author: MR. JUSTICE RYAN

text:
    (No. 51403.
    KREIDER TRUCK SERVICE, INC., Appellee, v. HENRY AUGUSTINE et al., Appellants.

      Opinion filed September 19, 1979.

    Wiseman, Shaikewitz, McGivem & Wahl, of Alton, Dennis McGrady, of Gillespie, Charles Wesley, of Waynesville, and Robert Droste, of Mt. Olive, for appellants.
    Hoagland, Maucker, Bernard & Almeter, of Alton (Robert B. Maucker and Al J. Pranaitis, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This case involves the question of the liability of a certificated interstate motor carrier who had leased trucks from an owner for use in interstate hauling. The accident, out of which the claims arose, occurred while the trucks were being used by the owner-lessor for its own use in purely intrastate hauling.

The plaintiff in this action, Kreider Truck Service, Inc., the lessee, filed suit in the circuit court of Madison County seeking a declaratory judgment as to its liability for injuries arising out of the accident. The trial court held that liability did not attach to Kreider despite the fact that the trucks involved had been leased to Kreider and had Kreider’s name and Interstate Commerce Commission numbers displayed on them. On appeal, the appellate court, with one justice dissenting, affirmed and ruled that the vicarious liability doctrine of Schedler v. Rowley Interstate Transport Co. (1977), 68 Ill. 2d 7, did not apply to trucks operating at the time of an accident solely in intrastate rather than interstate commerce. The court further ruled that Kreider had no common law liability because neither it nor its agents had been operating the vehicles at the time of the accident. (64 Ill. App. 3d 576.) We granted a petition for leave to appeal.

On September 11, 1973, a tractor-trailer unit owned by Mary Pfister, who was operating her deceased husband’s trucking business, collided with a shift-workers’ bus. The collision occurred because a very dense early morning fog had severely reduced highway visibility. Immediately after this collision the driver of a second truck in a three-truck convoy of Pfister-owned trucks parked his vehicle nearby to aid the accident victims and to set warning flares. Before the flares could be set, however, as the third Pfister-owned truck reached the accident scene, it crashed into a truck approaching from the other direction.

Some months prior to the accidents, Mary Pfister had renewed leases on these three Pfister-owned trucks that her husband had earlier entered into with Kreider Truck Service, Inc. The leases were for one year and were renewable. Thus, at the time of the crash, the three trucks were leased to Kreider, whose name and Interstate Commerce Commission (ICC) numbers appeared on all three trucks. By the terms of the leases, Pfister paid her own employees to drive the trucks, provided all maintenance, and covered all operating expenses. The record indicates that Pfister operated the trucks for Kreider exclusively in interstate commerce pursuant to Kreider’s ICC permit.

Under an oral agreement, Pfister reserved the right to use the trucks for her own purposes whenever Kreider had no need for the trucks. When she used the trucks for these purposes, she used them exclusively in intrastate commerce pursuant to her own Illinois Commerce Commission certificate. She did not have an ICC permit. When the Pfister trucks were used in interstate hauling, they operated under Kreider’s ICC permit. These trucks had not been used to haul anything for Kreider for several days; however, Kreider’s name and ICC permit numbers, which had been painted on the doors of the trucks, had not been removed or covered. At the time of the accident the trucks were going to a quarry in Illinois to load limestone which was to be hauled solely intrastate, and the hauling would be done for Pfister and not for Kreider.

Under part II of the Interstate Commerce Act (49 U.S.C. sec. 301 et seq.) the Interstate Commerce Commission is authorized to prescribe regulations governing the use, by certificated carriers, of vehicles owned by others. (49 U.S.C. sec. 304(e).) Pursuant to this authority the Commission promulgated regulations relating to “Lease and Interchange of Vehicles.” (49 C.F.R. pt. 1057 (1978).) Relevant to our case is section 1057.4, entitled “Augmenting equipment,” which authorizes carriers to perform transportation with equipment they do not own. However, this section requires that the contract or lease of the equipment must be in writing and must specify its duration, which shall be for not less than 30 days with certain exceptions. A copy of the lease or contract must be carried in the vehicle. Section 1057.4(a)(4) states that, except for circumstances not relevant here, the lease “[s]hall provide for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement.” Section 1057.4(b) provides:

“When possession of the equipment is taken by authorized carrier *** said carrier *** shall give to the owner of the equipment *** a receipt specifically identifying the equipment and stating the date and the time of day possession thereof is taken; and when the possession by the authorized carrier ends; it or its employee or agent shall obtain from the owner of the equipment *** a receipt specifically identifying the equipment and stating therein the date and the time of day possession thereof is taken.” (49 C.F.R. sec. 1057.4(b) (1978).)

Section 1057.4(d)(1) provides:

“The authorized carrier operating equipment under this part shall remove any legend, showing it as the operating carrier, displayed on such equipment, and shall remove any removable device showing it as the operating carrier, before relinquishing possession of the equipment.” 49 C.F.R. sec. 1057.4(d)(1) (1978).

Though the written lease between Pfister and Kreider did not explicitly mention either the “receipt” (sign-off) or “identification” regulations, the parties had orally agreed that Pfister’s employees were to conceal Kreider’s name and ICC numbers whenever the trucks were not operating on Kreider’s business. Pfister provided removable panels for this purpose. At the hearing on this case, both Kreider and Pfister indicated that Pfister’s employees generally complied with the concealment requirement. No specific sign-off procedure had been established. On the day of the accident, although the three trucks were operating solely on Pfister’s intrastate business, Kreider’s name and number had not been concealed. Pfister’s drivers later testified that they had been rushed on the morning of the accident and had merely forgotten to attach the panels. Also, no sign-off had occurred which would have indicated that Kreider had surrendered possession to Pfister. Both of Pfister’s surviving drivers made statements at the accident scene indicating that Kreider and not Pfister owned and operated the trucks.

It is Kreider’s position that since the trucks were being operated solely intrastate and not interstate, the rules of the Interstate Commerce Commission do not apply. Kreider also argues that since the trucks at the time of the accident were not being driven on Kreider business but for Pfister, the drivers were thus not employees or agents of Kreider and liability could not be imposed upon it under respondeat superior.

Although the public franchise doctrine, as stated in section 428 of the Restatement (Second) of Torts (1965) applies to motor carriers, problems have arisen in applying the principles of agency to the interstate aspect of the trucking industry. The ownership of trucks by independent contractors who entered into term leases or trip leases with ICC certificated carriers, and the multiple use of these trucks in both interstate and intrastate commerce by both the owner and the lessee made it difficult to determine who had control or possession of a truck at any given time for the purpose of determining liability for injury and damages arising from accidents.

To remedy this uncertainty the ICC regulations referred to above were adopted. On the basis of these regulations courts have developed a form of vicarious liability, placing responsiblity upon an ICC certificated carrier who has leased a vehicle from an owner, and who has failed to comply with the provisions of the above-quoted regulations, which impose certain responsibilities upon the carrier at the termination of the lease. Thus, in Schedler this court conclusively presumed that since the lessee’s name and permit number had not been removed from the vehicle or concealed, as required by section 1057.4(d)(1), it was, at the time of the accident, being operated for the lessee.

The appellate court acknowledged that under the law, as stated in Schedler, if the equipment in our case were being operated in an activity related to interstate commerce at the time of the collision, the ICC regulations would have been applicable and the lessee, Kreider, would have been liable for the negligence of the independent contractor, Pfister. The appellate court held, however, that the ICC regulations were not applicable because the vehicles were being used exclusively in intrastate commerce and were not being operated in the furtherance, in any way, of Kreider’s business. 64 Ill. App. 3d 576, 580.

Under the ICC regulations the contract or lease must be for a fixed period of time not less than 30 days, and the regulations require that the lease or contract shall provide for “the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement.” 49 C.F.R. sec. 1057.4(a)(4) (1978).

