author: JUSTICE WELCH

text:
    PATRICIA BELDEN, Ex’r of the Estate of W. L. Belden, Deceased, Plaintiff-Appellant, v. TRI-STAR PRODUCING CO., INC., et al., Defendants-Appellees.
    Fifth District
    No. 81-578
    Opinion filed May 12,1982.

      Martin J. Corbell, of Vandalia (Corbell and Miller, of counsel), for appellant.
    Robert M. Crain, of Crain, Hall and Cooksey, Ltd., of Centraba, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

At issue in this appeal are the rights under certain oil and gas leases covering 40 acres of Fayette County land. This land was and is owned by several individuals collectively referred to as the “Breeze heirs” and thus the tract is known as the “Breeze lease” or the “Breeze land.” The precise question presented is whether a 1938 oil and gas lease covering that land expired under the terms of the habendum clause in that lease.

On July 18, 1938, the then owners of the Breeze land entered into an oil and gas lease with the Minerva Oil Company as lessee. The lessors reserved unto themselves the then customary one-eighth royalty, which would become three-sixteenths in the event that production exceeded a specified level. The lease was to remain in effect for one year “and as long thereafter as oil or gas or either of them is produced from said land by lessee.” No mention was made in the lease of the possibility of pooling or unitization or of the rights of the parties should either occur.

Wells were drilled and oil was produced on the Breeze land, but by the early 1950’s it became apparent that a secondary recovery program would be required to extract the maximum amount of oil. To that effect, Minerva joined with Shell Oil Company and Austin Stewart, the operators of adjacent oil leases, and a waterflooding secondary recovery program was decided upon in an agreement dated September 15, 1954. It was contemplated that all lessors in the proposed North Louden Flood Unit, which would include the Breeze land, would agree to unitize their interests and be paid royalties out of the total production of oil from the Unit.

In 1956, Shell petitioned the Illinois Department of Mines and Minerals for approval of the North Louden Flood Unit and the proposed water-flooding to take place in the Unit. In the petition, Shell recognized that certain royalty owners, including all the Breeze heirs, had not consented to unitize their interests, but it was promised that the flooding operations would be conducted in such a way as to protect the rights of these royalty owners. A hearing on Shell’s petition was held in Springfield on April 18, 1956. Two of the Breeze heirs appeared on behalf of themselves and the other Breeze owners. Both Francis Breeze and Hattie Breeze expressed no objection to Shell’s secondary recovery program, but neither wished to share in the total production from the Unit. Instead, they insisted upon receiving royalties only from the oil production on the Breeze land.

The Department of Mines and Minerals approved Shell’s plan on May 3, 1956. None of the Breeze owners signed a unitization agreement, and thus during the secondary recovery operations oil from the Breeze lease was stored in a separate tank on the Breeze land, and royalties were paid to the Breeze heirs only from the sale of oil from this separate tank. The record does not indicate whether oil production from the Breeze lease was continuous during Shell’s direction of the secondary recovery operations, but oil was obtained from that land during 1966. In July of that year, Shell transferred its working interests in the North Louden Unit to R. H. Troop. Troop wrote to the royalty owners in the Unit and requested that they sign division orders which would allocate royalties according to the percentages established in the unitization agreement reached ten years earlier. Again, none of the Breeze owners consented to unitize their royalty interests.

Troop began to operate the Breeze lease in 1966, although Minerva Oil Company did not assign its interests in the 1938 lease to him until March of 1967. Claude Moore, Troop’s production superintendent, recalled in an evidentiary deposition taken in 1977 that when Troop commenced work on the Breeze land in 1966, there were three production wells located on the land, as well as several water injection wells. Of these three producing wells, only one was in a functioning capacity, another well was missing a pumping unit and the third consisted only of the casing in the hole. The single producing well yielded about a half barrel of oil each day, but 75 or 80 barrels of water were produced along with each half barrel of oil. According to Moore, it took until October of 1967 for Troop to extract a single tank of oil from the Breeze land, and, that month, the oil was sold to the Sohio Petroleum Company. Out of the proceeds of that sale, Troop tendered royalty checks to each of the current Breeze royalty owners. Four of these checks were for $14.60 and four were for $3.65. One check in each amount was accepted by certain of the Breeze heirs but the rest were refused.

Troop continued to recover oil from the Breeze tract until approximately 1968, when the producing well equipment was struck by lightning. After the October 1967 sale of oil, less than a tank of oil was obtained from the Breeze land, and, according to Moore, this oil remained unsold when he left Troop’s employ in April of 1974. Moore remembered that, although work was done on the Breeze lease after 1968, no oil was produced from it between that year and 1974.

In 1970, W. L. Belden, an independent oil producer and the original plaintiff in this case, was contacted by several of the Breeze heirs about their lease. They informed him that there had been no oil production from their property for two or three years, and, upon personal inspection, Belden discovered that the lease was indeed idle. He continued to watch the land for two or three more years and noticed no further activity. The Breeze heirs again contacted Belden in 1974 or 1975, and he returned to the Breeze land once more, only to find it still without oil production. He then prepared an oil and gas lease of the property with himself as lessee, which was signed by all the Breeze heirs between April 23,1975, and July 7,1975. It was recorded in Fayette County on July 21,1975. Since the 1938 oil and gas lease executed by the Breeze family had not been released, the 1975 lease to Belden is referred to as a “top lease.”

Meanwhile, R. H. Troop died on May 15, 1975. In February of that year, Troop had sold all of the equipment and wells comprising the North Louden Unit to John Homeier. Tri-Star Producing Company, a defendant, succeeded to the operation of the Unit effective March 1, 1975. Richard Koons, who served as vice-president of Tri-Star until January 1976, testified that no oil was being produced on the Breeze lease when Tri-Star took over the Unit and its operations. He did not know when the last oil had been obtained from the land prior to March 1975.

Tri-Star’s time records, as identified by Mary Youther, a Tri-Star bookkeeper, show that Tri-Star men and equipment were initially used in an attempt to restore production on the Breeze lease on May 22,1975. The first bill from an independent oilfield contractor to Tri-Star concerning work specified to have been on the Breeze lease is dated April 22,1975. It would serve no purpose to summarize the voluminous evidence pertaining to the work performed to restore production on the Breeze land after these dates. Suffice it to say that personnel from Tri-Star or from independent contractors hired by Tri-Star were frequently on the production equipment on that land up to the September 1979 trial date.

According to Richard Koons, oil commenced to again be extracted from the Breeze land by Tri-Star on approximately October 1, 1975. Lon Rogers, who was employed as a pumper for Tri-Star, also recalled that oil was produced on the Breeze lease some time in the fall of that year. Ralph Wright, who worked as a gauger for the oil purchaser, Sohio Pipeline Company, was assigned to gauge the oil output on the North Louden Unit beginning in 1973. He stated that he first gauged oil from the tank on the Breeze lease in 1976. A tabular summary of production on that lease between March 1975 and June 1979 introduced into evidence by stipulation corroborates Wright’s testimony. It indicates that no oil was produced from the Breeze land until May 1976, even though oil production was largely continuous after that date.

Before the top lease was granted to Belden, an affidavit was executed by several of the current Breeze heirs in which they stated that no oil or gas had been produced on their property for 36 months before March 17, 1971. This document was recorded on March 14,1974. After he obtained the top lease, Belden wrote to Richard Koons at Tri-Star. In a letter dated August 26,1975, Belden informed Koons of the top lease and noted that he had obtained affidavits of nonproduction on the Breeze tract. He wrote:

“We are aware that you have been doing some work on this tract and understand from the original oil and gas lease, in favor of Minerva Oil Company, that equipment may be removed from this tract. We are assuming that this is the work that you may be doing. We trust you will complete this work in such a manner as not to damage any sands in the productive areas in the formations, as we plan to develop and complete productive wells in the very near future.”

Koons replied to Belden by letter dated September 3,1975. He stated that Tri-Star had acquired Troop’s interests in the Breeze land and that TriStar intended “to do the necessary work required of these interests and operate these interests in accordance with its rights.”

On September 30, 1975, Belden filed his complaint in the present case. He alleged that the lease upon which Tri-Star’s claims were based had expired by its own terms, by reason of cessation of production, and in support of this allegation, an affidavit from Claude Moore was attached to the complaint. That affidavit, which had been recorded on August 29, 1975, proclaimed that no oil was produced from the Breeze land between March 1, 1970, and September 1, 1973. The complaint also alleged that Tri-Star was wrongfully interfering with Belden’s use of the Breeze land and had not removed its equipment from the property. Belden requested that the original Minerva lease be declared to have expired by its own terms. He also sought an injunction to prevent Tri-Star from interfering with his operation under his 1975 lease and to require Tri-Star to remove its personal property from the leasehold and to plug the existing wells.

Belden filed an amendment to his complaint on June 17, 1976. In count II, he claimed that Tri-Star had begun extracting oil from the Breeze land on May 5, 1976, and he sought an injunction preventing further removal of that oil. Count III re-alleged the facts pleaded in count II and requested punitive damages for the actions taken by Tri-Star.

The case proceeded to a bench trial in September 1979. Various parties were added and dismissed before that time in order to ensure proper representation of all interests in the Breeze land and leases. Patricia Belden, as the executrix of the estate of W. L. Belden, deceased, was substituted as the plaintiff. Following the presentation of evidence, including that discussed above, Tri-Star tendered to the clerk of the court a check in the amount of $12,229.03, which represented the royalty said to be due the Breeze heirs for oil production on their land through June 1979.

In its judgment of October 30,1981, the trial court found that the 1938 Minerva lease was still in effect, that the North Louden Flood Unit was a valid water flood unit, and encompassed the Breeze lease, and that Belden had knowledge of the continuing production activities on the Unit. It was also stated that the 1938 lease had not been abandoned and that “it would be inequitable for plaintiff to prevail.” Judgment was entered in favor of the defendants on count I of the complaint, and in view of this disposition, the trial court concluded that counts II and III could not be maintained, and therefore ordered that they be dismissed.

