text:
    (Nos. 53303, 53461 cons.
    CHICAGO TRANSIT AUTHORITY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Carolyn L. Stevenson, Appellee and Cross-Appellant).

      Opinion filed September 30, 1981.

      Berger and Herman, Ltd., of Chicago (Marvin L. Herman and Herbert F. Imhoff, Jr., of counsel), for appellant and cross-appellee Chicago Transit Authority.
    Cornelius E. Toole, of Chicago, for appellee and cross-appellant Carolyn L. Stevenson.
   MR. JUSTICE WARD

delivered the opinion of the court:

This appeal involves imposition of penalties by the Industrial Commission against the Chicago Transit Authority (CTA) because of a claimed wrongful delay in the payment of disability compensation to a former employee. The circuit court of Cook County set aside the penalties in part, and both the claimant and the CTA appealed directly to this court under Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

In January 1977, Carolyn Stevenson injured her left knee in the course of her employment as a ticket agent for the CTA. Acting pro se she filed an application for an adjustment of claim with the Industrial Commission on September 22, 1977, and the record shows that her employment with the CTA was terminated in the following month because of absenteeism. On December 21, 1977, an arbitrator made an award to Stevenson for temporary disability compensation and for a 15% permanent loss of use of her left leg. The CTA fully satisfied this award in January 1978.

It appears that on May 24, 1978, an attorney filed a petition on Stevenson’s behalf under section 19(h) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(h)). That section provides for review of an award if the employee’s disability has recurred, increased, diminished or ended. There was no hearing on the petition until July 30, 1979. Between May 1978 and July 1979 the matter was continued at least four times on the claimant’s motion.

At the hearing, Stevenson testified that she began working as a secretary for an insurance company in September 1978, and that she had suffered continual pain and difficulties with her injured knee since the time of the arbitrator’s award. On October 26, 1978, she said, she was hospitalized because of the condition and Dr. D. G. Sereleas, who had treated her injury in 1977, performed surgery on the knee. Stevenson testified that she returned to her employment on January 2, 1979.

At the section 19(h) hearing, the claimant asked for an increase in the permanent disability award and also for an award for temporary total disability for the period in which she was disabled because of the surgery. Further, because the CTA had wrongfully failed to pay this temporary disability compensation prior to the hearing, the claimant demanded penalties under sections 16,19(k) and 19(Z) of the Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.16, 138.19(k), 138.19(1)). Section 16 provides for the payment of fees for a claimant’s attorney in the case of an employer who unreasonably or vexatiously delays the paying of benefits. The other two sections provide for the assessment of additional compensation where there has been an unreasonable or vexatious delay in the payment of compensation (section 19(k)), or a delay in the payment of temporary disability compensation without good cause (section 19(1)).

To support the demand for penalties, the claimant introduced four letters at the hearing. In a letter of January 23,1979, Stevenson’s lawyer informed the CTA’s lawyers of the surgery, stated that it was a result of the 1977 injury, and claimed temporary disability compensation for the period extending from Stevenson’s surgery in October 1978 to her return to work in January 1979. The second letter, dated February 1, 1979, was a response from the CTA’s attorney requesting the name and address of the surgeon, the date of the surgery, and the name of the hospital where the operation was performed. The letter stated: “When we have reviewed the medical records, we will be in a position to advise our client whether total temporary disability is payable.” In a reply dated February 5, 1979, Stevenson’s attorney supplied the requested information.

The fourth letter, dated February 16,1979, was another demand for temporary disability. It also said that Dr. Sereleas’ attending physician’s statement, detailing the operation and certifying the disability, was enclosed. At the hearing, the CTA introduced a letter dated February 20, 1979, in which the CTA’s attorneys informed the claimant’s attorney that they could not advise the CTA to pay temporary disability benefits on the basis of the information Stevenson’s counsel had furnished. The letter emphasized that the CTA had “not been furnished with any medical report which would serve to connect any surgery or claim 00 * to any compensable accident.”

The claimant also introduced, at the hearing, medical reports prepared by Dr. Gerald McDonald, which detailed the claimant’s condition, including its history, and expressed the opinion that the condition was attributable to her injury in January 1977.

The Commission’s findings were that the claimant’s award for permanent disability should be increased to reflect a 25% loss of use of the leg and that she was entitled to temporary disability compensation from October 26, 1978, to January 1, 1979. As stated, the Commission also imposed penalties under sections 16, 19(k) and 19(Z) based on the CTA’s not having paid temporary disability compensation. The circuit court set aside penalties under section 19(1). It confirmed the findings as to the other penalties and confirmed the Commission’s findings under section 19(h). The section 19(h) award was not challenged in the circuit court or here. The CTA appealed only from the imposition of penalties. We conclude that the Commission’s imposition of penalties was contrary to the manifest weight of the evidence and that the circuit court should have set aside all of the penalty findings.

In Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, this court held that penalties may not be imposed on an employer for a delay in the payment of temporary disability compensation prior to an adjudication of liability if the nonpayment was based on a reasonable and good-faith challenge to liability. Stevenson would have been entitled to temporary total disability compensation only if the disability was the result of injury related to her employment by the CTA. See Rogers v. Industrial Com. (1980), 83 Ill. 2d 221, 223; Union Starch & Refining Co. v. Industrial Com. (1967), 37 Ill. 2d 139.

We are persuaded from a review of the record that there was a not unreasonable request by the CTA for a medical report connecting the claimant’s surgery and disability with the 1977 injury. This is evidenced by the exchange of letters, particularly by the CTA’s letter of February 20, which was completely explicit in requesting connecting medical evidence. There is nothing to show bad faith on the part of the CTA in its request. The claimant had left her CTA employment a year before her hospitalization and surgery. Her attorney had filed a section 19(h) petition in May 1978 but had taken no action other than to continue the matter four times.

The claimant contends that proof of causation was supplied by sending Dr. Sereleas’ “attending physician’s statement” on February 16. A copy of this form statement is in the record. It names the surgical procedures performed but does not connect the surgery or condition to the 1977 accident. The form notes the original compensation claim number and contains the physician’s statement for professional services rendered the claimant. It states only the conclusion that claimant’s condition is “due to injury or sickness arising out of patient’s employment.” There is no statement that the claimant’s condition arose out of the injury of 1977. The CTA correctly says that until the hearing there was no evidence that Stevenson’s condition was due to her old injury and not to a new knee injury in other employment. Significantly, at the section 19(h) hearing the claimant did not rely on Dr. Sereleas’ form statement. Instead, on the issue of causation, the claimant introduced a detailed report by another physician, who had examined Stevenson only a month before.

The Commission’s finding that temporary disability compensation was withheld unreasonably, vexatiously and without good cause is contrary to the manifest weight of the evidence. That finding and the imposition of penalties and fees are hereby set aside. The portion of the circuit court’s judgment that confirmed the imposition of penalties and fees under sections 19(k) and 16 is reversed. The balance of the judgment is affirmed.

Affirmed in part and reversed in part.


source: Caselaw Access Project

author: MR. JUSTICE RYAN

license: Public Domain

text:
    (No. 53856.
    THEODORE R. DeADWYLER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (The Board of Education of the City of Chicago, Appellee).

      Opinion filed September 30, 1981.

      Theodore R. DeAdwyler, of Chicago, pro se.

    Michael J. Murray, of Chicago (Reginald D. Taylor, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Theodore R. DeAdwyler, the claimant, was employed by the Board of Education of the city of Chicago (Board) as a social studies teacher for seventh and eighth grade students. Claimant filed an application for adjustment of claim with the Industrial Commission which alleged that on March 8, 1979, he suffered “[mjental stress and strain plus emotional trauma” as a result of an “assault” committed against him by a student. The application was filed without the aid of counsel, and claimant has conducted this case in its entirety pro se.

The arbitrator found that the claimant failed to prove by a preponderance of the evidence that he sustained accidental injuries arising out of and in the course of his employment. The application was dismissed and the claim for compensation denied. The arbitrator’s findings were affirmed on review and confirmed by the circuit court of Cook County on certiorari to the Industrial Commission. The claimant brings this appeal pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)).

