author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE UNDERWOOD,

text:
    (No. 51478.
    RANDY ROTH, Appellant, v. FRANK X. YACKLEY et al., Appellees.

      Opinion filed October 2, 1979.
    Rehearing denied November 30, 1979.

      UNDERWOOD, J., and GOLDENHERSH, C.J., dissenting.
    James Geis, of Geis & Geis, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield (Paul J. Bargiel and Patricia Rosen, Assistant Attorneys General, of Chicago, of counsel), for appellees.
    William T. Dwyer, Jr., of Connolly, Dwyer & Ekl, of Chicago, for amicus curiae Janice Porter.
    Samelson, Knickerbocker & Schirott, of Des Plaines (James R. Schirott, of counsel), for amici curiae County of Du Page et al.

   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This cause involves two separate class actions filed in the circuit court of La Salle County on May 4, 1978. The plaintiffs sought the return of fines and costs paid as conditions of probation incident to deferred dispositions of criminal charges under section 10 of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56)4, par. 710) and section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56)4, par. 1410). On May 23, 1978, amended complaints were filed substituting a party plaintiff in each cause. Both complaints were premised on People v. DuMontelle (1978), 71 Ill. 2d 157, in which this court had held that fines and costs were not reasonable terms and conditions of probation as that term was used in section 10 of the Cannabis Control Act and that therefore the imposition of fines and costs was not authorized by statute. Plaintiffs contended that fines and costs thus improperly collected should be refunded.

Defendants filed identical motions to strike and dismiss both complaints and at the hearing held on July 5, 1978, brought the trial court’s attention to amendments to section 10 of the Cannabis Control Act (Ill. Rev. Stat, 1978 Supp., ch. 56½, par. 710) and section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat., 1978 Supp., ch. 56½, par. 1410) which were approved and became effective on June 30, 1978, approximately three months after the opinion in DuMontelle was filed. The amendments expressly authorized the imposition of fines and costs as conditions of probation. Section 3 of the amendatory act, which made the changes in both section 10 and section 410, further provided:

“The General Assembly declares that the changes made by this amendatory Act *** are declaratory of existing law and are therefore applicable in relation to events which occurred before the effective date of this amendatory Act. The ‘terms and conditions’ of probation as specified in this amendatory Act are declared to be reasonable terms and conditions for probation under the affected Sections as those Sections were in effect before the effective date of this amendatory Act.” Pub. Act 80-1202, sec. 3, eff. June 30, 1978.

Defendants argued that the amendments effectively nullified DuMontelle. In response, plaintiffs contended that the language in the amendatory act retroactively declaring that the law was other than as stated in DuMontelle should be given no effect because it violated the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, sec. 1).

On August 31, 1978, the circuit court entered amended orders granting defendants’ motions to strike and dismiss both complaints, stating inter alia that the amendatory legislation clarified the General Assembly’s intentions as to the existing statutes and that the amendments clearly controlled the rule announced in DuMontelle. On December 28, 1978, this court allowed plaintiffs’ motion for direct appeal under Rule 302(b) (58 Ill. 2d R. 302(b)). The sole issue before us concerns the effect which may constitutionally be given to the amendatory act.

In DuMontelle this court examined section 10 of the Cannabis Control Act, which then provided in relevant part that “[w] hen ever any person who has not previously been convicted of any offense under [the] Act” pleads or is otherwise found guilty, “the court may, without entering a judgment of guilt ***, defer further proceedings and place him on probation upon reasonable terms and conditions as it may require. *** Discharge and dismissal under this Section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime ***.” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 5614, par. 710.) This court concluded that “the clear import of the statutory language” was that disposition by probation under section 10 was not a conviction (71 Ill. 2d 157, 163) and that therefore the imposition of fines and costs was not a reasonable term and condition authorized by statute (71 Ill. 2d 157, 164-65). Section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 5614, par. 1410) was nearly identical to section 10 of the Cannabis Control Act.

In the June 30, 1978, amendments to both the Cannabis Control Act and the Illinois Controlled Substances Act, the General Assembly deleted the statement that the court was to place “reasonable terms and conditions” on probation and changed the statutory language to expressly catalog certain authorized conditions of probation, including the imposition of fines and costs. The amended acts provide that “[t]he court may, in addition to other conditions, require that the person: * * * (2) pay a fine and costs; ***.” (Ill. Rev. Stat., 1978 Supp., ch. 56%, pars. 710(c)(2), 1410(c)(2).) The amended acts further state that “[a] disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation ***.” (Ill. Rev. Stat., 1978 Supp., ch. 56%, pars. 710(f), 1410(f).) Thus, although the General Assembly asserted that the changes made by the amendatory act were merely a declaration of existing law, it is manifest that the amendatory act changed the statutory language and prior law as determined by this court in DuMontelle from the clear import of the original statutory language. This court’s explication of the statute had become, in effect, a part of the statute until the General Assembly changed it. City of Decatur v. Curry (1976), 65 Ill. 2d 350, 359; Mitchell v. Mahin (1972), 51 Ill. 2d 452, 456.

The statutory language dictated the holding in DuMontelle; therefore analysis of the legislative intent was not a necessary part of the decision. The General Assembly’s subsequent declaration of prior intent cannot alter the clear import of the prior statutory language. Furthermore, even if prior legislative intent had been important for decision in DuMontelle, it is logically difficult to perceive how the declaration and the amendments by the 80th General Assembly can be simply a clarification of the intent of the 77th General Assembly which originally enacted the statute seven years earlier since only a fraction of the individuals who comprised the General Assembly were the same at both times. See Federal Express Corp. v. Skelton (1979), 265 Ark. 187, 199, 578 S.W.2d 1, 8.

The General Assembly’s declaration that the amendatory act applies to events which occurred before the effective date of the amendatory statute represents a legislative attempt to retroactively apply new statutory language and to thereby annul a prior decision of this court. This is an assumption by the General Assembly of the role of a court of last resort in contravention of the principle of separation of powers embodied in article II, section 1, of the Illinois Constitution of 1970, which provides: “The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (See Federal Express Corp. v. Skelton (1979), 265 Ark. 187, 199, 578 S.W.2d 1, 7-8; Johnson v. Morris (1976), 87 Wash. 2d 922, 926, 557 P.2d 1299, 1303; 1A Sutherland, Statutes and Statutory Construction sec. 27.04 (4th ed. 1972).) While the General Assembly has the power to draft legislation and to amend statutes prospectively if it believes that a judicial interpretation was at odds with its intent (see Bruni v. Department of Registration and Education (1974), 59 Ill. 2d 6, 12; Mitchell v. Mahin (1972), 51 Ill. 2d 452, 456), it is the function of the judiciary to determine what the law is and to apply statutes to cases. (See People v. Nicholls (1978), 71 Ill. 2d 166, 179; Belfield v. Coop (1956), 8 Ill. 2d 293, 307.) The cases cited by the State do not recognize that the General Assembly may retroactively overrule a decision of a reviewing court. Instead they recognize only the power of the legislature to establish laws prospectively and to alter for future cases interpretations of statutes by reviewing courts. See Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55, 66; State v. Bowman (1962), 116 Ohio App. 285, 286-87, 187 N.E.2d 627, 629; cf. People ex rel. Spitzer v. County of La Salle (1960), 20 Ill. 2d 18, 28.

In sum, we find that the General Assembly cannot constitutionally overrule a decision of this court by declaring that an amendatory act applies retroactively to cases decided before its effective date. Accordingly, the order of the circuit court striking and dismissing plaintiffs’ complaints on the basis of the amendments to the Cannabis Control Act and the Illinois Controlled Substances Act is reversed, and the cause is remanded for a determination of whether this cause was properly brought as a class action and whether the plaintiffs are entitled to the relief they sought.

Reversed and remanded, with directions.

MR. JUSTICE UNDERWOOD,

dissenting:

I cannot agree with the court that “[t] he sole issue before us concerns the effect which may constitutionally be given to the amendatory act” (77 Ill. 2d at 427) or that there is any need to discuss that question at all. In my view the dispositive issue in this case is whether plaintiffs may collaterally attack the judgments imposing terms and conditions of probation after failing to object or appeal at the time they were imposed. Until now I had thought it entirely clear that under long-settled principles of res judicata they may not.

No question is raised here of the applicability of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72) since plaintiffs have not petitioned under its terms. Likewise, the habeas corpus act (Ill. Rev. Stat. 1977, ch. 65, par. 22) and the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122 — 1 et seq.) are unavailable because plaintiffs are not incarcerated and there is no claim that they have suffered substantial denial of constitutional rights. The availability of relief must therefore depend on the common law principles governing collateral attack on judgments.

