text:
    INN OF THE LAMPLIGHTER, INC., et al., Plaintiffs-Appellants, v. JOHN D. KRAMER et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0254
    Opinion filed October 31, 1984.

      Barber, Hall, Segatto & Hoffee, of Springfield (Henry R. Barber and Carl O. Hoffee, of counsel), for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Roy E. Frazier, Assistant Attorney General, and William F. Costigan and Robert W. Neirynck, Special Assistant Attorneys General, of counsel), for appellees.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiffs James R. Grady and Ruth H. Grady, as assignees of the original plaintiff, Inn of the Lamplighter, Inc., appeal from an order of the circuit court of Sangamon County striking their complaint for the issuance of a writ of mandamus against the defendants. The writ was sought to compel the defendants to bring an action in eminent domain to compensate the plaintiffs for their alleged loss of access to their property. This has sometimes been referred to as “inverse condemnation.”

Plaintiffs owned approximately 8.7 acres of land south of Springfield on what was U.S. Route 66 and afterwards Interstate Route 55. A resort motel complex .was operated on the premises.

In 1948 and 1951, when Route 66 was being constructed in the area, plaintiffs’ predecessors in title dedicated two portions of land for that purpose. The 1948 document provides:

“Reasonable outlet from the grantor’s abutting property will be permitted, but only via a service drive to be constructed on the outside portion of the adjacent highway right of way. The service drive will not connect with the main highway traffic lanes except at the South line of the said NWV4, Sec. 34, and at a point 7980+ ft. N. thereof.”

The 1951 dedication contains similar language as follows:

“Reasonable outlet from the grantor’s abutting property will be permitted, but only via a service drive to be constructed on the outside portion of the adjacent highway right of way. The service drive will not connect with the main highway traffic lanes except at the North line of the said Northeast Quarter, Southwest Quarter, Section 34 (Station 245 + 05+).”

The right of access reserved in these dedications was located at the intersection of U.S. 66 and what is commonly known as Hoechester Road. It thus appears that one wishing to get to the motel would turn off U.S. 66 onto Hoechester Road, and thence onto the frontage road to the premises.

In 1970, apparently as part of the upgrading of U.S. 66 to interstate standards, defendants’ predecessors in office caused Hoechester Road to be blocked off. Plaintiffs alleged that this caused them to close the motel, at a substantial financial loss. It is admitted that no compensation was paid for the closing of Hoechester Road.

In 1974 plaintiffs filed the instant suit seeking to compel the defendants to institute condemnation proceedings so that compensation could be paid to plaintiffs for their loss of access to their property. The trial court denied defendants’ motion to dismiss and they then answered. Later, defendants filed a motion to reconsider based upon a decision of the supreme court in Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 449 N.E.2d 852. The trial court then held that under this authority it was without jurisdiction and dismissed the suit. While it is not specifically articulated in the trial court’s order, the inference is that plaintiffs’ remedy is for damages in the Illinois Court of Claims. We believe that the trial court has misread the Granite City case, and we reverse and remand.

Since it is admitted that no part of plaintiffs’ land was taken by the State, the precise question becomes: Under what circumstances may a property owner force the State to bring a condemnation action when his property has been only damaged? The answer lies in a close examination of the interplay among certain constitutional provisions, both under the 1970 and 1870 organic documents, their statutory implementation, and decisions of the supreme court on the subject.

The 1970 Illinois Constitution, like its 1870 predecessor, provides that private property shall not be taken or damaged for public use without just compensation (Ill. Const. 1970, art. I, sec. 15). The same section provides that such compensation shall be determined by a jury. The 1970 Constitution also provides, “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (Ill. Const. 1970, art. XIII, sec. 4.) This represents a radical departure from the prior provision: “The State of Illinois shall never be made defendant in any court of law or equity.” Ill. Const. 1870, art. IV, sec. 26.

In reaction to the 1970 provision, the General Assembly passed Public Act 77 — 1776, effective January 1, 1972, providing that except as provided in the Court of Claims Act, the State should not be made a defendant or a party in any court. Ill. Rev. Stat. 1973, ch. 127, par. 801.

The Illinois Court of Claims has existed for many years; its function has been to ameliorate the harsh provisions of sovereign immunity, especially under the 1870 Constitution. Prior to 1945, its jurisdiction, as defined by the General Assembly, was largely confined to actions against the State sounding in contract and tort. In 1945 there was a broadening of its jurisdiction to include “[a]ll claims against the state founded upon any law of the State of Illinois ***.” (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(a).) This appears to be an effort to overcome two decisions by the supreme court, People ex rel. First National Bank v. Kingery (1938), 369 Ill. 289, 16 N.E.2d 761, and People ex rel. O’Meara v. Smith (1940), 374 Ill. 286, 29 N.E.2d 274.

Kingery is the leading case concerning the issue presented in the instant appeal. There the factual situation was the same: The petition sought a writ of mandamus against the Director of Public Works and Buildings of the State of Illinois to compel him to file an eminent domain suit for damages to the property of the petitioner. The supreme court indulged in the fiction that the suit was against the Director and not against the State, thereby avoiding the strictures of article IV, section 26, of the 1870 Constitution, and affirmed the award of the writ issued by the trial court. The court stated that otherwise the petitioner would have no remedy.

In 1939 the legislature passed a statute vesting jurisdiction in the Illinois Court of Claims over suits for damages for property damaged, but not taken, by the State. This statute was pleaded as a defense in O’Meara, which involved the same situation as Kingery. The court, citing Kingery, held the statute unconstitutional, saying:

“Section 13 of article 2 of the Illinois constitution makes absolute the right of a land owner to damages whenever his property is taken or damaged for public use. It makes no difference whether the damages are ascertained before or after the injury is inflicted.” People ex rel. O’Meara v. Smith (1940), 374 Ill. 286, 288, 29 N.E.2d 274, 275.

The next significant decision of the supreme court came in People ex rel. Haynes v. Rosenstone (1959), 16 Ill. 2d 513, 158 N.E.2d 577. The factual situation was the same. The petitioner sought a writ of mandamus against the Director of Public Works and Buildings for damages to land when there had been no taking by the State. The court, citing Kingery and a number of other cases which had followed it, held that the writ should issue. Even though the Court of Claims Act had been overhauled in 1945, as detailed above, the supreme court held:

“And for the reasons stated in the O’Meara case, we do not regard the possibility of securing relief in the court of claims, or even the pendency of petitioner’s claim in that court, as a bar to the relief here sought.” 16 Ill. 2d 513, 516, 158 N.E.2d 577, 579.

The common thread throughout these cases is that the State of Illinois, or one of its agencies, was the only defendant. Cases in which a municipality, or other entity, which is subject to a suit for damages, fall into a different category. This distinction was summed up in Granite City, where the court said:

“Further, in Rosenstone, there was no other party involved against whom the property owner could seek a remedy. The significance of this fact is evident from this court’s opinion in People ex rel. Pratt v. Rosenfield (1948), 399 Ill. 247. There, as in the instant case, the appellants, property owners, sought a writ of mandamus against both a city and the State. In denying the writ as to the State, this court reasoned:
‘Appellants seek the writ of mandamus against all of the appellees, saying that there is no other form of proceeding in which they may have relief against the three. Much reliance is placed by them upon the cases of People ex rel. First Nat. Bank v. Kingery, 369 Ill. 289, and People ex rel. Omeara v. Smith, 374 Ill. 286. The writ was allowed in those cases because a suit for damages could not be maintained against the Director of the Department of Public Works and Buildings and there was no other party against whom damages could be recovered. In the case at bar appellants allege liability against each appellee and say that each of the appellees has money available for the purpose of paying the consequential damages. The reason, therefore, existing in the Kingery and the Smith cases does not apply here.’
399 Ill. 247, 250.” (Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 270, 449 N.E.2d 852, 855.)

See also People ex rel. Tyson v. Kelly (1942), 379 Ill. 297, 40 N.E.2d 510; Horn v. City of Chicago (1949), 403 Ill. 549, 87 N.E.2d 642.

An inspection of the complaint in the instant case reveals that it falls into the first category, i.e., the State only is defendant. It follows that the petition should not have been dismissed. People ex rel. First National Bank v. Kingery (1938), 369 Ill. 289, 16 N.E.2d 761; People ex rel. O’Meara v. Smith (1940), 374 Ill. 286, 29 N.E.2d 274.

The trial court in its order placed great reliance on one sentence in the Granite City opinion: “We note parenthetically that, even if the State were to be held responsible for the'alleged condemnation, it is certainly questionable whether a writ of mandamus would be the appropriate remedy.” Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 269, 449 N.E.2d 852, 854.

We regard the court’s statement as dictum,' since the question specifically decided was that another entity existed, the city of Granite City, which was amenable in damages. As the supreme court itself said in Tyson:

“As the only question passed upon in the Grünewald case was the jurisdiction of this court, the language quoted above was unnecessary to the decision of that case, was therefore obiter dictum ***.” People ex rel. Tyson v. Kelly (1942), 379 Ill. 297, 302, 40 N.E.2d 510, 513.