An appeal from that judgment has been perfected by the plaintiff. In this court, it is argued that the 1938 Minerva lease expired under its habendum clause by virtue of the nonproduction from the Breeze land. It is claimed that the trial court erred in basing its decision on the existence of the North Louden Unit and on production from the Unit, because the Breeze heirs never agreed to unitize their royalty interests with those from the rest of the Unit.

The defendants respond that the plaintiff’s original complaint was insufficient to state a cause of action and that the suit cannot be maintained in that it is a collateral attack on the 1956 order of the Department of Mines and Minerals which created the North Louden Unit. They also reply that the evidence shows that the Breeze lease was not abandoned, that Belden’s knowledge of Tri-Star’s activity on the Breeze land prevents the plaintiff from asserting any claim in derogation of Tri-Star’s interests, and that the Breeze heirs are estopped from defeating Tri-Star’s lease because they did not object to the unitization agreement or to Tri-Star’s work on the Breeze land.

In discussing the sufficiency of the plaintiff’s complaint, both parties have limited their arguments to count I. Thus, the propriety of counts II and III is not before us. (73 Ill. 2d R. 341(e)(7).) Defendants’ objections to count I fall into two categories. First, they state that the complaint did not show that the plaintiff was entitled to a declaration that the 1938 lease was invalid because the plaintiff did not allege that the Breeze heirs who signed the 1975 lease owned the land in question or that Belden, rather than Tri-Star, was in possession of that land when the complaint was filed. They also deny the sufficiency of the plaintiff’s request for an injunction and point to the conclusory nature of the allegations of irreparable harm, the failure of the plaintiff to show the inadequacy of money damages, and the absence of a description of the way in which Tri-Star was said to have interfered with Belden’s activities on the land, if any such activities were in fact undertaken by Belden.

The fact that the objections to count I of the complaint may be placed in two categories according to the various types of relief requested indicates a defect with that complaint. The desired declaratory judgment would be based upon the nonproduction from the Breeze lease, while the requested injunction would of necessity follow only from the allegation that Tri-Star was interfering with the use of the land. As such, count I presents two separate causes of action, in violation of section 33(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 33(2)). However, the defendants have not raised this defect in the trial court or in this court and it is waived. Sunbeam Corp. v. Central Housekeeping Mart, Inc. (1953), 2 Ill. App. 2d 543,120 N.E.2d 362; Zachotina v. Town of Cicero (1941), 312 Ill. App. 178, 37 N.E.2d 893 (abstract).

In order to state a cause of action to declare an oil and gas lease terminated because of nonproduction under its habendum clause, a plaintiff must allege his interest in the leasehold and must state that there has been no production on that land for a sufficient period of time to negate the inference that the cessation of production was only temporary. (Gillespie v. Wagoner (1963), 28 Ill. 2d 217, 190 N.E.2d 765; 2 W. Summers, The Law of Oil and Gas sec. 305 (rev. ed. 1959).) The specific allegations of the plaintiff’s original and amended count I were that the plaintiff was the “owner” of the 1975 lease from the Breeze heirs and that the 1938 Minerva lease, under which-Tri-Star claimed its rights, had expired by its own terms due to nonproduction on the land. A copy of the 1975 lease, the 1938 lease and Claude Moore’s affidavit of nonproduction were attached to the complaint and incorporated therein by reference.

The defendants urge that since the plaintiff did not claim that the lessors in the 1975 lease owned the Breeze land or deny that Tri-Star was in possession of the property, the complaint is insufficient under the authority of Ragsdale v. Superior Oil Co. (1968), 40 Ill. 2d 68, 237 N.E.2d 492. In that case, the plaintiff, Samuel Ragsdale, was the owner of certain Jefferson County land which was conveyed by sheriff’s deed to Robert Ragsdale, who, in turn, conveyed the surface estate to Myrle Marlow while reserving one-half of the mineral rights. Robert Ragsdale and Marlow executed an oil and gas lease which was ultimately assigned to Superior Oil Company. The plaintiff filed a complaint which alleged that he was the fee simple owner of the land in question and that Superior had wrongfully entered the premises and extracted a substantial quantity of oil. Damages were requested in the amount of $500,000.

The Illinois Supreme Court affirmed the trial court in granting judgment for the defendants on the pleadings. It was stated:

“As presented, this action is in the nature of trespass. But, an action in trespass for damages to the freehold or for severance or conversion of part of the freehold cannot be maintained by the alleged owner while another is in possession claiming adversely. [Citations.] Before maintaining trespass plaintiff would have to recover possession through an ejectment action. In such a case he would have to recover on the strength of his own title, not on the weakness of that of his adversary.” 40 Ill. 2d 68, 71-72, 237 N.E.2d 492, 495.

The complaint in Ragsdale was defective precisely because the plaintiff did not allege the superiority of his own title or right to possession. Both allegations are essential in a trespass action (Krejci v. Capriotti (1973), 16 Ill. App. 3d 245,305 N.E.2d 667), and, the defendants correctly argue, those allegations are also necessary to a suit to quiet title (Barger v. Slayden (1952), 411 Ill. 237,103 N.E.2d 645). But, we can find no authority to justify applying these strict pleading requirements to an action to declare a prior oil and gas lease void.

Indeed, the purpose behind actions to have an oil and gas lease declared terminated, such as this action, as well as suits to cancel these leases, is to promote development of the land for oil and gas so that the owner may receive royalties. (3 W. Summers, The Law of Oil and Gas sec. 453 (rev. ed. 1958).) We do not believe that this policy would be well served were we to require that a plaintiff in this type of action plead and prove either that the land is vacant or is occupied by him, as he must show in a trespass or quiet title suit. The significant question is whether production is being had from the land (Gillespie v. Wagoner), and an allegation of the state of possession is completely irrelevant to the resolution of that question.

Moreover, Ragsdale provides no guidance in this case, because Rags- dale involved a suit between one who alleged himself to be the owner of the mineral interests in the land and an owner of an oil and gas lease obtained from a third party. The present case is a contest between rival owners of two oil and gas leases which were, in effect, obtained from the same party. Unlike Ragsdale, there is no dispute as to who owns the underlying mineral interests out of which the oil and gas leases were created.

Nor do we find plaintiff’s allegations of the source of his interests insufficient to support a request for a declaratory judgment. Count I referred to the plaintiff as the “owner” of a lease which “grants plaintiff the right to mine and operate for oil and gas on the premises described in said lease.” While it would perhaps have been preferable for the plaintiff to state specifically that the lessors in that lease were the owners of the Breeze property, the attachment to the complaint of the duly recorded 1975 lease provides sufficient detail to inform the defendants of the manner in which the plaintiff purported to derive his interest in the Breeze property, given that the lease was properly part of the complaint. (Ill. Rev. Stat. 1979, ch. 110, par. 36.) Where, as here, it is the lessee who brings suit to declare the earlier lease terminated, there is certainly nothing to be gained by requiring an allegation of the lessors’ ownership.

Those parts of count I which allege facts pertaining to the declaratory judgment action, while somewhat skeletal, do state a cause of action. The trial court was thus correct in not dismissing this portion of the complaint. The same cannot be said of the request for an injunction contained in count I.

As pertains to the request for injunctive relief, the amended version of count I stated that defendant Tri-Star “has wrongfully interfered with plaintiff’s use of the said premises and has located equipment and machines upon the said premises all to the detriment of plaintiff” and “has refused to desist from interfering and refuses to remove defendant’s machines and equipment from said premises.” It was also alleged that TriStar “is responsible for the plugging of existing wells on the said lease but has failed and refused to plug the said wells.” The plaintiff noted that “the damage complained of is constant and continuous and unless abated the plaintiff will suffer irrepairable [sic] injury for which there is no adequate remedy at law.” The original version of count I requested that Tri-Star and its personnel be restrained from interfering with the plaintiff’s operations, and that Tri-Star remove its personal property from the leasehold and plug existing wells.

As mentioned previously, the defendants characterize this part of count I as conclusory. More particularly, it is argued that the complaint does not specify how Tri-Star was interfering with the plaintiff or what activities of the plaintiff were being obstructed. Additionally, the defendants note that the plaintiff has failed to allege facts to support the assertion that money damages would be inadequate or that irreparable injury would result were the injunction to be denied.

Because an injunction is an extraordinary remedy, the complaint must allege facts which entitle the plaintiff to the remedy, and cannot present mere conclusions unsubstantiated by facts. (Betts v. Department of Revenue (1979), 78 Ill. App. 3d 102, 396 N.E.2d 1150.) This maxim applies to all facets of the complaint, including the claims that a legal remedy would be inadequate (Betts; Larkin v. Howlett (1974), 19 Ill. App. 3d 343, 311 N.E.2d 367) and that irreparable injury would occur in the absence of an injunction (Larkin; Parsons v. Walker (1975), 28 Ill. App. 3d 517,328 N.E.2d 920). Even a cursory examination of count I reveals that it is deficient in the allegation of facts which could support either claim.

By not describing in any detail the purported interference by Tri-Star, count I leaves the reader to guess not only what activities (beyond the location of equipment on the premises) should be enjoined, but also why money damages would be inappropriate, and what injury would occur without the injunction. For this reason, we agree with the defendants that count I cannot support any injunctive relief, and although the plaintiff in that count has stated a cause of action for a declaratory judgment, no cause of action has been pleaded to the extent that an injunction has been requested. The trial court thus correctly denied the injunction as sought in count I. Pursuant to our authority under Supreme Court Rule 366(a) (73 Ill. 2d R. 366(a)), we will henceforth treat the request for injunctive relief as stricken from count I.

The defendants argue that, even if the remainder of count I states a cause of action, the present suit may not be maintained inasmuch as it is a collateral attack on the 1956 order of the Illinois Department of Mines and Minerals which established the North Louden Unit. This contention is based on a misapprehension of the scope of that order. The 1956 decision did give administrative approval to the operation of the leases in the North Louden area as a waterflooding project, but the plaintiff does not, by his complaint, purport to challenge that approval. Instead, the plaintiff seeks to assert rights under the leases to the Breeze property, and, as noted earlier, nothing in the 1956 order acted either to nullify, modify or confirm the 1938 Minerva lease. The plaintiff’s arguments are thus directed not to the 1956 order, but to the separate 1938 lease, and this suit is not a collateral attack upon any action taken by the Department of Mines and Minerals.

