author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE COLEMAN, Defendant-Appellant.
    First District (1st Division)
    No. 82—3108
    Opinion filed May 14, 1984.

      Frazin & Fisher, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman and Adam A. Dabek, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Following a jury trial, defendant Clarence Coleman was convicted of murder and sentenced to serve 30 years in the Illinois Department of Corrections.

On appeal, defendant contends that the trial court committed reversible error by: (1) limiting defense counsel’s cross-examination of a prosecution witness for the purpose of impeachment concerning her prior omission of a material fact from a police report; (2) refusing to give the jury manslaughter instructions based on provocation; and (3) denying defense counsel the right to question jurors during voir dire regarding their attitudes on self-defense.

We affirm.

Three witnesses to the murder testified for the State at trial: Dee Hinton, Mary Weeks and Ernest Walker. All three witnesses knew both defendant and the victim, James Fluker.

Dee Hinton testified that at 7:30 p.m. on August 28, 1981, she was watching television in her apartment. When she looked out the window during a commercial break, she noticed two men standing by the side of the street. They were about a foot apart and were talking to one another. She did not see a gun in either man’s hand. Although her view of the two men was unobstructed, she observed them for a split second. After she turned back to watch television, she heard a shot. She looked up and saw one man lying on the ground and the other walking away.

Mary Weeks testified that at the time of the shooting, she was sitting by her bedroom window which overlooks a church located on the east side of Justine Street in Chicago. At the time, she had known Fluker for eight years and defendant for four years. She noticed Fluker and defendant walking along opposite sides of Justine. When defendant reached Weeks’ window, he crossed the street and stood directly in front of Fluker. She further testified that defendant held a nickel-plated gun in his right hand as he crossed the street. She was also able to see that Fluker did not have a gun in either hand. Weeks stated that when she looked away, she heard a shot. She quickly turned back to look outside and saw sparks in the church window in back of defendant. She pulled her shade down and waited a few minutes. When she raised the shade, she saw Fluker lying on the sidewalk. Later that evening, Weeks was interviewed by police officers at her apartment. On cross-examination, Weeks testified that she told the police that she saw defendant with a silver gun in his hand. She could not remember the name of the officer who took her statement.

The third witness for the State was Ernest Walker. Walker testified that on the evening of the shooting, he was standing on the west side of Justine Street about 20 feet north of defendant. He testified that defendant was holding a chrome-plated gun in his hand when he walked up to Fluker. He further testified that he saw defendant shoot Fluker in the chest. On cross-examination, Walker stated that Fluker did not have a gun when he was shot.

Defendant testified that on August 28, 1981, he and Fluker had a fight over a debt. Police broke up the fight, but neither he nor Fluker wished to file a complaint. About 20 minutes later, defendant left his home with a gun in his belt. He approached Fluker and suggested that they “try to iron this problem out.” Defendant denied having a gun in his hand when he approached Fluker. He further testified that he pulled out his gun and shot Fluker after Fluker reached for his gun.

During cross-examination, defendant estimated that 40 minutes passed between the time defendant was attacked by Fluker and the time defendant shot Fluker. He also admitted that he was not angry when he shot Fluker.

The jury found defendant guilty of murder. This appeal followed.

First defendant contends that the trial court erred in not permitting defense counsel to impeach Mary Weeks through an alleged prior omission of a material fact. The alleged omission arises from a police report prepared by Detective Rankin, the officer who interviewed Weeks after the shooting. The report did not include Weeks’ statement that she saw defendant cross the street with a nickel-plated gun in his right hand. It did, however, include the statement which Weeks allegedly made to Detective Rankin that she saw defendant shoot Fluker.

During a side-bar conference, defense counsel sought the court’s permission to question Detective Rankin regarding whether Weeks told him that she saw a gun in defendant’s hand when he crossed the street. The trial judge would not permit defense counsel to question Rankin about the omission of this fact from the police report. However, the trial judge would permit defense counsel to question him regarding whether Weeks told him that she saw defendant shoot Fluker because she had testified to the contrary at trial.

A proper foundation must be laid before a witness may be impeached by prior inconsistent statements. (People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289; People v. Almo (1984), 123 Ill. App. 3d 406.) To establish a proper foundation the witnesses must be asked about the time, place and circumstances of the statement. (People v. Henry (1970), 47 Ill. 2d 312, 265 N.E.2d 876.) The purpose of a proper foundation is to alert the witness to any prior inconsistent statement or omission in order to avoid unfair surprise and to permit him full opportunity for explanation. People v. Moses (1957), 11 Ill. 2d 84, 142 N.E.2d 1.

In the instant case, defense counsel asked Weeks if she told the police who interviewed her that she saw defendant with a silver gun in his hand. Therefore, she was alerted to the substance of the remark which was omitted from the police report. She was not, however, alerted to the identity of the person to whom the statement was made. Defense counsel asked Weeks if she remembered talking to Officers Bedren or Rockowicz. She was never asked about any conversation she had with Detective Rankin. We conclude that there was no foundation laid for impeachment of Weeks through the testimony of Detective Rankin.

Furthermore, we find that the trial court allowed defense counsel wide latitude in his attempt to impeach Weeks despite this lack of foundation. (People v. Cox (1981), 100 Ill. App. 3d 272, 426 N.E.2d 1050.) Defense counsel was permitted to examine Detective Rankin concerning whether Weeks told him she saw defendant shoot Fluker, but abandoned this line of questioning. (People v. Almo (1984), 123 Ill. App. 3d 406.) Accordingly, we hold that the trial court’s ruling which restricted Detective Rankin from testifying as to the omission was proper.

Next, defendant contends that the trial court erred in refusing to instruct the jury on voluntary manslaughter based on provocation. At the instruction conference, defense counsel sought to have two versions of the voluntary manslaughter instruction given to the jury. The trial judge refused to give the instruction on voluntary manslaughter based on provocation, but allowed the instruction on voluntary manslaughter based on reasonable belief in self-defense.

It is well settled that if there is evidence in the record which, if believed by the jury, would reduce a charge of murder to manslaughter, the manslaughter instruction must be given. (People v. Sykes (1977), 45 Ill. App. 3d 674, 359 N.E.2d 897.) However, if the evidence clearly demonstrates that the crime was murder, it would be error to give instructions on theories of voluntary manslaughter. People v. Causey (1978), 66 Ill. App. 3d 12, 383 N.E.2d 234.

Defendant argues that evidence was presented at trial which established that the defendant and the deceased exchanged blows shortly before the shooting. Citing Sykes for the proposition that mutual combat is sufficient to support a finding of serious provocation, defendant further argues that the evidence of the altercation justified the giving of the manslaughter based on provocation instruction. This argument overlooks the fact that sufficient time had lapsed between the alleged provocation and the homicide to permit the voice of reason to be heard. Under such circumstances, this court has held that the crime committed must be murder rather than manslaughter based on provocation. (People v. Evans (1980), 84 Ill. App. 3d 422, 405 N.E.2d 503.) In the instant case, defendant himself testified that there was a 40-minute interval between the fight with the victim and the shooting. Moreover, when the trial court asked defendant if he was still angry after the fight, but before the time he shot the victim, he replied “No, sir. I wasn’t.” Clearly, defendant’s admission indicates that he was not acting under the influence of a sudden and intense passion when he shot the victim. Accordingly, we find that the trial court properly determined that the record was devoid of evidence from which the jury could have found defendant guilty of voluntary manslaughter based on provocation. People v. Causey (1978), 66 Ill. App. 3d 12, 383 N.E.2d 234.

Finally, defendant contends that the trial court erred by refusing to question jurors during voir dire examination about their opinions on self-defense. Defense counsel sought the court’s permission to ask three questions of the prospective jurors. These questions related to whether the jurors believed in the right of self-defense and whether they believed that under certain circumstances a person would have the right to use deadly force to prevent his own death. All three questions were refused.

The scope of the voir dire examination rests within the sound discretion of the trial judge. (People v. Phillips (1981), 99 Ill. App. 3d 362, 425 N.E.2d 1040.) Reasonable limitations on voir dire may not directly or indirectly concern matters of law or jury instructions. People v. Phillips (1981), 99 Ill. App. 3d 362, 425 N.E.2d 1040.

We find People v. Bradley (1981), 97 Ill. App. 3d 1100, 424 N.E.2d 33, controlling on this issue. In Bradley, the court held that it was not an abuse of the trial court’s discretion to refuse to question jurors regarding their attitudes on self-defense. There, the trial judge refused the questions because he felt it would confuse the jury. Furthermore, the court determined that it would be better to instruct the jury on the law of self-defense at the close of the evidence. We believe the rationale under Bradley is applicable to the instant case. Accordingly, we find that it was not an abuse of discretion for the trial court to prohibit defense counsel from asking the jurors their opinions on self-defense.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


source: Caselaw Access Project

author: JUSTICE KASSERMAN

license: Public Domain

text:
    MARLENE MILLER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (General Motors Corporation, Electro-Motive Division, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—0374WC
    Opinion filed May 16, 1984.
    Gordon & Gordon, Ltd., of Chicago (Robert E. Gordon, of counsel), for appellant.
    Thomas D. Nyhan and William A. Morgan, both of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago (Elmer W. Johnson, of counsel), for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, Marlene Miller, sustained injuries while in the employ of respondent, Electro-Motive Division, General Motors Corporation. She filed an application for adjustment of her claim for compensation under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). An arbitrator awarded petitioner benefits for temporary and permanent total disability and for medical expenses; however, the Industrial Commission reversed the arbitrator and awarded the petitioner nothing. Petitioner sought review and in the circuit court of Cook County by writ of certiorari, and Electro-Motive moved to quash the writ, alleging that petitioner had failed to make timely payment of the cost of preparing a transcript of the record as required by section 19(f) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f)). The circuit court quashed the writ and dismissed the court proceedings, and Miller perfected the instant appeal.

