text:
    (No. 55086.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. FREDERICK LEROY CHEEK, JR.-MICHAEL ASBELL, Appellee, v. STEVE BRIENEN, Sheriff, Appellant.

      Opinion filed November 18, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and Ronald C. Dozier, State’s Attorney, of Bloomington (Melbourne A. Noel, Jr., Michael V. Accettura, Val Gunnarsson, and Mike Weinstein, Assistant Attorneys General, of Springfield, and Robert J. Biderman and David E. Mannchen, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and David Bergschneider, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

The relator, Michael Asbell, was arrested in Normal, Illinois, on March 16, 1980. He was not charged with any criminal activity in Illinois, but the State filed a complaint in extradition on March 24, 1980, requesting his commitment for not less than 30 days, to allow the Florida authorities to obtain a governor’s warrant for extradition. On May 5, 1980, the Governor of Florida filed a demand for the return of Frederick Leroy Cheek, Jr., a/k/a Mike Asbell, to Florida. A governor’s warrant by Governor James Thompson was also filed on that date. The amended information and judgment of conviction which were attached to the complaint for extradition bore only the name of Frederick Leroy Cheek, Jr., and stated that the individual named had been found guilty of burglary and sentenced to .15 years’ imprisonment. A fugitive warrant, which was also attached to the complaint for extradition, stated that Frederick Leroy Cheek, Jr., had escaped from the Florida Department of Corrections on September 25, 1979. The only underlying document to the governors’ warrants that used the caption “Michael As-bell, a/k/a Frederick Leroy Cheek, Jr.” was an affidavit from the Secretary of the Department of Corrections of Florida, Louie L. Wainwright, directed to the Governor of Florida, asking for a requisition upon the Governor of Illinois.

The Illinois arrest records listed relator’s name as “Mike Asbell, a/k/a William Ballard,” because when the relator was arrested in Illinois, he was driving an automobile which the police believed was stolen from Florida by William Ballard. No charges were ever filed against the relator in regards to the automobile. The record does not indicate why no charges were filed.

The relator filed two petitions for a writ of habeas corpus. One was filed on June 16, 1980, and the other on July 10, 1980. On August 20, 1980, a hearing was held on those petitions and the relator was discharged by the trial court. On appeal by the State, the appellate court upheld the trial court’s order discharging the relator. (95 Ill. App. 3d 392.) The State filed a petition for leave to appeal (73 Ill. 2d R 315(a)), which was granted.

On appeal before this court, the State asserts that the governors’ warrants were in proper form and established a prima facie case against the relator so as to shift the burden of proof regarding identification to the relator. The State further asserts that the trial court erred in discharging the relator because he failed to meet his alleged burden of proof. Lastly, the State contends that, assuming arguendo the burden of proof to establish the relator’s identity was on the State, there was sufficient evidence to establish that the relator, Michael Asbell, was Frederick Leroy Cheek, Jr.

At the hearing on the habeas corpus petitions the relator testified that he was passing through Normal from Dania, Florida, on his way to Chicago when he was arrested. He testified that the police knocked on his motel room door and asked him if he was driving a 1977 Pontiac with Florida plates. He told them he was and they asked for his identification. The police called the police station and thereafter placed the relator under arrest. The relator testified that at no time was he told why he was being arrested.

The relator testified that his given name at birth was Michael Asbell. He further testified that he never used the alias Frederick Leroy Cheek, Jr., and denied that he had ever been convicted of burglary, sentenced to 15 years’ imprisonment, or escaped from a Florida correctional institution.

The relator testified that he was living in Long Beach, California, on March 29, 1978, the date of Cheek’s conviction, but was living in Florida on September 25, 1979, when Cheek escaped from the Florida penitentiary.

Since his arrest, the relator testified that he had been fingerprinted 14 times. The reason he was given by the correctional officers for the necessity of the duplicate fingerprints was that his first set of prints had not been “verified.”

The State’s first witness at the hearing was Randall Scott, a correctional officer for the McLean County sheriff s department. He testified that he had taken two sets of the relator’s fingerprints in response to a request from his sergeant. His sergeant, he testified, had told him that Mr. Asbell’s fingerprints had come back unclassifiable several times when they were submitted into a facsimile machine. Scott explained that the facsimile machine is a machine into which a person’s fingerprints are submitted in order to obtain a proper identification. The fingerprints that are fed into the machine are compared with records kept by the Illinois Bureau of Investigation and the Federal Bureau of Investigation in an attempt to match them up and obtain a proper identification. Scott testified that he thought one of the sets of fingerprints that he had taken from Michael Asbell had come back classifiable, but he did not really know because he had not run the facsimile machine the day Mr. Asbell’s fingerprints were allegedly sent.

Detective Charles Crowe, a 13-year veteran of the Bloomington police department, was called as the State’s next witness. He testified that he had been a detective for eight or nine years and had received fingerprint training in 1974. His fingerprint training consisted of 80 hours of training in the classification and identification of fingerprints from the University of Illinois Police Training Institute. Crowe also testified that he had received certification two years earlier as a latent-print examiner, a certification which did not require an examination. Crowe had been qualified as an expert for purposes of court testimony on three prior occasions. Although Crowe estimated that he had compared latent prints with known prints approximately 150 times, some of them photostatic copies of fingerprint cards, he had never testified as an expert based on a photostatic-comparison examination.

Crowe testified that fingerprints are unique to each individual and that he had never encountered a situation where two individuals had the same fingerprints. When comparing fingerprints, he testified, there is no standard number of points of similarity generally accepted as establishing an identification of a latent print; however, if there is any dissimilarity, identity is not established. Crowe testified that the FBI uses a 12-point test of similarity to make a positive identification. He explained that he uses a 10-point test because that is the standard that is relied upon by Bob DuBois from the Pekin Crime Laboratory.

Crowe testified that he examined and compared the right thumbprint of a fingerprint card containing the fingerprints of Michael Asbell taken by Officer Randall Scott on March 16, 1980, and the right thumbprint of a photostatic copy of the fingerprint card for Frederick Leroy Cheek, Jr., provided by the Florida authorities and attached to the Governor’s warrant. He examined the prints for 15 minutes and found 10 points of similarity and no points of dissimilarity. The reason he compared the right thumbprints on each exhibit was because the photostatic copy of Frederick Leroy Cheek’s fingerprints from Florida was blurred and smudged. Crowe’s comparison of the thumbprints was limited to the top left portion of the thumbprints because even a portion of that print on the photostatic copy sent from Florida was blurred. Crowe testified that it was possible to make the identification even though the print was not the “clearest in the world.” He testified that he had compared portions of latent prints in the past to make identifications. Crowe’s opinion, based on his experience and training and his examination of the two prints, was that the thumbprints belonged to the same individual.

