author: Mr. PRESIDING JUSTICE SCOTT Mr. JUSTICE STOUDER,

text:
    DORIS GRAMSE et al., Plaintiffs-Appellees, v. ROYAL CREST ENTERPRISES, INC., et al., Defendants and Third-Party Plaintiffs.—(CARDINAL ENTERPRISES, INC., et al., Third-Party Defendants-Appellants; RELIANCE INSURANCE COMPANY, Petitioner-Appellant.)
    Third District
    No 80-651
    Opinion filed September 17,1981.

      STOUDER, J., specially concurring.
    Vincent C. Cipolia and Gregory G. Lawton, both of Judge, Drew, Cipolia & Kurnik, Ltd., of Park Ridge, for appellants.
    William J. Harte, Katrina Veerhusen, and Herbert F. Stride, all of Chicago, for appellees.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

This action was brought by Doris Gramse, a widow and administrator of the estate of Paul Gramse, deceased, and as mother and next friend of their three minor children, to recover damages for the death of her husband, Paul Gramse, under the Structural Work Act and survival provisions of the Probate Act. Gramse was severely injured in a construction accident on May 1, 1975, and died without regaining consciousness on September 27, 1975. The decedent was employed by Cardinal Enterprises, Inc. (Cardinal), which in turn was employed as a subcontractor in the construction of a home in a new subdivision in Will County. Named as defendants were Timberview Development Company (Timberview), the developer of the subdivision; Link Construction Company, a contractor; and Royal Crest Enterprises, Inc. (Royal Crest), the general contractor and the equitable owner of the property where the accident occurred.

Timberview and Royal Crest subsequently filed a third-party complaint for implied indemnity on an active-passive basis against the decedent’s employer, Cardinal Enterprises, Inc., and his supervisor, Stanley Eugene Koren. Summary judgment was thereafter granted to defendants Timberview and Link Construction, and the cause proceeded as to the remaining defendants.

After discovery procedures had commenced, negotiations were conducted by the parties which resulted in a settlement of the action. Royal Crest paid $200,000 towards the settlement and Cardinal Enterprises contributed $100,000, for a total package of $300,000. The $100,000 contributed by Cardinal was covered by liability insurance issued by Reliance Insurance Company. Reliance Insurance also was the workmen’s compensation carrier for the decedent’s employer and had paid a total amount of $43,615.36 in workmen’s compensation benefits to the decedent’s spouse and surviving children; it claimed a lien in that amount pursuant to section 5(b) of the Workmen’s Compensation Act (111. Rev. Stat. 1975, ch. 48, par. 138.5(b)). The plaintiff disputed the applicability of the lien provision and the settlement and stipulation to dismiss accordingly specifically excluded the dispute over the lien from the settlement. The cause proceeded as to the determination of Reliance Insurance Company’s lien rights, with the trial court ruling that no workmen’s compensation lien attached to the settlement proceeds.

Cardinal Enterprises, Inc., Stanley Eugene Koren, and Reliance Insurance Company have appealed.

The portion of the Workmen’s Compensation Act at issue here is found in section 5(b):

“Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.” (Emphasis added.) Ill. Rev. Stat. 1975, ch. 48, par. 138.5(b).

As is clear from the emphasized language, the legislature has explicitly limited the employer’s lien to third-party actions in which the employee or his personal representative is the plaintiff. Under the express statement of the lien provision in question, it plays no part in actions brought by the employee’s widow as a person in her own right and based on a cause of action accruing to her.

The first three counts of the amended complaint were brought by plaintiff in her capacity as widow of the decedent and as next friend of the three minor children. Those counts sought recovery under the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, par. 64). The Structural Work Act creates a distinct cause of action in the dependents of a deceased in their individual capacities. They do not recover through the personal representative of the decedent’s estate, nor through the decedent’s estate. (Bryntesen v. Carroll Construction Co. (1963), 27 Ill. 2d 566, 190 N.E.2d 315.) The applicable provision states:

«« # e [A] right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children; or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives.” (Emphasis added.) Ill. Rev. Stat. 1975, ch. 48, par. 69.

In an analogous situation it has been held that a suit by a deceased employee’s widow and daughter, in their individual capacities, was not one in which the employer’s lien attached. (Dillon v. Nathan (1956), 10 Ill. App. 2d 289, 135 N.E.2d 136.) In Dillon the decedent-employee was shot and killed by an intoxicated man while working as a hotel clerk. The decedent’s employer made a workmen’s compensation settlement. The surviving spouse and daughter subsequently brought a Dramshop action against the owners of the tavern where the liquor had been purchased. The employer sought to intervene in the Dramshop action asserting a lien under section 5(b) of the Workmen’s Compensation Act. The court affirmed the trial court, finding the employer had no lien rights because the Dramshop action accrued not to the decedent’s estate, but rather to the “surviving spouse and children.” The Dramshop action was not subject to the lien asserted by the employer because, in the language of section 5(b), it was not an action “brought by the injured employee or his personal representative,” and no amount was or would be “received by [the] employee or personal representative.” 10 Ill. App. 3d 289, 296.

Notwithstanding the existence of this precedent, the material language of section 5(b) had never been changed or modified by the legislature. Graham v. General U.S. Grant Post No. 2665 (1969), 43 Ill. 2d 1,248 N.E.2d 657.

Precisely the same reasoning applies to and is controlling in the case of this plaintiff’s Structural Work Act claims. It is not an action “brought by the injured employee or his representative” and no amount has been or will be “received by the employee or personal representative” under the Structural Work Act claims. The Structural Work Act death claim can only be maintained by the widow and children in their individual capacities. Bryntesen v. Carroll Construction Co. (1963), 27 Ill. 2d 566, 190 N.E.2d 315.

Defendants are unable to distinguish Dillon from the instant cause and have argued that it should be overturned in part because section 5(b) was amended to eliminate the earlier requirement that the employer be nonnegligent in order to assert its lien in a subsequent third-party action. This change in section 5 is unrelated to the legislature’s limitation of lien rights to cases where the employee himself or his personal representative is the plaintiff. This latter requirement is, as defendants have noted, intended to prevent a double recovery by the same party for the same injuries, a purpose which is unrelated to the issue of fault on the part of the employer. Hartford Accident & Indemnity Co. v. D. F. Bast, Inc. (1977), 56 Ill. App. 3d 960, 372 N.E.2d 829.

Defendants also contend that if Dillon is applied to the case at bar it will “permit a double recovery by the decedent’s spouse and surviving children * * This is not the case. The Workmen’s Compensation Act, and the monies paid under that statute by the employer’s insurance carrier, were intended to compensate the decedent himself for his lost wages and medical bills. The Structural Work Act claims, by contrast, were brought by the widow in her own right (not as representative of the decedent) and for the benefit of the children, and asserted their right to be compensated for the loss of their source of support.

The defendants also argue that the distinction between the widow as plaintiff and the personal representative as plaintiff is of little “practical significance” because the latter generally acts as a “legal conduit,” and the money is distributed to the same persons regardless of the actual identity of the named plaintiff. In making this argument defendants again overlook the different injuries involved: the workmen’s compensation settlement compensated the decedent for his injuries; the Structural Work Act claim compensated the decedent’s dependents for their injuries. Furthermore, as another court has noted in addressing a similar argument, that some part of the proceeds reached the hands of his dependents is of no moment. Cresci v. Mike Krasilousky Trucking Co. (1958), 5 App. Div. 2d 569, 172 N.Y.S.2d 322.

Counts IV, V and VI of plaintiff’s amended complaint were brought under the Survivor’s Act and sought compensation for the alleged conscious pain and suffering experienced by the decedent subsequent to the occurrence and prior to his death. (Cf. Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 308 N.E.2d 583.) These counts were brought by the plaintiff in her status as administrator of the decedent’s estate. With the benefit of numerous legal memoranda submitted by the parties, the court below determined that the settlement funds were not paid to satisfy these claims and that the Workmen’s Compensation lien therefore did not attach to the settlement fund. In specifically finding that the settlement proceeds were paid on the Structural Work Act claims (counts I, II and III), the court properly exercised its discretion in concluding that plaintiff and her minor children’s recovery was attributable to the provisions of the Structural Work Act and not the Survivor’s Act.

Defendants contend that even if no lien can be asserted in the Structural Work Act action, they are nevertheless entitled to reimbursement because of the counts brought under the Survivor’s Act. Defendants rely on Prince v. Atchison, Topeka & Santa Fe Ry. Co. (1979), 76 Ill. App. 3d 898, 395 N.E.2d 592. The court in Prince addressed the question of whether a section 5 lien applied to the entire judgment or only one-third of it where the third-party suit was brought in the name of the widow/ personal representative and the widow received only one-third of the distribution. The resolution of the Prince issue has no bearing on whether the court in this cause properly exercised its discretion.