The basic and universally recognized rule (46 Am. Jur. 2d Judgments sec. 621 (1969)) delimiting the availability of collateral attack has been stated innumerable times by this court over the years. In People v. Kidd (1947), 398 Ill. 405, 409-10, the court gave a comprehensive statement of this rule:

“If a court has jurisdiction its judgment may be directly attacked for errors or irregularities, but however manifestly erroneous the decision may be, it is binding upon all parties and privies until it is reversed or set aside in a direct proceeding for that purpose. (Harding Co. v. Harding, 352 Ill. 417; Markley v. People ex rel. Kochersperger, 171 Ill. 260.) Jurisdiction to hear and decide a cause necessarily includes the right to render an erroneous decision. (Murch v. Epley, 385 Ill. 138.) The judgment of a court which had jurisdiction is immune from collateral attack, even though such judgment is erroneous. (Woodward v. Ruel, 355 Ill. 163.) This rule was annouced by this court many years ago in the case of Young v. Lorain, 11 Ill. 624. We there stated that when a court has properly acquired jurisdiction and is authorized to hear and adjudge, and its judgment ‘being thus entered by authority of law, no matter how erroneous it may be, or even absurd — though it be made in palpable violation of the law itself, and manifestly against the evidence — is, nevertheless, binding upon all whom the law says shall be bound by it, that is, upon all parties and privies to it, until it is reversed in a regular proceeding for that purpose. While it remains a judgment, it cannot be inquired into, nor its regularity questioned, in any collateral proceeding. ***.’ A judgment which is null and void may not be used as a basis for the application of the doctrine of res judicata, but a judgment does not lose its effectiveness as res judicata from the mere fact that it is irregular or erroneous. The doctrine of res judicata is not dependent upon the correctness of the judgment, or of the verdict or finding on which it is based. (30 Am. Jur. 939, sec. 198; Phelps v. City of Chicago, 331 Ill. 80; McFall v. Kirkpatrick, 236 Ill. 281.) Nor is the value of a plea of former adjudication to be determined by the reasons which the court rendering the former judgment may have had for doing so. (City of Elmhurst v. Kegerreis, 392 Ill. 195.) The effect of the former judgment as a bar is the same whether resting upon an erroneous view of the law or not. (Baltimore Steamship Co. v. Phillips, 274 U.S. 316,47 S. Ct. 600.)”

No question is raised regarding the jurisdiction of the courts which imposed the fines and costs, and plaintiffs cannot escape the application of this long-settled rule. The case would be otherwise if the statute under which plaintiffs were prosecuted had later been held unconstitutional. This court has been scrupulous to afford some form of collateral attack to a defendant who asserts a substantial denial of his constitutional rights in the proceedings in which he was convicted. (See People v. Meyerowitz (1975), 61 Ill. 2d 200, 205, citing People v. Sarelli (1973), 55 Ill. 2d 169; People v. Warr (1973), 54 Ill. 2d 487; People v. Pier (1972), 51 Ill. 2d 96; People v. Davis (1968), 39 Ill. 2d 325.) There is no claim, however, that the statute authorizing probation in this case (Ill. Rev. Stat. 1973, ch. 56½, par. 710) was unconstitutional. This court merely held, in People v. DuMontelle (1978), 71 Ill. 2d 157, that imposition of a fine was not among the “reasonable terms and conditions” of probation authorized by the statute.

In the light of DuMontelle, therefore, the trial court that imposed fines upon the present plaintiffs simply misinterpreted the statute. For purposes of res judicata, however, a trial court’s erroneous construction of a statute is no more vulnerable to collateral attack than any other form of nonconstitutional error. In Chicago Title & Trust Co. v. Mack (1932), 347 Ill. 480, 486, this court noted that “[a] n erroneous decision arising from the misconstruction of a statute does not render the resulting judgment void,” and the court accordingly refused to allow a collateral attack on the judgment. (See also Lord v. Board of Supervisors (1942), 314 Ill. App. 161.) In the context of Federal habeas corpus, a distinguished commentator has noted that “no one supposes that a person who is confined, after a proper trial, may mount a collateral attack because the court has misinterpreted a law of the United States; indeed the Supreme Court has explicitly decided the contrary even where the error was as apparent as could be.” Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 154 (1970), citing Sunal v. Large (1947), 332 U.S. 174, 91 L. Ed. 1982, 67 S. Ct. 1588.

Plaintiffs here could have objected to the imposition of the fines as a condition of probation. If their objections had been overruled, they could have appealed. Having failed to do so, they have allowed the trial court judgments to become res judicata and cannot now attack them. As Mr. Justice Douglas said in Sunal v. Large (1947), 332 U.S. 174, 182, 91 L. Ed. 1982, 1989, 67 S. Ct. 1588, 1593:

“If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment *** litigation in these criminal cases will be interminable. Wise judicial administration of the *** courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court.”

I would affirm the judgment of the circuit court dismissing the complaints.

MR. CHIEF JUSTICE GOLDENHERSH joins in this dissent.


source: Caselaw Access Project

author:
MR. JUSTICE KLUCZYNSKI
      MR. JUSTICE WARD and MR. JUSTICE MORAN

license: Public Domain

text:
    (Nos. 51315, 51335 cons.
    MARCIA J. RUCKER, Adm’x, Appellee and Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY et al. (General American Transportation Company, Appellant and Appellee).

      Opinion filed October 19, 1979.

      Rehearing denied November 30, 1979.

      Robert W. Wilson, of Burroughs, Simpson, Wilson, Hepler & Broom, of Edwardsville, for appellant.
    John T. Pierce, Jr., of Pratt, Pierce, Bradford 8c Gitchoff, Ltd., of East Alton, for appellee.
    Keith L. Davidson, of Chicago, and Thomas F. Londrigan, of Springfield (Robert B. Patterson, of counsel), for amicus curiae Illinois Trial Lawyers Association.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant Great American Transportation Company (GATX) manufactures liquified petroleum gas (LPG) tank cars, one of which exploded in the Decatur switchyard of defendant Norfolk & Western Railway Company (N 8c W) on July 19, 1974. Clyde G. Rucker was an employee of N & W and was killed as a result of the explosion. His widow, Marcia, as administratrix of his estate, brought this action for wrongful death and personal injuries in the circuit court of Madison County, charging N 8c W with violations of the Safety Appliance Act (45 U.S.C. sec. 1 et seq. (1970)) and the Federal Employers’ Liability Act (45 U.S.C. sec. 51 et seq. (1970)) and alleging strict liability in tort against GATX and Phillips Petroleum Company (Phillips), lessor of the tank car. N 8c W admitted liability under the Safety Appliance Act, and the claim under the Federal Employers’ Liability Act was withdrawn by plaintiff. A jury found defendant GATX also liable and returned a verdict against N 8c W and GATX for $850,000 in damages. N 8c W sought indemnification from GATX and Phillips, but that matter was severed by order of this court, and it remains pending in the circuit court.

After trial, N 8c W and plaintiff entered into a loan-receipt agreement whereby N Sc W advanced $700,000 to plaintiff. Plaintiff promised to repay that amount from any judgment recovered and to pursue “all legal and reasonable means” to enforce the judgment against GATX.

On GATX’ appeal to the appellate court, the findings of liability were affirmed, and plaintiff’s verdict was upheld; pursuant to motion by GATX, however, the loan-receipt agreement was held to be void, and it was ordered that the $700,000 “loan” be set off as a partial satisfaction of judgment (64 Ill. App. 3d 770). We allowed the respective petitions for leave to appeal of GATX and plaintiff on the liability and loan-receipt issues.

The first issue raised in GATX’ appeal is whether the circuit court properly ruled that evidence of GATX’ compliance with Federal standards for the construction of LPG tank cars was inadmissible. Plaintiff alleged that the car was defectively designed due to the absence of a so-called “headshield,” a protective device that would shield the car from damaging contact with other cars and objects. The car here in question was manufactured in 1971, and at the time Federal regulations did not require a headshield (49 C.F.R. pt. 179 (1971)). The car therefore met Federal requirements as they then existed even though no headshield was included. GATX was prohibited by the circuit court’s ruling from placing this evidence before the jury, and it assigns this as error.

GATX urges us to adopt a balancing test whereby the risk and gravity of the danger of the design are weighed against the burden of precautions necessary to avoid the danger. Such an analytical process, it is argued, is of assistance in determining whether a product is unreasonably dangerous. In undertaking this balancing test, the argument continues, consideration should be given to factors influencing a manufacturer’s design choice and, in this regard, a manufacturer’s compliance with Federal standards should be considered as some evidence that the product is not unreasonably dangerous.

