author: MR. JUSTICE CLARK MR. CHIEF JUSTICE GOLDENHERSH, MR. JUSTICE MORAN, MR. JUSTICE RYAN,

text:
    (No. 52176.
    CYNTHIA LYNCH et al., Appellees, v. THE BOARD OF EDUCATION OF COLLINSVILLE COMMUNITY UNIT DISTRICT NO. 10, Appellant.

      Opinion filed September 15, 1980.

    Rehearing denied November 26, 1980.

    GOLDENHERSH, C.J., and MORAN, J., concurring in the decision.
    RYAN, UNDERWOOD, and WARD, JJ., dissenting.
    Walker & Williams, of Belleville (James C. Cook, of counsel), for appellant.
    Robert C. Nelson, of Belleville, for appellees.
   MR. JUSTICE CLARK

delivered the decision of the court and the following opinion in which MR. JUSTICE KLUCZYNSKI joins:

The plaintiffs, Cynthia L. Lynch, by her father and next friend, Raymond L. Lynch, and Raymond L. Lynch, individually, filed a two-count complaint in the circuit court of Madison County on September 12, 1975. In count I Cynthia sought damages from the defendant, the board of education of Collinsville Community Unit District No. 10, for injuries she suffered during a “powder-puff” football game held at the Vandalia campus of the Collinsville high school on October 27, 1974. Count II consisted of the same pleaded facts, but damages were sought by Raymond Lynch for the expenses he had incurred as a result of Cynthia’s injuries. An amended complaint was filed on October 9, 1975. It added a paragraph to each count of the original complaint alleging that the defendant possessed insurance coverage. The defendant filed an answer on January 6, 1976. On March 21, 1977, the plaintiffs filed a second amended complaint which consisted of four counts. Upon a motion to dismiss, the court ordered, on April 6, 1977, that counts I and III be dismissed. The defendant filed an answer to the remaining counts. Thereafter on March 9, 1978, the first day of trial, the court granted the plaintiffs’ motion to reinstate counts I and III of the second amended complaint. In count I, Cynthia alleged that the defendant was negligent in failing to provide her with protective equipment. In count II, Cynthia alleged that the defendant was wilfully and wantonly negligent by failing to supervise the football game. In counts III and IV, Raymond Lynch repeated the allegations of counts I and II, respectively. At the conclusion of the trial, a jury returned a general verdict for Cynthia in the amount of $60,000; the jury returned a verdict against Raymond Lynch on counts III and IV. Judgment was entered on the verdicts on March 15, 1978. Subsequently, Cynthia, by now of age, was substituted as party plaintiff in her own name. The defendant’s post-trial motion to vacate the judgment was denied by the trial court on August 13, 1978. The defendant appealed to the Appellate Court for the Fifth District. The appellate court, with one justice dissenting, affirmed the judgment of the circuit court. (72 Ill. App. 3d 317.) We subsequently granted the defendant’s petition for leave to appeal. 73 Ill. 2d R. 315(a).

Since an issue is raised herein as to whether the jury’s verdict in favor of Cynthia was against the manifest weight of the evidence, a detailed recitation of the facts is warranted. We note, incidentally, that since no appeal was taken from the judgment entered against Raymond Lynch the merits of that judgment are not before us.

The plaintiff, Cynthia Lynch, was playing quarterback on the junior girls’ football team on October 27, 1974. She had thrown a pass to a teammate when she was struck in the face by an opposing player and knocked down. The back of her head struck the ground with considerable force. Cynthia was taken to the hospital by her parents, who had been at the game as spectators. The hospital records admitted into evidence at the trial reveal that Cynthia suffered a small linear fracture of the nasal bone. The senior girls eventually won the game 52 to 0.

■ From the voluminous testimony adduced at trial it appears that the junior-senior “powderpuff” football game had been played each year as a half-time event of the homecoming varsity football game from 1970 to 1973. In 1974, when Rodney Woods became the principal of Collinsville high school, he ordered that the game not be held during half time of the homecoming game. Nevertheless, several students approached some of the teaching faculty and requested them to coach the girls’ teams. Three teachers agreed to do so. None of the three teachers had been hired by the district to be coaches. It is not entirely clear from the record, but between four and six practice sessions were held in preparation for the football game. These sessions were held after school on school grounds. The girls changed their clothes in the school locker room prior to the practices. It is unclear whether a school football was used in either the practice sesssions or during the game. There was testimony that one of the footballs was supplied by a student while no one knew the owner of a second football which was used. The game was played on Sunday of homecoming weekend, October 27, 1974, but not during half time of the varsity football game.

The testimony is undisputed that little instruction in the rules of football was given during the practice sessions. Two witnesses who had played in the game, in addition to the plaintiff, testified that these sessions consisted primarily of passing and hiking the ball and blocking each other in order to get an idea as to which girl was best suited for each position. It was suggested by one of the teachers that the girls purchase mouth guards since tackle football could be “rough” at times. Most of the girls, including the plaintiff, did purchase and wear mouth guards for the game.

The plaintiff testified that several notices of the game were posted on bulletin boards throughout the school. This testimony was corroborated by Reese Hoskins, an assistant principal, and by Rodney Woods, the principal. Additionally, the plaintiff, and two of the participants in the game who testified, stated that at least one, if not more, announcements were made by students over the school’s public address system to inform the students of the practice sessions and the game.

Further evidence was adduced at trial by the plaintiff to establish that her injuries were more extensive than a fractured nose. Testimony of a psychiatrist, Dr. Anthony K. Busch, and the result of an electroencephalogram indieating an abnormal brain-wave pattern, were admitted during trial. This evidence related to the testimony given by the plaintiff, her parents, and friends and neighbors of the plaintiff that after the football game in October 1974 the plaintiffs behavior changed. The evidence tended to establish that she became irritable, rebellious and moody. The plaintiff testified that she had six jobs between the time of the accident and the trial, and she was fired from five of them. The plaintiffs parents testified that since the accident the plaintiff had broken windows in her room in a fit of temper; they would find her walking the streets alone at night; and that she would sit in a rocking chair for hours, none of which she had done before her injury. In May 1975, the plaintiff took her father’s car and, with another girl and two boys, drove to Colorado and Utah, where they were apprehended by the authorities, but the plaintiff managed to escape. After an accident involving her father’s car in Wyoming, the plaintiff was placed in a girls school by the authorities until her parents could travel to Wyoming to take her home with them.

On cross-examination, the plaintiff testified that she had been involved in a fight with another student prior to the football game. Also, the plaintiff testified that her parents began to put more restrictions on her behavior at approximately the same time as the football game.

Dr. Busch testified that he began treating the plaintiff soon after her return from Wyoming. She was placed in the hospital by her parents, where Dr. Busch ordered her to be placed in leather restraints to keep her from running off. Dr. Busch stated that the plaintiff became “more cooperative” after she received sedatives and other medication he prescribed for her which neutralized the effects of her abnormal brain-wave pattern. A second electroencephalogram, taken six months later, showed no appreciable change in the plaintiffs brain-wave pattern.

Dr. Busch stated that in his opinion, based upon a reasonable degree of psychiatric certainty, the plaintiff’s condition is of permanent duration, and that while medication would enable her to have better control of her behavior, it would not eliminate her difficulties. Dr. Busch further testified that those difficulties would include impulses that the plaintiff would find difficult to control and some faultiness in judgment. In response to a hypothetical question which recited all of the facts in evidence, Dr. Busch testified that, in his opinion, the injury the plaintiff sustained on October 27, 1974, “quite probably was the causation of her difficulties.”

On cross-examination, Dr. Busch testified that his diagnosis of the plaintiff’s condition upon her discharge from the hospital was “a behavioral disorder of adolescence.” The doctor stated that if an electroencephalogram had been taken before the plaintiff’s injury it “would have helped tremendously” in judging whether her abnormal brain-wave pattern existed prior to the accident, but no such test had been conducted. The doctor further testified that he did not think that the plaintiffs abnormal brainwave pattern existed before the accident because some outward manifestations, including, possibly, fighting, would probably have occurred.

Donald Eugene Arnold, an instructor in football officiating and football coaching at the University of Illinois, also testified. Professor Arnold testified concerning the rules governing high school football in Illinois. He stated that the object is to promote the safety of the players. He further testified that he knew of no organized tackle football games where equipment such as helmets, shoulder pads and the like are not used; that such equipment is required by the rules promulgated by the Illinois High School Association. Professor Arnold further stated that he had coached a powderpuff tackle football game while he was an undergraduate in college. He testified that, in that game, attendance at two weeks’ practice prior to the game was mandatory, and that helmets and full football gear were worn by the participants. Professor Arnold also stated that since head injuries are usually severe, it is mandatory that football players wear helmets for all practices and at all times they are playing football. Finally, Professor Arnold testified that the Illinois High School Association rules provide that a major penalty for roughing the passer after the ball has been released.

Dallas Harrell, an assistant superintendent of the defendant school district, in charge of personnel, was called to testify by the plaintiff as an adverse witness. Harrell testified that he knew the defendant owned the athletic field upon which the football game was played, and he knew that the defendant possessed a duty to supervise the fields and other real property it owned. Harrell was later recalled to the stand as an adverse witness. He stated that the defendant belongs to the Illinois High School Association. On redirect examination, Harrell testified that the defendant follows the rules in regular, authorized games.