Miller, a 24-year-old receiving clerk employed by Electro-Motive, noticed pain in her back when she moved a heavy pallet on January 7, 1979. Upon Miller’s application for adjustment of her claim for workers’ compensation benefits, the arbitrator awarded her compensation for 52 weeks for temporary total incapacity for work, 110 weeks for permanent partial disability for the loss of use of her right leg to the extent of 55% thereof, and $2,243.30 for medical and hospital services. The Industrial Commission reversed the decision of the arbitrator and awarded petitioner nothing. The Commission found that Miller failed to prove accidental injuries arising out of and in the course of her employment because she failed to provide the hospital with a history of the accident. When Miller sought review in the circuit court of Cook County by writ of certiorari, Electro-Motive moved to quash the writ, alleging that petitioner had failed to pay for the probable cost of the record within the 20-day period as required by section 19(f) of the Workers’ Compensation Act. In support of its motion to quash, respondent filed the affidavit of Elsie Kurasch, secretary of the Illinois Industrial Commission, in which Ms. Kurasch represented that she had not received payment for the probable costs of the record in the instant case, that she had diligently searched the records of the Illinois Industrial Commission and found no record of such payment, and that no receipt for said payment had been issued by the Illinois Industrial Commission. Petitioner filed the affidavit of Richard P. Nilson, an attorney practicing in the firm representing petitioner. Nilson stated that on March 5, 1982, the date he had filed the matter in the circuit court of Cook County, he mailed a check to Sherry Johnson, the clerk in charge of handling petitions for review at the Industrial Commission. Nilson further stated that on March 5, 1982, he had advised Sherry Johnson that he was mailing her a check for $175 and would need the transcript prepared. Nilson further stated that a check was issued from the court-cost account of his firm and that neither Nilson nor any member of the firm had been advised that the check was not received by the clerk until the motion to quash was presented. Nilson further represented that it had always been the practice of his firm to mail checks to the clerk of the Industrial Commission and that it was contemplated that a receipt was to be received later in the mail. Nilson said that no receipt was received in the instant case but that upon his firm’s notification that no monies had been received, a new check was issued and a receipt was received. Nilson further deposed that his practice of having the receipt mailed was common among attorneys practicing before the Industrial Commission and that the clerks, including Sherry Johnson, had always agreed to facilitate the process by allowing the writ of certiorari to issue and by permitting the appeal to be perfected while receiving monies through the mail. Nilson concluded that in this particular instance the initial check must have been lost or mislaid.

Electro-Motive’s reply included the affidavit of Sherry Johnson, the individual alluded to in the affidavit of Richard R Nilson. The affidavit stated that on March 5, 1982, Ms. Johnson received a writ of certiorari issued by the circuit court of Cook County in the instant case but that no receipt for payment of the probable cost of the record had been issued as of that date because no payment had been made. She also stated that she had no further communications from the attorney of either party until the middle of June 1982, when a representative of respondent’s attorney inquired why the record had not been filed with the clerk of the circuit court of Cook County. She related that she advised that individual that the record had not been filed because the costs had not been paid. Ms. Johnson stated that she then attempted to contact petitioner’s attorneys and left a message advising them of the nonpayment. She further stated that, as of June 18, 1982, payment for the transcript had not been received and no receipt had been issued.

Petitioner has appended to her brief on appeal a copy of the statement of account of the Industrial Commission transcript deposit fund indicating, in the instant case, a deposit of $175 on June 23, 1982, no charge for court reporter’s charges, and a refund due of $169.40 after deducting a $5.60 charge for forms. This document also states that the record was sent to the circuit court.

The sole issue presented by the instant appeal is whether petitioner’s actions were sufficient under section 19(f)(1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f)(1)) to give the circuit court of Cook County subject matter jurisdiction to review the decision of the Illinois Industrial Commission by writ of certiorari.

Section 19(f)(1) of the Act, in pertinent part, states as follows: “[A] suit by writ of certiorari shall be commenced within 20 days of the receipt of notice of the decision of the Commission. * * * [N]o praecipe for a writ of certiorari may be filed and no writ of certiorari shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court a receipt showing payment of the sums [determined to be the amount of the probable cost of the record] to the Secretary or Assistant Secretary of the Commission * * Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f)(1).

The supreme court has consistently held that when the circuit court hears cases on certiorari to the Industrial Commission, it exercises a special statutory jurisdiction and strict compliance with statutory requirements for the issuance of the writ must affirmatively appear in the record. Furthermore, a litigant seeking to review a decision of the Industrial Commission must exhibit to the clerk of the circuit court affirmative proof of payment of the amount of the probable cost of the record. If this condition precedent for the issuance of a writ of certiorari is not met, the circuit court does not have subject matter jurisdiction. Arrington v. Industrial Com. (1983), 96 Ill. 2d 505, 508-09, 451 N.E.2d 866, 867; American Steel Foundries v. Industrial Com. (1983), 96 Ill.2d 513, 518-19, 451 N.E.2d 883, 885-86.

Petitioner concedes that actual payment was not made to the Industrial Commission within the 20-day period during which review proceedings may be instituted; however, she urges that an exception to the requirements of the section 19(f) of the Act is warranted in the case at bar because the affidavit of her attorney establishes the timely mailing of the required payment and, also, that it is conceded that the record had already been prepared at the time of review.

In Arrington the court considered an identical contention. There the affidavit filed by the employee’s attorney indicated that a check for the payment of the probable cost of the record had been mailed to the secretary of the Industrial Commission. The court concluded that, “[s]ince the check might have been lost or misplaced in transit by the postal service, this affidavit is inadequate to demonstrate that the Commission had actually received payment of the probable cost of the record before the writ of the circuit court issued.” (Arrington v. Industrial Comm. (1983), 96 Ill.2d 505, 510, 451 N.E.2d 866, 868.) Similarly, in the instant case, the affidavit of petitioner’s counsel merely establishes that payment was mailed. It does not adequately demonstrate that payment of the probable cost of the record was actually made, a condition precedent to the issuance of the writ of certiorari.

Furthermore, in American Steel Foundries the court noted that, although section 19(f)(1) of the Act does not require physical exhibition of a receipt of payment, the circuit court clerk must in some manner confirm that the Industrial Commission has in fact received payment of the probable costs of the record. (American Steel Foundries v. Industrial Com. (1983), 96 Ill. 2d 513, 516, 451 N.E.2d 883, 884.) In the case at bar, both the secretary of the Industrial Commission and the person responsible for issuing receipts for payments made to the Commission represented that no payment had been made to the Commission by petitioner during the requisite 20-day period. We find American Steel Foundries to be dispositive and reject petitioner’s contention that the case at bar is distinguishable because the record “had already been transcribed and paid for prior to the filing of the writ.” The record contains no evidence to support petitioner’s contention that the transcript previously had been prepared and paid for. More importantly, the record conclusively establishes that payment of the probable cost of the record was not made within the statutory period set forth in section 19(f)(1) of the Workers’ Compensation Act. As our supreme court observed: “The language of section 19(f) * * * simply admits of no construction which would permit issuance of the writ *** prior to the time the Commission received payment.” 96 Ill. 2d 513, 518, 451 N.E.2d 883, 885.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SEIDENFELD, P.J., McNAMARA, BARRY, and WEBBER, JJ., concur.


author: JUSTICE WEBBER

text:
    TOMAS CASIMIRO, a/k/a Alcadio Mendoza, et al., Appellants, v. THE INDUSTRIAL COMMISSION et al. (Hinsdale Nurseries, Inc., Appellee).
    First District (Industrial Commission Division)
    No. 1—84—373WC
    Opinion filed May 16, 1984.

      Lewis & Davidson, Ltd., of Chicago (James J. Schneider, of counsel), for appellants.
    Musschoot, Womack & Galich, of Chicago (Steven M. Selan, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Petitioners Tomas and Felix Casimiro are brothers. They filed claims under the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for injuries sustained when they were assaulted and beaten on May 28, 1976, by fellow employees of respondent, Hinsdale Nurseries. Pursuant to stipulation, both of the claimants’ cases were consolidated for hearing before an arbitrator. The arbitrator denied compensation to the claimants, holding that they had failed to prove that they had sustained injuries arising out of and in the course of their respective employment by respondent. On review, the Industrial Commission modified the decision of the arbitrator. It concluded that the injuries sustained by the claimants arose out of but not in the course of their employment. The circuit court affirmed the decision of the Commission. This appeal followed.

