text:
    (No. 54391.

      In re FRANK JOHN KUTA, Attorney, Petitioner.

      Opinion filed September 30, 1981.

      Mary M. Conrad, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Robert A. Korenkiewicz, of Chicago, for petitioner.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The question in this disciplinary case is whether Frank John Kuta should be reinstated to the practice of law in this State. In November 1974 Kuta was convicted in the Federal court for extortion and making false statements in his Federal income tax return. The conviction was based on a payment of $1,500 to Kuta, who was then an alderman in Chicago. The payment was made in an effort to obtain a zoning change. In March 1975 Kuta was suspended from practice pursuant to our Rule 761 (73 Ill. 2d R. 761). In June 1975 the Court of Appeals for the Seventh Circuit affirmed Kuta’s conviction. On March 5, 1976, after the United States Supreme Court denied certiorari, Kuta voluntarily withdrew his name from the roll of attorneys and was disbarred on consent.

From October 1, 1975, to February 11, 1977, despite the fact that he had been suspended and later disbarred, Kuta was employed as a law clerk in the office of his former partner. In the fall of 1976 he filed a petition for reinstatement to practice law. When the Administrator of the Attorney Registration and Disciplinary Commission objected and alleged that Kuta’s employment constituted practicing law, he withdrew his petition for reinstatement and made arrangements for employment elsewhere. The present petition for reinstatement was filed in January 1980.

The hearing panel of the Attorney Registration and Disciplinary Commission conducted a hearing on this petition for reinstatement and unanimously recommended that Kuta be reinstated as an attorney. The Administrator for the Commission filed exceptions to the report of the hearing panel. The Review Roard, after reviewing the record of the hearing, unanimously recommended to this court that Kuta not be reinstated. Kuta filed exceptions to this report, and the case was orally argued before the court at the May 1981 term.

This court has recently adopted a code of professional responsibility governing the conduct of attorneys (79 Ill. 2d R. 1 — 101 et seq.). One objective in adopting the code was, through compliance therewith, to achieve a high degree of integrity in the legal profession in this State, thereby enhancing the public’s respect for law and lawyers. In the application of our disciplinary machinery established by our rules (73 Ill. 2d Rules 751 through 771), including the procedure for reinstatement of attorneys, we must consider the impact that an attorney’s conduct has, or will have, on the legal profession, the public and the administration of justice. (In re Zahn (1980), 82 Ill. 2d 489, 493; In re Wonais (1979), 78 Ill. 2d 121, 124; In re Thomas (1979), 76 Ill. 2d 185, 189; In re LaPinska (1978), 72 Ill. 2d 461, 473.) It is the petitioner’s burden to prove by clear and convincing evidence that he should be reinstated to the practice of law. See generally In re Groshong (1980), 83 Ill. 2d 27; In re Wigoda (1979), 77 Ill. 2d 154.

Our Rule 767 (73 Ill. 2d R. 767) governs reinstatement of attorneys who have been disbarred, disbarred on consent, or suspended until further order of the court. The last part of this rule sets out the areas of concern in passing on a petition for reinstatement as follows:

“The petition shall be referred to a hearing panel. The panel shall consider the following factors, and such other factors as the panel deems appropriate, in determining the petitioner’s rehabilitation, present good character and current knowledge of the law:
(a) the nature of the misconduct for which the petitioner was disciplined;
(b) the maturity and experience of the petitioner at the time discipline was imposed;
(c) whether the petitioner recognizes the nature and seriousness of the misconduct;
(d) when applicable, whether petitioner has made restitution;
(e) the petitioner’s conduct since discipline was imposed; and
(f) the petitioner’s candor and forthrightness in presenting evidence in support of the petition.
The hearing panel shall make a report of its findings and recommendations. A copy of the report shall be served upon the petitioner and upon the Administrator.
The review procedure shall be the same as provided in Rule 753(e) for disciplinary cases.” (73 Ill. 2d R. 767.)

Thus the petitioner must establish that he has been rehabilitated, that he is presently of good character, and that he currently is knowledgeable as to the law. While the hearing panel found that Kuta has been sufficiently rehabilitated to be readmitted, the Review Board specifically found that he had failed to demonstrate his rehabilitation. As evidenced by these contrary findings, rehabilitation is an imprecise term, and the proof presented to establish that state is not always viewed the same by all who consider it.

Our rule specifically requires, in determining rehabilitation as well as the present good character and current knowledge of the law, that the hearing panel consider the petitioner’s conduct since discipline was imposed. (73 Ill. 2d R. 767(e).) In considering one’s conduct, however, it must be kept in mind that, because of differences in personalities, the same conduct should not always lead to the same conclusion. For instance, extensive involvement in civic, religious and charitable activities may in one case demonstrate a penitent and contrite spirit, whereas in another individual such involvement may result from a brazen and defiant attitude. In several reinstatement cases that have been considered by this court both the petitioner and the Administrator have placed heavy emphasis on community, religious and charitable involvement of the petitioner as indicative of rehabilitation. Although such evidence may be relevant, we consider that the petitioner’s conduct in other areas should also be considered.

In this case Kuta presented evidence concerning his involvement in religious, charitable and civic affairs, as well as his involvement in areas relating to his employment. Besides the petitioner, 11 witnesses testified before the hearing panel. In addition, some 33 affidavits were submitted. The evidence disclosed that Kuta is a member of St. Bruno’s Catholic Church. Its pastor, the Rev. Edmund Szlamza, testified that Kuta served as a commentator there for several years and that he has a reputation for reliability. Kuta is also a member of several civic and service organizations, including the St. Bruno Holy Name Society, the Archbishop Weber Knights of Columbus, Polish American Historical Society, the Catholic War Veterans, Maria Father’s Club, University of Illinois Father’s Club, the Archer Heights Civic Association, and the Alhambras (a group of laymen organized to help in foster programs and care of retarded children). Kuta stated that he has shunned holding office in any of these organizations because of his conviction, which, possibly, could be embarrassing to the organization. The evidence shows that although not of the Jewish faith, petitioner is supportive of several Jewish organizations, both financially and by attendance at their functions. One witness stated, “Bigotry is not a word in his vocabulary.”

Kuta also presented considerable evidence through his own testimony and that of others concerning his employment activities and the positions of trust and responsibility that he has held since his disbarment. He is presently employed full time as the president of the Chicago Auto Employees Credit Union. In his capacity as president he is responsible for managing the employees, he prepares financial reports, makes recommendations to the board of directors regarding investments, keeps the books and records, and is considered the chief operating officer of the credit union. He also occupies a part-time position as treasurer of the Archer Heights Credit Union. Both positions require that he be bonded by the Cumis Insurance Company in the amount of $1 million. Additionally, petitioner is self-employed under the business name of Archer Insurance, Accounting and Tax Service, and during the year of 1978 he did consulting work for Northwestern Savings and Loan Association.

During 1977 petitioner held the position of Director of Communications at the Illinois Credit Union League and, as such, was in charge of disseminating public news releases. He also managed the Education and Training Department and Member Services Department of the trade association. He was responsible for the printing of a monthly magazine. As noted earlier in this opinion, in addition to the testimony of witnesses, the petitioner presented many affidavits. These indicated that Kuta is a man of integrity and deserves to be readmitted to the practice of law.

The Administrator contends that, despite the information presented, the petitioner should not be readmitted. He bases that position on the petitioner’s failure to make restitution of the $1,500 which was the basis for the extortion conviction, and because he felt the petitioner was less than candid in his “petition for reinstatement.” Our Rule 767(d) also directs that the hearing panel consider, “when applicable, whether petitioner has made restitution.” If an attorney’s disbarment is based on the misappropriation of clients’ or another’s funds, restitution would clearly be “applicable” in considering a petition for reinstatement. It is not so clearly applicable when the money has been paid to the attorney by one attempting to bribe the recipient. In such a case the payor is likewise guilty of wrongdoing, and it would appear that he would have no equitable claim to the money paid. Nonetheless, in our case, Kuta came into possession of the money wrongfully and likewise has no legal or equitable claim to it. Kuta contends that he is substantively innocent of the two felony counts of which he was convicted. He does not deny, however, that he received $1,500. In fact, he has paid the Federal income tax on it. In his brief he admits that he testified that he was sorry for what he had done. However, he relies on In re Wigoda in support of his contention that the assertion of his innocence should not bar reinstatement. We do not dispute this contention; however, his right to assert his bona fide belief in his innocence of the crime of which he was convicted does not determine whether or not he can retain the money he received, and to which he has no legitimate claim. In Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, this court held that a public officer occupies a fiduciary relationship to the political entity on whose behalf he serves, and that when the fiduciary responsibility has been breached, a cause of action on the part of the beneficiaries to seek restitution has been recognized. Kenroy, Inc. involved litigation resulting from the bribery of Alderman Paul Wigoda, the attorney involved in In re Wigoda. We must conclude that Kuta, as an alderman, occupied a fiduciary position in relation to the city and if he received $1,500 in that capacity, he has no right to retain the same.

