text:
    ALLEN L. GORDON et al., Plaintiffs-Appellants, v. ALBERT H. DOLIN et al., Defendants-Appellees.
    First District (4th Division)
    No. 81-905
    Opinion filed March 25, 1982.
    Friedman & Koven, of Chicago (Robert J. Rubin and Kenneth Shepro, of counsel), for appellants.

      Jann, Carroll, Sain & Dolin, Ltd., of Chicago (David A. Epstein, Gary A. Weintraub, and Joseph R. Steiger, of counsel), for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

After a bench trial at which nine witnesses testified and 51 exhibits were received into evidence, the trial court made various findings of fact and conclusions of law which are here on appeal. Specifically, the court decided that the plaintiff-buyers, Allen L. Gordon and Hydrox Chemical Company, Inc. (Gordon), had failed to prove by clear and convincing evidence that there had been fraudulent misrepresentations by the defendant-sellers, Albert H. Dolin, Barry M. Dolin, and the Dolin Enterprises, Inc. (the Dolins). The court denied the various forms of relief prayed for by the plaintiffs including rescission of sale and purchase agreement, damages, and/or relief under the Illinois Consumer Fraud and Deceptive Business Practices Act. The trial court further held that the plaintiffs had failed to prove that the defendants had breached their warranties to the plaintiffs under the purchase agreement. On appeal, the plaintiffs contend that the trial court’s findings of fact and conclusions of law are erroneous as a matter of law and that the trial court acted improperly when it denied them any form of relief.

These are some of the relevant facts concerning the four month negotiation period between Gordon and the Dolins eventuating in the purchase and sale of a small chemical company, Hydrox. In October 1978, Gordon, an experienced businessman, telephoned Barry Dolin, the president of Hydrox, to express his interest in the company. During the same month Gordon toured the Hydrox plant and also met with an accountant who showed him Hydrox’s financial records.

According to Gordon’s testimony, the defendants made a number of statements to him in the month of October. Barry Dolin told him over the telephone Hydrox produced hydrogen peroxide basically in two strengths, 3% and 6%; that it was a very stable business; that the Walgreen Company accounted for the majority of that business; that over the years the business had lacked sales emphasis and that is what the business needed; that he and his father wanted to sell the company; and that he would be happy to meet with Gordon toward this end.

When Gordon first visited Hydrox, he toured the office and then the plant. He testified that while touring, Barry Dolin told him that there were many uses for peroxide that had not been explored by Hydrox; that the company sold 3% and 6% concentrations of hydrogen peroxide; and that the majority of the business, some 65 to 70% was with the Walgreen Company. Barry Dolin also told him that “the relationship with Walgreen went back some 20 or 25 years; that Hydrox had been the sole supplier [to Walgreen] of this material in both 3% and 6% concentrations for some 20 or 25 years; that the relationship between the two was an excellent one; and that there was no reason for it not to continue.” Gordon further testified that Barry Dolin told him when he first visited the plant that “under no circumstances” was he to contact Walgreen “or any other customer.” The reason which Barry Dolin gave Gordon for not contacting Walgreen was that his father, Albert Dolin, had had a “very bad experience along these lines some year or two prior and, as a result, was very, very cautious about this kind of move.” Gordon testified that he was shown a small freight elevator on this first visit and was told that the “elevator was not always in working condition, but that it was minor and * * * there was another elevator elsewhere on the premises which might be used.” During his visit, Gordon was given a pamphlet on the end uses of hydrogen peroxide and also a list of equipment in the plant. Gordon admitted that Barry Dolin had told him that no contract existed between Hydrox and Walgreen and that there was no commitment on Walgreen’s part to make purchases from Hydrox.

Barry Dolin’s testimony concerning the telephone call with Gordon and Gordon’s followup visit to the plant differed from Gordon’s in the following respects. Barry Dolin said he told Gordon that Walgreen’s business was between 60 and 70% of Hydrox’ sales, rather than 65 and 70%. He said that he told Gordon the relationship with Walgreen was long standing. In regard to whether Gordon should contact Walgreen, Barry Dolin said he told Gordon that since Walgreen was a long standing customer it would benefit Gordon not to contact Walgreen because it would be better if Walgreen did not immediately know that there was a change in ownership. Barry Dolin also explained to Gordon that when he and his father had first purchased the business from the prior owner it was some three years before Walgreen knew of the change in ownership.

In November, Gordon met with Albert Dolin to get down to the details of purchasing the business. Gordon testified that in his first meeting with Albert Dolin, Dolin told him the business was a “gold mine”; that “if you just sat there and essentially did nothing you could make a good living from the business because the orders continued to come in largely from Walgreen;” that it was profitable; that it was a good business; and that Barry had done nothing to make the business grow. Gordon further testified that Albert Dolin told him that Hydrox had been the sole supplier to Walgreen for some 20 or 25 years; “that there was an excellent relationship there”; that there had been no problems of any kind and that the business was stable but geared to the growth of the Walgreen Company. Gordon also quoted Albert Dolin as saying that projected Hydrox figures for 1978 indicated that $50,000 to $55,000 could be taken out of the business. Gordon conceded that he had no intention of relying entirely on the Walgreen account.

Albert Dolin’s testimony concerning his first meeting with Gordon conflicted with Gordon’s testimony. Albert said that he initially expressed his reluctance to sell the business to Gordon and emphasized that the business needed a real sales effort and a good deal of work and “without that which it requires, it would not be great.” Albert further testified that he did not tell Gordon that the business was a “gold mine or words to that effect.” Albert stated that he might have said Walgreen was an important customer, but that he mentioned other drug companies who were also important customers. Albert said that he had not told Gordon that $55,000 could be drawn out of the business in 1978.

Also in November, Gordon toured the Hydrox plant for a second time, this time with his wife. He then met with the Dolins to discuss arrangements for a sale. At this meeting, Albert Dolin said he told Gordon that the relationship between Hydrox and Walgreen was a “long term relationship.” He denied ever characterizing the relationship as a “good relationship.” Gordon and the Dolins met twice more in November and a sales price was agreed upon. On November 30, 1978, Gordon’s attorney prepared the first draft of a proposed agreement for the purchase and sale of Hydrox’ assets. Albert Dolin was sent a copy of this first draft and he made some changes in it. Specifically, Albert changed the term “notice” to “actual notice” to the sellers of a customer’s intention to reduce or discontinue business. Only with this change would the Dolins agree to warranty to Gordon that there had been no change in such relationships. Albert testified that he made this change because he wanted the agreement to be “clear, unambiguous, and precise” as it related to the reduction in business or loss of customers.

On December 15, 1978, approximately 2(1 months after Gordon first contacted Barry Dolin by telephone, Albert Dolin met with Gordon’s attorney to discuss contract terms and closing dates. A December 28 closing date was first suggested by Gordon, but Albert Dolin requested that the closing be delayed until January 16, 1979, to accommodate his vacation plans. At this meeting, a number of refinements in relation to the agreement were worked out, including discussions regarding the handling of the accounts receivable. In particular, Albert Dolin requested that the receivables be paid to Gordon who would then remit them to the Dolins. Such a procedure would render it unnecessary to contact all of Hydrox’s customers and inform them that the business had changed management. On December 27, Gordon and his wife met with the Dolins. This time both sides were represented by counsel. Gordon mentioned once more in December that he wanted to visit Walgreen to discuss the Hydrox account, but Albert Dolin testified that he again discouraged Gordon from doing so. The purchase agreement was finally signed on December 28, 1979. Relevant portions of the purchase agreement will be discussed later in this opinion.

The closing was held on January 16, 1979. The procedure took several hours and at one point the deal nearly fell apart because Albert Dolin would not sign until Gordon agreed to indemnify the Dolins as to liability to the landlord for the unexpired lease. Gordon finally agreed and the deal was consummated. Under a contemporaneous oral agreement, Barry Dolin agreed to stay on at Hydrox for a few months as a consultant.

Factual events which transpired between Walgreen and Hydrox while Gordon was negotiating for the purchase of the business are also relevant to this appeal. These events are categorized here according to the month in which they took place so that they can more easily be keyed to the progress of the four-month negotiation period. On October 4, 1978, the day before Gordon’s first visit to Hydrox, Walgreen placed an order with the company for approximately 100,000 bottles of hydrogen peroxide. This order related to a Walgreen’s promotion schedule for January or February, 1979. Hydrox billed Walgreen approximately $51,291.60 for this order during the period under consideration.

There were a number of events in November between Walgreen and Hydrox which correspond roughly to Gordon’s second visit to Hydrox and his first two meetings with the Dolins. On more than one occasion, Barry Dolin told Walgreen about the difficulties he was having in filling their orders. These problems included the dysfunctioning of the small freight elevator and the labeling machine and also difficulties encountered in procuring enough water to manufacture the chemical and enough empty bottles to fill with the chemical. On November 29, Walgreen requested a return of their “art work” for printing labels. Barry Dolin admitted that this was the first time Walgreen had ever requested a return of the “art work.” However, a Walgreen’s agent testified at trial that he had told Barry Dolin that Walgreen was going to make some art work changes pursuant to a new Walgreen policy of requesting the return of its “art work” from suppliers. On November 30, the same day that Gordon’s attorney prepared a draft of the purchase agreement and sent it to Albert Dolin, the Dolins visited Walgreen in Deerfield and returned the “art work.” Testimony relating to this meeting between the Dolins and Walgreen indicate that the Dolins discussed some of their problems relating to delivery and that Albert Dolin stated that Hydrox was a “long term supplier to Walgreen and that they had been doing business for many years,” but nothing further was said about the return of the “art work” and nothing at all was said about the status of' the relationship between Hydrox and Walgreen.