The State’s next witness was McLean County Deputy Sheriff Robert Boyd. As part of his duties with the sheriff’s department, Boyd testified that he was usually involved in all extradition proceedings in McLean County. On March 17, 1980, Boyd first became aware that an individual was being held who was claimed to be a fugitive from Florida. Boyd then contacted Linda Hightower of the Department of Corrections in Tallahassee, Florida, and asked her to send a copy of their fugitive warrant and their governor’s warrant for the person they knew as Frederick Leroy Cheek, Jr. Boyd received the warrants, and later received an envelope which contained a photograph which was marked, “Cheek, Frederick #063872.” Boyd wrote a notation on the back of the photograph that indicated that he had received it on June 24, 1980, at 1 p.m., and put his name on it. Boyd testified that he showed the photograph and the envelope to the State’s Attorney of McLean County and then put them in his file. Both exhibits, the photograph and the envelope, Boyd testified, were in substantially the same condition as when he received them. When Boyd was asked if he recognized the individual in the photograph, defense counsel objected on the basis of lack of authentication, and the trial court judge sustained the objection.

Boyd was also asked about a “rap sheet” from the FBI which allegedly was received by inserting Michael Asbell’s fingerprint card into the facsimile machine. Boyd could not testify as to whether Michael Asbell’s fingerprint card which was admitted into evidence was the fingerprint card which was submitted to the FBI computer for identification because he did not run the machine. The trial court sustained defense counsel’s objection to the admission of the FBI rap sheet into evidence on the basis of lack of authentication.

The last witness that was called was Assistant State’s Attorney Bradley W. Murphy. Murphy was called as a witness on behalf of the defense and testified that he had tried to obtain a witness from the State of Florida for the purpose of testifying as to whether Michael Asbell was Frederick Leroy Cheek, Jr., and had been unable to do so. He further testified that he had not received “the greatest of cooperation from anyone in the State of Florida in getting identification witnesses” to come to Illinois and testify. Murphy testified that he thought that perhaps the lack of cooperation was due to the fact that the habeas corpus hearing was rescheduled a couple of times.

The trial court granted defendant’s petition for habeas corpus discharge at the close of the hearing. The appellate court upheld the trial court’s order discharging the relator, and it is from that ruling that the State is appealing.

Ordinarily, a governor’s warrant for extradition which is regular on its face establishes a prima facie case for extradition against the person named therein. (People ex rel. Maypole v. Meyering (1934), 358 Ill. 589, 593.) If the person arrested has the same name as the name appearing on the governor’s warrant, there is a rebuttable presumption of identity, and the arrestee then has the burden to show that he is not the person whose extradition is demanded. (Newman v. Elrod (1979), 72 Ill. App. 3d 616, 618, cert. denied (1980), 445 U.S. 942, 63 L. Ed. 2d 776, 100 S. Ct. 1338.) If the Governor inserts in the warrant a name or an alias different from that which appears on the face of the indictment or affidavit, the State has the burden of proving the arrestee’s identity. People ex rel. Maypole v. Meyering (1934), 358 Ill. 589, 593-94.

It is true that the purpose of extradition is to summarily return a fugitive to the place of the alleged offense. (People ex rel. Kubala v. Woods (1972), 52 Ill. 2d 48, 53.) The demanding State certainly has an interest in obtaining a prompt return of its fugitives. The asylum State, however, also has a substantial interest in protecting people from unjustifiable extradition.

In People ex rel. Maypole v. Meyering (1934), 358 Ill. 589, the court addressed a similar situation to that in the instant case. The relator, Roy Maypole, was arrested in Chicago pursuant to a rendition warrant issued by the Governor of Illinois upon a requisition from the Governor of Ohio. The foundation of the rendition warrant was an indictment returned m the court of common pleas of Cuyahoga County, Ohio, charging “Henry Burke” with burning a building for the purpose of defrauding. A copy of that indictment and a written request from the prosecuting attorney of Cuyahoga County were attached to the requisition. The written request by the prosecutor, directed to the Governor of Ohio, asked for a requisition upon the Governor of Illinois for the rendition of “Roy Maypole, alias Henry Burke.” The Governor of Ohio patterned his requisition after the prosecutor’s request and asked the Governor of Illinois for the rendition of “Roy Maypole, alias Henry Burke.”

The relator in that case testified that he had never been known by the name of Henry Burke and denied that he had ever worked as a night watchman in the burned building, as it was alleged Henry Burke had. The State did not cross-examine the relator on these points and offered no evidence at all to contradict or impeach his testimony. The trial court remanded the relator to Ohio and a statutory writ of error was sued out by the relator to reverse that judgment.

On appeal, the court in Maypole held that neither governor could insert any name or names in the requisition or warrant, other than those which appeared on the face of the indictment or affidavit, without causing the burden of proof to be shifted to the State as to identity. (People ex rel. Maypole v. Meyering (1934), 358 Ill. 589, 594.) The court held that the State had not sustained its burden of proof because there was no evidence offered to establish that Roy Maypole was the same person as Henry Burke. The relator’s testimony that he had never been known as Henry Burke therefore stood in the record as uncontradicted. The court thus held that, upon the record, the relator should have been discharged, and reversed the trial court’s judgment remanding the relator to the State of Ohio.

In the instant case, as in Maypole, the relator’s name differed from the name on the underlying charging instrument. In both cases the aliases were inserted by persons requesting the demanding State’s governor to requisition the asylum State’s governor to extradite a certain individual. The decision in Maypole was based upon the rationale that it would be inequitable to allow a governor to insert in a requisition or warrant any name or names other than those appearing in the original charging instrument without then requiring the State to sustain the burden of proving that these persons were one and the same. We adhere to the rationale which was established in Maypole and hold that where the name of the relator is different from the name on the charging instrument, the State should bear the burden of proof regarding the relator’s identity. The State had the burden of proof as to identity in this case.

We turn next to the issue of whether the State sustained its burden of proof. The only evidence offered by the State which was admitted by the court was the fingerprint examination testimony of Detective Crowe of the Bloomington police department. A photograph and an FBI rap sheet were not admitted into evidence because the trial court judge sustained defense counsel’s objections that the State had failed to authenticate either exhibit.

The photograph which was excluded from evidence was purportedly of Frederick Leroy Cheek, Jr. The State’s witness testified that he received the photograph from the Florida authorities with the name “Cheek, Frederick” and a prison number on the back. The photograph was in an envelope which had the return address of the Florida Department of Corrections, but there was no letter inside.

Before a photograph is admitted into evidence a foundation must be established. (Casson v. Nash (1978), 74 Ill. 2d 164, 171.) Proof of the accuracy of a photograph may be established by the testimony of any competent witness who has sufficient knowledge to testify that the photograph fairly represents what it purports to portray. (Brownlie v. Brownlie (1934), 357 Ill. 117, 124.) Since the State in the instant case never produced any testimony to establish that the photograph was actually of Frederick Leroy Cheek, Jr., it was not authenticated and was properly excluded.