The further observation of the Granite City court regarding the court of claims was of a general nature and not directed at the question before it. The court also observed (Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 268, 449 N.E.2d 852, 854) that the constitutional guaranty of just compensation was “codified” in the Eminent Domain Act. It follows that the right derives from the constitution itself and not from a “claim against the state founded upon any law of the State of Illinois” as provided in the Court of Claims Act. Ill. Rev. Stat. 1983, ch. 37, par. 439.8(a).

This is only just and proper. The constitution guarantees a jury trial in such cases. Jury trials are not provided in the court of claims. Furthermore, recovery in the court of claims is limited and subject to legislative appropriation. See Ill. Rev. Stat. 1983, ch. 37, par. 439.24.

In summary, the court of claims offers no remedy in the instant case. O’Meara specifically held against it; Rosenstone, decided after the 1945 amendments to the Court of Claims Act, held against it; a plain reading of the constitution forfends it.

However, having decided that it was error to dismiss the petition, we do not believe that the inquiry may end at that point. Rosenstone is instructive. In that case judgment for the petitioner was entered on the pleadings. The court said:

“But we think that it was error to direct the writ to issue. The motion for judgment presented for determination, upon the face of the pleadings, the legal effect of the uncontroverted factual allegations and the materiality of those that were disputed. The pleadings raised at least one specific factual issue: whether the present culvert is sufficient to drain surface water from the raised highway without causing it to back up onto petitioner’s land. Petitioner says it is not; defendant says it is. More generally, the pleadings leave unresolved the question of whether the raising and resurfacing of the highway created a new situation resulting in damage to the petitioner’s land. These questions must be resolved in favor of the petitioner before the State officer can be compelled to institute condemnation proceedings, the only purpose of which is to determine the amount to be awarded as damages. To justify issuance of the writ, the mandamus proceeding must determine the fact of damage. As the pleadings stand that fact is disputed, and it was therefore error to enter judgment for the petitioner on the pleadings.” People ex rel. Haynes v. Rosenstone (1959), 16 Ill. 2d 513, 517, 158 N.E.2d 577, 579.

So, in the instant case, the pleadings raise the question of access. The petitioners claim that access has been eliminated; the defendant claims that it has only been altered; that access is still possible through two clover-leaf interchanges which admittedly are .92 miles north of Hoechester Road or 1.23 miles south. It follows under Rosenstone that the fact of damage, in this case loss or not of access, must be determined in the mandamus proceeding. If no damage has occurred, the writ will not issue; if damage has occurred, the compensation will be determined in the eminent domain proceeding.

The right of access and its accompanying circumstances have received varied treatment in the courts of Illinois. All agree that there is a police power in the State to restrict access, provided that restriction is reasonable. (See, e.g., Ryan v. Rosenstone (1960), 20 Ill. 2d 79, 169 N.E.2d 360, and Department of Public Works & Buildings v. Mabee (1961), 22 Ill. 2d 202, 174 N.E.2d 801, concerning insurmountable medians in abutting highways.) A case somewhat similar to the instant one is Department of Public Works & Buildings v. Greenwell (1977), 45 Ill. App. 3d 159, 359 N.E.2d 780. There the property owner was foreclosed of any access to a new highway and the existing highway was terminated in a cul-de-sac east of the property. However, the owner had access to the new highway by traveling 800 feet west and taking a connecting road for a short distance. The appellate court said:

“Circuity of travel is not compensable. [Citation.] Defendant still has the same amount of frontage on existing Route 3 as she previously had. Because she has suffered no loss of direct access to existing Route 3, she can claim no damages as a result of the dead-ending of Route 3 one-quarter mile east of her property and the circuity of travel necessitated thereby.” 45 Ill. App. 3d 159, 163-64, 359 N.E.2d 780, 784.

In Department of Public Works & Buildings v. Wilson & Co. (1975), 62 Ill. 2d 131, 340 N.E.2d 12, there is a valuable compendium of authorities on the subject of access. In that opinion the court stated:

“There is some divergence among the States as to whether the issue of materiality of impairment of access is a question of law or fact. (See cases collected at 42 A.L.R.Sd 13, 71-75 (1972).) In our opinion, the better view is that it is a question of law for the court to determine in the first instance whether there has been an actionable taking or material impairment of access which entitles the property owner to compensation.” 62 Ill. 2d 131, 141, 340 N.E.2d 12, 17.

The order of the circuit court of Sangamon County is therefore reversed and the cause is remanded to that court with directions to reinstate the petition. The court shall then proceed to determine upon such evidence and upon such authority as it may see fit whether there has been a material impairment of áccess. If it so finds, then it shall issue the writ of mandamus compelling the defendant to file an eminent domain suit. If it finds that no material impairment has occurred, it shall again dismiss the petition.

Reversed and remanded with directions.

MILLS, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID B. KELLER, Defendant-Appellant.
    Fourth District
    No. 4—84—0240
    Opinion filed October 31, 1984.

      Robert G. Frederick, of Johnson, Frank, Frederick & Walsh, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Joseph J. Ciaccio, Sr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

After an implied consent hearing under section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501.1), the trial court found defendant David Keller had refused to take a breath test. An implied consent hearing covers only the issues of: (1) whether defendant was placed under arrest for an offense described in section 11 — 501; (2) whether the arresting officer had reasonable grounds to believe that defendant was driving while under the influence of alcohol; and (3) whether defendant refused to submit to the test upon the request of the officer. (Ill. Rev. Stat. 1983, ch. 95x/2, par. 11 — 501.1(c).) Defendant appeals, contending the State failed to meet its burden of proof on all three issues.

The State’s only witness was a Champaign police officer. On November 12, 1983, the officer observed defendant’s automobile drive through two red lights and weave across the center line three times. After stopping the car, the officer asked defendant for his license. Defendant got out of his car and leaned against it for balance while attempting to locate his license. Defendant’s speech was slurred and confused. His breath smelled of alcohol. The officer arrested defendant and drove him to the police station.

At the station, the officer informed defendant that if he did not consent to a breath test, then he could lose his license for six months. Defendant stated he did not understand and needed some time to think about it. The officer told defendant to think about it. He asked to go to the restroom. The officer accompanied him. In the restroom, defendant attempted to get a drink from a water fountain. The officer informed defendant that he could not drink water until he decided if he would take the test. Defendant looked at the officer and said he would take a drink anyway. As defendant bent over the fountain, the officer placed his hand on defendant’s shoulder to pull him away. While he was being pulled away, defendant’s glasses fell off his face into a toilet located next to the fountain. Defendant became agitated and told the officer to retrieve the glasses, but the officer refused. Defendant became angrier and combative. The officer, along with two fellow officers, restrained defendant and placed him into a cell. The officer again asked if defendant would submit to the test. Defendant told the officer what he could do with the test, and the officer responded, stating he considered the defendant’s remarks as a refusal.

The officer’s report of the arrest was also introduced into evidence. The only discrepancy between the report and the officer’s testimony is that the report failed to mention a second request for defendant to submit to the test. The report did state, however, that the officer advised defendant he was being marked as refusing to take the test.

After the State finished examining the witness, the court requested more information on defendant’s identity. The officer refreshed his memory from a traffic ticket which he had issued to defendant. The officer described defendant and testified that defendant’s name and description matched those given on his driver’s license. Defendant moved for a directed verdict, alleging the identification was insufficient and the ticket was invalid. The court denied the motion.

Defendant then testified on his own behalf. Defendant stated he agreed to take the test when the officer first asked him. He said he wanted to wait, and the officer told him he could wait 15 minutes. He requested to use the restroom, and he went there alone. The officer never told him that he could not drink water. When he went to get a drink from the fountain, the door opened and he was grabbed from behind. His glasses fell into the toilet. He became upset and asked the officer to get them out, but the officer refused. Defendant repeated his request two more times. He raised his voice the third time, and another officer entered the restroom and grabbed him. He was then taken to a cell and never given a chance to take the test.

Section 11 — 501.1 outlines the procedures to be followed when requesting a driver to submit to a breath test. If the driver refuses, the arresting officer must file a sworn statement concerning the arrest and refusal. The driver then has the opportunity to request a hearing. The purpose of the hearing is to provide objective evidence of defendant’s refusal to consent to the test after being lawfully arrested for driving while under the influence of alcohol and to preserve defendant’s due process rights. (People v. Finley (1974), 21 Ill. App. 3d 335, 340, 315 N.E.2d 229, 232-33.) Proceedings under the implied consent statute are civil in nature. (People v. Frye (1983), 113 Ill. App. 3d 853, 447 N.E.2d 1065.) This court has declared that the implied consent statute is to be liberally construed to achieve its purpose of protecting citizens of this State upon the highways. People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 503, 454 N.E.2d 1166, 1168.

Defendant contends the State presented insufficient evidence of his arrest. In Ellerbusch, we noted the issuance of a traffic ticket is a convincing way in which the fact of arrest may be established. (118 Ill. App. 3d 500, 503, 454 N.E.2d 1166, 1168.) In this case, the trial court took judicial notice of the ticket issued to defendant.

