author: JUSTICE McNAMARA

text:
    LAWRENCE L. DONOVAN, Appellant, v. THE INDUSTRIAL COMMISSION et al., Appellees.
    Third District (Industrial Commission Division)
    No. 3—84—0123 WC
    Opinion filed July 5, 1984.

      Karen L. Kendall and Peter F. Ferracuti, both of Peter F. Ferracuti & Associates, of Ottawa, for appellant.
    Pamela Koroff Kesler, of Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago, for appellee Ottawa Silica Company.
    Neil F. Hartigan, Attorney General, of Springfield (Alan R. Boudreau, Moshe Jacobius, and Carolyn B. Notkoff, Assistant Attorneys General, of Chicago, of counsel), for appellee Industrial Commission.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Lawrence Donovan, appeals from the judgment of the circuit court of La Salle County confirming the decision of the Industrial Commission. An arbitrator found that petitioner was exposed to the hazards of an occupational disease and was suffering from an occupational disease arising out of and in the course of his employment which left him permanently disabled. The arbitrator awarded petitioner $132.27 per week for life. The Commission affirmed the arbitrator’s finding that petitioner was exposed to the hazards of an occupational disease, but it determined that petitioner did not prove that his condition of ill-being was causally connected to his exposure and denied his claim for compensation.

Petitioner testified before the arbitrator that he was employed by respondent Ottawa Silica Company from April 1956 to January 1977. During this 21-year period, petitioner held a number of different jobs. He cleaned cars, filled bags, brushed screens, worked in the drying operation, and did maintenance work. There was dust in the air at each job. Petitioner wore a mask or respirator when he worked indoors, but he frequently removed it because he could not breathe. The filters in the mask became blocked within 5 to 30 minutes.

Petitioner stated that he was experiencing shortness of breath, dizziness, and weakness as early as 1975 and that he sought medical treatment at that time. He went to a Veterans Hospital in 1976 and stopped working in January 1977. In May 1977 he was hospitalized with a diagnosis of chemical diabetes mellitus, mild obstructive lung disease, hiatal hernia, and early alcoholic liver cirrhosis. Petitioner’s complaints of shortness of breath, dizziness, and weakness persisted and were still present at the time of the hearing.

Petitioner presented the evidence deposition of Dr. Edwin R. Levine, the director of respiratory service at Edgewater Hospital and a specialist in chest diseases. Dr. Levine first saw petitioner in January 1978 when he was admitted to the hospital for X rays, a pulmonary-function test and a blood-gas study. Dr. Levine’s diagnosis, based on petitioner’s employment history and the test results, was that petitioner was suffering from disseminated interstitial pneumonitis and fibrosis, the basis of which is silicosis. The condition was caused by the inhalation of fine sand dust and was permanent.

Dr. William Buckingham testified for Ottawa Silica by means of an evidence deposition. Dr. Buckingham, a pulmonary specialist, examined petitioner in April 1978. He disagreed with Dr. Levine’s interpretation of petitioner’s X rays. Dr. Buckingham did not find fibrotic tissue with fine interstitial changes disseminated throughout the lung. He found calcified lymph nodes and opined that petitioner was suffering from mild airway obstruction related to cigarette smoking.

Based on this evidence, the arbitrator allowed petitioner’s claim for compensation. Ottawa Silica sought a review of this decision and, on review, presented additional testimony from James Stukel, a metallurgist and Dr. Paul Gross, a pathologist.

James Stukel testified about the size and type of silica manufactured by Ottawa Silica. The smallest particle of sand to which petitioner could have been exposed was 44 microns. According to Dr. Levine’s earlier testimony, a respirable particle was approximately five microns in size. Petitioner worked with St. Peter’s Sandstone, which is neither flux calcine nor diatomaceous earth. Stukel also testified that Ottawa Silica did not manufacture fumed silica.

Dr. Paul Gross, a pathologist specializing in the diagnosis of lung disease caused by dust, testified that he customarily studies slides of lung tissue and is not competent to read lung scans or X rays. Relying on Dr. Levine’s interpretation of petitioner’s lung scans and X rays, as well as the radiologists’ reports, however, it was Dr. Gross’ opinion that petitioner did not have silicosis. He explained that there are three types of silicosis: multifocal nodular, interstitial, and acute. The first type is ruled out in petitioner’s case because the X rays, according to Dr. Levine’s interpretation, fail to indicate the presence of multifocal nodules. Interstitial silicosis is eliminated because petitioner was not exposed to flux calcine, diatomaceous earth, or fumed silica, all of which cause this type of silicosis. Finally, acute silicosis, which is caused by exposure to massive quantities of extremely fine particles and which appears similar to pneumonia on X rays, is also excluded since petitioner was not exposed to massive quantities of fine silica nor did his X rays appear similar to those of a patient with pneumonia. Dr. Gross stated, however, that if petitioner had worn a mask only intermittently he would have been exposed to unknown quantities of silica.

Following the testimony of Dr. Gross, on October 12, 1979, the proofs were closed. On March 20, 1980, oral arguments were heard by a majority of the Commission. The record is unclear as to the subsequent events. According to Ottawa Silica, in August 1980, the Commission informally requested that the parties agree on the appointment of an impartial medical examiner to review petitioner’s X rays and report to the Commission. On October 28, 1980, since the parties could not reach an agreement, Ottawa Silica filed a petition under . section 19(c) of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1981, ch. 48, par. 172.54(c)) for the appointment of an impartial medical examiner. At the direction of the Illinois State Medical Society, Dr. Robert Tucker was appointed, and he reviewed petitioner’s prior X rays. In a report dated August 17, 1981, Dr. Tucker concluded that there was no convincing evidence of pulmonary disease, and he found no evidence of diffuse densities or localized fibrotic densities.

At a hearing on September 30, 1981, petitioner objected to the Commission’s consideration of Dr. Tucker’s report and waived cross-examination of the doctor to preserve his objection. Dr. Tucker’s report was admitted into evidence as a Commission exhibit, and on March 17, 1982, the Commission issued its decision. That decision was confirmed by the circuit court.

On appeal petitioner contends that the Commission exceeded its authority in ordering an impartial medical examination after the close of proofs on review, and that when the report of Dr. Tucker is excluded, the arbitrator’s award was not against the manifest weight of the evidence. In addition to Ottawa Silica’s answering brief, the Commission has filed a brief in this court urging that it properly ordered an impartial medical examination after it heard oral arguments.

Section 19(c) of the Workers’ Occupational Diseases Act provides in pertinent part:

“(c)(1) At a reasonable time in advance of and in connection with the hearing under Section 19(e) or 19(h), the Commission may on its own motion order an impartial physical or mental examination of a petitioner whose mental or physical condition is in issue, when in the Commission’s discretion it appears that such an examination will materially aid in the just determination of the case. ***
(2) Should the Commission at any time during the hearing find that compelling considerations make it advisable to have an examination and report at that time, the commission may in its discretion so order.” (Ill. Rev. Stat. 1981, ch. 48, par. 172.54(c).)

Petitioner maintains that the “hearing” referred to in section 19(c) is the period of time beginning with the presentation of evidence to the Commission and ending with the close of proofs. He urges that the Commission’s request for an impartial examination was not made “in advance of and in connection with the hearing,” nor was the request made “during the hearing.”

The scope of sections 19(c)(1) and (c)(2) is a question of first impression. However, Supreme Court Rule 215(d)(1) (87 Ill. 2d R. 215(d)(1)), an analogous provision relating to the trial courts, has been interpreted by this court and provides us with guidance. In In re Custody of Scott (1979), 75 Ill. App. 3d 710, 394 N.E.2d 779, this court held that an impartial examination ordered after closing arguments had been made was ordered “during the trial.” We decided that the trial period did not conclude until a final judgment was entered.

Black’s Law Dictionary defines a hearing as “synonymous with trial.” (Black’s Law Dictionary 852 (4th ed. 1968).) We believe that the proper definition of “hearing” included the Commission’s deliberative process. The hearing does not terminate until a decision is entered. The impartial examination ordered by the Commission prior to its decision was made “during the hearing” in accordance with section 19(c)(2).

Petitioner argues, however, that even if the examination was ordered during the hearing, the Commission did not state in its order “that compelling considerations make it advisable to have an examination and report at that time.” The record before us does not include the Commission’s order for the impartial examination. Since the order is not before us, we must presume that the Commission found compelling considerations warranted an impartial examination. (Brokerage Resources, Inc. v. Jordan (1980), 80 Ill. App. 3d 605, 609, 400 N.E.2d 77.) Moreover, the absence of such language would not be fatal to the Commission’s right to issue such an order. Since the medical evidence was conflicting, the Commission certainly concluded that compelling considerations existed for an impartial examination.

Petitioner'also contends that reading and interpreting X rays is not a physical examination. We do not agree. The use of X rays, a common diagnostic tool used by physicians, is encompassed within the term “physical examinations.” Petitioner apparently concedes that physical examinations would include tests, and we find no distinction in the fact that Dr. Tucker reviewed prior X rays rather than new ones.

Petitioner has repeatedly referred to the 22-month delay from the close of proofs to the date of Dr. Tucker’s report. While the record is unclear as to the cause of this inordinate delay, we do not condone such a delay on the part of the Commission, which clearly frustrates the Act’s intended purpose of quick and efficient remedies. However, while we strongly discourage such delays in the future, the Commission’s statutory authority to order an impartial examination is not affected in the present case.

Petitioner next contends that, when Dr. Tucker’s report is stricken, the decision of the arbitrator is not against the manifest weight of the evidence. Our review is limited to whether the decision of the Industrial Commission is against the manifest weight of the evidence. (Martin v. Industrial Com. (1982), 91 Ill. 2d 288, 293-94, 437 N.E.2d 650.) The Commission exercises original jurisdiction and is not bound by the arbitrator’s findings. (Master Leakfinding Co. v. Industrial Com. (1977), 67 Ill. 2d 517, 525, 367 N.E.2d 1308.) Therefore, the arbitrator’s decision is not before us.