During the defendant’s case in chief, Rodney Woods, the principal of Collinsville high school, Greenwood campus, testified that the game was not sponsored by the school because the procedure, whereby the board of education approved a faculty sponsor for school activities, was not followed. Woods also stated that, when he was approached by students for permission to make an announcement concerning the game over the public address system, he denied their request because the game was not a school activity. Woods testified that when he was informed that an announcement was made concerning the game, he instructed Reese Hoskins, an assistant principal, to make a countermanding announcement that the game was not an authorized school activity. Reese Hoskins, the assistant principal, subsequently testified that he gave the countermanding announcement. Woods also testified that pictures of the powderpuff football game were included in the school yearbook, which was produced by the students themselves. Finally, Woods testified very equivocally on cross-examination as to whether he specifically told the students they could not use the athletic field for the game. On cross-examination by plaintiffs counsel the following colloquy occurred:

“Q. Is such a permission request [to use the athletic fields] made then by these people who you say are other than supervisors of a school group?
A. Students ask.
Q. And did you use your discretion and tell them that they couldn’t play that game on school property?
A. No.
Q. You didn’t tell them they could not play that game?
A. No. They could not play on school property because it was not a school-sponsored activity.
Q. You told these kids that they couldn’t play this game on school property, is that correct?
A. Yes. In essence, yes.
Q. And then it was written up in the yearbook and so on. I notice that there is another athletic contest that is written up in the yearbook. A donkey basketball game. In looking at the photos of the donkey basketball game I notice that all of the participants are wearing some kind of helmets, is that correct?
A. I didn’t look at that page. You asked me to look at 110.
Q. When you told the students that they couldn’t play out there on the Collinsville athletic field, did you tell the teachers as well that they couldn’t supervise or that they couldn’t coach those students?
A. Tell them they couldn’t? One of my assistants told them—
Q. Object to what your assistant said. Did you tell them?
A. Did I tell them? No, I didn’t talk to them to the best of my knowledge or recollection.”

Linda Mitchell, one of the plaintiffs teachers, testified that the plaintiff was antagonistic toward her prior to the accident of October 27, 1974, and that plaintiff either failed the first semester or received a grade of D. Also, Mrs. Mitchell testified that the plaintiff’s behavior improved toward the end of the year. On cross-examination, the witness indicated that the records from that school year showed that the plaintiff received a grade of C the first semester and a D for the second semester.

Charles Suarez, a Spanish teacher for the defendant and the coach of the junior girls’ team for the 1974 game in which the plaintiff was injured, testified that the principal did not instruct him that he could not coach the girls in the game. Suarez also testified that he asked an assistant principal to make an announcement concerning the game, but the assistant principal refused to do so. Suarez stated he did not believe that he undertook to coach the game as part of the activities of the high school, that he received no compensation for coaching the game and that the game was not a part of the regular program of the high school.

Based primarily upon the foregoing facts, the jury returned a general verdict in favor of the plaintiff. It is the jury’s function to determine the preponderance of the evidence, and a reviewing court will reverse only if that determination is against the manifest weight of the evidence. (Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 553; Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 451.) The inquiry on appeal is whether the result reached below was one which is reasonable on the facts in evidence, not whether other conclusions might also have been reached. Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 575.

At the outset we observe that the parties have not raised or argued the applicability of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 1 — 101 et seq.). We are therefore not called upon to pass on its application to this case. See Tanari v. School Directors (1977), 69 Ill. 2d 630, 634-35.

The defendant school district contends that it has no liability in these circumstances because the powderpuff football game was not authorized or sponsored by the school, and school authorities made an effort to disassociate the school from the game.

The pertinent statute provides:

“Teachers and other certificated educational employees shall maintain discipline in the schools. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.” (Ill. Rev. Stat. 1973, ch. 122, par. 24 — 24.)

In Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 20, this court said in abolishing school district tort immunity:

“It is a basic concept underlying the whole law of torts today that liability follows negligence, and that individuals and corporations are responsible for the negligence of their agents and employees acting in the course of their employment. The doctrine of governmental immunity runs directly counter to that basic concept. What reasons, then, are so impelling as to allow a school district, as a quasi-municipal corporation, to commit wrongdoing without any responsibility to its victims, while any individual or private corporation would be called to task in court for such tortious conduct?”

“ ‘ [W] here an agent does an act in the course of his employment, although the principal did not authorize or participate in, or know of such misconduct, or even if he forbade the acts or disapproved of them, the rule of respondeat superior applies.’ ” (Darner v. Colby (1941), 375 Ill. 558, 566, quoting Keedy v. Howe (1874), 72 Ill. 133, 136; accord, Singer Manufacturing Co. v. Rahn (1889), 132 U.S. 518, 522-23, 33 L. Ed. 440, 442, 10 S. Ct. 176, 176; Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 845.) We must determine therefore whether the teachers, as agents, were acting within the course of their employment.

Whether an agent was acting in the course of his employment depends upon the contract between the parties and the nature of the relationship. Each case must depend on its own facts. No one feature of the relationship is determinative, but all must be construed together. (Darner v. Colby (1941), 375 Ill. 558, 560.) Moreover, the relationship must exist at the time and in respect to the particular transaction out of which an injury arose. (Mosby v. Kimball (1931), 345 Ill. 420, 427; accord, Darner v. Colby (1941), 375 Ill. 558, 560.) Finally, whether there is express authority is a question of fact, but the existence of implied authority from a certain state of facts is a question of law. (Doggett v. Greene (1912), 254 Ill. 134, 139.) It is clear that the teachers were not expressly authorized by the defendant to coach the game; thus whether the teachers possessed implied authority to do so is for the court to determine as a matter of law.

We think the record in this case indicates that at the time of the injury complained of, and during the transaction involved, the teachers were not acting in the course of their employment. The record discloses that the principal ordered that the football game no longer take place during the homecoming games; that the students could not make an announcement concerning the game over the public announcement system; and that the announcement of the game which was given without permission be countermanded to the effect that the game was not an authorized school function or activity. Moreover, Charles Suarez, a teacher and one of the coaches of the girls’ team, testified that he was requested to coach the girls’ team by several girls and not by the school board or its representatives. Further, Suarez stated that he never received authority or compensation to coach the team, and that, when he requested permission of an assistant principal to post an announcement concerning the game on a bulletin board, the assistant principal refused to do so. Finally, Suarez testified that he did not believe he was undertaking the game as a part of the activities of the high school nor was the game a part of the regular program of the high school. The existence of an agency relation may be proved by the testimony of the agent concerning the circumstances which constitute his authority. (Digman v. Johnson (1960), 18 Ill. 2d 424, 427.) We conclude that under the precise facts of this case, the teachers were acting outside of the course of their employment in coaching the football game, and were thus without express or implied authority to coach the game.

We next inquire whether, since the teachers were acting without express or implied authority, they were acting with apparent authority.

“ ‘An apparent agent is a person who, whether or not authorized, reasonably appears to third persons, because of the manifestations of another, to be authorized to act as agent for such other.’ ” (Alterman v. Lydick (7th Cir. 1957), 241 F.2d 50, 53, quoting Restatement of Agency sec. 8, comment a (1933); accord, Northern Illinois Coal Corp. v. Cryder (1935), 361 Ill. 274, 287-88.) A principal is bound equally by the authority which he actually gives his agent and by that which by his own acts he appears to give. (Faber-Musser Co. v. William E. Dee Clay Manufacturing Co. (1920), 291 Ill. 240, 244.) In order to hold the principal liable, however, there must be such conduct by the principal that a reasonably prudent person, using diligence and discretion, would naturally suppose an agent to possess. (Faber-Musser v. William E. Dee Clay Manufacturing Co. (1920), 291 Ill. 240, 244; Alterman v. Lydick (1957), 241 F.2d 50, 53.) Where evidence is conflicting, the question of whether an agent is authorized to act is a question of fact to be submitted to a jury. Barkhausen v. Naugher (1946), 395 Ill. 562, 566; Freet v. American Electrical Supply Co. (1913), 257 Ill. 248, 256.

In the instant case, the conflicts in the evidence make this case a close one to decide. It is difficult to determine whether the defendant, by its conduct, would justify a reasonably prudent person, using diligence and discretion, to suppose that the teachers possessed the authority to coach the football game. The principal of the high school, Rodney Woods, and his assistants, did take some steps to disassociate the school from the football game. For example, the fact that they countermanded the unauthorized announcement and refused to post bulletins concerning the game is conduct indicating their intent that the game be considered as an activity unconnected with the school. In addition, two of the girls who had played in the game testified on cross-examination that they did not think they were playing on a team representing Collinsville high school; however, that testimony does not obviate the possibility that the students thought they were engaging in an activity connected with the school program, even though it was not part of an official school team, such as the varsity track or football teams. Moreover, Dallas Harrell, an employee of the defendant, when recalled to the witness stand, testified that, as a matter of policy, approval of the school board is required before the use of defendant-owned athletic fields is permitted, and that teachers have no defined responsibilities beyond their teaching assignments, but that he did not know whether students would know of such matters. Finally, when it is considered that the practice sessions occurred on school grounds immediately after school, that the girls were permitted to use the school locker room to change clothes before practice, that the game took place on the Vandalia campus athletic field owned by the defendant, that the plaintiff and two other student witnesses testified they heard several announcements concerning the game and the practice sessions, and that three teachers were present as coaches and at least one other teacher was present as a spectator, it could appear to a reasonably prudent person that the teachers possessed authority to coach the game. Mindful of all of the evidence in this case, we will not substitute our judgment for that of the jury which heard the testimony and observed the witnesses; “the verdict is not palpably erroneous or wholly unwarranted from the manifest weight of the evidence.” Sloma v. Pfluger (1970), 125 Ill. App. 2d 347, 359; accord, Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 553.

