author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 49709.
    MID CENTRAL TOOL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al.-(William J. Triplett, Appellee.)

      Opinion filed Sept. 19, 1978.

    — Rehearing denied Dec. 1, 1978.

      Henry D. Noetzel and Associates, of Peoria (Henry D. Noetzel, of counsel), for appellant.
    J. Michael Madda and Walwyn M. Trezise, of Chicago (Charles Wolff, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

In proceedings under the provisions of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) filed by William J. Triplett, claimant, for injuries sustained on December 15, 1973, the arbitrator found that claimant failed to prove that he sustained an accidental injury arising out of and in the course of his employment with Mid Central Tool Company, respondent. The Commission, on review, heard additional testimony, reversed the arbitrator and entered an award for permanent total disability. The circuit court of Livingston County confirmed the Commission’s decision. Mid Central appealed under Rule 302(a) (58 Ill. 2d R. 302(a)).

On appeal the respondent takes the position that the accident neither arose out of nor in the course of the employment and that the disabling condition was neither caused nor aggravated by the accident.

Respondent is a small manufacturing company with about 35 employees. On Saturday evening, December 15, 1973, a Christmas party was held for its employees at the American Legion Hall in Forrest, Illinois. All arrangements were made by Marie Gaston, a payroll supervisor who worked under the direction of Mrs. Frank Griner, secretary-treasurer of the company and wife of its president. Frank Griner, the president, was notified several months in advance that the Legion Hall had been selected for the party. He arranged to pay for the use of the facility, the food and the drink. All the food and drink was furnished by the company. None of the employees had to pay for the refreshments. Triplett testified that the employees at Mid Central did not have an employees’ association of any kind and that, to his knowledge, none of the employees were consulted in regard to making any of the arrangements. He did not see or hear of any of the employees participating in the planning of the party. The employees were informed of the Christmas party by the company approximately three to four weeks in advance. A notice was posted on a bulletin board attached to a trailer office in the plant which Frank Griner occupied. Petitioner testified that the notice specified the date, time and place, and urged everybody to attend. Each employee was allowed to bring either a “wife, husband or guest.” The notice was part of a long sheet of paper on which there were lines for the employees who were going to attend to so signify by signing their names and to indicate whether they were coming alone or with someone else. Several weeks before the party, a second notice was given to each of the employees reminding them to attend the party. A shipping clerk or stock chaser brought a paper around to be signed by each employee who was going to attend. Those who did not sign the paper when it was on the bulletin board signed it when the stock chaser brought it around. Further, when the employees received their pay envelopes there was, attached to the paycheck, another notice. It stated as follows:

“Mid-Central — Christmas Party — Saturday, 15 December — Legion Hall — 7 p.m. For all employees and their wife, husband or guest. Please sign up on the list on the bulletin board in the shop. Hope we can see you there! Get your name on the list by 30 November. Management.”

Frank Griner, Jr., son of the president and foreman in the plant, passed out the paychecks with the Christmas party notice attached.

Triplett testified further that a few days before the Christmas party he spoke to Frank Griner, the president, William Chapman, the general foreman, and Les Baker, the foreman of the punch presses. Baker wanted to know if Triplett was going to attend and if he was going to bring his wife. Baker said there was an opening for a punch press operator and they wanted to talk to Mrs. Triplett to see if she would come to work. Frank Griner also wanted to know if Triplett was going to bring his wife to the party and asked whether she might be coming to work for the company. Frank Griner, the president, testified, on the other hand, that he had nothing to do with the Christmas party despite the fact that he admitted he was informed of it two months in advance, gave his consent, paid for the facilities, the food and drink, and attended the party. He was asked why he paid for the Christmas parties, if he was against them. His reply was that, “Well, you no doubt know from Mr. Triplett’s salary, that the salaries paid by the company aren’t the greatest yet the people want something for Christmas. So out of Mid Central’s generosity we picked up the tab.” The arbitrator then asked him why he wrote out a company check for the party. Mr. Griner answered, “As I said, it was goodwill. The employees want to get together. I knew they really couldn’t afford it, so I offered to pay for it.” Inasmuch as Griner admitted that one of the purposes of a Christmas party was to create employee goodwill, he was asked whether this was what he had in mind for the 1973 Christmas party. He admitted that it was, that he knew Mid Central was going to pay the expenses for the party, and that he, as president of Mid Central, makes the decisions for the corporation and was speaking for it as its president.

Triplett testified that on Saturday, December 15, he stopped working at approximately noon, and went home. That evening, about 7 p.m., he and his wife left home for the party. Triplett drove his car to the Legion Hall and arrived at 7:05 p.m. When he arrived there, he saw William Chapman and Frank Griner. He remained at the party for approximately one and a half to two hours. Food, consisting of sandwiches and potato salad, were served. Whiskey, beer and soft drinks were also served. No charge was made to the employees for the food or drinks.

Triplett stated he talked to Frank Griner, William Chapman and Les Baker. Griner, Triplett and his wife were standing at the bar. After a little conversation, Griner asked Mrs. Triplett if she was going to go to work for him. She told him that she had never run a punch press. He said it did not matter because Les Baker would show her what to do.

Triplett and his wife left the party at about 9 p.m. Their car was parked across the street from the Legion Hall. There had been sleet and freezing rain that day, and the streets were icy. Mr. and Mrs. Triplett left the hall and walked across the street to the car. As Triplett started to open the door for his wife to get in, his feet slid out from under him and he fell down and hit the back of his head on the icy pavement. The impact knocked him unconscious. When he woke up, he was sitting in the back of his car with his wife. Another employee was driving him home. Les Baker and William Chapman followed in another car, helped him into the house, and put him into a chair near the doorway.

As a result of the fall, Triplett suffered injury. He saw Dr. T. L. Minogue, the company doctor, the next day, who sent him to the Fairbury Hospital for X rays. They revealed a fracture of the skull. Triplett said he was suffering from headaches, dizziness, nausea and general weakness, and was referred to St. Francis Hospital in Peoria under the care of Dr. Lawrence B. Holden. He spent most of the days from Décember 18 to December 26, 1973, in the hospital getting bed rest. During that time he noticed that whenever he got out of bed he experienced dizziness and was continually veering to the right when trying to walk.

After Triplett left the hospital, he attempted to work, but when he did so, he became dizzy, had headaches, felt generally weak, and would veer always to his right side when walking. If he worked 4 hours, he said it was just like being on his feet for 10 or 12 hours. As a result, he stopped working after two weeks.

Triplett then saw Dr. Dorothy H. Schultz of Champaign on January 30, 1974. After giving him a neurological examination, in which she checked his heart, blood pressure, reflexes, hearing and sight, Dr. Schultz had Triplett admitted to Mercy Hospital. He stayed there two weeks. A series of tests was made on him, including an EKG, angiogram, brain scan, and neuroencephalogram. Other tests involved sticking needles into his throat and spine and pumping fluid and air into his head. After the tests were completed, he was taken to surgery and a valve or pump was inserted into his head. The valve was connected to one tube which went into the right side of his head, and the other end was placed in his abdomen. The purpose of the pump was to relieve fluid pressure in his head. The diagnosis from the tests given to him at Mercy Hospital stated that Triplett was suffering from “post-craniocerebral trauma with skull fracture; hydrocephalus, myasthenia gravis and diabetes mellitus, borderline.”

When Triplett came out of surgery, he testified he suffered a paralysis on the left side, which affected his arm and leg. He was suffering from headaches, and his nerves were bothering him. Also, while he was in the hospital, he began to notice that he was having difficulty in chewing. His jaws would become tired, and he could not chew a number of certain meats. The muscles in his neck and eyelids would grow tired and, as a result, his eyelids drooped. These were the symptoms of myasthenia gravis.

Dr. Schultz prescribed medication for the paralysis, which cleared up to a large extent, and pain relievers and Valium for Triplett’s headaches and nerves. For myasthenia gravis, he was given drugs called Mestinon and Mestinon Timespan. After leaving the hospital, and while continuing to see Dr. Schultz, he noticed that the weakness in his arms and legs was becoming worse. In addition, he was unable to use the muscles of his jaws to chew and was only capable of eating soft foods. Dr. Schultz increased the dosages of Mestinon and Mestinon Timespan. During this same period of time, Triplett continued to suffer from dizziness and headaches.

