered against it by defendant Fair Employment Practices Commission (FEPC). The alleged discrimination .concerns Bell’s refusal to extend disability benefits to defendants Geraldine Rone, Shirley Roe, Lenesta Lyles, and Gail Pratt during leaves of absence due to pregnancy in 1972 and 1973. Following receipt of the testimony of these defendants and other evidence from the parties, a hearing examiner recommended to the FEPC that the denial of benefits unlawfully discriminated against female employees on the basis of their sex (Ill. Rev. Stat. 1973, ch. 48, par. 853(a)). The FEPC adopted the recommendation of the hearing examiner and ordered Bell to cease and desist from further discriminating against pregnant women in its disability plan. The FEPC further directed Bell to pay disability benefits to the individual defendants for the periods of their disability and to reimburse the individual defendants for the payment of insurance premiums on company-funded policies, payments which were necessitated by Bell’s refusal in include pregnancy in its disability plan. Bell filed a complaint for administrative review in the circuit court of Cook County. The circuit court reversed the decision of the FEPC, but on appeal by defendants, the appellate court reversed the judgment of the circuit court (68 Ill. App. 3d 829), holding that the denial of benefits constituted unlawful sex-based discrimination. We granted Bell leave to appeal.

We are presented with the narrow issue of whether Bell’s plan violated the State Fair Employment Practices Act as it existed at the time of the pregnancy leaves of absence in question, 1972 and 1973. Section 3(a) of the Act provides in pertinent part:

“It is an unfair employment practice: (a) For any employer, because of the race, color, religion, sex, national origin or ancestry of an individual to refuse to hire, to segregate, or otherwise to discriminate against such individual with respect to hire, selection and training for apprenticeship in any trade or craft, tenure, terms or conditions of employment ***.” (Ill. Rev. Stat. 1973, ch. 48, par. 853(a).)

We do not address the question of whether the plan violates the recently amended Federal Equal Employment Opportunities Act, which prohibits certain employment-related classifications based on pregnancy (Act of Oct. 31, 1978, Pub. L. 95-555 (to be codified in 42 U.S.C. sec. 2000e(k)), since that law was not in effect at the time here relevant.

According to a stipulation filed by the parties which summarizes Bell’s disability policy, Bell operates a disability plan for its employees for periods of absence due to “medically approved sicknesses” and off-the-job injuries. No actual written plan is included in the record. A copy of a notice of eligibility used by Bell is included in the record in defendant Pratt’s case, however, and it likewise indicates that coverage is limited to “illness” and off-the-job injuries.

According to the stipulation of the parties, complications arising from pregnancy are included in the plan, but pregnancy itself is not covered; Bell does not consider normal pregnancy to be a “sickness” within the meaning of its benefits plan. An employee requesting maternity leave therefore is not eligible for benefits unless complications arise. While on maternity leave, the employee does accumulate seniority for the first 30 days of absence. The employee’s right to accumulate seniority is thereafter suspended, however, pending return to work. Previously accumulated seniority is retained. Bell also stops paying premiums on basic medical and supplementary group life insurance policies after 30 days.

Following its review of this plan and the evidence, the FEPC ruled that the exclusion of normal pregnancy was a form of sex discrimination prohibited by the Fair Employment Practices Act (Ill. Rev. Stat. 1973, ch. 48, par. 851 et seq.). Bell contends initially that the Fair Employment Practices Act is preempted by the Federal Employee Retirement Income Security Act of 1974 (ERISA), one section of which states that the Act’s provisions “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan ***.” (29 U.S.C. sec. 1144(a) (1976).) We do not address this argument, however, as ERISA was not in effect (29 U.S.C. sec. 1381(a) (1976) (effective date of September 2, 1974)) at the time of the maternity leaves here in question, 1972 and 1973, and it could not be said that ERISA preempted State laws then applicable. We therefore proceed to the merits of defendants’ claim of discrimination.