Under Schedler, it is not necessary to decide the troublesome agency questions such as “employee or independent contractor,” “scope of employment,” “frolic or detour,” and “borrowed employees” in determining liability. It is necessary only to consider the simple question of whether the lease had been terminated and possession surrendered in the manner provided in the regulations; that is, by the lessee taking a receipt from the owner (sec. 1057.4(b)) and by removing from the vehicle the lessee’s identification showing it to be the operating carrier (sec. 1057.4(d)(1)). The problems confronted in determining whether an activity constitutes interstate or intrastate commerce are just as perplexing as, and produce uncertainty similar to, those involved in the question of agency. We see no reason why the simple rule of Schedler should not be applied in the resolution of the uncertainty of the interstate-intrastate question. When the lessee takes possession under the lease and places its identification on the equipment as required by section 1057.4(d), the provisions of the ICC regulations place upon the lessee exclusive possession and complete responsibility, which remain until possession is surrendered and the identification legend of the lessee-carrier is removed. The lessee-carrier, by entering into the lease and placing its identification on the vehicle, has vested the owner-lessor with authority to transport commodities in that vehicle in interstate commerce. That authority continues during the duration of the lease, until possession is surrendered and the identification removed. Likewise, the responsibility of the lessee who vested the owner-lessor with this authority must remain until possession is surrendered in the manner provided in the regulations. (See Cox v. Bond Transportation, Inc. (1969), 53 N.J. 186, 249 A.2d 579.) To permit a shifting of responsibility from lessee to owner and back to lessee, depending upon in whose business the vehicle is being used, without the execution of the required receipts when possession changes and without removing the carrier’s identification number could lead to an abuse of the privilege granted by the permit and undermine the effectiveness of the regulations in accomplishing the purpose for which they were adopted.

In discussing this loose arrangement between Kreider and Pfister, whereby the vehicles would be used in Kreider’s business or in Pfister’s depending upon the need, we express no opinion as to the validity of such an arrangement. That question is not before us. We point out, however, a 1976 question and answer ruling of the Commission:

“Question 21. [If carrier A leased the vehicle from an owner-operator for 30 days or more, may it ‘sublease’ back to that owner-operator to enable the latter to perform an exempt agricultural movement in the latter’s name?]
Answer: Intermittent use of equipment under a long term lease by the lessor and lessee is permissible if the carrier engages in authorized transportation of household goods. See Section 1057.4(a)(4)(ii). In all other situations, the turning back of equipment by the lessee to the lessor, whether it is called a ‘sublease’ or merely an arrangement for use, is viewed as a termination of the lease by mutual consent. If termination comes before the expiration of the minimum 30-day period there results a violation of the 30-day minimum requirement.” (Ruling No. 126, “Leasing and Interchange of Motor Vehicles,” 2A Fed. Carr. Rep. (CCH) par. 25, at 126 (1976), 41 Fed. Reg. 46,438 (1976).)

Because the ICC regulations concerning the giving of a receipt and concealing the carrier’s name and permit number upon the surrender of possession were not complied with, we hold that the obligations of complete responsibility, placed upon Kreider by the regulations when he entered into the lease and took possession, continued and existed at the time of the accident in question in this case. We therefore reverse the judgments of the appellate and circuit courts.

Judgments reversed.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    (No. 51135.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. FENIX SHIELDS, Appellee.

      Opinion filed September 19, 1979.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr, Margaret K. Stanton, and Lee T. Hettinger, Assistant State’s Attorney, of Chicago, of counsel), for the People.
    Ralph Ruebner, Deputy Defender, and Randy K. Johnson, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The defendant, Fénix Shields, was indicted for the offenses of aggravated battery and attempted murder, alleged to have been committed on May 25, 1976, when the defendant stabbed his brother-in-law with a knife. After certain proceedings in the circuit court of Cook County, the trial judge ordered the indictment dismissed. On appeal, the State contended that the dismissal was improper because it was not based upon permissible statutory grounds. (Ill. Rev. Stat. 1975, ch. 38, par. 114 — 1.) The appellate court, with one dissent, affirmed. (60 Ill. App. 3d 493.) It held that a continuance of the case would have deprived the defendant of a prompt trial, thereby denying him due process. We granted the State leave to appeal.

Defendant concedes that the trial judge improperly dismissed the indictment, that there was no statutory basis for the dismissal, and that the appellate court erred in holding that the dismissal was necessary to preserve the defendant’s right to a prompt trial. Nevertheless, the defendant requests that we affirm the judgment of the appellate court for reasons not advanced in that court’s opinion. He maintains that a reversal would place him in double jeopardy, in violation of both the Illinois and Federal constitutions (Ill. Const. 1970, art. I, sec. 10; U.S. Const., amends. V, XIV) and the statutory bar against prosecution (Ill. Rev. Stat. 1975, ch. 38, par. 3 — 4(a)(3)).

A precise description of the procedural context in which the indictment was dismissed is necessary for an understanding of the defendant’s double jeopardy claim. The defendant was arraigned on June 30, 1976, at which time he pleaded not guilty. No jury waiver was entered. Discovery proceeded routinely. The case was continued four times: twice on the defendant’s motion, once on the State’s motion, and once by agreement.

At the commencement of proceedings on December 2, 1976, defense counsel informed the judge that the complainant (defendant’s brother-in-law) had telephoned him the day before, indicating that he would like the charges dropped. The defense counsel began to mention a hospital bill when the judge inquired if the defense counsel was suggesting that the State nol-pros the charges. The defense counsel responded that he was referring either to a nolle prosequi or to a dismissal of the case. The judge stated that a conference would have to be held before he would permit the State to enter a nolle prosequi. Immediately thereafter, the judge had the defendant placed under oath and advised him that, although the defendant would not have to accept the result of the conference, he would no longer be entitled to move for a substitution of judges.

Following a short recess, the judge and the defense counsel discussed a monetary settlement regarding the reimbursement of the complainant for his hospital expenses. After another recess and a series of discussions held off the record, the judge directed that the case proceed to trial. When the State responded that it was not ready for trial, the judge dismissed the case. The State immediately sought to establish, for the record, its position that its witnesses were not present and that it was not answering ready for trial. The judge, disputing the State’s position, ordered the complainant to be placed under oath. Over the State’s objection, the complainant stated his name, that he was ready for trial and that he “would rather get it over with.” After the prosecutor restated his position for the record, the judge reproached the State for its unwillingness to dispose of the matter in accordance with the wishes of the complainant, and reiterated that the case was dismissed. The proceeding concluded with the State noting for the record that no evidence had been heard.

The protections against double jeopardy are triggered only after an individual has been subjected to the hazards of trial and possible conviction. In criminal proceedings — whether the trier of fact is a jury or a judge — “courts have found it useful to define a point *** at which the constitutional purposes and policies are implicated by resort to the concept of ‘attachment of jeopardy.’ ” (Serfass v. United States (1975), 420 U.S. 377, 388, 43 L. Ed. 2d 265, 274, 95 S. Ct. 1055, 1062.) Generally, jeopardy is said to attach in a jury trial when a jury is impaneled and sworn (Crist v. Bretz (1978), 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156) and in a nonjury trial when the first witness is sworn and the court begins to hear evidence. (We note that the United States Supreme Court has recently stated that “[i]n nonjury trials jeopardy does not attach until the first witness is sworn” (Crist v. Bretz (1978), 437 U.S. 28, 37 n.15, 57 L. Ed. 2d 24, 32 n.15, 98 S. Ct. 2156, 2161 n.15), but, in so declaring, cited a case in which it states, “In a nonjury trial, jeopardy attaches when the court begins to hear evidence” (Serfass v. United States (1975), 420 U.S. 377, 388, 43 L. Ed. 2d 265, 274, 95 S. Ct. 1055, 1062).) For the purposes of this opinion, we regard the point at which the first witness is sworn and the point at which the court begins to hear evidence as being the coincident point at which trial commences. See Annot., When Does Jeopardy Attach in a Nonjury Trial?, 49 A.L.R.3d 1039 (1973). Also see Ill. Rev. Stat. 1975, ch. 38, par. 3 — 4(a)(3), and corresponding annotation, Ill. Ann. Stat., ch. 38, par. 3 — 4, Committee Comments, at 216 (Smith-Hurd 1972).

The record herein plainly indicates that the judge dismissed the case, albeit erroneously, even before he had the complaining witness placed under oath. Apparently believing that the State was callously prosecuting such a case, and knowing that the State was neither ready nor willing to proceed, the judge directed that the case proceed to trial, and then dismissed the case when the State objected. Obviously, the trial had not commenced. The defense counsel, in oral argument in this court, concedes that jeopardy had not attached at that point, but maintains that the judge did not ultimately dismiss the case until after the State had argued against dismissal and after the complaining witness had been sworn. We disagree. Our reading of the record indicates that, at the point to which defense counsel refers, the judge was merely repeating, at the State’s behest, the disposition of the matter.

Were we to agree, arguendo, with defendant, that the case was not dismissed until the culmination of the proceedings on December 2, we would still hold that jeopardy had not yet attached. Proceedings preliminary to trial do not constitute jeopardy. (People v. Webb (1968), 39 Ill. 2d 146, 149 (suppression hearing); People v. Chatman (1967), 38 Ill. 2d 265, 269-70 (probable cause hearing); 21 Am. Jur. 2d Criminal Law sec. 177 (1965).) Witnesses are often sworn and testimony taken to resolve matters preliminary to trial. Consequently, the swearing in of a witness and the taking of testimony during preliminary proceedings do not place defendant in jeopardy of conviction. Here, the complaining witness was not sworn within the context of a trial. The judge had the witness sworn, not to attest to the defendant’s guilt or innocence, but to substantiate for the record that the State’s principal witness was ready for trial and eager to have the case disposed. Because the defendant has not yet been placed in jeopardy of conviction, we find his double jeopardy claim to be without merit.

