author: MR. JUSTICE MORAN MR. JUSTICE CLARK,

text:
    (No. 50773.
    MOLLIE PIPPIN, Adm’r, Appellee, v. THE CHICAGO HOUSING AUTHORITY et al., Appellants.

      Opinion filed December 3, 1979.

      CLARK, J., concurring in part and dissenting in part.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini and Thomas H. Ryerson, of counsel), for appellant Interstate Service Corporation.
    Wildman, Harrold, Allen & Dixon, of Chicago (Howard T. Brinton and Robert E. Kehoe, Jr., of counsel), for appellant Chicago Housing Authority.
    Lawrence B. Ordower, of Ordower 8c Ordower, P.C., of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This is an action for the wrongful death of Frederick Douglas Pippin, brought by his mother, Mollie Pippin, the administratrix of his estate, against the Chicago Housing Authority (Authority), a municipal corporation, and Interstate Service Corporation (Interstate) in the circuit court of Cook County. The circuit court granted summary judgment in favor of the defendants, but the appellate court reversed and remanded. (58 Ill. App. 3d 1029.) We granted the Authority leave to appeal. (65 Ill. 2d R. 315.) Interstate joined in the appeal pursuant to our Rule 318(a). 58 Ill. 2d R. 318(a).

At issue is the extent of the Authority’s duty, if any, to protect plaintiff’s decedent, Frederick Pippin, a social guest, from criminal conduct which occurred on premises owned and managed by the Authority, and the duty of Interstate to protect the deceased from such conduct.

On January 10, 1973, around 6 p.m., in the lobby of a housing project owned and operated by the Authority, Loretta Haywood approached Willie Torrence and Willie Butler, employed as security guards at the project by Interstate. She asked the two guards, who were releasing a lock system on the mailboxes at the time, to remove Pippin, an acquaintance and apparently a licensee (Restatement (Second) of Torts sec. 330, comment A(3) (1965)) from her apartment in the project building. They explained they were not permitted, by Interstate’s policy, to become involved in any “domestic problem,” and suggested she call the Chicago police. She thereupon left the building but returned to the lobby in three or four minutes. About the same time, Pippin entered the lobby from the building’s stairway. Haywood, in an audible voice, told him to “go *** and don’t come back.” At that, Pippin walked over to Haywood and struck her on the head more than once. The guards stopped their work at the mailboxes and, within seconds of the start of the altercation, separated the couple. Upon pulling them apart, the guards for the first time saw that Haywood was in possession of a knife and that Pippin was bleeding. According to both guards, at no time prior to the beating and knifing did either Haywood or Pippin display haste, excitement or hysteria.

At the time of the incident, a contract for security or “protective services” existed between the Authority and Interstate, and included the following language.

“WHEREAS, the party of the second part [(Authority)] is desirous of securing from the party of the first part [(Interstate)] the services of armed guards and other protective services for the purpose of guarding its properties *** and the protection of persons thereon ***.
* * *
It is expressly understood and agreed that the party of the first part is an independent contractor, engaged in an independently established business and is at the present time furnishing services of the same character as ■ are herein provided to other parties and that neither party of the first part nor any of its employees, whether engaged in rendering any of the services provided for under this contract or otherwise, shall under any circumstances whatsoever be considered as employees of the party of the second part.” (Emphasis added.)

The Authority contends that it had no legal duty to protect Pippin from criminal conduct because the common law imposes no such duty; that Pippin had no special relationship with the Authority that would justify placing a burden of protection on the Authority; and that it had not assumed a duty of protection by contracting for protective services. The appellate court agreed there was no duty to protect the victim, but held that the Authority and Interstate, “by the terms of their contract *** assumed a duty to exercise reasonable care in protecting persons lawfully on the premises from foreseeable criminal attacks and other foreseeable dangers.” 58 Ill. App. 3d 1029, 1037.

“It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff.” (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 97. Accord, Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 554-55.) The appellate court correctly states the common law in Illinois: a landlord does not owe a tenant or social guest (licensee) a duty to protect the latter from criminal acts. (58 Ill. App. 3d 1029, 1033-37; Martin v. Usher (1977), 55 Ill. App. 3d 409, 410-11; Smith v. Chicago Housing Authority (1976), 36 Ill. App. 3d 967, 969-71; Trice v. Chicago Housing Authority (1973), 14 Ill. App. 3d 97, 99-101. See Annot., Liability to Social Guest Injured Otherwise Than By Condition of Premises, 79 A.L.R.2d 990 (1961), and Annot., Landlord’s Obligation to Protect Tenant Against Criminal Activities of Third Persons, 43 A.L.R.3d 331 (1972).) Moreover, this case does not fall into the “special relationship” exception to the general rule above. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 559-60. Cf. McCoy v. Chicago Transit Authority (1977), 69 Ill. 2d 280 (common law liability existed because the defendant was a common carrier, a “special relationship” classification).

As additional support for the argument that the Authority has the duty to protect persons on its premises, plaintiff posits the following portions of two provisions of the Housing Authorities Act.

“It is hereby declared as a matter of legislative determination that in order to promote and protect the health, safety, morals and welfare of the public, it is necessary in the public interest to provide for the creation of municipal corporations to be known as housing authorities, and to confer upon and vest in said housing authorities all powers necessary or appropriate in order that they may engage in low-rent housing and slum clearance projects, and undertake such land assembly, clearance, rehabilitation, development, and redevelopment projects as will tend to relieve the shortage of decent, safe, and sanitary dwellings.” Ill. Rev. Stat. 1971, ch. 6714, par. 2.
“The State Housing Board shall thereupon issue a certificate to the presiding officer of such city, village, incorporated town or county for the creation of such authority if it shall find (a) that unsanitary or unsafe inhabited dwelling accommodations exist in such city, village, incorporated town or county, or (b) that there is a shortage of safe or sanitary dwelling accommodations in such city, village, incorporated town or county available to persons who lack the amount of income which is necessary (as determined by said Board) to enable them without financial assistance to live in decent, safe and sanitary dwellings without over-crowding.” (Ill. Rev. Stat. 1971, ch. 671/2, par. 3.)

The foregoing language, and particularly the phrase “decent, safe and sanitary dwellings,” cannot reasonably be construed to require the Authority to provide protection from criminal activities directed against persons lawfully on the premises owned or operated by the Authority. Rather, we are convinced that this language refers exclusively to the physical condition of the premises. Annot., 43 A.L.R.3d 331, 344 (1972).

Although the Authority had no independent duty to protect against criminal acts on its premises, it voluntarily entered into a contract with Interstate, an independent contractor, by which the latter agreed to provide guard services on Authority premises. In Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, this court gave its recognition to the established principle that liability can arise from the negligent performance of a voluntary undertaking. The court utilized this principle to impose liability against an insurer for personal injuries suffered as a result of the insurer’s negligent performance of a gratuitous inspection of the premises where the injuries occurred. Although the principle is applicable here, the extent of the Authority’s undertaking was different than that of the insurer in Nelson. Because the Authority did not undertake to perform the guard services itself, it cannot be held to have had a duty to protect Pippin. The Authority’s duty was limited by the extent of the undertaking, viz, to use reasonable care in engaging Interstate to provide the guard services. The Authority can therefore be liable at most for the negligent hiring of Interstate. (Restatement (Second) of Torts sec. 411 (1965); Prosser, Torts sec. 71, at 469-70 (4th ed. 1971).) We note that plaintiff’s complaint, which alleges that the Authority employed Interstate without proper investigation and with negligence, raises a question of fact relevant to the issue of the Authority’s liability. Thus, summary judgment should not have been granted in favor of the Authority.

There remains the issue of Interstate’s liability. As stated, Interstate contracted with the Authority to provide guard services; specifically, to provide “protective services for the purpose of guarding [the Authority’s] properties *** and the protection of persons thereon.” Initially, we conclude that plaintiff’s action is better characterized as a tort action than as a contract action, and, as such, no privity is required. (See Rozny v. Marnul (1969), 43 Ill. 2d 54, 60, 62-68; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 617; Prosser, Torts sec. 93 (4th ed. (1971).) In assessing Interstate’s duty in tort owed to Pinpin as a result of its contract with the Authority, we find section 324A of the Restatement (Second) of Torts to be apposite. That section states:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” (Restatement (Second) of Torts sec. 324A (1965).)

Interstate’s duty does not arise under either subsection (a) or (b), as plaintiff’s complaint does not allege that Interstate’s conduct actually increased the risk of harm to Pippin, and, as we have already determined, there was no preexisting duty on the part of the Authority to provide protection in this instance.

Subsection (c), however, sets up reliance upon the undertaking as a separate basis for finding liability. While it appears unlikely that Pippin relied upon Interstate’s undertaking, subsection (c) speaks to reliance by the third person (Pippin) or by “the other” (the Authority) (Restatement (Second) of Torts sec. 324A(c) (1965)). By contracting with Interstate for guard services, the Authority, as a matter of law, relied upon Interstate to perform its undertalcing. We note the rationale for subsection (c) of section 324A, which appears in the comments to that section.

“Where the reliance of the other, or of the third person, has induced him to forgo other remedies or precautions against such a risk, the harm results from the negligence as fully as if the actor had created the risk.” (Restatement (Second) of Torts sec. 324A, comment e (1965).)

Plaintiff has, therefore, satisfied the reliance requirement of section 324A(c), so as to give rise to a duty owed by Interstate to Pippin.

