text:
    MAX MILEUR, Plaintiff-Appellant, v. HERMAN F. BRIGGERMAN, Defendant-Appellee.
    Fifth District
    No. 81—583
    Opinion filed November 9, 1982.

      Harris, Lambert & Wilson, of Marion, for appellant.
    Charles E. Schmidt, of Mitchell, Brandon & Schmidt, of Carbondale, for appellee.
   PRESIDING JUSTICE EARNS

delivered the opinion of the court:

Plaintiff, Max Mileur, brought this action against defendant, Herman E Briggerman for money damages for personal injuries sustained by him in a hunting accident occurring on April 20, 1977, in Union County, Illinois. The jury returned a verdict for the plaintiff and determined his damages to be $2,700.89; it further found that plaintiff’s negligence in the amount of 50% contributed to cause the accident and judgment was entered for plaintiff for $1,350.45, from which plaintiff appeals.

On appeal, plaintiff contends that the trial court should have granted judgment notwithstanding the verdict on the issues of plaintiff’s negligence and his damages or, in the alternative, grant a new trial on these issues because the jury’s verdict was contrary to the manifest weight of the evidence. Plaintiff further contends that the trial court should have granted a mistrial because of certain prejudicial remarks made by defense counsel before the jury. Plaintiff also maintains that the trial court erred in overruling plaintiff’s objection to defendant’s testimony regarding the customary dress worn by hunters in deer hunting. Finally, plaintiff contends that the trial court erred in giving defendant’s jury instructions over plaintiff’s objections.

On April 20, 1977, plaintiff was turkey hunting alone on Hudson Creek in Union County. After about 15 minutes, plaintiff, who was dressed in camouflage, decided to move to a different location. He began to move from his seated position and leaned over on his knees to place his hands on a tree to assist in raising himself. While plaintiff was on his hands and knees, he shook both of his feet sideways because mosquitoes were biting him around the ankles. Plaintiff stated that he thought he heard a noise and then saw the defendant standing 40 or 50 yards from him. When defendant’s gun went off, plaintiff jumped and was shot in the foot, side of the leg, left shoulder and chest.

After the accident, plaintiff declined defendant’s offer of assistance and drove himself to the Anna Hospital where he was examined by Dr. Thomas W. Davis. Dr. Davis took X rays, gave him a shot, some medication for pain and an antibiotic and told him to see his family physician in Belleville. The next day plaintiff visited Dr. Haskins who gave him a tetanus shot and some antibiotics and advised him to rest. Dr. Haskins suggested that plaintiff return if he experienced any trouble. Plaintiff did not return and received no further medical care for nearly two years when he was examined by Dr. Cesar Climaco in Belleville on April 30, 1979. Plaintiff then went almost another year before seeking treatment, this time from Dr. Karen Ann Strack in Murphysboro, Illinois, on March 11,1980.

Plaintiff missed nine days’ work as a result of the accident and testified that he lost $694.99 in wages, according to his employer’s records. Plaintiff testified that since the incident he has had continual pain which has become worse. He stated that he has had difficulty sleeping and takes a pain killer in order to sleep. Plaintiff further testified that he has scars up and down his legs and that there are between 15 and 20 shot lodged within his leg.

On cross-examination, plaintiff stated that he was shot as he shook his feet. He noted that the defendant was behind him and to his left and there was nothing between them. Plaintiff further testified that when hunting he keeps a good lookout for turkeys, but not for other hunters.

The defendant was called as an adverse witness and testified that he shot the plaintiff. He stated that he saw some movement, raised his shotgun, saw more movement, shouldered his shotgun and fired. He testified that all this occurred in a matter of seconds and that it was the movement that got his attention.

Dr. Thomas M. Davis testified on behalf of the plaintiff and stated that he saw the plaintiff once, on April 20, 1977, at the Union County-Hospital emergency room. He testified that he observed multiple puncture wounds in the area of the right foot, thigh and left shoulder and chest and stated that X rays revealed small metallic pellets in these areas. Dr. Davis stated that providing there was no infectious process, he expected the plaintiff to have a full recovery with no significant residual or permanent disability.

Plaintiff was next examined on April 22, 1977, by Dr. Haskins. A report prepared by Dr. Haskins, introduced into evidence by stipulation, stated that he recommended that plaintiff return if he had any problems, “but for certain within ten days.” Plaintiff never returned.

Dr. Cesar D. Climaco testified that he examined plaintiff on April 30, 1979. He took an X ray of the plaintiff and round metallic pellets in his foot. Dr. Climaco stated that the only treatment would be to remove surgically the pellets but he did not feel this was appropriate because they are difficult to find and removal would do more damage.

Dr. Karen Ann Strack testified that she first examined plaintiff on March 11, 1980, and that he complained of pain in the legs and feet, particularly after standing for a long time. Dr. Strack further testified that the X ray revealed small found metallic foreign bodies in plaintiff’s leg, foot and buttocks. She stated that the pellets could have been removed surgically but the chance of creating more scar tissue and more nerve and muscle damage would far outweigh the benefits hoped to be achieved.

On February 25, 1981, plaintiff visited Dr. Strack for a second time and complained of the same problem as before along with some swelling and generalized heat and redness in the feet. She stated that she felt that a large portion of the pain was attributable to the shot and that he would probably continue to suffer for the rest of his life. Her prognosis was that this was a chronic condition which would probably get worse. She said that she anticipated no other future medical care, other than treatment of sterile abscess or local infection should it occur.

A jury trial was scheduled for March 12, 1980, and on March 2, 1981, but was continued for both times. In the presence of the jury, defense counsel requested the court to take judicial notice of these prior trial settings and their close proximity to the examinations by Dr. Strack. The court denied this request and also plaintiff’s motion for mistrial based on the prejudicial nature of this remark before the jury.

Plaintiff’s counsel then moved the court to direct a verdict in plaintiff’s favor and against defendant on the issue of defendant’s negligence and plaintiff’s freedom from contributory negligence. The court denied these motions.

Plaintiff’s first contention on appeal is that judgment notwithstanding the verdict should have been entered as to the finding that plaintiff was 50% negligent because there was no evidence of negligence on his part, and that the evidence established defendant’s negligence as a matter of law. The standard of review to be applied by this court in deciding whether judgment notwithstanding the verdict should be entered is whether all the evidence, viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Defendant contends that plaintiff was negligent in failing to maintain a proper lookout for other hunters. Such an omission is particularly important, defendant argues, in view of the fact that plaintiff was dressed in complete camouflage. Defendant testified that such camouflage makes it difficult to distinguish hunters from game and requires hunters to maintain a proper lookout. Defendant contends that had plaintiff maintained a proper lookout he would have seen defendant and could have said something to him before he fired.

A review of the record indicates that defendant mistakenly places responsibility for preventing the accident on the plaintiff. It was, after all, defendant who mistook the six foot three inch, 250 pound plaintiff for a turkey and fired the shot injuring him. Plaintiff was not required to anticipate that another hunter would mistake him for a turkey. Furthermore, plaintiff was shot from behind and had virtually no time to react. If plaintiff’s camouflage clothing contributed in any way to the accident it is because defendant did not adequately determine the nature of his target. Defendant, by his testimony, indicated that he was aware that turkey hunting required complete camouflage and should have expected a hunter to be so dressed, as he too was dressed.

As proof of plaintiff’s negligence, defendant relies heavily on plaintiff’s statement that when he hunts turkey he maintains a good lookout for turkeys, but not other hunters. Such reliance is misplaced because plaintiff’s testimony merely reflects the common sense notion that turkey hunting requires a hunter to direct his attention toward turkeys. The statement also reflects plaintiff’s reasonable expectation of not being mistaken for a turkey by other hunters.

We believe that the evidence, taken as a whole, does not support the jury’s finding of negligence on the part of the plaintiff but does demonstrate defendant’s negligence as a matter of law. The trial court, therefore, erred by not entering judgment notwithstanding the verdict for the plaintiff on the issue of liability and plaintiff’s freedom from contributory fault.

Plaintiff further challenges the jury’s verdict on the ground that the damage award is inadequate. Plaintiff contends the jury ignored certain uncontradicted evidence as to his disability and disfigurement as well as certain medical bills for treatment rendered by Dr. Climaco and Dr. Strack.

Generally, the question of damages is peculiarly one of fact for the jury, and courts are reluctant to interfere with the jury’s exercise of its discretion. (Duncan v. Peoria Yellow Checker Cab Corp. (1977), 45 Ill. App. 3d 653, 359 N.E.2d 1242.) In Duncan, however, the court went on to state that a verdict should be set aside and a new trial granted for inadequacy of damages where it is clear that injustice has been done, or where it is obvious that the jury failed to take into consideration proper elements which are clearly proven.

In the case at bar, plaintiff testified that since the accident he has pain all of the time and it is getting worse. He stated that the pain is such that he is unable to sleep without pain killers. Dr. Strack testified that the pellets scarred his skin and characterized his condition as chronic and progressive. Despite this uncontradicted testimony, the jury, in an itemized verdict, failed to make any provision in plaintiff’s award for disability and disfigurement; although, it did award plaintiff $1,000 for pain and suffering. Furthermore, the jury did not include the medical expenses stemming from plaintiff’s examinations by Dr. Climaco and Dr. Strack even though both physicians testified that their services were necessary and the charges for those services were the usual and customary charges.

