author: JUSTICE McCULLOUGH MILLS, J., JUSTICE TRAPP,

text:
    RUSSELL RALSTON, Adm’r of the Estate of Romney Ralston, Deceased, Plaintiff-Appellee, v. HAL W. PLOGGER et al., Defendants-Appellants.
    Fourth District
    No. 4—84—0628
    Opinion filed April 10, 1985.

      TRAPP, J., concurring in part and dissenting in part.
    Gordon R. Broom, of Burroughs, Simpson, Wilson, Hepler, Broom & McCarthy, of Edwardsville, for appellants.
    Dennis French, of Phelps, Carmody, Hasten & French, of Carlinville, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The plaintiff, Russell Ralston, brought this wrongful death action as administrator of the estate of Romney Ralston. After trial on the merits, a jury returned a verdict in favor of the defendants, Hal W. Plogger and Houlette & Seaton, Inc. The trial court, however, granted the plaintiff’s motion for a new trial, and we granted the defendants leave to appeal under Supreme Court Rule 306. 87 Ill. 2d R. 306.

On September 26, 1981, nine-year-old Romney Raison was fatally injured when a pickup truck struck him. Plogger was driving the truck on behalf of his employer, Houlette & Seaton. The accident occurred on Emerson Airline Road at about 11:30 a.m. Plogger testified he first saw the boy on a bike about 75 yards away. The boy was riding west near the left edge of the road. Plogger was also traveling west at about 45 or 50 miles per hour in the right lane. The boy made a sharp turn and started to come to the right side of the road. Plogger took his foot off the accelerator to slow down, but he did not apply the brakes. He attempted to pull his truck off the road to the right. The left fender of the truck collided with the bike at the edge of the road. Plogger drove his truck completely off the road. When he eventually stopped, he saw the boy lying with his head on the edge of the road.

Ambulance attendants, who arrived at the scene a short time later, testified the boy’s body was about four feet off the road. The bicycle was lying 15 to 20 feet east of the body and between 5 and 10 feet off the road. One of the attendants testified that tracks made by the truck showed it had left the road completely about 50 to 75 feet east of the bicycle. That attendant, Thomas Stults, was also the deputy coroner. At the accident site, Plogger told him that he had seen the boy and had taken his foot off the accelerator to slow down. He glanced in the rear view mirror, and when he looked up the boy had started to come across the road. Plogger then swerved to the shoulder, but the boy rode his bike onto the shoulder where Plogger hit him.

The decedent’s father, Russell Ralston, testified that he observed his son’s body four feet off the road when he arrived at the scene. The bicycle was lying eight feet off the road. According to the decedent’s father, the marks made by the truck left the road completely about 125 feet east of the bicycle. The decedent’s grandfather, Sam Ralston, testified the bicycle was 10 feet from the edge of the road. He measured the tracks left by Plogger’s truck and testified they left the road 130 feet east of the bicycle. He also testified that Plogger had stated that he would have missed the boy if he had stayed on the road.

James Aulabaugh, a deputy sheriff, arrived at the scene around noon. He testified the boy’s head was lying six inches from the edge of the pavement. The bicycle had already been moved. Aulabaugh noticed blood on the ground near the boy’s head. All three ambulance attendants testified there was no blood on the ground. From the tracks made by the truck, Aulabaugh determined the left wheels had gone off the road about two feet before the spot where the body lay. Based on the location of the body, the blood, and the place where the truck left the road, Aulabaugh determined the point of impact was at the edge of the road.

Russell Ralston testified his son had permission to ride on the road, but he was told to get off on the righthand side when traffic approached. Russell Ralston further testified that he had taught his son hand signals. The decedent’s mother, Darlene Ralston, stated that the boy was not allowed to ride on the road. If he did so, he was instructed to ride on the righthand side.

The decedent’s parents and grandparents testified the boy did many chores around the house and around the family farm. He attended public school in Palmyra through the third grade. His teacher at that school described Romney as learning disabled and difficult to motivate. Due to his poor performance at the public school, his parents transferred him to a private school in Springfield. The family rented an apartment in Springfield for the new school year. Romney’s teacher at the private school testified the boy was at the first grade level, but he was a hard worker. Alan Ravine, a certified school psychologist, examined Romney in July 1979. He testified Romney’s intellectual potential was in the low-average range. He described Romney as learning disabled and two years delayed in development of visual and motor skills. Ravine testified that while overall skills could have been improved, the overall condition was probably inherent and permanent. He concluded Romney would have been able to work only in highly supervised occupations such as a farm laborer. Fred Gottheil, a professor of economics, testified the average boy in Macoupin County would earn $87,000 in present cash value over his lifetime after consumption.

On November 9, 1982, the plaintiff filed suit on behalf of himself, his wife, and their two daughters. Based upon this court’s decision in Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 445 N.E.2d 485, the trial court struck from the plaintiff’s complaint allegations concerning loss of society. The court later instructed the jury that the decedent’s parents were entitled to a presumption of substantial pecuniary loss but that it could not award damages for loss of society. After approximately one hour of deliberation, the jury returned a verdict “for all of the defendants and against the plaintiff.”

On June 29, 1984, the supreme court reversed our decision in Bullard. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 468 N.E.2d 1228.) The court decided there could be no presumption of the loss of earnings upon the death of a child. The court, however, held parents were entitled to a presumption of pecuniary injury due to the loss of a child’s society. Damages are to be offset by child-rearing expenses. (102 Ill. 2d 505, 517-18, 468 N.E.2d 1228, 1234.) On August 2, the trial court granted the plaintiff’s motion for a new trial, ruling it had erred in refusing to instruct the jury that damages for loss of society were recoverable.

The defendants argue the Bullard decision should not be applied to this case because it was handed down 10 months after the jury returned its verdict. In Bullard, the supreme court directed its decision be applied “in all similar cases not finally adjudicated ***.” (102 Ill. 2d 505, 517, 468 N.E.2d 1228, 1234.) The court has previously defined “final adjudication” as the termination of the last proceeding and direct appeal. (People v. Grammer (1976), 62 Ill. 2d 393, 342 N.E.2d 371.) We conclude this case is not among those finally adjudicated by the date of the Bullard decision. Cf. Trotter v. Moore (1983), 113 Ill. App. 3d 1011, 447 N.E.2d 1340.

The defendants assert the errors in instructing the jury on damages do not justify a new trial because the jury found in their favor on the issue of liability. Allegations of error concerning the extent of the plaintiff’s damages are immaterial when it is evident that the jury found the defendants not liable. Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 599, 294 N.E.2d 689, 694; Intraten v. Thomas (1977), 54 Ill. App. 3d 709, 717, 369 N.E.2d 1339, 1344; Guenther v. Hawthorn Mellody, Inc. (1975), 27 Ill. App. 3d 214, 219, 326 N.E.2d 533, 537.

The plaintiff argues the verdict in favor of the defendants and against him cannot be construed as a finding of no liability. He notes the court instructed the jury that he bore the burden of proving his damages. The plaintiff contends the verdict can be construed as a finding of no damage rather than as a finding of no liability.