Dr. A. Edward Livingston, licensed in Illinois since 1938, a specialist in internal medicine, and affiliated with all the principal hospitals in Bloomington, examined Triplett on October 4, 1974. After completing a general examination of Triplett’s eyes, ears, nose, throat, chest, heart, abdomen, genitalia, rectum and neuromuscular system, Dr. Livingston found that there were increased deep reflexes on Triplett’s left extremities and a positive ■ Romberg sign to the right. He found that the patient was unable to remain in an upright position, was subject to falling down and was unable to maintain his balance, indicating that spacial acuity had been lost. The increased reflexes indicated irritation on the right side of the brain.

A hypothetical question was propounded to Dr. Livingston. In responding to it, based on a reasonable degree of medical certainty, Dr. Livingston stated that there was a causal relationship between the accident of December 15, 1973, and the subsequent condition of Triplett’s ill-being. His opinion was based on the facts that prior to the accident the patient did not have any symptoms, that as a result of the accident the patient sustained a skull fracture, and that the patient’s response to that injury followed along lines of actual damage to the brain. It was Dr. Livingston’s opinion that Triplett suffered brain damage secondary to the head injury sustained in the fall. He further stated that as a result of the injury, Triplett had suffered a disturbance of the labyrinth, which impaired the balancing mechanisms extending from the ear to the brain. This condition resulted in ataxia and the positive Romberg, or falling to the right.

Dr. Livingston’s report also stated that the hydro-cephalic condition is a blockage of the communication of fluid between the brain and spinal canal, and was a result of damage, to the brain substance. Normally, the fluid constantly circulates with absorption which maintains a specific tension in the whole system. If circulation of the fluid is blocked, as the tests revealed in Triplett’s case, hydrocephalus occurs.

The hospital report introduced into the record also shows that following the injury Triplett had a myasthenia gravis condition, a destruction, to a certain extent, of the ability of the nerves to transmit impulses. The test to determine the presence of myasthenia gravis is called a tensolin test, and in Triplett’s case it was positive. Dr. Livingston stated that there was a causal relationship between the accident and Triplett’s myasthenia gravis. His reasons were not merely that the patient did not have the condition before that he had now, but, the doctor stated, the injury producing the hydrocephalus affecting this particular part of the brain could conceivably be in the same area. He also stated that although one would not associate hydrocephalus with myasthenia gravis, the injury that produced one could conceivably have produced the other.

Myasthenia gravis, in the doctor’s experience, usually followed other illnesses such as pneumonia or similar conditions. These illnesses act as a kind of stress on the body, which precipitate the onset of myasthenia gravis. The fact that Triplett’s medications for myasthenia gravis were increased from time to time indicated, the doctor stated, that the condition was not under very good control. Dr. Livingston further stated that if the medications were withdrawn, it would put Triplett into a crisis with regard to muscular activity, which would diminish to a point where he might not be able to breathe.

First, respondent argues that this is not a compensable situation. In support of this position, it cites certain cases, which we consider inapposite.

The record here discloses that respondent had held its annual Christmas party for its employees for at least the past three years. In prior years Frank Griner, Jr., the president’s son, invited the employees to dinner and drinks at a tavern in the vicinity. This proved unsatisfactory because outsiders would join the party, and it was felt that the bill was padded. The instant arrangements for the Christmas party were again made by Marie Gaston, payroll supervisor under the direction of Mrs. Frank Griner, secretary-treasurer, to be held on December 15, 1973, at the American Legion Hall. Frank Griner, the company president, was notified several months in advance that the Legion Hall had been selected. He arranged to pay for the use of the facility, the food and the drink. All the food and drink were furnished by the respondent. Mid Central, according to the claimant, did not have an employees’ association.

We considered a situation with similar facts in Lybrand, Ross Bros. & Montgomery v. Industrial Com. (1967), 36 Ill. 2d 410. There the employer held a golf outing each year. An employee handled the arrangements for the affair, to which employees were invited. The employees were encouraged to attend. The employer provided the food and drinks and paid for the occasion. Employees arranged for their own transportation. The claimant-employee drove 50 to 60 miles from home to the club where the outing was held and participated in the event. After leaving the club at about 12:45 a.m., he was involved in an automobile accident and died. We confirmed the award of compensation, stating:

“Besides the compelling influence to attend, important also are the facts that the employer sponsored, arranged, and wholly financed the outing. Moreover, it is fair to assume that the employer obtained the ‘significant if not tangible’ benefit of improved employee relations (Jewel Tea Co. v. Industrial Com. 6 Ill. 2d 304), and we believe the spirit and philosophy of that case controlling here.” (36 Ill. 2d 410, 418.)

We held there that the ordinary “going and coming” rule denying compensation, where the injury occurs while the employee is traveling between his residence and normal place of employment, did not apply where the travel is to a place other than the normal place of employment and is undertaken incident to the employment and for the accommodation of the employer. Lybrand, Ross Bros. & Montgomery is dispositive of that issue here. We therefore find the Christmas party was an incident of petitioner’s employment and that the injury was compensable under the Workmen’s Compensation Act.

Respondent raises, as a second issue, the contention that Dr. Livingston’s testimony was not sufficient to prove a causal relationship between petitioner’s accident and his state of ill-being, although, according to the record before us, this was not argued before the Commission or in the circuit court. The doctor, a specialist in internal medicine practicing since 1938 and associated with principal hospitals in Bloomington, gave his opinion, based upon a reasonable degree of medical certainty, that the condition of ill-being was related to the injury: (1) the skull fracture; (2) the brain damage giving rise to the ataxia, or veering to one side, and the positive Romberg, the inability to remain in an upright position; (3) the hydrocephalus; and (4) the myasthenia gravis. He said the brain damage produced the ataxia and the positive Romberg, and involved the ear balancing mechanism in the brain itself. “The injury producing hydrocephalus [disturbance in the fluid-draining mechanism in the brain] affecting this particular part of the brain could conceivably be in the same area [as the situs of damage giving rise to myasthenia]. In other words, one would not associate it with it, but the injury that produced one could conceivably produce the other.”

Respondent offered no medical evidence in its own behalf, and the petitioner’s proof of permanent ill-being stands uncontradicted and unrebutted. The Commission’s finding of permanent total disability and a causal relationship between petitioner’s accident and subsequent ill-being was based upon the interpretation, weight, and credibility of the unrebutted medical testimony contained in the record before it. Its determination is not against the manifest weight of the evidence and will not be disturbed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE WARD

license: Public Domain

text:
    (No. 50439.
    GENEVIEVE M. GIGANTI, Appellant, v. THE INDUSTRIAL COMMISSION et al.—(Illinois Bell Telephone Co., Appellee.)

      Opinion filed Sept. 19, 1978.

    Rehearing denied Dec. 1, 1978.

      Thomas F. Londrigan, of Londrigan & Potter, P.C., of Springfield (Alexandra de Saint Phalle, of counsel), for appellant.

      Douglas F. Stevenson and Weston W. Marsh, of Rooks, Pitts, Fullagar & Poust, of Chicago, for appellee.
    Harold A. Katz, Irving M. Friedman, Jerome Schur, and Warren E. Eagle, of Katz, Friedman, Schur 8c Eagle, Chartered, of Chicago, for amicus curiae Communications Workers of America, AFL-CIO.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

Genevieve Giganti filed an application for adjustment of claim with the Industrial Commission, seeking compensation for injuries she allegedly received during an altercation in Springfield on the premises of her employer, Illinois Bell Telephone Company (Bell). Her claim was denied by the arbitrator and by the Industrial Commission, and the Commission’s action was confirmed by the circuit court of Sangamon County. She appealed directly to this court under our Rule 302(a) (58 Ill. 2d R. 302(a)).

On October 22, 1974, the date of the incident involved here, a recently adopted coUective bargaining agreement was in effect between members of the union of which the claimant was a member and an officer and BeH, the respondent. Copies of the agreement had not yet been circulated to the respondent’s union employees. The agreement provides in part:

“23.04 At any meeting between a representative of the Company and an employee in which discipline (including warnings which are to be recorded in the personnel file, suspension, demotion or discharge for cause) is to be announced, a Union representative may be present if the employee so requests.” (Emphasis added.)

The claimant was a vice-president and the chief clerical steward of her local. Her duties as steward included the handling of grievances and providing, under certain specified conditions, e.g., as in 23.04 above, union representation to employees in her unit. She testified that prior to the incident here she had never represented a union member.

On October 22, 1974, the claimant learned that an employee in her office, who was a union member, was being interviewed by an internal investigator of the respondent. The investigator’s inquiry related to nuisance phone calls originating from the respondent’s office. According to the claimant’s testimony before the arbitrator and her deposition which the respondent introduced, she wanted to ascertain whether the employee being interviewed was entitled to, or desired, union representation pursuant to the collective bargaining agreement. The claimant first asked her managing supervisor to call the investigator in the conference room and she did. The investigator told the supervisor that the claimant could see the employee when he had completed his interview. The supervisor refused to tell the claimant in which conference room the employee was being interviewed. The claimant then placed a call to the respondent’s Chicago office and asked an. official of Bell for an opinion as to whether she was entitled to be present at the interview. She was told he would call her back with the answer. Rather than wait for a response, the claimant decided to go to the conference room, the location of which had somehow become known to her.