While we cannot say that the damage award would be inadequate as a matter of law if the trial had been free from prejudicial error, we cannot conclude that the award which apparently ignored the testimony of Dr. Strack was riot the result of the improper attack on her credibility and the credibility of the plaintiff by defendant’s counsel’s suggestion, not based on competent evidence, that the case was twice continued so that plaintiff could find medical testimony favorable to his cause. This would suggest to the jury that plaintiff’s complaints of pain and disability and Dr. Strack’s testimony relating thereto were not worthy of belief. We note that defendant presented no contrary medical testimony.

The trial court was entitled to take judicial notice of proceedings before it and the contents of court records relating thereto. (Rock Is land Bank & Trust Co. v. Stauduhar (1978), 59 Ill. App. 3d 892, 375 N.E.2d 1383.) Defense counsel’s request for judicial notice was improper in the instant case, however, because it implied that plaintiff’s visits to Dr. Strack were for the purpose of eliciting favorable testimony. Counsel may not supply facts or inferences in arguments not based on evidence of record. Tarasuik v. Russell (1964), 49 Ill. App. 2d 418, 199 N.E.2d 629.

Dr. Strack testified that the services she rendered were necessary in connection with plaintiff’s care and treatment. This statement, taken together with Dr. Strack’s testimony that plaintiff was in pain which would probably continue for the rest of his life, indicates that the examination was motivated by medical considerations. The mere fact that Dr. Strack advised against surgically removing the pellets does not support the conclusion that plaintiff visited her in order to obtain favorable testimony.

Remarks of trial counsel may be of such prejudicial nature as to require reversal despite corrective action of the trial judge. (Walters v. Taylor (1976), 36 Ill. App. 3d 934, 344 N.E.2d 765.) In the present case, the damage from defense counsel’s statements occurred when the jury was exposed to his request for judicial notice. Although this request was denied, the prejudice which resulted is apparent from the jury’s failure to include Dr. Strack’s medical bills in the verdict. The highly prejudicial nature of defense counsel’s remarks requires that a new trial be granted on the issue of damages.

Plaintiff further contends that the trial court erred in admitting defendant’s testimony regarding deer hunting. During direct examination, defendant testified that a hunter wears bright orange clothing when hunting deer as compared to turkey hunting where camouflage is necessary. Plaintiff maintains that this testimony is prejudicial because it implied that plaintiff should have worn bright clothing to prevent his being mistaken for game.

Although this testimony was not relevant to the question of plaintiff’s negligence, its admission does not constitute prejudicial error. The jury was adequately informed by both parties that camouflage clothing was customary for turkey hunters. Furthermore, plaintiff cannot properly argue that the defendant’s testimony was prejudicial because, on direct examination, plaintiff made a similar comparison.

Plaintiff’s final contention is that the trial court erred in giving defendant’s jury instructions over plaintiff’s objections. Plaintiff argues that defendant’s instruction No. 7, the burden-of-proof instruction, was improper because it stated that plaintiff had the burden of proving that he was using ordinary care for his own safety. Additionally, plaintiff contends that the last paragraph of the instruction was misleading and confusing and did not correctly state the law. We need not detail plaintiff’s objections to these instructions as the only issue to be retried will be the amount of plaintiff’s damages. Furthermore, the Supreme Court Committee on Jury Instructions in Civil Cases has recently issued its series “A” instructions on comparative negligence, and future cases will be governed by these instructions, which reflect the current state of the law under Alvis.

Since the Illinois Supreme Court adopted comparative negligence in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, it has been the law of this State that a plaintiff in a negligence action need not prove that he exercised due care for his own safety. Prior to Alvis, a plaintiff was required to prove his own exercise of due care as an essential element of his negligence action. (Carter v. Winter (1965), 32 Ill. 2d 275, 282, 204 N.E.2d 755, 758.) This change in the law is reflected in Illinois Pattern Jury Instructions, Civil, No. A21.03 (2d ed. 1981 Supp.) (hereinafter cited as IPI Civil), which eliminated plaintiff's burden of proof regarding his use of ordinary care.

Defendant maintains, however, that Alvis did not change the burden of proof requirement in res ipsa loquitur actions such as this case. In support of his argument, defendant notes that no new instruction has been included in the new “A” Series Instructions on comparative negligence for res ipsa loquitur cases. This omission, we believe, is no more than an oversight and does not constitute continuing approval of IPI Civil No. 22.01. There is no sound reason why a plaintiff must prove freedom from contributory negligence in a res ipsa loquitur case when he is not required to do so in other negligence actions. The trial court’s approval of IPI Civil No. 22.01 in the given case constitutes error because that instruction does not reflect the current state of the law.

The second instruction to which plaintiff objected, defendant’s instruction No. 8, was IPI Civil No. 36.01. Plaintiff contends that the instruction was improperly given because there was no evidence to justify it. We agree that based on the evidence the jury could not decide the issue of liability in defendant’s favor, and the trial court, therefore, erred in giving this instruction.

Plaintiff also contends that the trial court erred in giving defendant’s instruction No. 9, IPI Civil No. 10.03 modified. Although defendant’s instruction deletes the requirements that the plaintiff be free of contributory negligence, we believe that IPI Civil No. A10.03 is a more accurate statement of the law and should have been given.

For the foregoing reasons, the judgment of the circuit court of Union County is reversed and the cause is remanded for a new trial on the issue of damages.

Reversed and remanded.

JONES and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    THOMAS LeMASTER, Plaintiff-Appellee, v. AMSTED INDUSTRIES, INC., Defendant and Third-Party Plaintiff-Appellant.—(William R. Montgomery & Associates, Inc., Third-Party Defendant-Appellee.)
    Fifth District
    No. 81-377
    Opinion filed November 10, 1982.

      Jonathan Ries and Kathryn A. Kottemann, both of Shepherd, Sandberg & Phoenix, of St. Louis, Missouri, for appellant.
    Wagner, Bertrand, Bauman & Schmieder, of Belleville (Bernard H. Bertrand, of counsel), for appellee William R. Montgomery & Associates, Inc.
    William W. Schooley and Kathryn P. Taylor, both of Law Offices of William W. Schooley, of Granite City, for appellee Thomas LeMaster.
   JUSTICE WELCH

delivered the opinion of the court:

On August 8, 1978, the plaintiff was injured when he fell from a roof at Amsted Industries’ Granite City, Illinois, plant. He brought suit against Amsted in the circuit court of Madison County, alleging that his injuries had resulted from. Amsted’s violation of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.). Amsted, in turn, filed a third-party complaint against the plaintiff’s employer, William R. Montgomery and Associates, with whom Amsted had contracted to perform roofing repair work at its plant. Count I of the complaint sought indemnity from Montgomery, while the second count requested contribution for an appropriate portion of the plaintiff’s damages!

Prior to trial, counsel for Montgomery informed the court that his client had entered into a settlement agreement with the plaintiff. According to the terms of this agreement, which was conditioned upon the dismissal of Amsted’s third-party action, the plaintiff released Montgomery from all liability in tort resulting from the August 8, 1978, fall, in return for Montgomery’s waiver of its right to seek reimbursement for $28,347 in workers’ compensation payments previously made to the plaintiff, plus an additional $35,000 in cash. Counsel for Montgomery argued that because section 2(d) of “An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1981, ch. 70, par. 302(d)) discharges a settling tortfeasor from liability for contribution to any other tortfeasor, Amsted’s third-party action should be dismissed. The trial court agreed with this position, and dismissed Amsted’s complaint.

The plaintiff’s action proceeded to a jury trial against Amsted alone, following which he was awarded $100,000 in damages. The court granted Amsted a setoff in the amount of the $35,000 cash payment made by Montgomery, but did not allow Amsted any credit for the waiver of Montgomery’s workers’ compensation lien. Amsted has appealed from the dismissal of its third-party complaint, from the order denying it a setoff for the workers’ compensation lien waiver and from the judgment in favor of the plaintiff in his original action.

APPEAL OF AMSTED AGAINST MONTGOMERY

In this court, Amsted asserts that the trial court erred in dismissing both the indemnity count and the contribution count of its third-party complaint. Alternatively, Amsted contends that it should have been given $63,347 credit against the $100,000 judgment in favor of the plaintiff. Because we agree that the third-party complaint should not have been dismissed, we need not consider the amount of the set-off. We will first discuss Amsted’s indemnity count.

The parties do not dispute that Amsted’s third-party complaint states a cause of action for indemnity under the Structural Work Act. That complaint alleged that Amsted had hired Montgomery to do the roofing work at its premises, that it was Montgomery’s duty to supervise the work, and that Montgomery had violated the Structural Work Act by, inter alia, permitting its employees to use as a scaffold a roof which was not strong enough to support their weight, and failing to inspect that roof when Montgomery knew or should have known that the roof was unsafe. This complaint sufficiently alleges that Montgomery’s conduct was “active” or “major fault” in comparison to the “passive” conduct or “minor fault” of Amsted. Lindsey v. Dean Evans Co. (1973), 11 Ill. App. 3d 432, 297 N.E.2d 8; Rovekamp v. Central Construction Co. (1964), 45 Ill. App. 2d 441, 195 N.E.2d 756.

