author: JUSTICE MORAN

text:
    (No. 57543.
    SHUBRICK T. KOTHE, Ex’r, Appellant, v. MARY ANN JEFFERSON et al., Appellees.

      Opinion filed October 4, 1983.

      William F. Meehling, of Meehling, Rich & Bernardoni, of Marshall, for appellant.
    Thomas J. Logue, of Glenn & Logue, of Mattoon, for appellee John H. Ryan.
    Ward E. Dillavou, of Dillavou, Overaker & Smith, of Paris, for appellees Mary Anna Jefferson et al.

   JUSTICE MORAN

delivered the opinion of the court:

The plaintiff, Vera Shaw, filed suit in the circuit court of Clark County against numerous individuals seeking to cancel portions of an oil and gas lease due to an alleged breach of the implied covenant to reasonably develop the property. She sought cancellation of the lease as it applied to 318.5 acres of the 438.5-acre leasehold which she owned. A number of the original defendants defaulted and, pursuant to plaintiff’s motion, the circuit court can-celled the lease as to those individuals. Plaintiff also moved for, and was granted, summary judgment against the remaining defendants, Mary Jefferson and her heirs and John Ryan (defendants), with respect to 120 acres (hereinafter referred to as the subject tract), of the 318.5 acres, in which they claimed an interest. A divided appellate court reversed, holding that the implied covenant to develop is indivisible and therefore development of some tracts of the leasehold property served as compliance with the covenant on all other tracts. (109 Ill. App. 3d 247.) We granted plaintiff leave to appeal.

Three issues are raised for review: (1) Did defendants waive the right to challenge the sufficiency of the complaint? (2) Do defendants have standing to contest plaintiff’s motion for a summary judgment? (3) Should the implied covenant to develop be construed as indivisible or divisible?

On February 19, 1959, Shaw leased 11 parcels of real estate, consisting of 438.5 acres, to John Jefferson for the production of oil and gas. The lease agreement provided that the lease would remain in effect for a primary term of three years, and as long thereafter as oil or gas is produced “from said leased premises” or operations for drilling are continued. In consideration for the lease, Shaw received one dollar and a 1/8 royalty interest in any gas or oil produced.

In 1964, Jefferson and his wife assigned their interest in 120 of the acres, located in the northeast quarter of section 4, township 11 north, range 14 west, Clark County (the subject tract), to J. L. Cowan. They reserved an overriding royalty interest in the property. Prior to his death in 1967, Cowan made numerous assignments of his working interest in the subject tract.

In January of 1980, plaintiff filed a complaint against all individuals who “have or may claim a record interest in” 318.5 acres of the leasehold (including the subject tract), seeking to cancel the lease as it applied to that property. Plaintiff alleged in the complaint that these individuals “have wholly failed” to develop and produce the leasehold property, and that there has been no activity directed toward production during the preceding 10 years. The remaining 120 acres of the leasehold (40 of which are located in section 4), upon which oil and gas were being produced, were not affected by the complaint.

On March 20, 1980, the heirs of John Jefferson, now deceased, purportedly assigned a working interest in the subject tract to John Ryan, and reserved an overriding royalty interest in the property. The Jefferson heirs claimed that the working interest in the property reverted to them when Cowan ceased to develop the subject tract. Pursuant to plaintiffs motion, Ryan was subsequently joined as a defendant.

With the exception of the Jefferson heirs and Ryan, none of the individuals named in the complaint appeared or filed an answer. Default judgments were entered against them, including the Cowan heirs and assigns. Shubrick T. Kothe (who, as executor of Vera Shaw’s estate, was substituted as plaintiff following Shaw’s death in February of 1980) subsequently filed a motion requesting cancellation of the lease as to all individuals who claim to have working interests in the subject tract. He also moved for summary judgment against the non-defaulting defendants. He alleged in the motion that the only individuals who owned a working interest in the subject tract (the Cowan heirs and assigns) had been defaulted. The nondefaulting defendants owned only overriding royalty interests, which cannot exist apart from the working interests.

Defendants filed objections to the motion for summary judgment, alleging that oil and gas leases are indivisible, and that plaintiff therefore cannot seek cancellation of the lease as to certain property if there is production on other tracts in the leasehold. Defendants submitted affidavits indicating there has been continuous development on portions of the leased premises. In defendants’ brief opposing the motion for summary judgment, they argued that plaintiff’s complaint was insufficient to state a cause of action. The trial court determined that defendants waived the right to raise this issue because they answered the complaint instead of challenging it by motion. The court therefore granted plaintiff’s motion for summary judgment and cancelled the lease as to the 120 acres. In reversing, the appellate court determined that defendants adequately raised the issue of indivisibility, which, it stated, could be construed as an affirmative defense.

Plaintiff first contends, as he did in the appellate court, that defendants waived the right to challenge the sufficiency of the complaint. It is argued that section 45 of the Civil Practice Act required defendants to object to the pleadings by motion, and specify wherein the complaint is insufficient. (Ill. Rev. Stat. 1979, ch. 110, par. 45.) We agree that where a complaint allegedly fails to state a cause of action, meticulous procedure dictates that the opposing party file a motion to dismiss. Under the circumstances of this case, however, the purpose underlying section 45 was satisfied.

“The necessity for [filing a motion and] delimiting an objection to the complaint is designed to allow the plaintiff to prepare a response thereto or to amend the complaint in order to satisfy the objection.” (Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 556, citing Central Illinois Electric & Gas Co. v. Scully (1959), 17 Ill. 2d 348, 353.) Here, plaintiff was adequately apprised of defendants’ objection to the complaint prior to the trial court’s judgment. As previously related, defendants opposed the motion for summary judgment on the grounds that oil and gas leases are indivisible and supported their position with affidavits. Plaintiff subsequently filed a response in which he argued that the lease was divisible, but he made no attempt to amend the complaint. Because plaintiff was afforded an opportunity to, and did, respond to defendants’ theory prior to the court’s ruling, we fail to see how he was prejudiced by defendants’ failure to file a motion to dismiss. Cf Swager v. Couri (1979), 77 Ill. 2d 173 (failure to object to a complaint until after the verdict does not completely waive the question of whether the complaint states a cause of action).

Further, as noted by the appellate court, defendants’ theory of indivisibility may be construed as an affirmative defense rather than simply an attack on plaintiff’s pleadings. If the implied covenant to develop is indivisible, as defendants alleged, this would be a defense by which plaintiff’s “apparent right could be defeated.” (Baylor v. Thiess (1971), 2 Ill. App. 3d 582, 583; see Brewer v. Stovall (1977), 54 Ill. App. 3d 261.) There is no requirement that such defenses must be raised by motion. See Ill. Rev. Stat. 1979, ch. 110, par. 43(4); People ex rel. Casey v. Health & Hospitals Governing Com. (1977), 69 Ill. 2d 108.

We next consider whether the covenant to reasonably develop the premises, implied in oil and gas leases, should be construed as indivisible or divisible. Where the covenant is deemed indivisible, compliance therewith on one tract of the leased premises serves to perpetuate the lease as to all tracts. If the covenant is divisible, failure to reasonably develop one tract will not affect other tracts subject to the lease. (R. Hemingway, Oil and Gas sec. 9.10 (1971).) Plaintiff relies on Baker v. Collins (1963), 29 Ill. 2d 410, and Elliott v. Pure Oil Co. (1956), 10 Ill. 2d 146, for the proposition that the covenant is divisible, and that he may therefore seek partial cancellation of the lease. We find these cases distinguishable.

In Baker, the lessors sought cancellation of an oil and mineral lease as it applied to the undeveloped portions of the leasehold premises. It was alleged that the lessees unreasonably delayed drilling efforts for a period of 11 years, between 1950 and 1961. Subsequent to 1961, however, the lessees explored and developed the premises “without objection from, and apparently at the insistence of, the [lessors].” (29 Ill. 2d 410, 414.) This court determined that it would be inequitable to permit cancellation of the lease on the basis of the 11-year drilling delay, since the lessors acquiesced in subsequent exploratory drilling.