Finally, we come to the merits of this dispute which, simply stated, are whether the 1938 Minerva lease expired under its own habendum clause due to nonproduction on the Breeze land between 1968 and 1975. In order to clarify this discussion, it would be well to mention the issues that are not presented by this case.

First, the plaintiff never argued that this 1938 lease was abandoned. Abandonment, which has been discussed in several Illinois cases (Shannon v. Stookey (1978), 59 Ill. App. 3d 573, 375 N.E.2d 881; Spies v. DeMayo (1947), 396 Ill. 255, 72 N.E.2d 316; Gillespie v. Ohio Oil Co. (1913), 260 Ill. 169, 102 N.E. 1043), has been described as an intentional relinquishment of a known right. (Shannon v. Stookey.) As such, a party who seeks to declare an abandonment of an oil and gas lease must prove that the abandoning party intended to do so (Gillespie v. Ohio Oil Co.), while this element of proof is unnecessary if it is claimed that the lease has expired under its own habendum cláuse. Gillespie v. Wagoner; 2 W. Summers, The Law of Oil and Gas sec. 305 (rev. ed. 1959).

Second, we are not presented with the frequent questions of whether oil has been produced in “paying quantities” (Gillespie v. Ohio Oil Co.; Metz v. Doss (1969), 114 Ill. App. 2d 195, 252 N.E.2d 410; Annot., 43 A.L.R.3d 8 (1972)) or of whether reasonable diligence has been exercised in marketing the oil (Annot., 71 A.L.R.2d 1219 (I960)). The habendum clause in the lease at bar does not require that oil or gas be produced or marketed in any specified quantities, and, accordingly, the plaintiffs complaint alleged that there was no production of oil in any amount from the Breeze land for several years.

Third, the Breeze lease cannot be treated as having been subsumed by a unitization agreement. No Breeze owner ever agreed to unitize his or her royalty interest on any part of the 40-acre tract with that of the other lessors in the Unit, and legislation which now allows neighboring landowners to compel unitization was not in effect until October 1,1975. (Ill. Rev. Stat. 1979, ch. 96/2, par. 5440 et seq.) Therefore, those authorities which discuss the termination of an oil and gas lease in the situation in which the lessors enter into a unitization agreement, either voluntarily or involuntarily, are not germane to this appeal. See 2 W. Summers, The Law of Oil and Gas sec. 302.1 (rev. ed. 1959).

Fundamentally, the plaintiff’s primary assignment of error consists of the argument that the length of nonproduction on the Breeze land was sufficient to declare the 1938 lease at an end, and the trial court considered extraneous factors such as the existence of the North Louden Unit and the equities of the situation in refusing to hold that the lease had terminated. The defendants respond that the concededly continuous production from the rest of the Unit acted to extend the 1938 lease, and even if this is not the case, the lack of production from the Breeze land was not of a duration to warrant termination of the lease.

Normally, “to extend a lease beyond the fixed term by production, the oil or gas must be produced from the demised land.” (2 W. Summers, The Law of Oil and Gas sec. 295 (rev. ed. 1959); Schock v. Gilpin (E.D. Ill. 1957), 150 F. Supp. 471, affd (7th Cir. 1958), 255 F.2d 912.) Certain exceptions to this rule exist, as, for example, when a valid unitization agreement is entered into. (2 W. Summers, The Law of Oil and Gas sec. 302.1 (rev. ed. 1959).) But, as we have noted earlier, no such agreement was consummated in this case, and this exception is not applicable.

The defendants reply that production from anywhere on the unit keeps all leases in the unit alive even if there is no production from a lease which has not been the subject of a unitization agreement. In support of this theory, the defendants refer us to a number of authorities from other jurisdictions, chief among them being Humble Oil & Refining Co. v. Hutchins (1953), 217 Miss. 636, 64 So. 2d 733. There it was explained that

“# » o w{jen a drilling unit has been legally established, and there is production therefrom, so that a mineral lessor of land within the unit is entitled to receive his share of production, the primary term of the lease is thereby extended, even though the lessor has refused to agree to pooling of his interest, and the unit well is not on his land. The theory is that under such circumstances there is in effect production under the lease from the leased land, as if the lessor had agreed to pooling of his interest, or as if the well were located on the leased land.” 217 Miss. 636, 644-45, 64 So. 2d 733, 736-37.

The inapplicability of Hutchins is demonstrated by a careful reading of the passage quoted above. A lessor who does not join a unit is entitled to a share of production from the rest of the unit only if the jurisdiction involved authorizes compulsory pooling and unitization, as does Mississippi. From this fact, it follows that production from the rest of the unit may be considered as production from any lease in the unit. (Superior Oil Co. v. Beery (1953), 216 Miss. 664,64 So. 2d 357.) But the defendants have provided us with no authority for this conclusion except for cases from compulsory pooling jurisdictions, or cases involving lessors who have entered into or ratified the unitization agreement. Both categories of cases are certainly no authority for us to accept this proposition in Illinois, e 8 When the holder of a working interest or royalty refuses to sign a unit agreement, “the pre-existing oil and gas leases and other contracts of the non-signers remain in effect and unmodified by the unit agreements.” (Myers, Problems of Pooling, Unitization and Secondary Recovery, 1959 U. Ill. L.F. 543, 554.) Consequently, a lessor who does not sign a unitization agreement is entitled to royalties only from the oil and gas produced on his leasehold, and the lessor’s relationship with his lessee must be determined according to the original lease. From this description of the rights of unsigned interests, it follows that in order to extend a lease under its habendum clause where that lease is located within a unit which the lessor has not joined, production must be from the leasehold rather than from elsewhere in the unit. (Morris v. Mayden (1976), 35 Ill. App. 3d 338, 341 N.E.2d 428.) Therefore, the continuous production from the rest of the North Louden Unit is of no assistance to the defendants in proving that the 1938 lease has not expired.

In determining whether production from the Breeze lease has been sufficient to keep that lease alive, we must recall the evidence concerning the state of that production. The opinion of Claude Moore that oil was last extracted from that land in 1968 was uncontradicted. Conflicting testimony was presented on the date of the resumption of production, but accepting the evidence most favorable to the appellees, we will view the first production by Tri-Star as having occurred in approximately October of 1975.

The leading case in Illinois on the termination of an oil and gas lease under its habendum clause is Gillespie v. Wagoner (1963), 28 Ill. 2d 217, 190 N.E.2d 765. There, a lease was executed in 1953 to be effective during its primary term “and as long thereafter as oil, gas or other mineral is produced from said land hereunder." The lessee drilled a well which produced oil and gas until September 1957. The motor was removed from the pump jack in March or April of 1958.

On March 28, 1960, the lessor issued a top lease to Don H. Baldwin, Inc. During this year, the original lessees made arrangements to put the well back into production, and they commenced this work on June 17, I960. The following day, Baldwin served a notice of lease termination on these lessees. The lessor then brought suit to cancel the 1953 lease.

The original lessees argued that the cessation of production was only temporary and was therefore not sufficient to justify termination of the lease. The Illinois Supreme Court held:

“[TJemporary cessation of production after the expiration of the primary term is not a cessation of production within the contemplation and meaning of the ‘thereafter’ clause if, in the light of all surrounding circumstances, reasonable diligence is being exercised by the lessee to continue production of oil or gas under the lease.” (28 Ill. 2d 217, 220,190 N.E.2d 765, 767.)

The explanations presented by the lessees for their failure to produce oil or gas during those years were that they were in financial trouble, that it took time to contact the working interest holders, and that the weather occasionally created difficulty. Under these circumstances, the supreme court reasoned, the original lessees did not show reasonable diligence in producing the well, and thus the 1953 lease was described as having expired by its own terms.

The defendants argue that the record in this case shows due diligence by the operators of the Breeze lease, even though no oil and gas were being produced from that land. During Troop’s tenure as operator, they note, he started to develop a program which would result in the eventual change in the pattern of the waterflood. Claude Moore stated in his evidentiary deposition that dye tests were performed on all leases in the Unit, except the Breeze lease, in order to ascertain the direction of the waterflow. In the entire Unit, Troop converted a number of wells to water injection wells, including one such conversion on the Breeze lease. Troop caused certain plastic water lines to be placed on the Breeze land, but Moore testified that the water injection well was not yet functional when he left Troop in 1974.

We cannot agree with the defendants that this activity constitutes reasonable diligence so as to negate the effects of approximately seven years of nonproduction from the Breeze tract. Although Troop initiated a project which was to lead to a rehabilitation of the water flooding program, the fact remains that despite the performance of some work on the Breeze lease between 1969 and 1973, the machinery was not operational either when Moore’s employment with Troop terminated in 1974 or when Tri-Star took over Troop’s interest in the lease a year later. If the two-year hiatus in Gillespie v. Wagoner operated to terminate that lease under its own terms, then we believe that the much longer period of nonproduction in this case is similarly unwarranted under the 1938 Minerva lease and is unjustified even by the work undertaken on the land during that lapse. This decision is in accord with the great weight of authority from other jurisdictions dealing with the time required before an oil and gas lease may be terminated under its habendum clause. 2 W. Summers, The Law of Oil and Gas sec. 305 (rev. ed. 1959).

Nor do we accept the position that the work performed by TriStar in 1975 dictates a different result. As the court noted in Gillespie v. Wagoner, a lessor who desires to cancel a lease for failure to continue production need not notify the lessees of his intent to do so. Once a lease is terminated in this manner, it may not be revived by commencing production simultaneously with an action to declare the original lease void. (28 Ill. 2d 217, 220, 190 N.E.2d 765, 767.) The first work performed on the Breeze lease under Tri-Star’s management occurred on almost the same day that the first of the Breeze heirs signed the top lease to Belden. Tri-Star’s efforts had not come to fruition by the time all of the heirs had signed the lease in early July 1975, nor by the time the document was recorded later that month. The Breeze land remained unproductive when Belden wrote to Koons in August 1975, and when he filed his complaint in September. Under these facts, the Breeze heirs were justified in treating the 1938 lease as terminated by the time they granted the top lease to Belden, and, according to the principles stated in Gillespie v. Wagoner, the activity undertaken by Tri-Star was ineffective to revive the terminated lease.