Where a claim of discrimination is made, an initial inquiry is whether the party claiming discrimination is similarly situated with those said to be receiving preferential treatment. (Phillips v. Martin Marietta Corp. (1971), 400 U.S. 542, 544, 27 L. Ed. 2d 613, 615, 91 S. Ct. 496, 497-98; see also F. S. Royster Guano Co. v. Virginia (1920), 253 U.S. 412, 415, 64 L. Ed. 989, 990-91, 40 S. Ct. 560, 561-62; Reif v. Barrett (1933), 355 Ill. 104, 121.) If the complaining party is, in fact, not similarly situated with those with whom he or she seeks to be compared, a vital prerequisite to a finding of discrimination is lacking. In applying this principle to the facts now before us, as stipulated by the parties, we conclude that the FEPC’s finding of discrimination is without basis.

As the parties stipulate, the purpose of Bell’s disability program is to provide benefits for “medically approved sicknesses” and off-the-job injuries. In this regard, it is significant to note that Bell does provide benefits for complications of pregnancy, as it recognizes these to be “sicknesses.” (See Winks v. Board of Education (1979), 78 Ill. 2d 128, 140.) Pregnancy itself, however, is not a sickness (78 Ill. 2d 128, 140), and Bell justifiably refuses to consider it as such. As Bell argues in its brief, “Pregnant female employees, on the one hand, and male and female employees disabled by disease or injury, on the other, are not similarly situated.” It was therefore improper for the FEPC to compare pregnancy with the sicknesses covered by the plan.

Defendants cite numerous decisions from other States in which the exclusion of pregnancy was held to be in violation of the antidiscrimination statutes of those States. Given the narrowly drawn facts before us, however, these cases are not in point. The disability plan of Bell purports to cover only sicknesses, and the exclusion of pregnancy is proper since it is not a sickness. The cases cited by defendants involved disability plans of broader coverage which inexplicably excluded pregnancy. (See, e.g., Minnesota Mining & Manufacturing Co. v. State (Minn. 1979), 289 N.W.2d 396, 397, appeal dismissed (1980), 444 U.S. 1041, 62 L. Ed. 2d 726, 100 S. Ct. 725 (“the exclusion of pregnancy-related absences from an otherwise comprehensive income maintenance plan is per se sex discrimination”); Massachusetts Electric Co. v. Massachusetts Com. Against Discrimination (1978), 375 Mass. 160, 168, 375 N.E.2d 1192, 1198 (“the exclusion of pregnancy-related disabilities, a sex-based distinction, from a comprehensive disability plan constitutes discrimination”).) Significantly, we note also that the plan involved in the Minnesota case did not even cover complications of pregnancy as does Bell’s plan (Minnesota Mining & Manufacturing Co. v. State (Minn. 1979), 289 N.W.2d 396, 397, appeal dismissed (1980), 444 U.S. 1041, 62 L. Ed. 2d 726, 100 S. Ct. 725) and that the plan involved in the Massachusetts case covered “male-specific disabilities” (Massachusetts Electric Co. v. Massachusetts Com. Against Discrimination (1978), 375 Mass. 160, 168, 375 N.E.2d 1192, 1198) while excluding pregnancy.

Defendants also ask us to consider the Federal experience in this area, citing Congress’ amendments to the Equal Employment Opportunity Act (42 U.S.C. sec. 2000e et seq. (1976)) following the decision of the United States Supreme Court in General Electric Co. v. Gilbert (1976), 429 U.S. 125, 50 L. Ed. 2d 343, 97 S. Ct. 401. In Gilbert, the court held that a classification based on pregnancy is not gender-based and that then-existing Federal antidiscrimination provisions were not broad enough to prohibit the exclusion of pregnancy from a disability plan. By its amendment of the statute, Congress expressly prohibited treatment of pregnant women which differed from that afforded “other persons not so affected but similar in their ability or inability to work.” (Act of Oct. 31, 1978, Pub. L. 95 — 555 (to be codified in 42 U.S.C. sec. 2000e(k).) Defendants argue that the intention of Congress, as expressed in this amendment, should be considered by us because Illinois’ sex discrimination statute is patterned after Federal law. We reject the argument, however, as a legislative body cannot retroactively effectuate a change in statutory language by issuing a declaration of prior intent. (Roth v. Yackley (1979), 77 Ill. 2d 423, 428.) We do not reach the question of whether a classification based on pregnancy is gender-based, but we do agree with the decision in Gilbert insofar as it held that the statutory provisions relied upon were insufficient to support a finding of discrimination. See also Harder v. Kansas Com. on Civil Rights (1979), 225 Kan. 556, 560, 592 P.2d 456, 459-60; Group Hospitalization, Inc. v. District of Columbia Com. on Human Rights (D.C. 1977), 380 A.2d 170, 173-74;Narragansett Electric Co. v. Rhode Island Com. for Human Rights (1977), 118 R.I. 457, 463-64, 374 A.2d 1022, 1025; Richards v. Omaha Public Schools (1975), 194 Neb. 463, 232 N.W.2d 29.