Interstate contends that it has not undertaken the obligation of “protection of persons” because that provision of the contract is in the preamble, at the behest of the Authority, rather than in the specific clauses of the contract. Interstate is correct, of course, in stating the general rule:

“[O] bligations and promises of the parties in the operative portion of a contract prevail over a preliminary recital or preamble.” (Brookens v. Peabody Coal Co. (1957), 11 Ill. 2d 322, 325.)

Interstate argues that the “operative portion” of the instant contract expresses something which contradicts, qualifies, or derogates the preamble and its stated purpose of “protection of persons.” That, however, is not the situation. The operative clauses of the contract simply provide, in specific ways, for the implementation of the purposes set out in the preamble. We conclude that Interstate assumed the duty, owed to persons lawfully on the Authority’s property, of exercising reasonable care in the performance of its contracted obligation of “protection of persons.” It is for the trier of fact to determine if that duty was breached.

For the foregoing reasons, the judgment of the appellate court, reversing the circuit court and remanding the cause, is affirmed.

Judgment affirmed.

MR. JUSTICE CLARK,

concurring in part and dissenting in part:

I agree with the majority that the Authority, as landlord, has no common law duty to protect a tenant or social guest from criminal acts. I disagree with its conclusion that the Authority has no statutory duty to do so. Hence, I dissent in part.

I believe the Authority is commanded by the legislature to exercise reasonable care to protect tenants and others (including licensees and invitees), lawfully on the premises owned or operated by the Authority, from foreseeable criminal acts. (Contra, Annot., 43 A.L.R.3d 331, 344 (1972). But see 1 J. Dooley, Modern Tort Law 385 (1977) (hereafter Dooley).) In the Housing Authorities Act (Ill. Rev. Stat. 1971, ch. 6714, pars. 1 et seq.) (hereafter Act) the legislature provided for the creation of a “housing authority” (Ill. Rev. Stat. 1971, ch. 6714, par. 3) which “shall be a municipal corporation and shall constitute a body both corporate and politic, exercising public and essential governmental functions, and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this Act, including, in addition to others herein granted, the powers enumerated in Sections 8.1 through 8.8, inclusive.” (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 671/2, par. 8.) (See Ill. Rev. Stat. 1971, ch. 6714, pars. 8.1, 8.2.) The public policy of this State, as well as the purposes of the Act, are clearly set out in section 2 of the Act:

“It is hereby declared as a matter of legislative determination that in order to promote and protect the health, safety, morals and welfare of the public, it is necessary in the public interest to provide for the creation of municipal corporations to be known as housing authorities, and to confer upon and vest in said housing authorities all powers necessary or appropriate in order that they may engage in low-rent housing and slum clearance projects, and undertake such land assembly, clearance, rehabilitation, development, and redevelopment projects as will tend to relieve the shortage of decent, safe, and sanitary dwellings; and that the powers herein conferred upon the housing authorities including the power to acquire and dispose of improved or unimproved property, to remove unsanitary or substandard conditions, to construct and operate housing accommodations, to regulate the maintenance of housing projects and to borrow, expend, loan, invest, and repay monies for the purposes herein set forth, are public objects and governmental functions essential to the public interest.” (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 6714, par. 2.)

Section 24 is also relevant:

“It is hereby declared to be the policy of this State that each housing authority shall manage and operate its housing projects in an efficient manner so as to enable it to fix the rentals for dwellings at the lowest possible rates consistent with its providing decent, safe and sanitary dwellings, and that no housing Authority shall construct or operate any such project for profit, or as a source of revenue to a city, village, incorporated town or county. ***” (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 67)4, par. 24.)

It is clear that the Authority specifically (and obviously not landlords generally) is charged with the responsibility to provide “decent, safe, and sanitary” low-income housing. It may be argued that safe is limited to a description of the physical condition of the premises. I do not think, however, the legislature intended so narrow a construction of the word safe, nor intended to have housing authorities construct and operate housing projects in a vacuum, oblivious to the realities of urban — especially poor urban-living. Safe encompasses both the physical and social conditions of the premises. Indeed, the second paragraph of section 2 of the Act unequivocally supports this view:

“It is further declared as a matter of legislative determination that the crucial housing shortage which prevails throughout the State has contributed and will continue to contribute materially toward an increase in crime, juvenile delinquency, infant mortality, and disease; that by reason thereof it has become a social and economic imperative to broaden the powers of housing authorities with respect to the acquisition of property, the construction of housing accommodations, and the assembly, clearance and sale or other disposition of property acquired for development or redevelopment by persons, firms and corporations; that the provisions of this Act are grounded in public necessity and predicated upon serious emergency conditions requiring immediate consideration and action, and that this amendatory Act embraces public objects and governmental functions essential to the public interest.” (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 67)4, par. 2.)

The legislature clearly established a duty to protect those lawfully on the Authority’s premises.

I share the Authority’s concern that it has been given an “impossible” task by the legislature. Although the reasoning in Lance v. Senior (1967), 36 Ill. 2d 516, 518, was applied to the issue of the existence of a common law duty (rather than a statutory duty as we have found here), it is instructive here: “whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.” All parties here acknowledge that low-income housing projects, as here, are the scenes of frequent, tragic crimes, recklessness and violence. (The Authority acknowledges this by arguing it should not be made responsible for acts which are the result of complex socio-economic factors.) Foreseeability and likelihood of injury, resulting from such acts, are not actually disputed here. The burden and consequences are the source of contention. Undeniably, the burden placed on the Authority by the statutory duty is heavy. Even so, the Authority has recognized its obligation by contracting for protective services; since 1950, when the Authority entered into an agreement with Interstate, it has borne the burden of protection of people and property. Despite the pervasive existence of crime in the projects, who can say that, over the long-run, the Authority has failed to meet its statutory duty? The presence of armed, uniformed protective services may have provided needed psychological comfort — and deterrence. The complexity of socioeconomic problems of urban existence should not deter the Authority from exercising or attempting to exercise with reasonable care the duty to provide safe housing as mandated by the legislature.

I do not disagree with the majority’s characterization of plaintiff’s action as a tort action apropos of the liability of Interstate. However, my lack of disagreement with the majority is not to the exclusion of characterizing plaintiff’s action as a contract action. Interstate, an independent contractor, by entering into the contract with the Authority to “provide protective services for the purpose of guarding [the Authority’s] properties *** and the protection of persons thereon,” voluntarily assumed the obligation of protecting persons lawfully on the Authority’s property. In doing so, Interstate owed the duty of exercising reasonable care, in the performance of this voluntarily contracted obligation, to persons lawfully on the Authority’s property. “[L] iability can arise from the negligent performance of a voluntary undertaking.” (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74. Accord, 1 Dooley 70-73. See 1 Dooley at 394.) I note too the second Restatement:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.” (Emphasis added.) (Restatement (Second) of Torts sec. 323 (1965).)

I agree with the majority’s dismissal of Interstate’s contention that it has not undertaken the obligation of “protection of persons” because that provision in the contract is in the preamble, at the behest of the Authority, rather than in the specific clauses of the contract. The majority accurately responded to that contention. I also agree, therefore, that Interstate had the duty of exercising reasonable care in the performance of its contracted obligation to protect persons lawfully on Authority’s property. The factual question remains, whether that duty was breached.

For these reasons, I dissent in part, but would affirm the appellate court and would remand the cause to the circuit court.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 51678.
    WILLIAM D. RHOADES et al. v. NORFOLK AND WESTERN RAILWAY COMPANY et al., Appellees (Chapman and Chapman, Chartered, Appellant).

      Opinion filed October 19, 1979.

      Leonard M. Ring, of Chicago, for appellant.
    Pope and Driemeyer, Thomas W. Alvey, Jr., and William A. Schmitt, of Belleville, for appellees.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This appeal involves an action to recover attorney’s fees allegedly due under a contingent-fee contract entered into between Chapman and Chapman, a law firm in Granite City, and William D. Rhoades, an employee of the Norfolk and Western Railway Company. The Norfolk and Western was named a party defendant because it paid a personal injury settlement to Rhoades against which the Chapman firm asserted an attorney’s lien under section 1 of “An Act creating attorney’s lien and for enforcement of same” (Ill. Rev. Stat. 1975, ch. 13, par. 14).

On January 11, 1976, Rhoades sustained a knee injury while in the employ of the Norfolk and Western Railway Company. On February 12, 1976, Rhoades telephoned the law offices of Chapman and Chapman, explained that he was considering filing suit against the railroad, and requested that someone from the law firm come to his home to discuss his claim.

Robert Chapman, an investigator used by the law firm, went out to the Rhoades home. Chapman was a self-employed legal investigator who had his office in the offices of the Chapman firm; he was not an attorney. On his way into the Rhoades home, Chapman met and exchanged greetings with Stanley Horton, the claim agent for the railroad assigned to the Rhoades case. Horton had dropped off a $200 advancement for Rhoades and was leaving the house when Chapman arrived. Rhoades’ and Horton’s testimony indicated that Horton did not know that Rhoades had contacted a law firm. Horton left for a two-week vacation to Florida the following day.