The claimant testified that she knocked on the door and when it was partially opened by the investigator, an argument developed between them. What followed is in dispute. The claimant stated she asked the employee to step into the hall to speak with her, but the employee, who stayed within the room, told her, “I’ll be all right, Gen.” She testified that the investigator then struck her left shoulder with his left hand as she stood against the door and frame, and slammed the door in her face. She did not contend that she was struck by the door. She also testified that her medical expenses were paid under a company funded group insurance policy, and that she was compensated for time she lost from work under a seniority program provided by Bell.

The investigator’s version of the incident differed substantially from that of the claimant. He testified that when he received the phone call in the conference room, he told the employee with whom he was discussing the nuisance phone calls that the claimant wished to speak with her. The employee, he said, expressed irritation that anyone other than her supervisor knew about the matter, which she wished to be kept confidential. Fifteen minutes later, the claimant knocked on the door. The investigator testified that he opened the door about 18 inches and stood at the opening, with his hand resting on the handle and his right foot against the door so it could not be opened further. The claimant, he said, was in a “very emotional and irate state *** and demanded to come in.” He told her she could not. During a brief dispute, in which, he testified, the claimant was “yelling,” she tried to push the door open, using her left hand and shoulder. He kept his foot on the floor against the door until the claimant turned and left. He denied having touched her or having had any physical contact with her.

Two reports prepared by the claimant’s treating physician, Dr. H.G. Woody, were received into evidence. Her condition was diagnosed as cervical sprain and mild arthritis, and Dr. Woody further noted:

“[C] ertainly part of her problem deals with mental health and I don’t think there is nearly as much wrong with her as she thinks and certainly the incident, I think, has been blown up in her mind because it apparently was degrading to her.
*** I had hoped that she would soon realize that this was more an anxiety reaction than anything else. I’m sure she does have some pain in her neck due to the fact that she does have some mild arthritic changes and most of us who do have arthritic changes in the cervical spine do have some pain but we live with it and I’m sure she could too.”

The claimant argues that as an employee who was acting, when injured, in furtherance of her union duties on behalf of both employer and employee under a collective bargaining agreement, she was entitled to compensation. We need not consider the validity of that broad proposition, for there was no evidence that the claimant was acting pursuant to authority under the collective bargaining agreement. The interview giving rise to the conflict here was not a meeting at which the claimant’s presence had been requested, or in which discipline was to be announced. The respondent’s investigator testified that he had no authority to impose discipline.

The testimony of the claimant and that of Bell’s investigator sharply conflicted. What actually happened at the conference room door was a question of fact for the Commission to resolve, and it is axiomatic that the Commission’s finding resolving it will not be disturbed unless the finding is contrary to the manifest weight of the evidence. (Osborne v. Industrial Com. (1978), 71 Ill. 2d 546, 550.) It is clear that the Commission chose to accept the investigator’s account of the occurrence, thereby rejecting the claimant’s contention that she had been struck by him. This court reviewed the compensability of injuries arising out of physical conflicts between employees in Fischer v. Industrial Com. (1951), 408 Ill. 115, and while the following expression by the court does not precisely fit the factual situation here, it is relevant:

“Likewise, it is equally well settled that an injury in a fight between two employees arising out of a quarrel concerning the employer’s work in which they were engaged is, as to the employee not responsible for the assault, a risk incidental to the employment and therefore compensable [citations] , but the injuries to the assailant, being traceable directly to his voluntary actions as aggressor, cannot be ascribed to the conditions of the employment or considered a risk incidental to the employment and, hence, are not compensable. Armour & Co. v. Industrial Com. 397 Ill. 433; Triangle Auto Painting and Trimming Co. v. Industrial Com. 346 Ill. 609.” (408 Ill. 115, 119.)

See also Triangle Auto Painting & Trimming Co. v. Industrial Com. (1931), 346 Ill. 609, 618.

As in Fischer, there was evidence that the claimant was the aggressor and brought injury upon herself by pushing against the door. The finding of the Commission in favor of Bell was not contrary to the manifest weight of the evidence. The judgment of the circuit court of Sangamon County confirming the decision of the Industrial Commission is accordingly affirmed.

Judgment affirmed.


author: MR. JUSTICE RYAN

text:
    (Nos. 49818, 49869.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID PRECUP et al.—(Terry Lee Brummell et al., Appellants.)

      Opinion filed Sept. 19, 1978.

    Rehearing denied Dec. 1, 1978.

      Richard J. Wilson, Deputy Defender, and John L. Swartz and Barbara A. Chasnoff, Assistant Defenders, of the Office of the State Appellate Defender, of Springfield, for appellant Terry Brummell.
    James L. Palmer, of Scholz, Staff 8c Brickman, of Quincy, for appellant Steven Harness.
    William J. Scott, Attorney General, of Springfield, and Robert J. Bier, State’s Attorney, of Quincy (Donald B. Mackay, Melbourne A. Noel, Jr., and Thomas C. Crooks, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The defendants, Steven Harness and Terry Brummell, along with David Precup, were jointly indicted and tried in Adams County for armed robbery and were convicted of that offense following a jury trial. Each of these three appealed their convictions, which the appellate court affirmed, with one justice dissenting (50 Ill. App. 3d 23). We allowed petitions for leave to appeal of Harness and Brummell and consolidated the cases in this court.

In the trial court both Harness and Brummell were represented by John T. Inghram IV, a public defender, by appointment of the court. The question raised in this court is whether, under the facts of this case, dual representation by counsel deprived these defendants of their constitutional right to effective assistance of counsel.

This court has adopted a per se rule holding that it is unnecessary to establish prejudice where counsel, because of his conflicting interests or potentially conflicting interests, is or may be adversely affected in his ability to defend his client. (People v. Stoval (1968), 40 Ill. 2d 109; People v. Kester (19.77), 66 Ill. 2d 162; People v. Coslet (1977), 67 Ill. 2d 127.) However, representation of multiple defendants by itself does not impinge upon the constitutional right. The Supreme Court of the United States has held that permitting one attorney to represent multiple defendants is not a per se violation of the constitutional guarantee. (Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173.) This court has so held in People v. Durley (1972), 53 Ill. 2d 156. The practice of multiple representation, however, has been critized. (See Note, Criminal Codefendants and the Sixth Amendment: The Case for Separate Counsel, 58 Geo. L.J. 369 (1969); Cole, Time For A Change: Multiple Representation Should Be Stopped, 2 Nat'l J. Crim. Def. 149 (1976).) And the potential for a conflict of interest in representing multiple defendants is recognized in the American Bar Association standards relating to the administration of criminal justice. See ABA Standards, The Defense Function sec. 3.5 (1971).

The law is now firmly established that when a timely objection to joint representation is made and the court, nonetheless, requires joint representation of parties with conflicting or antagonistic interests, it is not required that a defendant prove that he has been prejudiced. (Glasser v. United States; Holloway v. Arkansas.) The dissenting justice in the appellate court, relying on People v. Bopp (1917), 279 Ill. 184, pointed out that in that case, as in the case at bar, the attorney represented defendants with conflicting alibis. In Bopp, this court reversed defendant’s conviction and remanded the cause to the trial court for a new trial. In Bopp, however, as in Glass er v. United States and Holloway v. Arkansas, the court was informed by counsel prior to trial that there was a conflict in the positions of the two defendants.

This case can be distinguished from Bopp, Glasser v. United States, and Holloway v. Arkansas in that in this case it was never suggested to the court by counsel or by either of the defendants, at any time before or during the trial, that there existed a potential antagonism in the positions of the two defendants which could impair counsel’s ability to fully represent them.

In the consolidated case now before this court, the record does not contain the proceedings at which counsel was appointed to represent these two defendants. This inadequacy makes it impossible to tell whether the defendants were admonished as to any possible impairment of their right to effective assistance of counsel if they were represented by the same attorney. (See ABA Standards, The Function of the Trial Judge sec. 3.4(b) (1972).) Later, at the arraignment of defendant Brummell, at which Inghram appeared representing that defendant, the colloquy between counsel and the court indicated that attorney Lawrence Blickhan had represented Brummell at preindictment proceedings. Also, both Blickhan’s and Inghram’s names appear as counsel on the post-trial motion filed on behalf of both defendants. Blickhan argued the post-trial motion to the court.