Various events between Hydrox and Walgreen also took place in December which correspond roughly to the completion of negotiations concerning the purchase agreement and the setting of a closing date. On December 4, Walgreen sent Hydrox a “Continuing Labeling Agreement.” On December 5, a Walgreen representative visited Hydrox and toured the plant — something which Barry Dolin admitted had never happened before. On or before December 19, nine days prior to the closing date originally suggested by Gordon but delayed by Albert Dolin because of his vacation plans, Walgreen made an internal decision to shift part of its hydrogen peroxide business to a new supplier and on December 19 sent the “art work” to the new supplier. A Walgreen agent testified that the Dolins were not advised of this occurrence. Even with its change of policy, Walgreen placed 11 new orders with Hydrox in December which resulted in billings of approximately $31,159.62.

On January 22, 1979, six days after the closing, Gordon contacted Walgreen for the first time and was advised that Walgreen would be “splitting” their business with another supplier and approximately “50% to 60%yy of the business would be transferred. Then on February 14, 1979, almost one month after closing, Walgreen placed another new order with Hydrox and the next day, February 15, Gordon filed his complaint.

Gordon first alleges that he was defrauded by the Dolins. He contends that the statements made to him concerning the status of Hydrox’ relationship with Walgreen and the serviceable condition and repair of the equipment were material and untrue.

The law is well settled in Illinois that to prevail in a cause of action for fraud, a heavy responsibility is placed upon the party asserting the fraud. This party must prove: (1) that the defendant made a statement, (2) of a material nature as opposed to opinion, (3) untrue, (4) known by the person making it to be untrue, believed by him to be untrue, or made in culpable ignorance of its truth or falsity, (5) relied upon by the victim to his detriment, (6) made for the purpose of inducing reliance, and (7) such that the victim’s reliance led to his injury. (Oltmer v. Zamora (1981), 94 Ill. App. 3d 651, 418 N.E.2d 506; Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393; Broberg v. Mann (1965), 66 Ill. App. 2d 134, 213 N.E.2d 89.) The plaintiff must further prove the first four elements by clear and convincing evidence direct or circumstantial. (Oltmer v. Zamora (1981), 94 Ill. App. 3d 651; 418 N.E.2d 506; Racine Fuel Co. v. Rawlins (1941), 377 Ill. 375, 36 N.E.2d 710.) Whether or not the plaintiff has adequately proved these elements is a question of fact for the finder of fact. Oltmer v. Zamora (1981), 94 Ill. App. 3d 651, 418 N.E.2d 506.

Our task is to review the evidence and decide if it is sufficient to support a verdict for the defendants. The defendants claim that they made no untrue statements to Gordon concerning the relationship between Hydrox and Walgreen about the condition of the equipment. To recover a verdict for fraud, a plaintiff must first and foremost satisfy the trier of fact that a material untrue statement was in fact made by the defendants to the plaintiff. (International Nikoh Corp. v. H. K. Porter Co. (7th Cir. 1966), 358 F.2d 284.) Such a threshold inquiry is required regardless of whether the plaintiff is claiming, as Gordon is here, that the misrepresentation was intentionally made, recklessly made and/or innocently made with culpability attaching to its truth or falsity. In all the cases cited to us by Gordon, as authority for his fraud claim, the court first dealt with this threshold question. Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393 (intentional fraud, the court reversed a summary judgment and directed a verdict against the party claiming fraud because of possible untrue statements made by the plaintiff concerning past earnings of the business sold and ownership of the business equipment); Roda v. Berko (1948), 401 Ill. 335, 81 N.E.2d 912 (reckless fraud, the court reversed a dismissal of the complaint for failure to state a cause of action because it found the allegation that the buyer had made an untrue statement to the seller that he would use certain property for a factory while intending to use it for a junk yard legally sufficient); Lyons v. Christ Episcopal Church (1979), 71 Ill. App. 3d 257, 389 N.E.2d 623 (negligent fraud, the court held a realtor was not liable for the seller’s untrue statement that the real estate was connected to a complete sanitary sewer system); Giacomazzi v. Urban Search Corp. (1980), 86 Ill. App. 3d 429, 407 N.E.2d 621 (innocent, but culpable misrepresentation, the court reversed a summary judgment because it found triable issues of fact as to the materiality of an untrue statement by the sellers of the exact amount of real estate taxes to be levied against the property).

In the instant cause, testimony concerning possible untrue statements by the defendants about the status of the relationship between Hydrox and Walgreen was conflicting. Gordon testified that Barry Dolin told him when he visited the plant for the first time that the relationship between Walgreen and Hydrox was an excellent one and that there was no reason for it not to continue. Gordon contends that these statements were misrepresentations because Walgreen was in the process of changing suppliers and Hydrox was having difficulty filling the Walgreen order of October 4. Barry Dolin does not admit he ever made these statements to Gordon. He testified that he told Gordon that the relationship was long standing. Gordon also testified that Albert Dolin told him at their first meeting that Hydrox had been the sole supplier to Walgreen for some 20 to 25 years; that the business was a “gold mine”; “that there was an excellent relationship there”; and “that there had been no problems of any kind.” Gordon testified that on a subsequent occasion Albert Dolin again told him that the relationship with Walgreen was “excellent.” Gordon testified that Albert Dolin also had told him that $50,000 to $55,000 could be taken out of the business in 1978. Albert Dolin denied making all of these statements and testified that he told Gordon that the business needed a real sales effort.

When testimony is conflicting as it is here concerning exactly what statements were made to the buyer by the sellers and the truth of such statements is challenged, the function of the trier of fact is to resolve these conflicts. (Bailey v. Meador (1980), 91 Ill. App. 3d 143, 414 N.E.2d 279.) The trial court concluded after hearing this testimony that Gordon failed to prove by clear and convincing evidence that the defendants made misrepresentations (intentional, reckless, negligent or culpably innocent) concerning the relationship between Walgreen and Hydrox. Because of the following evidence, we find the trial court’s conclusion reasonable. Gordon claims that these untrue statements concerning the WalgreenHydrox relationship were made to him in October. In October, Walgreen placed a 100,000-bottle order with Hydrox. It was not until November that Barry Dolin started to have problems filling this order and that Walgreen requested the return of the art work. It was not until December that Walgreen adopted its policy to shift some of its business to a new supplier. Therefore, objectively speaking, the relationship between Walgreen and Hydrox looked promising in October. In addition, a Walgreen agent testified that the Dolins were never told of Walgreens intention to shift business. Furthermore, Gordon admitted that Barry Dolin told him that no contract existed between Hydrox and Walgreen and that there was no commitment on Walgreen’s part to make purchases from Hydrox. Also, Gordon admitted that he never had any intention of relying entirely on the Walgreen account.

Gordon also claims that the Dolins misrepresented to him that the equipment at Hydrox was in good operating condition. Specifically, he claims that on his first visit to Hydrox, Barry Dolin showed him the labeling machine, small freight elevator and water supply system and said they were in good condition. Gordon claims similar representations were made to him during the many negotiating sessions prior to the execution of the agreement and that the same representations were contained in section 2.6(e) of the purchase agreement, which warranted the equipment against “damage, destruction or loss” and in section 2.12, which states: “All tangible assets and properties of Seller are in good and serviceable condition and repair, and are in such condition as to permit the continued operation of the business of Seller after the closing without interruption.” Gordon contends that immediately prior to closing, the water, freight elevator and labeling machine were not operative and that Barry Dolin admitted this was the case when he informed Walgreen in November of the difficulties he was having filling their orders.

Again, the finding of such misrepresentations is a question of fact for the finder of fact. The trial court concluded that the plaintiff had failed to prove a misrepresentation in regard to the equipment by clear and convincing evidence. The judgment of a trial judge sitting as trier of facts, who observed witnesses, heard testimony, viewed exhibits and made careful and complete findings of fact, will be affirmed on appeal if there is any evidence in the record to support the judgment. (Brown v. Zimmerman (1959), 18 Ill. 2d 94, 163 N.E.2d 518.) There is adequate evidence in the record to support the trial court’s finding. Gordon himself, testified that Barry Dolin told him on his first visit to Hydrox that the freight elevator was not always in working condition. Furthermore, Gordon had ample opportunity to examine this equipment when he toured the Hydrox plant in October and then when he toured the plant again in November. There is no evidence in the record to support a conclusion that Gordon would not have been welcome, if he so chose, to tour the premises in December or in January before the closing. In addition, the freight elevator and water supply system were not “tangible assets and properties of [the] Seller” but were the property of the landlord. On these facts, we believe the trial court was justified in holding that the plaintiff failed to prove a misrepresentation in regard to the equipment.