The Administrator also argues that the petitioner was less than truthful when submitting the petition for reinstatement. Specifically, the Administrator contends that Kuta failed to mention that he had engaged in the practice of law subsequent to his suspension and disbarment.

Without a doubt, a disbarred or suspended attorney should not serve as a law clerk or a paralegal during his disbarment or suspension. The line of demarcation between the work that a paralegal or a law clerk may do and those functions that can only be performed by an attorney is not always clear and distinct. The opportunity for a disbarred or suspended attorney who is serving as a paralegal or a law clerk to violate that line of demarcation is too great and too inviting. Also, the public is not aware of the differences between the work of a paralegal and that of an attorney. For a disbarred attorney to be seen performing what the public may perceive as legal functions can only lessen the public’s regard for the effectiveness of our attempt to discipline errant attorneys, and would foment the belief that the public was not being protected from unethical attorneys.

In Kuta’s case, however, we do not view his employment as a law clerk for his former partner as a reason for denying reinstatement. It appears that he accepted this employment in good faith. After the Administrator had objected to his original petition for reinstatement because of his employment, he sought the advice of other attorneys, who informed him that they thought such employment was permissible. However, he, nonetheless terminated his employment as a law clerk and sought employment in non-law-related fields.

The Attorney Registration and Disciplinary Commission Rule 11.1(9) requires that a petition for reinstatement include “a statement of whether or not the petitioner’s suspension, disbarment or disbarment on consent was in any way related to his misappropriation or failure to account for any monies, and the amounts involved, held or received by him on behalf of third parties and, if so, whether he has since made an accounting for or restitution of the monies, together with the details of the restitution or accounting, including the dates and amounts of the restitution or accounting, and the names and addresses of the persons to whom such restitution or accounting was made.” (Ill. Rev. Stat. 1979, ch. 110A, following par. 771.) In response to that question, the petitioner denied that his conviction was related to a misappropriation of funds. The Administrator contends that Kuta’s response demonstrated a lack of candor.

The rule does not clearly fit the factual picture of this case. The rule can reasonably be read to refer only to monies that came into the hands of the attorney from a client or were paid to him for the use of another. Although we have above indicated that the $1,500 can be viewed as being held by Kuta in trust, by virtue of a breach of his fiduciary duty as an alderman, failure to read the rule as including such conduct within its purview does not demonstrate a lack of candor.

Kuta acknowledged that the cause of his trouble is to be found in his political activities, and he has resolved to divorce himself from political involvement in the future. During the course of reestablishing himself, he has proved his integrity by holding positions of trust and responsibility with various credit union organizations. In this manner, he has demonstrated to the public that he is worthy of holding a position of trust. We therefore feel that continued disbarment is not necessary to the protection of the public or to maintaining the respect for the legal profession. We find that Kuta has, by clear and convincing evidence, established his rehabilitation.

We cannot, however, at this time, order his reinstatement as an attorney because of his failure to divest himself of the $1,500 he received while an alderman. The money should not be returned to the payor of the bribe. Since Kuta received the payment while he was acting as an alderman, we direct that the $1,500 be paid to the city of Chicago. Upon deposit with the clerk of this court of a receipt for this amount from the city of Chicago the petitioner shall be reinstated on the role of attorneys of this State.

Petitioner conditionally reinstated.

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


source: Caselaw Access Project

author: MR. CHIEF JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 54280.

      In re MARRIAGE OF RUTH ISABELL EMKEN, Appellant, and HENRY EDWARD EMKEN, Appellee.

      Opinion filed September 30, 1981.

    Kerry R. Cordis, of Princeville, for appellant.

      Baudino, Potter 8c Maas, of Farmington (John C. Potter, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Petitioner, Ruth Isabell Emken, appealed from the judgment of the circuit court of Peoria County entered upon dissolution of her marriage to respondent, Henry Edward Emken. The appellate court affirmed (89 Ill. App. 3d 667), and we allowed petitioner’s petition for leave to appeal (73 Ill. 2d R. 315). The facts are adequately stated in the appellate court opinion and will be repeated here only to the extent necessary to discuss the issues.

The first question presented is whether, under section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503), the circuit court properly assigned to respondent as nonmarital property the sum of $14,257.72, which he had deposited in a joint checking account immediately after the marriage. The source of the money was a savings account and a checking account which respondent had maintained prior to the marriage. There appears to be no question that although the petitioner sometimes wrote checks on the account all funds deposited were received from the respondent. During the marriage the account balance fluctuated from $1,000 to $19,000. Respondent testified that approximately $8,000 of the money originally deposited was used sometime after the marriage to purchase a new combine. Petitioner testified that when she left respondent she withdrew $8,258.57 from the account.

In re Marriage of Rogers (1981), 85 Ill. 2d 217, presented the question whether the husband should have been assigned an interest in the jointly held marital residence equal to the amount of nonmarital funds he provided for its purchase. Following review of many of the opinions of the appellate court involving the disposition of property acquired, in part, with nonmarital funds, we said:

“The new act incorporates a partnership theory of marriage. [Citations.] The Act does not purport, however, to change the law regarding interspousal transfers of property owned individually. It does not indicate, by implication or otherwise, any dissatisfaction with prior cases in which the intention of a spouse conveying property was ascertained. It may be anachronistic now to refer to an intent to convey a gift to the other spouse, but it is not improper to refer to an intent to convey a gift to the marriage. Therefore, a marital residence owned by both spouses, even if one spouse has furnished all of the consideration for it out of nonmarital funds, will be presumed ‘in fact’ as marital property, absent convincing rebutting evidence. Accord, Carter v. Carter (Me. 1980), 419 A.2d 1018.” In re Marriage of Rogers (1981), 85 Ill. 2d 217, 222-23.

We fail to perceive a distinction between a jointly held marital residence and a jointly held account. We note, too, that the evidence shows that respondent retained sole ownership of a time deposit certificate which he had at the time of the marriage. The deposit of certain funds in the joint account out of which the household expenses of the parties were paid while retaining sole ownership of other funds tends to prove that it was respondent’s intent that the jointly held funds be marital property. (In re Marriage of Rogers (1981), 85 Ill. 2d 217.) We hold that the evidence did not overcome the presumption, and that, in holding that respondent was entitled to the amount of the original deposit as his nonmarital property, the appellate and circuit courts erred.

We consider next petitioner’s contention that the circuit court erred in assigning to respondent as nonmarital property the value of certain equipment and grain which he owned at the time of his marriage. The order of the circuit court contains an itemized list of the specific chattels involved and a valuation assigned to each as of the date of marriage. These items, including 3,000 bushels of corn, were valued at $18,253.57.

We are of the opinion that the trial court did not err in setting off to the respondent as his nonmarital property the value of the grain and equipment which he owned at the time of the marriage. The testimony shows that each of the parties was the owner of a farm and that petitioner’s income from her farm was retained by her. It shows further that the value of the equipment and grain owned by respondent at the time of the dissolution was greatly in excess of the value of that which he owned at the time of the marriage. There is nothing in the record which shows that it was the intent of the parties that the property in question be marital property. The situation here was much more analogous to that found in the operation of a business which has among its assets merchandise, equipment and fixtures. In determining the value of the property at the time of dissolution and setting off to the respondent the value of the property at the time of the marriage the circuit court correctly recognized that the additional property acquired during the marriage was marital property. We are of the opinion that the circuit court correctly construed the statute and did not err in its determination of this issue.

We consider next petitioner’s contention that the circuit court erred in reducing the value of the assets in respondent’s possession by the amounts which he would be required to pay in income tax on a Keogh plan if he were to terminate it, and the interest penalties which would be sustained in the event of early surrender of his certificates of deposit. There is no evidence in this record that either action was made necessary by reason of the judgment entered in this case. It was therefore improper to reduce the valuations in anticipation of losses which might result from respondent’s voluntary action.

For the reasons stated the judgments of the appellate and circuit courts are reversed and the cause is remanded to the circuit court of Peoria County for futher proceedings consistent with this opinion.

Affirmed in part and reversed in part and remanded.


author: MR. JUSTICE MORAN

text:
    (No. 54144.
    INTERLAKE, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Michael J. Cassidy, Appellee).

      Opinion filed September 30, 1981.

      Julie O’Connor and Robert E. Maciorowski, of Seyfarth, Shaw, Fairweather 8c Geraldson, of Chicago, for appellant.
    Goodman, Kipnis 8c Krasner, and Kenneth S. Rosenblum (James A. Smith, of counsel), of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In this worker’s compensation case, the arbitrator found that plaintiff, Michael Cassidy, sustained accidental injuries that arose out of and in the course of his employment on April 29, 1977, and that the injuries caused plaintiff’s complete disability rendering him “wholly and permanently incapable of work.” He awarded plaintiff $231.42 per week for life and $6,973.38 for necessary medical and hospital expenses. The Industrial Commission affirmed and adopted the arbitrator’s decision. The circuit court of Cook County confirmed the Commission’s decision in all respects except for a minor reduction of the medical expense award.