Defendant maintains the ticket was invalid. The ticket charged him with “driving under the influence of intoxicating liquor.” Section 11 — 501 of the Code has been changed to proscribe driving while “under the influence of alcohol.” (Ill. Rev. Stat. 1983, ch. 95Vz, par. 11 — 501.) Defendant concludes the invalid ticket cannot be proof of arrest. We recently rejected this argument in People v. Horberg (1984), 123 Ill. App. 3d 456, 462 N.E.2d 831, by holding that an allegedly invalid ticket is sufficient proof of arrest for purposes of an implied consent hearing.

Defendant further argues the State failed to meet its burden of proving his arrest because the officer did not identify defendant in court. The record discloses defendant was not in court during the officer’s testimony. Moreover, both the ticket and the officer named defendant as the offender. The general rule is that “identity of name gives rise to a rebuttable presumption of identity of person.” (People v. Davis (1983), 95 Ill. 2d 1, 31, 447 N.E.2d 353, 368.) Once such a presumption is raised, the burden of production shifts, and the opposing party “must come forward with evidence that is ‘sufficient to support a finding of the nonexistence of the presumed fact.’ ” (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 463, 448 N.E.2d 872, 877.) Defendant offered no evidence to rebut the presumption that he had been arrested.

Defendant asserts he suffered prejudice due to the trial court’s questioning of the officer on the identification issue. The court inquired whether the name on the driver’s license matched the name that the officer had identified as the offender. The trial court has the right to question witnesses within its discretion and based upon the circumstances of the case, especially in trials without a jury. (People v. Palmer (1963), 27 Ill. 2d 311, 189 N.E.2d 265.) Furthermore, when the court initiated its inquiry, the officer had already identified defendant’s name. As defendant’s name was sufficient to identify him in the absence of evidence to the contrary, defendant suffered no prejudice by the court’s examination.

Defendant contends the officer’s testimony as to what the driver’s license revealed was hearsay and in violation of the best evidence rule. Again, the officer had already identified defendant’s name. Moreover, much latitude is given in the admission of testimony to establish the identity of a person or a person’s name, for identity can usually be established only through some form of hearsay. Scales v. Texas Liquor Control Board (Tex. Civ. App. 1946), 192 S.W.2d 466, 468.

Defendant next argues the State failed to prove the officer had reasonable grounds to arrest defendant for driving while under the influence of alcohol. Defendant complains because the officer never revealed his experience in observing persons under the influence of alcohol. Nor did he testify as to his opinion of whether defendant was intoxicated. The sworn statement of the officer contains his conclusion that defendant was intoxicated. The purpose of the hearing is to provide objective evidence of the offense. (People v. Malloy (1980), 83 Ill. App. 3d 344, 347, 403 N.E.2d 1221, 1224.) The officer’s description of defendant’s driving, his lack of balance, his slurred speech, and the smell of alcohol on his breath certainly constitute reasonable grounds for the arrest.

Defendant alleges the officer failed to give him a clear warning of all of the ramifications resulting from a refusal to take the test. Whether defendant was inforfned that his driving privileges would be suspended if he refused to submit to the test was previously an issue in an implied consent hearing. (People v. Malloy (1980), 83 Ill. App. 3d 344, 403 N.E.2d 1221.) Now, however, the statute expressly provides this matter shall not be an issue at the hearing. Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 501.(q).

Finally, defendant asserts he never refused to take the test. He maintains he agreed to take the test, but through no fault of his own, he was never given the opportunity. The officer’s testimony contradicts defendant’s on this point, and the trial court was not obliged to believe defendant. Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 347 N.E.2d 278.

Defendant cites People v. Brennan (1984), 122 Ill. App. 3d 602, 461 N.E.2d 1067, where the court held there cannot be a refusal if there was neither a proper request nor an opportunity to take the test. In Brennan, both defendant and the arresting officer testified defendant agreed to a roadside request to take the test. Defendant testified she was never offered the test or asked a second time to take it. The officer gave contradictory testimony, at times stating defendant refused the test and at other times stating she never directly refused. The court found that the officer based his conclusion on his silent and subjective interpretation of defendant’s words and conduct.

Unlike Brennan, the officer’s testimony in the present case was perfectly consistent. In the restroom, he told defendant not to drink any water before deciding whether to take the test. Defendant heard him but chose to ignore the officer’s directive. When he became uncooperative, he had to be restrained and placed in a cell. In People v. Schuberth (1983), 115 Ill. App. 3d 302, 450 N.E.2d 459, the court held defendant’s conduct in not following instructions while taking the test can amount to a refusal even though defendant agreed to take the test. Here, the officer testified defendant never agreed to take the test. The court was justified in inferring from defendant’s recalcitrant behavior that he had refused to submit to the test. Furthermore, the officer testified he made a second request, which the defendant refused. Although this request was not in the officer’s report, the report did disclose the officer informed defendant that he considered defendant’s words and conduct as a refusal. Defendant’s failure to protest also leads to the conclusion that he had refused to take the test. The court’s decision, therefore, is not contrary to the manifest weight of the evidence.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

MILLS, P.J., and GREEN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN S. WISE, Defendant-Appellant.
    Fourth District
    No. 4—84—0217
    Opinion filed October 26, 1984.

      Donald G. Baird, of Baird, Latendresse, McCarthy & Rowden, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Timothy J. Londrigan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following a bench trial, defendant was convicted of disobeying a traffic control device in violation of section 11 — 306(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 9572, par. 11 — 306(c)). He now appeals, contending that the trial court erred in allowing the State to amend its information before trial and that he was not proved guilty beyond a reasonable doubt. We affirm.

Defendant was originally charged with disobeying a traffic control device in violation of section 11 — 305(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 9572, par. 11 — 305(a)), on September 16, 1983. On October 17, 1983, he appeared and entered a plea of not guilty. After defendant waived a jury, the cause was allotted for a bench trial on January 4, 1984. On that date, before the trial, the State’s Attorney moved to amend the citation (which served as the information) to state the more specific charge of disobeying a traffic control device (steady red light) in violation of section 11 — 306(c) of the Illinois Vehicle Code. The court allowed the motion, and the cause proceeded to trial. After both sides presented the conflicting testimony of various witnesses, the trial concluded on January 5, 1984. The trial court took the cause under advisement, and on January 17, 1984, found the defendant guilty as charged. On February 21, 1984, defendant’s post-trial motion was denied and he was fined the sum of $500. He filed a timely notice of appeal on March 20,1984.

Defendant first contends that an amendment to an information cannot add a new or different offense from the offense stated in the original information. He argues that he should have been arraigned again and allowed to plead to the allegedly new offense that he was charged with. The State responds that the amended information did not allege a new offense or differ from the original information in any material way. Under the circumstances, the State argues that it was unnecessary to arraign defendant a second time.

As codified in section 111 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 111 — 5), and construed by the courts, the general rule in Illinois is that formal defects in in-formations may be cured by amendment, while fundamental or substantive defects may not. (People v. Foust (1980), 82 Ill. App. 3d 516, 401 N.E.2d 1329.) If the amendment involves no material change, the original information is not abandoned and trial may be had upon it as amended, without a renewal of the formalities originally observed. (People v. Clarke (1950), 407 Ill. 353, 95 N.E.2d 425.) Therefore, the issue to be resolved here is whether the amendment altering the section number of the Illinois Vehicle Code in the information was a material change or a correction of a mere formal defect.

The original information alleged that defendant had “Disobeyed Traffic Control Device” in violation of section 11 — 305(a) of the Illinois Vehicle Code. As amended, the information alleged that defendant had “Disobeyed Traffic Control Device (Steady Red Light)” in violation of section 11 — 306(c) of the Illinois Vehicle Code. Both of these sections concern the failure to obey traffic control devices, the latter being the more specific. The penalties applicable to each section are identical. Defendant charges that this amendment resulted in the charge of a completely new offense and, as such, constituted a material alteration of the information. We disagree.

An error in the citation of a statutory provision is a formal rather than a substantive defect, particularly where, as here, the insertion of the words did not change the substance of the charge. (People v. Castro (1983), 113 Ill. App. 3d 265, 446 N.E.2d 1267.) Similarly, the sections involved here are not separate and distinct offenses; they are simply different ways in which the same offense can be committed. (People v. Castro (1983), 113 Ill. App. 3d 265, 446 N.E.2d 1267; People v. Clark (1981), 96 Ill. App. 3d 491, 421 N.E.2d 590.) We view the amendment of the section number here as a correction of a mere formal defect. The lack of any indication of surprise or prejudice to defendant supports our conclusion that this was a formal defect. (People v. Clarke (1950), 407 Ill. 353, 95 N.E.2d 425; People v. Foust (1980), 82 Ill. App. 3d 516, 401 N.E.2d 1329.) The trial court did not err in allowing the amendment.