At about 12:20 a.m., August 5, 1974, three armed men robbed the Nutshell tavern in Quincy, Illinois. That same morning defendants Brummell and Harness were arrested, and later that day David Precup was arrested. The three were jointly indicted. Precup was represented by one attorney and Brummell and Harness were both represented by Inghram. Precup was identified by the operator of the tavern and by a patron as one of the robbers. Nobody identified Brummell or Harness as being involved in the robbery. Each of these men had given an account of his activities during the evening to a police officer shortly after he had been arrested. It is the content of these statements which defendants now contend creates the conflicting or antagonistic positions which they argue make it impossible for one attorney to effectively represent both. Although the written statements of these two defendants were not offered into evidence, it appears that the statements had been reduced to writing, since, during the examination of the police officer as to the statement of one defendant, Inghram stated that he had a copy of the statement. During the presentation of the People’s case in chief, the police officer testified without objection as to the account these defendants gave concerning their activities on the night of the robbery of the tavern. This officer was the last witness to testify during the People’s case in chief.

The officer testified that Harness said he went to a tavern called the Establishment (not the tavern involved in this robbery) that night at about 10:30, where he met Brummell and Precup. He and Brummell stayed at the tavern until about closing time. Precup had left previously. When he and Brummell left they went to Precup’s apartment and stayed until about 2 a.m.

This officer testified that Brummell, in his account of his activities, said that he went to the Establishment tavern that night and that Harness came in later. The officer at first stated that Brummell said they stayed until about closing time. The prosecutor then directed his attention to Brummell’s statement, and he then changed his testimony and stated that Brummell said they stayed until a quarter to 12 or 12 o’clock. However, on cross-examination after again referring to Brummell’s statement, he said that Brummell had stated they stayed until about closing time (1 a.m.). After leaving the tavern, Brummell stated that he and Harness went riding “in the north bottoms” in his car. He said that he had not seen Precup that evening and had not been at Precup’s apartment. He also stated that shortly before his arrest he did not get out of his car near the place where the police arrested him.

The defense put on several witnesses that corroborated the statements defendants had given to the police officer concerning their presence in the Establishment tavern. Brummell did not testify but Harness did. In explaining his activities in a yard near the robbed tavern while they were under surveillance by the police, he said that he and Brummell got out of the car and went into the yard to relieve themselves shortly before their arrest. This occurred, he stated, after he and Brummell had left Precup’s apartment and were riding around in Brummell’s car. The remainder of his testimony essentially was the same as the officer had testified.

Harness’ testimony and the testimony of the officer concerning Harness’ statement to him following the arrest were basically consistent with the officer’s testimony concerning what Brummell had said. That is, both Harness and Brummell contended that they were at the Establishment tavern that night until about closing time, which was 1 a.m. Thus, Harness’ testimony, the statement he gave the officer, and Brummell’s statement to the officer all agreed that these two defendants were at the Establishment tavern during the time of the robbery in the other tavern, which was fixed at between 12:20 and 12:30 a.m. This alibi was supported by other patrons of the Establishment in their testimony.

There were several inconsistencies in the statements of the two defendants concerning their activities after they left the tavern. The prosecutor, in cross-examining Harness, pointed out these inconsistencies. While questioning him about going into the yard to relieve himself, the prosecutor asked him, “If Mr. Brummell said you weren’t in the yard he wouldn’t be telling the truth, would he?” Harness answered “No.” Later, after Harness had stated to the prosecutor that he and Brummell were at Precup’s apartment, the prosecutor asked: “You heard testimony *** that Brummell told the police officer that he had never been to Precup’s apartment that evening? *** That was untrue, wasn’t it?” Harness answered “Yes.” The prosecutor then asked: “And you also heard in that testimony that he said you drove around in the bottoms that night?” Harness answered “Yes.” The prosecutor asked: “I guess that was a lie, too, wasn’t it?” Harness answered “Yes.”

Counsel for both defendants now contend that by virtue of the conflicting statements and particularly the answers of Harness to the cross-examination by the prosecutor, the positions of the two defendants were so antagonistic that the ability of one attorney to effectively represent both was impaired and that each defendant should have had separate counsel representing him. We would agree that had counsel or either of the defendants, before trial, called the court’s attention to the possible antagonistic or conflicting positions of the two defendants and requested that separate counsel be appointed, under Holloway v. Arkansas, Glasser v. United States, and People v. Bopp, the court should have appointed separate counsel or at least should have conducted a hearing as to the effect of the alleged conflict. But here the possible conflict was never called to the court’s attention.

Harness argues that when it became apparent to the court during the trial that the statements of the two defendants were not consistent the court should have sua sponte ordered a mistrial and severed the trial of the two defendants. We believe that if the court would have declared a mistrial or severed the cases and declared a mistrial as to one defendant only, without a motion requesting that result, some serious double jeopardy questions would have been created. See United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547; Parker, United States v. Walden: Double Jeopardy And The Mistrial, 34 U. Pitt. L. Rev. 714 (1973); Note, Double Jeopardy: Mistrial Declared Without The Consent Of Defendant As A Bar To Reprosecution, 33 Md. L. Rev. 211 (1973).

The appellate court opinion states that these two defendants urged in that court that it consider the denial of effective assistance of counsel under our Rule 615 (58 Ill. 2d R. 615), contending that representation of both defendants in this case constituted “plain error.” The appellate court concluded that there was no showing of plain error so as to require reversal.

In this court the State points out that at no time before or during the trial of this case did the defendants move for a severance. The State also points out that the question of denial of effective assistance of counsel was first raised in the appellate court and that at no time did either of the defendants raise this issue in the trial court.

Not only were the possible conflicting or antagonistic positions of the two defendants never called to the trial court’s attention, or separate counsel requested, but also no reference was made to the denial of effective assistance of counsel in the written motion for a new trial. The record contains a transcript of the argument of the motion for a new trial and no suggestion that the defendants were denied the effective assistance of counsel was made orally during the argument. Thus, as the State has pointed out in its brief, this alleged error was never raised in the trial court.

Section 116—1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 116—1) provides that the motion for a new trial shall be in writing and shall specify the grounds therefor. The general rule is that the failure by a defendant to raise an issue in the written motion constitutes a waiver and the issue cannot be urged as a ground for reversal on review. This waiver rule applies to constitutional as well as to other issues. People v. Pickett (1973), 54 Ill. 2d 280.

Our Rule 615(a) provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (58 Ill. 2d R. 615(a).) This court held in Pickett that this rule does not mandate that a reviewing court consider all errors involving substantial rights whether or not the same have been brought to the attention of the trial court. In other words, Rule 615(a) does not operate in the nature of a general saving clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court. As noted in Pickett, the rule has been designed as a means of meliorating the harshness of the strict application of the general waiver rule.

Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed. We are not prepared to say that the trial court in this case committed error by not sua sponte interrupting the trial and taking whatever action would have been appropriate to preserve the defendants’ constitutional right to counsel. It would have been entirely reasonable for a trial judge to assume that it was part of the defense’s strategy to permit the police officer to testify as to the statements made by the two defendants. The interruption of this strategy may have, in itself, constituted error.

The defendants’ statements were neither confessions nor admissions and would not have ordinarily been admissible as evidence; however, defense cousel made no objection to the officer’s testimony concerning them. In spite of their inconsistencies, both statements were consistent in establishing an alibi for both defendants, placing them in a tavern quite a distance from the one that was robbed at the time the robbery occurred, and each statement was supportive of the other in that respect. At that point in the trial the trial judge and possibly defense counsel did not know whether the defendants or either of them would testify. The officer’s testimony as to these statements afforded the defense a means of conveying to the jury the story which each defendant had told the police soon after his arrest. Furthermore, the defense counsel had copies of these statements and presumably knew their contents. When the defendants put on their case in chief, they presented evidence from other patrons of the Establishment tavern which supported the alibi statements both defendants had made to the police. If the defense counsel would have objected to the officer’s testimony, thereby preventing him from testifying as to the post-arrest statements of defendants, the inconsistencies would never have surfaced; however, the defendants would have been denied the benefit of having the jury know that they had both told the police shortly after they were arrested that they were in the Establishment tavern at the time of the robbery.

