author: Mr. PRESIDING JUSTICE KASSERMAN

text:
    JACQUELINE MITCHELL et al., Plaintiffs-Appellees and Appellants, v. UNITED ASBESTOS CORPORATION et al., Defendants-Appellants and Appellees.
    Fifth District
    No. 79-566
    Opinion filed September 14,1981.

      John L. McMullin, of Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, of St. Louis, Missouri, Joseph R. Davidson, of Bernard & Davidson, of Granite City, and Robert W. Schmieder, of Wagner, Bertrand, Bauman & Schmieder, of Belleville, for appellants.
    Sandor Korein, of Cohn, Carr, Korein, Kunin, Schlichter and Brennan, of East St. Louis, for appellees.
   Mr. PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

Action was brought in a four-count complaint to recover damages for the wrongful death of Frank J. Mitchell, who allegedly died from the disease of asbestosis. Decedent died on October 14, 1972, and the complaint was filed in the circuit court of Madison County, Illinois, on October 15,1974, the day following an Illinois legal holiday. Counts I and II of the complaint, filed by decedent’s widow as administratrix of his estate, were for wrongful death. Count I alleged negligence, and count II sought recovery under a theory of products liability. In counts III and IV, the widow individually, and as administratrix and also as mother and guardian of decedent’s children, sued for loss of consortium and for medical and surgical expenses, lost earnings, and pain and suffering of decedent because of disability until the time of his death. Count III alleged negligence, and count IV was based on products liability.

Following the filing of defendants’ motions to dismiss all counts of the complaint, the trial court on October 17,1979, entered an order which provided, inter alia, as follows:

“The joint motions of all defendants to dismiss Counts I, II, III and IV coming before the Court, argument having been heard by the Court and memorandums of law submitted to the Court, it is hereby ordered that defendants’ motions to dismiss Counts III and IV of plaintiffs’ complaint are hereby sustained and said Counts III and IV of plaintiffs’ complaint are hereby dismissed with prejudice.
The Court expressly finds that there is no just reason for delaying enforcement or appeal of this order in accordance with Civil Rule 110A Section 304(a).
The Court further orders that defendants’ motions to dismiss Counts I and II of plaintiffs’ complaint are hereby overruled. The Court further finds that the above orders overruling defendants’ motions to dismiss Counts I and II involve questions of law as to which there is substantial grounds for difference of opinion and that an immediate appeal from this order would materially advance the ultimate termination of the litigation. The questions of law involved are (1) whether the administratrix of a Missouri resident’s estate who is duly appointed by the Missouri courts is the proper plaintiff in an action filed pursuant to the Illinois Wrongful Death Act, and if she is not the proper plaintiff, whether her complaint should be dismissed; (2) whether the substantive laws including limitations periods and conflict of law rules, of Illinois or Missouri, is applicable to the issues raised in the motion to dismiss; (3) whether any claims presented in plaintiffs’ complaint are barred by the applicable statutes of limitations; (4) whether Ill. Rev. Stat. Ch. 131, par. 1.11 (1973), is applicable in this action brought pursuant to Ill. Rev. Stat. Ch. 70, par. 2 (1973); (5) whether, and to what extent, the Missouri or Illinois wrongful death acts, including the repealed $50,000 limitation on wrongful death in the Missouri Wrongful DeathnAct, are applicable to this action. The Court specifically makes this finding in accordance with Civil Rule 110A Section 308(a).”

Defendants appeal from the trial court’s order denying their motions to dismiss counts I and II of plaintiffs’ complaint and raise those questions certified to this court by the trial court under Supreme Court Rule 308(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 308(a)). Plaintiffs also appeal from the trial court’s dismissal of counts III and IV of the complaint.

At the outset, it should be noted that the trial court certified one of the questions of law involved as being whether a specified provision of chapter 131 of the 1973 Illinois Revised Statutes is applicable to a suit filed under section 2 of chapter 70 of the 1973 Illinois Revised Statutes. We conclude, however, that the statutory provisions controlling the instant case are those which were in effect on the date of decedent’s death and are found in the 1971 edition of the Illinois Revised Statutes. Parenthetically, both versions of the statutes are identical with the exception that under the 1971 edition, the amount recoverable in a wrongful death action is directed to be distributed to the “widow and next of kin” of the decedent while under the 1973 statutes, such distribution is to be made to the “surviving spouse and next of kin.” Those individuals are obviously the same in the case at bar.

The record reveals that the decedent, Frank J. Mitchell, was, until his death at the age of 44 on October 14, 1972, a resident of St. Louis, Missouri. He worked in asbestos application as a pipe coverer in 1949 and 1950, then spent several years in military service. On his return to civilian life, he again began working with asbestos in 1954 as a member of Local 1, Heat and Frost Insulators and Asbestos Workers, AFL-CIO. Mitchell was a journeyman pipe coverer and was sent out on jobs by telephone calls from both his union and employers. He continued to work with asbestos-containing materials, such as insulation, for a variety of employers in both Missouri and Illinois until shortly before his death. During his career, he worked 50 to 60 percent of the time in Missouri and 40 to 50 percent of the time in Illinois. He paid income taxes in both Missouri and Illinois.

In 1971, the decedent began complaining of respiratory difficulties and shortness of breath. When he was hospitalized for tests, decedent was diagnosed as suffering pneumoconiosis, asbestosis, far advanced with pulmonary fibrosis, caused by inhalation of asbestos fibers. He was released and then returned to work, including work in Illinois; however, he continued to suffer shortness of breath and to lose time from work as a result of his illness. He began losing weight, was rehospitalized for five months, and subsequently died of asbestosis two weeks after his final release from the hospital. Surviving him were his wife, two minor children, and his mother.

Defendants are all foreign corporations. All are engaged in the manufacture, sale and distribution of products containing magnesium and asbestos, which are used for insulation, adhesion and construction. All defendants do business in Madison County, Illinois, and apparently most defendants are authorized to do business in both Illinois and Missouri.

Frank J. Mitchell died on October 14, 1972, a resident of St. Louis, Missouri, the State in which he had resided throughout his life. The record reflects that decedent’s surviving wife, children, and mother were all residents of the State of Missouri. The record further reflects that all medical bills of decedent’s last illness and his funeral bill were incurred in Missouri.

A petition for letter of administration of decedent’s estate was filed in St. Louis County, Missouri, on October 11, 1974, and on October 15, Jacqueline Mitchell, decedent’s widow, was appointed administratrix. On the same date, Mrs. Mitchell filed the four-count complaint in the circuit court of Madison County, Illinois. The complaint alleged that defendants did business in Madison County, Illinois, including manufacturing, distributing and selling various items containing asbestos; and that during the last years of his life, decedent was employed at various job sites in Illinois, during which time he was exposed to, contacted, and ingested asbestos from those products.

At a subsequent time, all defendants joined in a document entitled “Motions Amending and Supplementing All Defendants’ Prior Motions to Dismiss and/or to Strike,” which raised the issues now before this court on appeal. After considering lengthy memoranda, the trial court denied all defendants’ motions on May 20, 1977. Some defendants filed answers to plaintiffs’ complaint, then moved both to reconsider the May 20, 1977, order and for leave to withdraw their answers. On October 21, 1977, the court granted all answering defendants leave to withdraw their answers and on October 17, 1979, granted the motions of all defendants to reconsider and vacated the May 20, 1977, order. The parties now appeal from additional provisions of the October 17, 1979, order overruling, in part, defendants’ motions to dismiss or to strike and sustaining such motions in part.

