author: JUSTICE McLAREN

text:
    THE CITY OF NAPERVILLE, Plaintiff-Appellee, v. WILLIAM G. LERCH, Defendant-Appellant.
    Second District
    Nos. 2—89—0539, 2—89—0840 cons.
    Opinion filed June 8, 1990.

      George A. Thomas, of Thomas & Konewko, Ltd., of Glen Ellyn, for appellant.

      Francis J. Cuneo, Jr., of Naperville, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant appeals from two orders of the circuit court of Du Page County imposing one year’s court supervision on defendant and awarding attorney fees to the plaintiff. We affirm in part and reverse in part.

Defendant, William G. Lerch, was charged with driving under the influence of alcohol (Naperville, Ill., Municipal Code, title 11, ch. 1, §11—1—6, par. 1, subpar. 1.4) and driving with a blood-alcohol content of .10% or greater (Naperville, Ill., Municipal Code, title 11, ch. 1, §11—1—6, par. 1, subpar. 1.3) on March 6, 1987. Plaintiff, City of Naperville, later moved for, and was granted, leave to amend the complaints to charge defendant with being in actual physical control of a motor vehicle while under the influence of alcohol and being in actual physical control of a motor vehicle while having a blood-alcohol content of .10% or more in his body, under the same code sections initially charged.

After receiving a confirmation of statutory summary suspension, defendant petitioned the court for a hearing to rescind the suspension. Following a hearing, the court found in favor of defendant and rescinded the suspension because the arrest did not occur on a public highway. Defendant then moved to suppress evidence obtained in his allegedly illegal arrest. The record does not reveal the disposition of this motion. Defendant next filed a motion in limine to exclude the breath test result. This motion was granted in part and denied in part.

A jury was selected on February 21, 1989. On February 22, after the jury was sworn in, defendant moved for a mistrial based on a venireman’s statement that he believed that he knew defendant from their common membership in Alcoholics Anonymous. The court reserved ruling on this oral motion. Trial by jury followed, and defendant was found guilty of both charges on February 23. Defendant’s motion for a mistrial was then denied.

On March 2, plaintiff filed a motion seeking attorney fees pursuant to title 1, chapter 4, section 1—4—1, paragraph 2, subparagraph 2.3 of the Municipal Code of the City of Naperville. On March 23, defendant filed various post-trial motions for a new trial and a motion for judgment notwithstanding the verdict. Defendant’s motions were denied on April 28. On that same date, the court ordered defendant to serve a period of one year under court supervision. On May 30, defendant filed a notice of appeal from this order. After written and oral arguments, the court on August 21 granted the city’s petition for attorney fees and ordered payment of $1,120 by defendant. On August 22, defendant filed a notice of appeal from this award of fees. These two appeals are now consolidated in the case before us.

Defendant first contends that he was denied a fair and impartial jury. During voir dire, the following colloquy took place amongst the court, both counsel, and Mr. Kafka, a venireman in the last chair of the final panel of jurors selected:

“Q. [THE COURT]: Mr. Kafka?
A. [MR. KAFKA]: Your Honor, may I speak?
Q. What is it you wish to say, sir?
A. I did not recognize Mr. Lerch by name but having studied his face, I believe I know him from a community organization.
Q. Do you know that you do in fact know him?
A. I believe it. We haven’t had close contact in several years but previous to that we were in a community organization together I believe.
THE COURT: Any objection to either side if I excuse Mr. Kafka?
MR. CUNEO: What organization was it?
THE COURT: I don’t know.
MR. THOMAS: Judge, I don’t know that that’s necessarily relevant.
THE COURT: All right. Let me ask you Mr. Kafka if this is only a casual acquaintanceship from several years ago and you are not sure until looking at the gentleman even closely that you know him, would it be fair to say that your knowledge will not interfere with your ability to decide this case?
MR. KAFKA: I might be impartial. The group I am speaking of is Alcoholics Anonymous to which I have belonged for 12 years and I have been a sober member for the past seven years.
THE COURT: Again, it would be my feeling that maybe the gentleman should be excused. Any strong objection from either side?
MR. THOMAS: None.
THE COURT: Mr. Cuneo?
MR. CUNEO: No, Your Honor.
THE COURT: You will be excused.”

The other three veniremen on that panel heard the proceedings and were sworn in as jurors. Defendant did not object to the proceedings or move for a mistrial at that point. The next day, however, defendant moved for a mistrial after the jury was sworn but before opening statements. The court reserved ruling on the motion until the verdict was returned, at which time the motion was denied.

Defendant accepted the three jurors he now alleges were tainted by exposure to the venireman’s statement. Failure to exercise a peremptory challenge or to challenge a juror for cause waives any objection to that juror. (People v. Davenport (1985), 133 Ill. App. 3d 553, 559.) Defendant’s window of opportunity to challenge the three allegedly tainted jurors closed when defendant accepted them for service on the jury. He cannot later charge that they should have been dismissed. Any objection to their presence on the jury has been waived.

Defendant next contends that he was denied a fair trial by a jury instruction given by the court. Plaintiff’s tendered instruction No. 20, given by the court, stated:

“ ‘Actual physical control’ does not require evidence that defendant drove or even attempted to drive.”

Defendant objected to this instruction, arguing that it was surplusage and that the content of the instruction was covered elsewhere. He did not, however, tender a different instruction.

The instruction in question here was a non-Illinois Pattern Jury Instruction and was based on the case of People v. Brown (1988), 175 Ill. App. 3d 676. Defendant, in his motion for a new trial and here on appeal, argues that the holding in Brown should be superseded by the reasoning in People v. Cummings (1988), 176 Ill. App. 3d 293. Whether this court chooses to adopt the reasoning set forth in Cummings, however, is irrelevant to this case. While defendant did object to the instruction given, he failed to tender an instruction which would have cured the alleged defect in the instruction given. Such a failure precludes a party from raising the issue on appeal. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180; 107 Ill. 2d R. 366 (b)(2)(i).) This issue is, therefore, waived.

Defendant next contends that the court erred in admitting evidence of the results of defendant’s breathalyzer test. Defendant maintains that he was coerced into submitting to the test when the arresting officer allegedly incorrectly informed him that his driving privileges would be suspended if he did not take the test. The trial court granted in part defendant’s motion in limine, excluding evidence of the admonition given to defendant but allowing evidence of the test and its result.

Defendant was admonished pursuant to section 11—501.1(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11-501.1(a)) (implied-consent statute) that a refusal to submit to testing to determine blood-alcohol content would result in suspension of his driver’s license. However, defendant was arrested in a private parking lot; the implied-consent statute applies only to persons who drive or have physical control of motor vehicles upon the public highways. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1(a); see also People v. Kissel (1986), 150 Ill. App. 3d 283, 286, overruled on other grounds sub nom. People v. Brown (1988), 175 Ill. App. 3d 725.) According to defendant, this improper admonition coerced him into submitting to the test and the involuntary nature of his submission should have precluded the admissibility of evidence of the test.

Defendant has failed to cite a single case in Support of his position. The mere assertion that defendant’s submission to the test was coerced is not an adequate argument. This issue is inadequately briefed and is considered waived.

Defendant next contends that the court erred in awarding plaintiff attorney fees. Defendant raises six arguments as to why the award of fees was error, including: (1) the court has no power to assess attorney fees in the absence of statutory authority; (2) the issue of fees is preempted by the legislature; (3) the power to assess attorney fees as costs is not within the scope of home rule powers; (4) the ordinance under which the fees were awarded impermissibly interferes with the State’s judicial system; (5) the ordinance is unconstitutionally vague; and (6) the ordinance has a chilling effect on the right to a jury trial. Because of our ruling, we need not address each of these arguments. We conclude that the award of attorney fees was error, and we reverse the order awarding fees.

In general, the absence of a statute or an agreement of the parties precludes the recovery of attorney fees or the costs of litigation. (Hamer v. Kirk (1976), 64 Ill. 2d 434, 437.) In the case before us, there is obviously no agreement between the parties to assess fees. Neither is there a statute which would authorize the award of fees. However, plaintiff argues that its ordinance is sufficient authority to award fees. According to plaintiff, an ordinance is synonymous with a statute, in meaning and effect, because both are legislative acts. We find this argument unpersuasive. The terms “statute” and “ordinance” are defined in several places throughout the laws of this State. In the Municipal Code of 1961, “ordinance” is defined as “an ordinance adopted and approved by the corporate authorities of a municipality.” (Ill. Rev. Stat. 1989, ch. 24, par. 11-74.5-2(l).) “Statute” is defined as “the Constitution or an Act of the General Assembly of this State” in the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 2—22) and as “an act adopted by the General Assembly of this State or by the Congress of the United States” in the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1—209). These definitions clearly do not equate an ordinance with a statute. In addition, we have found no case law, nor has plaintiff provided any, that raises an ordinance of a municipality, even a home rule municipality such as plaintiff, to the level of a statute of the General Assembly. It is true, as maintained by plaintiff, that both statutes and ordinances are legislative acts. However, it does not of necessity follow that they are the same. Neither the legislature, nor the courts, have so held. Therefore, we conclude that, in the absence of a statute passed by the General Assembly, the court had no authority to award attorney fees to the city. The order granting such fees is reversed.

The judgment of the circuit court of Du Page County is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

UNVERZAGT, P.J., and WOODWARD, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    PETER W. SEKORA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Du Page Honda et al., Appellees).
    Second District (Industrial Commission Division)
    No. 2—89—0759WC
    Opinion filed June 12, 1990.

      Richard E. Aleksy, of Zaborsky & Aleksy, of Chicago, for appellant.