The relevant facts are not in dispute. The claimants themselves were the only witnesses to testify. On May 28, 1976, the claimants were employed by the respondent nursery. They worked both inside the nursery and as landscapers at various job sites. On May 28, claimants were assigned to a work crew whose job it was to plant 3,000 trees. Felix was appointed crew boss. He had never held this position before. The usual boss was Hector Contrares, but Felix was ordered to supervise because he had more experience planting trees. Felix’ appointment as boss spurred resentment among other crew members. Contrares and another worker, Richardo Hernandez, taunted Felix and his brother and generally refused to acknowledge Felix’ authority.

At the close of the workday, the crew was treated to beer by the man at whose place they had been working. Shortly after 6 p.m., the crew returned to the nursery. Once there, they went to their living quarters. Inside the nursery grounds, respondent maintained a house in which the nursery workers lived. Felix, while working for respondent, had lived in these quarters for 21/2 years. Tomas, who was a new employee, had lived there for about two weeks. The quarters were rented to the workers at a nominal fee. Living at the nursery was optional with the workers; it served as a convenience to them.

Once back at the nursery, dinner was prepared and additional beer was drunk. The taunting of the claimants continued and an argument among the workers erupted at about 11 p.m. The claimants were severely injured when beaten with a pipe wielded by Contrares. Tomas was also injured by Hernandez, who clubbed him with a bar. There had previously been no serious disagreements among the members of the work crew. The claimants’ uncontradicted testimony was that the combat was unprovoked and arose out of the dispute concerning Felix’ appointment as boss.

The issue is whether the claimants suffered injuries arising out of and in the course of their employment. Where, as here, the facts are not in controversy, the question is one of law. (Osborn v. Industrial Com. (1971), 50 Ill. 2d 150, 277 N.E.2d 833.) The phrases “arising out of” and “in the course of employment” are used conjunctively. An injury “arises out of” one’s employment if its origin is in some risk connected with or incidental to the employment so that there is a causal connection between the employment and the accidental injury. (Material Service Corp. v. Industrial Com. (1973), 53 Ill. 2d 429, 292 N.E.2d 367.) The phrase “in the course of” relates to the time, place, and circumstances under which the accident takes place. (Loyola University v. Industrial Com. (1951), 408 Ill. 139, 96 N.E.2d 509.) No precise rule can be established to determine when an injury arises in the course of employment. However, again, a causal relationship between employment and the injury is required. Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272, 309 N.E.2d 557.

In this case, the Industrial Commission found that a causal connection existed between the dispute over Felix’ status as boss and the assault which resulted in the claimants’ injuries. Thus, it held that the injuries arose out of their employment. The Commission concluded, however, presumably because the injuries occurred after work hours and in a place that the claimants’ employment did not require them to be, that the injuries did not arise in the course of their employment.

The claimants, relying principally upon Technical Tape Corp. v. Industrial Com. (1974), 58 Ill. 2d 226, 317 N.E.2d 515, and Scholl v. Industrial Com. (1937), 366 Ill. 588, 10 N.E.2d 360, urge that the latter finding was in error. They contend that the origin of the injuries was a work dispute and that they are entitled to compensation. We disagree.

In Scholl, the decedent, Scholl, had worked for his employer as a foreman. A man named Greene worked under his direction and was eventually discharged by Scholl. Greene reapplied for work but was told by the employer that his reemployment was dependent upon Scholl’s approval. Greene, on one occasion, went to Scholl’s home to talk to him about getting a job. He left the house shaking his fist at Scholl. Two days later Greene met Scholl a short distance from Scholl’s home en route to the work factory. Greene invited Scholl into his car, hoping to force Scholl to put him back to work. Greene was armed with a gun and shot and killed Scholl while still a number of blocks from work. Scholl’s death was held, as a matter of law, to have arisen out of and in the course of his employment.

Claimants urge that Scholl supports their contention that injuries resulting from an assault by a fellow employee outside of the work premises are compensable if the dispute originated at work. The holding of Scholl, however, is much narrower. The court stated:

“The point is not so much where or when the shooting actually occurred as it is that, at that particular time Scholl, by reason of his employment, and in the performance of a duty arising therefrom, was subjected to an unforeseen risk which brought about his death.” Scholl v. Industrial Com. (1937), 366 Ill. 588, 595, 10 N.E.2d 360.

Thus, it is apparent that the court regarded as significant the fact that Scholl’s employer had specifically directed Greene to contact Scholl for the purpose of obtaining reemployment. The court concluded that the incident occurred in the course of employment since at the time of the assault, although not specifically at the place of employment, the employee was doing work connected with or incidental to his employment.

In this case, the claimants’ work obligations to respondent ended with the work day. It cannot be said that at the time of the assault the claimants were performing a duty connected with or incidental to their employment.

The claimants’ reliance upon Technical Tape Corp. is also misplaced. In that case, the claimant was employed on a night shift. He was told to clean the residue from a glue churn. The ingredients of the glue included toluene, resins, and rubber. When the claimant had finished his task, he felt a burning sensation in his feet and legs and also felt nauseated and dizzy. At the completion of his shift, some 15 minutes later, he drove his car erratically for about five miles and then ran a stop sign and collided with another car. The arbitrator awarded the claimant compensation for his injuries. The employer filed a petition for review with the Commission. A physician who had examined the claimant shortly after the accident stated that it was obvious that he had been exposed to a large amount of toluene. This, he said, could cause dizziness and a feeling of intoxication. The Commission, the circuit court, and the supreme court confirmed the award. The supreme court concluded that the evidence showed that the claimant’s intoxication was the result of his cleaning the churn and that the injuries sustained in the collision had their origin in the intoxication.

Here, although there was a causal connection between the dispute concerning Felix’ appointment as boss and the claimants’ injuries, we conclude that the injuries did not have their origin in the dispute. An accident may fairly be said to arise “in the course of” the employment if it was the end product of a force or cause set in motion in the course of employment. In this case, the ultimate cause of the claimants’ injuries was the blows delivered by their assailants. Because, in this case, and unlike in Technical Tape Corp., there is an absence of some measurable act or force occurring while the employee was performing work connected with or incidental to his employment, the injuries, in a traditional sense, did not have their origin in or arise out of the claimants’ employment.

We are aware that other jurisdictions have approved of compensation to an employee assaulted while not on duty but as the aftermath of resentment incurred in the performance of duty. In Thornton v. Chamberlain Manufacturing Corp. (1973), 62 N.J. 235, 300 A.2d 146, the claimant reprimanded an employee for repeated failure to wear safety glasses. Some nine days after claimant had terminated his employment he saw the employee at a bar and, as he left, was attacked by the employee. It was held that the employee’s injuries were sustained while in the course of employment, and he was entitled to workmen’s compensation benefits.

In Graybeal v. Board of Supervisors (1975), 216 Va. 77, 216 S.E.2d 52, the claimant, a prosecutor, was injured when a bomb exploded at his home. The bomb had been planted by an individual whom the attorney had prosecuted for murder several years previously. It was held that the claimant’s injuries arose in the course of his employment because the chain of events from prosecution to desire for revenge to injury was unbroken. See also State Compensation Insurance Fund v. Workers’ Compensation Appeals Board (1981), 120 Cal. App. 3d 123, 174 Cal. Rptr. 447; Bearshield v. City of Gregory (S.D. 1979), 278 N.W.2d 166.

We do not find these authorities persuasive. In our opinion they proceed on what may be called a “relation-back” theory; that is, first to determine the injury and then retrocede to the alleged cause. The Technical Tape Corp. rationale is sounder in that it involves a “relation-forward” theory; that is, an injury occurs in the work place, but manifests itself at a later time and outside the work place without an intervening cause.

In the instant case we are of the opinion that the harsh words and taunting during the working hours are not a sufficient injury to set in motion a measurable act or force which resulted in the ultimate injury which is the subject of the claim.

Accordingly, we agree with the circuit court and with the Commission that the claimants’ injuries did not occur in the course of their employment. The judgment of the circuit court is therefore affirmed.

Affirmed.

SEIDENFELD, P.J., McNAMARA, BARRY, and KASSERMAN, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT LAGRONE, Defendant-Appellant.
    First District (3rd Division)
    No. 83—439
    Opinion filed May 16, 1984.
    James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Sara Dillery Hynes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a bench trial defendant was convicted of unlawful use of a weapon (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1(a)(10)) and sentenced to a 150-day term of incarceration. On appeal defendant contends that the trial court erred in denying his motion to suppress the gun.

During the hearing on the motion to suppress the arresting officer was called as a witness by defendant. The officer testified that about 10 a.m. on April 15, 1981, he was on patrol on the south side of Chicago when he saw defendant in a car being driven by another man. The car had an open trunk lid, and the trunk contained two chairs and a television set. The officer stopped the car, and both defendant and his companion were subjected to patdown searches but nothing was found. The vehicle was then searched, and a loaded revolver was discovered wedged into the front passenger seat where defendant had been seated.

Defendant, under the authority of People v. Kunath (1981), 99 Ill. App. 3d 201, 425 N.E.2d 486, appeal denied (1981), 85 Ill. 2d 580, now argues that even though he was only a passenger in the car, he can challenge whether the stop was proper. He then maintains that stopping the vehicle in this case was improper under the facts presented, thus requiring suppression of the gun.