While we do not believe that its presence requires a different result, we do deem it appropriate to acknowledge that a provision in the Illinois Constitution prohibits sex discrimination in employment (Ill. Const. 1970, art. I, sec. 17) and that the protection afforded by such a constitutionally based prohibition has been interpreted broadly. (People v. Ellis (1974), 57 Ill. 2d 127, 132-33 (“a classification based on sex is a ‘suspect classification’ which, to be held valid, must withstand ‘strict judicial scrutiny’ ”).) The constitutional prohibition of sex discrimination, however, does not require us to broaden the common meaning of pregnancy or to find discrimination where the complaining party is not similarly situated with those said to be receiving preferential treatment. The antidiscrimination provisions of the Fair Employment Practices Act contain no provision broad enough to support the FEPC’s finding of unlawful discrimination in this case. Its decision therefore is void and must be vacated. City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill. 2d 108, 112-13.

Notwithstanding the restriction of coverage under Bell’s plan to “medically approved sicknesses” and off-the-job injuries, defendants argue that the exclusion of normal pregnancy is improper because Bell extends disability coverage to employees under treatment for alcoholism, drug addiction and emotional disorders. Significantly, however, defendants do not contend that Bell is incorrect in recognizing alcoholism, drug addiction and emotional disorders as “sicknesses” within the meaning of its disability plan. Defendants argue only that these disabilities are similar to pregnancy in that they are “voluntary” and that Bell therefore cannot exclude pregnancy while covering alcoholism, drug addiction and emotional disorders. We are not so sure that emotional disorders are properly denominated a “voluntary” disability, but in any event, we do not concur in the comparison that defendants make. We approve of the exclusion of pregnancy from Bell’s plan, not because it is a “voluntary” disability, but because it is not a “sickness.”

We also note that the stipulation of the parties states that alcoholism and drug addiction qualify as disabilities under Bell’s plan only if the employee cooperates and agrees to therapy, including specialized hospital treatment and counseling sessions. Also according to the stipulation, those suffering emotional disorders must obtain certification by a physician that the employee is emotionally disabled and unable to work.

For the reasons stated, the judgment of the appellate court is reversed and the order of the Fair Employment Practices Commission is vacated.

Appellate court reversed; order vacated.

MR. CHIEF JUSTICE GOLDENHERSH,

dissenting:

I dissent and would affirm the judgment of the appellate court. The majority opinion is based on the conclusion, unsupported by the record and contrary to the findings of the Fair Employment Practices Commission, that the plan covered only “sickness.” Although the plan is not contained in the record it is apparent that it has been construed to cover not only disability resulting from sickness, but also all periods of disability except those occasioned by pregnancy.

This case is clearly distinguishable from Winks v. Board of Education (1979), 78 Ill. 2d 128. There the court was required to construe the term “temporary illness.” It is clear from Winks that “temporary incapacity” is broader than temporary illness, and is broad enough to encompass temporary incapacity caused by pregnancy and child birth.

Based on the record before us the plan should be construed to cover the temporary incapacity resulting from a normal pregnancy, and the refusal to grant benefits to these employees resulted in discrimination because of their sex.

MR. JUSTICE CLARK joins in this dissent.


text:
    (No. 52722.
    CANON T. JOHN, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Peoria Goodwill Industries, Inc. Appellee).