The defendant’s arguments overlook a number of significant facts:

(1) two separate claims were asserted below, one in the plaintiff’s own right as widow and the other in her capacity as administrator of the estate; (2) the settlement did not designate that any particular portion of the $300,000 fund was attributable to the survival action; (3) the case could not be settled in the absence of the trial court’s approval, and that court determined the widow and children were entitled to recover under the Structural Work Act and not through the Survivor’s Act; and (4) the trial court, in making the discretionary finding that the settlement was reasonable, presumably addressed its judgment to the “net” amount payable to the widow and children, and undoubtedly took into consideration the fact that the “reasonable” recovery would not be diminished either by an employer’s lien or by estate taxes.

Because the record did not disclose whether the $300,000 was attributable to the Structural Work Act claims or the survival claims, the trial court was obligated to make its own determination as to which of these claims provided the basis for the settlement reached by the parties. In exercising its discretion in this connection, the court concluded the widow and children were “entitled to recover ” ” e pursuant to Section 64 of the Structural Work Act and not through the Survivor’s Act.”

The defendants’ argument is contrary to the strong public policy favoring settlements and the fact that because minors were beneficiaries of any recovery in this case, it could not be settled and dismissed in the absence of the trial court’s approval. Reversal of the trial court here would mean that the employer’s lien attaches, in its entirety, to any settled case where there is a remote possibility that any part of the recovery could have been compensation for the same injuries for which the workmen’s compensation carrier had previously made a payment. Such a ruling would discourage the settlement of cases. We believe the better policy is to leave such determinations to the sound discretion of the trial court absent a clear abuse of discretion.

For the foregoing reasons, the judgment of the Circuit Court of Will County is affirmed.

Affirmed.

ALLOY, J., concurs.

Mr. JUSTICE STOUDER,

specially concurring:

I agree with the result reached by my colleagues but only because of the consequences of what I believe to be the unique factual circumstances of this case.

As noted in the facts, Cardinal and its insurance carrier Reliance made the workmen’s compensation payments and also substantially participated in the offer of settlement. It seems to me that the failure of the settlement to include a resolution of the workmen’s compensation reimbursement was fatal to the claim thereafter raised in the trial court and in this court. It seems to me that Cardinal can not be both offeror and offeree or claimant with respect to the same settlement proposal since the positions are mutually exclusive and the purported stipulation to the contrary is not entitled to any validity. By joining in the request to have the settlement approved, Cardinal, in effect, authorized the trial court to do exactly what it did, consider the settlement offer as a net settlement ignoring the contradictory limitation asserted by Cardinal.

If Cardinal was not an offeror of the settlement my views would be different, because in that event, before the trial court could find that all of the settlement should be attributed to the Scaffold Act violations, it would have to find that the plaintiffs were not entitled to any recovery as a matter of law on the other counts of the complaint, a conclusion which I do not believe is in accord with the facts of this case.


source: Caselaw Access Project

author: Mr. JUSTICE REINHARD

license: Public Domain

text:
    JACOB KAUK, Plaintiff-Appellant, v. DAN C. MATTHEWS, JR., et al., Defendants.—(BARBER-GREENE COMPANY, Respondent-Appellee.)
    Second District
    No. 80-800
    Opinion filed September 3,1981.
    Rehearing denied October 19,1981.
    Donald C. Marcum, of Truemper, Ward, Hollingsworth & Wojtecki, of Aurora, for appellant.
    William C. Murphy, of Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellee.
   Mr. JUSTICE REINHARD

delivered the opinion of the court:

This appeal arises from an order entered by the trial court denying plaintiff certain relief against a third party respondent employer rendered during the course of supplemental proceedings pursuant to section 73 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 73) to enforce a judgment for past-due rent.

Plaintiff, Jacob Kauk, filed a complaint pursuant to the Illinois forcible entry and detainer statute against Dan Matthews (judgment debtor). The court entered judgment against the judgment debtor ordering a return of the rented premises and payment of $460 representing past-due rent. Subsequently, in order to enforce the money judgment, a citation to discover assets was served upon the judgment debtor’s employer, Barber-Greene Company, respondent herein. The citation required Barber-Greene to refrain from transfering any money which might become due the judgment debtor and to appear before the court and produce records of all the payroll checks issued to the judgment debtor in the year 1980. The citation hearing was delayed three times on plaintiff’s motions for continuances, and the record does not disclose that an appearance was ever entered by Barber-Greene. However, while Barber-Greene did supply plaintiff’s counsel with the material requested on the face of the citation, it failed to withhold any funds due the judgment debtor from his paycheck. Counsel for plaintiff then contacted Barber-Greene’s general accounting manager, Mr. Kenneth Klomhaus, requesting a withholding of an amount from the judgment debtor’s gross pay and stating that a refusal to do so might subject Klomhaus to the contempt power of the court. Klomhaus, on the advice of counsel, still refused to withhold any of the judgment debtor’s wages.

As a result, counsel for plaintiff appeared in court on September 17, 1980, and requested an order holding Barber-Greene liable for the amounts not deducted and an issuance of a rule to show cause why Klomhaus and Barber-Greene should not be held in contempt of court. Counsel for Barber-Greene was also present. The court heard oral argument from the parties and denied both of plaintiff’s requests. However, the court ordered Barber-Greene to begin to deduct amounts from the judgment debtor’s paychecks upon receipt from plaintiff of a garnishment summons.

Plaintiff has elected not to proceed with a garnishment under the Wage Deduction Act and appeals the court’s decision to disallow his proposed use of the citation proceedings. In its brief, Barber-Greene concedes that it has at all times been willing to accept and comply with a wage garnishment summons and that it has not yet commenced wage deduction due to plaintiff’s insistance on using the citation procedure.

The issue in this case is whether the Wage Deduction Act (Ill. Rev. Stat. 1979, ch. 62, par. 71 et seq.) is the sole and exclusive means of attaching a judgment debtor’s wages in order to satisfy a judgment. Since there is a virtual absence of case law on this precise issue, an examination of the Wage Deduction Act and the supplemental proceedings (hereinafter citation proceedings) under the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 73) is necessary in order to ascertain the intent of the legislature.

The General Assembly first enacted the citation procedure statute in 1941. The municipal courts of Chicago had used a similar procedure for many years prior to the enactment of the statute (Ill. Rev. Stat., ch. 37, par. 424 (repealed 1963)), and the creditor’s bill was an available procedure also. The citation to discover assets procedure as initially enacted was, however, somewhat limited in its utility. Courts interpreted the statute as not granting them the power to prevent the transfer of assets owed to the judgment debtor found in the hands of a third party. (Ill. Ann. Stat., ch. 110, par. 73, Historical and Practice Notes, at 400 (SmithHurd 1968).) Thus, the use of the statute was basically limited to a discovery device. However, a 1955 amendment greatly enhanced the effectiveness of the procedure. (Ill. Laws 1955, §1, at 2238, eff. Jan. 1, 1956.) The present-day statute now provides not only for the discovery of assets and income but also grants the court power to compel the party cited to apply the discovered assets toward payment of the underlying judgment. A synopsis of the citation procedure is provided in the statute’s first sentence:

“A judgment creditor, or his successor in interest when that interest is made to appear of record, is entitled to prosecute supplementary proceedings for the purposes of examining the judgment debtor or any other person to discover assets or income of the debtor not exempt from execution, a deduction order or garnishment, and of compelling the application of non-exempt assets or income discovered toward the payment of the amount due under the judgment.” Ill. Rev. Stat. 1979, ch. 110, par. 73(1).

The Wage Deduction Act was first enacted in 1961 by an amendment to the Garnishment Act. (Ill. Laws 1961, at 1470, eff. July 1,1961.) The amendment’s effect was to create two separate garnishment procedures where previously wage garnishment came within the Garnishment Act. Sections 33 through 52 provide the garnishment procedure for all property other than wages, and sections 71 through 88 apply only to wages. Although the two acts are substantially similar in their provisions, the 1961 amendment made two significant changes. The amendment abolished the necessity of a written demand where the subject of the garnishment was wages (Ill. Rev. Stat. 1979, ch. 62, par. 82), and it changed the wage exemption from a fixed sum per week to 85 percent of gross wages earned during a maximum 30-day period. (Ill. Rev. Stat. 1979, ch. 62, par. 73, as amended by Pub. Act. 80-724, §1.) The intention of the General Assembly in creating a separate procedure for the garnishment of wages has been interpreted in the following manner:

“It is obvious that in enacting the legislation relating to wage deductions, the General Assembly intended that the procedures be simplified, the costs held to a minimum, and the employee given every possible protection against harassment.” Libby Furniture & Appliance Co. v. Nabors (1967), 86 Ill. App. 2d 381, 385, 230 N.E.2d 28.

Also in 1961, the legislature amended subsections (1), (2), (4)(a), and (9) of the citation procedure to correspond to the separation of the Wage Deduction Act from the Garnishment Act. (Ill. Laws 1961, §1, at 1445, eff. June 7, 1961.) The amendment, which inserted the words “a deduction order” in each of these subsections, plainly exhibits the legislative intent to interrelate the provisions of the citation procedure with those of the Wage Deduction Act.