The FBI rap sheet was also properly excluded by the trial court. The testimony that was offered by the State did not establish that the rap sheet was received by actually feeding Michael Asbell’s fingerprint card into the police facsimile machine. The record is so ambiguous that it is conceivable that the rap sheet was received by feeding the name Cheek into the facsimile machine. Since no one could actually say how the rap sheet was received, it was not authenticated and was properly excluded.

The last evidentiary issue that must be discussed then is whether the fingerprint evidence which was offered by the State was sufficient to sustain its burden of proof as to the relator’s identity. Detective Crowe testified that he spent 15 minutes on the day before the hearing comparing Michael Asbell’s fingerprint card to a badly smudged photostatic copy of Frederick Leroy Cheek’s fingerprint card. The examination was limited to a small portion of the right thumbprint because that was the clearest fingerprint specimen Crowe could work from to make the identification. He was able to find 10 points of similarity between the two prints. He testified that if there had been one point of dissimilarity he would not have made the identification; however, he either was not able to, or did not, check any of the other prints or even another portion of the right thumbprint for a point of dissimilarity.

Since the State’s evidence of identity was based solely on the fingerprint evidence, evidence which the trial court obviously found unconvincing, we will not disturb the trial court’s finding. The trial judge as the trier of fact is in a position superior to this reviewing court to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. A trial court’s evidentiary finding will not be disturbed unless it is manifestly against the weight of the evidence. Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110.

We conclude that the trial court’s determination discharging the relator was correct.

Accordingly, for all the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE WARD

license: Public Domain

text:
    (No. 55625.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BILLY SIMMONS, Appellee.

      Opinion filed November 18, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, of Chicago, and Michael E. Shabat, Richard T. Sikes, Jr., and Joel A. Stein, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Cook County (John Lanahan, Assistant Public Defender, of counsel), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

In the late evening of July 11, 1979, Sharon Hobbs was shot and fatally wounded by the defendant, Billy Simmons, a/k/a James Booker, in a lounge on the near north side of Chicago. The defendant testified that the revolver he had been carrying had been accidentally discharged. He was charged in the circuit court of Cook County in a three-count indictment with murder with intent to kill or do great bodily harm (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(a)(1)), murder based on knowledge that his acts created a strong probability of death or great bodily harm (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(a)(2)), and armed violence based on the underlying offense of murder (Ill. Rev. Stat. 1979, ch. 38, par. 33A—2). Following a jury trial he was convicted of involuntary manslaughter and armed violence based on involuntary manslaughter, and concurrent sentences of five and 12 years respectively were imposed. The appellate court vacated the involuntary-manslaughter conviction on the ground that both convictions proceeded from a single physical act. (99 Ill. App. 3d 519; see People v. Donaldson (1982), 91 Ill. 2d 164.) We granted the People’s petition for leave to appeal. (73 Ill. 2d R. 315.) The defendant cross-appealed.

The People contend that the legislature intended that separate convictions and sentences be imposed for armed violence and its underlying felony and argue that the vacation by the appellate court of the defendant’s involuntary-manslaughter conviction was error. On his cross-appeal the defendant argues that a defendant cannot properly be convicted of armed violence based on involuntary manslaughter under an indictment charging armed violence based on an underlying offense of murder.

In People v. Donaldson (1982), 91 Ill. 2d 164, 170, we stated that “[i]n the absence of a clear legislative expression to the contrary *** multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges.” The People ask that we reconsider the holding in Donaldson that the armed-violence statute does not show “a clear legislative expression to the contrary.” They argue that section 33A—3(b) of the sentencing provisions of the armed-violence statute (Ill. Rev. Stat. 1979, ch. 38, par. 33A—3(b)) manifests this contrary intention. Section 33A—3(b) provides:

“Violation of Section 33A—2 [,which defines the offense of armed violence,] with a Category II weapon [e.g., a bludgeon or club] is a Class 2 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty. A second or subsequent violation of Section 33A—2 with a Category II weapon is a Class 1 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty.”

The People admit that the provisions of section 33—3(b) were not applicable here as the defendant was armed with a Category I weapon, i.e., a gun. They say, however, that the language “or the felony classification provided for the same act while unarmed, whichever permits the greater penalty,” is rendered meaningless if, under the armed-violence statute, a conviction and sentence only for the more serious offense can stand.

The People’s brief states:

“Had the legislature intended that only a conviction and sentence be imposed for the ‘more serious’ of armed violence and its underlying offense the emphasized language [i.e., ‘or the felony classification provided for the same act while unarmed, whichever provides the greater penalty’] would have absolutely no effect in situations where armed violence was deemed the ‘less serious’ offense because the armed violence charge would be vacated by the trial court.”

From this, the People conclude that the legislative intention clearly was to provide for convictions for both armed violence and its underlying felony.

The simple answer is that the People misread section 33A—3(b). The People are incorrect in stating that if the underlying felony is punishable by a sentence which is greater than that which may be imposed for a Class 2 felony, the armed violence charge is “less serious” than its underlying felony and will be vacated. To the contrary, the statute provides that the commission of armed violence while armed with a Category II weapon is never less serious than the underlying felony. The statute says that if the same act committed while unarmed permits a greater penalty (as for a Class 1 or a Class X felony), the penalty for a violation of the armed-violence statute while armed with a Category II weapon will be the same as for the underlying Class 1 or Class X felony. The defendant may be convicted of and punished for either offense, since neither is “more serious” than the other.

On the cross-appeal the defendant complains that he was convicted of an offense, armed violence based on involuntary manslaughter, with which he was not charged. As has been stated, the defendant was charged in two counts with murder and with armed violence based on murder. It is not inappropriate to observe that at trial the defendant requested that the jury be given instructions on the offense of involuntary manslaughter, including an instruction that it might find the defendant guilty of that crime. The jury was so instructed, and it found the defendant guilty of involuntary manslaughter and armed violence based on involuntary manslaughter. His post-trial motions for judgment notwithstanding the verdict, in arrest of judgment, and for a new trial were denied.

Where the sufficiency of a charge is attacked in a motion in arrest of judgment, the standard for determining whether the indictment or information is deficient is whether the elements of the offense are set out in the indictment or information as required by section 111—3(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. Ill—3(a)). (People v. Lutz (1978), 73 Ill. 2d 204.) Section 111—3(a) provides:

“A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.” (Ill. Rev. Stat. 1979, ch., 38, par. 111—3(a).)

Section 111—3 is designed to inform the accused of the nature of the offense with which he is charged so that he may prepare a defense and to assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct. (People v. Gregory (1974), 59 Ill. 2d Ill.) The defendant does not claim that the armed-violence count does not charge an offense or that he did not know with what he was charged. Instead, he says that the indictment is defective because it fails “to state what section or sections of the statute [were] involved, plus which, if any, lesser offenses of murder were involved.”