From our review of the record, the decision of the Commission is not against the manifest weight of the evidence. As we have concluded, the Commission was entitled to consider Dr. Tucker’s report. Besides the conflicting testimony of Drs. Levine and Buckingham as to the interpretation of petitioner’s X rays, the Commission had before it unrebutted testimony that petitioner was never exposed to silica particles small enough to be respirable. There was also evidence that Dr. Levine’s interpretation of the X rays was at variance not only with Dr. Buckingham, but also with the radiologists at Edge-water Hospital.

The Commission has the responsibility of assessing the credibility of witnesses and determining the weight to be given to their testimony. (Caradco Window & Door v. Industrial Com. (1981), 86 Ill. 2d 92, 99, 427 N.E.2d 81.) The Commission properly considered all of the evidence before it and made a decision on the controverted facts. That decision is not against the manifest weight of the evidence.

For the reasons stated, the judgment of the circuit court of La Salle County, confirming the decision of the Industrial Commission, is affirmed.

Judgment affirmed.

SEIDENFELD, P.J., BARRY, WEBBER, and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    THE PEOPLE ex rel. LAURA M. DAVIS, Plaintiff-Appellee, v. KENDALL TATE CHAMBERS, Defendant-Appellee (Jana J. Chambers, Applicant-Appellant).
    Fifth District
    No. 5—83—0304
    Opinion filed May 1, 1984.
    Feirich, Schoen, Mager, Green & Associates, of Carbondale, for appellant.
    Treva H. O’Neill, of Rudasill & O’Neill, of Carbondale, for appellee Kendall Tate Chambers.
    John R. Clemons, State’s Attorney, of Murphysboro (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for appellee People ex rel. Laura M. Davis.
   JUSTICE HARRISON

delivered the opinion of the court:

Applicant Jana J. Chambers appeals the denial of her motion for leave to intervene of right in a paternity suit filed against her husband, Kendall Tate Chambers, by plaintiff Laura M. Davis. The issue presented is whether applicant’s position was such as to entitle her to intervention under the provisions of section 2 — 408(aX3) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 408(aX3)).

On November 8, 1982, plaintiff filed a complaint to establish paternity against Kendall Tate Chambers. Prior to the filing of plaintiff’s complaint, applicant had filed against Mr. Chambers a petition for dissolution of marriage. Mr. Chambers, while not admitting paternity of plaintiff’s child, agreed to settle plaintiff’s action by paying child support in the amount of $100 per month for a period of three years, followed by a single payment of $6,000. The proposed settlement was made known to applicant in Mr. Chambers’ answers to applicant's interrogatories pursuant to the dissolution of marriage proceeding. Applicant filed her motion for leave to intervene in the paternity action on April 21, 1983. On this same date, applicant filed a petition in intervention requesting the court to refrain from approving any settlement between plaintiff and Mr. Chambers until after final dissolution of applicant’s marriage to Mr. Chambers. Applicant’s motion for leave to intervene was heard and denied on April 28, 1983, six days prior to the date set for a hearing on the distribution of the marital assets of applicant and Mr. Chambers. The court proceeded to approve the support agreement between plaintiff and Mr. Chambers.

Intervention of right is governed by section 2 — 408(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 408(a)), which provides that:

“Upon timely application anyone shall be permitted as of right to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or a court officer.”

It is upon subsection (3) that applicant bases her right to intervene in the paternity suit between plaintiff and Mr. Chambers, alleging that the settlement between plaintiff and Mr. Chambers, being subject to court approval, was such as to place applicant in a position “to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court” within the meaning of the statute. The court’s approval of the paternity settlement, it is argued, encumbered and diminished marital assets which otherwise would have been available for distribution at the dissolution hearing six days later. Because the paternity settlement would invariably affect the subsequent distribution of marital assets, applicant contends that she was entitled to intervene in the suit between plaintiff and applicant’s estranged spouse.

In Shilvock v. Shilvock (1961), 31 Ill. App. 2d 254, 175 N.E.2d 272, cited by applicant, it was held that a decedent’s second wife was entitled to intervene in an action by the decedent’s first wife against the decedent’s estate for the enforcement of a property settlement entered by the decedent and his first wife pursuant to their divorce. In addition to asserting that she was directly affected by the order enforcing the property settlement with the decedent’s first wife, the second wife also claimed that a conflict of interest existed between herself (the second wife) and the executor of her husband’s estate, and that certain significant facts had not been placed in evidence before the trial court. Noting that the Code of Civil Procedure should be liberally construed in cases involving a claim of intervention of right based upon a applicant’s interest in the distribution of property, the appellate court held that the second wife’s petition “brought her within the purview of this section of the Act [section 2-408(a)(3), formerly Ill. Rev. Stat. 1959, ch. 110, par. 26.1(l)(c)], and should have been allowed, especially since it asserted a conflict of interest between her and the executor who, according to her theory, stood to benefit by the *** order.” 31 Ill. App. 2d 254, 264.

While we agree that doubts regarding intervention claimed pursuant to a property interest under subsection (3) should generally be resolved in favor of the applicant, the instant case is distinguishable from Shilvock, and the trial court properly denied applicant’s motion for leave to intervene. In Shilvock, intervention was sought for the purpose of affecting the result of the trial court’s enforcement order by placing before the court evidence which, by virtue of a conflict of interest between the proposed intervenor and the party ostensibly protecting the intervenor’s property, would not otherwise have been presented. Applicant in the instant case provided no indication that her intervention in the action between plaintiff and applicant’s estranged husband would in any manner have affected a determination of the material issue of paternity; rather, applicant’s sole purpose was to delay settlement of the paternity litigation until after applicant’s own action against her husband had been settled, thus protecting applicant’s purported interest in property which might otherwise be apportioned to plaintiff. Intervention may not properly be utilized as a mechanism to delay proceedings. Hurley v. Finley (1955), 6 Ill. App. 2d 23, 126 N.E.2d 513.

For the foregoing reasons, the order of the circuit court of Jackson County denying applicant’s motion to intervene is affirmed.

Affirmed.

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


author: PRESIDING JUSTICE WELCH JUSTICE HARRISON,

text:
    WALTER NEWKIRK et al., Plaintiffs and Counterdefendants-Appellants and Cross-Appellees, v. JOSEPH G. BIGARD, Indiv. and d/b/a B & B Oil Company, et al., Defendants-Appellees—(Joseph G. Bigard, Indiv. and d/b/a B & B Oil Company, et al., Counterplaintiffs-Appellees and Cross-Appellants).
    Fifth District
    No. 5-83-0415
    Opinion filed March 6, 1984.
    Rehearing denied August 6, 1984.

      HARRISON, J., dissenting in part.
    Richard Briles Moriarty, of Newton, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellee Brad Evilsizer.
    Lawrence Eaton, of Eaton, Eaton & Tomaw, of Newton, for other appel-lees.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

At issue here is an order of the Illinois Mining Board integrating oil and gas interests in certain Jasper County land and establishing a drilling unit composed of that land. The question presented is whether that order was invalid for failing to prescribe the time and manner in which owners of interests in the proposed unit could elect to participate in it. (Ill. Rev. Stat. 1981, ch. 961/2, par. 5436(d).) We hold that it was, but only in part.

The land affected by the order of the Mining Board is a 40-acre tract which was owned prior to 1961 by Paul A. and Mildred A. Lucas (the Lucases) and Cora E. Lucas. On May 4, 1961, these owners conveyed the north 30 acres of this land to plaintiff Walter Newkirk. The grantors reserved unto themselves a one-half interest in the oil, gas and minerals associated with that property for a period of 20 years from the date of the conveyance “and as long thereafter as oil, gas or other minerals are produced from operations commenced within said 20 year period.” On November 13, 1980, the Lucases executed an oil and gas lease to Joseph G. Bigard. This lease, with a primary term extending to February 28, 1981, covered all of the mineral interests of the Lucases in the 40-acre tract.

In late 1980, the Lucases and Bigard filed a petition with the Mining Board. The petitioners sought integration of the mineral interests of the Lucases and Newkirk in the 40-acre tract and the issuance to Bigard of a drilling permit covering that land. They also requested that the Mining Board prescribe the time and manner in which all owners in the proposed drilling unit may elect to participate in it. In the petition it was also suggested, as alternatives, that the board

“1. Make provision for the payment by all those who elect to participate therein, of the reasonable actual costs thereof plus a reasonable charge for supervision and interest.
2. Provide one or more equitable alternatives if Walter Newkirk does not elect to participate in the risk and cost of the drilling and operation or operations of a well he may elect to surrender his leasehold interest to Joseph G. Bigard on some reasonable basis and for a reasonable consideration which if cannot be agreed upon shall be determined by the Mining Board.
3. Provide that Walter Newkirk may elect to participate in the drilling and operation or operations of the well on a limited or carried basis upon the terms and conditions to be just and reasonable.”

Notices of the hearing on the petition were sent to all interested parties, including Walter Newkirk. A hearing was held in Springfield on December 1, 1980, at which testimony was heard. Newkirk was not present. On December 11, 1980, the board issued an order integrating the mineral interests of Newkirk and the Lucases in the 40-acre tract and establishing two 20-acre drilling units, one composed of the west half of the tract and the other consisting of its east half. Bigard was authorized to drill wells in both units. The order also stated

“that Walter Newkirk shall participate in the drilling unit described above to the extent of 37.5% of the 7/sths working interest and 37.5% of the %th royalty interest in the drilling unit. The participation factor shall be in accordance with Section 22.2(d) of ‘An Act in Relation to Oil, Gas, Coal and Other Surface and Underground Resources and Rules and Regulations,’ being a part of Chapter 96V2 of the Illinois Revised Statutes. The participation factor is determined to be:
1. 37.5% of the costs and expenses of all surface equipment and 37.5% of the costs of operating the well concerning with the production to be borne by Walter Newkirk and 62.5% of the costs and expenses of all surface equipment ' and 62.5% of the costs of operating the well concerned with first production to be borne by Joseph G. Bigard.
2. 56.25% of actual costs and expenses of drilling, testing and completing the well to be borne by Walter Newkirk and 43.75% of actual costs of drilling, testing and completing said well to be borne by Joseph G. Bigard.”

