author: JUSTICE MORAN

text:
    (No. 55371.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES D. COLE, Sr., et al., Appellees.

      Opinion filed April 16, 1982.

      Rehearing denied May 27, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert H. Rice, Stephen R. Rice, and Richard A. Aguirre, of Belleville, for appellees.
   JUSTICE MORAN

delivered the opinion of the court:

On January 15, 1980, a three-count indictment was returned against defendants, James D. Cole, Sr., and James D. Cole, Jr. Count I of the indictment charged defendants with solicitation (to commit murder) in that they requested William Haley, a special agent for the Department of Law Enforcement, to murder Robert H. Jones. Count II of the indictment charged defendants with solicitation (to commit murder) in that they encouraged Haley to murder Jones. Count III charged defendants with conspiracy (to commit murder). Following a jury trial in the circuit court of Peoria County, the defendants were acquitted on counts I and III. The jury was unable to reach a verdict on count II, which charged defendants with solicitation by encouragement. A mistrial was therefore declared as to count II. After denying defendants’ motion to dismiss that count, the trial court ordered a second trial. Following the second jury trial, defendants were convicted, and each was sentenced to a five-year prison term. The appellate court reversed the judgments of conviction, holding that defendants’ second solicitation trial violated the double-jeopardy provisions of our Federal and State constitutions. 98 Ill. App. 3d 309.

This review presents one issue: Did defendants’ second trial for solicitation (to commit murder) by encouraging Haley to murder Jones violate the double jeopardy provisions of the United States and Illinois constitutions.

Both the fifth amendment to the United States Constitution and article I, section 10, of the Illinois Constitution protect persons from being placed twice in jeopardy for the same offense. In addition, section 3-4(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 3-4(a)) provides:

“A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction.”

Section 8- of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 8-1(a)) provides:

“Solicitation.
(a) Elements of the offense.
A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense.”

The State concedes that there is only one crime of solicitation. It argues, however, that acquittal of solicitation by requesting another to commit an offense (count I) does not bar reprosecution for solicitation by encouraging another to commit an offense (count II) when the jury, in the first trial, was unable to reach a verdict on the latter count. Defendants argue that their acquittal on count I constituted an acquittal of the entire solicitation offense, thereby barring their reprosecution under any theory of solicitation.

We first note the well-established principle that a mistrial carries different double-jeopardy ramifications than an acquittal or, for that matter, in some instances, a dismissal. As the United States Supreme Court stated in Lee v. United States (1977), 432 U.S. 23, 29-30, 53 L. Ed. 2d 80, 87, 97 S. Ct. 2141, 2145:

“[W]e recognized [in United States v. Jenkins (1975), 420 U.S. 358, 365 n.7, 43 L. Ed. 2d 250, 256 n.7, 95 S. Ct. 1006, 1011 n.7] that it was ‘of critical importance’ that the proceedings in the trial court had terminated ‘in the defendant’s favor’ rather than in a mistrial. ***
*** The critical question is whether the order contemplates an end to all prosecution of the defendant for the offense charged. A mistrial ruling invariably rests on grounds consistent with reprosecution, see United States v. Jorn, 400 U.S. 470, 476, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971) (plurality opinion), while a dismissal may or may not do so.”

It is also well established that a court may properly declare a mistrial and discharge a jury when it is apparent the jury is hopelessly deadlocked (People v. Bean (1976), 64 Ill. 2d 123, 127-28 citing People v. Mays (1962), 23 Ill. 2d 520, 524) and that, in the absence of an abuse of discretion by the trial court when it discharges a jury because of its failure to reach a verdict, the constitutional prohibition against double jeopardy does not bar a new trial. (People v. Bean (1976), 64 Ill. 2d 123, 128; People v. Nilsson (1970) , 44 Ill. 2d 244, 246. See United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547; United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165.) Here, there is no claim that the trial court abused its discretion by discharging the jury and declaring a mistrial on count II. Thus, a reprosecution on that count would not normally be barred by the constitutional prohibition against double jeopardy. The question then becomes whether defendants’ acquittal on count I, based on another theory of the same offense, transcends the general rule allowing reprosecution under the same indictment after a mistrial has been declared.

In support of their argument that reprosecution on count II is barred, defendants cite People v. Allen (1974), 56 Ill. 2d 536, cert. denied (1974), 419 U.S. 865, 42 L. Ed. 2d 102, 95 S. Ct. 120, the case upon which the appellate court principally relied in reaching its decision. In Allen, the defendant was charged by indictment with two counts of murder under sections 9-1(a)(1) and (a)(2) of the Code (Ill. Rev. Stat. 1967, ch. 38, pars. 9-1(a)(1), (a)(2)). The trial court instructed the jury under sections 9-1(a)(1) and (a)(2), as well as under section 9-1(a)(3) for felony murder, a theory under which defendant had not been charged. The defendant was convicted of murder. He appealed, contending that felony murder was a distinct crime from murder as defined in sections 9-1(a)(1) and (a)(2) of the Code and that it was a denial of due process for the court to instruct the jury on an offense with which he had not been charged. The court rejected this argument and found that defendant was aware of the State’s felony-murder theory and was not misled in preparing a defense. This court also stated:

“Under section 9 — 1 there is but one crime of murder, not three separate and distinct offenses as the defendant’s argument assumes. Each of sub-paragraphs (1), (2) and (3) under section 9 — 1(a) describes the mental state or the conduct of the defendant which must accompany the acts which cause the death. If the defendant were charged with murder under subparagraph (a)(1) and acquitted, he could not again be charged and tried for murder of the same individual under subparagraph (a)(2) or (a)(3). Thus, there is no possibility that the defendant in this case could have been twice put in jeopardy. Also, the provision of our statute covering the effect of a former prosecution (Ill. Rev. Stat. 1967, ch. 38, par. 3-4) prohibits a subsequent prosecution of the defendant under such circumstances.” (Emphasis added.) (56 Ill. 2d 536, 543.)

See also United States ex rel. Harris v. Illinois (7th Cir. 1972), 457 F.2d 191, 197, cert. denied (1972), 409 U.S. 860, 34 L. Ed. 2d 106, 93 S. Ct. 147; People v. Johnson (1976), 65 Ill. 2d 332, 337-39; People v. Rosochacki (1969), 41 Ill. 2d 483, 491-92.

We find Allen inapplicable. In that case, there was a single prosecution in which defendant was found guilty under a theory not alleged in the indictment. The court referred to double jeopardy in finding the variance between the charge alleged and the proof adduced at trial to be nonfatal.

We agree that the State cannot charge a defendant under one theory and, following an acquittal under that theory, subsequently recharge and prosecute under another theory for the same offense. However, that is not what occurred in the instant case. In contrast to the hypothetical alluded to by the above-quoted language in Allen, this case does not involve a reprosecution based upon a theory of the same offense that was not previously charged. Request and encouragement are two disjunctive methods by which the offense of solicitation can be committed and reflect the legislature’s intent to include varying degrees of involvement on the part of the solicitor. Here, the State charged defendants with solicitation under two theories, each brought under a separate count. The jury acquitted defendants of only solicitation by request. Its inability to reach a verdict as to solicitation by encouragement is not tantamount to an acquittal under such theory.

To allow the acquittal under count I to bar retrial under count II would, in effect, create an anomaly. On one hand, reprosecution would be precluded when two theories of an offense are split into two counts, with one count resulting in acquittal and the other in mistrial because of the jury’s inability to reach a verdict. Yet, if, in the instant case, solicitation by encouragement and solicitation by request were charged in the same count, and had the jury been unable to reach a decision under the encouragement theory, it is reasonable to assume that the jury would have been unable to return a verdict on the entire count. In that event, the declaration of a mistrial would have resulted in a reprosecution without any double jeopardy violations. Under the circumstances of this case, we hold the reprosecution of defendants for solicitation (to commit murder) by encouraging agent Haley to murder Robert Jones was not barred by the constitutional or statutory prohibitions against double jeopardy.

Accordingly, the judgment of the appellate court is reversed and the judgments of the circuit court of Peoria County following defendants’ second trial are affirmed.

Appellate court reversed; circuit court affirmed.


source: Caselaw Access Project

author: JUSTICE UNDERWOOD JUSTICE GOLDENHERSH, JUSTICE SIMON,

license: Public Domain

text:
    (No. 54413.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PAMELA PASTORINO, Appellee.

      Opinion filed February 19, 1982.
    Rehearing denied April 16, 1982.

      GOLDENHERSH and SIMON, JJ., dissenting.
    Tyrone Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, and Marcia B. Orr, Richard R. Burke, and Michael E. Shabat, Assistant State’s Attorneys, of counsel), for the People.
    Bradley Harris, of North Riverside, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, Pamela Pastorino, and her 14-year-old sister, Debbie Saylor, were charged with the November 19, 1977, murder of their stepfather, Leonard Warchol. Prior to defendant’s trial, Debbie had been adjudicated a delinquent based upon the same conduct and, at the time of trial, was in the custody of juvenile authorities. A Cook County jury found defendant guilty of murder and aggravated battery and not guilty of voluntary manslaughter; she was sentenced to imprisonment for not less than 20 nor more than 60 years. The appellate court reversed because of improper jury instructions and remanded for a new trial. (90 Ill. App. 3d 921.) We granted the State’s petition for leave to appeal.

The medical examiner testified that Leonard Warchol had received 6 stab wounds and about 20 head wounds caused by a blunt object. Death resulted from “[s]tab wounds of the chest with involvement of the lungs in association with cranial injury.” His body was found by investigating officers in the bathtub, although physical evidence and testimony indicates that he was killed in the living room of his home. Two pieces of pipe were recovered at the scene; one bore traces of blood and hair which matched samples taken from the victim. The medical examiner testified that the head injuries were consistent with being caused by this pipe. A butcher knife was recovered several weeks later from the kitchen of Warchol’s home after Debbie Saylor identified it to police as the murder weapon. Neither the knife nor the pipe bore fingerprints. The knife was clean when recovered; testimony suggests that it is normally difficult to get fingerprints from substances with the texture of the pipe.