Section 111—3, however, does not require that an armed-violence charge set out the citation to the underlying felony alleged. The section requires only the citation of “the statutory provision alleged to have been violated” and the count here charging armed violence contained the citation of the offense. The count charging armed violence stated in part:

“Billy Simmons committed the offense of armed violence in that he, while armed with a dangerous weapon, to wit: a firearm committed a felony defined by Illinois Law, to wit: murder, in that he shot and killed Sharon Hobbs with a gun, knowing that such shooting with a gun created a strong probability of death or great bodily harm to said Sharon Hobbs without lawful justification, in violation of Chapter 38, Section 33A—2 of the Illinois Revised Statutes 1977 as amended ***.” (Emphasis added.)

The inclusion of the italicized language of the charge made it clear that murder under section 9—1(a)(2), rather than murder under section 9—1(a)(1), was the underlying felony in the charge of armed violence.

The defendant acknowledges that a charge of murder may serve as the basis for a conviction of any lesser included offense. (People v. Speed (1972), 52 Ill. 2d 141; People v. Lewis (1940), 375 Ill. 330.) In Lewis, the defendant was charged with murder, but was convicted of manslaughter. The court observed that “[b]y such an indictment the accused is charged not with a different offense from manslaughter but with all the elements of that offense, and further that he committed them with malice aforethought.” (375 Ill. 330, 334.) Similarly, the effect of the armed-violence count of the indictment here was to charge the defendant with all of the elements of armed violence based on involuntary manslaughter, together with the additional element of knowledge of the probability of death or great bodily harm to another. The defendant’s conviction of armed violence is consistent with “ '*** [t]he general rule that when an indictment for a higher crime embraces all the elements of an offense of an inferior degree the jury may discharge the accused of the higher crime and convict him of the lower if the evidence justifies it ***.’” (People v. Lewis (1940), 375 Ill. 330, 334, quoting People v. Dugas (1923), 310 Ill. 291, 300.) This court in Lewis stated that the rule quoted above from Dugas is “not limited to the crimes of murder and manslaughter, but applies generally to all offenses of a higher degree which embrace the elements of a lower crime, of which the accused is convicted.” 375 Ill. 330, 335-36.

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

Judgment affirmed.


author: JUSTICE CLARK

text:
    (No. 55075.
    ROSEMARIE S. WALTER v. THE BOARD OF EDUCATION OF QUINCY SCHOOL DISTRICT NO. 172, Appellee (John Vernon Walter, Ex’r, Appellant).

      Opinion filed November 18, 1982.

      DeJong, Poltrock & Giampietro, of Chicago (Lawrence A. Poltrock, Gregory N. Freerksen, and Mildren F. Haggerty, of counsel), for appellant.
    William J. Dieterich, of Quincy, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

On February 28, 1978, the plaintiff, Rosemarie S. Walter, brought this action for a writ of mandamus asking for reinstatement of her tenured teaching position with defendant, the board of education of Quincy School District No. 172, and asking for damages in the nature of back pay from the time of her dismissal. The circuit court of Adams County entered judgment for the defendant board of education. Notice of appeal was filed on August 20, 1980, but before the appellate court could hear the case, the plaintiff died in an automobile accident. The executor of plaintiff’s estate filed a suggestion of death and motion for substitution of parties with the appellate court. A divided appellate court denied the motion, finding that the plaintiff’s mandamus action abated with the plaintiff’s death. 95 Ill. App. 3d 313.

The executor filed with this court a petition for leave to appeal along with a renewed motion for substitution of the estate of Rosemarie Walter as plaintiff in this action. We granted the executor’s petition for leave to appeal (73 Ill. 2d R. 315).

The issues before this court are threefold: first, whether the damages portion of the plaintiff’s mandamus action survives the plaintiff’s death; second, if not, whether the executor should be allowed to amend the complaint; and third, if the damages portion of the mandamus action survives, whether the board of education failed to tender Rosemarie Walter a teaching position that the board was legally obligated to offer.

A writ of mandamus is issued as an exercise of judicial discretion only in those cases where the plaintiff can demonstrate a clear right to this extraordinary relief. (White v. Board of Appeals (1970), 45 Ill. 2d 378; LaSalle National Bank v. Village of Riverdale (1959), 16 Ill. 2d 151.) Where an administrative officer or board has arbitrarily failed to act, mandamus will lie to compel that officer or board to perform a duty which the plaintiff is entitled to have performed. Taylor v. State Board of Education (1978), 56 Ill. App. 3d 387.

The majority of the appellate court stated that it felt “bound” by our decision in People ex rel. McPherson v. Western Life Indemnity Co. (1914), 261 Ill. 513, and concluded that the request for damages in the petition for mandamus was incidental to the request for reinstatement and therefore abated when the plaintiff died.

In People ex rel. McPherson v. Western Life Indemnity Co. (1914), 261 Ill. 513, John McPherson filed a petition for mandamus to compel the Western Life Indemnity Company to accept certain payments upon a life insurance policy issued by Western Life as premium payments. The petitioner wanted his membership restored and an order issued that the policy be maintained provided that the monetary payments were being made. McPherson won at trial and Western Life appealed. As the case was being appealed, the petitioner died.

The court in McPherson recognized that the mandamus action brought was an entirely personal one; mandamus was not referred to in the now-repealed statute on abatement (Hurd’s Ill. Rev. Stat. 1903, ch. 1, pars. 1 through 26) as one that would survive; and there was no provision in the mandamus statute that provided for survival of the action upon the death of the petitioner.

After concluding that death operated as an abatement, the court went on to say: “In this case the main object of issuing the writ was to compel the appellants to restore the petitioner to membership in said insurance company and to keep and treat his policy or contract of insurance in force during his life. It is conceded by counsel for appellee that the only part of the prayer of the petition that could now be enforced would be to compel the appellants to accept and apply on the policy the payments of premium tendered to them before the death of McPherson. The acceptance of this money was a mere incident to restoring the original relator to his membership in the said insurance company and treating his policy as in force.” (261 Ill. 513, 516.) What the appellees in McPherson requested was for the court to require acceptance of the premium payments so that the insurance would be reinstated and therefore effective at the time of the petitioner’s death.

The plaintiff in the instant case, in filing the complaint for mandamus asked that the trial court declare her dismissal as a tenured teacher to be in violation of section 24—12 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24—12). The complaint sought reinstatement, “any and all actual and compensatory losses and damages” that arose out of the plaintiffs dismissal, and $10,000 in punitive damages.

The facts of this case are significantly different from McPherson v. Western Life Indemnity Co. McPherson does not control the outcome here. If the plaintiff had succeeded on the merits of her argument concerning the alleged failure on the part of the board of education to rehire her, compensatory damages for discharge could have been awarded in the amount of the salary she would have received from the time that the board failed to reemploy her until she would have been reinstated. Those damages which amount to a claim for back salary are not a mere incident to the complaint for reinstatement but constitute a separate claim that was properly brought as part of this mandamus action.