Defendant, Interlake, Inc., contends that plaintiff failed to establish (1) that the injuries arose out of and in the course of his employment, and (2) that he is wholly and permanently incapable of work, thereby rendering the Commission’s findings contrary to the manifest weight of the evidence.

Plaintiff, 62 years old, was a supervisor for defendant, Interlake, Inc. Plaintiff’s employment entailed supervising carpenters, millwrights, ironworkers and engineers in the installation of storage racks. On April 29,1977, plaintiff was assigned to a job in Brea, California, to erect pallet racks. He was advised by an ironworker’s foreman that they were having difficulty separating frames which weighed between 200 and 250 pounds each. Plaintiff inserted a wood “two-by-four” between the frames and pushed down on it “with all his strength and weight.” The “two-by-four” broke and struck him on the right side of his chest.

Plaintiff testified that he immediately felt a pain across his chest, under his right arm and into the palm of his hand. He also testified that his knees hit the floor, that he became nauseous, felt a pain in the sternal area of his chest and that he began to perspire very heavily. He then sat down for a period of 15 minutes. Plaintiff then handed out checks to his workers, during which time, he testified, he “felt very bad” but didn’t complain to the crew. At 3 p.m., he reported the incident to his supervisor.

Plaintiff testified that while he drove from the jobsite to his motel he felt nauseous and was perspiring very heavily. When he reached his room, he experienced pain across his chest going from the left side to under his right armpit. During the remainder of that day and the next two days, Saturday and Sunday, plaintiff experienced nausea and chest pain. He took several showers, which seemed to temporarily ease the pain. He engaged in very little physical activity. On Sunday, May 1, at about 11 p.m. while doing paperwork, plaintiff suddenly experienced intense pain across his chest and down into his arm and hand, which then became numb. A doctor was called and plaintiff was taken by ambulance to the hospital.

The hospital records state that plaintiff, “approximately 36 hours prior to his admission, *** began to experience severe pain located in the right axillary region and radiating down the right arm.” An electrocardiogram performed upon plaintiff the evening of his admission disclosed an anterolateral wall myocardial infarction of unknown age.

Defendant argues that the evidence fails to prove a causal relationship between the work incident on April 29, 1977, and the myocardial infarction. This court has held that an accidental injury arises out of and in the course of employment under section 2 of the Workmen’s Compensation Act (Act) (Ill. Rev. Stat. 1977, ch. 48, par. 138.2) if some act or phase of the employment was a causative factor in the ensuing injury. Plaintiff need not prove that it was the sole causative factor, but only that it was a causative factor in the resulting injury. (Sears, Roebuck & Co. v. Industrial Com. (1980), 79 Ill. 2d 59, 66; Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32, 45.) In numerous cases, the court has found that employment was a causative factor when a heart attack occurred at some point after the employees had left their places of employment. E.g., McLean Trucking Co. v. Industrial Com. (1978), 72 Ill. 2d 350, 357; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17-18; Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234, 240; Sohio Pipe Line Co. v. Industrial Com. (1976), 63 Ill. 2d 147, 152; Gould National Batteries, Inc. v. Industrial Com. (1966), 34 Ill. 2d 151, 157.

In Gould National Batteries, Inc., this court stated:

“It is sufficient if the evidence supports a reasonable inference that the physical stress occasioned by the employee’s labor was such that his existing physical structure began to give way or gave way entirely while actually engaged in his employment. [Citations.] Merely because the ultimate manifestation of the basis for the claim 000 does not occur while the employee is actually engaged in the performance of his duties does not require, in our judgment, judicial disturbance of the Industrial Commission’s determination that an accidental injury has occurred.” 34 Ill. 2d 151, 156-57.

(See County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17.) Moreover, a preexisting heart condition does not render a compensation award contrary to the manifest weight of the evidence where the Commission, from the evidence, could have inferred that the employee’s work-related incident was a causative factor. Sears, Roebuck & Co. v. Industrial Com. (1980), 79 Ill. 2d 59, 66; Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234, 240.

In this case, plaintiff experienced nausea and chest pain from the time of the accident until his admission to the hospital the night of May 1. Defendant avers that plaintiff’s statement in the hospital records reveals that severe chest pains began approximately 36 hours prior to admission to the hospital (placing the onset of the chest pains the day after the incident) and that the hospital records fail to refer to the April 29 incident. However, plaintiff gave detailed testimony regarding the onset and duration of his chest pains. In any event, it is the function of the Commission to determine the credibility of witnesses and to resolve disputed questions of fact. National Lock Co. v. Industrial Com. (1979), 75 Ill. 2d 259, 264; Atlantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill. 2d 137, 142; United States Steel Corp. v. Industrial Com. (1976), 65 Ill. 2d 374, 381. Extensive medical testimony was elicited at the hearing. Defendant’s expert, Dr. William Buckingham, testified in response to a hypothetical question that an incident like the April 29 one described above would be insufficient to cause the myocardial infarction. He testified that he determined from an enzyme test that the myocardial infarction occurred sometime between May 1 and May 3, 1977, subsequent to the time of the work incident. In his opinion, the infarction was caused by a preexisting arteriosclerotic condition, and accelerated by obesity, hypertension and diabetes. He stated that the chest pain following the work incident could be symptomatic of arthritic changes.

Dr. Buckingham’s opinion that the April 29 incident was not a causative factor in the myocardial infarction was disputed by two physicians testifying for plaintiff. Dr. Paul Sauers, who treated plaintiff subsequent to the myocardial infarction, testified that there was “no question in [his] mind that [plaintiff’s] myocardial infarction may well have been precipitated or brought on by his exertion and/or trauma as described.” Dr. Sauers also testified, in response to a hypothetical question, that his opinion would not change if the person who suffered the myocardial infarction had been under medication for diabetes and hypertension. Dr. Sauers also stated that the myocardial infarction sustained by plaintiff was probably an evolving infarction, which could have evolved over a course of time, anywhere from hours to days. Finally, Dr. Sauers testified that he had never seen any patient with arthritis have axillary pain.

Plaintiff’s other expert, Dr. Nathaniel Greenberg, in response to a hypothetical question, testified that the April 29 work activities directly precipitated an acute myocardial infarction, given an individual with the traits and medical history of plaintiff. He also testified that the pattern of electrocardiographic changes is consistent with the onset of the infarction having occurred within hours to days, thus encompassing the time of the incident.

It is well established that where medical testimony is conflicting, it is for the Commission to determine which testimony is to be accepted. (Health & Hospitals Governing Com. v. Industrial Com. (1979), 75 Ill. 2d 159, 163; McLean Trucking Co. v. Industrial Com. (1978), 72 Ill. 2d 350, 357; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18.) It is the Commission’s function to determine if a causal relationship existed between employment and claimant’s injury, and its judgment will not be disturbed except where it is contrary to the manifest weight of the evidence. Pulliam Masonry v. Industrial Com. (1979), 77 Ill. 2d 469, 472; Health & Hospitals Governing Com. v. Industrial Com. (1979), 75 Ill. 2d 159, 163-64; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18.

Here, we find the evidence was sufficient to conclude that the April 29 work incident was a causative factor in the ensuing myocardial infarction. Accordingly, the Commission’s finding that plaintiff’s injury arose out of and in the course of his employment is not contrary to the manifest weight of the evidence and will not be disturbed.

Defendant next argues that the Commission’s finding that plaintiff is totally and permanently disabled is contrary to the manifest weight of the evidence. Defendant contends that the medical testimony indicated plaintiff could perform supervisory work or an indoor sedentary job, that the testimony thereby placed the burden on plaintiff to establish his inability to secure employment, and that the burden was not met.

We have often held that an employee is totally and permanently disabled under the Act when “such employee is unable to make some contribution to the work force sufficient to justify the payment of wages.” (E.g., Gates Division, Harris-Intertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264, 268; C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278.) However, a claimant is not required to demonstrate total incapacity or helplessness before a permanent total disability award may be granted. (A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 487; E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 360.) A person is totally disabled when he cannot perform any services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. (A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 487; Sterling Steel Casting Co. v. Industrial Com. (1979), 74 Ill. 2d 273, 278.) Conversely, if an employee is qualified for and capable of obtaining gainful employment without seriously endangering his health or life, he is not entitled to total and permanent disability compensation. A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 488; E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 362.

In Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill. 2d 538, 546-47, this court considered the propriety of a permanent and total disability award and stated:

“Under A.M.T.C., if the claimant’s disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the burden is upon the claimant to establish the unavailability of employment to a person in his circumstances. However, once the employee has initially established that he falls in what has been termed the ‘odd-lot’ category (one who, though not altogether incapacitated for work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market (2 A. Larson, Workmen’s Compensation sec. 57.51, at 10 — 164.24 (1980)), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant (2 A. Larson, Workmen’s Compensation sec. 57.61, at 10 — 164.97 (1980)).”

See Niles Police Department v. Industrial Com. (1981), 83 Ill. 2d 528, 534-35.