The defendants appeal from the trial court’s denial of their motions to dismiss counts I and II of plaintiffs’ complaint. The five issues certified by the trial court with respect thereto combine to present a significant question of choice of law. Defendants assert that procedural and substantive questions involved in the case should be governed by Missouri law, while plaintiffs contend that the appropriate law governing all questions is that of Illinois.

The statutes of Missouri and Illinois applicable to wrongful death which Were in effect at the time of decedent’s death are in direct conflict. Section 537.080 of the Missouri Wrongful Death Act (1987 Mo. Laws §537.080) provided as follows:

“Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, * * * the person who * * * would have been liable if death had not ensued shall be liable to an action for damages, * * * which damages may be sued for and recovered.
(1) By the spouse or minor children, natural or adopted of the deceased, either jointly or severally, * * * and provided further that only one action may be brought under this subdivision against any one defendant; or
(2) If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, natural or adoptive, who may join in the suit, and each shall have an equal interest in the judgment; * * * or
(3) If there be no husband, wife, minor child or minor children, natural born or adopted as herein indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased * *

Under this statutory provision, Jacqueline Mitchell’s suit as administratrix of her husband’s estate was not properly brought, because the decedent was survived by his widow, two children, and one of his parents.

The Missouri Wrongful Death Act in effect at the time of decedent’s death also included a limitation on the amount of damages recoverable. The act stated:

“In every action brought under section 537.080, the jury may give to the surviving party or parties who may be entitled to sue such damages, not exceeding fifty thousand dollars, as the jury may deem fair and just for the death and loss thus occasioned, with reference to the necessary injury resulting from such death, and having regard for the mitigating or aggravating circumstances attending the wrongful act, neglect or default resulting in such death.” 1967 Mo. Laws §537.090.

At the time of decedent’s death, the Missouri statute of limitation for a wrongful death action was two years. (1967 Mo. Laws §537.100.) Since decedent’s death, each of these statutes has been repealed. The $50,000 limit on recovery for wrongful death was removed in 1973 (Mo. Rev. Stat. §536.090 (Supp. 1973)). The “terraced” scheme for choice of plaintiffs has been abolished, and the period within which one could bring suit extended to three years. 1979 Mo. Laws §§537.080, 537.100.

The Illinois statutes pertaining to wrongful death provide that suit shall be brought “by and in the names of the personal representatives” of the deceased person. (Ill. Rev. Stat. 1971, ch. 70, par. 2.) Since 1967, there has been no limitation on the amount recoverable for wrongful death. The amount recovered is to be distributed “to each of the widow and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.” (Ill. Rev. Stat. 1971, ch. 70, par. 2.) Under the terms of the statute, every action “shall be commenced within 2 years after the death” of the decedent.

Traditionally, questions of choice of law have been solved by applying the law of the place of the wrong (lex loci delicti), resulting in the rights and liabilities of the parties being determined by the local law of the State where the injury occurred. The doctrine was relatively easy to apply, provided predictability of outcome, and discouraged forum shopping. In recent years, however, the doctrine has been discredited because “the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues.” (Ingersoll v. Klein (1970), 46 Ill. 2d 42, 46, 262 N.E.2d 593, 595.) Because of such criticism, most States, including Illinois, have adopted the principles outlined by the Restatement of Conflict of Laws.

Sections 6 and 145 of the Restatement (Restatement (Second) of Conflict of Laws §§6, 145 (1971)), provide as follows:

“§6. Choice-of-Law Principles.
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.”
“§145. The General Principle

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in §6.

(2) Contacts to be taken into account in applying the principles of §6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.”

Initially, courts applying the Restatement approach to choice of law questions attempted to determine which State had the “most significant relationship” to the parties by counting contacts in each State and comparing them in quantitative groups. However, the counting of each State’s contact to the parties did little more to protect the interests of various jurisdictions in the resolution of particular issues than did the old lex loci delicti rule. For example, when controlling contacts were counted, the domicile of the parties, with all the contacts appurtenant thereto, would often result in the substitution of “a domiciliary conceptualism that rested on a vested right accruing from the fact of domicile” for the vested right accruing from “the place of the injury” under lex loci delicti. (See Rosenthal v. Warren (2d Cir. 1973), 475 F.2d 438, 444.) Neither approach accurately reflected the interests which various States might have in the issues being litigated.

To replace the counting of contacts analysis, various States have adopted a sophisticated “interest analysis” approach to choice of law problems. (Rosenthal, 475 F.2d 438, 444.) This approach is based on the conclusion that “[c]ontacts obtain significance only to the extent that they relate to the policies and purposes sought to be vindicated by the conflicting laws.” (Miller v. Miller (1968), 22 N.Y.2d 12, 17, 290 N.Y. Supp. 2d 734, 738, 237 N.E.2d 877, 880; In re Estate of Crichton (1967), 20 N.Y.2d 124, 134-35, 281 N.Y. Supp. 2d 811, 820, 228 N.E.2d 799, 806.) Instead of a mere counting of contacts, what is therefore required is a “consideration of the interests and public policies of potentially concerned states and a regard as to the manner and extent of such policies as they relate to the transaction in issue.” Johnson v. Spider Staging Corp. (1976), 87 Wash. 2d 577, 555 P.2d 997, 1001; Potlatch No. 1 Federal Credit Union v. Kennedy (1969), 76 Wash. 2d 806,_, 459 P.2d 32, 35.

It appears that case law in both Illinois and Missouri has also rejected the “counting of contacts” approach in favor of the more sophisticated “interest analysis” construction of the Restatement. In Pancotto v. Sociedade de Safaris de Mocambique, S.A.R.L. (N.D. Ill. 1976), 422 F. Supp. 405, the plaintiff brought action in Federal court, based on diversity, to recover for a personal injury she sustained while on a hunting safari in Mozambique. The court noted that although Mozambique had the majority of contacts with the two parties and the occurrence, the fact was not necessarily determinative of the interest each jurisdiction had in the issues involved. In this regard the court stated:

“These contacts and the state interests evoked by them indicate that both Illinois and Mozambique are interested in the resolution of the liability issue. Both jurisdictions’ interests are significant. The numerous Mozambique contacts highlight that government’s interest in controlling the conduct of those who take action within its borders, and the interest in affording the protection of its laws to its domiciliaries. Illinois, on the other hand, has a strong interest in seeing that its residents are adequately compensated for tortious injuries. The Illinois interest, although based upon a single contact, cannot for that reason be automatically dismissed as less significant. A contact assumes significance only in view of the legal issue to which it relates. Our evaluation of the contacts indicates that both Illinois and Mozambique are validly interested in the resolution of the issue of defendant’s liability, and we hesitate to characterize either jurisdiction’s interest as more significant.” Pancotto, 422 F. Supp. 405, 408.

In Griggs v. Riley (Mo. App. 1972), 489 S.W.2d 469, the Missouri Court of Appeals addressed a choice of law question where an Illinois driver and passenger took a social trip to Missouri, where an accident occurred. The Illinois guest statute, which insulated the driver from suit by the passenger, conflicted with the Missouri policy of compensating persons negligently injured on its highways. The court refused to place sole reliance on the contacts outlined in section 145 of the Restatement, considering instead the basic principles governing choice of laws under section 6 of the Restatement. The court there stated:

“Since we are dealing here with the relationship between the parties, and since * * * the place of accident in this type of case is largely fortuitous, paragraphs 2(c) and (d) of §145 [which enumerates as significant contacts the domicile of parties and place where relationship is centered] would appear to provide the basis upon which determination is to be made. Those two paragraphs would, if considered alone, require that Illinois law governing the relationship be applied. But §145 must be viewed from the proper perspective. The basic principles governing choice of laws are those enumerated in §6. Section 145 simply provides that certain contacts may be taken into account in determining the choice of law under the principles of §6. So we must examine the principles of §6, paragraph 2.” Griggs, 489 S.W.2d 469, 473.

