author: PRESIDING JUSTICE BUCKLEY

text:
    NATIONAL BOULEVARD BANK, Special Adm’r of the Estate of Evelyn Seidler, Deceased, Plaintiff-Appellant, v. GEORGETOWN LIFE INSURANCE COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 83—240
    Opinion filed September 17, 1984.
    Rehearing denied January 8, 1985.

      William J. Harte, Ltd., James P. Chapman & Associates, Ltd., and Roan & Grossman, all of Chicago (James P. Chapman, Frank J. Roan, William J. Harte, and John B. Austin, of counsel), for appellant.
    Kirkland & Ellis, of Chicago (Francis B. Libbe and John E. Angle, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The case before us involves a controversy concerning the right of the estate of a life insurance beneficiary to the proceeds of two insurance policies. The original plaintiff, Evelyn Seidler, brought an action against defendant Georgetown Life Insurance Company to recover, as beneficiary, the proceeds of two life insurance policies issued by Georgetown on the life of her deceased brother Jacob Grossman. Seidler subsequently died, and National Boulevard Bank & Trust Company, special administrator of her estate, was substituted as plaintiff. Plaintiff’s complaint consisted of two counts — count I pertained to policy No. 9130, while count II concerned policy No. 9283. Trial was held on count I, and the jury found in favor of defendant. Plaintiff appeals from the judgment entered on the jury’s verdict and from the denial of its post-trial motion. As to count II, the trial court granted plaintiff’s motion for summary judgment, awarding damages of $1,000,000 plus prejudgment interest of $416,000. Defendant’s motion to vacate the judgment was denied, and defendant appeals. For the reasons set forth below, we affirm the trial court as to count I, and reverse and remand as to count II.

The record reveals that on March 24, 1973, the decedent Jacob Grossman applied for a $1,000,000 life insurance policy on his life from defendant Georgetown Life Insurance Company. Decedent was assisted in preparation of his application by Harold Gaffney. Defendant’s brief describes Gaffney as the insurance agent of the decedent, while plaintiff’s brief refers to Gaffney as an agent for Georgetown. Gaffney testified that he works with businessmen and farmers in financial planning, which includes the procurement of life insurance. Gaffney stated that he represented the prospective insured in the procurement of life insurance and also that he had known the decedent since 1968 or 1969.

The decedent’s application for insurance policy No. 9130 provided in pertinent part:

“It is agreed: (1) the Company shall incur no liability under this application until it has been received and approved, a policy has been issued and delivered, and the full first premium specified in the policy has been actually paid to and accepted by the Company while health, habits and occupation of the Proposed Insured remain as described in this application ***.”

During the course of the application procedure, the decedent signed two “Statements to the Medical Examiner” forms and underwent physical examinations by two physicians, Drs. Horacio Rivero and Seymour Goldberg. Each physician executed an “Attending Physician’s Statement.” Decedent’s signed application, his signed “Statements to the Medical Examiner” and the “Attending Physician’s Statements” were then submitted for evaluation to defendant Georgetown and, in turn, by defendant to Republic National Life Insurance Company (Republic), defendant’s re-insurer.

In addition to the signed application and the signed accompanying statements, decedent’s various medical records were reviewed by defendant’s underwriters for evaluation of the risk of insuring decedent’s life. There was no evidence in decedent’s medical records, nor revealed by his examinations, which indicated that decedent suffered from any underlying heart disease. However, several factors, including an elevated blood cholesterol level and the death of his mother at age 57 from heart disease, led to a conclusion that the decedent was among a class of people who were susceptible to occlusive vascular disease. Thus, it was determined that he probably had a diminished life expectancy. Therefore, upon the condition that decedent be rated as a higher risk, and thus pay a higher premium, Republic agreed to re-insure defendant, and defendant thereafter issued policy No. 9130 to decedent in the amount of $1,000,000 on June 19,1973.

The record further discloses that in April 1973, approximately one month after signing the insurance application, the decedent was hospitalized in the intensive care unit of a Billings, Montana, hospital for what the attending physician, Dr. Ross Lemire, diagnosed and told decedent was a heart attack. Dr. Lemire later testified that decedent had suffered an “acute septal myocardial infarction,” which is the death of a heart muscle and which results in a shortened life expectancy. Decedent remained hospitalized in Montana from April 27 through May 11, 1973. During this hospitalization, the decedent, in telephone conversations with his Bloomington, Illinois, family doctor, Dr. Edgar Stevenson, requested that the fact of his heart attack not be disclosed. Decedent told Dr. Stevenson that he wanted people to think he was hospitalized because of a skiing accident.

Subsequent to his Montana hospitalization, decedent returned to Bloomington, where he began receiving out-patient treatment for his heart ailment from Dr. Stevenson. This care continued through November 13,1973, two days before decedent died.

On July 19, 1973, Harold Gaffney delivered insurance policy No. 9130 to decedent. Gaffney testified that at no time did decedent reveal the fact of his April 1973 heart attack and subsequent medical care. When the policy was delivered, decedent signed the receipt which said that the policy had been delivered and fully explained. Gaffney also stated that decedent read the application.

On July 21, 1973, two days after the delivery of policy No. 9130, the decedent, again through Gaffney, applied for a second $1,000,000 life insurance policy from defendant. Gaffney consulted an underwriter for defendant, Sally Bouton, to determine whether additional medical examinations were necessary in view of the short time which had elapsed since the decedent was examined by Drs. Rivero and Goldberg for policy No. 9130. Bouton decided that since the medical examinations decedent underwent for policy No. 9130 were sufficiently recent, no further examinations were necessary. Gaffney then gave decedent an application for policy No. 9283. This application contained several medical questions which were, by the terms of the application, to be answered when no medical examination was required. Gaffney did not ask decedent the questions, and instead he wrote the words “already examined” on the application for the second policy. Decedent then signed the application. Policy No. 9283 was later delivered to decedent with his signed application attached to it. Neither at that time, nor at any time prior to his death, did decedent reveal to Gaffney or to defendant his April 1973 heart attack or subsequent treatment.

The decedent died on November 15, 1973, at age 38. The cause of death was stated as a coronary occlusion and acute heart failure. Subsequently, Evelyn Seidler, decedent’s sister, sought recovery from defendant Georgetown as beneficiary under policy Nos. 9130 and 9283. When defendant declined to pay the proceeds of either policy, Seidler filed a two-count complaint. Count I sought recovery under policy No. 9130, and count II sought recovery under policy No. 9283. Defendant, in its amended answer, raised affirmative defenses to both counts, which alleged in pertinent part that decedent had failed to disclose in his application material information concerning his health and that decedent failed to disclose to defendant the deterioration of his health between the time of his application and the delivery of the policies.

Both parties subsequently moved for summary judgment as to each count. The trial court granted summary judgment in defendant’s favor as to count I. This ruling, however, was reversed by this court and the cause was remanded for trial on the merits. (Seidler v. Georgetown Life Insurance Co. (1980), 82 Ill. App. 3d 361, 402 N.E.2d 666.) Thereafter, the case proceeded to trial on count I, and the jury delivered a verdict in favor of defendant. Plaintiff’s motion to set aside the verdict was denied, and plaintiff now appeals the verdict.

With regard to count II, a summary judgment in defendant’s favor was subsequently vacated by a successor judge. When the case was called for trial, a third judge granted plaintiff’s motion for summary judgment. The court awarded $1,000,000 in damages and $416,000 in prejudgment interest. Defendant’s motion to vacate the summary judgment was denied, and defendant now appeals.

I

We initially address plaintiff’s argument that the jury’s verdict on count I in favor of defendant should be reversed and the cause remanded for a new trial or, alternatively, that judgment should be entered for plaintiff on count I. At the trial of count I, defendant raised two affirmative defenses involving (1) decedent’s failure to inform defendant of his 1973 heart attack, and (2) decedent’s failure to disclose a myocardial infarction or coronary occlusion he suffered in 1962. Plaintiff’s argument on appeal pertains primarily to these affirmative defenses. Specifically, plaintiff contends: (a) to the extent that the jury’s verdict rested on a finding that decedent’s 1973 undisclosed heart attack was a newly-contracted disease, the verdict was against the manifest weight of the evidence; (b) to the extent that the jury’s verdict rested on decedent’s failure to disclose his 1962 myocardial infarction or coronary occlusion, decedent made no material misrepresentation and there was no reliance by defendant; (c) the trial court erred in giving jury instruction No. 2 and by failing to direct a finding as to the affirmative defenses; and (d) plaintiff was prejudiced by certain comments made by defense counsel in closing argument.