In this case, the medical experts agreed that plaintiff could return to work that required minimal physical stress (thereby distinguishing this case from Niles Police Department v. Industrial Com. (1981), 83 Ill. 2d 528, 535, where two experts expressed the opinion that the claimant would have difficulty performing any kind of work; compare Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill. 2d 538, 547). Dr. Sauers testified that plaintiff should not lift more than 30 to 40 pounds or walk around the field where he is exposed to the sun or high positions. Dr. Greenberg testified that plaintiff would be capable of returning to an indoor sedentary occupation with practically no physical stress and minimum amount of emotional stress, and that plaintiff should be able to read or write without deleterious effects. Dr. Buckingham testified that plaintiff should be able to return to his duties as supervisor, that he could walk, fill out forms, demonstrate how to do work without performing the work himself, and that he could lift objects weighing not more than 25 pounds. The inability to perform strenuous manual labor does not necessarily make one permanently and totally disabled. (A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 489.) None of the medical experts testified that plaintiff is totally and permanently disabled. Nor did plaintiff, himself, testify to that effect. In addition, the record reveals that plaintiff’s job entailed some degree of paperwork, which he was medically able to perform.

Under these circumstances, plaintiff could not be considered as being “obviously unemployable,” thereby preventing his inclusion in the “odd-lot” category. Consequently, the burden remained on plaintiff to show his inability to return to gainful employment. (Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill. 2d 538, 547.) This burden may be met by a showing of diligent but unsuccessful attempts to find work (A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 490), or by a showing that, in light of plaintiff’s age, experience, training and education, he is unable to perform any but the most menial tasks, for which no stable market exists. Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill. 2d 538, 547; Inland Robbins Construction Co. v. Industrial Com. (1980), 78 Ill. 2d 271, 275-76.

Here, neither showing was made. Plaintiff has not shown that he made any effort to obtain work. Indeed, the record does not indicate that plaintiff even attempted to return to Interlake. Nor has plaintiff demonstrated an inability to perform any but the most menial tasks. It is debatable from the record if plaintiff would be precluded from performing his job as supervisor due to limitations in his permitted physical activity. In any event, as stated above, plaintiff’s job included some degree of paper work which, according to the medical evidence, would be within the scope of permitted activity. Notwithstanding his age and ninth-grade education, plaintiff made no showing that the inside work he could perform was unavailable. We conclude that plaintiff has not carried the burden necessary to demonstrate his inability to return to gainful employment. Consequently, we hold the Commission’s finding that plaintiff is “wholly and permanently incapable of work” is contrary to the manifest weight of the evidence.

For the above-stated reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part and the cause is remanded to the Industrial Commission for further proceedings not inconsistent with the views expressed herein.

Affirmed in part and reversed in part; cause remanded.


author: MR. JUSTICE CLARK

text:
    (No. 55047.
    THE CHICAGO ASSOCIATION OF COMMERCE AND INDUSTRY et al., Appellees and Cross-Appellants, v. THE REGIONAL TRANSPORTATION AUTHORITY et al., Appellants and Cross-Appellees.

      Announced June 11, 1981.

    Opinion filed September 30, 1981.

      James C. Munson, Roger L. Taylor, and Kathleen Kelly Spear, of Kirkland & Ellis, and Carl J. Frank, all of Chicago, for appellant.
    Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago (Clifford L. Weaver, Barbara Baran, Claudia J. Lovelette, and Susan B. Harmon, of counsel), for appellee.
    Robert L. Graham and Douglass W. Cassel, Jr., of Chicago, for amici curiae Chicago Council of Lawyers and Business and Professional People for the Public Interest.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Defendants, the Regional Transportation Authority (RTA) and its chairman and directors, filed a motion for direct appeal to this court from an order of the circuit court of Cook County issuing a writ of mandamus “to adopt and promptly implement a policy to provide adequate public transportation in the six county area” and “to consider and decide upon the proper and specific course or courses of action to be taken” under the Regional Transportation Authority Act (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 701.01 et seq.). Plaintiffs, the Chicago Association of Commerce and Industry and Samuel R. Mitchell, filed a motion for direct appeal to this court from the same order because it failed to specifically require defendants to increase fares or reduce services or a combination thereof to preserve an adequate level of regional transportation service. We allowed the parties’ motions for direct appeal (73 Ill. 2d R. 302(b)). After expedited proceedings, we reversed the circuit court’s order by an order entered June 11,1981, and denied plaintiffs’ cross-appeal.

Plaintiffs filed an amended complaint on June 1, 1981, seeking, inter alia, a writ of mandamus requiring defendants to comply with certain statutory duties under the RTA Act (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 701.01 et seq.) to assure the continued operation of an adequate transportation system and to fund the services by fare increases and service reductions, allegedly “the only means legally available.” The statutory duties allegedly arise out of section 1.02(b), which states the purpose of the Act is “to provide for oat> public transportation” (Ill. Rev. Stat. 1979, ch. 1112/3, par. 701.02(b)); section 2.20(a), which states the RTA has “all powers necessary to meet its responsibilities and to carry out its purposes” (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 702.20(a)); section 2.04, which states the RTA shall provide for the level and nature of fares and the nature and standards of public transportation (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 702.04); and section 4.01, which states the board shall control the finances of the RTA and provide for payment of debts and expenses (Ill. Rev. Stat. 1979, ch. 1112/3, par. 704.01). Plaintiff alleged that defendants, in addition, have a common law duty to provide adequate transportation. Plaintiff further alleged that defenddants breached their duties by failing to maintain a balanced budget, by deferring the implementation of fare increases previously enacted, and by refusing to otherwise increase fares and reduce services or such combination thereof as may be necessary to preserve an adequate level of service.

On June 4, 1981, defendants filed an answer to the amended complaint and both parties filed a stipulation of facts. The parties stipulated that the RTA currently operates at a deficit. The RTA is in arrears in making subsidy payments for the operation of the local transportation services, including the Chicago Transit Authority (CTA), several commuter railroads, and many suburban bus systems. Because of the RTA’s failure to pay its subsidies, some transportation services have ceased or will cease to operate, and others have reduced services and increased fares. The RTA also owes millions of dollars to noncarrier creditors and has insufficient funds to pay its bills.

The parties also stipulated that in December 1980 the RTA published a five-year program (1981-85) (see Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 702.01) which projected a $150 million deficit for fiscal 1981 unless the board made “fairly drastic service cuts, along with increases in fares throughout the region, as the only way to maintain the financial integrity of the system.” On December 22, 1980, after public hearings, the board of directors enacted Ordinance No. 80 — 317, which provided for specific fare increases effective January 1, April 1, and August 1, 1981. The first increase, modified by a deferred increase on the CTA monthly pass, became effective on January 1. The record discloses that the board at that time took some action requiring service reductions, but it is unclear as to the level of reductions.

The parties further stipulated that on January 30, 1981, Price Waterhouse & Company, special assistant auditors for the Auditor General of the State of Illinois, released a financial statement providing that the RTA’s ability to meet its debt obligations and continue its present level of financial assistance to carriers was uncertain. The RTA, it continued, owed the CTA $51 million as of January 23, 1981. We must note the financial statement in the record provided that although fare increases and service reductions enacted December 22, 1980, would aid in alleviating the financial problems, “it is anticipated that the RTA will continue to experience cash shortages during the fiscal year ending September 30,1981.”

In addition, the parties stipulated that on March 16, 1981, the board enacted Ordinance No. 81 — 49, which deferred the implementation of the April 1 fare increase. On May 26,1981, the board convened to consider proposed ordinances for fare increases and service reductions. At that meeting Chairman Lewis W. Hill announced that the RTA had insufficient funds to meet its obligations for the next three weeks. The board did not enact an ordinance to increase fares or reduce services at that meeting.

The parties also stipulated that the board on numerous occasions has met with public officials and testified at legislative committee hearings to express the need for the General Assembly to provide additional revenues for the RTA.

On June 5, 1981, defendants moved to dismiss the amended complaint, and the circuit court denied the motion. The circuit court also entered the following order in favor of plaintiffs:

“A. The Defendants, and each of them, shall forthwith exercise their discretion and powers under the RTA Act to adopt and promptly implement a policy to provide adequate public transportation in the six county area subject to their jurisdiction.
B. Further, the Defendant RTA Directors shall convene forthwith at their regular place of meeting, there to consider and decide upon the proper and specific course or courses of action to be taken by them, within the powers and authority conferred upon them by the RTA Act, to comply with their duty as set out in paragraph A hereof. In so considering and deciding, the said Directors shall give consideration to all their powers under the Act, including, but not limited to, raising fares, curtailing service, reducing expenses, and securing revenue from other legally proper sources. In addition, the RTA Directors shall, in so considering and deciding, give special consideration to the findings and conclusions set out in this Order and to the immediate need for action by them to seek to avert a total or substantial shutdown of public transportation services in the six county region subject to their jurisdiction.
C. Further, the RTA Directors are commanded to make return to this Court on the 12th day of June, 1981, at 11:00 a.m., specifying the manner in which they have complied with this Order.”