The State called defendant’s brother, Earl “Danny” Saylor, who agreed to testify only after he was granted immunity. He informed the court, before his testimony, that he would, in part, contradict a previously given unsworn statement. When he did so during his testimony, the trial judge made him a court’s witness. He then testified that he talked to the defendant and Debbie a few hours after the murder at defendant’s home. Debbie was living with defendant at this time. During that conversation Debbie told him that the killing followed an argument over pizza between Debbie and her stepfather. She told her brother that she was tired of fighting over “little stuff”; that she had stabbed him; that defendant hit him with a pipe; and that they both had worn gloves. Defendant was present when Debbie told this story to her brother, but said nothing. The State attempted to impeach this testimony with Saylor’s prior statement in which he said that defendant had said that she hit her stepfather with the pipe and had worn gloves. On cross-examination by defendant Saylor said that he was under the influence of marijuana and alcohol when he made those statements to police and when he talked to his sisters on November 19. The State later called the assistant State’s Attorney who had taken Danny Saylor’s statement. He testified that Saylor was coherent and his answers were “responsive” when he gave that statement.

Debbie Saylor was called as a witness for the State. She was represented by counsel who informed the court that Debbie would refuse to testify. Debbie was sworn, with the jury not present, and she invoked her fifth amendment privilege. The State granted immunity but she still refused to testify. The court admonished her that she would be sentenced for contempt if she did not purge herself before the end of the trial and ordered that she be brought to court each day.

Danny Minigh, a friend of Danny Saylor, as well as defendant and Debbie, testified that some months before the murder defendant had asked him if he knew anyone who would want to make $500 for “bumping Lennie off.” Minigh said he told her she was “crazy” and the matter was dropped. He said that he had also spoken with defendant and her sister at defendant’s home, after the murder but apparently before Danny Saylor arrived. Defendant told him that “Lennie had jumped into Debbie about making a pizza and that she [defendant] had struck him with a pipe and that Debbie had stabbed him, and that she was trying to stop Debbie from stabbing him, and Debbie stabbed her in the finger with the knife.” Defendant also told him that they had disposed of the pipe and the “gloves and stuff.” Minigh testified that when, at the wake of Leonard Warchol, he asked defendant where she hit him, she replied, “In the head.” On cross-examination, Minigh testified that he was on probation from a robbery conviction and had other charges pending against him. He had been “seeing” defendant some time before the murder. He also said that he had learned that defendant’s mother [Leonard Warchol’s wife] had been treated in the hospital, on November 19, for injuries.

The following day, after Minigh’s testimony, Debbie Saylor was brought before the court and she again refused to testify. At this time the State asked that this refusal be made before the jury. The court allowed the motion over objection, and she was sworn. She admitted to being defendant’s sister but refused to testify further. Later that afternoon the State rested, and defendant rested without presenting evidence. Closing arguments were set for the following morning.

Before the arguments Debbie Saylor told the court that she would testify. Both the State and the defendant objected. The thrust of the State’s objection was that it was satisfied with its case and it could not vouch for Debbie’s testimony. Furthermore the State seemed to view Debbie’s late compliance with the court’s order as a ploy to avoid contempt proceedings. The court, however, noting that she was an occurrence witness, reopened the case and, “for the sake of justice,” called her as a court’s witness. The court stated that both the State and the defendant could cross-examine her and that both sides could present further evidence after her testimony.

Debbie then testified that she stabbed Leonard Warchol as he sat watching TV. She said she thought the defendant was “downstairs” at the time. She said that she did not know if defendant hit him, that she was not wearing gloves, and that she had not told Danny Saylor or Minigh anything that night. The State attempted to impeach with a signed statement she had given to police by reading several questions and answers from it. She admitted to making the statement. In it she had said that she had told both Minigh and her brother about the murder, that when she and defendant arrived at Warchol’s home they first went to the basement and when they came up she got a knife from the kitchen and began stabbing him; and that defendant then hit him with the pipe. During cross-examination by defendant, Debbie said that when she went to the basement she hit her mother, knocking her to the floor. She also said she did not remember that either she or her sister hit Leonard Warchol with a pipe.

Defendant then testified in her own behalf. She said that she was downstairs talking to her mother when she heard a loud argument between Debbie and her stepfather upstairs. Debbie then came downstairs and hit her mother, crying that she would “kill Lennie.” She said that after checking on her mother, who was unconscious, she followed her sister upstairs. She saw Debbie stabbing Leonard and attempted to stop her, being stabbed in her finger while doing so. She said she did not hit him with a pipe nor did she see her sister do so. On cross-examination she denied wearing gloves, denied hitting Warchol, denied soliciting Minigh for his murder, and denied admitting to Minigh or her brother that she had hit him.

Defendant alleges that the trial court erred in instructing the jury to consider the murder verdict before the manslaughter verdict and in declining to instruct the jury on voluntary manslaughter resulting from an unreasonable belief that the use of force was justified; that the trial court overstepped the bounds of neutrality by calling two court’s witnesses, by reopening the trial after both sides had rested, and by putting Debbie Saylor in front of the jury when the court knew she would refuse to testify; and that the State imparted substantive character to the prior inconsistent statements of Danny and Debbie Saylor.

During the instruction conference, defense counsel requested that the jury be told it could not return a guilty verdict on both murder and voluntary manslaughter. The court read standard Illinois Pattern Jury Instructions to the jury, including those on accountability, aggravated battery, voluntary manslaughter by acting under intense passion from serious provocation, and murder. After giving these instructions the court made some additional comments, including:

“I will go back and explain this to you in a very slow manner so you won’t get confused. Since you have the initial charge, which is a charge of murder, there are also two other crimes that we call lesser and included offenses of them. One is aggravated battery. So, you have two possible verdicts on aggravated battery. In other words, she did commit the aggravated battery or did not commit the aggravated battery. So, you will come back with one verdict as far as the aggravated battery is concerned. In other words, on the aggravated battery she will either be guilty or not guilty. You will come back with one of the two aggravated batteries filled out. Do you all understand that?
As far as the other four are concerned, you have a voluntary manslaughter and you have a murder. An individual cannot be guilty of both of them, so what you will have to do is consider the murder verdict. When you have reached your verdict as far as the murder is concerned, it’s either guilty or not guilty. If you find the defendant not— guilty of murder, you may— you do not have to do anything else. If you find her guilty of murder, then you don’t have to consider the voluntary manslaughter because you have already found her guilty of murder. So, you will come back just with the guilty of murder filled out.
If you find her not guilty of murder, then you will consider the voluntary manslaughter. If you consider the voluntary manslaughter, then you will have to come back with guilty of voluntary manslaughter or not guilty of voluntary manslaughter. In other words, you may come back with two verdicts filled out or three verdicts filled out.
You must come back with one verdict on the aggravated battery. Now, between the murder count, if you find her guilty of murder, then you do not consider voluntary manslaughter. And if you find her not guilty of murder, then you must consider voluntary manslaughter, guilty or not guilty.
Did I confuse you, or do you understand that?
All right. During the course of deliberations, if you get a little confused on it, send a note out to the deputy that you need clarification, That’s basically what it is. Okay. You come back either with two verdicts filled out or three verdicts. If you find her not guilty on everything, of course you come back with three. If you find her guilty or not gtiilty on the aggravated battery, of course not guilty or guilty on the murder. Of course, if you find her guilty of murder, then you do not consider voluntary manslaughter. Okay.”

The appellate court held that these comments constituted plain error, despite the lack of objection by defendant, and remanded for a new trial because “the situation here is analogous to one in which the judge failed to instruct the jury on voluntary manslaughter. The judge’s comments had the effect of taking away from the jury the necessary element of choice of deemphasizing the importance of the manslaughter verdict. The defendant was therefore deprived of her right to have the jury choose between murder and voluntary manslaughter where there was evidence in the record supporting both verdicts.” (90 Ill. App. 3d 921, 925.) We disagree with the holding of the appellate court and find that the alleged error has been waived. Plain error is a narrow and limited exception to the general waiver rule. (People v. Roberts (1979), 75 Ill. 2d 1, 14-15; People v. Underwood (1978), 72 Ill. 2d 124, 129-30; cf. People v. Pickett (1973), 54 Ill. 2d 280, 283 (review of alleged error where evidence is closely balanced).) We note that defendant’s counsel asked that the jury be instructed that guilty verdicts could not be returned on both murder and manslaughter. By failing to object at the proper time to the comments made in compliance with counsel’s request, the trial judge was deprived of an opportunity to clarify those remarks and correct any error he may have made. (People v. Roberts (1979), 75 Ill. 2d 1; cf. People v. Tannenbaum (1980), 82 Ill. 2d 177, 180-81; Morello v. People (1907), 226 Ill. 388, 397-98.) In Roberts we stated: “The reason for this waiver rule, as stated in many of our appellate court cases, is that timely objections to defective instructions permit the court to correct the defects before the instructions are given, and do not therefore permit a party failing to object to gain the advantage of obtaining a reversal based upon his own failure to act.” (75 Ill. 2d 1,11.) Had the objection now urged been made at the time the instruction was given, it is clear that the trial judge could have rephrased his comments to eliminate or diminish the effect which defendant now alleges was prejudicial to her.

The evidence is not so closely balanced in this case as to prompt us to look past the lack of objection. (See People v. Williams (1981), 87 Ill. 2d 161; People v. Roberts (1979), 75 Ill. 2d 1; People v. Pickett (1973), 54 Ill. 2d 280; People v. Joyner (1972), 50 Ill. 2d 302.) The jury was instructed that voluntary manslaughter was committed if defendant killed “under a sudden and intense passion resulting from serious provocation by the deceased” (Illinois Pattern Jury Instructions, Criminal Nos. 7.03, 7.04 (1968)) as requested by defendant. We note however that there was little, if any, evidence to support a finding of serious provocation or of conduct justifying the use of force. According to the testimony of both defendant and her sister the argument that occurred before the murder was between Debbie and her stepfather. Defendant was not present. There was no evidence to suggest that Leonard Warchol in any way provoked the defendant. There was substantial evidence that defendant committed murder in the admissions made by defendant to her brother and Danny Minigh. On these facts we believe that no error so substantial as to deprive defendant of a fair trial has occurred. People v. Roberts (1979), 75 Ill. 2d 1, 14-15; cf. People v. Joyner (1972), 50 Ill. 2d 302; People v. Burson (1957), 11 Ill. 2d 360.