For us now to say that the judge’s conduct constituted plain error would require us to reject this very plausible explanation for the manner in which defense counsel permitted the trial to develop. Even if we were to consider that the judge should have interrupted the trial and taken the appropriate action had these other possibilities not been present, inasmuch as they were present in this case, we cannot say that the judge’s failure to act was plainly erroneous. Paraphrasing Mr. Justice Frankfurter, the perspective of the living trial may very well be lost in the search for error in a dead record. Glasser v. United States (1942), 315 U.S. 60, 88, 86 L. Ed. 680, 708, 62 S. Ct. 457, 473 (Frankfurter, J., dissenting).

It would seem that if defense counsel, after the trial had been completed, would have thought that his representation of the defendants had been limited or impaired by the inconsistencies in the statements and the advantage taken of them, he would have raised the issue in the motion for a new trial (People v. Pickett). And were we to assume that defense counsel who tried the case did not raise the issue for some personal reason, we cannot overlook the fact that an additional attorney was permitted to enter the case and participated in the preparation of the motion for a new trial and argued the motion to the court. He, too, made no reference to the question of effective assistance of counsel.

Although the appellate court reviewed the authorities on the primary issue, it concluded there was no showing of such plain error as to require reversal. We do not reach the primary issue because we find that the issue was not raised by the defendants during the trial and was not called to the court’s attention in the motion for a new trial. Under the well-established law of this State, the question has been waived and cannot be raised for the first time on review. Since, as we concluded above, it does not plainly appear from the record that the trial judge coinmitted an error affecting the substantial rights of the defendants, the waiver rule precludes us from considering the question.

The judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 49288.
    CONSOLIDATED DISTILLED PRODUCTS, INC., et al., v. ROBERT H. ALLPHIN, Director of Revenue, et al., Appellants.

      Opinion filed Sept. 19, 1978.

    Rehearing denied Dec. 1, 1978.

      William J. Scott, Attorney General, of Springfield (Paul J. Bargiel, Mary Stafford, and Patricia Rosen, Assistant Attorneys General, of Chicago, of counsel), for appellants.
    Kenart M. Rahn and George F. Barrett, of Chicago (George R. Bieber and Stewart D. Spitzer, of counsel), for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court:

On April 17, 1974, twenty-two importing distributors of wine filed an action in the circuit court of Cook County, seeking to have a portion of section 1 of article VIII of the Liquor Control Act (Ill. Rev. Stat. 1969, ch. 43, par. 158) declared unconstitutional. Under the Liquor Control Act, prior to July 15, 1971, distributors of wine made from grapes grown in Illinois enjoyed a lower tax rate than did distributors of wine made from grapes grown elsewhere. Although Public Act 77—295, effective July 15, 1971, amended the statute and eliminated that tax differential (Ill. Rev. Stat. 1971, ch. 43, par. 158), plaintiffs sought relief predicated on their statutory right to be - recompensed if the taxes for the period from January 1968 through April 1971 were paid in error. On October 21, 1974, the same plaintiffs filed a substantially similar action based on taxes paid for the period from May 1971 through August 1971. The actions were subsequently consolidated for trial.

In counts I and II of either complaint, plaintiffs sought declaratory relief on the grounds that the taxes imposed upon them violated the commerce, due process and equal protection clauses of the United States Constitution, as well as the uniformity and special legislation clauses of the Illinois Constitution of 1870. Plaintiffs prayed the court to declare the taxes null and void and to further declare that the plaintiffs were entitled to a credit or refund of the taxes paid. In count III of either complaint, plaintiffs alleged that the Department of Revenue (Department) had failed to properly process plaintiffs’ claims for credit pursuant to article VIII, section 2a, of the Liquor Control Act (Ill. Rev. Stat. 1971, ch. 43, par. 159a). Plaintiffs sought, among other things, a declaration that the Department should process their claims without considering whether plaintiffs would be unjustly enriched if the claims were allowed. Count IV in either complaint petitioned for a writ of mandamus to (a) compel the Department to hold a hearing with respect to plaintiffs’ claims for credit; (b) preclude the Department from considering the issue of unjust enrichment; (c) compel the Department to determine that the taxes in question had been paid in error; and (d) compel the Department to grant plaintiffs’ claims for credit.

In an order dated October 15, 1976, the trial court denied the Department’s motions to strike and dismiss all four counts of plaintiffs’ complaints. The Department elected to stand on its motions and, on December 1, 1976, the circuit court, pursuant to plaintiffs ’ motion for default judgment on the pleadings, entered its final order. The order granted plaintiffs the relief sought and also declared unconstitutional that portion of article VIII, section 1, of the Liquor Control Act which provided for a tax differential favoring persons who dealt in wine made from grapes grown in Illinois. The Department appealed directly to this court pursuant to Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a)).

The issues presented for review are:

(1) Does this court’s decision in Consoli dated Distilled Products, Inc. v. Mahin (1973), 56 Ill. 2d 110, appeal dismissed (1974), 419 U.S. 809, 42 L. Ed. 2d 36, 95 S. Ct. 23, bar plaintiffs from litigating this action under the principle of res judicata?
(2) Should plaintiffs be precluded from securing relief by their failure to exhaust their administrative remedies?
(3) Is article VIII, section 1, of the Liquor Control Act, which imposed a lower rate of tax on wine produced from Illinois-grown grapes, constitutional?

Because we hold that, under the principle of res judicata, plaintiffs are barred from relitigating their claim for a reimbursement of taxes paid pursuant to article VIII, section 1, of the Liquor Control Act, we need not address the other issues.

In determining the applicability of the principle of res judicata to the case at bar, we first examine the scope of this court’s prior decision in Consolidated Distilled Products, Inc. v. Mahin (1973), 56 Ill. 2d 110 (Consolidated 1). That suit was, in pertinent part, brought as a class action by various named wine distributors on behalf of all others similarly situated — importing distributors of wine made from grapes grown outside Illinois — who had remitted taxes relative to that business pursuant to article VIII, section 1, of the Liquor Control Act. This class of wine distributors alleged that the differing tax rates for grapes grown in Illinois and grapes grown elsewhere violated numerous clauses of the United States and Illinois constitutions. The class sought a judgment declaring the tax invalid, the enjoining of the collection of such taxes, the deposit in a protest fund of any sums paid during the pendency of the case, an order that the class be reimbursed, either by refund or by the issuance of a credit memorandum, for any sums paid into the protest fund, and an award of the class’ attorneys’ fees. Certain individuals who alleged that they had purchased wine at retail were permitted to intervene on behalf of all wine purchasers in Illinois. It was their position that, if any reimbursement was due, it should accrue to the ultimate purchasers who had borne the actual burden of the tax.

In Consolidated 1, the court, found that the intervenor class of wine purchasers had failed to adequately show that the burden of the tax was transferred by the distributors to the retail liquor dealers and, in turn, by the liquor dealers to the class of wine purchasers. The court concluded, in this regard, that the intervenors were not entitled to receive the funds held on deposit. (56 Ill. 2d 110, 117.) The court, assuming arguendo that the challenged provision of the Liquor Control Act was invalid, considered whether the class of wine distributors would be entitled to the monies held in the protest fund. It reasoned that to avoid the unjust enrichment of persons who had not actually borne the burden of the tax, it was necessary that the remitters of a tax show they had ultimately paid the tax and had not passed the tax burden on to others. The court concluded:

“There has been no showing that [the wine distributors] bore the burden of the tax. The only proof that bears upon that question is the stipulation *** that shows, or tends to show, that they passed the tax on to the retailers to whom they sold.” (56 IH. 2d 110, 119.)

Because it held that the class of wine distributors was not entitled to a reimbursement of the taxes paid, the court found it unnecessary to decide the issue of the constitutionality of the differential rate of tax.

The definition and purport of the principle of res judicata were ably set forth by this court in Charles E. Harding Co. v. Harding (1933), 352 Ill. 417, 426-27:

“ [A] cause of action finally determined between the parties on the merits, by a court of competent jurisdiction, [which] cannot again be litigated by new proceedings before the same or any other tribunal ***. A judgment or decree so rendered is a complete bar to any subsequent action on the same claim or cause of action, between the same parties or those in privity with them. The doctrine extends not only to the questions actually decided but to all grounds of recovery or defense which might have been presented. [Citations.] Where the former adjudication is relied on as an absolute bar to a subsequent action, it must be shown that the cause of action, the thing to be recovered and the parties are the same in both proceedings. The principle of res judicata applies, however, to cases where, although the cause of action is not the same, some fact or question has been determined and adjudicated in a former suit and the same fact or question is again put in issue in a subsequent suit between the same parties. In such cases the determination in the former suit of the fact or question, if properly presented and relied on, will be held conclusive on the parties in the later suit, regardless of the identity of the cause of action, or the lack of it, in the two suits. When the second action between the same parties is upon a different cause of action, claim or demand, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined. *** This principle is sometimes called estoppel by verdict.”