A

To the extent that the jury’s verdict on count I was based on the finding that decedent’s 1973 heart attack was a newly-contracted disease, we find sufficient evidence in the record to support the verdict. When count I previously was before this court, we held that if the 1973 heart attack was a newly-contracted disease, as opposed to a maturation of a preexisting disease, decedent had a legal as well as contractual obligation of disclosure to defendant. (Seidler v. Georgetown Life Insurance Co. (1980), 82 Ill. App. 3d 361, 368, 402 N.E.2d 666.) The question of whether decedent’s 1973 heart attack was a maturation of a preexisting heart disease or a newly-contracted disease was a question of fact for the jury. (82 Ill. App. 3d 361, 369.) We therefore remanded the cause regarding policy No. 9130 with instructions that further expert testimony on this question be taken.

Plaintiff argues that there was insufficient evidence to support a finding that the 1973 myocardial infarction was a newly-contracted disease. Plaintiff notes that its two experts, Drs. Joseph Messer and Jean Maurice Pouget, testified that the heart attack was a maturation of a preexisting coronary artery disease. Messer also testified, however, that the buildup of cholesterol in the coronary arteries begins early in life, even as early as childhood; almost everyone shows some signs of this buildup, i.e., atherosclerosis. Dr. Messer stated that in fact it would not have been unusual for decedent to have had some atherosclerosis when he applied for life insurance. We further note that Dr. Pouget testified that from all the records which were available to the insurance company, there was no convincing and definite medical evidence that decedent had significant, underlying coronary artery disease. He also stated that decedent’s statements to the medical examiners prior to the application were no longer true after he suffered his myocardial infarction in April 1973.

Dr. John Tobin, defendant’s expert, testified that although the 1973 myocardial infarction, in all likelihood, was the result of coronary artery disease, the myocardial infarction is itself a disease because it is a specific entity in medicine. Dr. Tobin testified that the myocardial infarction was a new condition of disease, i.e., the death of an area of decedent’s heart muscle which materially altered his life expectancy. He stated that a myocardial infarction is a distinct and definite clinical illness. Dr. Tobin disagreed with the opinion of plaintiff’s experts that a myocardial infarction is not a newly-contracted disease, but a manifestation of a preexisting disease.

Dr. Ross Lemire, who treated decedent for the 1973 myocardial infarction, testified that a myocardial infarction causes the death of some of the heart tissue and that he told decedent he had suffered a heart attack. Dr. Lemire also stated that when a person has suffered a myocardial infarction, there are definite new changes of a pathological nature which can be detected in the heart muscle, and that such a heart attack is a new process superimposed, or secondary to, a damaged or diseased coronary artery. He added that a myocardial infarction was a new condition beyond the arteriosclerosis of the coronary vessel, and was a material change in the health of the heart.

We believe there was a sufficient basis upon which the jury could find that the 1973 myocardial infarction was a newly-contracted disease. At most, plaintiff has shown that there was conflicting evidence, raising the possibility that the jury could have reached a different verdict. This court, however, will not set aside a jury’s determination merely because the jury could have reached a different conclusion. (Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 437 N.E.2d 872.) Rather, the jury’s determination as to questions of fact is not to be disturbed on appeal unless it is clearly and palpably against the manifest weight of the evidence. (Stephenson v. Dreis & Krump Manufacturing Co. (1981), 101 Ill. App. 3d 380, 428 N.E.2d 190.) For a judgment to be against the manifest weight of the evidence, it must appear that conclusions opposite to those reached by the trier of fact are clearly evident. (J.R. Sinnott Carpentry, Inc. v. Phillips (1982), 110 Ill. App. 3d 632, 443 N.E.2d 597.) Here, we cannot conclude that the jury’s determination was against the manifest weight of the evidence.

B

To the extent the jury’s verdict on count I rested on decedent’s nondisclosure of his 1962 heart attack, the verdict was not against the manifest weight of the evidence. The record reveals that decedent’s 1962 coronary occlusion or myocardial infarction was unknown to defendant or to Dr. Charles Lodowski, the medical director of defendant’s re-insurer Republic, when evaluating decedent’s application for policy No. 9130. Notwithstanding that the application specifically inquired as to whether the applicant ever had heart disease, in decedent’s application the only reference to any occurrence in 1962 was the following information submitted by Dr. Seymour Goldberg in his “Statements to the Medical Examiner” form:

“In 1962 following a long hard weekend during which he set a state record in swimming applicant complained of fatigue and aching. He saw Dr. A. E. Livingston of Bloomington, Ill. who hospitalized him for two days for a complete survey including x-rays and EKG. He shortly after went to see Dr. Hoffman at Mayo Clinic who also did a complete survey and all findings normal. No recurrence of above.” (Emphasis added.)

Hence, although the application contained the fact that decedent set a swimming record, it failed to include the 1962 diagnosis of the coronary occlusion.

Among the other documents reviewed by Dr. Lodowski was a report by Dr. Harry N. Hoffman at Mayo Clinic dated April 12, 1967. In the report Dr. Hoffman stated that decedent said “he had some chest symptoms in 1962 which resulted in a brief period of hospitalization and some expressed concern regarding his heart.” The report proceeded to relate, however, that decedent disclaimed any chest pain for two years and could ski, water ski and climb several flights of stairs without dyspnea, chest pain or any other cardiac symptoms. Dr. Hoffman reviewed the examination and tests taken of decedent in 1967 at Mayo Clinic, and stated that “[decedent’s] nose was externally deviated to the right with a narrow lumen on the left side. Otherwise the examination was essentially normal.” He added that the electrocardiogram was “entirely normal.” The report also indicated that decedent’s 1962 electrocardiograms were reviewed and that an exercise test was given. Dr. Hoffman stated that the 1962 electrocardiograms were nondiagnostic and that the exercise test was normal. Based on the foregoing report, decedent’s application, all of the latter cardiograms and the reports of the medical examinations performed just prior to decedent’s application, Dr. Lodowski approved decedent for life insurance with a rating.

What Dr. Lodowski did not have before him, however, and what he was unaware of, was plaintiff’s Exhibit No. 12, which was a two-page history and progress report from Brokaw Hospital in Normal, Illinois, dated August 28, 1962. The report disclosed that decedent had complained of occasional chest pains, and it contained a final diagnosis of “coronary occlusion subacute.” Dr. Lodowski testified that had he been informed of this diagnosis, he would have rendered an opinion that decedent was “unacceptable.”

Defendant’s expert, Dr. Tobin, testified that the above diagnosis was actually an inferior wall myocardial infarction, i.e., an infarct in a different area of the heart than the area affected by the 1973 heart attack. Dr. Tobin stated that it would not be unusual for the 1962 infarct to fail to show up in the electrocardiograms performed at Mayo Clinic and other places from 1967 to March 1973, because following a myocardial infarction, enzymes are activated which digest the dead heart muscle and then scar tissue forms. Over a period of time, if the damaged area is not too large, later electrocardiograms may appear completely normal.

Based on the foregoing evidence, we find there was ample support for a determination by the jury that decedent’s nondisclosure of his 1962 coronary occlusion or myocardial occlusion was a material misrepresentation relied upon by defendant. We note that plaintiff argues that decedent’s failure to reveal his 1962 coronary occlusion could not have been intentional, and even if intentional, defendant should be charged with not discovering it. Plaintiff has cited five cases from other jurisdictions dealing with misrepresentations which interpret the law of those jurisdictions, but not the law of Illinois. These cases are inapplicable here because, as plaintiff acknowledges, Illinois has a statute which specifically applies to misrepresentations, intentional or unintentional, in insurance contracts. (Ill. Rev. Stat. 1983, ch. 73, par. 766.) The statute’s provisions are to be read in the disjunctive, so that either an actual intent to deceive or a material misrepresentation which affects either the acceptance of the risk or the hazard to be assumed can defeat or avoid the policy. (Campbell v. Prudential Insurance Co. (1958), 16 Ill. App. 2d 65, 71-72, 155 N.E.2d 9; Hatch v. Woodmen Accident & Life Co. (1980), 88 Ill. App. 3d 36, 40, 409 N.E.2d 540.) It has been further held that an insurance company need not make any independent investigation and may rely on the truthfulness of answers contained in the insurance application where, as here, there is nothing to put it on notice that certain answers may be false. Apolskis v. Concord Life Insurance Co. (7th Cir. 1971), 445 F.2d 31, 36, citing Metropolitan Life Insurance Co. v. Moravec (1905), 214 Ill. 186, 188, 73 N.E. 415.