Nor do we find that defendant was entitled to an instruction on voluntary manslaughter resulting from an unreasonable belief that the use of force was justifiable. The appellate court indicated that such instruction was warranted because Danny Minigh testified that he was told by defendant that “Lennie had jumped into Debbie about making a pizza.” The trial court thought this was insufficient evidence to support the instruction, and we. agree. We note that later testimony established that defendant was not present during the argument, and by defendant’s own testimony the argument consisted of “loud talking.” There was no evidence that Leonard Warchol was combative, aggressive, or took any actions directed against defendant or her. sister. (See People v. Leonard (1980), 83 Ill. 2d 411, 419-23; People v. Lockett (1980), 82 Ill. 2d 546, 549-52.) While Debbie had testified that her stepfather had beaten and raped her on some earlier occasion, she also admitted that she had told no one of this until she spoke with a psychiatrist at the Department of Corrections Youth Center. She said her attorney knew this, too, but did not bring it up in the juvenile hearing because she did not want him to. Since the record contains no indication that defendant was aware of this claimed misconduct by the stepfather, it could not provide a basis for giving the instruction defendant now urges it was error to omit. The only evidence presented which might establish defendant’s subjective belief that force was necessary (People v. Lockett (1980), 82 Ill. 2d 546, 553) was defendant’s testimony that she attempted to restrain her sister from stabbing her stepfather. While it is true that the instruction must be given if evidence is presented which, if believed by the jury, might establish that defendant had an unreasonable belief that force was necessary (People v. Leonard (1980), 83 Ill. 2d 411; People v. Lockett (1980), 82 Ill. 2d 546; People v. Joyner (1972), 50 Ill. 2d 302), we find no evidence to support such instruction here. Consequently, there was no error in the refusal of the court to so instruct the jury. People v. Handley (1972), 51 Ill. 2d 229; People v. Lyons (1967), 36 Ill. 2d 336; People v. Latimer (1966), 35 Ill. 2d 178; People v. Marsh (1949), 403 Ill. 81.

The balance of defendant’s arguments concern the testimony of Danny and Debbie Saylor. She urges that the action of the court in calling them as court’s witnesses on the court’s own motion “is evidence tending to show the trial court’s overstepping the bounds of neutrality.” She contends, too, they they were improperly impeached by prior inconsistent statements, that the trial court erred in allowing the jury to hear Debbie Saylor’s second refusal to testify, and that the trial court erred in reopening the case to present her testimony over objections by both State and defendant.

Where a witness has testimony material to the issue, where his veracity is questionable, and where there might otherwise be a miscarriage of justice, the court may call that witness as a court’s witness. (People v. Dennis (1970), 47 Ill. 2d 120; People v. Moriarity (1966), 33 Ill. 2d 606; Carle v. People (1902), 200 Ill. 494.) This power is not limited to eyewitnesses (People v. Siciliano (1954), 4 Ill. 2d 581), and it may be exercised on the court’s own motion (People v. Wesley (1959), 18 Ill. 2d 138, 152, cert. denied (1960), 364 U.S. 845, 5 L. Ed. 2d 69, 81 S. Ct. 87). These foundational requirements were properly met for both Danny Saylor and Debbie Saylor, and defendant does not argue otherwise. Nor does she contend that a court’s witness may not be impeached by the use of the prior inconsistent statement, but only that such impeachment here was improper because it impermissibly imparted “substantive character” to those statements, an argument for which no authority is offered.

A court’s witness may be impeached as any other witness. In People v. Collins (1971), 49 Ill. 2d 179, this court was asked to adopt a rule which would allow prior inconsistent statements to be used as substantive evidence but declined to do so at that time. (See also People v. Gant (1974), 58 Ill. 2d 178; cf. People v. Paradise (1964), 30 Ill. 2d 381 (wherein the orthodox view, the present rule, is articulated).) The jury was instructed, prior to deliberations, that prior statements of witnesses inconsistent with their testimony could be considered in determining the weight to be given the testimony. Defendant did not request a limiting instruction at the time the prior statements were used.

Although defendant now contends that Assistant State’s Attorney Hyman’s testimony that he took a statement from Danny Saylor and that Danny Saylor was coherent and gave responsive answers to Hyman’s questions was relevant only “to substantiate the truth of the prior statement,” she made no such objection at trial. Defendant made only a general objection, which was overruled, and the waiver rule does not permit the new argument now sought to be presented. Therefore, we consider the issue thus waived for lack of specific objection. (People v. Queen (1974), 56 Ill. 2d 560, 564; People v. Trefonas (1956), 9 Ill. 2d 92, 98; cf. People v. Carlson (1980), 79 Ill. 2d 564, 576; People v. Akis (1976), 63 Ill. 2d 296, 299; People v. Ross (1968), 41 Ill. 2d 445, 462-63, cert. denied (1969), 395 U.S. 920, 23 L. Ed. 2d 237, 89 S. Ct. 1771.) In Carlson we noted that plain error would be recognized only where there was substantial injustice to the defendant. Mr. Hyman’s testimony did not involve the substance of Danny Saylor’s statement to the police but concerned only his demeanor at the time of giving it. Moreover, the jury learned nothing new from Saylor’s prior statement because Minigh’s testimony was substantially the same. Under these circumstances any error which may have occurred was not prejudicial.

Nor do we find error in the calling of Debbie Saylor as a court’s witness or in the State’s use of her prior statements to impeach her. Defendant argues that the court erred in allowing the jury to hear her refusal to testify and in asking her, at that time, if she was defendant’s sister. In view of the facts that both Debbie and defendant were identified as sisters of Danny Saylor during his testimony and that Debbie did subsequently testify and that no comments by the court or the State were made about her initial refusal, we do not agree that error was committed.

The appellate court found that the State used Debbie’s prior statement improperly because it made “extensive use” of it and read it line for line in a question and answer format. The record does indicate that a number of questions and answers from Debbie’s statement were read to her and she was asked if she had made them. We note, however, that she was asked only about inconsistencies between that statement and her present testimony, and there was no undue emphasis or repetition in the questioning. That there were extensive inconsistencies can hardly be held against the State. There was no error in the use of this statement in this manner. (People v. Marino (1970), 44 Ill. 2d 562.) Defendant appears to have abandoned this argument and, rather, now alleges error in the State’s repetition of part of Debbie’s prior statement in its closing argument. Defendant, however, did not object when the remarks were made and cannot now complain. (See People v. Carlson (1980), 79 Ill. 2d 564, 577; People v. Moore (1973), 55 Ill. 2d 570, 576; cf. People v. Baptist (1979), 76 Ill. 2d 19, 30.) Moreover, the remarks were made by way of comment upon the credibility of Debbie’s testimony and proper in that regard. See, e.g., People v. Sinclair (1963), 27 Ill. 2d 505; People v. Weaver (1959), 18 Ill. 2d 108.

Defendant also argues that the court erred in calling Debbie Saylor as a court’s witness after both sides had rested. This is a discretionary power of the court (People v. Cross (1968), 40 Ill. 2d 85; People v. Franceschini (1960), 20 Ill. 2d 126), and we find no abuse here. Defendant argues, relying on Brooks v. Tennessee (1972), 406 U.S. 605, 32 L. Ed. 2d 358, 92 S. Ct. 1891, that this amounted to penalizing her for exercising her right not to testify. In Brooks the Supreme Court held that a statute which required that a defendant must testify first, if at all, violated an accused’s constitutional right to remain silent. That case is entirely inapposite to the situation presented here, where defendant was twice given the opportunity to testify, and where that right was exercised the second time. We find no error.

Nor do we find merit in defendant’s argument that the court in some way intimidated Danny Saylor with a threat of a perjury charge. The court, upon being told that his testimony would differ from a prior statement simply told defense counsel, the prosecutor and Saylor’s attorney that the immunity granted would not cover perjured testimony. In the context of that discussion, and in view of the fact that Danny Saylor did in fact testify contrary to his prior statements, we find the defendant’s argument untenable.

Nor is there merit in defendant’s argument that she was acting under provocation, and that the jury should have been instructed that defendant could not be found guilty of murder if she killed decedent while acting under a sudden, intense passion resulting from serious provocation by him. To the extent this argument may not be answered by our earlier discussion of the dearth of evidence of provocation, it has been waived by failure to request and tender the instruction and failure to include it in a motion for a new trial. People v. Carlson (1980), 79 Ill. 2d 564, 581-82; People v. Roberts (1979), 75 Ill. 2d 1; People v. Precup (1978), 73 Ill. 2d 7.

Accordingly, the judgment of the appellate court is reversed and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE GOLDENHERSH,

dissenting:

I dissent. I would affirm the judgment of the appellate court and remand the cause for a new trial. I agree with the appellate court that the oral instruction directing the jury to decide whether defendant was guilty of murder prior to considering the charge of manslaughter served to erroneously circumscribe the jury’s right to choose which offense, if any, defendant had committed. I am also of the opinion that under People v. Roberts (1979), 75 Ill. 2d 1, People v. Underwood (1978), 72 Ill. 2d 124, People v. Jenkins (1977), 69 Ill. 2d 61, and People v. Joyner (1972), 50 Ill. 2d 302, the giving of the instmction resulted in a “substantial defect” which was not waived, and that it was properly recognized as plain error.

The People concede in their brief that the circuit court correctly gave the manslaughter instruction, based on section 9-2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-2(a)). Properly instructed, the jury should have been free to consider the elements of the offenses charged and determine which offense, if any, had been proved by the evidence. There is no rule of law, statutory or opinion, which required that the most serious offense be considered first.