In Pathfinder Co. v. Industrial Com. (1976), 62 Ill. 2d 556, this court allowed recovery for a psychological injury alone. The court did so, however, after a careful review of previous holdings of this court and decisions of other jurisdictions which had allowed such recovery. The court in Pathfinder was careful to point out the potential for abuse in cases of alleged psychological injury through fabrication, but went on to observe that “[t]he claimant [in Pathfinder] experienced a sudden, severe emotional shock, which would be the reaction of a person of normal sensibilities who, attempting to aid an injured co-worker, reached in and drew a severed hand from the press.” It was on this evidence that the award was upheld. 62 Ill. 2d 556, 567-68.

In Board of Education v. Industrial Com. (1981), 83 Ill. 2d 475, we reversed an award of compensation based upon psychological injury resulting from verbal assaults because the record, taken as a whole, failed to show by a preponderance of the evidence that the claimant had suffered a compensable injury. (83 Ill. 2d 475, 479.) We there held that although the testimony of the claimant, standing alone, is sufficient to sustain an award, the proof offered must, nonetheless, show the claimant’s entitlement to receive compensation. 83 Ill. 2d 475, 479.

In the case now before us the claimant testified that on March 8,1979, during the course of a class session, a student seated in the back of the room accused the claimant of being in possession of a marking pen which allegedly belonged to the student. The student then “assaulted” the claimant by threatening to use whatever means were necessary to recover his property. At this point, the claimant left the room and summoned the school authorities. The police were eventually called to the school by the claimant, who filled out an “employee assault report,” but no further altercation or confrontation between the claimant and the student occurred. The claimant continued his teaching duties without interruption until April 20, 1979, after which time he simply did not return to work. No medical records were offered into evidence, and claimant admitted that he never consulted a physician or psychiatrist regarding his condition.

In support of his claim, the claimant introduced into evidence at arbitration a letter sent to the Board in connection with his application for a leave of absence necessitated by this assault. The document is authored by the claimant and designates himself as a “practitioner” below the signature line. The body of the letter is a self-diagnosis of psychological injury resulting from the “assault” and recommends that the claimant receive a minimum of 1-year leave from his teaching duties. In response to this letter, the Board requested that the claimant submit a license or other credentials as evidence of his status as a “practitioner.” The claimant then sent to the Board a “license to preach” and a “certificate of ordination” issued by the Shiloh Baptist Church; a document, not under seal, purporting to appoint the claimant as a “Reserve Commissioned Officer” in the United States Army; a certificate evidencing satisfactory completion of instruction given at the Chaplain School, Fort Slocum, New York; a Bachelor of Divinity degree issued by Shaw University; and a teacher’s certificate. All of these documents were admitted into evidence at arbitration, but none of them discloses that the claimant is in any way qualified to make a medical diagnosis of any kind or otherwise offer an expert opinion as to his condition. Claimant, nonetheless, maintains in this appeal that he is entitled to make a self-diagnosis and treat himself under section 8(a), which provides:

“When an employer and employee so agree in writing, nothing in this Act prevents an employee whose injury or disability has been established under this Act, from relying in good faith, on treatment by prayer or spiritual means alone, in accordance with the tenants and practice of a recognized church or religious denomination, by a duly accredited practitioner thereof, and having nursing services appropriate therewith, without suffering loss or diminution of the compensation benefits under this Act.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a).)

We need not decide the merits of this contention, however, because the section quoted above plainly requires that a claimant first establish a compensable “injury” under the Act.

The documents mentioned above and the claimant’s testimony were the only evidence at arbitration. On review, the claimant introduced no further evidence in support of his claim. The Commission affirmed and adopted the arbitrator’s dismissal of the application based upon the claimant’s failure to prove that he sustained an accidental injury arising out of and in the course of his employment.

The question of whether an employee has sustained a work-related injury is one of fact to be determined by the Industrial Commission, and its determination will not be overturned unless contrary to the manifest weight of the evidence. (Skinner v. Industrial Com. (1978), 72 Ill. 2d 394, 398; Kerz v. Industrial Com. (1972), 51 Ill. 2d 319, 322; Chicago Tribune v. Industrial Com. (1969), 42 Ill. 2d 476, 478.) In the present case, notwithstanding the fact that the respondent offered no evidence in rebuttal, the entire testimony before the Commission, together with the circumstance of the event as evidenced by the record, made the inference that no work-related injury had occurred a permissible one, which we find was not contrary to the manifest weight of the evidence. The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 54186.
    JOSE A. ESPINOSA, Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellant.

      Opinion filed September 30, 1981.

      Edward J. Kionka, of Columbia, and Pope 8c Driemeyer, of Belleville (Thomas W. Alvey, Jr., of counsel), for appellant.
    John T. Pierce, Jr., of Paul L. Pratt, P.C., of East Alton, for appellee.
    Baker 8c McKenzie, of Chicago (Francis D. Morrissey and Paul B. O’Flaherty, Jr., of counsel), for amici curiae Atchison, Topeka 8c Santa Fe Ry. Co. et al.

    Edward W. Cleary, of Scottsdale, Arizona, and Paul L. Pratt, of East Alton, for amici curiae Brotherhood of Maintenance of Way Employees et al.

    John J. Naughton, of Henslee, Monek 8c Henslee, of Chicago, for amicus curiae United Transportation Union.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This is an action for damages under the Federal Employers’ Liability Act (45 U.S.C. § 51 et seq. (1976)) in which the sole issue before us is whether the trial judge’s denial of defendant’s motion to dismiss on forum non conveniens grounds constituted an abuse of discretion.

Plaintiff, Jose A. Espinosa, was employed by defendant, Norfolk and Western Railway Company, as a section foreman in its Melvindale, Michigan, yards. Melvindale is a Detroit suburb located some 530 miles from Edwardsville, the county seat of Madison County, Illinois. While so employed plaintiff was injured when his foot and leg went through planking covering the platform of a subsurface scale in the railroad yards. Plaintiff, who resided in the Detroit area, reported the injury to his supervisor and sought treatment from a medical group in Allen Park, Michigan, which served the railroad as the company doctors. Plaintiff was hospitalized twice while in their care, but his condition worsened. He was then referred by his union representative to an orthopedic specialist, Dr. George Schoedinger of St. Louis, Missouri. Dr. Schoedinger diagnosed a lumbar disc condition, performed surgery in St. Louis on plaintiff’s low back and examined him periodically in his St. Louis office during the following 14 months.

The union representative also referred plaintiff to his present counsel, the regional attorney for the Brotherhood of Maintenance of Way Employees. Plaintiff’s attorney offices in East Alton, Illinois, located in Madison County, and suit was filed against the railroad in that county. The railroad’s motion to dismiss, predicated on forum non conveniens grounds, was denied, and its later motion to reconsider that ruling on the basis of additional facts was also denied. Subsequently, after requesting and receiving a response from plaintiff, this court denied a motion for leave to file an original action for a writ of mandamus to compel dismissal of the Madison County complaint. The case was thereafter tried, and both preceding and during trial the railroad unsuccessfully renewed its motions. The bench trial resulted in a $275,000 judgment for plaintiff. The railroad appealed to the appellate court, which affirmed (87 Ill. App. 3d 1147), and we allowed its petition for leave to appeal.

Much evidence was submitted on the forum non conveniens issue in the form of affidavits, documents and testimony concerning the identity and place of residence of potential witnesses, the distance between the place of injury and place of filing suit, the cost of pretrial discovery trips to Michigan, the inconvenience and additional cost to the defendant in trying a case so far from the site of occurrence, and the condition of the court dockets in Madison County Several references to the “Wabash Hospital Association” appear in this record. Although it also appears that Dr. Schoedinger was an “Association doctor,” and plaintiff testified that he was a member of the Association and that it paid part of his hospitalization costs, there is no explanation of the purpose, type or manner of operation of the Association. Consequently its relevance, if any, to the issue before us cannot be determined.

It was established that, except for Dr. Schoedinger, all occurrence and post-occurrence witnesses resided in the Detroit area, although one witness had since retired and moved to Michigan’s upper peninsula, some 450 miles from Detroit. Of those witnesses, three of the five members of plaintiff’s crew who were present on the date of the accident testified at trial. Two other employees, the supervisor and a building foreman, testified concerning the condition of the scale platform. These witnesses were required to travel from Michigan to Madison County for one or more days of the trial. Prior to the occurrence in question here, plaintiff had been treated for back problems by four Michigan doctors. Though it apparently was later determined that those problems were not related to the occurrence or plaintiff’s current condition, the railroad’s attorneys investigated that possibility by discovery and deposition. While the Michigan doctors were not called as witnesses, the evidence deposition of one doctor was offered and admitted. In the course of the investigation and discovery process defendant’s Madison County counsel made five trips to Michigan and communicated by mail and telephone with Michigan residents. Cost figures were disputed, but defendant’s attorney testified to out-of-pocket expenses for these trips aggregating over $1,400 and that a locally occurring case could be prepared in about one-half the time this case had required, thus substantially reducing defendant’s legal expense.