However, the defendants contend, even if there was no production on the Breeze land prior to the plaintiff’s suit, the plaintiff must nonetheless take his top lease subject to Tri-Star’s claims to the property. It is undisputed that a number of documents governing Tri-Star’s interests in the land were recorded in Fayette County before the top lease was executed, and, according to the defendants, any inspection of the property between 1970, when the Breeze heirs first contacted Belden, and 1975, when the top lease was executed, would have revealed that Troop, and later Tri-Star, were making improvements on the land. This, it is stated, prevents the plaintiff from undermining Tri-Star’s position on the Breeze land.

This argument does not deny our previous discussion of the expiration of the 1938 lease. Although an inspection of the various recorded documents pertaining to the land immediately prior to the drafting and execution of Belden’s lease would have shown that Tri-Star had an interest in the property, observation of the land itself would have indicated that that interest was not a valid one. Contrary to the claims of the defendants, the activity visible on that land was not of such a character as would suggest the existence of a viable prior claim to the lease which was based on continuous production. Most of the signs pointed to a termination of the earlier lease, and, in accordance with this view, the otherwise invalid claim of Tri-Star to operate the Breeze lease does not become valid simply because the plaintiff knew or should have known of that claim.

Finally, in support of the decision of the trial court, the defendants assert that the Breeze heirs are barred by the doctrines of ratification and estoppel from denying the validity of the North Louden Unit and TriStar’s rights under the 1938 lease and therefore they could not transfer any working interests in the property to Belden. First, they state that the Breeze heirs ratified the unitization agreement by accepting its benefits, and, second, they contend that they are estopped to deny Tri-Star’s status as lessee because they did not object to the work performed by Tri-Star on the land in 1975 and afterwards.

As an analogy for the first of these arguments, the defendants point to Bi-County Properties v. Wampler (1978), 61 Ill. App. 3d 799, 378 N.E.2d 311, wherein royalty holders under an oil and gas lease were held to have been bound by a unitization agreement which they did not sign. The court stated that “[t]he acceptance of benefits under the unitization agreement by the defendants is clearly sufficient to constitute a ratification of the contract.” 61 Ill. App. 3d 799, 805, 378 N.E.2d 311, 316.

Yet, the benefits accepted in Wampler consisted of royalty payments computed according to the figures established in the unitization agreement. In this case, the only royalties received by the Breeze heirs were based upon production from their land, and, during Troop’s operation of the lease, a majority of the heirs refused to accept even these royalties. As such, the Breeze heirs did not receive the benefits of the unitization agreement which they consistently refused to join, and their conduct was consonant with their status as nonsignatories of that agreement. They have done nothing which could be interpreted as a ratification of that agreement, and they are therefore not bound by it.

The second part of defendants’ estoppel argument is that the Breeze heirs may not declare the 1938 lease forfeited when they allowed Tri-Star to continue to develop the property. However, in order to maintain this argument, it must be shown that the Breeze heirs had a duty to act to prevent further development. But, as will be recalled from our earlier discussion of Gillespie v. Wagoner, a lessor under an oil and gas lease does not even have the obligation to notify the lessees of his intent to terminate the lease, let alone an obligation to prevent them from resuming work on the leasehold. (Gillespie v. Wagoner (1963), 28 Ill. 2d 217,220,190 N.E.2d 765,767.) In the absence of such an obligation, we cannot hold the Breeze heirs estopped to deny Tri-Star’s interests by their failure to give a notice which they were not required by law to give.

Moreover, the facts in this case indicate that much of the work was performed by Tri-Star even after it knew or should have known of Belden’s claims. It is undisputed that Tri-Star’s development of the Breeze land continued after the top lease to Belden was recorded in Fayette County, after Belden wrote to Tri-Star to confirm his intent to produce oil from the property, and, most importantly, even after the present suit was filed. Most of this work, we believe, was performed by Tri-Star at its peril in the face of these notices, and cannot now be asserted as an estoppel against the Breeze heirs and the plaintiff, who claims through them.

In conclusion, that portion of the plaintiff’s count I which requested an injunction failed to state a cause of action, and the trial court properly denied the injunction. It was also correct in not dismissing the remainder of count I, for those parts of it which sought a declaratory judgment did state a cause of action. However, for the reasons stated above, the trial court failed to apply the correct principles in determining the validity of the two leases.

The evidence introduced at trial proves that the 1938 Minerva lease had terminated under the terms of its habendum clause and that the 1975 top lease to Belden was valid. Consequently, the contrary judgment of the trial court is reversed and this cause is remanded with directions to enter a declaratory judgment to that effect, and for further proceedings on the remaining counts of the complaint.

Affirmed in part, reversed in part, and remanded with directions.

KARNS, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: JUSTICE LONDRIGAN JUSTICE WEBBER,

license: Public Domain

text:
      In re R.L.L., a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellant, v. R.L.L., Respondent-Appellee.)
    Fourth District
    No. 4-82-0005
    Opinion filed May 12,1982.
    WEBBER, J., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield, and Daniel Arbogast, State’s Attorney, of Toledo (Michael Vujovich and Michael V. Accettura, Assistant Attorneys General, of counsel), for the People.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

R.L.L., a minor, was arrested on May 1, 1981, and charged with the murder of Veva Dengler, his foster mother. A detention hearing was held on May 4, 1981. A statement made by the minor after his arrest in Dyersburg, Tennessee, was admitted into evidence. In the statement, the minor is quoted as saying:

“[S]he [Mrs. Dengler] finally got me mad on that day and * * * I went in and I took a friend’s knife and I went into the bedroom 000 she was laying there asleep. And I stabbed her twice. And she got up and screamed * * *. And I ran over, I took her purse and I ran outside and I got in the car and I took off.”

When asked why he had become angry with Mrs. Dengler, R.L.L. stated:

“[W]e were almost constantly arguing the whole time I lived there and she wouldn’t listen to what I was trying to say to her. She wouldn’t let me explain to her, if I done something * * * that I didn’t mean to do * * * she’d * * * yell at me, and I tried to explain to her and she wouldn’t listen to me. And, finally it just built up * * *. [I]t just kept building up and building up and then I finally * * * I just went crazy.”

At the conclusion of the detention hearing, the trial court ordered the minor detained pending adjudication. The State also filed a motion seeking to have R.L.L. tried as an adult pursuant to section 2 — 7(3) (a) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 7(3)(a)).

A hearing on the motion was held on December 16, 1981. Luke Holsapple, sheriff of Cumberland County, testified regarding the details of the homicide and the subsequent apprehension of the minor. The State then called Michael Hughes, the chief probation officer of Coles and Cumberland counties. He stated that no secure facilities, other than the county jails, existed in the two counties in which a juvenile adjudicated delinquent as a result of a homicide offense could be held.

The prosecution then asked Hughes to state his opinion as to the facility or agency that would best serve the needs of a minor adjudicated delinquent for committing a homicide offense. At this point, the following exchange took place:

“A. If I understand the question correctly, first of all state in my Opinion — and this would be in the form of social history investigation or pre-sentence investigation — in my opinion probation would not be a suitable disposition in the case due to the fact that we do not offer any secure settings to begin with or during the course of probation.
Q. Thank you. I don’t mean to cut you off, but you have answered the question. Mr. Hughes, do you — are you aware of any facilities that are available for the type of detention or type of supervision of which you speak?
A. In Coles/Cumberland Counties, or the surrounding counties to my knowledge, there are no facilities that offer that type of environment, other than the department of corrections facilities in the northern part of the State.
Q. And that is the Illinois Department of Corrections?
A. Yes.
Q. Is there a particular division that would be able to handle that?
A. Just be speculating, I do recall there is a facility that is used for evaluation and treatment of incoming cases, and I believe that is the St. Charles facility, but I may be incorrect.
Q. Does the adult facility also have similar programs?
A. Again I would be assuming they have relatively the same programs, yes.”

The minor called Nancy Zang, supervisor of juvenile parole services for the Department of Corrections in the Champaign district. She testified regarding the secure treatment facilities available to the juvenile division of the Department of Corrections. Minors committed to the Department are statutorily discharged at age 21. The juvenile division presently has secure facilities for those minors in need of long-term psychiatric and psychological treatment. The Department’s principal secure facility for juveniles is the Illinois Youth Center in Joliet. On cross-examination, Mrs. Zang stated that she had no first-hand knowledge of the programs available for offenders placed in adult facilities.

Don Parrott of the Department of Children and Family Services testified about the circumstances of the minor’s early life. The minor’s parents divorced when the minor was very young. R.L.L.’s mother was a very unstable person. His stepfather constantly belittled R.L.L., warning him that he would grow up to be “worthless like your dad.” R.L.L. moved back and forth between his natural parents, never being allowed to stay in one place for very long. He dropped out of school in the eighth grade. He had several scrapes with the law during his early teenage years. He was finally adjudicated a neglected minor in March of 1981. The adjudication of neglect came about after R.L.L.’s stepfather had abandoned him and R.L.L. was arrested for breaking into a home in search of food and shelter. He was placed in the Dengler home at that time.

Psychiatric evaluations of R.L.L. were also admitted into evidence. All of the professionals who evaluated R.L.L. agreed that the minor had severe psychological problems and that he needed long-term psychiatric treatment in a secure facility. All of the professionals saw treatment of R.L.L.’s problems as difficult, but possible if R.L.L. was placed in a proper environment. Dr. Stephen Golding, professor of psychology at the University of Illinois, stated:

“There is no question in my mind that [R.L.L.] is the type of adolescent who absolutely must receive intensive psychological treatment for a prolonged period of time in a secure, institutional setting. It is in the best interests of both society and [R.L.L.] that he be placed in such a setting. While not wanting to sound overly alarmist about the situation, I must say, in all frankness, that if [R.L.L.] is simply tried as an adult and placed in an adult correctional facility, he will be, upon release, beyond the pale of all rehabilitation and will also be quite likely to engage in further acts of violence.”