The State, however, contends that a police officer needs only a reasonable articulable suspicion to stop a vehicle. (Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391.) And the State urges that we reject the Kunath rationale that a passenger, who might otherwise lack standing to challenge the search of a car under Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, and United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547, still may apply the fruit of the poisonous tree doctrine to suppress the items seized during the car search by merely showing the stop of the vehicle was improper. The State emphasizes that, while defendant would have standing to question the search of his person if the vehicle he was in had been illegally stopped, in this case defendant had no proprietary or possessory interest in the car. Thus the State concludes that the trial court was correct in finding that defendant lacked standing to challenge the car search which disclosed the loaded gun.

As an additional argument, the State maintains that during the defense’s direct examination of the arresting officer at the hearing on the motion, the officer was never asked why he stopped the car in which defendant was riding. In fact, the State points to the testimony of the arresting officer where he was asked what he did after stopping the car. The officer responded, “Well, we prior to stopping the vehicle we -.” At this point the officer was told to answer the question. The State concludes that defendant thus failed to establish that the stop was unreasonable.

Finally, the State points to the fact that the officer testified that the trunk lid was open on the car in which defendant was riding thus preventing the driver from seeing a car behind him. The State maintains that this was a violation of section 12 — 503(e) of the Illinois Vehicle Code which prohibits driving a vehicle with a rear window in such a condition that it materially impairs a driver’s vision to the rear of his car. Ill. Rev. Stat. 1981, ch. 951/2, par. 12 — 503(e).

We have reviewed' the Kunath decision and find that the State’s arguments against its rationale are unconvincing and provide no basis to sustain the trial court’s action in this case. We therefore address the question whether the record shows that the car in which defendant was a passenger was properly stopped.

Once defendant has established that a warrantless search was conducted and he was doing nothing unusual at the time, the burden of going forward with the evidence to show the legal propriety for the search shifts to the State. (People v. Boston (1979), 73 Ill. App. 3d 107, 111, 391 N.E.2d 503.) The record here shows that defendant was merely riding in an automobile during mid-morning. The automobile was transporting household items. This is not unusual and provides no basis to have stopped the car. While the State suggests that defense counsel prohibited the officer from explaining why the car was stopped, it was not defense counsel’s duty to establish this factor (People v. Boston (1979), 73 Ill. App. 3d 107, 391 N.E.2d 503), nor is there any basis to conclude that the State could not have sought to elicit the reason for the stop. Further, we find no basis to conclude that the open trunk lid justified the stop, because section 12 — 503(e) of the Illinois Vehicle Code allows for rear view mirrors to assist the driver’s vision. (Ill. Rev. Stat. 1981, ch. 951/2, par. 12 — 503(e).) There is no showing that such devices were not available to the driver of the car in which defendant was the passenger.

We therefore conclude that the trial court should have granted defendant’s motion to suppress under the facts presented. Accordingly, the judgment of the circuit court is reversed.

Reversed.

RIZZI, P.J., and WHITE, J., concur.


author: PRESIDING JUSTICE MEJDA

text:
    HARDWARE WHOLESALERS, INC., Plaintiff-Appellee, v. CHARLES PAUL CLEMENIC et al., Defendants-Appellants.
    First District (5th Division)
    No. 83—1869
    Opinion filed May 11, 1984.
    John J. Harhen, of Mover, Harhen & Rosenberg, of Chicago, for appellants.
    Lawrence Friedmán, of Chicago (Louis A. Weinstock, of counsel), for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendants appeal from an order entered July 5, 1983, denying their timely motion to reconsider a judgment entered April 26, 1983, which denied a petition filed under the provisions of section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1401). The petition, filed January 12, 1983, sought to set aside an ex parte judgment for $20,000 plus interest and costs entered in favor of plaintiff on December 8, 1982, as a sanction under Supreme Court Rule 219(c) (87 Ill. 2d R. 219(c)), for defendants’ failure to comply with discovery. On appeal, defendants contend the trial court abused its discretion in denying the petition to vacate the judgment of December 8, 1982, because defendants exercised diligence and demonstrated the existence of a meritorious defense; although defendants admit they were dilatory in not responding to plaintiff’s request for discovery, they argue that entry of a default judgment was too harsh a sanction where other sanctions of lesser magnitude were available to the court under Rule 219.

On October 20, 1981, plaintiff filed a complaint alleging that on April 3, 1981, plaintiff sold defendants two computer systems and related equipment at a price of $20,000, for which defendants had refused to pay. John Clemenic answered that the equipment was defective and did not conform to the agreement of the parties. As an affirmative defense, he asserted that the equipment was defective and did not meet standard requirements of the industry, and that plaintiff knowingly misrepresented the condition of the equipment at the time of the sale with the intent to induce defendants to purchase the equipment and that defendants relied on these misrepresentations.

Joan Clemenic also filed an answer, denying that the items had been sold to her, or that she had ever done business as All Data Processing Machines or All Data Machines.

On December 8, 1982, plaintiff moved for sanctions under Supreme Court Rule 219, stating the defendants had been guilty of dilatory behavior. Attached to this motion was a letter dated August 18, 1982, from plaintiff’s counsel to defendants’ counsel stating that a deposition of defendants set for August 11, 1982, had been continued to September 8, 1982. Another letter from plaintiff’s counsel to defendants’ counsel dated September 15, 1982, refers to Supreme Court Rule 201(k) and states that on September 8, 1982, counsel’s secretary spoke with one of defendants’ attorneys regarding whether defendants would be produced for their deposition that day as previously agreed, but “your office did not even know or claimed not to know that the depositions were so scheduled.” The letter stated that the requested date of September 27, 1982, required rescheduling, and continued:

“We will have no problem deposing your clients the following day, September 28, 1982. Given the history of this case, unless we hear from you within the week regarding an agreed final date for the depositions, we plan on proceeding into court for appropriate sanctions.”

According to the motion, on the morning of September 28, 1982, plaintiff’s attorneys telephoned defendants’ attorneys who stated they did not know the depositions had been rescheduled and suggested the deposition be reset for October 6, 1982; on October 6, 1982, plaintiff’s attorney telephoned one of defendants’ attorneys who stated he was not sure if the deposition could proceed since the attorney handling the case was out of the county that day; later that day, he stated the reason the deposition could not proceed was that he had received no confirmation letter from plaintiff’s attorney regarding the October 6, 1982, date.

Also attached to the motion for sanctions was a similar letter dated October 12, 1982, from plaintiff’s counsel stating, “It appears clear that you do not plan to voluntarily produce the defendants for deposition on October 20, 1982, or at any other time”; counsel requested that defendants’ counsel contact plaintiff’s counsel if they believed the situation could be resolved prior to the motion date, pursuant to Supreme Court Rule 201(k) (87 Ill. 2d R. 201(k)).

On December 5, 1982, defendants did not appear, and the trial court struck and dismissed defendants’ pleadings and entered judgment for plaintiff for $20,000, 5% interest from April 19, 1982, and costs.

The defendants’ petition to vacate stated defendants’ attorneys inadvertently did not appear in court and were unable to obtain a firm date for deposition from their clients and therefore were unable to advise the plaintiff’s attorneys of an appropriate deposition date; that subsequent to the entry of the December 8, 1982, order, defendants’ attorneys made several attempts to locate the court file and ascertain the nature of the order entered; and that on January 11, 1983, they were still unable to locate the file and requested a photocopy of the order, which was not obtained until the following day when, for the first time, they ascertained that a judgment had in fact been entered against them. Defendants admitted that they had been dilatory in not appearing and not responding to notices of deposition, but they maintained that the entry of an order of judgment was clearly inappropriate because actions short of such an order could reasonably have been entered. Defendant also asserted that upon ascertaining that the judgment had been entered, defendants immediately contacted plaintiff’s attorneys, who advised that a copy of the order had been mailed to defendants’ attorneys, but that this order was not received by them. Defendants requested that the judgment be vacated and the court fix a date for defendants’ depositions to be taken.

Plaintiff filed a motion to dismiss or deny with prejudice defendants’ petition to vacate the December 8, 1982, judgment on grounds that the petition at best only satisfied the requirements of pleading a meritorious defense and due diligence in filing the petition, but did not establish due diligence in presenting the defense in the original action and in fact admitted a lack of diligence in defending the case prior to the entry of judgment, and that defendants were at fault and negligent for not appearing for the deposition or in court on December 8, 1982. Plaintiff also pointed out that defendants did not explain why they did not appear in court on December 8, 1982, or why defendants’ counsel did not contact plaintiff’s counsel between October 12, 1982, when the motion for sanctions was served, and January 1982, one month after presentation of the motion.

In response, defendants agreed to have any order vacating the judgment conditioned upon their compliance with an order to appear for discovery, and pointed out that no court orders were ever entered in this case directing compliance with discovery.

On April 26, 1983, the court denied the petition, stating the petition did not demonstrate diligence, a meritorious defense, or any good reason to set aside the judgment. The court also stated there was continued disregard of all of plaintiff’s efforts to accomplish discovery, defendants did not even appear on December 8, and defendants showed no good reason why it took over 30 days to find out what happened in court. Within 30 days, on May 24, 1983, defendants filed a motion to reconsider the order of April 26, 1983, which was denied after a hearing on July 5,1983.