It must be presumed that the jury followed the court’s oral instruction. It may therefore be assumed that the jury examined the evidence solely in the light of the instructions concerning murder, thus precluding consideration of the evidence which was the basis for the giving of the manslaughter instruction.

I do not agree with the majority that the evidence of guilt is overwhelming. On this record, properly instructed, the jury could have found defendant guilty of manslaughter, or acquitted her. Fundamental fairness and simple justice require that defendant be given a new trial.

JUSTICE SIMON joins in this dissent.

JUSTICE SIMON,

also dissenting:

I believe that a new trial is necessary for an additional reason. Danny Saylor’s statement to police that his sister, the defendant, had admitted participating in the crime was improperly used as impeachment evidence.

At the defendant’s trial, Saylor was called as a witness by the State. Saylor had previously told police that the defendant had admitted participating in their stepfather’s murder by hitting him over the head with a pipe while her younger sister, Debbie Saylor, repeatedly stabbed him. He informed the court, however, before his testimony, that he would contradict that statement. True to his word, Danny Saylor did contradict his previous statement by testifying that it was Debbie Saylor, not the defendant, who had said that the defendant hit the victim over the head with a pipe while she, Debbie Saylor, repeatedly stabbed him — same statement, different speaker. He did testify, however, that the defendant was with Debbie Saylor at the time she made that statement to him and did not protest or contradict it. At the request of the State, the court then made him a court’s witness and allowed the State to impeach his testimony with evidence of his prior statement.

Under the circumstances, impeachment evidence of any kind was inappropriate. The defendant’s brother’s testimony did not damage the State’s case. It helped it. Defendant’s silence in the face of her sister’s statement could be construed as an admission. The purpose of impeachment evidence is to discredit direct testimony. A prior inconsistent statement is admitted into evidence only to cancel out the witness’ testimony and not as substantive evidence. Otherwise it is usually hearsay. The State would have been in a worse position if both statements had been cancelled out than if Saylor’s in-court statement had been allowed to stand. It therefore had no legitimate reason to impeach his testimony with his prior statement.

The State’s purpose in introducing this evidence as a prior inconsistent statement could only have been so that the jury might use it as substantive evidence of defendant’s guilt. This is impermissible.

In People v. Johnson (1929), 333 Ill. 469, this court was presented with a similar situation. Prior to trial, a witness told police that she had purchased a radio, very similar to one taken in a burglary, from the defendant, who was accused of the burglary. On the stand, however, she testified that she had bought the radio, not from the defendant, but from a curly-headed friend of the defendant while in the defendant’s presence. As such, the testimony was still helpful to the State’s case, although not as helpful as the witness’ pretrial statement to the police. The court held that it was therefore not impeachable and reversed the defendant’s conviction.

In People v. Chitwood (1976), 36 Ill. App. 3d 1017, a witness told police that the defendants had told her they had burglarized two schools. During the trial, however, she denied that the defendants had told her anything about the burglary. The trial judge made her a court’s witness and allowed the State to impeach her with her previous statement.

On appeal, the court held that she could not be impeached by the State because there was nothing to impeach. It quoted Professor McCormick:

“ ‘An affirmative answer would have been material and subject to be impeached by an inconsistent statement, but a negative answer is not damaging to the examiner, but merely disappointing, and may not be thus impeached. In this situation the policy involved is *** the protection of the other party against the hearsay use by the jury of the previous statement.’ (McCormick, Evidence sec. 36 (2d ed. 1972) (footnotes omitted).)” 36 Ill. App. 3d 1017, 1025.

I think Johnson and Chitwood represent proper rejections of the use of prior statements under the circumstances presented by this case, and I would follow them.


author: JUSTICE GOLDENHERSH

text:
    (No. 55225.
    McKAY PLATING COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Russell Riley, Appellant).

      Opinion filed June 1, 1982.

      Perz and McGuire, of Chicago (Frank M. Perz and James M. Ridge, of counsel), for appellant.
    Klockau, McCarthy, Ellison, Rinden & Hartsock, of Rock Island (Robert L. Ellison, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission on November 20, 1979, awarded petitioner, Russell Riley, workmen’s compensation for a period of 23% weeks of temporary total disability (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(b)) and for 1% permanent partial disability (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(d)(2)) suffered as the result of accidental injuries sustained while in the employ of respondent, McKay Plating Company. Cross reviews were filed and, without taking additional evidence, the Industrial Commission set aside the decision of the arbitrator and awarded petitioner compensation for a period of 26% weeks of temporary total disability and for 20% permanent partial disability. The Commission also found that respondent, without just and good cause, failed, neglected and refused to pay weekly compensation benefits and awarded petitioner the additional sum of $2,500 as provided in section 19© of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(l)). The Commission also found an unreasonable and vexatious delay in the payment of compensation during a portion of the period of temporary total disability and, pursuant to section 19(k) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(h)), awarded petitioner an additional sum in the amount of 50% of the compensation payable during that period of temporary total disability. Pursuant to section 16 (Ill. Rev. Stat. 1977, ch. 48, par. 138.16) the Commission awarded petitioner attorney fees in the amount of 20% of the compensation awarded under sections 8(b), 19©, and 19(k) of the Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.8(b), 138.19(l), 138.19(k)). Respondent sought certiorari, and the circuit court of Rock Island County reversed the decision of the Commission as contrary to the manifest weight of the evidence and reinstated the decision of the arbitrator. Petitioner appealed pursuant to Supreme Court Rule 302(a). 73 Ill. 2d R. 302(a).

At the hearing before the arbitrator it was stipulated that on July 15, 1978, petitioner suffered an accidental injury which arose out of and in the course of his employment. It was also stipulated that at the time of his injury petitioner was 19 years of age and that his average weekly wage was $120. Respondent conceded that petitioner was exposed to chromic fumes but denied any causal connection between that exposure and petitioner’s injury.

Petitioner testified that on July 15, 1978, while operating a chrome plating machine, he suffered nosebleeds and headaches. On July 31, 1978, petitioner was examined by Dr. R. D. Lelonek. Petitioner returned to respondent’s the following day and talked with Wilbur McKay, respondent’s president. He told Mr. McKay that he had seen Dr. Lelonek and gave him a bill he had received from the doctor. Mr. McKay told petitioner that he could not have him working for the company any longer and his employment was terminated. Petitioner returned to Dr. Lelonek, and on January 16, 1979, Dr. Lelonek performed surgery to repair a nasal septal perforation. After the surgery petitioner returned to Dr. Lelonek every other week until February 6, 1979, at which time he was released to return to work. Petitioner testified that since July of 1978 it had been hard for him to breathe through his nose, especially when playing sports, and that he still had headaches. On cross-examination petitioner testified that he worked continuously for respondent from March of 1978 until August of 1978 and that his only exposure to chromic fumes occurred during this period of time. Petitioner testified that on February 2, 1979, he started working for Midwest Pop Shoppe as a filler operator at an average weekly wage of $170. He had been working continuously since February 2, 1979, and had not lost any time from work as a result of any problems with his nose. Petitioner also testified that after he was terminated by respondent he collected unemployment compensation until he went to work on February 2, 1979, and that at the time he applied for unemployment compensation, and until the time of his surgery, he represented himself to be physically able to work.

Wilbur McKay testified that on or about August 1, 1978, he had a conversation with petitioner at respondent’s plant at which time petitioner stated that he wanted to come back to work. Mr. McKay told petitioner that respondent was “low on work” and that there was no work for him. McKay stated that one other employee had been terminated a week or two before this conversation with petitioner, and within the next month approximately five more employees were terminated because of lack of work. Between August of 1978 and January of 1979 none of those employees were replaced.

By agreement of the parties the reports of three physicians were admitted into evidence. A letter written by Dr. Lelonek, the treating physician, dated February 26, 1979, stated that at the time of petitioner’s first visit on July 31, 1978, he was found to have a nasal septal perforation. Surgical repair of this perforation was performed in January of 1979. Petitioner had an uncomplicated postoperative course, and when last seen in the doctor’s office on February 6, 1979, the perforation was “practically completely healed.” Dr. Lelonek stated, “Thus, I expect that he [petitioner] will have practically no difficulty in the future with recurrence of nasal crusting or nasal obstruction. I believe that the perforation was probably due to exposure to chemicals involved in the chrome plating industry.” According to a letter written by Dr. Albert Zimmer, respondent’s examining physician, dated May 7, 1979, “the nasal septum was dry, with some scarring present, and had slight irregularity. The mouth, and throat was unremarkable. I feel that this man [petitioner] has had good repair of the septal perforation. The septum is healed at this time, but in view of the fact that there is no cartilage in it, there is still a chance of septal perforation recurring. He may also have some persistent dryness of the nose, due to some damage of the mucous glands on the turbinates, which would go along with exposure to chromate, and other fumes. After reviewing the pictures, and with the amount of time that Mr. Riley was exposed to the fumes, I feel that it is most probable the septal perforation was caused by exposure to the fumes. I see no evidence of any other contributing cause to his problems. I would feel that he is able to work at any reasonable occupation, where he will not be exposed to noxious fumes, such as he may be around welding, or around other chemicals.” At the request of his attorney, petitioner was also examined by Dr. E. R Levine. In his report, dated July 6, 1979, Dr. Levine stated that “there is a noticeable area in the nasal septum where the surgery was done.” No opinion was expressed by Dr. Levine regarding permanent disability.