We disagree with the plaintiff’s interpretation of the verdict. In Mulvey, the same verdict was returned, and the court found it evident that the jury, having found the defendant not liable, never reached the question of damages. (Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 599, 294 N.E.2d 689, 694.) The question of damages is not properly considered until the defendants have been found liable, and the court so instructed the jury. (Schwartz v. Alton & Southern Ry. Co. (1976), 38 Ill. App. 3d 528, 531, 347 N.E.2d 829, 831.) While the defendants attempted to rebut the presumption that the decedent’s parents suffered a substantial loss of future earnings, the defendants never claim the plaintiff suffered no injury at all. The evidence concerning the decedent’s performance of chores around the family farm was unrefuted. The personal service of the decedent is an element of pecuniary loss (Eggimann v. Wise (1964), 56 Ill. App. 2d 385, 390, 206 N.E.2d 472, 475), and the jury was instructed to consider the decedent’s services in awarding damages. If the jury had found the defendants liable, it would have awarded at least nominal damages. (Lee v. National Material Corp. (1979), 74 Ill. App. 3d 629, 632, 394 N.E.2d 1, 3.) Although not specifically expressed, the failure of the jury to return a verdict in favor of the plaintiff for damages recognized as recoverable in some amount leads to the inescapable conclusion that the jury found the defendants not liable. (Ashland Coca Cola Bottling Co. v. Brady (1933), 252 Ky. 183, 188, 66 S.W.2d 57, 58.) Finally, we conclude the error regarding the damage instruction was not so pervasive or prejudicial as to create a likelihood that it may have affected the jury’s decision on the issue of liability. Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 599-600, 294 N.E.2d 689, 694.

On appeal, the plaintiff asserts several additional grounds in favor of sustaining the trial court’s ruling. These issues were raised in his post-trial motion, but the trial court did not address them because it felt Bullard required a new trial.

Supreme Court Rule 366(b)(2)(iv) provides:

“Review of Conditional Rulings on Post-Trial Motion. The reviewing court, if it determines to reverse an unconditional ruling of the trial court on a post-trial motion, may review and determine any conditional rulings made by the trial court on other questions raised by the motion. No cross-appeal is required.” (87 Ill. 2d R. 366(b)(2)(iv).)

Subparagraph (v) provides:

“Review Under Rule 306. If a petition under Rule 306 for leave to appeal from an order allowing a new trial is granted, all rulings of the trial court on the post-trial motions are before the reviewing court, notwithstanding the absence of a final judgment.” (87 Ill. 2d R. 366(b)(2)(v).)

Section 2 — 1202(f) of the Code of Civil Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1202(f)) provides:

“The court must rule upon all relief sought in all post-trial motions. Although the ruling on a portion of the relief sought renders unnecessary a ruling on other relief sought for purposes of further proceedings in the trial court, the court must nevertheless rule conditionally on the other relief sought by determining whether it should be granted if the unconditional rulings are thereafter reversed, set aside or vacated. The conditional rulings become effective in the event the unconditional rulings are reversed, set aside or vacated.”

The Illinois Constitution, article VI, section 6, states in part, “The appellate court may exercise original jurisdiction when necessary to the complete determination of any case on review.” (Ill. Const. 1970, art. VI, sec. 6.) Illinois courts of review have stated that the reasons specified by the trial court in granting a new trial do not limit the scope of appellate consideration. (McCracken v. Westinghouse Air Brake Co. (1981), 103 Ill. App. 3d 26, 28, 430 N.E.2d 539, 541.) The ruling of the trial court can be sustained on any ground urged in the lower court in support of the motion, even though the trial court did not state that ground as the basis for his decision. (Di Maso v. Wieboldt Stores, Inc. (1976), 37 Ill. App. 3d 966, 974-75, 347 N.E.2d 466, 474; Meyer v. Povilat (1959), 20 Ill. App. 2d 279, 280, 156 N.E.2d 4, 5.) The cited cases involve the reviewing court’s affirming the trial court’s action for reasons not ruled upon in the trial court.

The alternative grounds for new trial unruled upon as a part of the motion in the instant case had been previously ruled upon by the trial court during the process of the trial. The post-trial motion merely asserts those alternative grounds for the same relief and is not a request for a different form of relief. They were briefed and argued in this court. Because we are dealing with alternative grounds for the same relief, i.e., new trial, this court will review those alternative grounds.

The plaintiff contends the trial court erred in instructing the jury that contributory negligence on the part of the decedent’s parents bars recovery of damages for their pecuniary injuries. The plaintiff notes the trial court instructed the jury on the comparative negligence rules in regard to the decedent’s alleged lack of due care. The plaintiff argues it is incongruent to apply the doctrine of contributory negligence under section 2 of the Wrongful Death Act while applying the comparative negligence standard under section 1. Ill. Rev. Stat. 1983, ch. 70, pars. 1, 2.

In Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the supreme court abolished the common law doctrine of contributory negligence and replaced it with the doctrine of comparative negligence. Prior to Alvis, the doctrine of contributory negligence had been judicially imposed under section 1 of the Wrongful Death Act to bar recovery whenever the decedent’s negligence was a proximate cause of his death. (See, e.g., Dezort v. Village of Hinsdale (1976), 35 Ill. App. 3d 703, 342 N.E.2d 468.) After Alvis, the decedent’s contributorially negligent conduct was no longer a bar.

Unlike section 1 of the Act, section 2 expressly bars recovery with respect to pecuniary injuries suffered by contributorially negligent beneficiaries. Thus, the contributory negligence bar under section 2 was legislatively, not judicially, imposed. In deciding to instruct the jury on contributory negligence, the trial court relied on Justice Ryan’s dissent in Alvis-,

“Today’s decision, of course, can have no effect on those legislative enactments which have incorporated contributory negligence, nor will the law announced today have any effect on those statutes where contributory negligence is not a defense. It appears that this State will be operating under the doctrine of contributory negligence in the areas where the legislature has acted, and under the doctrine of pure comparative negligence in common law negligence cases. Alvis v. Ribar (1981), 85 Ill. 2d 1, 38, 421 N.E.2d 886, 903.

We believe the trial court properly instructed the jury on the issue. A court’s only legitimate function is to declare and enforce the law as enacted by the legislature, to interpret the language when necessary, and not to enact new provisions or substitute different ones. (Belfield v. Coop (1956), 8 Ill. 2d 293, 307, 134 N.E.2d 249, 256.) Courts are not free to engraft conditions not within the purview of the statute. (Baird v. Chicago, Burlington & Quincy R.R. Co. (1973), 11 Ill. App. 3d 264, 268, 296 N.E.2d 365, 367.) Such action would plainly be a forbidden judicial amendment to the statute. Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 9, 440 N.E.2d 112, 116.

The plaintiff raises several other arguments regarding the court’s instructions to the jury. He maintains several of the instructions were misleading, repetitive, and not supported'by the evidence. We have reviewed the plaintiff’s contentions and find them without merit. Generally, the trial court has considerable discretion in determining the form in which an instruction shall be given. (Agrico Chemical Corp. v. Forreston Fertilizer Co. (1975), 32 Ill. App. 3d 986, 988, 337 N.E.2d 76, 78.) An instruction is justified if it is supported by some evidence in the record, and the trial court has discretion in deciding which issues have been raised by the evidence. (Burge v. Morton (1981), 99 Ill. App. 3d 266, 269, 425 N.E.2d 539, 542.) Taken as a whole, the court’s instructions were sufficiently clear so as not to mislead the jury, and they fairly and accurately stated the law. (Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 568, 449 N.E.2d 211, 215.) Additionally, we find that the instructions did not unduly emphasize any particular matter.