It is clear that while mandamus will not lie when the only claim asserted is for a breach of contract, an action for mandamus is appropriate when reinstatement is sought; and a claim for back salary can be brought as part of the action. Both claims are linked to one another, in that they are both based upon the same theory that there existed a right to reinstatement. See Elevator Operators & Starters’ Union, Local 117 v. Newman (1947), 30 Cal. 2d 799, 807-08, 186 P.2d 1, 6.

Had Rosemarie Walter not sought reinstatement but rather only brought suit to recover damages, an action for breach of contract would have been in order. (See Bessler v. Board of Education (1977), 69 Ill. 2d 191.) Bessler, a nontenured teacher, brought an action for mandamus seeking reinstatement and back pay. This court held that plaintiff was not entitled to reinstatement but that she was entitled to damages for breach of contract. There is no doubt that had the claim for damages been brought as an action in contract it would not have abated because such an action would “survive by the common law” (Ill. Rev. Stat. 1977, ch. 110½, par. 27—6). See also Parkway Bank & Trust Co. v. LaVine (1977), 45 Ill. App. 3d 497.

The plaintiff proceeded properly in bringing the original complaint as a mandamus action, and we believe the plaintiff’s estate is entitled to be substituted in appealing that part of the mandamus action that does survive — that portion asking for damages in the form of back salary arising out of the contract between Rosemarie Walter and the board of education. See Cain v. Stucker (1946), 159 Pa. Super. 466, 48 A.2d 162; State ex rel. Ake v. Kansas City (1926), 221 Mo. App. 784, 288 S.W. 85; Levitch v. Board of Education (1926), 216 A.D. 391, 215 N.Y.S. 309, rev’d on other grounds (1926), 243 N.Y. 373, 153 N.E. 495; People ex rel. Fairchild v. Commissioners of the Department of Fire & Buildings (1887), 105 N.Y. 674, 12 N.E. 179.

The Survival Act is a remedial statute and is liberally construed in order to prevent abatement. (McDaniel v. Bullard (1966), 34 Ill. 2d 487.) It expressly allows the survival of that part of the mandamus action that would survive at common law — the claim for damages. In Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 428, this court said:

“ ‘The rule of abatement has its roots in archaic conceptions of remedy which have long since lost their validity. The reason having ceased the rule is out of place and ought not to be perpetuated.’ ”

The issue of back salary from the time of her unlawful termination to the time of her death survives by virtue of the Survival Act, which states:

“In addition to the actions which survive by the common law, the following also survive: *** actions to recover damages for an injury to real or personal property ***.” Ill. Rev. Stat. 1977, ch. 110½, par. 27—6.

In view of our disposition of the first issue before us we find it unnecessary to consider whether the executor should be allowed to amend the complaint, since the complaint as to damages in the complaint for mandamus stands.

We believe that since the damages claim remains a live controversy the appeal on the merits of this case should proceed.

We now address the issue of whether the plaintiff was entitled to reinstatement. Since we properly have jurisdiction over this case and the issue has been fully briefed before us, we feel that in the interest of judicial economy we should make a ruling as to the merits of the claim before us. See People ex rel. Pardridge v. Windes (1916), 275 Ill. 108.

It is necessary to briefly recall the facts of Mrs. Walter’s case. The plaintiff had been a teacher with the defendant board of education since 1959. She had attained tenure by virtue of her 19 years of satisfactory service as a speech therapist with the school district. On March 22, 1978, Mrs. Walter received a “Notice and Statement of Honorable Dismissal” from the defendant. The notice informed Mrs. Walter that her employment would terminate at the end of the 1977-78 school year because of a reduction in the number of teachers in the school system. At the same time three nontenured teachers, Sandra Mentesti, Mary Nelle Rokita and Billie Embree, were also honorably dismissed because of the staff reduction. On August 28, 1978, Quincy School District No. 172 rehired the three probationary teachers to teach in the title I reading program.

The plaintiff claimed that she was legally qualified to fill one of the positions that the probationary teachers were given, and that pursuant to section 24—12 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24—12) she should have been reemployed (in the capacity of a title I reading teacher in August of 1978) because of her tenured position. Mrs. Walter asserted that as a dismissed tenured teacher she had a right to have tendered to her any new teaching position which she was legally qualified to teach. The pertinent part of the statute on which the plaintiff relied provides:

“If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor, and in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. Any teacher dismissed as a result of such decrease or discontinuance shall be paid all earned compensation on or before the third business day following the last day of pupil attendance in the regular school term. If the board within 1 calendar year thereafter increases the number of teachers or reinstates the position so discontinued, the positions thereby becoming available shall be tendered to the teachers so removed or dismissed so far as they are legally qualified to hold such positions.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 122, par. 24—12.

The defendant argues that because the plaintiff’s speech-therapist position was not reinstated and the actual number of teachers employed by the board in the 1978-79 school year was less than the number employed in 1977-78, plaintiff’s reinstatement was not required by section 24—12. The defendant’s contention is contrary to Bilek v. Board of Education (1978), 61 Ill. App. 3d 323, 326, where the appellate court said that “[t]hough section 24—12 does not expressly deal with vacancies caused by attrition, the spirit of the Act requires that such vacancies be filled by qualified tenured teachers who have been honorably dismissed within the preceding calendar year, if possible. If the vacancies cannot be filled by the tenured teachers, then untenured teachers may be hired.”

We believe that the reasoning of Bilek is consistent with this court’s holdings in McNely v. Board of Education (1956), 9 Ill. 2d 143, 147, and Donahoo v. Board of Education (1952), 413 Ill. 422, where the court has said that the primary purpose of the teachers’ tenure law is to protect experienced, able teachers by assuring them that decisions as to their continued employment will be based upon merit and not partisan politics.

The reasoning of Bilek is persuasive and applicable here. Following the plaintiff’s dismissal, positions became available; if Mrs. Walter was “legally qualified” she was entitled to reinstatement before the hiring of any probationary teachers. Thus, the determination of whether Mrs. Walter should have been reinstated is contingent upon whether she was “legally qualified” to fill the teaching position in August of 1978.

The court in Lenard v. Board of Education (1979), 74 Ill. 2d 260, 268-69, determined that teaching standards, “promulgated by the Superintendent [of Public Instruction (now the State Board of Education)] pursuant to authority delegated by the School Code, are to be incorporated into the meaning of the phrase ‘legally qualified’ as it appears in section 24—12 of the Code.” The record clearly shows that under Circular Series A, No. 100, issued by the Superintendent in 1956, Mrs. Walter was authorized to teach reading on August 28, 1978. The plaintiff was not simply certified, but was legally qualified under the regulations in effect at the time.

State Board of Education, document No. 1, attempted to upgrade teacher qualifications by providing that more stringent requirements had to be met by elementary and junior high school teachers.