Those cases which have criticized contact counting and adopted interest analysis focus on the policies of the jurisdictions. An example is Leschkies v. Playboy Club of Lake Geneva, Inc. (N.D. Ill. 1979), 465 F. Supp. 80, 82, in which it was stated:

“The Restatement further provides that the above-mentioned contacts are to be evaluated in light of those underlying policy factors important to the tort area, which include among them the relevant policies of the forum and the relevant policies of any other state which may have a dominant interest in the determination of a particular issue being considered.”

The desire to isolate and analyze the actual interests of the various jurisdictions in the litigation has given rise to a three-step process: “6 * # first to isolate the issue, next to identify the policies embraced in the laws in conflict, and finally to examine the contacts of the respective jurisdictions to ascertain which has a superior connection with the occurrence and thus would have a superior interest in having its policy or law applied.” (Miller v. Miller, 22 N.Y.2d 12, 16, 290 N.Y. Supp. 2d 734, 737, 237 N.E.2d 877, 879; In re Estate of Crichton, 20 N.Y.2d 124, 133-34, 281 N.Y. Supp. 2d 811, 819-20, 228 N.E.2d 799, 805-06; Dym v. Gordon (1965), 16 N.Y.2d 120, 124, 262 N.Y. Supp. 2d 463, 466, 209 N.E.2d 792, 794.) When this process is applied to the facts of an individual case, the choice of law principles outlined in section 6 of the Restatement are effectively applied.

In the instant case, there are several issues involved since Missouri and Illinois law conflict at a number of points. The first issue is whether the administratrix was the appropriate person to bring the wrongful death lawsuit, as provided by Illinois law, or was precluded from doing so by applying Missouri law. A second issue is whether the $50,000 limitation on recovery for wrongful death in Missouri is to be applied. Subsidiary to these questions is the issue of which substantive laws, including statute of limitations, are applicable to the plaintiff’s suit.

After isolating the issues, we are next directed to “identify the policies embraced in the laws in conflict.” The committee comments to section 6 of the Restatement outline those circumstances where the identification of underlying policies is particularly important as follows:

“Basic policies underlying particular field of law. This factor is of particular importance in situations where the policies of the interested states are largely the same but where there are nevertheless minor differences between their relevant local law rules. In such instances, there is good reason for the court to apply the local law of that state which will best achieve the basic policy, or policies, underlying the particular field of law involved. * ° Restatement (Second) of Conflict of Laws §6, comment h, at 15 (1971).

In determining the policies reflected by a State’s statutory scheme, individual statutes may not be considered outside of the purpose to which the scheme as a whole is addressed. In this regard, the committee comment further states in part:

“The content of the relevant local law rule of a state may be significant in determining whether this state is the state with the dominant interest. So, for example, application of a state’s statute or common law rule which would absolve the defendant from liability could hardly be justified on the basis of this state’s interest in the welfare of the injured plaintiff.” Restatement (Second) of Conflict of Laws §6, comment f, at 15 (1971).

While the statutes of Missouri and Illinois specifying who may bring an action for wrongful death differ greatly, the policies underlying those statutes do not differ at all. Under the Missouri statute, a suit for wrongful death may be brought within one year of decedent’s death only by the spouse or minor children of the deceased, and if they do not sue, only by the father and mother of the deceased. (1967 Mo. Laws §537.080.) It is only where none of the above parties survived and brought suit could the administrator of the estate, as personal representative of the decedent, institute suit. In a recent case, the Missouri Supreme Court explained the basic policy underlying the statutory scheme, stating:

“We believe that §537.080(1) establishes the general principle that first preference is given to those persons who naturally suffer the greatest loss; and that subsection 2 and 3 of that section establish exceptions to that principle.” Kausch v. Bishop (Mo. 1978), 568 S.W.2d 532, 536.

While Illinois, unlike Missouri, specifically provides that a wrongful death action is to be brought by the personal representative of the decedent, the policy underlying the statutory scheme is precisely the same as that in Missouri. The wrongful death statute itself provides that the amount recovered in a wrongful death action shall be distributed to the widow and next of kin in proportion to the dependency of each such person upon the deceased person. (Ill. Rev. Stat. 1971, ch. 70, par. 2.) Hence, in Illinois, as well as Missouri, “first preference is given to those persons who naturally suffer the greatest loss.”

Since decedent’s death in 1972, the so-called “terraced” wrongful death provisions of the Missouri statute have been subject to criticism by the courts of Missouri. In Kausch v. Bishop the court stated:

“The courts of this state have struggled long and hard to reconcile the difficulties and perplex problems raised in our present wrongful death statutes. The problems are recurring and the resolutions adopted are sometimes contradictory. In view of the difficulties and in view of the new light now shed on traditional concepts that has governed the statutes and judicial decisions for years, we urge the General Assembly to review the present statutes relating to wrongful death and adopt a comprehensive, simpler and more organized Death Act which conforms to the basic needs of contemporary society.” (568 S.W.2d 532, 537.)

In response to such recommendations, the Missouri General Assembly repealed the “terraced” scheme in 1979.

In view of the foregoing, it is apparent that the policies of the interested States, Illinois and Missouri, are the same. Hence, there is good reason to apply the local law of that State which will best achieve the basic policy underlying the field of law involved. Under the circumstances presented here, it appears that Illinois law best achieves the policy expressed by both States.

While the policy of both States is to give first preference in wrongful death actions to those persons who suffer the greatest loss, the policies of the two States with regard to the amount recoverable is not the same. At the time of decedent’s death in 1972, Missouri placed a $50,000 limit on the amount recoverable for a wrongful death, and Illinois had no such limitation. Generally, a State’s interest in limiting wrongful death damages is to protect defendants from excessive financial burdens, as well as to eliminate speculative claims and difficult computation issues. (Johnson v. Spider Staging Corp.) The interest in preventing financial burdens is primarily local, in that the State seeks to protect its own residents. Johnson v. Spider Staging Corp.

While a major policy behind a State’s interest in allowing full recovery is to attempt to compensate survivors for their loss, a second purpose is deterrence. In Hurtado v. Superior Court (1974), 11 Cal. 3d 574, 583, 522 P.2d 666, 672, 114 Cal. Rptr. 106, 112, the court stated:

“It is manifest that one of the primary purposes of a state in creating a cause of action in the heirs for the wrongful death of the decedent is to deter the kind of conduct within its borders which wrongfully takes life. * * * It is also abundantly clear that a cause of action for wrongful death without any limitation as to the amount of recoverable damages strengthens the deterrent aspect of the civil sanction: ‘the sting of unlimited recovery * ** * more effectively penalize[s] the culpable defendant and deter[s] it and others similarly situated from such future conduct.’ [Citations.]”

Accordingly, interest analysis on the issue of limitations on recovery involves a balance of the Illinois interest in deterring conduct against the Missouri interest in limiting recovery against resident corporations. Cf. Rosenthal v. Warren.

Missouri’s interest in limiting recovery has become somewhat diluted, however. In recent years, a number of States have repealed their wrongful death limitations, so that few States retain an outright limit on recovery. (Rosenthal v. Warren.) Missouri itself repealed its limitation on wrongful death recovery in 1973, and the Missouri Supreme Court recognized the effect such repeal had on cases which preceded it and stated:

“In addition to approving of the conclusion reached as well as the approach to evaluating the significance of the ‘contacts’ noted, we add only the comment, i.e., that Missouri has removed the $50,000 limit on recovery for wrongful death by amendment of Section 537.090, RSMo 1969, Laws 1973, p__, H. B. No. 173, §1. Such action by the General Assembly makes non-persuasive the railroad’s argument that Missouri has some compelling interest to restrict recovery in the instant matter.” State ex rel. Broglin v. Nangle (Mo. 1974), 510 S.W.2d 699, 704.