On January 26, 1984, after briefs had been filed, we granted a motion by plaintiff to dismiss the appeal on the basis that defendants had improperly filed successive post-judgment motions. Defendants filed a timely petition for rehearing to reconsider the order of dismissal. Plaintiff filed an answer and defendants filed a reply pursuant to Supreme Court Rule 367(d) (87 Ill. 2d R. 367(d)), which we have taken with the appeal for decision. We now grant defendants’ petition for rehearing of the order of dismissal and vacate that order as improvidently granted. Compare Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 531, 431 N.E.2d 358, with Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610.

Defendants contend they were entitled to relief from the December 8, 1982, dismissal and the trial court abused its discretion in denying the petition; plaintiff maintains that the petition at best satisfied only two of the four requirements for relief, the pleading of a meritorious defense and due diligence in filing the petition, but did not establish either due diligence in presenting the defense in the original action and lack of negligence in not presenting a valid defense or an error of fact at the time the challenged judgment was entered. (Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 482, 386 N.E.2d 284.) Nevertheless, it has been held that these requirements for relief need not always be applied in a strict manner and that if justice and fairness require, relief may be granted even though the requirement of due diligence has not been satisfied. (Manning v. Meier (1983), 114 Ill. App. 3d 835, 838, 449 N.E.2d 560; Electrical Wholesalers, Inc. v. Silverstein (1977), 47 Ill. App. 3d 689, 692, 365 N.E.2d 375; George F. Mueller & Sons, Inc. v. Ostrowski (1974), 19 Ill. App. 3d 973, 313 N.E.2d 684.) In determining if justice was done here, the decisive issue is whether the trial court acted properly within its discretion on December 8, 1982, when it granted plaintiffs motion to enter judgment for plaintiff as a sanction for the defendants’ failure to comply with plaintiff’s requests for discovery.

The particular sanction to be imposed for a discovery violation depends upon the facts of each case and is within the discretion of the trial court; but a trial court should not impose sanctions intended primarily as punishment and a variety of flexible methods is available from which a just order — one which ensures both discovery and trial on the merits — may be fashioned. (Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 977-78, 370 N.E.2d 119.) Entering a default judgment as a sanction for noncompliance with discovery, as we said in Williams, is harsh, should be employed only where a party shows “a deliberate and contumacious disregard of the court’s authority,” and only as “a last resort”; a default judgment “should be set aside if it will not cause a hardship for the parties to proceed to trial on the merits.” (Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 978.) The purpose of imposing sanctions is “to compel cooperation rather than to dispose of litigation as a means of punishing the noncompliant party.” Cedrick Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 1035, 402 N.E.2d 352.

Although the trial court, at the conclusion of the hearing on December 8, 1982, did state that the failure of the defendants “can be interpreted as intentional,” we disagree. In our opinion, the trial court should have awarded plaintiff attorney fees as restitution for the expense, inconvenience and delay occasioned by defendants’ actions. However, the verified answer and affirmative defense filed by defendants, if accepted by the court, unequivocally established the existence of a meritorious defense to plaintiff’s underlying claim. The injustice of awarding plaintiff a judgment of $20,000, to which it might not be entitled on the merits, outweighs the inconvenience to plaintiff which can be made whole by an award representing restitution for inconvenience caused it by defendants. The behavior of defendants and their attorneys to plaintiff and its attorneys is certainly not to be approved or encouraged. But especially when we consider that a proper award of attorney fees, under these circumstances, would not approach $20,000 and would have reasonably compensated plaintiff for the inconvenience and delay, we judge that relief should be granted.

The record does not show that the defendants’ failure to appear for scheduled depositions was intentional, but we agree that a refusal by defendants to appear for depositions under the circumstances here would have justified the drastic sanction of default. (Amoco Oil Co. v. Segall (1983), 118 Ill. App. 3d 1002, 455 N.E.2d 876; George William Hoffman & Co. v. Capital Services Co. (1981), 101 Ill. App. 3d 487, 428 N.E.2d 600.) However, our review of the record indicates that the trial court clearly abused its discretion in entering a default judgment against defendants since defendants’ conduct here did not approach the deliberate and contumacious disregard of the court’s authority required to uphold such a drastic sanction. Setting aside the default judgment on condition that defendants appear and submit to depositions, as offered by defendants, coupled with a requirement that defendants make plaintiff whole by paying the attorney fees occasioned by their neglect and inadvertence, would have compelled cooperation by defendants without punishing them so severely and would not have caused unreasonable hardship on plaintiff. This is not to say that such a drastic sanction would be inappropriate if defendants subsequently act in a similar manner.

We grant defendants’ petition for rehearing to reconsider our order of January 26, 1984, dismissing this appeal and vacate said order.

Further, the judgment of the circuit court of Cook County denying defendants’ motion to vacate the December 8, 1982, order is reversed. The cause is remanded to the circuit court of Cook County with directions to proceed in a manner not inconsistent with the views expressed in this opinion.

Reversed and remanded.

SULLIVAN and WILSON, JJ., concur.

      This opinion was adopted as the opinion of the court prior to the death of Mr. Justice Wilson.


author: JUSTICE ALLOY PRESIDING JUSTICE STOUDER,

text:
    DELBERT HEIMBERGER, Plaintiff-Appellee, v. THE VILLAGE OF CHEBANSE et al., Defendants-Appellants.
    Third District
    No. 3—83—0172
    Opinion filed May 22, 1984.

      STOUDER, P.J., concurring in part and dissenting in part.
    Ronald J. Dusenbury, Ltd., of Kankakee, for appellants.
    Thomas E. McClure and Roger C. Elliott, both of McClure & Elliott, of Bourbonnais, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The village of Chebanse and the individual members of the village board of trustees appeal from the judgment of the circuit court, after a bench trial, finding them guilty of conversion and assessing damages in the amount of $7,150. The defendants also appeal from an award of attorney fees to plaintiff, DelHert Heimberger, in the amount of $3,500.

The record reveals the following pertinent facts. Plaintiff Heimberger leased a portion of property, located in Chebanse, from the Illinois Central Gulf Railroad. He used the property to store equipment and supplies in his business of recycling pallets. Based upon complaints about the condition of plaintiff Heimberger’s property, the village, in September, 1979, sent him a letter. The letter, from the village clerk, informed him that his property needed to be cleaned up, as it violated various portions of the village municipal code. Another letter followed in December 1979, in which the clerk requested that Heimberger attend a meeting of the board of trustees. Although plaintiff did not attend the meeting, he did take steps to remedy the problem on his property. In the village’s March 1980, letter to Heimberger, the clerk expressed the village’s appreciation that Heimberger had cut weeds and removed old vehicles. The letter also indicated that the pallet business continued to be in violation of the code, although unspecific on what provision, and inquired as to his plans “about the building.” The March 1980 letter closed by asking Heimberger to either attend the next board meeting or reply by mail. Plaintiff responded by mail, indicating that the building would be torn down by June 1 and that he intended to continue to use the property as a storage yard, although rebuilding plans had been abandoned. The board next responded by letter, dated May 14, 1980, in which a copy of their first letter, of September 1979, was enclosed, and in which the village requested that the violations be cleared up by June 1. Again, the plaintiff responded by taking some action to clean up his property, for the village board’s July 31, 1980, letter again expressed the board’s appreciation for Heimberger’s efforts. The letter also stated that the board “would like to know if you would remove the old machinery as you promised and finish stacking, straightening, etc. soon.” Another letter was sent on September 5, 1980, citing Heimberger’s lack of response to the July 31 letter, and asking him to “please have the premises of your pallet business cleaned and straightened by October 1, 1980, or Village employees will do this work and you will be billed for same.” No further correspondence or action was taken from September to the following spring by the village board.

The board’s next correspondence with Heimberger is of May 8, 1981, and asks him to “please continue to clean up the premises of your pallet business. Some junk machinery still remains, the pallets are still stacked too high, the grass and weeds must be kept mowed, etc.” The letter asked Heimberger to respond before June 1, 1981, concerning his intentions about finishing the clean-up job.

The record also contains the minutes of the August 3, 1981, meeting of the village’s board of trustees, the individual defendants herein. The minutes indicate that the issue of plaintiff’s property was addressed at the meeting and that there had been no response to requests for clean up, indicating “so our people [the village’s] will do it. Norton will be contacted to take the junk and Paul Behrends will be contacted to clean up the pallets and debri [sic].”

On August 6, 1981, plaintiff Heimberger went to his property and found that a number of items stored on and at the premises had been removed, including saw blades, several saws, a Ford tractor, two power units for a sawmill, three electric motors, various small tools, two logs, a number of pallets, a flatbed trailer, and other assorted items. Heimberger testified at trial that his visit to the property on the evening of August 6 was the result of a prior telephone conversation between him and Richard Yohnka, mayor and president of the board of trustees of the village. Yohnka had called him earlier in the day and informed him that the village had cleaned the property up. Yohnka also indicated that he had contacted Heimberger’s son, Delbert, and Delbert was supposed to have gotten in touch with him about it. The son had not contacted plaintiff Heimberger, nor had Heimberger received any other prior notice, oral or written, concerning the board’s intentions to remove the personal property from the premises of his pallet business at that time. He had never been given notice of any hearing on the proposed action. It is to be noted that the last written correspondence from the board was the letter of May 8, 1981, in which Heimberger was asked to inform the board of his plans. Nothing in the letter set a hearing date for the matter or informed Heimberger that the property would be confiscated and removed if he did not act.