We note that while the jury was not instructed on the law regarding apparent authority, it was instructed on the law concerning the scope of an agent’s authority. Moreover, the plaintiff tendered the following instruction which basically sets forth the law on apparent authority:

“The court instructs the jury that an agent’s authority may be presumed from silence of the alleged principal when he knowingly allows another to act for him as his agent, and the agent’s scope of authority may be determined by what persons of reasonable prudence, dealing with the agent, might rightfully believe him to have on the basis of the principal’s conduct.”

The trial court sustained the defendant’s objection to this instruction and refused to give it to the jury. Thus, the defendant cannot contend that error occurred when the jury was not instructed on the law regarding apparent authority, since it was the defendant which prevented the jury from being so instructed. “[A] party waives the right to raise as error action taken by the court at the instance of that party ***.” People v. Spates (1979), 77 Ill. 2d 193, 199; see Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 575.

The next issue we consider is whether the general verdict of liability was against the manifest weight of the evidence. Count I of the complaint sounded in ordinary negligence, whereas count II alleged wilful and wanton negligence. The jury returned a general verdict of liability, without distinguishing between the counts. The defendant would be liable under count II only if it, or its agents, had been wilfully and wantonly negligent in failing to supervise the game as an activity connected with the school program. Ill. Rev. Stat. 1973, ch. 122, par. 24 — 24; Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165.

We do not think that the facts in evidence support a verdict that the defendant, or its agents, acted in a wilfully and wantonly negligent manner. “ ‘A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by ordinary care.’ ” (Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 488, quoting Hering v. Hilton (1958), 12 Ill. 2d 559, 562, and Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583.) Furthermore, this court stated in Myers v. Krajefska (1956), 8 Ill. 2d 322, 328-29:

“[W] hile it is to be noted that in many instances different wording, language and terminology is employed by the different courts *** [to define wilful and wanton conduct], the basic general concept of the term as applied to the facts in the particular cases has remained essentially the same. The basic element in all of these cases indicates that liability can be founded under such a cause of action where the act was done with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved. The knowledge concerning other persons can be actual or constructive.
As indicated by the decisions of other States which do not employ this term, it is generally considered in that area of fault between ordinary negligence and actual malice. In view of the fact that it is a matter of degree a hard and thin line definition should not be attempted. As stated in Mower v. Williams [1949], 402 Ill. 486, [489-90], ‘[a]s to whether or not there has been wilful and wanton conduct in any given case necessitates close scrutiny of the facts as disclosed by the evidence, and while the rule of law does not vary, the facts to which the law is applicable always present divergent circumstances and facts which, in most instances, are wholly dissimilar.’ ”

See also Spring v. Toledo, Peoria & Western R.R. Co. (1977), 69 Ill. 2d 290.

We do not think the teachers’ conduct in the instant case rose to the level of wilful and wanton negligence. Certainly, the evidence indicates no intentional act by the teachers. Moreover, the evidence does not establish a conscious or reckless disregard of the safety of the students. Rather, the teachers did conduct several practice sessions, albeit not very efficiently. In addition, the teachers warned the girls that football could be “rough” and advised them to wear mouth guards during the game. The evidence does not demonstrate an utter and conscious disregard for the safety of the girls, simply insufficient precautions for their protection. While it is true that “[w] hen a jury, faced with assessing ordinary negligence or wilful and wanton misconduct, returns a general

verdict, it must be presumed that the defendant has been found guilty of wilful and wanton misconduct (Trumbo v. Chicago, Burlington & Qunicy R.R. Co. (1945), 389 Ill. 213, 221; Greene v. Noonan (1939), 372 Ill. 286, 291)” (Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 146-47), where, as here, no wilful or wanton misconduct has been proved as a matter of law and the jury returned a verdict considerably below that requested by the plaintiffs (see Hering v. Hilton (1958), 12 Ill. 2d 559, 563, 566-67; Greene v. Noonan (1939), 372 Ill. 286, 290; Brown v. Illinois Terminal Co. (1925), 319 Ill. 326, 330-31), we think the presumption is sufficiently rebutted. Thus, count II of the complaint merely constitutes an unproved count, the effect of which is governed by section 68(4) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 68(4)):

“If several grounds of recovery are pleaded in support of the same demand, whether in the same or different counts, an entire verdict rendered for that demand shall not *** be set aside or reversed for the reason that the evidence in support of any ground is insufficient to sustain a recovery thereon, unless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence and it appears that the denial of the motion was prejudicial.”

Formerly the rule which prevailed was that set forth in Greene v. Noonan (1939), 372 Ill. 286, 293, wherein it was stated that “where there is no evidence to support [a charge of wilful and wanton misconduct], it is the court’s duty, on motion, to withdraw such charge from the jury, and failure to do so is, by reason of the character of the charge, error requiring reversal of the judgment, for no one may know what influence the charge, though not proved, may have had upon the jury, particularly since it has not been informed that it was not to be considered by it. The distinction in law between wilful and wanton conduct and mere negligence is not a matter with which the average juror is familiar. We are of the opinion that the refusal to withdraw from the jury, on appellants’ motion, the consideration of the wilful and wanton charges, requires a retrial of the cause.” Pursuant to section 68(4), however, reversal is required only when a motion to withdraw the wilful and wanton misconduct ground on account of insufficient evidence is made prior to the charging of the jury and it appears that the denial of the motion was prejudicial. (See Ill. Ann. Stat., ch. 110, par. 68(4), Joint Committee Comments (Smith-Hurd 1968).) That is because the jury is not automatically presumed to have been misled by the court’s instructions. Some indication must appear to establish that the jury was improperly influenced by the instructions before reversal will follow.

In the instant case, the defendant made a motion for a directed verdict which contained the following paragraph:

“12. That with regard to Count II, in addition to the facts in evidence stated above, the plaintiff has failed to adduce any testimony from which the jury could conclude that the defendant was guilty of any wilful and wanton misconduct.”

Even if we consider, for the sake of argument, that this paragraph is sufficient under section 68(4) (but see Trumbo v. Chicago, Burlington & Quincy R.R. Co. (1945), 389 Ill. 213, 219-20; Smithers v. Henriquez (1938), 368 Ill. 588, 598; Burnett v. Caho (1972), 7 Ill. App. 3d 266, 274), we are unable to say the defendant was prejudiced by its denial. In Greene the court based its decision to retry the cause upon the fact that the jury returned a verdict in an amount which was the highest allowable under the Wrongful Death Act. The court reasoned that the jury may have been influenced to do so because of the court’s charge of wilful and wanton misconduct. In this case, the plaintiff requested, as to Cynthia, a verdict of $100,000, and a verdict of $5,000 to compensate Raymond Lynch. The jury returned a verdict in favor of Cynthia for $60,000 and denied any recovery to Raymond.

On the facts of the case before us, we are unable to perceive any prejudice to the defendant. Finally, had this defendant desired to ascertain upon which count or counts the jury returned its verdict, it could have done so by requesting a separate verdict upon each demand. (Ill. Rev. Stat. 1973, ch. 110, par. 68(3).) Since the defendant did not do so, it cannot complain or seek to take advantage of its failure. Moore v. Jewel Tea Co. (1970), 46 Ill. 2d 288, 294; Smithers v. Henriquez (1938), 368 Ill. 588, 598; Stark v. D & F Paving Co. (1977) , 55 Ill. App. 3d 921, 928.

Our holding that there was insufficient evidence of wilful and wanton negligence as a matter of law (see Mower v. Williams (1949), 402 Ill. 486) makes it necessary to decide whether there was sufficient evidence to justify a verdict that the defendant was ordinarily negligent. Count I of the complaint alleged that the defendant was liable to the plaintiff, pursuant to Gerrity v. Beatty (1978), 71 Ill. 2d 47, since the defendant failed to provide effective equipment to the students. In Gerrity, the 15-year-old plaintiff suffered severe injuries while making a tackle in a junior-varsity football game. He alleged in one count of his complaint that the defendant school district was negligent in furnishing him with an ill-fitting and inadequate helmet. We held there that sections 24 — 24 and 34 — 84a of the School Code (Ill. Rev. Stat. 1973, ch. 122, pars. 24 — 24, 34 — 84a, applicable to cities with populations of less than 500,000 and cities with populations greater than 500,000, respectively), which bestow limited immunity upon teachers in the exercise of disciplinary or supervisory duties, do not apply to the furnishing of equipment to students. (71 Ill. 2d 47, 52-53.) Thus, we held that rather than prove that a teacher was wilfully and wantonly negligent in a matter relating to the teacher’s personal supervision and control of the conduct or physical movement of a student, under the rule in Gerrity a plaintiff need only prove that a school district was ordinarily negligent in furnishing equipment.

In Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, this court considered whether individual teachers were liable in ordinary negligence for the failure to provide effective equipment. Based in part on the policy of not encouraging litigation between teachers and students, we held that since the school districts furnish equipment, whereas teachers inspect equipment, which is more properly a supervisory function, individual teachers would not be liable for ordinary negligence, but only for wilful and wanton negligence in failing to inspect equipment.

In the instant case, the school district alone is the defendant. Thus, the inquiry need only be whether the jury was justified in finding the defendant school district negligent in failing to provide effective equipment to the student. The defendant argues that it cannot be liable, because the game was not authorized, and because it did not furnish any equipment, so it could not have furnished defective equipment. We have previously decided that the teachers were acting with apparent authority; thus, whether the game was authorized is not material. We also do not think that, because the defendant did not furnish any equipment to the students, it is absolved from liability for failing to provide effective equipment. Instead, we think a school district has an affirmative duty, where students are engaging in school activities, whether they are extracurricular, or formally authorized as part of the school program, to furnish equipment to prevent serious injuries. At the least, a school district should furnish helmets and face guards for a game such as football, where head injuries are common and severe. Accordingly, we think the instant school district was negligent for failing to provide, at the least, helmets and face guards to the students. It is reasonably clear that the manifest weight of the evidence established negligence on the part of the defendant because it did not furnish any protective head gear or face gear to the students although it knew or should have known through its agents that an injury was foreseeable. Moreover, the failure to provide such equipment was a proximate cause of the plaintiff’s injury.

If we were not to hold the defendant liable for failure to furnish any equipment, a school district could easily escape liability simply by not furnishing any equipment to students, thereby forcing students to purchase equipment themselves. In that way, only students who could afford their own equipment would be able to engage in school-connected sports activities. We are unwilling to encourage such a result. The jury’s verdict will stand.

Another contention made by the defendant is that the trial court committed reversible error when it instructed the jury as follows:

“There was in force and effect in the State of Illinois at the time of the occurrence complained of a certain statute which provided that: the school board of any school district acquiring real estate and equipping, operating and maintaining it for the purposes provided, shall have supervision over athletic fields, and may employ play leaders, playground directors, supervisors, recreational superintendents, or athletic directors thereof, and may take such steps to provide for the protection thereof as it deems appropriate.”

This instruction was given over the objection of the defendant. It is adapted from Illinois Pattern Jury Instructions, Civil, No. 60.01 (2d ed. 1971), and is based on section 16 — 8 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 16 — 8), which provides in pertinent part:

“The school board of any such school district acquiring real estate and equipping, operating and maintaining it for the purposes provided in Section 16 — 7 shall have supervision over such playgrounds, recreation grounds or athletic fields, may employ play leaders, playground directors, supervisors, recreation superintendents or athletic directors therefor, and may take such steps to provide for the protection, sanitation, care and management thereof as it deems appropriate.”

First of all, “Illinois law is clear that ‘the violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence.’ (Dini v. Naiditch (1960), 20 Ill. 2d 406, 417.) *** The party requesting instruction No. 60.01 [Illinois Pattern Jury Instructions, Civil, No. 60.01 (2d ed. 1971), the same instruction involved herein] must also demonstrate that the statute or ordinance was intended to protect against the injury incurred, and that the injured party is within the class intended to be protected. [Citations.] ” (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 390.) The plaintiff introduced evidence that the defendant owned the athletic field property and understood it had a duty to supervise the field, presumably for the protection of students while engaged in school activities. The duty imposed on school boards by section 16 — 8 is a supervisory duty; thus, we assume, without deciding, that, in order to recover under the statute for the acts of teachers, a plaintiff would need to establish wilful and wanton negligence. We have held, however, that no wilful and wanton negligence occurred in this case. Therefore, the defendant’s objection should have been sustained and the court should have refused to give the instruction. The defendant, however, makes the conclusional statement that the court’s delivery of the instruction “seriously prejudiced” the defendant’s case by erroneously informing the jury that the defendant had a duty which was not charged by statute or judicial decision. We do not agree that the defendant was seriously prejudiced for this reason and, in the absence of argument concerning other grounds of prejudice, we think the defendant’s assertion lacks merit.

Finally, the defendant argues that the jury’s verdict of $60,000 was excessive. The amount of a jury’s verdict will stand unless it is so large as to indicate passion or prejudice. (Baird v. Chicago Burlington & Quincy R.R. Co. (1976), 63 Ill. 2d 463, 473; Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 453.) Based on the evidence that the plaintiff suffered a fractured nose, underwent psychiatric treatment, and suffered, in Dr. Busch’s expert opinion, permanent brain damage, we do not think the verdict was excessive.

Accordingly, for the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. CHIEF JUSTICE GOLDENHERSH,

concurring in the decision:

I agree with the appellate court that on this record the judgment should be affirmed. As noted by the appellate court, instructions adapted from Illinois Pattern Jury Instructions, Civil, No. 50.04 and No. 50.06 (2d ed. 1971), were given without objection from the defendant. (See 72 Ill. App. 3d 317, 322.) In order to return a general verdict in favor of the plaintiff the jury was required to determine that at the time of the occurrence defendant’s employees were acting within the scope of their authority. The evidence was conflicting and there was enough evidence to support the jury’s verdict.

MR. JUSTICE MORAN,

concurring in the decision:

GeneraHy, a school district should not be held liable for all activities that may take place on its premises. Under the facts of this case, however, it is clear that the powder puff football game had, as pointed out in the dissent, “formerly been a part of the school program.” It is my opinion that the district, through its principal, was, in light of such precedent, required to take more consistent and positive action to overcome implied acquiescence and thereby absolve itself from liability.

MR. JUSTICE RYAN,

dissenting:

The court’s opinion in this case leaves me with the distinct impression that it strains to reach a desired result. Furthermore, I cannot understand the reason for the lengthy discussion concerning agency in this opinion because the cause of action against the school district is not based upon any act or conduct of the agents. The opinion, after ruling out the possibility that the teachers were acting within their expressed or implied authority, concludes that the jury may have found that the teachers had been clothed with an apparent agency. Even if the teachers who coached the football teams were clothed with an apparent agency, this would not render the district liable because the cause of action is not based on any injury brought about by reliance on the apparent authority of the agents. Count I of the complaint, which the opinion holds supports the verdict, charges the school district with negligence in failing to provide effective protective equipment to the participants in the football game, which, of course, has nothing to do with the agency of the teachers who were the coaches. I find the entire agency discussion irrelevant.

It may be that my colleagues felt it necessary to establish the agency of the teachers in order to prove that the football game was a school function; however, it is not necessary to get involved in this circuitous reasoning. Whatever evidence there may have been to prove agency would be evidence that the football game was a school activity: The practice sessions and the games were played on school property; three teachers were present as coaches; and announcements concerning the games and practice sessions were made on the school public address system. The reasoning of the opinion therefore seems to be: the teachers were apparent agents of the school district because the activity had the appearance of a school function and the activity was a school function because the teachers were the apparent agents of the school district. Therefore, this reasoning would conclude, the defendant school district had the obligation to furnish effective protective equipment.

Although the discussion of apparent agency is irrelevant, since the opinion has placed substantial reliance on this principle, I wish to comment briefly on its application to the law of torts. Usually the doctrine is applied to bind the principal on a contract made by an apparent agent while acting within the scope of the apparent authority with which the principal has clothed him. (See Restatement (Second) of Agency secs. 8, 27 (1958).) In fact, all of the cases cited in the opinion on this point are contract cases, and none are cases where a principal is sought to be held for the tortious act of an apparent agent. Rarely is a principal held responsible for the tortious act of one who is only an apparent agent. Some cases have held a principal responsible for the tortious acts of an agent acting within the “apparent scope of his authority.” The holdings of these cases do not usually mean that the master can be charged with the negligence of his servant on the mere strength of an appearance of being about his master’s work. In these cases it seems obvious that the employer’s liability was determined according to whether the matters complained of occurred within the general scope of the servant’s employment and not within the scope of an apparent agency. See Annot., 2 A.L.R.2d 406, 413 (1948). See also W. Seavey, Law of Agency sec. 8, at 13 (1964).

Moving next to the reasons I believe the judgment for the plaintiff must be reversed, I will first address the giving of a clearly erroneous instruction. The opinion acknowledges that the giving of plaintiff’s instruction based on section 16 — 8 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 16 — 8) was error, but found that the defendant was not “seriously prejudiced” and refused to reverse and remand for a new trial. (82 Ill. 2d at 436.) However, earlier the opinion states: “[T] he conflicts in the evidence make this case a close one to decide.” (Emphasis added.) (82 Ill. 2d at 427.) The cases are legion which hold that where the case is a close one on the facts and a decision must depend upon conflicting testimony, the jury should be accurately instructed. Both v. Nelson (1964), 31 Ill. 2d 511; Edwards v. Hill-Thomas Lime & Cement Co. (1941), 378 Ill. 180; Anlicker v. Brethorst (1928), 329 Ill. 11; Baddeley v. Watkins (1920), 293 Ill. 394; Chicago, Burlington & Quincy R.R. Co. v. Warner (1884), 108 Ill. 538.