Robert Chapman discussed the circumstances of the injury with Rhoades and his wife. In response to questions, Chapman voiced his opinion that the Rhoades’ claim was valid and worth a fairly large amount of money. Despite Rhoades’ urging, Chapman refused to place a dollar value on the claim. After this discussion, Chapman produced a form retainer contract of the Chapman law firm and filled in the blanks in the form. The contract authorized the firm to represent Rhoades in his personal injury claim against the railroad and provided for a 25% contingent fee.

Rhoades reviewed the retainer agreement, asked no questions about it, and signed it. Robert Chapman initialed the contract “MBC” in the blank provided for the law firm’s acceptance of the retainer agreement. These initials were apparently intended to be those of the senior member of the law firm, Morris B. Chapman. At the time the retainer agreement was executed, Rhoades orally specified that suit was not to be filed until after he returned to work since his ultimate level of disability was not yet determined. Arrangements were also made for Chapman to take photographs of the area where the accident causing Rhoades’ injury had occurred. Robert Chapman returned to the offices of the law firm and delivered the executed retainer to them.

The same evening the retainer was signed, Mr. and Mrs. Rhoades changed their minds and decided against suing the railroad. Rhoades testified that he had no specific reason for changing his mind. The next morning, February 13, 1976, Mrs. Rhoades called the firm to tell them of the decision not to go ahead with the suit. She spoke with Robert Chapman, who communicated that message to the Chapman firm that same day or, in any event, not later than February 14, 1976.

On February 17, 1976, the Chapman firm filed a complaint in the circuit court of Madison County in the name of William Rhoades against the railroad. On the same date, the law firm asserted an attorney’s lien by delivering a declaration of lien to the railroad (Ill. Rev. Stat. 1975, ch. 13, par. 14). Also on February 17, 1976, the firm filed a motion for a temporary injunction asking the court to enjoin the railroad from interfering with the contract rights between Rhoades and his attorneys and from interfering with Rhoades’ right to pursue the personal injury action. Specifically, the motion asked that the railroad and its agents be restrained from going to Rhoades’ home and from communicating with him without the firm’s prior written consent. The trial court issued the temporary injunction the same day.

When Mr. and Mrs. Rhoades learned that the suit had been filed, Mrs. Rhoades called the law firm to inquire why the action had been brought contrary to their instructions. No explanation was given. Mrs. Rhoades also failed in several subsequent telephone calls to speak with Morris Chapman. On March 1, 1976, Rhoades sent a certified letter to the law firm ordering that the litigation be dismissed.

On March 4, 1976, the trial court granted the Chapman firm’s motion to dismiss the suit. The dismissal specifically reserved jurisdiction to enforce any claim for attorney’s lien on behalf of Chapman and Chapman.

In the early part of March 1976 Rhoades contacted Horton, the claim agent for the railroad. Horton advised Rhoades that he could not speak with him because Horton believed that Rhoades was represented by a lawyer and that the injunction was still in effect. Subsequently, Horton learned that the suit had been dismissed. Thereafter, Rhoades and the railroad agreed to a settlement of the claim for $15,000.

On February 21, 1977, Chapman and Chapman filed a petition to adjudicate attorney’s fees. On July 8, 1977, the circuit court of Madison County entered a judgment for the law firm against the railroad and Rhoades in the amount of $3,750, 25% of the settlement. The railroad had agreed to indemnify Rhoades for any attorney’s fees.

The appellate court reversed (67 Ill. App. 3d 1037), with one justice dissenting, on the ground that the retainer contract was the product of unlawful solicitation by a nonlawyer in violation of section 1 of “An Act to prohibit the solicitation of legal business for remuneration and to provide a penalty therefor” (Ill. Rev. Stat. 1975, ch. 13, par. 15) and was therefore void and unenforceable (Ill. Rev. Stat. 1975, ch. 13, par. 17). We allowed the Chapman firm’s petition for leave to appeal.

An analysis of the facts here and our cases convinces us that no impermissible solicitation was involved in this case.

Section 1 of “An Act to prohibit the solicitation of legal business for remuneration and to provide a penalty therefor” provides:

“It shall be unlawful for any person not an attorney at law to solicit for money, fee, commission, or other remuneration directly or indirectly in any manner whatsoever, any demand or claim for personal injuries or for death for the purpose of having an action brought thereon, or for the purpose of settling the same.” (Ill. Rev. Stat. 1975, ch. 13, par. 15.)

Section 3 declares that “[a] ny contract of employment of an attorney obtained or made as a result of a violation of this Act shall be void and unenforceable.” Ill. Rev. Stat. 1975, ch. 13, par. 17.

The statute is addressed to solicitation by nonattorneys; however, the question of whether certain conduct constitutes impermissible solicitation usually arises in the context of attorney disciplinary proceedings in which attorneys are charged with soliciting cases either personally or through investigators hired to solicit cases for them. (See, e.g., In re Teichner (1979), 75 Ill. 2d 88, 108-09; In re Hallett (1974), 58 Ill. 2d 239, 244-45, 248-49.) Those cases provide guidance in determining what conduct is prohibited as solicitation under section 1 of the Act (Ill. Rev. Stat. 1975, ch. 13, par. 15). We note, however, that courts are reluctant to give a definition of solicitation which is accurate for every case; therefore, the existence of solicitation must be determined from the facts of each case. In re Mitgang (1944), 385 Ill. 311, 330-31.

The cases generally condemn as unlawful solicitation the drumming up or procurement of legal business by inducing potential clients who have not initiated contact with the attorney to engage as their lawyer the attorney the solicitor recommends. (In re Hallett (1974), 58 Ill. 2d 239, 248-49; In re Cohn (1956), 10 Ill. 2d 186, 188-89; In re Mitgang (1944), 385 Ill. 311, 331; see also In re Teichner (1979), 75 Ill. 2d 88, 108-15 (conduct condemned where motive is pecuniary, not ideological).) The disciplinary rules of the American Bar Association Code of Professional Responsibility prohibit solicitation and serve as a further guide in determining what conduct constitutes solicitation. The focus of the prohibition, as in our cases, is on approaching prospective clients who have not sought the recommended attorney’s legal advice and inducing those potential clients to hire that attorney. Disciplinary Rule 2 — 103(A) provides:

“A lawyer shall not recommend employment, as a private practitioner, of himself *** to a non-lawyer who has not sought his advice regarding employment of a lawyer.” (Emphasis added.) ABA Code of Professional Responsibility, Disciplinary Rule 2 — 103(A) (1970).

See also Illinois Code of Professional Responsibility, Disciplinary Rule 2 — 103(A) (1970).

In Ohralik v. Ohio State Bar Association (1978), 436 U.S. 447, 56 L. Ed. 2d 444, 98 S. Ct. 1912, the United States Supreme Court recently examined the evils which prohibitions against solicitation are meant to preclude. That case involved clear instances of in-person solititation by an attorney who recommended himself as an attorney to represent injured individuals who had not initiated contact with him by seeking legal advice. The issue before the court was whether the conduct could be prohibited constitutionally in light of the right to associate and to the free flow of information necessary to facilitate the expression of beliefs and ideas protected by the first and fourteenth amendments to the United States Constitution. The court concluded that the commercially motivated solicitation was not protected. In so holding the court stated:

“The substantive evils of solicitation have been stated over the years in sweeping terms: stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client in the form of overreaching, overcharging, underrepresentation, and misrepresentation. The American Bar Association, as amicus curiae, defends the rule against solicitation primarily on three broad grounds: It is said that the prohibitions embodied in DR 2 — 103(A) and 2 — 104(A) serve to reduce the likelihood of overreaching and the exertion of undue influence on lay persons, to protect the privacy of individuals, and to avoid situations where the lawyer’s exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest.
We need not discuss or evaluate each of these interests in detail as appellant has conceded that the State has a legitimate and indeed ‘compelling’ interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of ‘vexatious conduct.’ *** We agree that protection of the public from these aspects of solicitation is a legitimate and important state interest.” (Ohralik v. Ohio State Bar Association (1978), 436 U.S. 447, 461-62, 56 L. Ed. 2d 444, 457, 98 S. Ct. 1912, 1921-22.)

The court also noted that similar problems are raised whether solicitation is by the lawyer himself or by his agent. 436 U.S. 447, 464 n.22, 56 L. Ed. 2d 444, 459 n.22, 98 S. Ct. 1912, 1923 n.22.

Robert Chapman’s conduct neither fits the description of solicitation contained in our cases nor threatened the substantive evils toward which the statutory prohibition against splicitation is directed. Rhoades called Chapman and Chapman because he was interested in suing the railroad and invited a representative of the Chapman firm to come out to his house to discuss his case. Thus Robert Chapman did not seek out a client or stir up litigation. The testimony concerning the events at Rhoades’ house shows that Robert Chapman did not force representation by the Chapman firm upon Rhoades; rather, Rhoades sought information from Robert Chapman in reaching his decision whether to retain the firm to bring an action against the railroad. Robert Chapman provided only general, nontechnical answers to Rhoades’ questions. Under the circumstances in this case, the fact that Robert Chapman was carrying blank retainer contract forms does not indicate forbidden solicitation. There is no indication that the contract was used to implement a scheme to coerce Rhoades into retaining the Chapman firm. In sum, a fair reading of the evidence convinces us that Robert Chapman did not impermissibly solicit the retainer contract. He merely interviewed a prospective client at that client’s invitation and accepted an unsolicited retainer agreement from him.