The question presented by this appeal from the dismissal of Amsted’s indemnity action is therefore whether an otherwise valid complaint for indemnity should be dismissed when the third-party defendant settles with the original plaintiff. Neither Montgomery nor Amsted has provided us with any direct authority on this question, and, in fact, the more common situation involves determination of the rights of a defendant/third-party plaintiff who settles the original action. (See Nogacz v. Procter & Gamble Manufacturing Co. (1975), 37 Ill. App. 3d 636, 347 N.E.2d 112; Skezas v. Safway Steel Products, Inc. (1967), 85 Ill. App. 2d 295, 229 N.E.2d 781; Boston v. Old Orchard Business District, Inc. (1960), 26 Ill. App. 2d 324, 168 N.E.2d 52.) In such a case, the third-party plaintiff is entitled to maintain his indemnity action for the full amount of the settlement, subject to proof that he was responding to a reasonable anticipation of personal liability rather than acting as a mere volunteer in entering into the settlement. St. Paul Fire & Marine Insurance Co. v. Michelin Tire Cory. (1973), 12 Ill. App. 3d 165, 169, 298 N.E.2d 289, 292.

The purpose behind allowing a third-party plaintiff to seek indemnity for the full amount of the original claim, reached either by settlement or after adjudication, is to shift the entire responsibility for payment of damages from a party only technically liable for those damages to a party who is truly culpable in giving rise to the original claim. (Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630.) Indemnity, which rests upon the principle that everyone should be responsible for the consequences of his own acts, is distinguishable from contribution, which is an apportionment of liability among culpable parties. Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 422 N.E.2d 979; Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, cert. denied sub nom. Hinckley Plastic, Inc. v. Reed-Prentice Division Package Machinery Co. (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849.

In the case of an action which is settled by a defendant/third-party plaintiff, the purposes of indemnity are served by permitting the settling defendant to seek indemnity from the third-party defendant. There, the plaintiff’s damages are established by the settlement (Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 337 N.E.2d 23, cert. denied (1976), 425 U.S. 936, 48 L. Ed. 2d 178, 96 S. Ct. 1669), and if that amount is not shown to be unrealistic or collusive, the defendant may shift the entire responsibility for those damages to the culpable party.

Were we to accept the dismissal of Amsted’s indemnity action here, on the other hand, the purposes of an indemnity action would be defeated. When a third-party defendant settles a claim such as the plaintiff’s, that settlement does not bar the action against the defendant/third-party plaintiff (see Kirkham v. Hickerson Brothers Truck Co. (1971), 29 Colo. App. 303, 485 P.2d 513; Turner v. Guiliano (1966), 350 Mass. 657, 216 N.E.2d 562) and is thus not conclusive as to the amount of the plaintiff’s damages. After such a settlement is reached, the plaintiff would be well advised to pursue his claim in the original action, and if, as here, the judgment in that suit exceeds the amount of the settlement, that difference would be imposed on the defendant/third-party plaintiff, whose suit for indemnity would not have even been allowed to be litigated.

This result is patently inequitable. By allowing the indemnity action to be dismissed without trial, a party who is perhaps only technically liable to the plaintiff must shoulder that portion of the judgment which exceeds the amount of the settlement. Moreover, even if the evidence would show that the defendant/third-party plaintiff were partially at fault and would therefore be responsible for contribution, the fact remains that that party would have been denied the opportunity to present any evidence on that issue. Also, the apportionment of damages which would result from the procedure accepted by the trial court would not be based on any assessment of relative fault, but is only a product of the difference between the settlement and the judgment.

For these reasons, we cannot accept Montgomery’s theory that a settlement between a third-party defendant and the original plaintiff bars any indemnity actions brought against the third-party defendant as a result of the plaintiff’s claim. The trial court thus erred in dismissing the indemnity count of Amsted’s third-party action against Montgomery.

Next, we consider Amsted’s contribution count against Montgomery. The parties have assumed, without discussion, that contribution is available to a defendant found liable under the Structural Work Act. Our own research has not disclosed a reported case in Illinois involving contribution under that statute, but we believe that the assumption of the parties is correct. Although liability under the Structural Work Act is not based upon negligence, there can be degrees of fault among those who, under the Act, are accountable to an injured plaintiff (Rovekamp v. Central Construction Co. (1964), 45 Ill. App. 2d 441, 449, 195 N.E.2d 756, 760), and as a result, indemnity actions, which require the trier of fact to determine which party is primarily at fault, are allowed under that enactment. (Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630.) A contribution action necessitates a similar weighing of fault, and as a Structural Work Act defendant may shift total responsibility for damages for which he is only technically liable, it would seem to be consistent to allow such a defendant to shift some of the responsibility for damages for which he is partially responsible. The New York courts, in construing a statute (N.Y. Labor Law sec. 240 (McKinney Supp. 1981-1982)) similar to the Structural Work Act and therefore a source of persuasive authority in considering the Illinois Act (Bohannon v. Joseph T. Ryerson & Son, Inc. (1966), 72 Ill. App. 2d 397, 219 N.E.2d 627), have not distinguished between contribution and indemnity and have allowed both types of actions in suits brought under section 240 of the Labor Law. (Kelly v. Diesel Construction Division of Carl A. Morse, Inc. (1974), 35 N.Y. 2d 1, 358 N.Y.S.2d 685, 315 N.E.2d 751; Bernardi v. Getty Refining & Marketing Co. (1980), 107 Misc. 2d 451, 435 N.Y.S.2d 212.) For these reasons, then, we hold that contribution is available to a party found liable under the Structural Work Act for an injury occurring on or after March 1, 1978. Ill. Rev. Stat. 1981, ch. 70, par. 301; Harris Trust & Savings Bank v. Ali (1981), 100 Ill. App. 3d 1, 425 N.E.2d 1359.

Having decided that contribution is available to a Structural Work Act defendant, we must next determine whether Amsted’s contribution complaint was barred by the settlement between the plaintiff and Montgomery. This issue requires construction of section 2 of “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1981, ch. 70, par. 302). According to that provision, a tortfeasor who is given a release in good faith as part of a settlement with a claimant is discharged from all liability for any contribution to any other tortfeasor. (Ill. Rev. Stat. 1981, ch. 70, par. 302(c)(d).) Initially, it may be questioned whether a claimant’s employer may be considered a “tortfeasor,” given that the employer’s liability arises solely from the Workers’ Compensation Act. However, the Illinois Supreme Court in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, cert. denied sub nom. Hinckley Plastic, Inc. v. Reed-Prentice Division Package Machinery Co. (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849, held that an employer can be liable for contribution, and it follows from this holding that the references to “tortfeasor” in the contribution act may also refer to an employer of a claimant. See also Doyle v. Rhodes (1982), 109 Ill. App. 3d 590, which held that the exclusivity provisions of the Workers’ Compensation Act do not bar a third-party action for contribution against the original plaintiff’s employer.

The broad issue presented by this appeal from the dismissal of Amsted’s contribution count is what constitutes a “good faith” settlement and release under the contribution act, and more specifically, whether the settlement and release between the plaintiff and Montgomery can be said to be in good faith. Amsted insists that no good faith was shown by the terms of the release, in which the plaintiff, in return for Montgomery’s cash payment and workers’ compensation lien waiver, agreed to release Montgomery “from any and all claims, demands and choses in action which may accrue to me under” the contribution act. According to Amsted, this bargain was illusory, because the plaintiff’s only rights against his employer for such a work-related injury are those granted by the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, pars. 138.5(a), 138.11).

As the Illinois contribution act was enacted as recently as September 1979, there is no reported decisional law purporting to define a good-faith settlement and release under sections 2(c) and 2(d) of the Act. There are also very few cases deciding this issue in other jurisdictions (see Annotations to Uniform Contribution Among Joint Tortfeasors Act sec. 4, 12 Uniform Laws Annotated 63 (1955); River Garden Farms, Inc. v. Superior Court (1972), 26 Cal. App. 3d 986, 103 Cal. Rptr. 498; Gordon and Crowley, Indemnity Issues in Settlement of Multi-Party Actions in Comparative Negligence Jurisdictions, 48 Ins. Counsel J. 457, 467-69 (1981)), and our research has not disclosed any authority on the question of whether a similar settlement and release between an employee and his employer should immunize that employer from liability for contribution.

Certainly, the ratio of the amount of the settlement to the amount of damages finally awarded is one measure of the good faith of the settlement agreement. (River Garden Farms.) But Amsted does not argue that this settlement is unrealistically low, and, when the $63,347 settlement is compared to the $100,000 verdict, we do not believe that such a claim can be made. Amsted’s theory is instead that a release cannot have been given in good faith unless it is supported by consideration, and that element is not present in this settlement and release.

As in all contracts, consideration is the quiddity which binds the parties to a settlement agreement. (Dickey v. Thirty-Three Venturers (Mo. App. 1977), 550 S.W.2d 926.) The compromise of a disputed claim will provide the consideration for such an agreement (Smyth v. Kaspar American State Bank (1956), 9 Ill. 2d 27, 136 N.E.2d 796), and even if the claim is not shown to have been valid, its compromise will support a settlement agreement as long as it is asserted in good faith. (Stoner v. Stoner (1953), 351 Ill. App. 304, 115 N.E.2d 103.) These well-accepted principles have thus brought us back to our original statement of the issue. If a good faith settlement under the contribution act must be supported by consideration and if consideration consists of the compromise of a claim which is asserted in good faith, the question again becomes whether the plaintiff’s assertion of tort claims against Montgomery could be made in good faith.

Although a disputed claim need not have been a valid one, if a claim is “entirely without foundation,” the claimant will be deemed not to have acted in good faith in asserting or relinquishing it, on the theory that the claimant knew or should have known that the claim could not have been enforced under any state of proof. (Williams v. Estate of Frederick (1937), 289 Ill. App. 410, 7 N.E.2d 384; Woodall v. Peden (1916), 274 Ill. 301, 113 N.E. 608.) It cannot be doubted that the plaintiff’s injuries occurred while he was performing duties within the scope of his employment and that his injuries were not caused by the intentional conduct of Montgomery. Therefore, it is obvious that plaintiff’s remedies lie exclusively within the Workers’ Compensation Act (Ferguson v. Roundtable Motor Lodge (1980), 83 Ill. App. 3d 331, 404 N.E.2d 1039), and the briefs of Montgomery and the plaintiff do not suggest what additional rights the plaintiff may have retained against his employer.