C

Plaintiff next assigns error to the giving of instruction No. 2, which instructed the jury as to the two above-mentioned affirmative defenses raised by defendant Georgetown. The record reveals, however, that plaintiff made no objection to the instruction at trial nor in its post-trial motion, but rather completely acquiesced at trial to the giving of the instruction. A reviewing court will not consider an alleged error in the giving of instructions unless specific objections have been made in the trial court. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 932, 419 N.E.2d 578.) Further, an argument not raised in a post-trial motion is waived and cannot be considered on appeal. (Burgdorff v. IBM (1979), 74 Ill. App. 3d 158, 162, 392 N.E.2d 183; 87 Ill. 2d R. 366(b)(2)(iii).) Hence, this issue is not properly before the-court.

Plaintiff also alleges that the trial court erred in failing to direct a finding as to either or both of the affirmative defenses. The record shows no motion by plaintiff for such a directed verdict or finding at the close of defendant’s evidence, nor does plaintiff’s post-trial motion allege that the court wrongfully denied any such motion. As such, this issue also is waived for purposes of review.

D

Finally, plaintiff objects to certain comments by defense counsel during closing argument. In his closing argument, defense counsel reviewed the evidence indicating that decedent had a risk of incurring atherosclerosis, calling it a condition that “we all have some [of] or most of us do; it’s an ongoing process.” He then stated:

“What do they [plaintiff] suggest, that on the basis of what we had we should say, Mr. Grossman, we can’t give you insurance; you can’t have any, you are uninsurable?
Well, then nobody can get insurance *** [w]e all have something that may eventually—
[Objection not sustained],”

and then continued

“All right. We all have susceptibilities or will have in our lifetime to diseases, to sicknesses, to weaknesses of organs. If anybody who applies for insurance and may have arteriosclerosis can’t get it, then nobody gets any.
[To which an objection was sustained and the jury instructed to disregard the last comment by counsel for the defendant.]”

Plaintiff contends the above comments were bound to bring the jurors’ self-interest into play because, in effect, defense counsel was indicating that a verdict for plaintiff would render virtually everyone unin-surable, including the jurors.

We find no error as to this matter. The record reveals that plaintiff’s counsel previously had stated in his own closing argument that, although decedent was found to be in a group more susceptible to occlusive vascular disease, defendant “took his money, and they took the risk.” Counsel for plaintiff also argued that the affirmative defense based on the 1962 coronary occlusion or myocardial infarct was the “last gasp of this insurance company.” These remarks implied that defendant should not have taken the premium and then engaged in a “last gasp” effort to avoid the policy. Defendant was entitled to respond as to why it insured plaintiff. The remarks of defense counsel were intended to demonstrate to the jurors what the result would be if, due to a condition to which almost everyone is susceptible, life insurance in any form was denied. Moreover, the court’s action in sustaining the second objection to the comments, in our opinion, rendered harmless any error that might have arisen as a result of these statements when considered in the context of the entire trial. Funk v. Venture Stores, Inc. (1981), 94 Ill. App. 3d 115, 121, 418 N.E.2d 498.

II

We next turn to defendant Georgetown’s argument that the trial court erred in granting summary judgment for the plaintiff as to count II and denying defendant’s renewed motion for summary judgment as to that count, which sought recovery under policy No. 9238. The trial court awarded plaintiff damages in the amount of $1,000,000 on count II, plus prejudgment interest of $416,000. Defendant maintains that the record precluded summary judgment for plaintiff.

The record reveals that decedent applied for the second $1,000,000 life insurance policy from defendant only two days after the delivery of policy No. 9130 and only two months after his second heart attack. The application was made once again through Harold Gaffney; however, decedent never mentioned his recent heart attack to Gaffney. Gaffney consulted an underwriter for defendant, Sally Bouton, to determine whether additional medical examinations were necessary in view of the short time which had elapsed since decedent was examined by Drs. Rivero and Goldberg for policy No. 9130. Bou-ton decided that the medical examinations which decedent underwent for policy No. 9130 were sufficiently recent and that further examinations would not be necessary.

The application for policy No. 9238 contained several medical questions which were numbered 11 through 16. These questions were preceded by the instructions:

“For non-medical, all questions must be answered. If Annuity, or examined, omit questions 11 to 16 inclusive.”

Question lib asks:

“Does Proposed Insured now have or has had *** disease of heart or circulatory system?”

In the space opposite medical questions 11 through 16, Gaffney wrote the words “already examined.” Decedent then signed the application which contained the following language:

“Each of the undersigned declares that he has read the questions and answers contained herein and that the answers are complete and true to the best of his knowledge and belief and he offers them and the following agreements to the company as a consideration for the insurance applied for.” (Emphasis added.)

Policy No. 9283 was later delivered to decedent with his signed application attached to it. It is uncontroverted that neither at that time, nor at any time before his death, did decedent reveal his April 1973 heart attack or his subsequent treatment to defendant. Gaffney testified during his deposition that he did not know that decedent suffered a heart attack in April 1973, and that, had he known, he would not have “wasted his time” "with the second policy.

It is defendant’s contention that when decedent represented in the medical history portion of his application that the words “already examined” were “complete and true,” he not only withheld the information concerning his April 1973 heart attack, but he also perpetrated the myth that his physical condition was no different than it had been when he was previously examined. Defendant maintains that the words “already examined” were misleading because the language necessarily referred to the examinations performed by Drs. Rivero and Goldberg prior to the issuance of the first policy and prior to decedent’s heart attack, since those were the only examinations that were performed. Although the words were literally true in the sense that decedent had been previously examined, defendant contends the legend was at best a half-truth because no reasonable person considering the import of the statement could conclude anything other than that decedent was representing to defendant that his state of health was the same as it was when the examinations took place, and was asking defendant to evaluate the risk for the second policy on that basis. Defendant asserts that such a representation thus was not “true and complete,” since decedent suffered a heart attack subsequent to the examinations and had been under continuous medical treatment thereafter for that condition until his death in November of that year.

Defendant urges that, based on the foregoing facts and circumstances, at the very least a question of fact exists as to whether policy No. 9238 is avoidable under section 154 of the Insurance Code. (Ill. Rev. Stat. 1983, ch. 73, par. 766.) As noted previously herein, section 154 is to be construed, as written, in the disjunctive, so that a misrepresentation appearing in the application for an insurance policy may defeat or avoid the policy if it (1) is made with actual intent to deceive, or (2) it materially affects either the acceptance of the risk or the hazard assumed by the company. (Campbell v. Prudential Insurance Co. (1958), 16 Ill. App. 2d 65, 71-72, 155 N.E.2d 9; Hatch v. Woodmen Accident & Life Co. (1980), 88 Ill. App. 3d 36, 40, 409 N.E.2d 540.) The materiality and truth or falsity of representations are questions of fact to be resolved by a jury (Weinstein v. Metropolitan Life Insurance Co. (1945), 389 Ill. 571, 577, 60 N.E.2d 207), as is the question of intent (Ehret v. Loyal Protective Life Insurance Co. (1969), 112 Ill. App. 2d 289, 294, 251 N.E.2d 101). Materiality is determined by the question whether reasonably careful and intelligent men would have regarded the fact stated as substantially increasing the chances of the event insured against, so as to cause a rejection of the application or different conditions. (Weinstein v. Metropolitan Life Insurance Co. (1945), 389 Ill. 571, 577, 60 N.E.2d 207.) Incomplete answers or the failure to disclose material information in response to a question in an application may constitute a material misrepresentation. Unger v. Metropolitan Life Insurance Co. (1968), 103 Ill. App. 2d 150, 156, 242 N.E.2d 907.

Here, after carefully examining the arguments and authorities set forth by both parties, we believe that, based on the record before us, neither party is entitled to summary judgment. Minimally, a genuine issue of fact exists as to whether the policy may be avoided under section 154. In our opinion, it is for the trier of fact to determine whether decedent, in his application, made a misrepresentation of fact as to his health with the actual intent to deceive or which materially affected the acceptance of the risk or the hazard assumed by defendant.