On January 19, 1983, Walter Newkirk and his wife, June Fay Newkirk, commenced this action in the circuit court of Jasper County. Although, as in many actions pertaining to mineral rights, the pleadings were amended to allow the inclusion and deletion of parties, the defendants in these proceedings are those parties who claim interest in the 40-acre tract by virtue of the Lucases’ lease to Bigard, in addition to Brad Evilsizer, the director of the Illinois Department of Mines and Minerals. The Newkirks’ complaint was in four counts. Count I averred that the December 11, 1980, order of the Mining Board was invalid, and thus the Newkirks requested the court to declare that order void and declare the rights of the parties accordingly. Count II alleged that there had been no production of oil or gas from the north 30 acres of the tract before May 4, 1981. In this count, the Newkirks sought a declaration that the Lucases’ reservation of mineral interests had expired by its own terms. In count III, the Newkirks demanded damages from Bigard and the Lucases for removing oil and gas from the north 30 acres of the tract even though, as alleged, they were aware that the integration order of the Mining Board was invalid. Based upon the same removal of oil and gas, the Newkirks sought damages in count IV from the Lucases for breach of warranties contained in the 1961 deed.

The Lucases, Bigard, and all defendants claiming interests through their lease (the Lucas-Bigard defendants) filed a motion to dismiss the Newkirks’ complaint in its entirety. This motion asserted that the complaint constituted an impermissible collateral attack on the order of the Mining Board. Defendant Evilsizer employed similar reasoning in his separate motion to dismiss the complaint, but further contended that the order of the Mining Board was valid.

The Lucas-Bigard defendants also filed a counterclaim against the Newkirks. Count I was for slander of title, and in count II these defendants sought to quiet title to their mineral interests in the 40-acre tract. The Newkirks moved to dismiss both counts of this counterclaim. Additionally, the Newkirks moved for summary judgment on counts I and II of their complaint. After several attempts to schedule all of these motions for a single hearing, a nonevidentiary hearing was held on April 28, 1983. The court entered a written order on June 14,1983.

In that order, the court granted the motion of the Lucas-Bigard defendants (also referred to as counterclaimants) to dismiss counts I and III of the Newkirks’ complaint, but denied that motion as to counts II and IV. Since defendant Evilsizer was a party only to count I, his motion to dismiss was also granted. The court granted the Newkirks’ motion to dismiss count I of the counterclaim, but denied that motion as to count II. It denied the Newkirks’ motion for summary judgment on counts I and II of their complaint and ordered all parties to pay their own costs. All dismissals of counts were made without leave to amend, and the court specifically found no just reason for delaying enforcement or appeal of its order. 87 Ill. 2d R. 304(a).

The Newkirks appeal from the dismissal of counts I and III of their complaint, the dismissal of defendant Evilsizer from the proceedings, the denial of their motion for summary judgment on counts I and II of their complaint, the denial of their motion to dismiss count II of the counterclaim, and the court’s order pertaining to costs. The counterclaimants have filed a cross-appeal in which they seek reinstatement of count I of their counterclaim. Defendant Evilsizer and the Newkirk-Bigard defendants have filed separate briefs in this court.

As a preliminary matter, we must address a question of appealability. Defendant Evilsizer argues that we must dismiss that portion of the Newkirks’ appeal relating to the court’s denial of summary judgment on the first two counts of their complaint. We agree. The denial of a motion for summary judgment is not appealable (Hildner v. Fox (1974), 17 Ill. App. 3d 97, 308 N.E.2d 301; LaSalle National Bank v. Little Bill “33” Flavors Stores, Inc. (1967), 80 Ill. App. 2d 298, 225 N.E.2d 465), and Supreme Court Rule 304(a) findings do not render a nonfinal order appealable. (Peterson v. Tazewell County (1975), 29 Ill. App. 3d 915, 330 N.E.2d 888.) That part of the Newkirks’ appeal taken from the denial of their motion for summary judgment is therefore dismissed.

The counterclaimants oppose the Newkirks’ complaint because, as they state, the method provided in section 10 of “An Act in relation to oil, gas, coal and other surface and underground resources” (Ill. Rev. Stat. 1981, ch. 961/2, par. 5416) is the exclusive means to review decisions of the Mining Board. Under that section, “[a]ny interested person affected by this Act or by any rule, regulation or order made or promulgated by the Mining Board hereunder, who may be dissatisfied therewith, shall have the right to file a suit in the Circuit Court of the county wherein is situated any part of the land which is the subject matter of such action, to test the validity of any provision of this Act or any rule, regulation or order made or promulgated hereunder.” According to the counterclaimants, this section of the statute justified the circuit court in dismissing counts I and III of the complaint, which requested the court to evaluate the order of the Mining Board.

The fallacy in this argument is that the counterclaimants have not demonstrated that the Newkirks’ complaint does not comply with section 10. That provision includes no time constraints, and it may not be argued that the complaint was untimely. Section 10 states only that a person affected by an order of the board may sue in a county in which the subject land is located in order to test the validity of that order. The Newkirks’ complaint fits that description and, as such, it may be maintained in the circuit court, over the objections advanced by the counterclaimants.

The gist of the Newkirks’ argument on appeal is that the trial court erred in not finding the board’s integration order to have been void ab initio. This erroneous interpretation of the order, contend the Newkirks, underlies the court’s dismissal of counts I and III of the complaint and its failure to dismiss count II of the counterclaim. The Newkirks urge us to find the integration order invalid and reverse the challenged portions of the trial court’s decisions.

To resolve this argument, we must examine section 22.2 of “An Act in relation to oil, gas, coal and other surface and underground resources ***” (Ill. Rev. Stat. 1981, ch. 961/2, par. 5436) in some detail. This statute provides for the compulsory pooling or integration of mineral interests in separate tracts within or to establish a drilling unit. An integration order

“shall authorize the drilling, equipping, and operation, or operation, of a well on the drilling unit; provide who may drill and operate the well; prescribe the time and manner in which all the owners in the drilling unit may elect to participate therein; and make provision for the payment by all those who elect to participate therein of the reasonable actual cost thereof, plus a reasonable charge for supervision and interest.” (Ill. Rev. Stat. 1981, ch. 961/2, par. 5436(d).)

If the board is requested, its order

“shall further provide for one or more just and equitable alternatives whereby an owner who does not elect to participate in the risk and cost of the drilling and operation, or operation, of a well may elect to surrender his leasehold interest to the participating owners on some reasonable basis and for a reasonable consideration which, if not agreed upon, shall be determined by the Mining Board, or may elect to participate in the drilling and operation, or operation, of the well, on a limited or carried basis upon terms and conditions determined by the Mining Board to be just and reasonable.” Ill. Rev. Stat. 1981, ch. 961/2, par. 5436(d).

The Newkirks maintain that the board’s order did not comply with section 22.2. First, they assert that the order was deficient in not prescribing the time and manner in which Walter Newkirk could have elected to participate in the units. Second, they argue that the order improperly failed to offer Newkirk the alternative to surrender his leasehold interest or participate in the drilling and operation of the well on a limited or carried basis, despite the request of the petitioners that these options be offered to him. These omissions, claim the Newkirks, render the integration order void ab initio.

Evilsizer and the counterclaimants reply that inasmuch as the Mining Board has the authority to enter orders pertaining to the integration of mineral interests, and as notice was given to all affected owners, its integration order cannot be attacked collaterally. However, the Mining Board, as an administrative agency, is a creature of statute, having no general or common law powers. It must find within the statute the authority to act, and if it “lacks the inherent power to make or enter the particular order involved,” that order may be attacked at any time or in any court, either directly or collaterally. (City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill. 2d 108, 112, 357 N.E.2d 1154, 1155, quoting Barnard v. Michael (1945), 392 Ill. 130, 135, 63 N.E.2d 858, 861.) Since the Newkirks’ complaint alleged that the Mining Board exceeded its statutory authority in entering the integration order, that argument is cognizable in the circuit court. Moreover, by pointing to specific deficiencies in the order, the Newkirks are not relying upon conclusory allegations of void agency action, as Evilsizer contends.

Returning to the merits of the Newkirks’ complaint, it is apparent that the Mining Board’s order did not comply with the statute under which it was entered. First, the order failed to establish a procedure whereby Walter Newkirk could elect to participate or not to participate in the drilling units. Evilsizer maintains that Newkirk had the opportunity to make such an election at the hearing before the Mining Board, and this is all that is necessary under section 22.2. This position, though, ignores the plain language of that provision, which states that the integration order itself shall establish the time and manner in which a party may make such an election. The purpose of this provision is to ensure that that party knows what he is electing to accept or reject. Requiring an interest owner to object to an integration order at the hearing would not necessarily accomplish that result, in the absence of a statutory requirement that the specifics of the proposed order be announced in final form at that hearing.

The second deficiency of the integration order was in failing to set forth alternatives for Walter Newkirk’s participation or nonpartici-pation, as requested in the petition for the order. Evilsizer argues that the burden of requesting those alternatives falls upon the individual who desires them, and Newkirk, having failed to do so, cannot now complain of the absence of the alternatives from the integration order. This contention is not supported by the wording of section 22.2. That provision obliges the Mining Board to offer those alternatives “if requested.” It does not say that the request must be made by the party to whom the alternatives would be offered. The petition to the board asked that Walter Newkirk be allowed to surrender his leasehold interest or participate in the units on a limited or carried basis. In failing to give Newkirk the opportunity to select from among those alternatives, the integration order exceeded the statutory authority granted to the Mining Board.