The next question we must address is whether the law firm is entitled to the 25% contigent fee provided for in the retainer agreement. The Chapman firm seeks to enforce an attorney’s lien for the full amount of the contingent fee under the attorney’s lien statute (Ill. Rev. Stat. 1975, ch. 13, par. 14). That statute provides:

“Attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys rendered or to be rendered for their clients on account of such suits, claims, demands or causes of action. To enforce such lien, such attorneys shall serve notice in writing, which service may be made by registered or certified mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action. Such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the notice.” (Emphasis added.) (Ill. Rev. St at. 1975, ch. 13, par. 14.)

The statute thus sets forth requirements for effective liens. The attorney must have been hired by a client to assert a claim. The attorney must then perfect the lien by serving notice in writing upon the party against whom the client has the claim. The lien attaches from and after the time of the service of the notice required by the statute. See Baker v. Baker (1913), 258 Ill. 418, 421; Cazalet v. Cazalet (1944), 322 Ill. App. 105, 107.

These requisites were not met in this case. Rhoades agreed to retain Chapman and Chapman in the afternoon of February 12, 1976. At 9 or 9:30 a.m. on February 13, 1976, Rhoades informed the firm not to file suit because he had changed his mind. The notice of lien was not served until February 17, 1976, four days after Rhoades had exercised his right to discharge the firm. (Warner v. Basten (1969), 118 Ill. App. 2d 419, 434-35; Goldberg v. Perlmutter (1941), 308 Ill. App. 84, 88.) Thus, by the time the firm attempted to perfect its lien, there was no longer an underlying attorney-client relationship, a necessity for the perfection of the attorney’s lien. (See Catherwood v. Morris (1935), 360 Ill. 473, 480, noting that the lien attaches to causes of action entrusted to the attorney for collection.) The Chapman firm’s right to recovery, if any, must therefore be based on the relationship between the firm and Rhoades and not on the statutory attorney’s lien asserted against the settlement.

Under Illinois law, a client may discharge his attorney at’ any time, with or without cause (Warner v. Basten (1969), 118 Ill. App. 2d 419, 434-35; Goldberg v. Perlmutter (1941), 308 Ill. App. 84, 88). This rule recognizes that the relationship between an attorney and client is based on trust and that the client must have confidence in his attorney in order to ensure that the relationship will function properly (Miller v. Solomon (1964), 49 Ill. App. 2d 156, 167; Fracasse v. Brent (1972), 6 Cal. 3d 784, 790, 494 P.2d 9, 13, 100 Cal. Rptr. 385, 389). Yet despite this right to discharge, the rule in Illinois has been that the attorney is entitled to full contract fees if the dismissal was without cause. (See Town of Mt. Vernon v. Patton (1879), 94 Ill. 65, 67; Warner v. Basten (1969), 118 Ill. App. 2d 419, 435; Miller v. Solomon (1964), 49 Ill. App. 2d 156, 167; Goldberg v. Perlmutter (1941), 308 Ill. App. 84, 88; but see In re Estate of Murphy (1978), 56 Ill. App. 3d 1037, 1040 (holding that a discharged attorney is entitled to reasonable fees for services rendered without discussing whether or not the discharge was justified); Johnson v. Long (1973), 15 Ill. App. 3d 506, 507-08 (noting that the equitable solution is for a wrongfully discharged attorney to receive a fee based on the reasonable value of services rendered).) Rhoades conceded that the Chapman firm had done nothing to displease him between the afternoon he signed the retainer and the next morning when his wife called Chapman and Chapman to tell the firm that he no longer wished to file suit.

The rule that a wrongfully discharged attorney is entitled to contractual fees protects attorneys against arbitrary dismissals and against unscrupulous defendants who might induce plaintiffs to discharge their attorneys, even after the attorney has expended time and effort, in order to avoid having to pay plaintiffs a larger settlement. However, it is questionable that the rule is necessary for those purposes. (See Fracasse v. Brent (1972), 6 Cal. 3d 784, 494 P.2d 9, 100 Cal. Rptr. 385.) In addition, to apply the rule threatens to undermine other important values and countervailing considerations. To require the client to pay the discharged attorney the full contract fees would make the right to discharge even without cause largely meaningless since the client’s contractual financial responsibility to the discharged attorney would be unchanged, unless the client could establish cause for discharge. In this case, Rhoades discharged the law firm before even a single business day had elapsed after he had signed the retainer; thus little, if any, legal work could have been done before the discharge. To permit the firm to receive 25% of Rhoades’ settlement, as provided by the retainer, would under these circumstances raise a question of excessive fees (see In re Kutner (1979), 78 Ill. 2d 157). Furthermore, a client is a consumer of legal services, and this State has an established policy of protecting consumers as reflected, for example, in section 2B of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1977, ch. 1211/2, par. 262B), which permits a consumer to avoid certain sales contracts within three business days after entering into the contract of sale.

Other jurisdictions have reached the conclusion that an attorney discharged without cause is not entitled to recover contract fees from his former client but is limited to reasonable fees for services rendered (see, e.g., Fracasse v. Brent (1972), 6 Cal. 3d 784, 494 P.2d 9, 100 Cal. Rptr. 385; Covington v. Rhodes (1978), 38 N.C. App. 61, 247 S.E.2d 305; cf. Heinzman v. Fine, Fine, Legum & Fine (1977), 217 Va. 958, 234 S.E.2d 282 (holding under the Virginia attorney’s lien statute that attorneys discharged without cause are entitled only to reasonable fees). In reaching this conclusion, the California Supreme Court in Fracasse v. Brent (1972), 6 Cal. 3d 784, 494 P.2d 9, 100 Cal. Rptr. 385, reasoned that the client’s right to discharge his attorney at will is not a breach of contract but a term of the contract implied by law because of the special relationship between attorney and client and that it would be anomalous and unjust to hold a client liable in damages for exercising that implied right. The court rejected the argument that it would be too difficult to ascertain the amount of recovery under a quantum meruit theory since such calculations are often made in other situations. It also rejected the argument that the abandonment of the rule granting attorneys discharged without cause full contract fees would encourage unjustified discharging of attorneys by clients motivated solely by a desire to avoid attorneys’ fees. In most instances, clients would hire another attorney and would still be liable for fees; in cases in which an attorney who has done much work is fired immediately before a settlement is reached, the factors involved in determining a reasonable fee would justify a finding that the entire contract fee is the reasonable value of services rendered. The California court concluded that its holding protected the client’s right to discharge the attorney and also acknowledged the attorney’s right to fair compensation for work performed.

We agree with the reasoning in the California case and hold, in the interest of justice, that under the facts of this case, Chapman and Chapman is entitled to be paid on a quantum meruit basis a reasonable fee for services rendered before discharge. Accordingly the decision of the appellate court is reversed, and the cause is remanded to the circuit court for a determination of attorney’s fees.

Reversed and remanded, with directions.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 51831.
    SEARS, ROEBUCK & COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jeanette Stock, Appellee).

      Opinion filed November 21, 1979.

    — Rehearing denied February 1, 1980.

      Rooks, Pitts, Fullagar & Poust, of Chicago (Daniel P. Socha and Ian M. Sherman, of counsel), for appellant.
    Eugene P. Meegan, of Chicago, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that Joseph S. Stock, deceased, husband of the petitioner, Jeanette Stock, died as the result of accidental injuries which arose out of and in the course of his employment by respondent, Sears, Roebuck & Company, and awarded workmen’s compensation under the provisions of section 7 of the Workmen’s Compensation Act. (Ill. Rev. Stat. 1975, ch. 48, pars. 138.7(a), (f).) On review, without taking additional evidence, the Industrial Commission affirmed the arbitrator’s decision. On certiorari the circuit court of Cook County confirmed the decision of the Industrial Commission and respondent appealed. 58 Ill. 2d R. 302(a).

The testimony shows that on November 26, 1975, the decedent was 53 years of age and was employed by respondent as an “order picker” who gathered merchandise to fill customer orders. Shortly after 1 p.m. he was found lying on the floor several feet away from a parked forklift truck which held 10 ladders which the decedent had apparently “picked” in the course of his work. The truck was not equipped with a “dead man’s brake.” The deceased was lying to the left of the forklift truck, and it is undisputed that the driver normally alights from such a truck from the left. It is also undisputed that he had suffered a fracture of the skull, which caused his death.

Respondent contends that “the Industrial Commission’s determination that the injury incurred by the decedent due to an unexplained idiopathic fall on a level, smooth floor arose out of his employment is legally erroneous.” It argues that “there is no evidence that the forklift truck played any role in the injury suffered by the employee” and that at the time of the fall the deceased may have been doing nothing, or something unrelated to his work. It argues that the facts on which the decision of the Industrial Commission was based are not in dispute and the question for this court is therefore one of law. We do not agree. Apposite here is our statement that “We may not disregard the decision of the Commission merely because the facts here are undisputed. It is well within the province of the Commission to draw inferences from undisputed facts to determine whether injury resulted from conduct which unreasonably or unnecessarily increased the risks of injury which attend such employment. (Jewel Companies, Inc. v. Industrial Com. (1974), 57 Ill. 2d 38, 43; Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272, 275.) When the Commission’s decision is based upon such permissible inferences, we will disturb it only if it is against the manifest weight of the evidence. Maleo, Inc. v. Industrial Com. (1976), 65 Ill. 2d 426, 430-31.” (Yost v. Industrial Com. (1979), 76 Ill. 2d 548, 551.) The decision of the Commission that decedent’s death resulted from an accident which occurred in the course of his employment is not against the manifest weight of the evidence.