The plaintiff asserts the trial court erred in allowing the deputy sheriff to testify as to the point of impact. The plaintiff contends no foundation was laid for the witness’ expertise in accident reconstruction. The deputy testified that he had been a police officer for 14 years. He had received an associate degree in law enforcement and had taken classes covering the investigation of automobile accidents. His training included methods for determining the points of impact. The plaintiff’s specific objection relates to the deputy’s lack of formal training in physics, engineering, or similar sciences. A witness whose knowledge is based primarily on practical experience, however, is no less an expert than one who possesses particular scientific or academic knowledge. (Presswood v. Morris (1979), 70 Ill. App. 3d 513, 516, 388 N.E.2d 844, 847.) The question of a witness’ knowledge or degree of his experience goes to the weight accorded his testimony, not to his competency. City of Chicago v. Bank of Ravenswood (1981), 93 Ill. App. 3d 52, 55, 416 N.E.2d 1115, 1118.

The plaintiff argues the deputy’s testimony as to the point of impact was unnecessary and, therefore, inadmissible. Reconstruction testimony may not be used as a substitute for eyewitness testimony. (McGrath v. Rohde (1972), 53 Ill. 2d 56, 289 N.E.2d 619.) Whether such expert testimony may be used in addition to eyewitness testimony is determined by whether it is necessary to rely on the application of principles of science beyond the ken of the ordinary juror. (Plank v. Holman (1970), 46 Ill. 2d 465, 471, 264 N.E.2d 12, 15.) If the matter is not beyond the ken of the average juror, then it is inadmissible. Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 359, 392 N.E.2d 1, 3.

The plaintiff relies on Dauksch v. Chamness (1973), 11 Ill. App. 3d 346, 296 N.E.2d 592, and Geisberger v. Quincy (1972), 3 Ill. App. 3d 437, 278 N.E.2d 404. In both cases, the appellate court held that the trial court had erred in permitting a law enforcement officer to testify as to the point of impact of an accident. In each case, the officer’s testimony had contradicted at least one of the eyewitness accounts because both the plaintiff and defendant had given conflicting eyewitness accounts. The courts in both cases decided the officer’s opinion as to the point of impact was not based on any special knowledge beyond the ken of the average juror, and his testimony should have been confined to his factual observation.

While we agree that the deputy’s opinion on the point of impact was inadmissible, we cannot concur that its admission constituted reversible error under the facts of this case. Initially, we note that the plaintiff’s only objection at trial concerned the deputy’s qualifications as an expert. A specific objection waives all grounds not stated. People v. Williams (1983), 97 Ill. 2d 252, 288, 454 N.E.2d 220, 237.

More importantly, unlike either Dauksch or Geisberger, there was only one eyewitness to this accident. The deputy’s testimony simply corroborated the eyewitness account. Furthermore, the plaintiff himself invited the testimony by trying to impeach the eyewitness testimony. The only reason for offering evidence as "to the tracks of the truck was to imply that the accident occurred well off the road rather than at the edge as Plogger testified. (Cf. Coffey v. Hancock (1984), 122 Ill. App. 3d 442, 461 N.E.2d 64.) Finally, the deputy testified as to his factual observations upon which he based his opinion. The plaintiff concedes these observations were admissible. If the jury accepted these facts as true, then it would have necessarily concluded the accident occurred at the edge of the road. When viewed in the context of the other evidence, including that of the sole eyewitness, we do not believe the admission of testimony concerning the point of impact caused prejudicial error. Diederich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128.

The plaintiff argues the jury’s verdict is against the manifest weight of the evidence. He concludes the trial court should have entered judgment in his favor notwithstanding the verdict. Although the plaintiff requested this relief in his post-trial motion, his failure to obtain a ruling could be considered a waiver of the request. (Fulford v. O’Connor (1954), 3 Ill. 2d 490, 121 N.E.2d 767; Hanson v. Darby (1968), 100 Ill. App. 2d 339, 241 N.E.2d 110.) Moreover, we do not find the jury’s verdict to be against the manifest weight of the evidence.

The order of the trial court granting a new trial is reversed, and the cause is remanded with directions to reinstate the judgment previously entered.

Reversed and remanded with directions.

MILLS, J.,

concurs.

JUSTICE TRAPP,

concurring in part and dissenting in part:

I concur in the opinion insofar as it reverses the order of the trial court granting a new trial upon the authority of Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 445 N.E.2d 485.

I dissent from the opinion insofar as it proceeds to review and decide the several issues which were raised and argued in the trial court in the motion for a new trial but which remain in the trial court without a ruling by the trial judge.

It seems unnecessary to again insert the full text of section 2— 1202(f) of the Civil Practice Law and Supreme Court Rule 366(b)(2)(iv) and (v), which have been quoted in the principal opinion.

The plain text of section 2 — 1202(f) imposes upon the trial court a duty to “rule” upon all claims for relief sought in the motion for a new trial. The powers of review in the appellate court provided in Supreme Court Rule 366(b)(2)(iv) and (v), in turn are directed to review of “all rulings of the trial court.” It is patent that other than the granting of a new trial upon the Bullard issue, there are no “rulings” of the trial court.

This court has determined to reverse the order granting a new trial for the reason stated by the trial judge but to proceed to review other grounds for seeking a new trial which remain without ruling in the trial court. To take the latter step without remand to the trial court to complete its rulings effectually dismantles both the provisions of the Civil Practice Law and the Supreme Court Rules, and signals to the circuit courts that this court will not require them to follow the Supreme Court Rules and the Civil Practice Law and that for practical purposes this court will overlook them.

We note that in this case one of the issues presented in the trial court upon the motion was whether the verdict was contrary to the manifest weight of the evidence. This is an issue generally, if not peculiarly, appropriate for consideration by the trial court.

The reversal should be accompanied by remandment to the trial court for a ruling upon the grounds for a new trial which have not heretofore been ruled upon.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    UNITED STATES STEEL CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jerome Milerowski, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—1660WC
    Opinion filed March 29, 1985.

      Rooks, Pitts & Poust, of Chicago (Ian M. Sherman, of counsel), for appellant.
    Cornfield and Feldman, of Chicago (Linzey D. Jones, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Respondent, United States Steel Corporation, appeals from a judgment of the circuit court of Cook County confirming an Industrial Commission decision which reversed the denial of compensation by an arbitrator and made an award to claimant Jerome Milerowski for loss of hearing.

On appeal, respondent contends that (1) the Commission’s finding that claimant met his burden of showing an exposure to noise with the intensity of 90 decibels or more for eight hours, or its time-weighted equivalent, was legally erroneous; and (2) certain other determinations of the Commission were against the manifest weight of the evidence.

Claimant, who was the only person to testify at the hearing of the arbitrator on December 10, 1979, stated that he had been employed by respondent for 20 years — 18 of which were in its Blooming Mill, where he had been a millright for 16 years — and is presently working as such in the mill. He testified that the mill was always very noisy and that he and other employees had to holler or shout to communicate even from distances of 3 to 4 feet. He described the noise as pounding, banging, and slamming as ingots were being rolled, with loud explosions also occurring when the ingots made contact with air or salt pockets. He also testified that these noisy conditions existed as long as he has worked in the mill — which has been since 1959.

He first noticed difficulty with his hearing in 1976, and when it worsened he went to see Dr. Ralph F. Naunton, at Billings Hospital, on April 28, 1978. Dr. Naunton examined his hearing on that day and, a week later, did an audiometric examination, after which he prescribed a hearing aid. Claimant has been wearing the aid every day except while working in the mill, where he has been wearing earmuffs and ear plugs provided him by respondent “about a year ago” (which would have been December 10,1978).

In response to a subpoena calling for all sound surveys at the Blooming Mill, respondent produced only a December 1963 survey, which showed sound-level values at that time of from 90 to 103 decibels at various sites in the mill.