Because Gordon failed to prove the first element of a fraud case— that the defendants made untrue statements of material facts — we find it unnecessary to consider Gordon’s further arguments on appeal relating to the additional elements of fraud which he claimed that he proved at trial. One such element relates to what the plaintiff claims the defendants knew, should have known or should have attempted to discover concerning the status of the Walgreen-Hydrox relationship. Gordon places great emphasis on the reasons given to him by the Dolins as to why he should not contact Walgreen. This is apparently an attempt by Gordon to create an inference that the Dolins already knew the Walgreen-Hydrox relationship was in flux, should have known or had a duty to find out. Such matters only become relevant after a misrepresentation of material fact has been established. Similarly other elements of fraud, including the victim’s reliance on the misrepresentations and the plaintiff’s injury, also become relevant only after a misrepresentation has been established.

Also, because Gordon failed to prove his cause of action for common law fraud which would entitle him to relief under the law, we find it unnecessary to consider his further arguments on appeal concerning his right to rescission or his right to damages. Before a plaintiff is entitled to relief, he must first establish a substantive right to relief. (Dobbs, Remedies §1.1, at 1 (1973).) In the instant case, the plaintiff failed to establish such a right.

Gordon next contends that he is entitled to relief because the defendants breached certain warranties contained in the purchase agreement, specifically sections 2.6(a) and 2.6(h). Pursuant to section 2.6 of the agreement, the sellers warranted to Gordon that between September 30, 1978, and the date of closing there had not been:

“(a) any material and adverse change in the financial condition, properties, assets, liabilities, or business of Seller;
(h) any other event or condition materially and adversely affecting the properties and assets of the business of Seller.” (Emphasis added.)

The defendants argued in the court below that section 6.4 of the agreement controlled the loss of Walgreen’s business, and modified and limited the warranties cited. Section 6.4 states:

“No Reduction in Business or Loss of Customers Seller shall not have received actual notice from any customer prior to the closing date that, prior to, on, or after the Closing Date, such customer will or intends to (a) discontinue to purchase from Seller any of the products manufactured and sold by Seller to such customer or (b) reduce the annual amount of such products to be purchased from Seller from the annual amount purchased by such customer from Seller prior to the Closing Date and Seller and Dolin shall deliver a certificate to Buyer to that effect at the Closing.”

On appeal, Gordon claims that under the plain language of section 6.4 it only relates to his absolute right to terminate the agreement if such events occurred between the execution date of the agreement and the closing date of the transaction and that the protection contained in section 6.4 is in addition to, not in limitation of, the protection afforded him under section 2.6 of the agreement. Gordon further claims that whether the defendants knew or did not know that Walgreen had made a policy decision to split their business, this decision in fact took place during the warranty period and caused a change in Hydrox’ business. Therefore, the warranties contained in section 2.6 were automatically breached.

The trial court held that the provisions of section 6.4 of the agreement setting out that the Seller had to have “actual notice” from a customer that he intended to reduce or discontinue purchases from the seller modified and limited the provisions of section 2.6(a) and 2.6(h). We believe that this decision was correct on both the facts and the law. Various evidence was presented at trial concerning the intent of the parties that supports the trial court’s conclusion concerning the limiting effect of section 6.4 Albert Dolin testified that when he changed the notice provision in section 6.4 to require “actual” notice, he did so because he wanted the agreement to be clear, unambiguous, and precise as it related to the reduction in business or the loss of customers. He testified that this was the reason that he gave at the time for this change to Gordon’s attorney. At trial, Gordon’s attorney corroborated Albert Dolin’s statements on this subject. Since no conflicting evidence of the intent of the parties on this point is cited to us by Gordon, we believe the evidence sufficient to support the trial court’s conclusion. Furthermore, we believe that the trial court’s conclusion is correct as a matter of law. Section 6.4 specifically addresses the subject of customer losses while section 2.6(a) and (h) speak generally about change in the “business.” Where a contract contains both general and specific provisions relating to the same subject, the specific provision is controlling. Faith v. Martoccio (1974), 21 Ill. App. 3d 999, 316 N.E.2d 164.

It seems clear, however, that if sections 2.6(a) and (h) were to remain unmodified by section 6.4, a trial court could still conclude that the defendants did not breach their warranties concerning a loss of business. Evidence in the record supports a conclusion that Hydrox did not lose any business during the warranty period. In November, Walgreen placed an order for approximately 100,000 bottles of hydrogen peroxide, and Hydrox billed Walgreen approximately $51,291.60 for this order during the warranty period. In December, Walgreen placed 11 new orders with Hydrox which resulted in billings of approximately $31,159.62. Therefore, in spite of Walgreen’s policy to shift business, an actual loss of business to Hydrox during the warranty period was not effectively proved by Gordon. A plaintiff is required to prove the essential elements of his case in actions based on breach of warranty. (Shramek v. General Motors Corp. (1966), 69 Ill. App. 2d 72, 216 N.E.2d 244.) Thus, it appears that the ultimate impact of Walgreen’s shift in policy on Hydrox’ business was at best speculative during the warranty period and the plaintiff’s claim of breach of warranty must fail.

Gordon finally contends that the trial court erroneously failed to grant him relief under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121/2, par. 261 et seq.) because even an innocent misrepresentation is a violation of the Act. We have already addressed ourselves to the plaintiff’s failure to prove a culpably innocent misrepresentation. Therefore, since the plaintiff is required to establish each element of his case under the Act (Duo-Tint Bulb & Battery Co. v. Moline Supply Co. (1977), 46 Ill. App. 3d 145, 360 N.E.2d 798), we do not believe that the trial court was in error when it failed to grant Gordon relief under the Act.

For the above reasons we affirm the decision of the trial court.

Affirmed.

JOHNSON, P. J., and ROMITI, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLAVIN NEWELL, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CLAVIN NEWELL, Defendant-Appellee.
    First District (4th Division)
    Nos. 81-1075, 81-1092 cons.
    Opinion filed March 25, 1982.
    James J. Doherty, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for Clavin Newell.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, Paula Carstensen, and Casimir Bartnik, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Clavin Newell, was found guilty of violating his probation and sentenced to a term of 3 years in the Illinois Department of Corrections. In a subsequent proceeding the State attempted to bring defendant to trial on the merits of the underlying substantive offense. This effort failed, however, when the trial court dismissed the information on its own motion and ruled that a criminal prosecution would be inappropriate since the State had proceeded on the violation of probation which was based on the same set of facts as the information. The State now appeals from the order dismissing the information (73 Ill. 2d R. 604(a)(1)), and defendant appeals from the revocation of his probation; the cases have been consolidated for purposes of review.

On September 17, 1980, defendant pleaded guilty to the offense of felony theft and received a sentence of 2 years probation plus 19 days in the Cook County Department of Corrections. He was arrested on October 7,1980, and charged with attempted burglary. On November 21, 1980, the State amended the information to include a charge of burglary and also filed a petition to revoke defendant’s probation based on the same offense. The petition alleged that defendant knowingly entered a building located at 51 West 149th Street, Harvey, Illinois, with the intent to commit a theft therein. Over defense objections the State was permitted to proceed on the violation of probation, and a hearing was held on March 23,1981.

At that hearing, Ralph Goldba testified that he is employed as a night operator by the city of Harvey water department. On October 7,1980, he was working alone in the building noted above when he observed defendant walk toward the building about 2:20 a.m. Defendant looked in the window, then went across to the alley. Mr. Goldba called the police, then heard glass breaking. He called the police again and was advised by the dispatcher that the police had arrived. He went out to the squad car and identified defendant as the person whom he had previously seen. Mr. Goldba stated that there were dim night lights on inside the building, but that the outside was illuminated by vapor lights from the building across the street. He also stated that there is an office in the building which contains a television set, radio equipment and electronic office machines, and that he did not give anyone permission to enter the building that day or to take anything from it.

William Newton, a detective with the Harvey police department, testified that on the date and time in question he responded to a radio dispatch of an attempted break-in at the Harvey pumping station. When he arrived he observed defendant partially inside a window on the side of the building attempting to pry open the interior window with a table leg. He explained that the interior window was actually a plastic shield set back from the wall on brackets which extends about the length of the window. The exterior window was broken, the glass was shattered, and defendant was either sitting on the ledge between the windows or leaning on it. When Officer Newton drove up, defendant ran away, and the officer followed him into an alley until defendant ran between two houses. Less than a minute later he observed defendant standing next to another police officer. The defendant was placed in a police vehicle and returned to the scene.

Defendant’s motion for a directed finding of not guilty was denied and defendant then testified that he did not attempt to break into the Harvey pumping station. He stated that about 2:20 a.m. he left his girlfriend’s house, walked down the street, passed by an alley and was arrested by the police. He stated that he just met the girl and did not know her last name or her address, but knew that she lived next door to a church which was about 4 blocks away from the pumping station. After he was arrested, he was taken back to the scene, wearing a black tam on his head. Defendant stated that the man, who came to identify him, said that the offender was shorter than defendant. He also stated that Officer Newton, whom he had known previously, told him that if he would tell him about the guns he would let him walk out the door of the police station.