Respondent contends that the decedent’s injuries did not arise out of his employment, but resulted from physical problems caused by his being ill, and argues that the arbitrator erroneously excluded testimony that on the day of his death the decedent “looked sick,” “didn’t look like he was feeling too good,” “didn’t look too good,” and “had a cold.” It argues that this testimony, when considered with the testimony of the petitioner that the decedent had suffered from a cold for a period of approximately two weeks, “clearly gives rise to the inference that the decedent’s fall was caused by his condition of ill being.” As the court said in County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 19, “The Commission is entitled to draw reasonable inferences from both direct and circumstantial evidence. This court will not disregard those permissible inferences merely because other inferences might be drawn.” The testimony of the petitioner that the deceased had been suffering with a cold was a circumstance presumably considered by the Industrial Commission in reaching its decision. If the arbitrator erred in excluding the nebulous conclusional testimony which respondent attempted to elicit, the error was harmless.

Finally, respondent contends that section 14 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1977, ch. 127, par. 1014) is applicable to decisions of the Industrial Commission, and that “the failure of the Illinois Industrial Commission to make findings of fact by which a court can make an intelligent review requires reversal and remand of the Commission’s decision.” We need not and do not decide whether the Illinois Administrative Procedure Act is applicable to proceedings before the Industrial Commission for the reason that the record fails to show that respondent requested specific findings of fact pursuant to section 19(e) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(e)) or that it presented to the Commission the contention advanced here. Lunt v. Industrial Com. (1979), 75 Ill. 2d 455, 457; Berry v. Industrial Com. (1978), 72 Ill. 2d 120, 124.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.


author: MR. JUSTICE WARD

text:
    (No. 51583.
    BANK OF LYONS, Appellant, v. MARY SCHULTZ, Appellee.

      Opinion filed January 23, 1980.

      John J. Voortman, Wayne S. Gilmartin, and Peter V. Baugher, of Schiff, Hardin & Waite, of Chicago, for appellant.
    David R. Jordan, of Oak Park, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The plaintiff, Mary Schultz, brought an action in October 1975 in the circuit court of Cook County against the Bank of Lyons for malicious prosecution for damages allegedly sustained as a result of two suits filed against her by the bank, both of which were decided in her favor. The trial court dismissed her complaint and the appellate court reversed. (66 Ill. App. 3d 698.) We granted the bank’s petition for leave to appeal.

The plaintiff’s claim of malicious prosecution by the bank is founded upon the following events. In April of 1962 the bank filed a creditor’s suit against the plaintiff and her late husband, Alvin Schultz, who died during the pendency of that suit. As the beneficiary of his life insurance policies the plaintiff was to receive $61,533.27. The bank filed a suit in equity in June 1963 petitioning for an accounting and for an injunction to restrain distribution of the insurance proceeds to the plaintiff. The trial court issued a preliminary injunction enjoining the insurance companies from making payments to the plaintiff and ordering that the funds be deposited with the clerk of the circuit court. The trial court, however, following the recommendation of a master in chancery to whom the matter was referred, dissolved the injunction on July 2, 1963, and dismissed the complaint in equity. The plaintiff was also granted leave to file a suggestion of her damages on account of the injunction’s issuance as provided for in section 12 of the Injunction Act (Ill. Rev. Stat. 1963, ch. 69, par. 12). She was subsequently awarded $2,369.67 on her suggestion of damages to cover interest she would have earned on the insurance proceeds held by the clerk of the court, attorneys’ fees and costs.

Seventeen days after the injunction was dissolved, the bank was given leave to amend the complaint in its pending creditor’s suit by adding a second count, and in it the bank again prayed for an accounting and for a preliminary injunction prohibiting distribution of the insurance proceeds. A preliminary injunction was entered on July 19, but almost two years later, on September 24, 1965, the court dismissed the second count, stating that the injunction had been wrongfully issued. The court also dissolved this injunction and ordered the clerk of the court to release to the plaintiff those insurance proceeds in excess of $30,000. The plaintiff was also given leave to file a suggestion of damages under section 12.

In November of 1965 the bank, with leave of court, filed another count to its creditor’s suit. This third count alleged conversion and unlawful withholding of funds ■ based on claims that the bank had been induced to issue cashier’s checks to Alvin Schultz without consideration and that the bank had erroneously credited the plaintiff’s account in the amount of $10,200. A master in chancery found, however, that the bank failed to prove a prima facie cause of action, and the circuit court, following the recommendation of the master, dismissed this third count. This was in September 1969.

The court also ordered the release of the balance of the insurance proceeds to the plaintiff. The bank appealed, and the appellate court remanded to the trial court to determine whether the plaintiff was a holder in due course. (Bank of Lyons v. Schultz (1971), 1 Ill. App. 3d 495.) On remand the trial court found the plaintiff was a holder in due course and again dismissed the third count.

On June 21, 1972, the trial court dismissed count I of the bank’s creditor’s suit because of a failure to allege fraud. No appeal was taken by the bank. On August 1, 1972, the plaintiff filed her second suggestion of damages pursuant to the September 1965 order and, on March 6, 1973, was awarded a total of $24,103.52, representing unearned interest on the proceeds of insurance, attorneys’ fees and costs. Upon the bank’s appeal, the appellate court affirmed. Bank of Lyons v. Schultz (1974), 22 Ill. App. 3d 410.

Plaintiff filed this suit for malicious prosecution in October 1975, claiming $49,848.13 in compensatory damages for the forfeiture of her interest in a house which she had owned jointly with her late husband, Alvin Schultz, which interest was foreclosed, she alleged, as a result of the injunction which prevented her from using the insurance proceeds to make mortgage payments. She also claimed $300,000 in punitive damages.

It appears that the plaintiff’s complaint for malicious prosecution was dismissed by the trial court on the ground that the damages claimed should have been requested when she filed her second statutory suggestion of damages, and that recovery was barred under the doctrine of res judicata, and, further, because she failed to allege an arrest of her person, seizure of property, or some other special injury. The appellate court, in reversing, held that the wrongful issuance of the preliminary injunction constituted a seizure of property for purposes of establishing a cause of action for malicious prosecution and that the plaintiff’s claim for compensatory and punitive damages was not barred by the doctrine of res judicata.

In this jurisdiction a plaintiff, in a suit for malicious prosecution founded on the defendant’s wrongful bringing of a civil suit, must show that the suit he claims was wrongfully filed was terminated in his favor. He must also prove that it was brought maliciously and without probable cause and, further, he must establish evidence of his arrest, the seizure of his property, or some other special injury which exceeds the usual expense and annoyance and inconvenience of defending a lawsuit. Schwartz v. Schwartz (1937), 366 Ill. 247; Smith v. Michigan Buggy Co. (1898), 175 Ill. 619.

The first question here, in determining if there is a cause of action for malicious prosecution, is whether the wrongful issuance of an injunction may constitute a seizure of property or other special injury.

We do not have decisions which specifically hold that the issuance of a preliminary injunction, as here, satisfies the requirement that there must have been a seizure of property or special injury, but a number of decisions have referred to the nature of that special injury or grievance. For example, after declaring that it was necessary for a plaintiff to prove that he had incurred some special damage to support his suit for malicious prosecution this court, in Schwartz v. Schwartz (1937), 366 Ill. 247, 252, stated that “[i] t is not claimed that any of the appellant’s property was attached or that he was in any way hindered in handling it. *** There is [also] no evidence of special loss to him of any character, over and above the ordinary expense and trouble attendant upon the defense of an ordinary civil suit ***.” In Alswang v. Clayborn (1976), 40 Ill. App. 3d 147, 150, it was said that “[w]ithin this context [of an action for malicious prosecution], ‘special injury’ generally means a deprivation of liberty or an interference with property.”

Clearly as a result of the preliminary injunctions the plaintiff was prevented from using the insurance proceeds for a period of more than nine years. There have been holdings in jurisdictions, which have the same requirements for malicious prosecution as we do, to the effect that an injunction may constitute a sufficient interference with property for purposes of bringing a malicious prosecution suit. In Black v. Judelsohn (1937), 251 App. Div. 559, 562-63, 296 N.Y.S. 860, 865, the court stated:

“While the institution of an ordinary civil action or proceeding, no matter how unfounded, vexatious or malicious it may be, does not give rise to an action for malicious prosecution, the rule is otherwise where, as here, there has been some interference with the person or property of the defendant in connection with the bringing or conduct of the civil action or proceeding. The law is well settled that if a person brings a civil action against another maliciously and without probable cause, which terminates favorably to the defendant, and an order of arrest is procured under which the defendant is arrested, or if, by virtue of a writ of replevin, warrant of attachment, injunction or other provisional remedy issued therein, his person or property is taken or interfered with, the defendant may maintain an action for malicious prosecution against the plaintiff to recover the damages sustained by him.”

For the proposition that an injunction may constitute a sufficient interference with property or a special injury see also Shute v. Shute (1920), 180 N.C. 386, 104 S.E. 764; 1 Harper & James, Torts sec. 4.8 (1956); Prosser, Torts sec. 120 (4th ed. 1971); Restatement (Second) of Torts sec. 677, comment c, at 465 (1977).

