author: JUSTICE CLARK

text:
    (No. 54308, 54373 cons.
    RONALD ELLIOTT et al., Ex’rs, et al., Appellants and Appellees, v. HILDA WILLIS et al., Appellees and Appellants.

      Opinion filed September 30, 1982.

    Modified on denial of rehearing November 24, 1982.

      Ronald N. Hanley, of Hanley, Traub & Hanley, of Fairbury, for appellants and appellees Ronald Elliott et al.

    Costigan & Wollrab, of Bloomington, for appellees and appellants Hilda Willis et al.

    George M. Elsener, Miles N. Beermann, and Susan L. Brody, of Chicago, for amicus curiae Illinois Trial Lawyers Association.
   JUSTICE CLARK

delivered the opinion of the court:

On April 13, 1976, Paul Elliott was killed as a result of a collision between the automobile he was driving and a pickup truck driven by defendant Hilda Willis. The executors of the estate filed a wrongful death action in the circuit court of McLean County pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 2) against Hilda Willis and her daughter, Carol, whose truck Hilda was driving at the time of the accident. Verla Elliott, Mr. Elliott’s widow, also brought suit individually for her own personal injuries.

During the conference on jury instructions the defendants tendered defendants’ instruction No. 3 to the trial court. This is a modification of Illinois Pattern Jury Instruction (IPI), Civil, No. 31.07 (2d ed. 1971). It read:

“In determining ‘pecuniary injuries’ you may not consider the following factors:
1. The pain and suffering of the decedent;
2. The loss of decedent’s society by the widow and next of kin;
3. The grief or sorrow of the widow and next of kin.”
(Emphasis added.)

The plaintiffs objected to the language in paragraph 2. The instruction was given by the court over the plaintiffs’ objection.

The jury returned verdicts awarding Verla Elliott $50,182.50 for her own personal injuries and awarded the estate $4,500 (stipulated prior to trial to be the value of Paul Elliott’s car).

A judgment order was entered by the trial judge on February 20, 1979, and modified without objection on February 22, 1979. On February 23, 1979, a post-trial motion was filed by the estate requesting a trial on damages only or a new trial on all issues. A hearing was held on March 19, 1979, at which time the post-trial motion filed by the estate was denied. The estate immediately filed a notice of appeal.

On March 20, 1979, the defendants filed a post-trial motion seeking relief from both judgments. A hearing was held on March 29, 1979, and the defendants’ motion was denied. Defendants filed their notice of appeal on April 10, 1979.

The appellate court on its own motion found that the defendants’ notice of appeal was not timely filed and dismissed their appeal. (89 Ill. App. 3d 1144.) The appellate court agreed with the estate’s assertion on appeal that the verdict was too low as a matter of law. The appellate court also found that the jury should have been instructed concerning Verla Elliott’s loss of consortium. The plaintiff estate has also complained on appeal that the trial court erred in refusing to instruct the jury on loss of accumulation to the estate caused by the payment of estate taxes. The appellate court concluded that the trial court was correct in its refusal to instruct the jury concerning the estate’s loss of accumulation. We granted separate petitions for leave to appeal filed by the estate and defendants.

Section 2 of the Wrongful Death Act provides:

“Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.” (Ill. Rev. Stat. 1975, ch. 70, par. 2.)

The plaintiffs had asked the trial court that the jury be instructed that they should, in assessing damages, consider the reasonable value of the society, companionship and conjugal relationship that Verla Elliott had with her husband and which she has been deprived of because of his death. The trial court refused to tender that instruction. Thus the question with which we are faced is whether loss of consortium is compensable as a “pecuniary injur[y]” under the Wrongful Death Act.

The estate and defendants agree that consortium is unique to a marriage partner (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162). It includes society, guidance, companionship, felicity, and sexual relations. Dini v. Naiditch (1960), 20 Ill. 2d 406; see Hall v Gillins (1958), 13 Ill. 2d 26.

Hall v. Gillins (1958), 13 Ill. 2d 26, and Knierim v. Izzo (1961), 22 Ill. 2d 73, where this court previously examined common law actions brought to recover for loss involving destruction of the family unit, are particularly helpful. The court reasoned in both of those decisions that since the remedy sought in each case was not significantly different from the statutory remedy available under the Wrongful Death Act, which allows compensation for “pecuniary injuries,” a common law action in tort would not be recognized.

In Hall v. Gillins (1958), 13 Ill. 2d 26, the child and widow of the decedent brought a common law action alleging deprivation of the support, companionship, guidance, advice and affection of the father and husband. In addressing the issue of recoverable damages the court said:

“The gap between the ‘damages for destruction of the family unit’ that plaintiffs claim, and the ‘just compensation with reference to the pecuniary injuries resulting from such death’ that the statute allows, is not so wide as the words used would suggest. The term ‘pecuniary injuries’ has received an interpretation that is broad enough to include most of the items of damage that are claimed by the plaintiffs in this case. *** The broad scope of the phrase ‘pecuniary injuries’ is further shown by those cases which hold that in the case of a child the jury may take into account the loss of instruction and moral, physical and intellectual training brought about by the death of the father. Goddard v. Enzler, 222 Ill. 462; Ittner Brick Co. v. Ashby, 198 Ill. 562; Illinois Central Railroad Co. v. Weldon, 52 Ill. 290.” 13 Ill. 2d 26, 31.

In Knierim v. Izzo (1961), 22 Ill. 2d 73, 82-83, the court relied upon Hall in finding “that the differences between an action for loss of consortium resulting from the death of a husband and an action for pecuniary loss under the Wrongful Death Act are not sufficiently significant to warrant us recognizing the action for loss of consortium as an additional remedy available to the widow.”

In addressing the loss of consortium issue in Knierim the court reiterated our words in Hall that “ '*** [t]he term “pecuniary injuries” has received an interpretation that is broad enough to include most of the items of damage that are claimed by the plaintiffs in this case.’ ” (22 Ill. 2d 73, 82.) While neither Knierim nor Hall explicitly held that loss of consortium was to be considered by the jury in deciding what the appropriate amount of damages was, it is apparent that the court denied the common law counts in both actions because the remedy available in the preemptive wrongful death statute allowed compensation for the injuries alleged.

The defendants rely upon Howlett v. Doglio (1949), 402 Ill. 311, to support their assertion that “pecuniary injuries” under the Wrongful Death Act does not include loss of consortium. The dissenting justice in the appellate court also buttressed his opinion with the language of Howlett. The plaintiff in Howlett v. Doglio (1949), 402 Ill. 311, brought suit under the Liquor Control Act (Ill. Rev. Stat. 1947, ch. 43, par. 135) to recover damages for the death of her daughter. The court held that the plaintiff did not sustain an injury within the ordinary meaning of section 14 of article VI of the Liquor Control Act (Ill. Rev. Stat. 1947, ch. 43, par. 135). The court compared damages recoverable under the Liquor Control Act with the damages available under the Wrongful Death Act (Ill. Rev. Stat. 1947, ch. 70, par. 2). The majority, in dicta, recognized that under the Wrongful Death Act a presumption of pecuniary loss exists where the next of kin are lineal heirs and that the familial relationship by itself is enough to sustain a judgment awarding substantial damages, without proof of actual loss. (Howlett v. Doglio (1949), 402 Ill. 311; Wilcox v. Bierd (1928), 330 Ill. 571; Dukeman v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1908), 237 Ill. 104.) The court then said:

“The expression ‘pecuniary injuries,’ employed in the Wrongful Death Act, refers to a measurement of damages and is not synonymous with ‘injury in property,’ appearing in the Dram Shop Act. As pointedly observed in Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, ‘A pecuniary loss or damage must be one which can be measured by some standard. It is a term employed judicially, ‘not only to express the character of the loss of the beneficial plaintiff which is the foundation of recovery, but also to discriminate between a material loss which is susceptible of pecuniary valuation, and that inestimable loss of the society and companionship of the deceased relative upon which, in the nature of things, it is not possible to set a pecuniary valuation.’ Patterson, Railway Accident Law, par. 49.” (402 Ill. 311, 316-17.)

That observation was implicitly overruled in Hall and Knierim and is inconsistent with this court’s holding in Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 160, as well as the United States Supreme Court’s decision in Sea-Land Services, Inc. v. Gaudet (1974), 414 U.S. 573, 39 L. Ed. 2d 9, 94 S. Ct. 806.

In Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, cert denied (1956), 352 U.S. 937, 1 L. Ed. 2d 170, 77 S. Ct. 219, the court, in construing the Wrongful Death Act (Ill. Rev. Stat. 1951, ch. 70, par. 2), said that it has been repeatedly held that the jury may award damages for such intangibles as the decedent’s felicity and care as a father (8 Ill. 2d 164, 179). The court looked to Miller v. Southern Pacific Co. (1953), 117 Cal. App. 2d 492, 256 P.2d 603, where a jury’s award was upheld for children’s loss of the father’s guidance, attention, advice, training, and instruction. This court had also previously upheld awards for a child’s loss of instruction and training due to the death of the father. (Goddard v. Enzler (1906), 222 Ill. 462; Anthony Ittner Brick Co. v. Ashby (1902), 198 Ill. 562.) Since we have said that the felicity and care of a father are capable of evaluation as “pecuniary injuries” under the Wrongful Death Act, we are compelled to conclude that the companionship and conjugal relationship of a spouse are equally compensable as “pecuniary injuries.”

In Gaudet the United States Supreme Court permitted recovery for loss of society in aligning the maritime wrongful death remedy with a majority of States’ wrongful death statutes and incorporated one commentator’s observation that “ ‘[wjhether such damages are classified as “pecuniary” or recognized and allowed as non-pecuniary, the recent trend is unmistakably in favor of permitting such recovery.’ ” (Sea-Land Services, Inc. v. Gaudet (1974), 414 U.S. 573, 587, 39 L. Ed. 2d 9, 22 S. Ct. 806, 816, quoting S. Speiser, Recovery for Wrongful Death 218 (1966).) The court expressly took notice that the wrongful death statutes of California, Delaware, Michigan, Minnesota, Montana, Pennsylvania, Texas, and the Virgin Islands all limit recovery to pecuniary losses; and all have been construed by those States’ courts as permitting recovery for the pecuniary value of the decedent’s society. (Sea-Land Services, Inc. v. Gaudet (1974), 414. U.S. 573, 587, 39 L. Ed. 2d 9, 22, 94 S. Ct. 806, 816.) South Dakota in Anderson v. Lale (1974), 88 S.D. 111, 216 N.W.2d 152, has also permitted recovery for loss of companionship and society as pecuniary losses under the South Dakota wrongful death act. See S. Speiser, Recovery for Wrongful Death sec. 3:49 (2d ed. 1975).

The appellate court in Kaiserman v. Bright (1978), 61 Ill. App. 3d 67, affirmed the dismissal of one count in a complaint that sought compensation for loss of society in a wrongful death action. There the appellate court correctly noted that the term “pecuniary injuries” is broadly construed and a widow is presumed to incur such losses without proof of actual loss. However, the court then incorrectly cited Zostautas v. St. Anthony De Padua Hospital (1961), 23 Ill. 2d 326, finding that this court had “specifically refused to include within the scope of pecuniary losses any recovery for loss of society” (61 Ill. App. 3d 67, 70).

In Zostautas the parents of a five-year-old boy brought an action for breach of contract and a claim under the Wrongful Death Act (Ill. Rev. Stat. 1959, ch. 70, par. 1) to recover damages for the death of their son, who died while undergoing a tonsillectomy. The court said that the parents’ mental anguish was not recoverable in a wrongful death action. We agree with the appellate court in this case that the loss of the decedent’s society, companionship and conjugal relations is sufficiently distinct from bereavement to distinguish this action from the complaint in Zostautas. This court held in Zostautas that a plaintiff could maintain a cause of action under the Wrongful Death Act and recalled the words of Justice Cardozo that “[i]t would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied.” Van Beeck v. Sabine Towing Co. (1937), 300 U.S. 342, 350-51, 81 L. Ed. 685, 690, 57 S. Ct. 452, 456-57.

The plaintiff in Zostautas did not object to the proffered jury instruction stating that, in determining pecuniary injuries, the grief or sorrow of the widow and next of kin cannot be considered. To allow a plaintiff to recover damages for emotional distress brought on by the decedent’s death is different from allowing compensation for the benefits of the companionship that the widow would have enjoyed had her husband not died.

It is true that damages for loss of consortium are not capable of being given the detailed in-depth analysis that an expert can be called upon to testify about in calculating a decedent’s professional worth where future earnings of an individual employed in a particular field can be measured with precision and particularity. Just the same the damages for loss of a husband’s society, companionship and sexual relations are not immeasurable. All of the elements that comprise what is considered to be loss of consortium may not be the most tangible items, but a jury is capable of putting a monetary worth on them. Therefore, to be consistent with the broad interpretation of “pecuniary injuries” under the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 2) we find loss of consortium to be included.

The purpose of the Wrongful Death Act is to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to the decedent’s death. (Knierim v. Izzo (1961), 22 Ill. 2d 73; Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 613.) It is intended to provide the surviving spouse the benefits that would have been received from the continued life of the decedent. The jury should have been instructed that the value of the decedent’s companionship and conjugal relations could be considered in computing the damages to be recovered.

In Smith v. City of Detroit (1972), 388 Mich. 637, 202 N.W.2d 300, the Supreme Court of Michigan reaffirmed the holding of Wycko v. Gnodtke (1960), 361 Mich. 331, 339, 105 N.W.2d 118, 122, that loss of companionship was recoverable as a pecuniary loss under the Michigan Wrongful Death Act. The court in rejecting the strict economic value measure of pecuniary loss said:

“The pecuniary value of a human life is a compound of many elements. * * * [A]n individual member of a family has a value to others as part of a functioning social and economic unit. This value is the value of mutual society and protection, in a word, companionship. The human companionship thus afforded has a definite, substantial, and ascertainable pecuniary value and its loss forms a part of the ‘value’ of the life we seek to ascertain. *** It is true, of course, that there will be uncertainties in all of these proofs, due to the nature of the case, but we are constrained to observe that it is not the privilege of him whose wrongful act caused the loss to hide behind the uncertainties inherent in the very situation Ms wrong has created.” (Wycko v. Gnodtke (1960), 361 Mich. 331, 339-40, 105 N.W.2d 118, 122-23.)

One consideration in assessing the pecuniary value of the decedent’s worth is the widow’s loss of consortium.

In view of our holding it is clear that the jury was not properly instructed on the measure of damages. The language of IPI Civil No. 31.07 that indicates that in determining “pecuniary injuries” the jury may not consider “[t]he loss of decedent’s society by the widow and next of kin” is no longer valid. In determining the pecuniary value of a spouse under IPI Civil No. 31.04 the society, companionship and conjugal relationship that constitute loss of consortium are factors that the jury may consider.

At trial the estate sought to introduce proof of the State inheritance taxes and the Federal estate taxes it was required to pay after the decedent’s death. The State inheritance and Federal estate taxes were not levied on the estate because of any wrongful conduct of the defendants. The estate, however, asserts that payment of the taxes should be considered by the jury because they were prematurely paid. The plaintiff estate urged the court to employ a loss-to-estate analysis that looks to the amount the decedent would reasonably be expected to save and accumulate (S. Speiser, Recovery for Wrongful Death sec. 3:1 (2d ed. 1975).) As we have previously noted, damages under the Wrongful Death Act are assessed in accordance with the loss to decedent’s survivors. (Ill. Rev. Stat. 1975, ch. 70, par. 2.) The test is a measurement of benefits of pecuniary value that the decedent might have been expected to contribute to the surviving spouse and children had the decedent lived. But whatever measurement is used to assess losses — loss of reasonable value of. accumulation to the estate or not — we find no support in any jurisdiction that would permit the kind of recovery asked for by the estate here. The estate seeks to recover investment income that will be lost from cashing assets to discharge the estate’s tax liability. It is not recoverable. (See Speiser, Recovery for Wrongful Death sec. 6:11 (2d ed. 1975).) The trial court acted properly in denying admission of evidence concerning the State inheritance and Federal estate taxes.