The appellate court rejected this argument, primarily in reliance upon Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443. Cunningham involved a transfusion of blood containing serum hepatitis, and the defendant sought the admission of evidence that the infectious substance could not be detected under existing medical knowledge. The court held that inability to detect the hepatitis was “of absolutely no moment” (47 Ill. 2d 443, 455), and the appellate court in this case quoted that portion of the Cunningham opinion in ruling that the evidence offered by GATX was also inadmissible (64 Ill. App. 3d 770, 781). In Kerns v. Engelke (1979), 76 Ill. 2d 154, 161, we held that a plaintiff in a design defect case could attempt to prove such a defect by introducing evidence of feasible alternative designs and that the holding in Cunningham did not preclude this result. (See also Note, Products Liability — Strict Liability — Elimination of the “State of the Art” Defense, 41 Tenn. L. Rev. 357, 362 (1974).) Similarly, we believe that defendant GATX should be allowed to show that a given alternative design is not required by Federal regulations and that such evidence is relevant in determining “whether the complained-of condition was an unreasonably dangerous defect” (76 Ill. 2d 154, 163). Prior opinions of the appellate court have reached a similar conclusion in their holdings (Wenzell v. MTD Products, Inc. (1975), 32 Ill. App. 3d 279, 293-94; Jonescue v. Jewel Home Shopping Service (1973), 16 Ill. App. 3d 339, 345) or in dicta (Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 988 n.5; Pyatt v. Engel Equipment, Inc. (1974), 17 Ill. App. 3d 1070, 1073) and the great weight of authority from other jurisdictions likewise favors admission of the evidence (see, e.g., Simien v. S. S. Kresge Co. (5th Cir. 1978), 566 F.2d 551, 554; Bruce v. Martin-Marietta Corp. (10th Cir. 1976), 544 F.2d 442, 447, affirming (W.D. Okla. 1975), 418 F. Supp. 829, 835-36; Johnson v. Husky Industries, Inc. (6th Cir. 1976), 536 F.2d 645, 648; Bellotte v. Zayre Corp. (1st Cir. 1976), 531 F.2d 1100, 1103; Fincher v. Ford Motor Co. (S.D. Miss. 1975), 399 F. Supp. 106, 114, aff’d (5th Cir. 1976), 535 F.2d 657; La Gorga v. Kroger Co. (W.D. Pa. 1967), 275 F. Supp. 373, 378; Berkebile v. Brantly Helicopter Corp. (1971), 219 Pa. Super. 479, 485, 281 A.2d 707, 710; see also Bailey v. Boatland of Houston, Inc. (Tex. Civ. App. 1979), 585 S.W.2d 805, 812 (dissent) (if a plaintiff is allowed to offer evidence of the applicability of design features, a defendant manufacturer should be allowed to offer evidence of relative cost and availability of the feature)). (Under the proposed Uniform Product Liability Law, 44 Fed. Reg. 2996 (1979), drafted by the Department of Commerce, the evidence would also be admissible under specified circumstances.)

We note that, by our holding, evidence of compliance with Federal standards is relevant to the issue of whether a product is defective (Simien v. S. S. Kresge (5th Cir. 1978), 566 F.2d 551, 554), as well as the issue of whether a defective condition is unreasonably dangerous, as GATX contends. If the product is in compliance with Federal standards, the finder of fact may well conclude that the product is not defective, thus ending the inquiry into strict liability. If a finding is entered that the product is defective, evidence of compliance becomes additionally relevant to the issue of whether the defective condition is unreasonably dangerous. The fact of compliance may indicate to the finder of fact that the defect is not unreasonably dangerous.

Plaintiff contends that the admission and use of the evidence in this fashion improperly direct the fact finder’s attention to the manufacturer’s conduct rather than the product and replace strict liability standards with those of traditional negligence. We do not agree, however, that the focus of the inquiry is not the product, as it must be (Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 453). The evidence which we approve is that a product, not a manufacturer’s conduct, conforms to Federal standards. Any misapprehension that negligence is the standard of liability stems only from the injection of a “reasonableness” element in determining whether a defective condition is unreasonably dangerous. As Prosser states, a strict liability design case resembles a negligence action because the reasonableness of the manufacturer’s design choice is a key issue (Prosser, Torts sec. 96, at 644-45 (4th ed. 1971)). Despite the resemblance, however, the elements of the plaintiff’s proof remain those of an action in strict liability. On this point, we agree with defendant GATX.

We do not agree with GATX, however, as to the effect to be given to evidence of compliance with Federal standards. It argues that the promulgation of Federal regulations on the subject of railroad cars indicates the intention of Federal authorities that no liability should attach to manufacturers whose products are in compliance with those regulations. Contrary to GATX’ contention, we do not believe that the presence of Federal regulations on the subject precludes the imposition of tort liability according to State tort law standards more stringent than those contained in the Federal regulations. We find no indication in the Federal regulations that the preemption of State tort law was intended. (Raymond v. Riegel Textile Corp. (1st Cir. 1973), 484 F.2d 1025, 1027;Hubbard-Hall Chemical Co. v. Silverman (1st Cir. 1965), 340 F.2d 402, 405.) In fact, it would be reasonable to conclude that the purpose of the regulations is to insure greater safety and that the imposition of tort liability on the basis of more stringent State law is consistent with this purpose (Raymond v. Riegel Textile Corp. (1st Cir. 1973), 484 F.2d 1025, 1027). The issue of whether the LPG tank car is in an unreasonably dangerous defective condition therefore remains a question of fact. (Simien v. S. S. Kresge Co. (5th Cir. 1978), 566 F.2d 551, 556-58; Raymond v. Riegel Textile Corp. (1st Cir. 1973), 484 F.2d 1025, 1027; La Gorga v. Kroger Co. (W.D. Pa. 1967), 275 F. Supp. 373, 382-83; Berkebile v. Brantly Helicopter Corp. (1971), 219 Pa. Super. 479, 485, 281 A.2d 707, 710.) The finder of fact may conclude that a product is in an unreasonably dangerous defective condition notwithstanding its conformity to Federal standards.

The second issue raised by GATX on appeal is whether the circuit court erred in admitting plaintiff’s evidence of prior accidents. The circuit court admitted evidence of 42 prior accidents involving punctures of LPG tank cars for the purpose of showing the danger of the design, but no more than 26 of the accidents involved exactly the same situation as that present here, puncture of the tank by a coupler. GATX contends that plaintiffs failed to show that the remaining 16 accidents were substantially similar to the present accident. With this we disagree. The point sought to be made by plaintiff in introducing the evidence is that the car is susceptible to puncture without a headshield. Whether the puncture was by coupler or other means is irrelevant. The circuit court, in its discretion, therefore could have determined that all 42 accidents were sufficiently similar and relevant to the issue of whether the car was dangerous. It need not be shown that the accidents occurred in an identical manner. Substantial similarity is all that is required. Moore v. Bloomington, Decatur & Champaign R.R. Co. (1920), 295 Ill. 63, 67.

The issue raised in plaintiff’s appeal is whether the appellate court erred in ruling that the loan-receipt agreement, executed by plaintiff and N & W after trial, is void. In Kerns v. Engelke (1979), 76 Ill. 2d 154, 169-70, we reviewed this area of the law extensively and pointed out that loan agreements between a plaintiff and one defendant are invalid if executed before the circuit court’s judgment and it is kept secret; we also held conclusively “that the use of loan agreements is proper only where judgment has not been reached.” Plaintiff’s argument is therefore foreclosed by our decision in Kerns. The $700,000 advanced to plaintiff would properly be treated as a partial satisfaction of any future judgment.

The judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court of Madison County for a new trial not inconsistent with the views expressed herein.

Reversed and remanded.

MR. CHIEF JUSTICE GOLDENHERSH, with whom

MR. JUSTICE WARD and MR. JUSTICE MORAN

join, dissenting:

Mr. Justice Ward, Mr. Justice Moran and I dissent and would affirm the judgment of the appellate court. In holding that “defendant GATX should be allowed to show that a given alternative design is not required by Federal regulations and that such evidence is relevant in determining ‘whether the complained-of condition was an unreasonably dangerous defect’ ” (77 Ill. 2d at 438), the majority has completely ignored the basic tenet of product liability law, and has applied the law of negligence. The question is whether the product was defective, not whether the defect resulted from defendant’s fault.

In Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, we held that a manufacturer is held to the degree of knowledge and skill of experts and is under a nondelegable duty to make a product which is reasonably safe. Proof that a product is not reasonably safe may be shown by evidence of the availability and feasibility of alternate designs at the time of its manufacture. Plaintiff’s expert witness testified that in September 1971, when the car in question was built, it was feasible from an economic, practical and technological viewpoint to install head-shields. Defendant’s experts testified to the contrary. The standards which defendant sought to introduce were the bare minimum below which the manufacturer might not fall, obviously failed to take into recognition the availability of improved methods of manufacture, and certainly did not serve to bar the installation of improved safety devices. They would, in any event, be wholly irrelevant to the question of technological feasibility.

The authorities upon which the majority relies do not support its position. In Wenzell v. MTD Products, Inc. (1975), 32 Ill. App. 3d 279, the circuit court struck an allegation in the complaint of a violation of a safety specification. The appellate court held only that a violation of the standards would not of itself vest a cause of action in the plaintiff. In Jonescue v. Jewel Home Shopping Service (1973), 16 Ill. App. 3d 339, there is no indication that there was any objection to a conclusion contained in a report that a product was nontoxic orally. The appellate court’s holding did not involve the question of admissibility of evidence; it held that “Although compliance with a relevant statutory scheme declaring whether defendant must warn of the dangers of its product is some evidence that the Jeteo cleaner is not harmful or toxic, such compliance is not conclusive or controlling in defining defendant’s common law liability for failure to warn.” 16 Ill. App. 3d 339, 345.

The majority is in error for yet another reason. Defendant GATX was not only the manufacturer of the car in question; it was also the lessor to Phillips Petroleum Company, the lessee. The record shows that, as noted by the appellate court, “at the time of the Decatur accident, the necessary technology for the design of headshields- and the AAR approval procedure for their installation on tank cars” was in existence. (64 Ill. App. 3d 770, 781.) Under these circumstances the appellate court correctly held that “a ‘state of the art’ defense based on GATX’s compliance with federally mandated tank car design specifications would have been irrelevant.” 64 Ill. App. 3d 770, 781.


author: MR. JUSTICE CLARK

text:
    (No. 51731.
    LELAND ZAVADIL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Schultz Lithographing Co., Appellee).