The citation procedure allows the judgment creditor to summon into court “the judgment debtor or any other person to discover assets or income of the debtor not exempt from execution, a deduction order or garnishment.” (Ill. Rev. Stat. 1979, ch. 110, par. 73(1).) The words “any other person” and “income” clearly indicate that the judgment debtor’s employer is within the class of persons which may be summoned into court and examined pursuant to the citation procedure.

However, the statute later provides that once assets or income of the judgment debtor have been discovered, the court may “[e]nter any order upon or judgment against the person cited that could be entered in any garnishment proceeding.” (Ill. Rev. Stat. 1979, ch. 110, par. 73(2) (d).) The question now becomes whether “any garnishment proceeding” includes a wage deduction order pursuant to the Wage Deduction Act. We conclude that it does.

The history of the Wage Deduction Act and the act’s similarity to the Garnishment Act demonstrate that wage deductions are but a special category in the more general class of garnishments. Our supreme court has stated that “[a] wage-deduction proceeding is an action in garnishment, a statutory proceeding unknown to the common law. [citation]” (First Finance Co. v. Pellum (1975), 62 Ill. 2d 86, 91, 338 N.E.2d 876.) Additionally, it would be illogical for the statute to provide that employers may be summoned into court in order to discover income owed to the judgment debtor but to fail to provide the court with the power to order the employer to apply the nonexempt portion of the income toward the payment of the underlying judgment. Such an interpretation would be contrary to the stated purpose of the statute to provide an efficient and expeditious remedy by which a judgment creditor may discover assets and have his judgment satisfied in one proceeding. Ill. Ann. Stat., ch. 110, par. 73, Joint Committee Comments, at 398 (Smith-Hurd (1968).

Respondent argues that section 1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 1) restricts the applicability of that Act with respect to garnishment proceedings in view of the following language:

“The provisions of this Act apply to all civil proceedings except in attachment, ejectment, eminent domain, forcible entry and detainer, garnishment, habeas corpus, mandamus, ne exeat, quo warranto, replevin, foreclosure of mortgages or other proceedings in which the procedure is regulated by separate statutes. In all those proceedings the separate statutes control to the extent to which they regulate procedure, but this Act applies as to matters of procedure not so regulated by separate statutes. As to all matters not regulated by statute or rule of court, the practice at common law prevails.”

A complete reading of that section, however, indicates that the garnishment statute and other enumerated statutes control only “to the extent to which they regulate procedure, but this Act applies as to matters of procedure not so regulated by separate statutes.” While the Garnishment Act does prescribe special procedures, for example, whereby summons is issued and interrogatories answered thereby preempting the Civil Practice Act provision, nowhere does it state that such act is the sole and exclusive remedy available to reach a debtor’s assets in the hands of his employer. Both the Garnishment Act and section 73 are creatures of statute and the setting of their dimension is a matter for the legislature. (See Taylor v. Taylor (1969), 44 Ill. 2d 139, 144, 254 N.E.2d 445.) Had the legislature intended the Garnishment Act to be the exclusive remedy, we believe it would have expressly so provided.

Our interpretation of section 73 is consistent with previous court decisions which hold that, in view of section 4 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 4), citation proceedings are to be construed liberally rather than strictly. (Fischer v. Kellenberger (1979), 73 Ill. App. 3d 550, 553, 392 N.E.2d 733; Celano v. Frederick (1964), 54 Ill. App. 2d 393, 401, 203 N.E.2d 774.) The summary of the trial court’s powers under section 73 discloses liberal court authority in dealing with the question of collection of judgments. (North Bank v. F. & H. Resources, Inc. (1977), 53 Ill. App. 3d 950, 953, 369 N.E.2d 174.) The Joint Committee Comments to subsection (2) of the statute recite that the trial court has “broad powers to compel, in a summary manner, the application of assets and income discovered to payment of the judgment or decree.” (Ill. Ann. Stat., ch. 110, par. 73(2), Joint Committee Comments, at 399 (SmithHurd 1968).) And, in section 73(8) the legislature clearly expressed their intent that section 73 proceedings are in addition to existing enforcement methods:

“This section is in addition to and does not affect enforcement of judgments or proceedings supplementary thereto, by any other methods now or hereafter provided by law.” creditor, has the discretion to ascertain the order or judgment it determines is most appropriate in compelling distribution of the discovered assets.

However, we do not imply that proceedings under section 73 were intended to totally supplant the Wage Deduction Act. Subsection (2) provides “[w]hen the assets or income of the judgment debtor not exempt for execution, a deduction order or garnishment are discovered, the court may, by appropriate order or judgment ” * (Emphasis added.) The use of the word “may” indicates that the court, and not the judgment

Although section 73 authorizes the court to compel the party cited to apply nonexempt assets toward payment of the judgment, the statute’s primary aim is to provide creditors with a means of discovering hidden assets. In contrast, wage garnishment procedures are typically appropriate when the judgment creditor is aware of the identity of the debtor’s employer and there is no need for use of a discovery device.

The most revealing statement on this issue is contained in the Historical and Practice Notes in section 73. That comment provides:

“The citation to discover assets procedure prescribed by section 73 and rule 277 is an extraordinary remedy, essentially equitable in character, intended to reach recalcitrant or dishonest debtors who are able but unwilling to satisfy in part or in whole judgments or decrees against them.
The practice is not to be used as a club to attempt to bludgeon a judgment debtor into settlement of judgments or decrees which he is without property to pay. Nor should it be used to deal with assets which are known to the judgment creditor and can be reached by ordinary execution.” (Emphasis added.) (Ill. Rev. Stat., ch. 110, par. 73, Historical and Practice Notes, at 401 (Smith-Hurd 1968).)

Although a wage deduction order is not “ordinary execution,” the import of the above-quoted statement is equally applicable. A wage garnishment should usually suffice when the judgment creditor is aware of the source of the debtor’s income.

The possibility for harassment of third party citation respondents in another context was noted by the court in Celano v. Frederick (1964), 54 Ill. App. 2d 393, 203 N.E.2d 774. In discussing Supreme Court Rule 277 (formerly Rule 24), which defines the procedure to be followed in conducting citation proceedings, the court stated:

“Rule 24 requires all parties cited to appear for examination before the court, master, notary,, etc., and to produce books and records concerning property or income of the debtor. (Par. (3).) That this could cause undue hardship is recognized in the rule itself when it directs the court to control the proceedings ‘to the end that the rights and interests of all parties and persons involved may be protected and harassment avoided.’ (Par. (5).) Further, a second or subsequent supplementary proceeding with respect to the same judgment may not be commenced without leave of, court, and then only upon a showing under oath that the creditor is acting in good faith ‘and not to harass the judgment debtor or third party.’ (Par. (1).) Paragraph (4) also protects a third party from being compelléd to appear in an inconvenient forum.” 54 Ill. App. 2d 393,403 n.5.

Citation proceedings require the party cited to appear in court for a hearing on the existence and location of the judgment creditor’s assets. The judgment creditor may examine the judgment debtor himself or “any third party the judgment creditor believes has property of or is indebted to the debtor.” (Ill. Rev. Stat. 1979, ch. 110A, par. 277(a).) However, in a wage deduction proceeding, there is ordinarily no need for a court appearance and the judgment creditor will have no opportunity to personally examine the debtor as to the existence of assets. The primary discovery device available in a wage deduction proceeding is the use of written interrogatories served on the employer. (Ill. Rev. Stat. 1979, ch. 62, par. 74.) Thus, the Wage Deduction Act recognizes the need not to inconvenience employers during the course of an ordinary wage garnishment. Obviously, a wage garnishment proceeding is better suited to the use of written interrogatories than a full scale hearing when the identity of the employer is known to the judgment creditor and there is no question as to hidden assets. Thus, though the judgment creditor has clear statutory authority under section 73 to summon an employer into court to discover assets, the trial judge pursuant to Supreme Court Rule 277 controls the proceedings to protect the rights and interests of all parties and to avoid harassment, and retains the discretion, subject to any abuse thereof, as to the appropriate order by which it may compel application of discovered assets.

The record in this case indicates that the court below felt that citation proceedings could never be used in a situation where a wage garnishment under the Wage Deduction Act would apply. Since this is an erroneous view, we reverse and remand for further proceedings consistent with this opinion.

As this matter will be remanded for further proceedings, we will address plaintiff’s other two contentions as they may arise again below and the record contains all the necessary facts for our resolution herein.