Defendant next contends that he was not proved guilty of disobeying a traffic control device beyond a reasonable doubt. It is undisputed that defendant and his passenger were driving south on U.S. Highway 51 in Decatur on the night of September 16, 1983, when the truck he was driving struck a car attempting to turn from Imboden Drive onto the northbound lanes of U.S. 51. Because of a softball tournament at the nearby athletic field, a State trooper had been assigned manually to control the traffic lights at the corner of Imboden and U.S. 51 on that night. The sole issue at trial was the color of the light when defendant drove through the intersection.

The Illinois State trooper, a Decatur police officer (who had been assisting him), the driver of the car that was struck by defendant’s truck, and the driver of the car behind the car that was struck all testified positively that the light was green for Imboden Drive at the time of the accident. Defendant and a pedestrian near the intersection at the time testified to the contrary. Defendant’s testimony was impeached by the testimony of the police officers who questioned him soon after the accident. According to their testimony, defendant stated that he was unsure of the color of the traffic light and that he thought it might have been a flashing yellow light. Furthermore, defendant’s girlfriend, who was a passenger in his truck, said, “See Brian, I told you that you were wrong,” in response to a police officer’s statement that it appeared that defendant had disobeyed a red light. Additionally, a traffic engineer testified that there was no possibility that the traffic lights could have been green for Imboden Drive and U.S. 51 at the same time.

The resolution of factual disputes and the assessment of the credibility of the witnesses are for the trier of fact, and a reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt remains. (People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1639.) On the basis of the testimony outlined above, we cannot say that the trial court erred in finding the defendant guilty beyond a reasonable doubt.

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

Affirmed.

MILLS, P.J., and GREEN, J., concur.


author: JUSTICE BARRY JUSTICE WEBBER,

text:
    LONG-AIRDOX COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Archie Lyle, Appellee).
    Fourth District (Industrial Commission Division)
    4—84—0103WC
    Opinion filed October 31, 1984.
    WEBBER, J., dissenting.

      Gary L. Borah, of Heyl, Royster, Voelker & Allen, of Springfield, for appellant.
    James R. Carey, of Paul L. Pratt, P.C., of East Alton, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The claimant, Archie Lyle, was injured in a car accident while working for the respondent, Long-Airdox Company. Lyle applied for and received workers’ compensation benefits by application filed under the West Virginia Workmen’s Compensation Act. Later, he filed an application for adjustment of claim before the Illinois Industrial Commission for benefits. (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) The respondent filed a motion to dismiss Lyle’s complaint based on lack of jurisdiction. The arbitrator denied the respondent’s motion and awarded Lyle a total of 547 weeks of permanent compensation benefits, as well as about one year of temporary total benefits. On review, the Industrial Commission affirmed. The circuit court of Mason County confirmed the Commission’s decision. The respondent appeals.

Lyle, a resident of Missouri, was hired by the respondent, a West Virginia company, as a salesman of mining equipment. On June 19, 1978, his first day of work, Lyle was injured in a car accident. The accident occurred in Illinois while Lyle was traveling with his supervisor, Stan Simmering, to Peoria, Illinois, on a sales-related trip. Simmering died as a result of his injuries. Lyle was severely injured and was unconscious for most of the 2Mz months he was hospitalized. As a result of the accident, his skull was fractured; most of the bones in his face were fractured; 15 teeth were knocked out; he lost his sense of smell; and his left arm and ankle were broken. Ultimately, he underwent plastic surgery for his face and head, his spleen was removed, and he was treated for a peptic ulcer. He still has a decreased sense of taste.

On August 15, 1978, while Lyle was still hospitalized, he signed an application for compensation benefits with the West Virginia Workmen’s Compensation Fund. Lyle acknowledged that his signature was on the form, but did not remember signing it. In addition, he could not recall filling out the form and testified that the handwriting used to fill out the form was not his. E. G. Lar rick, Jr., a vice-president for the respondent, testified he believed that Katherine Simmering had filled out the form. Mrs. Simmering was the wife of Stan Simmering and had reported back to the respondent in regard to the condition of Simmering and Lyle. Pursuant to the claim, the respondent voluntarily paid medical expenses and temporary total disability benefits to Lyle totaling $66,420.65.

The current status of Lyle’s West Virginia claim is unclear. On August 23, 1978, the commissioner of the West Virginia Workmen’s Compensation Fund sent a letter to the respondent stating that Lyle’s claim was compensable and that temporary total disability benefits were to be paid to him at the rate of $208 per week. In a letter issued on October 4, 1978, the commissioner set aside the ruling of August 23, 1978, stating that Lyle was not an employee within the meaning of the West Virginia Workmen’s Compensation Act. A third letter, dated October 19, 1978, set aside the order of October 4, 1978, and again held Lyle’s claim to be compensable. Then, on October 25, 1978, the director of the processing division of the West Virginia Workmen’s Compensation Fund sent another letter to the respondent. The letter referred to the order of October 4, 1978, and stated that the respondent had overpaid temporary total disability benefits, entitling it to a refund of $2,831.51. No hearing or final disposition of Lyle’s claim in West Virginia is reflected in the record.

Approximately one year after the accident, Lyle returned to work for the respondent in his position as a salesman. On March 13, 1979, he filed an application for adjustment of claim before the Illinois Industrial Commission to obtain benefits under the laws of the State of Illinois. The respondent has separate workers’ compensation policies that cover claims filed for West Virginia benefits and claims filed for Illinois benefits. The West Virginia policy has a deductible of $250,000 per occurrence, the accident involving Simmering and Lyle constituting one occurrence. The total medical and temporary total disability benefits paid to Lyle and the widow of Stan Simmering have reduced the amount of the deductible to $49,968.48. The Illinois policy has a $100,000 deductible. To date, the respondent has made no payments towards that deductible.

As mentioned above, the respondent filed a motion to dismiss Lyle’s application for lack of jurisdiction before the arbitrator. The arbitrator denied the motion and awarded him temporary total disability benefits in the amount of $211.53 per week for 513/7 weeks and specific permanent disability benefits in the amount of $211.53 per week for 547 weeks.

On appeal, the respondent argues that the benefits Lyle previously received as a result of his claim for compensation in West Virginia constitute an election of remedies which now precludes him from recovering benefits under Illinois law.

The Illinois Workers’ Compensation Act provides that an employee who has a cause of action for an injury arising out of and in the course of his employment “may elect to pursue his remedy in the State where injured or disabled, or in the State where the contract of hire is made, or in the State where the employment is principally localized.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.1(b)(2).) Under this section a claimant may choose to file his claim in any of the three forums mentioned above. (District 141, International Association of Machinists & Aerospace Workers v. Industrial Com. (1980), 79 Ill. 2d 544, 404 N.E.2d 787.) In this regard, a claimant will be said to have chosen to pursue his remedy in a particular jurisdiction when (1) double compensation to the petitioner is threatened or suggested; or (2) the respondent has actually been misled by the petitioner’s conduct; or (3) res judicata can be applied. Faber, Coe & Gregg, Inc. v. First National Bank (1969), 107 Ill. App. 2d 204, 211, 246 N.E.2d 96, 100.

In the present case, the car accident in which Lyle was injured occurred in Illinois. Thus, he could properly choose to pursue his workers’ compensation claim in Illinois and jurisdiction existed in Illinois to determine the merits of his claim. However, we must decide here whether Lyle elected to pursue his remedy in West Virginia and is therefore precluded from recovering benefits under Illinois law because he signed the West Virginia workers’ compensation application and accepted the benefits voluntarily paid to him by the respondent.

In applying the doctrine of election of remedies to the facts in this case, the first factor to be considered is the threat of double compensation. Double recovery is not a threat here since the payments made by the respondent pursuant to the West Virginia workers’ compensation claim were credited against the award made by the arbitrator in Illinois. The claimant himself acknowledges that double recovery is not possible and states that he is not seeking it.

In a similar situation, the United States Supreme Court held that receipt of workers’ compensation benefits in the State of employment is not a bar to a subsequent award in the State in which the injury was received unless the law of the State of employment indicates that its workers’ compensation statute is completely exclusive or designed to preclude any recovery by proceedings brought in another State for injuries received there. (Industrial Com. v. McCartin (1947), 330 U.S. 622, 91 L. Ed. 1140, 67 S. Ct. 886.) In the present case, the respondent does not contend that the West Virginia workers’ compensation statute is completely exclusive, and there is no indication that the statute was designed to preclude claimants such as Lyle from proceeding in Illinois to recover benefits.

As to the second factor, the respondent maintains that it made a substantial change in position in reliance on Lyle’s intent to pursue benefits in West Virginia. However, the respondent has offered no evidence in support of this proposition, and we find no support for it in the record. Clearly, Lyle had the right to pursue his remedy in Illinois or in West Virginia. The respondent had no choice in the matter and was under a duty to pay any benefits awarded to Lyle regardless of his choice. The fact that the respondent’s deductible in Illinois was lower than its deductible in West Virginia is irrelevant. The deductibles, as they applied to Lyle, could not be changed by the respondent once the accident occurred. Thus, Lyle did not cause the respondent to take a position which would have been any different if he had initially filed in Illinois. The respondent is also not prejudiced by the subsequent Illinois claim and award since, as indicated above, the payments made under the West Virginia claim have been favorably credited to the respondent. In addition, we believe that the respondent is in no position to object to the fact that an application was filed for benefits in West Virginia. From a review of the record it would appear that it was only through the efforts of the respondent that the West Virginia application was even filed.