It is necessary to briefly reconstruct the procedural history of this case. Jury verdicts were entered in favor of both the estate and Verla Elliott, and the judgment was entered on February 22, 1979. On February 23, 1979, a post-trial motion was filed by the estate. The motion asked for a new trial on the issue of damages only, or in the alternative a new trial on the merits of counts I and II concerning losses to the estate. The estate complained of certain jury instructions improperly given and certain jury instructions improperly refused by the trial judge. On March 19, 1979, a hearing was conducted on the estate’s post-trial motion. The motion was denied, and counsel for the estate immediately filed a notice of appeal. On March 20, 1979, the defendants filed a post-trial motion seeking relief from both the judgment in favor of the estate and in favor of Verla Elliott. On April 10, 1979, the defendants’ post-trial motion was denied. The defendants immediately filed a notice of appeal. The appellate court ruled on its own motion that defendants' notice of appeal was not timely filed and dismissed the defendants’ appeal. The appellate court found that Rule 303 (73 Ill. 2d R. 303) completely relieves the party making a later appeal from filing a post-trial motion. Supreme Court Rule 303 provides in pertinent part:

“If a timely notice of appeal is filed and served by a party, any other party, within 10 days after service upon him, or within 30 days after the entry of judgment, whichever is later, may join in the appeal, appeal separately, or cross-appeal by filing a notice of appeal, indicating which type of appeal is being taken.”

The appellate court held that once the estate filed its notice of appeal the trial court lost all jurisdiction to pass on defendants’ post-trial motion. Prior to the appellate decision in this case, three other divisions of the appellate court (Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791; Bitzer Croft Motors, Inc. v. Pioneer Bank & Trust Co. (1980), 82 Ill. App. 3d 1; Flynn v. Cusentino (1978), 59 Ill. App. 3d 262) ruled that a post-trial motion is required even when an opposing party has filed a notice of appeal.

Section 68.1(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 68.1(3)) addresses the filing of post-trial motions in jury cases. It provides in pertinent part:

“(3) Post-trial motions must be filed within 30 days after the entry of judgment or the discharge of the jury, if no verdict is reached, or within any further time the court may allow within the 30 days or any extensions thereof.”

Supreme Court Rule 366 addresses the scope of appellate review. It provides:

“A party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” 73 Ill. 2d R. 366(b)(2)(iii).

The reasoning of Flynn, Bitzer Croft Motors, Inc. and Farwell is supported by the rationale of Rule 366 that issues must be presented to the circuit court in order to give the trial judge an opportunity to review possible errors that may have occurred. Both Farwell and Bitzer emphasize that one party’s filing of a notice of appeal under Rule 303(a) (73 Ill. 2d R. 303(a)) should not foreclose the right of another party to file a timely post-trial motion. (Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791; Bitzer Croft Motors, Inc. v. Pioneer Bank & Trust Co. (1980), 82 Ill. App. 3d 1.) That is correct. We are not operating under a race statute that would effectively deny a party a chance to bring a possible error to the trial court’s attention.

Although the jurisdiction of the appellate court attaches instanter upon the filing of a notice of appeal (City of Chicago v. Myers (1967), 37 Ill. 2d 470, 472), we find that the circuit court retained jurisdiction to hear the defendants’ post-trial motion that complained of the personal injury-award to Verla Elliott and asserted that the decedent was guilty of contributory negligence as a matter of law. (See In re Estate of Lucas (1978), 71 Ill. 2d 277, 281.) In City of Chicago v. Myers (1967), 37 Ill. 2d 470, 472, the plaintiff asked the trial court to vacate a judgment it had previously entered from which the defendant in the case had filed a proper notice of appeal. A party cannot petition a trial court to reconsider its judgment once an appeal has been properly filed from that judgment. The defendants, here, are not asking that the trial court vacate its earlier order denying the relief sought by the estate in its post-trial motion; the defendants are rather asserting that other errors were made at trial and are properly bringing the claims to the trial court so that it may first review the alleged errors. The defendants brought their post-trial motion within the prescribed 30-day limit after the trial court’s entry of judgment (Ill. Rev. Stat. 1977, ch. 110, par. 68.1(3)). Had the defendants failed to file their post-trial motion, the complained-of errors would not have been adequately preserved for the purposes of review. The plaintiff’s filing of the notice of appeal did not divest the trial court from ruling on the defendants’ timely post-trial motion concerning issues independent of those raised by the estate. The trial court denied the defendants’ post-trial motion on March 29. Notice of appeal is proper when it is filed “within 30 days after the entry of the order disposing of the [post-trial] motion.” (73 Ill. 2d R. 303(a).) Thus, the defendants’ filing of their notice of appeal on April 10 was proper.

Since the appellate court erroneously dismissed the defendants’ appeal, it is necessary for us to remand to the appellate court for consideration of the alleged errors that defendants raised in their post-trial motion of March 20, 1979, including the claim that they are entitled to a judgment as a matter of law. Unless the appellate court finds this claim has merit, the court shall remand for a new trial on the issue of damages, with directions that the jury be instructed to consider the widow’s loss of consortium. In view of this disposition, we need not consider whether the estate adequately preserved the complained-of error that the damages awarded to the estate were inadequate as a matter of law.

Finally, we hold that our affirmance of the appellate court’s holding allowing the jury to be instructed on the loss of consortium in cases brought under the Wrongful Death Act applies to this case and all claims not finally adjudicated.

Affirmed in part and reversed in part and remanded, with directions.


source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 54462.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. NOLA JEAN WEAVER, Appellee.

      Opinion filed October 22, 1982.

      WARD, J., took no part.
    Tyrone C. Fahner, Attorney General, of Springfield, and Fred Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
    Neville, Pappas & Mahoney, Ltd., of Chicago (Ronald F. Neville, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

Defendant, Nola Jean Weaver, a high school physical education teacher, was convicted by a jury of the Lake County circuit court of the murder of her husband, Larry Weaver. (Ill. Rev. Stat. 1975, ch. 38, par. 9—1(a).) She was sentenced to serve 40 to 60 years in prison. On appeal, the conviction was reversed and the cause remanded for a new trial. (90 Ill. App. 3d 299.) We granted the People’s petition for leave to appeal and now affirm the appellate court’s judgment.

Defendant’s first contention is that she was not proved .guilty beyond a reasonable doubt. Unlike many contentions of this type that reach this court, her argument is not frivolous, and therefore it must be addressed with much care.

The evidence was entirely circumstantial. At approximately 1:30 a.m., on December 5, 1977, Cindy Goodfellow, the defendant’s next-door neighbor, was awakened by the defendant, who was clad only in a nightgown and carrying her 9-year-old daughter, knocking loudly on the front door of the Goodfellow residence. Mrs. Goodfellow described the defendant as “full of panic and scared to death.” The defendant told her there was a fire at her home and asked her to call the fire department and the police. She also said there were two men in her house with guns. The details of what the defendant said about these men, however, were, on the State’s motion, excluded from Mrs. Goodfellow’s testimony as hearsay. Mrs. Goodfellow said she called the fire department and then looked out her window at the Weaver home, but saw nothing unusual, only a dark house.

The police and fire department arrived shortly. Police officers testified that they entered the home through the slightly ajar sliding glass door, the one that the defendant and her daughter used in leaving the house. Finding the door to the master bedroom to be hot to the touch, they called in the firefighters. The firemen broke the bedroom window from the outside and entered through that window. They found the bed glowing with a smoldering fire, which they extinguished with a hand-held extinguisher and a stream of water from a lW-inch fire ■ hose. On the right side of the bed, the body of the defendant’s husband, Larry Weaver, was found, lying on its back. He had been shot in the head.

Police looked around the house for evidence of what had happened. They found all the doors were locked from the inside except the sliding door the defendant had exited. There were no visible signs of tampering with either the windows or the doors. Nothing in the house was disturbed; papers on the desk were stacked in neat piles. In the garage, they found two cars, a 1975 Ford and a 1973 Oldsmobile. An officer raised the hood and felt the engine blocks of both cars. The Ford was cold to the touch, but the Oldsmobile was warm. Inside the Oldsmobile, the floor around the driver’s seat was wet, presumably from melted snow tracked into the car. Its seat was in a full forward position. It was later learned the victim was 6 feet tall and the defendant 5 feet and 7 inches. A thorough search of the house, including the basement and the crawl space, did not reveal any gun or .22-caliber ammunition, even though Larry Weaver was known to have owned a .22-caliber rifle at least as late as a month and a half before his murder. The car and the house were dusted for fingerprints. None were found. Outside, Mrs. Weaver’s eyeglasses were found in the snow in the area of the yard closest to the Goodfellow residence. Although other footprints in the snow were also found by police leading from the back of the house to the garage, not the route the defendant would have taken in her escape, no casts were made.

The State theorized that the defendant killed her husband with his own .22 rifle while he was sleeping, with bullets she obtained herself, perhaps in Arkansas, a State that does not require a gun owner’s license to purchase bullets. The family had spent Thanksgiving there. She then drove to some unknown place to dispose of the weapon and returned to burn his body. After starting the fire, she awakened her daughter and carried her over to the Goodfellow home. On her way to the Goodfellow’s, aware that the fact she had her glasses on might be incriminating, she dropped them in the snow.