Similarly, Elliott did not specifically address the issue of whether the implied covenant to develop is indivisible or divisible. In that case, the lessor sought cancellation of an oil lease on the grounds that the lessee failed to develop the property and failed to protect the tract from drainage. The trial court ruled that, unless a well was drilled within 60 days, the lease would be cancelled as it applied to 10 acres of a 20-acre tract. In affirming, this court noted that the 10 acres in question were threatened by drainage from nearby wells, a situation which the lessee was required to prevent. (See R. Hemingway, Oil and Gas sec. 9.10 (1971).) Further, the lessee did not raise indivisibility as a defense.

Dickerson v. Ray (1960), 20 Ill. 2d 107, cited by defendants, is more closely analogous to the instant case. In Dickerson, the separate owners of two tracts of land executed a mineral deed in which they conveyed to the grantee an undivided one-half interest in any oil and gas discovered on the properties. The habendum clause provided that the deed would remain in effect for a certain primary term and for as long thereafter as oil or gas was produced. Production on one of the tracts eventually ceased, and the owners claimed that the deed thereby expired as to that tract. In rejecting their contention, this court stated:

“Arising first in decisions relating to oil-and-gas leases, it is the rule of the vast majority that where a number of land owners demise their lands in a single lease, whether contiguous or not, and provide that after a designated period the interest covered by the said instrument will continue for as long as there is production upon said land, production which is sufficient to continue the interest as to any of the land described is sufficient to continue the interest as to all of the land described.” (20 Ill. 2d 107, 113-14.)

Although, in the instant case, there are numerous lessees and only a single lessor, we agree with the appellate court that “the divisibility or indivisibility of covenants does not depend on where diversity of [interest] lies.” (109 Ill. App. 3d 247, 251.) Nor is it significant that Dickerson involved a deed rather than a lease, since the court based its decision on the rules pertaining to oil and gas leases.

Further, while there is authority to the contrary, it is generally held that the implied covenant to develop should be construed as indivisible unless the lease expressly provides otherwise. (See R. Hemingway, Oil and Gas sec. 9.10 (1971); 3 W. Summers, Oil and Gas secs. 513, 516 (1958) (and cases cited therein); cf. Annot., 9 A.L.R. 4th 1121 (1981) (covenants to develop, implied in mineral deeds, are generally deemed indivisible); 38 Am. Jur. 2d 526 Gas and Oil sec. 51 (1968) (pursuant to the rule applied in oil and gas lease cases, the implied covenant to develop, in conveyances transferring term interests, is construed as indivisible).) Based upon our interpretation of Dickerson, and the above-related authorities, we hold that the implied covenant to reasonably develop the premises is indivisible. Since plaintiff’s complaint sought to affect only certain tracts of the leased premises, thus treating the covenant as divisible, the appellate court did not err in holding the complaint failed to state a cause of action.

We recognize that the principle of indivisibility could operate to the disadvantage of the lessor. As long as there is reasonable development of the property, as a whole, the lease is perpetuated even as to substantial tracts of land which may remain undeveloped. However, this seemingly harsh result is one which the lessor could easily avoid. The principle of indivisibility only applies where the parties to the lease agreement fail to manifest a contrary intent. (See 3 W. Summers, Oil and Gas sec. 516 (1958).) If the lessor wishes to preclude assignments of interest, or otherwise seeks to treat the covenant to develop as divisible, he need only include a provision to that effect in the lease agreement.

Plaintiff further contends that defendants have no standing to question the propriety of the trial court’s order. It is argued that the only individuals with a working interest in the subject tract have been defaulted, and that defendants’ overriding royalty interests cannot exist apart from the working interests. However, since we have determined that the implied covenant to develop is indivisible, the lease could not be cancelled on the basis of the facts alleged in plaintiff’s complaint. Further, the default of certain individuals “does not relieve the complainant from the necessity of establishing his case against those who appear and plead. One defendant cannot admit a cause of action against his co-defendants who defend against it. (Glos v. Swanson, 227 Ill. 179.) *** A judgment or decree against one defendant for want of a plea or answer does not prevent any other defendant from contesting, so far as respects himself, the very fact which is admitted by the other party.” Chamblin v. Chamblin (1936), 362 Ill. 588, 593.

As previously stated, the appellate court reversed on the ground that the implied covenant to develop is indivisible. The court concluded that, since defendants showed there was continuous production on portions of the leasehold, the trial court should not have granted plaintiff’s motion for summary judgment. However, the principle of indivisibility requires more than mere production; it requires that the production and development be reasonable. (See Baker v. Collins (1963), 29 Ill. 2d 410; R. Hemingway, Oil and Gas sec. 9.10 (1971).) The appellate court made no express findings as to whether the premises were reasonably developed. Although plaintiff failed to specifically allege that development of the leasehold was unreasonable, defendants did not address this pleading deficiency in the trial court. Indeed, our review of the record indicates that the parties were not particularly specific in their pleadings. Consequently, we believe that plaintiff should be afforded an opportunity to prove that the premises, as a whole, were unreasonably developed. We note that counsel for defendants, during oral argument, conceded that a remand might be appropriate under the circumstances of this case.

For the above-stated reasons, the judgment of the appellate court reversing the entry of summary judgment is affirmed, and the cause is remanded to the circuit court of Clark County for further proceedings consistent with this opinion.

Affirmed and remanded.


source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 57743.
    FRANK COURSON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (The City of Mt. Pulaski, Appellee).

      Opinion filed October 4, 1983.

      Warren E. Danz, P.C., of Peoria (Richard G. Leiser, of counsel), for appellant.
    Robert L. Mueller, of Livingstone, Mueller, Gunning, O’Brien & Davlin, P.C., of Springfield, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

On May 21, 1975, the only policeman in the city of Mt. Pulaski was injured when a suspect he was pursuing backed a car into him. He did not file a claim for workmen’s compensation for his injuries until June 1979. In this appeal we must decide whether the Industrial Commission’s determination that the claim was not timely filed was proper.

While on patrol on the day of the accident the claimant, Frank Courson, noticed a vehicle driving erratically around the town square in an apparent attempt to run over some youths. Courson gave chase, and when he eventually succeeded in blocking the suspect’s car with his patrol car the suspect rammed the patrol car. Courson got out of his vehicle and walked around the back of the suspect’s car, which suddenly commenced to back up, striking Courson in the right leg and hip. Courson managed to throw himself free from the car as it continued backing, wrestled the suspect out of the car and handcuffed him. Although he testified that at that time he was “in quite a bit of pain” and found it difficult to drive, he did not seek medical attention that day because he had to take the suspect to the Logan County sheriff and then to a medical center in Springfield.

The next day Courson informed the Mt. Pulaski city clerk that his leg and hip were bothering him and that he wished to see a doctor. So far as the record discloses, he did not tell the clerk that he had been injured while making an arrest or that his pain might have been traceable to an injury occasioned by his work, although the clerk testified that Courson “reported an accident that he may have had in a day or so.” Courson visited Dr. James Borgenson, who X-rayed him, found abrasions on the side of his leg, and told him to use a heating pad on his back and take warm baths. Courson remained on his job until late in December 1975, visiting Dr. Borgenson periodically. He took several days off work in that month due to pain and took five more days off in April 1976 in response to “bent over back pain,” treating himself at home on both occasions.

In November 1976 Dr. Borgenson referred Courson to Dr. J. M. Hayes, who took Courson off work and hospitalized him for three weeks for treatment which included back surgery. He was sent home on December 17, 1976, but was not released for work until March 1977. Courson remained under Dr. Hayes’ care through 1977 and 1978; he worked for the balance of those years, missing several days at a time on four occasions during which he underwent therapy at a hospital. On the last such occasion, he left work on October 12, 1978, and did not return to work, even though he was in the hospital for treatment for only three weeks between that date and the end of the year. He resigned his job on December 15, 1978, and was officially terminated on the last day of the year. Courson was subsequently hospitalized for a checkup in April 1979, during which it was determined that he needed a spinal fusion. He was hospitalized again in November 1979 and received the fusion.