We are not persuaded by the bank’s contention that there must be an actual seizure of property, as opposed to an interference with it, before a cause of action for malicious prosecution can arise. There obviously can be harm from interference with one’s property. In principle the harm may be the same in both cases. Even in jurisdictions which appear to focus on whether there has been a seizure of property rather than an interference, there have been holdings that events resembling those here amounted to seizures. For example, in Multiple Realty, Inc. v. Walker (1969), 119 Ga. App. 393, 167 S.E.2d 380, the court determined there had been a seizure where the plaintiff’s funds were held in the registry of the court and not released until a writ of attachment was dissolved. In Balsiger v. American Steel & Supply Co. (1969), 254 Or. 204, 458 P.2d 932, it was held that though there had been no actual seizure, causing a petition for bankruptcy to be filed constituted interference with the debtor’s property so as to satisfy the requirement of a seizure. See also Carnation Lumber Co. v. McKenney (1960), 224 Or. 541, 356 P.2d 932.

Here injunctions were issued during the pendency of the suit filed by the bank in 1962 restraining the distribution of over $60,000 to the plaintiff, $30,000 of which was not released until 1973, more than nine years after her husband’s death. This constituted an interference with the plaintiff’s property interests sufficient to satisfy the requirement of a seizure or special injury in bringing an action for malicious prosecution.

We do not consider there is merit to the bank’s contention that the plaintiff could have claimed damages for the loss of her house under section 12 of the Injunction Act, and that, as she did not do so, her claim for malicious prosecution is barred under the doctrine of res judicata. It is clear that the damages recoverable under section 12 are limited to damages actually suffered during the life or pendency of the injunction. (Leonard v. Pearce (1933), 271 Ill. App. 428, 447; Chicago Title & Trust Co. v. City of Chicago (1904), 209 Ill. 172.) The plaintiff in her complaint for malicious prosecution sets out that her statutory right to redeem following the foreclosure did not expire until after the second injunction obtained by the bank had been dissolved and, assuming for this discussion that damages of this character could be recovered under section 12, she could not claim under that section, as she did not sustain this loss during the pendency of the injunction. Too, as we have observed, to have a cause of action for malicious prosecution, the suit which was wrongfully brought must have been determined in favor of the plaintiff. At the time the second injunction obtained by the bank had been dissolved, and when the plaintiff filed her second suggestion of damages, no cause of action for malicious prosecution could have arisen because the litigation brought against her by the bank had not yet been concluded in her favor.

For the reasons given, the judgment of the appellate court is affirmed and the cause is remanded to the circuit court for further proceedings not inconsistent with this opinion.

Affirmed and remanded.


text:
    (No. 51180.
    KENNETH CHAPMAN et al., Appellants, v. PATRICIA RICHEY et al., Appellees.

      Opinion filed January 23, 1980.

      Robert L. Douglas, of Robinson, for appellants.
    Lawrence Eaton, of Eaton, Eaton, and Tomaw, of Newton, for appellees.
    McCarthy, Scheurich, Duffy, Neidhart & Snakard, of Chicago (John M. Duffy and Richard J. Witry, of counsel), for amici curiae Arthur Christman and Kathleen Partlow.
    Earl L. Vuagniaux, of Edwardsville, for amici curiae Alice L. Rhodes and Albert H. Buehnemann.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

The sole issue raised in this appeal is whether defendant Anna Chapman, following renunciation of her husband’s will, is entitled to a setoff of homestead in a partition action brought by those who, by virtue of Anna’s act of renunciation, had become cotenants with Anna in the marital home of Anna and her husband. The circuit court of Jasper County denied the claim of homestead, the appellate court reversed, one justice dissenting (63 Ill. App. 3d 650), and we allowed plaintiffs’ petition for leave to appeal.

On July 9, 1976, Everett Chapman died testate. One provision of his will specified that his wife, defendant Anna Chapman, was to receive a life estate and that his six children were to receive remainder interests in the 40-acre parcel of property on which Everett and Anna had resided. During his lifetime, Everett had held the property in fee as the sole owner. The children who were to receive remainder interests under the will include plaintiffs Kenneth Chapman, Louise Messenger, Doris Stifle, Macie Hollinger, Donna Biggs, and defendant Patricia Richey.

Everett’s wife, Anna, renounced the will and thereby took a one-third interest in the property, and the six children each took one-ninth interests. (See Ill. Rev. Stat. 1975, ch. 3, par. 2 — 8.) By virtue of her decision to renounce the will, Anna and the children would hold their respective interests as tenants in common.

Plaintiffs, five of the six children, brought suit seeking partition of the property and naming Anna Chapman and Patricia Richey, the remaining child, as defendants. Anna sought a setoff of homestead under the Homestead Act (Ill. Rev. Stat. 1975, ch. 52, par. 1 et seq.), but the circuit court refused to grant such relief on the basis of a 1965 amendment to the Act which renders homestead unavailable as between cotenants. The appellate court reversed, and this appeal by plaintiffs followed. We agree with plaintiffs that the circuit court properly denied a setoff of homestead and accordingly reverse the judgment of the appellate court.

The provisions of the Homestead Act here relevant are contained in sections 1 and 2 of the Act. Section 1 provides:

“Every householder having a family shall be entitled to an estate of homestead to.the extent in value of $10,000, in the farm or lot of land and buildings thereon owned or rightly possessed by lease or otherwise and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment, judgment, levy or execution sale for the payment of his debts or other purposes and from the laws of conveyance, descent and devise, except as hereinafter provided or as provided in Section 234 of the Probate Act, as heretofore or hereafter amended. This section is not applicable as between joint tenants or tenants in common but it is applicable as to any creditors of such persons.” (Ill. Rev. Stat. 1975, ch. 52, par. 1.)

The last sentence of the section was added by a 1965 amendment and forms the basis of the circuit court’s decision to deny a setoff of homestead. Section 2 provides in pertinent part that homestead continues after the householder’s death “for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead***.” (Ill. Rev. Stat. 1975, ch. 52, par. 2.) The appellate court, in holding that Anna Chapman is entitled to a setoff of homestead, relied on section 2 and on that portion of section 1 which provides that homestead is exempt “from the laws of conveyance, descent and devise. ”

Though reference to isolated provisions of sections 1 and 2 might be interpreted to allow a setoff of homestead to Anna Chapman, as the appellate court held, such a setoff is clearly rendered unavailable by the 1965 amendment to section 1. By renouncing Everett’s will, Anna and her six children took the property as tenants in common. Having thus become a cotenant with the children, Anna became subject to the 1965 amendment and thereby lost any claim that she might have had to homestead. In this respect, we disagree with the appellate court’s judgment in this case. The appellate court relied on Anderson v. Anderson, 62 Ill. App. 3d 468 (1978), and 42 Ill. App. 3d 781 (1976), in reaching its conclusion that Anna Chapman is entitled to a setoff of homestead. The Anderson opinion, however, contains no mention of the 1965 Homestead Act amendment. The failure of the court to there consider the effect of the amendment therefore renders Anderson inappropriate for consideration in assessing Anna Chapman’s entitlement to homestead.

The appellate court also erred in holding that the 1965 amendment is merely a codification of the law as it existed at the time. This is a concept that we explicitly rejected in Phillips v. Phillips (1978), 74 Ill. 2d 27, 33, stating that the amendment was enacted to simplify partition litigation by removing the “need to determine which cotenant is the householder entitled to the exemption, whether a cotenant has abandoned the premises, and various other issues which arise in homestead cases and which were once frequently litigated in partition actions ***.” Under the law as amended, the only question that need be answered is whether the claim of homestead is being asserted by one cotenant against another. If the claim is so asserted, a setoff of homestead is unavailable.

The operation of the amendment, as it applies to a partition action between divorcing spouses, was explained in Phillips. We there said, “We are without the benefit of the legislative history of the amendment, but its language is clear and must be followed. (Droste v. Kerner (1966), 34 Ill. 2d 495, 503.) It plainly appears that the legislature intended that the exemption should not be available as between cotenants, and we now hold that this prohibition encompasses the situation presented here in which the exemption is sought to be asserted by one spouse against another in the course of partition proceedings.” (Phillips v. Phillips (1978), 74 Ill. 2d 27, 31.) The factual situation in the case now before us differs from that in Phillips-, involved here is a surviving spouse who, following renunciation of her husband’s will, is asserting a claim of homestead against those with whom she had become a cotenant by virtue of her act of renunciation. Under the 1965 amendment, however, the difference is not one which requires a different result. The simple but crucial fact is that Anna Chapman is a cotenant with those against whom she seeks a setoff of homestead. As we said in Phillips, “In taking the property as cotenants, the respective interests of the parties were established. By the 1965 amendment to the Homestead Act, the legislature has determined that a cotenant may not enlarge his interest by being allowed a setoff of homestead.” (74 Ill. 2d 27, 31-32.) The amendment sweeps broadly and covers all who hold property as cotenants, whether by purchase, as in Phillips, or by operation of law, as in the case now before us. The amendment does not draw the distinction that defendant urges, and it will not be read into the plain meaning of the statute.