The following medical reports were received in evidence by agreement: (a) from Dr. Naunton, whose evaluation showed “a severe bilateral symmetrical sensori-neural or nerve impairment consistent with age change plus rather severe damage to hearing from exposure to noise”; (b) from Dr. Marshall U. Simon, who examined claimant on March 23, 1979, at the request of claimant’s attorney, and whose report showed “a marked bilateral sensori-neural type of hearing loss in both ears” and whose diagnosis was “acoustic trauma with severe loss of auditory acuity”; (c) Dr. Edward L. Applebaum, who examined claimant on February 9, 1979, at the request of respondent, and found that he had “bilateral sensori-neural hearing loss compatible with presbycusis and (although not typically) noise induced hearing loss”; (d) Dr. M. Reese Guttman, who examined claimant on August 30, 1979, at the request of respondent and found that claimant’s hearing loss was consistent with bilateral presbycusis consistent with his age and “was neither caused nor aggravated by noise exposure and is unrelated to his employment.”

The arbitrator denied compensation, finding that claimant had failed to prove that his hearing loss was the result of an occupational disease. The Industrial Commission reversed that decision and awarded compensation on the basis of exposure to excessive noise levels at his place of employment. This decision was confirmed by the circuit court of Cook County, and this appeal followed.

Opinion

Concerning respondent’s first contention that the Commission’s finding that claimant met his burden of showing an exposure to noise with the intensity of 90 decibels or more for eight hours was legally erroneous, we initially note that the Commission had adopted hearing-loss guidelines covering exposure to noise between July 1, 1975, when the Workers’ Occupational Diseases Act (the Act) first provided for partial loss of hearing, and September 15, 1980, the effective date of an amendment to the Act adopting those guidelines. One of these guidelines (Rule 13 — (1)), entitled “Causal Connection,” provided as follows:

“The Industrial Commission shall use the following rebuttable presumptions to determine whether exposure between July 1, 1975 and September 15, 1980 to industrial noise caused a hearing loss:
(a) Exposure to noise with the intensity of 90 decibels or more for 8 hours or its time weighted equivalent causes hearing loss, and
(b) Exposure to noise with the intensity of less than 90 decibels or less for 8 hours or its time weighted equivalent does not cause hearing loss.”

The Commission, in its decision here, found:

“1. Petitioner was exposed to noise in excess of 90 dba for an eight hour day or the time weighted equivalent. Based on Petitioner’s unrebutted testimony that he was exposed to a described level of noise, based on the Commission’s expertise, Petitioner has described noise levels in excess of 90 dba, and Respondent has not introduced any evidence contrary to Petitioner’s unrebutted testimony.”

Respondent argues that this finding was “legally erroneous” because the Commission relied only upon its expertise and claimant’s testimony; whereas, in fact, claimant did not sustain his burden of showing an exposure to noise as set forth in Rule 13 — (l)(a).

We note, however, that, in response to a subpoena to produce all sound-level tests taken at its plant, respondent produced a single survey made in December 1963, showing sound levels of from 90 to 103 decibels at various sites in the Blooming Mill. This survey was introduced into evidence by claimant, who also testified that the noise, as described in the outline of his testimony above, existed during the entire time he worked for plaintiff — -which was since 1959. While respondent argues that the Commission erroneously relied on its own expertise, we find that claimant made a prima facie showing of hearing loss resulting from an exposure to noise as set forth in Rule 13— (l)(a).

Plaintiff next contends the Commission’s finding that claimant’s hearing loss was causally connected to his exposure to excessive noise at work was against the manifest weight of the evidence. We initially note that the Commission was not bound by the findings of the arbitrator (Seiber v. Industrial Com. (1980), 82 Ill. 2d 87, 411 N.E.2d 249), and its decision will not be disturbed on review-even where its factual evaluations differ from those of the arbitrator on the same evidence (Edwards v. Industrial Com. (1983), 96 Ill. 2d 278, 449 N.E.2d 1335) — unless the decision is contrary to the manifest weight of the evidence (Flores v. Industrial Com. (1981), 87 Ill. 2d 48, 429 N.E.2d 479). While it is true, as respondent points out, that Doctors Applebaum and Naunton found evidence of hearing loss which was consistent with aging, and that Dr. Guttman found his hearing loss was due to age and “neither caused nor aggravated by noise exposure,” we note that Dr. Naunton additionally reported that claimant had rather severe damage to his hearing from exposure to noise, that Dr. Applebaum found that claimant’s hearing loss was compatible with aging and noise-induced hearing loss, and that Dr. Simon made a diagnosis of “acoustic trauma with severe loss to auditory acuity.” Considering these findings in the light of claimant’s testimony and the fact that respondent presented no evidence other than the reports of Doctors Applebaum and Guttman, we conclude that the Commission’s finding that claimant’s hearing loss was causally connected to excessive noise exposure was not against the manifest weight of the evidence.

Respondent next posits that the finding of the Commission that claimant’s exposure to excessive noise level was terminated on December 10, 1978, when he began using ear plugs, was against the manifest weight of the evidence.

The Act provides that “[n]o compensation shall be payable for on or account of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease ***.” (Ill. Rev. Stat. 1979, ch. 48, par. 172.36(f).) Based upon claimant’s testimony that he was provided ear plugs by respondent a year prior to the hearing before the arbitrator — which was on December 10, 1979 — the Commission found that he was last exposed to excessive noise on December 10, 1978. Respondent suggests that claimant should have “presented evidence on the nature and effect of the ear plugs and whether he was thereafter exposed to any noise levels.” While such evidence would have further supported the Commission’s finding, we think that it reasonably could have inferred that respondent would not have given claimant the earmuffs and ear plugs if they did not serve the purpose intended, that is, to eliminate excessive noise, and because claimant began to use them for that purpose on December 10, 1978, and continued to use them thereafter, we find support for the Commission’s finding of that day as the date of last exposure.

We turn then to the contention of respondent that the Commission’s findings of a 73% loss of hearing in the left ear and 69% in the right ear were against the manifest weight of the evidence. Rule 13 — (2) of the Commission provides in pertinent part:

“The percentage loss of hearing shall be calculated using the average, in decibels, of the thresholds of hearing for the frequencies of one thousand, two thousand and three thousand cycles per second. If such losses of hearing average thirty decibels (ANSI) or less in the three frequencies, such losses of hearing shall not constitute any hearing disability. If the losses of hearing average eighty-five decibels (ANSI) or more in the three frequencies, such losses of hearing shall constitute total loss of hearing.”

Respondent argues that, in its determination of the percentages of lost hearing, the Commission disregarded the audiograms of the other doctors in using the percentages found by Dr. Guttman. We note, however, that Rule 13 — (2) does not require — as respondent suggests — that an average of the percentages found by all of the examining doctors should be used, but only that lost hearing “shall be calculated using the average in decibels of the thresholds appearing for the frequencies of 1,000, 2,000 and 3,000 cycles per second.” Here, we note that only Doctors Applebaum and Guttman, both of whom examined claimant at the request of respondent, made findings at all three frequencies, and that Dr. Guttman’s examination was more recent than that of Dr. Applebaum’s by more than 6V2 months, and it was preeminently the right of the Commission to choose between the views of the medical experts. Beck v. Industrial Com. (1965), 32 Ill. 2d 148, 152, 204 N.E.2d 7, 9.