For the reasons stated, we reverse the judgments of the appellate and circuit courts and remand the cause to the circuit court of Cook County for further proceedings.

Judgments reversed; cause remanded.


text:
    (No. 51486.
    ANN YOST, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Bekins Van Lines, Appellee).

      Opinion filed September 19, 1979.

      Scheele, Murphy 8c Serkland, Ltd., of La Grange (A. G. Scheele and James C. Serkland, of counsel), for appellant.
    Dowd, Dowd & Dowd, Ltd., of Chicago (Joseph V. Dowd and Philip J. McGuire, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Claimant, Ann Yost, filed an application for adjustment of claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), seeking compensation from her employer, Bekins Van Lines. The arbitrator found that the claimant’s accident of November 5, 1975, did not arise out of and in the course of her employment. The Industrial Commission affirmed, and the circuit court of Cook County confirmed the Commission’s decision. Here, the claimant contends that her injury, sustained during an authorized coffee break, must be held, as a matter of law, to have arisen out of and in the course of her employment.

The facts are not in dispute: claimant was the only witness to testify in the hearing before the arbitrator. She related that, on November 5, 1975, she was employed by Bekins Van Lines as a clerk typist in the safety department. During the morning, the claimant purchased a tin of candy from a fellow employee who was selling it on the premises as part of a Boy Scout charity drive. The employer, by custom and practice, had allowed employees to solicit for charity on the premises. At about 2:45 p.m., the claimant took the candy with her on her afternoon coffee break. In the lunchroom provided by the employer, she began to open the candy tin with the key attached to it. When the key slipped off the tin, she tried to pry the lid open. In the process, the lid lacerated her right thumb and hand.

In an effort to embellish this appeal with a question of law, the claimant contends that injuries resulting from reasonable conduct during an authorized coffee break are compensable as a matter of law. This position discounts the clear possibility that the Commission concluded that the claimant’s attempt to pry open the lid of the candy tin was not reasonable conduct. We may not disregard the decision of the Commission merely because the facts here are undisputed. It is well within the province of the Commission to draw inferences from undisputed facts to determine whether injury resulted from conduct which unreasonably or unnecessarily increased the risks of injury which attend such employment. (Jewel Companies, Inc. v. Industrial Com. (1974), 57 Ill. 2d 38, 43; Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272, 275.) When the Commission’s decision is based upon such permissible inferences, we will disturb it only if it is against the manifest weight of the evidence. Malco, Inc. v. Industrial Com. (1976), 65 Ill. 2d 426, 430-31.

The claimant counters that even if her injury resulted from unreasonable conduct, it is compensable because the employer had knowledge of or acquiesced in such charitable solicitations. The critical flaw in this position is that it was not the claimant’s purchase of the charitable item that caused her injury or that constituted the unreasonable conduct. Certainly, the claimant’s attempt to pry open the lid of the candy tin was not the inevitable consequence of permitting charitable solicitations on the premises. Based on the evidence before it, the Commission could reasonably have inferred that the claimant, by choosing to pry open the candy tin, voluntarily undertook the risk of laceration, a risk with which the employer had no connection.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 51642.
    THEODORE A. GRAY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Electrocast Steel Foundry Co., Inc., Appellee).

      Opinion filed September 19, 1979.

      Cornfield & Feldman, of Chicago (Alton Sharpe and . Thomas W. Duda, of counsel), for appellant.
    Kane, Doy 8c Harrington, of Chicago (Arthur O. Kane, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Claimant, Theodore A. Gray, filed a claim with the Industrial Commission under the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1971, ch. 48, par. 172.36 et seq.), on November 10, 1971, alleging disablement resulting from an occupational disease arising out of and in the course of his employment by respondent, Electrocast Steel Foundry Co., Inc. An arbitrator for the Commission denied compensation. The Commission, after hearing additional evidence, affirmed and the circuit court confirmed this decision. Claimant appeals.

At the hearing before the arbitrator, claimant testified on direct examination as follows. On April 16, 1971, while working in respondent’s foundry, he noticed that the dust and smoke were bothering him. Several days later he was coughing hard and had blood in his sputum. He told this to the foreman, who convinced him to work until the end of his shift. He then went to the Billings Hospital emergency room, where he got some shots and fluid. After leaving, he felt worse and was admitted to Louise Burg Hospital, where he spent 18 days in the intensive-care unit under the care of Dr. Chong Paik. He has not returned to work since. He asked the plant superintendent for part-time work in a cleaner environment, but was told he could not work there any more.

Claimant testified further that prior to April 1971 he had worked at the foundry for 17 years as a floor molder, with occasional assignments in the core room. As a molder, his duties were to mix various ingredients into a sand used to line molds for molten steel, then shovel the mixture into a pattern and ram it into place with an air hammer. The mixture he made consisted of silica sand, wood, flour, cornflour, binder, silica, molasses and water. His work area was always smoky and dusty. There were open coke fires, and when molten steel was poured into the molds, sometimes only six feet away from claimant, smoke and steam would rise from the molds.

Claimant also testified that in 1962 or 1963 he experienced pains in his chest and dizziness and spit up blood. He was admitted to Louise Burg Hospital and was absent from work for 47 weeks. In January 1971 he went to Billings Hospital, after which he missed three or four months of work, and he was hospitalized in November 1971, January 1972, and November 1972. He now weighs 105 pounds; when he was hired at the foundry he weighed 145 pounds. He had no breathing problems when hired; he now has chest pains, cough, dizziness and weakness. He has difficulty climbing stairs, carrying anything or breathing in a supine position.

On cross-examination, claimant testified that at Louise Burg Hospital in 1962 or 1963 his condition was diagnosed as bronchiectasis. Later the company doctor also diagnosed bronchiectasis, and the doctors at Billings Hospital made the same diagnosis. The doctors also told him several times over these years that he had pneumonia. He testified that he was smoking when he was hired and that he smoked one pack and two packs a day at different periods up to 1971.

Claimant introduced voluminous medical records from Louise Burg Hospital going back to 1963 and from Billings Hospital from 1971. The records establish that claimant was repeatedly hospitalized, tested and treated for lung complaints, and that over the years his condition was repeatedly diagnosed as bronchiectasis and that it was more than once diagnosed as pneumonia. The records contain numerous personal histories given by claimant, indicating, among other things, that he had pneumonia in 1953, 1964 and 1965, and that he smoked two packs of cigarettes a day for 30 years.

Dr. Abel Froman testified on claimant’s behalf at the hearing before the arbitrator. He examined claimant in June 1972. His clinical examination revealed coughing, wheezing and shortness of breath which he felt were chronic. He took chest X rays that showed infiltration, fibrosis and scarring of the lungs. He noted that such infiltration and fibrosis can be produced by the inhalation of silica, but that an occupational history is necessary for such a diagnosis. On the basis of a hypothetical question incorporating claimant’s testimony, Dr. Froman gave the opinion that claimant was suffering from silicosis induced by his working conditions.

Respondent introduced the report of Dr. Harold Steinberg dated March 16, 1972. Dr. Steinberg noted claimant’s occupational history, his medical history of bronchiectasis and pneumonia and his smoking. The clinical examination revealed shortness of breath and crackling rales. Dr. Steinberg took X rays that showed changes in the lungs indicative of emphysema, but no discrete nodulation or increased linear fibrosis, such as one would see with silicosis. Based on the clinical history of repeated bronchial and pulmonary infections and the long period of heavy smoking, Dr. Steinberg concluded that claimant had bronchiectasis and emphysema; he found the X rays consistent with this diagnosis, and concluded that there was no causal connection between the disease and claimant’s occupation.

The arbitrator denied compensation, finding that “Petitioner failed to prove that he was exposed to the hazards of an Occupational Disease as defined in the [Workmen’s Occupational Diseases] Act.” Claimant appealed to the Commission, contending that “the Arbitrator erred in denying compensation.”

At the hearing on review, claimant offered additional hospital records, dating from 1974 and 1975, and called an additional witness, Dr. George W. Holmes. Dr. Holmes examined claimant in May and June of 1975. Clinical examination revealed pulmonary fibrosis and pulmonary emphysema and an electrocardiogram revealed P waves suggestive of pulmonary disease. Dr. Holmes stated that the etiology of the disease would depend on claimant’s history. When given a hypothetical question incorporating claimant’s occupational history, Dr. Holmes gave his opinion that the disease was secondary to claimant’s exposure to silica, gases, dust and smoke at his job. On cross-examination, Dr. Holmes agreed that smoking, pneumonia and bronchiectasis, as well as occupational conditions, caused the pulmonary fibrosis.