Petitioner contends that the factual determination of the Industrial Commission as to the nature and extent of the injury which petitioner sustained is not against the manifest weight of the evidence and should not have been reversed by the circuit court. Petitioner argues that it is clear from Dr. Zimmer’s report that because of the danger of recurrence of the septal perforation petitioner cannot engage in any occupation where he would be exposed to noxious fumes. He points out that petitioner is, by occupation, a laborer, and argues that “these restrictions substantially reduce his potential in the open job market.” Respondent submits that petitioner has the burden of proving the elements of his claim, and contends that the Commission’s finding of 20% permanent partial disability is totally without foundation in the record. While no longer contesting causal connection between the exposure and the perforated nasal septum, respondent asserts that there is no medical testimony linking petitioner’s headaches to the exposure and argues that there is no basis in the record for inferring that the headaches resulted from the chromic fume exposure. Respondent contends that petitioner’s “only residuum is a lack of cartilage in the nose and a susceptibility to further perforation upon additional chromic fume exposure” and argues that “to find that this minimum residuum *** has resulted in one-fifth permanent impairment of the body as a whole is absurd” and against the manifest weight of the evidence.

The determination of the extent of petitioner’s injury is the function of the Commission, whose finding will not be disturbed unless it is against the manifest weight of the evidence. (Zarley v. Industrial Com. (1981), 84 Ill. 2d 380; Bishop v. Industrial Com. (1980), 78 Ill. 2d 315.) The award for permanent partial disability was made pursuant to section 8(d)(2), which in pertinent part provides:

“If, as a result of the accident, the employee sustains serious and permanent injuries *** which *** do not incapacitate him from pursuing the duties of his employment but which would disable him from pursuing other suitable occupations, or which have otherwise resulted in physical impairment; or if such injuries partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity, *** then in any of the foregoing events, he shall receive *** compensation at the rate provided in sub-paragraph 2 of paragraph (b) of this section for that percentage of 500 weeks that the partial disability resulting from the injuries covered by this paragraph bears to total disability.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(d)(2).)

Dr. Zimmer’s report shows that petitioner is suffering from a disability in that he is unduly sensitive to noxious fumes, a condition precipitated by his on-the-job exposure to chromic fumes and one which is apparently permanent. Section 8(d)(2) does not require that the accident result in impairment of earning capacity, only that the injury partially incapacitate an employee from pursuing the duties of his usual and customary line of employment. On this record we cannot say that the finding that petitioner has suffered permanent partial disability to the extent of 20% is contrary to the manifest weight of the evidence.

Petitioner next contends that the decision of the circuit court reversing the Commission’s imposition of penalties and attorney fees under sections 19(k), 19(7), and 16 is contrary to law. In its order the Commission found:

“7. That the Respondent did without just and good cause, fail, neglect and refuse payment of weekly compensation benefits for the period from 5/7/79 to 3/25/80, and said Petitioner is now entitled to have and receive from said Respondent the further sum of $2,500.00, the statutory maximum, as provided in paragraph (Z) of Section 19 of said Act, as amended.
8. That there has been an unreasonable and vexatious delay by the Respondent herein in the payment of compensation for the period from 1/6/79 to 2/6/79 of temporary total incapacity for work; that said Petitioner is now entitled to additional compensation in the amount of 50% of the amount of Compensation payable during said period of temporary total incapacity as provided in paragraph (k) of Section 19 of said Act, as amended; and that Petitioner’s attorney’s fees is the amount of 20% of compensation awarded under Sections 8(b), 19(Z) and 19(k) of said Act, as amended are assessed against Respondent, as provided in Section 16 of said Act, as amended.”

In support of his contention that respondent’s failure to pay compensation was not based on the good-faith belief that petitioner was not entitled to compensation, petitioner asserts that respondent admitted at the time of arbitration, and in the circuit court, that petitioner was temporarily totally disabled from January 16, 1979, to February 6, 1979, the period from the date of the surgery to the date of his release to return to work. Petitioner argues that the sanction imposed under section 19(7), which covers the period from May 7, 1979, the date of Dr. Zimmer’s report, to March 25, 1980, the date of the hearing on review before the Commission, cannot be reasonably challenged because respondent’s own expert, Dr. Zimmer, stated that there was a causal connection between petitioner’s exposure to fumes and his nasal perforation, and therefore the failure to make payment throughout this period is inexcusable. Petitioner contends, too, that the penalty assessed under section 19(k) is based only on the period of time during which respondent has conceded petitioner was entitled to temporary total disability and cannot be seriously questioned. He notes that the decision of the Commission states that this period of time began on January 6, 1979, rather than January 16, 1979, as shown by the record. Petitioner attributes the discrepancy to a scrivener’s error and suggests that the correct period of time for which the sanction is imposed should be from January 16, 1979, to February 6, 1979. Citing City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99, petitioner submits that it is respondent’s burden to excuse the delay of payment and argues that, in light of respondent’s admissions and failure to pay, it cannot be said that the imposition of sanctions is against the manifest weight of the evidence.

Respondent contends that not only are the penalties inappropriate under the circumstances shown by the record, but that the Commission was without authority to impose them. The sections of the Workmen’s Compensation Act, pursuant to which the penalties were imposed, provide:

“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 [Ill. Rev. Stat. 1977, ch. 48, par. 138.4]; 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 [Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k)], 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 [Ill. Rev. Stat. 1977, ch. 48, par. 138.8(b)], shall be considered unreasonable delay.
(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, pars. 138.19(k), (l).

Citing Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462, respondent argues that the Commission was without authority to impose penalties for the reason that when petitioner, for the first time on December 19, 1978, demanded penalties, there was no adjudication of liability. The authority relied upon does not support this argument. The penalty assessed under section 19(1) resulted from the failure to pay temporary total compensation for which an award had been entered in favor of petitioner. The penalty assessed under section 19(k) applies only to the compensation awarded for the three additional weeks of temporary total compensation found by the Commission to be due for the period following petitioner’s surgery. Brinkmann requires only that there be an award, not that it be in the amount which the Commission ultimately finds to be due.

Respondent also contends that the assessment of penalties was contrary to the manifest weight of the evidence. Respondent points out that it contested liability at the arbitration hearing, and argues that the penalty imposed under section 19(7), for the period from May 7, 1979, to March 25, 1980, is not supported by the evidence. In support of this contention respondent notes that petitioner’s testimony shows that he was employed by Midwest Pop Shoppe from February 2, 1979, until the time of the hearing before the arbitrator. It points out, too, that prior to the surgery petitioner represented to the unemployment compensation agency that he was willing and able to work.

Compensation for temporary total disability is to be awarded for the period between the date of the injury and the date when the employee’s condition has stabilized so far as the permanent character of the injury will permit. (Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462; Howard v. Industrial Com. (1980), 81 Ill. 2d 50.) The question whether the petitioner was temporarily totally disabled and for what period of time was a question of fact for the Industrial Commission. Whether the employer’s conduct justifies the imposition of penalties is to be considered in terms of reasonableness and is a factual question for the Commission. Its decision is not to be disturbed unless against the manifest weight of the evidence. (Keystone Steel & Wire Co. v. Industrial Com. (1981), 85 Ill. 2d 178; Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297; Wilbon v. Industrial Com. (1976), 65 Ill. 2d 221.) The record shows that on May 7,1979, respondent was advised by its examining physician that petitioner’s condition was caused by the chromic fumes. On March 25, 1980, at the hearing on review, respondent, although it had not paid any portion of the compensation awarded, offered no evidence in support of its contention that petitioner was not entitled to temporary total compensation. On this record we cannot say that the findings of the Commission, either as to the period of time petitioner was temporarily totally disabled, or that respondent’s delay in payment was unreasonable and without good cause, are against the manifest weight of the evidence.

For the reasons stated, we reverse the judgment of the circuit court and confirm the decision of the Industrial Commission.

Judgment reversed; award reinstated.


text:
    (No. 55083.
    ARCHER DANIELS MIDLAND COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (David Peckham, Appellee).

      Opinion filed June 1, 1982.

      Thomas D. Nyhan, Ellis A. Ballard, and James M. O’Brien, all of Chicago (Pope, Ballard, Shepard & Fowle, Ltd., of counsel), for appellant.
    Scheele, Serkland & Boyle, Ltd., of Chicago (James C. Serkland, of counsel), for appellees.
   JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, David Peckham, filed claims under sections 7, 8(a) and 8(b) of the Workmen’s Compensation Act (Act) (Ill. Rev. Stat. 1977, ch. 48, pars. 138.7, 138.8(a), (b)) arising out of a fall suffered on January 2, 1979, by his wife, Mary Peckham, on the premises of her employer, Archer Daniels Midland Company (defendant). The arbitrator found that Mary Peckham sustained accidental injuries arising out of and in the course of her employment which caused her death on January 10, 1979. She awarded plaintiff compensation in the amount of $153.62 per week for 1,627 weeks and $60.26 for one week under section 7(a) of the Act and $1,750 in burial expenses under section 7(f). The arbitrator also awarded plaintiff $146.05 for medical expenses under section 8(a) of the Act. On review, the Industrial Commission affirmed the arbitrator’s decision except, in addition to the above amounts, it awarded plaintiff $109.73 in temporary total disability under section 8 and increased attorney fees to the statutory amount. The circuit court of Macon County, on appeal by defendant, found that the decision of the Industrial Commission was not against the manifest weight of the evidence and confirmed the decision in its entirety.

This case presents just one issue. Did the injury to Mary Peckham arise out of and in the course of her employment?

On January 2, 1979, at approximately 7:45 a.m., Mary Peckham (decedent) was on defendant’s premises, walking from the parking lot to the meal-grind plant where she was due to begin work at 8 a.m. Peckham, whose height was five feet five inches, entered the fenced-in plant grounds through gate 4, the closest gate to the parking lot. The gate area was covered with ice and snow. Gate 4 has a 37-foot crossing arm which, in its lowered position, is three feet eight inches above the ground and blocks the major portion of the entrance area. At the end of the crossing arm there is an opening, two feet nine inches wide, through which pedestrians can pass. Posted at gate 4 was a sign restricting use of that gate to certain “contractors, their employees, their suppliers and persons having business with them.” However, the record does not disclose that defendant had ever instructed its employees not to use this gate. In fact, approximately 200 or more employees used that entrance every day. There is another gate, 42 feet south, where a sign was posted which stated that this gate is for “[defendant’s] employees and suppliers only, other than those designated on Gate 4.”