We note that plaintiff argues decedent was excused from disclosing his heart attack because defendant did not specifically ask him to update his medical condition and elected to rely on the words “already examined.” This argument is unpersuasive, however, since decedent not only represented that he had already been examined, but also represented that his answers were “complete and true to the best of his knowledge and belief.” Defendant contends, and we agree, that when the words “already examined” were used as an alternative to answering the specific medical questions in the application, it was reasonable to assume that decedent was representing to defendant that his answers to those questions were unnecessary because defendant already possessed all the pertinent information concerning his health. Defendant was at least entitled to have a jury determine whether decedent made a material misrepresentation.

None of the authorities cited by plaintiff support the granting of summary judgment in its favor. Plaintiff relies heavily upon Peterson v. Manhattan Life Insurance Co. (1910), 244 Ill. 329, 91 N.E. 466. There, the applicant wrote “has not been sick” in response to a question seeking information about which doctors he had seen and for what diseases. The evidence revealed that the applicant failed to disclose a nervous disease affecting his muscles. The applicant later died from acute tuberculosis of the lungs. The reviewing court, in a per curiam opinion, determined that the policy should not be invalidated for breach of warranty based on the above answer, reasoning first that the undisclosed illness was a mere temporary ailment which yielded readily to treatment and, secondly, that the answer was unresponsive and thus not a warranty. The reviewing court, however, refused to grant judgment outright for the plaintiff, but remanded the cause for a new trial. Peterson thus supports defendant’s contention that the instant cause should at least proceed to trial. Moreover, we note that the Peterson decision is nearly 75 years old and predates by almost 30 years the enactment of section 154, the first statute in Illinois governing misrepresentations and warranties in insurance contracts. The more modem cases involving alleged misrepresentations by insurance applicants have made it clear that the applicant has the duty to act in good faith toward his potential insurer in an attempt to make a full and complete disclosure of all relevant information. (Carroll v. Preferred Risk Insurance Co. (1966), 34 Ill. 2d 310, 215 N.E.2d 801; Tesluk v. Metropolitan Life Insurance Co. (1970), 130 Ill. App. 2d 290, 264 N.E.2d 566; Apolskis v. Concord Life Insurance Co. (7th Cir. 1971), 445 F.2d 31, 35 (applying Illinois law).) The applicant cannot be the judge of the materiality of his health problems; he must disclose all information known to him and permit the insurer to determine its materiality. Weinstein v. Metropolitan Life Insurance Co. (1945), 389 Ill. 571, 578, 60 N.E.2d 207.

Plaintiff also places much reliance on Marshall v. Metropolitan Life Insurance Co. (1950), 405 Ill. 90, 90 N.E.2d 194. There, the insured’s application for his first policy of life insurance stated that he had not previously suffered from “any ailment or disease of the heart or lungs.” While this application was pending, the insured was advised by his physician that he had developed a serious heart disorder. The first policy was then delivered by the insurance company’s agent who, at that time, attempted to sell the insured an additional policy of $5,000; the insured initially resisted, but then compromised and purchased a $2,000 policy. When the policy was delivered, it was accompanied by a copy of the application made for the first policy and a document designated as “Application Amendment.” The amendment recited that the original application was amended so as to stand as the application for the second policy. No inquiry was made by the insurer as to the change of status since the date of the original application. On review, the question presented as to the second policy was whether the amendment should be read as of its own date or whether it should relate back to the date of the original application; if it related back, the insured’s estate would recover. In affirming the jury’s verdict in favor of the insured, the reviewing court found the language in the amendment ambiguous, and construed it against the insurer. In so holding, however, the court emphasized that

“[ujnder such circumstances, it seems to be clear the insured had no desire or thought of misrepresentation of material facts ***.” (Marshall v. Metropolitan Life Insurance Co. (1950), 405 Ill. 90, 102.)

In essence, the reviewing court in Marshall found the jury’s determination that no misrepresentation occurred was not contrary to the manifest weight of the evidence. Here, unlike Marshall, it is not clear that the insured “had no desire or thought of misrepresentation of material facts.” Further, there was no factual resolution in this case by the trier of fact as to this matter.

Plaintiff also cites several cases "where the applications containing the alleged misrepresentations were not attached to the insurance policy. (E.g., Economy Fire & Casualty Co. v. Thornsberry (1978), 66 Ill. App. 3d 225, 383 N.E.2d 780; Inter-Insurance Exchange v. Milwaukee Mutual Insurance Co. (1978), 61 Ill. App. 3d 928, 378 N.E.2d 391.) In these cases, it was held that pursuant to section 154 of the Insurance Code an insurer cannot rely on misrepresentations in an application unless the application is attached to the policy. In the present case, it is not disputed that the application containing the alleged misrepresentation upon which defendant relied was indeed attached to policy No. 9238.

We briefly note that defendant contends that a question of fact additionally exists as to whether decedent’s failure to reveal his April 1973 heart attack violated the standard of good faith, openness and candor which is required in the negotiation for life insurance. (Carroll v. Preferred Risk Insurance Co. (1966), 34 Ill. 2d 310, 215 N.E.2d 801.) We believe that the issue of good faith is necessarily encompassed under the issue pertaining to section 154 of the Insurance Code and, thus, it need not be presented to the jury as a distinct issue.

Finally, it is axiomatic that summary judgment is a drastic remedy and is to be awarded only if the right of the movant is clear and free from doubt. (A. S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill. App. 3d 746, 450 N.E.2d 1356.) If fair-minded persons could draw more than one conclusion or inference from the facts, including one unfavorable to the summary judgment movant, the motion for summary judgment should be denied. Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789, 450 N.E.2d 1286.

Applying these principles to the facts herein, we believe that the granting of summary judgment for plaintiff was erroneous. We note that summary judgment initially had been granted for defendant, but this order was subsequently vacated by a second judge, and a third judge later rendered summary judgment for plaintiff. Given that three different trial court judges arrived at three different conclusions regarding the propriety of summary judgment, it can hardly be said that plaintiff’s right to this remedy is free from doubt.

For the reasons set forth above, the judgment of the trial court is affirmed as to count I, and the summary judgment in favor of plaintiff on count II is reversed and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part; and remanded.

GOLDBERG and CAMPBELL, JJ., concur.

      The fact issue raised by the 1962 heart attack, discussed below, was not before this court in Seidler.

      This opinion was adopted as the opinion of the court prior to the retirement of Justice Goldberg.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    JAY CEE WAREHOUSE, INC., et al., Appellants, v. THE INDUSTRIAL COMMISSION et al., (Fay L. Evans et al., Appellees).
    Second District (Industrial Commission Division)
    No. 2—84—0066WC
    Opinion filed November 26, 1984.
    Mark A. Braun, of Braun, Lynch, Smith & Strobel, Ltd., of Chicago, for appellants.
    Robert E. Harrington, of Kane, Doy & Harrington, Ltd., of Chicago, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Applications for adjustment of claim were filed by the claimants, the widow and the children of Rubin Evans, under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.), against the respondents, Jay Cee Warehouse, Inc. (Jay Cee), Shinsho American Corporation (Shinsho), and Meyers Motor Transportation Company (Meyers). The parties stipulated that Evans’ death, which occurred while he was operating a forklift truck, arose out of and in the course of his employment. The arbitrator, after determining that an employer-employee relationship existed between Evans and Jay Cee on the day of his death and that Evans was not an employee of Shinsho under section 1(a)(4) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1(a)(4)), ordered that benefits be paid to the claimants by Jay Cee. The arbitrator also dismissed Shinsho and Meyers from the cause. The decision of the arbitrator was affirmed by the Industrial Commission and confirmed by the circuit court of Lake County. Jay Cee appeals. We affirm.

On appeal Jay Cee argues that the Industrial Commission’s finding that Evans was not an employee of Shinsho at the time of his death under section 1(a)(4) of the Workmen’s Compensation Act was contrary to law and against the manifest weight of the evidence.

We briefly review the pertinent facts in this cause. Shinsho is in the business of selling cold-rolled steel wire in the United States which has been manufactured in Japan. In December of 1974, Shinsho entered into a lease with Carl Ivanelli, Jr., of Jay Cee Warehouse, a partnership. Jay Cee Warehouse was incorporated six months later and became Jay Cee Warehouse, Inc., the appellant. The lease included an amount for rental of 100,000 square feet in a warehouse owned by Jay Cee in Chicago. It also included an amount for the wages of three workers: Ivanelli (foreman and comptroller), R. Lullo (jeep driver), and R. Evans (jeep driver). However, according to Ivanelli, the lease only covered Evans’ wages. It did not include overhead, profit, social security or unemployment.