As earlier indicated, the Commission affirmed the decision of the arbitrator denying compensation. In the circuit court, counsel for claimant argued the issue was not the correctness of the Commission’s action denying compensation, but whether the finding of the arbitrator that claimant had not proved exposure to the hazards of an occupational disease was error. Counsel urged that if this finding was against the manifest weight of the evidence, the court must reverse the Commission’s decision. The court clearly agreed that the finding of no exposure was incorrect but noted that aggravation of an ordinary disease of life by occupational conditions was not compensable under the Workmen’s Occupational Diseases Act until its amendment effective in 1975. (Ill. Rev. Stat. 1975, ch. 48, par. 172.36(2)(d).) The court found that claimant’s condition was traceable to pneumonia and bronchiectasis aggravated by exposure to industrial hazards, and concluded that, under the statute in effect in 1971, the Commission’s decision was not contrary to the manifest weight of the evidence.

Claimant argues here, also, that the sole issue is the correctness of the arbitrator’s finding of no exposure, urging that, if that finding is against the manifest weight of the evidence, the Commission’s decision denying compensation must be reversed. We do not agree.

The jurisdiction of the Commission to review the evidence taken before the arbitrator and to consider any further evidence properly presented to it is original as opposed to appellate jurisdiction. Such a review is neither a trial de novo nor simply a review of the record, but is sui generis. (Meade v. Industrial Com. (1971), 48 Ill. 2d 215, 220-21.) The Commission is not bound by the arbitrator’s findings; it must consider all evidence presented to it and to the arbitrator in reaching a decision. (Leason v. Industrial Com. (1973), 55 Ill. 2d 486, 493-94. See also Master Leakfinding Co. v. Industrial Com. (1977), 67 Ill. 2d 517.) Assuming that the arbitrator’s finding of no exposure was error, therefore, we cannot assume that the Commission’s affirmance of his decision was bottomed on this erroneous finding. The issue before the Commission was, in claimant’s own words, whether “[t] he Arbitrator erred in denying compensation.” The Commission considered the record, heard additional testimony, and concluded that the arbitrator had not erred in denying compensation. If claimant wished the Commission to make a special finding on the correctness of the arbitrator’s finding of no exposure, he could have submitted such a request in writing. (Ill. Rev. Stat. 1971, ch. 48, par. 172.54(e).) The Commission was not required to make such a special finding, however (Ill. Rev. Stat. 1971, ch. 48, par. 172.54(e)), and having failed to request one, claimant cannot now complain of its absence.

Furthermore, under section 19(f)(1) of the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1971, ch. 48, par. 172.54(f)(1)), the circuit court reviews all questions of law and fact presented by the record. (Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 261-62.) The trial judge here considered the entire record and heard the arguments of counsel. The judge indicated that-he disagreed with the arbitrator’s finding of no exposure but that on his view of the record claimant suffered from a noncompensable ordinary disease of life aggravated by occupational conditions. Our review of the record indicates ample support for this conclusion in the conflicting medical testimony. The medical records introduced by claimant, the report of Dr. Steinberg introduced into evidence, and the testimony of Dr. Holmes on cross-examination all support the view that claimant’s long history of pneumonia and bronchiectasis caused, at least in part, the pulmonary fibrosis that all the experts diagnosed. We cannot say, therefore, that the trial court erred or that the decision of the Commission was against the manifest weight of the evidence.

Claimant argues that the diagnoses and personal histories contained in the medical records admitted into evidence may not be considered by the Commission or a reviewing court. He urges that such matters are hearsay not covered by the statutory hearsay exception in section 16 of the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1971, ch. 48, par. 172.51), under which the records were admitted. The statute provides:

“The records kept by a hospital, certified to as true and correct by the superintendent or other officer in charge, showing the medical and surgical treatment given an injured employee in such hospital, shall be admissible without any further proof as evidence of the medical and surgical matters stated therein, but shall not be conclusive proof of such matters.”

Claimant contends that only the “nature, scope and degree of medical treatment” come within this provision, but cites no authority for this proposition.

We note first that damaging statements in the records made by claimant in giving personal histories, such as those regarding his smoking habits, are hearsay exceptions as admissions against interest. (Cuneo Press Co. v. Industrial Com. (1930), 341 Ill. 569, 572.) We note further that, when the records were introduced at the hearing, counsel for claimant expressly withdrew any section 16 restrictions on their contents and offered them in to to. While the statute contains no indication that diagnoses in hospital records, which would appear to be an integral part of treatment, do not constitute “medical and surgical matters stated therein,” we need not decide that question. We hold only that where claimant has not objected at the hearing and indeed has expressly withdrawn any restrictions on the admissibility of the records, he cannot first raise a hearsay objection to their contents in this court.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    (No. 51549.
    KENNETH LONG, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Alva C. Davis Drilling Co., Appellant).

      Opinion filed September 19, 1979.

      Keefe & De Pauli, P.C., of East St. Louis, for appellant.
    Hanagan 8c Dousman, of Mt. Vernon, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Kenneth Long filed an application for adjustment of a workmen’s compensation claim against his employer, Alva C. Davis Drilling Co., claiming an aggravation of a preexisting back condition. It was alleged that the accidental injury occurred on January 26, 1974.

The arbitrator found that Long had failed to prove that he sustained an accidental injury arising out of and in the course of employment by the respondent, or that the condition of ill-being is related to his employment. The Industrial Commission affirmed the arbitrator’s decision; however, the circuit court of Wayne County reversed the Industrial Commission, finding that the decision was against the weight of the evidence. The court remanded the cause to the Industrial Commission to make a finding on the extent of compensation for temporary total disability or permanent residual disability and for medical expenses. Pursuant to this order, the Industrial Commission awarded compensation and the circuit court confirmed the award. The amount of the award or the nature and extent of the disability are not in dispute in this case. The question involved is whether Long established that he sustained an accidental injury arising out of and in the course of the employment and whether the condition of ill-being is related to his employment.

Long had a history of back trouble. In 1960 and again in 1961 he had surgery for his back condition. On January 9, 1974, while operating his own truck (not related to his employment), he slipped off his truck and fell on the ice. He immediately reported to the emergency room of the hospital, where he was seen by his family physician. He returned to work on January 16, 1974, and the next day he again saw his doctor for his January 9 injury. The doctor made an appointment for him to see a St. Louis physician on January 28, 1974. Long continued to work for the drilling company until January 26, 1974. Long contends that because of the deep mud which he had to walk through on the drilling site, the pain in his back increased. It is the effort exerted in walking through the mud which he claims caused an aggravation of his previous condition.

On January 28 Long kept his appointment with the St. Louis physician, who hospitalized him and called a neurologist in for consultation. Following his examination of the patient, the neurologist felt surgery was indicated and referred Long to two neurosurgeons who performed surgery for a ruptured intervertebral disc on February 20, 1974. He returned to work on March 15, 1974.

The neurologist testified for Long. Although he stated that Long’s pulling his legs through the mud at the drilling site “might be an aggravating injury,” he said that, most likely, the injury was caused by the fall on January 9, 1974. An orthopedic surgeon testified for the employer. He had examined Long on April 9, 1975. In response to a hypothetical question that included the fact that Long had walked through the mud at the drilling site for 7 or 8 days after January 9, 1974, the doctor gave his opinion that the incident on January 9, “might or could have caused injury to such an extent that it would result in the disc problem.” On cross-examination he stated that walking through the mud “may certainly have been a contributing factor to increasing the symptoms and discomfort.”

Long now contends that the last statement by the employer’s witness admitted that the effect of walking through the mud was a contributing factor in the injury. In reading the testimony of these two doctors it is possible to draw inferences from their testimony that walking through the deep mud at the drilling site may have caused an aggravation of his previous injury. It is also possible to draw inferences from this testimony that one of the doctors, or possibly both of the doctors, found that the injury was caused by the January 9, 1974, fall, and that walking through the mud caused pain and discomfort, which had no causal relation to the condition of ill-being which brought about his disability.

We have many times held that resolving conflicts in the evidence, drawing inferences from testimony, and determining credibility of witnesses and the weight to be given to their testimony are matters within the province of the Industrial Commission and this court will not disturb the Commission’s finding unless against the manifest weight of the evidence. In Health & Hospitals Governing Com. v. Industrial Com. (1978), 72 Ill. 2d 263, 274, this court stated: “The Commission is in the best position to resolve conflicts in the evidence, and we will not set aside its findings if based on reasonable inferences.” Also, this court stated in County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 19: “The Commission is entitled to draw reasonable inferences from both direct and circumstantial evidence. This court will not disregard those permissible inferences merely because other inferences might be drawn.”