The trial court denied the motion to allow R.L.L. to be prosecuted as an adult. The court stated that it was not satisfied that R.L.L. would receive proper psychiatric treatment in the adult system. Judge Watson stated:

“One of the disturbing problems I do have is quality of psychiatric treatment he will receive in adult facilities. I’m not very happy with it at all. It has finally come to the point where the adult facilities have admitted that the main purpose of adult facilities is to punish, not to rehabilitate. * * * I’m not very satisfied with the adult facilities. I’m not satisfied the psychiatric treatment I think is evidently needed and should be given to this individual for the benefit of society as well as himself will come from adult facilities. I’m also looking into this matter as an act of a child when he committed this crime — a very disturbed child. There is no way of guaranteeing what will happen whether he is put in adult or juvenile facilities. I feel it would be in the best interests of this society and this individual that he should stay in the juvenile facilities. And I would deny the motion.”

A motion to reconsider was filed on December 23, 1981. The motion was denied. The State filed a motion for leave to file a direct appeal with the Illinois Supreme Court. The supreme court denied this motion, but directed this court to expedite our consideration of the appeal.

The State raises two points on appeal: (1) the trial judge violated the separation of powers clause of the Illinois Constitution by declaring that the purpose of the Department of Corrections is to punish, not to rehabilitate, offenders; and (2) the trial court abused its discretion in failing to allow R.L.L. to be tried as an adult.

The State argues that the statement by Judge Watson that the main purpose of adult facilities is to punish, not to rehabilitate, constituted an unconstitutional exercise of legislative authority by a member of the judicial branch. We find the State’s argument to be without merit.

Article II, section 1, of the Illinois Constitution provides for three branches of government: legislative, executive and judicial. A branch is supposed to exercise only the powers given to it by the Constitution and not powers assigned by the Constitution to the other branches of government. In the case at bar, Judge Watson was not exercising a legislative function. His remarks, when taken in context and as a whole, merely show that he felt that R.L.L. would have a better chance of receiving much-needed psychiatric treatment in a juvenile facility than in an adult facility supervised by the Department of Corrections. We note that the State failed to offer any evidence as to the availability of psychiatric treatment in the adult facilities supervised by the Department of Corrections. The testimony of Michael Hughes on this point was, by his own admission, merely speculation. Judge Watson was doing only that which was required of him under section 2 — 7(3) (a) — exercising discretion in determining whether it was in the best interests of both the juvenile and society that this juvenile be prosecuted as an adult.

The State argues that the trial court’s decision is an abuse of discretion. The records shows that R.L.L. is a severely disturbed young man. His early life was hard and cruel; he lacked a feeling of acceptance and self-worth. The psychiatric reports introduced at the hearing on the motion indicated the necessity of long-term psychiatric treatment if R.L.L. is to have any chance at all to be rehabilitated.

The State offered very little evidence of the availability of psychiatric treatment in adult facilities. The evidence the State did offer was speculative. Nancy Zang, a juvenile worker called by the minor, testified regarding the availability of treatment facilities in the juvenile division of the Department of Corrections. The trial judge concluded that the best interests of both the minor and society would not be served by allowing the minor to be tried as an adult. Given the facts set forth in the record, we hold that the trial court did not abuse its discretion in denying the State’s motion. (See In re Burns (1978), 67 Ill. App. 3d 361, 385 N.E.2d 22.) In so holding, we do not wish to deprecate the seriousness of the offense of murder. However, while we may have decided the case differently, we cannot conclude from the record that the trial judge abused his discretion. Therefore, we affirm.

Affirmed.

GREEN, P. J., concurs.

JUSTICE WEBBER,

dissenting:

While I decline to advocate general interference with the discretion of a trial judge, I feel in this instance that he has predicated his judgment on false premises.

In making his ruling, the judge referred to R.L.L. as a “child ° # ° a very disturbed child.” As a matter of strict technicality, the designation is correct. However, R.L.L. was within 5M months of being an adult under the terms of the Juvenile Court Act. The offense was committed on April 23, 1981, and R.L.L. became 17 on October 1, 1981. The briefs of the parties point out, and I agree, that there is no mathematical certainty by which the tests of section 2 — 7(3) of the Juvenile Court Act may be applied. In the same manner there is no mathematical certainty by which adulthood can be determined, except that one who is 16M years of age is closer to that status under the Act than a 14-year-old. To say that one is a “child” because he is shy of 17 years by any amount of calendar time is to ignore reality. There was no evidence of either physical or mental retardation.

What is more important than the foregoing, which might be nothing more than a slip of the tongue by the trial judge, is the fact that no witness testified that R.L.L. might be cured, or even improved, in the time allotted. He could not be held beyond age 21, about 4/2 years from the date of the offense, yet both the psychiatrist and the psychologist stated that his therapy would be “intensive and prolonged,” “long-term.” No explanation of these terms was offered. All of the professionals agreed that treatment would be difficult and that the prognosis was guarded. It does not seem to me that the trial judge truly took into account the safety of the public in determining that an individual capable of homicide should be released in 4M years, when the evidence was clear that any modification of his behavior during that time was chancy at best.

Finally, I find the trial court’s emphasis on rehabilitation to be out of line with current public policy. Professor Allen has adequately detailed the history and theory of rehabilitation in his recent book. (F. A. Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose (Yale University Press 1981).) He notes that it has been substantial and precipitous since 1970. In Illinois, as in some 30 other states, the death penalty has been reinstituted; our legislature has established Class X felonies, determinative sentencing, and further restrictions on probation. This does not indicate to me that public policy in this State is any longer aimed solely at rehabilitation. Some cases, of which the instant one is a good example, simply demand punishment.

I would reverse the trial court without remand.


author: PRESIDING JUSTICE KARNS

text:
    GARY R. JENKINS, Plaintiff-Appellee, v. UNIVERSITIES CIVIL SERVICE MERIT BOARD OF THE STATE UNIVERSITIES CIVIL SERVICE SYSTEM et al., Defendants-Appellants.
    Fifth District
    No. 81-166
    Opinion filed May 4,1982.

      Richard Erdmann, of Follmer, West and Erdmann, of Champaign, for appellant Universities Civil Service Merit Board of the State Universities Civil Service System.

      John L. Gilbert and Ronald L. Lowery, both of Reed, Armstrong, Gorman and Coffey, P. C., of Edwardsville, for appellant Board of Trustees of Southern Illinois University.
    Robert P. Hennessey, of Granite City, for appellee.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Defendants, the Board of Trustees of Southern Illinois University (Trustees) and the Universities Civil Service Merit Board (Merit Board), appeal from the judgment of the circuit court of Madison County reversing the Merit Board’s decision to discharge plaintiff, Gary R. Jenkins, from the University Police Department. The issue raised on appeal is whether the trial court erred in holding that the findings and decision of the Merit Board were contrary to the manifest weight of the evidence.

On May 10, 1979, plaintiff was suspended, pending discharge, on charges of (1) drinking intoxicants in a State vehicle while on duty enroute to the Police Academy, (2) threatening a fellow officer with a handgun while under the influence, (3) conduct unbecoming of an officer in using abusive language toward a fellow officer, (4) violating a department policy by removing a handgun from its holster without just cause, (5) refusing to cooperate during an investigation of the University Police Department, and (6) conspiring with a fellow officer not to report an incident under investigation. A hearing was held and on February 19, 1980, the Merit Board found that the evidence supported the charges and established just cause for discharge. On administrative review of the Merit Board’s decision, the circuit court of Madison County reversed, finding that the decision was against the manifest weight of the evidence.

Before addressing the issues raised by defendants on appeal, it is necessary to address plaintiff’s arguments that the charges against him were insufficiently drawn, and that defendants are estopped from bringing charges (1) and (4).

While charges in an administrative proceeding must be specific enough to allow the accused to prepare a defense, the charges need not be drawn with the same refinements and subtleties as a pleading in court. (Greco v. State Police Merit Board (1969), 105 Ill. App. 2d 186,245 N.E.2d 99.) In Greco, the complaint alleged that the plaintiff had violated a number of rules and regulations, but did not contain specific descriptions of the alleged misconduct, such as dates, places, times and names of individuals affected thereby. The complaint was found to be insufficient. Here, the charges specify the impropriety of which defendant is accused (e.g., drinking enroute to the Academy, threatening an officer with a firearm), the dates of the alleged occurrences, and other descriptive details to put defendant on notice of the alleged misconduct. Accordingly, the charges are drawn with sufficient clarity.

Plaintiff further alleges that defendants are estopped from claiming the right to discharge plaintiff based on charges (1) and (4) because plaintiff has been previously disciplined for the conduct alleged in charge (1); and the charges in (4), if proven, would constitute a safety violation, justifying suspension, but not discharge.

Charge (1) alleges that plaintiff drank intoxicants in a State vehicle while on duty enroute to the Police Academy. Former acting chief of police, Tom Lefflar, confronted plaintiff with regard to this incident, and plaintiff admitted he was guilty of drinking enroute to the Academy. Lefflar then informed plaintiff that it was not a very smart thing to do. No further action was taken. Such “oral reprimand” does not rise to the level of discipline, especially in light of substantial testimony that Lefflar and plaintiff are close friends. Accordingly, when the Trustee defendants were later made aware of plaintiff’s conduct, no injustice resulted in asserting such conduct in the written charges against plaintiff. Plaintiff’s estoppel argument as to charge (1) is thus without merit.

The same result is required with regard to charge (4). Plaintiff was charged with violating a department regulation by removing his handgun from its holster without just cause. Plaintiff argues that because the regulation states that it is “to set standards regulating the use and safety of handguns e * *” that it is necessarily a safety regulation for which the appropriate sanction is suspension. The regulation deals with a matter of gravest concern, proper handling of a firearm by a police officer. While not requiring that discharge be imposed for violation of the regulation, we find that such a sanction may be imposed by the Merit Board in appropriate circumstances.

Plaintiff asserts that defendants are, nevertheless, estopped from asserting charge (4) as a grounds for discharge because plaintiff was disciplined for violation of the regulation when given a 30-day suspension on January 5, 1979. However, the testimony establishes that plaintiff agreed that his suspension be held in abeyance pending reinvestigation of the incident. The reinvestigation brought out additional evidence unfavorable to plaintiff, and the Trustee defendants initiated discharge proceedings against plaintiff. Plaintiff cannot now be heard to say that the defendants are estopped from using plaintiff’s misuse of a firearm as a ground for discharge, when he agreed that the incident could be reinvestigated and his suspension terminated.