We conclude that the acceptance by the Commission of the loss-of-hearing findings of Dr. Guttman, respondent’s examining doctor, was not against the manifest weight of the evidence.

For the reasons stated, the judgment is affirmed.

Affirmed.

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


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RODNEY RIMMER et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—2656
    Opinion filed March 26, 1985.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Elizabeth Loredo Rivera, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellee Charles Graves.
    Patrick R. Hebl, of Chicago, for appellee Rodney Rimmer.
   JUSTICE HARTMAN

delivered the opinion of the court:

The State appeals from a circuit court order which sustained defendant’s motion to suppress certain identification testimony and evidence of their post-arrest statements. (87 Ill. 2d R. 604(a)(1).) The issues raised are whether: (1) the State’s appeal was timely filed; (2) an arrest took place in one defendant’s apartment; (3) defendants’ arrests were valid; and (4) the suppressed evidence was admissible.

On October 18, 1982, Marion Johnson was shot to death in front of a building in the Cabrini-Green housing project. Defendants, who were arrested shortly after the shooting, were identified as the perpetrators by eyewitnesses and subsequently made certain exculpatory and inculpatory statements. They were then charged with murder and armed violence.

Defendants moved separately to quash their arrests and suppress evidence. One hearing pursuant to these motions was conducted on June 13, 1983. Graves testified that at 9:30 p.m. on October 18, 1982, he was watching television in the bedroom of defendant Rimmer’s apartment at 1159 North Larrabee. A police officer entered the bedroom, asked him his name, searched and handcuffed him, and searched the room. Two officers then took him and Rimmer downstairs to their car, telling them they were going to the police station. Graves did not agree to go with them. The officers showed them no search or arrest warrants.

Ivory Rimmer, defendant Rimmer’s mother, testified that she was in bed at home at 1159 North Larrabee at about 9:45 p.m. on October 18, 1982, when her son called out that the police wanted to talk to her. Two plainclothes officers, one male and one female, in the apartment hallway, told her that Rodney had been involved in a shooting. The male officer entered Rodney’s bedroom and closed the door. Ten minutes later, he came out, preceded by Charles Graves, to whom he later said, “Let’s go, buddy.” Graves asked what he was wanted for and said he didn’t do anything. The officer said, “You’ll see,” and told the female officer to take Rodney. They all left the apartment. Mrs. Rimmer was not asked, but told, that her son was being taken to the station. Although the officers did not say that defendants were under arrest, Rodney was not permitted to move around the apartment. She was not sure whether Graves was handcuffed, as his hands were behind him.

Rimmer, age 17, testified that while at home at about 9:55 p.m. on October 18, 1982, he opened his door to a knock and police asked if he was Rodney Rimmer and told him to get his mother. When he tried to go to her bedroom, they told him not to “go anywhere,” but to “call her,” which he did. Officer Davis, whom he knew by name, went into her room, and came out with her. Officer Davis then went into another room and came out with Graves. The officers told defendants they were going to the police station. When Rimmer asked what for, they said, “Just come down.” They handcuffed him as they left the apartment, outside his mother’s presence.

Officer Joyce Gordon of the Chicago police department testified that on October 18, 1982, she and her partner, Officer Davis, were patrolling the Cabrini-Green area. At 9 p.m., they heard a police broadcast of a “man shot” at 1158 North Cleveland. They arrived at that location and asked people gathered there what had happened. About five to six “kids” came up to their car. One said that Rodney Rimmer had been in the area, “a few minutes” or “a half an hour or so” before the officers arrived. Officer Gordon knew Rimmer. Rimmer was described by the kids as wearing a beige jacket and a black hat and was with another male wearing a brown jacket and purple pants. The officers began looking for Rimmer and his companion. They then heard a police broadcast which described “two possible suspects wanted for the shooting” — black male teenagers: one wearing a beige jacket and black hat and possibly named “Rodney Reynolds,” and the other wearing a brown jacket and purple pants. The officers proceeded to Rimmer’s house to talk to him. Mrs. Rimmer answered the apartment door. They explained to her what had happened and her partner asked if he could talk to Rodney. She said, “Okay.” Officer Davis went to the back of the apartment and returned with both defendants. Rimmer wore a beige jacket; Graves wore a brown jacket and purple pants. Officer Gordon told Mrs. Rimmer they “just wanted to interview” Rodney at the Cabrini-Green substation. Mrs. Rimmer said, “Okay.” They told her she could come along, but she did not do so. When they left the apartment, defendants had not been handcuffed or placed under arrest. As they came out of the building, Officer Thomas Northfeld pulled up and two “kids” in the car said, “Yes, those were the two that did it.” Defendants were thereupon placed under arrest, advised of their rights, and taken to the substation. Defendants subsequently made certain oral and written statements.

At the conclusion of the hearing, the court found that defendants were arrested in the apartment, and that probable cause to arrest arose when defendants were identified by witnesses outside the apartment. The court denied defendants’ motion to quash and suppress.

At a hearing on August 17, 1983, on Rimmer’s motion to reopen the motion to quash his arrest and suppress evidence, the court determined it had earlier misapplied the law; ordered that the identifications and statements be suppressed; and allowed Graves’ oral motion to join Rimmer’s motion.

On September 15, 1983, a hearing was conducted on the State’s motion to reopen the hearing on the motion to quash arrest and suppress evidence. Police Officer Thomas Northfeld testified that on October 18, 1982, he and his partner responded to a call of a “boy shot” at 1158 North Cleveland, where they found a fatally wounded young black male sprawled on the sidewalk. They called for an ambulance and other police. They attempted to find witnesses in the crowd that had gathered. Terrance Davis and Dennis Nelson said they had seen the shooting and described the offenders: two black male youths, one with a black hat and beige jacket, the other with a brown jacket and purple pants. The witnesses said the former offender was named Rodney and his last name “sounded like Reynolds.” The officers and witnesses toured the immediate area, searching for the suspects. The witnesses’ descriptions of the suspects were broadcast over the police radio.

At the conclusion of the hearing, the court again found that there was no probable cause to arrest defendants in the apartment. Defendants’ motion to suppress evidence was accordingly sustained.

At a hearing on October 5, 1983, the court denied the State’s petition for admission of defendants’ statements based on attenuating circumstances. This appeal followed.

I

We consider first defendants’ motion to dismiss the State’s appeal on the grounds that it was not timely filed. This motion was taken with the case and is denied in a separate order filed concurrently with this opinion. The circuit court initially sustained defendants’ motion to suppress on August 17, 1983; at a hearing on September 15, 1983, pursuant to the State’s motion to reopen the suppression hearing, the court again sustained defendants’ motion. The State then filed a petition for admission of defendants’ statements, heard and denied on October 5, 1983. The State’s notice of appeal, filed on November 3, 1983, purported to be from the court’s October 5, 1983, order, suppressing the identification evidence and defendants’ statements.

The State argues that its petition for admission was “essentially a motion to reconsider”; the time for appeal, therefore, did not commence to run until this petition was denied on October 5, 1983. As the instant petition sought reversal of the prior suppression orders with respect to the identical evidence, albeit on additional or alternative grounds, its characterization by the State as a motion for reconsideration was justifiable. (See People v. Wagner (1981), 100 Ill. App. 3d 1051, 1053, 427 N.E.2d 985; People v. Clark (1979), 80 Ill. App. 3d 46, 48-49, 399 N.E.2d 261.) The State’s notice of appeal was thus timely filed.

II

The State contends that the circuit court erred by finding that defendants were arrested in Rimmer’s apartment.