I also note that the instruction was erroneous not only for the reason stated by the majority opinion, but because it in essence instructed the jury that the school district had a duty to supervise athletic fields and to employ recreational superintendents and athletic directors. Although the cause of action under count I was not based on the failure of the district to supervise the activities on the school’s playgrounds, the giving of this instruction setting forth substantially the provisions of section 16 — 8 informed the jury of a supposed statutory duty. The instruction is adapted from Illinois Pattern Jury Instructions, Civil, No. 60.01 (2d ed. 1971). However, that part of IPI Civil No. 60.01 which informs the jury that if it decides that the defendant violated the statute on the occasion in question, then it may consider that fact together with all the other facts in evidence in determining whether the defendant was negligent, was not given. Thus, this was not an IPI instruction modified. It was an incorrect, misleading, abstract statement of law that has no application to the liability of the school district in this case. An instruction on a statutory duty may be given only when the injury has a direct and proximate connection with the violation of the statute. (Brunnworth v. Kerens Coal Co. (1913), 260 Ill. 202, 216-17; Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 79.) Also, the giving of instructions which are nothing more than abstract statements of law, without connecting them with the issues of the case, has been condemned. (Gillette v. City of Chicago (1947), 396 Ill. 619; Dursch v. Fair (1965), 61 Ill. App. 2d 273; Sarelas v. Meyer (1943), 317 Ill. App. 382 (abstract of opinion).) As noted below, section 16 — 8 of the School Code imposes no duties on the board. The giving of this abstract statement in the form of an instruction to the jury as to the law of the case could only mislead the jury and cause it to believe that the failure of the school to properly supervise the football games was somehow important to its liability. As noted above, the courts of this State have many times held that where the case is a close one on the facts and the decision must depend upon conflicting testimony, the jury should be accurately instructed.

I also point out that the opinion mistakenly states that section 16 — 8 imposes a “supervisory duty” on the school district. This section of the School Code does not impose a duty upon the school district to do anything. Instead, this section of the School Code grants to the school board certain authority that it may exercise over playgrounds, recreation grounds and athletic fields which the district has acquired. Since the school district is a creature of the legislature, it and its governing board have only the authority granted to it by the legislature or necessarily implied therefrom. It was therefore necessary that such a grant of authority as contained in section 16 — 8 be given to the school board before it could perform the functions specified in that section. By conferring this authority it clearly was not the intention of the legislature to require every school district that has “playgrounds, recreation grounds and athletic fields” to provide constant supervision over these facilities and to employ play leaders, playground directors, recreation superintendents or athletic directors therefor.

Finally, this football game was plainly not a school activity for which the district had a duty to furnish protective equipment. Although formerly part of the school program, the game had been discontinued as such and was no longer permitted to be played in conjunction with a regular school athletic event. It was not authorized by the school board or the principal, and requested sponsorship by the school board had been denied. Both the practice sessions and the game were held other than during school hours. The teachers who coached the teams were not paid to do so and were not performing any of their school duties. When unauthorized announcements of the game were made on the school’s public address system, they were countermanded. In fact the school did everything possible to disassociate itself from this activity short of prohibiting the teachers from coaching the teams and prohibiting the use of the athletic field for the contest. Whether the school board could prohibit a teacher from such activity on a Sunday afternoon is doubtful, both as to its authority to do so and the effectiveness of such an order if given. As for prohibiting the use of the athletic field, the failure to do so cannot be the basis for imposing liability upon the district. There are hundreds of school playgrounds, recreation grounds and athletic fields in this State that are used virtually every Sunday afternoon by groups of students engaging in athletic contests, often using inadequate and makeshift equipment. These school facilities are public grounds, paid for and maintained with public funds. The people in most communities have come to believe that they have a right to use them, particularly on the days that school is not in session. It would be difficult to prohibit the use of these facilities short of building a chain-link fence around them and locking the gate.

It is easy to say that we have here a question of fact for the jury to determine; however, we cannot so easily abrogate our judicial duties and permit a sympathetic jury to speculate that the teachers were the apparent agents of the school district. The question here is one of duty, which is a question of law. I would hold that, under the facts of this case, the school district was under no duty to provide protective equipment for the football game. This is the issue in this case, not whether the teachers were the apparent agents of the school district, which the opinion states is a question of fact. As noted above, the cause of action is not based on any conduct of the alleged agents. To permit the plaintiff in this case to recover will only cause school districts to restrict the use of school facilities to the detriment of the vast numbers of students who use them for Sunday afternoon recreation. I would reverse the judgment in favor of the plaintiff.

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


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 52750.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GARY “MIKE” GARRISON, Appellee.

      Opinion filed September 29, 1980.

    Rehearing denied November 26, 1980.

      William J. Scott, Attorney General, of Springfield, and Frank B. Schweitzer, Special Prosecutor, of Taylorville (Donald B. Mackay, Melbourne A. Noel, Jr., and David Cassorla, Assistant Attorneys General, of Chicago, of counsel), for the People.
    James B. Wham, of Wham & Wham, of Centraba, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The circuit court of Marion County declared unconstitutional sections 11 — 9(a)(3) and 11 — 9(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 11 — 9(a)(3), 11 — 9(b)). The State has appealed directly here pursuant to our Rule 302(a)(1) (73 Ill. 2d R. 302(a)(1)). We reverse.

The defendant, Gary “Mike” Garrison, was charged by information with “knowingly, at a public place, while standing behind a storm door, expose [ing] his sex organ in a lewd manner” to the prosecutrix “with the intent to arouse his sexual desires” in violation of section 11 — 9(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 9(a)(3)). Section 11 — 9 provides:

“Public Indecency, (a) Any person of the age of 17 years and upwards who performs any of the following acts in a public place commits a public indecency:
(1) An act of sexual intercourse; or
(2) An act of deviate sexual conduct; or
(3) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person; or
(4) A lewd fondling or caress of the body of another person of either sex.
(b) ‘Public place’ for purposes of this Section means any place where the conduct may reasonably be excepted to be viewed by others.
(c) Sentence.
Public indecency is a Class A misdemeanor.”

Defendant moved to dismiss the information on the ground that sections 11 — 9(a)(3) and 11 — 9(b) violated the first, third, fourth, fifth, sixth, ninth and fourteenth amendments to the United States Constitution, and he reiterates those arguments here. The remarks of the trial judge at the hearing suggest that he relied on only one of the arguments, but he signed an order drafted by the defendant which incorporated by reference all the contentions raised in the motion to dismiss.

For purposes of analysis, the defendant’s contentions fall into four main categories. He argues: (1) that the statute applied in this case violates his privacy rights; (2) that the statute is overbroad and therefore unconstitutional on its face; (3) that it is so vague that it violates constitutional guarantees of due process; and (4) that a comparison of sections 11 — 9 and 11 — 20 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 11 — 9, 11 — 20) reveals a legislative classification not reasonably related to a legitimate governmental purpose, thus denying him equal protection of the laws.

Defendant’s argument that this prosecution violates his privacy rights rests upon the decision of the United States Supreme Court in Stanley v. Georgia (1969), 394 U.S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243. In Stanley, the defendant had been convicted of possessing obscene material in violation of Georgia law. The material was discovered when State agents searched Stanley’s home pursuant to a search warrant authorizing them to search for equipment, records, and other material used in or derived from an illegal wagering business. The Supreme Court reversed the conviction, holding that “the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. ” (Stanley v. Georgia (1969), 394 U.S. 557, 568, 22 L. Ed. 2d 542, 551, 89 S. Ct. 1243, 1249.) The opinion of the court emphasized the right of the individual to read or view whatever books or films he pleases in the privacy of his own home. In a subsequent case, United States v. Reidel (1971), 402 U.S. 351, 28 L. Ed. 2d 813, 91 S. Ct. 1410, however, the Supreme Court limited Stanley to factual situations which do not involve actions outside the home. The decision in Reidel upheld the validity of a Federal statute which made criminal the mailing of obscene material even though the recipients were adults who had requested the mailing and who, under Stanley, were entitled to view the materials privately in their own homes.

Applying the principles of Stanley and Reidel to the facts of this case, we conclude that this prosecution does not unconstitutionally invade the defendant’s right to privacy. The information charged the defendant with exposing himself by standing at a storm door at 404 Melrose in Centraba. The oral argument in the trial court and the briefs in this court indicate that the Melrose address is the defendant’s residence. Although the action with which defendant is charged thus took place within the confines of his home, its essential characteristic for the purpose of our consideration is that the defendant “knowingly” made it visible to the prosecutrix outside his house. Under the circumstances alleged in the information, Stanley does not preclude the prosecution of the defendant.

The argument that the statute is overbroad rests on the premise that the statute may allow criminal prosecution in some situations in which the activities of a hypothetical defendant fall within areas protected by the right of privacy and the first amendment right of expression. In regard to the privacy argument, we need not decide whether that premise is accurate; the overbreadth doctrine does not apply to privacy rights. Lovisi v. Slayton (E.D. Va. 1973), 363 F. Supp. 620, 627-29, affd (4th Cir. 1976) (en banc), 539 F.2d 349, cert. denied (1976), 429 U.S. 977, 50 L. Ed. 2d 585, 97 S. Ct. 485; Harris v. United States (D. C. App. (1974)) (en banc), 315 A.2d 569, 575; Pedersen v. City of Richmond (1979), 219 Va. 1061, 1066, 254 S.E.2d 95, 99.