When Heimberger, through counsel, requested the return of the property from the village, he was informed that the village did not have the property. Evidence at trial indicated that the value of the personal property removed from the premises totaled $7,150. Other testimony on behalf of plaintiff came from his son and his wife. The son testified that the mayor, Yohnka, had contacted him on August 4, 1981, and informed him that the board had voted to clean up the property. The son, who did not live with his father, told Yohnka to contact his father about the matter, and attempted to give Yohnka the phone number. Yohnka hung up. Heimberger’s son also testified that he did attempt to contact his father, to relay the news, but was unsuccessful until after the removal had been accomplished. Heimberger’s wife also testified, stating that she received a phone call from Yohnka at about 6 p.m. on the night of August 6. Yohnka told her that the village had voted to give the machinery away, by having someone come and take it. Yohnka also informed Mrs. Heimberger that the persons had already taken the machinery and the pallets would also be taken unless they were removed. He indicated that the equipment had been given to a farmer. Mrs. Heimberger testified that she had never received any notice of a hearing or notice that the property would be taken.

The defendants’ sole witness was Ralph Yohnka, who testified that he had called plaintiff’s son and had also talked to plaintiff’s wife. Yohnka stated that he had gone to the premises on August 6 and saw that the property had been removed. When questioned about the August 3 board meeting, he stated that he “didn’t believe” any board action was taken concerning plaintiff’s property at the August 3, 1981, meeting. He also testified that the board had not taken any “active steps” to remove anything from the property on August 6, 1981. He also stated that he had never personally removed anything from the property. On cross-examination, faced with the minutes of the August 3 board meeting, Yohnka admitted that the matter was discussed, but stated that no motion had been made concerning the property.

After proofs and argument, the court found for the plaintiff and entered judgment in the amount of $7,150, based upon evidence as to the value of the personal property removed from plaintiff’s premises. Plaintiff’s complaint sounded in two counts, one for conversion, and the other for violation of civil rights (42 U.S.C. sec. 1983 (1982)), specifically plaintiff’s right to due process prior to being deprived of his property. Subsequent to judgment, the court, on plaintiff’s motion, also awarded attorney fees, which are available under the section 1983 count, in the amount of $3,500. From the judgment, judgment award and attorney fees award the defendants appeal.

Quite remarkably, the defendants’ first argument on appeal is that there is no evidence in the record that the defendants “took any active part to take or cause to be taken the plaintiff’s property.” The argument is contrary to the record. On appeal, we are required to view all of the evidence and inferences therefrom in its light most favorable to the verdict winner. (Walling v. Lingelbach (1976), 65 Ill. 2d 244, 357 N.E.2d 530; Fleming v. Fleming (1980), 85 Ill. App. 3d 532, 539, 406 N.E.2d 879.) There is more than sufficient evidence for the trial court to conclude that the plaintiff’s property was taken by persons acting at the direction of, and with the consent and apparent authority of, the village board. The minutes of the August 3 board meeting clearly indicated that outside persons would be contacted to remove the personal property. Yohnka informed plaintiff Heimberger that the village had cleaned the property up. Yohnka had informed plaintiff’s son on August 4 of the village’s intention to take action to remove the personal property if it was not cleaned up. He told Heimberger’s son that the board had voted to take the action. In a phone conversation with Mrs. Heimberger, Yohnka told her that the village had voted to give the machinery away by having someone come and take it. He indicated that the machinery had been given to a farmer. In light of this evidence, we reject counsel’s suggestion that the village had no part in the removal of the plaintiff’s personal property. What happened appears very clear in the record. The village got tired of prodding Heimberger to clean up his premises and so they contacted outside persons and told them they could have the property if they removed it. Those persons, with the consent and authority of the village, and at its direction, then took the property. We have no difficulty, on these facts, in concluding that the village board and its members exercised unauthorized control over the property of plaintiff, such as to deprive him of the property. The board’s actions in “giving” the plaintiff’s personal property to others were actions of unauthorized control over the property. The fact that village personnel did not actually remove the property, but that it was done by third parties contacted by the village, does not alter or affect the conclusion that the village directed the action and represented that it had authority to so dispose of the property. The court’s findings that the village had caused the plaintiff’s personal property to be removed from his premises is amply supported in the record. The judgment of the trial court is not against the manifest weight of the evidence. Nor do we find the verdict excessive. As regards the award of damages, such assessment is within the discretion of the fact finder, here the trial judge. In the instant case, the evidence in the record supports his conclusions as to damages, and we find no basis to alter the award.

The defense next contends that certain matters in defense, not raised before the trial court, preclude its liability in this case. They rely now upon section 11 — 20—13 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 20—13), respecting municipal authority to remove garbage and debris, and upon a municipality’s common law power to abate a nuisance. As noted, however, these defenses and theories were not raised in the trial court. It is incumbent upon counsel to set forth, before the trial court, those matters and issues in defense, if they are to be relied upon on review. Under established rules of appellate review, those matters not raised below are waived. Kaufman & Broad Homes, Inc. v. Allied Homes, Inc. (1980), 86 Ill. App. 3d 498, 408 N.E.2d 91.

Finally, we turn to the issue of attorney fees. The defendants contend that the award of fees must be reversed because there was no express finding that the plaintiff had prevailed on his section 1983 claim. While it may be inferred from the record that the basis of the fees award was the court’s finding that a civil rights violation had been proven, the judgment order does not indicate the basis for the award. Accordingly, we will remand to the trial court for the purpose of having the court specifically indicate the basis for the fees award.

In the interests of avoiding another appeal, however, we will address the issue, briefed by the parties, of whether the evidence is sufficient to sustain a finding of a section 1983 violation. We find the record sufficient to support that finding. Due process requirements are clear. As this court recently stated:

“Due process is not an inflexible standard and ‘does not require a trial-type hearing in every conceivable case of government impairment of private interest.’ [Citation.] Nonetheless, due process requires that ‘at a minimum *** deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ [Citation.] The notice must be reasonably calculated to convey the necessary information and to afford the interested parties a reasonable time for a hearing. [Citation.] Those parties must be given notice and an opportunity before the deprivation takes place, unless there exists. extraordinary circumstances requiring immediate action to protect a valid governmental interest. [Citations.]” (Valdez v. City of Ottawa (1982), 105 Ill. App. 3d 972, 975.)

In the instant case, plaintiff was never given an opportunity to be heard on the question of taking, either before or after the village took action. The village’s reliance upon its prior correspondence with the plaintiff in seeking to show notice is woefully lacking. The last letter received by Heimberger from the village, that of May 8, 1981, requested that he inform them of his plans. Previous letters had included gratitude and appreciation for his continuing efforts. The May 8 letter said nothing about what specifically the village was objecting to, nor did it state that there would be a hearing on the matter at which the village’s seizure and disposal of the personal property would be addressed and at which Heimberger could attend and present his viewpoint and position. He was never informed at any time significant to the actions of the village herein that he was facing the seizure and disposal of his property should he not clean up the property. Nor can the informal telephone call to his son, two days before the action, satisfy the requirements of reasonable notice. Even if the village had given Heimberger sufficient notice of its intentions, he was never afforded an opportunity to be heard about the situation after being informed of the specific charges against him and the proposed action by the village. The record supports a finding that the village and these defendants violated Heimberger’s due process rights in the matter in which they proceeded.

The judgment of the circuit court of Kankakee County is affirmed, except the award of fees, and we remand for the purpose of having the court specify the basis for that award.

Affirmed in part and remanded with directions.

BARRY, J., concurs.

PRESIDING JUSTICE STOUDER,

concurring in part and dissenting in part:

I concur with the majority that the judgment of the trial court on the conversion claim was not against the manifest weight of the evidence and that the award of damages was not excessive, but I must disagree with the majority on the issue of whether attorney fees were properly awarded. As the majority states, the award of attorney fees must be based upon a finding by the trial court that a violation of section 1983 of the Civil Rights Act occurred. I do not agree with the majority that the trial judge could ever have found the village of Chebanse guilty of a violation of section 1983 upon which to base his award of attorney fees. I base my belief upon the United States Supreme Court’s decision in Parratt v. Taylor (1981), 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908, where the Supreme Court found a conversion by State prison officials who were not acting as a result of an established State procedure did not require a predeprivation hearing and, therefore, that no section 1983 violation could be maintained against the State. The Supreme Court reasons that an adequate remedy existed under State law and a post-deprivation hearing was all that was required. Like prison officials in Parratt, who confiscated an inmate’s hobby materials, the village board of Chebanse was not acting under the authority of any municipal ordinance or State law or procedure. As the United States Supreme Court stated in Parratt v. Taylor (1981), 451 U.S. 527, 543, 68 L. Ed. 2d 420, 434, 101 S. Ct. 1908, 1917:

“Indeed the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established State procedure. There is no contention that the procedures themselves were inadequate *** Moreover, the State of Nebraska has provided respondent with the means by which he can receive redress for the deprivation.”