The city of Mt. Pulaski paid Courson’s full salary from the time of the injury until December 31, 1978, the effective date of his resignation. It also paid for Dr. Borgenson’s initial treatment of Courson on May 22, 1975. The rest of Courson’s medical expenses were paid by an insurance company through his wife’s medical insurance program, and no demands regarding them were submitted to the city, although both the city clerk and the mayor of Mt. Pulaski testified that they were aware that Courson was experiencing leg and back problems and the mayor visited him in the hospital on one occasion in 1976. The mayor testified that in May 1975, shortly after the accident occurred but before the city council authorized payment of Dr. Borgenson’s medical bill, Courson told him that an automobile had backed into his leg while he was making an arrest. The record also contains a statement by Courson that he fell and cracked three ribs in 1977 while at home, a hospital admitting form dated November 27, 1976, which stated that Courson “noted sudden onset of left 1. s. pain while chopping wood 1 w[ee]k ago,” a discharge summary from another hospital dated October 28, 1978, which stated that after his 1976 operation Courson was relatively asymptomatic until mid-1978 when he “was lifting heavy boards and felt a strain in his back,” and testimony by the mayor that Courson told him that he had been chopping wood prior to his admittance to the hospital for surgery in 1976 and that “because of the hours [Courson] worked and length of time in the car and this type of thing that he was having back trouble.”

Courson filed a petition for workmen’s compensation benefits on June 4, 1979, based on his May 1975 accident. Both the clerk and the mayor testified that this was the first time they realized that Courson wished to make a claim against the city on account of his back problem. Courson testified that the delay was due to his not knowing that his accident was the cause of his discomfort until he asked his doctor what the cause was “after my last hospitalization.” The arbitrator and the Industrial Commission both ruled that the claim had been filed too late, and the circuit court of Logan County confirmed their dismissal of the claim.

The parties agree that the provision in the Workmen’s Compensation Act which governs this case stated that claims were to be filed within three years after the date of the last payment of “compensation,” or within three years after the date of the accident if no compensation had been paid. (Ill. Rev. Stat. 1975, ch. 48, par. 138.6(c)(2).) Courson contends in this appeal that the continued payment of his salary by the city operated to extend the time for filing under this section or, in the alternative, estopped the city from asserting the time bar.

We are not persuaded by either of these contentions. As to the first, we note that the word “compensation” has a particularized legal meaning as used in the Workmen’s Compensation Act and is not to be construed as being synonymous with “salary” (Lewis v. Industrial Com. (1934), 357 Ill. 309, 314), in spite of the fact that temporary total disability benefits are calculated largely to reflect salary lost during the duration of the disability (see Ill. Rev. Stat. 1975, ch. 48, pars. 138.8(b), 138.10). The practice of this court is to determine from the record whether the payments that were made were actually compensation made on account of a compensable injury rather than simply gratuitous payments of salary (Marshall Field & Co. v. Industrial Com. (1922), 305 Ill. 134; see also Olney Seed Co. v. Industrial Com. (1949), 403 Ill. 587; United Air Lines, Inc. v. Industrial Com. (1936), 364 Ill. 346), even where the claimant filed a claim for temporary disability benefits only (Olney Seed Co. v. Industrial Com. (1949), 403 Ill. 587). These cases tell us that where the employer has knowledge of the injury and does not deny liability, the employee may regard any payments that the employer makes as having been made in consequence of his liability and need not make demand for further compensation until after the payments are discontinued. However, it is not every such case in which payments will count as compensation. In Marshall Field & Co., the first case in this State to announce the rule, the court based its decision on the existence of two letters in which the employee, who was off work and therefore presumably not entitled to a salary as such, requested that the employer pay her what she was “entitled to” and the employer paid her half her weekly wage (305 Ill. 134, 139); the court construed this as a demand for compensation and a payment of compensation. In Olney Seed Co. the court found that the employer was aware not only of the accident but of the connection between it and the claimant’s ill-being (403 Ill. 587, 596), and in both that case and United Air Lines it relied on Marshall Field & Co. for exposition of the controlling law. In Lewis v. Industrial Com. (1934), 357 Ill. 309, the court found that the employer was unaware of any assertion by the claimant of any right to compensation and held that payments it made to the claimant did not constitute compensation even though the employer knew of the injury and neither admitted nor denied liability.

It thus appears that knowledge of an injury and failure to deny liability under the Workmen’s Compensation Act may furnish the basis for a holding that the payments that were made were in consequence of the liability so as to postpone the running of the statute of limitations, but do not by themselves require such a holding. It is understandable, as the city argues happened here, for an employer who knows that his employee is injured to attempt by making wage payments to help speed his recovery and his eventual return to work even though the employer is unaware of any causal connection between the injury and the employment. Without notice or suspicion of a causal connection on the part of the employer, mere failure to deny liability for an injury connotes nothing as to his intentions, and the payment of wages would in such cases more likely be due to generosity or a desire to retain the services or the good will of the employee than to a recognition of a liability which he may eventually be called upon to satisfy. In these cases payment of wages or salary need not be treated as payment of compensation unless the evidence otherwise shows that the payment was intended as such, or at least that the employee held the belief that the payments were made in recognition of liability and that such a belief was reasonable. See 3 A. Larson, Workmen’s Compensation sec. 78.43(l) (1983).

Here there was ample evidence to sustain the Industrial Commission’s finding that the city was not aware of a causal connection between Courson’s 1975 accident and his subsequent back problems until after December 31, 1978, the date the last salary payment was made. The record contains many references to other accidents which Courson sustained after the suspect’s car hit him; the mayor testified that Courson told him that his condition in 1976 was due to physical exertion while chopping wood, and both the mayor and the city clerk stated they were not aware that Courson’s disability might have been work related until he filed his claim in 1979. The fact that Courson was the only policeman in the city for much of the relevant period, including the times he was in the hospital, gives further credence to the view that the salary payments were made gratuitously to assist his recovery or retain his good will. In addition, Courson stated that he himself was unaware of a causal connection until his “last hospitalization,” which could have been understood as a reference to his November 1979 hospitalization, as the Commission interpreted it in its opinion, even though Courson later gave a vague estimate of the date as sometime in 1977 or 1978. If Courson was unaware at the time the payments were made to him that his injury was one which entitled him to workmen’s compensation benefits, as the Commission found, it is improbable that he could have believed that the payments were intended as compensation, or that such a belief, if held, would have been reasonable.

For similar reasons we cannot accept Courson’s árgument that the city is estopped by its conduct to raise the statute of limitations. (See Baligian v. New York, New Haven & Hartford R.R. Co. (1953), 81 R.I. 49, 98 A.2d 830.) An estoppel is not appropriate unless the party seeking to invoke the estoppel has suffered a detriment as a result of his actual reliance upon the acts or representations of the party he seeks to estop. (Finley v. Finley (1980), 81 Ill. 2d 317, 330; Dill v. Widman (1952), 413 Ill. 448, 455-56.) Here the Industrial Commission determined that Courson was unaware of any causal connection between his back problems and the 1975 injury until after the last salary payment was made, and, as we have explained, this discredits any assertion that his delay in filing his claim was due to any reliance on the payments he was receiving. We can set aside a decision by the Commission only if its findings of fact are against the manifest weight of the evidence (Doyle v. Industrial Com. (1983), 96 Ill. 2d 364, 370) or its decision is contrary to law (Butler Manufacturing Co. v. Industrial Com. (1981), 85 Ill. 2d 213, 216). There is no basis for saying that either is the case here; consequently we affirm the judgment of the circuit court.

Judgment affirmed.


author: CHIEF JUSTICE RYAN

text:
    (No. 57795.

      In re WILLIAM JOHN SCOTT, Attorney, Respondent.

      Opinion filed October 4, 1983.

      Deborah M. Kennedy and Jerome Larkin, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Leonard M. Ring and Associates, of Chicago (Leonard M. Ring and Judith E. Fors, of counsel), for respondent.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

On July 29, 1980, the respondent, William John Scott, was convicted in the United States District Court for the Northern District of Illinois of filing a false Federal income tax return for the year 1972, in violation of 26 U.S.C. section 7206(1) (1976). On August 6, 1980, the Administrator of the Attorney Registration and Disciplinary Commission filed a petition in this court pursuant to Rule 761 (73 Ill. 2d R. 761), requesting that the respondent be suspended from the practice of law until further order of the court. On October 15, 1981, an order suspending respondent was entered.