As a general rule a defendant may not avoid his prosecution because a similar prosecution of other individuals under the same statute might violate their constitutional rights. (Burch v. Louisiana (1979), 441 U.S. 130, 60 L. Ed. 2d 96, 99 S. Ct. 1623; Bates v. State Bar (1977), 433 U.S. 350, 53 L. Ed. 2d 810, 97 S. Ct. 2691; Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908; McGowan v. Maryland (1961), 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101; People v. Bombacino (1972) , 51 Ill. 2d 17; City of Chicago v. Lawrence (1969), 42 Ill. 2d 461, cert. denied (1969), 396 U.S. 39, 24 L. Ed. 2d 208, 90 S. Ct. 263; People v. Reiner (1955), 6 Ill. 2d 337.) The overbreadth doctrine is an exception to this rule. It allows a defendant to challenge the validity of a statute on its face when the mere existence of the statute may inhibit the exercise of expressive or associational rights protected by the first amendment, even though those rights do not protect the activities of the defendant. (Bates v. State Bar (1977), 433 U.S. 350, 380, 53 L. Ed. 2d 810, 833, 97 S. Ct. 2691, 2101;Broadrick v. Oklahoma (1973), 413 U.S. 601, 611-17, 37 L. Ed. 2d 830, 839-43, 93 S. Ct. 2908, 2915-18.) The issue now before us, however, is whether the defendant may avoid this prosecution if the statute may be applied to violate the privacy rights of others. Apart from a reference of questionable validity

in Attwood v. Purcell (D. Ariz. 1975), 402 F. Supp. 231, 236, the defendant has not cited any case extending the overbreadth doctrine to privacy rights; nor have we found any. The overbreadth doctrine may be necessary to protect certain easily inhibited first amendment expressive and associational rights, but it should be applied very sparingly, even when dealing with those rights. (Broadrick v. Oklahoma (1973), 413 U.S. 601, 613, 37 L. Ed. 2d 830, 840-41, 93 S. Ct. 2908, 2916; cf. Bates v. State Bar (1977), 433 U.S. 350, 380-81, 53 L. Ed. 2d 810, 833-34, 97 S. Ct. 2691, 2707-08; Talsky v. Department of Registration & Education (1977), 68 Ill. 2d 579, 590.) Unlike the actions with which the defendant is charged here, and unlike expressive and associational activities which generally occur in public, the activities which are protected by the right of privacy are by their nature generally unknown to prosecutors and therefore are not easily inhibited by official action. We do not believe that privacy rights require the protection of an overbreadth doctrine to secure their free exercise, and we consequently decline to allow one whose personal right of privacy has not been violated to assert the hypothetical rights of others. See Lovisi v. Slayton (E.D. Va. 1973), 363 F. Supp. 620, 627-29, aff’d (4th Cir. 1976) (en banc), 539 F.2d 349, cert. denied (1976), 429 U.S. 977, 50 L. Ed. 2d 585, 97 S. Ct. 485; Harris v. United States (D.C. App. 1974) (en banc), 315 A.2d 569, 575; Pedersen v. City of Richmond (1979), 219 Va. 1061, 1066, 254 S.E.2d 95, 99.

Defendant also alludes to Eisenstadt v. Baird (1972), 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029, as support for his contention that he should be able to assert the privacy rights of others not involved in this litigation. Eisenstadt, however, is not apposite to this case. The gist of Eisenstadt is that a defendant may be heard to assert the rights of nonparties when their rights are affected by the prosecution and the statute is so worded or applied that they will not be prosecuted under it. The defendant does not assert the existence of any such individuals and we do not perceive any. The defendant therefore is limited to asserting violations of his privacy rights and, as indicated above, we do not find any.

Although the overbreadth doctrine does apply when first amendment expressive rights are implicated, we reject the premise of defendant’s first amendment overbreadth argument in regard to this statute: that the statute on its face infringes protected expressive rights. The defendant’s argument has a certain surface appeal. The statute itself does not disclaim application to operas, ballets, plays or other performances within the protection of the first amendment. Since the statute does not contain obscenity standards acceptable under Miller v. California (1973), 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, its validity would be highly suspect if it were applied to activities which implicate first amendment rights. (Doran v. Salem Inn, Inc. (1975), 422 U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561; Attwood v. Purcell (D. Ariz. 1975), 402 F. Supp. 231; Salem Inn, Inc. v. Frank (E.D.N.Y. 1974), 381 F. Supp. 859, aff’d (2d Cir. 1975), 522 F.2d 1045; City of Revere v. Aucella (1975), 369 Mass. 138, 338 N.E.2d 816; Koppinger v. City of Fairmont (1976), 311 Minn. 186, 248 N.W.2d 708; cf. California v. La Rue (1972), 409 U.S. 109, 34 L. Ed. 2d 342, 93 S. Ct. 390; Yauch v. State (1973), 109 Ariz. 576, 514 P.2d 709; Crownover v. Musick (1973), 9 Cal. 3d 405, 509 P.2d 497, 107 Cal. Rptr. 681, cert. denied (1974), 415 U.S. 931, 39 L. Ed. 2d 489, 94 S. Ct. 1443; Wright v. Town of Huxley (Iowa 1977), 249 N.W.2d 672.) We find, however, that activities which are primarily expressive are not within the scope of the statute.

An examination of the statutory scheme of which section 11 — 9 is a part and the history of prosecutions under the statute reveals that it does not impinge on first amendment rights. Section 11 — 9 is part of article 11 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 11 — 1 through 11 — 22), which is titled “Sex Offenses.” Also within article 11 is section 11 — 20, titled “Obscenity,” which makes criminal the acts of one who knowingly or recklessly:

(1) Sells, delivers or provides, or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or
(2) Presents or directs an obscene play, dance or other performance or participates directly in that portion thereof which makes it obscene; or
(3) Publishes, exhibits or otherwise makes available anything obscene; or
(4) Performs an obscene act or otherwise presents an obscene exhibition of his body for gain; or
(5) Creates, buys, procures or possesses obscene matter or material with intent to disseminate it in violation of this Section, or of the penal laws or regulations of any other jurisdiction; or
(6) Advertises or otherwise promotes the sale of material represented or held out by him to be obscene, whether or not it is obscene. (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 20(a).)

This statute, which also includes a definition of “obscenity,” has been upheld on the basis that it incorporates the Miller standards. (Ward v. Illinois (1977), 431 U.S. 767, 52 L. Ed. 2d 738, 97 S. Ct. 2085, aff'g People v. Ward (1976), 63 Ill. 2d 437.) This statute criminalizes those activities which offend sexual morals and which, although expressive in nature, are not protected by the first amendment since they are obscene. Ill. Ann. Stat., ch. 38, par. 11 — 9, Committee Comments (Smith-Hurd 1979).

In contrast, section 11 — 9, as we view it, is aimed at public displays which do not involve first amendment rights. Such displays may be prohibited without reference to the constitutional obscenity standard, because they do not involve primarily expressive activities. This view of the statute is reinforced by the history of prosecution under it. In no reported case under section 11 — 9 has the State attempted to prosecute a defendant for activities within the scope of first amendment concerns. (See, e.g., People v. Giacinti (1976), 44 Ill. App. 3d 699; People v. Legel (1974), 24 Ill. App. 3d 554; People v. Mikota (1971), 1 Ill. App. 3d 114; People v. Tadla (1969), 110 Ill. App. 2d 119.) Because section 11 — 9 does not apply to activities that are primarily expressive in nature and which may not be prohibited absent a finding that they are obscene within the constitutional standard, defendant’s contention that the statute is overbroad must be rejected.

The defendant also contends that sections 11 — 9(a)(3) and 11 — 9(b) are so vague that any prosecution under those provisions constitutes a denial of due process. The due process vagueness standard comprises three elements. First, the statute must not be so vague that men of common intelligence must necessarily guess at its meaning or application. (Smith v. Goguen (1974), 415 U.S. 566, 39 L. Ed. 2d 605, 94 S. Ct. 1242; Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294; Connally v. General Construction Co. (1926), 269 U.S. 385, 70 L. Ed. 322, 46 S. Ct. 126; People v. Palkes (1972), 52 Ill. 2d 472.) Second, the statute must provide sufficiently definite standards for law-enforcement officers and triers of fact that its application does not depend merely on their private conceptions. (Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294; Interstate Circuit, Inc. v. City of Dallas (1968), 390 U.S. 676, 20 L. Ed. 2d 225, 88 S. Ct. 1298; Giaccio v. Pennsylvania (1966), 382 U.S. 399, 15 L. Ed. 2d 447, 86 S. Ct. 518; People v. Pembrock (1976), 62 Ill. 2d 317.) Finally, if the statute implicates first amendment expressive rights, it must not be so vague as to chill their free exercise. (Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294.) The last element need not concern us since, as we noted above, the statute at issue in this case does not impinge on first amendment rights.