Among the evidence relating to the claimed burden imposed upon the Madison County taxpayers and court system was defendant’s exhibit No. 1 consisting of a list of FELA cases filed in that county during 1976,1977 and 1978. Defendant’s witness, Lyndia Glassgow, a St. Louis lawyer, testified that she had been employed by defendant to examine the records of the circuit clerk’s office in Madison County and list selected FELA cases against railroads for those years, showing plaintiff’s residence, place of injury, and lawyer so far as they could be ascertained from the record. Her resulting list showed a total of 438 such cases of which at least 156 involved injuries occurring outside the State of Illinois. In 83 of the 156 cases the plaintiffs resided in States other than Illinois. Of those cases involving both nonresident plaintiffs and non-Illinois places of injury, plaintiff’s lawyer had filed 47. Several were from Mississippi, Texas and Ohio, although counsel for plaintiff testified that the Mississippi and Texas cases involved accidents occurring within three hundred miles of Madison County. He also testified that the greatest distance involved an injury occurring in Ohio, and that Detroit was the next most distant place of injury. He further testified that he was regional counsel for two railroad unions and could “sign up a case anywhere in the country,” but his firm tried to limit itself to areas within 400 to 500 miles of the Alton airport. While not admitted to practice in Michigan, he and his firm members had, together with local counsel, filed and tried eight or nine cases there. Similarly, cases were filed and tried in other States, counsel testifying that the determining factor was the place where the significant medical treatment occurred. It was established by his testimony and an affidavit tendered as an exhibit that most of the cases his firm filed were settled, a few being transferred or dismissed. Only nine were tried to verdict during the three-year period of 1976-78.

This court has considered the doctrine of forum non conveniens with some frequency in recent years, and many of those cases have involved FELA actions. Plaintiff’s argument that the States are precluded by the Federal Constitution and statutes from applying the doctrine to FELA cases has been repeatedly urged and rejected in this court. People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 521, implicitly recognized the propriety of applying the doctrine in a proper case, and this court in Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 159, in a decision unanimous on this point, expressly rejected the argument now made and held the doctrine could be applied by State courts in FELA cases. Our later decisions are in accord (see, e.g., Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1; People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178), and we need not reconsider the issue here.

The railroad has its principal place of business in Virginia, and does business in Michigan and Illinois, among other States. Both States thus have jurisdiction under the FELA (45 U.S.C. §56 (1976)), and available courts, but forum non conveniens always assumes more than one forum with power to hear the case. (People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 112, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052.) The inquiry thus centers upon which of multiple forums is most convenient under the facts of the case. This court has described the doctrine in Adkins v. Chicago, Rock Island Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514:

“Forum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration. In the application of these basic considerations a court may decline jurisdiction of a case ‘even though it may have proper jurisdiction over all parties and the subject matter involved’ (Whitney v. Madden (1948), 400 Ill. 185, 189, cert. denied, 335 U.S. 828, 93 L. Ed. 382, 69 S. Ct. 55), whenever it appears that there is another forum that can better ‘serve the convenience of the parties and the ends of justice.’ (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606.)”

The factors relevant to consideration of a forum non conveniens motion were reviewed in Giliberto, where we quoted at some length from Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843:

“ ‘If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. 999 The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, “vex,” “harass,” or “oppress” the defendant by inflicting upon him expense or trouble not neccessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.
Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.’ ” (74 Ill. 90, 110-11.)

The court also there indicated that:

“Whether particular facts and circumstances warrant dismissal of a case on the ground of forum non conveniens rests primarily within the discretion of the trial court. The court’s decision will be reversed on review if it can be said that in deciding as it did there was an abuse of discretion. Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 4; Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606; Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 159; Whitney v. Madden (1948), 400 Ill. 185, 190.” (74 Ill. 2d 90, 110.)

See, too, Restatement (Second) of Conflict of Laws § 84(b) and Reporter’s Note (1971).

We approved in Giliberto (74 Ill. 2d 90, 111) the statement from Gilbert that unless the balance of the relevant factors is strongly in favor of defendant, plaintiff’s choice of forum should rarely be disturbed. The Restatement views plaintiff’s right to select the forum as one of the two most important factors to be considered. (Restatement (Second) of Conflict of Laws §84(c) (1971).) The second factor emphasized by the Restatement and many cases is the availability of an alternative forum. (Restatement (Second) of Conflict of Laws § 84(c) (1971); Annot., 60 A.L.R.3d 964, 982-85 (1974).) The Michigan forum was, of course, available here at the time of the rulings on the motions to dismiss in this case, and the question is whether the trial judge’s denial of the motion can fairly be characterized as an abuse of discretion.

As earlier noted in our Giliberto quotation, and in Fender, the effect of this type of litigation upon local residents and facilities is a significant consideration. Do such cases contribute to court congestion? Is the disposition of cases unreasonably delayed? An informational pamphlet, apparently intended for prospective jurors or court visitors, was admitted into evidence as plaintiffs exhibit No. 6. Its text had been written by the trial judge, and he stated the statistics were about a year or a year and a half old (p. 2). It indicates some 53,000 cases were filed annually in the Madison County circuit court, “approximately 900 of which will be major Civil Jury cases involving millions of dollars”; that “Although Madison County ranks fifth in population in the state, for the past three years it has been first in the state, outside of Cook County, in the number of Civil Jury trials”; that most of the 53,000 cases are “disposed of and completed during the year in which they are initiated” (p. 4); that some 3,000 jurors are called annually (p. 2), and that each judge in the civil division has some 400 cases on his docket (p. 6), of which about 80% will be settled before verdict. Plaintiff’s counsel testified that while the trial of this case commenced about 20 months after the filing date, he believed the parties, if prepared, could go to trial before this trial judge in as little as 14 months from filing date. Defendant points out, however, that the 1977 annual report of our administrative director to this court lists the average time elapsing between filing and verdict for those Madison County cases terminated by jury verdict as 30.3 months. The 1978 report (this case was tried in January 1979) indicates the elapsed time between filing and jury verdict had increased to 32.3 months, the 1979 report shows a 31.9-month period, and the unpublished 1980 figures are 32.4 months. Case filings in Madison County have increased in recent years (as is generally true throughout the State) with the 742 law jury cases over $15,000 filed in 1976 having expanded to 1,025 in 1979, dropping to 907 in 1980. 1976, 1977, 1978 and 1979 Annual Reports of the Administrative Director to the Supreme Court of Illinois.

The parties have discussed at considerable length their views of the several factors noted in Giliberto as relevant to a determination of forum non conveniens questions. Rather clearly favoring defendant’s position, in our judgment, are the facts of plaintiff’s nonresidence, that the injury occurred in Michigan more than 500 miles from the present forum, that not a single witness is subject to compulsory process in Illinois, and that the Michigan courts and process are available to plaintiff. Nor can it be disputed that, to some extent, the Illinois trial subjected defendant to greater expense and inconvenience. Similarly, we believe the filing and trial of this action in Madison County imposed an additional and unwarranted burden upon its judicial system and its taxpayers. The added burden of a single case is, of course, not great, but we have before us the fact of the filing of a substantial volume of cases involving nonresident plaintiffs and out-of-State injuries. We neither hold nor imply that all of those cases have as little connection with Illinois as this one, but we cannot ignore the not-insubstantial increase in the time lapse from filing to verdict in Madison County law jury cases over $15,000 — an increase from 26 months in 1976 to 32.3 months in 1980.

In Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 6, this court stated: “A significant consideration in ruling upon such a motion is, of course, the condition of the calendar in the forum in which the action is pending.” The court there characterized as “very serious” an average delay of 21.7 to 22.5 months from date of filing to date of verdict. (49 Ill. 2d 1, 6.) Courts generally have shared a concern “in protecting finite judicial resources” and the efficient functioning of their judicial systems, so that they are not impeded by nonresident litigation to the extent that their availability to local citizens is impaired or diminished. Silver v. Great American Insurance Co. (1972), 29 N.Y.2d 356, 278 N.E.2d 619, 328 N.Y.S.2d 431; Outboard Marine Corp. v. Superior Court (1976), 59 Cal. App. 3d 434, 443, 130 Cal. Rptr. 642, 646 (concurring opinion); Annot., 60 A.L.R.3d 964, 995-98 (1974).

In these times of constantly increasing litigation (the 1979 Administrative Director’s report indicates a total of 3,831,957 cases filed in this State as contrasted with 3,464,747 in 1976 or an increase of nearly 100 cases per judge), delay in disposing of cases is a critical factor. It is, of course, elementary that, as more cases are filed, delay in disposition will increase unless facilities and personnel are also increased. And, if facilities and personnel are increased, budgets, appropriations and taxes must likewise expand.

The high volume of nonresident FELA cases filed in Madison County, coupled with the frequency with which we are asked to permit the filing of original mandamus actions to vacate denials of forum non conveniens motions, seems to support Mr. Justice Jackson’s observations in his concurring opinion in Miles v. Illinois Central R.R. Co. (1942), 315 U.S. 698, 706-07, 86 L. Ed. 1129, 1135, 62 S. Ct. 827, 831-32:

“[T]he real issue is whether a plaintiff with a cause of action under the Federal Employers’ Liability Act may go shopping for a judge or a jury believed to be more favorable than he would find in his home forum. An advantage which it is hoped will be reflected in a judgment is what makes plaintiffs leave home and incur burdens of expense and inconvenience that would be regarded as oppressive if forced upon them. And that is what makes railroads seek injunctions such as this one.
The judiciary has never favored this sort of shopping for a forum. It has sought to protect its own good name as well as to protect defendants by injunctions against the practice of seeking out soft spots in the judicial system in which to bring particular kinds of litigation. But the judges with lawyerly indirection have not avowed the interest of the judiciary in orderly resort to the courts as a basis for their decision, and have cast their protective doctrines in terms of sheltering defendants against vexatious and harassing suits. This judicial treatment of the subject of venue leads Congress and the parties to think of the choice of a forum as a private matter between litigants, and in cases like the pressent obscures the public interest in venue practices behind a rather fantastic fiction that a widow is harassing the Illinois Central Railroad.
[A] 11 choices of tribunal are commonly used by all plaintiffs to get away from judges who are considered to be unsympathetic, and to get before those who are considered more favorable; to get away from juries thought to be small-minded in the matter of verdicts, and to get to those thought to be generous; to escape courts whose procedures are burdensome to the plaintiff, and to seek out courts whose procedures make the going easy.”

We would add that ordinarily plaintiffs’ zeal in those respects is matched only by defendants’ efforts in seeking to avoid such fora.

We recognize that plaintiff’s right to select the forum is a substantial one which, as we observed in Giliberto, should not be disturbed unless the balance strongly favors defendant. Too, plaintiff, in making a decision, need not disregard the fact that the history of similar litigation in a possible forum augurs more favorably for him than other possible fora, although that factor is not one which we may consider. (Hemmelgarn v. Boeing Co. (1980), 106 Cal. App. 3d 576, 585, 165 Cal. Rptr. 190, 195, St. Louis-San Francisco R. Co. v. Superior Court (Okla. 1955), 290 P.2d 118.) We emphasize also that it is not our intent to in any manner interfere with plaintiff’s choice of counsel. But those rights, important as they are, cannot be permitted to override the public interest in, and need for, an orderly, efficiently operated judicial system. (Horn v. Rincker (1981), 84 Ill. 2d 139, 150-51; People ex rel. Campagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 112-13, cert. denied (1979), 441 U.S. 936, 60 L. Ed. 2d 660, 99 S. Ct. 2052; Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511; Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1; People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178; Carr v. Bio-Medical Applications of Washington, Inc. (D.C. 1976), 366 A.2d 1089; Civic Southern Factors Corp. v. Bonat (1974), 65 N.J. 329, 322 A.2d 436; Safeway Stores, Inc. v. Martin (Okla. 1974), 530 P.2d 131; Atchison, Topeka & Santa Fe Ry. Co. v. District Court (Okla. 1956), 298 P.2d 427, cert. denied (1956), 352 U.S. 879, 1 L. Ed. 2d 80, 77 S. Ct. 101; Norman v. Norfolk & Western Ry. Co. (1974), 228 Pa. Super. 319, 323 A.2d 850.) Of particular interest, considering the circumstances before us, is the January 23,1981, order of the United States Court of Appeals for the Seventh Circuit in Louisville & Nashville Railroad Company v. Beatty, Nos. 80—2604, 80—2605, and 80—2606. That order awarded writs of mandamus directing the trial judge in this case, who had subsequently been appointed to the United States District Court for the Southern District of Illinois, to transfer to other districts three FELA cases. In each of those cases the injury occurred in Kentucky or Ohio, and the witnesses, as in the case before us, resided outside Illinois, and thus beyond the reach of a subpoena from the forum court. Judge Beatty denied motions to transfer, believing that the “inconvenience shown did not outweigh the plaintiff’s privilege of choosing his forum.” In awarding mandamus and ordering transfer, the court of appeals noted that “other than the propriety of venue in the Southern District of Illinois, the case has no nexus with that district except for the residence of plaintiff’s counsel.” It concluded that denial of the motions was “so clear and gross an abuse of discretion as to be grounds for mandamus relief.”

Given the circumstances of this case involving a plaintiff residing and an accident occurring hundreds of miles from Madison County, witnesses, none of whom are subject to Illinois subpoenas and all but one of whom also live hundreds of miles from the trial site, the availability of the Michigan courts and process, the additional expense to defendant and the added burden upon Madison County courts and personnel, we have no doubt that denial of a motion to dismiss upon forum non conveniens grounds would constitute an abuse of discretion. We have concluded, however, not to reverse the judgment in this case for several reasons. The statistics we have cited from the annual report of our administrative director indicating the extent of the increasing delay in disposition of Madison County law jury cases were not before the trial court, nor were the later figures even available at the time the trial judge ruled on the motions. Too, there is no argument here as to liability or the amount of damages. And, furthermore, this court did deny a pretrial application for leave to file an original action to vacate denial of the forum non conveniens motion. While our denial is ordinarily meaningless in a consideration of an alleged error on appeal, it is not totally irrelevant here where, by reversing, we would be punishing plaintiff for subjecting the witnesses and defendant to expense and inconvenience which we could have prevented but did not. While a plaintiff selecting an unnatural forum takes a calculated risk of reversal (Adkins; Price v. Atchison, Topeka & Santa Fe Ry. Co. (1954), 42 Cal. 2d 577, 268 P.2d 457, cert. denied (1954), 348 U.S. 839, 99 L. Ed. 661, 75 S. Ct. 44; Restatement (Second) of Conflict of Laws § 84(c) (1971)), that reversal ought not to occur where it would result in part from facts not presented to the trial judge.

The judgment of the appellate court is accordingly affirmed.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (Nos. 54028, 54182.
    HARRY L. FORD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (International Harvester Co., Appellee).

      Opinion filed September 30, 1981.

      Elmo E. Koos, of Peoria, for appellant.
    Henry D. Noetzel & Associates, Ltd., of Peoria (John E. Mitchell, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Petitioner, Harry L. Ford, filed two applications for adjustment of claim seeking worker’s compensation for injuries suffered in separate accidents while in the employ of respondent, International Harvester Company. After a consolidated hearing, an arbitrator for the Industrial Commission found that as to each occurrence petitioner had sustained accidental injuries arising out of and in the course of his employment. As the result of injuries suffered on June 6,1975, petitioner was awarded compensation for a period of 20 weeks for the permanent loss of 10% of the use of his left leg. He was awarded compensation for 46 2/7 weeks for temporary total incapacity resulting from an occurrence on July 31, 1975. On review, after taking additional evidence, the Industrial Commission reversed the arbitrator’s awards, and on certiorari the decision of the Commission was confirmed by the circuit court of Peoria County. Petitioner appealed each claim separately (73 Ill. 2d R. 302(a)), and we ordered them consolidated.