Here the State of Illinois provided adequate redress. It is often said due process requires an opportunity to be heard “at a meaningful time and in a meaningful manner.” However, the United States Supreme court has clearly rejected the proposition that this hearing must necessarily take place prior to the deprivation. I do not believe that this situation mandated a predeprivation hearing both because of the distinction made by the Supreme Court in Parratt and the adequate conversion remedy provided by Illinois. This plaintiff has had all the process which is due-him, and no section 1983 claim can now stand. It has long been the law in this State that attorney fees cannot be taxed as costs absent statutory authority. (14 Ill. L. & Prac. Costs sec. 54 (1968).) Therefore, I would not have remanded this case but instead I would have reversed the award of attorney fees outright.


author: JUSTICE GOLDBERG

text:
    IDA HANDELMAN et al., Plaintiffs-Appellants, v. LONDON TIME, LTD., Defendant-Appellee.
    First District (1st Division)
    No. 83—2078
    Opinion filed May 14, 1984.
    Reuben Zellermayer and A.J. Hardiman, Ltd., both of Chicago (A.J. Hardiman, of counsel), for appellants.
    Law Offices of Beryl A. Birndorf, of Chicago (Robert M. Birndorf, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Ida Handelman and Edward J. Rothman (plaintiffs) brought two actions against London Time, Ltd. (defendant), based on two commercial leases. Plaintiffs sued “as agents of the beneficiaries” of a certain land trust. The two cases were later consolidated. Plaintiffs obtained judgments by confession. At a hearing to confirm the judgments, the trial court vacated the confession judgments and entered judgment for defendant. Plaintiffs appeal.

Count I of plaintiffs’ complaint specifies “on August 1, 1979, a written lease was made between plaintiffs, Ida Handelman and Edward Rothman, as agents as aforesaid, as landlord, and defendant ***.” Defendant filed an “Answer and Affirmative Defense” in which defendant admitted “the affirmative allegations of paragraph I of plaintiff’s [sic] complaint, except that the industrial loft lease (the ‘lease’) contains a rider dated August 27, 1979.” Defendant also asserted three affirmative defenses: failure to provide adequate heat; failure to provide a functional elevator; and allowance of a credit for sums plaintiffs realized from reletting the premises and from the security deposit defendant had previously tendered. Later defendant filed a motion to vacate the judgments by confession on the theory that the lease failed to specify a liquidated amount of damages.

At the hearing to confirm the judgments, Richard Rothman testified he is attorney for plaintiffs. He managed the subject premises. He identified the subject lease and the signatures of plaintiffs. The witness also testified as to the amount currently due on the lease.

Plaintiffs rested and defendant moved for judgment because plaintiffs failed to allege or prove any agency relationship to the beneficial owners of the subject premises. Defendant had not earlier raised the point in any manner.

The trial court took the case under advisement and at a later hearing vacated the judgments by confession and entered judgment for defendant. Plaintiffs made an oral motion to reopen the proofs to bring in evidence as to plaintiffs’ agency, relationship to the beneficiaries. The trial court denied plaintiffs’ motion.

In this court, defendant’s argument is based on the theory that plaintiffs had the affirmative duty to allege and prove their authority as agents of the land trust beneficiaries in order to establish a prima facie cause of action for breach of the lease.

The lack of authority of an agent to execute a lease is an affirmative defense. (See Corso v. Dixon (1952), 348 Ill. App. 378, 384, 109 N.E.2d 241; cf. Oh Boy Grocers v. South East Food & Liquor, Inc. (1979), 79 Ill. App. 3d 252, 260, 398 N.E.2d 269, appeal denied (1980), 79 Ill. 2d 632.) Therefore, it follows necessarily that defendant has the burden of pleading and proving plaintiffs’ lack of authority. Michigan Avenue National Bank v. State Farm Insurance Cos. (1980), 83 Ill. App. 3d 507, 514, 404 N.E.2d 426, appeal denied (1980), 81 Ill. 2d 593.

In Corso, the court held:

“The complaint alleges that Martin was the employee and duly authorized agent of Hogan & Harwell. We think that this is sufficient for the plaintiff’s cause of action, and that the want of authority is a matter of defense. ***
The authority of Hogan & Harwell to make a written lease is sufficiently alleged. The complaint alleges that it was the managing agent which had signed the lease to Heichenfeld as lessor. Here again, the question of written authority is a matter of defense.” (Corso v. Dixon (1952), 348 Ill. App. 378, 384.)

Similarly in Southeast Village Associates v. Health Management Associates, Inc. (1981), 92 Ill. App. 3d 810, 812, 416 N.E.2d 325, the court held the failure of the plaintiff, land trust beneficiary, to present the trust instrument which specifically granted plaintiff authority to execute a lease, did not entitle defendant, the lessee, to summary judgment.

Defendant relies on Freed v. Young (1973), 21 Ill. App. 3d 64, 315 N.E.2d 72, for the proposition that plaintiffs herein had the affirmative duty to prove their authority. Freed holds simply that a lessee is not estopped from challenging the title of his landlord once the lessee has relinquished possession of the premises. Freed makes no reference to the affirmative duty of the agent to prove agency, nor to the theory that an allegation of agency is an element of a prima facie case in a suit brought by an agent.

Hurthermore, defendant filed an “Answer and Affirmative Defenses” but did not include therein any reference to the authority of plaintiff to proceed. According to section 2 — 613 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 613(d)):

“*** any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the complaint, counterclaim, or third-party complaint, in whole or in part, and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply.”

Clearly the purpose of the above-quoted language is to specify the disputed legal issues before trial. The parties are to be informed of the legal theories which will be presented by their respective opponents. This is a prime function of pleading.

In the case at bar, defendant’s assertion of the affirmative defense of lack of authority, “surprised” plaintiffs. We believe such a technique is contrary to the letter and the spirit of the Code of Civil Procedure. We find the instant situation particularly unfair to plaintiffs because defendant specifically set forth various affirmative defenses in its answer and “neglected” to include the defense which was dispositive in the trial court. Defendant first asserted this purported defense after plaintiffs had closed their case.

For these reasons the judgment appealed from is reversed and the cause remanded for a new trial.

Reversed and remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE McNAMARA

text:
    YVONNE MILLEN, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Hydronics Supply et al., Appellees).
    Second District (Industrial Commission Division)
    No. 2—84—118WC
    Opinion filed May 22, 1984.

      Harlan Heller, Ltd., of Naperville (H. Kent Heller, of counsel), for appellant.
    Kane, Doy & Harrington, Ltd., of Chicago (Steven H. Shanok, of counsel), for appellee Hydronics Supply.
    Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago (Louis J. Cohn, of counsel), for appellee Kitchen Distributors of America.
   JUSTICE McNAMARA

delivered the opinion of the court:

We are asked to decide whether the Industrial Commission’s decision that decedent’s death did not arise out of and in the course of his employment is contrary to the manifest weight of the evidence.

On September 20, 1979, between 7 a.m. and 7:20 a.m., Joe Millen was involved in a fatal accident while driving in Kendall County on Illinois Route 47 between Galena Road and U.S. Highway 30. On that day, decedent was employed by both respondents, Hydronics Supply Company and Kitchen Distributors of America.

Petitioner, Yvonne Millen, on behalf of Dustin Millen, decedent’s seven-year-old son, filed an application for adjustment of claim against respondents under the Workers’ Compensation Act. An arbitrator denied compensation on the ground that the accidental injuries causing decedent’s death did not arise out of and in the course of his employment, and the Commission affirmed that decision. The circuit court of Kendall County confirmed the Commission’s decision, and petitioner appeals.

At the arbitration hearing, Arnold Millen, president of Hydronics and decedent’s father, testified that Hydronics is a wholesale plumbing and heating supply business located on Galena Road in Plano, Illinois. Decedent worked for Hydronics on a part-time basis, earning $150 per week to assist during the morning rush period from 7:30 a.m. to 9 a.m. Decedent’s activities for Hydronics were limited to pulling orders and answering the telephone. He was not involved in outside sales.

Arnold Millen further testified that on its premises Hydronics provided a showroom for Kitchen Distributors, whose main office and warehouse were in Itasca, Illinois. Decedent was employed by Kitchen Distributors to sell preboxed factory cabinets on a commission basis and visited homes of potential customers to make such sales. Arnold Millen had helped decedent obtain employment with Kitchen Distributors, but thereafter had nothing to do with that employment. Arnold Millen had no knowledge of decedent’s activities on the morning of the fatal accident. In his opinion, the accident occurred at a location on a direct route from decedent’s home to Hydronics.

Maureen Raspiller, Dustin’s babysitter, testified that on September 19, 1979, she discussed with decedent the possible exchange of her van for decedent’s blue compact car on that evening. It was easier for decedent to transport cabinets in her van, and they had exchanged vehicles for that purpose in the past. Later that day, decedent told Raspiller that he would pick up the cabinet that night and exchange vehicles on the following morning.

On the morning of the accident, decedent dropped Dustin off at approximately 6:40 a.m. and gestured at his watch. He did not talk to Raspiller and they did not exchange vehicles. Raspiller saw a kitchen cabinet in the back of his car, but she did not know where decedent was going that morning.

On review before the Commission, David Nebel testified that decedent had visited his home twice to discuss kitchen cabinets. The second visit occurred in September 1979 before 8 a.m. when decedent brought a sample cabinet in a small blue car. Nebel did not know what date in September the visit took place. Nebel learned of decedent’s death when he called Hydronics about three weeks after the visit.