      Industrial Commission of Illinois and Paul L. Leeds, both of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Peter W. Sekora, sought worker’s compensation benefits after injuring his leg while working for respondent, Du Page Honda. An arbitrator awarded benefits. The Industrial Commission reversed, finding petitioner failed to prove he sustained accidental injuries arising out of and in the course of his employment. The trial court confirmed the Commission’s decision. On appeal, petitioner contends the Commission’s decision is wrong as a matter of law and is against the manifest weight of the evidence.

Petitioner testified that on August 8, 1983, he worked part time for respondent as a salesman. At about 8:30 p.m., petitioner and other employees were performing the daily task of taking all vehicles displayed outside the building into the garage at the end of the night. Forty or fifty vehicles had been brought in when petitioner and David Yanke, another employee who petitioner stated was working that evening, drove two of the all terrain cycles (ATC) into the one-acre field next to the dealership building. These vehicles are three-wheeled motorcycles. Petitioner had also ridden “some” of the other vehicles in the field that night. After riding in the field for a short time, petitioner was returning to the building when he crashed and broke his leg in three places. Petitioner described the accident:

“We started pulling motorcycles and vehicles and lawn mowers — everything that was outside — in, and we proceeded to pull things in. We went out and took a ride down in the field; and on the way back, I don’t know exactly what it was, but something caused the vehicle to flip.”

Petitioner testified that it was not unusual to ride the vehicles in the field, either to attract customers, or to learn how to drive the new models so the salespeople could adequately demonstrate them to customers. Respondent provided the salespeople with no training program.

“New items that they wanted to test drive if we had free moments, we would at that point in time — when bringing vehicles in, we would familiarize ourselves with new types of vehicles, how to operate them. So, we could show them to the customers — how they would work, how they function.”

Petitioner was not sure, but it was possible that the ATC he rode on the night of the accident was not a new model and that he had driven it into the building many times before. He was riding about 10 or 12 feet into the field.

Petitioner testified further that another employee had been in an accident on an ATC the weekend before. Petitioner denied any knowledge of instructions given after that accident to no longer ride the vehicles, but instead to walk them into the garage at the end of the night.

Petitioner testified that on August 22, 1983, he spoke on the telephone with an insurance company representative and gave his permission to tape the conversation. The tape revealed that petitioner admitted that he was not riding to attract customers on the night of the accident.

David Rietz, a salesman for respondent, testified that he was in charge on the night of the accident. Yanke was not working that night, but had come in about 45 minutes before the accident. Rietz did not give petitioner permission to ride the vehicle. Rietz had pushed several vehicles in that night, but did not see the accident. The accident occurred about 1,200 feet back into the field.

Rietz testified that about six months before the accident, William VanderBrook, respondent’s president, had told the salespeople they could ride in the field if they wore helmets. However, four or five weeks before the accident the rule was changed because of several “mishaps.” Salespeople had been riding without helmets, there had been several accidents, and one employee had broken his wrist. Consequently, VanderBrook instructed the employees that they had to push the vehicles in. The only time they were to be driven in the field was to demonstrate for a customer. The only time the employees were to try out new products was when VanderBrook or the person in charge gave permission to do so.

Thomas Welter, respondent’s service manager, testified that he telephoned petitioner at the hospital on August 9, 1983. “He stated that he shouldn’t have been doing what he was doing.” Welter examined petitioner’s and Yanke’s motorcycles after the accident. Petitioner’s ATC sustained minor damage. Yanke’s ATC had a bent rear axle.

William VanderBrook testified that he “was very strict with the fact they brought them directly into the building and did not horse play on them.” Prior to May 8, 1983, employees could start the engines, but could not ride the vehicles unless they were demonstrating for a customer. Once or twice he gave permission for salespeople to ride in the field to attract customers. After May 8, 1983, when an employee broke his wrist while “horsing around” on an ATC, VanderBrook instructed all sales personnel that they could not even start the engines. While he did not recall “looking [petitioner] in the eye” personally and reciting the instruction, VanderBrook “remember[ed] telling all the salespeople.” He believed that petitioner was told along with all the salespeople. They had to roll the vehicles inside each night and take them directly to the shop.

VanderBrook testified that there was no training program. The salespeople could review the owner’s manuals “and operating the vehicle is moving them inside and out of the building.” After May 8, 1983, however, salespeople were not supposed to ride the vehicles to learn how to operate them. No one rode at all without his permission. VanderBrook acknowledged that in his absence it was possible “[t]hey could do it on their own without permission. I haven’t got 100 percent control over these people.” However, he was not aware of any incidents where employees rode in the field without his permission between May 8,1983, and petitioner’s August 3,1983, accident.

In rebuttal, petitioner testified that he was never instructed not to ride the vehicles. While he was told once to ride in the field to attract customers’ attention, he did not recall whether that was before or after May 8, 1983.

The arbitrator awarded compensation, but the Commission reversed, finding that petitioner and Yanke “were engaged in horseplay and that petitioner deviated from the scope of his employment.” The Commission found petitioner’s statement that he was putting the vehicle away lacked credibility, in that the emergency room history stated he was trying to draw a crowd when the two cycles became tangled, throwing petitioner off the cycle. The Commission found Union Starch, Division of Miles Laboratories, Inc. v. Industrial Comm’n (1974), 56 Ill. 2d 272, 307 N.E.2d 118, and Scheffler Greenhouses, Inc. v. Industrial Comm’n (1977), 66 Ill. 2d 361, 362 N.E.2d 325, not applicable because riding the ATC was not an act of “personal comfort.” Moreover, in the present case, respondent had not acquiesced in the conduct.

The trial court confirmed the Commission’s decision, finding it was not against the manifest weight of the evidence. The court found the matter presented a factual question and could not be decided as a matter of law. Petitioner maintains that a question of law is involved.

If undisputed facts permit more than one reasonable inference to be drawn therefrom, a question of fact exists, and the conclusion of the Commission will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (Chicago Extruded Metals v. Industrial Comm’n (1979), 77 Ill. 2d 81, 395 N.E.2d 569.) More than one reasonable inference can be drawn from the facts presented here, especially in regard to whether petitioner was involved in conduct incidental to his work duties.

A compensable injury must “arise out of” and occur “in the course of” employment. An injury arises out of employment when a causal connection exists between the employment and the injury such that the injury has its origins in some risk incidental to the employment. (Curtis v. Industrial Comm’n (1987), 158 Ill. App. 3d 344, 511 N.E.2d 866.) An injury occurs during the course of employment when the employee is injured within the time period of employment, at a place where the employee can reasonably be expected to be in the performance of his duties and while he is performing those duties or doing something incidental thereto. Eagle Discount Supermarket v. Industrial Comm’n (1980), 82 Ill. 2d 331, 412 N.E.2d 492.

The injury here occurred during petitioner’s work hours, but in the field, which was not a place where petitioner reasonably would be in the performance of his work as a salesman. Previously, employees had driven the vehicles in the field to capture the attention of potential customers passing by the property. The evidence shows petitioner was not attempting to attract customers just prior to closing.

Petitioner also argues he was riding the ATC to learn how to operate it and that “it was during this learning activity” that the accident occurred. The Commission could find, based on petitioner’s own testimony, that he was not test-driving a new piece of equipment in order to better his knowledge of a new model and thus better serve the customer’s needs and consequently benefit respondent. Petitioner did not even know whether the ATC he was driving was or was not a new model. Petitioner testified it was possible that it was not a new model, but may have been a vehicle he had ridden many times. Thus, the Commission was entitled to discount petitioner’s explanation that he was learning how to operate “new types of vehicles” when the accident occurred.

The Commission could also question petitioner’s purpose in riding the motorcycles on the basis that Yanke was not working that night. While petitioner testified that Yanke was on duty, Eietz testified Yanke was not working. Thus, the Commission could find that the two men were engaged in horseplay, not working or trying to gain knowledge of the vehicles’ operation. In addition, petitioner testified he did not know what happened to cause the vehicle to flip. The condition of the two motorcycles, however, indicated that both the vehicles were involved in the accident, possibly becoming entangled. This, too, can indicate the two men were engaged in horseplay.

The third possible reason for riding the ATC would be just to bring it into the garage at the end of the day. However, petitioner’s testimony makes it clear he detoured by taking “a run up into the field” before bringing the vehicle inside. Moreover, while petitioner testified he was 10 or 12 feet into the field and only 20 feet from the garage, Rietz testified petitioner was 1,200 feet into the field when the ambulance arrived. Again, this could indicate petitioner was not in the process of bringing the ATC into the building when he crashed.

Petitioner contends, however, that respondent acquiesced in the custom of employees riding the vehicles in the field. Self-benefit-ting activities by the employee to which the employer acquiesces, or for which the employer allows the use of its property, have been held to be within the course of employment. (Bradway v. Industrial Comm’n (1984), 124 Ill. App. 3d 983, 464 N.E.2d 1139.) Thus, if an employee voluntarily and in an unexpected manner exposes himself to a risk outside any reasonable exercise of his duties, a resulting injury will not be within the course of employment unless the employer had knowledge of or acquiesced in such unreasonable conduct. (Yost v. Industrial Comm’n (1979), 76 Ill. 2d 548, 394 N.E.2d 1189; Curtis v. Industrial Comm’n (1987), 158 Ill. App. 3d 344, 511 N.E.2d 866.) VanderBrook and Rietz testified that no employee was allowed to ride in the field without permission. The Commission was entitled to find that testimony credible.

We conclude that the Commission could reasonably infer from the facts before it that petitioner acted without authorization by riding motorcycles in the field with Yanke in such a way as to result in the accidental injuries, and exposed himself to the risk of such injuries for which the Act will not provide compensation.