The document, dated October 1,1977, provides:

“7—1 Minimum Requirements for Elementary Teachers
7—1.1 Each elementary teacher shall hold a valid certificate for the grade level to be taught.
Each elementary teacher shall have formal training in each basic instructional area to be taught. This regulation shall apply only to those individuals first assigned to an elementary position on or after September 1, 1978.
7—2 Minimum Requirements for Teachers of Junior High and Departmentalized Upper Elementary Grades
7—2.1 Eighteen semester hours in the area of major teaching assignment, including at least five semester hours in each course where subject matter areas are divided into two or more specific courses. This requirement also applies to teachers of the sixth, seventh, and/or eighth grade where the organizational pattern is in part or entirely departmentalized. When departmentalized in part, the requirement only applies to the departmentalized teachers.
This regulation will not apply to teachers who are employed in a departmentalized position prior to September 1, 1973. Teachers not meeting the requirements and having been assigned to a departmentalized teaching situation for the first time as of September 1, 1973, shall have five years to gain the necessary 18 semester hours.
7—2.2 By September 1, 1978, all teachers (except those employed prior to September 1, 1973) assigned departmentalized responsibility shall meet the 18-se-mester-hour requirement. This regulation applies only to the subject matter which comprises more than 50 percent of the instructional periods assigned to a teacher.”

As of September 1, 1978, the plaintiff undeniably lacked the requisite upgraded qualifications for appointment. However, the three untenured teachers rehired in August of 1978 also failed to meet the requirements set forth in document No. 1. The qualifications of three probationary teachers — Mentesti, Rokita and Embree — were acceptable as legally qualified only because they were “grandfathered in”: exceptions were made for those individuals presently employed in the teaching capacities in question who had been employed prior to September 1, 1978. It would appear that this exemption was intended to protect teachers of proved ability and experience who were already in such positions prior to the effective date of the changes. Yet it is clear that it was only via this exemption that the three probationary teachers were deemed qualified.

The type 10 language arts certificate that the plaintiff held was proper certification to qualify her for one of the reading positions in August of 1978. Mr. James R Johnson and Mr. Enno S. Lietz, who evaluate teacher qualifications for the State Board of Education, testified at trial that Mrs. Walter was legally qualified to teach as of August 28, 1978. Had Mrs. Walter been reappointed in August she would have been “grandfathered in” under the exemption clause of document No. 1. The defendant contends that because the probationary teachers were better qualified than Mrs. Walter to participate in the title I projects, it was proper action of the board of education not to reemploy Mrs. Walter as a reading teacher.

The defendant asserts that because the title I project proposal was approved by the defendant on May 17, 1978, by the regional superintendent on May 19, 1978, and by the State Superintendent of Education on August 2, 1978, it was therefore in effect at the time that Mentesti, Rokita and Embree were appointed on August 15, 1978, and was effective at the opening of school on August 28,1978.

The title I projects are federally funded programs intended to help educationally disadvantaged students and require the annual submission of a detailed project proposal showing its objectives and operations to the State Superintendent of Education for his approval, which then authorizes the district to implement the project proposal. However, the title I project document does not fix the legal qualifications for reading teachers in the Quincy school system. There is no indication from the State Board of Education that any of the title I project proposals would be incorporated as requirements into the regulations (i.e., circular series) that constitute whether a reading teacher in Illinois is legally-qualified.

The legislature vested the authority to determine “legal qualifications” in the State Board of Education (Ill. Rev. Stat. 1977, ch. 122, par. 2—3.25) and not the local school board. Section 24—12 does not confer discretion upon a local school board to terminate a tenured teacher it considers unqualified.

If the school board seeks to dismiss a tenured teacher because of a lack of qualifications, it has the discretion to do so under section 10—22.4 (Ill. Rev. Stat. 1977, ch. 122, par. 10—22.4: Dismissal of Teachers), provided that such a dismissal is accomplished by an administrative hearing as provided for in section 24—12 (Ill. Rev. Stat. 1977, ch. 122, par. 24—12). Mrs. Walter was legally qualified. She should have been reinstated in August of 1978. Because the damage portion of the mandamus action survives, the judgments of the appellate and circuit courts are reversed. We allow the motion of the executor to be substituted as plaintiff and we remand the cause to the circuit court with directions to allow the motion for reinstatement by the executor and to enter a judgment for damages in the amount of back pay due the plaintiff from the date she should have been reinstated until the date of her death.

Judgments reversed; cause remanded, with directions.


author: JUSTICE UNDERWOOD JUSTICE SIMON,

text:
    (No. 55855.
    JAKOB GOLDSAMT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Hart, Schaffner & Marx, Appellee).

      Opinion filed October 22, 1982.

    SIMON, J., dissenting.

      Jordan Teplitz, of Jordan Teplitz, Ltd., of Chicago, for appellant.
    Braun, Lynch, Smith & Strobel, Ltd., of Chicago (Thomas P. Smith, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

The 59-year-old claimant in this workmen’s compensation case, Jakob Goldsamt, immigrated in 1950 to this country from Poland. He had served in the Polish army, been taken prisoner and subsequently interned in Hungarian and Austrian camps until freed in 1945 at the close of World War II. Claimant never married and apparently believed his family had been killed by the Nazis. In 1953 he commenced work as a fabric cutter for respondent, Hart, Schaffner and Marx. On August 31, 1972, in an apparent suicide attempt, claimant jumped from the ninth floor of respondent’s building as a result of which both legs were amputated. Since his release from the hospital he has lived at a nursing home, the cost of which was, at the time of these hearings, apparently being paid by the State in the form of welfare payments.

Predicated upon a theory that his attempted suicide was caused by worry regarding changes in his working conditions and possible loss of his job, claimant filed a claim for benefits under the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1 et seq.). The arbitrator found that claimant’s injuries did not arise out of and in the course of his employment and denied compensation. That decision was affirmed by the Industrial Commission, whose judgment was, in turn, confirmed by the circuit court of Cook County. Claimant appealed directly here under our Rule 302(a)(2). 73 Ill. 2d R. 302(a)(2).

In addition to his statements regarding the facts noted earlier herein, claimant’s somewhat imprecise testimony may be fairly summarized as indicating that he had worried about proposed changes in working conditions which had apparently been discussed by the company, which was proposing them, and the union, which opposed them.

These proposals had been discussed at union meetings, some of which claimant attended. Claimant thought his earnings would be reduced and feared he would be unable to adjust to the changes, as a result of which he would lose his job. He suffered from a “bad stomach,” diarrhea, varicose veins, arthritis in his right leg and rheumatism in his neck and shoulder. He was scheduled to have an X ray of his colon in the week following his suicide attempt. He lived alone, liked to read, and frequented the library. On the morning of August 31 he went to work at 8 a.m., hung up his coat with $500 in it for his friend, Victor Goldman, walked out on the ninth-floor fire escape and jumped.