      Opinion filed November 21, 1979.

    Thomas D. Allison, Lynn A. Goldstein and Her old L. Rifken, of Chicago (Cotton, Watt, Jones, King Bowlus, of counsel), for appellant.
    Musschoot, Womack 8c Galich, of Chicago (Arthur R. Musschoot, James W. Womack and Andrew A. Galich, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This is a workmen’s compensation case. The issue, once again, is whether or not the decision of the Industrial Commission, confirmed by the circuit court of Cook County, was against the manifest weight of the evidence. The answer, once again, is it wasn’t. Leland Zavadil was employed by Schultz Lithographing Co. as a pressman when he slipped on some oil while walking on the catwalk of a press, about four and a half feet above the floor. He fell to the floor, landing on his feet, but immediately dropped to his knees. As he fell, the small or lower portion of his back struck the metal catwalk. The arbitrator awarded Zavadil $100.90 per week for 12 weeks for temporary total incapacity for work, and $80.90 per week for 100 weeks for the permanent and complete loss of use of both legs to the extent of 25% each. Both parties appealed. The Commission, after hearing additional testimony, affirmed the arbitrator with this modification: $80.90 per week for 60 weeks for permanent and complete loss of the use of his legs to the extent of 15% each. On Zavadil’s appeal, the circuit court confirmed.

A recitation of the conflicting medical testimony here would serve no useful purpose. Its resolution was within the particular purview of the Commission. (Puckett v. Industrial Com. (1979), 77 Ill. 2d 321.) We note Zavadil’s argument that Dr. Philip Epstein’s testimony — Zavadil’s condition is caused by a mental disorder resulting from his accident and injury at work — was uncontroverted and that therefore the Commission’s failure to find permanent disability on this basis was against the manifest weight of the evidence. This contention was clearly rejected in Sosniak v. Industrial Com. (1967), 37 Ill. 2d 81, 83-84, where a doctor testified for the claimant that the latter had a psychiatric problem causally linked to the injury at work. The employer offered no rebuttal evidence on the psychiatric problem. This court found that the Commission had resolved the substantial conflict in medical testimony in favor of the claimant, as here, but concluded that the Commission’s rejection of “another aspect of the claim, to which only one witness testified, does not mean that its finding must be held to be against the manifest weight of the evidence.” 37 Ill. 2d 81, 84.

Our review of the record prescribes affirmance of the judgment of the circuit court.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 51445, 51448 cons.
    SECURITY MUTUAL CASUALTY COMPANY, Appellee, v. HARBOR INSURANCE COMPANY et al., Appellees (Insurance Company of North America et al., Appellants).

      Opinion filed November 21, 1979.

      Baker 8c McKenzie, of Chicago (Francis D. Morrissey and Norman J. Barry, Jr., of counsel), for appellant Insurance Company of North America.
    Lord, Bissell 8c Brook, of Chicago (R. R. McMahan and Thomas W. Dempsey, of counsel), for appellant Certain Underwriters at Lloyd’s, London.
    A. Denison Weaver, Ltd., of Chicago, for appellee Security Mutual Casualty Company.
    Peterson, Ross, Schloerb & Seidel, of Chicago, and Bodkin, McCarthy, Sargent & Smith, of Los Angeles (Henry G. Bodkin, Norbert J. Wegerzyn, Toni M. Oberscheven and Louis C. Roberts, of counsel), for appellee Harbor Insurance Company.
    Haskell & Perrin, of Chicago (Donald M. Haskell and Philip A. Jackman, of counsel), for appellee Continental Casualty Company.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Security Mutual Casualty Company, appealed from the order of the circuit court of Cook County allowing the petition of defendant Harbor Insurance Company (hereafter Harbor) to compel arbitration. The appellate court reversed (65 Ill. App. 3d 198), and we allowed the petitions for leave to appeal of defendants Certain Underwriters at Lloyd’s and Insurance Company of North America. This controversy stems from an action filed in the superior court of Los Angeles County, California, by John Bertero against National General Corporation charging the malicious prosecution of a cross-complaint filed in prior litigation between the parties. Bertero recovered a judgment against National which was affirmed by the Supreme Court of California on December 10, 1974. (Bertero v. National General Corp. (1974), 13 Cal. 3d 43, 529 P.2d 608, 118 Cal. Rptr. 184.) The releva it facts and the description of the insurance policies and reinsurance agreements here involved are set forth in the appellate court opinion and need not be reviewed here. (65 Ill. App. 3d 198, 200-02.) All of the insurance companies involved have appeared and filed briefs in this court.

Harbor paid substantially all of the judgment recovered by Bertero and demanded reimbursement from plaintiff Security under the reinsurance agreement in force between the parties from January 1, 1960, to January 1, 1965. Security refused to pay and Harbor demanded arbitration. Security filed this action for declaratory judgment seeking a declaration of its rights and obligations under the reinsurance treaty. Named as defendants in addition to defendant Harbor were Continental Casualty Company, Consolidated Mutual Insurance Company, Insurance Company of North America and Certain Underwriters at Lloyd’s.

Pursuant to section 2 of the Uniform Arbitration Act (Ill. Rev. Stat. 1975, ch. 10, par. 102), Security filed a petition seeking a stay of arbitration. Harbor moved to strike Security’s petition to stay arbitration and filed a petition to compel arbitration. The circuit court denied Security’s petition to stay arbitration and allowed Harbor’s petition to compel arbitration. Security appealed. The appellate court held that the successful conclusion of the original action (the defeat of National’s cross-claim against Bertero) was a prerequisite to the malicious prosecution action and that the cause of action, therefore, did not arise until August 1965, when National’s cross-complaint against Bertero was terminated in his favor. It reasoned that since the reinsurance treaty between Security and Harbor had been terminated on January 1, 1965, prior to the time when Bertero’s cause of action arose, there was no longer a contractual relationship between the parties, and that “Security was no longer bound to provide excess coverage for Harbor and no arbitration clause was in effect between the parties.” 65 Ill. App. 3d 198, 206.

The reinsurance agreement between Harbor and Security provided inter alia:

“ARTICLE I.
CLASSES OF BUSINESS REINSURED:
The Company will reinsure with the Reinsurer and the Reinsurer will accept reinsurance from the Company upon the specific terms and conditions set forth in this Agreement as respects the following classes of business: —
Third Party Bodily Injury Liability (including Medical Payments) and Property Damage Liability Business;
Workmens Compensation and Employers’ Liability Business;
Motor Cargo Business”
“ARTICLE XIII.
ARBITRATION:
In the event of any dispute between the Company and the Reinsurer in connection with this Agreement, such dispute shall be submitted to arbitration.
As soon as one party demands arbitration and has named an arbitrator, the other party binds itself to name an arbitrator within one (1) month and the two arbitrators shall then within a further period of one (1) month select an umpire. In the case of their being unable to agree upon an umpire, each of them shall name three of whom the other declines two, and the decision shall be made by each of them drawing lots. The umpire shall act under the said Agreement or submission with the same force and effect as if he had been specifically named therein and the decision of the majority of the court of arbitration shall be final and binding upon the contracting parties.
*** ”

The long established rule, enunciated in Ross v. Watt (1854), 16 Ill. 99, is that “In construing instruments of submission to arbitration, courts always give as large a construction to them, as the words of the instrument and the intentions of the parties, drawn from their expressions, will warrant.” 16 Ill. 99, 102. See also Podolsky v. Raskin (1920), 294 Ill. 443.

The Uniform Arbitration Act (Ill. Rev. Stat. 1975, ch. 10, par. 101 et seq.) in pertinent part provided:

“Sec. 1. Validity of Arbitration Agreement. A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist at law or in equity for the revocation of any contract.
Sec. 2. Proceedings to Compel or Stay Arbitration. (a) On application of a party showing an agreement described in Section 1, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.
(b) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. That issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
* * *
(e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.” Ill. Rev. Stat. 1975, ch. 10, pars. 101, 102(a), (b), (e).

Security argues that, in order to decide the appeal from the interlocutory order compelling arbitration, it was necessary that the appellate court determine whether, at the time of the occurrence out of which liability arose, there was an arbitration agreement in force between the parties. Simply stated, the argument is that the arbitration clause cannot exceed the scope of the reinsurance agreement, and before it can be determined whether the dispute was arbitrable, it must be determined whether the agreement was in force and effect when Bertero’s cause of action arose.

We do not agree. Acceptance of Security’s contention would require resolution of the merits of the cause prior to reaching the threshold question and the sole question presented by this appeal — whether under the agreement between the parties the dispute was subject to arbitration. Whether Harbor’s claim is meritorious is not the issue; if under the language of the agreement its claim is arbitrable, it is arbitrable whether valid or invalid.

We hold that under the provisions of the agreement the dispute between Security and Harbor is “in connection with” the agreement between them and under its provisions was subject to arbitration. In determining the validity of Harbor’s claim the appellate court exceeded the scope of review and, in so doing, erred.