      Opinion filed June 30, 1980.

    Rehearing denied September 26, 1980.

      Lindholm & Williamson, of Peoria (Harold G. Lindholm and Nile J. Williamson, of counsel), for appellant.
    Henry D. Noetzel & Associates, Ltd., of Peoria (John E. Mitchell, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Canon T. John injured his back on April 12, 1976, while lifting boxes at the Goodwill Industries, Inc., in Peoria, where he was employed as “Director of Operations.” John filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.), and after a hearing an arbitrator, on October 24, 1977, awarded him a total of 14 weeks of compensation benefits for temporary total disability and for the “permanent and complete loss of the use of the left leg to the extent of 5%.” The respondent refused to pay certain medical expenses the claimant incurred shortly after the hearing before the arbitrator, and the claimant filed a petition for review with the Industrial Commission. In the petition for review the claimant not only challenged the correctness of the arbitrator’s award but also addressed the Commission on the respondent’s refusal to pay for the post-hearing medical services. The Commission affirmed the arbitrator’s award and denied the claim for the post-hearing medical expenses. The circuit court of Peoria County confirmed the Commission’s decision and the claimant appealed directly to this court under Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

John’s responsibilities as the Director of Operations at Goodwill Industries included the supervision of 23 employees, most of whom were disabled. Goodwill Industries is a charitable organization serving the handicapped. Its activities include an operation which accepts clothing, furniture, electrical appliances and other articles from businesses and individuals and restores and sells them to members of the public. Claimant’s work also required him to perform some manual labor, particularly when donated goods arrived and had to be distributed to various departments.

On the day he was injured, April 12, 1976, the claimant had just finished unloading 30 boxes of assorted merchandise, each weighing approximately 25 pounds, when he felt a sudden pain in his lower back. Upon notifying his supervisor of the incident he left work early. The claimant stated that he was unable to schedule an appointment with a doctor until April 15, three days later. He was examined by his personal physician, Dr. Edward Smith, who took X ray’s and prescribed pain medication. Dr. Smith diagnosed the condition as one of lumbrosacral strain. After an examination on May 10 revealed marked improvement the claimant returned to work. He continued as the Director of Operations until November 8, 1976. During this period the claimant had no apparent physical difficulties in performing his duties, though he did receive therapy treatments twice a week until September.

Complaining of pain, the claimant, on November 9, was admitted to Proctor Hospital in Peoria under the care of Dr. Smith. He was placed in traction and given physical therapy treatments. His condition was diagnosed at Proctor as a L-5 root-compression syndrome of the lower back and left leg. The claimant was discharged from the hospital on December 4, claiming there was no significant improvement in his condition.

He continued to experience pain in the lower region of his back and throughout his left leg. In January of 1977 Dr. Smith observed that, considering the nature of the claimant’s condition, he “would anticipate a rather lengthy course for his disability.” Surgery was considered but opposed by the claimant, and it was decided that he would continue to receive conservative treatment.

The claimant was terminated from his job at Goodwill Industries on February 24, 1977. Except for two three-month periods of employment in 1978 as an office worker he has not worked since November 8, 1976. The claimant testified that he is still seeking employment. John filed his workmen’s compensation claim in July 1977 and, as stated, the arbitrator’s award was handed down on October 21, 1977.

Immediately following the arbitration proceeding the claimant was referred by Dr. Smith to Dr. Xuan Truong at the Institute of Physical Medicine and Rehabilitation of St. Francis Hospital in Peoria. Dr. Truong concluded that the claimant was suffering from chronic lumbrosacral strain with left sciatica, and between October of 1977 and March of 1978 the claimant, as an outpatient, underwent a program of heat treatment, massage and pelvic traction. He continues to visit Dr. Truong periodically for treatment.

There is no dispute that the claimant suffered a compensable accident on April 12, 1976. It appears that all of the medical expenses of the claimant were satisfied by the respondent with the exception of those for the services of Dr. Truong, which were rendered after the arbitrator’s award. The question for us is whether the Commission’s decision affirming the arbitrator’s award and upholding the respondent’s refusal to pay for the services of Dr. Truong was contrary to the manifest weight of the evidence. Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 101.