We must agree with Amsted that the settlement and release agreement between the plaintiff and Montgomery did not constitute a good-faith settlement because, effectively, the plaintiff had no rights outside of the Workers’ Compensation Act which he could relinquish in return for the lien waiver and the cash payment. (Contra, Meinerz v. Treybig (La. App. 1971), 245 So. 2d 557, in which a settlement in excess of the maximum workmen’s compensation payment was held to be supported by consideration, under a compensation law which does not prohibit common law tort actions against an employer.) Between the plaintiff and Montgomery, an equitable bargain was simply not entered into, and thus the trial court erred in holding that this agreement gave rise to the prohibitions of further contribution contained in sections 2(c) and 2(d) of the contribution act. Amsted’s contribution count must be reinstated.

We note that Amsted does not request us to pass upon the validity of the agreement itself as between the parties to it. Amsted does argue that the fact that the release was conditioned upon dismissal of the third-party action means that no settlement agreement existed until the action was dismissed and therefore the settlement could not have provided grounds for that dismissal. However, as we have found that the agreement was not entered, into in good faith, we need not discuss that issue.

APPEAL OF AMSTED AGAINST PLAINTIFF

In its appeal from the judgment in favor of the plaintiff, Amsted does not challenge its liability to him. It insists, instead, that the trial court’s exclusion of certain evidence pertaining to the plaintiff’s earnings after the accident was erroneous and deprived it of a fair assessment by the jury of the plaintiff’s damages.

At trial, the plaintiff sought recovery for lost wages between August 8, 1978, and his resumption of full-time work in February 1979. He also requested damages for the present cash value of earnings reasonably certain to be lost in the future, and the jury was so instructed, over Amsted’s objection. Counsel for Amsted and for the plaintiff stipulated before the jury that the plaintiff earned $14,693.60 in 1977, the last full year before he was injured. In his answers to Amsted’s interrogatories, the plaintiff stated that in 1979, he had reported a gross income of $26,974.23 and from January 1, to July 8, 1980, he had earned $16,021.23. Amsted offered to read these answers to the jury, but the offer of proof was refused on the ground that the evidence was not relevant to the plaintiff’s future earning capacity.

The plaintiff contends that this evidentiary ruling was correct, because the amount of the plaintiff’s earnings after his injury does not disprove that his earning capacity was diminished after the accident. However, this position has long been rejected in Illinois, which has followed the general rule that the amount of a plaintiff’s earnings following an accident is admissible as probative of the plaintiff’s future earning capacity. Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664; Hall v. Chicago & Northwestern Ry. Co. (1955), 5 Ill. 2d 135, 125 N.E.2d 77; Chicago Union Traction Co. v. Brethauer (1906), 223 Ill. 521, 79 N.E. 287; Chicago & Erie R.R. Co. v. Meech (1896), 163 Ill. 305, 45 N.E. 290.

The plaintiff responds that, even if this evidence was erroneously excluded, it would have been merely cumulative, because, in response to cross-examination, the plaintiff admitted that he had earned more money after the accident than he had before being injured. But, this argument ignores the fact that it is the amount of those earnings, not only the existence of an increase in earnings, which is relevant and admissible. Plaintiff’s admission that he earned more money after the accident cannot render evidence of the amount of those earnings cumulative.

Finally, the plaintiff asserts that any error committed could not have prejudiced Amsted, because the jury’s verdict was supported by the evidence. We recognize that the plaintiff sought recovery for lost wages between August 1978 and February 1979, as well as for medical expenses of approximately $5,200. We also acknowledge that, due to his injury, the plaintiff was cautioned to avoid work at heights, which work constituted, in the plaintiff’s estimate, 20 to 25% of his employment. Nonetheless, under the testimony introduced at trial, we cannot say that the jury’s verdict was unaffected by the erroneous exclusion of evidence pertaining to the plaintiff’s earnings following the accident. As a result, Amsted has shown that it is entitled to a new trial on the issue of the plaintiff’s damages.

CONCLUSION

The judgment in favor of the plaintiff on his complaint is affirmed insofar as it establishes Amsted’s liability to him, but the award of damages is reversed and the cause is remanded for a new trial on the plaintiff’s damages. The trial court’s order dismissing both counts of Amsted’s third-party complaint is reversed in its entirety, and that cause is remanded for further proceedings on the complaint.

Affirmed in part, reversed in part, remanded.

EARNS, P.J., and JONES, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRIAN K. DUNLAP et al., Defendants-Appellees.
    Fifth District
    No. 81—378
    Opinion filed November 22, 1982.
    Rehearing denied December 17, 1982.

      Randy Patchett, State’s Attorney, of Marion (Martin N. Ashley, of State’s Attorneys Appellate Service Commission, and Robert C. Cook, research assistant, of counsel), for the People.
    Paul T. Austin & Associates and Raymond Lawler, P.C., both of Marion, and Edward J. Kionka, of Carbondale, for appellees.'
   JUSTICE WELCH

delivered the opinion of the court:

Defendants Brian Dunlap and Revel Freeman were charged by information in the circuit court of Williamson County with having committed an unlawful calculated criminal drug conspiracy, with unlawful manufacture of a controlled substance and with unlawful possession with intent to manufacture a controlled substance, in violation of Sections 405 and 401(aX7) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56x/2, pars. 1405, 1401(aX7)). The substance alleged to have been the subject of these offenses is psilocyn, a Schedule I hallucinogen. (Ill. Rev. Stat. 1979, ch. 56x/2, par. 1204(d)(15).) According to the testimony offered by the State at defendants’ preliminary hearing, this substance was supposed to have been found in Psilocybe mushrooms alleged to have been seized from defendant Freeman’s Carterville, Illinois, residence.

The defendants moved to dismiss these informations on various constitutional and statutory grounds. Following an evidentiary hearing and arguments of counsel, the court granted the motions. It held that the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 1100 et seq.) violated defendants’ due process rights as applied to the possession of Psilocybe mushrooms, because the statute did not specify which types of mushrooms were prohibited under that Act. The court also stated that the statute did not specifically proscribe possession of the mushrooms themselves, as opposed to the extracted psilocyn, and that the cultivation of Psilocybe mushrooms was not illegal under the definition of “manufacture” contained in section 102(z) of the Act (Ill. Rev. Stat. 1979, ch. 561k, par. 1102(z)). From this order of dismissal, the People have appealed to this court pursuant to Supreme Court Rule 604(a)(1). (87 Ill. 2d R. 604(a)(1)).

This appeal presents four separate issues:

(1) Does the listing of psilocyn in section 204(d)(15) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56x/2, par. 1204(d)(15)) suffice to prohibit the possession of mushrooms which, in their natural state, contain psilocyn?
(2) If the Illinois Controlled Substances Act prohibits the possession of mushrooms which, in their natural state, contain psilocyn, then does the Act violate due process in failing to specify that mushrooms containing psilocyn are proscribed?
(3) Does the cultivation of a plant containing a controlled substance constitute the “manufacture” of that substance?
(4) Is the classification of psilocyn as a Schedule I substance arbitrary and thus violative of the principle of equal protection of the laws?

We consider these questions in the order presented above.

At trial, the defendants argued, and the trial court agreed, that the Illinois Controlled Substances Act does not prohibit the possession of mushrooms containing psilocyn. In support of this result, defendants invite comparison with other portions of the Illinois Controlled Substances Act, as well as with provisions of the Cannabis Control Act. For example, the opium poppy and poppy straw, natural source of opium, are listed in Schedule II along with several forms of opium (Ill. Rev. Stat. 1979, ch. 56%, pars. 1206(b)(l)(l) through 1206(b)(l)(6), 1206(b)(3)), and coca leaves, the natural sources of cocaine, are prohibited along with several derivatives of those leaves. (Ill. Rev. Stat. 1979, ch. 56%, par. 1206(b)(4).) Also, the Cannabis Control Act proscribes possession of the Cannabis sativa plant and its seeds and resin. (Ill. Rev. Stat. 1979, ch. 56%, par. 703(a).) Defendants refer to the maxim of statutory construction known as “expressio unius est exelusio alterius,” or, the expression of one thing in a statute implies the exclusion of all others. (People v. Caryl (1977), 54 Ill. App. 3d 537, 369 N.E.2d 926.) Applying this maxim to the Illinois Controlled Substances Act, the defendants argue that the reference to these other natural sources of controlled substances, combined with the omission of Psilocybe mushrooms from the Act, implies that possession of these mushrooms is not illegal.

This reasoning has been employed in several Canadian cases. In Regina v. Parnell (1979), 51 Can. Crim. Cas. 2d 413, the defendant was charged under the Canadian Food and Drugs Act (Can. Rev. Stat. 1970, ch. F-27) with possession of a restricted drug listed in that Act, namely psilocybin. She was alleged to have possessed mushrooms which contained psilocybin. The British Columbia Court of Appeal held that the Food and Drugs Act, by failing to refer to mushrooms as well as psilocybin, could not be construed as prohibiting possession of the mushrooms. Parnell has been followed in other recent Canadian decisions. (Regina v. Cartier (1980), 13 Alta. 2d 164, 54 Can. Crim. Cas. 2d 32; Re Coutu (1981), 61 Can. Crim. Cas. 2d 149.) Defendants urge this court to reach the same result under the Illinois Controlled Substances Act.