In Illinois, a valid arrest occurs when: police officers inform defendant of a violation; defendant submits to their control; and the evidence clearly shows that the officers intended to effect the arrest and defendant so understood them. (People v. Wipfler (1977), 68 Ill. 2d 158, 165, 368 N.E.2d 870.) Relevant to this analysis is not the arrestee’s subjective understanding, but what a reasonable, innocent man in the arrestee’s shoes should have thought under the circumstances. (People v. Wipfler (1977), 68 Ill. 2d 158, 166; People v. Reed (1982), 104 Ill. App. 3d 331, 336, 432 N.E.2d 979.) A citizen’s assumption that he is required to cooperate with police should not be equated with an arrest. (People v. Wipfler (1977) 68 Ill. 2d 158, 167.) It is immaterial where police question a citizen; what is relevant is whether his freedom has been restrained. (People v. Miller (1980), 89 Ill. App. 3d 973, 977, 412 N.E.2d 175, cert, denied (1981), 454 U.S. 871, 70 L. Ed. 2d 175, 102 S. Ct. 339.) Thus, as detention for custodial investigation intrudes so severely on fourth amendment interests, probable cause to arrest is required. Dunaway v. New York (1979), 442 U.S. 200, 216, 60 L. Ed. 2d 824, 838, 99 S. Ct. 2248, 2258; People v. Creach (1980), 79 Ill. 2d 96, 100, 402 N.E.2d 228, cert, denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564.

The State argues that police officers here merely asked defendants to accompany them to the station for questioning and did not arrest them until after they had been identified as the perpetrators by eyewitnesses. According to defendants, however, they were searched, handcuffed, were not permitted to move about, and were told, not asked, to accompany the officers. Moreover, Rimmer’s mother testified that, although she did not see handcuffs, she could not see Graves’ hands; she also noted that the officers did not permit her son to move around the apartment. Although Officer Gordon’s testimony generally contradicted defendants’, she “guess[edj” that her partner searched defendants and the bedroom before leaving the apartment. The circuit court indicated that, while it did not believe all of defendants’ testimony, neither did it believe all of the officer’s testimony. It was within the province of the court as trier of fact to evaluate the credibility of witnesses and resolve conflicts in their testimony. (People v. Berland (1978), 74 Ill. 2d 286, 305-06, 385 N.E.2d 649.) The court’s finding that the arrests took place in the apartment, from the circumstances indicating that defendants were physically restrained therein and compelled to comply with police, therefore was not manifestly erroneous and cannot be disturbed. See People v. Clay (1973), 55 Ill. 2d 501, 505, 304 N.E.2d 280; People v. Winters (1983), 97 Ill. 2d 151, 158, 454 N.E.2d 299.

Ill

The State argues further that, if the circuit court was correct in finding that the arrests took place in the apartment, they were nevertheless proper.

Probable cause to arrest exists when the totality of the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed it. (People v. Robinson (1976), 62 Ill. 2d 273, 276, 342 N.E.2d 356; People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605.) In assessing the existence of probable cause, courts are required to consider “probabilities and are not disposed to be unduly technical.” People v. Clay (1973), 55 Ill. 2d 501, 504-05, 304 N.E.2d 280.

Our review of the facts compels us to conclude, contrary to the circuit court, that police had probable cause to arrest defendants in Rimmer’s apartment. The arresting officers arrived at the homicide scene shortly after the victim had been removed. They learned from some “kids” gathered nearby that Rimmer, identified by name, and a male companion had been in the area at about the time of the shooting. The clothing worn by the two was described by them in detail. As the officers drove around looking for Rimmer, they heard a police broadcast describing two “suspects wanted for the shooting” — two male black teenagers whose clothing exactly matched the kids’ description of that worn by Rimmer and his companion. The broadcast further indicated that the “possible name” of one suspect was “Rodney Reynolds.” Police officers are entitled to act in reliance upon information received in official police communications. (People v. Brown (1980), 88 Ill. App. 3d 514, 519, 410 N.E.2d 505, cert, denied (1981), 451 U.S. 1019, 69 L. Ed. 2d 392, 101 S. Ct. 3010; People v. Harris (1980), 83 Ill. App. 3d 1123, 1126, 404 N.E.2d 1020.) To predicate an arrest, however, the communication must be based upon facts sufficient to constitute probable cause for arrest. (People v. Brown (1980), 88 Ill. App. 3d 514, 410 N.E.2d 505. See Whiteley v. Warden (1971), 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031.) Here, the police broadcast heard by the arresting officers was based upon information obtained by Officer Northfeld from the two eyewitnesses to the shooting. That broadcast, coupled with the information the arresting officers already possessed, provided probable cause for arrest. Further, based upon similarity in the names, the arresting officers could reasonably conclude that one of the “suspects” referred to in the broadcast was Rimmer, whom they knew. When the officers observed that Rimmer and Graves were, in fact, dressed precisely as described by the kids and the subsequent broadcast, there was probable cause to arrest them.

Defendants were arrested without a warrant in Rimmer’s home; nevertheless, the arrests were proper, as both consent to enter and exigent circumstances were present. (See Payton v. New York (1980), 445 U.S. 573, 590, 6 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1382.) To validate a warrantless arrest, consent must be given voluntarily. (People v. Bean (1981), 84 Ill. 2d 64, 69, 417 N.E.2d 608, cert, denied (1981), 454 U.S. 821, 70 L. Ed. 2d 93, 102 S. Ct. 106. See also Schneckloth v. Bustamonte (1973), 412 U.S. 218, 222, 36 L. Ed. 2d 854, 859, 93 S. Ct. 2041, 2045.) Such consent may be obtained from a third person who has control over the premises. United States v. Matlock (1974), 415 U.S. 164, 169-72, 39 L. Ed. 2d 242, 248-50, 94 S. Ct. 988, 992-93; People v. Bean (1981), 84 Ill. 2d 64, 69-70.

Here, Rimmer testified that he opened the door of the apartment after the police knocked. He recognized both officers and knew Officer Davis by name. He called his mother at their request. Officer Davis then entered her bedroom and spoke with her. Officer Gordon, on the other hand, testified that Mrs. Rimmer opened the door and permitted the officers to enter the apartment. Whether defendant’s or the police version is believed, there is no indication that either Rimmer or his mother refused entry to the officers or were otherwise uncooperative. The circuit court’s determination that the officers had consent to enter was therefore correct.

The arrests were further justified by the presence of exigent circumstances. In determining the existence of exigent circumstances, the following factors are to be considered: the need for prompt police action in view of the recency of the offense; the lack of deliberate or unjustified delay during which a warrant could have been obtained; a reasonable belief that defendant is armed; the presence of a grave offense, especially a crime of violence; a clear showing of probable cause based on reasonably trustworthy information; a clear identification of defendant as the offender; a strong belief that defendant was on the premises entered; and peaceable entry by police. (See People v. Abney (1980), 81 Ill. 2d 159, 169-72, 407 N.E.2d 543; People v. Yates (1983), 98 Ill. 2d 502, 515, 456 N.E.2d 1369; People v. Cobb (1983), 97 Ill. 2d 465, 484, 455 N.E.2d 31.) As these factors should serve as guidelines, “not as cardinal maxims to be rigidly applied in each case,” the overriding concern should be the reasonableness of police action under the particular circumstances presented. (People v. Yates (1983), 98 Ill. 2d 502, 515-16. See also People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31.) Thus, these factors need not all be present in every case, and must be satisfied only on balance. People v. Johnson (1984), 121 Ill. App. 3d 358, 364, 459 N.E.2d 1000.