That court, moreover, made a special finding there was no just reason for delaying enforcement or appeal of the order (73 Ill. 2d R. 304(a)).

We have concluded that mandamus is not appropriate here. A writ of mandamus is issued in the sound discretion of the court. (People ex rel. Carey v. Scotillo (1981), 84 Ill. 2d 170, 175; Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 334.) This court is limited to deciding matters of law only. (People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 544; People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 544, cert. denied (1980), 445 U.S. 953, 63 L. Ed. 2d 788, 100 S. Ct. 1603.) Plaintiff must set forth every material fact needed to show he is entitled to the writ (People v. Teschner (1980), 81 Ill. 2d 187, 194), and the burden rests on him to show he has a clear, legal right to it (Horn v. Rincker (1981), 84 Ill. 2d 139, 148). Mandamus usually issues to compel the performance of a nondiscretionary, ministerial duty or act. People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 519; see also People ex rel. Jones v. Webb (1912), 256 Ill. 364, 373.

Where the performance of an official duty or act involves the exercise of judgment or discretion, the officer’s action is not subject to review or control by mandamus. (South Chicago Community Hospital v. Industrial Com. (1969), 44 Ill. 2d 119, 122; People ex rel. Town Court of Cicero v. Harrington (1961), 21 Ill. 2d 224, 225; People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 520; People ex rel. Brignall v. Lewe (1943), 383 Ill. 549, 556; cf. People ex rel. Gill v. 110 S. Dearborn St. Corp. (1936), 363 Ill. 286, 289.) The writ will not lie when its effect is “to substitute the court’s judgment or discretion for that of the body which is commanded to act.” (Ickes v. Board of Supervisors (1953), 415 Ill. 557, 563, quoting People ex rel. Walsh v. Board of Commissioners (1947), 397 Ill. 293, 305.) The court will not interfere in determining how defendants exercise their discretion in discharging their duties. Taylor v. Wentz (1958), 15 Ill. 2d 83, 90; People ex rel. Jones v. Webb (1912), 256 Ill. 364, 37374.

The RTA Act (Ill. Rev. Stat. 1979, ch. 1112/3, par. 701.01 et seq.) clearly vests the board with discretion in acting to “provide for, aid and assist public transportation in the northeastern area of the State (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 701.02(b).) The Act states that to accomplish its purposes the RTA “shall, on a continuing basis determine the level, nature and kind of public transportation which should be provided for the metropolitan region.” (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 702.01(a).) Where the RTA operates public transportation facilities, “it shall provide for the level and nature of fares or charges * * * and the nature and standards of public transportation to be so provided.” (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 702.04.) The Act provides that the RTA shall have “all powers necessary to meet its responsibilities and to carry out its purposes ***.” (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 702.20(a).) In addition, the board “shall control the finances” of the RTA. (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 704.01.) See Day v. Regional Transportation Authority (1977), 66 Ill. 2d 533, 534-38; Hoogasian v. Regional Transportation Authority (1974), 58 Ill. 2d 117, 121-22, appeal dismissed for want of a substantial Federal question (1974), 419 U.S. 988, 42 L. Ed. 2d 261, 95 S. Ct. 298.

Because the RTA is vested with the discretion to determine the manner in which public transportation is provided, the exercise of that discretion is not subject to review or control by mandamus. (South Chicago Community Hospital v. Industrial Com. (1969), 44 Ill. 2d 119, 122-23.) Although the order commanding defendants to “adopt and promptly implement a policy to provide adequate transportation” and “consider and decide upon the proper and specific course or courses of action to be taken” is drafted in broad terms, it nevertheless subjects defendants’ actions to review. This court has consistently refused to interfere in determining how defendants exercise their discretion in discharging their duties. (Taylor v. Wentz (1958), 15 Ill. 2d 83, 90.) For these reasons mandamus is improper.

We also conclude that the trial court was correct in denying plaintiffs’ request that the court order fare increases and service reductions. Although under some circumstances mandamus may lie to compel a public officer to proceed with the exercise of discretion (Rock v. Thompson (1981), 85 Ill. 2d 410; People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 99; People ex rel. Abner v. Kinney (1964), 30 Ill. 2d 201, 207; see Chicago & Northwestern Transportation Co. v. Matoesian (1981), 85 Ill. 2d 404), it will not lie to compel him to act in a certain manner while exercising that discretion (Rock v. Thompson (1981), 85 Ill. 2d 410; People ex rel. Mathes v. Foster (1977), 67 Ill. 2d 496, 504-05; People ex rel. Town Court of Cicero v. Harrington (1961), 21 Ill. 2d 224, 225; People ex rel. Walsh v. Board of Commissioners (1947), 397 Ill. 293, 305; see Chicago & Northwestern Transportation Co. v. Matoesian (1981), 85 Ill. 2d 404; People ex rel. Brignall v. Lewe (1943), 383 Ill. 549, 556-57). This court has refused to interfere in determining how defendants exercise their discretion in discharging their duties. (Taylor v. Wentz (1958), 15 Ill. 2d 83, 90; People ex rel. Jones v. Webb (1912), 256 Ill. 364, 373-74.) The writ will not issue when the effect of compliance is to “substitute the court’s judgment or discretion for that of the body which is commanded to act.” People ex rel. Walsh v. Board of Commissioners (1947), 397 Ill. 293, 305.

As shown above, the Act clearly vests the board with discretion in providing for public transportation. Had the circuit court ordered defendants to increase fares or reduce services, the court, rather than defendants, would have been selecting the method to provide for public transportation. Where discretion is permitted, mandamus cannot be used to compel the method or manner by which defendants implement statutory requirements (People ex rel. Mathes v. Foster (1977), 67 Ill. 2d 496, 504-05; People ex rel. Walsh v. Board of Commissioners (1947), 397 Ill. 293, 305), and it will not issue where the effect is to substitute the court’s discretion for that of the defendants (People ex rel. Walsh v. Board of Commissioners (1947), 397 Ill. 293, 305).

For these reasons we reversed the circuit court’s order of June 5,1981, and denied the relief requested in plaintiffs’ cross-appeal.

Order reversed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 54095.
    MAIN BANK OF CHICAGO, Appellee, v. JEROME BAKER et al. (Baker, Bourgeois and Associates et al., Appellants; Main Automated Services, Inc., et al., Appellees).

      Opinion filed September 30, 1981.

      Gilbert Feldman, of Cornfield & Feldman, of Chicago, for appellants.
    Darryl M. Fohrman and Joel M. Hurwitz, of Fohrman, Lurie, Sklar & Cottle, Ltd., of Chicago, for appellees Main Bank and Main Automated Services.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The plaintiff, Main Bank of Chicago, brought an action in the circuit court of Cook County against the defendants, Jerome Baker and Lee Bourgeois, to recover on a note. The defendants, together with their wholly owned corporation Baker, Bourgeois and Associates, Inc. (BB&A), counterclaimed against plaintiff and Main Automated Services, Inc. (MAS), seeking recovery on a lease with MAS. MAS is a subsidiary of Main Corporation, which is also the parent corporation of the plaintiff bank. The defendants presented before the jury evidence offered to show that the Main corporations acted as a single entity, and that there were other agreements between the parties upon the performance of which defendants’ note payments were conditioned. It was stipulated that Lee Bourgeois, who had declared bankruptcy, had signed the note, that it was valid, and that he had defaulted. Following defendant Baker’s testimony in which he also admitted executing the note and defaulting on it, the trial judge directed a verdict for the plaintiff bank in the amount of $81,122.36 and costs plus $18,000 in attorney fees. The trial court also directed a verdict against the defendants on the counterclaim. On appeal by defendants, the appellate court initially reversed the trial court, but modified that opinion on rehearing, affirming the directed verdicts, but reversing and remanding for further consideration of the attorney fees granted by the trial court. (88 Ill. App. 3d 28.) The issues before us are whether the trial court correctly directed a verdict for the plaintiff on the note and against the defendants on the counterclaim, and we thus are obliged to view the evidence in its aspects most favorable to the defendants. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

Defendant Baker met the president of Main Bank, Sidney Taylor, in 1970 to discuss the possibility of setting up a computer-service bureau for commercial customers. Following negotiations, it was agreed that Baker and Bourgeois, who were in the business of providing data-processing services, would organize and operate the computer-service bureau incorporated by Taylor as MAS. The defendants owned 20% of the stock of MAS but were to receive 50% of its profits. Main Corporation held the remaining 80% of the stock and received 50% of the profits. This arrangement was to allow the expected losses from MAS’s first three years of operation to be offset by the profits of Main Bank in a consolidated tax return for a substantial tax savings. Baker became president and chief operating officer of MAS, and Taylor became its chairman. Taylor was a principal shareholder of Main Corporation and both president and chairman of the board of Main Bank.