Significantly, even if permission to ride the vehicles had not been retracted in its entirety, prior to May 8, 1983, permission was limited to the one or two times the employees were asked to attract customers’ attention and the times employees were demonstrating a vehicle for a customer. Neither of those situations was present here.

Thus, any permission previously given did not encompass the activities which resulted in petitioner’s injuries. Moreover, the Commission could find VanderBrook’s testimony, that all salespeople had been instructed to not even turn on engines and to roll the vehicles inside, was communicated to petitioner along with the rest of the staff.

Petitioner’s reliance on Scheffler Greenhouses, Inc. v. Industrial Comm’n (affirmed award of compensation where employer authorized and invited greenhouse workers to use pool as relief from hot, humid work environment) and Union Starch v. Industrial Comm’n (affirmed award of compensation where employer acquiesced in employees’ 15-year custom of using rooftop for work breaks for fresh air) is misplaced. This case does not involve petitioner’s personal comfort. See, e.g., Curtis v. Industrial Comm’n (1987), 158 Ill. App. 3d 344, 511 N.E.2d 866.

Petitioner’s reliance on Chicago, Wilmington & Franklin Coal Co. v. Industrial Comm’n (1922), 303 Ill. 540, 135 N.E. 784, is also unpersuasive. In that case, “trappers” gained experience and training as drivers by occasionally driving, even though the trappers should not have been permitted to drive. The employer in that case knew the rule prohibiting trappers from driving was not observed, and in fact at times it paid the trappers extra for their driving. No such acquiescence has been shown by petitioner in the present case.

We hold the inferences which the Commission drew from the evidence were reasonable and not against the manifest weight of the evidence. We will not disturb its decision denying benefits to petitioner.

For the foregoing reasons, the judgment of the circuit court of Du Page County, confirming the decision of the Industrial Commission, is affirmed.

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD R. WOOTON, Defendant-Appellant.
    Third District
    No. 3—89—0445
    Opinion filed June 13, 1990.
    Rehearing denied July 19,1990.

      Richard H. Parsons, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorneys, of Peoria (Rita Kennedy Her tel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Defendant-appellant, Ronald R. Wooton (defendant), appeals from the circuit court’s order dated July 21, 1989, wherein the court entered judgment on the jury verdicts finding defendant guilty of first degree murder and concealment of homicidal death. The same order also sentenced defendant to a term of natural life imprisonment for the first degree murder conviction and a concurrent term of five years’ imprisonment for the concealment of homicidal death conviction. No questions are raised concerning the charging instruments.

On September 6, 1987, defendant was charged by indictment with first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(2)), concealment of a homicidal death (Ill. Rev. Stat. 1987, ch. 38, par. 9—3.1(a)) and solicitation of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 8—1(a)), all arising from an incident on or about April 24, 1988, wherein Kimberly Ray (Ray) was fatally shot with a gun and her body buried. A jury found defendant guilty of all charges on April 24, 1989.

On the evening of April 24, 1988, Ray, defendant, James Martin (Martin) and John Hanson (Hanson) were all at a tavern in Chillicothe, Illinois. While at the tavern, Ray and defendant got into an argument wherein Ray told defendant, “Wait until I get you to court next week and testify.” In response, defendant apparently told Ray to shut her mouth and also to continue eating because that was the last supper he was buying for her. The history behind these statements has to do with a Federal investigation wherein Ray was subpoenaed to testify against defendant before a Federal grand jury on April 11, 1988. This hearing was canceled but the evidence indicates Ray was still going to be called upon to testify sometime in May of 1988.

Later during the evening of April 24, 1988, Ray, defendant, Martin and Hanson left the tavern. Defendant and Ray were in Ray’s vehicle, and Martin and Hanson followed in another vehicle. Ray’s vehicle left the road and overturned. Ray and defendant then argued over who caused the accident. They all then left to go to defendant’s house, where Ray began damaging furniture and other contents of defendant’s home. Another argument ensued between Ray and defendant which ended when Ray went to the back room of defendant’s house. At that point defendant told Martin to get “rid of Miss Ray.” He handed Martin a knife which was six inches long closed. Martin went down the hallway towards Ray but did not use the knife. Ray came back towards the living room and again argued with defendant, while in the process knocking a VCR, stereo and television over. A shoving match ensued between defendant and Ray, and Martin then reappeared in the living room with a rifle, grabbed Ray and exited the house. Outside, Ray tempted Martin to shoot her, and he shot her twice. Defendant directed Martin and Hanson to get rid of Ray’s body. Martin and Hanson loaded Ray’s body into the trunk of Ray’s car, found an isolated area, and buried her body.

After closing arguments and instructions, the jury commenced deliberations at 12:50 p.m. At approximately 9:30 p.m., the trial judge recalled the jury and advised that sequestration arrangements would need to be made in the event the jury would not be able to reach a verdict. Further, that if any juror had any special needs or wanted to send a message, arrangements would be made to accommodate those needs. Moreover, prior to the jury being recalled, the judge stated for the record that he had discussed his intention to recall the jury for this purpose with the attorneys and no objection was made. The jury returned to deliberations and reached a verdict at 10:55 p.m.

Defendant phrases the following three issues for appeal. First, whether the trial court’s comments to the jury impermissibly hastened the jury’s guilty verdicts. Second, whether the trial court erred in allowing into evidence motive testimony respecting the Federal grand jury investigation over objection of counsel. Third, whether defendant’s sentence was unconstitutionally harsh considering that codefendants’ respective sentences were grossly disparate with defendant’s sentence.

With respect to the trial court’s comments to the jury, defendant cites People v. Friedman (1986), 144 Ill. App. 3d 895, 494 N.E.2d 760, and People v. Branch (1984), 123 Ill. App. 3d 245, 462 N.E.2d 868, as support for the proposition that the trial court’s comments hastened the jury’s verdict. In Friedman and Branch, the trial court made remarks to the jury about the need to arrange overnight accommodations. In both cases the jury had been deliberating for better than four hours, but after the trial court’s remarks returned verdicts in 5 and 10 minutes, respectively. Thus, the notably brief deliberation after the court’s remarks created an inference that the court’s remarks were a primary factor in the procurement of a verdict. In Friedman, however, the court noted that simply informing a jury it will be sequestered after a certain time is not necessarily coercive in nature. The test is whether under the totality of the circumstances the language used by the trial court coerced or interfered with the deliberations of the jury to the prejudice of the defendant. People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.

We do not believe the trial court’s remarks to the jury regarding the need to make overnight arrangements coerced the jury into hastily making a decision. This is not a situation where the jury appears to have gone back into the jury room and immediately put the matter to vote and returned with a verdict. Moreover, the trial court’s remarks contained clear statements to the jury that the court’s purpose was not to pressure the jury into reaching a verdict. Friedman and Branch are not controlling as no inference can be drawn that the trial court’s remarks affected the jury’s decision-making process.

The trial court allowed the State to present testimony regarding a Federal grand jury investigation wherein Ray was supposedly a witness against defendant and further allowed the State to argue that this evidence created a motive for defendant to cause the death of Ray. Defendant argues that the evidence presented to show motive of defendant was illogical and irrelevant because Ray was murdered after her subpoenaed appearance before the grand jury was canceled and she had no notice of when, if ever, she was to subsequently testify. Moreover, defendant insists that Ray’s statement to defendant, “Wait until I get you to court next week and testify,” was not conclusive as to what the couple was arguing about at the tavern on April 24, 1988. Defendant, however, ignores other evidence which puts into context the statement made to defendant by Ray as well as providing support for the State’s motive theory. Other testimony established that Ray, along with Vincent Worthington (Worthington), was scheduled to testify on April 11, 1988. That date was canceled but both Ray and Worthington were present at the Federal prosecutor’s office on April 11, wherein Worthington was served with a subpoena to testify on April 20, 1988. Both Ray and Worthington were told, however, to call the prosecutor’s office on April 19 to find out if they would be needed to testify the next day. Although Ray did not call on the 19th, Worthington did call and was informed that the investigation had been postponed until May and that he should call back prior to May 11, 1988. In light of this background, Ray’s previously quoted statement to defendant about testifying against him and his responses of telling her to shut her mouth and stating it was the last supper that he was buying for her lend support to the theory that defendant had Ray murdered to prevent her from testifying against him. Generally, any evidence which tends to show that the accused had a motive for killing the deceased is relevant and admissible so long as the evidence, to a slight degree, establishes the existence of the motive relied upon. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.) Moreover, evidence of other crimes, while not admissible to show propensity to commit crimes, is admissible to show motive (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840; People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6), and the State need not show proof of these other crimes beyond a reasonable doubt. (People v. Wolfbrandt (1984), 127 Ill. App. 3d 836, 469 N.E.2d 305.) In this case, the State presented evidence that defendant was the subject of a grand jury investigation and that Ray was to be a witness against him. This evidence in connection with the statements by Ray and defendant on the night of the murder tends to show that defendant had a motive for causing the murder of Ray. We therefore believe the probative value of this evidence outweighed any prejudicial effect to defendant, especially when considering that a jury instruction was submitted advising of the limited purpose for which the evidence was introduced.

Defendant further argues that reversible error occurred when the prosecutor commented on the motive evidence in closing argument. Defendant, however, made no objection to these comments at trial and further failed to enunciate the particular objection in his post-trial motion. It is well settled that a defendant must object to improper comments in closing argument and must also include the issue in his post-trial motion to preserve the issue for appeal. (People v. Tanner (1986), 142 Ill. App. 3d 165, 491 N.E.2d 776.) Defendant has therefore waived this issue.