In rebuttal, Officer Newton denied defendant’s allegation and stated that at the time of the incident the investigation regarding the recovery of certain weapons had been concluded although not all of the guns were found. Mr. Goldba testified in rebuttal that when he went over to the police car to identify defendant, the latter was not wearing a hat and he asked defendant to put it on. He also stated that he described defendant as tall and lanky, and identified him by his build, the shape of his face, his hat and his clothes. He did not say that the offender was shorter than the defendant.

In announcing his findings at the close of evidence, the trial judge stated that he believed the State’s witnesses substantially more than defendant, and that there was “entry within the curtilage of the particular premises by the Defendant when he went in the one window.” He then found that the defendant was in violation of probation and entered judgment on the finding. Defendant’s motions for a new hearing and arrest of judgment were argued and denied, and defendant was sentenced to a term of 3 years on the prior offense of felony theft. Credit was given for the time spent in custody, but not for those days served satisfactorily on probation prior to his being taken into custody.

On April 29,1981, before a different trial judge, defendant moved to dismiss the information. Through counsel he contended that a criminal prosecution on the same charges which provided the basis for the probation revocation would amount to double jeopardy. The State argued that the violation of probation is separate from the criminal charge and pointed out that, if a criminal conviction were obtained first, there was nothing to prevent the State from proceeding on the probation revocation on the same charge. The trial court dismissed the information on its own motion stating that a trial on the merits would be inappropriate based on general considerations of due process. In response to a direct question by the prosecutor, the trial court stated that “if the violation is based upon the same facts and same incident and transaction that a new information is based on the State must proceed on one or the other.”

On appeal defendant first contends that the evidence presented by the State failed to show the requisite “entry” or “intent” to establish the crime of burglary. Alternatively, he argues that if the evidence is sufficient to show attempted burglary the judgment must be modified and the cause remanded for resentencing.

It is well established that criminal offenses which serve as a basis for the revocation of probation need only be proven by a preponderance of the evidence. (People v. Cooper (1977), 66 Ill. 2d 509, 363 N.E.2d 817; Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—4(c).) A reviewing court will not disturb the determination of the trial court in these proceedings unless it is contrary to the manifest weight of the evidence. (People v. Crowell (1973), 53 Ill. 2d 447, 292 N.E.2d 721.) The essence of the crime of burglary is an unlawful entry with the requisite intent (People v. Urbana (1959), 18 Ill. 2d 81, 163 N.E.2d 511), and these elements may be established by circumstantial evidence and the inferences drawn therefrom. People v. Blakeney (1978), 59 Ill. App. 3d 119, 375 N.E.2d 1309.

In the case at bar defendant was discovered sitting or leaning on the ledge between the windows of the building prying at the inner shield with a table leg. The outer window had been broken and defendant was surrounded by shattered glass. The evidence also showed that the building contained estimable property, and when the officer approached, defendant ran away from the scene and was apprehended moments later.

The defendant maintains that this evidence was insufficient to support a finding that he “entered” the building. The trial court found entry “within the curtilage” when defendant went into one window. Technically, “curtilage” refers to the space or ground and building immediately surrounding a dwelling place (Black’s Law Dictionary 460 (4th ed. 1968)), an area which has been held insufficient to sustain a burglary conviction. (See People v. Urbana.) In those cases which have upheld burglary convictions, the defendant had penetrated the close of the premises in some manner. (See, e.g., People v. Palmer (1980), 83 Ill. App. 3d 732, 404 N.E.2d 853; People v. Songer (1963), 28 Ill. 2d 433, 192 N.E.2d 861.) Applying these guidelines to the case at bar, it is apparent that defendant had not entered the building but was still on the outside when his efforts to gain entry were interrupted by the arrival of Officer Newton.

The evidence did clearly establish, however, that defendant committed the lesser included offense of attempted burglary in that he had taken a substantial step toward knowingly entering the pumping station with the intent to commit a felony or theft therein. (People v. Fletcher (1978), 72 Ill. 2d 66, 377 N.E.2d 809; Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4, 19 — 1.) By this action defendant violated the condition of his probation which prohibited him from engaging in criminal conduct during this period. Under these circumstances the trial court properly found that defendant was in violation of probation and the order revoking defendant’s probation is affirmed. See People v. White (1975), 33 Ill. App. 3d 523, 338 N.E.2d 81.

Once probation is revoked, the trial court may sentence defendant to any disposition that would have been appropriate for the original offense. (People v. Matlock (1981), 97 Ill. App. 3d 842, 423 N.E.2d 976.) While sentencing must be based upon the original offense and the record should positively demonstrate that it was (People v. Clark (1981), 97 Ill. App. 3d 953, 424 N.E.2d 9), the trial court may properly consider defendant’s conduct on probation, including the crime giving rise to the revocation, in assessing the defendant’s rehabilitative potential (see People v. Matlock; People v. Hardy (1972), 8 Ill. App. 3d 854, 291 N.E.2d 242).

In the case at bar the trial court explained to defendant that he was being sentenced on the felony theft conviction. When the remarks of the trial court cited by defendant are read in their entirety, it is clear that the trial court was concerned with the fact that defendant had violated his probation just 30 days after he was sentenced. This reflects a proper consideration of defendant’s rehabilitative potential rather than the degree of the underlying offense. The sentence of 3 years’ imprisonment for the Class 3 felony, one year above the minimum, is within the range available to the sentencing court. Under the circumstances outlined above, we do not believe that resentencing is warranted.

In the proceedings which followed, the State was precluded from bringing defendant to trial on the criminal offense which also provided the basis for the probation revocation. The sole issue presented for review by the State is whether it is required to delay probation revocation proceedings until a trial is had on the criminal offense which constituted the violation of probation.

Illinois courts have consistently held that the State may seek both a revocation of defendant’s probation and a criminal conviction based on the same conduct. (People v. Smith (1980), 87 Ill. App. 3d 526, 409 N.E.2d 157; People v. Vahle (1978), 60 Ill. App. 3d 391, 376 N.E.2d 766.) They have also recognized that defendant has no right, nor is the State obliged, to have probation revocation proceedings delayed until a trial is had on the criminal offense which constitutes a violation of probation. (People v. Huff (1976), 44 Ill. App. 3d 273, 357 N.E.2d 1380; People v. Harkness (1975), 34 Ill. App. 3d 1, 339 N.E.2d 545.) The supreme court has held, however, that under the principle of collateral estoppel the State is barred from proceeding on a probation revocation where defendant was acquitted of the same charge. People v. Grayson (1974), 58 Ill. 2d 260, 319 N.E.2d 43.

In the case at bar the trial court ruled that since the State elected and did proceed on the violation of probation, a disposition was had on the elected matter and defendant was sentenced, the State was barred under a “mixed issue of collateral estoppel and res judicata” from bringing a criminal prosecution.

Defendant maintains that this decision is supported by the ruling in People v. Bone (1980), 82 Ill. 2d 282, 412 N.E.2d 444, where the supreme court held that a subsequent criminal prosecution was not barred under res judicata or collateral estoppel where no evidence was offered on the charges which were now the subject of the criminal prosecution and no ultimate fact was determined on these charges at the revocation proceeding. In the same case the supreme court noted with approval (82 V. 2d 282, 288) the American Bar Association Standard 5.3, which states:

“A revocation proceeding based solely upon commission of another crime ordinarily should not be initiated prior to the disposition of that charge.”

The inference drawn by the defendant is that collateral estoppel and res judicata will bar prosecution on charges previously heard and decided at a revocation hearing.

Illinois courts have generally held these proceedings to be separate and distinct, however, and have noted significant differences. A petition to revoke probation is not a criminal indictment or information, and a judgment revoking probation is not a felony conviction. (People v. DeWitt (1979), 78 Ill. 2d 82, 397 N.E.2d 1385.) In addition, the sentence imposed upon revocation of probation is for the original crime; it is not punishment for the offense which led to the revocation proceedings. Thus, there is no question of double jeopardy or of being punished twice for the same offense. (People v. Howell (1977), 46 Ill. App. 3d 300, 360 N.E.2d 1212.) Moreover, as the Vahle court pointed out, the consequence of finding double jeopardy under these circumstances would be to allow defendant a free crime since a probationer, already convicted of a crime, would know that he could commit another one and receive only one prison sentence for two separate crimes. People v. Vahle (1978), 60 Ill. App. 3d 391, 396.

The constitutional concept of double jeopardy protects an individual against a second prosecution for the same offense after either acquittal or conviction and protects against multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.) The test to determine whether two actions are prosecutions for the same offense is: “Would the same evidence sustain the proof of each offense?” (People v. Gray (1977), 69 Ill. 2d 44, 49, 370 N.E.2d 797.) In Gray, the defendant was found in contempt of court and sentenced to 6 months in prison and then found guilty of aggravated battery and sentenced to another prison term for the same conduct. In a similar vein defendant maintains that proof of the unlawful entry would constitute a burglary and a violation of probation and therefore amount to the same offense for purposes of double jeopardy.