Petitioner was employed by respondent as a material checker. On June 6, 1975, he stepped off a pallet box, turned his left leg and twisted his back. Thereafter he noticed pain in his back and knee and had problems walking. Petitioner testified before the arbitrator that he completed his shift but mentioned the injury to his immediate foreman, Marty Wilson. He was treated for the injury by Dr. Franz Strauch.

On July 31, 1975, while petitioner was moving from pallet to pallet checking material, he stepped back and his left foot went into a hole where a forklift truck had moved a block out of the floor. He immediately felt a severe pain in his left hip and leg, and experienced difficulty in walking and moving around. He testified that he again mentioned the injury to his foreman and that he again received treatment from Dr. Strauch. Petitioner testified that he missed work several days because “I just was hurting and I didn’t feel like going in and working.” In November 1975 he was discharged for absenteeism. On cross-examination petitioner testified that he did not seek treatment at a first-aid station at respondent’s plant on June 6,1975, but that he did report to the nursing station on approximately June 9,1975. He also testified that he saw a plant physician, Dr. Quinones, who accused him of “sandbagging.”

Two physician’s reports offered by petitioner were received into evidence. One concerned a neurological consultation with Dr. Floyd S. Barringer and noted that petitioner had a previous history of work-related injury to the lower back in 1968. The report referred to atrophy and weakness in petitioner’s left leg and predicted that he would “almost certainly need a brace for the left lower extremity.” It was not clear from this report whether petitioner’s symptoms were the result of his most recent injuries or whether they were related to his 1968 injury.

The report of Dr. Strauch also made reference to petitioner’s previous injury. It described a defect in a ligament of petitioner’s left knee and also noted defects in the ligaments of the lower back which could be responsible for some of petitioner’s leg pain. Dr. Strauch was of the opinion that petitioner “had an injury from work such that he is now unemployable.”

Marty Wilson, petitioner’s immediate superior on the dates in question, testified for respondent. He said that he did not work on June 6, 1975, because he was sick. He did not recall any conversation with petitioner regarding a work-related injury on July 31, 1975. He also testified that when an injury is reported to him, he directs the injured person to the first-aid station unless treatment has already been rendered.

On review respondent called several additional witnesses, one of whom was the head nurse at respondent’s plant. Medical records, introduced into evidence, contained no entry showing that petitioner had been treated at the plant on or about June 6,1975, June 9,1975, or July 31,1975. Dr. Quinones testified that he had never accused petitioner of sandbagging.

Petitioner introduced the evidence deposition of Dr. Barringer. He testified that he first treated petitioner for a work-related injury in 1970 and in 1972 performed surgery to remove a ruptured disc from between the fourth and fifth lumbar vertebrae on petitioner’s left side. Later that year petitioner was operated on again and more disc material was removed from the same area.

Dr. Barringer next saw petitioner in September 1976 and examination revealed wasting in the left leg and weakness in the left foot and leg. He saw petitioner again in December of that year and noted “severe” weakness in the left foot, as well as numbness, and more pronounced wasting in the left leg. He testified that petitioner “very well possibly had a ruptured disc at L-5 and S-l on the left side, which was not the same location that he had before.” When asked on cross-examination whether he was testifying that the injuries petitioner incurred in 1975 were aggravations of a preexisting condition, Dr. Barringer testified that “it was more than that, this was at L-5 and S-l. It was more than an aggravation. It was another disc at another interspace.”

The circuit court, in confirming the decision of the Industrial Commission, noted a motion to quash the writ of certiorari with respect to each case. It ordered that the motion be allowed and that the record of the Industrial Commission be sustained.

Petitioner first contends that the circuit court was without jurisdiction to allow a motion to quash a writ of certiorari because no such motion was ever filed by respondent. While we agree that allowance of a motion to quash was not the proper order, the effect of the circuit court’s action was to confirm the decision of the Industrial Commission. However, we need consider only the correctness of the circuit court’s judgment and not the form of its order.

Petitioner contends that the evidence clearly established that his injuries arose out of and in the course of his employment and that respondent did not adduce any evidence that they were incurred in any other manner or at any other time.

In Hiram Walker & Sons, Inc. v. Industrial Com. (1978), 71 Ill. 2d 476, 479, concerning a reviewing court’s function in cases such as this, the court said:

“The determination of disputed facts and the drawing of reasonable inferences from the evidence in workmen’s compensation cases are the province of the Industrial Commission, and its findings regarding the nature and extent of a disability will not be set aside unless they are contrary to the manifest weight of the evidence. (A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 246; Parris v. Industrial Com. (1977), 69 Ill. 2d 31, 37-38; Ferrin Cooperative Equity Exchange v. Industrial Com. (1976), 64 Ill. 2d 445, 448-49.) In reviewing those findings and conclusions the function of a court is limited to determining whether they are contrary to the manifest weight of the evidence. Only in the event they are may the courts intervene. (A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 245-46.)”

Measured against this standard, the decision of the Commission was correctly confirmed by the circuit court. It is true, as petitioner contends, that respondent presented no evidence tending to prove that petitioner was injured in another manner or at another location. However, it is within the province of the Industrial Commission to disbelieve a claimant where, as here, a number of factors combine to undermine his credibility. (See Watts v. Industrial Com. (1979), 77 Ill. 2d 30, 34; Scott v. Industrial Com. (1979), 76 Ill. 2d 183.) Petitioner’s veracity was cast into doubt by the contrary testimony of Marty Wilson and Dr. Quinones, by the absence of corroborating entries in the plant medical records, by petitioner’s long history of absenteeism and his dismissal therefor, and finally by the fact that petitioner’s applications for adjustment of claims were not filed until after he was dismissed for absenteeism.

For the reasons stated the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 53613.
    ROBERT FULLER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Chicago Heights Steel, Division of General Bronze, Appellee).

      Opinion filed September 30, 1981.

      Edward J. Bradley, Jr., of Bradley, Bradley & Nedderman, of Chicago, for appellant.
    Kane, Doy & Harrington (Arthur O. Kane and John S. Hayes, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

On June 20, 1978, the Industrial Commission denied a petition to vacate a prior order that suspended compensation payments to plaintiff, Robert Fuller. The prior suspension order had been issued on March 28, 1972. The Commission’s order denying the petition to vacate was confirmed by the circuit court of Cook County.

The sole issue is the propriety of the Commission’s refusal to vacate an order, issued over six years earlier, that suspended compensation payments under section 12 of the Workmen’s Compensation Act (Act) (Ill. Rev. Stat. 1977, ch. 48, par. 138.12) to an employee who failed to submit to a physical examination.

The record of the hearing in the case before us reveals that the original file, including the original transcript, was missing. The docket summary disclosed the following facts. An arbitrator awarded plaintiff $76 per week for 64 weeks of temporary total disability and $68 per week for 110 weeks representing 55% permanent loss of use of the left leg resulting from an accident that occurred January 17, 1966. This award was made on January 28, 1970. Review was sought by both plaintiff and defendant, Chicago Heights Steel, Division of General Bronze, after which defendant requested that plaintiff submit to a physical examination under section 12 of the Act. Plaintiff failed to comply, and on March 28, 1972, the Commission entered an order suspending compensation payments due to plaintiff’s failure to submit to the requested examination.

Over six years later, on April 21, 1978, plaintiff filed a petition before the Commission to vacate its 1972 order. It is the Commission’s denial of the petition to vacate, and the circuit court’s subsequent confirmance of the denial, that plaintiff is now appealing.

Plaintiff argues that by giving the Commission the authority to suspend compensation benefits the legislature did not intend to grant the Commission the power to terminate them. Plaintiff asserts that because he is now willing to submit to a physical examination the 1972 suspension order should be vacated.

Section 12 of the Act provides:

“If the employee refuses so to submit himself to examination or unnecessarily obstructs the same, his right to compensation payments shall be temporarily suspended until such examination shall have taken place, and no compensation shall be payable under this Act for such period.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.12.)

According to plaintiff’s interpretation of the statute, a suspension order would hold payments in abeyance, which would have the effect of allowing a claimant to wait indefinitely to comply with section 12 of the Act. Section 12 is intended to compel compliance by the claimant. (See Paradise Coal Co. v. Industrial Com. (1922), 301 Ill. 504; Jackson Coal Co. v. Industrial Com. (1920), 295 Ill. 18; Hafer Washed Coal Co. v. Industrial Com. (1920), 293 Ill. 425.) Although the statute does not provide the time within which an employee must comply, we do not construe the term “temporarily suspended” as contemplating a six-year waiting period for that compliance.