As stated, there is no dispute by the parties that the claimant suffered an accident on April 12, 1976. The claimant contends that the arbitrator’s award was inadequate and that the Commission’s finding which affirmed it was contrary to the manifest weight of the evidence. He argues that the necessity of his continuing treatment by Dr. Truong substantiates the claim that his current condition was caused by the April 12 injury. The respondent on the other hand says that the Commission’s decision was not in error, noting that the claimant returned to work on May 11, 1976, and worked continuously until November of that year, when he entered the hospital. The respondent suggests that the claimant must have sustained another accident which was not work related subsequent to the accident of April 12, 1976, which was responsible for the condition that required the services of Dr. Truong. Dr. Truong, on cross-examination, acknowledged that the claimant’s condition could have been caused by some new trauma or that it could be attributable to an aggravation of an old trauma. To say, however, as the respondent said in the summary sheet for oral argument it filed with the Commission, that Dr. Truong said that the claimant had a second accident (“The Petitioner had a second accident per the testimony of his medical witness”) is misleading and incorrect. Incorrect, too, is the statement in the respondent’s brief that Dr. Truong in his testimony “disclosed an intervening incident which the doctor felt could have been an aggravating or new trauma.”

We recently stated in O’Dette v. Industrial Com. (1980), 79 Ill. 2d 249,253:

“In a workmen’s compensation proceeding the claimant has the burden of proving by a preponderance of the evidence the elements of his claim and, in particular, that his injury arose out of and in the course of his employment. (Johnson Outboards v. Industrial Com. (1979), 77 Ill. 2d 67; Health and Hospitals Governing Com. v. Industrial Com. (1975), 62 Ill. 2d 28.) It is the function of the Industrial Commission to decide questions of fact and causation (Stewart Warner, Datafax Corp. v. Industrial Com. (1979), 76 Ill. 2d 464; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10), [and] to judge the credibility of witnesses (Watts v. Industrial Com. (1979), 77 Ill. 2d 30; Sahara Coal Co. v. Industrial Com. (1977), 66 Ill. 2d 353) ***. 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 against the manifest weight of the evidence. Phelps v. Industrial Com. (1979), 77 Ill. 2d 72.”

The extent and permanency of an employee’s medical disability are also questions for the Industrial Commission. Gates Division, Harris-Intertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264, 270; Hiram Walker & Sons, Inc. v. Industrial Com. (1978), 71 Ill. 2d 476, 479.

Tending to support the finding of the Commission as to the extent of the loss of use, the record shows that Dr. Smith, in July 1977, considered that the claimant had made a significant clinical improvement regarding his low back condition and nerve-root problem. Also, Dr. Truong in January 1978 administered a test which showed there was no electrical evidence of nerve damage in the lower extremities or back muscles. Upon reviewing the evidence we cannot say that the decision of the Commission affirming the arbitrator’s award and denying the claim for the involved medical expenses was contrary to the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN MR. JUSTICE RYAN,

text:
    (No. 52405.
    JOHN G. KOKINIS, Appellee, v. EDWARD KOTRICH et al., Appellants.

      Opinion filed, June 20, 1980.

      RYAN, J., specially concurring.
    Max A. Abrams and Sidney Z. Karasik, of Chicago, for appellants.
    Lewis W. Schlifkin and Edward A. Berman, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

John G. Kokinis, a licensed real estate broker, brought this action to recover a commission under the terms of a listing agreement for the sale of a motel owned by defendants, Edward and Rita Kotrich. The circuit court of Cook County, in a bench trial, granted defendants’ motion for judgment in their favor at the close of plaintiff’s case in chief, but the appellate court reversed and remanded with directions to proceed as if defendants’ motion had been denied (74 Ill. App. 3d 224). We granted defendants’ petition for leave to appeal, and we now affirm.

Defendants contend that the appellate court erred in (1) holding that, based on the evidence thus far adduced, plaintiff “submitted” the property in question to the ultimate purchaser during the listing period, and (2) basing its decision on a theory which was not presented to the trial court.