Although a statute must be declared void if it does not adequately warn potential violators of the conduct proscribed or if it does not provide adequate standards for triers of fact, that determination is made in the factual context of each case in light of the facts in the case at hand where first amendment freedoms are not involved. (United States v. Mazurie (1975), 419 U.S. 544, 42 L. Ed. 2d 706, 95 S. Ct. 710.) In such cases the underlying requirement of due process is that an individual cannot be held to have violated a statute unless he could reasonably be expected to understand that his particular conduct was proscribed. (Bouie v. City of Columbia (1964), 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697; United States v. Harriss (1954), 347 U.S. 612, 98 L. Ed. 989, 74 S. Ct. 808.) A defendant therefore may be prosecuted under a statute without violating his due process rights if his conduct clearly falls within the statutory proscription even though the statute may be vague as to other conduct. Smith v. Goguen (1974), 415 U.S. 566, 39 L. Ed. 2d 605, 94 S. Ct. 1242; Dombrowski v. Pfister (1965), 380 U.S. 479, 14 L. Ed. 2d 22, 85 S. Ct. 1116; United States v. National Dairy Products Co. (1963), 372 U.S. 29, 9 L. Ed. 2d 561, 83 S. Ct. 594; United States v. Raines (1960), 362 U.S. 17, 4 L. Ed. 2d 524. 80 S. Ct. 519; United States v. Harriss (1954), 347 U.S. 612, 98 L. Ed. 989, 74 S. Ct. 808; People v. Vandiver (1971), 51 Ill. 2d 525.

The specific parts of section 11 — 9 which the defendant is charged with violating provide:

“(a) Any person of the age of 17 years and upwards who performs any of the following acts in a public place commits a public indecency:
***
(3) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person;
***
(b) ‘Public place’ for the purposes of this Section means any place where the conduct may reasonably be excepted to be viewed by others.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, pars. 11-9(a)(3), ll-9(b).

The defendant contends that the statutory definition of “public place” is unconstitutionally vague because the use of the word “excepted” renders it unintelligible, or alternatively, if “excepted” is read as “expected,” because the definition is otherwise inadequate. We believe that the legislature clearly intended to use the word “expected.” As passed by the General Assembly the bill containing section 11 — 9 contained the word “expected” (1961 Ill. Laws 1983, 2008), as did a subsequent amendment reproducing the entire section for the purpose of showing changes (1972 Ill. Laws 1717, 1724). The committee comments also indicate that the legislature intended to use “expected.” (Ill. Ann. Stat., ch. 38, par. 11 — 9, Committee Comments, at 304 (Smith-Hurd 1979).) Moreover, both of the statutory compilations footnote the word “excepted” in the statute and indicate that it should probably read “expected.” (Ill. Rev. Stat. 1977, ch. 38, par. 11-9 (b); Ill. Ann Stat., ch. 38, par. 11 — 9(b) (Smith-Hurd 1979).) The transposition apparently occurred during the enrolling and engrossing process and passed unnoticed. The cardinal rule of statutory construction is to effectuate the intent of the legislature. (Carey v. Elrod (1971), 49 Ill. 2d 464, 471; People ex rel. Community High School District No. 231 v. Hupe (1954), 2 Ill. 2d 434.) When necessary to achieve that goal a court may alter, supply or modify words and correct obvious mistakes. (Community Consolidated School District No. 210 v. Mini (1973), 55 Ill. 2d 382, 386-87; Du Bois v. Gibbons (1954), 2 Ill. 2d 392; People ex rel. Barrett v. Anderson (1947), 398 Ill. 480.) We therefore interpret the statute as though it contained the word “expected.” This construction does not affect the validity of this prosecution because the presence of the footnotes in both of the statutory compilations adequately warned the defendant of the intention of the legislature.

Nor do we believe that the statutory definition of “public place” is otherwise overly vague. Although the facts have not yet been fully developed in this case, the allegations in the information charging the defendant indicate that the defendant’s activities occurred in a place that falls squarely within the statutory definition of a “public place.” If the facts adduced at trial substantiate the allegations, the situation would be one in which the defendant could clearly expect to be seen by others. Hypothetical situations might be conceived in which neither a defendant nor a trier of fact could reasonably determine whether the conduct occurred in a public place as defined by the statute, but those cases are not before us now and the defendant is not entitled to raise them. Moreover, the legislature has provided a reasonable definition of “public place” which should not be invalidated merely because it attempts to define that expression rather than to list every location which may be a “public place”. Cf. People v. Parkins (1979), 77 Ill. 2d 253.

Similar considerations also lead us to reject defendant’s contention that the statutory expression “lewd exposure” is unconstitutionally vague. The information charged the defendant with exposing his sex organ, conduct which clearly constitutes a lewd exposure, and he may not pose hypothetical situations in which the statutory standards might conceivably be unconstitutionally vague. Furthermore, such situations are highly unlikely. The common understanding of expressions like “lewd exposure” indicates, in the words of the Supreme Court of Washington, “a lascivious exhibition of those private parts of the person which instinctive modesty, human decency, or common propriety require shall be customarily kept covered in the presence of others.” (State v. Galbreath (1966), 69 Wash. 2d 664, 668, 419 P.2d 800, 803; see also Hoffman v. Carson (Fla. 1971), 250 So. 2d 891, appeal dismissed (1971), 404 U.S. 981, 30 L. Ed. 2d 365, 92 S. Ct. 453; State v. Borchard (1970), 24 Ohio App. 2d 95, 264 N.E.2d 646, cf. Commonwealth v. Heinbaugh (1976), 467 Pa. 1, 354 A.2d 244.) These areas include the genitals, buttocks and female breasts. The area which the defendant is charged with exposing clearly falls within this categorization.

Defendant also contends that the statutory scienter requirement, “intent to arouse or to satisfy the sexual desire of the person,” is unconstitutionally vague, but this contention is without merit. The standard is clearly stated. This provision requires that the accused have intended to arouse or satisfy himself by exposing himself to others. It therefore precludes prosecution under section 11 — 9(a)(3) for mere inadvertent or accidental exposure. The actual intent of the defendant may, of course, be inferred by the trier of fact from the surrounding circumstances, and that evaluation is subject to judicial review.

The defendant’s equal protection argument is equally unmeritorious. Its gist is that the prosecution of some defendants under the obscenity statute (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 20) while others are prosecuted under section 11 — 9 unfairly burdens those who fall into the latter category because the elements of the obscenity offense are more narrowly drawn and more difficult to prove. As defendant acknowledges in his brief, however, the statutory classification need only be rationally related to a legitimate State purpose to satisfy the equal protection standard. (Weber v. Aetna Casualty & Surety Co. (1972), 406 U.S. 164, 31 L. Ed. 2d 768, 92 S. Ct. 1400.) The purpose of the standards in the obscenity statute is to protect first amendment rights, certainly a legitimate governmental objective. The Supreme Court has held that they adequately serve that purpose. (Ward v. Illinois (1977), 431 U.S. 767, 52 L. Ed. 2d 738, 97 S. Ct. 2085.) We do not disagree.

For the aforementioned reasons we reverse the judgment of the circuit court and remand the cause for further proceedings.

Reversed and remanded.


author: MR. JUSTICE MORAN

text:
    (No. 53011.
    ARLINGTON CITY CAB COMPANY et al., Appellants, v. THE REGIONAL TRANSPORTATION AUTHORITY et al., Appellees.

      Opinion filed November 18, 1980.

      Alex Devience, Jr., and John F. O’Meara, of Arlington Heights, for appellants.
    Jeremiah March, Michael Schneiderman, John L. Rogers III, and David O. Toolan, of Chicago (Carl J. Frank and Hopkins, Sutter, Mulroy, Davis & Cromartie, of counsel), for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The plaintiffs, four taxicab companies, filed suit in the circuit court of Cook County challenging the validity of the motor fuel use and public transportation tax (the RTA tax) imposed by the Regional Transportation Authority (RTA) and State of Illinois Department of Revenue (defendants). The action was brought as a class action insofar as it applied to purchases of gasoline by plaintiffs and others similarly situated claiming that the defendants failed to exempt them from such a tax. The trial court dismissed the complaint, finding that the RTA tax was authorized under the Regional Transportation Authority Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 701.01 et seq.). The appellate court dismissed the appeal on the basis of mootness, in response to defendants’ motion to dismiss. We granted leave to appeal.

Although plaintiffs set forth numerous contentions in their brief, we find it necessary to address only one: whether the order of the appellate court dismissing the appeal violated article VI, section 5, of the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 5), in that the order was signed by only one judge of the appellate court.

Plaintiffs’ complaint consisted of three counts seeking declaratory judgments, with the third count additionally seeking injunctive relief. On September 19, 1979, while the cause of action was pending in the appellate court, the Transportation Finance and Administration Act of 1979 (the 1979 act) became law. (Pub. Act 81 — 2d S.S. 3.) The 1979 act amended the RTA act and authorized the imposition by the RTA of sales, service occupation, and use taxes. Under the amendment, the tax here challenged by plaintiffs would remain in effect only until newly authorized taxes became effective. On September 24, 1979, the RTA exercised the power granted to it under the 1979 act and adopted ordinances which established new sales, service occupation, and use taxes. These taxes became effective November 1, 1979.