However, the Parnell, Cartier and Coutu opinions are dependent upon the wording of the Canadian Food and Drugs Act, which we find quite dissimilar from that of the Illinois Controlled Substances Act. Section 41(1) of the Food and Drugs Act prohibits the possession of a “restricted drug” (Can. Rev. Stat. 1970, ch. F-27, sec. 41(1)), which is defined in section 40 as “any drug or other substance included in Schedule H” (Can. Rev. Stat. 1970, ch. F-27, sec. 40). One of the Schedule H substances is psilocybin or any salt thereof. According to Chief Justice Nemetz, it was the narrow definition of the term “restricted drug” which persuaded him that “the mere possession of the substance psilocybin as an integral part of the natural plant cannot support a conviction for possession of a restricted drug ***.” Regina v. Parnell (1979), 51 Can. Crim. Cas. 2d 413, 414.

As a comparison, Chief Justice Nemetz referred to the definition of “narcotic” in section 2 of the Canadian Narcotic Control Act as “any substance included in the schedule or anything that contains any substance included in the schedule.” (Can. Rev. Stat. 1970, ch. N-l, sec. 2.) He noted that the first three paragraphs of the schedule to the Narcotic Control Act included the opium poppy, coca, and Cannabis sativa, as well as preparations and derivatives from those sources. He concluded that in enacting the Narcotic Control Act, “Parliament intended to prohibit the plant as well as the derivative drug.” Regina v. Parnell (1976), 51 Can. Crim. Cas. 2d 413, 415.

That portion of Schedule I in the Illinois Controlled Substances Act which contains psilocyn lists “any material compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances.” (Ill. Rev. Stat. 1979, ch. 5672, par. 1204(d).) The defendants argued at trial, although they have not done so on appeal, that the General Assembly did not intend to prohibit the possession of “any material” containing these substances because there is no comma between the words “material” and “compound” in this provision. Yet, no definition for the phrase “material compound” has been offered by the defendants, nor have we been able to discern what a “material compound” would be. As the People point out, the series of words “material, compound, mixture, or preparation” appears 12 times in the Schedules to the Illinois Controlled Substances Act, and in these occurrences, “material” is separated from “compound” by a comma 10 times (Ill. Rev. Stat. 1979, ch. 5672, pars. 1206(d), 1206(e), 1208(b), 1208(c), 1208(d), 1208(f), 1210(b), 1210(c), 1210(d), and 1210(e)), while the comma is omitted from that location only twice (Ill. Rev. Stat. 1979, ch. 5672, pars. 1204(d), 1204(e)). The current version of the Act has resolved any apparent inconsistency among these provisions (Ill. Rev. Stat. 1981, ch. 5672, pars. 1204(d), 1204(e)) by inserting a comma between “material” and “compound” in all 12 locations. While normally it is presumed that a legislative amendment is designed to effectuate a change in the law, that presumption may be overcome by the circumstances and substance of the amendment. (People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416). Because, in construing the same words or phrases which occur in different parts of a statute, those words or phrases should be given the same meaning (People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171), we believe that the General Assembly merely intended to clarify existing law. Consequently, a comma must be read between “material” and “compound” in sections 204(d) and 204(e) of the 1979 version of the Illinois Controlled Substances Act.

More importantly, however, the defendants argue that even the broad language purporting to include within Schedule I “any material *** which contains any quantity of *** psilocyn” cannot proscribe the possession of Psilocybe mushrooms without specifically mentioning this natural source of psilocyn. They direct our attention to the well-established rule that penal statutes are to be strictly construed. {People v. Robinson (1982), 89 Ill. 2d 469, 475, 414 N.E.2d 674.) Nonetheless, it must be cautioned that this rule of construction should not be so rigidly applied as to defeat the plainly expressed intent of the legislature. {People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; People v. Jones (1981), 100 Ill. App. 3d 831, 426 N.E.2d 1214.) It is our opinion that the meaning of section 204(d) of the Illinois Controlled Substances Act is expressed without ambiguity. The words “any material *** which contains any quantity of *** psilocyn” mean exactly that — any such material is a Schedule I substance, and thus mushrooms which, in their natural state, contain psilocyn, are included in Schedule I. We find it difficult to see how the General Assembly could have used any more direct language than it employed.

Nor does the omission of mushrooms from the Illinois Controlled Substances Act mandate the construction of that statute urged by the defendants. The rule “expressio unius est exclusio alterius” is of assistance only where the meaning of a statute is ambiguous, because that maxim requires the interpretation of a statute by use of an implication. (People ex rel. Moss v. Pate (1964), 30 Ill. 2d 271, 195 N.E.2d 641; People ex rel. County of DuPage v. Smith (1961), 21 Ill. 2d 572, 173 N.E.2d 485.) Since the Illinois Controlled Substances Act is explicit in prohibiting “any material” containing psilocybin, the failure to mention mushrooms in that Act cannot negate that provision. We cannot exclude from the Illinois Controlled Substances Act by implication that which certainly falls into the broad category of any material containing a substance listed in section 204(d). To so hold would be to ignore the plain wording of that section.

Moreover, a statute should be construed so as to avoid an absurd result. (People v. Bournes (1977), 55 Ill. App. 3d 237, 370 N.E.2d 1230; People v. Floom (1977), 52 Ill. App. 3d 971, 368 N.E.2d 410.) At trial, the defendants introduced the testimony of Dr. Ronald Siegel, a psychopharmacologist and psychologist who has had considerable experience in research on psilocyn. Dr. Siegel stated that psilocyn is taken predominantly by eating mushrooms which contain the substance. He noted that it is possible to produce psilocyn synthetically, but such a process “requires fairly sophisticated chemical apparatus” and demands the use of reagents that are difficult to work with. According to Dr. Siegel, the only company in the world which produced psilocyn, Sandoz Laboratories in Switzerland, stopped manufacturing it in 1966 and turned over much of its supplies to the United States government for distribution to researchers, which is where Siegel was able to obtain psilocyn for his work.

Dr. Siegel also testified that because Psilocybe mushrooms normally contain only .05% psilocyn by dry weight, it would take approximately 227,000 pounds of mushrooms, by dry weight, to produce 300 grams of psilocyn. He explained that the dry weight of the mushrooms would not be equivalent to their weight in an unaltered form, as the weight of a mushroom is primarily that of its water content.

This evidence convinces us that, were we to accept the construction of the statute urged by the defendants, an absurd result would indeed occur. Psilocyn would be prohibited in a manufactured form, which involves a process beyond the capabilities of the “bathroom or kitchen chemist,” as Dr. Siegel commented. It would also be prohibited in a refined form, which requires the extraction of miniscule amounts of psilocyn from massive quantities of mushrooms. Yet, the most common source of the substance, the mushrooms themselves, would be perfectly legal, as would the taking of psilocyn by ingestion of the mushrooms. We cannot believe that the General Assembly intended such a haphazard and ineffectual ban on psilocyn, especially given the reference in the Illinois Controlled Substances Act to any material containing psilocyn. Instead, we hold that, by adopting that statute, as it is worded, the legislature meant to prohibit possession of mushrooms which, in their natural state, contain psilocyn.

The next question posed by this appeal is, given that the Illinois Controlled Substances Act outlaws possession of mushrooms, does that act violate due process by failing to give adequate notice of the criminality of that conduct? This issue involves two separate arguments. First, the Act violates the due process rights of a person who possesses mushrooms which he knows to contain psilocyn, because it does not give fair warning that that possession is illegal. Second, the Act violates the due process rights of a person who possesses mushrooms containing psilocyn without knowing that they contain psilocyn, because the Act does not specify which mushrooms are illegal.

The trial court agreed with the defendants that the Act did not give any indication that possession of mushrooms was illegal. As such, the court concluded that the Act violated the due process rights of individuals who possess mushrooms knowing them to contain psilocyn. The Florida Supreme Court decided similarly in a prosecution under a statute (Fla. Stat. sec. 893.01 et seq. (1975)), which, like the Illinois Controlled Substances Act, is based upon the Uniform Controlled Substances Act (9 Uniform Laws Annotated 197 (1970)). In a 4-3 decision in Fiske v. State (Fla. 1978), 366 So. 2d 423, the court reversed the defendant’s conviction for the possession of psilocybin, a Schedule I substance also contained in Psiloeybe mushrooms. The majority reasoned that if the Florida Drug Abuse Act would specify that psilocybin is contained in certain identifiable mushrooms, listing those mushrooms, then the Act would be constitutional as applied to a defendant charged with possession of mushrooms containing psilocybin. The court continued:

“The statute as presently framed, however, gives no information as to what plants may contain psilocybin in its natural state. More particularly, the statute does not advise a person of ordinary and common intelligence that this substance is contained in a particular variety of mushroom. The statute, therefore, may not be applied constitutionally to appellant. It does not give fair warning that possession of the mushrooms possessed by appellant is a crime.” 366 So. 2d 423, 424.