For the reasons stated, the judgment of the appellate court is reversed, the order of the circuit court is affirmed, and this cause is remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

Appellate court reversed; circuit court affirmed; cause remanded.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 51717.
    SAMUEL BERKE, Appellant, v. FIRST NATIONAL BANK & TRUST COMPANY IN ALTON, Ex’r, Appellee.

      Opinion filed November 21, 1979.

    CLARK, J., took no part.
    Don H. Reuben and James A. Klenk of Reuben & Proctor, of Chicago, for appellant.
    Albert E. Jenner, Jr., Charles J. O’Laughlin and Kathleen J. Purcell, of Jenner & Block, of Chicago, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This case presents what would seem to be the final chapter in the protracted litigation involving an attempt by Samuel Berke, as receiver of the defunct City Savings Association of Chicago, to recover from the estate of Joseph E. Knight, former director of the Department of Financial Institutions of the State of Illinois, losses suffered by the Association’s depositors. (Tcherepnin v. Franz (N.D. Ill. 1975), 393 F. Supp. 1197; Tcherepnin v. Franz (N.D. Ill. 1976), 424 F. Supp. 778, aff’d (7th Cir. 1978), 570 F.2d 187, cert. denied (1978), 439 U.S. 876, 58 L. Ed. 2d 190, 99 S. Ct. 214.) The details of that litigation, other than as hereinafter noted, are not relevant to the disposition of this case except that the Federal litigation culminated in a 1976 judgment of the United States District Court for the Northern District of Illinois, Eastern Division, against the executor of the Knight estate and in favor of the receiver in the amount of $13,969,504.

The question before us is whether the inventoried assets of the Knight estate are subject to that judgment when the receiver’s claim was not filed in the probate proceedings within the 6-month statutory period for filing claims against the estate. Section 204 of the Probate Act, occasionally referred to as a nonclaim statute, provides in pertinent part:

“All claims against the estate of a decedent, except expenses of administration and surviving spouse’s or child’s award, not filed within 6 months from the issuance of letters testamentary or of administration are barred as to the estate which has been inventoried within 6 months from the issuance of letters.” (Ill. Rev. Stat. 1973, ch. 3, par. 204.)

The circuit court of Jersey County disallowed the receiver’s claim, since it was not filed within the 6-month statutory period. We allowed the receiver’s motion for direct appeal to this court (58 Ill. 2d R. 302(b)). We reverse.

Joseph E. Knight died April 2, 1973, during the pendency of the district court suit in which he was a defendant. On April 6 the Jersey County circuit court appointed the First National Bank & Trust Company In Alton (the bank) as administrator to collect, and on May 16 letters testamentary were issued to it as executor of the decedent’s will. On May 7 a motion was filed in the Federal suit to substitute the bank as a defendant in its capacity as administrator to collect, and to add it as a party in its capacity as executor as soon as it was so appointed. A Federal marshal served the bank, in its representative capacity, with summons on that date, and an order of substitution was entered by the district court on May 30. Thereafter counsel for the executor defended against the receiver’s complaint in the district court, appealed the judgment earlier referred to, and sought certiorari from the United States Supreme Court when the judgment was affirmed by the court of appeals.

The early opinions of this court make clear that prior to the adoption of the 1964 constitutional amendment merging into a single circuit court the various trial courts of this State, the substitution of the executor as a party defendant in the Federal court proceeding would have constituted a sufficient compliance with the statutory provisions relating to the filing of claims against estates. Hood v. Commonwealth Trust & Savings Bank (1941), 376 Ill. 413, 427-28; Morse v. Pacific Ry. Co. (1901), 191 Ill. 356, 361; Darling v. McDonald (1882), 101 Ill. 370, 377-81; Diversey v. Johnson (1879), 93 Ill. 547, 559-61.

Defendant, however, asserts that the reason for this rule was that prior to 1964 the courts with probate jurisdiction (county courts and, in some larger counties, probate courts) were courts of limited jurisdiction having no power to adjudicate, for example, a tort claim against a decedent or his personal representative. Consequently, urges defendant, whenever such claims are pending or filed in other courts and the decedent’s personal representative was served with summons during the period for filing claims in the probate proceeding, it was necessary to consider that action as having been “filed” within the statutory period for filing claims in the estate proceedings. While that argument appears plausible on first reading, it loses its appeal when one realizes that there existed no reason under the former system why a claim summarizing the nature of the action in another court could not have been filed in the probate proceedings, which is precisely what the executor is urging should have been done here. The receiver could have filed in the Jersey County circuit court a notice stating the claim was pending in the Federal district court. In fact, at one point in the proceedings it appears that the receiver had indicated an intention to do so. His failure to carry out that intention, however, does not appear to us significant, for it would have given the executor no information it did not already have.

Apart from that, however, there is in the controlling opinions of this court earlier cited no determination that the rule of law there announced was contingent upon an absence of jurisdiction in the probate court to hear the action on which the estate claim was based. Nor does there appear to be support for such rationale in the other jurisdictions embracing this general rule (see, e.g., Newman v. Gates (1904), 165 Ind. 171, 72 N.E. 638, error dismissed (1907), 204 U.S. 89, 51 L. Ed. 385, 27 S. Ct. 220; Goehring v. Dillard (1945), 145 Ohio 41, 60 N.E.2d 704; Nelson v. Kittelson (1947), 71 S.D. 535, 27 N.W.2d 200; Schilling v. Biggs (1933), 108 Fla. 351, 146 So. 559; Komblum v. Heflin (Fla. App. 1966), 183 So. 2d 843; Henry v. W. T. Rawleigh Co. (1929), 152 Miss. 320, 120 So. 188; Dillard & Coffin Co. v. Woollard (1921), 124 Miss. 677, 87 So. 148; Pull v. Nagle (1930), 8 N.J. Misc. 653, 151 A. 385; Romero v. Hopewell (1922), 28 N.M. 259, 210 P. 231; In re Ledyard’s Estate (1939), 21 N.Y.S.2d 860, aff’d (1940), 259 App. Div. 892, 20 N.Y.S.2d 1006, reargument denied (1940), 259 App. Div. 1029, 21 N.Y.S.2d 390, and (1941), 261 App. Div. 827, 24 N.Y.S.2d 780; Alexander v. Highfill (1943), 18 Wash. 2d 733, 140 P.2d 277; see also 31 Am. Jur. 2d Executors and Administrators sec. 271, at 141 (1967); 34 C.J.S. Executors and Administrators sec. 396, at 160 (1942)), nor among the writers who have examined this general rule. See 4 W. James, Illinois Probate Law and Practice sec. 204.9 (Supp. 1975); 1A Horner Probate Practice and Estates secs. 405, 407, 417 (4th rev. ed. 1977), and 2 J. Woemer, American Law of Administration sec. 387, at 1251 (3d rev. ed. 1923).

Where a new suit is first filed in a different court subsequent to decedent’s death, there is some authority holding that service of summons upon the personal representative is insufficient to satisfy the requirement that the claim be “filed” or “exhibited” in the probate proceedings. (See, e.g., Flynn v. Driscoll (1924), 38 Idaho 545, 223 P. 524; Vanderpool v. Vanderpool (1914), 48 Mont. 448, 138 P. 772; see also 2 J. Woerner, American Law of Administration sec. 387, at 1252 n.3 (3d rev. ed. 1923).) However, where decedent was defending against the suit at his death, as here, and the personal representative of the estate is served with summons and substituted as a party defendant during the statutory period for filing claims in the probate proceedings, the rule is virtually unanimous that such action is sufficient to comply with the nonclaim statute. The few cases reaching a result different from ours are, in the main, those construing distinguishable statutory provisions. (See, e.g., Windsor Hosiery Mills, Inc. v. Haren (1969), 222 Tenn. 479, 437 S.W.2d 248.) The appellate court in California, however, seems to have reached incompatible conclusions. Wood v. Brown (1974), 39 Cal. App. 3d 232, 114 Cal. Rptr. 63; but cf. Pelser v. Pelser (1960), 177 Cal. App. 2d 228, 2 Cal. Rptr. 259.

We find it significant, too, that despite the 1963 revision of the Probate Act, which was enacted subsequent to approval of our unified trial court system in 1962 but prior to its 1964 effective date, and the amendments to that act subsequently adopted, the General Assembly did not attempt to abolish or modify this long-standing rule. In fact, the commentary accompanying the 1963 amendments evidences an intent to preserve the rule. As chairman of the Illinois State Bar Association Committee for the adoption of uniform probate rules, Judge Earl Shopen of the Sixteenth Judicial Circuit (probate division), observed:

“The legal representative of the estate can still be sued in other courts. For example, in the federal court where there is a diversity of citizenship, and in the circuit court of another county of Illinois when there are multiple defendants with multiple counties of residence or when the tort *** occurred in another county. ***
This conclusion is not affected by the 1963 repeal of old Section 207 of the Probate Act which provided that the jurisdiction of the Probate Court over claims should not be construed to exclude the jurisdiction of such other courts. The repeal of that Section in 1963 does not mean that other courts have lost their concurrent jurisdiction when the requirements for their venue are supported by the facts.
The nine months limitation for filing tort or other claims against the estate imposed by Section 204 of the Probate Act is interpreted to mean that within the nine months, the claims must be filed in the probate proceeding under Section 192 or the summons must be served in the suit commenced in a court elsewhere.” (Emphasis added.) (Shopen, Changes in Probate Procedure, 52 Ill. B.J. 772, 776 (1964).)