The Newkirks insist that as a result of our findings, we can only hold the entire integration order void ab initio. We do not agree. A court in its review of an administrative decision has the authority to affirm or reverse the action of the agency in whole or in part. (Basketfield v. Daniel (1979), 71 Ill. App. 3d 877, 390 N.E.2d 492.) We believe that a partial declaration of invalidity is appropriate in our review of the integration order. This is because the provisions governing Walter Newkirk’s financial participation in the operation of the units are entirely separable from the provisions of the order establishing the units and allowing drilling on them. As Evilsizer correctly observes, the very essence of compulsory integration is that an affected owner can do nothing to prevent it, even if he has the right to select the manner of his participation in drilling operations. In denying Walter Newkirk the ability to determine the nature of his financial stake in the units, the Mining Board took no action which could have led to any other outcome concerning the establishment of the units and the issuance of the drilling permits. Consequently, the order of the board is valid insofar as it integrates the mineral interests of the parties, establishes two drilling units and allows Bigard to drill wells on those units. The remainder of the order is invalid.

Having evaluated the integration order, we must now determine how our conclusions affect the complaint and count II of the counterclaim. Count I of the complaint sought a declaration that the order was void ab initio and a declaration of the rights of the parties given the invalidity of the order. As we have found the integration order not to have been void ab initio, we affirm the dismissal of this count. However, since we have found portions of the order invalid, that dismissal should be modified to allow the Newkirks leave to amend this count to conform to our decision.

In count III, the Newkirks requested damages for wrongful drilling operations performed on their land. They claimed that those operations were unlawful because the integration order was unlawful. But, we have held that the establishment of the units and the issuance of drilling permits were proper. Therefore, the dismissal of this count with prejudice is affirmed. For the same reason, we affirm the trial court’s denial of the Newkirks’ motion to dismiss count II of the counterclaim, which is an action to quiet title.

In their cross-appeal, the counterclaimants insist that count I of the counterclaim states a cause of action for slander of title and therefore should not have been dismissed by the trial court. Slander of title is a false and malicious publication, either oral or written, of words which disparage a person’s title to property, resulting in special damages. (Whildin v. Kovacs (1980), 82 Ill. App. 3d 1015, 403 N.E.2d 694; Home Investments Fund v. Robertson (1973), 10 Ill. App. 3d 840, 295 N.E.2d 85.) The documents which the counterclaimants point to as establishing their claim are the Newkirks’ complaint and the accompanying notice by publication, which appeared in the Newton Press-Mentor.

The counterclaimants assert that the filing of a complaint in court can be the basis for a slander of title action. The authority cited for this proposition is Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 418 N.E.2d 431, in which a slander of title complaint was premised upon the filing of a Us pendens notice. But, a Us pendens notice is not a necessary part of the judicial process itself. It is instead a private act, undertaken outside the scope of judicial proceedings, for the purpose of calling to the attention of all the world the pendency of litigation affecting the designated real property. (See West Investment Co. v. Moorhead (1953), 120 Cal. App. 2d 837, 262 P.2d 322.) Pecora thus does not support the counterclaimants’ position that a slander of title action may be based upon the filing of a complaint and further publication necessitated by that filing.

Indeed, in Nolin v. Nolin (1966), 68 Ill. App. 2d 54, 215 N.E.2d 21, the court held that a slander of title action could not be premised upon the presentment of a will for probate. The court reasoned that the absolute privilege normally associated with statements made in connection with legal proceedings (Libco Corp. v. Adams (1981), 100 Ill. App. 3d 314, 426 N.E.2d 1130) also attaches to the presentment of a will for probate and bars the slander of title action. This logic applies to count I of the counterclaim here. To allow a complaint for slander of title to rest upon the institution of judicial proceedings and the publication of notice required by those proceedings would place too great a price on resorting to the courts to settle disputed titles. Accordingly, count I of the counterclaim was properly dismissed with prejudice.

In conclusion, we take the following action. That portion of the Newkirks’ appeal taken from the denial of their motion for summary judgment is dismissed. The dismissal of count I of the complaint is affirmed, as modified to reflect a dismissal with leave to amend. That modification requires us to reverse the dismissal of Evilsizer as a defendant. The dismissal with prejudice of count III of the complaint and count I of the counterclaim is affirmed, as is the denial of the motion to dismiss count II of the counterclaim. We need not address the Newkirks’ request for costs and fees at this point in the litigation, because we remand this cause to the circuit court of Jasper County for further proceedings consistent with our opinion.

Appeal dismissed in part, affirmed in part, affirmed as modified in part, reversed in part, remanded.

JONES, J., concurring.

JUSTICE HARRISON,

dissenting in part:

In my view, the December 11, 1980, order of the Mining Board was void ah initio, and the circuit court erred in dismissing counts I and III of the Newkirks’ complaint. Administrative agencies such as the Mining Board have no general or common law powers; rather, their authority is strictly limited to that conferred by the statutes creating them. (City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill. 2d 108, 113, 357 N.E.2d 1154.) When an order of an agency exceeds this statutory authority, it is void. 65 Ill. 2d 108, 112.

Here, the statute governing the board’s actions dictates that integration orders “prescribe the time and manner in which all the owners in the drilling unit may elect to participate therein.” (Ill. Rev. Stat. 1981, ch. 961/2, par. 5436(d).) Nothing in that statute grants to the board the authority to simply declare, as it did here, that a given landowner must participate in a drilling unit without having first had the opportunity to decide whether he wishes to do so. Thus, since the order of December 11, 1980, was one which the board had no statutory power to make, the dismissal of counts I and III of the Newkirks’ complaint was improper.


author: JUSTICE JONES

text:
    KENNETH M. GALYEAN et al., Plaintiffs-Appellees, v. WALLY DUNCAN, d/b/a Hollywood Tavern, Defendant-Appellant (Martin Berra, Defendant).
    Fifth District
    No. 5—83—0852
    Opinion filed May 22, 1984.

      Jerome E. McDonald, of Campbell, Furnall, Moore & Jacobsen, P.C., of Mt. Vernon, for appellant.
    Bernard A. Paul, of Marion, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

The plaintiffs filed a complaint pursuant to section 14 of article VI of the Dramshop Act (Act) (Ill. Rev. Stat. 1979, ch. 43, par. 135). Count I alleged, in part, that due to his injuries, Kenneth Galyean sustained severe and permanent injuries and “has lost and will lose large sums of money which he would have earned in his occupation except for his injuries.” Count II alleged, in part, that plaintiff’s wife and children had “been injured in means of support.” Judgments on the jury’s verdict were entered for plaintiff for $8,000 and for his family for $2,900. The only issues on appeal are whether the court properly refused defendant’s proposed instructions which stated that provocation is a defense to a Dramshop action, and whether plaintiffs received a double recovery on the “loss of earnings” element of damages.

The facts can be briefly stated. Kenneth Galyean and Martin Berra, who had been drinking intoxicants in the Hollywood Tavern, became involved in an argument over a pool game at the tavern. A fight ensued, and Galyean suffered a broken ankle.

Defendant cites Taylor v. Hughes (1958), 17 Ill. App. 2d 138, 149 N.E.2d 393, Balice v. Weiand (1963), 40 Ill. App. 2d 168, 189 N.E.2d 391, and Williams v. Franks (1973), 11 Ill. App. 3d 937, 298 N.E.2d 401, in support of its proposition that provocation is a defense to a Dramshop action. Tresch v. Nielsen (1965), 57 Ill. App. 2d 469, 207 N.E.2d 109, and Martin v. Blackburn (1942), 312 Ill. App. 549, 38 N.E.2d 939, appear to stand for the same proposition. The basis for the application of provocation as a defense in the foregoing cases was the doctrine that no person should be allowed to profit by his own wrongdoing. By provoking the intoxicated person, the plaintiff had acted wrongfully. (See Taylor v. Hughes (1958), 17 Ill. App. 2d 138, 149 N.E.2d 393.) However, in Nelson v. Araiza (1978), 69 Ill. 2d 534, 543, 372 N.E.2d 637, 641, our supreme court stated:

“Complicity is not predicated on the plaintiff’s contribution to his injury but only upon his contribution to the inebriate’s intoxication.
The orderly administration of justice dictates that a clear rule of complicity be distilled. That rule, predicated on the better-reasoned decisions and the concept of the doctrine is this: only one who actively contributes to or procures the intoxication of the inebriate is precluded from recovery.”

In Parsons v. Veterans of Foreign Wars Post 6372 (1980), 86 Ill. App. 3d 515, 517, 408 N.E.2d 68, 71, this court stated:

“Complicity cannot be based upon a variant of the inapplicable contributory negligence concept, nor upon an ‘assumption of risk’ theory, nor upon a theory that plaintiff contributed to his injury by provoking the inebriate to attack him.”

Therefore, provocation is not a defense to a Dramshop action in Illinois, and the court properly refused defendant’s tendered instructions.

Under the Act, “loss of means of support” has been construed as requiring that the person injured did in fact render support, and no damage award can be based on the future potentiality of support not presently provable. (Shiflett v. Madison (1969), 105 Ill. App. 2d 382, 245 N.E.2d 567.) In the case at bar, Kimberly Galyean, wife of Kenneth Galyean, testified that at the time of the incident that is the basis of this lawsuit, she and Kenneth were the parents of two children. At the time of the incident neither she nor Kenneth were employed, and she was receiving public aid. After the Illinois Department of Public Aid determined that he was not eligible for unemployment benefits, Kenneth also received public aid. Kenneth’s first job after the injury was at a food store that was owned by his uncle.

Kenneth Galyean testified that in 1979 he worked at Blankenship’s in Herrin, Illinois, earning $3.25 an hour. He then worked in Florida from approximately July through December 1979, earning $6 per hour. He further testified that he earned approximately $8,000 in 1979, although his Federal income tax return shows $2,331 as his income. His 1978 Federal income tax return shows $2,251 as his income. He admitted that while in Florida his wife received public aid. After the injury he wore a cast on his leg until May 1, 1980. At the time of trial, September 13, 1983, the ankle still caused him pain and he was unemployed.