Finally, res judicata does not bar Lyle’s claim in Illinois because there has been no final judgment in the West Virginia proceedings which would render the doctrine applicable.

We find that Lyle’s actions were not sufficient under Illinois law to constitute an election of remedies. Therefore, jurisdiction existed in Illinois to determine the merits of his claim.

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

Affirmed.

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

JUSTICE WEBBER,

dissenting:

I cannot accept the conclusions reached by the majority. The crux of the matter is the status of the West Virginia claim, which the principal opinion admits is unclear.

If, in fact, the petitioner has no claim in West Virginia, it cannot be said that he has made an election of remedies, but that is the very point in issue. The credit of $66,420.65 on the Illinois claim does not solve the problem. From the petitioner’s standpoint, it does forfend a double recovery, but there is nothing to indicate that West Virginia will recognize it when the next claim is filed in that State. Unless there is affirmative evidence in the record that West Virginia will consent and concur in such an arrangement, the respondent and its insurance carriers may well face a double loss on the deductibles. The record is not clear whether the deductibles, either in West Virginia or Illinois, or both, apply to individual claims or to total claims in those jurisdictions. There is also a suggestion in respondent’s brief that subrogation rights differ as between West Virginia and Illinois.

Apart from the question as to the very existence of a remedy in West Virginia, but assuming arguendo that there is one, I feel that petitioner’s evidence is weak that he did not elect to pursue it in West Virginia. We have only his statement that he was in a debilitated condition when he signed the application form. He admits his signature, and further uncontradicted testimony is that the balance of the form was filled out by the wife of his fellow employee. There is no indication of pressure or overreaching by the respondent.

In short, the petitioner now stands with one foot in each of two camps, forcing the respondent into the same position. This is untenable under any notion of due process.

I would reverse the order of the circuit court and remand the cause to the Commission with directions to determine the precise status of the West Virginia claim. In the event it proves to be still viable, the Commission should then dismiss the claim here for lack of jurisdiction. On the other hand, if West Virginia is willing to close its books on the matter and allow whatever credits are equitable to both the respondent and the petitioner, then the Commission should make a new order incorporating these matters and take further proceedings accordingly.


author: JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KELWIN GAILES, Defendant-Appellant.
    Fifth District
    No. 5—83—0455
    Opinion filed October 26, 1984.

      Randy E. Blue and John R. Abell, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant appeals from his conviction, after trial by jury in the circuit court of St. Clair County, of possession of more than 500 grams of a substance containing cannabis. Two issues are presented for our review: whether the cannabis found in the defendant's automobile should have been suppressed because his warrantless arrest was based upon information supplied by an unidentified informant insufficient to establish probable cause, and whether the defendant’s consent to a search of his car was rendered void by the illegality of the arrest.

On February 23, 1983, at approximately 8:30 p.m., an unidentified person telephoned the Fairview Heights police department and informed them that three or four black males had left East St. Louis that afternoon at 2 or 3 p.m., en route to Terre Haute, Indiana, for the purpose of obtaining 20-25 pounds of marijuana. He identified the men as James Wilkerson, Calvin, and “Buggy.” The informant stated that the men would return to East St. Louis between 11 p.m. and midnight, and would arrive at the 2100 block of Kansas Street. The car they were driving was described as a very clean black-over-blue 1976 Chevrolet Monte Carlo, with two-inch whitewall tires and a CB whip antenna, belonging to James Wilkerson. This information was relayed to the East St. Louis police department. At approximately 11 p.m., the East St.' Louis police conducted surveillance in the 2100 block of Kansas Street, and saw a parked Monte Carlo fitting the description supplied by the informant. The police maintained their watch of the area.

At approximately 12:45 a.m., the informant called the police a second time, stating that the travelers had switched cars and were now riding in a brown 1972 Pontiac Catalina. This information was provided to the surveillance unit and at 1:25 a.m., they spotted a car matching the second description rolling to a stop in front of 2136 Kansas Street. The police ordered the occupants out of the car with their hands in the air. The purse of the female passenger was searched without her consent, and a small quantity of cannabis was discovered.

At the suppression hearing, Officer Marion of the East St. Louis police department testified that the defendant, Kelwin Gailes, was driving the car, and that the occupants were Anthony “Boggie” Nicholson, James Wilkerson, and a young black woman. Officer Marion was acquainted with Wilkerson and knew him to be a marijuana dealer in the past. Officer Marion told the defendant why his car was stopped by the police and asked for permission to search the trunk. Gailes responded by saying, “I don’t mind; I have nothing to hide.” When the defendant opened the trunk, Officer Marion smelled the aroma of cannabis, and upon closer inspection he discovered two brown paper bags containing six large plastic bags of marijuana weighing SVz pounds. The car’s occupants were then taken into custody.

The legality of the arrest depends upon whether there was probable cause to stop and search the automobile in question and subsequently arrest the defendant, considering the totality of the facts and circumstances known to the East St.- Louis police at the time. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) The recent Gates decision, which explained or supplanted the more rigid Aguilar-Spinelli test (Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509; Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584) in determinations of probable cause, relies on a common-sense approach in balancing the reliability and unreliability of all the details known to the arresting officer prior to the stop. Though forbidden to conduct a de novo review (Massachusetts v. Upton (1984), 466 U.S. 727, 80 L. Ed. 2d 721, 104 S. Ct. 2085), we must scrutinize the record facts under a Gates analysis in order to ascertain whether the trial judge committed manifest error in refusing to suppress the objectionable evidence, warranting a reversal (People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766, 769).

Details provided to the East St. Louis police consisted of a description of two cars, the first of which was quite detailed, and the partial identification of three black males who were purportedly making a drug run which would terminate at the Kansas Street location. Verification of the facts offered by the informant included the discovery of the parked Monte Carlo precisely matching the description supplied in the tip, and later observation of the brown Pontiac occupied by four black persons, one of whom was well known to the police as a drug dealer. The time frame predicted by the informant proved to be inaccurate, but the discrepancy was not so wide as to discount the information. These corroborating facts, independently ascertained, are, in our view, sufficient to establish probable cause under the Gates test.

The anonymous letter which precipitated the Gates arrest included abundant information, with details that indicated an intimate knowledge of the defendants and their plans. Predictions which were verified by law enforcement personnel included precise identity and address and travel plans to south Florida, with accurate details of time and the methods used in the drug “run.” Most tellingly, the information supplied and later corroborated harmonized convincingly to establish the reliability of the information and the likelihood of criminal conduct. Similarly in the instant case, the totality of those facts known and verified justified a belief in the likelihood of the predicted criminal conduct. Though each detail may be unsuspicious when viewed independently, the cohesive whole supported a finding of probable cause.

The existence of sufficient factual corroboration is not our sole basis for concluding that probable cause was demonstrated in the case at bar. The Gates court approved use of the Aguilar-Spinelli elements as highly relevant factors in the determination of probable cause. (Illinois v. Gates (1983), 462 U.S. 213, 230, 76 L. Ed. 2d 527, 543, 103 S. Ct. 2317, 2327-28.) Viewing this informant’s tip by a common sense approach, it can easily be concluded that the informant’s knowledge of the evening’s events sprung from an intimate familiarity with the plans of the defendants. Additionally, the information’s “update” reinforced its authenticity. Therefore, though the informant’s identity was never discovered, the reliable nature of his information was established. We conclude, therefore, that the trial court correctly denied defendant’s motion to suppress.

Because we have affirmed the lower court’s determination of the legality of the arrest, it is unnecessary to address defendant’s second point.

For the reasons stated, the conviction is affirmed.

Affirmed.

WELCH, P.J., and HARRISON, J., concur.


author: JUSTICE KASSERMAN JUSTICE WEBBER,

text:
    PEGGY SMITH, Appellee, v. THE INDUSTRIAL COMMISSION et al. (A.O. Smith Corporation, Appellant).
    Fifth District (Industrial Commission Division)
    No. 5—84—0099WC
    Opinion filed October 3, 1984.
    Rehearing denied November 13, 1984.
    WEBBER, J., dissenting.
    William L. Rogers, of Keefe & DePauli, P.C., of Fairview Heights, for appellant.
    Larry A. Calvo, of Calvo and Guzzardo, of Granite City, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

On October 29, 1971, Raymond Smith suffered a severe electrical shock in the course of his employment with respondent, A. 0. Smith Corporation (A. 0. Smith Corp.). He became comatose and died on June 3, 1980, without ever regaining consciousness. Petitioner, Peggy J. Smith, who is decedent’s widow, filed an application for adjustment of claim seeking to obtain the benefits in effect at the time of her husband’s death on June 3, 1980, rather than those in effect at the time of decedent’s original injury on October 29, 1971. An arbitrator found that A. 0. Smith Corp. had complied with the law in effect at the time of the injury and, therefore, denied petitioner’s claim. The Industrial Commission affirmed the arbitrator’s decision. The circuit court of Madison County set aside the decisions of the arbitrator and the Industrial Commission and found that the law governing benefits at the time of the death of petitioner’s husband should apply. A. 0. Smith Corp. has perfected the instant appeal to this court.

