text:
    GALE D. KLINE, Plaintiff-Appellant, v. THE ILLINOIS RACING BOARD, Defendant-Appellee.
    First District (2nd Division)
    No. 83—1870
    Opinion filed September 18, 1984.
    Rehearing denied October 16, 1984.
    Edward V. Hanrahan, of Chicago, for appellant.

      Neil F. Hartigan, Attorney General, of Springfield (Nancy C. Lischer, Assistant Attorney General, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Gale D. Kline, appeals from the decision of the circuit court of Cook County which upheld the determination of the Illinois Racing Board (Board) to suspend plaintiff’s “occupation license” for two concurrent 90-day periods and to order a forfeiture and redistribution of the purse money for two races won by plaintiff’s horse, Lu’s Priority. The Board found that plaintiff had violated the rule which requires an owner to guard his horse and the rule prohibiting a horse from carrying a “foreign substance” in its body during a race.

The Board and stewards are charged with regulating Illinois horse racing pursuant to the Horse Racing Act (Ill. Rev. Stat. 1979, ch. 8, par. 37—1 et seq.). The stewards are representatives of the Board and supervise races. They have authority to investigate alleged violations of Board rules, to determine whether the rules have, in fact, been breached, and to impose punishment therefor. The stewards’ decisions may be appealed to the Board for a de novo hearing. The Board’s decision is appealable to the circuit court for administrative review. Ill. Rev. Stat. 1979, ch. 8, par. 37—16.

Plaintiff is a licensed owner-trainer of standardbred racehorses (trotters). He resides, and stables his horses, in Michigan. The subject horse won the eighth race at Balmoral Park on October 8, 1982, and the fourth race at Maywood Park on October 15, 1982. Both races were run at night. Tests by the Board of the horse’s urine after each of the two races disclosed the presence of scopolamine in the horse.

An initial “steward’s ruling” was issued on December 30, 1982, with regard to the October 8 race. The ruling found that plaintiff had violated two Board rules, Rule C9.4, which bans foreign substances in horses, and Rule C9.20, which requires trainers to guard their horses prior to a race. The same horse also tested positive for the presence of scopolamine following the October 15 race, but before the steward’s inquiry was completed the parties agreed to consolidate the findings from both races in plaintiff’s de novo appeal to the Board.

Plaintiff’s hearing before the Board took place on January 19, 1983. Before any testimony was taken, the parties stipulated to the following facts: that the horse’s urine samples taken after the two races in issue showed the presence of “scopolamine”; the testing was properly administered; prior to the two races in question, plaintiff had caused the horse to be guarded except for a period of 35-40 minutes before each of the two races; if plaintiff’s veterinarian were to testify, he would state that he is the sole veterinarian for this horse and he had administered no medication to Lu’s Priority except for a single unrelated vaccination; the horse was fed hay grown on plaintiff’s farm; and that testing on the hay demonstrated the presence of jimsonweed.

The first witness was Dr. Paul B. Smith, a veterinarian for the Board. He testified: “Scopolamine” is a very potent drug and is classified as a central nervous system stimulant. Horses become “excited” by it. Depending upon the dosage, scopolamine may affect a horse, ranging from causing death to no effect at all. The drug is used to slow the action of a horse’s “gut”; it is an “old time” remedy used to alleviate a case of “heaves.” One source for scopolamine is the poisonous plant jimsonweed.

In Dr. Smith’s opinion, scopolamine could be found at a racetrack in two medications: “BySol M,” a product used to cure diarrhea which is “not commonly” now used, and “Bells,” a remedy which is sometimes used by lay persons to alleviate colic when a veterinarian is not available. Bells is a powerful stimulant and has, in the past, been used to improperly stimulate a horse before a race. Dr. Smith testified that a horse “injected with a therapeutic dose” of scopolamine would not be raceable because the strong effects of the drug would cause his eyes to dilate and he would become extremely excited or nervous.

Dr. Smith testified that horses find jimsonweed very distasteful. They resent being near it due to its “particular odor” and will not eat it. It is possible, of course, that a horse would “inadvertently” eat hay containing jimsonweed if the latter is in small concentration. If a small dose of scopolamine was ingested by a horse, it could take three to four hours to affect the horse, and the effect would be “slow and subtle.” Also, when a horse has ingested the drug over a period of time, he would build up a tolerance for it. If even a small dose of scopolamine is “injected” into a horse, his eyes will become dilated and his mouth will become dry. The dilation of the pupils will make the horse particularly sensitive to light, making it difficult to race at night under the lights.

Dr. Smith testified that he observed Lu’s Priority after each of the races in issue and that the horse was “frisky.” He did not look for, nor see, any dilation of the horse’s eyes.

Plaintiff was the only other witness to testify. He stated that Lu’s Priority had not been under medication for any illness. He said he had not even heard of scopolamine before these two incidents. He found no products on his farm which included scopolamine as an ingredient. Jimsonweed is common in his farm area.

The parties submitted written memoranda to the Board.

On February 17, 1983, the Board issued its written decision. The Board found that Kline had violated the Board rules and suspended Kline’s occupation license for 90 days and ordered redistribution of the purses from the two races. The Board found, inter alia, that Kline’s admission that he left his horse unguarded for 35 to 40 minutes before each of the two races in issue constituted a violation of the Board’s guarding rule, Rule C9.20, which provides, in part:

“Every trainer has the duty to guard or cause to be guarded each horse trained by him/her in such manner as to prevent any person, including his/her veterinarian, from administering to such horse any foreign substance in violation of these rules.”

The Board also found a violation of Rule C9.4, which states: “No horse participating in a race shall carry in its body any foreign substance (irrespective of when administered or injected). ***” The Board also found:

“Irrespective of the theoretical effect of scopolamine, we note that Lu’s Priority had a history of going off-stride during races. This horse, a trotter, had broken off the trotting gait on at least four occasions prior to the October 8th race. Nonetheless, the horse remained on stride for the October 8th and the October 15th races. Additionally, Lu’s Priority raced faster in these two races than in all but one of its prior races.”

Plaintiff then filed a complaint for administrative review, alleging that the Board’s decision was erroneous and contrary to the evidence and that the Board’s rules, as interpreted by the Board, were arbitrary, unreasonable and contrary to law. The trial court entered an order affirming the Board’s ruling, from which plaintiff appealed.

The Foreign Substance Rule

Plaintiff contends there is no evidence upon which the Board could find that plaintiff violated the rule banning foreign substances and that such rule is, in any event, unconstitutionally overbroad because it prohibits “any” foreign substance, whereas the rule should only be applied to foreign substances which are found to “affect a horse’s racing performances.” Plaintiff also contends the rule is applied under an unreasonable and unconstitutional presumption, viz, that proof of “mere presence” of a foreign substance in a horse results in the Board’s taking as true the further fact that by virtue of the presence of the substance “the horse thereby had an unfair advantage over its competitors.”

As noted, the rule prohibits any horse participating in a race from carrying any “foreign substance” in its body. The rules further define foreign substance as “all substances except (a) those which exist naturally in the untreated horse at normal physiological concentrations or (b) substances, or metabolites thereof, which are contained in equine feeds or feed supplements but do not contain any pharmacodynamic and/or chemotherapeutic agents.” Board Rule C9.8 contains provisions for amending the rules to permit certain foreign substances to be allowed to be carried by a horse. Board Rule C9.9 sets forth the list of various “foreign substances” which have been approved by the Board. Scopolamine is not among them.

Plaintiff appears to contend that because the Board’s rules are intended to protect the “integrity” of competition in horse racing, and foreign substances which “do not so affect a horse’s racing performance pose no threat” to the integrity of the race, it follows that the banning of “all” foreign substances, including those which do not “affect” a horse’s racing ability, is unconstitutionally overbroad.

In support of his argument that the rule is overbroad, defendant relies on the opinion in Simmons v. Division of Pari-Mutuel (Fla. App. 1981), 407 So. 2d 269, affd (Fla. 1982), 412 So. 2d 357, wherein the court struck down the portion of a Florida racing rule which prohibited the racing of a horse who had in him during a race “any substance foreign to the natural horse”:

“[W]e certainly cannot say that to prohibit the racing of an animal with drugs is not rationally related to the regulation of racing or is an unreasonable means to accomplish that regulation. However, we must find otherwise in respect to the prohibition of ‘any substance foreign to the natural horse or dog.’
* * *
To prohibit ‘any substance foreign to the horse’ is to prohibit everything, the helpful and the harmful, the beneficial and the detrimental, the benign and the deleterious. When measured against the articulated reasons for the enactment of the statute, that part of the statute banning any foreign substance cannot be said to bear a fair and substantial relationship to the objectives sought.” (407 So. 2d 269, 271-72.)