Evans had been hired by Ivanelli prior to the lease with Shinsho. After Jay Cee entered into the lease with Shinsho, Lullo and Evans only worked moving the steel owned by Shinsho at the Jay Cee warehouse. Ivanelli received instructions regarding receiving and shipping steel wire from Shinsho officials and passed along any instructions to Evans. Ivanelli testified that if Shinsho had asked him to remove Evans from handling its steel at the Jay Cee warehouse, he would have been obliged to do so.

In February of 1976, Shinsho decided to terminate its lease with Jay Cee and obtain its own warehouse because of two fires that had occurred at the Jay Cee warehouse. Shinsho obtained a warehouse in Lake Bluff, and entered into a separate oral agreement with Jay Cee to transport its steel from the Jay Cee warehouse to the new warehouse. Shinsho agreed to pay Jay Cee 26$ per pound to cover both the labor and transportation costs associated with moving the steel. Ivanelli then hired trucks and drivers from Meyers to transport the steel to Lake Bluff and to deposit it in the new warehouse. (Ivanelli was an officer and stockholder in both Jay Cee and Meyers.) Ivanelli received instructions from Shinsho as to loading the trucks. Shinsho asked that Evans drive a forklift at the new warehouse, and Ivanelli instructed Evans to go to the new Shinsho warehouse to unload the steel wire.

James Johnson, an assistant sales manager for Shinsho, also testified. Normally he worked at Shinsho’s office in Skokie. However, after Shinsho obtained the warehouse in Lake Bluff, he spent some time working there. Shinsho had leased a forklift from Clark Equipment Company for use at the new warehouse. Johnson created a pattern for stacking the new and old steel which he later explained to Evans. On approximately March 14, 1976, Jay Cee began to move the steel to the new warehouse. Each morning Johnson would unlock the doors at the warehouse and return at night to make sure they were locked.

On March 22, 1976, he found the decedent and the forklift on its side. After Evans’ death, Shinsho hired two drivers to continue unloading the trucks. The new drivers were placed on Shinsho’s payroll. Evans had not been on Shinsho’s payroll.

The sole issue on appeal is whether the finding of the Industrial Commission that Evans was not an employee of Shinsho, and thus that Shinsho was not a borrowing employer under the Workmen’s Compensation Act, is contrary to law and against the manifest weight of the evidence.

“An employee in the general employment of one person may be loaned to another for the performance of special work and become the employee of a person to whom he is loaned, while performing the specific service.” (A.J. Johnson Paving Co. v. Industrial Com. (1980), 82 Ill. 2d 341, 346-47, 412 N.E.2d 477, 480.) This concept, referred to as the loaned-employee doctrine, was specifically incorporated into the Illinois Workmen’s Compensation Act, which provides:

“Where an employer operating under and subject to the provisions of this Act loans an employee to another such employer and such loaned employee sustains a compensable accidental injury in the employment of such borrowing employer and where such borrowing employer does not provide or pay the benefits or payments due such injured employee, such loaning employer is liable to provide or pay .all benefits or payments due such employee under this Act and as to such employee the liability of such loaning and borrowing employers is joint and several ***.” Ill. Rev. Stat. 1975, ch. 48, par. 138.1(a)(4).

In determining whether an employee was loaned, a reviewing court must ask: (1) whether the borrowing employer had the right to direct and control the manner in which the claimant performed the work; and (2) whether a contract for hire, either express or implied, existed between the claimant and the borrowing employer. (A.J. Johnson Paving Co. v. Industrial Com. (1980), 82 Ill. 2d 341, 348, 412 N.E.2d 477, 481.) The existence of a loaned-employee relationship is generally a question of fact to be determined by the Industrial Commission, whose finding will not be disturbed unless it is contrary to the manifest weight of the evidence. M & M Electric Co. v. Industrial Com. (1974), 57 Ill. 2d 113, 117, 311 N.E.2d 161, 163.

As mentioned above, the first factor is whether Shinsho had the right to direct and control Evans’ work. Evans was initially hired by Jay Cee and was on Jay Gee’s payroll. He was never on Shinsho’s payroll. Evans received most of his instructions from Ivanelli, his foreman, though he also received some directions from Shinsho that were relayed to him through Ivanelli. Under the lease agreement, Evans worked in a portion of the Jay Cee warehouse that was leased exclusively to Shinsho. At the time of the accident, Evans was working in the Lake Bluff warehouse at Shinsho’s request, the warehouse was exclusively within Shinsho’s control, and Evans was operating a forklift that had been rented by Shinsho. Shinsho’s manager, James Johnson, did instruct Evans where to stack the steel wire at the new warehouse. Yet, Johnson was not Evans’ supervisor. Shinsho could have requested that Evans be removed from working with its products. However, Shinsho did not have the right to have Evans discharged.

The second factor is whether a contract of hire, either express or implied, existed between Evans and Shinsho. It is clear that Evans did not expressly consent to the establishment of an employer-employee relationship between himself and Shinsho. However, Evans may have impliedly consented to an employment relationship with Shinsho. He knew that he was doing work for Shinsho, first at the Jay Cee warehouse, and later at Shinsho’s warehouse. He also followed Shinsho’s instructions as to what work he was to do. Yet, Evans was hired by Jay Cee and was paid by Jay Cee. He received most of his instructions from Ivanelli. Also, during the period that the steel was being moved to Lake Bluff, Evans reported to work at Jay Gee’s warehouse, he punched in on Jay Gee’s time clock, and he was transported to and from Shinsho’s warehouse in Meyers trucks.

It is apparent from the facts that the evidence was conflicting as to both of the above factors. We find that there is sufficient evidence to support the Commission’s conclusion that Evans was not totally under the control of Shinsho or freed from the control of Jay Cee. We also find that there is sufficient evidence to support the con-elusion that Evans believed that he was working for Jay Gee, rather than for Shinsho, at the time of his death. Therefore, we hold that the decision of the Industrial Commission was not against the manifest weight of the evidence.

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

Affirmed.

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


author: JUSTICE TRAPP

text:
    QUINCY SCHOOL DISTRICT NO. 172, Plaintiff-Appellee, v. THE BOARD OF REVIEW OF THE DEPARTMENT OF LABOR, Defendant-Appellant (Ann Bo-land, Defendant).
    Fourth District
    No. 4—84—0066
    Opinion filed November 30, 1984.
    Neil F. Hartigan, Attorney General, of Springfield (Thomas P. Marnell, Assistant Attorney General, of counsel), for appellant.
    Jerry L. Brennan, of Keefe, Gorman & Brennan, of Quincy, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff Quincy School District No. 172 brought this action seeking administrative review (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.) of a final administrative decision of the Illinois Department of Labor’s Board of Review finding defendant Ann Boland, a school bus driver, eligible for unemployment benefits for the period from December 27, 1981, to January 2, 1982. The circuit court of Adams County reversed; reinstating the decision of the agency’s hearing referee, which denied Boland benefits, as modified by the court’s reasoning. The Board of Review appeals. We affirm.

Two issues are presented by this appeal: First, whether the claimant was rendered unavailable for work because of the short duration of her unemployment; and, second, whether the period of school Christmas recess should be treated as “holidays according to the custom of his trade or occupation,” under section 500(C)(2) of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 300 et seq., specifically par. 420(C)(2)), or as a “period of shutdown for *** vacation purposes” under section 610(A) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 440(A)).

Plaintiff school district went into recess at the close of the school day on December 18, 1981, and reopened on January 4, 1982. During this period, at which time defendant Ann Boland had been employed as a district bus driver for four years, Boland did not work and was not paid. She applied for unemployment compensation benefits, and a Department of Labor claims adjudicator found her eligible for benefits for the week of December 27, 1981, to January 2, 1982. The District appealed the claims adjudicator’s eligibility determination on two bases: (1) that Boland was ineligible for benefits within the meaning of section 612(B)(2) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 442(B)(2)) as “during a period between two successive academic years or terms,” and (2) that she was ineligible pursuant to section 500(C)(2) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 420(C)(2)) as unavailable for work on “days which are holidays according to the custom of his trade or occupation.”