Before us is the question of whether this action is actually a relitigation of a matter already finally adjudged between the parties in Consolidated 1. Plaintiffs assert that the application of res judicata is unwarranted because the two cases involve different parties. They point out that parties who were involved in Consolidated 1 are not represented in the case at bar, that individual State officials were the defendants in Consolidated 1, but that in this case the Department of Revenue is named as a defendant, and that Consolidated 1 was a class action while, here, plaintiffs sue individually. We find these differences immaterial to the applicability of the principle of res judicata.

Each party in this case was represented as a party in interest in the prior adjudication. Seven of the twenty-two plaintiff wine distributors in the case at bar were named parties in Consolidated 1, and all 22 were members of the class of wine distributors represented in that case. Because class members have a common interest in the litigation, a judgment in favor of or against the class is operative as to all class members represented. (People ex rel. Furlong v. Board of Election Commissioners (1949), 404 Ill. 326, 329; 46 Am. Jur. 2d Judgments sec. 539 (1969).) Both actions sought to compel the State, its agencies and officials to recompense plaintiffs for monies paid pursuant to an allegedly invalid tax. The effect of the litigation is the same whether the suit is brought against the State agency or the official charged with the responsibility of administering the provisions of the challenged State statute. (City of Elmhurst v. Kegerreis (1945), 392 Ill. 195, 204; 46 Am. Jur. 2d Judgments sec. 578 (1969).) Consequently, with regard to the identity of the parties, the judgment against the class of wine distributors in Consolidated 1 is binding upon plaintiffs herein.

Plaintiffs maintain that the cause of action in the case at bar is not the same as that which was finally adjudged in Consolidated 1. In support of this position, plaintiffs note that the taxes at issue in this case relate to periods which date back to January 1, 1968, while taxes involved in Consolidated 1 were limited to periods during 1970 and 1971. Plaintiffs cite this court’s decision in Turn Verein Lincoln v. Paschen (1960), 20 Ill. 2d 229, mistakenly for the proposition that a previous decision which relates to taxes of a particular year is generally not considered res judicata as to taxes of a prior year. Turn Verein Lincoln involved a determination that certain property was not used exclusively for school purposes and was, therefore, not exempt from taxation. A prior adjudication had disposed of the issue as to taxes for the years 1939 through 1952. The case then before the court challenged the taxable status of the property during the years 1953 through 1955. The court held that a former decision relating to taxes for one year may not be res judicata as to taxes for subsequent years. (20 Ill. 2d 229, 230-31.) See Oak Park Club v. Brenza (1955), 7 Ill. 2d 389, 392; People ex rel. Lloyd v. University of Illinois (1934), 357 Ill. 369, 372; Tait v. Western Maryland Ry. Co. (1933), 289 U.S. 620, 624, 77 L. Ed. 1405, 1408, 53 S. Ct. 706, 707.

There is an obvious reason for the above-cited proposition to apply to taxes for subsequent years but not to taxes for prior years. The principle of res judicata extends not only to matters actually decided but to all matters which might have been presented and decided. In the typical situation, the prior adjudication relates to those tax years up to the time the prior adjudication commenced. A later adjudication would relate to those years for which a tax had not yet been imposed or paid at the commencement of the prior adjudication. The proposition reflects the common sense notion that it would be grossly unfair to apply the principle of res judicata to matters relating to tax years subsequent to the prior adjudication when the prior adjudication could not have anticipated a possible change in circumstances.

As pertinent here, Consolidated 1 involved taxes for the years 1970 and 1971, while the instant case encompasses the same period and extends back to January 1968. The matters relating to the taxes of 1968 and 1969 were not unknown or speculative at the time Consolidated, 1 was commenced, and, inasmuch as they could have been presented and decided in that action, res judicata would appiy.

Even if we were to adopt plaintiffs’ proposition that a former decision relating to taxes for one year may not be res judicata as to taxes for prior years, this would mean only that the causes of action would be deemed different, and, hence, the principle of estoppel by verdict, rather than res judicata, would apply. The judgment in Consolidated 1 would then be binding on the plaintiffs only as to those matters which were actually litigated and determined. City of Peoria v. Peoria City Lines, Inc. (1962), 24 Ill. 2d 457, 464.

Plaintiffs in the case at bar do not claim that they did in fact bear the burden of the tax for those years not involved in Consolidated 1. Instead, they insist that they need not have borne such burden in order to be granted relief in this case. A careful reading of Consolidated 1 indicates that its threshold issue was whether the plaintiff class, in order to establish its right to a tax reimbursement, must show that it bore the burden of the tax. The court reasoned that if the plaintiff class did not have a right to a tax reimbursement, there would be no reason to review the constitutional validity of the differential tax rate. (The differential rate was eliminated in 1971, so that, unless a party was entitled to a tax reimbursement due to the differential nature of the tax, the constitutional issue would be moot.) The court held not only that the plaintiff class must show as a matter of law that it bore the burden of the tax, but that it failed as a matter of fact to do so. Accordingly, the plaintiff class was not entitled to a tax refund or to the issuance of a credit memorandum for use in the payment of future taxes. We find no merit to plaintiffs’ contention that Consolidated 1 determined only the question of tax refunds, not the question of tax credits. As the Consolidated 1 court expressly stated in quoting from Harrison Sheet Steel Co. v. Lyons (1959), 15 Ill. 2d 532, 537:

“ ‘No reason has been suggested why the basic policy that the legislature has thus expressed is not equally applicable whether the proceeding is an administrative one terminating in the issuance of a credit memorandum for use in the payment of future taxes, or a judicial one terminating in the refund of cash held under an injunction by State officials. [Citation.]’” Consolidated Distilled Products, Inc. v. Mahin (1974), 56 Ill. 2d 110, 118. Accord Fiorito v. Jones (1971), 48 Ill. 2d 566, 570.

It is quite apparent that plaintiffs are actually attempting to relitigate that which was finally adjudged in Consolidated 1. Although plaintiffs’ complaint in the case at bar includes a count sounding in mandamus (not present in Consolidated I), mandamus relief here depends upon a determination that plaintiffs could be entitled to a tax credit without having shown that they bore the burden of the tax. “The mere fact that there is a change in the style of expression, or even a variation in the prayer for relief, does not prevent the application of the doctrine of res judicata.” (Midlinsky v. Rubin (1930), 341 Ill. 378, 386.) Consolidated 1 determined that the constitutionality of the differential tax rate could not be challenged without a showing that the party challenging the tax bore its burden. This matter cannot be relitigated here in the guise of a mandamus action.

Because this action is actually a relitigation of matters finally adjudged between the parties in Consolidated 1, plaintiffs are barred by the principle of res judicata from pursuing this action. The judgment of the trial court must, therefore, be reversed and the cause remanded to the trial court with directions to grant the Department’s motion to dismiss.

Reversed and remanded, with directions.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


text:
    (No. 49953.
    YOLANDA JARDINE, Appellee, v. ARTHUR RUBLOFF et al.—(Otis Elevator Company, Appellant; Arthur Rubloff et al., Appellees.)

      Opinion filed Sept. 19, 1978.

    Rehearing denied Dec. 1, 1978.

      McKenna, Storer, Rowe, White & Farrug, of Chicago (Charles P. Menges, Robert S. Soderstrom, and Robin J. Omahana, of counsel), for appellant.
    John D. Hayes & Associates, Ltd. and Burton F. Natarus, of Chicago, for appellee Yolanda Jardine.
    Sweeney & Riman, Ltd., of Chicago (Elliot R. Schiff, Francis J. Marasa, and Marvin Riman, of counsel), for appellees Arthur Rubloff, Stanley Goodfriend and George Dovenmuehle.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Plaintiff, Yolanda Jardine, filed a two-count complaint in the circuit court of Cook County seeking recovery for personal injuries sustained on December 12, 1969, when she fell while alighting from an elevator allegedly malfunctioning in its leveling system. Count I charged Arthur Rubloff & Company (Rubloff) and Arthur Rubloff, Stanley Goodfriend, and George Dovenmuehle, co-partners doing business as Carl Sandburg Center (Sandburg Center), with negligence in the ownership, operation, maintenance, management and/or control of the elevators thereby breaching their duty as common carriers of passengers. Count II charged Otis Elevator Company (Otis) with negligence in furnishing and installing elevator equipment and with negligence in maintaining the elevator system. Plaintiff twice amended her complaint, increasing the ad damnum, making more definite and certain the allegations of negligent conduct, and adding a third count against Otis for defective manufacture and design.