Finally, defendant claims his sentence was unconstitutionally harsh in comparison to the sentences received by his codefendants. We disagree. In order for defendant to argue that his sentence was substantially disparate with the sentences received by his codefendants, he must produce records of the codefendants’ sentencing circumstances upon which a rational comparison can be made. (People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154; People v. Treece (1987), 159 Ill. App. 3d 397, 511 N.E.2d 1361.) Defendant has not provided us with the transcripts or other records pertaining to the facts and circumstances surrounding the sentencing of the codefendants. Additionally, the record reveals that the codefendants were cooperative and may have entered into plea negotiations with the State in exchange for their testimony against defendant. It is well settled that a codefendant’s willingness to cooperate with law enforcement officials in the prosecution of other offenders may be a mitigating factor in the codefendant’s sentence. (People v. Treece (1987), 159 Ill. App. 3d 397, 511 N.E.2d 1361; People v. White (1985), 134 Ill. App. 3d 262, 479 N.E.2d 1121.) We find that the defendant has not sufficiently established that the trial court abused its discretion in sentencing defendant to a term of natural life imprisonment.

For all of the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


text:
    FLOYD RIDLE et al., Plaintiffs-Appellants, v. SPRAYRITE MANUFACTURING COMPANY et al., Defendants-Appellees.
    Third District
    No. 3—89—0552
    Opinion filed June 18, 1990.

      March, McMillan & Stone, P.C., of Macomb (John D. McMillan, of counsel), for appellants.
    West, Neagle & Williamson, of Galesburg (Roger L. Williamson and John P. Fleming, of counsel), for appellee John Fayhee & Sons, Inc.
    John P. Fleming and David A. Hunt, both of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellee Sprayrite Manufacturing Company.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiffs-appellants purchased a self-propelled crop sprayer from defendant-appellee John Fayhee & Sons, Inc. (Fayhee), which was manufactured by defendant-appellee Sprayrite Manufacturing Co. (Sprayrite). The sprayer was delivered by Fayhee to plaintiffs on or about March 30, 1984. Plaintiffs allege the engine of the sprayer was inadequate for the terrain of plaintiffs’ farmland and the sprayer was sent back to defendants. A rebuilt engine was subsequently placed in the sprayer and returned to plaintiffs in June of 1985. Plaintiffs allege that defendants at this time made assurances that the sprayer would be adequate with the rebuilt engine. Plaintiffs, however, were not satisfied with the performance of the sprayer even with the rebuilt engine. The truthfulness of plaintiffs’ allegations are essentially undisputed.

On April 21, 1989, plaintiffs filed a multiple-count complaint against Fayhee and Sprayrite. Count I alleged a breach of implied warranty of merchantability; count II alleged a breach of implied warranty of fitness for a particular purpose; count III alleged a breach of express warranty; and count IV alleged a breach of contract and revocation of acceptance. Both Fayhee and Sprayrite filed motions to dismiss under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619), claiming the cause was barred by the four-year statute of limitations of the Uniform Commercial Code, section 2—725 (Ill. Rev. Stat. 1987, ch. 26, par. 2—725). The trial court, by order dated August 28, 1989, granted both motions and dismissed plaintiffs’ cause of action with prejudice.

The procedural question for review is whether the trial court erred in granting Fayhee’s and Sprayrite’s respective motions for dismissal. Substantively, we must first decide whether plaintiffs’ complaint alleging a delivery of equipment within the statutory four-year limitations period is sufficient to create an issue of fact precluding dismissal. Second, we must decide whether plaintiffs’ allegations regarding the assurances made by either one or both of the defendants at the time the engine was rebuilt are legally sufficient to extend the statutory four-year limitation period.

Plaintiffs do not dispute that the sprayer was initially delivered in March of 1984 and that said date is more than four years prior to the filing of their complaint. Plaintiffs, however, allege a second delivery date of June 1985, the date when the sprayer was returned to plaintiffs after having the engine rebuilt. Plaintiffs contend that based on defendants’ representations that the sprayer with the rebuilt engine would be adequate to meet plaintiffs’ needs, the statute of limitations should not begin to run until June of 1985. As authority, plaintiffs cite cases from other jurisdictions which indicate (1) that the statute of limitations is tolled until the repairs are completed when a seller makes representations that the repairs will cure the defect or (2) that the cause of action does not accrue until delivery and the opportunity for the buyer to discover the breach. Plaintiffs concede, however, that most jurisdictions hold that the discovery rule does not generally apply to warranty cases and also that established Illinois case law holds that repairs performed pursuant to a warranty do not extend the warranty. (Nelligan v. Tom Chaney Motors, Inc. (1985), 133 Ill. App. 3d 798, 479 N.E.2d 439.) Additionally, under section 2—725(2):

“A cause of action accrues when the breach occurs ***. *** A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance ***.” (Ill. Rev. Stat. 1987, ch. 26, par. 2-725(2).)

Plaintiffs argue that tender of delivery should be construed to mean the date when the sprayer with the rebuilt engine was returned to plaintiffs since the sprayer underwent a substantial change. When, however, the term “tender of delivery” is construed in light of Nelligan and other similar cases, that term can only be construed to mean that delivery takes place when the product is first delivered to a buyer. To hold otherwise would, in effect, create a discovery rule in warranty cases as well as a significant question of what repairs are sufficient to constitute a significant change in the product. Plaintiffs have cited no Illinois cases which would require any other holding. Moreover, plaintiffs herein determined that the sprayer was inadequate shortly after it was initially delivered and also shortly after it was returned with a rebuilt engine. Thus, this is not a situation where plaintiffs had no knowledge of the defective condition until after expiration of the limitations period.

Plaintiffs also allege that the assurances made by either Fayhee or Sprayrite at the time the sprayer was equipped with the rebuilt engine amounted to an express warranty by defendants of future performance, thereby extending the limitations period and making plaintiffs’ revocation of acceptance and warranty actions timely filed. We disagree. Section 2—725(2) of the Uniform Commercial Code states:

"A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” Ill. Rev. Stat. 1987, ch. 26, par. 2-725(2).

Case law interpreting this paragraph of section 2—725 is clear and unambiguous. In Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, our supreme court had occasion to interpret the meaning of the phrase “explicitly extends to future performance” contained within section 2—725(2). Citing numerous State and Federal court decisions, the court determined that a warranty stating a certain bulk tank was designed to withstand “60 lbs. per bushel grain and 100 m.p.h. winds” was not an explicit warranty of future performance in part because there was no reference to future time in the warranty and, thus, no explicit warranty of future performance. Although the buyer may have had an expectation that the warranty would run for the life of the product, that fact alone was insufficient to delay the point at which the limitations period commenced to run. Moorman, 91 Ill. 2d 69, 435 N.E.2d 443.

A case factually similar to the present case is Wilson v. Massey-Ferguson, Inc. (1974), 21 Ill. App. 3d 867, 315 N.E.2d 580. In Wilson plaintiff allegedly purchased a certain farm tractor which was not adequate to do heavy duty plowing and, therefore, not merchantable or fit for the particular purpose for which it was purchased. Plaintiffs’ subsequent breach of warranty action was commenced more than four years after delivery of the tractor by defendant. Nonetheless, the trial court determined that the statue did not commence running until the defective condition was discovered by plaintiff. In reversing the trial court, the court first determined that the theory of implied warranty of fitness for a particular purpose was inapplicable to the cause. The court next determined that the statute of limitations applied because the proper point for commencing the statute was the date of delivery, unless the seller made explicit warranties as to future performance of the tractor. Thus, the question presented was whether explicit warranties as to future performance were made by the seller.

In determining the meaning of the word “explicit,” the court stated:

“Explicit is defined *** as ‘not implied merely, or conveyed by implication; distinctly stated plain in language; clear; not ambiguous; express; unequivocal.’ ” Wilson, 21 Ill. App. 3d at 872, 315 N.E.2d at 583, quoting Binkley v. Teledyne Mid-America Corp. (E.D. Mo. 1971), 333 F. Supp. 1183, aff'd (8th Cir. 1972), 460 F.2d 276.

The court further found that nothing in the record or transcript of evidence suggested that the seller had made any explicit warranties as to the future performance of the tractor. The court added:

“Even if the seller had specifically told plaintiff that ‘this tractor is suitable for heavy duty plowing,' Binkley makes it clear that the breach of that warranty occurred at the time of delivery because the warranty did not explicitly state that the tractor would be suitable for such work beyond that time.” Wilson, 21 Ill. App. 3d at 872, 315 N.E. 2d at 584.

Having already established that the date of delivery in this cause was the date Fayhee delivered the sprayer to plaintiffs, we now determine that the alleged assurances by defendants that the sprayer with the rebuilt engine would be adequate for plaintiffs’ needs does not rise to an explicit warranty of future performance. These alleged assurances, even when viewed in a light most favorable to plaintiffs, do not refer to a specific future time frame and thus are not “explicit” as that phrase has repeatedly been interpreted. Therefore, plaintiffs’ cause of action is time barred by section 2—725, and the trial court’s decision must be affirmed.

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


text:
    GERALD MARKHAM, Plaintiff-Appellant, v. THE BOARD OF TRUSTEES OF THE KANKAKEE FIREMAN’S PENSION FUND, Defendant-Appellee.
    Third District
    No. 3—89—0597
    Opinion filed June 18, 1990.