It is not argued that the proposed application of the Illinois Controlled Substances Act imposes upon first amendment rights, and thus whether the statute would be unconstitutionally applied in this case depends upon whether it meets two criteria. First, the statute must not be so vague that persons of ordinary intelligence must guess at its meaning, and, second, it must provide definite standards for law enforcement officers and triers of fact so that its application does not depend upon personal interpretations. (People v. Garrison (1980), 82 Ill. 2d 444, 412 N.E.2d 483, appeal dismissed (1981), 450 U.S. 961, 67 L. Ed. 2d 610, 101 S. Ct. 1475; Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294.) To meet these requirements, the language used in the statute must convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. (People v. Clark (1979), 71 Ill. App. 3d 381, 389 N.E.2d 911.) This inquiry requires an examination of that language as well as the legislative purpose behind the enactment and any relevant judicial interpretations of the statute. (People v. Kleffman (1980), 90 Ill. App. 3d 1, 412 N.E.2d 1057; People v. Dednam (1973), 55 Ill. 2d 565, 304 N.E.2d 627.) A statute enjoys a presumption of constitutionality. People v. Schwartz (1976), 64 Ill. 2d 275, 356 N.E.2d 8, cert. denied (1977), 429 U.S. 1098, 51 L. Ed. 2d 545, 97 S. Ct. 1116.

Under these established principles of constitutional law, the decision in Fiske is erroneous. While conceding that the Florida Drug Abuse Act, like the Illinois Controlled Substances Act, “explicitly controls any material which contains psilocybin and makes possession of the material a felony,” (366 So. 2d 423, 424; Fla. Stat. sec. 893.03(l)(c)(18) (1970)), the Fiske majority nonetheless held, by implication, that the only natural reading of the phrase “any material” would be limited to a controlled substance “in capsule, pill or similar form.” (366 So. 2d 423, 424.) In our view, this is an overly restrictive and artificial interpretation of that language. In fact, the term “material” is more commonly used to refer to an item which is the source for something else rather than a finished product (see Webster’s Third New International Dictionary 1392 (1971)), and thus, as we have suggested earlier, a person of ordinary intelligence would be amply apprised by section 204(d) of the Hlinois Controlled Substances Act that possession of Psilocybe mushrooms is illegal. As applied to one possessing mushrooms known to contain psilocyn, the Illinois Controlled Substances Act is not unconstitutional.

The trial court indicated that the Act did not specify which mushrooms contained psilocyn, and, by implication, it decided that the Act violated due process as applied to an individual who possessed Psilocybe mushrooms without knowing that they contained psilocyn. Initially, we doubt that these defendants have standing to raise this issue, because, in considering a motion to dismiss the informations, we must assume the truth of the allegations in the informations (cf. People ex rel. Clark v. McCurdie (1966), 75 Ill. App. 2d 217, 220 N.E.2d 318), which means, in this case, that we must accept that the defendants possessed the mushrooms, knowing them to contain psilocyn. The People contend that, in ruling on defendants’ motion, the court erroneously decided a factual issue by stating that the defendants did not know that the mushrooms contained psilocyn. However, a reading of the comments of the court, in their entirety, shows that such a determination was not made.

Even if we concede that the defendants may raise this issue, though, it does not present any doubts of the constitutionality of the Hlinois Controlled Substances Act. An individual who cultivated or otherwise possessed Psilocybe mushrooms without knowing them to contain psilocyn would not be prosecuted successfully under that statute, because in a prosecution for the possession or sale of controlled substances, the State must prove that a defendant had knowledge of the nature of the substance possessed or sold. (People v. Bussie (1968), 41 Ill. 2d 323, 243 N.E.2d 196, cert. denied (1969), 396 U.S. 819, 24 L. Ed. 2d 70, 90 S. Ct. 56; People v. Castro (1973), 10 Ill. App. 3d 1078, 295 N.E.2d 538.) This knowledge requirement meets the objection that the Illinois Controlled Substances Act punishes without warning an offense of which the accused was unaware. (Screws v. United States (1945), 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031; Colautti v. Franklin (1979), 439 U.S. 379, 58 L. Ed. 2d 596, 99 S. Ct. 675.) We conclude therefore that the Illinois Controlled Substances Act’s prohibition of the possession of mushrooms containing psilocyn does not violate the due process rights of either those who possess the mushrooms knowing them to contain psilocyn, or those who possess them unaware of their characteristics.

Although the trial court expressly premised its dismissal of the informations on the constitutional grounds discussed above, the court also noted in passing that the mere cultivation of the mushrooms did not constitute “manufacture” of a controlled substance as prohibited in section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 1401). The People have argued, at trial and before this court, that this construction of the Act is erroneous, and we agree. Section 102(z) of the Act (Ill. Rev. Stat. 1979, ch. 561/z, par. 1102(z)) defines “manufacture” as

“the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling of its container ***.”

“Production” or “produce” means the “manufacture, planting, cultivating, growing, or harvesting of a controlled substance.” (Ill. Rev. Stat. 1979, ch. BQVz, par. 1102(oo).) It has been stated that, by itself, the definition of “manufacture” might suggest that that term refers only to extraction, chemical synthesis or a combination thereof, but when read with the definition of production, it is apparent that the growing of plant matter containing a controlled substance is prohibited. (Boring v. State (Miss. 1978), 365 So. 2d 960, 961, cert. denied (1979), 442 U.S. 916, 61 L. Ed. 2d 283, 99 S. Ct. 2835; see also Bedell v. State (1976), 260 Ark. 401, 541 S.W.2d 297, cert. denied (1977), 430 U.S. 931, 51 L. Ed. 2d 775, 97 S. Ct. 1552.) We believe that this construction of the Illinois Controlled Substances Act is imperative according to its terms.

The final issue in this case was not resolved by the trial court, but appropriate evidence was presented by the defendants, and the argument was made both at the trial level and in this court. It is whether the classification of psilocyn as a Schedule I substance is so arbitrary as to violate equal protection. The criteria for the inclusion of a substance in Schedule I are whether “(1) the substance has high potential for abuse; and (2) the substance has no currently accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.” (Ill. Rev. Stat. 1979, ch. 56V2, par. 1203.) The defendants concede that psilocyn has no known medical use in the United States, so, keeping in mind the reference to a “high potential for abuse,” we must determine “[i]f any state of facts may reasonably be conceived which would justify the classification” of psilocyn as a Schedule I controlled substance. People v. McCabe (1971), 49 Ill. 2d 338, 341, 275 N.E.2d 407, 409; People v. McCarty (1981), 86 Ill. 2d 247, 427 N.E.2d 147.

The hallucinogenic properties of certain mushrooms have long been a matter of common knowledge in several native American cultures. In Mexico, these mushrooms, in addition to being ingested in aid of religious ritual, also took on a symbolic character. (R Furst, Hallucinogens and Culture 75-88 (1976).) Contemporary interest in these varieties of mushrooms may be traced to anthropological studies of surviving “mushroom cults” in Mexico, which studies were begun in the 1950’s, as well as to the first extraction of pure psilocybin from the mushrooms themselves in 1958. F. Brown, Hallucinogenic Drugs 81-83 (1972); B. Wells, Psychedelic Drugs 52-53 (1973).

The physiological effects of psilocyn were described at trial by Dr. Siegel, who, as noted above, has done research on psilocyn under laboratory conditions. He testified that the substance generally begins to affect the subject within 15 minutes to one-half hour after ingestion. It has been said that the first half-hour following the ingestion of the companion substance psilocybin is “rather unpleasant and typified by dizziness, nausea and anxiety” and the next half-hour includes “further somatic effects such as sweating and ataxia.” (B. Wells, Psychedelic Drugs 53 (1973).) It begins to excite electrical activity in the brain, it can alter breathing patterns somewhat, and it may change the subject’s blood pressure. The pupils of the subject frequently become dilated, as may the blood vessels of the skin and neck, producing a flushed appearance. Dr. Siegel has recorded a skin temperature drop of up to 3° (F) in his subjects. These physiological symptoms usually disappear four hours after ingestion, by which time the presence of psilocyn in the blood and tissues of the body has dropped to an immeasurable quantity. Dr. Siegel remarked that a dosage of 3 to 4 milligrams of psilocyn could be toxic, while it would probably take 20 or 30 milligrams to constitute a lethal dose.

As a result of his investigations, Dr. Siegel concluded that psilocyn is not a dangerous drug. He stated that psilocyn was not physically addictive because one does not build up a tolerance to it, and because there are no withdrawal symptoms which occur when a psilocyn user ceases to take the substance. Dr. Siegel also contended that, because the psilocyn experience is not as intensely euphoric and short-lived as that produced by heroin or cocaine, it is not likely to produce psychological dependence.

The defendants urge us to adopt the position taken by Dr. Siegel and find that the classification of psilocyn as a Schedule I substance is irrational. They point to the criteria which have been established for the Illinois Dangerous Drugs Commission in determining the appropriate classification of a controlled substance and argue that, under these guidelines, psilocyn should not be placed in Schedule I. Those criteria are:

“(1) the actual or relative potential for abuse;
(2) the scientific evidence of its pharmacological effect, if known;
(3) the state of current scientific knowledge regarding the substance;
(4) the history and current pattern of abuse;
(5) the scope, duration, and significance of abuse;
(6) the risk to the public health;
(7) the potential of the substance to produce psychological or physiological dependence;
(8) whether the substance is an immediate precursor of a substance already controlled under this Article;
(9) the immediate harmful effect in terms of potentially fatal dosage; and
(10) the long-range effects in terms of permanent health impairment.” (Ill. Rev. Stat. 1979, ch. 56V2, par. 1201(a).)

The defendants contend that Dr. Siegel’s testimony establishes that psilocyn is not harmful according to the factors mentioned in categories (6) through (9), and that its properties in the other categories do not justify its classification in Schedule I.