After identifying the policies embraced in the laws in conflict, we are directed to “examine the contacts of the respective jurisdictions to ascertain which has a superior connection with the occurrence and thus would have a superior interest in having its policy or law applied.” These contacts are significant only to the extent that they relate to the policies of the conflicting laws. Miller v. Miller.

The first contact enumerated in section 145 of the Restatement is the place of injury. This contact is recognized as being important because “persons who cause injury in a state should not ordinarily escape liabilities imposed by the local law of that state on account of the injury.” (Restatement (Second) of Conflict of Laws §145, comment e, at 419 (1971); Forty-Eight Insulations, Inc. v. Johns-Manville Products Corp. (N.D. Ill. 1979), 472 F. Supp. 385, 392.) In the instant case, decedent’s injury was the result of years of employment in both Missouri and Illinois.

The location of the second contact, the place of the conduct which caused injury, is unclear. A determination of where conduct took place is difficult where decedent’s injury is the culmination of years of exposure to defendants’ product because the defendants commit no single overt act which directly causes injury to the victims. Cf. Forty-Eight Insulations, Inc.

The third contact is the domicile, place of incorporation, and place of business of the parties. This contact is significant “because of a state’s interests in fully compensating its residents who are tort victims, in insuring that its residents comply with its tort standards, and possibly in insulating a domiciliary from liability.” (Forty-Eight Insulations, Inc., 472 F. Supp. 385, 392.) In the instant case, defendants are careful to point out that the surviving spouse, children, and parent of the decedent are all residents of Missouri. Consequently, they assert that only Missouri has an interest in who the appropriate party to bring an action for wrongful death should be. However, the policy underlying the Missouri statute is to ensure that “first preference is given to those persons who naturally suffer the greatest loss”; therefore, the interest of Missouri which results from residence in the State is the welfare of an injured plaintiff. Defendants seek to have themselves absolved of liability as a result of this contact; however, as the Restatement notes, “application of a state’s statute or common law rule which would absolve the defendant from liability could hardly be justified on the basis of this state’s interest in the welfare of the injured plaintiff.” (Restatement (Second) of Conflict of Laws §6, comment f, at 15 (1971).) Accordingly, the fact that the decedent’s survivors were domiciliaries of Missouri and decedent’s probate estate was opened in Missouri is not a significant contact for choice of law purposes where it is used only in an attempt to defeat recovery by the domiciliaries, in contravention of the State interest which arises from the fact of their local domicile.

Defendants also rely on the widow’s and children’s residence in Missouri in reference to the $50,000 limitation on recoveries for wrongful death. As noted, however, the purpose behind limiting wrongful death damages is to protect resident defendants from excessive financial burden. The domicile of the plaintiffs bears no relation to this purpose. Instead, it is the residency of the defendants that is the only significant contact in this regard.

In the instant case, most of the defendant corporations conducted business operations which were either national or regional in scope, and they conducted business in a number of States. Most defendant corporations meet the requirements of residency in both Missouri and Illinois. As we have seen, the Missouri interest in restricting recovery is extremely limited (State ex rel. Broglin v. Nangle) and was repealed soon after the death of decedent. In contrast, Illinois retains an ongoing interest in deterring conduct which causes wrongful death from taking place within its borders. Moreover, it cannot be said that the defendants placed any reliance on Missouri’s financial limitation on wrongful death recovery in determining their course of conduct. Precisely the same type of occurrences took place on decedent’s jobs in Missouri as took place in Illinois, where no limitation was imposed on the amount recoverable for wrongful death.

When the contacts affecting the major issues involved in the instant case are considered, certain conclusions are inescapable. Missouri has the most significant contact with respect to who may institute suit for wrongful death because decedent’s survivors are residents of Missouri. However, this contact is important only to the extent it relates to the policies of the conflicting laws. The express policy of both States regarding who may bring suit is to give preference to “those persons who naturally suffer the greatest loss.” The application of the Missouri statute in the instant case would defeat that policy, whereas Illinois law would implement it.

The second issue, whether a financial limitation to recovery should apply, has less to do with the residence of the survivors than with the residence of defendants. In that respect, the contacts of the two States are virtually equal. However, while Missouri has expressly de-emphasized its interest in limiting recovery, the Illinois interest in deterring conduct resulting in wrongful death by permitting full recovery is ongoing.

Accordingly, with regard to both issues it can accurately be said that Illinois had the most significant relationship to the occurrence and the parties. Only Illinois law effectuated the policy of both States that those persons who suffered the greatest loss may bring suit and recover, and the Illinois interest in deterring conduct which causes wrongful death by permitting full recovery outweighed the repealed Missouri interest in limiting full recovery. Consequently, we conclude that Illinois law should apply to both issues.

Having determined that Illinois law must be applied to the issues concerning wrongful death, we must next determine whether the complaint was timely filed. Defendants assert that the Illinois “borrowing” statute should apply. That statute provides as follows:

“When a cause of action has arisen in a state or territory out of this state, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this state.” (Ill. Rev. Stat. 1971, ch. 83, par. 21.)

By its terms, the “borrowing” statute would apply only where a cause of action “arose” outside of the State of Illinois.

As previously noted, nearly one-half of decedent’s employment through which he was allegedly exposed to asbestos took place in Illinois, including the final days the decedent worked. In addition, we have found that Illinois had the most significant relationship to the occurrence, because its laws most directly effectuated the policies underlying the instant cause of action. Consequently, it would be inconsistent to conclude that the cause of action “arose” outside the State of Illinois. Since the cause of action arose in terms of interest analysis in Illinois, the “borrowing” statute does not apply. Hamilton v. General Motors Corp. (7th Cir. 1973), 490 F.2d 223.

Since we have concluded that the borrowing statute does not apply, we must next consider whether the complaint was timely filed under Illinois law. The Illinois Wrongful Death Act provides that action “shall be commenced within 2 years after the death” of the deceased. (Ill. Rev. Stat. 1971, ch. 70, par. 2.) As defendants contend, the courts of this State have traditionally held that the Wrongful Death Act created a cause of action that did not exist at common law. Hence, the requirement that plaintiff act within two years was held to be a condition precedent to the filing of a wrongful death action. (Wilson v. Tromly (1949), 404 Ill. 307, 89 N.E.2d 22; Metropolitan Trust Co. v. Bowman Dairy Co. (1938), 369 Ill. 222, 15 N.E.2d 838.) In reliance on these authorities, defendants contend that the following provisions of section 1 of the act governing statutory construction do not apply:

“The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute nor or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.” Ill. Rev. Stat. 1971, ch. 131, par. 1.11 (currently Ill. Rev. Stat. 1979, ch. 1, par. 1012).

In the instant case, the decedent’s death took place on October 14, 1972, and the suit was filed on October 15,1974, the day following a legal holiday. If the time limitation is not a statute of limitations but a substantive provision of the Act itself which must be observed in all events (Wilson v. Tromly), the action was not timely filed. If, however, the two-year period may be tolled by the various provisions of section 1 of the general statute governing statutory construction, then the complaint was filed within the statutory period.

In Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58, 73, 382 N.E.2d 784, 790, our supreme court concluded that the assertion that a cause of action for wrongful death did not exist at common law was “a much criticized concept stemming from questionable antecedents.” In determining whether a suit was barred by the statute of limitations, the Wilbon court reviewed the history of the concept and quoted at length from Massachusetts’ contrary conclusion in Gaudette v. Webb (1972), 362 Mass. 60, 284 N.E.2d 222, in which the court stated:

“ ‘[W]e are convinced that the law in this Commonwealth has also evolved to the point where it may now be held that the right to recovery for wrongful death is of common law origin, and we so hold. e * 0

Consequently, our wrongful death statutes will no longer be regarded as “ ‘creating the right’ ” to recovery for wrongful death. They will be viewed rather as: (a) requiring that damages recoverable for wrongful death be based upon the degree of the defendant’s culpability; (b) prescribing the range of the damages recoverable against each defendant; (c) requiring that any action for wrongful death be brought by a personal representative on behalf of the designated categories of beneficiaries; and (d) requiring that the action be commenced within the specified period of time, as a limitation upon the remedy and not upon the right. We further hold that statutes limiting the period for bringing actions for death are to be construed in the same manner as the limitations contained in G. L. c. 260, the general statute of limitations, and that in appropriate cases they may be tolled by the various provisions of G. L. c. 260.’ 362 Mass. 60, 71, 284 N.E.2d 222, 229.” (Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58, 62-63, 382 N.E.2d 784, 785-86.)

We conclude, however, that neither Wilson v. Tromly nor Wilbon v. D. F. Bast Co. is controlling and that the instant suit was instituted within the two-year period of limitation under the provisions of the general statute governing statutory construction (Ill. Rev. Stat. 1971, ch. 131, par. 1.11). This application of section 1.11 does not affect the substantive provisions of the Wrongful Death Act. It simply controls the manner of interpreting one of its provisions as do all other applicable provisions of the act governing the interpretation of statutes (Ill. Rev. Stat. 1971, ch. 131, par. 1 et seq.). Accordingly, plaintiff’s complaint was timely filed under Illinois law.

Applying the foregoing analysis, we now make the following conclusions concerning those issues certified for appeal by the trial court: (1) the administratrix is the proper plaintiff, regardless of the fact that the probate estate was opened in Missouri because Illinois has the most significant relationship to the parties and action by virtue of the underlying interests of the two States involved; (2) for the same reason, Illinois substantive law applies to the issues; (3) plaintiffs’ claim is not barred by the statute of limitations, because (4) the provisions of the act relating to the construction of statutes (Ill. Rev. Stat. 1971, ch. 131, par. 1.11) are applicable to an action for wrongful death; and (5) the repealed Missouri limitation on recovery for wrongful death is not applicable to the instant case.

As part of this cause of action, plaintiffs have appealed the trial court’s dismissal of counts III and IV of their complaint. These counts relate to medical and surgical expense, lost earnings, and pain and suffering which the decedent experienced prior to his death and which he could have asserted, had he been alive, on his own behalf. They also include a claim of loss of consortium asserted by the wife of the decedent for the period during his injury until his death.

Plaintiffs first assert that the wrongful death statute of limitations should apply to claims for medical and surgical expenses, lost earnings, and pain and suffering, and that the two-year period on these claims did not begin to run until decedent’s death. We cannot agree.

Sections 14 and 19 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, pars. 15, 20) provide as follows:

“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.
“If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representatives before the expiration of that time, or within one year from his death whichever date is the later. ” 0 *” (Ill. Rev. Stat. 1979, ch. 83, par. 20.)

In cases of occupational disease under these statutes, the cause of action accrues and the statute of limitations begins to run when the employee discovered,' or should have discovered, that he is ill as a result of the negligence of another party or as a result of wrongful exposure to a defective product. (Wigginton v. Reichold Chemicals, Inc. (1971), 133 Ill. App. 2d 776, 274 N.E.2d 118.) Plaintiffs in the instant case claim that these provisions do not apply when death ultimately resulted from thé injury.

Although action is to be brought under the Wrongful Death Act, by and in the name of the personal representative of the deceased person, the legislative intent of the Act is that the claims brought are those of the individual beneficiaries. (Wilbon v. D. F. Bast Co.) By contrast, a claim under the survival statute is that of the deceased which arose during his life and survived his death. The statutes are not the same, and in Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 308 N.E.2d 583, our supreme court stated:

“The statutes were conceptually separable and different. The one related to an action arising upon wrongful death; the other related to a right of action for personal injury arising during the life of the injured person.” Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 431, 308 N.E.2d 583, 586-87.

Where a cause of action is brought both for wrongful death and for personal injury arising during the life of the deceased, both statutes must come into effect. As stated in Murphy:

“[W]here there have been wrongful death and survival statutes the usual holding has been that actions may be concurrently maintained under those statutes. The usual method of dealing with the two causes of action * * 19 is to allocate conscious pain and suffering, expenses and loss of earnings of the decedent up to the date of death to the survival statute, and to allocate the loss of benefits of the survivors to the action for wrongful death.” Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 429, 308 N.E.2d 583, 586.

In the instant case, plaintiffs’ claim for lost earnings, medical expenses, and pain and suffering was not filed within the limitation period applicable under the survival statute. Evidence indicated that the deceased was aware of his illness and its cause at least eight months prior to his death. His cause of action accrued, and the statute of limitations began to run at that time rather than at his death. (Wigginton v. Reichold Chemicals.) Accordingly, the period of limitation under the survival statute had already run at the time the complaint was filed, and the court properly dismissed that portion of counts III and IV of the complaint.

Plaintiff’s final contention is that the trial court erred in dismissing her claim for loss of consortium. At the time the complaint was filed, a cause of action for loss of consortium was governed by the five-year statute of limitation for all civil actions not otherwise provided for in the statute limiting commencement of personal actions and not by the two-year limitation for actions for an injury to the person. (Ill. Rev. Stat. 1973, ch. 83, par. 16; Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 317 N.E.2d 505.) Subsequently, the limitation period was amended as follows:

“Actions for damages for loss of consortium or other actions deriving from injury to the person of another shall be commenced within the same period of time as actions for damages for injury to such other person.” Ill. Rev. Stat. 1979, ch. 83, par. 15.1 (amended by Pub. Act 80-714, §1, eff. Oct. 1, 1977).

It is established that an amendment shortening a limitation period does not operate to divest a litigant of his cause of action if his suit has already been filed. (Martinez v. Rosenzweig (1979), 70 Ill. App. 3d 155, 387 N.E.2d 1263.) Since it is apparent that plaintiff’s claim was filed within five years of the time when her cause of action accrued, we conclude that the trial court erred in dismissing the count alleging loss of consortium.

For the foregoing reasons, we affirm the trial court’s denial of defendant’s motion to dismiss counts I and II of plaintiff’s complaint. We also affirm the court’s dismissal of that part of counts III and IV of the complaint alleging lost earnings, medical expenses, and pain and suffering on behalf of the deceased. The dismissal of the claim for loss of consortium is reversed.

Affirmed in part; reversed in part.

JONES and EARNS, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE HEIPLE

license: Public Domain

text:
    THE PEOPLE ex rel. COUNTY OF LA SALLE, Plaintiff-Appellee, v. ROBERT D. ENGEL et al., Defendants-Appellants.
    Third District
    No. 81-33
    Opinion filed September 29,1981.
    Rehearing denied October 28,1981.

      John Kevin Kneafsey, of Chicago, for appellants.
    Gary L. Peterlin, State’s Attorney, of Ottawa (James A. Lanuti, Assistant State’s Attorney, of counsel), for appellee.
   Mr. JUSTICE HEIPLE

delivered the opinion of the court:

Appellants in this case were attempting to conduct a public auction sale of real estate. The County of La Salle (hereinafter County) thought that the proposed sale violated the County’s subdivision ordinance. A lawsuit to enjoin the sale was filed by the County. Without service on any of the appellants and without notice to them, an ex parte hearing was held on January 16, 1981, and a temporary restraining order was issued which restrained appellants from proceeding with the sale which had been advertised for the following day.