Negotiations culminated in a 1971 management agreement between MAS, signed by Taylor, and BB&A, signed by Bourgeois, which provided that BB&A would utilize its computer expertise to manage and operate the data-processing activities of MAS. Specific functions of BB&A and its compensation were set out. BB&A was considered an independent contractor under the agreement, which was to remain in effect for 10 years.

MAS operated for more than two years by leasing computer time from other businesses after normal working hours. Baker testified that following a feasibility study the parties then agreed to purchase a computer which would be installed on the second floor of the bank. On July 20, 1973, Main Bank loaned Baker and Bourgeois money to purchase the computer at a cost of $283,096. They personally executed the note promising to pay Main Bank $382,180 in 78 monthly payments of $4,549.76, with a final balloon payment of $27,298.72. On July 27 defendants entered into a lease agreement with MAS by which MAS leased the computer equipment for $4,692.62 per month with an option to purchase the equipment at the end of the lease for $28,000. The lease covered the same period as the note, with the lease payments due on the 28th day of each month and the note payments due on the 10th day of the following month. The computer equipment and the lease agreement were pledged as collateral security for the note. Baker testified that, though there was an integration clause in the lease stating that it was the only agreement between the parties and their note to the bank made no reference to the payments thereon being connected with the lease agreement, the note and lease were part of what was essentially a single transaction designed to gain a tax advantage for Baker and Bourgeois in the purchase of the computer equipment.

In a letter on Main Bank stationery dated November 26, 1973, Taylor, as chairman of the board of MAS, notified BB&A that the management agreement would be terminated by MAS as of November 30 because BB&A had “been for some time in default in the performance of the contract in several substantial and serious areas.” The record is unclear as to the nature of the “default,” but in an affidavit referred to by the appellate court in a related suit by Baker on that agreement (Baker, Bourgeois & Associates, Inc. v. Taylor (1980), 84 Ill. App. 3d 909), Baker stated that MAS was having a cash-flow problem, and the defendants were told by Taylor that they would have to contribute $50,000 to alleviate the problem. Defendants were unable to do so, and Taylor shortly thereafter sent the letter terminating the management agreement. Baker testified in the present action that BB&A was instructed to turn over all financial and other records of MAS to Cushman Gray, vice-president of the bank. Gray had no affiliation with MAS.

In the related Baker action, which had been filed in 1974 following termination of the management agreement, the appellate court affirmed the grant of summary judgment against BB&A, but provided that all defendants in that action remain parties upon retrial of the counterclaim issues in this case. (Baker, Bourgeois & Associates, Inc. v. Taylor (1980), 84 Ill. App. 3d 909.) The Baker case is not relevant to our consideration of this action, except to note that the appellate court’s modified opinion in this case, in which it affirmed the directed verdicts in favor of Main Bank and MAS, was inconsistent with its opinion in the Baker case, because no petition for rehearing was filed in Baker.

Though the management agreement was terminated and Baker had sued thereon, MAS continued to make payments under the lease agreement until October 1977. The defendants alleged in their counterclaim that MAS was in default under the terms of the lease on November 2, five days after the October 28 payment had been due. Defendants had continued their note payments to that time. The procedure previously followed by defendants was to deposit the lease payment in their account and then write a check for the note payment, and when the lease payments stopped, they had insufficient funds to make the note payments.

In their answer to the complaint, defendants admitted defaulting on the note, but alleged affirmatively that the note payments were conditioned upon receipt of the lease payments, and they were therefore no longer obligated on the note. In their counterclaim defendants alleged that the Main corporations, through their agents, acted and represented themselves to defendants as a single entity, and that the management agreement, the lease agreement and the note were all parts of a single transaction. They further alleged breach of the lease agreement and sought the unpaid balance. Plaintiff, answering the counterclaim, denied that it acted as a single entity with the Main corporations, denied entering into any agreement with defendants except for the note, and alleged that MAS was the only party obligated on the lease. Plaintiff admitted that MAS stopped making its payments on the lease, but alleged affirmatively that pursuant to the security agreement in which defendants pledged the lease as collateral for the note, plaintiff now possessed the sole right to receive the payments under the lease. Defendants replied, admitting executing the security agreement but denying that they unconditionally pledged the lease agreement as collateral.

The plaintiff’s evidence consisted of the testimony by its president, James Tosto, who succeeded Sidney Taylor as president and chief operating officer of the bank in 1973. The note and security agreement were introduced in evidence, and it was established that the amount due on the loan was reduced by the proceeds of the computer sale by the bank pursuant to the security agreement. The stipulation by Lee Bourgeois in which he admitted the validity of the note and his default thereon was also introduced by the bank. Bourgeois admitted the validity of the lease and security agreement as well, but he did not recall any discussions with officials of Main Corporation concerning the purchase of the computer. The tax deductions he was able to take for depreciation of the computer and interest payments on the note were also stipulated.

Baker was the only witness presented on behalf of defendants. He testified concerning the negotiations with Taylor to set up MAS and later to purchase the computer. The lease was admitted into evidence, and Baker testified that when MAS defaulted and defendants were unable to continue their payments, the computer was sold at auction by the bank. The only testimony by Baker concerning a defense to the suit on the note was that he had negotiated closely with Taylor in his various capacities with Main Corporation, Main Bank and MAS on the management agreement, the note and the lease agreement. Defendants do not contend that there is any ambiguity in any of the written agreements.

On cross-examination Baker stated that he was represented by an attorney when the management agreement was entered into, that there were integration clauses in both the management agreement and the lease declaring the entire agreement to be contained therein, and that there was no written agreement regarding the computer purchase or that the payments on the lease were a condition precedent to payments on the note, stating that those agreements were verbal. He admitted receiving the tax benefits from the purchase of the computer.

The trial court found there was no evidence establishing any agreement other than the written contracts, that the parties had operated at arm’s length, and that there was no misrepresentation made to the defendants. After directing a verdict for Main Bank on the note and on the counterclaim, the trial judge noted some difficulty regarding a finding as to MAS, and the following exchange took place:

“THE COURT: 900 I have found no evidence that you have been able to establish on that counterclaim to show there is any money due and owing at the present time. You haven’t attempted to establish anything after resting your case. Now, I am prepared to have you produce any further evidence you may want, to be able to establish that claim if you wish. But on the other claims, I am making my directed finding.
Do you have any further evidence you want to produce?
[DEFENDANT’S ATTORNEY]: No, your Hon- or.
THE COURT: All right. Then with no further evidence the Court’s going to direct both counterclaims °°°.”

In our judgment the trial court did not err in directing a verdict for the plaintiff on the note. The principal defense was that the note was conditioned upon the performance of other agreements between the parties, a defense dependent entirely upon impermissible parol evidence for its proof.

In some circumstances parol evidence may be considered to aid in the interpretation of a contract (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 283; 9 Wigmore, Evidence §2470 (3d ed. 1940)), and such evidence may be admissible to invalidate a contract under certain circumstances (e.g., State Bank v. Cirivello (1978), 74 Ill. 2d 426 (incomplete instrument); Bell v. McDonald (1923), 308 Ill. 329 (conditional delivery); Van Buskirk v. Day (1863), 32 Ill. 260 (fraud); Restatement of Contracts §238 (1932)), but parol evidence is otherwise inadmissible to vary or contradict the clear written provisions of an integrated contract (Kendall v. Kendall (1978), 71 Ill. 2d 374; Scholbe v. Schuchardt (1920), 292 Ill. 529; Restatement (Second) of Contracts §§239, 241 (Tent. Draft Nos. 1 through 7 1973)). The terms of the note clearly bind defendants, Baker and Bourgeois, to monthly payments until the note is paid. The evidence of Baker that there were oral agreements making the lease payments a condition precedent to the note payments directly conflicts with the written terms of both the note and the lease, and parol evidence is inadmissible to show that an obligation under a note, absolute on its face, is conditional. (Walker v. Crawford (1870), 56 Ill. 444; Houck v. Martin (1980), 82 Ill. App. 3d 205; Ill. Ann. Stat., ch. 26, par. 3—413, Illinois Code Comment (Smith-Hurd 1963).) Even if the note had indicated the lease payments as a source from which reimbursement would be expected, the otherwise unconditional promise to pay would not thus be made conditional. (Rhodes v. Schofield (1955), 263 Ala. 256, 261, 82 So. 2d 236, 240; First National Bank v. Lightner (1906), 74 Kan. 736, 739, 88 P. 59, 60; Bank of Viola v. Nestrick (1979), 72 Ill. App. 3d 276, 279; Ill. Rev. Stat. 1979, ch. 26, par. 3 — 105(l)(f).) The promise could be made conditional if the instrument states that it is subject to or governed by another agreement (People v. Gould (1932), 347 Ill. 298, 301; Ill. Rev. Stat. 1979, ch. 26, par. 3 — 105(2)(a)), or states that it is to be paid only out of a particular fund or source (Wright v. Board of Public Instruction (Fla. 1955), 77 So. 2d 435; First National Bank v. Sullivan (1911), 66 Wash. 365, 119 P. 820; Ill. Rev. Stat. 1979, ch. 26, par. 3 — 105(2)(b)). There is no provision in the note which states that it is subject to the lease agreement or that it is to be paid only out of the proceeds of the lease payments, and the parol evidence is not admissible for the purpose of converting the unconditional promise to a conditional one.