The following facts are undisputed: At the time of his injury Raymond Smith was 44 years of age, was married and had three children under 18 years of age. At the time of Mr. Smith’s death he was survived by his widow and one child under the age of 18. The earnings of Mr. Smith during the year prior to his injury were $15,600, and his average weekly wage was $300. Survivor’s benefits due on October 29, 1971, the time of the original injury, amounted to $34,034, and A. O. Smith Corp. has made payments in excess of this amount.

The arbitrator ruled that since A. O. Smith Corp. had complied with the law in effect on October 29, 1971, the time of Mr. Smith’s injury, no further payments were due and owing. The Industrial Commission affirmed the decision of the arbitrator and held that the amount of the benefits due to petitioner should be determined by the law in effect at the time of the injury. The circuit court set aside the decision of the Industrial Commission and found that the law in effect on June 3, 1980, the time of Mr. Smith’s death, governed as to the amount of benefits due.

Thus, the sole issue before this court is whether the benefits due dependents under the Workers’ Compensation Act are governed by the law in effect at the time of an employee’s original injury or at the time of an employee’s resulting death.

This issue has been considered by the courts of various States. Many jurisdictions hold that the rights of an employee’s dependents are governed by the law in force at the time of the employee’s death. (E.g., Booker v. Duke Medical Center (1979), 297 N.C. 458, 256 S.E.2d 189; Sizemore v. State Workmen’s Compensation Commissioner (W. Va. 1975), 219 S.E.2d 912; McAllister v. Board of Education (1964), 42 N.J. 56, 198 A.2d 765; State ex rel. Jones & Laughlin Steel Corp. v. Dickerson (1953), 160 Ohio St. 223, 115 N.E.2d 833; Peterson v. Federal Mining & Smelting Co. (1946), 67 Idaho 111, 170 P.2d 611.) The rationale for these decisions is that the workmen’s compensation statute confers upon an employee’s dependents a new and independent right to compensation. (See 81 Am. Jur. 2d Workmen’s Compensation sec. 89 (1976); 99 C.J.S. Workmen’s Compensation sec. 21(c), at 138 n.34 (1958).) Other jurisdictions, however, have held that the statutory provisions in effect at the time of the original injury control a dependent’s rights. (E.g., Iverson v. Argonaut Insurance Co. (1982),_Mont.___, 645 P.2d 1366; Horton v. Fleming Co. (1979), 3 Kan. App. 2d 121, 590 P.2d 594; Collier v. Hope Coal Co. (Ky. 1954), 269 S.W.2d 278; Beausoleil’s Case (1947), 321 Mass. 344, 73 N.E.2d 461; Riggs v. Lehigh Portland Cement Co. (1921), 76 Ind. App. 308, 131 N.E. 231.) These latter decisions appear to be based upon the theory that the workmen’s compensation act does not create new rights of action in the dependents of a deceased employee but rather that the right of the employee merely survives for the dependent’s benefit. See Annot., 82 A.L.R. 1244 (1933).

Illinois courts have recognized that a dependent’s claim for benefits under the Workers’ Compensation Act is not derivative but instead constitutes an independent cause of action. (General American Life Insurance Co. v. Industrial Com. (1983), 97 Ill. 2d 359, 365, 454 N.E.2d 643, 646; Burke v. Industrial Com. (1938), 368 Ill. 554, 556, 15 N.E.2d 305, 307-08; American Steel Foundries v. Industrial Com. (1935), 361 Ill. 582, 589, 198 N.E. 687, 690.) Given this premise, it necessarily follows that the law in effect at the time of the employee’s death would control petitioner’s recovery in the case at bar. We conclude, therefore, that since a dependent’s right to receive compensation does not arise until the injured employee’s death, the amount of such benefits is determined by the law in effect at that time. In the instant case the amount of death benefits due petitioner is to be determined by the law in effect on June 3, 1980.

We further conclude that Grigsby v. Industrial Com. (1979), 76 Ill. 2d 528, 394 N.E.2d 1173, and Stanswsky v. Industrial Com. (1931), 344 Ill. 436, 176 N.E. 98, relied upon by respondent A. O. Smith Corp., are inapposite. Grigsby involved a claim by an injured employee for benefits which included an increase in benefits enacted by the legislature subsequent to his injury but before the decision of the Industrial Commission. Stanswsky also was not a derivative claim. Instead, it involved a claim filed by an employee’s widow for that portion of the employee’s workers’ compensation award that remained unpaid on the date of the employee’s death, his death having resulted from causes which were not related to the injury for which compensation was being paid. We find both of these cases to be inapplicable to the instant case.

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

Affirmed.

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

JUSTICE WEBBER,

dissenting:

While I am appreciative of the logical precision of the syllogism constructed by the majority, I feel constrained to depart from its conclusion for the reason that it ignores an essential element in a dependent’s cause of action. While it is true that such a cause of action is independent and not derivative, nevertheless an integral condition of that cause of action is the existence of an injury to the worker resulting in his death. This is found in the statute itself, which states, “The amount of compensation which shall be paid for an accidental injury to the employee resulting in death is:” (Ill. Rev. Stat. 1983, ch. 48, par. 138.7). Thus, while the cause of action is independent, it is only inchoate until the death occurs. The fact of its independent nature does not ipso facto answer the question of the measure of damages to be applied.

The authorities cited by the principal opinion for its conclusion are not helpful. American Steel Foundries held that a prior settlement agreement by the deceased employee did not bar the widow’s claim for death benefits. Burke was concerned with a limitations question: whether the widow must file within one year of the accident or within one year of the death. General American Life was concerned with questions of intervention. All of these cases reiterate the axiom that the dependent’s cause of action is independent, but none touches the matter of the measure of damages for the plain reason that the same damages applied both before and after the precise questions presented in those cases: abatement, limitations, and intervention.

Nor can I countenance the summary rejection of Stanswsky and Grigsby. Quite to the contrary, I find Stanswsky dispositive. In that case the worker was injured in January 1929. The statute then in force made no provision for the continuation of uncollected benefits to his dependents following his death. The statute was amended, effective July 1, 1929, to provide for such continuation. An award was made to the worker on July 23, 1929, and he died from causes unrelated to the accident on September 3, 1929. His widow sought continuation under the amended statute. The supreme court rejected the claim, saying:

“At the time of the accidental injury in this case the law defined the rights of the employee and circumscribed the limits of the employer’s responsibility. It is clear that such rights to compensation as existed on the date of the injury in January, 1929, could not be enlarged or diminished by an act of the legislature which became effective in July, 1929. *** The law in effect at the time of the injury governs the rights of the parties and not the law effective at the time the award is made or at the death of the injured person.” 344 Ill. 436, 439-40, 176 N.E. 898.

Stanswsky was followed and cited in Wilson-Raymond Constructors Co. v. Industrial Com. (1980), 79 Ill. 2d 45, 51, 402 N.E.2d 584, 587, where the supreme court said, “As a general rule, workmen’s compensation proceedings are governed by the law in effect at the time of the injury.” Accord, Grigsby: “A long line of Illinois decisions has held that the law in effect at the time of the injury determines the rights of the parties.” 76 Ill. 2d 528, 531, 394 N.E.2d 1173.

In none of these cases did the supreme court draw any distinctions, but stated that the rights of the “parties,” i.e., employer, employee, and dependents, all who might benefit from the Act, were determined at the time of injury. Since a dependent’s claim could never arise but for an injury, the governing law at the time of that injury must necessarily control.

As the majority points out, the various jurisdictions have gone their separate ways on this subject, but many of them do so as a result of local statutes. (See 2 A. Larson, Workmen’s Compensation sec. 64.50 (1983).) The Illinois statute is silent on the subject.

I feel that this subject should be explored by the legislature. It is a matter of common knowledge .that spectacular advances in the world of medicine have made possible the prolongation of vital signs almost indefinitely, although the brain waves of the patient remain essentially flat and the patient himself remains in a comatose, or even vegetative, state. Cases factually similar to the one at bar are almost certain to arise in the future, and some public policy should be statutorily enacted to deal with them. Until that time arrives, the holdings of the supreme court in Stanswsky should be followed. If such policy does not come from the legislature, then perhaps the supreme court should review those holdings in the light of present-day medical practices.