Most of the foregoing factors were satisfied in the case sub judice. First, the action by the officers was prompt and closely followed the commission of the crime. The arresting officers responded to a report of a “man shot” at 9 p.m. and arrested defendants within an hour of that time. Second, the officers did not delay in going to defendant Rimmer’s apartment after hearing the police broadcast describing the suspects. Third, as the crime involved a shooting, the officers could reasonably believe that defendants were armed. Fourth, a grave and violent offense — -a homicide by shooting — was involved. Fifth, Officer Gordon knew where Rimmer resided and could not find him on the streets; she therefore could conclude that there was a strong probability that he was in his apartment nearby. Sixth and last, the officers entered the apartment peacefully. Here, the officers acted reasonably under the circumstances and defendants’ warrantless arrests were proper.

IV

The State lastly contends that the circuit court erred by suppressing evidence of defendants’ street identifications and post-arrest statements. Because we find that defendants’ arrests were valid, we must reverse the circuit court’s exclusion of the subject evidence on the grounds that it was the “fruit” of defendants’ illegal arrests.

For the foregoing reasons, we reverse the order of the circuit court of Cook County granting defendants’ motions to quash their arrests and to suppress evidence and remand the case for further proceedings consistent with the views herein expressed.

Reversed and remanded.

STAMOS, P.J., and BERLIN, J., concur.


author: JUSTICE RIZZI

text:
    RODNEY SNYDER, Plaintiff-Appellant, v. DR. AHMAD JUDAR et al., Defendants-Appellees.
    First District (3rd Division)
    Nos. 82—2337, 83—0098 cons.
    Opinion filed March 29, 1985.

      Harold A. Liebenson, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stanley J. Davidson and E. Michael Kelly, of counsel), for appellee Ahmad Judar.
    Pretzel & Stouffer, Chartered, of Chicago (Walter H. Djokic and Robert Marc Chemers, of counsel), for other appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Rodney Snyder, brought this negligence action against defendants St. Elizabeth’s Hospital, Ancilla Domini Health Services, Inc., and Dr. Ahmad Judar. Defendants moved to dismiss the action on the basis that it was not timely filed, and the trial court granted their motions. We reverse and remand.

In his complaint, plaintiff alleges that on October 14, 1979, he entered St. Elizabeth’s Hospital for treatment of injuries received in an automobile accident. Judar is engaged in the practice of roentgenology at the hospital. Plaintiff further alleges that Judar and the hospital, through its agents and servants, negligently determined that there were no fractures or dislocations in plaintiff’s right hip and then permitted plaintiff to leave the hospital “ambulatorily, which in turn aggravated and created a more serious condition of the right hip.” Subsequently, plaintiff went to Royal Columbian Hospital in Canada where surgery was performed on his right hip. Around March 11, 1980, plaintiff wrote St. Elizabeth’s for a copy of his X ray report. Plaintiff alleges that upon receiving the report, he learned for the first time of defendants’ failure to diagnose the fracture in his hip. Finally, plaintiff alleges that he filed this action within two years of the date that he learned of this information.

This suit was filed on January 4, 1982. Each defendant filed a motion to dismiss, asserting that the suit was barred because it was not filed within the two-year period, provided by the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 22.1) since the alleged malpractice occurred in October 1979, but the complaint was not filed until January 1982. The trial court granted the motions.

The relevant provision of the limitations statute provides that medical malpractice actions shall not be brought more than two years after the plaintiff knew or should have known of the injury, but in no event more than four years after the date of the alleged misconduct. (Ill. Rev. Stat. 1979, ch. 83, par. 22.1, recodified in Ill. Rev. Stat. 1981, ch. 110, par. 13 — 212.) In Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869, and Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864, the supreme court addressed the question of when this limitations period is triggered. The court concluded that “[t]he statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. At that point the burden is upon the injured person to inquire further as to the existence of a cause of action.” (Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874; see Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 169, 421 N.E.2d 864, 868.) The Nolan court specifically stated that this rule was different from a rule which would recognize accrual of a cause of action when a person knows or should know of both the injury and the defendants’ negligent conduct. (85 Ill. 2d 161, 170, 421 N.E.2d 864, 868.) The court rejected such a rule because it appeared contrary to the purposes underlying the limitations statute. (85 Ill. 2d 161, 171, 421 N.E.2d 864, 868.) In support of the rule that was adopted, the court stated that under the rule, the injured person would not be required to know the inherently unknowable, yet at the same time, he would not be permitted to slumber on his rights. (85 Ill. 2d 161, 421 N.E.2d 864, 868.) The question of when a party knew or reasonably should have known both that an injury occurred and that it was wrongfully caused is one of fact, unless the facts are undisputed and only one conclusion may be drawn from them. Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874; Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864, 868-69.

We believe that the allegations made by plaintiff in his complaint were sufficient to raise a factual question as to when he knew or should have known of the injuries which form the basis for this suit and as to when he knew or should have known that such injuries were wrongfully caused. While plaintiff knew on October 14, 1979, that he had received injuries in the automobile accident, the injuries which plaintiff allegedly sustained as a consequence of these defendants’ negligence were not evident. The injuries which plaintiff attributes to these defendants related to aggravation of the hip fracture which resulted from the automobile accident. Any aggravation of the original injuries caused by defendants’ negligence is clearly separate and distinct from the injuries suffered by plaintiff in the accident itself. Thus, we cannot say as a matter of law that merely because plaintiff knew or should have known of the original injuries and that they were wrongfully caused, that he knew or should have known of the subsequent injuries and that they were wrongfully caused. Rather, plaintiff’s allegations raise a factual issue as to when the limitations period was triggered.

Defendants argue that “plaintiff had full knowledge of his ‘injury’ at the time of the automobile accident and thus, the statute of limitations began to run at that time.” This argument is untenable. If we were to accept defendants’ position, then plaintiffs who receive immediate medical care for traumatic injuries would be required to investigate the possibility of a medical malpractice action and perhaps file suit, even though no medical malpractice is initially suspected, in order to avoid the running of the limitations period in case malpractice is subsequently discovered. This would place an undue burden of investigation on plaintiffs and would unfairly involve health care providers in needless and vexatious litigation. Such a result should be eschewed by the courts, not condoned.

In support of this argument, defendants rely on Urchel v. Holy Cross Hospital (1980), 82 Ill. App. 3d 1050, 403 N.E.2d 545, which involved facts similar to those before us. In granting defendants’ motions to dismiss, the trial court here found that Urchel was controlling. In Urchel, the plaintiff was injured in an automobile collision with a CTA bus on September 16, 1973, and he was taken to the hospital for treatment. Plaintiff filed a negligence action against the CTA, and this suit was settled in 1976. Subsequently, on March 4, 1977, the plaintiff sued the hospital and physicians for medical malpractice. In the complaint for medical malpractice, the plaintiff alleged that he first became aware of defendants’ negligence on August 23, 1976, when a deposition was given by a witness in another case involving the same CTA accident. Plaintiff further alleged that August 23, 1976, was the first time he knew or could have discovered that any portion of his injuries was attributable to medical malpractice. Defendants filed motions to dismiss on the basis that the limitations period had run, and the trial court granted the motions. The appellate court affirmed.