Among the jury instructions were the following:

“If you decide for the plaintiff, Kenneth Galyean, on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damage proved by the evidence to have resulted from the acts of the defendant:
The disability and disfigurement resulting from'the injury;
The pain and suffering experienced as a result of the injuries;
The value of earnings and the present cash value of the earnings reasonably certain to be lost in the future.
Whether any of these elements of damages has been proved by the evidence is for you to determine.” Illinois Pattern Jury Instructions (IPI), Civil, Nos. 30.01, 30.04, 30.05, 30.07 (2d ed. 1971).
“If you decide for the plaintiffs], Kimberly Galyean, Christina Galyean and Cheryl Galyean, on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate them for any of the following elements of damage proved by the evidence to have resulted from the wrongful conduct of the defendant:
[1] The value of earnings lost and the present cash value of the earnings reasonably certain to be lost in the future.” IPI Civil Nos. 30.01, 30.07.
“The phrase, ‘means of support’ includes the necessities of life, and comforts as well. Whatever lessens or impairs the ability to supply suitable comforts which might reasonably be expected from the person who furnished support, considering his occupation and capacity for earning money, may be regarded as lessening and impairing the ‘means of support’ referred to in these instructions.” IPI Civil No. 150.14.

Pursuant to the Act, a single injury may give rise to any number of different causes of action. Any number of different persons may be damaged in person, property or means of support as a result of a single occurrence. Regardless of the fact that there may be multi-pie remedies and actions available to plaintiffs, it is axiomatic that for one injury there may be but one satisfaction. The instructions given by a court must be so framed as not to mislead the jury into duplicating the elements of damages in a recovery or into awarding damages twice for the same injury. (Shiflett v. Madison (1969), 105 Ill. App. 2d 382, 245 N.E .2d 567; see also Halka v. Zupan (1979), 68 Ill. App. 3d 616, 386 N.E.2d 439.) In the case at bar, Kenneth Galyean had a right of action to recover for his injuries and his money loss. For the use of his family, the other plaintiffs, he could recover for injuries to their means of support. However, Kenneth Galyean’s lost income was included as an element of damages in both his action and in the action brought by him for the use of his family. In framing its instruction as it did, including the lost income of Kenneth Galyean as an element of damages in both actions, the trial court erred in that those instructions might very well have misled the jury into awarding damages twice for the same injury, which would be contrary to law. Shiflett v. Madison (1969), 105 Ill. App. 2d 382, 245 N.E.2d 567.

For the foregoing reasons, the judgment of the circuit court of Williamson County is affirmed as to liability and Kenneth Galyean’s award of $8,000. The remaining plaintiffs’ recovery of $2,900 in damages is reversed.

Plaintiffs rely on American National Bank v. Wisniewski (1974), 18 Ill. App. 3d 961, 310 N.E.2d 834, which is inapposite to the case at bar. In that case, Kamil and his son, Roy, were killed as a result of an automobile collision with Albert Stynowick, the intoxicated person. Because of diversity of citizenship, suit was filed against Stynowick in Federal court. As the result of a Federal court judgment, Stynowick’s insurance carrier paid the sum of $21,875, the full amount of its coverage. The probate court allocated $12,000 of the foregoing judgment to the estate of the mother, Florence, who had committed suicide, $8,000 to the estate of Roy and $1,875 for property damage to the estate of Kamil. Florence’s suicide was unrelated to the traffic accident. A Dramshop action was filed in the circuit court against Wis-niewski, owner of the Cozy Corner Tavern. Judgment was entered in the Dramshop action in favor of the estate of Kamil Brazda for $20,000. On appeal, defendants contended that they were entitled to a credit for the total amount received from Stynowick’s insurance carrier. The court recognized that a single collision or accident may give rise to a number of different causes of action and stated that defendants “are not entitled to credit for $12,000 paid to the estate of Florence or for the $8,000 paid to the estate of Roy, because these payments were for causes of action for which there was either no recovery sought or no recovery received in the present suit.” (18 Ill. App. 3d 961, 968-69, 310 N.E.2d 834, 840.) In the case at bar, recovery was sought for loss of support and loss of earnings.

Finally, Judy v. Day (1979), 68 Ill. App. 3d 156, 385 N.E.2d 891, upon which plaintiffs also rely, is likewise inapposite, as the only issue in Judy v. Day was whether the recovery for loss of means of support was allowable where the decedent was not, at the time of his death, specifically providing support to the child under the circumstances shown in the record. In the case at bar, the issue is whether the instructions allowed defendant double recovery for one element, lost wages.

Affirmed in part; reversed in part.

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


author: PRESIDING JUSTICE SEIDENFELD

text:
    WORLD COLOR PRESS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Peggy Payne, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—84—0102WC
    Opinion filed June 7, 1984.

      James M. Gallen, of Evans & Dixon, of St. Louis, Missouri, for appellant.
    Mark E. Ferguson, of Harlan Heller, Ltd., of Mattoon, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

This appeal questions whether an employer who has made erroneous overpayments of temporary total disability to an injured employee is entitled to credit the overpayment against the total award under section 8(j) of the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(j)). The credit was denied by the Industrial Commission, the circuit court confirmed, and the employer appeals.

The claimant, Peggy Payne, suffered a work-related injury in September 1979, while employed by World Color Press. The arbitrator awarded her $138.07 per week for temporary total disability and gave the employer full credit for the amount already paid. The Commission reduced the weekly award, finding a lesser average weekly wage base than claimed. Although no contention had been made by the employee, the Commission sua sponte held that World Color Press was “not entitled to credit against future compensation payments or overpayment of temporary total disability weekly compensation.”

I

Preliminarily, we conclude that the claimant’s contention that the issue has been waived lacks merit. The parties stipulated to the amount of the prior compensation payments. There was no issue before either the arbitrator or the Commission as to overpayment, which had apparently not been then discovered. The basis of the Commission’s sua sponte denial of a credit was not the failure of the employer to request a credit but the Commission’s interpretation of the statute.

Cases cited by the claimant from other jurisdictions in which waiver has been found are inapposite. Hawley-McIsaacs Coal Co. v. Grant (1930), 235 Ky. 650, 32 S.W.2d 35, and Black Mountain Corp. v. Swift (1931), 241 Ky. 333, 43 S.W.2d 1008, involved employers who failed to apply for a credit although they knew that the right to one existed, and their application for a credit on appeal under the Kentucky law required the introduction of new evidence. In Wall v. C. Y. Thomason Co. (1957), 232 S.C. 153, 101 S.E.2d 286, the employer sought to assert its right to a credit after the award of compensation benefits became final for failure to timely appeal.

II

On the merits, we conclude that the governing statute does not deny credit to an employer for overpayment of temporary total disability payments.

Section 8(j) of the Act provides, as pertinent:

“(j) 1. In the event the injured employee receives benefits, including medical, surgical or hospital benefits under any group plan covering non-occupational disabilities contributed to wholly or partially by the employer, which benefits should not have been payable if any rights of recovery existed under this Act, then such amounts so paid to the employee from any such group plan as shall be consistent with, and limited to, the provisions of Paragraph 2 hereof, shall be credited to or against any compensation payment for temporary total incapacity for work or any medical, surgical or hospital benefits made or to be made under this Act. *** This paragraph does not apply to payments made under any group plan which would have been payable irrespective of an accidental injury under this Act. Any employer receiving such credit shall keep such employee safe and harmless from any and all claims or liabilities that may be made against him by reason of having received such payments only to the extent of such credit.
2. Nothing contained in this Act shall be construed to give the employer or the insurance carrier the right to credit for any benefits or payments received by the employee other than compensation payments provided by this Act, and where the employee receives payments other than compensation payments, whether as full or partial salary, group insurance benefits, bonuses, annuities or any other payments, the employer or insurance carrier shall receive credit for each such payment only to the extent of the compensation that would have been payable during the period covered by such payment.” Ill. Rev. Stat. 1983, ch. 48, par. 138.8(j).

We preface our analysis by noting that the right to credits, which operates as an exception to liability created under the Workers’ Compensation Act, is narrowly construed. (Freeman United Coal Mining Co. v. Industrial Com. (1984), 99 Ill. 2d 487, 496.) Section 8(j) in clear language expressly exempts compensation payments from the prohibition against credits to an employer. The statute clearly credits the employer with any payments made by the employer as compensation payments. The statute cannot reasonably be read to exclude credit for overpayment, or to give to the employee a greater amount of compensation than is awarded under the Act. Section 8(j), reading subparagraphs 1 and 2 together, evinces the legislative intent that an employee receive only benefits to compensate him or her for the injuries suffered and the resulting consequences. Applying the strictest construction, we find no evidence of a legislative intent to deny a credit for the overpayment, in error, of temporary total disability.

Other jurisdictions have also found that employers may generally recover excessive payments made by mistake. See Wilson Food Corp. v. Cherry (Iowa 1982), 315 N.W.2d 756, 757; State ex rel. Weimer v. Industrial Com. (1980), 62 Ohio St. 2d 159, 165, 404 N.E.2d 149, 151; Jones v. Crenshaw (Tenn. 1983), 645 S.W.2d 238, 241.

The argument is made that it is unfair to recoup overpayments which an employee may have used to replace income while he or she has been unable to work. Further, that requiring repayment would cause an injured employee to be hesitant to spend benefits received during the temporary period out of fear that the employer would require repayment of the overpayment in the future. However, interpreting the statute so as to hold the employer to administrative exactness in its payment prior to adjudication, and denying it the right to recoup any excess payment it may later discover, could frustrate a primary purpose of the Act, to provide prompt payment to the employee.