I would reverse the trial court and affirm the Commission.


author: JUSTICE JONES

text:
    GARLAND L. SHEFF, Plaintiff-Appellee, v. BOARD OF REVIEW, ILLINOIS DEPARTMENT OF LABOR, et al., Defendants-Appellants (Martin’s Super Foods, Defendant).
    Fifth District
    No. 5—84—0011
    Opinion filed October 10, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for appellants.
    Sharon Sigwerth Costa, of Mt. Vernon, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff, Garland L. Sheff, brought this action under the Administrative Review Act. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.) Plaintiff sought review of the decision of the Illinois Department of Labor, Board of Review, which found that he was not qualified for unemployment benefits because his employer, Martin’s Super Foods, had discharged him for misconduct connected with his work. (Ill. Rev. Stat. 1983, ch. 48, par. 432A.) On administrative review, the circuit court reversed the decision of the Department. The trial court was of the opinion that plaintiff was fired because he had worked for defendant for a number of years and that the employer discharged plaintiff because Sheff was unhappy with his 32-hour workweek and because defendant could hire cheaper help, reasons that do not constitute misconduct on plaintiff’s part. The Department has appealed, contending that the Board of Review properly concluded that the behavior plaintiff displayed toward his employer during a February 4, 1983, conference constituted misconduct connected with his work within the meaning of section 602A of the Unemployment Insurance Act (Ill. Rev. Stat. 1983, ch. 48, par. 432A).

The referee found that plaintiff was discharged for misconduct connected with his work in that his disrespectful outburst toward the employer was an act of insubordination, which reflects a wilful or wanton disregard of claimant’s responsibilities and his employer’s interest. The Department of Labor, Board of Review, confirmed the finding of fact and the decision of the referee.

At the hearing, plaintiff testified that he had worked at Martin’s Super Foods since the beginning of 1975 until his discharge on February 4, 1983. His wage at the time of termination was $7.50 per hour. Plaintiff’s last duty was that of a “carry-out boy.” Plaintiff further testified that he could not make any substantial changes or additions to his statements. Plaintiff admitted that he had raised his voice at the conference.

In his application for unemployment benefits, plaintiff stated that he had asked for a conference. He further stated in the application that Andrew Morgan, Martin’s Super Foods’ store manager, informed him that there was no place for plaintiff, that plaintiff had no responsibility and that two people could be hired for what plaintiff was paid. Mr. Morgan had encouraged him to apply for jobs .with the National Guard and Pepsi Cola. On February 4, plaintiff was trying to help a customer start his automobile when Scott Harris, another employee, asked plaintiff what he was doing. Plaintiff told Harris to go back to his groceries. When Curtis Chancy, grocery manager, told Mr. Morgan during the conference of the argument that plaintiff had had with Harris, Mr. Morgan discharged plaintiff. Prior to February 4, 1983, plaintiff had protested the reduction in his hours per week worked from 40 to 32.

Morgan testified that on February 4, 1983, plaintiff asked for a conference. It was granted and took place in Mr. Morgan’s office. Plaintiff stated that he was unhappy with his duties, and Mr. Morgan replied that plaintiff had been assigned different jobs in the past and that plaintiff had not been happy in those positions. Mr. Morgan informed plaintiff that he felt that plaintiff did not accept responsibility on those jobs. Plaintiff became angry and upset, and he raised his voice in disagreement to twice his normal speaking voice. Mr. Morgan felt that he was not getting respect and discharged plaintiff. Mr. Morgan admitted that plaintiff did not use foul language or call him names. After being discharged plaintiff did not refuse to leave the premises. Mr. Morgan admitted that he might have told plaintiff at one time that he could hire two people to replace him and that in a previous conversation he had suggested that plaintiff look for other employment, as plaintiff was not happy at Martin’s.

Our duty in an administrative review case is similar to that of the circuit court, to examine the entire record in order to ascertain whether the findings and decision of the administrative agency are against the manifest weight of the evidence. When an administrative order is contrary to the manifest weight of the evidence, it is the duty of the appellate court to affirm the action of the circuit court in setting the order aside. (Derringer v. Civil Service Com. (1978), 66 Ill. App. 3d 239, 383 N.E.2d 771.) It is true, as appellants assert, that innumerable decisions of our courts recite that it is not the proper function of a court to reweigh the evidence previously presented to an administrative decision-maker. (See, e.g., Board of Trustees v. Illinois Community College Board (1976), 43 Ill. App. 3d 956, 357 N.E.2d 1222.) But we could not perform our reviewing function at all without weighing the evidence. The distinction is that we do not reweigh the evidence as we would if we were the original decision-maker, attempting to decide in the first instance whether the party with the burden of proof has proved the material elements of his case by a preponderance of the evidence. Our weighing is done on a different scale. Our function is merely to decide whether the manifest weight of the evidence of record favors the party who did not prevail before the agency. If it does not, we must affirm even if we think that the preponderance of the evidence is to the contrary. But if, after a review of all the evidence, we think it evident that the administrative decision was wrong, it is our duty to reverse. Derringer v. Civil Service Com. (1978), 66 Ill. App. 3d 239, 383 N.E.2d 771.

We have examined the entire record on appeal and find that the manifest weight of the evidence of record favors the party who did not prevail before the agency. As will be discussed later in this opinion, the acts relied upon do not rise to the level of justification to discharge an employee for cause. Plaintiff was being paid $7.50 per hour, not an inconsiderable sum for a “carry-out boy.” Plaintiff testified that the store manager had told him that two persons could be hired for what plaintiff was being paid. The store manager conceded that he might have stated the foregoing to plaintiff. There was no attempt to determine the factual basis of the dispute between Harris and plaintiff. It appears that the store was looking for an excuse to discharge plaintiff. While the legal authority to discharge plaintiff is not even at issue in this cause, the employer cannot on the facts successfully claim to have discharged plaintiff for misconduct connected with work. This court believes, as the trial court found, that plaintiff was terminated because he protested the decrease in his working hours and because someone could be hired to do the job at a lesser hourly wage than plaintiff.

But even assuming, arguendo, that the Board’s finding of fact was correct, it was incorrect in its determination of the legal effect of those acts. As we held in Granite City Steel v. Board of Review (1979), 68 Ill. App. 3d 264, 268, 385 N.E.2d 931, 934:

“ ‘[W]e are not bound to give the same measure of deference to an administrative agency’s construction of a statute that we give to its findings of fact. While we might affirm a factual conclusion as not against the manifest weight of the evidence though we would have reached the opposite conclusion, we cannot let stand a decision based upon an erroneous construction of a statute.’ ”

The question thus becomes whether plaintiff’s act of insubordination is sufficient to result in discharge for “misconduct connected with his work” as used in par. 432A:

“ ‘ “Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer. ***” ’ ” (68 Ill. App. 3d 264, 271, 385 N.E.2d 931, 936.)

In the case at bar, the acts relied upon to deny unemployment benefits do not rise to the level of justification for discharge due to misconduct so as to deprive plaintiff of his statutory right to unemployment compensation. Plaintiff raised his voice in the privacy of the manager's office. There was no abusive language or vilification of the manager. Further, there is no evidence that plaintiff threatened Mr. Morgan either physically or verbally. Being merely argumentative is not sufficient for discharge for misconduct. See Payne v. Antoine’s Restaurant (La. App. 1969), 217 So. 2d 514, in which the Louisiana Appellate Court applied a standard of misconduct which is almost identical to the standard applied by this court and quoted above.

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

Affirmed.

WELCH, P.J., and KASSERMAN, J., concur.


text:
    HAWKEYE-SECURITY INSURANCE COMPANY, Plaintiff-Appellant, v. HELEN M. REEG et al., Defendants-Appellees.
    Fifth District
    No. 5—84—0159
    Opinion filed October 10, 1984.

      Thomas O. Falb, of Reed, Armstrong, Gorman & Coffey, of Edwardsville, for appellant.
    Ross T. Anderson, of Crowder & Scoggins, Ltd., of Columbia, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

This appeal presents the question whether one insured under a homeowner's policy who executes a quitclaim deed to the property, which deed is later declared by court order to be null and void, had an insurable interest in the property when a fire occurred after the time of the execution of the deed and before the declaration of nullity.

The facts are undisputed. The insured, Helen Reeg, a defendant herein, was insured under a homeowner’s policy issued by the plaintiff in this lawsuit, Hawkeye-Security Insurance Company. After the policy had been in effect for some time, Helen Reeg executed a quitclaim deed to the property, which was her residence, in favor of her son, William Reeg, also a defendant in this suit. The deed stated that consideration was in the sum of $1 and other good and valuable consideration. The deed was executed on August 31, 1982, and recorded on September 3, 1982. On September 19, 1982, the dwelling was destroyed by fire. Thereafter Helen Reeg made a claim to the plaintiff, which refused to pay the claim because, it said, Helen Reeg had not owned the premises at the time the fire occurred. On December 13, 1982, Helen Rohr, who is Helen Reeg’s daughter and another defendant herein, was appointed as her mother’s guardian, the court finding Helen Reeg, approximately 77 years old at the time of the execution of the deed, to be a disabled person because of mental deterioration and physical incapacity, unable to manage her person or estate because of chronic brain syndrome, diabetes, chronic ulceration of the legs, generalized arteriosclerosis, and disorientation as to time and space. On December 17, 1982, Helen Reeg, by her guardian, Helen Rohr, filed a complaint against William Reeg seeking to have the court declare the deed null and void and reinvest Helen Reeg with possession of and title to the property because the conveyance “was made without any consideration and was made at a time when Helen M. Reeg was disabled and incompetent to convey real estate owned by her for the reason of physical and mental infirmaties [sic].” On January 26, 1983, William Reeg having failed to appear or to answer, the court found him in default and entered an order declaring the quitclaim deed null and void and calling for its delivery for cancellation. In the action to set aside the deed the trial court found “that the issues in Plaintiff’s complaint are in favor of the Plaintiff and against the Defendant.” On February 23, 1983, Helen Rohr, as guardian, asked the plaintiff herein to make payments to her under the policy of insurance, asserting that the ownership of the premises at the time of the fire was in the name of Helen Reeg.