The Urchel court found that once the plaintiff was injured and became aware of the possibility that someone was at fault, he was required to file suit within the normal two-year period provided for medical malpractice actions under section 21.1. During this period of time, the court stated, “[T]he plaintiff should have thoroughly investigated the circumstances of the accident and events occurring subsequent thereto to determine not only the facts necessary to his suit against the CTA but, in addition, to determine whether any other parties might have been at fault.” (82 Ill. App. 3d 1050, 1053, 403 N.E.2d 545, 547.) To the extent Urchel suggests that, as a matter of law, a person who received medical treatment following a traumatic injury has two years from the date of the injury in which to file a medical malpractice action regarding negligent treatment of the injury, we disagree with the Urchel decision.

We conclude that the trial court erred in granting defendants’ motions to dismiss based on the running of the limitations period. The facts alleged present a question as to when plaintiff knew or should have known both that he was injured and that his injury was wrongfully caused, and, based on that determination, whether this suit was filed within two years from that time.

Accordingly, the judgment of the circuit court is reversed, and this case is remanded for further proceedings.

Reversed and remanded.

WHITE, P.J., and McGILLICUDDY, J., concur.


author: JUSTICE UNVERZAGT

text:
    STATE BANK OF ANTIOCH, Plaintiff-Appellant, v. DOROTHY NELSON et al., Defendants-Appellees.
    Second District
    No. 84—489
    Opinion filed April 10, 1985.
    Rehearing denied May 9, 1985.

      Michael W. Cantar, of Larson, Cantar & DeMartini, of Antioch, for appellant.
    Dennis R Daly, of Daly & Daly, of Waukegan, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, the State Bank of Antioch, an Illinois banking corporation, appeals from an order of the circuit court of Lake County which enjoined it from enforcing a deficiency judgment previously entered against the defendants, Dorothy Nelson, Diana Cassidy and Sharon Nelson. The plaintiff contends on appeal that the effect of the trial court’s order was an improper modification of a final judgment more than 30 days following its rendition. Defendants answer that the court had authority to enter such an injunction during the pendency of a supplemental proceeding.

On October 7, 1981, the plaintiff filed a complaint for foreclosure of mortgage, accompanied by a copy of a trust deed in the nature of a mortgage and an installment note. On January 26, 1983, the trial court found defendants in default and entered a judgment of foreclosure and order of sale. The property was sold to the plaintiff at the sheriff's sale, and on February 28, 1983, the court issued a deficiency judgment against the defendants personally in the amount of $34,154.60.

On March 26, 1984, the plaintiff commenced supplementary proceedings for the enforcement of its deficiency judgment. On April 19, 1984, the defendants filed a motion requesting the trial court to vacate the deficiency judgment and to prohibit the plaintiff from collecting thereon. The defendants asserted that the terms of the installment note specifically provided that it was to be payable only out of the proceeds of sale of the property described in the trust deed and that no personal liability was to be asserted or be enforceable against the promissor or any person interested beneficially in the property. The trial court denied the motion to vacate the deficiency judgment, but enjoined the plaintiff from seeking to enforce it, except out of rentals from the property and out of proceeds of the sale. The court provided that “[n]o personal liability shall be enforced against the above named defendants from any other asset they may have.”

The plaintiff appeals, raising this issue: whether the trial court properly enjoined the mortgagee from seeking to enforce the deficiency judgment more than 30 days after its rendition.

Plaintiff maintains on appeal that the order approving the sheriff’s sale and entering the deficiency judgment was final when entered and that the trial court lost jurisdiction to vacate or modify its terms when 30 days elapsed thereafter. (See Smietanka v. Myers (1941), 311 Ill. App. 91.) Inasmuch as the defendants took no action within this initial period, the plaintiff concludes that the trial court was without authority more than 14 months later to take measures designed to prevent execution on the judgment.

In response, defendants assert that once the plaintiff commenced supplementary proceedings for enforcement of the judgment, they were entitled by law to raise the claim that the interest which the plaintiff sought to reach was exempt from execution. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1402(a).) The defendants rely upon section 2— 1402(d)(2) of the Code of Civil Procedure for the proposition that the court may enjoin a party or other individual from any interference with the property of the judgment debtor. Defendants thus conclude that the trial court had authority as part of the supplementary proceedings to determine that the defendants’ property was exempt and to enjoin the plaintiff from further enforcement of the deficiency judgment.

Section 12 — 112 of the Code provides:

“All the lands, tenements, real estate, goods and chattels (except such as is by law declared to be exempt) of every person against whom any judgment has been or shall be hereafter entered in any court, for any debt, damages, costs, or other sum of money, shall be liable to be sold upon such judgment. (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 112.)

The Code further defines two principal categories of exemptions from enforcement of judgments. Exemptions of homestead are provided in part 9 of article XII of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 901 et seq.), and exemptions of personal property are provided in part 10 (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 1001 et seq.). The purpose of these and the various similar remedial provisions existing under our statutes is to secure to the judgment debtor and his family the necessary shelter and personal property required for their welfare in times of difficult economic circumstances. (See Mutual Service Corp. v. Hugren (1922), 225 Ill. App. 216; Wohlford for Use of Bruce-Surles Co. v. Wabash Coal Co. (1911), 164 Ill. App. 185.) The statutory provision of an exemption of property from enforcement is a matter affecting the remedy available to a judgment creditor for the collection of his debt (Mineral Point R.R. Co. v. Barron (1876), 83 Ill. 365, 367), and does not extend to permit relitigation of the underlying controversy or a determination as to the validity of the judgment. In keeping with this analysis, it is not within the scope of supplementary proceedings to ascertain whether a judgment debtor who has suffered a default may have possessed a defense to the creditor’s claim for deficiency judgment. The judgment debtor may in some circumstances have a right to relief from such a judgment (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401), but the procedure for which defendants here contend would entitle them to assert defenses to the judgment in the course of a supplementary proceeding without being required to satisfy the requisites established by section 2 — 1401 for obtaining such relief. It must be noted in the present case that defendants did not attempt to obtain the relief available under section 2 — 1401. We, therefore, conclude that the trial court erred in finding the entirety of defendants’ property, without regard to the exemptions specifically created by statute, exempt from execution.

Defendants further point to language in the January 26, 1983, judgment of foreclosure providing that the court retained jurisdiction of the subject matter of the cause and of all parties “for the purpose of enforcing this Judgment and appointing or continuing a Receiver herein or placing the Plaintiff-Mortgagee in possession at any time during the period of redemption.” Defendants construe this language as a blanket reservation of authority by the trial court to modify the judgment’s terms in the course of proceedings for its enforcement. Defendants overlook that the reservation of jurisdiction contained in this order extended only to the enforcement of the judgment, the empowerment of a receiver or the placing of the plaintiff in possession. The court did not retain jurisdiction to modify the terms of the judgment itself. More significantly, the deficiency judgment, which was entered approximately one month after the judgment of foreclosure, contained the special finding required by Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal, and incorporated no reservation of jurisdiction of any sort regarding its terms. Accordingly, the defendants’ argument that the deficiency judgment was subject to later modification on account of a reservation of jurisdiction must fail.

In consonance with these views, we are of the opinion that the defendants’ arguments regarding the validity of the deficiency judgment (wherein defendants claim that such a judgment was prohibited by the installment note, was inconsistent with the judgment of January 26, 1983, and was not properly pleaded) are precisely the types of matters which may not be raised in defense of a supplementary proceeding under section 2 — 1402(a). Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1402(a).

For these reasons, we conclude that the trial court erred in enjoining enforcement of the deficiency judgment. The judgment of the circuit court of Lake County is reversed.

Reversed.

LINDBERG and REINHARD, JJ., concur.