In nonjury cases, section 64(3) of the Civil Practice Act allows the defendant, at the close of the plaintiff’s case in chief, to move for a finding or judgment in his favor. In ruling on the motion, the court is to weigh the evidence and, if the ruling is favorable to the defendant, enter a judgment dismissing the action. (Ill. Rev. Stat. 1977, ch. 110, par. 64(3); City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 57.) The court must consider all of the evidence, including any favorable to the defendant, and is to pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and the quality of the evidence. Contrary to the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494), the court is not to view the evidence in the light most favorable to the plaintiff. On appeal, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 57-58.

There has been some confusion in our appellate court as to whether, in ruling on the defendant’s motion, in a bench trial, the trial court is to decide only if the plaintiff has made out a prima facie case or, instead, the court is to decide if he has met his burden of proof by a preponderance of the evidence. (See discussion in Jackson v. Navik (1976), 37 Ill. App. 3d 88, 90-92.) This confusion over the proper procedure to be followed by the court in ruling on a section 64(3) motion merits our comment.

The prima facie case standard ordinarily applies to both jury and nonjury cases. In any case in which the plaintiff has failed to make out a prima facie case, i.e., he has not presented at least some evidence on every element essential to his cause of action, the defendant is entitled to judgment in his favor as a matter of law. When a defendant, as here, moves for judgment under section 64(3), the trial judge must first determine, as a legal matter, whether the plaintiff has made out a prima facie case. If he has not, the court should, without more, grant the motion and enter judgment in the defendant’s favor.

If, however, the plaintiff has made out a prima facie case, the trial judge, in his role as the finder of fact, must then weigh the plaintiff’s evidence as aforesaid. This weighing process may result in the negation of some of the evidence necessary to the plaintiff’s prima facie case, in which event the court should grant the defendant’s motion and enter judgment in his favor. On the other hand, if sufficient evidence necessary to establish the plaintiff’s prima facie case remains following the weighing process, the court should deny the defendant’s motion and proceed as if the motion had not been made.

Sub judice, the facts are sufficiently set forth in the appellate court opinion and need only be briefly summarized here. On June 28, 1971, plaintiff and defendants entered into a real estate listing agreement for a period of 90 days, by which defendants agreed to pay a commission to plaintiff:

“(a) for *** services in procuring a purchaser of the property on the above terms or any other terms the owner shall accept, or (b) if the property is sold by [plaintiff], by me (OWNER), or by or through any other person, during the period hereof, or (c) if the property is sold to anyone on behalf thereof to whom it was submitted, or sold after termination of this agreement to a purchaser to whom it was submitted or shown by [plaintiff or plaintiff’s] representative during the term of this agreement.”

Near the end of the 90-day-listing period, Robert Galas called plaintiff in response to a newspaper advertisement which referred to a motel in the south LaGrange area. The ad furnished plaintiff’s name, as the realtor, and gave plaintiff’s telephone number. Galas inquired about the property, requested that plaintiff send him a flyer which listed the address and described the property in detail, and said he wanted to see the property. Plaintiff immediately, and still within the listing period, sent a flyer to Galas. Galas thereafter informed plaintiff that he had received the flyer, but that he had previously seen the property with another broker and was not interested in dealing with plaintiff. Shortly after the listing period ended, Galas bought the property from defendants. In granting defendants’ motion for judgment at the close of plaintiff’s case in chief, the trial court expressly found that plaintiff was not the procurer of the purchaser and that the sale did not occur during the listing period. As noted by the appellate court, the trial court did not determine whether plaintiff was nevertheless entitled to a commission pursuant to part (c) of the listing agreement. The appellate court held that plaintiff’s evidence showed that, for purposes of part (c) of the agreement, he had “submitted” the property to Galas during the listing period. We agree, and we adopt the reasoning of the appellate court on this point. In addition thereto, we note that there is no indication that the trial court, whose duty it is to weigh plaintiff’s evidence, disbelieved or discounted any of the evidence which established plaintiff’s right to recover. We are therefore in agreement with the appellate court’s decision, made pursuant to Rule 366(b)(3)(iii) (73 Ill. 2d R. 366(b)(3)(iii)), to reverse and remand the cause with directions to proceed as if defendants’ motion had been denied by the trial court.