The temporary restraining order was served, and the proposed sale was not held.

Appellants filed a motion to vacate the temporary restraining order and a separate motion for substitution of judge. Both were denied. Both should have been granted.

The relevant facts may be succinctly stated. Appellants had been interested in selling the subject real estate for a considerable period of time. Notice of the proposed January 17 sale appeared in an advertisement in a local paper on December 11, which is to say, more than 30 days before the sale was to take place. The County did not file its lawsuit until January 13. The temporary restraining order was obtained on January 16. Not until the temporary restraining order was issued were the appellants served or notified of the lawsuit.

Certainly, there are circumstances which can warrant the issuance of a temporary restraining order without notice. Such circumstances, however, must be made manifest. No such circumstances were shown in this case. No service was obtained, and no notice of the hearing was given. Appellants were entitled to notice of the hearing. Careful examination of the record causes us to believe that service could have been obtained and notice given in this case. Efforts in this regard were feeble at best. While this finding is completely dispositive of the case, we also note that the complaint for temporary restraining order was defective because it was not verified. This is a fatal flaw. Finally, the motion for substitution of judge, which was filed by appellants immediately upon their entry into the case, was timely and should have been granted.

The orders of the Circuit Court of La Salle County denying the motion to vacate the temporary restraining order and denying the motion for substitution of judge are reversed. The temporary restraining order is vacated. This cause is remanded to the Circuit Court of La Salle County.

Reversed and remanded.

SCOTT, P. J., and ALLOY, J., concur.


author: Mr. JUSTICE BARRY

text:
    WILL COUNTY BOARD OF REVIEW, Plaintiff-Appellee, v. ILLINOIS PROPERTY TAX APPEAL BOARD et al., Defendants-Appellants.
    Third District
    No. 80-342
    Opinion filed September 30,1981.

      Tyrone C. Fahner, Attorney General, of Chicago (Russell C. Grimes, Jr., Assistant Attorney General, of counsel), for appellant Illinois Property Tax Appeal Board.
    Edward Petka, State’s Attorney, of Joliet (Jose M. Nunes, Assistant State’s Attorney, of counsel), for appellee.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

This appeal originated with action by Will County Board of Review fixing the 1977 assessed valuation of certain commercial property at figures higher than the involved taxpayers were willing to accept. One property was owned by Chicago/Joliet Livestock Marketing Center, Inc., and the other was owned by Kerr Glass Company. Both taxpayers appealed to the State Property Tax Appeal Board (PTAB), where the Chicago/Joliet appeal was heard on March 26, 1979. An appraiser testified for the taxpayer that, utilizing a cost approach, he had determined the fair market value of the property to be $2,677,000. The Board of Review submitted its property records showing the assessed valuation to which it had applied the statutory factor of 331/3 percent (Ill. Rev. Stat. 1977, ch. 120, par. 627), to reach an assessment of $1,358,430. The PTAB found the fair market value of the Chicago/Joliet property to be $2,677,000, as claimed by the taxpayer, and then applied a factor of 29.57 percent based upon the Will County urban weighted median level of assessments for 1977 as furnished by the State Department of Local Government Affairs. As a result, the PTAB lowered the Board of Review’s assessment of the Chicago/Joliet property from $1,358,430 to $791,580. The 29.57 percent factor was computed by using real estate sales data for the year 1976.

The Kerr appeal was heard by the PTAB on May 10, 1979. The taxpayer’s appraisers testified to a fair market value of $4,700,000, while the county supervisor of assessments testified to a fair market value of $6,000,000. The PTAB found the fair market value to be $4,700,000 and again applied a 29.57 percent factor to reduce the assessed valuation from the Board of Review figure of $1,999,480 to $1,390,000.

The Will County Board of Review then sought administrative review of both decisions in the Circuit Court of Will County where the two cases were consolidated. Ultimately the court affirmed the fair market values fixed by the PTAB but ruled that the PTAB exceeded its authority in applying a “multiplier” of 29.57 percent and that the statutory factor of 331/3 percent should have been used instead.

The PTAB appealed from that ruling as to both properties. Since there was no cross-appeal as to the fair market values approved by the circuit court, those figures are not in dispute. The sole issue before this court is whether the PTAB erred in applying a factor of 29.57 percent to those values instead of the statutory rate of 331/3 percent.

Section 111.2 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 592.2) authorizes the PTAB to “establish by rules an informal procedure for the determination of the correct assessment of property which is the subject of an appeal.” Section 111.4 of the Revenue Act provides that decisions of the PTAB “shall be based upon equity and the weight of evidence * ° One of the rules of the PTAB, established pursuant to section 111.2, is Rule 4D, which provides:

“The decisions of the Property Tax Appeal Board will be based on equity and the weight of evidence. The County’s median level of assessments will be considered where sufficient probative evidence is presented indicating the estimate of full market value and the subject property on the relevant real property assessment date of January 1 " *

Looking at the two cases which are the subject of this appeal, we think the ruling of the PTAB that the median level of assessments in Will County was 29.57 percent must have been based upon a finding that there was a disparity between the assessment level of this property and the assessment level for the county as a whole. Since both the statute and Rule 4D require the PTAB to determine “the correct assessment of property,” the PTAB acted within its authority by taking into account the 1977 urban weighted median level of assessments which was presented as evidence at the hearing. The 29.57 percent figure was at least prima facie evidence that the level of assessments of like property within Will County was lower than the 33 1/3 percent figure used by the Board of Review for the assessment of the property of these taxpayers.

That the PTAB has authority to grant relief from disparity in levels of assessments within a county was established in Stephens v. Property Tax Appeal Board (1976), 42 Ill. App. 3d 550, 356 N.E.2d 355, where the reviewing court held that the PTAB erred in denying relief to a taxpayer assessed at 53 percent of fair market value while like property in the same taxing districts was assessed at 16 percent of fair market value. The court in Stephens expressly rejected the contention that the PTAB’s jurisdiction was limited to the determination of fair cash value of the taxpayer’s property. In the case at bar, the trial court erred in holding that the PTAB exceeded its jurisdiction in doing what it was permitted to do under Stephens.

The next question is whether the PTAB could utilize a level of assessment figure that was derived from a one-year sales ratio study. The Revenue Act of 1939 provides that real property is to be valued at 331/3 percent of its fair cash value (Ill. Rev. Stat. 1977, ch. 120, par. 501) and then defines the term “331/3 %” as being determined by the Department of Local Government Affairs by using sales ratio studies for the three most recent years preceding the assessment year, “adjusted to take into account any changes in assessment levels implemented since the data for such studies were collected.” (Ill. Rev. Stat. 1977, ch. 120, par. 482(24).) We think it significant that the Revenue Act, as just quoted, expressly permits the Department to make adjustments on the basis of new information after the three-year sales ratio studies are completed. This is exactly what the PTAB did in this case.

In Lake County Board of Review v. Property Tax Appeal Board (1980), 86 Ill. App. 3d 553,407 N.E.2d 1022, the use of a factor based upon a one-year sales ratio study was held to be permissible under Rule 4D, if necessary in order to reach an equitable result, but the court said that use of a single-year factor was not mandated in every case. In the case at bar, there was no evidence challenging the correctness of 29.57 percent factor, and no evidence indicating that the use of that factor would produce an inequitable result. We find, therefore, that the PTAB decision was not contrary to the weight of the evidence and was not inequitable, and that the judgment of the circuit court of Will County must be reversed and the PTAB decision affirmed.