Plaintiff contends that it was error for the court not to issue a rule to show cause against respondent Barber-Greene or its accounting manager, Kenneth Klomhaus, and it was error not to hold Barber-Greene liable for the amount of the underlying judgment. Plaintiff bases this contention on Barber-Greene’s failure to withhold wages from its employee’s salary in alleged violation of the notice provision contained in the citation. Section 73 clearly provides the court with power to hold in contempt or hold liable for the amount of the judgment third parties who violate a provision of the citation:

“The citation may prohibit the party to whom it is directed from making or suffering any transfer or other disposition of, or interfering with, any property not exempt from execution, a deduction order or garnishment, belonging to the judgment debtor or to which he may be entitled or which may thereafter be acquired by or become due to him, and from paying over or otherwise disposing of any moneys not so exempt which are due or to become due to the judgment debtor, until the further order of the court or the termination of the proceeding, whichever occurs first. * * 6 The court may punish any party who violates the restraining provision of a citation as and for a contempt, or if he is a third party may enter judgment against him in the amount of the unpaid portion of the judgment and costs allowable under this section, or in the amount of the value of the property transferred, whichever is lesser.” (Ill. Rev. Stat. 1979, ch. 110, par. 73(4)(a).)

Further implementation of the court’s authority to impose sanctions is contained in Supreme Court Rule 277(h):

“Any person who fails to obey a citation, subpoena, or order or other direction of the court issued pursuant to any provision of this rule may be punished for contempt. Any person who refuses to obey any order to deliver up or convey or assign any personal property or in an appropriate case its proceeds or value of title to lands, or choses in action, or evidences of debt may be committed until he has complied with the order or is discharged by due course of law. The court may also enforce its order by execution against the real and personal property of that person.” Ill. Rev. Stat. 1979, ch. 110A, par. 277(h).

However, it is clear from the undisputed facts in this record that Barber-Greene’s refusal to withhold wages was done in good faith under the belief that proceedings pursuant to the Wage Deduction Act were the only appropriate vehicle which could be used to accomplish this end. Generally, it has been held that in order to find a party in civil contempt for failure to obey a court order, the disobedience must be wilful and contumacious. (Cole v. Cole (1967), 85 Ill. App. 2d 105, 113, 229 N.E.2d 293; see also Todd v. Arbuckle (1971), 1 Ill. App. 3d 32, 33, 272 N.E.2d 257.) Yet there is authority that in certain types of civil contempt the intent of the defendant is not relevant in determining whether it should be adjudged in civil contempt of an agreed order. (See County of Cook v. Fry Roofing Co. (1974), 59 Ill. 2d 131, 137, 319 N.E.2d 472.) In People v. Redlich (1949), 402 Ill. 270, 277, 83 N.E.2d 736, the court stated:

“Contempts have been classified as civil and criminal con-tempts. Contempt orders in the two classes of cases are of different kinds and made to different ends. Criminal contempts include acts in disrespect of the court or its process and those tending to bring the court into disrepute or obstruct the administration of justice, while civil contempts consist in failing to do something which the contemner is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court. (Porter v. Alexenburg, 396 Ill. 57; Wilson v. Prochnow, 359 Ill. 148.) Imprisonment imposed for a criminal contempt is purely punitive and must be for a definite term. (Rothchild & Co. v. Steger & Sons Piano Mfg. Co. 256 Ill. 196.) But in cases of civil contempt, the sentence being imposed as a remedial or coersive measure, the appropriate punishment is to commit the contumacious party to imprisonment until he has complied with the mandate of the court, since a fine or imprisonment for a specified term might not secure obedience to the order. (Denison Cotton Mill Co. v. Schermerhorn, 257 Ill. 128.) In civil contempt proceedings the order entered serves two purposes. In addition to vindicating the authority and dignity of the court, it also advances the relief granted to a party to the litigation. (People ex rel. Brundage v. Peters, 305 Ill. 223.)”

In the case at bar, from our review of the record it cannot be said that Barber-Greene’s failure to withhold funds was of such a nature that it would amount to a civil contempt for which the court should enter an order to vindicate its authority and dignity.

It has long been established that the power to punish for contempt is discretionary, and should be exercised sparingly and only when necessary to prevent actual, direct obstruction of, or interference with, the administration of justice. (Board of Junior College District No. 508 v. Cook County College Teachers Union, Local 1600 (1970), 126 Ill. App. 2d 418, 431-32, 262 N.E.2d 125, cert, denied (1971), 402 U.S. 998, 29 L. Ed. 2d 165, 91 S. Ct. 2168.) We believe Barber-Greene’s failure to withhold wages presented no threat to the administration of justice, especially in view of the absence of precedent on this issue, and the trial judge did not abuse his discretion in refusing to issue the rule to show cause. For the same reasons and under these limited circumstances, we find there was no abuse of discretion in his refusal to hold Barber-Greene liable for the amount of the judgment.

For the foregoing reasons, we reverse and remand for furthér proceedings consistent with the views expressed herein.

Reversed and remanded.

VAN DEUSEN and UNVERZAGT, JJ., concur.


author: Mr. JUSTICE VAN DEUSEN

text:
    EDWARD F. DUTTON, Plaintiff-Appellee, v. ROO-MAC, INC., Defendant-Appellant.
    Second District
    No. 80-631
    Opinion filed September 15, 1981.
    Rehearing denied October 19, 1981.
    Bradley Prendergast and Dale L. Smirl, both of Chicago, for appellant.
    Frank Wesolowski, Jr., of Wheaton, for appellee.
   Mr. JUSTICE VAN DEUSEN

delivered the opinion of the court:

As a result of two incidents which occurred in the defendant’s restaurant on March 18 and March 21, 1978, the plaintiff in the present case was charged with criminal trespass to land. On July 10, 1980, the trial court dismissed the criminal complaint with prejudice over the State’s objection, apparently because the State was not ready for trial due to the absence of a necessary witness. Subsequent to the dismissal of the criminal case, the plaintiff, acting pro se, brought the present civil action in small claims court for false imprisonment and malicious prosecution against the defendant, Roo-Mac, Inc., and two of its employees, Brenda Vilendrer and Ramona Condie.

After a bench trial in which the court denied the defendant’s motion for a directed verdict, the trial court found that the plaintiff had not proved his action for malicious prosecution, but that he had established, by a slight preponderance of the evidence, that the defendant, Roo-Mac, Inc., had falsely imprisoned him. Judgment for $500 and costs was entered against the defendant and in favor of the plaintiff on his action for false imprisonment. The defendant, Roo-Mac, Inc., appeals. Neither Ms. Vilendrer nor Ms. Condie is a party to this appeal, and the record is silent concerning what action, if. any, was taken against them below.

The incidents which form the basis for both the criminal complaint and the present suit occurred in the defendant’s restaurant on March 18 and March 21,1978. Ramona Condie, the restaurant’s assistant manager, related that she was working in the restaurant on the evening of March 18 when she noticed a disturbance. She stated that a group of youths, which included the plaintiff, was being noisy and messy and that the youths were walking and sitting on the tables. On cross-examination, however, she conceded that she had not seen the plaintiff walk on a table or destroy any property but had only observed him with his feet on the table. Ms. Condie directed Brenda Vilendrer, another of the restaurant’s assistant managers, to tell the youths to leave. When they did not depart, Condie directed Vilendrer to call the police and warn the group to leave immediately as well as to inform them that they would be arrested if they returned to the restaurant. After calling the police, Vilendrer went over to the group. Vilendrer did not testify and there is no evidence as to what, if anything, she told the group.

Ms. Condie related that as the group was leaving, she observed the plaintiff, who was lagging behind the others, and told him never to return to the restaurant or she would have him arrested. She said that the plaintiff did not respond, but their eyes met and he made a face at her. She further testified that the police arrived shortly after the youths had left, that she gave them a description of the car in which the group had departed, and that she told a police officer she would not file charges against the individuals this time but would do so if they returned in the future. Ms. Condie further testified the next time she saw the plaintiff was on March 21,1978, when he was standing in line at the counter waiting to be served. On that occasion he was wearing a red jacket and she immediately called the police.

Ms. Condie also related that earlier that week the management at the defendant’s restaurant had held a meeting regarding disruptive youths who had been frequenting the restaurant. At that meeting the management formulated a new policy which established that the police would be called when an individual returned to the restaurant after having been warned previously that he was prohibited from entering the premises in the future. Her motive in calling the police on March 21 was to implement the restaurant’s policy.

On cross-examination, Ms. Condie stated that other than her contact with the plaintiff at the restaurant, she had seen the plaintiff at his high school where she student-taught for a short period of time and that she remembered the plaintiff as he was on the football team.

On rebuttal, the plaintiff took the witness stand and testified that he never owned a red jacket and that he had never been on the high school football team.

Officer Lilly of the Glen Ellyn police department testified that he received a report of a disturbance at the defendant’s restaurant on March 18 and a description of the vehicle in which the persons who were allegedly creating the disturbance had left. Three hours after the incident, he spotted the vehicle in question. The plaintiff was one of the youths in the car. The officer warned all of the car’s occupants that they were not to patronize the defendant’s restaurant in the future and that they would be arrested upon returning to the premises. On cross-examination, Officer Lilly stated that it was possible but not probable that the plaintiff was standing outside the car and separated from the rest of the vehicle’s occupants when the warning was given. Lilly and two fellow officers arrested the plaintiff on March 21 at the defendant’s restaurant.