Subsequently, the Court of Appeals for the Seventh Circuit affirmed the respondent’s conviction (660 F.2d 1145), and the United States Supreme Court denied certiorari (445 U.S. 962, 64 L. Ed. 2d 238, 100 S. Ct. 1650). Thereafter, the Hearing Board convened to determine what discipline was warranted by this conviction. The Hearing Board recommended that respondent be suspended for three years from November 3, 1981, and until further order of the court. The Hearing Board mistakenly stated that respondent’s suspension order under Rule 761 was entered November 3, 1981, instead of October 15, 1981. The Review Board recommended that respondent be suspended for a period of 30 months from October 15, 1981, the date on which the suspension order had been entered. The Review Board deleted the portion of the Hearing Board’s recommendation which would have continued the suspension until further order of the court.

Before this court, the respondent filed exceptions to the report of the Review Board, contending that it improperly failed to consider certain relevant evidence and imposed an excessive sanction in light of the underlying misconduct. The respondent concedes that filing a fraudulent tax return constitutes moral turpitude. (In re Lacob (1972), 50 Ill. 2d 277, 279.) He also concedes that his conviction for this crime is conclusive evidence of his guilt for purposes of this disciplinary proceeding. (In re Teitelbaum (1958), 13 Ill. 2d 586, 588.) The respondent contends, however, that the Review Board improperly rejected five items of evidence relating to his underlying conduct which he offered in mitigation for purposes of determining the appropriate sanction.

The Board rejected the testimony of William Barnett, one of respondent’s attorneys in the criminal trial, pertaining to the focus of the prosecution’s preliminary investigation. The Board also rejected character references submitted to the United States district court on behalf of the respondent by a number of prominent members of the bench and bar. The respondent sought to introduce this testimony in an effort to prove he had not brought the legal profession into disrepute and had the requisite character and fitness to practice law.

The Board further rejected the testimony of William Barnett in which he sought to compare the allegations contained in the indictments for the year 1972, for which the respondent was convicted, and those years for which he was acquitted. This testimony allegedly would have indicated that the respondent’s conviction was based solely on a campaign contribution made by an attorney, Edward Barrett, which the respondent converted to his personal use and did not report in an accounting of general campaign funds. In a similar effort to prove that his conviction was based on the omission of an isolated item of income, the respondent also sought to introduce written reports of juror interviews prepared by investigators after his trial which purported to demonstrate that the jury based its conviction solely on the Barrett contribution. The Board finally rejected introduction into evidence of various newspaper articles which described how other public officials had used campaign funds. This evidence sought to establish that the respondent’s conduct was similar to the way in which other public officials used campaign funds and merely reflected the manner in which campaigns are commonly financed.

Although the respondent contends that exclusion of all of this testimony was error, and that this court should consider it as if it were properly admitted, we conclude it was properly rejected. The written reports of interviews with jurors were properly excluded. These reports were not those of the jurors themselves, but were interpretations of the jurors’ statements made by investigators who authored the reports. Neither the jurors nor the authors of the reports were available for cross-examination. The same is true of the newspaper articles concerning the manner in which other public officials used campaign funds. The hearing panel did admit letters written by three judges for the purpose of the disciplinary proceeding. These letters were offered by the respondent and admitted into evidence. The Administrator does not raise any question as to the admissibility of these letters.

The letters offered by the respondent which were not admitted, which the respondent complains of here, had been written by their authors for consideration by the sentencing judge in determining the sentence to be imposed for the criminal conviction. When offered at the disciplinary hearing, they were objected to on the grounds of relevance. They were offered as a group exhibit which contained many letters. The hearing panel held them not to be relevant to this proceeding. We find that the ruling on this objection was proper.

These letters were addressed to a different forum and were written for a different purpose. Many of the letters specifically referred to the respondent’s conviction and the sentencing proceeding. The foundation laid for their admission was that they had been admitted into a criminal trial as part of the presentence investigation. There is no attempt to show their relevance to the disciplinary proceeding. It may be that the contents of some of these letters would have relevance to the issues now before this court. However, these letters were all offered and ruled on as one group exhibit. Those that may have relevance to this case were not tendered separately. We find no error in the ruling on this group exhibit.

Since the establishment of the Attorney Registration and Disciplinary Commission, this court has not addressed the hearsay question as it relates to the admissibility of letters and affidavits before the hearing panel. Our Rule 753(c) (87 Ill. 2d R. 753(c)), while not mentioning rules of evidence, states:

“Proceedings before the Hearing Board shall be conducted according to the practice in civil cases as modified by rules promulgated by the Commission pursuant to Rule 751(a).”

The Attorney Registration and Disciplinary Commission has not provided for rules of evidence applicable to hearings before the Hearing Board. Thus, although our rule has the general provision quoted above, nothing in the rules of this court or the rules of the Commission directly addresses rules of evidence before the Hearing Board.

The Administrator has alternatively argued that the documents were properly rejected under the hearsay rule. As noted above, this court has not passed on the admissibility of hearsay letters and affidavits in hearings before the Hearing Board. However, in In re Kuta (1981), 86 Ill. 2d 154, and In re Friedman (1979), 76 Ill. 2d 392, this court specifically referred to affidavits that had been introduced before the Hearing Board, but did not consider whether such documents were properly admitted. Since we find that the offered letters were properly excluded on other grounds, the hearsay question must await another case.

Findings of the hearing and review boards, based on properly admissible evidence, are entitled to virtually the same weight as those of any other trier of fact. (In re Hopper (1981), 85 Ill. 2d 318, 323.) Evaluating the properly admissible evidence, we conclude that the Administrator has proved by clear and convincing evidence that the respondent engaged in serious misconduct which merits discipline.

Conviction of a crime involving moral turpitude is conclusive evidence that grounds for imposing discipline exist. This court will not go behind the conviction. (In re Callas (1980), 82 Ill. 2d 6, 14.) However, other evidence may be considered for the purpose of determining the appropriate discipline to be imposed. (In re Andros (1976), 64 Ill. 2d 419, 423-24; In re Crane (1961), 23 Ill. 2d 398, 400.) The filing of false and fraudulent income tax returns is a crime involving moral turpitude. Conviction thereof is conclusive evidence of guilt and justifies disciplinary action. In re Shavin (1968), 40 Ill. 2d 254.

Respondent, although charged with filing false and fraudulent tax returns in five counts, was only convicted of one count, filing a false and fraudulent tax return for 1972. In this court respondent argues that actually the jury considered only the omission of one item from his income tax return, a gift of $5,000 from Edward Barrett. Respondent argues that determining whether the contribution was income or a gift was a judgment call. We cannot accept this argument.

Respondent is attempting to go behind the conviction. In his brief, respondent states that the Court of Appeals for the Seventh Circuit, in affirming the conviction, “noted that the Barrett payment was logically the only thing upon which the jury could, with consistency, have based the conviction,” citing United States v. Scott (7th Cir. 1981), 660 F.2d 1145, 1177. We do not read the statement of the court relied upon by the respondent as conveying that meaning. The court of appeals analyzed both the government’s net-worth case against respondent and its specific-items-omitted case. The court found that the government’s net-worth case proved that respondent had understated his 1972 adjusted gross income “by more than $22,153.” (United States v. Scott (7th Cir. 1981), 660 F.2d 1145, 1148.) The court, in analyzing the government’s specific-items-of-income case against respondent, listed several items of income, in addition to the Barrett payment, which the government had shown had been omitted from the 1972 tax return. The court discusses these items in detail in its opinion. We need not set them forth in detail here. (See United States v. Scott (7th Cir. 1981), 660 F.2d 1145, 1157-60.) The court of appeals found that all of this evidence, including the Barrett payment, supported the jury’s finding that the respondent was guilty of the offense charged in count I of the indictment. We will not again analyze the evidence in this criminal case and say that, in reality, the jury found that the respondent had only failed to report the $5,000 contribution of Barrett. As this court stated in In re Crane (1961), 23 Ill. 2d 398, 400:

“To consider evidence of this nature would open up a highly speculative area and would serve no useful purpose in a disciplinary proceeding. ’ ’

Respondent urges that the court impose no greater sanction than censure. He bases his belief that this is a proper degree of discipline on the assumption which we rejected above that the $5'000 contribution from Barrett was the only proof of unreported income.