A prohibition against a six-year delay is necessary for several reasons. Any attempt to establish the right to compensation based on an injury occurring more than six years earlier (in this case, the injury occurred 12 years before plaintiff’s motion to vacate the suspension) will encounter, in some instance, insurmountable problems of proof. For example, such delay increases the difficulty in ascertaining the nature and extent of the disability attributable to the original injury. Moreover, as a practical matter, employers would never know what kind of future liabilities they might incur and would have difficulty in computing appropriate reserves. Finally, if there were no limit to a claimant’s time to comply, administrative problems would arise. The Commission would have to keep a file on every noncomplying claimant, perhaps indefinitely, until such compliance occurred. One of the potential problems of that situation is evident in this case, where the original file and transcript were missing.

Here, plaintiff seeks relief where his situation was brought about by his own inaction. Under the circumstance of this case, we hold it was unreasonable for plaintiff to wait six years before seeking to comply with the order to submit to an examination. Accordingly, the Commission was not in error in denying the petition to vacate its 1972 suspension order, and the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


text:
    (No. 54302.
    GENERAL DYNAMICS CORPORATION v. ZION STATE BANK & TRUST COMPANY et al. (Beverly Jensen, Appellant, v. Bruce Boyke, Appellee).

      Opinion filed September 30, 1981.

      William E. Hartnett, of Waukegan (Joseph W. Griffin, of counsel), for appellant.
    Smythe & Lee, of Waukegan, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Material Service Division of General Dynamics Corporation brought this action in the circuit court of Lake County to enforce a mechanic’s lien, ultimately joining as defendants, among others, Pate’s Drywall and Painting, Inc. (Pate’s Drywall), Bruce Boyke and Beverly Jensen. Beverly Jensen (hereafter plaintiff) filed a counterclaim which, as amended, alleged that she was the assignee of a contract between Pate’s Drywall and Bruce Boyke (hereafter defendant) and sought to recover from defendant payment under that contract. Pursuant to a settlement agreement, the complaint filed by Material Service was dismissed, leaving only the counterclaim still pending. Following a bench trial the circuit court entered judgment in favor of plaintiff Jensen and against defendant Boyke in the sum of $15,713.51. Defendant appealed and plaintiff cross-appealed. The appellate court, in a Rule 23 order (73 Ill. 2d R. 23), reversed (89 Ill. App. 3d 1204), and we allowed plaintiff’s petition for leave to appeal.

In early 1968, defendant entered into an agreement with Pate’s Drywall to install drywall in an apartment building owned by defendant, which was being constructed at 805 Baldwin in Waukegan. On March 7 and March 13, 1968, defendant and Pate’s Drywall signed two virtually identical written contracts specifying the terms and conditions of their agreement, which set the price for the work at $43,500. It appears from the testimony that work was begun by employees of Pate’s Drywall in March or April of 1968 and continued until late in the summer of 1968, when defendant demanded that Pate’s Drywall leave the job. A dispute had arisen concerning the length of time being spent on the job and the quality of workmanship. The dry walling of defendant’s building was thereafter completed by other workmen hired by defendant.

Plaintiff was a shareholder in and vice-president of Pate’s Drywall but did not supervise any of the work on the job in question.

Sometime after the written contracts with defendant were executed, Pate’s Drywall borrowed money from the Bank of Waukegan. Plaintiff introduced photocopies of three notes drawn in favor of the bank executed by Neal Pate and plaintiff for the corporation. One note was for $24,000 and due on May 21, 1968; the second was in the amount of $15,909.92 and due on July 1,1968; and the third was due on July 15, 1968, and drawn in the amount of $6,000. This third note reflects payments and a balance due of $5,090.79. Each of these notes was signed also on the back by plaintiff and Neal Pate as guarantors. In addition, each of these three notes introduced into evidence bore the following handwritten notations on the back:

“Pay to the order of_______________ without recourse either express or implied Bank of Waukegan R. D. Newland Pres.”

The note due on May 21, 1968, also bore the notation “extended to June 20, 1968.” In the portion reserved for descriptions of collateral, each note referred to assignments of accounts receivable or contracts, and one, the $24,000 note, referred to the contract with defendant.

Plaintiff also introduced three additional notes drawn to the Bank of Waukegan which were originals rather than photocopies. Again, each was signed by plaintiff and Neal Pate both as officers and as guarantors. One note, due July 31, 1968, was in the amount of $24,000; the second was dated July 1, 1968, and due in 30 days and drawn in the amount of $15,909.92; and the third was dated July 15,1968, was due in 30 days and drawn in the amount of $5,090.79. These notes also referred to assignments of receivables on contracts and, again, the $24,000 note referred to the contract with defendant.

Plaintiff introduced two documents, each being styled as an “assignment.” The first, dated March 22, 1968, assigned to the Bank of Waukegan for value received the “contract with reference to Imperial Manor Apartments, Baldwin Street, Waukegan, Illinois between Pate’s Drywall and Painting, Inc. and Bruce Boyke Imperial Towers.” The other, dated April 26, 1968, assigned to the Bank of Waukegan “all existing as well as future accounts receivable for jobs completed and jobs in the process of completion.” Each assignment was executed by plaintiff and Neal Pate for the corporation.

The circuit court found that plaintiff was the assignee of claims of Pate’s Drywall and that Pate’s Drywall had substantially completed the contract in question. However, it allowed defendant a setoff for the sums expended for completion of the drywalling and satisfying the claims of materialmen. The appellate court stated that the record failed to show that the contract security was assigned by the Bank of Waukegan to plaintiff and that the circuit court’s finding that plaintiff was the assignee of the contract was against the manifest weight of the evidence. Because it reversed the judgment on that ground it considered no other issues.

We do not agree with the appellate court that the circuit court’s finding that plaintiff was the assignee of the contract was against the manifest weight of the evidence. Plaintiff testified without contradiction that she had paid the notes held by the Bank of Waukegan, and the record does not show any participation by the bank or any assertion of any claim to or interest in the proceeds of the contract. Further, the record shows that in an answer filed by defendant Boyke to the original complaint, and verified by him, it was stated “that on or about the 22nd day of March, 1968, the Defendant Pate Drywall and Painting, Inc. assigned the proceeds of the contract referred to in Paragraph three (3) above between Bruce Boyke and Pate Drywall and Painting, Inc. to the Bank of Waukegan, Waukegan, Illinois; and further, that said Assignment has been re-assigned by the Bank of Waukegan, Waukegan, Illinois to Beverly Jensen; This pleading, verified by defendant, was an admission which was sufficient to support the circuit court’s finding that defendant’s contract with Pate’s Drywall had been assigned to plaintiff.

Plaintiff contends that the circuit court erred in failing to enter judgment in her favor for the full amount of the contract entered into between defendant and Pate’s Drywall. She argues that the evidence shows that the failure, if any, on the part of Pate’s Drywall to fully perform the contract was caused by defendant’s having made it impossible for Pate’s Drywall’s employees to come upon the premises to complete the work. She argues, too, that the circuit court’s finding that defendant was entitled to setoffs for the expenses of completion of the work and for sums paid to materialmen was against the manifest weight of the evidence.

This cause was heard by the circuit court without a jury, and our examination of the record shows that the court’s findings on these issues were not against the manifest weight of the evidence.

Plaintiff, in her complaint, requested interest on the amount due her under the contract “on account of unreasonable and vexatious delay in the payment thereof.” However, the circuit court found that there was no unreasonable and vexatious delay on the part of defendant and declined to award interest. Plaintiff contends this was error.

Section 2 of “An Act in relation to the rate of interest ***” (Ill. Rev. Stat. 1979, ch. 74, par. 2) provides in part:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due 000 on money withheld by an unreasonable and vexatious delay of payment.”