The State presented evidence that the defendant was unhappy in her marriage to the victim. The victim’s sister testified that, a few weeks after the murder, the defendant told her that she had had an affair with the athletic director of the high school where she worked.

Evidence was also introduced that the defendant and her sister’s husband, Dennis Johnston, shared some sort of a relationship which Judy Johnston, the defendant’s sister, and Larry Weaver had attempted to put a stop to. On the witness stand, Dennis Johnston testified that he had been infatuated with the defendant, but because of the infatuation had moved out of the Weaver house, which he and his wife had shared with the Weavers during the summer of 1977 when the Johnstons first moved to Illinois. He also testified that on October 16, 1977, less than two months before the murder, on the day after he and his wife moved out, the Weavers came to visit them in their new apartment and that Mrs. Weaver had a red mark under her eye. The victim told him that he had beaten the defendant. He emphasized that he had beaten her, not just hit her. She had broken away from him and retrieved his rifle from the closet. According to the victim, neither he nor the defendant believed the rifle was loaded; the defendant was merely using it as a symbol. Mr. Weaver thought she was fully justified. When he grabbed the gun from her, however, it went off and a bullet lodged in the ceiling of the bedroom.

Police later found this bullet. It was not the same sort of bullet that killed the victim. The bullet used to kill the victim was copper covered, and manufacturers never mix such bullets. It was impossible to tell whether it was fired from the same gun. The State theorized that the defendant had to buy new bullets to kill her husband after this incident, because her husband threw away the bullets he had on hand.

Additionally, the State introduced evidence that the defendant would be financially benefited by her husband’s death, or at least not substantially burdened. She had a $70,000 insurance policy on his life. They owned the home they lived in, a Florida condominium and land in Arkansas and had other assets.

In order to prove that the defendant and no other actually committed the murder, the State called on Dr. Euphil Choi, the pathologist who examined the victim’s body. He testified that a bullet wound from a copper-covered .22 bullet was the cause of death and that the victim had probably died instantly. From the stipplings around the bullet hole, Dr. Choi determined the gun was very close, near contact, to the victim’s head. Because he did not know what sort of gun was used in the shooting, he was unable to state exactly how close the gun was. The doctor also stated that the fire was started “very close in time” after the shooting, but defined “very close in time” to mean anywhere from a minute to an hour. This was consistent with the State’s theory that the defendant disposed of the rifle between the shooting and the burning. On cross-examination, however, he admitted that in his grand jury testimony he had stated that the burns to the body occurred immediately after death. The doctor was unable to say whether the body was sitting, standing, or lying when the shot was fired.

The State also called on Michael Johnson, chief chemist of the Northern Illinois Police Crime Lab. He testified that he removed charred material from the legs of the victim. Upon analysis, he found it to consist of three layers of fabric: the bottom pajama material, the middle layer sheet material and the top layer white blanket material. This, the State argued, was consistent with its theory that Larry Weaver was asleep when he was shot. On cross-examination, it was admitted that, when the firemen were extinguishing the fire, they tossed burned debris out the window and that conceivably they could have thrown the material analyzed on the bed. Photographs of the bed, however, show the body in what appears to be a restful position, and no evidence that firefighters threw debris on the bed is apparent. Moreover, a photograph of the bed after the body was removed reveals that Weaver was lying directly on the bottom sheet.

The defendant’s nine-year-old daughter testified that on the evening before her father’s death, at 6 or 7 o’clock, she went to choir practice at her church. She said that her father picked her up in her mother’s car, although she did not specify the time. She said this was the last time the car was used that night. She then put on her pajamas and watched T.V. with her father, while her mother prepared play dough for her to take to school in the morning. Her parents did not bicker or fight. She went to bed at 9:30. The next thing she remembered was her mother waking her and taking her to the Goodfellow’s house. She testified that her mother was crying and that she thought that she was wearing her glasses. The witness also testified that her father owned a rifle, but that it was kept unloaded. Previously, she said, it had been kept loaded, but her father had decided to keep it unloaded.

The defendant did not testify. She called no witnesses. Instead she asked for a directed verdict in her favor.

A valid conviction may be based entirely on circumstantial evidence. (People v. Williams (1977), 66 Ill. 2d 478.) It is necessary, however, that the proof be of a conclusive nature leading, on the whole, to a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Williams (1977), 66 Ill. 2d 478.) We believe the State has met its burden in this case. The warm car-engine block, the car seat pulled up in a closer position than a person of the victim’s height may have found comfortable, the missing rifle, and the evidence that the victim was under the bed covers could justify the jury’s verdict.

The defendant does, however, cite errors that require that she be given a second trial.

The first of these concerns the trial court’s refusal to allow Mrs. Goodfellow, the defendant’s neighbor, to testify regarding what the defendant told her about the two men with guns she said had shot her husband. Apparently all the jury learned of the defendant’s story is the bare fact that she said she saw two men with guns.

The defendant makes various arguments in support of her position that the statements should have been admitted. We find one of them persuasive and therefore need not discuss the others.

She points out that the State was permitted to elicit from Mrs. Goodfellow selected statements made by the defendant. For example, Mrs. Goodfellow was allowed to testify that when she opened the door, the defendant said, “There is a fire, call the fire department and the police,” and that there were two men in her home with guns. The defendant contends that by allowing the jury to hear only part of what she said, that they may have been misled into thinking that she had given no details about the men she claimed had entered her home. Under the circumstances, this may have made jurors more likely to believe that the story was false. A person whose spouse has just been murdered by two armed intruders is likely to say more about the matter than Mrs. Goodfellow’s testimony indicated.

In People v. Nakutin (1936), 364 Ill. 563, 571, this court stated that “where a conversation is related by a witness the opposing party has a right to bring out all of the conversation on cross-examination.” (Accord, People v. Kalpak (1957), 10 Ill. 2d 411, 424; Biel v. Wolff (1970), 126 Ill. App. 2d 209; Dispenza v. Picha (1968), 98 Ill. App. 2d 110.) In view of the possibility that the jurors would be misled into thinking that the defendant has said nothing else, we believe the trial court should have allowed Mrs. Goodfellow to testify to the defendant’s statement.

The defendant’s second allegation of error concerned a failure by the State to provide discovery material. In response to a discovery request pursuant to Supreme Court Rule 412(a)(ii) (73 Ill. 2d R. 412(a)(ii)), the attorneys for the State supplied defense counsel with a copy of the grand jury transcripts. This, they indicated, contained all statements of the defendant in their possession. On the ninth day of the trial, however, the State called the victim’s sister, Pat Weaver, to the witness stand. She testified that a few weeks after the murder, while the defendant was visiting the victim’s family in Arkansas, the defendant’s mother-in-law asked the defendant if she had had an affair with the athletic director at the high school where she worked and whether the victim and the athletic director’s wife knew of it. According to Pat Weaver, the defendant replied affirmatively to both questions. Later, Pat Weaver spoke with the athletic director’s wife and she denied having known of the affair. When Pat Weaver confronted the defendant with that denial, the defendant admitted that neither Larry Weaver nor the athletic director’s wife had known.

Defense counsel asked that Pat Weaver’s testimony be stricken or that a mistrial be declared. In chambers, the assistant State’s Attorney said that she had known of the statement for about three weeks, but had inadvertently failed to inform defense counsel. She argued that defense counsel knew that Pat Weaver would testify and could have interviewed her prior to the trial. Defense counsel pointed out, however, that he was under the impression that Miss Weaver would testify as to her knowledge of Larry Weaver’s financial situation. He had no idea her testimony would concern an admission of the defendant. The next day the trial judge denied the defendant’s motion. He offered to give defense counsel an opportunity to put Miss Weaver back on the stand and cross-examine her, and told defense counsel he would be given time to talk to her first. Defense counsel declined that opportunity, saying that he could not possibly remedy the damage that way.

The State’s failure to inform defense counsel of the defendant’s alleged admission was a violation of Rule 412(a)(ii), which requires the State to disclose upon written motion “any written or recorded statements and the substance of any oral statements made by the accused ***, and a list of witnesses to the making and acknowledgment of such statements.” (73 Ill. 2d R. 412(a)(ii).) The rule encompasses not only formal statements made to the authorities but also statements made to anyone that might have bearing on the defendant’s guilt or innocence. (See People v. Greer (1980), 79 Ill. 2d 103.) It is a continuing duty. The fact the State did not learn of the alleged admission until three weeks prior to trial did not negate the duty to disclose. (73 Ill. 2d R. 415(b).) Moreover, it is a violation whether or not the State’s neglect was inadvertent or purposeful. See People v. Shegog (1976), 37 Ill. App. 3d 615, 617.