As a secondary contention, defendants urge that this court should not determine whether plaintiff may seek recovery under part (c) of the contract, for, defendants assert, plaintiff did not present that theory of recovery to the trial court. Defendants cite Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, for the proposition that “the theory upon which a case is tried in the-lower court cannot be changed on review.” In Kravis, where there was a full hearing on plaintiff’s claim, the theory upon which the plaintiff sought to recover on review was neither pleaded nor argued in the trial court. The court stressed that to permit a change of theory on review may prejudice the defendant where the defendant has presented arguments in the trial court based on the issues raised therein and not upon issues that plaintiff would attempt to raise on review. Additionally, defendant may have presented different evidence if plaintiff had advanced in the trial court the theory he has advanced on review. In the case at bar, plaintiff did not include the “submission” theory in his complaint. However, during argument on defendants’ motion for judgment, plaintiff’s attorney recited the pertinent portion of the exclusive listing contract, including part (c), and argued that the evidence showed that the property was submitted to Galas, the ultimate purchaser. Also, because defendants have not yet presented any evidence, any prejudicial effect of entertaining the “submission” theory on review is minimized for, on remand, defendants may present evidence to rebut such theory. We therefore find this case to be distinguishable from Kravis. Moreover, plaintiff points out that defendants’ argument in this regard was not brought out in the appellate court until the filing of a petition for rehearing, and this fact is not refuted by defendants.

Consequently, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE RYAN,

specially concurring:

While I concur in the result reached by my colleagues, I do not agree with the discussion in the opinion concerning a prima facie case. In my opinion, in a nonjury trial, in passing on a motion by the defendant at the close of the plaintiff’s case under section 64(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 64(3)), the court does not consider whether or not the plaintiff has made out a prima facie case. The court, instead, must view the case in the same manner as it would have had the defendant rested at the close of the plaintiff’s case. The court is not concerned in either situation whether the plaintiff has offered some evidence as to each element necessary to support recovery. The court, as the trier of fact, must weigh the evidence, consider the credibility of the witnesses, and determine whether the plaintiffs case is supported by the preponderance or greater weight of the evidence. If it is not, the court should grant the defendant’s motion regardless of whether or not the plaintiff has made out a prima facie case.

In Jackson v. Navik (1976), 37 Ill. App. 3d 88, cited in the majority opinion, the appellate court inferentially questioned the advisability of using the term “prima facie case” in connection with a defendant’s motion under section 64(3) of the Civil Practice Act and noted that under Federal Rule of Civil Procedure 41(b) a judge may grant a motion for dismissal of a nonjury case at the close of the plaintiffs evidence, even where such evidence is sufficient in quantum and quality to make out a prima facie case. (Jackson v. Navik (1976), 37 Ill. App. 3d 88, 91. See also 5 J. Moore, Federal Practice sec. 41.13(4), at 41 — 193 (1979).) In C. Wright & A. Miller, Federal Practice and Procedure, Civil, sec. 2371 (1971), it is stated that in passing on a defendant’s motion under Federal Rule 41(b), the court is not to concern itself with whether plaintiff has made out a prima facie case. In Ellis v. Carter (9th Cir. 1964), 328 F.2d 573, the court stated that a court sitting without a jury is not required to deny a motion to dismiss at the close of the plaintiff’s case even if the evidence, viewed in the light most favorable to the plaintiff, makes out a prima facie case, if, from the record, the court is convinced that the evidence preponderates against the plaintiff.

I would eliminate all reference to the term “prima facie case” in discussing the determination of a motion by the defendant at the close of the plaintiff’s case under section 64(3) of the Civil Practice Act. If used in that context, the term obviously cannot have the meaning that it customarily conveys, and its use in connection with such a motion will only perpetuate the confusion alluded to in Jackson v. Navik.