In In re Walker (1977), 67 Ill. 2d 48, this court censured respondent, who had been indicted for filing false income tax returns. In that case, Walker had entered a plea of nolo contendere and had been fined $5,000. The regional counsel for the Internal Revenue Service had stated in a report that it was felt that the unreported receipts “lacked a criminal intent.” (In re Walker (1977), 67 Ill. 2d 48, 51.) The failure to report income was due primarily to a shoddy bookkeeping system. In the case now before us, however, in light of the jury’s verdict, we cannot say that the respondent lacked fraudulent intent as was stated in In re Walker. We therefore deem censure inappropriate.

The respondent was elected Attorney General of this State four times. He has also served one term as State Treasurer. Eleven witnesses testified on behalf of the respondent before the hearing panel. These included a number of prominent attorneys and State and Federal judges. These witnesses testified as to the high caliber of the respondent’s performance as a public official and as to his excellent reputation for truth, veracity and integrity, both before and after his conviction. They also stated that in their opinion respondent possesses the moral character and qualifications that make him fit to practice law.

Although respondent’s conviction warrants suspension, we must balance this conclusion against the mitigating evidence that has been presented. The purpose of disciplinary proceedings is to safeguard the public and maintain the integrity of the legal profession. (In re Spencer (1977), 68 Ill. 2d 496, 501.) In tax-fraud cases this court has imposed a range of sanctions from three years’ suspension to censure (In re Coburn (1982), 92 Ill. 2d 472 (three years’ suspension); In re Teitelbaum (1958), 13 Ill. 2d 586 (three years’ suspension); In re Sullivan (1965), 33 Ill. 2d 548 (three years’ suspension); In re Shavin (1968), 40 Ill. 2d 254 (two years’ suspension); In re Revzan (1965), 33 Ill. 2d 197 (two years’ suspension); In re Greenberg (1961), 21 Ill. 2d 170 (two years’ suspension); In re Walker (1977), 67 Ill. 2d 48 (censure); In re Crane (1961), 23 Ill. 2d 398 (censure)). The respondent was suspended from practice pursuant to our Rule 761 (73 Ill. 2d R. 761) on October 15, 1981. The mitigating evidence clearly demonstrates that the purpose of the disciplinary process in this case is fulfilled without a suspension longer than that already served. At the present time the respondent has been suspended from practice because of this conviction for nearly two years. This period of suspension falls within the range of the sanctions usually imposed for similar offenses in the cases cited above. Although each disciplinary case is unique, a degree of uniformity in the discipline imposed in similar cases should be sought. (In re Clayter (1980), 78 Ill. 2d 276.) It is therefore the order of this court that the respondent be suspended from the practice of law for a period of two years from October 15, 1981, the date on which he was suspended under our Rule 761.

Respondent suspended.


text:
    (No. 57877.
    GEORGE SMITH, Appellant, v. THE INDUSTRIAL COMMISSION et al. (United Association of Plumbers and Pipefitters, Local 149, Appellee).

      Opinion filed October 4, 1983.

      Charles W. Hendrix, of Champaign, for appellant.
    Howard W. Small of Thomas, Mamer & Haughey, of Champaign, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

The claimant, George Smith, alleges that he sustained a back injury when he fell on ice at the place of business of his employer, United Association of Plumbers and Pipefitters, Local 149, the respondent. The arbitrator found that the claimant had suffered an accident during the course of his employment, but had failed to prove that his current condition of ill-being was causally connected to it. The Industrial Commission affirmed the decision of the arbitrator, and the circuit court of Champaign County confirmed the decision of the Industrial Commission. The claimant appealed directly to this court. 87 Ill. 2d R. 302(a); Ill. Rev. Stat. 1981, ch. 48, par. 138.19(f)(2).

Before the arbitrator, the claimant testified that he slipped, fell on some ice, and landed on his tailbone on January 17, 1979, while leaving his employer’s place of business. He admitted that he did not lose more than a half day from work as a result of the incident and did not consult a physician for 15 months, until April 14, 1980. He testified that he had never had a back injury prior to the accident or subsequent to it.

The claimant finally consulted a physician, Dr. Walter Petersen, who took X rays of the claimant’s back and prescribed therapy. After taking approximately 12 treatments, the claimant was also treated on July 9, 1980, by a chiropractor, Dr. J. W. Hanoka. He was also treated on August 6, 1980, by an orthopedist, Dr. Alain Menguy. Dr. Menguy undertook a physical examination of the claimant, examined X rays taken by Dr. Petersen after the accident, and evaluated the claimant’s medical history. His examination revealed that the claimant had a lumbosacral sprain with a slight limitation of full flexion which caused alternating sciatic pain. From an examination of the X rays, Dr. Menguy concluded that the claimant suffered from a malformation called spondylolisthesis of grade one. In giving Dr. Menguy his medical history, the claimant stated that he experienced this back pain for the first time immediately after the accident and was still having difficulty moving freely.

While Dr. Menguy conceded that spondylolisthesis of grade one is normally a congenital defect, he concluded that it was caused by a trauma in this case. Dr. Menguy based this conclusion on Dr. Petersen’s X rays and the claimant’s medical history, and stated that his opinion was based on a reasonable degree of medical certainty. He also admitted on cross-examination, however, that if the claimant’s medical history was inaccurate, his opinion would also be erroneous. At the time of arbitration, the claimant’s and Dr. Menguy’s testimony (given by way of a deposition) constituted the only evidence relating to causation.

During the period between arbitration and the hearing before the Industrial Commission, however, the respondent procured a set of additional X rays taken before the accident by Dr. Hanoka and submitted them to Dr. Menguy for his evaluation. These X rays showed that the claimant had a grade-one spondylolisthesis before the accident. The X rays also showed that there had been no increase in the degree of slippage since the accident. After reviewing these X rays and comparing them with post-accident X rays, Dr. Menguy changed his conclusion as to causation and stated that the accident merely caused an aggravation of a preexisting condition. The issue of causal connection can therefore be reduced to the question of whether the Industrial Commission was obliged to believe the claimant’s version of events and Dr. Menguy’s equivocal testimony.

In analyzing this issue, we note that the claimant repeatedly denied any recollection that Dr. Hanoka had treated him on several occasions for a back injury a few months prior to the accident. Although claimant recalled receiving chiropractic care concerning another medical condition which occurred 10 years before the review hearing, he could not remember receiving medical treatment only a few months earlier for his current back problem. Dr. Hanoka’s chiropractic records clearly indicate, however, that the claimant had suffered preexisting back problems and had been treated by Dr. Hanoka a few months before the accident.

The claimant also had a financial motivation to pursue a worker’s compensation claim. He had just lost his bid for reelection as business agent of his union and was currently unemployed. As a result of these impeaching factors, the respondent contends that the claimant failed to show by a preponderance of the evidence that his condition of ill-being was causally connected to the accident.

The burden of proof is on the claimant to show by a preponderance of the evidence that he is entitled to recover. (Keystone Steel & Wire Co. v. Industrial Com. (1978), 73 Ill. 2d 269; Illinois Institute of Technology v. Industrial Com. (1977), 68 Ill. 2d 236.) The Industrial Commission must weigh the evidence in making this assessment and is not required to award compensation merely because the claimant’s version of events is undisputed. Wilson v. Industrial Com. (1972), 51 Ill. 2d 522, 524-25; Bernard v. Industrial Com. (1962), 25 Ill. 2d 254, 257.

It is the function of the Industrial Commission to judge the credibility of witnesses, to determine the weight to be given to their testimony, and to draw reasonable inferences therefrom. (City of Streator v. Industrial Com. (1982), 92 Ill. 2d 353, 363; Seiber v. Indus trial Com. (1980), 82 Ill. 2d 87, 97; Phelps v. Industrial Com. (1979), 77 Ill. 2d 72, 74.) The fact that respondent offered no conflicting medical testimony and that the claimant’s testimony is not controverted does not mandate a finding in claimant’s favor. We cannot say that the decision of the Industrial Commission is against the manifest weight of the evidence. The judgment of the circuit Court of Champaign County is affirmed.