      Leonard F. Sacks, of Sacks & Albrecht, of Kankakee (Adrienne Albrecht, of counsel), for appellant.
    Butz, Jaffe, Collins, O’Connor & Burnett, of Kankakee (Duane J. O’Con-nor, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Appellant, Gerald Markham, appeals from an order entered by the circuit court on August 28, 1989, affirming appellee’s prior administrative decision of March 2, 1988. The circuit court determined that appellant waived his right to seek administrative review of a denial of a line-of-duty disability pension by his subsequent application for a non-service-connected disability pension.

Appellant joined the Kankakee fire department as a fire fighter in 1971. When called upon to fight his first fire which required the use of an airpack, he had a problem with the face mask, resulting in him inhaling smoke. From that point on, appellant experienced difficulty in performing fire fighting duties whenever he was required to wear an airpack with a face mask. Because of this difficulty, appellant was reassigned as an emergency medical technician (EMT). He worked as an EMT for three years, during which time he still had difficulty wearing a face mask, although apparently able to perform all other duties. Appellant was later assigned to the Fire Prevention Bureau, where he continued to have problems wearing a face mask. In 1985, appellant was again assigned to basic fire fighter status until a medical leave in 1987. From 1985 to 1987, several complaints were made about appellant because of his inability to wear a face mask. The parties generally do not dispute that appellant is entitled to some form of disability pension.

On November 21, 1987, appellant made a written request to appellee for a line-of-duty disability pension. Appellee considered appellant’s request on February 24, 1988, and March 2, 1988, based upon the reports of three physicians who had previously evaluated the applicant’s condition. Appellee denied appellant’s request for a line-of-duty disability pension on March 2, 1988. On that same day, appellant made a separate and specific written request for a nonservice disability pension, which was granted by appellee on March 7, 1988.

On April 5, 1988, appellant filed a complaint for judicial review of the appellee’s March 2, 1988, denial of a line-of-duty disability pension. By memorandum opinion filed July 10, 1989, the circuit court determined that the appellee’s decision of March 2, 1988, should be affirmed on the basis that appellant, by making a request for a nonservice disability pension, waived his right to pursue judicial review of the March 2, 1988, ruling. An order of the court was subsequently entered on August 28,1989.

The issue for review is whether the circuit court erred in affirming the March 2, 1988, decision of appellee denying appellant’s request for a line-of-duty disability pension on the basis that appellant waived his right to pursue judicial review of the ruling by his subsequent request for a nonservice disability pension. In other words, has appellant made an election of remedies?

The circuit court’s primary concern was that if appellant was successful in getting appellee’s March 2, 1988, decision overturned, he would be in a position of receiving a double recovery. The circuit court noted that the March 7, 1988, decision granting appellant’s request for a nonservice disability pension was a separate proceeding and not subject to review, as no appeal had been perfected within 35 days.

We disagree that appellant, if successful in obtaining a line-of-duty disability pension, would reap a double recovery by being the benefactor of two separate disability pensions. Under the Illinois Pension Code (Code), sections 4—122 and 4—123, appellee has the authority to control and manage the pension fund. (Ill. Rev. Stat. 1987, ch. 108½, pars. 4—122, 4—123.) Moreover, under section 4—112 of the Code, appellee has the authority to make redeterminations of disability benefits upon providing proper notice to the fire fighter. (Ill. Rev. Stat. 1987, ch. 108½, par. 4—112.) We believe this section is worded broadly enough to vest appellee with authority to review and possibly terminate appellant’s nonservice disability pension in this case. As further support, it appears that the intent of this Code is to provide a fire fighter with a pension upon retirement, disability or the suffering of an occupational disease, but is not intended to provide duplicate pensions to one single fire fighter.

Nor do we believe appellant, either expressly or impliedly, waived his right to pursue his line-of-duty disability pension. Although appellant did apply for a nonservice disability pension after appellee denied his line-of-duty disability pension request, we do not believe this indicates an intention by appellant to forego any further action after the denial. A complainant in civil court is not prevented from pleading in the alternative (see Ill. Rev. Stat. 1987, ch. 110, par. 2—604) and then pursuing an appeal if complainant’s first choice of recovery is denied. Although appellant may have gone about asking for alternative remedies in a slightly improper manner, we do not believe that defendant’s method should work to prejudice him from pursuing relief of what he believes to be an improper decision by appellee.

The circuit court in this cause affirmed the March 2, 1988, decision of appellee solely on the basis of waiver and the threat of double recovery. We therefore reverse the circuit court’s order of August 28, 1989, and remand the cause to the circuit court for the purpose of reviewing the evidence presented at the administrative hearing and determining whether appellee’s denial of appellant’s request for a line-of-duty disability pension was against the manifest weight of the evidence.

Reversed and remanded.

HEIPLE, P.J., and BARRY, J., concur.


author: JUSTICE LEWIS

text:
    OWENS CORNING FIBERGLAS CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Charlotte Hammond, widow of Charles Hammond, Deceased, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—89—0705WC
    Opinion filed June 14, 1990.

      Costigan & Wollrab, P.C., of Bloomington (Guy C. Fraker, of counsel), for appellant.
    James Walker, Ltd., of Bloomington, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Claimant, Charlotte Hammond, filed an application for adjustment of claim under the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1983, ch. 48, par. 172.36 et seq.) seeking benefits for the death of her husband, Charles Hammond (decedent), due to his exposure to asbestos while employed by the respondent, Owens Corning Fiberglas Corporation. Prior to his death, the decedent had been awarded permanent partial disability benefits (PPD) for asbestosis, and the claimant had received a judgment following a jury trial on a loss of consortium action brought by her because of her husband’s asbestosis.

After a hearing on the claimant’s petition, the arbitrator found that the decedent was last exposed to the hazard of asbestos on April 2, 1971, but that the cause of action for this claim arose on the date of the decedent’s death, August 22, 1984; that the decedent’s average weekly wage was $168.46 based upon the decedent’s annual earnings the year preceding his last day of exposure to the asbestos (1971), but that the claimant was entitled to benefits in the amount of $178.02 per week, the statutory minimum in effect at the time of the decedent’s death; that the claimant was entitled to burial expenses in the amount of $1,750 and to the necessary and reasonable medical expenses in the amount of $14,390.04; and that the respondent was entitled to the following credits: $22,184.50 paid to the decedent during his lifetime as compensation for his PPD for the occupational disease of asbestosis; $11,009.39 and $11,052.42 paid to the claimant for her recovery in wrongful death actions; and $93,750 paid to the claimant for her recovery in a loss of consortium action brought by her during the decedent’s lifetime. (We note that the figure of $93,750 is used by the Industrial Commission (Commission) in its order when referring to the claimant’s loss of consortium proceeds, but that the circuit court used the figure of $93,000 in its order. It appears that the correct figure is the $93,750.) On review, the Commission determined that the claimant had an independent cause of action which arose on August 22, 1984, and that the credits claimed by the respondent were not credits, but were liens or claims for reimbursement as provided under section 5 of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1983, ch. 48, par. 172.40), and that the Commission had no jurisdiction to consider these claims. In all other respects, the Commission affirmed the arbitrator’s decision. The circuit court confirmed the Industrial Commission’s decision, with the exception' that the court found that the Commission did have jurisdiction to determine the respondent’s claims for credit. Accordingly, the circuit court held that the respondent was entitled to credit for the $22,061.81 ($11,009.39 and $11,052.42). paid to the claimant for her recovery in the wrongful death actions, but that the respondent was not entitled to credit for the $22,154 paid as compensation to the decedent as PPD for his occupational disease of asbestosis or to credit for the $93,750 that the claimant received for her loss of consortium action during the decedent’s lifetime. The respondent appeals.

On appeal, the respondent sets forth arguments on six issues in its brief; however, two of these issues (i.e., that the Commission did have jurisdiction to address the credits sought by the respondent, and that the date of the decedent’s last exposure to the hazard of asbestos was April 2, 1971) need not be considered as these issues were determined in the respondent’s favor by the circuit court and were expressly excluded in the respondent’s notice of appeal. The remaining four issues to be considered are: (1) whether the claimant had an independent cause of action for benefits under the Workers’ Occupational Diseases Act due to the decedent’s death caused by his work-related exposure to asbestos, where, as here, the decedent received PPD during his lifetime for a claim for his work-related exposure to asbestos under the the Workers’ Occupational Diseases Act; (2) whether the statute in effect on April 2, 1971, the date of the decedent’s last exposure to the hazard which caused his occupational disease, is applicable, or whether the statute in effect on August 22, 1984, the date of the decedent’s death, is applicable; (3) whether the statutory minimum rate of compensation provided in the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.7(a)) is applicable to the Workers’ Occupational Diseases Act; and (4) whether the circuit court erroneously denied the respondent credit for the claimant’s recovery of $93,750 for her loss of consortium case.

At the hearing before the arbitrator, the claimant testified that she was 58 years of age; that she had been married to the decedent since June 1, 1946; that the decedent died on August 22, 1984; and that she has not remarried. During her marriage, the decedent worked at Union Asbestos and Rubber Compány (UNARCO). However, the UNARCO plant was subsequently bought by the respondent, and in April of 1971, the decedent was working for the respondent.

In the early 1970’s, the decedent was diagnosed as having asbestosis. The decedent left his employment with the respondent on April 2, 1971, and after being off work for a period of time, he subsequently worked as a truck driver for Joe Evans & Son Excavating, Inc. (Evans Excavating), where he worked until 1981. In the summer of 1984, the decedent was diagnosed as having cancer. After he was-so diagnosed, the claimant was unable to eat, he became very weak and was almost bedfast, and he used a wheelchair. Until the decedent’s death, he was in and out of Mennonite Hospital under the care of Dr. Conklin.