Officer Steele recounted that when he arrived at the restaurant on March 21, Ms. Condie apprised him of the past warning that had been given to the plaintiff. He asked the plaintiff to step outside the restaurant; he then arrested him for criminal trespass to land and transported him to the police station. According to the officer, the plaintiff remained at the station for approximately Bi hours during which time he underwent the normal processing procedures of fingerprinting and photographing. While the plaintiff was at the station, Ms. Vilendrer signed a criminal complaint against him for trespass to land.

The plaintiff testified that, while he was waiting to be served in the defendant’s restaurant on March 21, a Glen Ellyn policeman announced that he was under arrest and asked him to step outside. He was arrested, handcuffed, and taken to the police station where he spent a few hours. He denied that either Ms. Vilendrer or Ms. Condie had asked him on several occasions to leave the restaurant or had warned him that he would be subject to arrest if he returned to the eating establishment. While the plaintiff admitted he had been present at the restaurant on the evening of March 18, he maintained that he had not been requested to leave or warned that he would be arrested if he entered the premises in the future. He also denied that the police had given him the same warning later that evening.

Gregory Baird, a friend of the plaintiff who accompanied him to the restaurant on March 21, testified that the Glen Ellyn police arrested the plaintiff while he was in line waiting to be served. The plaintiff was not asked to leave or warned of possible arrest at this time. Baird further related at that time he had visited the restaurant on March 18 with a group of friends, including the plaintiff; while Baird was outside conversing with a friend, a restaurant employee talked with the rest of the group inside the restaurant, and someone from the group told him that the employee had requested that the group leave the restaurant.

On appeal, the defendant asserts that the trial court erred in entering judgment against it for false imprisonment. The thrust of the defendant’s argument on review is that it had reasonable grounds to believe that the plaintiff was committing the offense of criminal trespass to land (Ill. Rev. Stat. 1977, ch. 38, par. 21 — 3) on March 21,1978, and that such reasonable belief by a private person under the arrest statute (Ill. Rev. Stat. 1977, ch. 38, par. 107 — 3) insulates that person from civil prosecution for false imprisonment, because an arrest protected by statute cannot be grounds for civil liability. The defendant asks this court to reverse the cause and remand it with directions that the trial court examine the reasonableness of the defendant’s belief that the plaintiff was committing a crime at the time the defendant had him arrested. On the other hand, the plaintiff maintains that the trial court’s findings are presumed correct and its judgment should not be disturbed on review given both the conflicting evidence in this cause and the fact that the findings and decision are not against the manifest weight of the evidence.

The plaintiff’s amended complaint alleges that the defendant had falsely imprisoned him as a result of the plaintiff’s unlawful arrest for criminal trespass to land. It has been stated that a person who has been falsely arrested is at the same time falsely imprisoned, and an unlawful arrest may support a cause of action for either false arrest or false imprisonment. (32 Am. Jur. 2d False Imprisonment §2 (1967).) In Illinois, false arrest is one means of committing false imprisonment. Montgomery v. Harms (1953), 349 Ill. App. 245, 250; Shelton v. Barry (1946), 328 Ill. App. 497, 506.

The relevant legal principles governing the law of false imprisonment are well established. False imprisonment consists of an unlawful restraint, against his will, of an individual’s personal liberty or freedom of locomotion. (Marcus v. Liebman (1978), 59 Ill. App. 3d 337, 339; Shelton v. Barry (1946), 328 Ill. App. 497, 506.) An arrest by an officer caused or procured by a private person is the same as an arrest by the private person. (Karow v. Student Inns, Inc. (1976), 43 Ill. App. 3d 878,881; Green v. No. 35 Check Exchange, Inc. (1966), 77 Ill. App. 2d 25, 32; Aldridge v. Fox (1952), 348 Ill. App. 96, 100; see Mangus v. Cock Robin Ice Cream Co. (1977), 52 Ill. App. 3d 110, 117.) Where the arresting officer relies solely on the information which the defendant’s employee gave him in making the arrest, the private party defendant may be held liable for false imprisonment. (Odorizzi v. A.O. Smith Corp. (7th Cir. 1971), 452 F.2d 229, 231; Green v. No. 35 Check Exchange, Inc. (1966), 77 Ill. App. 2d 25, 31-32.) However, the mere act of giving information to the police is insufficient in itself to constitute participation in an arrest. (Odorizzi v. A.O. Smith Corp., citing Shelton v. Barry; Karow v. Student Inns, Inc.) It has also been determined that where an employee, acting for himself and on behalf of his employer, causes the unwarranted arrest of a third person, a single wrongful act is committed, and the defendant employer is liable for false imprisonment as a result of the acts of its agent. Green v. No. 35 Check Exchange, Inc. (1966), 77 Ill. App. 2d 25, 32, citing Aldridge v. Fox (1952), 348 Ill. App. 96, 102.

It was once the law in this State that a private person who arrested or caused an officer to arrest an individual without a warrant was liable for false imprisonment if he could not prove both that a crime was committed in his presence and that the plaintiff was guilty of the crime. (Enright v. Gibson (1906), 219 Ill. 550, 555-56, citing Dodds v. Board (1867), 43 Ill. 95,98; Lindquist v. Friedmans, Inc. (1936), 285 Ill. App. 71, 79, aff’d (1937), 366 Ill. 232.) Under the prior case law, a private citizen could not make an arrest or cause an officer to arrest a person where the citizen had probable cause or reasonable grounds to believe that an offense was being committed. (Lindquist v. Friedmans, Inc. (1937), 366 Ill. 232, 236, affg Lindquist v. Friedmans, Inc. (1936), 285 Ill. App. 71, 78; Enright v. Gibson (1906), 219 Ill. 550, 554; Green v. No. 35 Check Exchange, Inc. (1966), 77 Ill. App. 2d 25, 29.) The current law, however, which is identical to the law in existence at the time of the occurrence in question, permits a private individual to arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed. (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 3; Karow v. Student Inns, Inc. (1976), 43 Ill. App. 3d 878, 882.) Consequently, it follows that an arrest authorized by statute cannot be grounds for civil liability. (Karow.) Thus, the plaintiff has the burden of proving a restraint caused or procured by the defendant without the defendant having reasonable grounds to believe the plaintiff was committing an offense. See Karow; Fort v. Smith (1980), 85 Ill. App. 3d 479, 484 (dissent).

In the present case both parties agree that the plaintiff’s personal liberty or freedom of locomotion was restrained. The evidence here also establishes that the defendant, acting through its agents, caused or instigated the police to make a warrantless arrest of the plaintiff.

The crucial question on this appeal is whether the restraint of the plaintiff was lawful. In attempting to justify its conduct, the defendant argues that it had reasonable grounds to believe that plaintiff was committing criminal trespass to land when he returned to the restaurant on March 21, 1978. The statute in question defines criminal trespass, in part, as:

“(a) Whoever enters upon the land or any part thereof of another, after receiving, immediately prior to such entry, notice from the owner or occupant that such entry is forbidden, or remains upon the land of another after receiving notice from the owner or occupant to depart, commits a Class C misdemeanor.
(b) A person has received notice from the owner or occupant within the meaning of Subsection (a) if he has been notified personally, either orally or in writing, or if a printed or written notice forbidding such entry has been conspicuously posted or exhibited at the main entrance to such land or the forbidden part thereof.” (Ill. Rev. Stat. 1977, ch. 38, par. 21 — 3(a), (b).)

In support of its position, the defendant asserts that Ms. Condie gave the plaintiff the notice required by the trespass statute on March 18, 1978, three days before he was arrested upon returning to the restaurant, that she had reasonable grounds to believe the plaintiff received the notice when he made a face at her after she had warned him that he would be arrested if he returned to the premises, and that she reasonably believed that the plaintiff was committing criminal trespass when he returned on March 21.

In a criminal prosecution for the offense of criminal trespass to land (Ill. Rev. Stat. 1977, ch. 38, par. 21 — 3), it is not sufficient that the defendant was given notice; the evidence must also establish that he personally believed that notice had been given. (People v. Ulatowski (1977), 54 Ill. App. 3d 893, 898.) On the other hand, however, the arrest statute (Ill. Rev. Stat. 1977, ch. 38, par. 107 — 3) focuses on whether the private person making or causing the arrest had reasonable grounds to do so. In a civil prosecution for false imprisonment, where the defendant relies on the criminal trespass statute to justify its conduct in causing the plaintiff’s arrest, the defendant need only establish that it had reasonable grounds to believe that the plaintiff received the notice, rather than that the plaintiff believed such notice had been given.

Defendant’s case, however, depends on the court’s acceptance of Ms. Condie’s testimony that she gave notice to the plaintiff on March 18 that he would be arrested if he returned. Absent any such notice, Ms. Condie could not have had any reasonable belief that notice had been given. The plaintiff’s testimony vehemently denied that Ms. Condie or anyone else had given him such notice. Further, Ms. Condie’s ability to identify the plaintiff was based in part on the fact that she knew him as a football player. The plaintiff denied that he had been a football player. Other examples of conflicting testimony are also in the record.