In seeking to sustain the appellate court judgment allowing her a setoff of homestead, Anna argues that the public policy of this State requires that she be granted such relief. This public policy is said to be evident in various legislative enactments. Specifically, she argues (1) that the legislature’s enactment of the Homestead Act evidences the legislature’s intention that a widow should not lose the home in which she had lived for 26 years; (2) that the legislature’s 1972 abolition of dower (Ill. Rev. Stat. 1975, ch. 3, par. 2 — 9) and its failure to take similar action with respect to homestead evidences the legislature’s intention not to abolish homestead; (3) that the legislature’s authorization of a setoff in a partition action (Ill. Rev. Stat. 1975, ch. 106, par. 55) evidences the legislature’s concern for proper recognition of homestead; and (4) that the legislature’s authorization for setoff of homestead in a sale of real estate during the administration of a decedent’s estate (Ill. Rev. Stat. 1975, ch. 3, par. 20 — 6(d)) evidences the legislature’s intention that a surviving spouse be protected by way of a homestead setoff. Inasmuch as the language of the 1965 amendment is plain and unambiguous (Phillips v. Phillips (1978), 74 Ill. 2d 27, 31), an inquiry into policy considerations, in an attempt to construe the amendment, is unnecessary. We have nonetheless reviewed these policy-based arguments, and we conclude that these arguments would in no way require us to reach a different conclusion in this case.

The first two arguments advanced exaggerate the effect of the 1965 amendment. As to the first argument, that the amendment may result in a widow’s loss of a home, we need merely point out that the amendment does not deny a surviving spouse the right to live in the marital home; the amendment only denies the surviving spouse the right to a setoff of homestead against cotenants. The amendment does not, as plaintiffs point out, effectuate an eviction of Anna Chapman. To the extent that Mrs. Chapman is concerned about losing the right to live on the property, we note that she could have guaranteed herself that right by taking the life estate given to her under her husband’s will instead of renouncing the will.

As to the second argument, that we should gain some insight from the legislature’s abolition of dower, we need only note that the 1965 amendment to the Homestead Act does not effectuate a complete abolition of homestead, as the argument presumes; it is therefore inappropriate to compare the amendment to the legislature’s action in abolishing dower. As we said in Phillips, a denial of homestead under the 1965 amendment does not constitute “an implied repeal of the homestead laws. We merely hold that the homestead exemption is unavailable as between cotenants even if one is otherwise entitled to the exemption. It is still permissible for an individual, including a cotenant, to assert the exemption in other situations in which the individual against whom the exemption is asserted is someone other than a cotenant of the individual asserting the exemption. The scope of the amendment is limited; it is the particular situation of cotenants with which the legislatuture was concerned.” Phillips v. Phillips (1978), 74 Ill. 2d 27, 32.

The third argument, that the availability of homestead in partition actions evidences the legislature’s concern for proper recognition of homestead, can be answered by the simple observation that the law to which reference is made, section 12 of the partition statute (Ill. Rev. Stat. 1975, ch. 106, par. 55), allows setoff of homestead only to those “entitled to an estate of homestead.” Entitlement to homestead may be defeated where, as here, the person seeking a setoff is a cotenant with the person against whom a setoff is sought. Thus, while the legislature has provided generally for setoffs of homestead in partition actions, it may nonetheless place limitations on those entitled to homestead, as it has done in its 1965 amendment of the Homestead Act.

As to the final argument, concerning the availability of homestead in estate sales, we need only make an observation similar to that made in response to the preceding argument; a setoff of homestead in a sale of real estate during administration of a decedent’s estate is proper only so long as homestead is not rendered unavailable by some other law, such as the 1965 amendment denying setoffs between cotenants. The legislature’s authorization for setoffs in estate sales therefore does not mean that the legislature cannot provide by other means, as in its amendment of the Homestead Act, that a surviving spouse shall be denied homestead in specific situations.

In sum, we hold that defendant Anna Chapman’s claim for setoff of homestead was properly denied by the circuit court. The judgment of the appellate court, reversing the judgment of the circuit court, is accordingly reversed, the judgment of the circuit court is affirmed, and the cause is remanded to the circuit court of Jasper County for further proceedings not inconsistent with the views expressed herein.

Appellate court reversed; circuit court affirmed; cause remanded,.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 52056.
    THOMAS CRANFIELD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Uniroyal Company, Appellee).

      Opinion filed January 23, 1980.

      Charles Kraut Ltd., of Chicago, for appellant.
    Terrance J. Van Driska and Mark A. Potter, of Chicago, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Claimant, Thomas Cranfield, appeals from an order of the circuit court of Cook County confirming the Industrial Commission’s decision denying the reinstatement of his case, which had been dismissed by the arbitrator for want of prosecution.

On March 24, 1976, claimant filed an application for adjustment of claim with the Industrial Commission for alleged injuries sustained while employed by Uniroyal Company. After having been assigned to an arbitrator, the case was set for hearing on five different dates. On the final date, September 15, 1977, claimant failed to appear and his counsel stated that he was unable to proceed. The arbitrator refused to grant another continuance and, after hearing argument on the employer’s motion to dismiss for want of prosecution, dismissed the case by a written order dated September 23. The relevant argument there presented was as follows:

“MR. KRAUT: Well, I would respectfully request that the matter be continued. Mr. Cranfield is not here today and I am unable to proceed at this time. I certainly believe that if it were not for the fact that it was — that this case traveled with the other case that there probably would be no question about a continuance; and the mere fact it happens to go along with another case shouldn’t make any difference. And I think that the request should be granted, your Honor.
MR. VAN DRISKA: For the record, the respondent moved to dismiss the case for want of prosecution; and points out to the Industrial Commission that the respondent has been ready to proceed to trial in this case each and every time, and we are here today this afternoon with the understanding that we were to proceed to trial. We ask this case be dismissed for want of prosecution.
MR. KRAUT: I would just point out one other matter. For the record, I am Charles Kraut, co-counsel appearing with Joshua Landau in this matter. And again I say that if it was an independent case I feel there would be no question about the fact that we would get continuance and the fact it was allied with the other case really shouldn’t make any difference.
THE ARBITRATOR: Well, counsel, I think that you have had ample opportunity to proceed in this case. The case will be dismissed. I’ll write it in the form.”

Notice of that decision was received by the parties on October 3.

On October 19 claimant filed a document, apparently a Commission form entitled “petition for review” and customarily used for the review of arbitrators’ decisions. A hearing on that petition was set for five different dates. On the last of those dates, June 26, 1978, the Industrial Commission conducted a hearing and found that the petition for review had not been filed within 15 days after receipt of a copy of the arbitrator’s decision as required by statute (Ill. Rev. Stat. 1969, ch. 48, par. 138.19(b)). However, the Commission concluded that the document filed by claimant was in substance a petition for reinstatement, and found satisfactory compliance with Rule No. 4 — (1) of the rules governing practice before the Industrial Commission, which permits a petition for reinstatement to be filed within 60 days from receipt of the dismissal order. (Rules Governing Practice Before the Industrial Commission Under the Workmen’s Compensation and Occupational Diseases Act sec. 4, Rule 4 — (1) (1977).) After a hearing during which both parties presented argument, the Commission denied claimant’s petition for reinstatement. The relevant portion of that argument follows:

“COMMISSIONER: *** At this point, however, Mr. Kraut, please explain to me why you believe that the petition for reinstatement should be allowed?
MR. KRAUT: Because the first place, the matter was never heard on its merits.
When this matter came up, I explained to Mr. Cranfield, to Mr. Van Driska and to the Court that Mr. Landau, who originally filed this case and who was originally following the case, was handling it right along, and about that time Mr. Landau had become ill and he has since resigned. He hasn’t resigned, but he no longer practices before the Commission here, I understand.
This hearing was at about the time when Mr. Landau was having problems and at that time he had just returned, was in the process of returning a large number of files to my office that I had referred to him.
For that reason, since I had relied upon him to notify Mr. Cranfield to be present on that date and apparently Mr. Cranfield was not notified and I had tried to call him at his office.
It was a rather confusing situation and it was totally unfair to the petitioner to be denied a hearing simply because of the problems of Mr. Landau’s office and our office.
Further, Mr. Landau no longer practices before the Commission. He is not here. I am taking control of the file now.
It would have no catastrophic event would have happened if he had continued it and given him his day in court.
It was not that old of a case. There are a lot of cases older than that before the Commission and I submit, in order to have justice done, we should permit the man to have his hearing.”

In this appeal respondent contends that the Commission had no jurisdiction to review the arbitrator’s decision since the claimant failed to file his petition for review within the 15-day limitation period (Ill. Rev. Stat. 1969, ch. 48, par. 138.19(b)). Had claimant in fact sought review of an arbitrator’s award or other disposition of the case on the merits, we would agree. (City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99, 103; Sweitzer v. Industrial Com. (1946), 394 Ill. 141, 146-47; Dyer v. Industrial Com. (1936), 364 Ill. 161, 163.) Here, however, the arbitrator had simply dismissed the case for want of prosecution. In these circumstances a claimant is entitled to seek reinstatement within 60 days of receipt of the dismissal order under Rule 4 — (1) of the Commission’s rules of practice (Rules Governing Practice Before the Industrial Commission Under the Workmen’s Compensation and Occupational Diseases Act sec. 4, Rule 4 — (1) (1977)). In this situation, we find no error in the Commission’s consideration of claimant’s petition for review as a petition for reinstatement.

Claimant also contends that it was an abuse of discretion for the arbitrator to have refused another continuance and for the Commission to have denied reinstatement of his case. In response to similar claims this court has held: “ ‘In a petition for reinstatement before the Industrial Commission, the burden is on the petitioner to allege and prove facts justifying the relief prayed. The granting or denying of the petition to reinstate rests in the sound discretion of the Commission.’ ” Shiffer v. Industrial Com. (1973), 53 Ill. 2d 519, 521; quoting Zimmerman v. Industrial Com. (1972), 50 Ill. 2d 346, 349; see also South Chicago Community Hospital v. Industrial Com. (1969), 44 Ill. 2d 119, 123.