Judgment affirmed.


author: JUSTICE GOLDENHERSH

text:
    (No. 57963.

      In re ESTATE OF FLORENCE DONNELLY, a Disabled Adult (Margie Lee Tegeler et al., Appellees, v. Ralph J. Mendelsohn, Appellant).

      Opinion filed October 4, 1983.

      Mundelsohn & Simmons, of Godfrey, for appellant.
    Stephanie Robbins, of Earl L. Vuagniaux, of Edwards-ville, EC., for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Petitioners, Margie Lee Tegeler and her mother, June Helen Smith, co-plenary guardians of the person and estate of Florence Donnelly, filed an interim report and a petition seeking, inter alia, compensation for providing Mrs. Donnelly “with human contact and companionship.” The circuit court of Madison County held that these services were not compensable. The appellate court reversed (111 Ill. App. 3d 1035), and we allowed the guardian ad litem’s petition for leave to appeal (87 Ill. 2d R. 315).

Petitioner Tegeler came into contact with Mrs. Donnelly while volunteering for “Meals On Wheels,” a program established by the Senior Citizens Center and the churches of Collinsville to distribute meals to senior citizens in the community. Mrs. Donnelly was found unbathed, unkempt, and confused. The house in which she was living was infested with mice, filled with garbage, extremely hot, and in a state of disrepair. Petitioners began visiting Mrs. Donnelly on a daily basis to help her with her personal hygiene and dietary habits. Mrs. Donnelly appointed petitioners her attorneys in fact, and later petitioners were appointed temporary co-plenary guardians.

Petitioners attempted to locate Mrs. Donnelly’s family so that she could be united with them and they could “take over.” Petitioners discovered that Mrs. Donnelly had an 85-year-old half-brother who lived in Michigan. Petitioner Smith communicated with him and advised him of Mrs. Donnelly’s situation.

Mrs. Donnelly’s half-brother and a member of his family came to Collinsville and visited Mrs. Donnelly for approximately one hour. They met with petitioners, visited the Eden Village Care Center, the nursing home in which petitioners intended to place Mrs. Donnelly, approved of the arrangements, and signed documents which stated that they “asked that June Smith and Margie Tegeler, become full legal guardians of Florence Donnelly.” They visited Mrs. Donnelly once more.

Mrs. Donnelly was placed in Eden Village. Petitioners visited her every day for the first week she was in Eden Village, and at least three times each week thereafter, bringing her food, cakes and candy, helping her change clothes, combing her hair, and making sure she brushed her teeth. Petitioners took Mrs. Donnelly on trips to Pere Marquette, St. Clair Square shopping mall, and various restaurants. For Halloween, petitioners brought over Halloween candy and a pumpkin, and carved the pumpkin at the home with Mrs. Donnelly. For Thanksgiving, petitioners brought Mrs. Donnelly to petitioner Smith’s home for dinner. For Christmas, petitioners and two of their family members spent Christmas Day with Mrs. Donnelly, opening presents, taking photographs, going out to dinner, and driving around the city. At one of the hearings petitioner Tegeler stated: “She is just like a grandmother. We have actually just adopted her in our minds as part of our family, and she is part of our family.” Petitioner Tegeler stated that she had spoken with one of the members of the board of directors at Eden Village concerning putting the resident’s night clothes on in the evening, and indicated that she will “become part of the Board *** to make sure that everything stays on an even keel at Eden.” When petitioner Tegeler was asked concerning Mrs. Donnelly’s need for visitation, she explained:

“Yes. I think so. The more we visit, the more we do with her, the more we take her out, the more we come in contact with her the better off she is. I mean, she is hooking a rug now. When she first started about four or five weeks ago, we tried to do this rug and it was hard for her to do. She couldn’t get the hang of it, and now she is doing a couple rows, you know, on her own. And she couldn’t do that without us going and saying okay, here, this is how you do it. And she’s getting around better. She’s more alert. She participates in everything that’s out there. And at first, it took a while to get adjusted. They told us it takes around six months to really get adjusted. And she likes to shop. And we have fun going out shopping and stuff. And I think it’s very important to her as a person. I see a lot of people in there, how they are in there. And their families don’t visit them. And it’s sad. It is really sad. I myself wouldn’t want this to happen to me.”

Approximately one month after Mrs. Donnelly was placed in Eden Village, petitioners petitioned for appointment as her co-plenary guardians.

Petitioners filed their interim report and petition seeking, inter alia, payment for their services. The petition stated that petitioners had spent over 444 hours in activities concerned with Mrs. Donnelly, and that “most importantly and representing the largest time consumption, petitioners have befriended Mrs. Donnelly and have provided her with human contact and concern visiting her regularly, not less than three days each week, occasionally buying her small items to brighten her life, the latest such item being a mechanical dog which thrilled her, and also the taking of Mrs. Donnelly on occasional shopping excursions. The providing of human contact and companionship, while time consuming, is believed by petitioners to be the greatest source of support and joy to Mrs. Donnelly and it is respectfully suggested to the court that it is essential to her happiness and well being.” The guardian ad litem filed a pleading styled “Additional Guardian Ad Litem’s Answer” in which he denied the allegations of the petition and interim report and objected to paying $1,350 to each of the plenary guardians. At the hearing, petitioner Tegeler testified that Mrs. Donnelly’s monthly income was approximately $1,400 and that her monthly bill at Eden Village was $1,100. She testified that Mrs. Donnelly paid approximately $20 per month in doctor bills. It was explained that at Christmas time petitioners had taken Mrs. Donnelly “to the mall to shop *** for Christmas presents for John [Mrs. Donnelly’s half-brother] and herself ***.” Petitioner Tegeler indicated that, while in some of the stores, Mrs. Donnelly said she wanted to get petitioner Smith a gift. A total of $1,107.75 was spent, “gifts” for petitioners totaled $435.75, and “gifts” to Mrs. Donnelly totaled $672. A ring which Mrs. Donnelly picked out for her birthday cost $266, and a gold chain, also purchased for her birthday, cost $135. The estate paid for all of these “gifts.”

The circuit court, in its order, noted that according to the petition and interim report, “The Guardians have devoted most of the time for which they seek compensation to providing her with human contact and concern by visiting her regularly.” Noting that the question of whether such services were compensable was one of first impression the court ruled:

“Before addressing this issue, the Court feels it most appropriate to state that the motives of the Guardians are not viewed as questionable by the Court. However, the utmost care must be taken to protect the interests of a ward who has been found not to have the capacity to care for her own person and estate such that plenary guardians were appointed for her. Having had plenary guardians appointed for her person and estate, Florence Donnelly no longer has the capacity to contract for services not required by the legal relationship of guardian and ward regardless of whether she desires or appreciates the services. The Court must then consider the issue regardless of the good motives of the Guardians or appreciation by the ward for the companionship afforded her by them.
The Court finds that services related only to the emotional needs of the ward should not be compensable to the Guardians. The Court reaches this conclusion after evaluating the legal relationship between guardian and ward and after giving due consideration to the need for protecting a ward from possible abuse of her funds.
The ward presently resides in a nursing home. Certain activities and companionship are inherent in such an environment. Certainly, the Guardians have added to the emotional gratification of this ward and the Court hopes they will continue to do so out of the love and affection they have voiced for her. The Court finds that services related to the care of the person of Florence Donnelly that are not ordinarily provided by the nursing home staff should be compensable to the Guardians.”

The court disallowed certain expenditures, set limits on certain future expenditures, awarded each guardian $1,000, less credit for any compensation already received, and found “that a proper rate of compensation for near future services by them would be $3.00 to $5.00 per hour depending on the nature of the service.”

The appellate majority found that the term “services” in section 27 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 27 — 1) was unambiguous and included services performed exclusively for the emotional needs of the disabled adult. The appellate majority agreed with petitioners’ position that since section 11a — 17 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 11a — 17) required the personal guardian to “assist the ward in the development of maximum self-reliance and independence” and to file reports informing the court of, inter alia, “the current mental, physical, and social condition of the ward” and “the guardian’s visits with and activities on behalf of the ward,” the personal guardians should be paid for performing these duties. The appellate majority dismissed the argument that its holding would encourage self-dealing and excessive charges to the estate, reasoning that the possibility of such abuse does not require that such services should not be performed or compensated, and that since all representatives’ fees are within the strict control of the court, the circuit court could effectively control such abuses. Finally, the appellate majority noted that many of the tasks performed by the personal guardian served multiple purposes, and that great administrative difficulties would result “in attempting to differentiate between noncompensable services ‘performed exclusively in relation to the emotional needs of the ward’ and other, compensable, services.” 111 Ill. App. 3d 1035, 1038.