It should be noted that the employer here is not seeking direct re-coupment of the overpayments made but merely seeks to credit the amount of its overpayment from the balance of the total award. The claimant will receive the total amount to which she is legally entitled. Whether the statute should be amended to provide for consideration of the inconvenience or prejudice to a particular recipient of an erroneous overpayment is properly a matter for the legislature.

The judgment of the circuit court of Marion County confirming the award of temporary total disability by the Commission is affirmed; that portion of the judgment of the circuit court which held that World Color Press is not entitled to credit against future compensation payments for overpayment of temporary total disability weekly compensation is vacated. The cause is remanded to the Industrial Commission with directions to credit all compensation paid, in accordance with this opinion.

Affirmed in part; vacated and remanded in part.

McNAMARA, BARRY, WEBBER, and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE WELCH

text:
      In re MARRIAGE OF THELMA KATHRYN FRAZIER, Petitioner-Appellee, and WILLIAM TUCKER FRAZIER, Respondent-Appellant.
    Fifth District
    No. 5—83—0293
    Opinion filed June 8, 1984.
    John R. Sprague, of Sprague, Sprague & Ysursa, of Belleville, for appellant.
    Crowder & Scoggins, Ltd., of Columbia, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

In a judgment entered in the circuit court of St. Clair County, the marriage of petitioner Thelma Kathryn Frazier and respondent William Tucker Frazier was dissolved and the parties’ property was divided between them. No maintenance was awarded and no child support is involved. From this judgment, the respondent appeals, challenging the court’s disposition of property.

The respondent is a State Farm insurance agent. The court classified his agency as marital property and awarded it to the respondent. Relying upon the testimony of a professor of accounting who ascertained the discounted present value of the respondent’s future earnings until retirement, the court valued the agency at $144,000. It ordered the respondent to execute a $40,000 note, payable over five years at 10V2% interest, as her share of that asset.

The trial court did not err in considering the agency as marital property, inasmuch as it was acquired during marriage. (In re Marriage of Boone (1980), 86 Ill. App. 3d 250, 408 N.E.2d 96.) However, the respondent’s primary argument is that the court erred in valuing that interest. He contends that a State Farm agent has a more tenuous proprietary interest in his agency than does an insurance broker (In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 399 N.E.2d 1006), or the owner of an incorporated insurance agency (In re Marriage of Reib (1983), 114 Ill. App. 3d 993, 449 N.E.2d 919). Methods appropriate for valuing a brokerage or insurance corporation, he reasons, are thus inappropriate for valuing a State Farm agency and result in excessive valuation. According to the respondent, the capitalization of earnings method used by the expert to determine the worth of the agency produced an unrealistically high figure for his interest in the agency. He argues that the court wrongly permitted the expert to apply that method in this case, even though such calculations may be warranted in evaluating a brokerage or insurance corporation.

The respondent began his association with State Farm as an agent in 1961. Before his marriage to the petitioner in 1970, the respondent became an agency manager, with some loose supervisory authority over approximately 10 agents. In 1976, he assumed an existing State Farm agency in Granite City. He did not pay for such items as accounts receivable or lists of policyholders, because those items are the property of State Farm. Nonetheless, the accounts present in the office when it was taken over by the respondent were assigned to him. By that assignment, the respondent became obligated to service those accounts, and, in return, receives a commission from them.

As a State Farm agent, the respondent receives no salary. He is paid a percentage of premiums received by State Farm from his accounts. That percentage commission varies according to the type of policy. He must provide his own office equipment and pay for his own expenses, including employee salaries and rent. He is given full control of his daily activities and his contract with State Farm describes him as an independent contractor. Presently the respondent’s office is staffed by him and two full-time secretaries.

The respondent’s agency agreement does not grant him an exclusive territory, and in fact, there are five other State Farm agents in Granite City. But, a State Farm agent must handle State Farm insurance exclusively. State Farm may, after written notice to the agent, transfer any automobile policy to the account of another State Farm agent when the policyholder makes a bona fide request in writing. Either State Farm or the agent may terminate the agency agreement upon written notice to the other, in which case State Farm’s property must be returned. The agreement provides that “neither the Agreement nor any interest thereunder can be sold, assigned, or pledged * * * >>

The respondent does not have a retirement plan with State Farm. If the agreement is terminated, he becomes entitled to termination benefits. The formula for calculating those benefits need not be explained, but they are based upon commissions on “personally produced” policies and continue for five years after termination. In the event that termination would occur after the respondent turns 65, and after 20 years of service as a State Farm agent, he would be entitled to extended termination benefits, to be paid after primary termination benefits had ceased, until the end of his life. At trial, the respondent estimated that his termination benefits were worth less than $30,000. He was 53 at that time and was not yet eligible for extended termination benefits.

The sole witness to testify as to the value of the agency was Dr. James P. Jennings, professor of accountancy at St. Louis University. Dr. Jennings used what is known as the “capitalization of earnings technique” in arriving at the worth of the agency. He noted that this is a broadly accepted method of determining value. Its premise is that the value of any income producing resource is not the historic cost of assets, nor is it the historic cost of assets minus liabilities. It is instead the discounted present value of the future stream of earnings, estimated by the use of recent past earnings. See Jennings, Issues in Valuing Closely Held Businesses, 37 J. Mo. B. 243 (1981).

This technique is best illustrated by example. At trial, Dr. Jennings started with the figure of $162,491, which represents respondent’s net before-tax income from the insurance agency for the years 1976 through 1980. This amount was gleaned from respondent’s tax returns. Dividing by five gives an average annual net before-tax income of $32,498. Dr. Jennings estimated that the tax on that income would be 30%, and thus the respondent’s average annual net after-tax income for the specified five-year period is $22,748.

Dr. Jennings assumed that the respondent, 53 years old at the time of trial, would work for 12 more years. Multiplying respondent’s average annual net after-tax income by the 12 years which he was projected to work and reducing that amount to its present cash value, assuming an interest rate of 12%, Dr. Jennings arrived at the figure of $144,491. It is apparently this value which the trial court assigned to the business. Dr. Jennings calculated an alternate value of $133,998, using a different amount as the respondent’s net before-tax income from the agency between 1976 and 1980. The other assumptions and techniques used in the first calculation remained the same in the second analysis.

Although this accounting method may provide an accurate measure of the value of a business for some purposes, there is a fallacy in using it to value marital property to be divided upon dissolution. Marital property, as it is defined in section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 503), must be valued as of the date of dissolution of the marriage. (In re Marriage of Rossi (1983), 113 Ill. App. 3d 55, 60, 446 N.E.2d 1198, 1202.) This is so that spouses may be granted an interest in property which is acquired during the marriage or increases in value by the infusion of marital funds or efforts, without receiving an interest in assets of the other spouse which are acquired or appreciate after dissolution. (See In re Marriage of Goldstein (1981), 97 Ill. App. 3d 1023, 423 N.E.2d 1201.) Marital property rights cannot inure in property acquired after a judgment of dissolution of marriage (Ill. Ann. Stat., ch. 40, par. 503(a)(3), Hist, and Prac. Notes, at 462 (Smith-Hurd 1980)), and the same is true of the appreciation of marital property occurring after that judgment.

Dr. Jennings purported to place a value on the agency as of the time of trial, and the method he used to do that was his reduction of the respondent’s future earnings to present cash value. But, because of the nature of the respondent’s business, those calculations include as marital property labor which will be performed after dissolution. The respondent’s agency is not like shares of stock, which will produce income without further efforts by the owner. Nor is it akin to a sole proprietorship or partnership, which can be converted into assets which will produce income without such efforts. The respondent may not rest on his laurels and receive the future stream of commissions projected by Dr. Jennings. He must send out renewals, forward premiums to State Farm, answer questions about policies, process claims, advertise to let policyholders know of the continuing nature of the business, attend seminars and study brochures to keep abreast of new developments in insurance, among other efforts, all to retain the patronage of the accounts currently held by him.

In valuing the agency at the discounted present value of the respondent’s expected future earnings, Dr. Jennings ignored the fact that those earnings will be due in large part to the respondent’s activity following dissolution. In failing to reduce the value of the agency to account for that activity, the court effectively classified as marital property the results of the respondent’s future efforts to maintain his current accounts. Furthermore, the twin assumptions, implicit in Dr. Jennings’ calculations, that the respondent’s office expenses and commissions from policies written or assigned during marriage will remain constant, seem to be unwarranted. These shortcomings produced, in our opinion, a grossly excessive valuation of the agency as a marital asset. This cause must therefore be remanded for revaluation and redistribution of the value of the agency in accordance with the views expressed herein.

In most of the respondent’s remaining arguments, he does not challenge the court’s classification or valuation of the parties’ property. He instead argues that the court’s distribution of that property was inequitable. Inasmuch as the equity of that distribution depends upon the value of the agency, the respondent should present his position to the trial court, as well as his argument that the court failed to apportion certain marital debts.

The respondent insists that the court erroneously classified his equitable interest in a land trust as marital property and valued it at $11,500. The respondent purchased a one-half interest in the trust for $5,000 during the marriage. That money was obtained from a note at the Bank of Belleville which, in turn, was purchased with funds from a savings account in the name of the respondent and his mother before the parties’ marriage. The interest in the land trust is in the name of the respondent only. The trust holds legal title to an apartment building which was purchased for $140,000 in 1976 and on which there was $117,000 in outstanding indebtedness as of the time of trial. The owner of the other half interest in the trust paid $10,000 or $15,000 for it. The respondent explained that the difference between his investment and that of the other owner is that he manages the property. As a manager, the respondent must collect rent, institute legal action against delinquent tenants, see that repairs are made and pay for insurance on the building.

Contrary to the position taken in the petitioner’s brief, the respondent’s testimony was not vague as to the origin of his investment in the trust. That money is certainly nonmarital property. The question is then whether that property became nonmarital by virtue of its investment in the trust. The respondent testified that no money acquired since his marriage to the petitioner was invested in the trust. Thus, it cannot be said that the respondent has commingled marital funds with his original investment.