Baker argues, however, that the management agreement, note and lease were executed as part of the same transaction and, therefore, pursuant to section 3 — 119 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 119), should be construed together. It is essentially his position that, construing these instruments together in light of the circumstances under which they were executed, the jury could have found that continuation of the management agreement and payments under the lease agreement were implied conditions precedent to his obligation on the note.

Section 3 — 119 of the Uniform Commercial Code provides:

“As between the obligor and his immediate obligee or any transferee the terms of an instrument may be modified or affected by any other written agreement executed as a part of the same transaction 00°.” (Ill. Rev. Stat. 1979, ch. 26, par. 3—119.)

This section applies the general rule to negotiable instruments that courts will look to the entire contract in writing and thus construe instruments executed as a part of the same transaction, between the same parties, for the same purpose, as a single agreement. H. F. Philipsborn & Co. v. Suson (1974), 59 Ill. 2d 465, 472; Nelson v. John B. Colegrove & Co. State Bank (1933), 354 Ill. 408; Ill. Ann. Stat., ch. 26, par. 3—119, Uniform Commercial Code Comment 3 (Smith-Hurd 1963).

Accordingly, as between the same parties, a note may be affected by a separate writing, including an agreement that upon certain conditions the instrument shall be discharged or is not to be paid. (Ill. Ann. Stat., ch. 26, par. 3 — 119, Uniform Commercial Code Comment 3 (Smith-Hurd 1963).) Parol evidence is admissible for the purpose of establishing that the instruments were executed as part of the same transaction. Stookey v. Hughes (1856), 18 Ill. 55; Sudeikis v. Chicago Transit Authority (1980), 81 Ill. App. 3d 838, 841.

Unlike article 2 of the Uniform Commercial Code, article 3 of the Code does not state general rules as to when an instrument may be varied by parol evidence, except to the extent indicated by section 3 — 118 (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 118). This section states basic rules of construction applicable to instruments in the case of an ambiguity so as to preclude a resort to parol evidence. However, under well-established pre-Code law in Illinois, evidence of oral agreements made at the same time an instrument is executed is not admissible to vary an instrument’s terms even as between the original parties (e.g., Mumford v. Tolman (1895), 157 Ill. 258), and such evidence remains inadmissible under the Code (Ill. Ann. Stat., ch. 26, par. 3 — 119, Illinois Code Comment (Smith-Hurd 1963)). Thus, although article 3 of the Code allows an instrument to be modified by a separate writing executed contemporaneously, consistent with the policy of promoting certainty and security in commercial transactions, it otherwise follows the parol evidence rule that prior or collateral oral agreements are inadmissible to contradict the express terms of a written instrument. Continental Bankers Life Insurance Co. v. Bank of Alamo (Tenn. 1979), 578 S.W.2d 625.

A review of the record demonstrates that the evidence did not support the premise that defendants’ obligation on the note was linked to the management agreement. To the contrary, at the time the management agreement was executed, the prospect of making a computer purchase in the future was speculative, depending upon when it would be financially feasible. We agree with the appellate court that although the parties were aware of the import of the management agreement at the time the note and lease were executed, the management agreement was executed two years earlier and was not made in anticipation of the note and lease agreement. Moreover, defendants’ subsequent conduct in making payments on the note for four years following termination of the management agreement negates any belief on their part that the continuation of the management agreement was a condition precedent to payment on the note. Any contingency would, therefore, have to rise by construing the note and lease agreement as constituting the same transaction.

Section 3 — 119 of the Code contemplates a situation in which the same parties contemporaneously execute an instrument and a separate written agreement. Thus, as a preliminary matter, defendants’ evidence would have had to support their “single entity” theory, since MAS was the lessee under the lease and the Main Bank was the payee on the note. Assuming, however, that the note and lease agreement could be construed as a single transaction between the same parties, the lease does not alter, modify, limit, explain or otherwise affect the terms of the unconditional promissory note (Sturgis National Bank v. Harris Trust & Savings Bank (1933), 351 Ill. 465, 478); there is no reference whatsoever in the lease to the note or computer purchase. Therefore, even if the jury could have construed the two documents together, it would have had to rely on impermissible parol evidence to supplement the terms of the written contracts. (Texas Export Development Corp. v. Schleder (Tex. Civ. App. 1974), 519 S.W.2d 134.) Thus, defendants’ contention that an implied contingency arises by construing the note and lease agreement as one transaction is unsupportable because such an implication can arise only as a result of the inadmissible parol evidence.

A further argument is made that the note was delivered for a special purpose. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 306(c).) Though Baker’s testimony would tend to indicate that the two separate transactions relating to the note and lease were related, there is no evidence to support the contention that the note was delivered by defendants for any “special purpose” other than as the unconditional promise of the defendants to repay the loan with interest. The burden of proving such a defense rests on defendants, and there is nothing in this record warranting submission to the jury of the question of whether the note was delivered for the type of special purpose contemplated by the law as a defense to the note.

Baker also asserts that the bank unjustifiably impaired the collateral for the note by cancelling the management contract. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 606(l)(b).) This defense under the Code does not apply to makers or co-makers (Wohlhuter v. St. Charles Lumber & Fuel Co. (1975), 62 Ill. 2d 16), and the record does not establish that Baker acted as other than a co-maker in signing the note.

It is further argued that good faith was not exercised by Taylor as an agent for the bank. The trial judge found to the contrary, however, and we cannot say that finding is contrary to the manifest weight of the evidence.

The final defense asserted under the UCC was partial failure of consideration (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 408). The consideration for the note was the payment by the bank of the money borrowed to purchase the computer. It is undisputed that defendants received the full amount recited as consideration in the note. As indicated earlier, there is nothing other than the inadmissible parol evidence to indicate any conditional connection between the note payments and the lease payments, and termination of the lease payments was not a failure of consideration for the note. While the evidence did establish the several parties and the several agreements were not totally unrelated, that evidence was insufficient to create a jury question on the asserted defenses to the action on the note. Consequently, the directed verdict thereon was correct.

In their counterclaim against the Main Bank, the defendants seek to disregard the separate corporate existence of MAS and hold the bank liable under the lease agreement. The lease was entered into between defendant and MAS. Indeed, Baker, as president of MAS, signed the lease as lessee as well as signing in his individual capacity as lessor. Yet, he argues that the trial court erred in directing a verdict for the bank on the counterclaim because he asserts the evidence was overwhelming that the “Bankers” tricked him and Bourgeois into signing the note and otherwise used the corporate form to manipulate them. In view of the unity of interest between Taylor, Cole and the Main corporations, Baker asserts that Illinois case law requires the corporate fiction to be disregarded. We cannot agree.

It is a well-established principle that a corporation is separate and distinct as a legal entity from its shareholders, directors and officers and, generally, from other corporations with which it may be affiliated. (Dregne v. Five Cent Cab Co. (1943), 381 Ill. 594.) Stock ownership alone in one corporation by another does not create an identity of interest between the two or create the relation of principal and agent, representative, or alter ego between the two. Nor does the use of common officers and directors of itself render one corporation liable for the obligations of another. (Superior Coal Co. v. Department of Finance (1941), 377 Ill. 282.) These practices are common and exist in most parent-subsidiary relationships. (Steven v. Roscoe Turner Aeronautical Corp. (7th Cir. 1963), 324 F.2d 157, 161.) Generally, before the separate corporate identity of one corporation will be disregarded and treated as the alter ego of another, it must be shown that it is so controlled and its affairs so conducted that it is a mere instrumentality of another, and it must further appear that observance of the fiction of separate existence would, under the circumstances, sanction a fraud or promote injustice. People ex rel. Scott v. Pintozzi (1971), 50 Ill. 2d 115, 128-29; Dregne v. Five Cent Cab Co. (1943), 381 Ill. 594, 603-04; Superior Coal Co. v. Department of Finance (1941), 377 Ill. 282, 294; see generally Annot., 38 A.L.R.3d 1102 (1971).

While, ordinarily, when multiple corporations are involved, a party seeks to pierce the corporate veil to hold a parent liable for its subsidiary’s acts or the subsidiary responsible for the acts of its parent, defendants seek to hold the plaintiff bank liable for its affiliate’s breach of contract. However, the doctrine of piercing the corporate veil is not limited to the parent and subsidiary relationship; the separate corporate identities of corporations owned by the same parent will likewise be disregarded in an appropriate case. C. M. Corp. v. Oberer Development Co. (7th Cir. 1980), 631 F.2d 536, 539; In re Bowen Transports, Inc. (7th Cir. 1977), 551 F.2d 171, 179.