We decline to adopt that interpretation. After considering the qualitative differences noted in the two proceedings by the courts of this State, we believe that the State may proceed with a probation revocation and a prosecution for the underlying criminal offense without placing defendant in double jeopardy. At this time there is no requirement that the prosecution on the criminal charge precede the probation revocation, nor a definitive ruling that collateral estoppel bars a subsequent prosecution when the probation revocation was not resolved favorably to defendant. See People v. Warne (1976), 39 Ill. App. 3d 894, 350 N.E.2d 836; People v. Ward (1980), 80 Ill. App. 3d 253, 399 N.E.2d 728.

The judgment of the circuit court of Cook County revoking defendant’s probation and sentencing him to 3 years’ imprisonment is affirmed (No. 81-1075); the judgment dismissing the information is reversed and the cause remanded for further proceedings consistent with this opinion (No. 81-1092).

Affirmed (81-1075); reversed and remanded (81-1092).

JOHNSON, P. J., and ROMITI, J., concur.


author: JUSTICE JIGANTI

text:
    ROBERT CLINTON, Plaintiff-Appellant, v. BERNARD V. AVELLO, Defendant-Appellee.
    First District (4th Division)
    No. 81-1101
    Opinion filed March 25, 1982.
    Rehearing denied May 6, 1982.

      Michael Maloney, of Fishman, Fishman & Saltzberg, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    O’Brien, Redding & Hyde, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

On September 2, 1976, the plaintiff, Robert Clinton, was involved in an automobile accident with Bernard J. Avello. A day before the running of the statute of limitations, September 1, 1978, the plaintiff filed suit against Bernard V. Avello. The complaint alleged that Bernard V. Avello “owned and was in the use, possession, operation, and control * * * of the vehicle involved in the accident.” Bernard V. Avello is the father of Bernard J. Avello and was the owner of the vehicle. However, Bernard V. Avello was not in possession, operation and control of the vehicle as alleged in the complaint. Summons was placed for service on Bernard V. Avello and was returned as having been served on “Bernard Avello.” An appearance and answer were filed on behalf of Bernard V. Avello which correctly admitted allegations concerning his ownership and incorrectly admitted his use and possession of the car on the date of the accident. Approximately a year and a half later at his discovery deposition, Bernard V. Avello stated that he was not the driver of the car. Bernard V. Avello made a motion for summary judgment which was allowed. Although the procedure is not clear, the ultimate effect of the proceedings in the trial court was to dismiss the cause of action against Bernard J. Avello because there was no misnomer.

The pivotal inquiry in dealing with an issue of misnomer is who did the plaintiff intend to sue. (Schultz v. Gerstein (1977), 50 Ill. App. 3d 586, 365 N.E.2d 1128; Cigan v. St. Regis House Hotel (1979), 72 Ill. App. 3d 884, 391 N.E.2d 197; Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319.) To conduct this inquiry, a court must look at evidence in the record which serves as a manifestation of the plaintiff’s intent. Fitzpatrick v. Pitcairn (1939), 371 Ill. 203, 20 N.E.2d 280; Goff v. Will County (1941), 311 Ill. App. 207, 35 N.E.2d 718; Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319.

The most probative evidence of who a plaintiff intended to sue is the party named by the plaintiff in the complaint. If such a party in fact exists, but is not the real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party. Fitzpatrick v. Pitcairn (1939), 371 Ill. 203, 20 N.E.2d 280; Schaffner v. B. & W. Auto Sales Co. (1944), 321 Ill. App. 632, 53 N.E.2d 318; Marsden v. Neisius (1955), 5 Ill. App. 2d 396, 126 N.E.2d 44.

In the instant cause, the plaintiff named Bernard V. Avello in the complaint as the person whom he intended to sue. Bernard V. Avello exists in fact; he is the owner of the vehicle described in the complaint; summons was placed for service on Bernard V. Avello and Bernard V. Avello was served with a summons at his residence. From this evidence, it seems clear that the plaintiff intended to sue and did sue Bernard V. Avello.

The plaintiff contends that he did not sue the wrong party because his complaint states that he intended to sue the person who was in the “use, possession, operation, and control * * * of the vehicle.” In other words, he intended to sue the driver of the car who caused his injuries and misnamed him as Bernard V. Avello. We do not believe that such general descriptive language in a complaint is sufficient evidence of who the plaintiff intended to sue. It merely begs the question for a plaintiff to contend that he intended to sue the party who caused his injuries. (Proctor v. Wells Bros. Co. (1914), 262 Ill. 77, 104 N.E. 186; Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319.) The plaintiff’s rather subjective explanation of who he intended to sue cannot prevail over a somewhat more obvious conclusion that he intended to sue the specific party who he named in his complaint and who in fact exists.

The plaintiff suggests a number of other factors which appear in the record that we find to be legally irrelevant on the issue of intent. The plaintiff points to the fact that Bernard V. Avello answered the complaint admitting that he was the driver of the vehicle; that he also answered the interrogatories as if he were the driver; and that he did not clarify the fact that he was not the driver until a year and a half later. We fail to see how subsequent actions of the wrong party defendant can support the contention of the plaintiff that he intended to sue someone other than Bernard V. Avello. However, they are pertinent to the plaintiff’s estoppel argument.

The plaintiff relies on Marsden v. Neisius (1955), 5 Ill. App. 2d 396, 126 N.E.2d 44, in his argument that there is a misnomer. There, the plaintiff sued “C&H Transfer Company, a Wisconsin corporation.” There was no corporation by that name but there was a proprietorship that operated under that name and the proprietor was Edward J. Neisius. Under the Illinois Commere Commission rules, Neisius had to appoint an agent in Illinois which he in fact did. The agent was served and the summons was forwarded to Neisius. Neisius filed an answer stating those facts. The appellate court in ruling in favor of the plaintiff said that by filing of the answer Neisius conceded that there was a misnomer and that he was the one who was intended to be sued. The obvious distinction between Marsden and the case at bar is that in Marsden the proper party to be sued was Neisius who was in fact sued and served through his properly appointed agent albeit in a wrong name. In the instant case the wrong person was sued and served. However, even in Marsden, the court found that Neisius was estopped from asserting that there was a misnomer only because he filed an answer. The court went on to note that but for the filing of an answer it would have held that this was a mistake and not a misnomer.

The plaintiff also makes an estoppel argument. He contends that he was forbearing in his suit against Bernard J. Avello because of the conduct of Bernard V. Avello in filing his original answer and response to interrogatories. These matters were not corrected for a year and a half. We see no forbearance on the part of the plaintiff because the suit was filed on the last day of the running of the statute of limitations and the answer was not due until well after the running of that statute.

Because we believe that neither misnomer nor estoppel apply in the instant cause, we affirm the decision of the trial court.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WENDELL BYRON DIXON, Defendant-Appellant.
    First District (5th Division)
    No. 80-946
    Opinion filed March 26, 1982.
    Chester Slaughter, of Chicago (Donald Hubert, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Barbara A. Levin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant was convicted of two counts of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 1) in a jury trial and sentenced to a minimum of 30 years and a maximum of 90 years for each count to run concurrently. Defendant appeals.

Defendant raises six issues on appeal: (1) whether the court erred in failing to suppress his confession; (2) whether the State’s use of its peremptory jury challenges violated defendant’s State constitutional right to an impartial jury; (3) whether defendant was denied the right to confront the witnesses against him; (4) whether the court erred in refusing two of defendant’s tendered jury instructions; (5) whether the trial court erroneously denied the jury’s request for trial transcripts; and (6) whether defendant was proved guilty beyond a reasonable doubt.

Wendell Dixon (defendant) and John Coleman were tried by separate juries during a joint trial for the murders of Barry Beckwith and Warren Jones. Only Dixon is involved in the instant appeal.

The following pertinent facts were adduced at trial. On Friday, April 30,1976, the bodies of Beckwith and Jones were discovered in an alley at 8641 South Exchange in Chicago, Illinois. Both died of gunshot wounds. One of the bodies was found inside a 1973 Monte Carlo automobile, and the other was found outside of the car. A fired bullet was found lying on the ground next to the car. Four sets of fingerprints and another bullet were removed from the car’s interior. On May 1, 1976, a person washing his car found a gun located underneath a car parked down from his own. Later that day Investigator McCabe picked up the gun. A firearms expert testified that the bullet removed from the ground and a bullet removed from one of the victims were fired from the recovered gun. A fingerprint expert testified that one of the impressions taken from the car belonged to Coleman but that none of the impressions belonged to defendant.