Petitioners add that the legislative history of the statutes being construed makes it clear that their purpose was to “broaden, intensify, and activate the interrelationship between the guardian and the ward.” Emphasizing that Mrs. Donnelly’s circumstances are unique, petitioners argue that because she has no relatives within 300 miles of her present residence, has ample funds to pay for these services, and has higher intellectual capacity than the average resident of Eden Village, she needs and deserves these services. Finally, petitioners assert that the circuit court overlooked “the emotional and physical wear and tear of dealing with an elderly, mentally disabled person.”

The dissent argued that neither statute mentions “emotional needs” and that attending to such needs does not assist “the ward in the development of maximum self-reliance and independence.” The dissent argued that untrained laymen should not be able to determine how much companionship is necessary for the ward, supply those services, “assess the net effect of their work and then pay themselves therefor.” (111 Ill. App. 3d 1035, 1041.) The dissent argued that allowing fees and expenses for such services “will open the estates of wards to gross abuse and waste.” (111 Ill. App. 3d 1035, 1040-41.) The dissent cited the “gift exchanging” between petitioners and Mrs. Donnelly as an example of such gross abuse and waste. (111 Ill. App. 3d 1035, 1041.) The dissent conceded that companionship, meal sharing, and gift giving “would naturally work a benefit” to the ward, but argued that “[djuring these times of fun and laughter presumably the guardians were also enjoying themselves, so arguably the ward’s estate should be granted an offset for the reciprocating fun and laughter enjoyed by the guardians.” 111 Ill. App. 3d 1035,1041.

The guardian ad litem adds that the circuit court noted that Mrs. Donnelly does not have the capacity to decide whether she wants the companionship of petitioners. The guardian ad litem asserts that if petitioners have adopted Mrs. Donnelly into their family, she should not have to pay every time she is brought into the family circle.

The evidence shows that Mrs. Donnelly’s estate is worth more than $90,000 and produces income estimated at $280 per month more than her monthly expenses. We find apposite here the statement found in May v. May (1872), 109 Mass. 252, 256-57:

“Under such circumstances, the question is not whether the proposed outlay *** is strictly judicious and expedient in an economical sense; nor whether a trustee, acting for the benefit of minors, and bound to increase the fund in his hands by all proper means, would be justified in incurring such an expenditure; but whether it would be unreasonable and extravagant to allow such an investment from this particular estate. We do not think that when the management of the property is taken out of the ward’s hands, for his own good, the law intends to deprive him of the enjoyment of his wealth, except so far as the necessity of the case absolutely requires. We see no reason why the wishes and tastes of the ward may not properly be considered in such cases, provided the expenditure is for a purpose that is unobjectionable in itself and can be afforded without material inconvenience to his financial position, especially where there is neither wife nor child whose interests can be affected unfavorably. It could not be said to be an unreasonable expenditure for a man of like fortune and circumstances not under guardianship; and we think that the fact of guardianship furnishes no sufficient ground, in the present case, for its disallowance.”

We are not aware of any reason why the circuit court would be unable to control and properly determine the compensation reasonably allowable under section 27 — 1. Nor do we perceive any difficulty in evaluating any offsetting benefits accruing to the guardians in determining the appropriate fee. Indeed, the circuit court’s limitation on the dollar amount of gifts to be purchased by or for Mrs. Donnelly demonstrates the ability of the court to control perceived abuses.

For the reasons stated, the judgment of the appellate court is affirmed, and the cause is remanded.

Affirmed and remanded.


author: JUSTICE WARD

text:
    (No. 58154.
    GLENDA SUE WALLACE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (The Nestle Company, Appellee).

      Opinion filed October 4, 1983.

      Jack Randall, of St. Louis, Missouri, for appellant.
    Donald L. Smith, of Hoagland, Maucker, Bernard & Almeter, of Alton, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

Glenda Sue Wallace filed an application for adjustment of claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for an accidental injury arising out of and in the course of her employment in Granite City by the respondent, Nestle Company. The application. stated that on November 6, 1979, she had suffered burns above the knee on her right leg. After a hearing, the arbitrator concluded that the claimant had sustained only a noncompensable disfigurement and denied the claim for compensation. (See Ill. Rev. Stat. 1979, ch. 48, par. 138.8(c).) The Industrial Commission affirmed the arbitrator’s decision, and the circuit court of St. Clair County confirmed the Commission’s finding. The claimant appealed directly to this court under Rule 302(a)(2) (87 Ill. 2d R. 302(a)(2)).

The hearing before the arbitrator was held on July 20, 1981. The claimant, the only witness at the hearing, testified that on November 6, 1979, she was injured when a three-inch-diameter pressurized steam hose broke and struck her right leg. Hot water and steam from the broken hose caused a burn two inches in diameter above her right knee. She reported the accidént to the company doctor, who removed the burned skin and applied a salve and dressing. The claimant did not lose time from work because of the injury, but she was placed on light-duty status for a month. She testified that she continues to experience sensitivity and an irritation of the affected area due to the rubbing of her clothes against the scar tissue.

The evidentiary deposition of Dr. Joseph Morrow, the claimant’s osteopathic physician, was received into evidence. Dr. Morrow testified that he examined the claimant on September 13, 1980, and found a 2½-inch pink scar on her right thigh two inches above the knee. He said that there was normal motion of the right leg and hip without pain. The patient, however, complained of a mild burning sensation of the scarred area upon abduction of the right thigh. She also complained of sensitivity of the area and irritation when wearing tight-fitting clothes. He testified that, based on his examination and the complaints of Mrs. Wallace, his diagnosis was that she had had a second-degree burn of the anteromedial right thigh with a resultant 2½-inch pinkish discolored scar as a permanent cosmetic defect. When questioned further, Dr. Morrow stated that the claimant had a mild permanent partial disability to the body as a whole, attributable to a disability of the right lower extremity.

That the accident occurred as described has not been questioned. There was no question as to whether the injury arose out of and in the course of the claimant’s employment. The only finding made by the Commission on its review of the arbitrator’s decision was regarding the nature and extent of the injury. The question on this appeal is simply whether the finding of the Industrial Commission that the claimant did not sustain a compensable injury is against the manifest weight of the evidence.

Determining the nature and extent of injury is primarily the responsibility of the Industrial Commission. (Flores v. Industrial Com. (1981), 87 Ill. 2d 48, 54; John v. Industrial Com. (1980), 81 Ill. 2d 145, 151.) Findings made by the Commission will not be set aside unless they are contrary to the manifest weight of the evidence (Ford v. Industrial Com. (1981), 86 Ill. 2d 126, 130; Pruiett v. Industrial Com. (1976), 65 Ill. 2d 240, 243), and this is so, though this court might not have reached the same conclusion if it had served as the finder of fact.

The claimant argues that since her testimony and the evidentiary deposition of Dr. Morrow were unrefuted by the respondent, the finding of the Industrial Commission is without foundation and must be set aside. What is involved, however, may not be so simply put. There are other factors to be considered. A claimant has the burden of proving all the elements of the claim in order to establish a right to compensation. (Greater Peoria Mass Transit District v. Industrial Com. (1980), 81 Ill. 2d 38, 43.) The burden of the claimant here was to prove a compensable injury by a preponderance of credible evidence. (A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 488.) Here, the arbitrator, the Commission and the circuit court judged that the claimant failed to prove that she had sustained a compensable injury.

The Act provides that disfigurement of the leg at a location above the knee is not compensable. Section 8(c) provides:

“For any serious and permanent disfigurement to the hand, head, face, neck, arm, leg below the knee *** the employee is entitled to compensation for such disfigurement ***.” (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(c).)