Cases involving aggravation of a preexisting condition concern primarily medical questions and not legal ones. Therefore, a finding of fact by the Commission on this issue, based on any medical testimony or on inferences to be drawn from medical testimony, should be given substantial deference because of the expertise acquired by the Commission in this area. (See 1 A. Larson, Workmen’s Compensation sec. 12.20, at 3 — 316 to 3 — 329 (1978).) We cannot say that the Commission’s determination is against the manifest weight of the evidence, and therefore the trial court erred in reversing the order of the Industrial Commission. The judgment of the circuit court of Wayne County is reversed and the award is set aside.

Judgment reversed; award set aside.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 51621.
    JERRY GRAHAM, Appellee, v. THE ILLINOIS RACING BOARD, Appellant.

      Opinion filed September 19, 1979.

      William J. Scott, Attorney General, of Springfield (Paul J. Bargiel, Patricia Rosen, and Edward M. Kay, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Kenneth R. Siegan, of Chicago (J. Graham Carpió and Joel D. Weisman, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, the Illinois Racing Board, appealed from the order of the circuit court of Cook County enjoining and restraining it from proceeding with any hearing against the plaintiff, Jerry Graham, “utilizing any tests or specimens involved in this instant chancery action.” Pursuant to Rule 302(b) (58 Ill. 2d R. 302(b)), we allowed defendant’s petition for direct appeal to this court.

In his original complaint, filed December 15, 1978, plaintiff alleged in count I that he was in the business of owning, training, and driving harness racing horses. He alleged further that the Board, pursuant to statutory authority (Ill. Rev. Stat. 1977, ch. 8, par. 37 — 9(b)), had promulgated the following rules:

“Rule 21.13. Every race track operator shall provide a suitable detention bam where the specimens provided for in Rule 21.12.a can be taken under the direction of the state veterinarian. Such detention bam shall satisfy standards prescribed by the state veterinarian. In addition, every race track operator shall furnish during racing hours a guard whose duty shall be to guard such stall space and such specimens. Such guard shall remain on duty until the specimens have been delivered to the Board laboratory.”
“Ride 21.19. Every owner, trainer, groom, or caretaker, must guard or cause to be guarded each horse owned, trained, or attended by him in such a manner as to prevent any person from administering to such horse any chemical substance in violation of these rules.”

Plaintiff alleged that although he had conformed with the Board’s rules, including Rule 21.19, the Board had violated its Rule 21.13 by not requiring racetrack operators to provide a separate guard to remain on duty until the specimens had been delivered to the laboratory. Plaintiff alleged further that in hearings recently held a chief urine collector for the Board had testified that Rule 21.13 had frequently been violated in that “sign-in” entries were falsely made, and that there were numerous improprieties in the manner in which the samples were collected and delivered; that the Board’s failure to preserve properly the chain of custody of the specimens inadequately protected owners, trainers, and drivers from the possibility of the specimens’ adulteration by other persons and from their being unjustly accused of violations of the Board’s rules.

It was also alleged that despite its failure to comply with its own rule, the Board had charged plaintiff with various rules violations and had scheduled a hearing for December 18, 1978, at which time the Board proposed to introduce testimony, test results, and documents concerning the specimens that were “kept, transported, and delivered” in violation of Rule 21.13. Plaintiff alleged that if the Board held its hearing he would be irreparably harmed in that his reputation and earning capacity would be severely damaged; that he had no adequate remedy at law; and that the Board would suffer no injury should an injunction issue. In his prayer for relief plaintiff sought a preliminary injunction ordering the Board to comply with Rule 21.13, a temporary restraining order enjoining the Board from proceeding with any hearing involving the alleged existence of drugs in horses, a preliminary injunction enjoining the Board from proceeding with a hearing involving the alleged existence of drugs in plaintiff’s horses, a temporary restraining order enjoining the Board from utilizing as evidence any specimen taken where a guard was not present from the time it was collected until the time it was delivered to the laboratory, and a hearing to determine whether the evidence intended to be used by the Board was illegally gathered. Plaintiff also prayed that upon a final hearing the injunctions should be made permanent.

In count II plaintiff incorporated the allegations of count I, adding that the Board would not be harmed by a postponement of the hearing since the relevant events occurred as long ago as July 1978. The prayer for relief in count II was substantially identical to that contained in count I.

On the day that plaintiff’s complaint was filed, the circuit court ordered that both the Board hearing and the hearing on the temporary restraining order be continued to December 19, 1978. On that date the Board filed amotion to dismiss, asserting that under the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 8, par. 37 — 46; Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) plaintiff had an adequate remedy at law; that plaintiff had failed to show irreparable injury; and that he had failed to state a cause of action upon which relief may be granted. After a hearing the circuit court entered an order denying the Board’s motion to dismiss and issued a temporary restraining order enjoining the Board from proceeding with any hearing against plaintiff. The Board filed notice of interlocutory appeal to the appellate court; after this court allowed the Board’s motion for direct appeal the two appeals were ordered consolidated.

On December 28, 1978, the Board filed its answer to plaintiff’s complaint, denying the material allegations and alleging that any evidence used against plaintiff would be “based upon a nationally recognized, secure procedure for preserving the chain of evidence.” The Board then pleaded as affirmative defenses the same matters that had been raised in its motion to dismiss, adding that the harm caused to the Board and to the public by an injunction would greatly outweigh the harm to plaintiff, and that plaintiff would have an opportunity at the administrative hearing “to cross-examine witnesses regarding the chain of evidence” used to protect the specimens.

■ At the hearing before the circuit court the Board’s executive secretary, a Board chemist, and the two chief urine collectors who had taken the specimens involved, testified as to the procedure employed in collecting and testing the urine samples from plaintiff’s horses. After a race the horse was bathed, watered, and taken to a detention bam attended by a guard. There, a urine taker assigned by his supervisor would, in the presence of the owner, trainer, or his representative, take a urine sample. The sample was then taken to the supervisor, who split the sample into two jars — a “laboratory” sample for testing purposes and “referee” sample for additional use should the test for drugs prove positive. The owner, trainer, or his agent would sign the ticket, indicating that the specimen was taken from his horse. The ticket, which was divided into the upper and lower parts with each containing an identifying number, was cut; the upper part was attached to the “referee” jar, while the lower part (containing the witness’ signature and other pertinent information) was put into an envelope. The blood and urine samples from an entire afternoon or evening of racing were then collected into a metal box; also put into the box were the sealed envelope containing the tickets on all the specimens and a master sheet containing the same information as the

various tickets. The metal box was then locked, with the lock’s combination unknown to the supervisor; a tape seal was also attached to the opening of the box, its number having been recorded on the master sheet inside the box. The box was then taken to the Board laboratory — usually by the supervisor, but occasionally by another Board employee — and put into a locked freezer.

A chemist - laboratory supervisor at the Board’s laboratory testified that, after removing the box from the freezer, the laboratory technician would inspect the box’s exterior to see if the seal were intact and the lock were closed. The box would then be opened and the number on the box’s seal checked against the number on the master sheet inside the box. If it appeared that the box or samples had been tampered with a notation was made on the master sheet. The specimens were then removed and the laboratory samples analyzed.

On January 9, 1979, after the conclusion of the hearing, the circuit court issued a permanent injunction prohibiting the Board from proceeding with any hearing against plaintiff that would utilize the tests or specimens involved in the present case. The court also found that plaintiff had no adequate remedy at law, that he would be irreparably harmed if the injunction were not granted, and that the probability of damage to the Board as a result of the injunction was remote.

Plaintiff had filed an amended complaint on January 4, 1979, and on January 10, 1979, filed a second amended complaint. The amended complaints were substantially identical to the original complaint except for the additional allegation that the Board had violated its Rule 25 — 3B, which provided:

“A guard shall be hired from the Race Track Police to stand watch at the State Detention Barn and to transport samples to the State Testing Laboratories.”

The Board contends that plaintiff’s suit for an injunction was barred by the doctrine of sovereign immunity, that the injunction was improperly granted because of plaintiff’s failure to exhaust his administrative remedies, and that he had failed to satisfy the prerequisites for an injunction. The latter two contentions are different versions of the same basic argument, that equitable relief should not be granted because plaintiff has failed to exhaust the available administrative remedies.