The real question here is whether the trial court erred in refusing to strike the evidence or grant a new trial. The appellate court held that it did and remanded the cause for a new trial. We agree with the appellate court’s conclusion.

Rule 415(g) (73 Ill. 2d R. 415(g)) provides an array of sanctions against a party that has failed to comply with an applicable discovery rule. The trial court may order disclosure of the information, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances. In addition, if the attorney’s violation is wilful, the court may subject the attorney himself to sanctions. In general, the judgment of the trial judge is given great weight. (People v. Wilken (1980), 89 Ill. App. 3d 1124, 1128; People v. DeBord (1978), 61 Ill. App. 3d 239, 242.) A reviewing court will find an abuse of discretion, however, when a defendant is prejudiced by the discovery violation and the trial court fails to eliminate that prejudice. People v. Millan (1977), 47 Ill. App. 3d 296, 300. See, e.g., People v Miles (1980), 82 Ill. App. 3d 922; People v. Boucher (1978), 62 Ill. App. 3d 436; People v. Young (1978), 59 Ill. App. 3d 254; People v. Szabo (1977), 55 Ill. App. 3d 866; People v. Shegog (1976), 37 Ill. App. 3d 615.

The State argues that because the defendant’s counsel did not accept the circuit court’s offer to allow him to recall Pat Weaver for further cross-examination after having an opportunity to speak with the witness on the matter, and did not himself ask for a continuance, any claim of prejudice is negated. It cites People v. Foster (1979), 76 Ill. 2d 365, to support its contention. In that case, this court held that the State’s failure to supply certain evidence to defense counsel pursuant to Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, under the circumstances of the case, did not make a new trial necessary. This court stated, “If that statement was so earthshaking as to require complete reorganization of the defendant’s case, counsel should have asked for a continuance or recess for that purpose before [the witness] testified. His failure to do so is persuasive evidence that the prejudice here alleged was in fact trivial.” 76 Ill. 2d 365, 384.

It should be noted that, in Foster, defense counsel was informed of the defendant’s alleged admission on the morning the witness testified. There was time to request a continuance before the testimony was heard. It was the possibility of such a motion this court was referring to. In the case at bar, Pat Weaver had testified before it was possible to request a continuance. As the court acknowledged in Foster, each case must be decided on its own facts, and in this case we find the defendant’s failure to accept a continuance not to be fatal to her position. See People v. Foster (1979), 76 Ill. 2d 365, 384.

Motive evidence was an important ingredient in establishing guilt beyond a reasonable doubt. Pat Weaver’s testimony was extremely damaging in that it showed not only a motive for the defendant to kill her husband but also a willingness to lie to conceal that motive. Defense counsel informed the court that the defendant denies having made the statement. We cannot say that, given adequate time to investigate the matter before trial, the defendant’s counsel would not have come up with evidence that would cast doubt on the truth or the proper interpretation of Pat Weaver’s testimony. Perhaps even Pat Weaver herself could have been convinced that she misunderstood what the defendant said.

The State contends, however, that because the withheld evidence was inculpatory rather than exculpatory, the defendant should have to demonstrate specific prejudice in order to merit retrial. Again, the State is attempting to cast the issue in terms more simple than is justified. In fact, the issues are multifarious, and each case must be examined in order to determine whether the State’s failure was harmless, just as in any other situation in which the ultimate question is one of harmlessness. The closer the evidence, the stronger is the case for excluding the statement or declaring a mistrial. The strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, the feasibility of continuance rather than a more drastic sanction, and the wilfulness of the State in failing to disclose are also factors which must be considered. While an indication of specific harm is helpful to a defendant in establishing that a discovery violation was' prejudicial, its absence is not decisive in itself.

In this case, defense counsel argued that if he had had the opportunity he would have taken a statement from Pat Weaver concerning the admission, interviewed Pat Weaver’s mother, who was also present at the alleged admission, and any other individuals who should have seen Pat Weaver before or after the conversation. Because Pat Weaver said she was speaking to the defendant on the telephone when defendant recanted her statement that the victim and her paramour’s wife knew of the affair, he could check to see if such a long-distance call was in fact made.

We believe the defendant’s evidence of prejudice is sufficient. It need not be shown that in fact Pat Weaver’s mother denies the conversation took place or in fact no telephone call was ever placed from Pat Weaver’s home to the defendant during the period of time in question. While exclusion or mistrial are extreme sanctions not favored when an alternative exists (see, e.g., People v. Petru (1977), 52 Ill. App. 3d 676, 679), we cannot refuse to use them when they are the only effective sanction available.

On the basis of these two errors, we believe a new trial is necessary. Other errors that occurred at trial reinforce this conviction.

The defendant contends that the court should not have allowed evidence of her affair with the athletic director at her high school to be introduced at trial at all, quite apart from the fact that it was proved by means of an admission she was not informed of during discovery. She argues that this evidence of adultery was brought in only to discredit her and make her appear to be an evil woman in the eyes of the jury and not to prove motive for killing her husband. She points out that the State’s Attorney stated at trial that this “was not the reason that defendant took her husband’s life.”

We believe that the defendant takes this statement out of context. The State’s Attorney stated that the evidence was intended to show the defendant was “unhappy in the marital home.” He apparently regarded it as illustrative of the defendant’s progressive alienation from her husband. While it was not “the straw that broke the camel’s back,” it was an important step in that direction and as such could be proper motive evidence. See People v. Foster (1979), 76 Ill. 2d 365.

The defendant is quite right, however, in objecting to the State’s failure to establish when the affair took place. If the affair had taken place 15 years ago and had lasted only a month, its value in showing that the defendant had reason to kill her husband is minimal. A love affair whose embers have long since cooled is not exactly a motive for murder. Its value is likely to be outweighed by the unfair prejudice against the defendant the evidence engenders. Furthermore, in the prosecutor’s closing argument, he asserted the defendant’s affair had lasted seven years. Not one shred of evidence appears in the record that suggested her affair spanned that period, and thus the defendant was correct to object. (See People v. Beier (1963), 29 Ill. 2d 511; People v. Patterson (1976), 44 Ill. App. 3d 894.) We see no merit in the State’s argument that the fact could be inferred from other evidence.

The next contention of the defendant is that the court improperly designated Dennis Johnston as a court’s witness and allowed the State to impeach him with his grand jury testimony, which the State sought to have the jury accept as substantive evidence.

The State attempted to prove that Dennis Johnston and his sister-in-law, the defendant, were having an extramarital affair and this in part motivated her to kill her husband. Dennis Johnston, who the State claimed was reluctant to testify and difficult to contact, was called to testify. When asked, he stated that he had been infatuated with the defendant for a short time. At that point, the State moved to have Johnston designated as a court’s witness and this request was granted. The State then proceeded to impeach Johnston’s testimony with his prior grand jury testimony, which appeared to suggest that Johnston and the defendant had in fact been in love.

Later, during closing argument, the State argued, “He calls it an infatuation. Try in your common sense, who talked about infatuation in anything other than the past tense? He was in love with the woman. You heard the grand jury testimony read from the record, ‘we were in love with each other.’ ”

We believe several errors took place here. Whether or not Dennis Johnston was properly made a court’s witness, the State’s ability to ask that a witness be designated a court’s witness should not be used as a tool to bring hearsay testimony in as substantive evidence. The designation of a hostile witness as a court’s witness is meant to allow a party to call an important witness whose truthfulness is in doubt without fear that if the witness says something that hurts the party’s case, he won’t be able to impeach him. Thus a court’s witness can be impeached if he says something that damages the party’s case and he can then be examined with leading questions.

A court’s witness, or any witness for that matter, cannot be impeached by prior inconsistent statements unless his testimony has damaged, rather than failed to support the position of the impeaching party. The reason for this is simple: No possible reason exists to impeach a witness who has not contradicted any of the impeaching party’s evidence, except to bring inadmissible hearsay to the attention of the jury. Impeachment is supposed to cancel out the witness’ testimony. It is only when the witness’ testimony is more damaging than his complete failure to testify would have been that impeachment is useful. See People v. Johnson (1929), 333 Ill. 469; People v. Chitwood (1976), 36 Ill. App. 3d 1017; McCormick, Evidence sec. 36 (2d ed. 1972).