This interpretation is supported, too, by a 1977 commentary offered by the Probate Practice Committee of the Chicago Bar Association. That committee concluded in response to an inquiry as to whether legislation or amended supreme court rules should be sought to exempt from filing in the probate division a claim for a cause of action timely filed in another division of the circuit court, that such a claim could, but need not be, filed and “that this represents a desirable state of affairs, and that being the case, we agreed that no further action is necessary. Since the law in its present state does not require it, we see no reason to request a rule or statute which states that it isn’t required.” (Emphasis in original.) Chi. B. Ass’n Op. (May 11, 1977).

The Federal district court judgment involved was rendered in a case which had been pending against decedent at his death; the executor of his will was substituted as a defendant and served with summons shortly after decedent’s death and well within the six-month statutory period for filing claims; and he thereafter defended on behalf of the estate. We have no doubt that the general rule, prevailing in Illinois, permits the judgment creditor to collect that judgment from all assets of the estate and not just those inventoried after passage of the six-month claim period.

We accordingly reverse the judgment of the circuit court of Jersey County and hold that collection of the Federal district court judgment is not limited to after-inventoried assets. The cause is remanded to the circuit court of Jersey County for further proceedings consistent with this opinion.

Reversed and remanded.

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


text:
    (No. 51508.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BOBBY SNYDER, Appellee.

      Opinion filed November 21, 1979.

    William J. Scott, Attorney General, of Springfield, and Norbert Goetten, State’s Attorney, of Carrollton (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Robert C. Perry, Robert J. Biderman, Marc D. Towler and Gary J. Anderson, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Richard J. Wilson, Deputy Defender, and Jeff Justice, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In the circuit court of Greene County, defendant, Bobby Snyder, pleaded guilty to possession of less than 30 grams of a controlled substance (cocaine) (Ill. Rev. Stat. 1975, ch. 561/2, par. 1402(b)). He was sentenced to the penitentiary for not less than 2 nor more than 6 years, to be served consecutively with a sentence of not less than 1 nor more than 3 years for an unrelated conviction for robbery and aggravated assault. Defendant’s motion to withdraw his plea of guilty and vacate the judgment and sentence was denied. In a Rule 23 order (58 Ill. 2d R. 23) the appellate court affirmed the judgment but held that under People v. Dawson (1975), 30 Ill. App. 3d 147, the cause must be remanded with directions to modify the sentence to provide that it be served concurrently with the sentence previously imposed. We allowed the People’s petition for leave to appeal.

When the sentences were imposed section 5 — 8—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—4) provided in pertinent part:

“(b) The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court may set forth in the record.
* * *
(e) In determining the manner in which consecutive sentences of imprisonment, one or more of which is for a felony, will be served, the Department of Corrections shall treat the offender as though he had been committed for a single term with the following incidents:
(1) the maximum period of an indeterminate term of imprisonment shall consist of the aggregate of the imposed indeterminate terms plus the aggregate of the imposed determinate sentences for misdemeanors subject to paragraph (c) of this Section;
***
(3) the minimum period of imprisonment shall be one year or the aggregate of the minimum period of imprisonment imposed by the court, whichever is greater, subject to paragraph (c) of this Section; ***.” Ill. Rev. Stat. 1975, ch. 38, pars. 1005 — 8—4(b), 1005 — 8—4(e)(3).

In People v. Dawson (1975), 30 Ill. App. 3d 147, the defendant, following revocation of his probation, was sentenced to the penitentiary for not less than 3 nor more than 12 years to be served consecutively with two previously imposed concurrent terms of 1 to 5 years. The judgment was affirmed but the cause was remanded with directions to issue an amended mittimus making the sentence concurrent with the prior sentences. In so holding the appellate court said:

“By reason of the provision of sub-paragraph (e) of the same cited section, the minimum and maximum of consecutive sentences are aggregated. Thus, in this case, since the defendant had a sentence of 1 to 5 years and a consecutive sentence was imposed of 3 to 12 years, the defendant had a sentence of 4 to 17 years. It is clear that the consecutive sentence was not ‘required to protect the public from further criminal conduct by the defendant’ since the trial court imposed sentences lesser in nature than that available for the offense of burglary, the same being a Class 2 felony with a provision for a possible 20-year maximum term.” 30 Ill. App. 3d 147, 148.

The appellate court noted that at the time of defendant’s conviction the offense was a Class 3 felony and the circuit court could have imposed a sentence of not less than 3 1/3 nor more than 10 years. It noted further that since the consecutive sentences, aggregated, resulted in a term of not less than 3 nor more than 9 years they could not have been “required to protect the public from further criminal conduct by the defendant ***.”

This record presents the narrow question whether section 5 — 8—4(b) of the Unified Code of Corrections proscribed the imposition of a consecutive sentence when in the aggregate the minimum and maximum sentences were less than those which could have been imposed by means of a concurrent sentence. The appellate courts have not been in agreement on this question. (See People v. Strickler (1977), 47 Ill. App. 3d 419; People v. DeRuse (1977), 48 Ill. App. 3d 52.) The People contend that Dawson was incorrectly decided and that section 5 — 8—4(b) confers upon the circuit court “overlapping jurisdiction” to impose either form of sentence to achieve a desired result. Defendant contends that section 5 — 8—4(b) limits consecutive sentencing to cases in which concurrent sentencing cannot achieve a desired term of imprisonment. He cites the administrative complexities created by consecutive sentences in the computing of “good time” credits which determine the length of time which a prisoner must serve in order to be eligible for parole. Citing People v. Nicks (1976), 62 Ill. 2d 350, and People v. Morgan (1974), 59 Ill. 2d 276, defendant argues that the remandment for the purpose of making the sentences concurrent was proper.

The Constitution of 1970 provides:

“All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, sec. 11.)

Within the permissible scope of the pertinent statutory provisions a circuit court is vested with great discretion in determining the sentence or sentences most likely to achieve the constitutional objective. The presentence report contained in this record would support the conclusion that a substantial sentence was “required to protect the public from further criminal conduct by the defendant.” There is credible authority for the theory that consecutive sentences have value in the case of an offender who poses an unusual risk to the safety of the public. (ABA Standards, Sentencing Alternatives and Procedures sec. 3.4, commentary c (1968).) These sentences were imposed prior to the amendment of section 5 — 8—4(b) (see Public Act 80 — 1099, effective February 1, 1978), and although the circuit court did not set forth the basis for imposing the sentences as is required by the present statute, the transcript leaves no doubt as to the court’s opinion and its reason for so doing. On this record we are unable to say that the circuit court was in error. For the reasons stated, insofar as the judgment of the appellate court affirms the judgment of the circuit court, it is affirmed, and that portion of the judgment which remands the cause for modification of the sentence is reversed. The judgment of the circuit court is affirmed.

Appellate court affirmed in part and reversed in part; circuit court affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 51319.
    INTERLAKE, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jerry D. Rainey, Appellee).

      Opinion filed November 21, 1979.

    Robert E. Maciorowski, of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago, for appellant.
    Chase & Werner and Vitell, Greenfield, Johnson & Goldstein, of Chicago (Louis S. Goldstein and Richard O. Greenfield, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Jerry D. Rainey, claimant, sought a workmen’s compensation award for injuries he allegedly received during his employment with Interlake, Inc., on October 4, 1974. An Industrial Commission arbitrator awarded claimant $113.40 per week for a 32 5/7-week period of temporary total incapacity for work, plus $3,411.90 for medical expenses. Interlake sought review by the Commission which, after taking additional evidence, found that claimant’s accidental injury caused his complete disability, rendering claimant wholly and permanently incapable of work. The Commission awarded claimant $88.90 per week for 323 weeks and $13.30 for one week and, thereafter, a life pension of $3,447.36 annually, payable in 12 equal monthly installments of $287.28. The Commission also increased Interlake’s liability for claimant’s medical expenses to $6,241.45. The circuit court of Cook County confirmed the decision of the Commission, and Interlake has sought review before this court pursuant to Rule 302(a). 58 Ill. 2d R. 302(a).

Interlake contends (1) that claimant failed to prove an accidental injury in that the evidence did not trace his alleged injury to a definite time, place and cause; and (2) that the Commission’s award and its finding that claimant is totally and permanently incapable of work are against the manifest weight of the evidence.

Claimant, 42 years of age, was working as a coilerman for Interlake. He testified that he injured his lower back while prying coils off of a machine with the use of a “2 by 4.” Shortly thereafter, claimant reported to his foreman that he had hurt his back. The foreman sent him to the company nurse, who gave claimant a heat treatment, after which he went home. Three days later, at the company’s request, claimant returned to Interlake, but remained for just two days and performed no work during that period. Claimant has not worked at any time since. He has been under the care of several doctors and has undergone extensive tests and treatments for his back in several hospitals and clinics. Claimant’s treatments included a lumbar laminectomy.