This case resolves itself, therefore, into a question of the credibility of the witnesses. The trial court’s finding that the plaintiff had proved his case for false imprisonment by a preponderance of the evidence carries with it an implicit finding that the plaintiff had proved all essential elements of his case, including the element that the defendant did not have reasonable grounds to believe that the plaintiff had received notice not to return under threat of arrest. There was competent evidence to support the versions of both parties, but the court apparently chose to accept that of plaintiff.

It is well established that where, as here, the testimony adduced at trial conflicted and was contradictory, the trial judge, as trier of fact, was in a superior position to hear and weigh the evidence and determine the credibility of the witnesses. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356; Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 619.) Furthermore, a court of review will not reverse a judgment unless the findings are clearly and palpably against the manifest weight of the evidence. (Schulenberg.) For a finding or judgment to be against the manifest weight of the evidence an opposite conclusion must be clearly evident. Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 621, and cases cited therein.

The trial judge heard the evidence and obviously believed the version given by the plaintiff rather than the defendant’s witnesses, and we cannot say that the judgment of the trial court is against the manifest weight of the evidence. Therefore, the judgment of the trial court is affirmed.

Affirmed.

NASH and LINDBERG, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SCOTT LEE MILLER, Defendant-Appellee.
    Second District
    No. 80-741
    Opinion filed September 15, 1981.

      Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Mary Robinson and David S. Morris, both of State Appellate Defender’s Office, of Elgin, for appellee.
   Mr. JUSTICE VAN DEUSEN

delivered the opinion of the court:

The State appeals from an order of the circuit court of Kane County quashing the indictment against the defendant, Scott Lee Miller. The indictment returned by the grand jury had charged the defendant with reckless homicide. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3(a).) The defendant filed a motion to quash the indictment. The defendant’s motion recited that it was brought pursuant to sections 114 — 1(a)(5) and 114 — 1(a)(9) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 114 — 1(a)(5) and 114 — 1(a)(9)).

Section 114 — 1(a)(9) provides for the dismissal of an indictment if it is based solely on the testimony of an incompetent witness. Incompetent testimony before a grand jury is only that testimony given by a witness disqualified by law, such as complete mental derangement. (People v. Jones (1960), 19 Ill. 2d 37, 41-42.) The defendant’s motion to quash makes no such allegations, nor did the trial court quash the indictment on the basis of this section. Furthermore, on appeal the defendant has not asserted that section 114 — 1(a)(9) is an appropriate ground to quash the indictment. Therefore, we consider the motion as having been brought pursuant to section 114 — 1(a)(5) only.

Section 114 — 1(a)(5) provides, in substance, that upon a written, pretrial motion of the defendant, the court may dismiss a grand jury indictment if in returning the indictment the grand jury acted contrary to article 112 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1979, ch. 38, art. 112), and if such action resulted in a substantial injustice to the defendant.

The defendant’s motion to quash alleges two violations of article 112. First, he alleges that the grand jury violated section 112 — 4(c) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 112 — 4(c)) in that the assistant state’s attorney, in response to questions asked by the grand jury, gave unsworn testimony. Secondly, the defendant alleges a violation of section 112 — 7 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 112 — 7) in that testimony was given and discussions regarding proofs were held off the record.

The trial judge reviewed the transcript of the grand jury proceedings and dismissed the indictment on the grounds that section 112 — 4(c) and section 112 — 7 of the Code had been violated.

On appeal, the State first contends that the trial court erred in dismissing the indictment due to the alleged violation of section 112 — 7 of the Code. Section 112 — 7 provides: “A transcript shall be made of all questions asked of and answers given by witnesses before the grand jury.” (Ill. Rev. Stat. 1979, ch. 38, par. 112 — 7.) In striking the indictment, the trial court construed section 112 — 7 as requiring that the entire proceedings before the grand jury, excluding the deliberative process of the grand jury itself, be recorded and transcribed. A reading of the section indicates that there is no such requirement. The section requires only that “all questions asked of and answers given by witnesses before the grand jury” be recorded and transcribed. Ill. Rev. Stat. 1979, ch. 38, par. 112 — 7; People v. Haag (1979), 80 Ill. App. 3d 135, 138.

The transcript of the grand jury proceeding did contain the sworn testimony of a witness named Ed Guzman. He testified that on August 1, 1980, while he was a passenger in an automobile driven by the defendant, the defendant, who was drunk and driving at an excessive rate of speed, struck and killed a pedestrian. A grand juror then inquired as to whether the defendant was given a breathalyzer test. The assistant state’s attorney, who was not sworn as a witness, responded. He stated that the defendant had been given a breathalyzer test and that “the results were .17 and .18. Legal is .10.” The grand juror also asked whether the defendant had made a statement to the police. Without being sworn, the prosecutor responded that the defendant had made a statement. Then, before the grand jury, he summarized a statement that the defendant allegedly made to the police. The prosecutor summarized as follows:

“All he stated essentially was he was with Mr. Guzman. He corroborated Mr. Guzman’s story that he left the house to go buy beer and that he was driving Mr. Guzman’s car. They left Chris’ Tap, and Mr. Miller said he was driving. He stated he then drove the car north on Hill which would have placed him in the area, then left on South. He denied having an accident and stated he never hit anybody. He was asked if he thought he was under the influence of liquor and unfit to drive. He stated he was and thought he was unfit to drive at the time he was driving.”

Another grand juror then asked Mr. Guzman whether he owned the vehicle the defendant was driving. The witness replied, “I sold him the car.” At the end of the proceedings, a grand juror made the following comments to Mr. Guzman:

“I wondered why you took a chance. We got it first that it was your car. We didn’t know about the sale until you told us.”

The defendant’s motion to quash the indictment alleged that this juror’s remark concerning the ownership of the vehicle indicated that there must have been testimony given off the record in violation of section 112 — 7. A fair reading of the entire transcript, however, indicates that the juror probably garnered the information concerning the ownership of the vehicle from the prosecutor’s summary of the statement allegedly made by the defendant to the police.

In a motion to quash an indictment pursuant to section 114 — 1(c)(5), the burden of proving the violation of article 112 rests on the defendant and may not be based upon speculation. (People v. Haag (1979), 80 Ill. App. 3d 135, 138.) Moreover, the defendant must demonstrate that the impropriety resulted in a substantial injustice to the defendant. Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(a)(5).

Because the juror’s comment could easily be explained from an examination of the entire transcript, and because the defendant has produced no other evidence to indicate that there were unrecorded questions asked of or answers given by witnesses before the grand jury, the defendant has failed to demonstrate a violation of section 112 — 7. The trial court’s finding that there was testimony off the record in violation of section 112 — 7 is against the manifest weight of the evidence.

The trial court also found that there was a violation of section 112 — 4(c) (Ill. Rev. Stat. 1979, ch. 38,- par. 112-4(c)). This section requires the foreman to swear all witnesses. The defendant contended and the trial court correctly determined that the answers given by the prosecutor to questions asked by the grand jury were testimony and while such hearsay testimony can be presented to a grand jury (People v. Creque (1978), 72 Ill. 2d 515, 522, cert, denied (1979), 441 U.S. 912, 60 L. Ed. 2d 384, 99 S. Ct. 2010), under section 112 — 4(c) it should not be presented by an unsworn witness (People v. Curoe (1981), 97 Ill. App. 3d 258, 268). The trial court correctly determined that the prosecutor’s testimony violated section 112 — 4(c).

However, even if the defendant has proven a violation of section 112 — 4(c), dismissing an indictment is an extreme step which may not be taken unless the defendant can also demonstrate that the violation resulted in a substantial injustice to him. Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(c)(5); see People v. Curoe (1981), 97 Ill. App. 3d 258, 269; People v. Haag (1979), 80 Ill. App. 3d 135, 139.

The defendant contends that there was a substantial injustice in that the unsworn statements tended to add credibility to Guzman’s assertions that the defendant was drunk at the time of the accident. The defendant further speculates that had there been no corroboration of Guzman’s testimony, the grand jury may have pursued another line of questioning related to causation, i.e., whether the steering or brakes could have been a factor in the accident.

We note that while Guzman’s sworn testimony standing alone is sufficient to indicate that the defendant was drunk at the time of the accident, and, thus, produces considerable doubt that the corroborating, unsworn testimony caused any injury or prejudice to the defendant, we need not make such a determination. For in effect, defendant’s assertion of injury requires this court to weigh the evidence, examine the credibility of a sworn, competent witness and speculate as to what the grand jury might have done. The courts have repeatedly refused to go behind an indictment to reweigh the competent evidence presented to the grand jury. (People v. Creque (1978), 72 Ill. 2d 515, cert, denied (1979), 441 U.S. 912, 60 L. Ed. 2d 384, 99 S. Ct. 2010; People v. Jones (1960), 19 Ill. 2d 37; People v. Rodgers (1981), 98 Ill. App. 3d 999.) To review the evidence presented to the grand jury as suggested by the defendant would be to invade the independence of the grand jury. (United States v. Basurto (9th Cir. 1974), 497 F.2d 781, 785.) In People v. Rodgers (1981), 98 Ill. App. 3d 999, 1004, this court stated:

“Indeed we have seen no Illinois authority granting a trial court the power to review the evidence presented to a grand jury, apart from those cases concerned with specific allegations of prosecutorial misconduct before the grand jury. [Citation.] An inquiry on those grounds, however, would not require scrutiny of the weight, quality or sufficiency of the evidence nor amount to a judicial review of the determination made by a grand jury as suggested in the present case.”