While approaching the gate, the decedent called to a close friend, Becky Pfeifer, requesting her to wait. At some point as she was approaching Pfeifer, who was inside the gate, decedent fell. The testimony is conflicting as to where the fall occurred. Mark Himmelrick, testifying for defendant, stated that he observed the decedent walk from the parking lot to the hinged end of the crossing arm, which was in the down position. He noted that decedent was taking short, “pokey” steps to avoid falling. He also testified that when decedent was about five or six feet outside the gate he turned away. When he looked back, decedent had fallen, about a half foot to a foot inside the crossing arm at the hinged end. He stated he was approximately 125 feet away when he observed decedent on the ground. Himmelrick related that he went to where decedent had fallen, spoke with her briefly, then, along with another man, carried decedent to the building where she worked.

Becky Pfeifer, testifying for plaintiff, stated that, after decedent called to her, she turned and waited as decedent approached. She declared that decedent took careful steps because of the ice and snow. Pfeifer related that, approximately 10 feet inside the crossing arm, decedent fell and that decedent was “standing straight” when the fall occurred. She had indicated in a prior recorded statement that decedent was about two yards inside the gate when the fall occurred. Pfeifer testified that the general nature of the ground in the area where decedent fell was slippery. She also indicated that, from the time she saw decedent until the fall, decedent walked a distance of approximately 30 to 40 feet, taking short steps, so that she covered the distance in approximately three minutes. After the fall, Pfeifer went over to decedent and spoke with her before she was carried inside.

Decedent was transported to a hospital, where it was determined that she had fractured her left ankle. A cast was applied. On January 10, 1979, while leaving home to go to the doctor, Mary Peckham collapsed and died. An autopsy established that her death resulted from a blood clot caused by the fracture.

Defendant does not deny that the fall occurred on company premises or that the injury caused decedent’s death. Defendant does contend that the injury did not arise out of and in the course of her employment. It is argued that the injury resulted from her voluntary act of going under the crossing arm, thereby assuming a risk not incidental to her employment.

This court has held, under certain circumstances, that accidental injuries sustained on the employer’s premises within a reasonable time before or after work arise “in the course of” employment. (Rogers v. Industrial Com. (1980), 83 Ill. 2d 221, 223; Peel v. Industrial Com. (1977), 66 Ill. 2d 257, 260.) It has also held that not all parking lot injuries are compensable as “arising out of” employment. To be compensable, the injury must have resulted from some risk connected or incidental to the employment. (Rogers v. Industrial Com. (1980), 83 Ill. 2d 221, 223; Peel v. Industrial Com. (1977), 66 Ill. 2d 257, 260.) A personal deviation by an employee (e.g., spending from IV2 to two hours in a tavern) can break the necessary causal link between the injury and the employment. (Aaron v. Industrial Com. (1974), 59 Ill. 2d 267.) Nor is an injury compensable if it resulted from risk personal to the employee rather than incidental to the employment. (See Rogers v. Industrial Com. (1980), 83 Ill. 2d 221 (claimant’s automobile, being driven by his wife, malfunctioned and struck claimant); Jones v. Industrial Com. (1980), 78 Ill. 2d 284 (claimant closed car door on his hand); Fisher Body Division, General Motors Corp. v. Industrial Com. (1968), 40 Ill. 2d 514 (claimant’s car battery exploded).) In these cases, the court denied recovery where the injury claimant sustained on the employer’s premises did not occur as a result of the condition of those premises. However, where the claimant’s injury was sustained as a result of the condition of the employer’s premises, this court has consistently approved an award of compensation. Hiram Walker & Sons, Inc. v. Industrial Com. (1968), 41 Ill. 2d 429; Carr v. Industrial Com. (1962), 26 Ill. 2d 347; De Hoyos v. Industrial Com. (1962), 26 Ill. 2d 110 (cases in which claimant fell in employer’s ice-covered parking lot).

In the instant case, similar to Hiram Walker, Carr and De Hoyos, and unlike Rogers, Jones and Fisher-Body, the injury to decedent occurred within a reasonable time before work as a result of a fall on the employer’s icy premises. Defendant posits, however, that from the time Himmelrick looked away until he saw decedent on the ground, six to 12 inches inside the crossing arm, decedent could not have walked to the end of the 37-foot arm and back to the hinged end. Based upon the above assumption, the defendant argues that the decedent voluntarily assumed an “added risk” by going under the arm.

In support of this argument, defendant relies on the testimony of Mark Himmelrick and disputes the credibility of Becky Pfeifer. Defendant points out that Pfeifer was a close friend of decedent and asserts that she was biased in decedent’s favor. Defendant also relies on the inconsistencies in Pfeifer’s testimony with respect both to the relative positions of decedent and herself before and at the time of the fall and to the position of the crossing arm. Defendant further points to conflicts between the testimony of Himmelrick and Pfeifer. However, it is well settled that the Industrial Commission shall determine the credibility of the witnesses and resolve disputed questions of fact. (General Electric Co. v. Industrial Com. (1982), 89 Ill. 2d 432, 435; Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 174.) In this case, it was for the Commission to determine Pfeifer’s credibility and to resolve any conflicts between Himmelrick’s and her testimony.

It is equally well settled that the Commission’s finding of a causal relationship will not be reversed unless it is contrary to the manifest weight of the evidence. (General Electric Co. v. Industrial Com. (1982), 89 Ill. 2d 432, 435; Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 175.) This principle was demonstrated in Jewel Companies, Inc. v. Industrial Com. (1974), 57 Ill. 2d 38, where a claimant sustained an injury while driving a motorcycle on his employer’s premises. The issue was whether claimant’s injury was caused by reckless conduct (driving at an excessive speed), thereby removing it from coverage under the Act, or whether it occurred as a result of a risk incident to employment. This court held that resolution of the factual question of a causal connection between the employment and the injury is within the province of the Commission. (57 Ill. 2d 38, 43.) After so holding, the court concluded that the Commission’s decision was not contrary to the manifest weight of the evidence, and therefore approved the Commission’s award.

Here, both witnesses testified that decedent was taking short steps. As related earlier, Himmelrick testified that decedent had fallen between a half foot and a foot inside the crossing arm at the hinged end. Pfeifer testified that decedent fell approximately 10 feet inside the arm. Neither witness observed decedent go under the crossing arm. The one witness who observed the fall testified that decedent was standing straight when the fall occurred. There was sufficient evidence for the Commission to conclude that, irrespective of whether or not decedent went under the crossing arm, she was in an erect position when the fall occurred and that the injury resulted from a risk incident to employment. The Commission’s decision that decedent’s injury arose out of and in the course of employment is not contrary to the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Macon County is affirmed.

Judgment affirmed.


author: JUSTICE UNDERWOOD

text:
    (No. 54494.
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, Appellant, v. RUSSELL EDWIN WALKER et al., Appellees.

      Opinion filed June 1, 1982.

      Liebling & Hauselman, of Chicago (Martin F. Hauselman and Patricia O’Brien Norum, of counsel), for appellant.
    Legal Assistance Foundation of Chicago (James 0. Lat-turner, of Englewood, of counsel), for appellees.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

This case concerns the application and constitutionality of section 7 of “An Act relating to mortgages ***” (Ill. Rev. Stat. 1979, ch. 95, par. 57), which permits a mortgagor to reinstate a delinquent mortgage upon payment of the amount of delinquency and costs within 90 days of summons in the foreclosure action but prior to a final order of foreclosure. A mortgagor may cure his delinquency under the terms of the statute only once in a five-year period. In an action brought by First Federal Savings and Loan (plaintiff) to foreclose its delinquent mortgage on defendants’ home, which had been twice reinstated under this statute within the preceding two years, the circuit court of Cook County held that, by limiting the frequency with which the statute could be used, the legislature had unconstitutionally limited the inherent equitable powers of the court. Furthermore, the court held that First Federal, by allowing the second reinstatement of the mortgage, had waived its right to invoke the statute’s once-in-five-years limitation in the third foreclosure action. First Federal appeals directly here under Rule 302(a)(1) (73 Ill. 2d R. 302(a)(1)).

The procedural posture of this cause is unusual because defendants filed no pleadings in the circuit court, and both the issues of waiver and constitutionality were raised by the trial court sua sponte. Defendant Editha Walker appeared pro se at most of the many hearings in this matter extending over a 12-month period. After repeated urgings by the court, she obtained counsel from the Legal Assistance Foundation and was represented at the last two hearings. Her husband, Russell Walker, entered a pro se appearance but did not thereafter attend the hearings. The couple was divorced during the course of the proceedings, and Editha was awarded the home. Editha Walker’s attorneys, in response to the circuit court’s request, filed a memorandum of law on the constitutionality of the statute, which concluded, as did the court, that the statute invaded the equitable powers of the court and violated the equal protection and due process clauses of the Illinois and United States constitutions, as well as the special legislation clause of the Illinois Constitution.

The record indicates that at various times in open court Editha Walker tendered sums to First Federal in partial satisfaction of the delinquency. At one point the tendered sum apparently equaled the total amount of the delinquency but did not include the costs and attorney fees which the statute requires in order to reinstate. First Federal consistently refused the tendered payments and insisted on its right to foreclose. In its order, which found that the statute was unconstitutional and that First Federal had waived its right to foreclose, the court ordered that the mortgage be reinstated and that Editha Walker pay into court the delinquent sum and future installments as they became due. Attorney fees were determined to be $1,000, but no order was entered concerning payment.

Editha Walker moved to dismiss this appeal on mootness grounds, and we took the motion with the case. It is stated by her in support of the motion that should the Federal court in her presently pending bankruptcy proceedings refuse to approve a plan submitted to it, she could not meet her obligations under the mortgage. Conversely, if the bankruptcy court approves a plan, the constitutionality of the statute is irrelevant, for the bankruptcy plan will be controlling. It seems clear, however, that neither conclusion necessarily follows. The validity of the statute could conceivably be a factor in the bankruptcy court’s consideration of the case before it, and the Walkers’ financial situation could conceivably change between the date of the motion and future trial court proceedings. Consequently, the motion to dismiss is denied.