Rubloff and Sandburg Center filed a two-count countercomplaint against Otis seeking indemnity for any judgment against them in favor of plaintiff. Count I was predicated on the elevator maintenance contract with Otis. Count II sought relief on the common law active-passive negligence theory. They also filed an amended counter-complaint adding an additional count seeking relief against Otis for any liability imposed upon them arising from any defect in the manufacture or design of the elevator system.

The jury returned a verdict in favor of plaintiff and against Rubloff and Sandburg Center in the amount of $65,000, but found against plaintiff and in favor of Otis. The jury also rejected the counterclaim of Rubloff and Sandburg Center against Otis. Judgment was entered on the verdict, and the post-trial motions for judgments notwithstanding the verdict or, alternatively, for a new trial by plaintiff and counterplaintiffs, Rubloff and Sandburg Center, were denied. Following entry of judgment on the verdict and the denial of the post-trial motions, plaintiff entered into a loan agreement with Rubloff and Sandburg Center for $45,000 in consideration for their promise to refrain from pursuing their appeal against plaintiff while permitting the plaintiff to pursue her appeal against Otis. The appellate court affirmed the judgment against Rubloff and Sandburg Center but reversed the judgments in favor of Otis. It determined that the verdicts were against the manifest weight of the evidence, and entered judgment notwithstanding the verdict in favor of plaintiff for $65,000 and in favor of Rubloff and Sandburg Center on the counterclaim for indemnity, also for $65,000. (51 Ill. App. 3d 492.) We granted Otis’ petition for leave to appeal under Rule 315 (65 Ill. 2d R. 315).

At the outset we hold that the appellate court did not apply the proper standard in entering judgments n.o.v. against Otis. The appellate court held:

“By the testimony of the witnesses, the non-levelling condition of the elevator existed and went undiscovered at a time when Otis admits it conducted numerous weekly inspections. Since Otis knew or should have known, by such inspections, of the non-levelling condition of the elevator yet failed to repair said condition, the evidence manifestly favors a finding that Otis breached its obligation to the plaintiff. The contrary verdict of the jury, for Otis and against the plaintiff, must be set aside and judgment notwithstanding the verdict must be entered in plaintiff’s favor. (51 Ill. App. 3d 492, 497.)

That disposition is in contravention of the standard established in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, to be used in determining when a trial court should enter a directed verdict or a judgment n.o.v. in a jury case. It was said there that a judgment n.o.v. may be granted “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (37 Ill. 2d 494, 510.) This court recently noted in Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, the distinction between the standard for the direction of verdicts and that for the granting of new trials:

“The standards relating to the direction of verdicts and to the granting of new trials are of course different. In Pedrick this court declared:
“We have rather carefully preserved the distinction between the evidentiary situation which will require a new trial [citation], and that justifying direction of a verdict or judgment n.o.v. There is, in our judgment, excellent reason for so differentiating to be found in the radically different results of allowance of the two motions, and we believe a more nearly conclusive evidentiary situation ought to be required before a verdict is directed than is necessary to justify a new trial.’ (Pedrick v. Peoria and Eastern R.R. Co., 37 Ill. 2d 494, 509-10.) On a motion for a new trial a court will weigh the evidence and set aside the verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence. Heideman v. Kelsey, 414 Ill. 453, 466; Millikin National Bank of Decatur v. Shellabarger Grain Products Co., 389 Ill. 196, 200; Hunt v. Vermilion County Children’s Home, 381 Ill. 29, 34; 3A Nichols, Illinois Civil Practice sec. 3887, at 402 (1961).”

(Emphasis added.)

Plaintiff argues that even if the evidence supports the verdict to some extent so that a judgment h.o.v. is improper, it nevertheless may be appropriate to order a new trial. Thus, we turn now to the question of whether the plaintiff is entitled either to a judgment n.o.v. or, in the alternative, to a new trial. The verdict in favor of plaintiff against Rubloff and Sandburg Center is not at issue.

Plaintiff had resided at 1355 North Sandburg Terrace in Chicago since 1963. The building had three elevators. Plaintiff used the service elevator, as required by the building rules, when she walked her dog. She walked the dog at least once a day. On Friday, December 12, 1969, she entered the service elevator and rode to the first floor. Plaintiff testified that the elevator stopped completely, one inch below the floor level. As she lifted her foot to step out, the elevator jerked, her heel hit the first-floor landing, and she was pitched forward against the wall and door frame opposite the elevator.

Otis had entered into a contract with Rubloff and Sandburg Center to maintain the elevators at 1355 Sandburg Terrace. Otis also had designed, manufactured and installed the elevators. William Arbuthnot was the Otis elevator mechanic assigned to maintain the approximately 20 to 24 elevators in Sandburg Center, including the three at 1355 North Sandburg Terrace. In addition, he maintained the four elevators at the Ambassador Hotel. He was the only elevator maintenance man Otis had assigned to Sandburg Center on a full-time basis in 1969. His working hours were from 8 a.m. to 4:30 p.m. five days a week. If any problems arose after 4:30 p.m., Sandburg Center contacted the Otis office or answering service, which would then get in touch with Arbuthnot or the next available maintenance man to take care of them. Otis did not maintain an office in Sandburg Center.

Arbuthnot’s duties under the full maintenance contract were to keep the elevators in good working condition. He performed preventive maintenance to ensure that malfunctions did not occur. Equipment was replaced before trouble developed. A full maintenance contract, as opposed to some other type of maintenance contract, covered the whole system as opposed to enumerated parts, grease and oil. Each morning Arbuthnot reported to the office of Joseph Downey, the operations manager at Sandburg Center, to see if there were any complaints. As a matter of routine, he performed maintenance on each of the elevators at 1355 Sandburg Terrace once a week. He used a check list provided by Otis which recommended checking the parts of certain equipment at specified intervals: once a week, once a month, quarterly or semiannually, or the like.

Arbuthnot made sure he checked the leveling operation in each elevator once a week by riding the elevator and by checking the leveling machinery. He rode each elevator and checked the leveling at various floors at random. He did not keep a record of which elevator he checked on which day or which floors he checked on each elevator on a particular day. He did not check every elevator every week to determine if it stopped level with every floor.

The leveling equipment included a rod with an adjustable cam for each floor to control the stopping level at that floor. This equipment is located in a miniature elevator in the elevator machine room. If the cam is out of adjustment, it will not correct itself. Since there is a separate cam for each floor, a cam out of adjustment at one floor does not affect the stopping level at another floor. A stopping contact exists for each direction of the cam. As the elevator descends, the contact comes off, the brake is applied, and the elevator stops. If the elevator travels past the level of a particular floor, it will contact the opposite direction. The brake will be lifted and reapplied when a level condition is reached. This would occur practically instantaneously. Once the elevator is stopped, it will not move unless the doors are closed. However, as the elevator approaches the leveling zone of the floor at which it is going to stop, the door may start to open before the elevator comes to a complete stop. The doors open more quickly than they close. Otis originally set the cams and the speed and timing for the opening and closing of the elevator doors. Any adjustments to the equipment were performed by the Otis mechanic, not the building janitors, who had nothing to do with the elevator’s mechanical equipment.

Shortly after the accident, plaintiff was taken downstairs on the service elevator in a chair on casters. The chair rolled onto the elevator without difficulty, according to the operations manager and the general building superintendent. They then rode the elevator with a janitor to see if it leveled properly at the first floor and testified that it leveled perfectly or almost perfectly.

Plaintiff testified that the elevator had rarely stopped level with the first floor for a long time prior to the accident, although the last time she reported the non-leveling was 30 to 45 days prior to the accident. The operations manager did not remember specific complaints from plaintiff about nonleveling in the service elevator but testified that ordinarily the person at the complaint desk referred any complaints about the elevators to Otis. Susan Wyle, a tenant at 1355 Sandburg Terrace, used the service elevator whenever it answered her call before the other elevators. She testified she stubbed her toe and tripped when alighting from the elevator at the first floor in November 1969. When next she used the elevator, she observed that it stopped one inch below the first-floor level. In late November or early December, she again tripped while alighting. She did not recall observing the nonleveling between her second fall and the day she left for her vacation on or about December 16, 1969. A janitor, Michael Breski, testified there was some problem with the elevator a month or two prior to the accident which should have been corrected before December 12, 1969. In a statement made in 1972, he said there were complaints concerning nonleveling. Both at trial and in 1972 he indicated he was not certain of the nature of the problem. Otis’ records did not indicate that any adjustments to the cam, which controlled leveling at the first floor, had been made between May 3, 1969, and the Monday following the accident.