We understand plaintiff’s attack on the Board’s rule prohibiting horses from racing when they have any foreign substances in them to be premised on the contention that the rule is an unreasonable exercise of the State’s police power. The scope of the inquiry into whether a statute, or rule, is properly promulgated pursuant to the State’s police power has been defined by our supreme court:

“ ‘The police power is an attribute of sovereignty inherent in every government. It has been reserved to all the States by the constitution of the United States. [Citations.] While it is not without limitation and may not be exercised arbitrarily, the legislatures of the States have broad discretion in the passage of statutes in its exercise. [Citation.] When the legislature has considered a problem and enacted legislation thereon, the act is presumptively a valid exercise of the power and the burden rests upon the one assailing the statute to show that it is without reasonable basis and entirely arbitrary. [Citations.]’ (Memorial Gardens Association, Inc. v. Smith (1959), 16 Ill. 2d 116, 123.) The police power may be exercised to protect the public health, safety, morals, and general welfare or convenience. (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323, 326; Clarke v. Storchak (1943), 384 Ill. 564, 577.) To be a valid exercise of police power, the legislation must bear a reasonable relationship to one of the foregoing interests which are sought to be protected, and the means adopted must constitute a reasonable method to accomplish such objective. (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323, 327; Schuringa v. City of Chicago (1964), 30 Ill. 2d 504, 509.) Although the determination of reasonableness is a matter for the court, the legislature has broad discretion to determine not only what the interests of the public welfare require but what measures are necessary to secure such interest. (Memorial Gardens Association, Inc. v. Smith (1959), 16 Ill. 2d 116, 127; Clarke v. Storchak (1943), 384 Ill. 564, 577.) The court will not disturb a police regulation merely where there is room for a difference of opinion as to its wisdom, necessity and expediency. (Schuringa v. City of Chicago (1964), 30 Ill. 2d 504, 515.)” City of Carbondale v. Brewster (1979), 78 Ill. 2d 111, 114-15, 398 N.E.2d 829.

It is well established that the State is granted vast authority in regulating the horse racing business in Illinois.

“Wagering or gambling is an activity which is ‘subject to regulation or to complete prohibition’ (Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill. 2d 131, 138) and one in which the State’s interest in protecting the public from dishonest practices and in preserving the integrity of horse racing is clear. It is a truism to say that the horse-racing industry depends upon public confidence in the sport and upon integrity and professional efficiency in its operation. A review of the Horse Racing Act and its comprehensive and detailed list of statutory requirements discloses the legislature’s interest in imposing strict controls on an industry which on occasion has been vulnerable to dishonest men and practices.” Phillips v. Graham (1981), 86 Ill. 2d 274, 286, 427 N.E.2d 550.

Plaintiffs suggestion that the rule be construed to prohibit only those substances “found to affect a horse’s speed” must be rejected. First, as noted, this court is not empowered to disturb a police regulation merely because there may be a difference of opinion as to the rule’s wisdom or expediency. Second, the Board found, and plaintiff has not questioned nor contradicted the finding, that there presently exists no reliable scientific manner by which to determine whether a specific substance had an “effect” on a certain horse during a certain race. Since plaintiff’s suggested rule would appear impossible to enforce, it has little to recommend it. Even ignoring this substantial hurdle for a moment, we agree with the Board that plaintiff’s suggested rule, if adopted, would necessarily result in almost endless conflicts before the winner of a race could be declared; first between chemical and medical experts at the hearings conducted by the stewards and the Board, and then between legal experts appearing before the courts. Endless debates as to whether the speed of a particular horse was “affected” by a given concentration of a certain drug during a given race under prescribed conditions would not, in our opinion, enhance the interests of the Illinois horse racing industry, nor its patrons. The essence of horse racing is the immediate finality of declaring the winner.

We believe that a significant distinction between the rule at issue and that struck down by the Florida court is that in Illinois the Board has set forth a reasonable procedure which permits an orderly amendment of the rules to allow foreign substances to be added to the Board’s list of permitted substances after a demonstration that the substance has been shown to have accepted therapeutic effects. Rule C9.8 provides:

“A foreign substance of accepted therapeutic value may be administered as prescribed by a veterinarian when test levels and guidelines for its use have been approved by the Board and these rules have been duly amended. The Board shall give due consideration to test levels and guidelines that have been established by the Veterinary-Chemist Advisory Committee of the National Association of State Racing Commissioners when making future additions to the permitted list.”

We also note that rules from other jurisdictions cited by plaintiff as being more reasonable than the Illinois rule include those which prohibit “any narcotic, stimulant, depressant, local anesthetic or analgesic” (Hacker v. Pennsylvania Horse Racing Com. (1979), 46 Pa. Commw. 263, 405 A.2d 1379); and any “narcotic, stimulant, depressant, chemical or drug of any kind or description” (O’Daniel v. Ohio State Racing Com. (1974), 37 Ohio St. 2d 87, 307 N.E.2d 529). These rules, in our opinion, do not significantly differ from the Illinois rule.

Plaintiff also contends that the foreign-substance rule must be stricken because it is improperly bottomed on an irrebuttable presumption. He claims that upon a “mere finding” of a foreign substance in a horse, the Board necessarily determines the further fact that the substance “affected the horse’s racing ability.” Plaintiff contends that an owner should have an opportunity to present evidence to show that the horse’s racing was not “affected” by the substance found. We initially note that the record reflects no attempt by plaintiff to introduce any evidence whether by testimony or other means by any chemist, veterinarian or other expert with regard to the nature of scopolamine nor its alleged effects on horses generally, or on Lu’s Priority specifically. In any event, we do not agree that this rule requires the employment of an impermissible presumption. As the United States Court of Appeals held in analyzing the substantially similar predecessor to the rule now in issue:

“In the instant case the Board is not attempting to suspend or punish plaintiffs for a violation of its rules. Rather it is simply attempting to establish an objective and absolute condition that every winning horse must meet before its owner becomes legally entitled to the money in the purse.
* * *
Assuming arguendo that [the rule] creates an irrebuttable and conclusive presumption we must review it with disfavor. In so doing, we still believe the rule is permissible because it is not based upon an arbitrary, irrational or unreasonable standard. Unlike LaFleur, Blandis, and Stanley, supra, the presumption created (i.e. that drugged horses substantially affect performance in a race) is a rational, reasonable, and, we believe, permissible conclusion. In their argument, plaintiffs have ignored a key point; that the presumption created must be arbitrary or unreasonable to be considered impermissible.” Edelberg v. Illinois Racing Board (7th Cir. 1976), 540 F.2d 279, 283-86.

We hold, therefore, that the Racing Board’s rule banning “foreign substances” is a valid exercise of its authority. The rule bears a rational and reasonable relationship to the State’s interest in a fair and honest horse racing industry. We find the rule to be neither arbitrary nor unreasonable, and we uphold it.

With regard to plaintiff’s contention that the Board’s determination that he had violated the foreign-substance rule is against the manifest weight of the evidence, we must disagree. Plaintiff’s repeated contention that the “uncontradicted” evidence demonstrates that there was no violation of the rule is manifestly erroneous. Plaintiff stipulated that the horse’s urine tested positive for scopolamine after each of the two races. Scopolamine is not on the Board’s list of permitted foreign substances. Thus, plaintiff’s horse was properly found to be in violation of the foreign-substance rule. Even if we interpreted the rule as plaintiff here requests, i.e., that a violation of the rule could be based only on the presence of a foreign substance shown to “affect” the horse’s performance, plaintiff’s violation of the rule is apparent. The Board found, without contradiction, that scopolamine is a powerful drug and that plaintiff’s horse ran both faster, and straighter, on the two occasions when it had the drug than he had in the past. Plaintiff’s contention that he was not in violation of the foreign-substance rule must be rejected.