We have taken with the case a motion by the Board of Review to supplement the record by filing in this court copies of the record in two other administrative review proceedings involving the assessments of these same properties for the year 1978. We have no authority to take any action relating to the 1978 assessment in an absence of a direct appeal from rulings thereon, and the 1978 assessment has no relevance to this proceeding. The motion is denied.

The Board of Review has also urged this court to declare unconstitutional a 1980 amendment to section 111.2 of the Revenue Act, which expressly authorizes the use of a one-year assessment level based upon relevant sales during the previous year. (Ill. Rev. Stat. 1977, ch. 120, par. 592.2) Since this statutory amendment is not involved in the case before us, any ruling would be advisory and thus improper.

Reversed.

SCOTT, P. J., and ALLOY, J„ concur.


author: Mr. JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES CALVERT, Defendant-Appellant.
    Fourth District
    No. 17046
    Opinion filed September 16,1981.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE GREEN

delivered the opinion of the court:

On February 3, 1981, defendant, Charles Calvert, was convicted of the offense of criminal damage to property having a value in excess of $150, following a jury trial in the circuit court of Sangamon County. Thereafter defendant was sentenced to 2 years’ probation conditioned upon his: (1) payment of restitution in the sum of $524.25 plus court costs; (2) spending 90 days in jail; (3) having no contact with the owner of the property which defendant damaged; and (4) cooperating in a counseling program.

The sole issue on appeal concerns whether the trial court could properly consider, in sentencing defendant, a finding of guilt on an earlier charge where defendant was given a disposition of supervision and successfully completed the supervision.

Defendant was charged with damaging four automobile tires belonging to Marilyn Korach. Korach’s two daughters testified that on August 5, 1980, they heard a hissing sound and saw defendant slitting the tires of Korach’s automobile. Korach and her daughters testified to threats made by defendant earlier that day.

At the sentencing hearing, the trial court questioned defendant about a 1978 charge of battery on which defendant was found guilty following a jury trial. Defendant had then been placed on court supervision on March 16, 1979. The instant presentence report indicated that supervision was terminated on April 25, 1980, with no conviction resulting. The presentence report also indicated that defendant had three prior convictions for aggravated assault, theft, and disorderly conduct. The trial judge stated that he would not consider any charges not resulting in conviction. However, in sentencing defendant the judge stated, “But he does have one, two, three, four convictions of various things prior to this.” As defendant contends, this statement shows that the trial judge did consider the battery charge for which defendant was given the disposition of supervision.

Section 5 — 6—3.1(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(f)) states,

“Discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime. Two years after the discharge and dismissal under this Section a person may have his record of arrest expunged as may be provided by law. However, any defendant placed on supervision before January 1, 1980, may move for expungement of his arrest record, as provided by law, at any time after discharge and dismissal under this Section.”

In People v. Wunnenberg (1981), 85 Ill. 2d 188, 421 N.E.2d 905, the supreme court construed a Federal statute which provided for the setting aside of a conviction where a court, in its discretion, unconditionally discharged a youth offender from probation prior to the expiration of the maximum period of probation fixed by the court. In that case a defendant’s prior conviction, which had been set aside under the statute, was considered as an aggravating factor in sentencing. The supreme court held that the set-aside conviction under the statute should not have subsequent repercussions, either of a criminal or noncriminal nature, and should not have been considered in sentencing defendant.

The Federal statute states that the conviction is set aside when the court unconditionally discharges a youth offender. The Illinois statute states that the completion of a disposition of supervision shall be deemed without adjudication of guilt. We consider the language of the two statutes to have the same meaning. Therefore the effect of the Illinois statute is the same as that of the Federal statute.

Because of the direct analogy between the two statutes, we conclude that the trial judge should not have given consideration to defendant’s 1978 battery charge which resulted in the disposition of supervision. However, defendant had three prior convictions, and obviously, whatever consideration was given to the battery charge was of a cumulative nature. We conclude that the consideration of the battery charge was harmless error.

Accordingly, the sentence of the trial court is affirmed.

Affirmed.

MILLS and WEBBER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM WEAVER, Defendant-Appellant.
    Fourth District
    No. 16771
    Opinion filed September 25,1981.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE GREEN

delivered the opinion of the court:

On September 9, 1980, defendant, William Weaver, was convicted, following a jury trial in the circuit court of Sangamon County, of the offenses of aggravated battery, driving while under the influence of intoxicating liquor, improper lane usage, and fleeing or attempting to elude a police officer. Thereafter, he was sentenced: (1) on the aggravated battery conviction, to a term of probation of 2 years conditioned upon serving 90 days in the county jail and having psychological counseling; (2) on the eluding a police officer conviction to probation to run concurrently with the aggravated battery sentence; (3) on the driving-while-intoxicated conviction to 90 days in jail to run concurrently with the aggravated battery sentence; and (4) on the improper-lane-usage conviction to a fine of $35.

On appeal defendant contends: (1) the trial cout erred in refusing an instruction on battery tendered by defendant; (2) he was denied a fair trial when irrelevant and prejudicial statements made by him upon arrest were admitted at trial; and (3) he was prejudiced when the prosecutor, during cross-examination of a defense witness, suggested that defendant had been shot, at some time in the past, by a police officer. We affirm.

Defendant was charged under section 12 — 4(b)(6) of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(6)) which provides that a person commits aggravated battery when, in committing a battery, he knows the individual harmed to be a peace officer engaged in the execution of any of his official duties. Defendant contends the evidence at trial indicated that Stark, the officer allegedly battered, was not engaged in his duties as a police officer at the time of the occurrence, and therefore the trial court’s refusal to give a tendered instruction on the included offense of battery was improper.

The undisputed evidence was as follows: Stark was traveling in his private automobile south on Interstate 55 towards the Village of Diver-non, for which he was a police officer, when he observed defendant driving erratically. Stark followed defendant to Divernon, went home, changed to his squad car, through radio communication learned defendant had been seen on a county road near Auburn, and drove in his squad car to Auburn, where he arrested defendant. Stark further testified that as he was arresting defendant, he was struck by defendant. An Auburn police officer, present at the scene, corroborated Stark’s testimony. However,. Mary Weaver, defendant’s mother, called by defendant, testified she observed the arrest and defendant did not strike Stark. These three witnesses were the only ones to testify as to the occurrence.

It is true that a battery committed against a police officer automatically becomes the offense of aggravated battery under section 12 — 4(b) (6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(6)) only when the police officer is engaged in the execution of his official duties. (People v. Bailey (1973), 10 Ill. App. 3d 191, 293 N.E.2d 186.) However, a police officer has the duty to maintain public order wherever he may be, as long as he is within the State. His duties are not confined to a specific time and place. (Arrington v. City of Chicago (1970), 45 Ill. 2d 316, 259 N.E.2d 22.) Thus, in making an arrest within the State, a police officer is always engaged in the execution of his official duties. (People v. Barrett (1977), 54 Ill. App. 3d 994, 370 N.E.2d 247; Ill. Rev. Stat. 1979, ch. 38, par. 107 — 5(c).) Accordingly, for the foregoing reasons alone, the undisputed evidence showed Stark to have been engaged in his official duties at the time he was allegedly battered.

Furthermore, the evidence showed that Stark chased defendant through Divernon and observed him committing violations in that village. Thus Stark’s arrest of defendant would have occurred in the course of his duties even absent the precedent of Arrington.

As there was no evidence in the record which would support a conviction of simple battery, the defendant was not entitled to an instruction on that offense. (People v. Montgomery (1974), 18 Ill. App. 3d 828, 310 N.E.2d 760.) Accordingly, the jury was properly instructed.