Investigator John McCabe testified that on Saturday, May 1,1976, he went to the home of John Coleman and took him down to the station for questioning. McCabe also went to defendant’s home, but he was not there at the time. Defendant’s family testified that at approximately 6 p.m. that evening defendant, accompanied by his parents and older brother, went to the station. The State’s witnesses testified that defendant was questioned by police officers for short periods of time at least five times during the evening of May 1,1976. Both Investigators Russo and McCabe and Assistant State’s Attorney Haddad testified that they read defendant his Miranda rights. Defendant was not handcuffed at any time. Defendant denied his involvement in the crime in all but the final interview. Investigator McCabe testified that at approximately 9:30 that evening he had a conversation with Coleman after which McCabe, another investigator, Coleman and Coleman’s father left the police station and retrieved a gun, later identified as the murder weapon, from an individual who had found it in the alley under a car. After retrieving the weapon McCabe and Haddad, who again informed defendant of his Miranda rights, interviewed defendant. At this time defendant stated that he did in fact shoot Beckwith and Jones; that he and Coleman and another individual named Nixon put up some money to make a marijuana purchase; that there was an attempt or supposed robbery of Beckwith and as a result defendant got neither the marijuana nor his money back. Nixon, Coleman and defendant decided that they were either getting their money or the marijuana, or they would kill Beckwith and Jones. At the time of the murder defendant, Coleman, Beckwith and Jones were in Beckwith’s car. They went into an alley at the rear of the 8600 block on Escanaba and argued, and defendant shot Beckwith in the back of the head and then shot Jones as Jones tried to get out of the car. Defendant gave the gun back to Coleman, who hid it underneath a car. McCabe further testified that defendant refused to make a written statement at that time.

William Haddad testified that during the evening of May 1,1976, and early morning of May 2, 1976, he first spoke with Coleman. After concluding his second conversation with Coleman before a court reporter at 1:45 a.m. on May 2, 1976, he spoke with defendant whose family was with him in the interview room. Haddad advised defendant of his Miranda rights and asked defendant if he wished to speak to him about the homicides. Defendant, responding that he did, asked his family to leave the room. Haddad then brought McCabe into the room. Haddad’s testimony and that of McCabe as to defendant’s confession corroborated each other. Haddad also testified that he wrote a memorandum with regard to defendant’s statement which he later gave to his secretary.

In his defense defendant testified that on Friday, April 30, 1976, he attended classes at Fenger High School until 1 p.m., at which time he went to baseball practice. He practiced with his high school team until 5:30 and then left for home where he arrived at 6:30 p.m. After eating dinner he went to a park where he met his girlfriend and other friends. After 30 minutes he went to his girlfriend’s house and stayed there until some time after 10 p.m. Around 11:30 p.m. defendant, his girlfriend, several of his friends, including John Coleman, went to a party where they stayed for two hours. Defendant and his friends then left looking for another party which they never found. Defendant testified he arrived home at approximately 3:30 a.m. on Saturday, May 1, 1976.

Defendant also testified to the events which occurred when he was questioned at the police station Saturday evening. In particular he testified that when he spoke with Haddad and McCabe that McCabe asked his parents to leave the room. After they left Haddad advised defendant of his rights. McCabe then asked defendant if he wished to make a statement, but defendant refused. Defendant testified that McCabe also told him that Coleman had made a statement and that they had the pistol. Defendant denied ever making the statement testified to by Haddad and McCabe. Defendant further testified that McCabe told him to just nod his head and say yes and they would let him go. Defendant then nodded his head and McCabe and Haddad left the room. Defendant further testified that he had been questioned about 7 times by the police while at the station and had denied any knowledge about the murder about 15 times. Defendant admitted to having known Beckwith for about 11 years but denied knowing Jones. Defendant testified that he was handcuffed to a wall while at the police station.

Defendant’s mother, father and brother testified in defendant’s behalf. None offered testimony to corroborate his alibi. Their testimony was limited to events which occurred on May 1, 1976, and May 2, 1976. They testified that on Saturday, May 1, 1976, they arrived at the police station at approximately 6 p.m. Defendant was interviewed at least seven times during the evening and repeatedly denied involvement in the crime during those times when they remained with him when questioned. They testified further that defendant was handcuffed to the wall when questioned. Defendant’s father left the station at approximately 1:30 Sunday morning but his mother and brother remained. At about 2:30 a.m. Haddad told the family to leave the interview room. Defendant was still handcuffed. Haddad and McCabe again interviewed defendant. When they came out of the room McCabe stated that defendant had given them a statement but did not tell the family the contents of the statement. Defendant’s mother and brother left the station around 4 a.m. Prior to trial defendant made a motion to suppress the alleged confession he made to McCabe and Haddad. Defendant also moved for a mistrial, contending that the State had improperly used its peremptory challenges to exclude black persons from the jury. Both motions were denied. The jury returned a guilty verdict upon which judgment was entered. Defendant appeals.

Opinion

Defendant first contends that his confession was coerced and therefore was improperly admitted into evidence. The test to determine whether a confession is voluntary is whether the accused’s will was overborne at the time he confessed, for if such is the case the confession cannot be deemed the product of a rational intellect and a free will. (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508.) In making its decision the trial court is not required to be convinced beyond a reasonable doubt that the confession was voluntary. (People v. Medina (1978), 71 Ill. 2d 254, 375 N.E.2d 78.) If a trial court finds that a confession is voluntary and has applied the proper legal standard, on review inquiry is limited to whether that finding is against the manifest weight of the evidence. (People v. Kincaid (1981), 87 Ill. 2d 107, 117-18, 429 N.E.2d 508, 512; People v. Brownell (1980), 79 Ill. 2d 508, 521, 404 N.E.2d 181, 188, cert. dismissed (1980), 449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59.) That is, an opposite conclusion must be clearly evident. (Ritter v. Hatteberg (1957), 14 Ill. App. 2d 548, 145 N.E.2d 119.) Defendant has not challenged the legal standard applied by the trial court, but rather asserts that the totality of the following circumstances surrounding defendant’s confession demonstrates its involuntariness: defendant’s youthful age; the duration of his interrogation; the lateness of his confession; police requests of defendant’s brother, mother and girlfriend to talk defendant into telling what he knew; the absence of family members during police interrogation; and finally the handcuffing of defendant during questioning.

The uncontradicted evidence showed that defendant was 18 years old and was of normal intelligence. Although as defendant asserts he was in custody for at least seven hours prior to his confession, he was not continuously interrogated during that time. He was questioned intermittently for brief periods. Significantly, a 4-5 hour break occurred immediately prior to his confession during which no questioning occurred at all by police. Furthermore, while Sergeant Russo did admit to asking defendant’s brother if he “would go over and talk to [defendant] to find out what happened” and to telling defendant “that his mother and brother could talk with him, and he could say anything he wanted to with them,” defendant never “confessed” to any member of his family. Additionally, defendant never testified that any of his family members asked him to tell what he knew, but only described his conversation with them as “just talk[ing] casually.” The uncontradicted evidence also showed that defendant was not kept in isolation during custody but had access to his family members and girlfriend at all times, except for three or four questioning periods. Furthermore, defendant had been informed of his rights by Haddad.

Additionally, certain contradicted evidence was before the trial court. While defendant’s witnesses testified that defendant had been handcuffed and that his confession occurred at approximately 3 a.m., the State’s witnesses testified that defendant had not been handcuffed and that his confession occurred at approximately 1 a.m. Furthermore, while defendant’s brother testified that Russo requested him to talk to defendant at approximately 10 p.m., Russo testified the request was made at 8 p.m. Finally, defendant denied making any confession as recounted by the State’s witnesses, but testified to merely nodding his head to McCabe’s alleged statement, “* ° 0 just shake your head and we’ll let you go.” When we consider as we must all of the evidence surrounding the making of defendant’s confession (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508), including the contradicted evidence, best resolved by the trial court (People v. Medina (1978), 71 Ill. 2d 254, 375 N.E.2d 78), which is in the best position to determine the credibility of the witnesses and the weight to be accorded their testimony (People v. Lester (1981), 102 Ill. App. 3d 761, 430 N.E.2d 358), we cannot say that the trial court’s decision that defendant’s confession was voluntary was against the manifest weight of the evidence. Therefore, the trial court properly denied defendant’s motion to suppress his confession.

Defendant next asserts that he established a prima facie case, unrebutted by the prosecution that he was denied his State constitutional right to be tried by “an impartial jury of the county” in which the crime was allegedly committed (Ill. Const. 1970, art. I, §8) by the prosecution’s use of its peremptory challenges to exclude black persons from the jury. Under Swain v. Alabama (1964), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, decided on equal protection grounds, the motives of the prosecution in exercising peremptory challenges are not subject to examination absent a showing of a systematic pattern over time of excluding blacks from jury service. A similar position has been taken by the Illinois Supreme Court in People v. Harris (1959), 17 Ill. 2d 446, 161 N.E.2d 809, cert. denied (1960), 362 U.S. 928, 4 L. Ed. 2d 747, 80 S. Ct. 755; cf. People v. King (1973), 54 Ill. 2d 291, 296 N.E.2d 731; People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409; People v. Heard (1971), 48 Ill. 2d 356,270 N.E.2d 18; People v. Butler (1970), 46 Ill. 2d 162, 263 N.E.2d 89.

The defendant cites People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, in which the California Supreme Court considered whether the prosecution’s use of peremptory challenges violated defendant’s right to an impartial jury under the California Constitution. Defendant urges this court to adopt the rationale enunciated in that case. In Wheeler the defendants were black and the victim was white. The prosecution peremptorily challenged all the black veniremen. The California Supreme Court reversed the defendants’ convictions holding that when a defendant has made a prima facie case that the prosecution has excluded veniremen on the basis of their race, the prosecution has the burden to show that its exclusion of the jurors was based on other grounds. Under Wheeler the defendant must meet the following requirements to establish a prima facie case: (1) he must make as complete a record as feasible; (2) he must establish that the excluded persons are members of a cognizable group; and (3) he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias. 22 Cal. 3d 258, 280, 583 P.2d 748, 764, 148 Cal. Rptr. 890, 905.