This court has not recently dealt with an award of interest in connection with a construction contract. However, the rule was correctly stated in Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 398:

“Interest is not awarded on money that may be found due, if the person withholding payment has done so in good faith, because of a genuine and reasonable dispute. In other words, interest would be a proper element of recovery only if it could be said [a] relationship of debtor and creditor existed between the parties. Mariner v. Gilchrist, 280 Ill. 544, 117 N.E. 695.
Interest can be awarded on money payable under building contracts, even when the amount payable may be uncertain until legally resolved; In re Morrison, 261 F. 355, Downey v. O’Donnell, 92 Ill. 559, but it has been held error to allow interest on an amount due when, as here, that amount depends largely upon the construction placed on the terms of a contract, and upon questions of fact about which there is room for a difference of opinion. O’Heron v. American Bridge Co. of New York, 177 Ill. App. 405.”

The dispute at bar was both genuine and substantial. Ample evidence was presented on each side concerning whether plaintiff substantially performed the contract and whether the sums expended by defendant were necessary and reasonable. Accordingly, we conclude that there was nothing unreasonable or vexatious about defendant’s delay in paying, and the circuit court did not err in refusing to award interest. See also Annot., 60 A.L.R.3d 487 (1974).

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

Appellate court reversed; circuit court affirmed.

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


text:
    (No. 54203.
    GOLDBLATT BROTHERS, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Diane Victoria Ricchiuto et al., Appellees).

      Opinion filed September 30, 1981.

      Bernard Rosencranz, of Chicago, for appellant.
    Cohn, Lambert & Ryan, Ltd., of Chicago (Stanford L. Lambert and John Duncker, of counsel), for appellees.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that while employed by respondent, Goldblatt Brothers, Inc., William Schimanski sustained accidental injuries which caused his death. Decedent left surviving him Denise Schimanski, a minor child whom he was under legal obligation to support. Petitioner, Diane Victoria Ricchiuto, as mother and natural guardian of Denise Schimanski, was awarded the sum of $279.49 per week until Denise Schimanski shall have reached the age of 18 years, which sum, if she were a full-time student in an accredited educational institution, could continue until she attained the age of 25 years. On review the Industrial Commission modified the award to provide that the payment be $269.76 per week, and otherwise affirmed the award as the decision of the Commission. On certiorari the circuit court of Cook County confirmed and respondent appealed. 73 DI. 2d R. 302(a).

The testimony showed that respondent operated a chain of retail department stores in Illinois, Indiana, Michigan and Wisconsin. Deceased, with one brief interruption, had been an employee of the respondent for approximately five years. He was hired at respondent’s headquarters located in Chicago, and was paid from its central office located in those headquarters. His employment required him to work at any of the respondent’s stores to which he was assigned, and at the time of his death he was repairing the air-conditioning system at one of respondent’s stores located in Michigan.

Petitioner had been married to the decedent, but they were divorced prior to his death. At the time of the hearing before the arbitrator, Denise, the child of the parties, was 10 years of age. The divorce decree provided that decedent was to pay the sum of $45 per week for Denise’s support.

Respondent contends that sections 7 and 8(b)(2) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.7,138.8(b)(2)), as applied to the facts of this case, set up an arbitrary classification and as such violate the constitutional guaranties of due process and equal protection of the laws. It argues that the statute is arbitrary and irrational in that it creates a special privilege for a single survivor who will receive the entire award, whereas if there were multiple survivors of the deceased worker, she would be required to share the sum thus recovered. It argues that the inclusion in the statute of provisions for graduated mínimums based upon the number of surviving children demonstrates that the failure to provide for similar graduations concerning the maximum amounts recoverable creates an irrational and unreasonable classification.

Clearly, respondent does not have standing to attack the validity of the statutes on the grounds asserted since it is not a member of the class who would suffer the alleged discrimination. (Board of Education v. Bakalis (1973), 54 Ill. 2d 448, 467.) It is well settled that the validity of a statute will be considered only at the instance of parties directly affected by its invalidity, unless the unconstitutional defect is so pervasive as to render the entire act invalid. (People v. Vandiver (1971), 51 Ill. 2d 525.) The exception is not here applicable, and we hold that respondent is without standing to attack the statute on the grounds asserted.

Respondent contends that section 1(b)(2) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1(b)(2)), which defines an employee as including persons whose employment is outside the State of Illinois when the contract is made in Illinois, contravenes section 1 of the fourteenth amendment of the United States Constitution and article I, section 2, of the Illinois Constitution. It argues that it is denied equal protection of the law for the reason that if the deceased had been employed in Michigan under the same circumstances, Michigan law would have applied and benefits required to be paid would have been substantially lower. It argues, too, that the statute is defective for the reason that the injured employee or the survivors of a deceased employee may choose the forum in which to seek to recover worker’s compensation, and there is no provision for the employer to be heard on the question. Simply stated, it is defendant’s contention that the statute provides no opportunity for it to be heard as to the proper forum for hearing the claim and in contrast to the situation where the issue of forum non conveniens is presented, it was given no opportunity to show the injustice of being required to defend the claim in Illinois. Respondent has cited no authority in support of these arguments, and we find that they are without merit and require no further discussion.

Respondent contends next that because petitioner filed a petition for compensation in Michigan while the cause was pending in Illinois she elected to abandon her cause of action in this jurisdiction. It argues that in filing her claim in Michigan she made an election of remedies which precluded further proceedings in Illinois.

In District 141, International Association of Machinists & Aerospace Workers v. Industrial Com. (1980), 79 Ill. 2d 544, the employer contended that the Industrial Commission was without jurisdiction to hear the claim because the claimant had previously filed her claim in California, had thereby elected her remedy, and could not thereafter pursue relief in Illinois, the jurisdiction in which the decedent met his death. We find apposite our statement in that case:

“The applicable Illinois statutory provision states:
‘An employee or his dependents under this Act who shall have a cause of action by reason of any injury, disablement or death arising out of and in the course of his employment may elect to pursue his remedy in the State where injured or disabled, or in the State where the contract of hire is made, or in the State where the employment is principally localized.’ (Ill. Rev. Stat. 1975, ch. 48, par. 138.1(b)(2).)
Clearly the language of the Act is permissive in allowing the claimant to file a claim in any of the three forums mentioned. Our inquiry becomes whether a claimant who files a claim where the employment is principally localized, and then dismisses it, elects her remedy and is thereby precluded from filing a claim in another jurisdiction. The prevailing law in Illinois on election of remedies was set forth in Faber, Coe & Gregg, Inc. v. First National Bank (1969), 107 Ill. App. 2d 204, 211:
‘ “The formal doctrine of election of remedies by judicial decision has been confined gradually to its true remedial purpose as a doctrine of substance; and as stated by an eminent authority on trusts and trustees, should be confined to cases ‘where (1) double compensation of the plaintiff is threatened or (2) the defendant has actually been misled by the plaintiff’s conduct or (3) res adjudicata can be applied.’ Bogert, Trusts and Trustees, 1935 Vol. IV, sec. 946.” ’
(Accord, Altom v. Hawes (1978), 63 Ill. App. 3d 659, 663; Schwartz v. City of Chicago (1974), 21 Ill. App. 3d 84, 94.) There is no threat of double compensation on this record; District 141 has not been misled by the claimant’s acts; and there has been no decision rendered in the California proceeding which would invoke the doctrine of res judicata. Thus, the claimant has not elected a remedy to the extent required by Illinois law so as to prevent the Commission from exercising jurisdiction over her claim.” 79 Ill. 2d 544, 550-51.

Petitioner could seek recovery in either jurisdiction, and the fortuitous circumstance that the Illinois statute permitted a greater recovery than did Michigan does not serve to limit petitioner’s right.

Finally respondent contends that section 7 of the Act is unconstitutionally vague for the reason that the definition of “child” contained in section 7 (a) is indefinite and that, when read as a whole, section 7 is vague and uncertain concerning which provision is applicable when an employee leaves surviving him a child whom he was only partially legally obligated to support.

In Snyder v. Industrial Com. (1969), 42 Ill. 2d 18, the court considered section 7 (a) as it existed prior to the 1975 amendment. Although the 1975 amendment modified the language to some extent, it did not affect the meaning of the statute. There is no question that the surviving child here under the language of the statute and under the holding in Snyder was a child whom the deceased employee was legally obligated to support. We do not agree with respondent’s contention that the provisions of section 7(c) are applicable. Section 7(c) is invoked only when no compensation is payable under the provisions of section 7(a). Further, we find no merit in respondent’s contention that the evidence shows that the surviving child was only partially supported by the deceased and that therefore the finding of the Industrial Commission is against the manifest weight of the evidence.