In People v. Johnson, prior to trial, a witness told police that she had purchased a radio from the defendant, who was accused of a burglary in which a similar radio was taken. During the trial, however, she testified that she had bought the radio, not from the defendant, but from a friend of the defendant while in the defendant’s presence. The testimony was still favorable to the State, although it was not as helpful as her pretrial statement. The court held that it therefore could not be impeached by the use of her prior statement and reversed the defendant’s conviction.

In this case, Dennis Johnston testified that he had been infatuated with the defendant. This was not damaging to the State’s case, since they had no admissible evidence indicating that Johnston was in love with the defendant. They had been relying on Johnston’s testimony to establish this point, and he disappointed them. Impeaching his testimony, however, at best negated his testimony of an infatuation, which was favorable to the State, although not as favorable as evidence of a torrid affair. The State left itself with no evidence of a special relationship between the witness and the defendant. It seems clear to us then that the prosecution’s only motivation for this would be to use the grand jury testimony as substantive evidence that they were lovers.

The error was compounded by the prosecutor’s reference to the grand jury testimony in closing argument. The jury was clearly being requested to consider the testimony as substantive evidence of its truth. This it cannot do unless and until we decide that in this State such prior statements can be used against a defendant as substantive evidence. (See People v. Collins (1971), 49 Ill. 2d 179; People v. McKee (1968), 39 Ill. 2d 265.) The possibility of establishing such hearsay exceptions in Illinois was not argued, and we will not discuss them.

In view of our disposition of these issues, we need not discuss the remaining allegations of error made by the defendant. We affirm the appellate court’s judgment of reversal and remand for a new trial.

Judgment affirmed.

JUSTICE WARD took no part in the consideration or decision of this case.


author: JUSTICE SIMON CHIEF JUSTICE RYAN,

text:
    (No. 54716.
    THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (John F. Tully, Appellee).

      Opinion filed November 18, 1982.

      RYAN, C.J., and UNDERWOOD and MORAN, JJ., dissenting.
    Michael J. Murray and Patricia J. Whitten, of Chicago (Reginald D. Taylor, of counsel), for appellant.
    J. Michael Madda, of Chicago (Mark Matranga and Charles Wolff, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This is an appeal from a decision of the circuit court of Cook County that confirmed an Industrial Commission determination that claimant, John E Tully, was entitled to temporary total disability and permanent partial disability payments and additional payments as penalties for delay from his employer, the Chicago board of education (the board), and reversed an award of attorney fees. In the circuit court, the board contested the length of Tully’s temporary total disability as well as the imposition of penalties and attorney fees. Before this court the board concedes liability for the disability payments in the amounts determined by the Commission, but challenges the penalties awarded under sections 19(k) and 19(Z) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.19(k), (l)). Tully seeks on cross-appeal to reinstate the award of attorney fees.

John Tully was employed by the board as a truck driver, his duties being to deliver equipment to various city schools and to load and unload the equipment from his truck. He had worked for the board for 13 years when on January 26, 1977, he fell while at work and struck his back on the floor. Sharp pain in the area of his tailbone prevented him from standing upright, and he was taken by ambulance to Holy Cross Hospital, where the emergency room records diagnosed his condition as a right sacroiliac joint sprain and possible ruptured disc. Tully underwent medical treatment and did not return to work until September 1977. His first doctor, Dr. Francis Mazeika, treated him until March 1977, but referred him to Dr. Arthur Rodriquez in that month when the pain did not abate. Dr. Rodriquez treated him with hot packs until his release from the hospital in September 1977, at which time he was advised to continue applying the hot packs at home and to wear a brace.

Tully returned to work on September 5, 1977, and worked for another 16 months, missing a few days sporadically because of pain. Although back at work through the latter half of 1978, Tully continued to experience back pains and returned periodically to Dr. Rodriquez for X rays and treatment. In January 1979 he noticed that his back pain was becoming worse and was spreading into his legs. He missed 12 to 14 days from work, and stopped working altogether on January 22, 1979. Dr. Rodriquez continued to treat him through June 1979, at which time he advised Tully that he could return to work. Tully did return, but not until August 3, 1979.

In the meanwhile, an Industrial Commission arbitrator decided in Tully’s favor on a claim he had filed against the board in February 1977. The arbitrator’s decision, entered May 22, 1978, awarded Tully 32% weeks’ temporary total disability payments at a weekly rate of $218.77 and 100 weeks’ permanent partial disability payments on the basis of 20% loss of bodily function. The board had already paid Tully 14% weeks’ temporary total disability compensation by the time the arbitrator’s decision was rendered. Rather than pay the rest of the award, it sought review of the arbitrator’s findings, contesting both the nature and extent of the permanent partial disability and the length of the temporary total disability.

The Industrial Commission held review hearings in November 1978 and June 1979. Tully testified on his own behalf at both hearings, and the medical records of each of the doctors who had treated him were introduced into evidence. Dr. Rodriquez’ diagnosis, contained in a report dated June 12, 1979, was that Tully’s continuing disability was due to a herniated disc caused by his 1977 fall and to osteoarthritis which preexisted the fall but was exacerbated by it. Doctors Robert Busch and Hyman Hirshfield, whom Tully had also consulted, gave an independent diagnosis dated November 7, 1978, which agreed with that of Dr. Rodriquez. The May 1979 report of Dr. James Milgram, who examined Tully at the board’s request, also attributed Tully’s symptoms to a chronic lower back problem exacerbated by his fall and did not discredit Tully’s suggestion that he continued to require treatment, although it noted that Tully seemed to be progressing unusually slowly under Dr. Rodriquez and ventured the opinion that “the patient was procrastinating” and should have a myelogram. Some compensation for this period was paid in June, although the record is unclear as to how much.

On the basis of Tully’s testimony and the medical reports, the Industrial Commission issued an order on July 17, 1980, modifying the award of the arbitrator. The new order raised the temporary total disability award to 522/v weeks but reduced the permanent partial disability award to 60 weeks on the basis of 12% loss of bodily function. It also imposed on the board a penalty of $2,500 for unreasonable delay in payment of the temporary total disability benefits pursuant to section 19(l), a 50%-of-amount-due penalty for vexatious and unreasonable delay in payment of temporary total disability benefits between January 23, 1979, and June 12, 1979, pursuant to section 19(k), and a charge for attorney fees in the amount of $1,812.62 pursuant to section 16 of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.16).

Tully’s position is that the circuit court properly affirmed the award of penalties under sections 19(k) and (l) because the board’s liability for his temporary total disability for the periods assessed was clear, the board’s challenge to the liability was not in good faith, and its delay of payment of the benefits during the period of litigation was thus unreasonable, vexatious, and without good cause. The board takes the position that inasmuch as it won a modification of the arbitrator’s award, its challenge before the Industrial Commission was in good faith. It also points out that the Commission based its award of penalties solely on nonpayment of benefits over the period between January and June 1979, a period for which no adjudication of liability had yet been made, and asserts that penalties should not be imposed where there is no adjudication of liability and grounds for reasonable doubt as to whether the employer would in fact be held liable for compensation exist.

The board’s first objection appears convincing at first glance but lacks merit on closer inspection. The fact that the Industrial Commission modified the arbitrator’s award would indicate that the board’s challenge to the part of the award that was modified in the board’s favor was in good faith and would excuse the nonpayment of that part of it. However, the modification in the board’s favor in this case, a reduction of 40 weeks, was only with respect to the permanent partial disability award. The award for temporary total disability, on which the penalties for nonpayment were based, was increased by 20 weeks to cover the weeks between January and June 1979, which occurred after the arbitrator’s award was made. The weekly payment the board was supposed to have made to Tully was left unchanged; it was $218.77 both before and after the Industrial Commission modified the award, and the entire temporary total disability award made by the arbitrator was left standing. The board should have made the payments; there is nothing in the fact that a permanent partial disability award was modified in its favor that would indicate good faith in challenging the temporary total disability claim for 1979.