Defendants first contend that the trial court erred in holding that the findings and decision of the Merit Board were against the manifest weight of the evidence. The Merit Board found against plaintiff on each of the six charges.

The Administrative Review Act provides that “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1979, ch. 110, par. 274.) A reviewing court’s inquiry is limited to deciding whether there is evidence fairly tending to support the agency’s findings, or whether a contrary result is clearly evident. Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App. 3d 864, 278 N.E.2d 212.

Regarding charge (1), there is testimony that plaintiff admitted to having consumed intoxicants in a State vehicle enroute to the Police Academy. Further, the officer who accompanied plaintiff to the Academy testified that plaintiff was drinking. The plaintiff and defendants are in disagreement as to whether plaintiff was “on duty” or “off duty” at the time. In Davenport, the court stated, “It has long been settled in our state that there is no distinction between ‘off duty’ and ‘on duty’ misconduct by a police officer. Should a police officer engage in misconduct which is detrimental to the service it would be absurd to say that he is clothed with a cloak of immunity if such misconduct occurred during ‘off duty’ hours.” (Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App. 3d 864, 870, 278 N.E.2d 212, 216.) Drinking in a State vehicle while en-route to the Police Academy could result in the loss of public confidence in the police, thereby causing detriment to the service. The record discloses that plaintiff was drinking enroute to the Academy. Even assuming plaintiff was off duty at the time, a decision exonerating him of the misconduct alleged in charge (1) is not clearly required. Accordingly, the trial court erred in holding the Merit Board’s decision was against the manifest weight of the evidence.

In charge (2), plaintiff is accused of threatening a fellow officer with a drawn weapon while under the influence of intoxicants. The officer, Steve Clemons, testified that plaintiff’s car had been stopped for speeding by Officer Marvin Strode; and when Clemons arrived at the scene, he jokingly remarked, “Boy, you’re in a heap of trouble.” Plaintiff answered Clemons by pulling his handgun, pointing it at Clemons and saying, “No, boy, you’re in a heap of trouble.” Marvin Strode, the officer who initially stopped plaintiff, testified that plaintiff pulled his gun and pointed it at Clemons. Even plaintiff admitted removing his revolver from its holster, although he denies having pointed it at Clemons. Plaintiff also testified that he had been drinking that evening, was drinking while driving, and believed he had four to six drinks that evening. In light of the foregoing, the Merit Board’s decision that plaintiff threatened a fellow officer with a handgun while under the influence of intoxicants is not against the manifest weight of the evidence. The trial court erred in so holding.

Regarding charge (3) that plaintiff engaged in conduct unbecoming an officer in using abusive language in public toward a fellow officer, plaintiff admits that he used the word “nigger” in referring to a fellow officer. Plaintiff argues, however, that it was not in public, nor abusive, because it occurred among a small group of men who are used to relating to one another in such a manner. However, two officers, who are black, testified that they did find the language to be abusive, but that they did not register their objections because they believed plaintiff to be close friends with the then acting chief of police, Tom Lefflar. Thus, the evidence is sufficient to find plaintiff guilty of conduct unbecoming of a police officer in using abusive language toward a fellow officer. The trial court erred in finding the Merit Board’s decision to be against the manifest weight of the evidence.

The fourth charge against plaintiff is removing his handgun from its holster without just cause. When plaintiff was stopped for speeding, the testimony discloses that he removed his gun from its holster and, according to at least two of the witnesses, pointed the gun at one of the officers. Further testimony, including plaintiff’s, discloses that later the same night, while visiting a friend’s Tower Lake Apartment, plaintiff again removed his handgun from its holster. The testimony is sufficient to sustain the Merit Board’s finding that plaintiff is guilty of charge (4). The trial court was in error in holding the Board’s decision to be against the manifest weight of the evidence.

Charge (5) accuses plaintiff of deliberately refusing to cooperate with the Illinois Department of Law Enforcement (DLE) during an investigation of the University Police Department. A directive of the University, dated January 10, 1979, ordered all police officers to cooperate fully with the DLE regarding an investigation into a January 5, 1979, shooting of a University police officer. Approximately a week thereafter, a second directive informed police officers that such cooperation included submitting to polygraph examinations on request. Plaintiff did take a DLE polygraph in regard to the January 1979 shooting incident. Further, he and his attorneys arranged a second polygraph regarding the incidents in charges (1) through (4). Although the testimony of DLE agent, Robert Magnussen, was that plaintiff was twice requested to submit to a DLE polygraph regarding charges (1) through (4), and that plaintiff refused unless two other officers also took a polygraph, such action on plaintiff’s part does not constitute deliberate refusal to cooperate with the DLE. Plaintiff could have reasonably believed that taking the polygraph for other than the January 1979 shooting was voluntary because the University directives referred only to the shooting incident. Further, when plaintiff asked the DLE agent whether taking the polygraph was voluntary, the agent indicated that it was. Accordingly, the trial court did not err in finding the Merit Board’s decision, that plaintiff deliberately refused to cooperate with the DLE, to be against the manifest weight of the evidence.

The last allegation, charge (6), accuses plaintiff of conspiring with a fellow officer, Marvin Strode, on two occasions. First, in failing to report an incident under investigation; and second, in refusing to give a complete account of the incident under investigation. The testimony is conflicting. Police officer Marvin Strode testified that plaintiff called him at the East St. Louis Center and told Strode that plaintiff was able to get everyone who was present at the Tower Lake Apartment, when plaintiff allegedly removed his gun without cause, to say the same thing. A police lieutenant, George Johnson, was asked by Strode to listen in on the conversation, and Johnson testified that although he could not recall plaintiffs exact words, Johnson heard plaintiff ask Strode to stick to his, Strode’s story.

Strode also testified that on a second occasion, plaintiff approached him at a Shell gas station and asked him to say that he had not seen anything. Plaintiff’s testimony was that plaintiff made no request of Strode other than to ask that Strode tell the truth.

Where the testimony is in conflict, it is for the Merit Board, not the court, to judge the credibility of the witness. (Dante v. Police Board (1976), 43 Ill. App. 3d 499, 357 N.E.2d 549.) Our inquiry is limited to whether there is evidence in the record fairly tending to support the Board’s decision that plaintiff conspired with a fellow officer not to report an incident under investigation and to evade the reporting of an incident under investigation. A review of the record supports the Merit Board’s finding. Accordingly, the trial court erred in finding the Merit Board’s decision to be against the manifest weight of the evidence.

Therefore, as to the first issue of whether the trial court erred in holding that the findings and decision of the Merit Board were contrary to the manifest weight of the evidence, we find that as to charges (1), (2), (3), (4) and (6), the trial court did err. There was evidence in the record fairly tending to support the agency’s finding that plaintiff was guilty of the misconduct alleged in those charges.

The second issue presented on appeal is whether the Merit Board’s decision to discharge plaintiff was arbitrary, unreasonable or unrelated to the requirements of service. Whether findings are sufficient cause for discharge is generally a question for the agency’s decision. (Joyce v. City of Chicago (1905), 216 Ill. 466, 75 N.E. 184.) The courts have provided guidance to agencies in defining cause as some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service, and which the law and sound public policy recognize as good cause for no longer holding the position. Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 352 N.E.2d 389, aff'd (1977), 69 Ill. 2d 27, 370 N.E.2d 511; Caliendo v. Goodrich (1975), 34 Ill. App. 3d 1072, 340 N.E.2d 560.

Unlike findings of fact, agency determinations of cause are not prima facie true and correct; manifest weight of the evidence is not the applicable standard of review. (Fox v. Civil Service Com. (1978), 66 Ill. App. 3d 381, 383 N.E.2d 1201.) The agency’s determination may be overturned if unreasonable, arbitrary, or unrelated to the requirements of service. (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547,426 N.E.2d 885.) In recent years, government employment has ceased to be characterized as a gratuity which the government can take away at will and has earned the distinction of an important entitlement protected by due process of law. The court must balance the employee’s interest in avoiding a dismissal unwarranted by the facts and the State’s interest in maintaining efficiency through the prompt removal of employees who contribute to inefficiency as a result of their past conduct.

Plaintiff cites a number of cases in which Illinois courts have reversed agency determinations to discharge employees. However, none of the cited cases are dispositive of the question of whether the Merit Board was justified in discharging plaintiff in the present case.

In Fox, the plaintiff was a Department of Revenue investigator charged with shouting profanities at a taxpayer she was investigating. The court held that although her conduct was related to service requirements, it was not of such substantial nature to warrant discharge. However, the court expressly limited its holding to the circumstances of the case. There was evidence that the plaintiff had been provoked by the taxpayer; the setting in which it occurred was an adversarial one; plaintiff had a good, lengthy work record; and plaintiff’s behavior signified overzealousness, as opposed to neglect of duty.

In Cartwright v. Civil Service Com. (1980), 80 Ill. App. 3d 787, 400 N.E.2d 581, the plaintiff, chief of security at a correctional facility, was discharged for failing to reprimand a guard who had placed a choke hold on an unruly prisoner. In reversing the agency’s decision, the court emphasized that the plaintiff’s only shortcoming was failing to reprimand a subordinate for his questionable conduct and three of plaintiff’s superiors also witnessed the incident and did nothing.

Three of the cases cited by plaintiff involve police officers; however, they are distinguishable in that the misconduct involved was not so serious as the misconduct presented in the present case.

In Thomas v. Police Board (1980), 90 Ill. App. 3d 1101,414 N.E.2d 11, the police officer had failed to pay parking tickets amounting to a substantial sum (approximately $2,150). The court held that the plaintiff’s unlawful conduct was not such that the discipline and efficiency of the department would be undermined if plaintiff was not discharged. Nor was plaintiff’s misconduct so significantly related to the performance of his police duties as to warrant discharge.