Defendant’s second claim of error is the trial court erred in admitting into evidence his statements to the police upon his arrest in which he threatened to kill the police, accused the police of having sexual relations with his ex-wife, and stated lawsuits would be filed against everybody. This evidence was properly admitted as it was probative of the degree of defendant’s intoxication.

Defendant further contends he was prejudiced when, in cross-examining defendant’s mother, the prosecutor suggested defendant had been shot, at some time in the past, by a police officer. While this suggestion was prejudicial to defendant, in view of the strength of the evidence, we find it to have been harmless error here. The evidence was undisputed as to the offenses other than the aggravated battery offense.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

TRAPP, P. J., and MILLS, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ZEIGER, Defendant-Appellant.
    Third District
    No. 80-504
    Opinion filed September 29,1981.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

Following a jury trial, defendant David Zeiger was found guilty and convicted on five counts of an indictment — two counts of deviate sexual assault, one count of attempt deviate sexual assault, and two counts of indecent liberties with a child. All five counts involved defendant’s conduct with a 15-year-old girl during the early morning hours of May 18, 1980. The trial court sentenced defendant to two concurrent terms of 20 years’ imprisonment, one for each deviate sexual assault conviction, and to a concurrent term of 15 years on the attempt deviate sexual assault conviction. No sentence was entered on either of the indecent liberties convictions.

The sordid events leading to these convictions began on the evening of May 17, when the 36-year-old defendant gave a party for his teen-age stepdaughter at his automobile shop in Pekin, Illinois. Several kegs of beer were available as refreshments. The victim was a friend of defendant’s stepdaughter, and at the party she consumed approximately twelve 12-ounce glasses of beer during the course of the evening. Sometime after 1 a.m. she fell asleep in a chair on the front porch and later awoke in a parked car which she subsequently identified as belonging to defendant. According to her testimony at trial, defendant was fondling her breasts when she awoke, and she was frightened and totally disoriented as to time and place, having no memory of how she had gotten into the car and no knowledge of where she was.

The victim also testified to explicit sexual activities by defendant after he had partially undressed her. He inserted his finger in her vagina, and then put first his fingers and then his penis in her rectum. After changing positions and while lying on top of her, he licked her vaginal area and tried to force her mouth open with his fingers. The victim refused to open her mouth, and defendant said that if she did not do what he told her to, he would leave her in a ditch. She still refused to open her mouth. She stated that defendant then continued to put his fingers in her vagina and in her rectum for a while before he finally stopped touching her. At no time was sexual intercourse attempted. The victim testified that she had pretended to be sleeping during the incident because her parents had told her never to fight in such a situation to avoid being hurt. She said that when she first awoke she was “scared and upset” and that she was afraid of defendant because she had seen him “make passes” at other girls.

Several other witnesses were called by the State who corroborated parts of the victim’s story, and defendant called two witnesses who stated that defendant was with someone else at some other location at the time the complaining witness said she was with him. The jury returned a verdict of guilty on all counts, and after sentencing, defendant appealed.

Defendant contends that it was improper to convict him of more than one offense since all of his convictions were based upon acts occurring within a few minutes of each other, acts involving the same victim, and acts taking place at the same location. He relies upon People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1, where the supreme court held that two separate sexual acts occurring almost simultaneously with the same victim were to be treated as involving a single transaction and could not constitute more than one offense of indecent liberties with a child, in the absence of a statutory provision to the contrary. In the case at bar, defendant performed two different deviate sexual acts (one with his mouth at her vagina and another with his penis in her rectum) and attempted a third deviate sexual act (his penis in her mouth) almost simultaneously.

In People v. Schultz (1979), 73 Ill. App. 3d 379, 392 N.E.2d 322, a kidnapping case which involved multiple sexual crimes, this court examined in considerable detail the leading Illinois decisions involving multiple convictions and finally concluded that two separate convictions for indecent liberties with a child could stand where there were two separate acts and no showing that the acts were simultaneous. In reaching that result, we gave special attention to reconciling Cox with the decisions which came after Cox. However, we now believe the rationale of Cox is no longer controlling as to multiple convictions and concurrent sentences.

In People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, the Illinois Supreme Court broadened the circumstances under which multiple convictions can occur:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act’, when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45.)

The supreme court has even more recently in People v. Myers (1981), 85 Ill. 2d 281, 422 N.E.2d 620, ruled that under the doctrine of King, two separate convictions and concurrent sentences could be entered for attempted murder and for armed violence even though both offenses were based upon the cutting of the victim’s neck in the course of one assault. The evidence indicated that the defendant moved the knife to the victim’s neck in two separate movements, and the supreme court said:

“Two separate invasions of [the victim’s] body, even though closely related by reason of the fact that they attacked the same area of his body and were close in time, were not one physical act.” (85 Ill. 2d 281, 289, 422 N.E.2d 620, 622.)

Analysis of facts in the instant case in light of the rulings in Myers and King lead to the conclusion that there can be as many separate convictions with concurrent sentences as there are separate deviate sexual acts, either complete or attempted, even though violations of subsections of the same criminal statute, so long as the offenses are not lesser included. Here three separate acts were committed, and so the three convictions with concurrent sentences were proper.

Another argument of defendant is that the State’s evidence failed to prove beyond a reasonable doubt that there was a substantial step taken toward accomplishment of the act of putting his penis in her mouth to sustain the charge of attempt deviate sexual assault. He insists that the fact he tried to open the victim’s mouth with his fingers was not sufficient since that could have been for some other purpose. However, considering that at the time he tried to force her mouth open, defendant was lying on top of the victim with his head at her pubic region and that his pants were pulled down, his argument is without merit. Actually we think the jury drew the only possible reasonable inference from the evidence in finding him guilty of this charge.

Defendant also claims that there was no evidence of force or threat of force as required under the statute to establish deviate sexual assault. According to the victim’s testimony, she was threatened with being left in a ditch, and she was afraid of being hurt. Among the circumstances to be considered are the difference in the age of defendant (36) and the victim (15), the victim’s condition upon awakening in defendant’s car in an unknown place, and defendant’s actions in removing her clothes and lying on top of her. We conclude that, under all the circumstances, the jury could properly draw an inference of force or threat of force from the evidence sufficient to support the convictions for deviate sexual assault.

Defendant next contends that the State made an improper and prejudicial reference to the credibility of defendant’s alibi witness, Kenneth Keeling, when, during closing argument, the prosecutor argued that Keeling did not contact the police at any time prior to trial because he did not want to give them a chance to check his story. Defendant did not object to this statement during trial and did not include it in his post-trial motion. We conclude that defendant waived any error. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Furthermore, this court previously held that similar prosecutorial comments were proper in People v. Kester (1979), 78 Ill. App. 3d 902, 397 N.E.2d 888. Hence, no error occurred, in any event.

Finally, defendant argues that the court erred in giving the jury a dictionary, when they requested one, without inquiring as to the problem they were having and without permitting defendant to be personally present. These arguments are without merit. Furnishing a dictionary is a matter within the discretion of the trial court and should be available as part of the common knowledge of jurors, at least in the absence of any indication of prejudice to defendant. Certainly no substantial rights of defendant were involved that would require his presence. (See People v. Saltz (1979), 75 Ill. App. 3d 477, 393 N.E.2d 1292.) We can see no error.

For the reasons stated, we affirm defendant’s convictions for deviate sexual assault and attempt deviate sexual assault and reverse the indecent liberties convictions. Because it is not likely the trial court would have been influenced by the indecent liberties convictions when imposing sentence for the specified deviate sexual assault offenses, we believe this cause should not be remanded for resentencing.

Affirmed in part; reversed in part.

ALLOY and STOUDER, JJ., concur.