The record indicates that the arbitrator initially accommodated claimant’s repeated requests for continuances. When, however, claimant failed to appear for the September 15, 1977, hearing and respondent moved to dismiss for want of prosecution, counsel for claimant gave no persuasive reason for further delay. In the hearing before the Commission on the motion to reinstate, claimant’s counsel emphasized the activity of Joshua Landau in filing and handling the case, his subsequent illness and his withdrawal. We note, however, that counsel’s only reference to attorney Landau in his argument before the arbitrator was that he and Joshua Landau were “co-counsel.” The factual discrepancies in the arguments before the arbitrator and the Commission, coupled with the vagueness of the references to another case and the time of Landau’s illness and withdrawal, when considered with the absence of supporting testimony which the Commission invited, all militate in favor of the Commission’s ruling. Rather clearly there has been no abuse of discretion.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


text:
    (No. 51709.
    KEVIN CUNNINGHAM, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Poolcare, Ltd., Appellee).

      Opinion filed January 23, 1980.

      E. T. Cunningham, of Chicago (Donna J. Cunningham, law student, of counsel), for appellant.
    Sweeney and Riman, Ltd., of Chicago, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Petitioner, Kevin Cunningham, filed an application for adjustment of claim with the Industrial Commission alleging that he was injured while in the employ of respondent, Poolcare, Ltd. An arbitrator for the Industrial Commission found that claimant had failed to prove that he sustained accidental injuries which arose out of and in the course of his employment and denied compensation. On review the arbitrator’s decision was affirmed by the Industrial Commission and on certiorari the decision of the Commission was confirmed by the circuit court of Cook County. Petitioner appealed. 73 Ill. 2d R. 302(a).

Petitioner was employed by respondent as a laborer, and was using a wheelbarrow to haul broken concrete from a pool deck to a van. This required that he load the wheelbarrow, push it approximately 100 feet up a slight incline, and unload it into the van. Petitioner had made several such trips that morning, and on one occasion the wheelbarrow had tipped, spilling its contents. Immediately prior to the time of the occurrence out of which the injury arose, the wheelbarrow tipped again, spilling its contents. Petitioner testified: “I got mad at myself, went over and hit the door of the van.” On cross-examination petitioner stated that the distance from the place where the wheelbarrow had “spilled” to the van, was three or four steps or 10 or 15 feet. As a result of striking the van, the fifth metacarpal bone of his right hand was fractured.

Petitioner contends that the injury suffered when, in a burst of anger and frustration resulting from a condition of the employment, he struck the van was an accidental injury which arose out of and in the course of his employment. Respondent concedes petitioner’s injury was sustained in the course of his employment, but contends that it was not accidental and did not arise out of the employment.

Simply stated, petitioner’s argument is that the undisputed evidence shows that he was entitled to an award of compensation as a matter of law. Citing Harper v. Industrial Com. (1962), 24 Ill. 2d 103, he contends that striking the vehicle to relieve his frustration resulted in an accidental injury which arose out of his employment. In Harper, it was held that a suicide was caused by pain resulting from a work-related injury. That case is clearly distinguishable in that there was no question that the injury arose out of and in the course of the deceased’s employment and there was ample evidence that the suicide was the result of the suffering which followed the injury. Apposite here is our statement that “We may not disregard the decision of the Commission merely because the facts here are undisputed. It is well within the province of the Commission to draw inferences from undisputed facts to determine whether injury resulted from conduct which unreasonably or unnecessarily increased the risks of injury which attend such employment. (Jewel Companies, Inc. v. Industrial Com. (1974), 57 Ill. 2d 38, 43; Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272, 275.) When the Commission’s decision is based upon such permissible inferences, we will disturb it only if it is against the manifest weight of the evidence. Maleo, Inc. v. Industrial Com. (1976), 65 Ill. 2d 426, 430-31.” Yost v. Industrial Com. (1979), 76 Ill. 2d 548, 551.

We conclude that the evidence supports the inference apparently drawn by the Industrial Commission, and the judgment is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 51492.
    FORD MOTOR COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (D. D. Kennedy, Appellant).

      Opinion filed January 23, 1980.

      Baskin & Baskin, of Chicago (Richard W. Baum, of counsel), for appellant.
    William P. Landón, of Chicago for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Claimant, D. D. Kennedy, filed for workmen’s compensation benefits after he sustained injuries as a result of a physical encounter with a coemployee. An arbitrator found that the claimant had failed to prove that such injuries arose out of and in the course of claimant’s employment. The Industrial Commission set aside the decision of the arbitrator and held that Ford Motor Company, the employer, owed claimant for 24 weeks total disability at $108 per week, 60 weeks at $86.10 for a statutory skull fracture (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(d)), and $545 for medical expenses. The circuit court of Cook County found the Commission’s decision to be in error as a matter of law and reinstated the decision of the arbitrator.

Claimant asserts that the Commission’s finding, which was based on uncontroverted facts, was not against the manifest weight of the evidence, and that his injuries arose out of and in the course of his employment.

In early August of 1973, claimant and Wayne Simmons worked together briefly to weld a guard on a conveyor. The claimant, a sheet-metal man, performed the sheet-metal work, and Simmons, a welder, performed the welding. The next day, the foreman called claimant to his office and asked who had done the welding job. Claimant replied that it was Simmons. A day or two later, Simmons confronted Kennedy and accused him of “turning him in on the welding job.” After this incident, Simmons would regularly go to claimant’s work area, make critical remarks concerning claimant’s work and call him an unskilled worker.

On August 22, 1973, shortly after a lunch break, Simmons came to an area in which claimant was working and said to the claimant, “You will have to grind that,” referring to the gate on which claimant was working. Claimant told Simmons that he knew his job and asked him to leave him alone. Simmons then rushed up to the claimant. The claimant gave him a shove back and turned away. Simmons went after him, and a scuffle ensued. Claimant was hospitalized and underwent surgery to insert a plate in his skull. He returned to work on February 1, 1974, and was on light duty for six months. He now complains of frequent headaches, neck soreness and blurred vision in the left eye.

Clearly, the instant dispute arose out of and in the course of the claimant’s employment. The conversation which prompted the August 22 confrontation concerned the quality of claimant’s work and was the culmination of a series of acts by Simmons which followed his having been reported to the foreman.

There remains, however, the question of who was the aggressor. Generally, when an injury results from physical combat between two employees over the employer’s work, the employee who was not responsible for the aggression may be compensated. (Fischer v. Industrial Com. (1951), 408 Ill. 115, 119; Franklin Coal & Coke Co. v. Industrial Com. (1926), 322 Ill. 23, 27; Pekin Cooperage Co. v. In dustrial Com. (1918), 285 Ill. 31, 35.) Injuries sustained by the aggressor, being traceable to his own voluntary acts, are not within the scope of employment and are not compensable. Armour & Co. v. Industrial Com. (1947), 397 Ill. 433, 436; Triangle Auto Painting & Trimming Co. v. Industrial Com. (1931), 346 Ill. 609, 618; Fischer v. Industrial Com. (1951), 408 Ill. 115, 119.

In Container Corp. of America v. Industrial Com. (1948), 401 Ill. 129, anew employee, Jim Lee Petty, accidentally dropped a roll of paper from the top of a machine and it fell on Willie Silas, a fellow employee. A half hour later, Silas approached Petty and said, in an abusive tone, that he was going to cut his throat. Petty responded by striking Silas, who fell to the ground. He got up, again confronted Petty, was struck a second time, and fell. In the second fall, he sustained an injury to his head which caused his death. In a claim filed by Silas’ widow, the court refused to accept the argument that Petty was the aggressor because he struck the first blow. Instead, the court ruled that Silas was the aggressor in that “ [h] is words were antagonistic, and were such as might cause an altercation, whether justified or not. By such action, he stepped outside of the scope of his employment, and by so doing he stepped outside the protection of the Workmen’s Compensation Act.” Container Corp. of America v. Industrial Com. (1948), 401 Ill. 129, 133.

We find, as did the court in Container Corp., that the fact that one employee made the first physical contact is not decisive in determining which party is the aggressor. The totality of the circumstances must be examined to determine whose behavior amounted to aggression. Here, Simmons taunted and antagonized the claimant, daily, in an apparent attempt to retaliate for claimant having earlier identified Simmons’ inferior workmanship to the foreman. Simmons’ course of conduct was a series of acts of aggression which led to the August 22 incident. When, at that time, Simmons criticized and rushed up to claimant, the latter’s reflex reaction to the aggressive behavior was to push Simmons away. Since the facts support the claimant’s contention that he was not the aggressor, he may be compensated for the injuries he sustained.

The finding of the Industrial Commission will not be set aside unless contrary to the manifest weight of the evidence. (Swift & Co. v. Industrial Com. (1919), 287 Ill. 564, 573; Fischer v. Industrial Com. (1951), 408 Ill. 115, 120.) We hold that there was sufficient evidence on which the Commission could base an award for the claimant. We therefore reverse the finding of the circuit.court and reinstate the award of the Commission.

Judgment reversed; award reinstated.