The trial court’s conclusions that the statute is unconstitutional on due process and equal protection grounds and constitutes special legislation are without merit. Prior to adoption of the reinstatement statute, a mortgagor had, and retains, a statutory right to redeem his property from foreclosure and sale (Ill. Rev. Stat. 1979, ch. 77, par. 18), although that procedure is more costly and apparently not often used by homeowners. (Illinois Legislative Review: Foreclosures, Redemptions, and Homeowners, 1975 U. Ill. L. F. 335, 339, 351-52.) The right to reinstate a delinquent mortgage was unknown to the common law and is purely statutory. (State Farm Life Insurance Co. v. Town & Country Association (1980), 85 Ill. App. 3d 319, 323; Evergreen Savings & Loan Association v. Barnard (1978), 65 Ill. App. 3d 492, 496; see also Illinois Legislative Review: Foreclosures, Redemptions, and Homeowners, 1975 U. Ill. L.F. 335, 337-38; 59 C.J.S. Mortgages sec. 495(1) (1949); see generally 4 American Law of Property, Mortgages secs. 16.6 through 16.10 (1952).) Enactment of the statute was apparently intended by the General Assembly as a means of affording limited relief to temporarily distressed mortgagors prior to a foreclosure sale. The once-in-five-years limitation on use of the statute represents the considered judgment of the General Assembly as to the frequency with which reinstatement without the consent of the mortgagee should be available to a defaulting mortgagor. Since the reinstatement statute is an economic regulation not affecting fundamental rights, the Constitution requires only that the challenged classifications be rationally related to a legitimate State interest. (City of New Orleans v. Dukes (1976), 427 U.S. 297, 303-04, 49 L. Ed. 2d 511, 516-17, 96 S. Ct. 2513, 2516-17; Dandridge v. Williams (1970), 397 U.S. 471, 483-85, 25 L. Ed. 2d 491, 501-02, 90 S. Ct. 1153, 1161-62.) Affording a mortgagor who finds himself in temporary economic difficulties an unprecedented opportunity to reinstate his mortgage once, but only once within a five-year period, is neither an irrational nor an unreasonable classification. Rather, it seems to us to strike a logical, albeit debatable, balance in allowing the mortgagee to exercise his right to foreclose under the terms of the mortgage when the mortgagor, through a second default, exhibits his inability to overcome financial difficulty. The distinction between those mortgagors who have previously defaulted and those who have not is not irrational; neither does it appear irrational to require that a once reinstated mortgagor exhibit his ability to meet his obligations for a five-year period before he may again exercise a right of reinstatement. The five-year limitation constitutes neither a denial of equal protection by discriminating arbitrarily against an exclusive class of persons nor special legislation, as it does not arbitrarily confer a benefit upon an exclusive class of persons to the exclusion of those similarly situated. (Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130; cf. Meier v. Hilton (1912), 257 Ill. 174, 180-81 (construing the then-existing statute providing for redemption from judicial sale).) Nor does the period of 90 days from service of summons and prior to a judgment of foreclosure in which a delinquent mortgagor must satisfy the delinquency and costs appear to be an unreasonable restraint on the exercise of the right to reinstate a mortgage. (See, e.g., Lindsey v. Normet (1972), 405 U.S. 56, 63-65, 31 L. Ed. 2d 36, 44-46, 92 S. Ct. 862, 869-70 (requirement of a trial, in a forcible entry and detainer action, no later than six days after service of summons unless security is provided does not offend due process clause).) It can, of course, be argued by mortgagors that the once-in-five-years limitation upon reinstatement should be once in two years and the 90 days from summons should be six months. Similarly, mortgagees may deplore the enactment of any reinstatement authority. But the fact that opinions differ as to the desirability of the legislation or the time periods specified by the legislature simply demonstrates that the periods chosen are not unreasonable. The statute provides a method by which a mortgagor may avoid foreclosure during a period of temporary financial embarrassment. We cannot say that the legislature was arbitrary and unreasonable in determining that the mortgagor must be able to overcome this condition within 90 days to avoid the repercussions of his default, particularly when it is considered that the right to reinstate is in addition to the right to redeem from any subsequent foreclosure and sale.

The circuit court’s conclusion that the once-in-five-years limitation impermissibly interferes with the inherent powers of a court of equity misconceives both the nature of this remedy and the court’s power. As earlier noted, the right to reinstate a delinquent mortgage did not exist at common law, and when a mortgagor defaulted in his payments on a mortgage which provided, as here, for acceleration of the entire debt upon default, he could redeem the mortgage prior to the order of foreclosure and sale only by paying it in full. (E.g., Curran v. Houston (1903), 201 Ill. 442, 445 (such a clause is “not objectionable as being in the nature of a penalty or forfeiture, but will be sustained in equity as well as at law”).) Consequently, in the absence of a statute such as the one before us conferring a right to reinstate an accelerated mortgage debt after foreclosure proceedings have begun, tender of the amount of delinquency will not prevent foreclosure. (Robinson v. Miller (1925), 317 Ill. 501; Park Avenue Methodist Episcopal Church v. Park Avenue Colored Methodist Episcopal Church (1927), 244 Ill. App. 148; 59 C.J.S. Mortgages sec. 495(6)(b), at 796-97 (1949); cf. Paulauskas v. Rumsas (1971), 1 Ill. App. 3d 460, 463 (payment of delinquent sums and reinstatement of mortgage under statute abates acceleration of debt).) Therefore, even if the trial court had been correct in determining that the statute was unconstitutional, First Federal would still have been entitled to foreclosure where no defense was offered to its complaint and the entire balance and costs due on the mortgage note were not tendered.

Apparently, however, the trial court viewed the statute as enlarging its equitable powers by authorizing reinstatement but unconstitutionally invading those enlarged powers by limiting the use of the provision. The statute, however, created a substantive right unknown at common law, and the time limitation on its use is obviously an integral part of that right. As such it neither expanded nor contracted the equitable powers of the court (see Smith v. Toman (1938), 368 Ill. 414, 420; Evergreen Savings & Loan Association v. Barnard (1978), 65 Ill. App. 3d 492, 496-97; cf. People ex rel. County Collector v. Jeri, Ltd. (1968), 40 Ill. 2d 293, 301-02), for even those powers must be exercised within the framework of the law (Stone v. Gardner (1858), 20 Ill. 304; Evergreen Savings & Loan Association v. Barnard (1978), 65 Ill. App. 3d 492, 497; cf. Smith v. Toman (1938), 368 Ill. 414). In Stone v. Gardner (1858), 20 Ill. 304, 309, the court, in commenting on equitable powers, said:

“We do not know of any power existing in a court of equity to dispense with the plain requirements of a statute; it has been always disclaimed, and the real or supposed hardship of no case can justify a court in so doing. When a statute has prescribed a plain rule, free from doubt and ambiguity, it is as well usurpation in a court of equity as in a court of law, to adjudge against it; and for a court of equity to relieve against its provisions, is the same as to repeal it.”

See also 30 C.J.S. Equity sec. 23(a), at 819, and sec. 103, at 1065-69 (1965).

People ex rel. County Collector v. Jeri, Ltd. (1968), 40 Ill. 2d 293, is cited in support of the argument that a court has the duty to protect its judicial power from legislative encroachment (see Agran v. Checker Taxi Co. (1952), 412 Ill. 145), and that the legislature may not direct a court how to decide a case (see generally People v. Spegal (1955), 5 Ill. 2d 211, 220). The trial judge indicated his belief that the limitation on the frequency of use of the reinstatement right violated both of these principles. Jeri held that the statute which required that a purchaser at a tax sale transcribe the evidence presented to the trial court and attach the transcript as part of the court order did not violate the separation-of-powers article of the Constitution. (40 Ill. 2d 293, 301-02.) This requirement was characterized as “but one of many statutory conditions upon which issuance of a tax deed is predicated. This requirement does not purport to direct how a court should decide cases nor does it circumscribe the power of a judge to determine facts and apply the law to them.” (40 Ill. 2d 293, 302.) Similarly to Jeri the statute here neither directs the court how to decide a case nor circumscribes the power of the judge to determine the facts and apply the law to them. As earlier stated, absent a statutory right to reinstate, a defaulting mortgagor could avoid foreclosure only by paying the accelerated debt in full (the right of equitable redemption) or by presenting a defense cognizable in equity (e.g., laches, fraud, duress, estoppel, etc.). A valid defense might be presented where reinstatement rights are in issue (see, e.g., Federal National Mortgage Association v. Bryant (1978), 62 Ill. App. 3d 25 (payment sufficient to cure default made prior to initiation of foreclosure-mortgagee’s refusal to accept an attempt to foreclose termed “overreaching”); Paulauskas v. Rumsas (1971), 1 Ill. App. 3d 460 (where summons was never served on administrator, court should have allowed reinstatement even though eight months after his entry of appearance and 30 days prior to entry of decree of foreclosure)), but no such defense appears in this record. We have held valid the limitation upon the frequency of use of the right of reinstatement, and in the absence of a cognizable defense, the court was bound to give effect to it.