Bill Johnson testified that he had worked with the decedent at UNARCO and at the respondent’s plant from the 1950’s until the 1970’s. According to Johnson, when the plant was run by UNARCO, asbestos was used in the manufacturing process, and he and the decedent worked in the asbestos dust. Even after the plant was sold to the respondent in 1970, asbestos was used in the operations, and the conditions in the plant remained the same until the decedent left work.

Marilyn Evans testified that she was the secretary and treasurer for Evans Excavating. She corroborated that the decedent worked for Evans Excavating during the 1970’s and early 1980’s, and that the decedent’s last full year of employment was 1981. The decedent had never been terminated from his employment at Evans Excavating, but he never returned to work after 1981. In 1981, the decedent had worked only 191/2 40-hour weeks, because work was not always available and because of the decedent’s illness. During the last year of the decedent’s employment, his hourly wage as a truck driver was $12.671/2 per hour, and his gross wage was $12,890.54. Marilyn further testified that the hourly wage for truck drivers who performed the same work as the decedent was $14.27 per hour in 1984.

In addition to the foregoing testimony, the claimant presented numerous documents which were admitted into evidence. These documents included the medical records from Mennonite Hospital; the evidence deposition of Dr. Conklin; the decedent’s certificate of death and autopsy report; the decedent’s medical and funeral bills; a check dated September 13, 1984, from the respondent and payable to the claimant for the decedent’s compensation benefits for his occupational disease claim; and a copy of the claimant’s motion for summary judgment and a certified copy of the circuit court’s order in case number 80—L—52, entitled Charlotte Hammond v. North American Asbestos Corporation, entered October 21, 1983, and in which the respondent’s motion for leave to intervene in the claimant’s loss of consortium case was denied.

The pertinent facts obtained from the decedent’s medical records, the certificate of death and the autopsy report were as follows: the decedent was 57 years of age at the time of his death and the cause of his death on August 22, 1984, was due primarily to “malignant mesothelioma of [the] peritoneum.” The decedent had had a long-standing exposure to asbestos because of his occupation and had suffered interstitial pulmonary disease (asbestosis) for many years. The decedent had been followed for tumor formation, but it was not until a biopsy excision of a nodule in the decedent’s abdomen was done in July of 1984 that the mesothelioma of the peritoneum was discovered.

Dr. Robert Conklin, in his evidence deposition of December 17, 1986, testified that he had practiced as a physician for 25 years, and that he restricted his practice to chest surgery. In the course of his practice, Dr. Conklin had seen approximately 250 patients whose condition of ill-being was associated with exposure to asbestos. According to Dr. Conklin, there are three diseases associated with the exposure to asbestos, these diseases being pulmonary asbestosis, which is a scarring of the lung (asbestosis); cancer of the lung; and mesothelioma of the pleural (lining of the lung cavity) mesothelium or the peritoneum (lining of the abdominal cavity) mesothelium. Dr. Conklin explained that some patients develop asbestosis, some develop lung cancer and some develop mesothelioma. Mesothelioma is a type of cancer and is usually fatal; however, the patients that develop mesothelioma are unusual, and only 5% to 10% of the people exposed to asbestos develop this disease. Dr. Conklin further explained that mesothelioma is a malignant tumor of the mesothelial cells, which are present both in the lining of the pleural space and in the lining of the peritoneum.

Dr. Conklin testified that asbestosis is a condition which develops over a period of time, usually years, from the deposition of the fibers of the asbestos dust. In asbestosis, the asbestos fibers become embedded in the finer branches of the bronchial tree and cannot be expelled. Subsequently, with the respiratory movements, the asbestos fibers work into the tissues outside the bronchia and into the peribronchial tissues where the fibers seem to set up an inflammatory or fibrotic reaction which results in scar tissue formation. According to Dr. Conklin, asbestosis is an irreversible, progressive condition.

Dr. Conklin stated that pleural and peritoneum mesothelioma are also caused by exposure to asbestos. Dr. Conklin testified that in peritoneum mesothelioma, it is presumed that the asbestos fibers get into the abdominal lining when sputum is coughed by a person and some of the sputum that contains the asbestos dust is swallowed and goes into the bowel. There, the asbestos fibers behave in the intestinal mucosa as they do in the bronchial lining, and the result is a similar irritation of the covering of the bowel. According to Dr. Conklin, not everyone who develops asbestosis develops mesothelioma, and it is not necessary to have asbestosis to have mesothelioma. Mesothelioma is not caused by smoking, and the prevalent opinion is that the only apparent cause of mesothelioma is exposure to asbestos. Dr. Conklin stated that asbestosis and mesothelioma are two separate diseases, but both are caused by exposure to asbestos.

Dr. Conklin first saw the decedent in April 1971, at the Mennonite Hospital as a consultation with Dr. McGinnes. The decedent was hospitalized by Dr. McGinnes on April 22, 1971, because the decedent had had a cough of six weeks’ duration, had had chest pain for 8 to 10 months’ duration, and had had shortness of breath of increasing severity for five years. At the time of Dr. Conklin’s first visit with the decedent, the decedent’s occupational history was that he had worked for 17 years as a foreman in a factory where he was exposed to large quantities of asbestos dust. In addition, the decedent had smoked over a pack of cigarettes every day for 28 years. In July 1972, Dr. Conklin diagnosed the decedent’s condition as generalized pulmonary fibrosis due to asbestosis.

Dr. Conklin continued to treat the decedent from 1971 until 1984, and in May 1984, the decedent complained of constipation and had developed a right inguinal hernia. In July of 1984, the decedent continued to lose weight, had developed an abdominal wall mass and had evidence of ascites (fluid in the abdomen). It was Dr. Conklin who had had the decedent admitted to Mennonite Hospital on July 10, 1984. On July 17, 1984, Dr. Conklin excised the abdominal wall mass and drained 1,600 milliliters of serous peritoneal fluid from the decedent’s abdomen.

Dr. Conklin testified that a buildup of fluid is associated with the disease of mesothelioma. The report of the pathologist following the decedent’s surgery indicated that the abdominal mass was a malignant tumor consistent with malignant mesothelioma. From this information, Dr. Conklin determined that the decedent had peritoneal mesothelioma, and that at the time of the discovery of the disease, the mesothelioma was well advanced. When questioned about the rate that mesothelioma progresses, Dr. Conklin responded that it progressed at variable rates. Although Dr. Conklin could not determine how long the decedent had had the mesothelioma, it appeared that the rate of progression of the decedent’s mesothelioma was quite rapid due to the short time from the time of its discovery in July of 1984 until the decedent’s death in August of 1984.

Dr. Conklin described how mesothelioma progresses. He stated that mesothelioma thickens the bowel wall such that peristalsis of the intestines is ineffective. After that, constipation and an inability to eat develop. In addition, protein-rich fluid forms in the peritoneum and this saps the body of nutrition and accelerates debilitation and death. In effect, a person wastes away.

In Dr. Conklin’s opinion, the mesothelioma was the primary cause of the decedent’s death. Dr. Conklin stated that the latency period (the time from the first exposure until the first symptoms arise) for mesothelioma is quite variable and the latency period can be as long as 40 years where exposure to the asbestos is light. The rate at which mesothelioma develops in a person depends on the amount of asbestos to which the person is exposed and the individual’s susceptibility. Therefore, even though it was 13 years from the decedent’s last exposure to asbestos until the mesothelioma was diagnosed, this time period had no effect on the causal connection between the exposure to the asbestos and the development of the mesothelioma.

The respondent presented no testimony, but introduced several documents into evidence. The documents submitted by the respondent consisted of the circuit court’s order regarding the occupational diseases claim for asbestosis filed by the decedent with the Industrial Commission and the supreme court’s decision in the appeal therefrom; an affidavit of the respondent’s insurer in which a schedule of the disability payments paid to the decedent was given; the complaint filed on March 13, 1980, and the supreme court decision in the claimant’s loss of consortium case (case number 80—L—52); the claimant’s release of judgment in her loss of consortium case; and documents reflecting the claimant’s partial recovery in case number 86—L—128 (the wrongful death action filed by the claimant). No additional evidence was presented at the review hearing before the Industrial Commission.

We first consider the respondent’s contention that the Industrial Commission erroneously determined that the claimant had an independent cause of action for her husband’s work-related death under the Workers’ Occupational Diseases Act. The respondent argues that the Industrial Commission and the circuit court erroneously relied on and extended the ruling set forth in A.O. Smith Corp. v. Industrial Comm’n (1985), 109 Ill. 2d 52, 485 N.E.2d 335, a case in which the widow was found to have an independent cause of action for death benefits under the Workers’ Compensation Act, even though her deceased husband had received disability payments during his lifetime. The respondent contends that while the court’s ruling in A.O. Smith Corp. was based upon the distinctions of the language of “fatal cases” and “non-fatal cases” found in sections 7 and 8 of the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, pars. 138.7, 138.8), the respondent asserts that provisions • similar to sections 7 and 8 of the Workers’ Compensation Act do not appear in the Workers’ Occupational Diseases Act. From this, the respondent concludes that section 7 of the Workers’ Occupational Diseases Act is controlling. (Ill. Rev. Stat. 1983, ch. 48, par. 172.42.) The respondent asserts that section 7 of the Workers’ Occupational Diseases Act does not specifically provide for a widow’s separate cause of action, but that that section states that the employee’s dependents share the same cause of action as the employee. Without elaborating, except to point out that sections 7 and 8 of the Workers’ Compensation Act are different from section 7 of the Workers’ Occupational Diseases Act, it appears that the respondent is asking this court to make a tortured interpretation of section 7 of the Workers’ Occupational Diseases Act, and to find that a widow has no independent cause of action for death benefits under the Workers’ Occupational Diseases Act. However, both the case law and the rules of statutory construction would mandate against such a finding.