The only evidence presented by defendants in support of their counterclaim was Baker’s testimony, which we believe was insufficient to warrant submission to the jury of the single-entity theory. The evidence clearly supports the trial court’s findings that the parties operated at arm’s length, that there was no evidence of a misrepresentation of any kind, that no one attempted to deceive defendants or conceal anything under corporate names, and that Baker, who was represented by counsel, had a total understanding of all of the transactions. Nor was there any evidence which indicated that MAS failed to maintain adequate corporate records or to comply with corporate formalities, that it was undercapitalized, or that corporate funds were commingled.

Baker’s own testimony established that he was fully cognizant of MAS’s separate corporate existence; Baker and Bourgeois owned 20% of MAS’s stock and received 50% of its profits, and Baker himself acted as president and agent of MAS, fostering that image and inducing others to deal with it on a corporate basis. (Bankers Trust Co. v. Chicago Title & Trust Co. (1980), 89 Ill. App. 3d 1014, 1021.) Indeed, it was Baker who signed on behalf of MAS the lease agreement he now seeks to hold the bank liable under. Baker cannot assert the equitable doctrine of piercing the corporate veil to disregard the separate corporate existence of a corporation he himself created to gain an advantage which would be lost under his present contention. Bevelheimer v. Gierach (1975), 33 Ill. App. 3d 988, 993; Earp v. Schmitz (1948), 334 Ill. App. 382.

Baker’s assertion that Taylor controlled both MAS and Main Bank and was therefore acting on behalf of the bank when he proposed the computer purchase scheme is unsupportable (Loewenthal Securities Co. v. White Paving Co. (1932), 351 Ill. 285, 294-96). Baker’s testimony did not establish that Baker believed the Main Bank would be responsible for the lease payments in the event of MAS’s default. At most, it established that the discussions concerning the computer purchase, loan and lease agreement took place at the same time, and it was Taylor who suggested that Baker and Bourgeois buy the computer and take the tax advantage. But Baker was not in any way misled as to the substance of the transactions; he testified that the computer purchase was set up in the manner indicated because of the resulting tax advantage that inured to him and Bourgeois.

Baker’s reliance on the events which took place subsequent to the lease agreement is misplaced. The fact that following termination of the management agreement he was told to turn over all the records of MAS to Cushman Gray, a vice-president of the bank, does not negate the circumstances under which the lease agreement was made.

In summary, defendants’ evidence was insufficient to warrant submitting to the jury the issue of whether the plaintiff bank was liable for the contract of its affiliate MAS. Accordingly, the directed verdict on the counterclaim in favor of the Main Bank is affirmed. However, the directed finding in favor of MAS on the lease agreement was error.

The lease was admitted into evidence and clearly established the obligation on the part of MAS to pay for the use of the computer. Baker’s testimony and the admissions of the parties established that lease payments stopped October 28, 1977, and that MAS was thus in default on the lease. The trial court seemed to believe that a directed verdict for MAS was warranted because Baker did not name a dollar amount due him following the default. That holding was error. The amount of each payment was specified in the lease, and the number of payments due during the remaining life of the lease could be readily determined based upon the date of default. A simple computation would indicate the amount due the defendants. The trial court should have allowed the jury to determine whether the breach by MAS was justified, and, if not, the amount of damages suffered by defendants. We note that the effect of the security agreement in which the lease was pledged as collateral was not addressed below. If it is found to give the bank the right to payments under the lease agreement, since the payments on the note and those under the lease were not identical, the amount of any discrepancy must be determined. We accordingly reverse the directed verdict for MAS on the counterclaim.

In awarding attorney fees the trial court made no finding as to the portion expended in recovering on the note itself, to which the bank is clearly entitled. It is not, however, entitled to recover from defendants the portion attributable to the balance of the litigation.

That portion of the appellate court judgment affirming the directed verdicts for the Main Bank on the note and the counterclaim is affirmed; that portion of the appellate court judgment affirming the circuit court’s directed verdict for MAS on the lease is reversed; the judgment of the appellate court reversing the award of attorney fees is affirmed. The cause is remanded to the circuit court for further proceedings consistent herewith.

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

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


author: MR. JUSTICE WARD

text:
    (No. 54332.
    MARINE HEMPHILL, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Oscar Mayer & Co., Appellant).

      Opinion filed September 30, 1981.

      Rammelkamp, Bradney, Hall, Dahman, Kuster & Collins, of Jacksonville (Larry D. Kuster, of counsel), for appellant.
    Knuppel, Grosboll, Becker & Tice, of Petersburg (John L. Knuppel, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Marine Hemphill filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) for injuries sustained in the course of her employment with Oscar Mayer and Co., Inc., in Beardstown. An arbitrator awarded compensation for permanent and complete loss of use of 11% of her right hand. On review, however, the Industrial Commission found that the claimant had suffered a permanent loss of use of 75% of her right middle finger and awarded additional compensation. The circuit court of Cass County set aside the Commission’s decision and held that the award should have been for 100% loss of use of the finger. The respondent brought a direct appeal to this court under Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

The accident occurred on May 4, 1978, when the claimant’s right middle finger was struck by the blade of a sausage mixer, thereby severing the distal phalanx or end of the finger. Her hand was in a cast for about three weeks, and she subsequently was able to return to her regular duties. That the accident occurred as described has not been questioned; the only issue has been the nature and extent of the injury.

The medical evidence was set out in reports from three physicians who had treated or examined the claimant over a period of 18 months. The record shows that Dr. Arthur G. Hyde, who performed the primary surgery on claimant’s hand, debrided and reamputated the distal phalanx with trimming of the head of the middle phalanx. His examination on March 12, 1979, showed a loss of approximately 2.5 centimeters (or about one inch) of the right middle finger and some loss of grip strength.

The report of Dr. Allen Van Beek, dated November 17, 1978, stated that the claimant had a 2.5 centimeter shortening of the right middle finger when compared to the normal left middle finger.

The claimant testified that she felt pain when lifting heavy objects, and that there was tenderness at the point of amputation and some loss of grip strength.

On review before the Industrial Commission, the claimant introduced a report of Dr. Horacio R. Rivero made on September 20,1979. It stated that an X ray revealed “loss of the distal phalanx [of the injured finger] and portion of the middle one.” Dr. Rivero further noted findings of pain, stiffness, and limitation of motion of the right middle finger and right wrist due to partial amputation of the finger. A supplemental report dated October 9, 1979, noted a total loss of approximately 1% inches of the right middle finger.

Section 8(e)(8) of the Workmen’s Compensation Act (Ill. Rev. Stat., 1978 Supp., ch. 48, par. 138.8(e)(8)) provides:

“The loss of the first or distal phalanx 999 of any finger 999 shall be considered to be equal to the loss of one-half of such 999 finger 999. The loss of more than one phalanx shall be considered as the loss of the entire finger

A similar provision in a predecessor statute (Ill. Rev. Stat. 1943, ch. 48, pars. 145(e)(6), (7)) was interpreted by this court in Chicago, Wilmington & Franklin Coal Co. v. Industrial Com. (1948), 399 Ill. 76, 79:

“The plain meaning of the statute is that the loss, or the permanent and complete loss of use, of two or more phalanges, or a substantial portion of the second phalange is a prerequisite to an award for one hundred per cent loss by amputation of a finger. To entitle a claimant to an award for the loss of a finger where he has suffered the loss of the first phalange and a partial loss of the second phalange, the loss, or the loss of use, of the second phalange must be substantial in character.”

In that case, the court found that the loss of the first phalanx and the removal of the condyles and one-eighth inch of the second phalanx was substantial and entitled the claimant to compensation for loss of use of his whole finger.

It is, of course, the function of the Commission to decide questions of fact, including the determination of the extent of disability. Its decision will not be reversed unless it is contrary to the manifest weight of the evidence. (Oscar Mayer & Co. v. Industrial Com. (1980), 79 Ill. 2d 254.) This is so even though a court might draw different inferences from the same evidence. A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240.

It is obvious that the Industrial Commission, in awarding the claimant compensation for a 75$ loss of use of the finger, had found that she had suffered a loss of more than the first phalanx of her right middle finger. This finding was not contrary to the manifest weight of the evidence. Dr. Rivero’s report stated there was “loss of the distal phalanx and portion of the middle one.” That this represented a substantial loss of the second phalanx seems evident from Dr. Rivero’s statement that there was a “total loss of approximately l-M inches” of the right middle finger. It is immaterial whether the entire loss was due to traumatic amputation or part of the loss was caused by necessary surgical amputation. Begich v. Industrial Com. (1969), 42 Ill. 2d 32.

The Commission’s finding was not contrary to the manifest weight of the evidence, but the Commission erred in awarding compensation for 75$ loss of use of the finger. We consider that the legislative intendment was unequivocal: “The loss of more than one phalanx shall be considered as the loss of the entire *** finger 0°°.” (Ill. Rev. Stat., 1978 Supp., ch. 48, par. 138.8(e)(8).) The Commission had no authority to make an award for other than 50$ or 100$ loss of use. See Macon County Coal Co. v. Industrial Com. (1937), 367 Ill. 458.

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

Judgment affirmed.