The frequency with which the legal principles applicable to this type of case have been announced obviates their restatement here. We note that claimant testified at both the arbitration hearing and at the proceedings before the Commission. Reports of two examining physicians, one on claimant’s behalf and the other on Interlake’s behalf, were admitted at the arbitration hearing. Both examining physicians also testified personally before the Commission. We have examined this testimony and the remainder of the record and conclude that the Commission’s finding that claimant’s injury arose out of and in the course of his employment with Interlake was not contrary to the manifest weight of the evidence. (See Johnson Outboards v. Industrial Com. (1979), 77 Ill. 2d 67, 71-72.) We reach the same conclusion with regard to the Commission’s finding that claimant thereby became totally and permanently disabled. (See C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278-79; Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312, 318-20.) Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


text:
    (No. 51650
    SAMUEL R. HASCEK, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Thede Marine, Ltd., et al., Appellants).

      Opinion filed November 21, 1979.

      Klohr, Braun, Lynch & Smith, Ltd., of Chicago (Mark A. Braun and James W. Ford, of counsel), for appellants.
    Vitell, Greenfield, Johnson & Goldstein, of Chicago (Richard O. Greenfield and Peter B. Carey, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Claimant, Samuel R. Hascek, sought a writ of certiorari in the circuit court of Cook County to review the amount of compensation awarded him by the Industrial Commission from respondents, Thede Marine, Ltd. (Thede), and Aetna Life and Casualty Co. (Aetna), neither of which had sought review. Subsequently claimant moved to quash his writ, and the court granted that motion over the objections of Thede and Aetna. They appealed here (58 Ill. 2d R. 302(a)), claiming that the circuit court’s decision to quash the writ of certiorari was improper because it deprived them of an opportunity to review the Commission’s award. In response, claimant asserts an absolute right to have his own writ of certiorari quashed.

Our decision in Harrawood v. Industrial Com. (1977), 66 Ill. 2d 230, is dispositive of this issue. There the employee and the employer both obtained writs of certiorari to review the decision of the Industrial Commission. The employee’s writ, however, was subsequently quashed for failure to comply with the conditions provided in section 19(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(f)). After the employee’s writ was quashed the employer moved to quash his own writ and the circuit court granted that motion over the objection of the employee. We held that the circuit court had acted improperly. (Harrawood v. Industrial Com. (1977), 66 Ill. 2d 230, 233.) A writ of certiorari brings the entire record of the Industrial Commission before the court, and an adverse party need not obtain a separate writ of certiorari in order to challenge elements of the Industrial Commission’s decision. Consequently, the writ should not be quashed over the objection of the opposing party. Harrawood v. Industrial Com. (1977), 66 Ill. 2d 230, 233.

We are not unmindful of the decisions of this court in Northwestern Steel & Wire Co. v. Industrial Com. (1967), 37 Ill. 2d 112, and Brewerton Coal Co. v. Industrial Com. (1926), 324 Ill. 89, wherein it was held that one petitioning for review by the Commission of the action by the arbitrator had the right to dismiss his petition. Those cases, however, dealt with review before the Commission, where different considerations apply. There is little point, for example, in requiring both parties to comply with the statutory requirement that “the party commencing the proceedings for review in the Circuit Court” shall pay the cost of preparing the transcript. Ill. Rev. Stat. 1975, ch. 48, par. 138.19(f)(1).

We note, however, that where an employer seeks modification or reversal of a Commission award under a writ of certiorari issued at the request of an employee who wishes his writ quashed, the court issuing the writ may wish to consider whether the cost and bond requirements of sections 19(f)(1) and 19(f)(2) (Ill. Rev. Stat. 1975, ch. 48, pars. 138.19(f)(1), 138.19(f)(2)) are thereby activated.

We accordingly reverse and remand this cause to the circuit court of Cook County for further proceedings consistent herewith.

Reversed and remanded.


text:
    (No. 51802.
    PULLIAM MASONRY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (James Johnson, Appellee).

      Opinion filed November 21, 1979.

      Patrick J. Cadigan, of Gillespie, Cadigan & Gillespie, of Springfield, for appellant.
    Frank S. Calandrino, of Calandrino, Logan & Robeson, of Springfield, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The employer, Pulliam Masonry, appeals from an order of the circuit court of Sangamon County which confirmed the Industrial Commission’s award of compensation to claimant, James Johnson. The Commission, in adopting the arbitrator’s recommendation, determined that the claimant had sustained accidental injuries arising out of and in the course of his employment, and that such injuries caused the temporary disability of the claimant. Claimant was awarded $2,413 as compensation and $61 for necessary medical services.

The employer asserts that claimant failed to establish a causal connection between the accident and his present condition, and that the award of compensation was contrary to the manifest weight of the evidence.

On June 1, 1975, the claimant, while employed as a brick layer, reached overhead to lift a 50-pound block onto a scaffold. He experienced a sharp pain in his lower back and between his shoulders. The parties stipulated that the employer was given due notice of the accident. Because the claimant was unable to continue lifting the 50-pound blocks, he was given lighter duty. He worked sporadically until October 28, 1975. Several months after the accident, he sought treatment from Dr. David Mack, an orthopedic surgeon whose report was introduced into evidence. Dr. Mack hospitalized claimant in February of 1976 and performed a myelogram which revealed a narrowing of the spinal canal.

Claimant’s condition was evaluated by Dr. Horacio Rivero in August 1976. The diagnosis in his report was lumbar and cervical strain superimposed upon preexisting pathology in the spinal column, which precluded the claimant from performing manual labor.

The employer introduced no medical evidence.

A causal connection between an accident and a claimant’s condition may be established by a chain of events including the claimant’s ability to perform manual duties before an accident, a decreased ability to so perform immediately after an accident, and other circumstantial evidence. (Union Starch & Refining Co. v. Industrial Com. (1967), 37 Ill. 2d 139, 143.) It is not necessary to establish a causal connection by medical testimony. (Westinghouse Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 244, 250.) The facts of this case clearly establish a causal connection. Moreover, the factual question of a causal relationship is peculiarly within the province of the Commission, and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. International Vermiculite Co. v. Industrial Com. (1979), 77 Ill. 2d 1, 4; Orr v. Industrial Com. (1970), 47 Ill. 2d 242, 243; Boyd v. Industrial Com. (1970), 44 Ill. 2d 318, 320.

The claimant’s inability to work is evidenced by Dr. Rivero’s report, which states that the loss of the use of the left shoulder and arm prevents the performance of manual labor which requires repetitive motion of the left shoulder joint, heavy lifting and overhead reaching. The same conclusions are stated as to the injuries to the lower back and legs. The report also specifically refers to an aggravation of a preexisting congenital abnormality. No contradictory medical evidence was introduced. If the claimed accident is a contributing factor which aggravates a preexisting condition compensation will be allowed. International Vermiculite Co. v. Industrial Com. (1979), 77 Ill. 2d 1, 3-4.

In our judgment, the Commission’s findings were not against the manifest weight of the evidence.

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

Judgment affirmed.


text:
    (No. 51772.

      In re CHARLES C. PORCELLI, Attorney, Respondent.

      Opinion filed November 21, 1979.

      John C. O’Malley, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Martin, Ltd., of Chicago, for respondent.
   MR. JUSTICE MORAN

delivered the opinion of the court:

A disciplinary proceeding was brought against respondent, Charles C. Porcelli, by the Administrator of the Attorney Registration and Disciplinary Commission.

The respondent had been indicted for bribery and found not guilty by the trial court on April 27, 1976. On November 15, 1977, the Administrator filed a two-count complaint charging respondent with unethical conduct involving fraud and deceit. Proceedings were held’before a hearing panel of the Attorney Registration and Disciplinary Commission which found that the Administrator had proved the allegation of count I. The panel declined to make a finding as to count II. In its report, the panel recommended that respondent be suspended from the practice of law for one year. The Review Board filed its report recommending, based on count I, that respondent be suspended from the practice of law for a period of one year and until further order of the court.

Count I of the complaint alleged that respondent had paid $300 in cash to Officer Strutz of the Glencoe Police Department in order to assure Strutz’s accurate completion of ail alcohol-influence report on respondent’s client, Anthony Ormiston, who had been arrested for driving while under the influence of alcohol. The complaint recited that respondent believed that if he did not pay the officer, the report would be inaccurately completed in a manner that would reflect adversely upon his client. Count II of the complaint charged that respondent failed to report the officer’s conduct to the proper authorities.

Other than respondent’s character witnesses, only the respondent testified before the hearing panel. The respondent testified that Ormiston, 72 years of age, contacted him on September 27, 1972, and related that Strutz had arrested him on September 9, 1972, for driving while under the influence of alcohol. Ormiston indicated that he felt Strutz had something of a vendetta against him inasmuch as the same officer had issued a traffic citation to him during the previous week. Although Ormiston had retained another lawyer to represent him at trial, he engaged the respondent to review the case and determine the seriousness of the charge. Respondent agreed to make this evaluation, at which point Ormiston voluntarily gave respondent $300 in cash.