Previous decisions of this court hold that administrative remedies must be exhausted prior to seeking equitable relief except where an ordinance or statute is attacked as unconstitutional in its entirety, where multiple remedies exist before the same administrative agency and at least one has been exhausted, where irreparable harm will result from further pursuit of administrative remedies (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358), or where it would be patently useless to seek relief before the administrative agency (Northwestern University v. City of Evanston (1978), 74 Ill. 2d 80, 88). It is plaintiff’s position that the legal remedy available in this case — suppression at the license revocation hearing of the allegedly improperly preserved evidence — is inadequate. Plaintiff contends that the mere commencement of a hearing at which the Board could attempt to introduce into evidence the disputed specimens would so harm his reputation and livelihood that no remedy at law can be considered adequate.

The Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1977, ch. 8, par. 37 — 1 et seq.) vests the Board with the authority to suspend or revoke the occupation license of any horse owner, trainer, or driver whose work is conducted upon racetrack grounds in this State. (Ill. Rev. Stat. 1977, ch. 8, par. 37 — 16(a).) The Act also provides that any person whose license is suspended or revoked by the Board-appointed stewards or judges (see Illinois Racing Board Rules and Regulations of Harness Racing, Rule 6.11) may request a hearing before the Board. (Ill. Rev. Stat. 1977, ch. 8, par. 37 — 16(c).) The chairman of the Board designates a Board member to act as hearing officer. (Illinois Racing Board Rule A4.04(a).) While the hearing officer is not bound by the technical rules of evidence, the rules of evidence governing nonjury civil proceedings in this State “shall be taken into consideration.” (Rule A4.10(c).) The Board’s rules further allow the admission of all relevant evidence, but hearsay and cumulative evidence may be excluded (Rule A4.10(b)); inadmissible evidence may be excluded on the hearing officer’s own motion or upon the objection of any party (Rule A4.10(e)). A transcript of the hearing is produced and is available for public inspection in the Board’s principal office. (Rule A4.05(a).) At the conclusion of the hearing, the hearing officer may make a recommendation to the Board, which then makes the final decision and issues findings of fact and conclusions of law. The Illinois Horse Racing Act of 1975 provides (Ill. Rev. Stat. 1977, ch. 8, par. 37 — 46) that the Board’s decision is subject to judicial review pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 etseq.).

The Administrative Review Act empowers the circuit court to review the entire record of the administrative proceedings, including all questions of law and fact (Ill. Rev. Stat. 1977, ch. 110, par. 274), and the order or judgment of the circuit court is reviewable by appeal as in other civil cases (Ill. Rev. Stat. 1977, ch. 110, par. 276).

The administrative proceeding and the available judicial review provide ample opportunity to determine the admissibility into evidence of the urine specimens, and we are not persuaded that plaintiff was without an adequate remedy at law. The proceedings commenced against plaintiff by the Board would result in no greater harm to his reputation than that suffered by one required to defend against a criminal prosecution brought lawfully and in good faith. We note further that only rarely will courts of equity enjoin criminal prosecutions. Younger v. Harris (1971), 401 U.S. 37, 43-44, 27 L. Ed. 2d 669, 675, 91 S. Ct. 746, 750; Cleary v. Bolger (1963), 371 U.S. 392, 397, 9 L. Ed. 2d 390, 394, 83 S. Ct. 385, 388; City of Chicago v. Chicago City Ry. Co. (1906), 222 Ill. 560, 570.

Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, and Kalman v. Walsh (1934), 355 Ill. 341, relied upon by plaintiff to support his position, are not in point. In Bio-Medical, the plaintiff was a vendor licensed to participate in the medical assistance (Medicaid) program operated by the Department of Public Aid. The Department, after conducting an audit of the plaintiff’s billing procedures and discovering certain discrepancies, estimated that the plaintiff had been overpaid by about $320,000 from the Medicaid program during an 18-month period. After plaintiff failed to turn over its records, the Department’s auditors recommended that the plaintiff be suspended from participating in the Medicaid program and that action be taken to recover the overpayment. The plaintiff, alleging that the Department lacked the authority to take such action, sought an injunction to restrain the Department’s director from suspending plaintiff from the Medicaid program. The circuit court granted the injunction and we affirmed. Among other defenses raised in that case, the Department claimed that plaintiff had failed to show irreparable harm or an inadequate remedy at law. The court rejected these contentions, noting that the Department did not deny that the source of 90% of plaintiff’s business was Medicaid payments. It could reasonably be inferred, the court said, that the wrongful suspension of the plaintiff from the Medicaid program would cause damages of uncertain magnitude and that a subsequent action by plaintiff for damages would not be as practical and efficient as an action for injunctive relief. 68 Ill. 2d 540, 549.

Although here plaintiff is also threatened with a loss of potential income which may be difficult to assess, unlike the situation in Bio-Medical, statutory authority exists for the Board’s right to suspend or revoke plaintiff’s license as a horse owner, trainer, or driver. Additionally, procedures not available in Bio-Medical are provided to allow plaintiff to refute charges brought against him by the Board.

In Kalman v. Walsh (1934), 355 Ill. 341, several dentists sought to enjoin the dental committee of the Department of Education and Registration from proceeding in a pending hearing to revoke or suspend the plaintiffs’ dentistry licenses. This court found that the notice given to the plaintiffs by the director of the Department did not conform with the statutory requirement that “written charges” alleging violations of the dental surgery act be filed and that the dental committee before whom the charges were to be heard was, therefore, without jurisdiction to hear them. We note, too, that Kalman was decided prior to the enactment of the Administrative Review Act, and the availability of judicial review therein provided would have served to lessen the force of the plaintiffs’ contention that they were without an adequate remedy at law.

We do not agree with plaintiff’s contention that the rules which he charges the Board violated were “administrative decisions” as that term is defined by section 1 of the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264), and therefore subject to judicial review. That section explicitly provides that “The term ‘administrative decision’ or ‘decision’ does not mean or include rules [or] regulations *** issued by an administrative agency to implement, interpret, or make specific the legislation enforced or administered by it unless such a rule [or] regulation *** is involved in a proceeding before the agency and its applicability or validity is in issue in such proceeding ***.” (Ill. Rev. Stat. 1977, ch. 110, par. 264.) Until the Board has conducted a hearing, it can hardly be said that the rules in question were actually involved in a proceeding before the agency.

In view of our conclusion that plaintiff failed to exhaust his administrative remedies we do not consider the other issues briefed and argued by the parties.

For the reasons stated, the order of the circuit court granting an injunction is reversed.

Order reversed.


text:
    (No. 51700.
    DELBERT HUGHEY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Vernois, Inc., Division of Locke Stove Co., Appellee).

      Opinion filed September 19, 1979.

      Hanagan & Dousman, of Mt. Vernon, for appellant.
    Keefe & De Pauli, P.C., of East St. Louis, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On May 22, 1972, Delbert Hughey filed an application for adjustment of his claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1 et seq.) alleging disability resulting from an accidental injury on September 7, 1971, arising out of and in the course of his employment by Vernois, Inc., Division of Locke Stove Co. An arbitrator for the Industrial Commission heard the case in December 1972 and, in an order dated January 29, 1973, found claimant failed to establish “that he sustained an accidental injury arising out of and in the course of his employment by the Respondent” and denied compensation. No review of that decision was sought. Instead, claimant on March 2, 1973, filed a second application for adjustment of claim alleging “repetitive trauma” on April 27, 1972. The same arbitrator heard this case and again found claimant had failed to establish an accidental injury arising out of and in the course of his employment and denied compensation. That decision was affirmed on review by the Industrial Commission. The circuit court of Jefferson County reversed, finding claimant “sustained repetitive injuries resulting in or aggravating a ruptured intervertebral disc, and that such injuries arose out of and in the course of his employment,” and remanded to the Commission for the purpose of determining an appropriate award. The Commission did so, and respondent sought certiorari with the result that the same circuit judge, reversing his earlier position, held that the original action of the arbitrator and Commission in denying compensation had been correct. Claimant has appealed directly here from that judgment pursuant to our Rule 302(a). 58 Ill. 2d R. 302(a).

The dispositive issue is whether the unappealed, and therefore conclusive (Ill. Rev. Stat. 1971, ch. 48, par. 138.19(b)), denial of compensation contained in the January 29, 1973, order of the arbitrator was res judicata as to the later claim. We believe that it was, for the second application for adjustment of claim simply sought to recover, on a different theory, compensation for the same expenses and disability for which recovery was initially sought.

The record before us contains the evidence at the hearings on both applications for adjustment of claims. It indicates that claimant apparently had been employed in respondent’s foundry department at one time but was working in the mounting department in August 1971, when a layoff in that department occurred. Under the plant rules, his seniority was not sufficient to retain his place in the mounting department; it was, however, sufficient to enable him to “bump” an employee in the foundry. The rules gave claimant a 10-day trial period within which to decide whether to stay in the foundry or to accept the layoff, in which event he could secure unemployment compensation.