When Arbuthnot, the Otis maintenance man, reported to the operations manager’s office at 8 a.m. on the Monday following the accident, he was told to inspect the service elevator at 1355 Sandburg Terrace because someone had tripped and fallen. Arbuthnot, the operations manager, and a janitor checked the leveling system by riding the elevator and found it satisfactory. Otis considers an elevator to be level if it stops within one-half inch of floor level. Arbuthnot continued to check the system after the operations manager and janitor left. He made an adjustment to the cam because the elevator was below level when six people rode it. The elevator capacity is 2,500 pounds. Otis calculates the weight of each passenger at 150 pounds, A balanced load was set by Otis at 40% of capacity. Arbuthnot testified that cam adjustments are made only when they are necessary for safety. However, he testified that he adjusted the cam to improve the leveling even though the elevator leveled within the Otis standard before the adjustment. Arbuthnot also observed the opening and closing of the elevator doors.

Plaintiff filed two counts against Otis. The first count charged Otis with negligence in installing and maintaining the elevator and is the only one at issue here. The first question we must resolve concerns the duty that Otis, as the maintainer of the elevator, owed plaintiff. Although owners of buildings with elevators are viewed as common carriers who owe their passengers the highest degree of care (Rotheli v. Chicago Transit Authority (1955), 7 Ill. 2d 172, 177; Hartford Deposit Co. v. Sollitt (1898), 172 Ill. 222, 225; Illinois Pattern Jury Instructions, Civil, No. 100.01 (2d ed. 1971) (hereinafter cited as IPI Civil)), that degree of care has not been applied in this jurisdiction to those who undertake to inspect and maintain elevators; they need only exercise due care. See Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 76, 83; accord, Rogers v. Dorchester Associates (1973), 32 N.Y.2d 553, 559, 300 N.E.2d 403, 405-06, 347 N.Y.S.2d 22, 26, 64 A.L.R.3d 993, 998; Ward v. City National Bank & Trust Co. (Mo. 1964), 379 S.W.2d 614, 618; Abernathy v. Otis Elevator Corp. (Okla. 1975), 533 P.2d 971, 973-75; contra, Otis Elevator Co. v. Embert (1951), 198 Md. 585, 600, 84 A.2d 876, 882-83; Norman v. Thomas Emery’s Sons, Inc. (1966), 7 Ohio App. 2d 41, 43, 218 N.E.2d 480, 482.

We see no reason to impose a higher degree of care on Otis than that imposed on any defendant charged with negligence. Formulations of different standards of reasonable conduct for specific categories of defendants, such as those who deal with elevators, have been criticized in scholarly works:

“Although the language used by the courts sometimes seems to indicate that a special standard is being applied, it would appear that none of these cases should logically call for any departure from the usual formula. What is required is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility, is merely one of the circumstances, demanding only an increased amount of care.” (W. Prosser, Torts sec. 34, at 181 (4th ed. 1971)); accord 2 F. Harper & F. James, Torts sec. 16.13, at 945 (1956); Green, High Care and Gross Negligence, 23 Ill. L. Rev. 4 (1928); see White v. Milner Hotels, Inc. (1974), 267 Ore. 628, 633-36, 518 P.2d 631, 634-35.)

The pattern jury instruction on ordinary care instructs the jury to consider a defendant’s conduct in the context of the circumstances shown by the evidence. (IPI Civil No. 10.02 (2d ed. 1971).) It thus takes into account any special circumstances, such as the nature of elevators, which would require greater care than in other situations. Otis’ conduct must be tested against the care a reasonably careful person would use under the circumstances.

Otis undertook by contract to use reasonable care to maintain the elevators in proper and safe operating condition. This was the effect of its undertaking at common law as well. (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 83.) Specifically, it undertook to examine the elevator and its parts regularly and systematically, to lubricate the machinery, to make adjustments and repairs, and to replace parts as conditions warranted. Arbuthnot, Otis’ maintenance man, utilized a chart with a check list provided by Otis when he checked each elevator every week, including the leveling system. He reported to the operations manager’s office every weekday morning to receive complaints. Following the accident, Arbuthnot, as well as employees of Rubloff and Sandburg Center, found no condition of nonleveling. Arbuthnot did make an adjustment to the cam to improve the leveling. When six people rode the elevator, it was somewhat nonlevel, although it was within the one-half inch range Otis considers level.

There was some evidence unfavorable to Otis. There was evidence that adjustments to the cam are not made unless they are necessary for safety. There was evidence that the service elevator had failed to level in the past, that such a condition is not self-correcting, and that Otis’ records did not indicate an adjustment had been made. But plaintiff had not complained of the nonleveling condition since 30 to 45 days before the accident. Susan Wyle did not notice the condition in the 2 to 3 weeks before the accident. The janitor testified that a problem that had existed a month or two prior to the accident, the exact nature of which he was not certain, should have been repaired before plaintiff’s fall. Further, the malfunction which plaintiff described as the cause of her fall consisted of a nonleveling followed, after the elevator had come to a complete stop, by a jerking of the elevator. This was a condition different from the simple nonleveling that plaintiff and the tenant, Susan Wyle, testified they had observed earlier. The jury was not compelled to believe the evidence favorable to plaintiff. (Allendorf v. Elgin, Joliet & Eastern Ry. Co.(1956), 8 Ill. 2d 164, 171-72.) On the basis of the evidence before it, the jury could have reasonably concluded that the prior condition of nonleveling had been repaired before the accident, that the condition which caused the accident was new, and that the accident was not the result of Otis’ negligence.

It is preeminently the function of the jury to determine the factual question of whether Otis exercised reasonable care under the circumstances. (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 12.) “A verdict will not be set aside merely because the jury could have found differently or because judges feel that other conclusions would be more reasonable.” (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 623; Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 87.) After reviewing all the evidence in its aspect most favorable to Otis, we cannot say that it so overwhelmingly favors plaintiff that no contrary verdict based on that evidence could ever stand. The trial court properly denied plaintiff’s motion for judgment n.o.v. Nor can we say that the verdict in favor of Otis and against plaintiff is contrary to the manifest weight of the evidence. Plaintiff, therefore, is not entitled to a new trial.

It is plaintiff’s thesis, as well as that of Rubloff and Sandburg Center, that the duties of Otis are coterminous with the duties of Rubloff and Sandburg Center, and that since the jury found Rubloff and Sandburg Center negligent, it had to find Otis negligent. The nature of the relationship between Otis and Rubloff and Sandburg Center defeats that assertion. We also bear in mind that the question of Rubloff and Sandburg Center’s liability is not before us.

The maintenance contract specifically provided that Otis did not assume possession or control of the equipment. The janitors and other employees of Rubloff and Sandburg Center were instructed to watch for and report elevator malfunctions such as shaking and obvious non-leveling to Otis. The general superintendent testified a one-inch nonleveling is obvious. The head janitor had a key and was authorized to shut down the elevator in the event of mechanical failures. The janitors vacuumed the elevators and rode the service elevator in the course of cleaning the building. Under the contract, Otis was to perform all work during regular working hours on regular working days. If problems arose outside Arbuthnot’s regular work times, Sandburg Center was to call Otis, which would then contact and send Arbuthnot or the next available repairman to correct the problem. Only if two or more elevators were shut down did the contract provide for overtime service without additional cost. Otis did not have an office at Sandburg Center and did not keep a person on the premises 24 hours a day.

Between weekly inspections and before and after regular working hours, the building employees were the only ones who could have discovered malfunctions. The jury could have found that the malfunction occurred at a time when Rubloff and Sandburg Center alone were in a position to guard against accidents, for example, by taking the elevator out of service. Because Rubloff and Sandburg Center had duties different from those of Otis, a finding that Otis was not negligent does not preclude a finding that Rubloff and Sandburg Center had breached their retained duties. Furthermore, the jury was instructed that Rubloff and Sandburg Center had a nondelegable duty to exercise the highest degree of care, but that Otis had only the duty to exercise reasonable care. The highest duty of care imposed on Rubloff and Sandburg Center may explain the finding that Rubloff and Sandburg Center were negligent.

The final issue is whether Rubloff and Sandburg Center are entitled to common law indemnity from Otis based on the distinction between active and passive negligence. The appellate court found that Rubloff and Sandburg Center were passively negligent and therefore entitled to indemnity from Otis, which it found was the active tortfeasor. Because we have affirmed the jury’s finding that Otis was not negligent, we need not determine whether Otis should be compelled to indemnify Rubloff and Sandburg Center on a theory of active negligence.

For the reasons given, the judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

MR. CHIEF JUSTICE WARD took no part in the consideration or decision of this case.