A hearing was conducted before a Department of Labor hearing referee on February 9, 1982. In his decision, the hearing referee did not address the issues raised by the employer under sections 612 and 500(C)(2), but found that the- claimant was not available for work based on a finding that she preferred to work only part-time. Boland appealed the decision of the hearing referee.

By decision of March 18, 1983, the Board of Review (Board) reversed the referee’s decision, referring to the recess period as a “layoff,” and noting, with regard to Boland’s availability for work, that she had certified she was available for work and prepared to return to work at any time during the vacation period. The Board rejected the District’s arguments regarding Boland’s disqualification under sections 612 and 500 (C)(2) of the Act:

“Section 612 provides that an individual employed by an academic institution shall be ineligible to receive unemployment insurance benefits for weeks between two successive academic terms or years, unless there is no reasonable assurance that the individual will be rehired.
Section 500C — 2 states that an individual shall be considered unavailable for work on days which are holidays according to the custom of his or her trade or occupation, if the failure to work on such day is a result of the holiday.
The layoff in the instant matter did not occur between two academic terms or years, and therefore, Section 612 of the Act does not apply. Additionally, it is evident that the claimant’s failure to work during the period under review was a result of the [District’s] shutdown for a vacation period, and not because of the holiday, rendering Section 500C — 2 inapplicable. Based on the testimony of each party, the evidence established that the claimant was subject to a short-term layoff of a definite duration during which she was available to accept suitable employment at any time, and that the eligibility requirements of Section 500C of the Act thus have been met.”

Plaintiff district then commenced this action in the circuit court for administrative review. After hearing arguments, the circuit court reversed the Board of Review on the following reasoning:

“1. The claimant was unavailable for work within the provisions of sec. 500C2 of the Unemployment Act.
2. The claimant was unavailable for work because of the short time period involved in the Christmas holiday period.
The holding of the referee is re-instated as modified by its above reason.”

This appeal followed.

The Board first challenges the circuit court’s determination that the claimant was rendered unavailable for work because of the “short time period involved in the Christmas holiday.” Section 500 of the Act, defining eligibility for benefits, opens with the following basic language:

“An unemployed individual shall be eligible to receive benefits with respect to any week only if the Director finds that:
A. He has registered for work ***
B. He has made a claim for benefits with respect to such week ***
C. He is able to work, and is available for work; provided that during the period in question he was actively seeking work.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 48, par. 420.)

The Board references section 239 of the Act, defining the term “unemployed individual,” which states in pertinent part:

“An individual shall be deemed unemployed in any week with respect to which no wages are payable to him and during which he performs no services or in any week of less than full-time work if the wages payable to him with respect to such week are less than his weekly benefit amount [as defined by section 401 of the Act].” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 48, par. 349.)

The Board urges that to find a person must be “available” for a period longer than a week in order to be eligible under section 500(C) would be at odds with section 239. The Act requires that a claimant demonstrate his search for work for which he is qualified during each week for which benefits are claimed.

The Board’s argument is well supported by the various provisions of the Act and Illinois decisional law. In addition to the previously referenced statutory language, section 500(D) provides in pertinent part:

“lyhis benefit year begins prior to July 6, 1975 or subsequent to January 2, 1982, he has been unemployed for a waiting period of 1 week during such benefit year. If his benefit year begins on or after July 6, 1975, but prior to January 3, 1982, and his unemployment continues for more than three weeks during such benefit year, he shall be eligible for benefits with respect to each week of such unemployment, including the first week thereof.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 48, par. 420(D).)

The term “benefit year” is defined by section 242 of the Act as “the one-year period beginning with the first day of the week with respect to which the individual first files a valid claim for benefits.” (Ill. Rev. Stat. 1981, ch. 48, par. 352.) The language of subsection (D) establishes a “waiting period” of unemployment which is noncompensable, unless the claimant made a valid claim for benefits during a week beginning after July 6, 1975, but before January 3, 1982. (1C Unempl. Ins. Rep. par. 1955, at 16, 196 (CCH 1983).) Availability is judged in one-week periods. After serving the waiting period, a covered worker may receive benefits for each week in which he meets the eligibility conditions. For example, under section 610 of the Act, pertaining to shutdowns for the taking of inventory or for vacation purposes, after a covered worker has served the waiting period, assuming other eligibility conditions are met, he may receive unemployment benefits for “any week” for which he is not paid. (Ill. Rev. Stat. 1981, ch. 48, par. 440.) To interpret the Act otherwise would be in derogation of its purpose as stated in section 100, that is, to relieve the economic insecurity caused by involuntary employment. Ill. Rev. Stat. 1981, ch. 48, par. 300; see also General Time Corp. v. Cummins (1957), 11 Ill. 2d 543, 144 N.E.2d 607.

As to the second issue, section 500(C)(2) provides:

“An individual shall be considered to be unavailable for work on days listed as whole holidays in ‘An Act to revise the law in relation to promissory notes, bonds, due bills and other instruments in writing,’ [Ill. Rev. Stat. 1981, ch. 17, par. 2201 (defining legal holidays)]; on days which are holidays in his religion or faith, and on days which are holidays according to the custom of his trade or occupation, if his failure to work on such day is a result of the holiday. In determining the claimant’s eligibility for benefits and the amount to be paid him, with respect to the week in which such holiday occurs, he shall have attributed to him as additional earnings for that week an amount equal to one-fifth of his weekly benefit amount for each normal work day on which he does not work because of a holiday of the type above enumerated.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 48, par. 420(C)(2).)

If the Christmas recess period is regarded as within the meaning of the emphasized language, claimant must be treated as “unavailable for work,” and ineligible for benefits.

The Board treated the Christmas recess as a shutdown period for vacation purposes within the meaning of section 610 of the Act, which provides in pertinent part:

“A. Whenever an employer has announced a period of shutdown for the taking of inventory or for vacation purposes, or both, and at the time of 'or during such shutdown makes a payment or becomes obligated or holds himself ready to make such payment to an individual as vacation pay, or as vacation pay allowance, or as pay in lieu of vacation, or as standby pay, such sum shall be deemed ‘wages’ as defined in Section 234, and shall be treated as provided in subsection C of this Section.
C. *** Any individual receiving or entitled to receive wages as provided in this Section shall be ineligible for benefits for any week in which the sums, so designated or attributed to such normal work days, equal or exceed his weekly benefit amount. If no amount is so paid or owing, or if in any week the amount so paid or owing is insufficient to attribute any sum as wages, or if the amount so designated or attributed as wages is less than such individual’s weekly benefit amount, he shall be deemed ‘unemployed’ as defined in Section 239.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 48, par. 440.)

The Board urges that its interpretation that section 500(C)(2) is inapplicable to the Christmas recess period is entitled to substantial deference. The courts are not bound by the construction which the agency charged with administering a statute places on it, but administrative interpretation does have persuasive effect. Mississippi River Fuel Corp. v. Illinois Commerce Com. (1953), 1 Ill. 2d 509, 116 N.E.2d 394.

The Board of Review has construed the “holidays” provision of section 500(C)(2) to apply only to individual holidays but not to any period of unemployment which precedes or follows such holidays. Under this interpretation, Christmas day is a “holiday” within the meaning of this subsection, but it is set within a school recess for vacation purposes. The Board states that the reference to “holidays within a trade or occupation” was intended to provide for single, nonlegal holidays, such as April 1 for the United Mine Workers or May 1 as celebrated by the International Ladies’ Garment Workers’ Union. We disagree.

There is perhaps no more widely recognized holiday period than that of the Christmas recess period as observed in Illinois schools, although the precise dates of the recess may vary from year to year and between districts. We therefore conclude that this period falls ■within the meaning of section 500(C)(2) of the Act, as holidays according to the custom of the trade or occupation, and clearly distinguishable from a shutdown for inventory or vacation purposes within the meaning of section 610 of the Act (see e.g., General Time Corp. v. Cummins (1957), 11 Ill. 2d 543, 144 N.E.2d 607).

Affirmed.

MILLER and WEBBER, JJ., concur.


author: JUSTICE TRAPP JUSTICE MILLER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN H. EICKHOFF, Defendant-Appellee.
    Fourth District
    No. 4—83—0802
    Opinion filed November 30, 1984.
    MILLER, J., specially concurring.
    John Leonard, State’s Attorney, of Mt. Sterling (Robert J. Biderman and Kevin T. McClain, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Michael B. Metnick, of Metnick & Barewin, of Springfield, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

This is an interlocutory appeal brought by the State pursuant to Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)) from an order entered on November 28, 1983, by the circuit court of Brown County suppressing evidence of defendant John Eickhoff’s refusal to take a polygraph examination and of his response to the investigator’s request that he do so. We affirm.