In construing a statute, it is a primary rule of construction that a court is to ascertain and give effect to the true intent and meaning of the legislature. (Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 504 N.E.2d 84; Patton v. Industrial Comm’n (1986), 147 Ill. App. 3d 738, 498 N.E.2d 539.) To determine the legislative intent, a court must first consider the language of the statute itself, and if the language is clear, the statute will be given effect without resorting to other aids. (Patton, 147 Ill. App. 3d 738, 498 N.E.2d 539.) We find that the language of section 7 of the Workers’ Occupational Diseases Act is clear on its face, and that the legislature intended a spouse to have an independent cause of action for death benefits in those cases where the employee died as a result of a work-related occupational disease.

Section 7 of the Workers’ Occupational Diseases Act provides in pertinent part as follows:

“If any employee sustains any disablement, impairment, or disfigurement, or dies and his or her disability, impairment, disfigurement or death is caused by a disease aggravated by an exposure of the employment or by an occupational disease arising out of and in the course of his or her employment, such employee or such employee’s dependents, as the case may be, shall be entitled to compensation, medical, surgical, hospital and rehabilitation care, prosthesis, burial costs, and all other benefits, rights and remedies, in the same manner, to the same extent and subject to the same terms, conditions and limitations, except as herein otherwise provided, as are now or may hereafter be provided by the ‘Workers’ Compensation Act’ for accidental injuries sustained by employees arising out of and in the course of their employment *** and for this purpose the disablement, disfigurement or death of an employee by reason of an occupational disease, arising out of and in the course of his or her employment, shall be treated as the happening of an accidental injury.” Ill. Rev. Stat. 1983, ch. 48, par. 172.42.

From the language of the foregoing statute, the legislature provided that either the “employee or the employee’s dependents, as the case may be,” is entitled to all of the benefits provided by the Workers’ Compensation Act. The use of the word “or” in this phrase is disjunctive, which implies that a separate cause of action can be maintained for either the employee himself or for his dependents, or for both, and depending on who has brought the cause of action, either is entitled to all of the benefits provided for in the Workers’ Compensation Act. Additionally, the respondent does not dispute a dependent’s right to death benefits under the Workers’ Compensation Act, and since an employee, suffering from an occupational disease and an employee’s dependents are entitled to all of the benefits of the Workers’ Compensation Act, then, under section 7 of the Workers’ Occupational Diseases Act, the claimant here had an independent cause of action for death benefits that was separate and distinct from the decedent’s claim for disability benefits which was brought during his lifetime, and this would be so regardless of whether the decedent’s disability benefits for PPD were received for the same occupational disease or a different occupational disease that caused his death. (See A.O. Smith Corp., 109 Ill. 2d 52, 485 N.E.2d 335; General American Life Insurance Co. v. Industrial Comm’n (1983), 97 Ill. 2d 359, 454 N.E.2d 643.) That the claimant here had an independent cause of action for the death benefits separate from the decedent’s disability benefits is reinforced by the fact that the decedent’s disability claim brought during his lifetime was for asbestosis, while the claimant’s claim for death benefits was for the decedent’s death due to mesothelioma. According to the record presented in this case, both the asbestosis and the mesothelioma were separate diseases which were caused by an exposure to asbestos. Therefore, the Industrial Commission and the court were correct when they determined that the claimant had an independent cause of action for death benefits.

The next issue raised by the respondent is that the statute at the date of the decedent’s day of last exposure to the asbestos (1971), rather than the statute that was in effect at the time of the decedent’s death (1984), is the statute which should have been applied in this case to determine the claimant’s substantive rights. It is clear that if the 1971 statute were applied in this case, the substantive rights of the parties would be greatly affected, due to the 13-year difference between the date of the decedent’s last exposure to the asbestos and his death. The respondent claims that the 1971 statute should have been applied as the date of last exposure is synonymous with the date of injury.

Again, the language of the statute and the case law are dispositive of this issue. Section 7 of the Workers’ Occupational Diseases Act states that the “disablement, disfigurement or death of an employee by reason of an occupational disease *** shall be treated as the happening of an occupational injury.” (Ill. Rev. Stat. 1983, ch. 48, par. 172.42.) If the legislature had intended the date of last exposure to the hazard of an occupational disease to be the date of the injury, it would have so stated, as it used the phrase “day of last exposure” in other portions of the statute.

In addition, the case law has held that the date of injury in a death-benefit claim is the date of the employee’s death as this is when the injury occurred to the employee’s dependents. (A.O. Smith Corp., 109 Ill. 2d 52, 485 N.E.2d 335.) Further, it is the date of the injury which determines which statute is to be applied in awarding benefits. (A.O. Smith Corp., 109 Ill. 2d 52, 485 N.E.2d 335; Grigsby v. Industrial Comm’n (1979), 76 Ill. 2d 528, 394 N.E.2d 1173.) Thus, since the date of the claimant’s injury was the date of the decedent’s death, August 22, 1984, the Commission properly applied the 1984 statute in determining the claimant’s benefits.

The respondent’s third issue is that the Workers’ Occupational Diseases Act does not provide for a “fictitious minimum rate,” and that the Commission erred when it applied the minimum rate schedule found in sections 7 and 8 of the Workers’ Compensation Act. The respondent argues that section 10 of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1983, ch. 48, par. 172.45) takes precedence over sections 7 and 8 of the Workers’ Compensation Act, and that section 10 is dispositive as to the rate of compensation to which the claimant is entitled. Again, the respondent’s reading of the statute is misplaced.

Section 10 of the Workers’ Occupational Diseases Act provides the formula for computing the employee’s average weekly wage, but it is sections 7 and 8 of the Workers’ Compensation Act which determine the rate of compensation to be awarded after this calculation is made. In section 10 of the Workers’ Occupational Diseases Act, it is stated that the average weekly wage of an employee shall be computed on the annual earnings of the disabled person for his continuous employment with the same employer for the “year next preceding the day of last exposure.” (Ill. Rev. Stat. 1983, ch. 48, par. 172.45.) Here, the Commission properly applied the formula provided in section 10, and determined that the decedent’s average weekly wage was $168.46 based on the decedent’s annual earnings for the year preceding April 2, 1971. If, as the respondent argues, section 10 is totally dispositive of the rate of compensation to be paid the claimant, then no further calculation would be necessary and the weekly benefits to which the claimant would be entitled would be $168.46.

However, a review of the Workers’ Occupational Diseases Act and the Workers’ Compensation Act reveals that section 10 of the Workers’ Occupational Diseases Act is comparable to section 10 of the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.10), in that both of these sections only provide the method of determining the employee’s average weekly wage which forms the basis for the further computation of the rate of compensation. After the average weekly wage is computed, section 10 in each of the Acts ultimately refers back, either directly or indirectly, to sections 7 and 8 of the Workers’ Compensation Act for the determination of the rate of compensation to be paid a claimant. Section 10 of the Workers’ Occupational Diseases Act refers to sections 7 and 8 of the Workers’ Occupational Diseases Act, and section 7 of the Workers’ Occupational Diseases Act states that a claimant is entitled to all compensation provided under the Workers’ Compensation Act, thereby indirectly incorporating sections 7 and 8 of the Workers’ Compensation Act. Since we have previously concluded that the 1984 statute applied to determine the claimant’s rate of compensation, the Commission properly applied the statutory minimum rate of compensation provided in these sections in the Workers’ Compensation Act at that time.

The last issue of the respondent to be considered is that the circuit court erroneously denied it credit for the $93,750 received by the claimant for her loss of consortium claim brought by her in 1980 against the North American Asbestos Corp. for her injury caused by her husband’s asbestosis. The respondent also mentions that it is entitled to credit for the disability payments paid to the decedent during his lifetime; however, it is unclear whether the respondent is seeking review of this point. The respondent appears to concede in its brief that it is not entitled to credit for the PPD paid to the decedent, but, after seemingly conceding this point, the respondent states that the claimant’s death benefits should be reduced by the amount of the PPD paid to the decedent during his lifetime. In any event, the respondent failed to comply with Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)) on this point as it did not support this bare allegation with citation to any authority or with an argument. Because the respondent failed to comply with Supreme Court Rule 341(e)(7), this court need not consider whether the respondent was entitled to credit for the PPD payments made to the decedent during his lifetime (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387), and we need only consider the respondent’s claim for credit for the claimant’s loss of consortium proceeds.

The respondent contends that it is entitled to credit for the claimant’s proceeds pursuant to section 5(b) of the Workers’ Occupational Diseases Act. (Ill. Rev. Stat. 1983, ch. 48, par. 172.40(b).) Section 5(b) states in pertinent part as follows:

“Where the disablement or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under the Act. In such case, however, if the action against such other person is brought by the disabled employee or his personal representative and judgment is obtained and paid or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative, including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.
* * *
If the disabled employee or his personal representative agrees to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.” (Ill. Rev. Stat. 1983, ch. 48, par. 172.40(b).)

It is plain from the language of section 5(b) that only the proceeds from a third-party action brought by the employee or the employee’s personal representative are subject to reimbursement by the employer for compensation payments paid. Here, the proceeds against which the employer seeks reimbursement were neither paid to the employee nor to his personal representative as the claimant’s loss of consortium action was brought in her own behalf, just as her claim for death benefits was likewise brought in her own behalf. Because the proceeds the claimant received were not obtained for the employee or the employee’s personal representative, no lien or claim for reimbursement for the claimant’s loss of consortium proceeds could attach on the employer’s behalf under section 5(b), and the circuit court properly denied the respondent credit. See Page v. Hibbard (1987), 119 Ill. 2d 41, 518 N.E.2d 69; Dillon v. Nathan (1956), 10 Ill. App. 2d 289, 135 N.E.2d 136.