The petitioner asserts that the respondent’s services during the marriage as manager of the apartment building should act to convert his interest in the trust into marital property. Property acquired in exchange for property acquired before the marriage is nonmarital (Ill. Rev. Stat. 1983, ch. 40, par. 503(a)(2)), but may become marital if it increases in value because of the efforts of the parties (In re Marriage of Lee (1981), 87 Ill. 2d 64, 430 N.E.2d 1030), rather than solely because of inflationary factors (In re Marriage of Komnick (1981), 84 Ill. 2d 89, 417 N.E.2d 1305). Here, the respondent made no capital improvements to the apartment building, and his services as manager were not shown to have added to the value of the building. Those services, including the payment of insurance premiums, were primarily conservative in nature, and thus do not transform the interest in the land trust into marital property. (See In re Marriage of Holman (1984), 122 Ill. App. 3d 1001, 462 N.E.2d 30.) To hold otherwise would convert nonmarital property into marital property by the simple act of preserving it. The respondent’s interest in the trust must therefore be considered a nonmarital asset. The court’s valuation of that interest at $11,500 is supported by the record and is not undermined by the respondent’s opinion that the apartment building “was a losing proposition.”

Finally, the respondent argues that the court erred in failing to award him certain personal property acquired before marriage and allegedly still in the possession of the petitioner. The list of that property is far too long to discuss in detail, but it consists basically of furniture, household effects and some antiques. Some of these items — a gun collection, marble top table, secretary desk, music box, stereo and personal effects, including tools — were specifically awarded to the respondent. If the petitioner retains such items, the respondent’s remedy is to seek enforcement of the judgment in the trial court. Other requested items — silverware and a portable generator — were, by the admission of the respondent, acquired after marriage. Still other items — a fuel tank and a metal file cabinet — were in the possession of the respondent and were not awarded to the petitioner. Most of the remaining property now sought by the respondent is furniture which was in an apartment lived in by him before marriage. However, the petitioner testified that that furniture was sold with the apartment, and thus it is no longer available to distribute.

There are certain items which, according to the testimony of the parties, were acquired by the respondent before marriage, are still in the possession of the petitioner, and were not awarded to the respondent. They are a Zenith TV console, several antique swords, an antique lamp and a Mah-Jongg set. These items should be awarded to the respondent as his nonmarital property.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed and this cause is remanded for revaluation of the respondent’s interest in his State Farm agency and redistribution of the parties’ martial property considering that new valuation and our reclassification of certain assets as nonmarital.

Reversed and remanded.

JONES and KASSERMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH J. LANGSTON, Defendant-Appellant.
    Fifth District
    No. 5—83—0410
    Opinion filed June 1, 1984.

      Randy E. Blue and John R. Abell, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    David W. Hauptmann, State’s Attorney, of Harrisburg (Kenneth R. Boyle, Stephen E. Norris, and Susan M. Young, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

The defendant, Kenneth J. Langston, was charged with two counts of residential burglary, two counts of criminal damage to property, and one count of felony theft. The parties agreed that defendant would plead guilty to two counts of residential burglary and that the State would dismiss the remaining charges and recommend sentences of six years’ imprisonment. Twice during the plea proceedings, the court admonished defendant that it had not participated in the plea discussion and was not bound by the recommendation. The court was advised that in 1977 defendant was convicted of either robbery or armed robbery, attempted robbery and burglary. It was further represented to the court that defendant had three other burglary convictions and three theft-related convictions. The trial court admonished the defendant pursuant to Supreme Court Rule 402 (87 Ill. 2d R. 402) and accepted defendant’s pleas of guilty to residential burglary. The court then ordered a presentence investigation.

The presentence report revealed that defendant had thrice been convicted of burglary, and once for armed robbery, robbery, attempted robbery, and felony theft. The probation officer testified that defendant, although 30 years of age, is immature and not able to cope with responsibility outside a penal setting and that, therefore, he abuses drugs and alcohol, which leads to his criminal behavior. He stated that defendant has learned to cope in a penal setting, where he has been a model prisoner. The State’s Attorney placed the victims of defendant’s crimes on the stand where they testified as to the effect that defendant’s actions have had on their lives. The arresting officer, called by the State, testified that defendant had attempted to strike him and was unruly at the hospital where he was taken for treatment for an arm injury. The prosecutor discussed each item in the list of mitigating factors (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.1(a)) and concluded that, although defendant was eligible for extended-term and consecutive sentencing totaling 60 years, the State would recommend 15 years’ imprisonment. Defendant, in his sentencing argument, reminded the court that the prosecutor had agreed to recommend six years’ imprisonment. The court sentenced defendant to concurrent terms of 10 years’ imprisonment.

Defendant filed a motion to withdraw his pleas of guilty pursuant to Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)), which alleged that his guilty pleas were involuntarily induced by a plea agreement which was unfulfilled. At the hearing on the motion, the court stated that he had advised defendant that the court was not bound by the plea agreement and that a defendant had no right to know what sentence the court would impose. The motion, therefore, was denied.

The only issues on appeal are whether the violation of the plea agreement rendered defendant’s plea involuntary and, if so, what remedy should be utilized. The defendant argues that he should be allowed to withdraw his pleas of guilty, while the State argues that the remedy is to remand the case for a new sentencing hearing.

If the plea agreement that induced defendant’s pleas of guilty to the charges of residential burglary was violated by the prosecutor, then defendant’s pleas are rendered involuntary and the trial court’s acceptance of those pleas is a violation of defendant’s right to due process of law. A plea of guilty made in reliance on an unfulfilled promise is not voluntarily made by a defendant. (Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495; People v. Price (1976), 36 Ill. App. 3d 566, 344 N.E.2d 559.) The State argues that defendant has not shown that his pleas of guilty were induced by the prosecutor’s promise to recommend six-year sentences because the court stated that it was not bound by the prosecutor’s recommendation and defendant persisted in his plea of guilty in the face of this admonishment. In Santobello v. New York and People v. Reher (1978), 60 Ill. App. 3d 32, 376 N.E.2d 402, the trial court stated that the prosecutor’s recommendation had no bearing on the court’s sentencing decision, yet the pleas in those cases were set aside and the cases remanded for further proceedings.

The State further argues that because defendant did not testify at the Rule 604(d) hearing, he did not establish that his pleas were induced by the prosecutor’s promise. Defendant, however, did argue at the Rule 604(d) hearing that his pleas were induced by the prosecutor’s promise and alleged same in the Rule 604(d) motion, yet the prosecutor did not object at the hearing nor demand strict proof of the allegations. Therefore, we find that the record establishes that defendant’s pleas of guilty were based to a significant degree on the promise of the prosecutor.

In Santobello v. New York, (1971), 404 U.S. 257, 263, 30 L. Ed. 2d 427, 433-34, 92 S. Ct. 495, 499, the United States Supreme Court concluded that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiations of pleas of guilty would be best served by remanding the case to the State courts for further consideration.

“The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty.”

This court has previously ruled that a guilty plea entered as a result of an unfulfilled promise must be vacated (People v. Price), while other districts of the Illinois Appellate Court have remanded the case for a new sentencing hearing and the imposition of sentence before a judge other than the one who imposed the sentence. (People v. Davis (1981), 94 Ill. App. 3d 809, 419 N.E.2d 724; People v. Gott (1976), 43 Ill. App. 3d 137, 356 N.E.2d 1102.) In the case at bar, the defendant asks this court and the trial court to allow him to withdraw his pleas of guilty. Since the prosecutor argued for a 15-year sentence at the sentencing hearing, he also does not wish to be bound by the plea agreement. Accordingly, this court will not seek to compel the prosecutor now to recommend six-year sentences in the face of his stated recommendation of 15 years. While plea negotiations exist in the criminal justice structure, they are governed to some extent by contract law principles. A plea agreement results where the prosecutor and the accused exchange promises to do or refrain from doing certain acts. The test of the breach of such an agreement is an objective one. Motives and justification of the parties are largely irrelevant under such a theory. (People v. Davis.) As the trial court record indicates that neither party wishes to be bound by the plea agreement, the cause is remanded to the circuit court of Saline County to allow defendant to withdraw his pleas of guilty and to plead anew. See People v. McKirdie (1970), 45 Ill. 2d 300, 259 N.E.2d 16, cert, denied (1971), 400 U.S. 1010, 27 L. Ed. 2d 624, 91 S. Ct. 571.

We would note that this opinion is not to be taken as a criticism of the sentencing judge, because the defalcation rests with the prosecutor.

Reversed and remanded with directions.

WELCH, P.J., and KARNS, J., concur.


author: JUSTICE EARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY BILLOPS, Defendant-Appellant.
    Fifth District
    No. 82—560
    Opinion filed June 13, 1984.
    Randy E. Blue and Richard J. Bennett, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Mary W. Richardson, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE EARNS

delivered the opinion of the court:

Defendant pleaded guilty to and was convicted of criminal damage to property and burglary in the circuit court of St. Clair County and was fined $46 plus court costs for the criminal-damage-to-property conviction and sentenced to four years in prison for the burglary conviction. On appeal, defendant contends that the failure of the State to prosecute him for burglary at the time it prosecuted him for criminal damage to property rendered the burglary conviction improper under the compulsory-joinder statute, which requires that all offenses based on the same act be prosecuted in a single prosecution if the offenses are known to the prosecuting officer at the time the prosecution is commenced so long as the offenses are within the jurisdiction of a single court. Ill. Rev. Stat. 1981, ch. 38, pars. 3 — 3, 3 — 4.