On May 27, 1983, defendant was indicted on four counts of arson (Ill. Rev. Stat. 1981, ch. 38, par. 20 — 1), a Class 2 felony, for knowingly damaging by fire his real property, a farrowing house and a hog confinement building, and committing the offense with the intent to defraud the insurer thereof. Defendant’s motion in limine sought to preclude the State from presenting any evidence to the jury of a colloquy between defendant and agent A.W. Benton, as reported in Benton’s police report of February 3,1983:

“EICKHOFF was then asked, if necessary, would he submit to a polygraph examination. EICKHOFF responded he would have to consult with his attorney.
R/A [Agent Benton] explained that [he] understood that EICKHOFF may not want to submit because of his pending civil matter and [Benton] inquired what might be EICK-HOFF’S personal feelings or reasons for not submitting to the examination. EICKHOFF replied he could not answer that while in the current place, then stated he could not submit because of his ill feelings toward [Benton].
[Benton] stated that [he] understood EICKHOFF’S opinion, and explained that was not a reason to deny a polygraph examination. [Benton] further stated to EICKHOFF that R/A felt there were only two (2) reasons EICKHOFF would not submit and explained that (a) EICKHOFF was guilty or (b) EICKHOFF did not trust the examination.
EICKHOFF, in response to the above, stated he would not take the polygraph examination because of both reasons. EICKHOFF, after some hesitation, then stated he would not take it for only one of the reasons (b) he did not trust the machine.”

The trial judge considered defendant’s response to be an admission. The court granted the motion in limine, reasoning that, as both the results of a polygraph test and the fact that one had been given are inadmissible under Illinois law, a defendant’s refusal to take a polygraph test was likewise inadmissible.

On appeal the State maintains that the trial court erred in granting the motion because the restriction on the admissibility of polygraph test evidence, as enunciated by our supreme court in People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070, is inapplicable to the case at bar. First, the State contends that the strictures of section 8b of “An Act to revise the law in relation to criminal jurisprudence” (Ill. Rev. Stat. 1981, ch. 38, par. 155 — 11), that in the course of any criminal trial the court shall not require, request, or suggest that defendant submit to a polygraph test, are inapplicable since nothing in the record suggests that the trial court ever approached the defendant about a polygraph examination. Second, the State stresses that under Baynes only the results of polygraph examinations are unreliable and that statements by defendants to police or polygraph examiners before or after polygraph examinations are admissible, citing People v. Petty (1977), 54 Ill. App. 3d 1044, 370 N.E.2d 553, People v. McCue (1977), 48 Ill. App. 3d 41, 362 N.E.2d 760, and People v. Reed (1972), 8 Ill. App. 3d 977, 290 N.E.2d 612. The State argues that it did not intend to admit any evidence concerning the results of a polygraph examination, as one was never administered to defendant. Rather, the State intended to offer the defendant’s statement as an admission of guilt. Third, the State urges that in Baynes, the court disallowed polygraph evidence because the machine was considered unreliable, rather than because such statements might prejudice the defendant before the trier of fact. The State suggests that it is mere coincidence that defendant’s statement came in response to its offer of a polygraph test, and as this response was relevant and probative, the fact that it may prejudice him is insufficient to preclude its • admission. See People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840.

We disagree. In People v. Williams (1978), 60 Ill. App. 3d 529, 377 N.E.2d 367, this court held that a reviewing court will not reverse a trial court’s allowance or denial of a motion in limine unless, in entering the order, the court manifestly abused its discretion. We conclude that that standard has not been met in this case.

At the outset, we note that in Petty, McCue, and Reed, cited by the State, the admissions or statements the defendants sought to suppress were easily separable from the fact that a polygraph examination had been given — in McCue and Reed the admissions followed termination of the examination and in Petty the admissions occurred both before and after the examination. See, e.g., People v. Monet (1979), 90 Mich. App. 553, 282 N.W.2d 391.

In Baynes, our supreme court joined other jurisdictions by holding polygraph evidence inadmissible even in the face of a written stipulation. People v. Baynes (1981), 88 Ill. 2d 225, 240, 430 N.E.2d 1070, 1077, and cases cited therein. See also Conley v. Commonwealth (Ky. 1964), 382 S.W.2d 865; Akonom v. State (1978), 40 Md. App. 676, 394 A.2d 1213; State v. Biddle (Mo. 1980), 599 S.W.2d 182, 187 & nn.6-8; State v. LaForest (1965), 106 N.H. 159, 207 A.2d 429; State v. Trimble (1961), 68 N.M. 406, 362 P.2d 788; and State v. Frazier (W.Va. 1979), 252 S.E.2d 39.

Our supreme court commented on Baynes in People v. Yarbrough (1982), 93 Ill. 2d 421, 444 N.E.2d 493, concerning a trial judge’s suggestion of a polygraph test after a defendant’s conviction by jury:

“The guidance provided by People v. Baynes is controlling in this case. There the defendant was given a new trial not because the evidence was close but rather because we regarded the use of polygraph evidence as rising to the level of plain error. We explained the new trial we granted by saying that the error in admitting polygraph evidence, even pursuant to a stipulation of the parties, ‘infringes upon the integrity of our judicial system.’ Our renunciation of polygraph evidence in order ‘to protect and preserve the integrity and reputation of the judicial process’ is as relevant to its use in connection with disposition of post-trial motions as to its use during the actual trial. Our emphatic and unequivocal conclusion in Bay-nes that polygraph evidence is not reliable enough to be given consideration in any manner applies to its use by any participant in the trial process, whether it be by the trial judge in passing upon post-trial motions or by the finder of fact, be it judge or jury. It would be anomalous for this court to hold that while the trier of fact is not permitted to hear polygraph evidence even when the defendant stipulates to its admission, as we did hold in Baynes, the trial judge is still free to refer to that type of evidence in deciding whether the evidence is sufficient.
*** Thus, in reliance upon the strong reservations about the use of polygraph evidence we announced in Baynes, we believe the defendant was entitled to have his post-trial motion passed upon without reference to whether he had or had not taken the polygraph test or whether he had passed or failed it. * * *
The People seek to avoid the impact of Baynes ***. [T]hey intimate that after initially suggesting the polygraph test, the trial judge never thereafter inquired whether the test had been given and that he was kept in the dark as to the results of the test, if there was one. We find this suggestion unpersuasive because, once having suggested a polygraph exam as the People concede the trial judge did, it would be unrealistic to assume that he had no further interest in learning whether one had been given. We read the prosecutor’s response *** to the court’s inquiry during the hearing on the motion for a new trial referring to ‘certain investigative procedures’ as having been ‘performed subsequent to the trial’ and his further statement that ‘the results *** are in the hands of’ the defense counsel to refer to a polygraph exam. The judge knew that if the results of the exam favored the defendant, his counsel would so inform the court. *** [W]e believe the record shows that, upon the judge’s invitation, the prosecutor conveyed to him the message that the exam had been taken and that the results were not beneficial to the defendant.” (Emphasis added.) (People v. Yarbrough (1982), 93 Ill. 2d 421, 426-28, 444 N.E.2d 493, 495-96.)

We conclude that the language of Yarbrough precludes reference in a criminal trial to the fact that a polygraph examination was offered to, or refused by, a defendant, as well as whether he passed or failed it.

This view finds additional support in the tenor of several Illinois appellate decisions. In People v. Rutledge (1977), 45 Ill. App. 3d 779, 359 N.E.2d 1233, the court considered the rule of People v. Nicholls (1970), 44 Ill. 2d 533, 256 N.E.2d 818, and People v. Zazzetta (1963), 27 Ill. 2d 302, 189 N.E.2d 260, prohibiting the questioning of a defendant as to whether he had been offered a polygraph examination, as equally applicable to the questioning of a defense witness. People v. York (1975), 29 Ill. App. 3d 113, 329 N.E.2d 845, held that the trial court erred in permitting testimony that the complaining witnesses in an aggravated incest case had submitted to polygraph examinations since, though the results of the tests were not admitted, the obvious implication was that had the results been negative, the case would not have been prosecuted. But see People v. Parisie (1972), 5 Ill. App. 3d 1009, 1036-37, 287 N.E.2d 310, 326-27 (not reversible error for prosecutor to ask rebuttal witness if he knew results of his polygraph test, where it did not go to any material issue of defendant’s guilt or innocence); People v. Mack (1982), 107 Ill. App. 3d 164, 171-74, 437 N.E.2d 396, 403-05 (no reversible error in prosecutor’s violation of court’s direction not to refer to procedures used to test regarding reliability of its witnesses).