At the hearing on the first application claimant testified that, while lifting castings in the foundry department on September 7, 1971, he “felt a give in his right back, the hip part there, or lower lumbar,” and slumped down. The assembly line was stopped, he said, until another man took his place. When asked by his foreman whether he wanted to see a doctor, claimant declined. He testified that, after resting 20 or 30 minutes, he returned to work lifting lighter castings even though his back hurt. He further stated that he worked 9 days thereafter, then on the 10th day told the personnel manager that he wanted to see a doctor about his injury and accept the layoff.

Claimant did not consult a doctor until the following May, but did draw unemployment compensation that October, November and part of December. On December 9 he returned to work in the mounting department and continued there until the 16th, when the plant closed for the holidays. He resumed work when the plant reopened in January and continued working until April 28, during which period his back pain kept increasing. He then saw the family doctor, who hospitalized him for X rays and tests, which resulted in the removal of a herniated disc in May. He returned to work August 14, and was still working at the time of the hearing. He testified he was getting stronger although “my leg still bothers me.” It is undisputed that claimant never requested that the company send him to a doctor. It is also admitted that on September 23 he had been in an altercation in which he had given another man “a whaling.” When asked whether his back was injured in the fight, claimant replied, “He never touched me.”

The plant personnel manager denied ever being told by claimant or anyone else that claimant had injured his back at work, but did recall that claimant had told him in their September conversation that he wanted a layoff because his back was hurting him. Claimant’s foreman testified he could recall no complaint by claimant nor any occasion when the assembly line was stopped until a replacement for claimant could be secured.

While the second application for adjustment of claim makes no reference to a September 1971 injury, much of the evidence at the hearings on the two applications, including the medical testimony which consisted solely of the deposition of Dr. William R. Stackable taken after the conclusion of the first hearing, and hospital and medical bills, was identical, as was the disability for which compensation was sought. Although the testimony in the second case dwells at greater length on the aggravation of the September 7 injury by the “repetitive trauma” — the bending, twisting and turning — involved in lifting the castings, it is entirely clear that the cause of action, if any existed, was the same in both instances: a right to compensation for the same hospital and medical expenses incurred in connection with, and the same disability resulting from, the same allegedly employment-related injury — a ruptured disc. Emphasizing different factors as having caused that disability does not transform that cause of action into a new or different one when those factors were all present and, in the exercise of ordinary diligence, could have been known at the time the original claim was filed. It is not suggested that there were available at the time the second application was heard either new witnesses or new evidence not equally available when the first application was heard.

Few rules are more essential or more firmly embedded in our jurisprudence than that of res judicata. It is a judicially created doctrine resulting from the practical necessity that there be an end to litigation and that controversies once decided on their merits shall remain in repose. Its scope has been summarized as follows: “[T] he conclusiveness of the judgment in such case [the prior action] extends not only to matters actually determined, but also to other matters which could properly have been raised and determined therein. This rule applies to every question relevant to and falling within the purview of the original action, in respect to matters of both claim or grounds of recovery, and defense, which could have been presented by the exercise of due diligence.” 46 Am. Jur. 2d Judgments sec. 417, at 585-86 (footnotes omitted). “ ‘*** The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” [Citation.] The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. [Citations.] ’ ” (Sea-Land Services, Inc. v. Gaudet (1974), 414 U.S. 573, 578, 39 L. Ed. 2d 9, 17-18, 94 S. Ct. 806, 812, quoting Commissioner v. Sunnen (1948), 333 U.S. 591, 597, 92 L. Ed. 898, 905-06, 68 S. Ct. 715, 719.) “ ‘*** The doctrine of res judicata embraces not only what has been actually determined in the former suit, but also extends to any other matter which might have [been] raised and determined in it.’ ’’ (La Salle National Bank v. County Board of School Trustees (1975), 61 Ill. 2d 524, 529-30, quoting Harvey v. Aurora & Geneva Ry. Co. (1900), 186 Ill. 283, 294. See also Smith v. Bishop (1962), 26 Ill. 2d 434; Midlinsky v. Rubin (1930), 341 Ill. 378, 386-87; Phelps v. City of Chicago (1928), 331 Ill. 80, 85.) “It is well settled that the doctrine of res judicata extends not only to matters actually determined in the former suit, but also embraces all grounds of recovery, and defense involved and which might have been raised. By assigning new reasons for holding the agreement invalid, which existed at the time that decision was rendered, the parties cannot relitigate the question settled by the prior decree. [Citations.] ” Lee v. Hansberry (1939), 372 Ill. 369, 374-75, rev’d on other grounds (1940), 311 U.S. 32, 85 L. Ed. 22, 61 S. Ct. 115.

The judgment of the circuit court is accordingly affirmed.

Judgment affirmed.


text:
    (No. 51776.
    INTERNATIONAL VERMICULITE COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Thomas H. Grady, Appellee).

      Opinion filed September 19, 1979.

      Henry D. Noetzel & Associates, of Peoria (William J. Thomas, of counsel), for appellant.
    Calandrólo, Logan & Robeson, of Springfield (Frank S. Calandrólo, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The sole issue presented by the employer, International Vermiculite Company, in this workmen’s compensation case is whether compensation awarded by the arbitrator, affirmed by the Industrial Commission and confirmed by the circuit court of Sangamon County, is contrary to the manifest weight of the evidence.

No useful purpose would be served by a detailed recitation of the facts. Suffice it to say that the claimant, Thomas H. Grady, a 47-year-old production foreman, was climbing the outside of a 20-foot bin during the course of his employment on March 17, 1975, when he felt a sharp pain in the back of his right knee. Examination of the leg three weeks later revealed severe blockage of the main artery behind the knee. Three surgical operations failed to restore proper blood circulation to the leg. The claimant’s treating physician testified that the claimant suffers from arteriosclerosis in both legs; that arteriosclerosis is a degenerative disease which can result in a total blockage of the arteries; that numerous factors, such as smoking and diet, may accelerate the degenerative condition, and that the stress to the claimant’s leg could have caused the blockage, thereby aggravating the claimant’s preexisting condition. The employer submitted the expert testimony of a physician who opined that both the claimant’s heavy smoking and the injury to the claimant’s right knee may have accelerated the development of arteriosclerosis, but that the severe blockage in the claimant’s artery was more likely to have resulted from gradual degeneration than from a specific injury.

We have repeatedly held that it is peculiarly within the province of the Industrial Commission to resolve precisely the issues presented here by the employer. The claimant’s injury need not be the sole -factor which aggravates a preexisting condition, so long as it is a factor which contributes to the disability. (Riteway Plumbing v. Industrial Com. (1977), 67 Ill. 2d 404, 411-12; Proctor Community Hospital v. Industrial Com. (1969), 41 Ill. 2d 537, 542.) If the injury is a contributing factor, compensation will be allowed even if it is also possible that the claimant’s disability may have resulted from natural degenerative change or from other contributing factors, such as smoking. (Westinghouse Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 244, 249-50.) The opinions of both medical witnesses, that the claimant’s injury might have aggravated his preexisting condition, easily satisfied the claimant’s burden of proof. (See Memorial Medical Center v. Industrial Com. (1978), 72 Ill. 2d 275, 279-81; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18.) Even if one of the medical witnesses was equivocal on the question of causation, it is for the Commission to decide which medical view is to be accepted, and it may attach greater weight to the opinion of the treating physician. (Holiday Inns of America v. Industrial Com. (1969), 43 Ill. 2d 88, 89-90; Proctor Community Hospital v. Industrial Com. (1969), 41 Ill. 2d 537, 541.) In our judgment, the Commission’s findings were not against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Sangamon County is affirmed.

Judgment affirmed.


author: MR. JUSTICE WARD

text:
    (No. 51675.
    THE L. E. MYERS CO., Appellee, v. THE HARBOR INSURANCE CO., Appellant.

      Opinion filed September 19, 1979.

      Schaffenegger, Watson &- Peterson, Ltd., of Chicago (Jack L. Watson, of counsel), for appellant.
    French & Rogers, of Chicago (Richard G. French and Timothy G. Keating, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The plaintiff, L. E. Myers Co., filed an action in the Circuit Court of Cook County against the defendant, Harbor Insurance Co., for a declaratory judgment that an insurance policy issued by the defendant provided coverage for damages sought in a lawsuit brought against the plaintiff by a third party in the courts of Wisconsin. The plaintiff and the defendant each moved for judgment on the pleadings, the circuit court granted the plaintiff’s motion, and the appellate court affirmed (67 Ill. App. 3d 496). We granted the defendant’s petition for leave to appeal. The facts, as framed by the pleadings and by certain admissions of fact by the parties, may be summarized as follows:

The plaintiff is in the business of constructing facilities for electric utilities. In 1974 the plaintiff, acting through its insurance broker, Marsh 8c McLennan, Inc., purchased a comprehensive general liability policy from Continental Insurance Company (“Continental”), in the amount of $100,000, to become effective September 30, 1974, covering liability for certain types of property damage arising out of work performed by the plaintiff. Although the plaintiff did not attach a copy of the Continental policy to its complaint, the parties agree that as originally written the policy contained an indorsement (Indorsement No. 7) excluding certain situations from liability, among which was the following:

“With respect to the completed operations hazard, to property damage to work performed by the named insured arising out of the work or any portion thereof, or out of the materials, parts or equipment furnished in connection therewith.”