The Illinois Supreme Court has recently declined to consider the issue of whether it should adopt the Wheeler standard, where the defendant did not challenge the racial composition of the jury until all the jurors had been sworn and where the defendant failed to make a record showing that the veniremen who were peremptorily challenged by the prosecution were black. (People v. Gaines (1981), 88 Ill. 2d 342, 359, 430 N.E.2d 1046, 1054.) As our supreme court pointed out, such a showing is required even under Wheeler.

Similarly, a consideration of defendant’s challenge here to the composition of his jury cannot be made in the absence of an adequate record of the voir dire. For without an adequate record there is nothing to review. In the instant case the proceedings in which jury selection occurred have not been preserved. In lieu of a record of those proceedings, defendant urges us to consider the facts recited in his written motion for a mistrial made immediately after jury selection, supplemented by his oral representations before the trial court. However, Supreme Court Rules 323(c) and (d) which set out the necessary procedure for a bystander’s report of proceedings or an agreed statement of facts are specifically applicable to criminal appeals. (Ill. Rev. Stat. 1979, ch. 110A, pars. 323(c), 323(d) and 612(c).) We cannot accept statements of counsel in lieu of a duly prepared and authenticated report of proceedings. (People v. Poliquin (1981), 97 Ill. App. 3d 122, 421 N.E.2d 1362.) The trial court did note when entertaining defendant’s motion for a mistrial that no black persons were among the first twelve members of the jury. (One black person did serve on the jury as second alternate.) The court also stated that “perhaps four blacks were excluded on the peremptory challenges by the State.” However, without a record of the voir dire we cannot review the questions posed to and the responses of the veniremen. Thus, we cannot preclude the possibility that the prosecutor found those black persons excused from the jury were unqualified for reasons wholly unrelated to race. People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029.

Defendant next asserts that the testimony of Officer McCabe regarding his interrogation of John Coleman and the subsequent location of the murder weapon violated defendant’s sixth amendment rights to confront the witnesses against him.

The substance of McCabe’s testimony to which defendant objected at trial was that on May 1, 1976, he had talked with Coleman and defendant at Area 2 headquarters. Subsequently, Coleman, Coleman’s father, another investigator and McCabe went to a residence at 86th and Muskegon and retrieved a gun, later identified as the murder weapon. After returning to Area 2 headquarters McCabe again talked with Coleman. After taking Coleman’s statement McCabe talked with defendant who then confessed to shooting Beckwith and Jones.

Defendant does not contend that he was unable to confront McCabe, but rather that he was unable to confront Coleman who implicitly testified against defendant through McCabe’s testimony.

The sixth amendment right of an accused to confront witnesses against him is a fundamental right, obligatory on the States by the fourteenth amendment. (Pointer v. Texas (1965), 380 U.S. 400, 403, 13 L. Ed. 2d 923, 926, 85 S. Ct. 1065, 1067.) The reason for the right to confrontation is to afford a criminal defendant the opportunity to test the truth of his accuser’s assertions. (People v. Bryant (1976), 36 Ill. App. 3d 298, 343 N.E.2d 617.) Therefore, determination of whether a defendant’s sixth amendment right to confrontation has been violated depends upon whether defendant has been deprived of the right to test the truth of direct testimony. (People v. Bryant; People v. Tennant (1976), 65 Ill. 2d 401, 358 N.E.2d 1116, cert. denied (1977), 431 U.S. 918, 53 L. Ed. 2d 229, 97 S. Ct. 2184; see also Pointer v. Texas; Douglas v. Alabama (1965), 380 U.S. 415,13 L. Ed. 2d 934, 85 S. Ct. 1074; Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) However, it has been held that an accused’s right to confrontation is not violated by the testimony of a police officer that he effected an arrest subsequent to the confession of an accomplice when the statements testified to did not expressly or directly implicate the defendant. (People v. Williams (1977), 52 Ill. App. 3d 81, 367 N.E.2d 167.) There is nothing in the testimony of Investigator McCabe which would directly or expressly implicate defendant nor did McCabe testify to the substance of any statement made by Coleman. He testified to the fact that he talked with defendant “* ” ° after we took the written statement [presumably of Coleman].” Defendant’s objection to the latter statement was sustained. As the Williams court noted “* ° ° the jury could reasonably infer from the testimony in question that [Coleman] implicated defendant * * * but that inference is not so immediate to mandate reversal (52 Ill. App. 3d 81, 87, 367 N.E.2d 167, 172.) Here, as in Williams, McCabe’s testimony was confined to his physical activities and to the bare occurrence of his conversation with Coleman, and hence was not improper.

Defendant next contends that the trial court committed reversible error by refusing to submit either of two jury instructions tendered by him which were not Illinois Pattern Jury Instructions. Defendant argues that these instructions were necessary to protect him from the “hearsay” which had been introduced into the record by McCabe’s testimony with reference to his conversations with Coleman, the testimony we have just discussed, and by defendant’s testimony that McCabe told him that Coleman “had made a statement on [him].”

The sole function of instructions is to convey the correct principles of law applicable to the evidence submitted to the jury, so that the jury may apply the proper legal principles to the facts gleaned and arrive at a correct conclusion according to the law and the evidence. (People v. Dordies (1978), 60 Ill. App. 3d 621, 377 N.E.2d 245.) The decision whether to give a tendered non-IPI instruction is always within the discretion of the trial court. Instructions should not be given, however, if they do not accurately state the law (People v. Farris (1980), 82 Ill. App. 3d 147, 402 N.E.2d 629) or if they are misleading or confusing. (People v. Dordies.) The two non-IPI instructions which defendant asserts were required to protect him from the prejudicial effects of hearsay testimony read as follows:

“(3) You are instructed that you should not consider as evidence any testimony concerning either statements or actions of another party who is not on trial before this court.
(4) Statements or actions of another person made against the defendant outside of his presence should not be considered by you as evidence in this trial.”

These tendered instructions do not accurately reflect the law relative to hearsay testimony. As stated by the supreme court in People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741, “ ‘[h]earsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ [Citation.]” Defendant’s tendered instructions imply that any statement or conversation concerning another or made outside of the defendant’s presence is inadmissible. Such is not the law. (People v. Carpenter.) As neither of these two instructions tendered by defendant accurately stated the law, they were properly rejected by the trial court.

Defendant next asserts that the trial court erred by denying the jury’s request for transcripts outside the presence of counsel. Although the trial court did make the jury’s request and the resulting denial a matter of record, defendant asserts additional error in that the record is silent as to whether defense counsel was present at that time. The State contends that defendant has waived this issue by failing to object to the denial of the transcript request when that denial was made a part of the record and by failing to raise the issue in his written post-trial motion. The State also correctly points out that defendant has not included his post-trial motion in the appellate record before this court.

It has been held that the failure to object to the court’s denial of the jury’s request for trial transcripts and the failure to raise such objection in one’s post-trial motion constitutes a waiver of the issue. (People v. Whitley (1977), 49 Ill. App. 3d 493, 364 N.E.2d 511.) We agree with the State’s argument. The party who brings a cause to the reviewing court must present a record which fairly and fully presents all matters necessary and material for a resolution of the issues presented. (People v. Bonner (1979), 68 Ill. App. 3d 424, 386 N.E.2d 366.) On review the reviewing court is restricted in its examination of the record as it is. (People v. Edwards (1978), 74 Ill. 2d 1, 383 N.E.2d 944, cert. denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862.) In the record before us there is neither an objection by defendant to the court’s denial of the jury request at the time the matter was made of record, nor a written post-trial motion in which the issue has been raised by defendant. Accordingly, on the record before us we conclude defendant has waived this issue.

Lastly, defendant contends that his conviction should be reversed because the evidence was insufficient to sustain his conviction. He argues that the occurrence and voluntary nature of his confession were controverted, minimal physical evidence linked him to the crime and that his alibi was unrebutted. Although we agree with defendant that minimal physical evidence directly linked him to the crime, defendant’s contention is undermined by the testimony of the police investigator and the assistant State’s Attorney that defendant confessed to the killing. The jury was free to choose between their testimony and his denial (People v. Tennant (1976) , 65 Ill. 2d 401, 358 N.E.2d 1116, cert. denied (1977), 431 U.S. 918, 53 L. Ed. 2d 229, 97 S. Ct. 2184) and was under no obligation to believe defendant’s alibi evidence. (People v. Tennant; People v. Brown (1972), 52 Ill. 2d 94, 285 N.E.2d 1.) Whether or not defendant was proved guilty beyond a reasonable doubt in this case is largely a matter of the credibility of the witnesses. A court of review will not substitute its judgment for that of the trier of fact on questions of witness credibility. (People v. Manion (1977) , 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Since there is evidence here which, if believed, overwhelmingly supports a finding of guilt, we will not substitute our judgment for that of the jury. People v. McElroy (1980), 81 Ill. App. 3d 1067, 401 N.E.2d 1069.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

LORENZ and WILSON, JJ„ concur.


author: JUSTICE WILSON

text:
    LUCIUS McNEIL, a/k/a Lucius J. Harris, Jr., Indiv. and as Father and Next Friend of Lucius McNeil, Jr., a Minor, Plaintiff-Appellant, v. WILLIS G. DIFFENBAUGH, M.D., et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-2195
    Opinion filed March 26, 1982.
    Richard I. Bass & Associates, of Chicago (Sidney Z. Karasik, of counsel), for appellant.