Testimony that a defendant was offered a polygraph test, or that he refused one, interjects into the case inferences which bear directly on his guilt or innocence: either he failed the test — as the State presumably would not pursue charges against an innocent — or he refused to submit to testing in fear that his guilt would be shown. That which may not be accomplished directly by evidence of polygraph test results may not be accomplished indirectly by references to whether a defendant sought, declined, or was offered a polygraph test.

The courts of other jurisdictions have held inadmissible evidence referring to the administration of polygraph tests as to a defendant. In State v. Emory (1962), 190 Kan. 406, 375 P.2d 585, the supreme court of Kansas has held that since evidence of the result of a lie detector test is not admissible, evidence of an accused’s refusal to take a lie detector test is incompetent. In State v. Driver (1962), 38 N.J. 255, 183 A.2d 655, the supreme court of New Jersey stated that if the results of polygraph examinations are not competent evidence, a fortiori, refusal by a defendant in a criminal case to submit to one cannot be made the subject of testimony. The court observed:

“In terms of degree of prejudice, the average jury, unfamiliar with the present scientific uncertainty of the test, might very well be even more affected by proof of a defendant’s refusal to take the test than by the evidence of results adverse to him coupled with proof of its scientific imperfection. A refusal might be regarded as indicating a consciousness of guilt.” (38 N.J. 255, 261, 183 A.2d 655, 658.)

See also State v. Kolander (1952), 236 Minn. 209, 52 N.W.2d 458, (introduction of evidence that defendant refused to take test reversible error); Mills v. People (1959), 139 Colo. 397, 339 P.2d 998; but see Stallings v. Commonwealth (Ky. 1977), 556 S.W.2d 4 (mention by police officer in testimony that defendant had refused to take lie detector test constituted error, rendered harmless by admonishment of jury on objection).

In Moore v. State (1977), 267 Ind. 270, 369 N.E.2d 628, the Indiana Supreme Court held there was no error in the trial court’s granting the State’s motion in limine to prohibit the defendant from testifying that he had offered to take a polygraph test. The court stated that references by witnesses or counsel to the results or administration of polygraph tests, direct or indirect, are inadmissible, and motions in limine are proper in respect to such references. The court reasoned that a defendant’s offer to take a polygraph test would not be probative of either his innocence or his credibility. See also State v. Emery (1975), 218 Kan. 423, 543 P.2d 897 (court not obligated to admit evidence of defendant’s willingness to submit to polygraph test); Commonwealth v. Saunders (1956), 386 Pa. 149, 125 A.2d 442.

In State v. Biddle (Mo. 1980), 599 S.W.2d 182, the supreme court of Missouri held that as the results of polygraph examinations are inadmissible as evidence in a criminal trial because they lack scientific support for their reliability, so an accused’s offer or professed willingness to submit to a polygraph examination, or testimony or prose-cutorial comment to the effect that the accused was unwilling to undergo a polygraph examination, are inadmissible in evidence. In State v. Davis (La. 1977), 351 So. 2d 771, the supreme court of Louisiana stated that the circumstance that a party was willing or unwilling to take a lie detector test, or that a test was given, is inadmissible because it is viewed as an attempt by indirection to evade the direct prohibition against lie detection testimony but does not always constitute reversible error. See McCormick, Evidence sec. 207, at 504 (2d ed. 1972); Annot., 23 A.L.R.2d 1306 (1952), and Later Case Service (1982); 22A C.J.S. Criminal Law sec. 645(2)(1961); 32 C.J.S. Evidence sec. 588(4)(1964); 29 Am. Jur. 2d Evidence sec. 831, at 923 (1967); Skolnick, Scientific Theory & Scientific Evidence: An Analysis of Lie-Detection, 70 Yale L.J. 694, 724-28 (1961). Accord, State v. Burnham (Me. 1981), 427 A.2d 969; State v. Mower (Me. 1974), 314 A.2d 840; People v. Frechette (1968), 380 Mich. 64, 155 N.W.2d 830; People v. Monet (1979), 90 Mich. App. 553, 282 N.W.2d 391; State v. Foye (1961), 254 N.C. 704, 120 S.E.2d 169; People v. Yatooma (1978), 85 Mich. App. 236, 271 N.W.2d 184 (prejudicial error); see also D.T. Lykken, A Tremor in the Blood; Uses and Abuses of the Lie Detector (1981); for a bibliography on polygraphy, see Polygraphs, Polygraphy, Polygraphists, 37 Rec. Assoc. Bar City N.Y. 82-90 (1982); for additional annotations, see Annot., 88 A.L.R.3d 227 (1978 & Supp. 1983); Annot., 95 A.L.R.2d 819 (1964) & Later Case Service (1983); Annot., 15 A.L.R.4th 824 (1982 & Supp. 1983); Annot., 43 A.L.R. Fed. 68 (1979 and Supp. 1983).

As extensive authority supports the view that it is error to elicit testimony relating to a defendant’s refusal to take a polygraph test, we conclude that a trial court could properly grant a motion in limine as to such references. Contrary to the State’s position on appeal, we are unable to see any way in which the State could fairly introduce the alleged admission without also referencing the State’s offer of a polygraph test and defendant’s refusal. Inasmuch as the alleged admission is inextricably intertwined with the offer of a polygraph test and defendant’s refusal thereof, we conclude that the trial court properly granted defendant’s motion in limine. See, e.g., Craig v. State (Okla. Crim. App. 1977), 562 P.2d 887 (no error in precluding defendant from cross-examining witness in regard to her polygraph examination when, although not an attempt to introduce the results in evidence, any possible answer to question propounded would have provided basis from which jury could have inferred results of polygraph examination).

Affirmed.

MILLS, P.J., concurs.

JUSTICE MILLER,

specially concurring:

I agree with the majority’s decision to exclude from evidence the defendant’s inculpatory statement, which he made in refusing to take a polygraph test. I specially concur, however, to stress the narrow factual grounds that in my opinion compel that result.

Polygraph evidence is inadmissible primarily because the test is not sufficiently accurate or reliable. (People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.) Therefore, evidence of a defendant’s offer or refusal to take a polygraph test is inadmissible; the offer or refusal to take an inaccurate, unreliable test is not relevant evidence of a defendant’s innocence or guilt, and evidence of a refusal could lead the trier of fact to draw the unwarranted inference that the defendant declined the test because he is guilty. See Kaske v. City of Rockford (1983), 96 Ill. 2d 298, 450 N.E.2d 314 (results of polygraph tests are not admissible in disciplinary proceedings before a board of fire and police commissioners, and the refusal to take a polygraph test cannot be grounds for disciplinary action).

The evidence at issue here is not the defendant’s refusal to take a polygraph test but rather the inculpatory statement that he made in the course of explaining his refusal. Inculpatory statements need not be automatically excluded from evidence merely because they have some connection with polygraph tests or mention the subject. (See Duonnolo v. State (Del. 1978), 397 A.2d 126, 132 (fellow prisoner properly allowed to testify about the defendant’s incriminating statement, which touched on his refusal to take a polygraph test).) In an appropriate case, an instruction could be used to make clear to the jury the distinction between the defendant’s inculpatory statement-direct, relevant evidence of guilt — and the context in which it was made. But when the prejudice arising from the reference to the polygraph test and the defendant’s refusal to take it outweighs the probative value of the statement itself, then the statement should be excluded.

A meaningful redaction of the defendant’s statement here would invite, if not require, extensive references to polygraph tests and the defendant’s refusal to take one. The defendant initially gave or assented to three separate reasons — ill feelings toward the investigating officer, guilt of the offense, and distrust of the examination — for refusing to take a polygraph test, but after some hesitation he retracted one of them, that concerning his guilt. I am concerned that the defendant’s apparently offhanded admission, which he quickly disavowed, could not be extracted successfully from its prejudicial context. Therefore, I agree with the majority’s decision to exclude the inculpatory statement.