The Illinois Controlled Substances Act is based on the Uniform Controlled Substances Act. The Uniform Act places psilocyn, along with other major hallucinogenic agents such as LSD, mescaline, peyote, DMT, DET and STP in its Schedule I. The Commissioners reasoned that, in addition to having no accepted medical use in the United States, these hallucinogens “have a high potential for abuse.” Commissioners' note to Section 203, Uniform Controlled Substances Act, 9 Uniform Laws Annotated 197 (1970).

We cannot find this assessment of these substances to be arbitrary and irrational. The main characteristic which unites the hallucinogens is the alteration of the perception of the user. (See V. Uelmen and G. Haddox, Drug Abuse and the Law 77-80 (1974); Note, Hallucinogens, 68 Colum. L. Rev. 521 (1968).) Although the specific effects of a substance such as psilocyn vary according to the user and according to the circumstances under which the psilocyn is taken (Panton and Fischer, Hallucinogenic Drug-Induced Behavior Under Sensory Attenuation, 28 Archives of Gen. Psychiatry 434 (1973)), some generalizations can be made. As Dr. Siegel testified, individuals often initially feel a sense of euphoria, which gives way to a distortion of perception. Siegel , stated that blurred vision occurs, accompanied by a more vivid perception of colors. Sounds may be “seen” and colors may be “heard”; this effect is known as synesthesia. While sources disagree concerning the frequency of hallucinations, in which the individual sees objects which are not there, it is apparent that they do occur. More common appear to be alterations of the individual’s perception of space and time relationships. This, according to Dr. Siegel, would seriously affect a person’s ability to judge distances.

As Dr. Siegel testified, there are several possible adverse psychological reactions to psilocyn. First, an individual may feel a sense of panic with all of the sensory changes which the substance tends to induce. Second, a temporary psychosis may be produced in someone who is not psychologically well balanced. Dr. Siegel stated that he knew of no evidence to suggest that psilocyn led to any long-term mental effects, but it should be noted that Dr. Siegel’s research was performed under laboratory conditions on subjects who were selected because they were psychologically stable. Other case studies have indicated that longer lasting psychological complications can be produced. (See Hyde, Glancy, Omerod, Hall and Taylor, Abuse of Indigenous Psilocybin Mushrooms: A New Fashion and Some Psychiatric Complications, 132 Brit. J. of Psychiatry 602 (1978).) We acknowledge, however, that the research on this and other effects of psilocyn is not plentiful. McDonald, Mushrooms and Madness: Hallucinogenic Mushrooms and Some Psychopharmacological Implications 25 Can. J. of Psychiatry 586 (1980).

Nonetheless, it is not the case that some facts do not exist to support the General Assembly’s decision to place psilocyn along with the other major hallucinogens in Schedule I. Commentators and researchers have disagreed as to the wisdom of the approach taken in prohibiting these substances (compare Pollock, The Psilocybin Mushroom Pandemic, 7 J. Psychedelic Drugs 73 (1975), and Note, Hallucinogens, 68 Colum. L. Rev. 521, 554-60 (1968), with Young, Hutchinson, Milroy and Kesson, The Rising Price of Mushrooms, The Lancet 213 (Jan. 23, 1982)). But, “[wjhether the enactment is wise or unwise; whether it is based on sound economic theory; whether it is the best means to achieve the desired results, and whether the legislative discretion within its proscribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the honest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.” (Thillens, Inc. v. Morey (1957), 11 Ill. 2d 579, 593, 144 N.E.2d 735, 743, appeal dismissed (1958), 355 U.S. 606, 2 L. Ed. 2d 524, 78 S. Ct. 538.) At the time that the General Assembly adopted the Uniform Controlled Substances Act, it had before it information concerning the substances proposed to be controlled, including psilocyn (see Illinois Legislative Investigating Commission, The Drug Crisis — Report of Drug Abuse in Illinois 114-15, 185-86, 354-63 (1971)), and, based on our discussion concerning the effects produced by psilocyn, we cannot say that their decision to include that substance in Schedule I is so arbitrary as to deny the defendants equal protection of the laws.

For these reasons, we hold that the Controlled Substances Act properly prohibits the knowing possession of mushrooms containing psilocyn as a Schedule I substance and is not unconstitutional for so doing. The trial court thus erred in dismissing the informations against the defendants, and the decision of the circuit court of Williamson County is reversed and the cause is remanded for further proceedings on those informations.

Reversed and remanded.

EARNS, P.J., and JONES, J., concur.


author: JUSTICE KASSERMAN JUSTICE HARRISON,

text:
    PIELET BROS. TRADING, INC., Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Fifth District
    No. 82—31
    Opinion filed November 12, 1982.
    HARRISON, J., dissenting.

      Churchill, Nester & McDonnell, of Belleville (A. J. Nester, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Christine G. Zeman, Assistant Attorney General, of counsel), for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Pursuant to Supreme Court Rule 335 (87 Ill. 2d R. 335), respondent, Pielet Bros. Trading, Inc. (Pielet), appeals from order PCB 80— 185 of the Illinois Pollution Control Board (the Board). The Environmental Protection Agency’s (the Agency) complaint, dated October 2, 1980, charged Pielet with (1) operation of a solid waste management site or refuse disposal operation without a permit; (2) violation of trench use requirements; (3) violation of daily cover requirements; (4) violation of spreading and compaction requirements; (5) violation of on-site roads requirements; and (6) causing or allowing open burning. All of the alleged violations occurred prior to October 2, 1978, i.e., more than two years prior to the Agency’s complaint. In Order PCB 80 — 185, the Board found Pielet “in violation of the [Environmental Protection] Act and the Board’s rules as charged,” assessed a penalty of $7,500 against Pielet, and ordered respondent to cease and desist from said violations.

On this appeal, Pielet does not contest the propriety of the Board’s findings regarding the alleged violations. Instead, Pielet contends that (1) under section 21(e) of the Environmental Protection Act (the Act) as it existed at the time of the complaint and the order appealed from (Ill. Rev. Stat. 1977, ch. HV-k, par. 1021(e)), Pielet was exempt from requirements of obtaining a permit, and (2) under section 14 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 15), the Board should not have considered evidence of violations which occurred prior to October 2,1978.

Pielet operates an automobile shredder adjacent to the subject premises. After a junk automobile is culled for valuable components and shredded, Pielet magnetically removes most of its ferrous components for resale. The remaining refuse, or “fluff,” is discarded at the site involved in this appeal. The Agency’s evidence at the April 29, 1981, hearing included several photographs of the site, some of which showed piles of fluff, areas burning or smoking, and the proximity of the site to an interstate overpass. Testimony at the hearing on April 29, 1981, was in pertinent part as follows.

Agency official Patrick McCarthy testified that Pielet’s permit application indicated an estimated refuse volume of 250 cubic yards per day. The witness related that on one occasion he observed seven to 10 acres of exposed shredded material at the site, composed of plastic, fiber, vinyl, foam rubber, and shiny metals.

Perry Mann, an Agency official, testified that, on one occasion, he saw the site unattended with approximately an acre of fluff on fire.

Dave Wieties, a former Agency landfill inspector, testified that on one occasion he observed seven acres of exposed shredded material at the site, about one acre of which was burning, and that on another occasion, he observed five to seven acres of exposed shredded material.

Roger Bowler, manager of the landfill, testified that Pielet accepted automobiles and appliances brought in by other people. According to Mr. Bowler, equipment at the landfill site included a crane (full-time), a 65-ton capacity dump truck (used from 6 a.m. to 6 p.m. daily), a Caterpillar tractor capable of pushing down a building (used 18 to 30 hours a week), and a front-end loader (part-time). Mr. Bowler testified that scavengers who frequented the site in search of copper wire often started fires to remove the insulation from the copper and that Pielet employees had been unable to apprehend the scavengers.

The order appealed from indicates that the landfill is an 80-acre site.

Pielet first contends that it is exempt from permit requirements under section 21(e) of the Act, which provides in pertinent part:

“[No person shall conduct] any refuse-collection or refuse-disposal operations, except for refuse generated by the operator’s own activities, without a permit ***.” (Ill. Rev. Stat. 1977, ch. IIIV2, par. 1021(e).)

The Agency argues that Pielet’s operation does not qualify for this exemption because (1) it is too big an operation, (2) Pielet is disposing of environmentally harmful material, and (3) the waste is not “generated by the operator’s own activities,” since Pielet accepts autos and appliances which people bring in.

In finding that Pielet’s landfill site did not qualify for the section 21(e) exemption, the Board concluded that this exemption “ ‘only exempts minor amounts of refuse which could be disposed of without environmental harm upon the site where it was generated,’ ” citing Environmental Protection Agency v. City of Pontiac (1975), 18 Ill. P.C.B. Op. 303, Reynolds Metals Co. v. Environmental Protection Agency (Aug. 20, 1981, and Nov. 19, 1981) 44 Ill. P.C.B. Op. 55, 57, and R.E. Joos Excavating Co. v. Pollution Control Board (1978), 58 Ill. App. 3d 309, 374 N.E.2d 486. The Board noted the size of the site (80 acres), the daily volume estimate (250 cubic yards), the inflammability of the fluff and the numerous on-site fires, and the metallic content of the fluff, with a “resulting potential for leachate when deposited in water, as it has been.”