We find no evidence that First Federal has waived its right to proceed to foreclosure. Both the mortgage instrument and the note which it secures provide that a waiver of a term on one occasion is not to be considered a waiver of that term on subsequent occasions. According to the undenied allegations of First Federal’s motion for summary judgment, Walkers’ mortgage was reinstated by court order under the terms of the statute on December 15, 1978, and again on August 31, 1979. After a third default in December 1979 First Federal filed this action in January 1980. While the record does not indicate the extent to which First Federal opposed the second reinstatement, the trial court seems to have believed there was no opposition and held that by permitting the second reinstatement First Federal had waived its right to invoke the five-year limit on the statute’s use in this action, and that defendants had relied upon the right to reinstate a third time. A waiver is the intentional relinquishment of a known right, and the burden of proof is upon the party claiming waiver. (Ferrero v. National Council of Knights & Ladies of Security (1923), 309 Ill. 476, 481; see also Lake Shore Country Club v. Brand (1930), 339 Ill. 504, 524-25; Kane v. American National Bank & Trust Co. (1974), 21 Ill. App. 3d 1046.) As we earlier indicated the reinstatement statute appears to have been intended primarily for the benefit of financially embarrassed mortgagors. To hold that a mortgagee who agrees to a second reinstatement within five years may not object to a subsequent reinstatement seems likely to preclude more than a single reinstatement during any five-year period, for mortgagees would be reluctant to risk waiving their rights to foreclose in the event of future defaults. Such holding clearly encourages foreclosures, the very result the General Assembly sought to avoid in enacting the statute. We accordingly conclude that, standing alone, the failure to foreclose on a second default does not operate as a waiver of the option to foreclose because of a later default. (4 American Law of Property, Mortgages sec. 16.193 (1952); cf. Manufacturers Finance Trust v. Stone (1929), 251 Ill. App. 414, 424 (similar result with respect to delinquencies in chattel mortgage installments).) The fact that a mortgagee has given a delinquent mortgagor another chance to make good his promises should not operate to bar recourse to foreclosure when financial difficulties continue. If defendants here did in fact rely upon an expectation that First Federal would permit further reinstatements, a conclusion unsupported by the record, it does not appear to have been a reasonable reliance considering that the third default followed by only three months the second reinstatement. Any other conclusion than that reached here might in our judgment seriously jeopardize both the rights of creditors and joint efforts by debtors and creditors to compromise temporary financial difficulties in solutions less drastic than foreclosure.

Because defendants have filed no pleadings it would appear that plaintiff is entitled to the relief sought, unless precluded by the pending bankruptcy proceedings. Accordingly, we reverse the judgment of the circuit court of Cook County and remand the cause to that court with directions to proceed consistently with this opinion to the extent such action is not incompatible with action taken by the bankruptcy court.

Reversed and remanded, with directions.


author: JUSTICE SIMON

text:
    (No. 55451.
    MADISON PARK BANK, Appellee, v. JAMES B. ZAGEL, Director of Revenue, et al., Appellants.

      Opinion filed June 1, 1982.

    Tyrone C. Fahner, Attorney General, of Springfield (John D. WhiteNack, Special Assistant Attorney General, and Lloyd B. Foster, of Chicago, of counsel), for appellants.

      Douglas H. Walter and Colleen A. Khoury, of Bell, Boyd & Lloyd, of Chicago (Sidney D. Davidson, of Peoria, of counsel), for appellee.
    James B. Deutsch, of Jefferson City, Missouri, for amicus curiae State of Missouri.
    New Mexico Taxation & Revenue Department of Santa Fe, New Mexico, for amicus curiae State of New Mexico.
    Robert Abrams, Attorney General, of Albany, New York (Shirley Adelson Siegel, Solicitor General, and Wayne L. Benjamin, Assistant Attorney General, of counsel), for amicus curiae State of New York.
    William D. Dexter, of Tumwater, Washington, for amicus curiae Multistate Tax Commission.
    Donald X. Murray, of Chicago, for amicus curiae Illinois Bankers Association.
   JUSTICE SIMON

delivered the opinion of the court:

The substantive issue in this case is whether a corporation with losses for Federal income tax purposes, but positive income from sources subject to the State but not the Federal tax, may offset those losses on its Illinois income tax return against the positive State income. For the reason explained below, we do not decide that issue.

Section 201(a) of the Illinois Income Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 2-201(a)) imposes a tax on “net income.” “Net income” is defined in section 202(a) (Ill. Rev. Stat. 1973, ch. 120, par. 2-202(a)) as “that portion of [taxpayer’s] base income for [the] year which is allocable to this State [rather than to other states],” minus a standard exemption which is defined in section 204 (Ill. Rev. Stat. 1973, ch. 120, par. 2-204). “Base income,” in turn, is defined for corporations by section 203(b) (Ill. Rev. Stat. 1973, ch. 120, par. 2-203(b)) as the taxpayer’s “taxable income for the taxable year” plus several items, including “interest * * * to the extent excluded from *** the computation of taxable income” (Ill. Rev. Stat. 1973, ch. 120, par. 2-203(b)(2)(A)), minus several other items including “[a]n amount equal to all amounts included in [taxable income] *** which are exempt from taxation by this State either by reason of its Constitution or by reason of the Constitution, treaties or statutes of the United States” (Ill. Rev. Stat. 1973, ch. 120, par. 2-203(b)(2)(F)). “Taxable income” is defined by the Illinois Income Tax Act as “the amount of *** taxable income properly reportable for federal income tax purposes for the taxable year under the provisions of the Internal Revenue Code.” (Ill. Rev. Stat. 1973, ch. 120, par. 2-203(d)(1).) Thus for purposes of the Illinois income tax, “taxable income” does not mean income taxable by the State at all, but rather income taxable under the Federal income tax. It is in terms of this concept that “net income,” the income on which Illinois levies its tax, is in part defined.

Specifically, the issue in this case is whether the taxpayer, Madison Park Bank, which in 1974 had a large overall loss in terms of Federal taxable income but an even larger gain from municipal bonds, taxable only under the Illinois income tax, can enter a negative number as its “taxable income” or whether the figure it must enter is “zero.” The taxpayer argues that a net loss for Federal income tax purposes should be entered as such for State income tax purposes in the year it is incurred. The Department of Revenue argues that the proper way to recognize such losses for State income tax purposes is to carry the loss back or forward on one’s Federal income tax return to another year, as contemplated by the Internal Revenue Code (26 U.S.C. sec. 172 (1976)), and then amend one’s State income tax return for that other year to reflect the smaller “taxable income” amount on the Federal return. The Department of Revenue also argued successfully in the appellate court that the taxpayer in this case had already done this and that the loss was therefore being used twice to reduce the taxpayer’s debt in violation of section 203(f) of the Illinois Income Tax Act, which prohibits double deductions of the same loss (Ill. Rev. Stat. 1973, ch. 120, par. 2-203(f)).

The hearing officer in the administrative proceeding ruled for the Department of Revenue and ordered the bank to list its 1974 Federal taxable income as “zero.” On administrative review, the circuit court of Peoria County summarily reversed the hearing officer, and the Department of Revenue appealed. The appellate court held that the Illinois tax laws did not permit the same item of loss to be deducted twice, but remanded the cause to the hearing officer with instructions to permit the bank to amend its 1974 return so as to allow recognition of the loss to the extent it had not already been carried back. (97 Ill. App. 3d 743.) We granted the Department’s petition for leave to appeal.

The bank calls our attention to the fact that having previously carried back its entire 1974 loss to an earlier year, it has no current negative income to quarrel over in view of the appellate court’s ruling that the same deduction cannot be taken twice. The bank did not challenge that ruling and paid the entire amount in controversy ($6,268) without dispute shortly after the appellate court decision; it therefore urges that we dismiss this case as moot. We recognize that the issue urged upon us by the Department of Revenue for review is a disputed question which will determine the rights of the bank if in future tax years it sustains a Federal loss it cannot carry back to offset earlier years’ gains. However, we fail to find any present controversy between the litigants here. The Department of Revenue would have no greater present rights against the bank were it to receive the ruling it requests than if we were to dismiss without opinion and allow the appellate court ruling to stand. The bank has paid all the money it was ever alleged to have owed. Any judgment we could render would be “ ‘wholly ineffectual for want of a subject matter on which it could operate’ ” (La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 382, quoting Brownlow v. Schwartz (1923), 261 U.S. 216, 217, 67 L. Ed. 620, 621, 43 S. Ct. 263, 264) and could have advisory effect only.

This court will not review cases merely to establish a precedent or guide future litigation. (In re Marriage of Wright (1982), 89 Ill. 2d 498; People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 237; La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375.) We therefore hold this cause to be moot.

It is true that Illinois courts have occasionally found exceptions to the mootness doctrine. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618 (review granted on issue of whether parents can prevent an infant from receiving a needed blood transfusion even though he had already received it because failure to act quickly in similar cases in the future would lead to irreversible harm); Environmental Protection Agency v. Pollution Control Board (1980), 88 Ill. App. 3d 71 (review of administrative decision to allow a steel mill to discharge noxious fumes granted in order to address an important question affecting public health, even though licensing rules had been changed); August H. Skoglund Co. v. Department of Transportation (1978), 67 Ill. App. 3d 276 (review granted to allow defendant to vindicate its interest in a controversy which was likely to recur but unlikely to last long enough to allow appellate review to take place).) Whether or not the holdings in those cases were correct, this case involves nothing that would justify review and enable this court to avoid characterizing it as moot. The public interest in review is less urgent than it is in a case which calls into question the entire process by which licenses to discharge noxious fumes are granted or denied. This is not a case in which quick action by the administrative body is needed, nor one which falls into the “capable of repetition, yet evading review” category. (Sosna v. Iowa (1975), 419 U.S. 393, 399-400, 42 L. Ed. 2d 532, 540, 95 S. Ct. 553, 557.) There is no reason to fear that all similar cases would become moot before they make it to this court’s docket; in fact, the only reason this case is moot is because this taxpayer happened to have already used its entire Federal loss as a carryback so that it no longer existed to be offset against current State income.

The fact that this case became moot before we granted leave to appeal should not deter us from dismissing the case now. The United States Supreme Court in Brownlow v. Schwartz (1923), 261 U.S. 216, 67 L. Ed. 620, 43 S. Ct. 263, dismissed a writ of error under similar circumstances, finding that the policies behind the mootness doctrine were equally compelling whether the event that rendered the case moot occurred before or after the writ of error was granted.

We therefore dismiss this case. However, this disposition would leave standing the determination of the appellate court that taxpayers may offset Federal losses against current Illinois gains were we to do nothing more. We thus vacate the judgments of the appellate and circuit courts on this issue without comment as to the merits. See People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 237; La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375.

Judgments vacated; cause dismissed.