Defendant was charged with misdemeanor criminal damage to property on November 24, 1981, for knowingly damaging an outside window ornament at apartment 32C of the Roosevelt Homes in East St. Louis on November 23, 1981, and for knowingly damaging a wall and fuse box inside apartment 32B of the Roosevelt Homes on that same date. On January 20, 1982, defendant pleaded guilty to both charges and was fined $46 plus court costs. On March 18, 1982, defendant was indicted for burglarizing apartment 32B of the Roosevelt Homes on November 23, 1981. Defendant’s motion to dismiss the burglary charge for violating double jeopardy was denied on May 18, 1982, because no evidence was presented that the two offenses were known to the proper prosecuting officer at the time of the commencement of the prosecution. Defendant then pleaded guilty to the burglary charge on June 14, 1982, and was sentenced to four years in prison. Defendant’s motion to withdraw his guilty plea and vacate the conviction was denied on September 20,1982.

The State argues that by voluntarily pleading guilty to the burglary charge, defendant waived his claim that his conviction and sentence should be vacated and, further, that in any event the record does not support the defendant’s allegations that the compulsory joinder statute was violated. Unless there is plain error, a voluntary guilty plea waives all nonjurisdictional errors, including violations of constitutional rights. (People v. Weathers (1980), 83 Ill. App. 3d 451, 404 N.E.2d 1011; 87 Ill. 2d R. 615(a).) The constitutional protection against multiple punishment for the same offense is codified in sections 3 — 3 and 3— 4 of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, pars. 3 — 3, 3 — 4; see North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.) However, “[t]he seriousness of a double jeopardy issue and the infinite relationship of the issue to the integrity and fairness of judicial proceedings warrant considering the issue as plain error.” (People v. Valentine (1984), 122 Ill. App. 3d 782, 784, 461 N.E.2d 1388.) In Valentine, the court disagreed with the State’s contention that the defendant waived the double jeopardy issue by failing to raise it either before or during trial. However, the different basis of the State’s waiver argument in Valentine does not distinguish it from the case at bar; the underlying error is the same. Defendant’s voluntary guilty plea did not, therefore, operate as a waiver of defendant’s double jeopardy claim, and we must now turn to the substance of that claim.

The charging instrument for the criminal-damage-to-property charge describes the offense as follows: “Knowingly damaged property of Virgil L. Calvert, DBA, East St. Louis Housing Authority, namely the wall and fuse box inside of 32B Roosevelt Homes ***.” The burglary charge is based on the fact that the wires to the fuse box were cut, thus indicating an attempt to remove it from the wall. It can be inferred from these facts that both the burglary charge and the criminal-damage-to-property charge were based on the same physical act. It can also be inferred from the record that the proper prosecuting officer knew that there was sufficient evidence to charge defendant with burglary at the time he was charged with criminal damage to property. The wires had been cut at the same time the damage to the wall and fuse box occurred. There is no reason to suspect that the prosecutor was not fully aware of the facts surrounding the investigation of the criminal-damage-to-property charge, including the fact that the fuse box wires had been cut. We must find, therefore, that the prosecutor’s failure to commence prosecution on the burglary charge at the time that prosecution on the criminal-damage-to-property charge was begun violated sections 3 — 3 and 3 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 3 — 3, 3 — 4) and thus placed defendant in double jeopardy. The prejudice to defendant is obvious. Had the burglary charge been dismissed at the outset as it should have been, defendant’s punishment would not have been four years in prison plus a fine, but would have been limited to the fine.

For the above reasons, we reverse the burglary conviction entered by the circuit court of St. Clair County.

Reversed.

JONES and HARRISON, JJ., concur.


text:
    COULTER A. KELLER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Sheriff’s Department, Crawford County, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—84—0101WC
    Opinion filed June 12, 1984.
    Brent D. Holmes, of Harlan Heller, Ltd., of Mattoon, for appellant.
    James A. Thoenen, of Evans and Dixon, of St. Louis, Missouri, for appel-lee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The claimant, Coulter A. Keller, a deputy sheriff for Crawford County, was injured in an automobile collision while driving his personal car from his home on his regular route to the sheriff’s office. He contended that just prior to the accident it was his intention to pursue the other car to issue a ticket for reckless driving in accordance with a written policy of the sheriff’s department and a State statute (Ill. Rev. Stat. 1983, ch. 125, par. 82). The arbitrator found that the relationship of employee-employer did not exist at the time of the accident and dismissed the claim. The Industrial Commission reversed the finding of the arbitrator and found that the employee-employer relationship existed because the claimant was on call 24 hours a day, was required to make arrests outside of shift hours, and carried a police light and police radio in his personal car. The Commission, however, denied the claim, based on what it considered a conflict between Keller’s statement that he was about to pursue the other driver and his statement that he was avoiding a collision. The circuit court confirmed the Commission and the claimant appeals.

The sole issue on appeal is whether the decision of the Commission that the claimant’s injury did not arise out of or in the course of his employment as a deputy sheriff was contrary to the manifest weight of the evidence. Recognizing that a peace officer is on call 24 hours a day, our supreme court has noted that, nevertheless, “[a]ny injury must still be incidental to one’s employment as a peace officer.” Siens v. Industrial Com. (1981), 84 Ill. 2d 361, 364.

The Commission found an internal conflict in the testimony of Keller. If there were, in fact, a conflict we would defer to the fact-finding function of the Commission under the familiar rule that where evidence can give rise to conflicting inferences, a reviewing court, although it might have drawn different inferences from the evidence, will not set aside a Commission finding unless it is against the manifest weight of the evidence. (See Schultheis v. Industrial Com. (1983), 96 Ill. 2d 340, 348.) We are, however, unable to find any conflict in Keller’s testimony when it is taken in total context.

Keller testified that on March 3, 1978, at about 3:45 p.m., he was traveling on Cross Street, a narrow, two-lane road that was covered with ice and snow. While approaching the intersection of St. Peters-burg Street, he saw a car (driven by Bill Young, Jr.) coming from the north. He said, “it was driving too fast on ice *** so, I pulled over into the end of St. Petersburg Street.” He testified, “It was my intention when he got on past, I was going after him and ticket him for reckless driving.” Keller explained that the other car had pulled out into his, Keller’s, lane in order to pass two or three cars and that, at the same time, “I pulled off to the side *** I got clear off of South Cross [Street] into St. Petersburg Street.” He further testified that the other driver “spun on around the right front corner just behind my front wheel, struck my car, the left end of the front bumper, and then on ice he skidded right on around into the side of my — we were both headed the — sideways.” On cross-examination Keller was asked whether he took any other action prior to the collision, and he answered, “I tried to make *** my position safe until I could take after him.” On redirect examination, Keller was asked whether there was any danger of an accident after he pulled off the street, to which he answered, “I thought there was because Mr. Young was skidding.” When asked on redirect examination about his purpose for pulling off the street, Keller answered:

“I pulled for the express purpose of giving him a ticket after he got by me; anyone driving the way he was without any regard for the safety of others is considered, by the law, to be reckless driving [sic].”

We find no reasonable inference to be drawn from Keller’s testimony but that he pulled over so that he could turn around on the two-lane street and then pursue Young and give him a ticket after Young passed him. The fact that his decision to pull off the road to pursue a traffic offender also placed him in a position of greater safety does not support the inference that his conduct was not incidental to his employment. Cf. Banks v. City of Chicago (1973), 11 Ill. App. 3d 543, 549-50.

In addition to what it considered a conflict, the Commission in its decision also made the point that Keller did not activate his police light or radio. Again, we cannot conclude that the record supports a reasonable inference that his failure to use his equipment showed that he was not on sheriff’s business at the time of the accident. The testimony in the record establishes only the fact that he had the equipment. Although the record contains no evidence of the precise time sequence, the nature of the emergency implies that Keller did not have time to activate his equipment.

The cases cited by the parties support our conclusion. In Siens v. Industrial Com. (1981), 84 Ill. 2d 361, the police officer whose gun accidentally discharged was found to be preparing to go duck hunting when the accident happened. The supreme court noted that the claimant “was preparing to pursue a diversion unrelated to his job with the village.” (84 Ill. 2d 361, 365.) In Wolland v. Industrial Com. (1982), 91 Ill. 2d 58, an officer’s gun discharged while he was on a drinking “bout,” and the court noted that the “claimant was engaged in a diversion totally -unrelated to his employment as a police officer, and had, in fact, been so engaged for several hours prior to his injury” (91 Ill. 2d 58, 64). In Wolland the supreme court also noted that “the case for compensation is significantly more persuasive when the activity in which the officer is injured in off-duty hours is one *** in which he might normally be engaged during on-duty hours.” (91 Ill. 2d 58, 64.) In Wolland the court referred by way of analogy to County of Peoria v. Industrial Com. (1964), 31 Ill. 2d 562. In County of Peoria, the claimant’s decedent was a deputy sheriff employed as a juvenile officer, and was on call 24 hours a day. After attending a dance, the decedent went to the sheriff’s personal cottage for breakfast. While the decedent, the sheriff, and others were eating breakfast, they were called outside to help a distressed motorist push her car out of the ditch. While helping to push the car from the rear, decedent was struck and killed by a passing car. The court affirmed the award for compensation, finding that the death arose out of and in the course of decedent’s employment as a deputy sheriff in that he was on call 24 hours a day, aiding distressed motorists and vehicles was a normal function of such officers, and he was operating under a superior’s suggestion or order. 31 Ill. 2d 562, 566.

Here, from the moment Keller sought to perform his proper duties, he was acting in the course of his employment. The fact that he was prevented from pursuing the other driver because of conditions which he shared with all others on the highway would not reduce duty to nonduty. In sum, we conclude that the purported internal inconsistency, which is not borne out by the record, and Keller's failure to activate his equipment do not form a basis for denying credibility to his repeated testimony that he was planning to pursue the other driver from the time he first observed the reckless conduct. The Commission’s conclusion, therefore, is against the manifest weight of the evidence.

The judgment of the circuit court of Crawford County is vacated and the cause is remanded to the Industrial Commission with directions to conduct further proceedings to determine the award of compensation due the claimant.

Vacated and remanded.

McNAMARA, BARRY, WEBBER and KASSERMAN, JJ., concur.