The additional review and analysis of the grand jury testimony suggested by the defendant in this case would add only an unnecessary “additional layer of adversary litigation and review” (People v. Rodgers (1981), 98 Ill. App. 3d 999,1005), and would “add nothing to the assurance of a fair trial.” Costello v. United States (1956), 350 U.S. 359, 364, 100 L. Ed. 397, 403, 76 S. Ct. 406, 408.

If a defendant seeks to challenge an indictment under section 14 — 1(a) (5), he must show a substantial injury without requiring this court to invade the independence of the grand jury.

We emphasize that the defendant’s motion to quash the indictment does not allege that the unsworn statements of the prosecutor were false or that the statements were intended to mislead the grand jury. Absent any such allegations, this court is impelled to conclude that the responses of the state’s attorney, although improper, were not the vehicle of prosecutorial abuse. See People v. Grew (1979), 69 Ill. App. 3d 663, 669.

Moreover, section 114 — 1(a)(5) requires that the defendant demonstrate that the violation of article 112 resulted in a substantial injustice to him and not the mere possibility of an injustice. At most the defendant’s argument here shows only a mere possibility of an injustice. That is not enough. See People v. Lawson (1977), 67 Ill. 2d 449, 459.

Because the defendant has failed to demonstrate how he was substantially prejudiced by the unsworn statements made by the prosecutor in violation of section 112 — 4(c), the trial court erred in dismissing the indictment pursuant to section 114 — 1(a)(5).

Finally the defendant asserts he was denied his constitutional rights to due process. The defendant correctly asserts that the trial court has the inherent authority to dismiss an indictment in a criminal case on a ground not enumerated in section 114 — 1 if there has been a clear denial of due process. (People v. Lawson (1977), 67 Ill. 2d 449, 455.) Under Lawson, however, the burden still is on the defendant to show that the prosecutorial misconduct resulted in a substantial prejudice to him. (People v. Lawson (1977), 67 Ill. 2d 449, 458-59. As noted earlier, we have determined that defendant has shown no substantial prejudice; therefore, the trial court erred in dismissing the indictment.

For these reasons the order of the circuit court of Kane County dismissing the indictment is reversed, and the indictment is reinstated, and this cause is remanded for further proceedings.

Reversed and remanded. •

HOPF and UNVERZAGT, JJ, concur.


author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    THE VILLAGE OF CARPENTERSVILLE, Plaintiff-Appellant, v. MAYFAIR CONSTRUCTION COMPANY, Defendant-Appellee.
    Second District
    No. 80-801
    Opinion filed September 8, 1981.
    Rehearing denied October 19, 1981.
    Richard W. Husted, of Elgin, for appellant.
    Howard Kamin and Dave Muschler, both of Chicago, and Robert F. Casey, of Geneva, for appellee.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The Village of Carpentersville (Village) sought a determination in a declaratory judgment action that certain claims under a contract with the Mayfair Construction Company (Mayfair) for reconstruction of waste treatment facilities in the Village were nonarbitrable. The trial court found that all claims were within the arbitration clause of the contract and ordered the parties to proceed to arbitration. The Village appeals. It contends that conditions precedent to arbitration in the contract were not met and that this issue must be decided by a court rather than the arbitrator; that procedural questions relating to arbitrability are similarly matters for the court; and that certain claims of Mayfair are not within the scope of the arbitration provisions of the contract. Mayfair, in addition to its counterarguments on the merits, contends that the Village’s participation in the arbitration proceeding estops it from challenging arbitrability.

A construction contract was entered into on October 4, 1976, and work commenced on the project on October 14,1976. Following various written change orders Mayfair made claims for payment for additional work outside the scope of the contract. These claims were submitted in writing to Warren and Van Praag, the architect-engineer for the project (Architect). The first of these claims was denied by the project engineer of the Architect. Mayfair then consulted with the Architect as to the procedure for the handling of claims. It was agreed between Mayfair and the Architect that the following provision in the contract:

“135.02 The demand for arbitration shall be made within thirty days after the date on which the Architect-Engineer rendered his written decision. However, no demand for arbitration shall be made until the earlier of (a) the date on which the Architect-Engineer has rendered a written decision; or (b) the tenth day after the parties have presented their evidence to the Architect-Engineer if he has not rendered a written decision before that date. Failure to demand arbitration within the said thirty day period shall result in the Architect-Engineer’s decision being final and binding on the Owner and the Contractor”

would only apply where the Architect states that a decision is a written decision within the meaning of the section and that an arbitration demand must be made within 30 days of the written decision by the Architect. The Village did not challenge this interpretation.

Thereafter, from time to time, Mayfair notified the Architect of claims for extras and submitted evidence in support of the claims. The Architect gathered evidence and reviewed the evidence with the Village engineer prior to making a decision on such claims.

On April 25,1978, a meeting was held at which representatives of the Village, the Architect and Mayfair were present. Following the meeting several pending claims were denied in a letter from the project engineer to Mayfair dated May 5,1978. On May 17,1978, the project engineer sent a letter to Mayfair which advised them that “it is agreed by the Village of Carpentersville that the 30 days will begin on receipt of this letter.” The initial demand for arbitration was filed by Mayfair on June 14, 1978. On June 23, 1978, the Village filed an answer in arbitration denying liability and also filed a counterclaim.

Mayfair added other claims to its arbitration demand after they were denied by the project engineer. Several of the claims were approved by the engineer but the change orders requested pursuant to a further provision of the contract, section 123.01, were rejected by the Village Board on April 2, 1979. The claims for which change orders were denied were added to the arbitration demand on April 3, 1979. A claim for the sums retained under the contract by the Village in the amount of $76,068.93 was also submitted to arbitration. Payment of the retainage had previously been approved by the Architect.

On July 23, 1979, the Village entered a special and limited appearance in the arbitration proceedings, objecting to the jurisdiction of the arbitrator. Before arbitration commenced, on August 23,1979, the Village filed the declaratory judgment action, alleging that 15 of the 19 claims submitted to arbitration by Mayfair were not arbitrable. Mayfair filed a motion to dismiss, which was denied. Mayfair later asserted the affirmative defense of waiver and estoppel which was denied by the trial court. After trial, which primarily consisted of the submission of documentary evidence, the court found that all preconditions to arbitration had been met and denied the requested relief. It further appears of record that the trial court denied a stay to the Village and the arbitration has proceeded and has been completed before an arbitrator provided by American Arbitration Association but that no ruling has been made.

We first address Mayfair’s argument based on its claim of waiver and estoppel. While the Village argues that it consistently took the position that the claims were not arbitrable, the earliest documentation in the record is the “special appearance” filed over a year after its answers and counterclaim. Nevertheless, we conclude that the objections made prior to a hearing on the merits of the arbitration proceeding was sufficient to preserve the issue.

It has been generally held that a timely objection to arbitrability preserves the right to challenge the award after participating in the arbitration proceedings. (Board of Education v. Champaign Education Association (1973), 15 Ill. App. 3d 335, 341-42. See also Annot., 33 A.L.R.3d 1242 (1970).) In Board of Education, the Board contested arbitrability from the very beginning of the arbitration proceedings, including filing a motion to dismiss prior to the hearing on the merits. The court found that the plaintiff did not waive the objection to arbitrability by participating in the hearing. (15 Ill. App. 3d 335, 342.) In Bisluk v. Town Realty, Inc. (1980), 90 Ill. App. 3d 1039, plaintiffs appeared generally before the arbitrator and requested a continuance before filing suit to enjoin arbitration. The court rejected defendant’s contention that plaintiffs’ involvement in arbitration proceedings waived the challenge to arbitrability. 90 Ill. App. 3d 1039, 1042.

We conclude that the Village’s objection to arbitrability was timely made by bringing this action prior to a hearing on the merits before the arbitrator. See Clifton-Fine Central School Board of Education v. Wisner (1977), 59 App. Div. 2d 50, 52, 397 N.Y.S.2d 208, 209.

The Village argues that the jurisdiction of the arbitrator is governed by the arbitration provisions of the contract (135.01-05) and the provisions relating to the status of the Architect-Engineer (136.02). It further argues that certain sections of the general conditions of the contract, relating to “Changes” (123.01-02), to the “Claims for Extra Compensation” (124.01) and to “Final Payment Estimate” (133.01-133.04) are preconditions to arbitrability and have not been met.