Plaintiff also argues, for the first time on appeal, that the Board’s permitting of some foreign substance to be carried in a horse, while not allowing other foreign substances, such as scopolamine, violates the equal protection clause. Plaintiff did not raise this issue before the Board or the circuit court, and we must consider that it has been waived. (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.) The reason for the waiver rule is well demonstrated by this case. Had plaintiff raised this issue below, the Board would have had an opportunity to present evidence on the distinction between its permitted and banned foreign substances.

The Guarding Rule

As noted, Board Rule C9.20 (the guarding rule) states in part that each trainer “has the duty to guard * * * each horse *** in such manner as to prevent any person *** from administering to such horse any foreign substance.” Plaintiff stipulated that he had left his horse unguarded for 35 to 40 minutes before each of the two races in question.

Plaintiff first contends that there was “no evidence” to support the Board’s finding that he had violated the guarding rule. Plaintiff’s argument is that the rule is in two segments, the first of which requires the horse to be guarded and the second of which requires that such guarding be in a manner as to prevent any person from administering a foreign substance to the horse. Plaintiff contends that here the evidence showed that the scopolamine was ingested accidentally by the horse from jimsonweed in its hay and therefore no one “administered” any foreign substance to the horse. Plaintiff argues that because there was no proof that anyone in fact administered a drug to the horse, there can be no violation of the guarding rule.

The Board responds that plaintiffs admitted failure to guard, in and of itself, constitutes a violation of the rule. The Board points out that plaintiff was not here charged with a violation of Rule C9.6, which prohibits a person from administering a foreign substance to a horse. The Board contends that a foreign substance need not be detected in a horse as a condition precedent to finding a violation of the guarding rule.

In our opinion, plaintiff’s stipulation that he left the horse unguarded before each of the two races is sufficient to establish his violation of the guarding rule. We interpret the second section of the rule to explain and describe the activity which the trainer is responsible for guarding against. (See Ray v. Illinois Racing Board (1983), 113 Ill. App. 3d 510, 447 N.E.2d 886.) We do not believe the second section of the guarding rule requires that a violation of the rule can only be established by proof of a subsequent illicit administering of a drug to a horse. (Even were we to interpret the guarding rule as plaintiff urges, viz, that a violation of the rule requires proof of both a failure to guard as well as a drugging of the horse, plaintiff would still have properly been found to have violated the rule in light of his stipulations to both failing to guard and to the fact that the horse carried scopolamine within him.)

We note that Board Rule C9.21, entitled “Prima Facie Evidence,” provides that if a horse is determined to carry a foreign substance, such is prima facie evidence that the trainer has violated the rules prohibiting unlawful administration of a foreign substance or the guarding rule, and the trainer then “has the burden of going forward with the evidence.” Such prima facie evidence standards for guarding rules have been upheld. (See Barry v. Barchi (1978), 443 U.S. 55, 61 L. Ed. 2d 365, 99 S. Ct. 2642; Tassistro v. Louisiana State Racing Com. (La. App. 1972), 269 So. 2d 834; Garrison & Klein, Brennan Revisited: Trainer’s Responsibility for Horse Race Drugging, 70 Ky. L.J. 1103 (1981-82).) Because in the present case the parties stipulated both that plaintiff failed to guard his horse and that the horse was found to have a foreign substance, we find it unnecessary to consider whether a violation of the guarding rule could exist when a trainer showed that he had taken every reasonable guarding measure. See Maryland Racing Com. v. McGee (1957), 212 Md. 69, 128 A.2d 419.

For the reasons stated herein, the order of the circuit court upholding the decision of the Illinois Racing Board is affirmed.

Affirmed.

HARTMAN, P.J., and STAMOS, J., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    ROBERT GLENN, Petitioner-Appellant, v. JAMES RADDEN, Respondent-Appellee.
    Fifth District
    No. 5—83—0860
    Opinion filed August 16, 1984.
    William C. Evers III, of Collinsville, for appellant.
    Phillip A. Montalvo, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Petitioner Robert Glenn appeals a judgment of the circuit court of St. Clair County. In that action, petitioner challenged the election of respondent James D. Radden to the office of Republican State Central Committeeman for the 21st congressional district. The issue presented is whether the court erred in holding that certain technical violations of the niinois Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 1—1 et seq.) did not invalidate the election.

Petitioner and respondent opposed one another as candidates for state central committeeman in the Republican primary election held on March 16, 1982. Prior to an official canvass completed on March 22, 1982, petitioner and respondent each were ascribed a total of 5,592 votes. After the canvass, respondent was ascribed 5,595 votes, and petitioner was ascribed 5,593 votes. The four additional votes were the result of four absentee ballots which were opened and counted for the first time by the county canvassing board. The board consisted of Alvin Schneider, county clerk; Robert Barutta, Democratic precinct committeeman; and Bernice Mihalik, Republican precinct committeewoman.

LaVerne Russell, an employee of the county clerk’s office, testified that a total of eight absentee ballots (four Democrat and four Republican) were brought before the board on March 18, 1982, the first day of the canvass. The ballots had been locked away prior to the canvass. The county clerk informed the board that the ballots had been delivered to the wrong precincts and had not been previously counted. The absentee ballots had been cast by registered voters in the county who had not cast regular ballots in the primary. Ms. Russell stated that it was the common practice of the canvassing board to count absentee ballots in such a situation. The ballots were opened and counted in the presence of the entire board. Diana Clark, an observer present at the canvass on behalf of petitioner, verified the essential facts contained in Ms. Russell’s account of the procedure utilized to count the ballots, and testified that she (Ms. Clark) observed nothing to indicate that the absentee ballots were altered or fraudulently tabulated. Mr. Stephen Schneider, chief deputy county clerk at the time of the election, testified that he did not know what time the ballots were received by the clerk’s office.

Mr. Glenn’s petition to contest election was filed on April 12, 1982. Following a bench trial on December 1, 1983, the court found that there had been violations of the election code in the procedures utilized by the county clerk’s office, but that the violations had not affected the fairness of the election. From an order of December 9, 1983, entering judgment for respondent, petitioner appeals.

The authority of a county canvassing board is delimited by section 22 — 1 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 22—1), which reads in part:

“The powers and duties of the county canvassing board are limited to those specified in this Section. In no event shall such canvassing board open any package in which the ballots have been wrapped or any envelope containing “defective” or “objected to” ballots, or in any manner undertake to examine the ballots used in the election, except as provided in Section 22— 9.1 or when directed by a court in an election contest. Nor shall such canvassing board call in the precinct judges of election or any other person to open or recount the ballots.”

The procedure for counting absentee ballots is set forth in section 19 — 8 of the Election Code, which reads in part:

“All absent voters’ ballots received by the election authority after 12:00 noon on election day or too late for delivery to the proper polling place before the closing of the polls on election day, except ballots returned by mail postmarked after midnight preceding the opening of the polls on election day, shall be counted in the office of the election authority on the day of the election after 6:00 p.m. All absent voters’ ballots delivered in error to the wrong precinct polling place shall be returned to the election authority and counted under this provision.
Such counting shall commence no later than 8:00 p.m. and shall be conducted by a panel or panels of election judges appointed in the manner provided by law. Such counting shall continue until all absent voters’ ballots received as aforesaid have been counted.”

There is no question that the county clerk’s office failed to follow the statutory procedure for tabulating absentee ballots, and that the county canvassing board exceeded its authority in opening and counting the ballots. The issue is whether the statutory provisions so violated are properly characterized as “mandatory,” invalidating all procedures which do not strictly comply with the provisions, or “directive,” invalidating only those procedures which fraudulently or unjustly affect the result of the election. Such provisions are mandatory if the statute expressly provides that noncompliance will render an election void. (Hester v. Kamykowski (1958), 13 Ill. 2d 481, 485, 150 N.E.2d 196.) Where, as in the instant case, the effect of noncompliance is not expressly prescribed by the statute, a court must determine the effect by considering the object of the legislature in enacting the statute and the consequences of attributing various meanings to the statutory language. 13 Ill. 2d 481, 485.

There is, of course, a sense in which all election laws are mandatory, since the laws exist to preserve the integrity of republican government, and impose a duty of obedience on all persons within their scope. (People ex rel. Harris v. Powell (1966), 35 Ill. 2d 384, 387, 221 N.E.2d 384, citing Hester v. Kamykowski (1958), 13 Ill. 2d 481, 485.) Nevertheless, not every departure from statutory prescriptions will vitiate an election. [People ex rel. Harris v. Powell (1966), 35 Ill. 2d 384, 387.) Where noncompliance does not result in fraud, voter disenfranchisement, or unfair conduct affecting the outcome of an election, the failure to comply with technical duties will not render the election void. Hester v. Kamykowski (1958), 13 Ill. 2d 481, 485.