Continental is not a party to the present suit.

The plaintiff, again acting through Marsh & Mc-Lennan, also purchased an “umbrella” policy from the defendant, also effective September 30, 1974, under which the latter provided coverage for damages in excess of $100,000 covered by the underlying Continental policy, but not over $1,000,000. The policy issued by the defendant contained the following provision, known in the trade as a “broad as primary” indorsement:

“It is understood and agreed that in the event of loss for which the insured now has coverage under the underlying insurances set out in the attached schedule, the excess of which would be recoverable hereunder, except for terms and conditions of this policy which are not consistent with the underlying, then, notwithstanding anything contained herein to the contrary, this policy shall be amended to follow the terms and conditions of the applicable underlying insurances in respect of such loss.”

The umbrella policy also provided excess damages for several other underlying policies of insurance of various kinds, some • of them issued by carriers other than Continental.

In 1975 certain transmission lines and towers being constructed by the plaintiff under a contract with Madison Gas and Electric Co. (“Madison”) were toppled during a windstorm, and Madison brought suit against the plaintiff to recover damages of $10,000,000. Timely notice of the suit was given to both Continental and the defendant. Although no copy of Madison’s complaint is included in the record, the parties agree that the damages claimed under it were for the replacement cost of the transmission lines and towers. The parties also agree that such damages would fall within the exclusion mentioned above.

Continental did not disclaim liability, but the defendant wrote the plaintiff calling attention to the exclusion found in Indorsement No. 7, and stating that the defendant would therefore assume no liability for the damages sought. While the umbrella policy issued by the defendant specifically identifies the underlying policy with Continental, the complaint does not allege and it does not otherwise appear that a copy of that policy was furnished to the defendant. On the contrary the defendant admitted that it did not see the underlying policy at the time the umbrella policy was issued, and saw it only after learning of the suit filed by Madison.

Following receipt of the defendant’s disclaimer of liability, the plaintiff, Marsh & McLennan, and Continental engaged in correspondence with respect to the preparation of Indorsement No. 7, as reflected by exhibits attached to the complaint. From these exhibits it appears that the exclusion found in the indorsement resulted from a failure on the part of Continental to follow a specific instruction given by Marsh & McLennan on behalf of the plaintiff. The instruction was that the exclusion should be no broader than that contained in a comparable liability policy under which the plaintiff was at that time insured by a different carrier. In that policy the exclusion was limited to a specific job with a Nebraska public power district, wholly unrelated to the contract between the plaintiff and Madison. Continental agreed that it had erred in failing to limit the exclusion in that way, and Marsh 8c McLennan in turn conceded that it had failed to notice this omission when it received the policy. The plaintiff does not maintain that the defendant knew of the 1974 discussions about the exclusion when they took place. One may also infer that neither the plaintiff nor its broker examined Indorsement No. 7 of the Continental policy until after receiving the defendant’s disclaimer.

As the defendant admitted, Continental agreed to incorporate in the policy the limitation referred to above, and accordingly issued a revised indorsement which did so. Upon being advised of the reformation of the policy agreed upon between the plaintiff and Continental, the defendant nevertheless persisted in its disclaimer, and this suit followed. We were advised by counsel for the defendant in oral argument that the suit brought against the plaintiff by Madison was settled for $300,000.

The parties are in agreement that the insertion of the exclusionary provision was a mutual mistake of fact for which reformation is a proper remedy as between the contracting parties, that reformation may be effectively accomplished by agreement of the parties without a court decree, and that if the indorsement as corrected is part of the policy, then the claimed loss is covered. The only issue is whether the defendant, which was neither a party to the contract between the plaintiff and Continental, nor privy to it, is bound by the reformation.

The defendant’s argument that it is not, and that its liability must be determined from the language of the policy as originally written, rests in part upon the following circumstance regarding the negotiation of the umbrella policy with Marsh & McLennan, which the plaintiff admitted: The “broad as primary” indorsement initially proposed by Marsh & McLennan did not contain the word “now”, which presently appears in that indorsement just before the words “has coverage,” and that word was inserted at the insistence of the defendant. The indorsement thus was made to read “now has coverage.”

The purpose of this addition would ordinarily be merely to make sure that no additions to the primary policy which the plaintiff and Continental might later incorporate by way of amendment would be covered by the umbrella policy. The defendant contends, however, that the word “now” was designed also to prevent the correction of mistakes which had already taken place in reducing the original agreement to writing. There is no evidence of what the parties’ intent may have been in making this change, and we think the broad purpose now ascribed to it by the defendant cannot be accepted. Such a purpose, moreover, would be inconsistent with the defendant’s lack of concern with the definition of coverage in the primary policy, as evidenced by the defendant’s willingness to issue its own policy without even reading the underlying policy.

The defendant relies heavily on Pulley v. Luttrell (1958), 13 Ill. 2d 355, and other decisions of this court relating to the reformation of deeds in which the rule is laid down that a deed will not be reformed because of a mistake on the part of the original grantor and grantee as against a bona fide purchaser for value who is without notice of that mistake or of facts which would put him on inquiry. (13 Ill. 2d 355, 359.) The defendant claims the benefit of that rule on the ground, as stated in its brief, “[I]f Harb;or had read the Continental policy in advance, such reading still would not have given Harbor notice of the mistake in that policy nor put it on inquiry.” (Emphasis in original.)

The appellate court disposed of that argument by pointing out that there had been no reliance by Harbor on the terms of the Continental policy. The court stated (67 Ill. App. 3d 496, 504):

“*** Harbor cannot be said to be a bona fide purchaser or similarly situated, as it was willing to insure on the same terms as the agreement between Continental and Myers and could not have relied on the erroneously expressed instrument because Harbor never saw it until after the loss had occurred. Harbor’s lack of knowledge of the mistake cannot be considered determinative in the absence of reliance on the mistakenly drafted instrument.”

The defendant criticizes this analysis since, it says, Pulley v. Luttrell and other decisions cited in that case do not speak in terms of reliance but of lack of notice. We do not believe the criticism well founded. While decisions applying the good-faith purchaser doctrine may not explicitly refer to the element of reliance, the doctrine clearly presupposes it, for the party resisting reformation is necessarily relying on the provisions of the deed under which he claims title. It cannot be assumed that a buyer of real property in these circumstances would take title without awareness of the terms of convey ence, and there is no intimation to the contrary in the opinions referred to.

The defendant also relies on the decision of the appellate court in Vial v. Norwich Union Fire Insurance Society (1912), 172 Ill. App. 134. In that case the plaintiff was issued a fire insurance policy by a New York company, which then entered into a reinsurance agreement with the defendant under which the latter agreed to reinsure all property “now covered by policies and contracts issued by [the insurer] according to their terms and conditions.” The policy as issued to the plaintiff covered only his dwelling, and when a fire destroyed certain out-buildings both the insurer and the defendant refused to make payment because of lack of coverage. The insurer, shortly before, had ceased doing business in Illinois, and the plaintiff brought suit against the defendant alone seeking reformation of the policy on the ground that it had been the intention of the parties to include all improvements on the premises. The appellate court reversed a decree for the plaintiff in an opinion which likened the position of the defendant to that of an innocent person affected by a contract but not a party to it. 172 Ill. App. 134, 140-41.

Vial was affirmed by this court (Vial v. Norwich Union Fire Insurance Society (1913), 257 Ill. 355), but on a different theory, namely that the reinsurance agreement imposed only a duty to indemnify the insurer, and did not constitute an assumption of whatever liability the latter might have to its policy holders. The rationale of the appellate court thus cannot be said to have been endorsed by this court. The present case, moreover, differs from Vial since the defendant is not a reinsurer but issued its own policy to the plaintiff.

We conclude that the judgment of the appellate court should be affirmed. The defendant admittedly did not see a copy of the Continental policy before issuing its own, and there is no claim made that the defendant had been advised by either the plaintiff or the plaintiff’s broker as to what coverage was provided by the Continental policy. There is no contention by the defendant that the premium which it charged was not in an amount sufficient to purchase coverage under the policy as reformed.

Judgment affirmed.