Frank Hanus, a former Hart, Schaffner and Marx shop foreman who had retired in 1975, testified that the new work system started in April 1973. Under it cutters no longer cut out the entire suit or coat as they formerly had, but different cutters cut out different parts. The plan had been under discussion for a year prior to its implementation and had been opposed by the union because it was thought it would eliminate some of the cutters.

Victor Goldman testified he was claimant’s friend and knew claimant had stomach and teeth problems. Claimant had complained about both health and work problems. The new work system did not go into effect until after claimant’s injury. Under it, the witness testified his earnings were 40% less. He “originally gave this case” to an attorney.

Dr. Adrian Finkelstein, a psychiatrist, testified as a witness for claimant that he saw claimant for 1 or IV2 hours on July 20, 1974. Dr. Finkelstein found no psychosis but testified, claimant had an “obsessive-compulsive personality,” and “showed low spirits, bitterness about changes of work in his latest job.” “[H]e felt he would be fired because of some of his liabilities, arthritis, varicose veins and colds that he would get very frequently.” Claimant was sort of a “loner.” He believed his family had been exterminated by the Nazis, and the doctor thought “he was experiencing extreme guilt toward his family.” Because of that “he may be very prone to long standing depression and my diagnosis of obsessive-compulsive personality also can be seen as on a background of depressive-masochistic character, as I found in this patient.” Claimant had apparently told the doctor that the conditions at work had already changed at the time of the attempted suicide, and Dr. Finkelstein testified that the changing conditions were “a very clear precipitating factor to his depressive neurosis.” On cross-examination, however, he indicated it would make a difference in his opinion if, in fact, the changes did not occur until a year after the jump. On redirect examination the doctor stated that “just hearing about the possibility they would take place” would be sufficient to constitute “a precipitating factor” whether the changes could actually occur or not.

Dr. Earl Solon, a psychiatrist called by respondent, testified that he had been requested by one of the staff doctors at Henrotin Hospital to see claimant, who was then in intensive care. Dr. Solon stated that he saw claimant on September 3 and that claimant told him that claimant felt recently betrayed by a friend in whom he had reposed confidence. The doctor’s impression was “involutional psychosis with mixed paranoid and depressive features,” but because claimant was in intensive care he was not able to be very cooperative. Claimant did not mention any work changes to Dr. Solon. Dr. Solon did see claimant on other occasions, apparently at Grant Hospital, and perhaps at the nursing home, although the details are unclear as a result of the doctor’s notes regarding the later visits not being in the hospital files which had been brought to the hearing.

Thereafter the attorney representing claimant requested a report from Dr. Solon of his objective findings. The doctor responded that the injuries were the product of a psychiatric illness. A subsequent letter from the attorney indicated that claimant’s past history put him in a mental condition where he could not cope with contemplated changes in employment conditions, thus making his life more meaningless and putting claimant in such a depressive state he attempted suicide. The doctor was asked to report on this and did so by letter to the attorney stating in relevant part:

“To the best of my recollection, during Mr. Goldsamt’s hospitalization he never mentioned his job concerns at Hart, Schaffner & Marx in any way that it suggested that it contributed to his becoming emotionally ill. Apparently he is now doing so. However, it would not fit the observations and findings already described in the record to make this statement. Nor would it be compatible with our general understanding of paranoid psychotic processes to atribute [sic] this as a significant contributing factor to his illness. Were I to say that his job worries were a contributing factor in his illness, I would not be in a position to defend the statement.”

Ronald Zizic, who had been payroll supervisor for respondent for nine years, identified payroll records showing claimant’s earnings for eight months in 1972 to have been $8,727 as contrasted to $9,049 for all of 1971. On review before the Commission Mr. Zizic identified similar records for Victor Goldman showing his earnings for 1970, 1971, 1972, 1973, and 1974 to have been $8,814, $9,291, $11,065, $10,978, and $11,576, respectively.

Claimant has cited a number of cases from this and other jurisdictions, including Harper v. Industrial Com. (1962), 24 Ill. 2d 103, allowing recovery for pain-induced suicide following an employment-related back injury, and Pathfinder Co. v. Industrial Com. (1976), 62 Ill. 2d 556, 562, in which this court upheld an award for psychological disability resulting from “a sudden, severe emotional shock, traceable to a definite time and place and to a readily perceivable cause,” even though no physical trauma or injury was sustained. He relies, too, on Professor Larson’s comments in a Vanderbilt Law Review article, Mental and Nervous Injury in Workmen’s Compensation, in which the author states:

“The cases may be thought of in three groups: (1) mental stimulus causing physical injury; (2) physical trauma causing nervous injury; and (3) mental stimulus causing nervous injury. The first two categories are by now almost universally accepted as compensable. The third is the battleground where new law, reflecting the increasing ability of medicine and psychiatry to speak authoritatively on the causes and consequences of mental and nervous injury, is currently being developed.” 23 Vand. L. Rev. 1243, 1244 (1970).

The problem here, however, is not the absence of physical injury, for we have severe injuries; rather, the question is one of causation. Was claimant’s attempted suicide prompted in whole or in part by anxiety regarding the proposed changes in working conditions or is it reasonable to believe his depression may have resulted from causes other than those which were employment related? The arbitrator and Commission both found the latter to be the fact, and the only question before us is whether that finding is contrary to the manifest weight of the evidence. (Segler v. Industrial Com. (1980), 81 Ill. 2d 125, 129; C. Iber & Sons, Inc. v. Industrial Com. (1980), 81 Ill. 2d 130, 135.) The trial judge held it was not, and we agree.

It is, of course, axiomatic that the burden rested upon claimant to establish by a preponderance of the evidence that his injury arose out of and in the course of his employment. (Parsons v. Industrial Com. (1981), 84 Ill. 2d 346, 349; Ansell v. Industrial Com. (1981), 85 Ill. 2d 69.) It is the function of the Commission to decide questions of fact and causation and judge the credibility of the witnesses; where differing inferences may reasonably be drawn from the evidence, those drawn by the Commission will not be disturbed. White v. Industrial Com. (1982), 88 Ill. 2d 523, 526; Pazara v. Industrial Com. (1980), 81 Ill. 2d 76, 80.

It is apparent from the testimony that claimant suffered from a number of physical ailments about which he had complained to a number of people. He had told Dr. Solon that he had recently been betrayed by a friend in whom he had formerly had confidence. Dr. Finkelstein believed claimant was experiencing extreme guilt toward his family. Too, claimant, in his initial interview with Dr. Solon several days after the suicide attempt, said nothing to the doctor regarding changing work conditions as a reason for his conduct; rather, he spoke of the friend who had betrayed him. In view of this testimony it is not unreasonable to presume that the uniform findings of the arbitrator and the Commission were prompted by their belief that the discussion of the work changes was not a causative factor in the suicide attempt. We cannot say that such a conclusion is contrary to the manifest weight of the evidence. Board of Education v. Industrial Com. (1980), 81 Ill. 2d 17, 21.