In the instant case, it is not alleged that the failure of the county clerk and the canvassing board to follow the statutory procedures engendered fraud or prevented registered voters from exercising a free and intelligent choice. Petitioner’s argument, rather, is that the irregular procedures employed, simply by reason of their irregularity, impugned the honesty of the electoral process. The failure of election officials to follow the legislatively prescribed procedure for counting absentee ballots is not excused by the fact that such a failure was sanctioned by local custom. The record fails, however, to provide evidence that the consequences of noncompliance affected the fairness of the election. Indeed, fundamental injustice would result if this court were to effectively disenfranchise the qualified absentee voters whose ballots, through no fault of the voters, were counted according to an irregular procedure, even though the irregularity did not engender fraud. Neither the integrity of the election process nor the objectives of the legislature in enacting sections 22—1 and 19—8 would be served by such a holding.

The trial court accurately weighed the consequences of the election officials’ noncompliance with sections 22 — 1 and 19 — 8 of the Election Code in light of the objectives of the entire statute, properly characterizing the violated statutory prescriptions as directive. The judgment is affirmed.

Affirmed.

JONES and EARNS, JJ., concur.


author: PRESIDING JUSTICE WELCH EARNS, J.,

text:
    LOUIS A. WYATT, D.C., et al., Plaintiffs-Appellees, v. JERRY DISHONG, D.C., Defendant-Appellant.
    Fifth District
    No. 5—83—0758
    Opinion filed August 7, 1984.
    Rehearing denied September 17, 1984.

      KARNS, J., dissenting.
    Guy E. McGaughey, Jr., of McGaughey & McGaughey, of Lawrenceville (William C. Bowen and Ray Vaughn, of counsel), for appellant.
    Ray Fehrenbacher and Gary E. Milone, both of Fehrenbacher Law Offices, of Olney, for appellees.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

The parties to this litigation are engaged in the practice of chiropractic in Olney. Defendant Jerry Dishong was associated with plaintiffs Louis A. Wyatt and Wyatt Chiropractic Clinic, Ltd. (Wyatt Clinic). In late September and early October 1983, the defendant left that employment and opened his own office. The plaintiffs then sought injunctive relief in the circuit court of Richland County, based-on a covenant not to compete in defendant’s employment contract. The court granted a preliminary injunction preventing the defendant from practicing as a chiropractor within 10 miles of Olney. The defendant appeals.

In requesting a preliminary injunction, the plaintiffs must prove that (1) they possess a certain and clearly ascertained right that needed protection, (2) they would suffer irreparable injury without such protection, (3) they have no adequate remedy at law, and (4) they are likely to prevail on the merits. (Akhter v. Shah (1983), 119 Ill. App. 3d 131, 134, 456 N.E.2d 232, 235.) The trial court’s findings on each of these issues will not be disturbed absent an abuse of discretion. (Booth v. Greber (1977), 48 Ill. App. 3d 213, 363 N.E.2d 6.) Despite defendant’s contentions to the contrary, the threatened loss of plaintiffs’ patients is an irreparable injury preventable by an injunction. (Cockerill v. Wilson (1972), 51 Ill. 2d 179, 281 N.E.2d 648.) This dispute thus concerns only whether the plaintiffs are likely to prevail on the merits.

Plaintiff Wyatt set up his chiropractic practice in Olney in 1961. The defendant worked for him between 1969 and 1973. Although the defendant had completed his chiropractic training by then, he had not become licensed in Illinois and was limited to performing such tasks as taking X rays. The defendant moved to Louisiana in 1973, where he associated with an acupuncturist. He obtained licenses to practice chiropractic in Illinois and Louisiana while a resident of Louisiana.

Dr. Wyatt contacted the defendant in Louisiana about returning to Olney and associating with him. They discussed the terms of their agreement. The defendant recalled that Dr. Wyatt had promised him a 70%-30% division of the fees generated by him. Dr. Wyatt stated that he had discussed all aspects of the prospective agreement with the defendant, but he was not certain whether he had specifically mentioned the necessity for a covenant not to compete. He did not contend that he promised the defendant a 70%-30% partnership.

The defendant returned to Olney in October 1976 and began to practice in the Wyatt Clinic without a written contract. Dr. Wyatt indicated that the defendant was paid on a 50%-50% basis during that time. The parties finally signed a contract on August 4, 1977. Under the contract, the defendant was to pay Dr. Wyatt $200 plus 50% of his weekly receipts. The agreement was terminable by the defendant or Dr. Wyatt with 30 days’ notice to the other party. Upon termination of the agreement by either party, the defendant would be prohibited from engaging in the practice of chiropractic within 50 miles of Olney for a period of five years. That provision stated that if those time and space restrictions were held invalid by a court, then those restrictions would be revised to include the “maximum reasonable restrictions” allowed under Illinois law.

After the contract was entered into, the compensation of the defendant was changed three times. In 1978, at the request of the defendant, Dr. Wyatt waived the $200 weekly payment. In 1981, the defendant’s share of X ray and therapy income was cut from 50% to 10%. According to Dr. Wyatt, this change was necessitated by the rising price of X-ray film. Finally, beginning in 1983, the defendant received 25% of each fee paid by any patient of Dr. Wyatt’s who was treated by the defendant. He had previously received 50% of those fees.

In February 1983, Dr. Wyatt brought in a new associate, Dr. Hughes. He did not discuss the employment of Dr. Hughes with the defendant. Dr. Wyatt and his receptionist, Florence Redman, were of the opinion that the presence of Dr. Hughes did not reduce the defendant’s compensation because Dr. Hughes’ caseload was small. The defendant disagreed. It is undisputed, though, that Dr. Wyatt referred his patients to Dr. Hughes when he went on vacation.

The defendant advances four reasons why the covenant not to compete is unenforceable against him. First, he describes that clause as adhesive, relying upon American Food Management, Inc. v. Henson (1982), 105 Ill. App. 3d 141, 434 N.E.2d 59. In Henson, the defendant relocated to accept employment with the plaintiff without knowing that he would have to sign a covenant not to compete. He was later required to sign an employment contract containing such a covenant. This court held that clause unenforceable because of the disparity of bargaining power between the individual defendant and the multistate corporate plaintiff, and because of the defendant’s ignorance of the covenant before he relocated. Here, however, both individuals who signed the contract are health care professionals with advanced degrees, and it is not obvious, as it was in Henson, that the covenant was not mentioned before the defendant moved to accept employment. We do not find the covenant adhesive in these circumstances.

Next, the defendant argues that the temporal and spatial limitations in the covenant are so unreasonable as to render it merely an attempt to restrain competition. He asserts that we should judge the restrictions in the contract itself, not in the court’s order, and if they are unreasonable, we should strike the clause rather than rewrite it. (House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 225 N.E.2d 21; L & R Insurance Agency, Inc. v. McPhail (1968), 92 Ill. App. 2d 107, 235 N.E.2d 153.) The fairness of the restraint initially imposed is a relevant consideration (Barrington Trucking Co. v. Casey (1969), 117 Ill. App. 2d 151, 253 N.E.2d 36), but it is much less important where, as here, the covenant specifically allows a court to modify its limits if the original restrictions are too broad. In comparison to other restrictions upheld in Illinois in contracts between practitioners of analogous professions, the 5-year, 10-mile restriction enforced by the trial court is eminently reasonable. (Cockerill v. Wilson (1972), 51 Ill. 2d 179, 281 N.E.2d 648; Canfield v. Spear (1969), 44 Ill. 2d 49, 254 N.E.2d 433; Bauer v. Sawyer (1956), 8 Ill. 2d 351, 134 N.E.2d 329; Field Surgical Associates, Ltd. v. Shadab (1978), 59 Ill. App. 3d 991, 376 N.E.2d 660.) The fact that the defendant was hired for an indefinite period of time and was thus an employee at will does not make the restrictions unconscionable. The right to terminate an at-will employment relationship is subject to any termination provisions in the employment contract (Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 384 N.E.2d 91; H. Vincent Allen & Associates, Inc. v. Weis (1978), 63 Ill. App. 3d 285, 379 N.E.2d 765), including a covenant not to compete. Also, the restrictions are not inappropriate because 95% of the Wyatt Clinic’s patients reside within 30 miles of it or because the defendant is a native of Olney. When he first associated with Dr. Wyatt in 1976, the defendant had not yet established a clientele, and the testimony shows that many of his current patients initially patronized him because of his employment at the clinic.