We first consider the Village’s argument that there are conditions precedent to arbitrability which must be decided by the court. The sections in question, as pertinent, are the following:

“123 CHANGES
123.02 Except in an emergency affecting the safety of life or property, no additional work shall be done or changes made, except by the Owner’s signed order, countersigned by the Architect-Engineer, or a signed order from the Architect-Engineer stating that the Owner has ordered such additional work or change. No claim for compensation in addition to the Contract sum will be considered or paid unless so ordered”
and
“124.01 If the Contractor claims extra compensation on account of any instructions given by the Owner through the Architect-Engineer by means of drawings or otherwise, he shall so notify the Architect-Engineer in writing within ten (10) days after receiving said instructions and before proceeding with the work involved 0 0 0 ”

Sections 123 and 124 concern the subject matter of the claims for extra compensation. They do not speak to arbitrability. Thus, the trial court properly concluded that they were not relevant to the issue of arbitrability.

The Village also argues that Mayfair did not comply with the provisions for the initiation of arbitration:

“135 ARBITRATION
135.01 All disputes, claims, or questions subject to arbitration under this Contract, except for claims which have been waived by the making and acceptance of final payment, shall be submitted to arbitration upon written notice of either party to the Contract and a copy of same filed with the Architect-Engineer.
135.02 The demand for arbitration shall be made within thirty days after the date on which the Architect-Engineer rendered his written decision. However, no demand for arbitration shall be made until the earlier of (a) the date on which the Architect-Engineer has rendered a written decision; or (b) the tenth day after the parties have presented their evidence to the Architect-Engineer if he has not rendered a written decision before that date. Failure to demand arbitration within the said thirty day period shall result in the Architect-Engineer’s decision being final and binding on the Owner and the Contractor.
« « «
136.02 The Architect-Engineer shall render decisions on all claims of the Owner or Contractor, and on all other matters pertaining to the progress of the work or interpretations of the Contract Documents, within ten days after his receipt of written notice of same.”

The question raised by this argument relates to whether the procedural issues, such as whether Mayfair complied with the time requirements and other procedures provided in the contract relative to the arbitration of disputes, are to be decided by the court or by the arbitrator. We have found no Illinois cases squarely confronting this issue.

The courts in other jurisdictions have not been uniform in their treatment. In John Wiley & Sons, Inc. v. Livingston (1964), 376 U.S. 543, 11 L. Ed. 2d 898, 84 S. Ct. 909, the United States Supreme Court held that procedural questions are for the arbitrator in a suit brought under section 301 of the Labor Management Relations Act. The court there stated:

“Questions concerning the procedural prerequisites to arbitration do not arise in a vacuum; they develop in the context of an actual dispute about the rights of the parties to the contract or those covered by it.” (376 U.S. 543, 556-57, 11 L. Ed. 2d 898, 908, 84 S. Ct. 909, 918.)

The court concluded that it would only encourage delay to divide disputes into procedural and substantive aspects, each to be decided in a different forum. (376 U.S. 543 556-57, 11 L. Ed. 2d 898, 908, 84 S. Ct. 909, 918.) The'holding in Wiley has been uniformly applied in the Federal courts in cases of commercial arbitration. See, e.g., World Brilliance Corp. v. Bethlehem Steel Co. (2d Cir. 1965), 342 F.2d 362, 365; In re Conticommodity Services Inc. (2d Cir. 1980), 613 F.2d 1222.

The majority of State courts have held that procedural questiqns, including contractual time limitations and the methods of initiating arbitration, are for the arbitrator. Exber, Inc. v. Sletten Construction Co. (1976), 92 Nev. 721, 731-32, 558 P.2d 517, 523; NAPA Association v. County of Napa (1979), 98 Cal. App. 3d 263, 268,159 Cal. Rptr. 522, 525; Pettinaro Construction Co. v. Harry C. Partridge, Jr., & Sons (Del. Ch. 1979), 408 A.2d 957, 963; Bartley, Inc. v. Jefferson Parish School Board (La. 1974), 302 So. 2d 280, 283; Kardon v. Portare (1976), 466 Pa. 306, 353 A.2d 368. Contra, see Frederick Contractors, Inc., v. Bel Premedical Center, Inc. (1975), 274 Md. 307, 316, 334 A.2d 526, 531.

Both parties cite different New York cases, which seem to support their positions. That State’s highest court recently categorized prior case law and clarified the New York law on procedural arbitrability in United Nations Development v. Norkin Plumbing (1978), 45 N.Y.2d 358, 408 N.Y.S.2d 424, 380 N.E.2d 253. The court first distinguished between statutory conditions precedent and contractual conditions precedent. The former are always questions for the court while the latter are usually for the arbitrator. The court further distinguished contractual limitations which are expressly made conditions precedent to arbitration from those which are not, holding that the former should be decided by the court and the latter by the arbitrator, as a general rule.

We conclude that the matters of timeliness and waiver and the other procedural matters in question should be decided by the arbitrator. We find no statutory precondition which would be for the court to decide based on the analysis which we find persuasive in United Nations. We likewise find no express condition precedent to arbitration in the contract. The procedural questions raised by the Village in this case are best answered by the arbitrator. Procedural questions often cannot be resolved without construing the contract as a whole and the transactions under the contract in light of the customs and practices of the industry. This task is peculiarly within the competence of the arbitrator, who presumably will hold the parties to the essence of their bargain. (See NAPA Association v. County of Napa (1979), 98 Cal. App. 3d 263,270,159 Cal. Rptr. 522,526.) Whether the interpretation of the cdntract regarding when the 30-day limitation for the making of a demand for arbitration as agreed to between the Architect and Mayfair is a proper interpretation or one which the Village may not now challenge; and whether the Village by its conduct demonstrated a reliance upon strict compliance with sections 123 and 124 of the contract, as well as the other procedural matters raised, are properly questions for the arbitrator to decide.

The Village also asserts that the subject matter of the claim for retainage under section 133 of the contract is not within the arbitration clauses.

Section 133 provides in pertinent part:

“133 FINAL PAYMENT ESTIMATE 133.01 • * *
Final payment will be made to the Contractor for any amount remaining due upon the final inspection, testing and formal acceptance of the work by the Owner and the Architect-Engineer within thirty days after the final completion and acceptance of the work.
# # #
133.03 Neither the final payment nor any part of the retained amount shall become due until the Contractor delivers to the Owner a complete release of all liens arising from this Contract, or receipts in full in lieu thereof, and, if required in either case, an affidavit that so far as he has knowledge or information, the releases and receipts include all labor, materials, and equipment for which a lien could be filed; the Contractor may, in case any subcontractor refuses to furnish a release or receipt in full, furnish a bond satisfactory to the Owner to indemnify him against any lien. If any lien remains unsatisfied after all payment [sic] are made, the Contractor shall refund to the Owner all moneys that the latter may be compelled to pay in discharging said lien(s), including all costs and a reasonable attorney’s fee.”

The Village contends that the Architect has no control over the release of the retained funds, that no claim for the retainage was filed with the Architect, and, thus, that there is no decision by the Architect to appeal to arbitration.

However, the contract provides that the Architect-Engineer “shall render decisions * * * on all other matters pertaining to the progress of the work” (section 136.02), and provides for arbitration if the Architect-Engineer fails to render a decision (section 135.02). Mayfair argues that the determination of whether the retainage should be paid is a matter “pertaining to the progress of the work,” and is thus arbitrable: We agree. The questions raised by the Village relate to the matter of procedural arbitrability not subject matter arbitrability. The narrow issue involved in this part of the Village’s argument is whether there is an agreement to arbitrate the particular issue, the matter of the retainage. (School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145, 156.) As noted in Del Bianco, a party may not choose between the judicial or arbitration form if there is an agreement to arbitrate. (68 Ill. App. 2d 145, 156.) We conclude that the retainage issue essentially relates to the progress of the work and is thus subject to arbitration under the contract. See Roosevelt University v. Mayfair Construction Co. (1975), 28 Ill. App. 3d 1045, 1051.

Certain claims of Mayfair were allowed by the Architect who requested the Village to issue change orders to pay Mayfair. However, the Village refused to issue the orders. The Village also argues in this connection that since Mayfair did not demand arbitration until the Village refused to issue the orders, Mayfair improperly included in the arbitration the items on which it had received a favorable decision of the Architect. Although it may seem anomalous to allow a successful party to demand arbitration, the contract does not restrict arbitrability to parties whose claims are denied. The only question for the court is whether the subject matter of the claim is within the scope of the arbitration provisions. (See Stuart-Dean Co. v. Lurie (1979), 69 Ill. App. 3d 844, 846.) Further, as a policy matter it is preferable, and in the interest of judicial economy, to allow all arbitrable claims to go to arbitration rather than to require Mayfair to sue the Village for breach of contract.

We therefore conclude that all of the procedural questions raised by the Village are for the arbitrator; and that the subject matter of the claims is within the scope of arbitrability. The judgment is therefore affirmed.

Affirmed.

LINDBERG and UNVERZAGT, JJ., concur.