The question of whether the board was guilty of bad faith, so as to bring it under sections 19(k), 19(l) and 16 of the Workmen’s Compensation Act, must be resolved by referring to the other evidence in the record. The penalty sections of the Act provide as follows:

“Sec. 16. ***
* * *
Whenever the Commission shall find that the employer, his agent, service company or insurance carrier has been guilty of delay or unfairness towards an employee in the adjustment, settlement or payment of benefits due such employee within the purview of the provisions of paragraph (c) of Section 4 of this Act; or has been guilty of unreasonable or vexatious delay, intentional underpayment of compensation benefits, or has engaged in frivolous defenses which do not present a real controversy, within the purview of the provisions of paragraph (k) of Section 19 of this Act, the Commission may assess all or any part of the attorney’s fees and costs against such employer and his insurance carrier.” Ill. Rev. Stat. 1977, ch. 48, par. 138.16.
“Sec. 19 ***
* * *
(k) In case where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which do not present a real controversy but are merely frivolous or for delay then the Commission may award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award. Failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay.” Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k).
“Sec. 19 ***
* * *
(l) In case the employer or his insurance carrier shall without good and just cause fail, neglect, refuse or unreasonably delay the payment of weekly compensation benefits due to an injured employee during the period of temporary total disability the arbitrator or the Commission shall allow to the employee additional compensation in the sum of $10 per day for each day that a weekly compensation payment has been so withheld or refused, provided that such additional compensation shall not exceed the sum of $2,500. A delay in payment of 14 days or more shall create a rebuttable presumption of unreasonable delay.” Ill. Rev. Stat. 1977, ch. 48, par. 138.19(l).

These sections are intended to prevent bad faith and unreasonable withholding of compensation benefits from injured workers. At the same time, since obviously many claims and awards can be challenged in the legitimate hope that the reviewing tribunal will view the evidence in a way favorable enough to the employer to reduce or rule out his liability, Illinois courts have refused to assess penalties under these sections where the evidence indicates that the employer reasonably could have believed that the employee was not entitled to the withheld compensation (Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, 301; see also Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462). Where a delay has occurred in payment of workmen’s compensation benefits, the employer bears the burden of justifying the delay (City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99, 104), and the standard we hold him to is one of objective reasonableness in his belief. Thus it is not good enough to merely assert honest belief that the employee’s claim is invalid or that his award is not supported by the evidence; the employer’s belief is “honest” only if the facts which a reasonable person in the employer’s position would have would justify it. In the Avon Products case, for example, an Industrial Commission award of penalties was overturned as contrary to the manifest weight of the evidence because none of the medical records available to the employer mentioned anything related to the employee’s work as a possible cause of her disability, even though the employer was aware of the details of her claim.

In this case the evidence that the board had or should reasonably have had in its possession would have disclosed that the grounds for challenging temporary total disability liability for the period January 1979 to June 1979 were insubstantial at best. Tully was off work for that period and saw several doctors, all of whose reports indicate a belief that the 1979 ailment was a relapse of the effects of the 1977 work-related injury. The board knew that Tully was unable to work in 1977 and 1978 due to an injury he suffered on the job — in fact, the board was awaiting Industrial Commission review of the claims that arose out of that period of disability when Tully failed to report to work in 1979 — and his 1979 absence, especially when considered alongside the fact that his absences in 1978 had been sporadic, should have alerted the board to the possibility that his condition had not stabilized. It is true that Tully, in taking his leave in January 1979, requested “vacation pay,” but it is not true that only healthy people go on vacations; it is quite possible, or even likely, that people who go on “vacation” shortly after apparently recovering from a lingering ailment will consult a doctor while on vacation, as Tully did. If the board had any real doubts as to whether this new absence was related to the 1977 injury, it should have tried to clarify those doubts by asking Tully’s doctor what his diagnosis was, or by having its own doctor examine Tully. Its failure to do so does not entitle the board to assert later that it acted in good faith because it was ignorant of the strongest evidence in favor of Tully and, without this evidence, its challenge to liability might well have succeeded.

Finally, the fact that its own doctor, Dr. Milgram, raised the possibility in his report that Tully was delaying effective treatment does not provide a foundation of good faith for the board’s denial of liability for the 1979 absence and refusal to pay benefits during that period. This report does not deny that the absence was initially due to a relapse of Tully’s 1977 symptoms. In addition, the report was not rendered until May 1979 and thus, even if it had denied any causal link with the earlier injury, would not have furnished a reason for the board’s decision to pay no benefits at all for the months from January through April. The board’s failure to follow up on the suggestion made by Dr. Milgram that a second opinion as to further treatment be obtained from Tully’s orthopedic surgeon might indicate that it was more interested in being rid of Tully than in curing him or paying him what was due. This lack of concern does not support a claim of good faith; if anything, it is evidence of bad faith.

We therefore find no reason for disturbing on appeal the Industrial Commission’s determination that the board’s failure to pay benefits for the period January to June 1979 was not in good faith. We can only reverse such a determination if it is contrary to the manifest weight of the evidence (Keystone Steel & Wire Co. v. Industrial Com. (1981), 85 Ill. 2d 178, 186) or based on the wrong legal standards, and we cannot say either is the case here.

The board next argues that even if it is guilty of bad faith and vexatious delay for the January to June 1979 period, an award of penalties for that period is inappropriate because there was no declaration of liability for compensation for those months before the penalties were assessed. It argues that it is unduly harsh to require employers to pay benefits before there is an adjudication of liability, as the employer does not know in advance how much he will be liable for even in those cases where he can reasonably predict that he will be held liable for some compensation, and cites Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462, for the proposition that penalties under section 19(k) and attorney fees under section 16 must be based on an existing award of benefits, the payment of which is delayed.

This is too narrow a reading of the statutory sections involved, and too broad a reading of Brinkmann. Section 19(k) provides for penalties of 50% of compensation due in cases where the employer engages in “unreasonable delay.” It then goes on to state that, at least in the absence of a good-faith challenge to the underlying liability, “[failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k).) The guiding purpose of the Act is to provide an income stream to an injured worker, who is typically left without one (Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, 304), and thereby prevent such occurrences as eviction for nonpayment of rent, which not having a weekly income may occasion.

Even if the Brinkmann case can be regarded as consistent with this intent, it still does not preclude the award of penalties and attorney fees in this case. In McKay Plating Co. v. Industrial Com. (1982), 91 Ill. 2d 198, 208-09, we viewed an arbitrator’s award as satisfying the brief statements in Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462, 469, that penalties under section 19(k) and awards of attorney fees under section 16 are applicable only after an award has been entered in favor of the claimant. The employee in McKay was actually disabled and undergoing surgery for much of the time between the entry of the arbitrator’s award and the period for which penalties were sought. In the instant case, there was a period of apparent recovery following the arbitrator’s award, followed by a relapse. Perhaps in some situations the existence of an arbitrator’s award covering an earlier period may not support imposition of penalties for a later period even though the later disability is found to be traceable to the original work-related injury, as where there is a relapse after a long period of apparent recovery or after the employer is informed that the claimant has received a clean bill of health. Here, however, nothing could have formed the basis for a reasonable belief that the claimant’s condition had stabilized. Tally took days off sporadically due to pain during his “recovery” and was undergoing treatment throughout this period. This should have alerted the board to the possibility that there was a continuing disability which was capable of flaring up again, particularly in view of the fact that all of the doctors involved up to the time for which penalties were sought treated him as if for a continuing ailment. We believe it wholly consistent with Brinkmann, as that case was applied in McKay, to view the arbitrator’s award entered on May 22, 1978, and the employer’s failure to comply with it as justification for the penalties imposed under section 19(k), as well as the award of attorney fees under section 16.

It is true that section 16 is phrased only in general terms of “unfairness,” “frivolous defenses,” and “unreasonable or vexatious delay,” and does not refer to an affirmative set of standards as the last sentence of section 19(k) does. However, when the employer’s refusal to pay benefits is founded on a challenge to liability that is not in good faith, allowing him freedom from an award of attorney fees might encourage him to delay matters indefinitely in the Industrial Commission and the courts until the claimant decides it would be easier to settle for a small part of what is legally his due than to spend the time and money that would be required to stick it out to the end. The overriding purpose of the Act, especially as expressed through its penalty sections, is to compensate claimants as early and as thoroughly as possible for income lost due to job-related injuries. (Board of Education v. Industrial Com. (1972), 53 Ill. 2d 167, 171.) It hardly comports with that intent either to permit employers to litigate ad infinitum, or to force claimants who finally win an Industrial Commission award to institute a new proceeding for attorney fees on the ground that it was only with his victory that a basis for assessing penalties materialized. The Commission’s award under section 16 was proper and should not have been reversed by the circuit court. We direct its reinstatement.