Next, the defendant insists that Dr. Wyatt’s alteration of his compensation relieved him from the obligation to obey the restrictive covenant. His argument is premised on the principle that a party may terminate or rescind a contract because of substantial nonperformance or breach by the other party. (Eager v. Berke (1957), 11 Ill. 2d 50, 54, 142 N.E.2d 36, 38.) But, a contract terminable at the will of either party can be modified at any time by either party as a condition of its continuance. (Garber v. Harris Trust & Savings Bank (1982), 104 Ill. App. 3d 675, 682, 432 N.E.2d 1309, 1314.) The employment contract has therefore not been breached. Moreover, even construing the actions of Dr. Wyatt as a breach of the contract, the defendant would be excused from complying with the covenant only if there has been a nonperformance of duty that is so material and important as to justify the injured party in regarding the transaction at an end. (C. G. Caster Co. v. Regan (1980), 88 Ill. App. 3d 280, 285, 410 N.E.2d 422, 426.) The $200 weekly payment from the defendant to Dr. Wyatt, which was to defray X-ray expenses, was eliminated at the defendant’s request. There is no indication that this benefit to the defendant was equalled or outweighed by the reduction of his share of X-ray income and fees from his treatment of Dr. Wyatt’s patients. Although the defendant’s income has decreased between 1981 and 1983, no testimony suggests that this was caused by the modification of the parties’ agreement rather than, as Dr. Wyatt attested to, a loss of business at the clinic. Indeed, since Dr. Wyatt began to refer his patients to Dr. Hughes when he went on vacation, it seems unlikely that this change in compensation significantly affected the defendant’s earnings. In any event, Dr. Wyatt’s conduct, even if a detriment to the defendant, was not so substantial as to justify the defendant in treating the employment agreement at an end.

Finally, the defendant claims that the oral modifications of the written contract rendered the entire agreement in violation of the Statute of Frauds (Ill. Rev. Stat. 1983, ch. 59, par. 1) because the covenant not to compete could not be performed within one year of the execution of the agreement. However, a covenant not to compete may be fully performed if the party bound by it dies within the year (Hubhard v. Logsdon (1978), 56 Ill. App. 3d 366, 372 N.E.2d 101; Decker v. West (1934), 273 Ill. App. 532), unlike a contract for employment for a term of years, which is simply terminated by that event (Gilliland v. Allstate Insurance Co. (1979), 69 Ill. App. 3d 630, 388 N.E.2d 68). According to these authorities, a contract containing a covenant not to compete for a period longer than a year does not run afoul of the Statute of Frauds, while a contract containing a term of employment for such a period would do so. Thus, the contract at bar, even with its oral modifications, is not unenforceable under the Statute of Frauds.

For the foregoing reasons, we find that the circuit court of Rich-land County did not abuse its discretion in granting the injunctive relief requested by the plaintiffs. Its order must be affirmed.

Affirmed.

HARRISON, J., concurring.

EARNS, J.,

dissenting:

In my opinion the covenant is adhesive, a blatant attempt to restrain competition and unconscionable. As in American Food Management, Inc. v. Henson (1982), 105 Ill. App. 3d 141, 434 N.E.2d 59, defendant relocated from Louisiana to Illinois and became an at-will employee of plaintiff on an oral agreement. Defendant’s salary was readjusted from time to time in any manner that plaintiff chose. It seems clear that there was no discussion of a restrictive covenant until the 1977 contract was signed, after defendant had moved to Illinois, and defendant’s salary was further readjusted, to his disadvantage. But that contract gave him no protection; he could be terminated on 30 days’ notice, and even though he had worked for plaintiff for 20 years, the covenant would prevent him from practicing his profession within 50 miles of Olney for five years. In 1983, without any consultation with defendant, plaintiff employed another chiropractor, Dr. Hughes, and referred patients to him, further reducing defendant’s income. It is not apparent just what economic harm befell plaintiff, as business was so good that an additional employee was hired. In any event, lack of good faith in an employment relationship is of relevance in enforcement of restrictive covenants. Rao v. Rao (7th Cir. 1983), 718 F.2d 219.

The cases cited by the majority upholding the validity of similar restrictions by medical professions would appear to support the majority position; however, on analysis, they involve generally the negotiation of agreements among professionals, usually partners, of equal bargaining power in populous areas of the State. Defendant here was an at-will employee.

This appears to me to be a covenant designed to restrict competition of the kind that has been considered invalid as a restraint of trade against the public interest. See generally Note, 1978 U. Ill. L.F. 249, 251.


author: JUSTICE KARNS

text:
    IVAN D. BRICKER et al., Plaintiffs-Appellants, v. DAN BORAH, Special Adm’r of the Estate of Winnie Ashworth, Deceased, Defendant-Appellee.
    Fifth District
    No. 5—83—0552
    Opinion filed August 7, 1984.
    Rehearing denied September 13, 1984.

      Fehrenbacher Law Offices, of Olney, for appellants.
    Douglas A. Enloe, of Gosnell, Benecki, Borden & Enloe, of Lawrenceville, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Plaintiffs, Ivan D. Bricker and Marilyn Wilson, appeal from the judgment of the circuit court of Richland County dismissing their action for personal injuries and property damage against Dan Borah, special administrator of the estate of Winnie Ashworth, deceased. The trial court found that plaintiffs’ causes of action were barred by section 14 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 15) and section 204 of the Probate Act (Ill. Rev. Stat. 1975, ch. 3, par. 204, now Ill. Rev. Stat. 1983, ch. 1101/2, par. 18—12(a),(b)).

Plaintiffs’ causes of action arose out of an automobile collision that occurred on December 25, 1975. Ashworth died from injuries she sustained in the collision. On December 20, 1978, plaintiffs filed their complaint against “Winnie Ashworth, defendant.” On the same day, plaintiffs filed a motion for appointment of a special administrator, wherein they suggested the death of Ashworth and alleged that there had been no petition for letters of office filed for the administration of Ashworth’s estate. Their motion was granted, and Dan Borah was appointed special administrator. Summons issued the same day, and Borah was served with process the following day.

On June 19, 1979, upon motion and order, plaintiffs amended their complaint by substituting the special administrator as party defendant in place of the decedent. Defendant Borah, as special administrator, moved to dismiss the amended complaint. Defendant argued that the causes were barred by sections 14 and 19 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, pars. 15, 20), and that the allowance of plaintiffs’ motion to substitute the special administrator as a party defendant was error, as the causes were nullities and did not invoke the jurisdiction of the court because the complaint was filed against a deceased person. The circuit court dismissed the complaint for these reasons.

Plaintiffs contend first that the complaint filed on December 20, 1978, stated proper and valid causes of action against the special administrator and that it was later properly amended to include him as a party defendant under the “relation back doctrine” contained in section 46 of the former Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 46). Alternatively, plaintiffs contend that since the complaint filed on June 19, 1979, was filed within six months of the appointment of the special administrator, this case should be governed by section 19 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 20), and, therefore, their complaint so filed stated proper and valid causes of action against the special administrator and was improperly dismissed.

We would first observe that the circuit court had no authority to appoint a special administrator under either former section 54 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 54), now section 2—1008 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—1008) or section 3 of the Wrongful Death Act (Ill. Rev. Stat. 1977, ch. 70, par. 2.1). The Wrongful Death Act only applies where the act of the defendant causes the death of the person injured; here the plaintiffs are living persons. Section 54 of the Civil Practice Act allowed the court to appoint a special administrator when a person, properly made a party to an action, dies, so that the action will not abate.