On June 13, 1983, the plaintiff brought this suit for declaratory judgment against the defendants, seeking a determination that at the time of the fire Helen Reeg did not have an insurable interest in the property and that the plaintiff had no duty under the policy to make any payments for damage caused by the fire. The trial court granted the defendants’ motion to dismiss the petition for declaratory judgment. The plaintiff did not seek to amend its petition for declaratory judgment but filed a motion to reconsider, which the trial court denied in a final order dismissing the cause. This appeal followed, in which the plaintiff avers that the trial court erred in granting the defendants’ motion to dismiss, contending that Helen Reeg had no insurable interest in the property at the time of the loss. The parties have cited us to, and our research has disclosed, no case in which the precise issue before us has been decided.

An insurable interest at the time of the loss is essential to the validity of an insurance policy. (Patterson v. Durand Farmers Mutual Fire Insurance Co. (1940), 303 Ill. App. 128, 24 N.E.2d 740.) An insurable interest, however, is not necessarily equated with clear title. (Reznick v. Home Insurance Co. (1977), 45 Ill. App. 3d 1058, 360 N.E.2d 461.) As was set forth in Beddow v. Hicks (1940), 303 Ill. App. 247, 258, 25 N.E.2d 93, 98,

“It has long been the settled law in this State that a party has an insurable interest in property from the existence of which he receives a benefit or from the destruction of which he will suffer a pecuniary loss, although he has no title to or possession of the premises.”

A fuller statement of this long-standing rule is that expressed in Crossman v. American Insurance Co. (1917), 198 Mich. 304, 308, 164 N.W. 428, 429:

“An insurable interest does not, of necessity, depend upon ownership of the property. It may be a special interest entirely disconnected from any title, lien, or possession. If the holder of an interest in property will suffer direct pecuniary loss, by its destruction, he may indemnify himself therefrom by a contract of insurance. The question is not what is his title to the property, but rather, would he be damaged pecuniarily by its loss. If he would, he has an insurable interest.”

Thus, generally speaking, a person has an insurable interest in property whenever he would profit by or gain some advantage by its continued existence or suffer loss or disadvantage by its destruction. (Reznick v. Home Insurance Co. (1977), 45 Ill. App. 3d 1058, 360 N.E.2d 461; Lieberman v. Hartford Fire Insurance Co. (1972), 6 Ill. App. 3d 948, 287 N.E.2d 38; see 44 C.J.S. Insurance secs. 180, 181 (1945).) It is enough if one claiming an insurable interest holds such a relation to the property that its destruction by the peril insured against involves pecuniary loss to him. (Home Insurance Co. v. Mendenhall (1897), 164 Ill. 458, 45 N.E. 1078; Welch v. Northern Assurance Co., Ltd. (1921), 223 Ill. App. 77.) As the court observed in Prince v. Royal Indemnity Co. (7th Cir. 1976), 541 F.2d 646, 649, cert. denied (1977), 429 U.S. 1094, 51 L. Ed. 2d 540, 97 S. Ct. 1108, the reason for the requirement of an insurable interest is “ ‘to prevent the use of insurance for illegitimate purposes. It should not be extended beyond the reasons for it by excessively technical construction’ ” (quoting Womble v. Dubuque Fire & Marine Insurance Co. (1941), 310 Mass. 142, 147, 37 N.E.2d 263, 266).

In the case at bar title to and possession of the property were ultimately restored to Helen Reeg, apparently in part because of her incompetence at the time of execution of the deed. Unquestionably, the destruction of the premises by fire would have resulted in pecuniary loss to her. We hold, therefore, that she had an insurable interest in the property at the time of the loss.

The plaintiff attempts to categorize the deed in question as a voidable, rather than a void, deed, quoting Walton v. Malcolm (1914), 264 Ill. 389, 393, 106 N.E. 211, 213, for the proposition that

“ ‘the deed of an insane person whose incompetency has not been judicially determined is not void but voidable merely, and is effectual to pass title, with all its incidents, if unassailed. *** If the deed is regular in form and execution it conveys the legal title, and its effect can be avoided, if at all, only upon equitable grounds and by the introduction of extrinsic proof.’ ”

However, it is immaterial whether the deed was void or voidable because we have established that Helen Reeg had an insurable interest at the time of the loss.

Although the plaintiff in its memorandum in lieu of brief states that the default judgment against William Reeg was obtained “by collusion,” our examination of the petition for declaratory judgment discloses neither an allegation of collusion nor a recitation of facts that indicate collusion. The petition recites the facts concerning the execution of the deed, the adjudication of wardship, and the proceeding to set aside the deed. We do not have before us the record in either the proceeding for adjudication of wardship or the proceeding to set aside the deed. However, the brief references to these prior proceedings that do appear in the record before us in no way suggest that the grantor was not, in fact, incompetent.

Helen Reeg appears to have paid the premium for the period of time including the date on which the fire took place without having sought a refund following the execution of the deed. There is no allegation by the insurer that it suffered any detriment by way of increased risk as a result of her execution of the deed in question in favor of William Reeg. In the absence of any prejudice to the insurer occasioned by the abortive transfer, and no other objections being raised, we conclude that Helen Reeg’s insurable interest entitles her to recover under the policy.

Affirmed.

HARRISON and EARNS, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES DAVY, Defendant-Appellant.
    Fifth District
    No. 5—83—0541
    Opinion filed October 10, 1984.
    Randy E. Blue and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William A. Schuwerk, Jr., State’s Attorney, of Chester (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Defendant, James Davy, was convicted by the circuit court of Randolph County sitting without a jury of aggravated battery of a correctional officer in violation of section 12 — 4(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(b)(6)). Pursuant to the extended-term provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, pars. 1005-5-3.2(bXl), 1005-8-2(aX5)), defendant was sentenced to 10 years’ imprisonment, which was to be served consecutively to a previously imposed sentence for theft (over $150). The only issue on appeal is the propriety of the imposition of the extended term.

Defendant was convicted of theft (over $150) in 1980. In 1980, theft of property exceeding $150 was classified as a Class 3 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(3).) In People v. Jackson (1984), 99 Ill. 2d 476, 459 N.E.2d 1362, our supreme court stated that section 16 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1) defines only one offense of theft and that the value of the property taken determines only whether the theft will be punished as a felony or as a misdemeanor. From the foregoing, defendant reasons that if the value of stolen property was used to enhance the theft to a felony, it could not be used as a basis for the imposition of an extended term of imprisonment for defendant’s current conviction, as to do so would be violative of the proscription against double enhancement as set forth in People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558.

In Hobbs, defendant had been convicted of theft (over $150) in 1978. In 1979, he was convicted of theft (under $150) which was ordinarily punishable as a Class A misdemeanor (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(1)). However, due to the 1978 theft conviction, the 1979 theft conviction was punishable as a Class 4 felony (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(1)). The 1978 theft conviction was again used as a basis for the imposition of an extended term of imprisonment for the 1979 conviction. Our supreme court stated that the logical interpretation of section 5 — 5—3.2(b) is “an intent to severely punish a recidivist convicted of separate felonies within 10 years where the latest offense consisted of conduct which itself constituted a felony.” People v. Hobbs (1981), 86 Ill. 2d 242, 246, 427 N.E.2d 558, 560.

In the case at bar, the trial court did not err in imposing an extended term of imprisonment. The latest offense for which defendant stands convicted consisted of conduct which itself constituted a felony. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(e)). Therefore, there was no other enhancement involved by statutory definition. It was not necessary to make any reference to any other act, offense or condition. Defendant made the theft offense a felony by taking property valued over $150. Defendant’s double enhancement argument is unavailing. Further, we note that in Hobbs, our supreme court stated: “An extended term would have been permissible here, if, for example, the value of the liquor taken in 1979 had exceeded $150 so as to make its taking a felony.” (People v. Hobbs (1981), 86 Ill. 2d 242, 245, 427 N.E.2d 558, 559.) As the aggravated battery in this case was a felony by statutory definition, the imposition of the extended term was permissible.

Affirmed.

WELCH, P.J., and HARRISON, J., concur.