Respondent contacted Strutz and requested that a copy of the alcohol-influence report be mailed to him. When the officer refused, respondent agreed to go to the Glencoe police station that evening to obtain the report. At the station, the officer showed respondent a copy of an alcohol-influence report and two green cards which registered breathalizer results. The readings on those cards were .08 and .10. (A statutory presumption of intoxication applies to results of .10 or over.) These breathalizer findings had not been entered on the appropriate space of the alcohol-influence report. On the observation-report section, boxes were checked indicating that Ormiston’s breath was both “moderate” and “strong.” Respondent admitted that this report was one made out by Dr. Minnema, rather than by Strutz, and that several of the questions thereon had been left unanswered.

Strutz told respondent that he had not prepared his own alcohol-influence report because he had been on vacation and had been busy. Strutz stated that his report would vary somewhat from Dr. Minnema’s in that Ormiston should have been marked “ ‘sure’ on turns” and “ ‘sure’ on the finger-to-nose test.” When respondent asked when his report would be ready, Strutz replied, “What is there in this for me?” and explained that he did not like Ormiston and that “My report can be one way or another.” Respondent asked what he would do about the breathalizer cards and Strutz replied, “I will turn in the card that instead of having a .08 will be .18, instead of .10 will be a .20.” Strutz said that he wanted $300 for himself or he would prepare a report that was totally unfavorable to Ormiston. Respondent agreed to pay the money and left with the understanding that Strutz would contact him.

On the following day, September 28, 1972, Strutz telephoned the respondent asking him to pick up the report that he had prepared. During this conversation, respondent admitted, that, in referring to Strutz’s report, he asked for “one more ‘sure’ and one ‘hesitant’ on the finger to nose” and “Give me a ‘sure’ on the turning.” Respondent told Strutz that there would be $300 for him as agreed.

Respondent met with Strutz in a small room at the Glencoe Police Department on that evening. Strutz left the room and returned with two alcohol-influence reports, one a copy of Dr. Minnema’s and the other the report that Strutz had prepared. Strutz handed respondent his report and put Dr. Minnema’s in his pocket. Respondent gave the officer the $300 in cash. Respondent testified that, at the time, he believed or understood that Dr. Minnema’s report would be destroyed. Respondent left the police station and was arrested shortly thereafter.

Relying on In re Horwitz (1935), 360 Ill. 313, the respondent argues that dismissal should have been granted on the basis that respondent was entrapped. In Horwitz, an attorney was drawn into an elaborate scheme in which he filed a false personal injury claim based on information given to him by his client. He was not aware of the falsity of the claim or of the underlying scheme until disciplinary action was instituted against him. The court refused to impose any discipline.

In In re Howard (1977), 69 Ill. 2d 343, however, this court flatly refused to allow the defense of entrapment. Attorney Howard faced a disciplinary proceeding on charges that he had on two occasions paid an arresting officer $50 to testify “to the truth” as listed on an alcoholic-influence report. This court found that Howard could not avail himself of the defense of entrapment because, at the time the acts were committed, he, unlike Horwitz, “must have been completely cognizant of their unsavory quality.” (In re Howard (1977), 69 Ill. 2d 343, 352.) Certainly, the respondent in this case cannot be equated to the innocent attorney in Horwitz. No undue, prolonged or persistent pressures were urged on this respondent by the officer (People v. Hall (1962), 25 Ill. 2d 297, 301); nor can the single statement made by the police officer to the respondent be labeled “undue pressure.” In re Howard (1977), 69 Ill. 2d 343, 353.

We add, as pointed out by the Administrator, that the respondent took an active part in the preparation of Strutz’s report when he asked for “a ‘sure’ on the turning” and “one more ‘sure’ and one ‘hesitant’ on the finger to nose.” This conduct negates the idea that extreme pressure was forced upon the respondent. Additionally, respondent was aware that the “truth” was available through an independent party, Dr. Minnema, who had prepared a report on Ormiston on the day of his arrest. Respondent not only failed to rely on this independent source but admitted that he believed the physician’s report was to be “disposed of.” We hold that this case is not one in which the defense of entrapment may be applied. As in Howard, the respondent’s ready negotiations evidence a willingness to join in the illegal conduct which is inconsistent with the defense of entrapment.

It would be difficult to imagine circumstances in which the defense of entrapment would be available to an attorney in a disciplinary proceeding. Attorneys are versed in the law and should be keenly aware of what activities constitute a breach of the law. This knowledge is inconsistent with the central premise of entrapment, i.e., an implantation of criminal intent in the mind of an innocent person. (Sorrells v. United States (1932), 287 U.S. 435, 77 L. Ed. 413, 53 S. Ct. 210.) Therefore, in only the rarest of circumstances may an attorney label himself innocent and shield himself with the defense of entrapment.

The respondent next contends that the Review Board’s recommendation that he be suspended from the practice of law for one year and until further order of the court is excessive in light of the circumstances in which his actions occurred and the evidence in mitigation. Both the respondent and the Administrator agree that In re Howard 69 Ill. 2d 343, and In re Kien (1977), 69 Ill. 2d 355, are relevant and important to this issue. This court, in Howard, stated that “ [t] he discipline to be imposed in each case must be judged individually, based on the specific circumstances and conduct involved. ” (In re Howard (1977), 69 Ill. 2d 343, 354.) However, the court is keenly aware of the necessity for consistency in the imposition of discipline in similar cases.

The respondent seeks to distinguish Howard, urging that close analysis reveals that a substantially different discipline is warranted here than the two-year suspension imposed in Howard. In that case, the respondent paid the arresting officer $50 on two occasions to testify “to the truth” as listed on his alcoholic-influence report. In addition, respondent remarked, “I am probably going to have to spend some money with the State’s Attorney,” and stated that he had things “pretty well set with the judge.” In re Howard (1977), 69 Ill. 2d 343, 348.

The respondent argues that Howard involved three separate transgressions over a period of several months, rather than the single momentary lapse of judgment involved here. We decline to characterize the respondent’s act as a single momentary lapse. The offer made by Strutz occurred on the evening of September 27, 1972, but the money was not paid nor the report exchanged until the following evening. Thus, the respondent had ample time to reflect on the dialogue which had taken place at the Glencoe police station and to contemplate its implications. Respondent, who was not the defense counsel, must have realized that he could serve as a witness for Ormiston to impeach Strutz’s testimony. More importantly, respondent had ample time to report the transgressions of Strutz to the proper authorities, but he failed to do so. This negates the idea of a momentary lapse in judgment.

Respondent also contends that in Howard the visual report with which the officer allegedly threatened to “bury” Howard’s client was extremely damaging to Howard’s client, whereas in the case at bar the report completed by Dr. Minnema was favorable to Ormiston, but Strutz threatened to complete a false unfavorable report. However, there is no indication in Howard that the report was damaging to Howard’s client. The respondent there had testified that he wanted the officer to testify in accordance with the visual report because “the responsive answers on the visual were so extreme that [he] couldn’t believe it.” (69 Ill. 2d 343, 348.) However, in Howard, the hearing panel specifically stated that it did not believe respondent’s suggestion that he paid the money to the officer in order to get him to tell the truth. (In re Howard (1977), 69 Ill. 2d 343, 350.) In the case at bar, the panel’s report found “that Respondent only wanted the Glencoe Police reports to be truthful and accurate” and that “Respondent’s actions were solely motivated by concern that his client be treated fairly. ” Nonetheless, this court in Howard declared:

“Whether it was to influence his testimony to be truthful or otherwise, such acts have the clear appearance of impropriety, bring law officers, the legal profession, and the court into disrepute, and hinder the administration of justice.” In re Howard (1977), 69 Ill. 2d 343, 351.

While there may be some shades of difference between Howard and the case at bar, especially in Howard’s remark implicating the State’s Attorney and the trial judge, the general nature of the offense and circumstances surrounding each are remarkably similar. It may be assumed that both the hearing panel and the Review Board recommended a one-year suspension in light of the similarities of Howard and took the very facts of distinction between the two into consideration in recommending a one-year suspension for this respondent instead of the two-year suspension imposed in Howard.

The respondent also argues that In re Kien (1977), 69 Ill. 2d 355, is distinguishable. In Kien, the attorney was given an 18-month suspension for paying $50 to a testifying police officer after a hearing on a motion to suppress a gun found by the officer when respondent’s client was stopped for a traffic violation. Immediately before the suppression hearing, attorney Kien met with the arresting officer and conversed as to the circumstances surrounding the discovery of the gun. The officer stated, “I can find the gun wherever I want” and “You get what you pay for.” (69 Ill. 2d 355, 359.) Kien agreed to pay $50. After the hearing, Kien met with the officer, paid him the $50 and was immediately arrested.

The respondent attempts to distinguish Kien in that the attorney there was a young attorney whose reputation for honesty and integrity cannot be equated to the respondent’s here, who had an unblemished record after 27 years in the profession. While evidence of a respondent’s reputation for honesty is no defense to charges of misconduct, it may be considered in mitigation. (In re Kien (1977), 69 Ill. 2d 355, 362.) We feel that the respondent’s unmarred record for 27 years in the legal profession, along with the character witnesses’ testimony as to his outstanding reputation, are factors in mitigation which influenced both the hearing panel and the Review Board in leniently recommending a one-year suspension rather than the 18-month suspension received by attorney Kien.

From our review of the record, we conclude that the recommended discipline be modified to the extent that the respondent be suspended from the practice of law for a period of one year.

Respondent suspended.