In the usual course of events it is unnecessary to look beyond the language of the statute to learn the legislative intent, but when differing interpretations are proffered, legislative intent must be gathered not only from the language used, but also from the reasons for the enactment and the purposes to be thereby attained. (R.E. Joos Excavating Co. v. Pollution Control Board.) Rules of construction are useful only where there is doubt as to the meaning of a statute, and a court may not alter that meaning beyond the clear import of the language employed therein. (Sickler v. National Dairy Products Cory. (1977), 67 Ill. 2d 229, 235; see Schoellkoyf v. DeVry (1937), 366 Ill. 39, 49, 7 N.E.2d 757, 762.) We find the legislature’s reference to refuse “generated” by the operator’s own “activities” inherently ambiguous. If an operator of a landfill advertised that the landfill was open for business, would not the refuse brought in be, in a sense, “generated” by the operator’s advertising “activities”?

Obviously, the legislature did not intend the exemption of section 21(e) to dominate and defeat the other provisions of the Act. In section 20(a)(2), the General Assembly states:

“[E]xcessive quantities of refuse and inefficient and improper methods of refuse disposal result in scenic blight, cause serious hazards to public health and safety, create public nuisances, divert land from more productive uses, depress the value of nearby property, offend the senses, and otherwise interfere with community life and development.” (Ill. Rev. Stat. 1981, ch. lllVz, par. 1020(a)(2).)

In view of the evils decried in section 20(a)(2), we conclude that the exemption of section 21(e) must be given a somewhat more restrictive construction than that suggested by a literal reading of section 21(e) standing alone.

The Agency urges that we adopt the Board’s construction of section 21(e), which construction the Agency contends is long-standing and consistent and has been tacitly approved by the legislature. In Environmental Protection Agency v. City of Pontiac (1975), 18 Ill. P.C.B. Op. 303, 306, the Board stated: “The intent of Section 21(e) was to exempt minor amounts of refuse which could be disposed of without environmental harm on the site where it was generated.” In Environmental Protection Agency v. R.E. Joos Excavating Co. (1977), 43 Ill. P.C.B. Op. 161, affd (1978), 58 Ill. App. 3d 309, 374 N.E.2d 486, the Board “reaffirms its position *** that the intent of section 21(e) was to exempt minor amounts of refuse which could be disposed of without environmental harm on the site where it was generated.” The Board further observed in Joos that its opinion in Pontiac was before the legislature when section 21(e) was amended, affording the legislature ample opportunity to differ with the Board’s construction of section 21(e) or, alternatively, to provide the Board with some direction; however, as the Board observed, the legislature had not done this.

Since 1975, section 21 has been amended several times without change in the exemptive language of section 21(e). (Pub. Act 79 — 762, eff. Oct. 1, 1975 (1975 Ill. Laws 2329; Ill. Rev. Stat. 1975, ch. IIIV2, par. 1021); Pub. Act 81 — 856, eff. Jan. 1, 1980 (1979 Ill. Laws 3124; Ill. Rev. Stat. 1979, ch. IllV2, par. 1021); Pub. Act 81 — 1186, eff. Jan. 1, 1981 (1979 Ill. Laws 4516); Pub. Act 81-1484, eff. Sept. 18, 1980(1980 Ill. Laws 1782; Ill. Rev. Stat. 1981, ch. lll1^, par. 1021).) More recently, section 21 was amended to limit the exemption for wastes generated by the operator’s own activities to those which are “stored, treated, disposed or transported within the site where such wastes are generated ***.” Pub. Act 82 — 380, eff. Sept. 3, 1981 (1981 Ill. Laws 1968; Ill. Rev. Stat. 1981, ch. IIIV2, par. 1021(d)(1)).

While the courts will not allow a governmental agency to extend the operation of a statute by administrative regulation (Illinois Bell Telephone Co. v. Illinois Commerce Com. (1953), 414 Ill. 275, 279, Ill N.E.2d 329, 332), a reasonable interpretation of a statute by an agency charged with enforcement of that statute is entitled to great weight (R.E. Joos Excavating Co. v. Pollution Control Board; Freeman Coal Mining Corp. v. Ruff (1967), 85 Ill. App. 2d 145, 149, 228 N.E.2d 279, 282). Such a construction is even more persuasive if consistent, long-continued, and in conjunction with legislative acquiescence on the subject. (People ex rel. Watson v. House of Vision (1974), 59 Ill. 2d 508, 514-15, 322 N.E.2d 15, 19, cert. denied (1975), 422 U.S. 1008, 45 L. Ed. 2d 671, 95 S. Ct. 2631.) Such acquiescence appears where the legislature, presumably aware of the administrative interpretation in question, has amended other sections of the act since that interpretation but left untouched the sections subject to the administrative interpretation in question. Freeman Coal Mining Corp. v. Ruff.

Examining the instant situation in light of the above principles, we conclude as follows: First, the Board has at least twice interpreted the section 21(e) exemption as applicable only to minor amounts of refuse which could be disposed of without environmental harm on the site where generated. Second, in light of the exemptive language used and the evils the act is directed to remedy, such construction is reasonable. Third, the legislature did not amend or more specifically define that exception during the period from 1975, the date of the Board’s Pontiac decision, through October 1980, when the instant complaint was filed, i.e., an apparent (if less than ideal) demonstration of acquiescence by the legislature. As no persuasive authority for a contrary construction is urged, and as we have found none, we concur in the construction advanced by the Agency.

Applying this construction to the instant facts, we find that Pielet’s operation does not concern “minor amounts” of refuse. The acreage of the site, the estimated volume of refuse disposed of daily, and the stature and amount of the equipment in use at the site indicate that Pielet’s operation is not “minor.” We conclude that the Board did not err in determining that the section 21(e) exemption was not available to Pielet.

Additionally, we agree with the Agency’s contention that the shredder refuse was not “generated by the operator’s own activities.” (Ill. Rev. Stat. 1975, ch. llV-k, par. 1021(e).) Although Pielet “processes” junk cars and appliances, they are nevertheless other people’s cars and appliances. (See R.E. Joos Excavating Co. v. Pollution Control Board (1978), 58 Ill. App. 3d 309, 374 N.E.2d 486, the court rejecting Joos’ contention that material resulting solely from Joos’ demolition and excavating business was “refuse generated by the operator’s own activities.”) That the Board did not expressly address this issue in the order complained of does not prevent this court from affirming that order on that basis. See Illinois Bell Telephone Co. v. Elinois Commerce Com. (1953), 414 Ill. 275, 282-83, 111 N.E.2d 329, 334.

Having determined that Pielet was not entitled to the section 21(e) exemption, we need not consider the alternative theories urged by the Agency to support affirmance of the Board’s order.

We next consider Pielet’s contention that the Board erred in considering evidence of violations occurring more than two years before the complaint was filed. Section 14 of the Limitations Act, upon which Pielet relies, provides in pertinent part:

“Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years next after the cause of action accrued ***.” (Ill. Rev. Stat. 1979, ch. 83, par. 15.)

The Agency responds that section 14 applies to “personal actions” only and not to actions by governmental agencies. Alternatively, the Agency argues that if section 14 applies to the case at bar, it applies, not to exclude evidence of violations more than two years old, but only to prevent the Board from considering those violations in assessing a penalty against Pielet.

Unless the terms of a statute of limitations expressly include the State, county, municipality or other governmental agencies, the statute, so far as public rights are concerned, as distinguished from private and local rights, is inapplicable to them. (Clare v. Bell (1941), 378 Ill. 128, 130-31, 37 N.E.2d 812, 814.) The question is whether the State (or its agency or subdivision) is asserting public rights on behalf of all the people of the State or private rights on behalf of a limited group. (In re Estate of Bird (1951), 410 Ill. 390, 394, 102 N.E.2d 329, 331.) Here, the Agency argues, and we agree, that what the Agency seeks is to protect the public’s right to a clean environment. Moreover, not only does section 14 of the Limitations Act fail to expressly include the State or the Agency, but section 14 is one of a group of sections that, in general, pertain to personal actions. See People ex rel. Stubblefield v. City of West Frankfort (1950), 340 Ill. App. 443, 447, 92 N.E.2d 531, 533.

Defendant’s authorities directed to this point are both inapposite. M.H. Vestal Co. v. Robertson (1917), 277 Ill. 425, 115 N.E. 629, and Hoskins Co.al & Dock Corp. v Truax Traer Coal Co. (7th Cir. 1951), 191 F.2d 912, cert. denied (1952), 342 U.S. 947, 96 L. Ed. 704, 72 S. Ct. 555, both involve actions by private parties, unlike the instant case.

In conclusion, we hold that the Board did not err in determining that section 14 of the Limitations Act did not apply to the instant action.

For the foregoing reasons, the order of the Illinois Pollution Control Board is affirmed.

Affirmed.

WELCH, J., concurs.

JUSTICE HARRISON,

dissenting:

I respectfully dissent.

I disagree with the majority’s construction of section 21(e) and its decision that Pielet’s automobile shredding operation is not exempt from the permit requirement contained therein.

The majority bases its conclusions on a reading of the “evils decried in section 20(aX2)” and on legislative intent. However, as the Illinois Supreme Court has stated, “Legislative intent is to be derived primarily from a consideration of the legislative language itself. ‘There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.’ ” (People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, 371, 432 N.E.2d 855.) The language contained in section 21(e) is unambiguous. It excepts any operation whose refuse is “generated by the operator’s own activities.” Here, Pielet is engaged in the business of shredding auto parts and culling valuable components for resale. The refuse, “fluff,” is a by-product of this activity. Because Pielet’s automobile shredding business generates this refuse, his operation falls within the literal meaning of the section 21(e) exemption. A permit should, therefore, not be required.

For this reason, I would reverse the order of the Illinois Pollution Control Board.