In Kreiser v. Police Board (1977), 69 Ill. 2d 27, 370 N.E.2d 511, the officer’s car was not properly licensed, and when plaintiff was asked by his commanding officer whether he had been driving his personal car, plaintiff falsely represented that he had not. Further, plaintiff failed to obey an order of his commanding officer to file a written report, and plaintiff left the station without logging out. The court found that the infractions on plaintiff’s part were not sufficiently substantial or related to the performance of plaintiff’s duties to call for the maximum sanction of discharge.

In Kirsch v. Rochford (1977), 55 Ill. App. 3d 1042,371 N.E.2d 899, the officer caused a disturbance as the result of his intoxication, both at an airport and at a police station. Moreover, he refused to submit to a breathalyzer test. In holding that discharge was too severe, the court noted that other than refusing the breathalyzer test, plaintiff had submitted obediently. Further, he was not on duty at the time of the incident, and he had been a responsible member of the department for a number of years.

The instant case involves misconduct more related to the performance of plaintiff’s duties as they relate to the efficiency and discipline of the service. Charges (2) and (4) center around the misuse of a firearm. Respect for weapons is paramount to an efficient and disciplined police department. Moreover, the harm that may result from the misuse of a gun, intended or accidental, is great. Plaintiff pointed a gun at a fellow officer while plaintiff was under the influence of intoxicants. Hours later, he removed his gun from its holster a second time, again without just cause. The lack of respect for weapons plaintiff has evidenced renders his continued service detrimental to the department. The other charges of which plaintiff is guilty (i.e., drinking enroute to the Police Academy, using abusive language toward a fellow officer in public, conspiring to not report an incident under investigation) serve to reinforce the decision that discharge is the appropriate disposition in this case. Accordingly, the Merit Board’s decision to discharge plaintiff was not arbitrary, unreasonable, nor unrelated to the requirements of service.

For the reasons set forth, the judgment of the Circuit Court of Madison County is reversed, and the decision of the Merit Board discharging plaintiff is reinstated.

Reversed. Decision of Merit Board reinstated.

JONES and WELCH, JJ., concur.


author: JUSTICE HEIPLE JUSTICE STOUDER,

text:
    THOMAS L. FREGEAU et al., Plaintiffs-Appellants, v. GLOVER GILLESPIE, Defendant-Appellee.
    Third District
    No. 81-508
    Opinion filed May 12, 1982.
    STOUDER, J., dissenting.
    Christopher W. Bohlen, of Blanke, Norden, Barmann & Bohlen, and William O. Schmidt, both of Kankakee, for appellants.
    Adrienne W. Albrecht, of Nutting, Thacker, Sacks, Ruch & Albrecht, of Kankakee, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

In this action, the plaintiffs Thomas Fregeau and his wife, Patricia, seek damages for injuries caused by the intentional bludgeoning of Thomas Fregeau by Glover Gillespie. The Fregeaus appeal from a summary judgment in favor of defendant entered by the circuit court of Kankakee County.

The injury to plaintiff occurred at work on February 18,1979, when Gillespie, a co-employee, intentionally struck Fregeau on the head with a large wrench. Following his injury, Fregeau applied for benefits pursuant to the Workers’ Compensation Act of Illinois. Fregeau received payment of medical expenses and disability payments for the two-year period while he was unable to work due to extensive surgery and recuperation.

On March 6, 1979, Thomas Fregeau filed a complaint against Gillespie seeking punitive and compensatory damages for the injuries sustained as a result of the intentional wrench assault. His wife, Patricia Fregeau, sought damages for loss of consortium. The Fregeaus are not claiming a common law action against the employer and they acknowledge the employer’s right of reimbursement from any judgment or settlement with Gillespie.

In his motion for summary judgment Gillespie claimed that Fregeau’s acceptance of medical and disability payments under the Workers’ Compensation Act precluded Fregeau from pursuing his common law action against Gillespie. The trial court agreed and granted defendant’s motion. From this order, the plaintiffs appeal.

On appeal, the plaintiffs Fregeau assert that a party who intentionally injures a co-employee should not be allowed to avoid liability merely because the injured party collected benefits under the Workers’ Compensation Act.

Defendant Gillespie, on the other hand, argues that the Workers’ Compensation Act provides the exclusive remedy for accidental injuries sustained by an employee. Gillespie asserts that while an employee may sue his employer or fellow employee for intentional torts, once an employee has asserted the accidental nature of his injury by claiming Workers’ Compensation benefits, he is foreclosed from claiming the injury was intentional and outside of the exclusivity provision of the Workers’ Compensation Act. According to Gillespie, an injury is either accidental or it is not. If the injury is accidental the employee is entitled to Workers’ Compensation benefits. If the injury is not accidental, then the employee may not claim Workers’ Compensation benefits but he may pursue his common law remedies. Thus, Gillespie concludes, since Fregeau claimed and received the Workers’ Compensation benefits, his injury must have been accidental and Fregeau is barred from suing the co-employee who injured him. We disagree.

Although the Workers’ Compensation Act provides compensation for accidental industrial injury, the term “accidental” is not defined within the statute. It has been stated that its meaning cannot be determined from any definition found in the dictionaries (Matthiessen & Hegeler Zinc Co. v. Industrial Board (1918), 284 Ill. 378), and that it is not a technical legal term but encompasses anything that happens without design or event which is unforeseen by the person to whom it happens. (E. Baggot Co. v. Industrial Com. (1919), 290 Ill. 530.) However, it has been recently held that injury is accidental within the meaning of the Act “when it is traceable to a definite time, place and cause and occurs in the course of employment unexpectedly and without affirmative act or design of the employee.” International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84, 89.

Thus, injuries sustained by an employee as a result of an unprovoked and unjustifiable assault by a fellow worker in the course of employment have been held to be compensable as accidental injuries within the meaning of that term as used in the Act, where the assault stems from a quarrel arising out of the work or duties being performed by the employees. (Pekin Cooperage Co. v. Industrial Com. (1918), 285 Ill. 31. See also McGrew v. Consolidated Freightways, Inc. (1963), 141 Mont. 324, 377 P.2d 350.) These cases treat the injuring incident as an “accident” on the theory that it was unexpected or unusual or unprovoked from the standpoint of the employee. Thus, harm that is intentionally and wilfully inflicted may, in this special case of legal definition, be characterized as “accidental” for purposes of enabling the injured employee to receive benefits under the Workers’ Compensation Act. Consequently, in a fictional legal sense, an injury may be both intentional and accidental.

Such is the dual character of the injury under scrutiny in the instant case. Benefits under the Workers’ Compensation Act were properly paid as the injury was incurred in the course of employment unexpectedly and without provocation by Fregeau. Admittedly, such relief would be the exclusive remedy if the injuries were accidental in fact and were thus negligently or carelessly inflicted (as opposed to intentionally inflicted) by the injuring employee, Gillespie. Rylander v. Chicago Short Line Ry. Co. (1959), 17 Ill. 2d 618.

The aim of the Workers’ Compensation Act is to provide compensation that is prompt, reasonable and certain to employees who are injured during the course of their employment. The Act relieves the employee of the necessity of proving fault on the part of another and freedom from contributory negligence for himself. Industrial accidents are thus absorbed into the overall cost of doing business and are reflected in the price. of the product or service that is passed on to the consuming public. By the assurance of a recovery and the limitation of the liability, the Act is considered to be of benefit to employers, employees and the consuming public. No benefit can be gleaned, however, from shielding either employers or co-employees from the consequences of assaults and batteries, wilful tortious acts. The reverse is true. Assaults and batteries, whether or not occurring at work, are contrary to peace and domestic tranquility. It is the public policy of the law to discourage such attacks and to make culprits responsible both criminally and civilly and to expose such wrongdoers to punitive damages.

It is one thing to indulge in a legal fiction to characterize a battery as an “accident” so as to entitle an injured employee to recover under the Workers’ Compensation Act. It is quite another thing to say, however, that this legal fiction should protect the tortious wrongdoer from the consequences of his wilful battery. Proposition one does not inexorably lead to proposition two. The allowance of such secondary recovery is of benefit to all but the wrongdoer. And he is not deserving of benefit. The employer is benefitted because he may recoup benefits paid from the sum recovered against the wrongdoer. The injured party benefits because he can recover more than the limits of the Workers’ Compensation Act. The public benefits because assaults and batteries are thereby discouraged. The consumers of the product or service are unaffected since the passing on of costs to the wrongdoer is not absorbed in the price of the product or service. Only the wrongdoer pays. He is held accountable for his conduct.

Where the injury is the result of intentional or nonaccidental conduct of a co-employee, such intentional misconduct should remove the tortfeasor employee from the protective shield of the Workers’ Compensation Act. The accidental nature of the injury to the injured employee enables him to recover benefits under the Act. The tortfeasor employee, however, is left standing much as any other tortfeasor. The statutory scheme permits relief under the Act to the injured employee because it happened in the course of his employment. He may also seek recovery from the wilful tortfeasor, the person actually responsible for his injuries, with the employer given the right of a set-off or reimbursement of amounts paid under the Act to his injured employee. Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b).

We believe this only just. Public policy requires that the law avoid shielding one who does intentional harm. Why should a person escape liability merely because he does his evil deeds at work? It is meretricious to suggest that innocent employers and equally innocent consumers foot the bill for persons who bludgeon fellow workers at their work station. For the true industrial accident, it makes good sense to dispose of the case solely under the Workers’ Compensation Act. The opposite is true, however, where the industrial “accident” is the result of an intentional battery by a co-employee. To hold otherwise would be detrimental to employees as well as employers and the general public. It would remove all civil deterrence against intentional batteries committed at work. Indeed, it would invite such conduct.

Courts have divided on this issue. (See Annot., 21 A.L.R.Sd 845, 880-81, sec. 11 (1968 & Supp. 1980).) For the most part, the nature of the alleged intentional conduct, frequently mere negligence, and variance in the jurisdictions’ statutory provisions accounts for the diversity of their results.