The testimony of the claimant did not establish any permanent partial disability due to the two-inch scar. She returned to work immediately after the accident. She has full range of motion in the leg and hip, and apart from minor irritation experienced when wearing panty hose, the claimant’s complaint basically involves only a cosmetic disfigurement.

Dr. Morrow testified to the sensitivity of the skin at the scar area, but did not add any clear testimony to show there was permanent partial disability. Rather, he testified on cross-examination that all range-of-motion tests performed on claimant were within normal limits and without pain. Furthermore, when asked for his diagnosis, he testified there was the scar, constituting a permanent cosmetic defect. Later, he expressed his view that there was permanent partial disability to the body as a whole due to the scar.

The evaluation of the testimony here was within the province of the Industrial Commission. It is its function to determine the credibility of witnesses and the weight to be given testimony. Hart Carter Co. v. Industrial Com. (1982), 89 Ill. 2d 487, 495.

We cannot say from this record that the finding of the Commission was contrary to the manifest weight of the evidence.

We would note that an appeal involving circumstances similar to those here was recently before this court. In Peters v. Industrial Com. (1983), 95 Ill. 2d 301, the Commission found that the claimant’s injury had resulted in a one-centimeter scar above the knee and no permanent disability. Citing section 8(c) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(c)) we held that a disfigurement of the leg above the knee is not compensable.

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

Judgment affirmed.


author: JUSTICE CLARK

text:
    (No. 57428.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DAVID C. ZILTZ, Appellee.

      Opinion filed October 4, 1983.

      Neil F. Hartigan, Attorney General, of Springfield (Michael B. Weinstein, Darrell Panethiere, and Jack Donatelli, Assistant Attorneys General), of Chicago, for the People.
    John F. Donahue, of Oak Brook, and George Bakalis, of Civinelli, Bakalis & Culliton, of Bloomingdale, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

Defendant, David Ziltz, was arrested on May 16, 1982, and charged with operating a motor vehicle with a blood alcohol concentration in excess of 0.10, a statutory offense in Illinois (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501(a)(1)). A second count charged the defendant with driving under the influence of alcohol (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501(a)(2)). On September 21, 1982, the defendant filed a motion to dismiss count I on the grounds that the statute is unconstitutional because it calls for a presumption of guilt on the part of the defendant. The circuit court of Du Page County-granted defendant’s motion to dismiss count I, and a direct appeal to this court was taken pursuant to Supreme Court Rule 302(a) (87 Ill. 2d R. 302(a)).

Section 11 — 501 of the Illinois Vehicle Code provides in pertinent part:

“(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
1. The alcohol concentration in such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11 — 501.2;
2. Under the influence of alcohol; ***.” Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.

Three issues are presented on appeal: (1) whether the defendant has standing, (2) whether the issue is ripe for judicial determination, and (3) whether the trial court erred in holding that the statute is unconstitutional.

We turn now to the issue of standing. At first blush, it appears that the defendant clearly has standing because he is a member of a class of persons, automobile drivers, affected by the quoted statute. However, the State bases its argument on the application of the statute to a hypothetical situation. The State argues that since the defendant was not prosecuted under the presumptions section of section 11 — 501.2(b), he does not have standing to challenge the constitutionality of the statute. We find this argument to be without merit, because a defendant has standing to challenge the validity of a statute if he or she has sustained, or is in the immediate danger of sustaining, some direct injury as a result of enforcement of the statute. People v. Mayberry (1976), 63 Ill. 2d 1, 8; Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 550-51.

The next issue raised in this appeal is whether the statute is ripe for judicial determination. The State argues that the challenge to the statute is premature and that the damages are too speculative to adjudicate at the present time. A controversy is ripe when it has reached the point where the facts permit an intelligent and useful decision to be made. (Werner v. Illinois Central R.R. Co. (1942), 379 Ill. 559, 565.) In the case at bar, the defendant has been arrested and charged with a criminal offense. The facts have been presented to this court, and there is no need to speculate as to harm the defendant will suffer if convicted. The case is clearly ripe for judicial determination.

The trial court found that section 11 — 501(a)(1) (count 1) was unconstitutional because it violated defendant’s right to due process (due process guarantees of fifth amendment made applicable to the States by the fourteenth amendment) (U.S. Const., amends. V, XIV) by creating a mandatory presumption of guilt on the part of the defendant and by shifting the burden of persuasion to the defendant to establish innocence. The trial court denied the motion to dismiss as to count II.

Section 11 — 501(a)(1) incorporates the definition of blood and breath units found in section 11 — 501.2(a) of the same act, and the trial court read subsection (b) of section 11— 501.2, which applies, the State contends, to the offense of driving while under the influence of alcohol, into section 11 — 501(a)(12). Section 11 — 501.2(b) provides for certain presumptions when the alcohol concentration is at a stated percentage. Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.2(b).

The State argues, and we agree, that the trial court erred in reading the inappropriate subsection into an otherwise valid and constitutional statute.

The obvious legislative intent in enacting section 11— 501(a)(1) was to impose a strict liability on drivers found to be impaired by an alcohol concentrate of 0.10% or above. Defendant argues, and the State admits, that holding the driving of a motor vehicle with more than 0.10% concentrate is an offense by itself does away with all necessity for the State to show impairment. The legislature has made the determination that driving with an alcohol concentrate of 0.10 or above does constitute impairment. The State has a rational basis for curbing the incidence of drunk driving, and the Illinois statute is a reasonable means of promoting that interest. (Roberts v. State (Fla. 1976), 329 So. 2d 296, 297.) The statute is no more arbitrary than statutes setting maximum speed limits and is a reasonable exercise of the police power vested in the State. State v. Franco (1982), 96 Wash. 2d 816, 825-26, 639 P.2d 1320,1325.

When the State has proved that the defendant was operating the vehicle and his blood alcohol concentrate was over 0.10%, there are no presumptions or inferences, and the statutory violations have been proved. Subsections (b)(3) and (b)(4) of section 11 — 501.2 (Ill. Rev. Stat. 1981, ch. 95½, pars. 11 — 501.2(b)(3), (4)) relate only to the statutory offense of driving while under the influence of alcohol, which is defined in section 11 — 501(a)(2), not in section 11— 501(a)(1). Here we are dealing with a charge of driving with a blood alcohol level over 0.10%, which has nothing to do with the separate statutory offense of driving under the influence of alcohol.

We do not agree with defendant’s contention that the statute violates due process because it shifts the burden of proof from the State to the defendant. Under section 11— 501(a)(1), the State still has the burden of proving the essential elements of its case. The State must establish that the defendant was in exclusive control of the vehicle and had a level of alcohol in excess of 0.10% in his blood. If the State did not meet this burden of proof, count I would be dismissed.

The term “burden of proof” includes both the burden of producing evidence and the burden of persuading the trier of fact. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452.) The burden of persuasion does not shift but remains with the party that had the benefit of the presumption. (Diederich v. Walters (1976), 65 Ill. 2d 95, 100-03.) In the case at bar, the State will always have the burden of proving the elements of its case. This is consistent with the standards set down by the United States Supreme Court in Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450. The Sandstrom court held that a presumption that has the effect of shifting the burden of persuasion to the defendant is unconstitutional. That is not being attempted in the case at bar, because the State must still persuade the trier of fact that the defendant was operating a motor vehicle and had a blood alcohol content in excess of 0.10%.

Illinois courts have consistently rejected constitutional attacks on the drunk-driving statute. (People v. Seefeldt (1983), 112 Ill. App. 3d 106. People v. Malik (1983), 113 Ill. App. 3d 206.) Many other jurisdictions have held that a blood alcohol content in excess of 0.10% is a per se violation of the State drunk-driving statute. (See, e.g., State v. Torrey (1978), 32 Or. App. 439, 574 P.2d 1138; State v. Basinger (1976), 30 N.C. App. 45, 226 S.E.2d 216; Coxe v. State (Del. 1971), 281 A.2d 606; Greaves v. State (Utah 1974), 528 P.2d 805; State v. Ball (W. Va. 1980), 264 S.E.2d 844.) We therefore conclude that the Illinois statute does not violate constitutional guarantees of due process.

The judgment of the circuit court of Du Page County is reversed, and the cause remanded for further proceedings.

Reversed and remanded.