The Commission found that at the time of the accident decedent was not engaged in any job-related activity on behalf of Hydronics. The Commission further found that, although decedent was known to visit potential customers at their homes to sell cabinets, petitioner failed to show by a preponderance of the evidence that on the morning of the accident decedent was on his way to visit a potential customer before reporting to work at Hydronics.

Petitioner had the burden to prove by a preponderance of the evidence that decedent’s injuries arose out of and in the course of his employment. (White v. Industrial Com. (1982), 88 Ill. 2d 523, 431 N.E.2d 368.) An injury is received in the course of one’s employment when it occurs within the period of employment, at a place the employee may be reasonably in the performance of his duties, and while

he is fulfilling those duties or engaged in something incidental thereto. (Scheffler Greenhouses, Inc. v. Industrial Com. (1977), 66 Ill. 2d 361, 362 N.E.2d 325.) Generally, injuries incurred by an employee at a place off the employer’s premises while traveling to and from work do not arise out of and in the course of employment. (Commonwealth Edison Co. v. Industrial Com. (1981), 86 Ill. 2d 534, 428 N.E.2d 165; Eisenberg v. Industrial Com. (1976), 65 Ill. 2d 232, 357 N.E.2d 533.) An exception to that rule, which petitioner urges is applicable here, has been followed when travel is necessitated by employment, such as in the case of a traveling salesman driving to or from a sales call. Urban v. Industrial Com. (1966), 34 Ill. 2d 159, 214 N.E.2d 737.

Petitioner argues that decedent’s accidental death arose out of and in the course of his employment as a traveling salesman. She maintains Raspiller’s testimony that the day before the accident decedent discussed an exchange of vehicles, that on the morning of the accident decedent indicated by gesture that he was in a hurry, and that there was a cabinet in his car at that time are facts which established that decedent was on his way to visit a potential customer before reporting to work at Hydronics.

It is the function of the Commission, however, to assess credibility and draw reasonable inferences and conclusions from the testimony. The decision of the Commission will not be disturbed unless its findings are contrary to the manifest weight of the evidence. (City of Streator v. Industrial Com. (1982), 92 Ill. 2d 353, 442 N.E.2d 497.) In the present case, even if decedent is considered a traveling salesman, there was ample evidence to support the Commission’s finding that he was not in the course of his employment for either respondent at the time of his accidental death.

As to Hydronics, the evidence clearly established that at the time of the accident decedent was not engaged in any job-related activity since his job duties with that employer were limited to those in the office. We find no merit in petitioner’s contention that respondents were such closely linked enterprises that decedent was acting for both of them at the time of the accident. The testimony of Arnold Millen, petitioner’s own witness and decedent’s father, does not support such an argument.

The Commission could also reasonably conclude that decedent was not engaged in a job-related activity for Kitchen Distributors. Decedent began work at Hydronics at 7:30 a.m. After dropping his son off at the babysitter’s home around 6:40 a.m., decedent was involved in an accident while traveling on a direct route from his home to his job at Hydronics. The accident occurred between 7 a.m. and 7:20 a.m., shortly before the time decedent was scheduled to report at Hydronics. Based on these facts, the Commission could reasonably infer that decedent was not driving to or returning from a sales call, but was merely on his way to work at Hydronics. The Commission therefore could properly conclude that the accident did not arise out of and in the course of his employment. We will not set aside the decision of the Commission merely because it is possible to draw different inferences from the evidence presented. (Doyle v. Industrial Com. (1983), 96 Ill. 2d 364, 449 N.E.2d 1352.) On the record before us we cannot say that the Commission’s determination was contrary to the manifest weight of the evidence.

For the reasons given, the judgment of the circuit court of Kendall County confirming the decision of the Industrial Commission is affirmed.

Judgment affirmed.

SEIDENFELD, P.J., BARRY, WEBBER, and KASSERMAN, JJ., concur.


text:
    JOHN MAZUR, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Vinyl Grain, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—375WC
    Opinion filed May 16, 1984.

      Galliani & Doell, Ltd., of Chicago (Thomas J. Doell, of counsel), for appellant.
    Harvey L. Walner & Associates, Ltd., of Chicago (Sam L. Cerniglia, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Petitioner, John Mazur, filed a claim for workers’ compensation naming Vinyl Grain, Inc., as respondent and alleging that he sustained a broken wrist in the course of his employment with Vinyl Grain. An arbitrator found that an employer-employee relationship existed between the parties and that petitioner did suffer an accidental injury arising out of and in the course of his employment. The arbitrator awarded him temporary total disability benefits and permanent partial disability benefits representing a 30% loss of the use of his right hand.

On review, the Industrial Commission reversed the decision of the arbitrator, finding that no employer-employee relationship existed between the parties. Instead, the Commission determined that the petitioner was an independent contractor at the time he sustained his injuries. Vinyl Grain had alleged other errors in the arbitrator’s decision; however, the commission did not rule on them since it initially found that no employer-employee relationship existed. The circuit court of Cook County confirmed the decision of the Industrial Commission, and the petitioner filed a timely notice of appeal.

On appeal, petitioner argues that the finding of the Industrial Commission that petitioner was not an employee of Vinyl Grain is against the manifest weight of the evidence.

Petitioner installed aluminum siding on buildings. Testimony at the arbitration hearing revealed that he was free to work wherever he wished, although for the past two years he had taken jobs solely from Vinyl Grain, Inc. He would periodically visit the offices of Vinyl Grain in order to solicit work. If work was available, he would then be given a “work order” by Vinyl Grain describing a customer’s name, address, and the type and color of siding desired. The work order would also indicate the part of the building that was to be serviced. The petitioner would then pick up Vinyl Grain’s product from its warehouse and deliver it to the job site in his own truck. Petitioner also used his own tools, scaffolding and other equipment. He set his own hours and days of work. Vinyl Grain provided no on-site supervision, and most problems that arose were handled by petitioner. On occasion, however, he would have to call the office when a problem arose regarding a change in the nature of the product or service desired.

Petitioner hired his own employees to help him complete each assigned job. He did not pay Vinyl Grain for materials that he used. Vinyl Grain paid him on the basis of the amount of material applied to a building, issuing a lump-sum check at the end of each job. No deductions were made by Vinyl Grain for taxes or social security. Expenses were deducted by petitioner, who then paid his employees. He was responsible for his own taxes as well as those of his employees.

Petitioner was allegedly injured while working at a job site. He claims that his wrist was broken when a scaffold fell on him.

To support his contention that he was- an employee, petitioner places great reliance upon the similarities between this case and the cases of Mastercraft Co. v. Industrial Com. (1974), 58 Ill. 2d 155, 317 N.E.2d 522, and Kirkwood Brothers Construction v. Industrial Com. (1978), 72 Ill. 2d 454, 381 N.E.2d 697, where an employer-employee relationship was found. However, these same arguments were rejected in the later case of Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, 416 N.E.2d 1078, where the court held the petitioner to be an independent contractor under factual circumstances nearly identical to those involved here.

In the later Kirkwood case the court was faced with an injured siding installer who set his own hours, used his own equipment, scaffolding, and truck and was paid a. lump-sum amount based on the amount of siding applied. There, as here, no taxes were deducted from the payment and there was little or no on-site supervision of the work. In Kirkwood, the court distinguished Mastercraft and Kirkwood Brothers as involving a greater degree of control over the manner in which the work was done and a different method of payment. Significantly, the court also emphasized that in Kirkwood the Industrial Commission had found the petitioner to be an independent contractor while in the two earlier cases the Industrial Commission found the petitioners to be employees.

We find the facts of the present case to be indistinguishable from those involved in Kirkwood. We also distinguish Mastercraft and Kirkwood Brothers on the basis of the greater degree of control and the different manner of payment involved in those cases. Moreover, “if the undisputed facts permit inferences to be drawn.either way, that is, that the claimant was an employee or that he was an independent contractor, then the Commission alone is empowered to draw that inference, which will not be set aside unless against the manifest weight of the evidence.” (Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, 19, 416 N.E.2d 1078.) We cannot say that inferences drawn by the Commission here are against the manifest weight of the evidence. Vinyl Grain exercised almost no control over the manner in which petitioner performed his work and paid him only on the basis of the amount of material applied to a building. Petitioner set his own hours, used his own equipment and paid his own hired helpers. These facts all support the Commission’s determination that he was an independent contractor.

The petitioner has urged us to adopt Professor Larson’s theory of the relative nature of the work as determinative in this case. While the supreme court has recently alluded on several occasions to that theory and has indicated more than a passing interest in it, it has not yet accepted it as the sole factor in deciding the nettlesome question of employee versus independent contractor. Compare Area Transportation Co. v. Industrial Com. (1984), 123 Ill. App. 3d 1096.

In any event, even if the Larson theory were to be adopted, we would not perceive it as a per se rule, but only one of several factors to be considered in determining the status of the claimant, and as pointed out in Area Transportation Co., control still remains the principal factor.

Accordingly, the judgment of the circuit court of Cook County affirming the decision of the Industrial Commission is affirmed.

Affirmed.

SEIDENFELD, P.J., McNAMARA, BARRY, WEBBER, and KASSERMAN, JJ., concur.