States with statutory provisions similar to our own have considered situations similar to the instant case. The following States have concluded that the statutory compensation remedy should not be the exclusive remedy when an employee commits an intentional deliberate assault and , battery upon a fellow worker: Utah (Bryan v. Utah International (Utah 1975), 533 P.2d 892); Tennessee (Williams v. Smith (Tenn. 1968), 435 S.W.2d 808); Louisiana law construed (Tedder v. F.M.C. Corp. (5th Cir. 1979), 590 F.2d 115); Alaska (Eliott v. Brown (Alas. 1977), 569 P.2d 1323); New York (Mazarredo v. Levine (1948), 274 App. Div. 122, 80 N.Y.S.2d 237.) On similar facts and statutory provisions Ohio (Gillman v. Ross (1971), 30 Ohio Misc. 34, 277 N.E.2d 256) finds contrary.

The defendant claims that our supreme court’s recent decision in Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, supports his position that by accepting Workers’ Compensation benefits Fregeau has elected his remedy and may not now sue for civil damages. We reach our decision in the instant case mindful of Collier. We do not believe the principles espoused by the defendant Gillespie are as broadly endorsed by the Collier court as he suggests. Moreover, the instant battery is quite distinct from the facts presented in Collier.

In Collier, the plaintiff was stricken with symptoms of impending cardiac arrest while at work and was given inadequate treatment by defendant Stogner, a nurse or medical attendant employed by the defendant employer, Wagner Castings Co. Defendant Stogner apparently believed that the plaintiff Collier was suffering from indigestion. A coworker subsequently called plaintiff’s wife and informed her of the situation. With her son, she drove 40 miles to remove the plaintiff to a hospital where he suffered three episodes of cardiac arrest later that evening.

Collier brought suit against the employer as well as the nurse employee, Stogner. In count I Collier alleged “outrageous conduct” and sought compensation from both his employer and Stogner for severe emotional distress. No battery was claimed.

With regard to the employer, the court ultimately concluded that “* ° * since the employer did not direct, encourage or commit an intentional tort, neither the employer nor its officers should be forced to defend this suit.” With regard to the defendant co-employee Stogner the court decided that “since the employer injured by a co-employee has collected compensation on the basis that his injuries were compensable under the Act, the injured employee cannot then allege that those injuries fall outside the Act’s provision.” The court based their conclusion on fear of double recovery and their desire to prevent the proliferation of litigation.

We share the same concerns and find the result reached in the instant case avoids both pitfalls. In permitting the Fregeaus to sue Gillespie for injuries received by his assault upon Thomas Fregeau, we are not permitting double recovery. Any judgment or settlement obtained from Gillespie will be subject to the employer’s right of reimbursement as provided in the Workers’ Compensation Act. Ill. Rev. Stat. 1977, ch. 48, par. 138.5(b).

Furthermore, our result will discourage intentional employee misconduct ultimately reducing not only litigation but also the number of claims filed with the Industrial Commission.

In Collier, the court stated that for the plaintiff to escape the exclusivity provision of the Workers’ Compensation Act, the plaintiff would have to prove either that the injury (1) was not accidental; (2) did not arise from his or her employment; (3) was not received during the course of employment; or (4) was noncompensable under the Act.

Fregeau escapes the exclusivity provision because, unlike the conduct alleged in Collier, Fregeau’s bludgeoning was unequivocally intentional and nonaccidental while still compensable under the Workers’ Compensation Act. Accordingly, we reverse the order of the Kankakee County circuit court.

Reversed.

BARRY, P. J., concurs.

JUSTICE STOUDER,

dissenting:

I respectfully disagree with the opinion of my colleagues. I would affirm the judgment of the trial court since I believe the judgment in favor of the defendant was proper.

In my opinion the recent case of Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229,408 N.E.2d 198, is dispositive of the issues raised and considered on this appeal. Neither the facts nor the legal reasoning of Collier can be distinguished from those existing or applicable to the instant case and accordingly, I think the same result is required.

Collier covered the same ground covered by my colleagues as well as that included in Jablonski v. Multack (1978), 63 Ill. App. 3d 908, 380 N.E.2d 924. The basic premise is firmly established that an injury to an employee may be accidental even though intentionally inflicted by someone else and will be compensable under the Workers’ Compensation Act if occurring during the course of employment and if a risk of the employment. Collier also holds that the compensation provisions of the Workers’ Compensation Act are not the exclusive remedy of an injured employee where a common law action based on the intentional tort of an employer or fellow employee is involved. However, Collier further holds that where the injured employee has elected to claim benefits under the Workers’ Compensation Act, he is barred from any common law action based on intentional tort. In other words, while the provisions of the compensation act are not exclusive, the doctrine of election of remedies is applicable and once Workers’ Compensation benefits are claimed and accepted no other action by the injured employee is permissible.

In Collier, the plaintiff accepted an award from his employer. Likewise, in the instant case, the plaintiff sought and has received substantial benefits from his employer under the Workers’ Compensation Act.

In Collier, the court accepts as true the allegations of counts one and four of the complaint charging intentional torts but nevertheless concludes that because plaintiff had accepted a compensation award the actions were barred even though intentional torts were alleged. The majority has not distinguished the facts in the Collier case from those in the instant case and its only reason for not following the teaching of Collier is the suggestion that perhaps the court in Collier was too concerned with double recovery, a concern which is at most fleeting.

By adopting the rule which it has in Collier, the court has prevented employer and employee from insulating themselves from the results of their intentional torts if this is the course of action which the injured employee elects to follow. Even if the injured employee elects the compensation route, the intentional tortfeasor may be subject to criminal penalties, both incarceration and monetary. Thus a wrongdoer need not escape scot-free as is somehow suggested to be the consequence of denying the injured employee his right of action for an intentional tort under all circumstances.


author: PRESIDING JUSTICE BARRY

text:
    FAYE TRIZZINO et al., Plaintiffs-Appellants, v. KLINE BROTHERS COMPANY, Defendant-Appellee.—(ATLANTIC MUTUAL INSURANCE COMPANY et al., Defendants.)
    Third District
    No. 81-619
    Opinion filed May 17,1982.

      H. Arthur Hammel and Thomas Monahan, both of Joliet, for appellants.
    Robert Marc Chemers, of Pretzel, Stouffer, Nolan & Rooney, of Chicago, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court;

This appeal is taken by the plaintiffs, Faye and Paul Trizzino, from an order of the circuit court of Will County granting the motion of defendant, Kline Brothers Company, to dismiss the cause of action as to it. While it was not brought to this court’s attention by the parties, we note that we lack jurisdiction to hear this appeal because no final and appeal-able order was entered by the trial court. For this reason, the merits of this appeal will not be considered and the appeal is dismissed.

On February 5, 1981, the plaintiffs filed a three-count complaint alleging in count I that Faye Trizzino had suffered personal injuries on January 22, 1979, due to the negligence of Kline Brothers Company. In count II plaintiff Paul Trizzino alleged loss of consortium because of his wife’s injuries. In count III both plaintiffs alleged that they had been lulled into a false expectation of settlement by defendant Willie Manafee, acting on behalf of defendant Kline Brothers Company. Tort damages were sought in counts I and II, whereas the only form of relief requested in count III was a court-ordered estoppel of defendants, Atlantic Mutual Insurance and Centennial Insurance companies, from asserting the applicable statute of limitations in defending against plaintiffs’ claims.

Kline Brothers Company filed a motion to dismiss counts I and II of the complaint, alleging as grounds therefor that plaintiffs’ claims were barred by the two-year limitations period for personal injury actions. (Ill. Rev. Stat. 1979, ch. 83, par. 15.) The remaining defendants joined together in a separate motion to dismiss count III of the complaint. They alleged that they, as insurance companies and insurance agent for Kline Brothers Company, were not proper parties for suit by the plaintiffs until such time as a judgment would be entered against their insured, Kline Brothers Company. The trial court, after hearing arguments of counsel, granted Kline Brothers’ motion and denied that of the remaining defendants.

Plaintiffs thereafter moved to vacate the court’s dismissal of counts I and II or, in the alternative, to enter a “final and appealable order.” On September 21, 1981, the court denied plaintiffs’ motion to vacate and further stated, “This court finds no reason to delay the enforcement or appeal of this order, this cause pends as to Count III.” This appeal followed. The issue presented for our consideration, as framed by plaintiffs, is “whether the trial court committed reversible error in granting the defendant’s motion to dismiss by denying the equitable relief sought in Count III.”

It is our duty to first determine whether we have jurisdiction in the subject matter of this appeal, even though the question has not been raised by either party. In this respect the threshold question is whether the trial court’s order is final and appealable. Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 750, 347 N.E.2d 278, 282.

The instant case is controlled by Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), which provides that an appeal may be taken from a final judgment as to fewer than all parties or claims, provided the trial court has made a special finding that there is no just reason for delaying enforcement or appeal. Although the trial court here entered the “magic language” required by the Rule, this fact alone is not sufficient to confer appellate jurisdiction. Harold Butler Enterprises #662, Inc. v. Underwriters at Lloyds, London (1981), 100 Ill. App. 3d 681, 427 N.E.2d 312.

To determine the finality of an order we must look to the substance rather than the form of that order. (Gutenkauf v. Gutenkauf (1979), 69 Ill. App. 3d 871, 873,387 N.E.2d 918, 920.) “[An order] is final if it determines the ultimate rights of the parties with respect to distinct matters which have no bearing on other matters left for further consideration or if the matters left for future determination are merely incidental to the ultimate rights which have been adjudicated by the [order].” (Barnhart v. Barnhart (1953), 415 Ill. 303, 309, 114 N.E.2d 378, 381.) An order which leaves a cause still pending and undecided is not final. Gutenkauf.

After examining the order appealed from herein in light of the pleadings, we find that it is not, in fact, final. Unquestionably the “lulling” issue presented in count III of the complaint is intimately related to counts I and II. If that issue is ultimately resolved in plaintiffs’ favor, then it would appear at this point that neither the statute of limitations nor principles of res judicata would debar plaintiffs from reinstating their tort claims against Kline Brothers Company. Since the trial court has made no findings of law or fact with respect to the “lulling” issue that issue is not properly before us and we determine on this record that the ultimate rights of the parties before us have not been finally determined.

Accordingly, we are without jurisdiction to dispose of the matter on its merits and the appeal is dismissed.

Appeal dismissed.

STOUDER and SCOTT, JJ., concur.