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

Judgment affirmed.

JUSTICE SIMON,

dissenting:

The majority is right; the only question in this case is the factual one of causation: What prompted Goldsamt’s attempted suicide? Was it in whole or in part the proposed changes in working conditions at Hart, Schaffner & Marx? I believe that the manifest weight of the evidence supports Mr. Goldsamt’s position that it was anxiety caused by the proposed work changes.

Although the arbitrator, the Commission, the circuit court, and now a majority of this court have each found that the attempted suicide was not caused by the work changes, these findings were based primarily on the testimony of one expert witness, Dr. Earl Solon. I find his testimony to be ambiguous and not very credible. When the weakness of Dr. Solon’s testimony is acknowledged, it is apparent that the overwhelming weight of the evidence supports Mr. Goldsamt.

Hart, Schaffner & Marx proposed certain changes in working conditions for cutters before the suicide attempt, and Mr. Goldsamt was extemely anxious about the effects that those changes would have on him. Although the work changes were not implemented until after the attempted suicide, they had been under discussion as a proposal for at least a year. Mr. Goldsamt had attended several union meetings at which employees discussed their opposition to the changes. He testified that he was so “upset” by the proposed changes in working conditions that he “just jumped out.”

Under the old work system which had been in effect as long as Mr. Goldsamt had worked at Hart, Schaffner & Marx, each cutter cut an entire suit. Under the new system each cutter only would cut a small portion of each suit. The union vigorously opposed the new system, fearing that it would move some cutters out of the cutting room and might lead to lower wages for cutters. Moreover, the evidence establishes that both the union and the employer foresaw that some older employees like Mr. Goldsamt might not be able to cope with the new system and would have to be dismissed.

The proposed changes in working conditions, however, represented much more to cutters like Jakob Goldsamt than the dangers of lower pay and early retirement. By moving some cutters out of the cutting room and by abolishing the cutters’ traditional work patterns, the new work system threatened to destroy the trade to which Jakob Goldsamt had devoted most of his working life after coming to the United States. A union official testified that the new work system was a devastating blow to the cutters’ pride in their work “[b]ecause it would eliminate a number of men out of the cutting room. The cutting was a trade. It was a trade and by putting in [the new] system, they threw the trade out the window.”

Dr. Adrian Finkelstein, a psychiatrist, testified that Goldsamt’s concern with the proposed work changes was “a clear precipitating factor” in the suicide attempt. “[T]he working conditions triggered his state of mind and then his desperation ***.” The doctor noted that it was irrelevant whether the work changes had been implemented at the time of the suicide attempt; “just hearing about the possibility they would take place” would be enough to cause Mr. Goldsamt’s condition. In concluding that the proposed work changes caused the suicide attempt, Dr. Finkelstein placed special significance upon the situs of the suicide attempt — the Hart, Schaffner & Marx factory: “I see it more pertinent for him to attempt to do something there where he is close to his work situation and bothered by the work situation than *** jumping from a bridge.”

In contrast, Dr. Solon observed that he had no independent recollection of his observations of Mr. Goldsamt; he could only testify by reference to notes that he had made in his first interview with the patient and by reference to a letter that he had sent to Goldsamt’s counsel. The interview occurred only three days after the suicide attempt and was conducted in the intensive-care ward of the hospital to which Goldsamt was brought. Dr. Solon admitted that because of Mr. Goldsamt’s precarious condition he “was not able to be very cooperative.” Under these conditions and after what he had been through I do not see how anyone could expect Jakob Goldsamt to have been logical in this interview or to remember the circumstances and causes of his suicide attempt. Dr. Solon himself conceded that Goldsamt’s consciousness of why he had attempted suicide may well have been obliterated by the time he was interviewed in the hospital.

In its effort to infuse Dr. Solon’s hospital interview with some significance, the majority emphasizes the passage in Dr. Solon’s interview notes relating that the patient felt he had been “recently betrayed by a friend in whom he has [placed] his confidence.” This reference is ambiguous at best and does not establish the alleged betrayal as an independent precipitating factor in the suicide attempt. Dr. Finkelstein testified that he did not believe that the alleged betrayal had anything to do with the suicide attempt. Moreover, Goldsamt was never asked whát he meant when he said in the hospital interview that he felt betrayed by a “friend.” It is understandable that a person who had three days before undergone serious physical and mental trauma, who after his entire family perished in the horrors of Nazi concentration camps came to this country to live a lonely and secluded life with few social contacts, and who only spoke English imperfectly, might refer allegorically to Hart, Schaffner & Marx, his employer of 20 years, as a “friend.” The record contains no other clue as to the identity of the “friend.”

The majority opinion also relies strongly on the letter to Mr. Goldsamt’s counsel in which Dr. Solon observed that the patient had never mentioned the proposed work changes during the course of his treatment. The letter also observed that it would be inconsistent with the “general understanding of paranoid psychotic processes to [attribute] this as a significant contributing factor to his illness.” (Emphasis added.) Later testimony by Dr. Solon, however, makes clear that he did not mean that the proposed work changes were not a substantial precipitating factor in causing the suicide attempt; the doctor simply meant that the work changes were not the cause of Mr. Goldsamt’s preexisting mental condition of isolation and depression.

Dr. Solon explained that, in attempting suicide, Mr. Goldsamt subconsciously was hoping to escape “[f]rom things that were distressing him.” Observing that “[t]he job is a part of a man’s meaning and place,” Dr. Solon conceded that anxiety over the work changes might have partly caused the suicide attempt. The doctor described the work changes as a “final blow” to Mr. Goldsamt, one which substantially aggravated his preexisting mental condition, and which was one of the aggravating factors that caused him to jump. Testifying in medical terms and not in legal conclusions, Dr. Solon appeared to be saying that the proposed work changes were a factor causing substantial aggravation to Mr. Goldsamt’s preexisting mental condition and that those changes may have provided a crucial catalyst in causing the suicide attempt. A work-related aggravation of a preexisting condition is compensible. See Brooks v. Industrial Com. (1979), 78 Ill. 2d 150, 155; Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234, 240.

Given the weakness and ambiguity of Dr. Solon’s testimony, I do not think that it warrants the substantial reliance that the majority places on it. Even if this reliance were appropriate, I believe that it actually supports an award in this case. The overwhelming credible evidence favors the claimant’s position that the proposed changes in working conditions were a substantial precipitating factor in the suicide attempt. I especially note that no substantial evidence was introduced to establish other reasons for what Goldsamt did. His physical ailments, his guilt feelings toward his family, and the suggestion that the “friend” was a person, all referred to by the majority, are all speculations with no evidence establishing they were the reasons. I would reverse the findings of the circuit court and remand this cause to the Commission for the determination of an appropriate award.