For the foregoing reasons, the judgment of the circuit court of McLean County is affirmed.

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.


author: JUSTICE BARRY

text:
      In re MARRIAGE OF CASEY (The Department of Public Aid, Intervenor-Appellant, v. Leon R. Casey, Respondent-Appellee).
    Third District
    No. 3—89—0276
    Opinion filed May 22, 1990.
    Neil F. Hartigan, Attorney General, of Springfield (William H. London, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Ronald Caneva, of Lockport, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The trial court denied the intervenor Illinois Department of Public Aid’s (Department’s) petition for rule to show cause why the respondent, Leon Casey, should not be held in contempt for failing to pay $120 in. weekly support to the petitioner, Patricia Casey. The trial court also modified the amount of support the respondent was required to pay under the parties’ divorce judgment and reduced the amount of his arrearage under that judgment. The Department appeals.

The record reveals that on January 31, 1978, the parties were granted a judgment for the dissolution of their marriage. Pursuant to the judgment, the respondent was ordered to pay the petitioner $80 per week in child support and $40 per week in maintenance.

In 1981, the Department brought an action under the Revised Uniform Reciprocal Enforcement of Support Act (URESA) (Ill. Rev. Stat. 1987, ch. 40, par. 1201 et seq.) on behalf of the petitioner to compel the payment of the respondent’s support obligations. Following a hearing, the trial court found that, based upon the respondent’s income at the time, he was only required to pay “$40 per week current support.”

On December 22, 1988, the Department filed a petition to intervene, seeking modification of the support order granted in the divorce judgment. The Department also filed a petition for rule to show cause. The second petition alleged that under the divorce judgment the respondent was ordered to pay $120 in support and maintenance to the petitioner, and that as of October 19, 1988, he was $41,960 in arrears.

The trial court granted the Department’s petition to intervene, but denied its petition for rule to show cause. In denying the petition, the court found that based upon the judgment rendered in the URESA proceeding, the respondent was only required to pay $40 per week and not the $120 ordered in the divorce judgment. The court further found that at the rate of $40 per week, the respondent’s total arrearage was $11,140. The court ordered the respondent to continue paying $40 per week and nothing toward the arrearage.

The Department argues on appeal that the trial court erred in modifying the underlying divorce judgment based solely upon the URESA judgment, since by law that judgment could not supersede or modify the divorce judgment. We agree.

A URESA proceeding is a separate, independent action to enforce support obligations, and remedies provided under the act are in addition to and not in substitution of any other remedies. (People ex rel. Oetjen v. Oetjen (1980), 92 Ill. App. 3d 699, 416 N.E.2d 278.) Section 31 of URESA provides in relevant part: “A support order made by a court of this State pursuant to this Act does not nullify and is not nullified by a support order made by a court of this State pursuant to any other law or by a support order made by a court of any other state ***. Amounts paid for a particular period pursuant to any support order made by the court of another state shall be credited against the amounts accruing or accrued for the same period under any support order made by the court of this State.” Ill. Rev. Stat. 1987, ch. 40, par. 1231.

Under URESA, a responding court may enter a decree for an amount of prospective child support that differs from the amount previously ordered by the initiating court. (Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, 424 N.E.2d 957.) However, a support order issued pursuant to URESA does not supersede any previous order of support. In re Marriage of Gifford (1988), 122 Ill. 2d 34, 521 N.E.2d 929.

In the instant case, the trial court relied solely upon the URESA judgment in reaching its decision. It failed to consider the respondent’s support obligations under the prior divorce judgment, which was not in any way modified or superseded by the subsequent judgment rendered in the URESA proceeding. Though the respondent is entitled to a credit against the amount of arrearage due under the divorce judgment for the support he paid under the URESA judgment, his original obligations under the divorce judgment remain and any arrearage continues accumulating. (See In re Marriage of Gifford (1988), 122 Ill. 2d 34, 521 N.E.2d 929.) Therefore, we find that the trial court erred when it relied upon the URESA judgment to modify the respondent’s support obligations under the divorce judgment.

The judgment of the circuit court of Will County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE GORMAN

text:
    WAYNE STARR, as Ex’r of the Estate of Clarence Starr, Plaintiff-Appellee, v. ELIZABETH ANN LEININGER, Defendant (Moline Nursing and Rehabilitation Center, Defendant-Appellant).
    Third District
    No. 3—89—0603
    Opinion filed May 22, 1990.
    Daniel Bonnett, of Lousberg, Kopp & Bonnett, of Rock Island, for appellant.
    Francis Van Hooreweghe, of Van Hooreweghe, Fackel & Thuline, of Moline, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

An employee of the Moline Nursing and Rehabilitation Center (MNRC) stole a ring valued at $2,500 from a resident at the facility. Plaintiff Wayne Starr, as executor of the estate of Clarence Starr, brought suit against MNRC to recover the amount of the ring. The trial court entered judgment in favor of the plaintiff and the defendant appeals. We reverse.

MNRC operates a long-term residential, extended-care nursing facility in Moline, Illinois. On November 21, 1988, Clarence Starr was admitted to MNRC by his wife. At the time he was admitted to MNRC, Mr. Starr was incoherent. Debra Slater, admissions director for MNRC, admitted Mr. Starr. Slater testified that she reviewed the rules and regulations of MNRC with Mrs. Starr. Slater noticed a diamond ring on Mr. Starr’s finger. Slater informed Mrs. Starr that the rules and regulations of MNRC warned against keeping valuables, particularly jewelry, in a resident’s room. It was Slater’s opinion that Mrs. Starr understood the rules and regulations and the warning about the jewelry.

The ring disappeared sometime between 2 p.m. on November 23, 1988, and 8 p.m. November 24, 1988. After Mrs. Starr reported the ring missing to the MNRC administration, an investigation into its disappearance was conducted. The investigation proved fruitless.

Subsequently, administrators at MNRC were tipped off that Elizabeth Leininger, a nurse’s aide at MNRC, had stolen the ring. This information was communicated to the Moline police department, and MNRC fully cooperated with the police in their investigation. Leininger was subsequently arrested for the theft of the ring and pleaded guilty. The ring was never recovered and Leininger was ordered to make restitution in the amount of $2,500.

Mark Leafgreen, administrator at MNRC, testified that Leininger was hired as a certified nurse’s aide. As part of the hiring process, MNRC contacted at least one of Leininger’s previous employers listed on the job application for purposes of obtaining a reference.

At trial, the plaintiff argued that the facility was liable for property damage under the theory of respondeat superior and for negligent hiring practices. Additionally, the plaintiff argued that MNRC violated certain provisions of the Nursing Home Care Reform Act of 1979 (the Act) (Ill. Rev. Stat. 1987, ch. 111½, par. 4151 et seq.). The trial court held for the plaintiff and the defendant appeals.

The first issue is whether MNRC is liable for damages sustained by the plaintiff as a result of a theft committed by one of its employees.

Under the doctrine of respondeat superior, an employer may be liable for the negligent, wilful, malicious or even criminal acts of its employees when such acts are committed in the course of employment and in furtherance of the business of the employer. However, the employer is not liable to an injured third party where the acts complained of thereby were committed solely for the benefit of the employee. Webb v. Jewel Cos. (1985), 137 Ill. App. 3d 1004, 1006, 485 N.E.2d 409.

In the case before us, the theft of the ring was not in furtherance of the business of the employer. Additionally, the employer did not benefit from the theft. Accordingly, we are of the opinion that MNRC cannot be held liable under respondeat superior for Leininger’s act.

The second issue questions whether the Act imposes strict liability upon owners and operators of nursing homes for property damage sustained by a patient resulting from a theft committed by a nursing home’s employees. We conclude that it does not.

Section 3—601 of the Act provides that “[t]he owner and licensee are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident.” (Ill. Rev. Stat. 1987, ch. 111½, par. 4153—601.) Interpreting the word “injures” broadly, the plaintiff contends that Clarence Starr was injured when his personal property was stolen by the defendant’s employee and therefore MNRC is liable. The plaintiff is unable to cite any cases that have interpreted this portion of the Act in such a manner, and our research has failed to uncover authority to support such an interpretation. We reject the plaintiff’s interpretation of the Act and hold that “injures” refers to personal injuries suffered by a resident.

The General Assembly enacted the Act amid concern over reports of “inadequate, improper and degrading treatment of patients in nursing homes.” (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 358, 489 N.E.2d 1374, quoting Senate Debates, 81st Ill. Gen. Assem., May 14, 1979, at 184 (statement of Senator Karl Berning).) The primary purpose of the Act is to provide a nursing home resident with certain rights. Ill. Rev. Stat. 1987, ch. 111½, pars. 4152—101 through 4152—113.

Section 2—103 is entitled “Personal property.” This section provides, in pertinent part:

“The facility shall provide adequate storage space for the personal property of the resident. The facility shall provide a means of safeguarding small items of value for its residents in their rooms or in any other part of the facility so long as the residents have daily access to such valuables. The facility shall develop procedures for investigating complaints concerning theft of residents’ property and shall promptly investigate all such complaints.” Ill. Rev. Stat. 1987, ch. 111½, par. 4152—103.

MNRC complied with the Act by providing a place for residents to store personal property and promptly investigated the complaint when the ring was discovered missing. We are of the opinion that the legislature did not intend to make nursing homes insurers of their residents’ personal property.

The decision of the circuit court of Rock Island is reversed.

Reversed.

HEIPLE, P.J., and SCOTT, J., concur.