A complaint filed against a dead person is void ab initio, a nullity, and does not invoke the jurisdiction of the circuit court. (Volkmar v. State Farm Mutual Automobile Insurance Co. (1982), 104 Ill. App. 3d 149, 432 N.E.2d 1149; Wells v. Lueber (1976), 43 Ill. App. 3d 973, 358 N.E.2d 293.) Thus, under the reasoning of Reed v. Long (1970), 122 Ill. App. 2d 295, 259 N.E.2d 411, the court's allowance of plaintiffs’ motion to substitute the special administrator of Winnie Ashworth’s estate, improperly appointed, as the party defendant was of no effect as there was no pending action in which he could be substituted, nor had there been any proper party thereto whom he could be substituted for. Plaintiffs’ relation back theory must fail. Their complaint filed on December 20, 1978, did not state a cause of action against anyone and therefore cannot serve as a complaint to which an amendment can be made and relate back.

With regard to plaintiffs’ alternate theory, McCue v. Colantoni (1980), 80 Ill. App. 3d 731, 400 N.E.2d 683, is directly in point and disposes of plaintiffs’ theory adversely to them. There the court explained the special extension period of section 19 of the Limitations Act where an action is commenced against an administrator of a decedent’s estate, properly appointed, where the putative tortfeasor dies before the two-year period of limitation provided in section 14 expires. Section 19 of the Limitations Act would then be applicable because the action there and here was commenced “after' the expiration of the time limited for the commencement of the action.” Initially, we question the circuit court’s subject matter jurisdiction to entertain an amendment to a void complaint and to appoint a special administrator in this case. But even if we were to conclude that the amended complaint constituted a separate action against the special administrator (see, e.g., Kasper v. Frank (1972), 9 Ill. App. 3d 481, 292 N.E.2d 508), it was not filed until more than three years after the death of the decedent and was therefore “otherwise barred” by section 204 of the Probate Act since the record establishes that no letters of administration were ever issued. Since no letters had been issued prior to December 25, 1978, the portion of section 204 that bars all claims otherwise barrable under that section when letters do not issue came into play. As in McCue, plaintiffs here failed to cause the issuance of letters of administration during the three-year period and, thus, failed to pursue their claim against the estate of Winnie Ashworth within the applicable period of limitations. 80 Ill. App. 3d 731, 735, 400 N.E.2d 683, 686.

For the foregoing reasons the judgment of the circuit court of Rich-land County is affirmed.

Affirmed.

WELCH, P.J., and JONES, J., concur.


author: JUSTICE JONES

text:
    OWEN WEAVER et al., Plaintiffs-Appellants, v. VELMA C. ELLIS et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0456
    Opinion filed August 17, 1984.

      Joe Harrison, of Fairfield, for appellants.
    Howard & Howard, of Mt. Vernon (G.W. Howard III, of counsel), for appellees.
   JUSTICE JONES

delivered the opinion of the court:

This is an appeal from a judgment rendered for defendants in an action to quiet title in the circuit court of Wayne County. In this appeal the plaintiffs, Owen and Dorothy Weaver, contest the trial court’s construction of a mineral deed denying them any interest in the oil, gas and other minerals underlying a 40-acre tract described as:

“The Northeast Quarter of the Southwest Quarter of Section 8, Township 1 South, Range 6 East of the Third Principal Median, Wayne County, Illinois.”

Prior to December 14, 1942, title to the described real estate was vested in Frank Weaver, Lillie E. Weaver and Corine McKitrick. On December 14, 1942, Frank Weaver and Lillie E. Weaver, who were husband and wife, Corine E. McKitrick and her husband, J.A. McKitrick, conveyed to Mary Urania Fotiades an undivided one-fourth interest in the oil and gas underlying the 40 acres. Although this deed contained language indicative of the creation of a reversionary interest, neither Mary Urania Fotiades nor her heirs or assigns were made parties to this lawsuit, and the one-fourth interest conveyed to her is not affected by this case and will not be further noticed.

On January 23, 1943, Frank Weaver and Lillie E. Weaver conveyed to Corine E. McKitrick their entire interest in the oil and gas (only) underlying the 40 acres.

Two days later, on January 25, 1943, Corine E. McKitrick, joined by her husband, J.A. McKitrick, conveyed to J.A. McKitrick an undivided one-eighth interest in the oil, gas and other minerals. On that same day, Corine E. McKitrick and J.A. McKitrick conveyed to their children, the defendants herein, Velma McKitrick, Deloris D. McKitrick, Lillian R. McKitrick and Auburn F. McKitrick, an undivided one-half interest in the oil, gas and other minerals for a period of “fifteen (15) years or as long thereafter as oil or gas are produced on said property ***.” It is the reversionary interest created by this deed that is the subject of this lawsuit.

On February 2, 1946, Corine E. McKitrick, J.A. McKitrick, Frank Weaver and Lillie E. Weaver conveyed the 40 acres by general warranty deed, without any exception or reservation of oil, gas or other mineral rights, to the plaintiffs Owen Weaver and Dorothy Weaver. The purport of this deed was that it conveyed the surface and the entirety of the oil, gas and other mineral rights underlying the tract. However, because of the previous conveyance to the defendants, at the time of execution and delivery of the deed the grantors owned only a present one-fourth interest in the oil, gas and other minerals plus a one-half reversionary interest that would vest upon the cessation of production as provided by the mineral deed of January 25, 1943, to the defendants.

On August 13, 1957, Owen Weaver and Dorothy Weaver executed a mineral deed to Corine E. McKitrick and J.A. McKitrick conveying an interest in the oil, gas and other minerals. In pertinent part, that deed “convey[ed] and warranted] *** an undivided one-fourth (V4) interest in and to all of the oil and gas, and other minerals in and under the following described real estate ***.” The deed then described the same 40-acre tract. The deed provided further in a specially typed clause inserted at the bottom of the deed, just above the date and signatures, that “[i]t is the intention of the Grantors herein to convey to the Grantees herein all interest in and to the oil, gas, and other minerals acquired by Grantors by virtue of that certain Warranty Deed dated February 2, 1946, and recorded in Deed Record 190 at page 454.”

The issue this case presents is raised by the deed of February 2, 1946, from Frank and Lillie Weaver and the McKitricks to the plaintiffs that by its terms conveyed all the oil, gas and other minerals and the deed of August 13, 1957, from the plaintiffs to the McKitricks that in its granting clause conveyed a one-fourth interest in the oil, gas and other minerals but then in the specially inserted clause expressed the grantors’ intent to convey back all interest in the oil, gas and other minerals that they had acquired by the deed of February 2, 1946. Did the specially inserted “intent” clause operate to convey the one-half interest that reverted with the cessation of production along with the one-fourth interest mentioned in the granting clause? The plaintiffs argue that it did not, for the real intention of the parties to the August 13, 1957, deed was to convey only the one-fourth interest expressly mentioned but not the one-half reversionary interest. The defendants, the sole heirs of the McKitricks, contend that the intent of the parties to the August 13, 1957, deed was to reconvey to the McKitricks all the interest in the oil, gas and other minerals in the 40-acre tract that was erroneously and mistakenly conveyed to plaintiffs by Frank and Lillie Weaver and the McKitricks by the deed of February 2, 1946.

The trial court entered judgment for the defendants, finding that by the August 13, 1957, deed the plaintiffs intended to, and did, convey to the McKitricks “all of their undivided one-quarter possessory interest in the oil, gas and other minerals and also all nonpossessory mineral interests which the grantors may have had or claimed by reason of the prior conveyance to grantors from grantees dated February 2, 1946.”

The only issue before this court is whether the trial court erred in construing the deed of August 13, 1957, as having conveyed from the plaintiffs to the McKitricks both the one-fourth possessory interest and the one-half reversionary interest in the oil, gas and other minerals. We think it did not err, and we affirm.

The primary purpose of the construction of a deed is to ascertain the intention of the parties, such to be determined and gathered from the instrument as a whole, giving effect to every word and rejecting none as meaningless or repugnant, if it can be done without violating any positive rule of law. (Miller v. Ridgley (1954), 2 Ill. 2d 223, 117 N.E.2d 759; Smith v. Grubb (1949), 402 Ill. 451, 84 N.E.2d 421; Goin v. Eater (1982), 107 Ill. App. 3d 887, 438 N.E.2d 234.) Also the circumstances attending the transaction, the situation of the parties, the objects which they had in mind, as shown by the deed, as well as those they did not have in mind and could not attain, merit consideration in construing deeds. (Miller v. Ridgley (1954), 2 Ill. 2d 223, 117 N.E.2d 759; Texas Co. v. O’Meara (1941), 377 Ill. 144, 36 N.E.2d 256.) “The manifest meaning of section 13 [Ill. Rev. Stat. 1947, ch. 30, par. 12] is that when words of inheritance are not used, every word, no matter where appearing in the deed must, if possible, be given weight in determining the estate granted.” (Smith v. Grubb (1949), 402 Ill. 451, 460, 84 N.E.2d 421, 426.) The words need not be construed literally or strictly, since greater regard is accorded to the real intention as manifested in the entire deed than to any particular work or arrangement in its expression. In order to understand the language in the sense intended by the parties, the court will consider the facts they had in mind, including their situation, the state of the property, and the objects to be attained. Magnolia Petroleum Co. v. West (1940), 374 Ill. 516, 30 N.E.2d 24.