The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    (No. 54026.

      In re DANIELLE BROWN, a Minor (The People of the State of Illinois, Appellant, v. John Brown, Appellee).

      Opinion filed September 30, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield, and Thomas J. Fahey, State’s Attorney, of Danville (Melbourne A. Noel, Jr., Thomas E. Holum, and Jack Donatelli, Assistant Attorneys General, of Chicago, and Robert J. Biderman and Karen L. Boyaris, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Michael J. O’Brien, of Danville, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The circuit court of Vermilion County found Danielle Brown, a minor, to be neglected, found her natural parents unfit, terminated their parental rights, declared Danielle a ward of the court, and placed her in the guardianship of the Department of Children and Family Services (DCFS) with authority to consent to adoption. The appellate court affirmed the adjudication of neglect, the finding of unfitness of Danielle’s mother, the declaration of wardship, and the guardianship of the DCFS. It reversed the finding of unfitness of Danielle’s natural father, John Brown, and vacated the guardian’s authority to consent to adoption. 87 Ill. App. 3d 1074.

Danielle is the natural child of Melanie Brown Glidewell and John Brown, respondent, whose divorce became final on November 17, 1976. The decree of divorce granted custody of Danielle to the mother; the father was given visitation privileges and ordered to pay child support. On November 19, 1977, Melanie married Robert Glidewell, with whom she had previously lived on and off for over a year. Glidewell was subsequently convicted and sentenced for the murder of Danielle’s three-year-old sister. On March 30, 1978, one day after the homicide, the State filed a juvenile petition in the circuit court alleging that Danielle was neglected and that her environment was injurious to her welfare. The circuit court ordered that Danielle be placed in the temporary custody and guardianship of the DCFS. At this time, Danielle was 28 months old.

On January 5,1979, the State filed an amended petition requesting, inter alia, that the natural parents be declared unfit and that Danielle be placed in the custody and guardianship of the DCFS with authority to consent to adoption. A hearing was held during which 16 witnesses testified for the State and several photographs were introduced into evidence. At the conclusion of the hearing, the trial court entered the order as previously related.

The State appeals only that portion of the appellate court judgment reversing the trial court’s finding as to the natural father’s unfitness. The allegations of unfitness were made under sections 1(D) (b) and (g) of the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, pars. 1501(D) (b) and (g)), which provide:

“ ‘Unfit person’ means any person whom the court shall find to be unfit to have a child sought to be adopted, the grounds of such unfitness being any one of the following:
(b) Failure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare;
O $ <*
(g) Failure to protect the child from conditions within his environment injurious to the child’s welfare.”

Several appellate court cases have involved determinations of unfitness under the above provisions. Some cases have found a lack of contact between the natural parent and children to constitute unfitness under subsection (b). (In re Hillyer (1980), 82 Ill. App. 3d 505; Freeman v. Settle (1979), 75 Ill. App. 3d 799.) Other cases have found a natural parent not to be unfit under the same subsection notwithstanding an apparent lack of contact between the natural parent and the child. In such cases, the appellate court, based on the unique factual context, determined that the evidence of unfitness was not clear and convincing. (Blakey v. Blakey (1979), 72 Ill. App. 3d 946; In re Hurley (1976), 44 Ill. App. 3d 260; Peyla v. Martin (1976), 40 Ill. App. 3d 373; In re Gibson (1975), 24 Ill. App. 3d 981; In re Overton (1974), 21 Ill. App. 3d 1014.) In none of these latter cases, however, was there any question as to the child’s health or safety.

Appellate court cases have been consistent in finding a parent unfit under subsections (b) or (g) when the child’s health or safety is in question. In re Dixon (1980), 81 Ill. App. 3d 493; In re Nitz (1979), 76 Ill. App. 3d 15; In re Tolbert (1978), 62 Ill. App. 3d 927; In re Love (1977), 50 Ill. App. 3d 1018.

In the instant case, the record shows that Danielle lived with respondent’s stepmother for prolonged periods between April 1976 and August 1977. Respondent also lived with his stepmother much of the time in that period. During this time, respondent had contact with Danielle but accepted virtually no responsibility for her care or support. The record is replete with evidence showing that, from the summer of 1976 to the summer of 1977, it was readily apparent Danielle had been seriously abused when she returned from stays at her mother and stepfather’s residence. Many witnesses reported that on several occasions they had seen bruises and marks on Danielle. Burns were also observed on her body on several occasions. Two witnesses testified that respondent himself had seen burns on Danielle’s body. Yet, respondent did nothing to alleviate his daughter’s mistreatment. On one occasion respondent observed what were characterized as cigarette burns on Danielle’s fingertips and another time he observed burns behind her ears and on her back. The evidence indicated the ear and back burns were inflicted by Robert Glidewell with a fork that had been dipped in hot grease. Respondent points out that he reported this to the DCFS. However, one month elapsed before he reported the burns. Moreover, one week later, he phoned the DCFS and told them to disregard the complaint because he was trying to reconcile with Danielle’s mother. It is important to note that part of the complaint which respondent told the DCFS to disregard consisted of respondent’s statement that Danielle had been beaten in the past by Glidewell, thereby demonstrating his awareness of his daughter’s prior abuse. The record also shows that often, upon return from her mother’s residence, Danielle would experience nightmares accompanied by hysterical screaming. It is apparent from the record that Danielle was suffering emotionally as well as physically.

In August 1977 Danielle was taken home, where she stayed with Glidewell and her mother from September 1977 until the death of Danielle’s sister in March 1978. The record indicates that during this period Danielle continued to be abused. Two examining physicians testified that when she was brought to the hospital by police on March 29,1978, she had between 20 to 30 bruises covering almost her entire body. Their determination was that the bruises were from two days to several weeks old and that they had been inflicted, rather than accidental. The photographs in evidence demonstrate the severity of the bruises. The record fails to reveal, however, that respondent, knowing the abuse Danielle suffered on prior occasions when she stayed with her mother and stepfather, took any action whatsoever during this seven-month period to protect his daughter.

The unfitness of a parent must be proved by clear and convincing evidence, (In re Dixon (1980), 81 Ill. App. 3d 493; In re Hrusosky (1976), 39 Ill. App. 3d 954.) We agree with the appellate court cases holding that a finding of unfitness will not be reversed unless it is against the manifest weight of the evidence. (In re Dixon (1980), 81 Ill. App. 3d 493, 502; In re Bennett (1980), 80 Ill. App. 3d 207, 210; Freeman v. Settle (1979), 75 Ill. App. 3d 799, 801; Blakey v. Blakey (1979), 72 Ill. App. 3d 946, 947.) The rationale underlying this standard is that the trial court’s opportunity to view and evaluate the parties and their testimony is superior to that of a reviewing court. Accordingly, the trial court’s findings should be given great deference. See In re Stilley (1977), 66 Ill. 2d 515, 520.

In the instant case, the appellate court held that the evidence did not sustain a finding of unfitness as to the respondent; whereas, the trial court found not only that Danielle was severely abused, but also that the abuse was so extensive that anyone closely attendant to the child would have been aware of it. Our review of the record affirms the trial court’s conclusions. The record reveals that respondent had extensive opportunities to observe the signs of his daughter’s abuse, yet took no action to remedy her situation. Respondent defends his inaction on the basis of financial inability to obtain legal custody and his alleged fear of reprisal from Glidewell. We believe these excuses hardly suffice as reasons to allow his daughter to suffer severe and incessant harm. Even with the knowledge of Danielle’s continued abused condition, respondent failed to take any affirmative action to effect a change in her living environment or to shield her from additional mistreatment.

Respondent’s conduct clearly and convincingly demonstrates a failure to protect Danielle from conditions in her environment that were injurious to her welfare, thereby demonstrating his unfitness as defined by section 1(D) (g) of the Adoption Act. We hold the trial court’s order finding John Brown to be an unfit parent under that section was not contrary to the manifest weight of the evidence. Consequently, that part of the appellate court’s judgment reversing the trial court’s order as to the fitness of John Brown is reversed, as is that portion of its judgment vacating the guardian’s authority to consent to adoption. The judgment of the circuit court of Vermilion County is affirmed, and the cause is remanded to that court for further proceedings.

Appellate court reversed in part; circuit court affirmed; cause remanded.