      Wildman, Harrold, Allen & Dixon, of Chicago (Mark C. Fedota and Ruth E. Van Demark, of counsel), for appellee Willis G. Diffenbaugh, M.D.
    Lord, Bissell & Brook, of Chicago, for appellee South Chicago Community Hospital.
    Jacobs, Williams & Montgomery, Ltd., of Chicago, for appellee George McNeil Teaming Company, Inc.
    Hersch Y. Franks, of Chicago (Hugh C. Griffin and Barry L. Kroll, of counsel), for appellee Fernando Jordan Pascual, M.D.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff appeals from orders of the trial court striking and dismissing certain counts of a multicount complaint. On appeal, he presents these issues for review that: (1) the complaint states a cause of action against the company physician for malpractice in failing to diagnose and treat a condition not related to an accident arising out of and in the course of plaintiff’s employment; and (2) the complaint states a cause of action on behalf of a minor son for a parental loss of consortium action. We affirm with the pertinent facts following.

Plaintiff filed a multicount negligence action alleging that on September 24, 1977, he was lawfully performing his duties for his employer, Montgomery Ward & Company Inc. (Ward), when he slipped and injured his back while unloading a semi-trailer owned by defendant McNeil Teaming Company, Inc.

The plaintiff alleges that following the accident, he came under the care of Dr. Willis G. Diffenbaugh, a physician and fellow employee at the Ward’s Medical Facility. In the course of treatment by Dr. Diffenbaugh for his injury, plaintiff alleges that Dr. Diffenbaugh failed to diagnose or treat an existing tumor in the same “upper mid-back” region as the injury, and failed to diagnose “multiple myeloma in his back.” The complaint also alleges that plaintiff was placed under the care of defendant Dr. Fernando Pascual at South Chicago Community Hospital for diagnosis and treatment of the injury arising from the September 24,1977, incident. Dr. Pascual and the hospital staff also failed to diagnose the tumor and the multiple myeloma condition. Plaintiff now is paralyzed as a result of the myeloma and terminally ill. On behalf of his minor son, plaintiff alleges that his child was deprived of his support and parental care and companionship.

The trial court dismissed counts I, II and V of the complaint as to Dr. Diffenbaugh and dismissed all counts in which plaintiff sued as father and next friend of his minor son. This appeal follows.

Opinion

Plaintiff asserts that the complaint stated a cause of action against the company physician which was not barred by the exclusive remedy provision of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138 et seq.).

The Workmen’s Compensation Act provides in pertinent part that:

“No common law or statutory right to recover damages from the employer, his insurer ° * or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to anyone wholly or partially dependent upon him * * * or any one otherwise entitled to recover damages for such injury.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a).)

Thus, a common law action by one employee against a negligent co-employee, both of whom are covered by the Act, is barred by this section. O’Brien v. Rautenbush (1956), 10 Ill. 2d 167, 139 N.E.2d 222.

It is plaintiff’s contention that his cancer was a pre-existing condition which did not occur while he was engaged in the course of his employment; but his claim is based upon a wholly independent tort of medical malpractice for failing to diagnose the malignant tumor on his back while treating the back injury. It is the status of the person injured at the time of the injury, not the nature or source of the injury, that determines the exclusive application of the Act. (Ferguson v. Roundtable Motor Lodge (1980), 83 Ill. App. 3d 331, 404 N.E.2d 1039.) It is undisputed that at the time of plaintiff’s back injury he was an employee of Ward performing his lawful duties and that he came under co-employee Diffenbaugh’s care for treatment of this injury. Diffenbaugh’s “negligence” in failing to diagnose plaintiff’s cancer “arose out of” and “in the course of” both their employment at Ward. “In the course of employment” relates to the time, place and circumstances of the injury, while “arising out of the employment” refers to the requisite causal connection between the injury and the employment. (Martin v. Kralis Poultry Co. (1973), 12 Ill. App. 3d 453, 297 N.E.2d 610.) Thus, the exclusiveness of the Act precludes a common law action for damages by an employee against a co-employee based on the latter’s negligence during the course of their employment. Collier v. Wagner Castings. Co. (1980), 81 Ill. 2d 229, 408 N.E.2d 198.

Moreover, the Act applies to aggravation of an injury caused by medical treatment. (See Komel v. Commonwealth Edison Co. (1977), 56 Ill. App. 3d 967, 372 N.E.2d 842, where plaintiff argued that his back injury which had been aggravated by the negligent medical treatment of a co-employee physician was not incurred while he was performing his duties as an employee within the meaning of section 5(a) of the Act.) Similarly, in Collier v. Wagner Castings Co., our supreme court has upheld the application of the Act to intentionally inflicted injuries by co-employees if they arose out of and in the course of employment.

The situation presented here is very similar to a New York Workmen’s Compensation action, Liantonio v. Baum (Sup. Ct. 1977), 91 Misc. 2d 433, 398 N.Y.S.2d 111, order vacated on other grounds (Sup. Ct. 1978), 95 Misc. 2d 636, 408 N.Y.S.2d 257. In this case, plaintiff was seen by a co-employee physician for pain in his right shoulder. The diagnosis was “strained muscle, right arm”; however after plaintiff underwent surgery a few months later, the pathological report “revealed a large cell tumor in plaintiff’s right humerus.” Plaintiff alleged there, as plaintiff in the instant case alleges, negligence on the part of the physician for failing to detect the tumor. He also argued that his action was not precluded by the Workmen’s Compensation Act in that the tumor did not come about as a result of his employment activities. The New York court found that the misdiagnosis of plaintiff’s pre-existing condition and defendant’s failure to properly treat plaintiff was incidental to and arose out of his employment. Thus, the injury was governed by the Workmen’s Compensation Act, which prohibited plaintiff’s action for malpractice.

We are likewise compelled to conclude that plaintiff’s injury in the instant case is a compensable injury under the Act and he is precluded from asserting an independent action against Diffenbaugh.

Part and parcel of plaintiff’s argument is that Diffenbaugh would be liable under (1) the “dual capacity doctrine” whether that doctrine is applied to the employer or to a co-employee; and (2) a company physician is an independent contractor in exercising his medical judgment and skills.

The dual capacity doctrine was applied in Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 396 N.E.2d 524, where our supreme court stated that “ * an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.’ ” (77 Ill. 2d 313, 318.) Where, however, an employer is providing medical services to his employees as required by the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)), this doctrine would not apply as the medical services are rendered in response to the Act in its capacity as an employer. (McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 423 N.E.2d 876.) Thus it would appear that where Ward hired physicians to staff its medical facility, it was meeting its obligation under the Act of providing medical services to its employees and the dual capacity doctrine would be inapplicable to both employer and employee-physician who is performing his lawful duties for the employer. The court in McCormick distinguished Duprey v. Shane (1952), 39 Cal. 2d 781, 249 P.2d 8, relied on by plaintiff in support of his “dual capacity” argument. In Duprey, plaintiff was a practical nurse who was treated by her employer and a co-employee, both chiropractors, for an injury suffered in the course of her employment. Our supreme court stated that the doctor in Duprey treated the injury not ° * because of the employer-employee relationship, but did so as an attending doctor, and his relationship to * * “ [plaintiff] was that of doctor and patient.’ ” 85 Ill. 2d 352, 359.

Nor has the dual-capacity doctrine been expanded to include private company physicians under the Workmen’s Compensation Act. The cases cited by plaintiff, Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 372 N.E.2d 1131, and Watson v. St. Annes Hospital (1979), 68 Ill. App. 3d 1048, 386 N.E.2d 885, involve public entities and deal with public official immunity rather than immunity under the Workmen’s Compensation Act.

Similarly, plaintiff’s theory of a company physician being an “independent contractor” in exercising his medical judgment and duties must also fail. As we noted in Komel v. Commonwealth Edison Co., the Act did not distinguish between classes of employees covered by the Act. And further, “the Act did not arbitrarily violate equal protection in classifying physicians with other employees as immune.” (56 Ill. App. 3d 967, 974.) Thus, a company physician is a co-employee while treating another employee for injuries arising out of and in the course of employment and would be immune from malpractice actions.

Finally, plaintiff asserts that an action should be maintained on behalf of his minor son for loss of support. We have recently considered this issue and rejected arguments in favor of allowing this type of claim in Koskela v. Martin (1980), 91 Ill. App. 3d 568, 414 N.E.2d 1148, which is controlling and dispositive of this aspect of plaintiff’s appeal.

For the foregoing reasons, we affirm the orders of the trial court.

Affirmed.

LORENZ and MEJDA, JJ„ concur.

       The New York Workmen’s Compensation Law, section 29(6), also bars common law actions for negligence against co-employees if the injury arises out of plaintiff’s employment.