Defendants’ position is that the deed of August 13, 1957, construed as a whole, clearly expresses the intent of the parties to it, that being to convey all rights in the oil, gas and other minerals in question, which are those both possessory and reversionary. This construction is not without support.

The Illinois Supreme Court has construed a deed with provisions similar to those in question here. The case strongly fortifies the result we have reached by application of the foregoing rules of construction. In Boone v. Clark (1889), 129 Ill. 466, 499-500, 21 N.E. 850, 859, William G. and George W. Ewing conveyed to Norman B. Judd, “for the purpose of building, constructing, maintaining, and using thereon a railroad,’ a strip of land ‘one hundred and fifty feet wide, being seventy-five feet on each side of the following described line ***.’ ” The deed then described the line. Subsequently, Judd conveyed by deed to the Northern Indiana and Chicago Railroad Company a strip of land “ ‘one hundred feet in width, being fifty feet on each side of the following described line,’ describing the same line described in the Ewing deed, but following the description with the words, ‘hereby intending to convey all the interest vested in said party of the first part by conveyance executed by the [Ewings].’ ”

Notwithstanding the statement of intent contained in the deed, the issue arose as to the correct width of the property conveyed. The supreme court resolved the dispute in favor of the language of intent within the deed, stating:

“[T]hat [Judd] intended to divest himself of all the right and title so acquired, is manifest from the language employed in his deed to the railroad company. True, he specifically describes a strip only one hundred feet wide; but in the same instrument he declares his intention ‘to convey all the interest vested in’ him by the conveyance the Ewings had previously made to him. The description of the premises in the deed, and the declared intention of the grantor, manifested by specific reference to another instrument conveying by a more extended description the same and still other strips of land, are, to the extent of the additional strips, not coincident, and the question is, which of these two descriptions must control.
The rule undoubtedly is, ‘that where there is a doubt as to the construction of a deed, it shall be taken most favorably for the grantee.’ Hence it is said: ‘If there are two descriptions in a deed of the land conveyed, and they do not coincide, the grantee is at liberty to elect that which is most favorable to him.’ [Citations.] The claim of the railroad company, here, is not, by a description in a reference deed, to exclude a part of the premises particularly described, but that by such reference additional land was conveyed, — and such seems to be its effect. [Citation.] So, too, where the particular description was defective, effect was given to the general description. [Citation.] And where there was repugnance between the particular and the general description, the latter was accepted. [Citation.] And where the particular description was repugnant to the reference description, and where, as here, each description was certain, definite and complete when standing alone, the description by reference to a prior recorded deed was accepted. [Citation.] The intention of the grantor, Judd, being thus clearly shown, and the description of the premises intended to be conveyed being certain, definite and complete, that construction must be adopted which is most favorable to the grantee. It therefore follows that by the deed from Judd the railroad company took title to the strip of land through these mortgaged premises, of the width of one hundred fifty feet, and the decree in that regard was correct.” Boone v. Clark (1889), 129 Ill. 466, 501-02, 21 N.E. 850, 860.

Although the plaintiffs specifically included only a one-fourth interest in the oil, gas and other minerals in the granting clause, they manifested their intention to convey “all interest in and to the oil, gas and other minerals acquired by grantors by virtue of that certain warranty deed dated February 2, 1946, and recorded in Deed Record 190 at page 454.” Applying the well-settled rules of construction, here, as in Boone, “where the particular description [is] defective, effect [is] given to the general description ***. [A]nd where, as here, each description was certain, definite and complete when standing alone, the description by reference to a prior *** deed [is] accepted. The intention of the grantorfs,] [Owen and Dorthy Weaver,] being thus clearly shown, and the description of the premises intended to be conveyed being certain, definite and complete, that construction must be adopted which is most favorable to the grantee. It therefore follows, that by the deed from [the Weavers] thfe [McKitricks] took title to [all interest in oil, gas and other minerals, reversionary and possessory that had been conveyed by the deed of February 2, 1946], and the decree in that regard was correct.” Boone v. Clark (1889), 129 Ill. 466, 502, 21 N.E. 850, 860.

Plaintiffs attempt to distinguish Boone in two respects. First their contention is that the defendants are responsible for any issue of ownership because their ancestors were the grantors in the prior 1946 deed and that Boone is therefore distinguishable because the grantees there were not the grantors in that prior deed and allegedly not responsible for any issue of ownership. It is undisputed that the 1946 general warranty deed conveyed exactly what it purported to convey. That the grantors in the prior deed were the grantees in the subsequent deed is a distinction without significance. Plaintiffs’ second distinction is that the prior deed in Boone contained a specific description of the larger area of land conveyed, while the prior deed in the instant case contained no specific description of the quantity of oil and gas conveyed. This distinction is tenuous at best. The 1946 deed referred to in the 1957 deed was a general warranty deed. There is a presumption that a grantor in executing a deed intended to convey only property which he owned. (Roots v. Uppole (1980), 81 Ill. App. 3d 68, 400 N.E.2d 1003.) Assuming arguendo that appellants have made a valid distinction, the quantity of oil and gas conveyed by the general warranty deed was specific, i.e., that which the McKitricks owned. Specifically, the McKitricks owned a one-fourth possessory interest and a one-half reversionary interest in the oil, gas and other minerals subject to this suit. Owen and Dorothy Weaver became owners of those interests by the general warranty deed of February 2, 1946. It is obvious from the circumstances of the parties and the facts before us that no present interest in the oil, gas and other mineral rights was intended to be conveyed by the McKitricks to the plaintiffs by the deed of February 2, 1946. There was continuous production of oil from the 40 acres prior to the deed of February 2, 1946, until sometime after the deed of August 3, 1957. At no time during this interval did the plaintiffs attempt to obtain the landowner’s portion of the proceeds of the production. Unknowingly, Frank and Lilly Weaver and Corine and J.A. McKitrick conveyed all their interest in the oil, gas and other minerals to the plaintiffs in 1946. The plaintiffs thereafter reconveyed a stated one-fourth interest and expressed the intent to convey all that had been acquired by the 1946 deed. The one-half reversionary interest went unmentioned in both deeds. Nevertheless, the “intent” of the parties was plainly expressed by the specially inserted clause in the 1957 reconveyance by the plaintiffs. This interpretation is required by the facts before us, the general rules for construction of deeds recited above and the close association of the facts of this case with those in Boone v. Clark (1889), 129 Ill. 466, 21 N.E. 850.

Affirmed.

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


author: JUSTICE KASSERMAN

text:
    JUDITH ANN HOLTHAUS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (The City of Pana et al., Appellees).
    Fifth District (Industrial Commission Division)
    No. 5—84—0100WC
    Opinion filed August 1, 1984.
    Rehearing denied September 21, 1984.

      Robert W. McCarthy, of Baird, Latendresse, McCarthy & Rowden, of Decatur, for appellant.
    Heyl, Royster, Voelker & Allen, of Springfield (John A. Ess, of counsel), for appellees City of Pana and Commercial Union Assurance Company.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, Judith Ann Holthaus, filed an application for adjustment of her claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for gunshot injuries suffered while she was employed by the respondent City of Pana (Pana). An arbitrator, denying benefits, found that Holthaus had not proved that her injuries arose out of and in the course of her employment. In a split decision, the Industrial Commission confirmed the decision of the arbitrator and adopted the arbitrator’s findings as the findings of the Commission. One commissioner filed a written dissent. The circuit court of Christian County confirmed the decision of the Commission. This appeal followed.