Finally, for the reasons mentioned above, imposition of the daily $10 penalty assessed under section 19(7) for unreasonably withholding the weekly payments to which Tully was entitled is affirmed for the period indicated in the Industrial Commission’s order. This penalty is designed to exact a price for each day of delay, the purpose being to encourage prompt payment of compensation. To require an adjudication before imposing penalties under section 19(7) would defeat the purpose of that section.

The judgment of the circuit court is affirmed insofar as it confirmed the award of the Industrial Commission and reversed insofar as it set aside the award of attorney fees. The award of the Commission is reinstated.

Affirmed in part and reversed in part; award reinstated.

CHIEF JUSTICE RYAN,

dissenting:

The provisions of section 19(k), section 19(l), and section 16 of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, pars. 138.19(k), 138.19(l), 138.16) appear to be overlapping and confusing, and are in need of clarification by the General Assembly. Although section 19(l) relates solely to penalties for failure to pay compensation benefits during temporary total disability, I note that in section 19(k) there is also included as a basis for penalties failure to pay compensation in accordance with the provisions of section 8(b) (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(b)). Section 8(b) provides for the payment of compensation during temporary total incapacity. In the case before us it appears the penalties under both section 19(k) and section 19(l) were assessed for the same alleged default of the board of education, failure to pay compensation for temporary total disability between January 23, 1979 and June 12, 1979.

It may be that the Industrial Commission has devised a rule of thumb as a guide in determining when penalties may be assessed under section 19(k), and when they may be assessed under section 19(l). Such a rule would have to be purely an arbitratory creation of the Industrial Commission because the proper applicability of the sections is not readily apparent.

The basis for my dissent, however, is not this apparent overlapping of penalties. I dissent because the assessment of penalties in this case is contrary to the manifest weight of the evidence. It is well established that an employer who delays payment bears the burden of excusing the delay. (City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99.) However, this rule must not be applied so rigidly that an employer may seek review of an award against him only at his peril. Also, the mere fact that an employer does not prevail, or only partially prevails, as in this case, does not conclusively establish that he has not shown that the delay was justified.

The majority opinion notes that the board sought review before the Industrial Commission of the arbitrator’s award of S22h weeks of temporary total disability compensation and 20% loss of bodily function. The majority holds, however, that the fact that the board prevailed on review by securing a reduction of the percentage of permanent partial disability did not excuse it from making the temporary total disability payments, nor did it indicate good faith in challenging the temporary total disability award. The majority cites no cases wherein an employer has been penalized in this manner. To the contrary, this court has stated:

“The dispute over the form of the payments in the instant case was legitimate. Although it involved only a portion of the award, the respondent was entitled to withhold payments under these facts until this issue was resolved.” (Mid-American Lines, Inc. v. Industrial Com. (1980), 82 Ill. 2d 47, 62.)

In Mid-American Lines, Inc. and City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99, it was conceded that a part of an award was payable and the entire amount was withheld until the disputed amount was resolved. This court held that an award of penalties under such facts was contrary to the manifest weight of the evidence.

The facts in the instant case more clearly favor the employer than they did in the two cases last cited. Here, the acknowledged amount of temporary total disability payments due to the employee (14s/7 weeks) had been paid to the employee. Only the difference between that amount and the 32% weeks awarded by the arbitrator was withheld. On review before the Industrial Commission, both this difference in temporary total disability award, and the 20% permanent disability award were contested. That the board’s contesting of the award of temporary total disability was not frivolous is shown by several bits of evidence in the record. As the majority opinion notes, following the employee’s injury, he was taken to Holy Cross Hospital, where his condition was diagnosed as a right sacroiliac joint sprain, and possible ruptured disc. Before the hearing in arbitration nothing further was shown to indicate that his injury was other than a sprain. Following his injury, the employee visited his family physician about every two weeks, who treated him for pain and later referred him to Dr. Arthur Rodriguez about April 12, 1977. Dr. Rodriguez’ report before the arbitrator revealed that the employee had told him on May 17, 1977, “that he felt better but that the pain had not completely gone,” and that he had not returned to work because he was afraid the pain would recur. That date, May 17, 1977, roughly corresponds to 143/y weeks after the accident on January 26, 1977, the period of time for which the board had made temporary total disability payments. On October 24, 1977, the employee was examined by Dr. Leo E Miller, who reported that the X rays were essentially negative, and in his opinion, based on the objective findings, the subjective complaints were not substantiated. This evidence clearly shows the board’s appeal of the arbitration award for temporary total disability was not frivolous.

The award of penalties, however, was not based on the failure to pay the temporary total disability awarded by the arbitrator. The penalties were awarded solely for the nonpayment of temporary total disability from January 23, 1979, to June 12, 1979. It should be remembered that the employee had returned to work on September 12, 1977. He was working full time when the arbitrator entered its award on May 22, 1979. He was also working full time when the first hearing on review before the Industrial Commission was held on November 14, 1978. He continued to work full time until January 22, 1979, when he ostensibly left work for vacation. Thus, he had worked steadily since September 12, 1979, a year and four months, missing only 20 days intermittently in that period, and these days he had taken off not on the advice of a doctor, but of his own accord.

This court has held that penalties under section 19(k) and section 19(Z) may be awarded only when there has been an award in favor of the claimant and the responsible party has unreasonably delayed paying. (Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462; McKay Plating Co. v. Industrial Com. (1982), 91 Ill. 2d 198.) There was never an award that temporary total disability payments be made to the employee in this case for the period from January 23 through June 1, 1979, until the award by the Industrial Commission, which also assessed penalties. True, McKay Plating Co. stated that there need only be an award, not that it be in the amount the Commission ultimately finds due. However, here the award by the arbitrator was for a period from January to September 1977. The penalty was assessed for failure to pay temporary total disability compensation from January to June, 1979. Between these two periods, the employee had worked regularly for a year and four months, with only intermittent absences. The failure by the board to pay under these circumstances does not demonstrate bad faith or show an unreasonable or vexatious delay. Failure to pay temporary total disability compensation for a period of time immediately following a period for which an award had been made as in McKay Plating Co. is an entirely different case from that which we have before us.

The holding of the majority seems to be contrary to the holding of this court in Chicago Transit Authority v. Industrial Com. (1981), 86 Ill. 2d 101. In that case the employee was injured in January 1977. She filed an application for adjustment of claim in September 1977. The next month she was discharged for absenteeism. In December 1977 the arbitrator made an award for temporary total disability and also an award for 15% loss of use of her left leg. The award was fully paid by the employer in January 1978. In May 1978 a petition was filed on behalf of the employee under section 19(h) of the Act, which provides for review of an award if the employee’s disability has recurred, increased, diminished, or ended. The Industrial Commission found that the award for permanent partial disability should be increased and that the employee was also entitled to additional temporary total disability compensation. The Commission also assessed penalties against the employer under sections 16, 19(k) and 19(l) of the Act, based on the employer’s not having paid temporary disability compensation for the additional period of disability. This court held that the assessment of penalties by the Industrial Commission was against the manifest weight of the evidence. In that case there had been a demand by the employee for temporary total disability payments for the subsequent period of disability and there had been a notification to the employer that the employee had undergone surgery on her knee and that it was claimed to have resulted from her previous injury. However, in that case this court did not place the burden on the employer to seek out and ascertain the cause of the disability, as the majority has done in the case now before us, which I shall discuss later. Instead, in Chicago Transit Authority v. Industrial Com. we placed the burden on the employee to provide the employer with information from which it could ascertain if compensation was payable.

Contrary to the holding in the case just discussed, the majority opinion in this case places the burden of searching for possible temporary total disability claims on the board of education. In this case there had been no clear demand for payment, nor had there been notice given to the board of education that it was claimed that the subsequent disability was attributable to the prior injury. The majority opinion finds only that there were facts which should have alerted the board of education to the possibility that the subsequent disability was attributable to the prior injury.

The net effect of some of the language used in the majority opinion can only be to produce a substantial amount of litigation in the future. Language to the effect that the employee’s prior injury, considered with his sporadic absences, “should have alerted the board to the possibility that his condition had not stabilized” and “if the Board had any real doubts as to whether this new absence was related to the 1977 injury, it should have tried to clarify these doubts” will lead to countless claims for penalties in cases in which the employer attempts to contest the right of the employee to temporary total disability compensation.

I would hold the assessment of penalties in this case contrary to the manifest weight of the evidence, and I must, therefore, dissent.

UNDERWOOD and MORAN, JJ., join in this dissent.