The facts are not in dispute. Holthaus was employed by Pana as a swimming pool manager at Kitchell Park, a 40-acre park bounded by residential and agricultural areas, a golf course, and U.S. Route 51. The park includes tennis courts, a baseball diamond, amphitheater, pavilion, playground, and parking. One parking lot was adjacent to the building area serving the fenced-in swimming pool.

Holthaus’ responsibility was to do whatever was necessary to have the pool ready to use on June 2, 1980. She began pumping out water on April 28 and was frequently required to clean the sides of the pool. How and when the work was to be done was left up to Holthaus. At 6 p.m. on May 2, 1980, the date and time she was injured, Holthaus was working alone at the pool and her personal automobile was the only vehicle parked in the pool parking lot.

At that time, Perry Hubbart, an escaped convict, approached and engaged in conversation with Holthaus, then walked toward the pool parking lot. Hubbart returned and asked Holthaus whether the car in the lot was hers. When Holthaus said that it was, Hubbart attempted to shove her into the pool building. She struck him with part of a lighting fixture and ran toward her car. Hubbart shot twice, wounding her. Holthaus then hid behind her car. Another car arrived, and Holthaus told the driver of the car what had happened. The driver then approached the pool building and was shot down by Hubbart, who had found a set of keys and was headed toward the parking lot. Holthaus and the passenger of the second car fled in the car of the driver Hubbart had shot. Hubbart, unable to start Holthaus’ car with the keys he had found, shot at another arriving car and then went to the south side of the park, where he forced two persons to accompany him as he escaped in their truck.

After Hubbart was arrested, he gave both oral and written statements. According to an officer who testified before the arbitrator, Hubbart stated in the oral statement that he had kidnaped a woman in Decatur and forced her at gunpoint to drive him to Pana, where he let her out near a Pana school; that he proceeded from the school area around Pana in an effort to try to find another automobile to steal to get away; and that after he shot Holthaus, he ran toward the south edge of the park where, he abducted two people in their vehicle at gunpoint.

In Hubbart’s written statement, he related that after getting out of the car of the woman he had abducted in Decatur, he then walked around Pana looking for another car; that he stopped at Reban’s Cafe and had something to eat at 6 p.m.; and that he then walked around looking for a car and finally ended up at the park. He stated that he saw a girl working at the swimming pool and asked her if that was her car sitting in front and she said that it was. In his written statement, Hubbart also stated that he started to pull his gun out when the lady hit him with something and started to run; that he then started shooting at her; and then he went back to the door to get her car keys and then headed for her car. According to Hubbart’s written statement, a man then ran around the corner of the building and Hubbart shot him, and Hubbart then got in the car but could not get the key to fit. Hubbart stated that he got out of the car and took off running for the “southside [sic] of the park” and forced his way into a black pickup truck and drove away.

Holthaus testified before the arbitrator that her duties at the pool included protecting the property and preventing illegal entry of the premises and damage thereto. During the summer of 1979 she had called the police when drunks came to the pool area, and, on another occasion, a stabbing victim had come to the pool and she had given first aid and called the police.

Holthaus further testified that an assistant manager, lifeguards and cleaning personnel worked under her at times set by her. She further testified that the committee she worked for had instructed her to call the Pana police in the event of trouble.

It is well settled that the issue of causal connection is a question for the determination of the Commission, and the Commission’s decision thereon will not be set aside on review unless it was contrary to the manifest weight of the evidence. (Certi-Serve, Inc. v. Industrial Com. (1984), 101 Ill. 2d 236, 244, 461 N.E.2d 954, 958.) It is the claimant’s burden to establish that her injuries arose out of and in the course of her employment. This court will not disregard or reject permissible inferences drawn by the Commission merely because other inferences might be drawn, nor will we substitute our judgment for that of the Commission unless its findings are against the manifest weight of the evidence. (Castaneda v. Industrial Com. (1983), 97 Ill. 2d 338, 341, 454 N.E.2d 632, 634.) An injury may be said to arise out of the employment when, upon consideration of all of the circumstances, there is apparent to the rational mind a causal connection between the conditions under which the work is performed and the resulting injury; and that an injury occurs at the place of employment is not sufficient in itself to prove that the injury arose out of the employment. 97 Ill. 2d 338, 341-42, 454 N.E.2d 632, 634.

Holthaus contends that the Commission’s finding that she did not prove that her injuries arose out of her employment was contrary to the manifest weight of the evidence. We agree. We conclude that Holthaus established that, under the circumstances, the site at which she was required to work created an enhanced risk of criminal assault. Consideration of the evidence adduced requires the conclusion that the pool area of Kitchell Park was isolated to a significant extent compared to the rest of the community at the time of year (mid-spring) when the assault took place. The pool being closed, the public had no occasion to visit the pool area, as is also shown by the fact that Holthaus’ car was the only one in the parking lot. It may be said that Hubbart might have happened upon a member of the general public at that location, as he did shortly after shooting Holthaus. However, the facts remain that the general public was neither required to be there nor had reason to be there, and Holthaus’ employment caused her to be there at various times and frequently alone. See Allied Manufacturing, Inc. v. Department of Industry, Labor & Human Relations (1970), 45 Wis. 2d 563, 568, 173 N.W.2d 690, 692 (holding that the isolated environment in which the deceased worked constituted a “zone of special danger” and concluding that the decedent’s death arose out of her employment); 1 A. Larson, Workmen’s Compensation sec. 11.11(b), at 3-146 (1982) (recognizing the work-related risk factor inherent in the circumstances of an employee who is required to work at an isolated location).

Our conclusion is strengthened by consideration of why Hubbart did not try to take the car of some other individual earlier somewhere else in Pana, instead of making his first such attempt at the pool in Kitchell Park. Furthermore, why did he not force someone to give up a car at gunpoint when he was at Reban’s Cafe or make such an attempt at a private residence? The answer is that none of these locations provided the right opportunity to Hubbart’s satisfaction, i.e., a car, keys or a person from whom keys could be acquired with relative ease, and a setting in which minimal attention would be attracted. In May, people may be expected to be out of doors, windows are open, and loud noises may attract considerable attention. At the pool, however, Hubbart found a lone woman who had a car, who probably had the car keys, and who was relatively far from those who might hear and come to her assistance.

Respondent urges that the conclusion that the pool is an area of enhanced risk of assault under the circumstances is at odds with the fact that other people who were not engaged in any employment at the time were also assaulted or kidnaped immediately after Holthaus was shot. This fact does not alter our conclusion, however. Those people were assaulted or kidnaped because Hubbart’s first attempt to obtain a car, made against someone he perceived to be particularly vulnerable, had failed and considerable attention had been attracted in the process. The failure of the first attempt, against Holthaus, and the consequent commotion significantly raised the risk of Hubbart’s imminent apprehension and forced him to take bolder steps to obtain a car. Had the attempt involving Holthaus succeeded, Hubbart would have had no reason to assault anyone else.

We reject respondent’s contention that Kitchell Park is a recreation area not unlike hundreds of others in Illinois regarding its setting and surroundings. While it is true that Holthaus did not prove that the Kitchell Park pool area at the time of the assault was isolated compared to other municipal parks or other pools being worked on prior to being opened to the public, we find this to be a misleading comparison. Not every city employee is required to work alone in a municipal park; not everyone who is at a municipal park is required to be there, frequently alone. The appropriate requirement for compensation is that one’s employment subjects him to an increased risk “beyond that to which the general public is subjected.” Campbell “66” Express, Inc. v. Industrial Com. (1980), 83 Ill. 2d 353, 355, 415 N.E.2d 1043, 1044.

Finally, it is of no consequence that the attack apparently was related to Holthaus’ car and unrelated to any of respondent’s property, although Holthaus was required to use her personal car as a part of her employment. A claimant need not establish that the environment increased the risk of attack and also that the attack was motivated by something related to claimant’s employment. Proof of either one or the other suffices to establish the requisite causal link. 1 A. Larson, Workmen’s Compensation sec. 11.11(b), at 3 — 145 (1982).

For the foregoing reasons, we conclude that Holthaus has established that her injuries arose out of her employment and that the decision of the Commission to the contrary was against the manifest weight of the evidence. Therefore, the judgment of the circuit court of Christian County is reversed and this cause is remanded to the Industrial Commission for further proceedings consistent with the views expressed herein.

Reversed and remanded.

SEIDENFELD, RJ., BARRY, McNAMARA, and WEBBER, JJ., concur.