On December 5, 1979, defendants filed a motion to dismiss the appeal on the grounds that issues raised have become moot. Plaintiffs failed to file any objections, and the motion was granted on December 17, 1979. The order issued on that date was signed by only one judge and stated:

“This cause coming on to be heard on the motion of defendant-appellee Regional Transportation Authority (“RTA”) to dismiss this appeal as moot, the Court having jurisdiction of the parties, notice having been given and the Court being advised in the premises:
IT IS HEREBY ORDERED that this appeal be dismissed fer-meetiiess.” (The words “for mootness” were struck from the order.)

On December 18, 1979, plaintiffs filed a motion for leave to file their objections to defendants’ motion to dismiss and a motion to vacate the order of dismissal. On the same day, the appellate court issued a “Corrected Order” which stated in part:

“On December 17, 1979, this court allowed a motion of defendants-appellees to dismiss the within appeal as moot.”

This order allowed plaintiffs’ motion to file objections but denied plaintiffs’ motion to vacate. Again, this order was signed by one judge. Subsequently, plaintiffs’ motion for rehearing was denied.

The Regional Transportation Authority’s attorney attached an affidavit to its answer to the petition for leave to appeal in an attempt to defeat plaintiffs’ argument as to the validity of an order signed by one judge of the appellate court. The affidavit is dehors the record and will not be considered.

Plaintiffs’ contention is that the appellate court’s dismissal order is void because it was signed by only one judge in violation of article VI, section 5, of the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 5). That section states in part:

“Appellate Court — Organization
*** Each Appellate division shall have at least three Judges. *** A majority of a division constitutes a quorum and the concurrence of a majority of the division is necessary for a decision.”

(See also Ill. Rev. Stat. 1977, ch. 37, par. 25.) Supreme Court Rule 22(c) clarifies the quorum requirement:

“Three judges must participate in the decision of every case and the concurrence of two shall be necessary to a decision. Motions of course may be decided by one judge.” (Emphasis added.) (73 Ill. 2d R. 22(c).)

See People ex rel. Director of Finance v. YWCA (1979), 74 Ill. 2d 561.

A motion to dismiss an appeal can never be considered a motion of course to be decided by one judge. Since a final judgment of the circuit court is appealable as a matter of right under the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 6), the dismissal of an appeal deprives an appellant of this constitutional right. Before such action may be taken, it is a further constitutional requirement that the motion to dismiss be considered by a division of three judges and the decision be concurred in by a majority. The fulfillment of these requirements must be affirmatively shown by the record.

In the present case, there was nothing in the record to indicate that the motion was heard before a division of three judges or that it was concurred in by a majority of that division. Consequently, the order of the appellate court dismissing plaintiffs’ appeal is vacated and the cause remanded to the appellate court for further proceedings.

Order vacated; cause remanded.


author: MR. JUSTICE WARD

text:
    (No. 52790.
    CAROLE BRINKMANN, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Stanley Korshak, Inc., Appellee).

      Opinion filed November 18, 1980.

      Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (Paul L. Leeds, of counsel), for appellant.
    Terrance J. Van Driska and Mark Potter, of Chicago, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Carole Brinkmann filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) for an injury to her neck and left arm and shoulder that she received while employed as a salesperson at Stanley Korshak, Inc. An arbitrator held that the injury arose out of and was sustained in the course of her employment and awarded her $143.13 per week for a period of 18 3/7 weeks for temporary total disability. The Industrial Commission affirmed the arbitrator’s finding and went on to hold that the claimant did not prove that she had sustained any permanent disability. The circuit court of Cook County confirmed the decision of the Commission, and the claimant appealed to this court under Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

The respondent operates a women’s clothing store at which the claimant has worked since August 1976. On April 8, 1978, at about 11:30 a.m., she was waiting on a customer who was interested in purchasing a raincoat. She testified that, as she suddenly reached up toward a clothing rack for three raincoats, she felt a “spasm, a knot, on the left side of my neck *** and into the [left] shoulder.” She worked for the balance of the day but testified that the pain became worse and extended into her left elbow. The claimant worked Monday, Tuesday and Wednesday of the following week, but by that time, she testified, an overall feeling of weakness had spread throughout her left arm and her left wrist had begun to pain her. She also said that two fingers on her left hand had become numb.

On Thursday, April 13, she consulted Dr. Gerald Kane, an orthopedic surgeon, for an examination which she had scheduled prior to her claimed injury on April 8. Her condition was diagnosed as a recurrent cervical disc syndrome, and she was placed under a therapy program of diathermy, massage, and, later, deep moist heat. She was also given medication for pain. The program continued until May 24, when she was advised to wear a cervical collar and to begin a series of isometric exercises to strengthen her neck. She was still undergoing this treatment at the time of the arbitration hearings.

The claimant returned to work on April 14, the day after her visit with Dr. Kane, and informed the supervisor of the circumstances of her injury. She next worked at her regular schedule on April 18. The claimant testified that by this time the pain in her neck and in her left arm and shoulder had become worse and it had become increasingly difficult for her to perform her duties. As a consequence she never returned to work. On May 25, the claimant filed an application for adjustment of claim with the Industrial Commission. Because she had not received any compensation from the respondent, the claimant moved for an immediate hearing under section 19(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(b)). She also sought penalties and attorney fees under sections 19(k), 19(Z), and 16 of the Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.16, 138.19(k), 138.19(Z)).

Section 19(b) provides:

“The Arbitrator or committee of arbitration may find that the disabling condition is temporary and has not yet reached a permanent condition and may order the payment of compensation up to the date of the hearing, which award shall be reviewable and enforceable in the same manner as other awards, and in no instance to be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability, but shall be conclusive as to all other questions except the nature and extent of said disability. (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(b)).

The award of 18 3/7 weeks of compensation for temporary total disability represents the period between the date of the claimed injury and the date of the last arbitration hearing in August of 1978 as provided for in section 19(b). Causation is not an issue on this appeal, and that the claimant’s injury occurred during the course of her employment is not questioned. Contested, however, is her claim that, as she was still unable to return to work when her case came before the Commission on review, she was entitled to additional benefits because of her continuing temporary total disability. She also complains that the Commission erred in refusing an award of penalties and attorney fees. Finally, she argues that the Commission did not have authority to hold that she did not suffer permanent disability since that question was not raised or decided on the hearing before the arbitrator or before the Commission on review.

Temporary total disability has been defined as that condition which “ ‘exists from the time an injury incapacitates an employee for work until such time as he is as far recovered or restored as the character of the injury will permit.’ ” (Krause v. Industrial Com. (1975), 62 Ill. 2d 72, 76, quoting Arbuckle v. Industrial Com. (1965), 32 Ill. 2d 581, 586. See also Howard v. Industrial Com. (1980), 81 Ill. 2d 50, 57; C.R. Winn Drilling Co. v. Industrial Com. (1965), 32 Ill. 2d 144, 146.) Thus, a claimant is entitled to benefits during the period between the injury and the recovery or stabilization of his condition, during which there is typically a total loss of wages. (See 2 A. Larson, Workmen’s Compensation sec. 57.10 (1976).) The determination of when recovery or stabilization of condition occurs is a question of fact to be determined by the Industrial Commission, and unless its findings are contrary to the manifest weight of the evidence they will not be set aside on review. See, e.g., United Airlines, Inc. v. Industrial Com. (1980), 81 Ill. 2d 85; Sahara Coal Co. v. Industrial Com. (1977), 66 Ill. 2d 353.

The testimony and records of Dr. Gerald Kane, an orthopedic surgeon and the claimant’s treating physician, indicated that at the time of the proceeding before the arbitrator in July and August of 1978, the claimant had difficulty in bending her neck in any direction, particularly backwards. She also complained of residual pain in her left shoulder and of possessing little strength in her arms, which prevented her from lifting heavy objects. Dr. Kane’s medical history of her noted that she claimed that as she increased the level of her activity there was a commensurate increase in the level of pain. Because of this condition she did little if any housework and was advised not to drive a car for fear of causing further injury to her neck. As stated above, her condition was diagnosed as a recurrent cervical disc syndrome, which Dr. Kane described as “an injury to the ligaments in the cervical spine of the neck allowing pressure against the nerves in that area which can be shown with pain in the neck, pain radiating into the arm and/or pain radiating up into the head *** and arm.”

At the time of the arbitration hearings, the diathermy and deep moist heat treatments, along with the massages, had been discontinued, but a series of isometric exercises and the wearing of a cervical collar had been prescribed. Dr. Kane’s opinion was that the claimant was not capable of returning to work at that time but that this condition might change during the next few weeks.

Dr. Harry Coblens, a witness on behalf of the respondent, examined the claimant on August 7, 1978, and after examining X rays taken of her neck, and after what he termed as an orthopedic examination, testified that in his opinion the claimant was no longer in need of treatment and that she was capable of returning to work. When the case was heard before the Commission in November of 1978, the claimant was receiving electronic stimulation to the neck and shoulder areas, electro-acupuncture and novocaine injections into the neck. This treatment had increased her overall mobility, lessened the pain, and also helped her to sleep. Conflicting medical evidence presents a question for the Commission to resolve, and we cannot conclude that the Commission’s refusal to award additional compensation for temporary total disability was contrary to the manifest weight of the evidence. Though it appears that the claimant has not fully recovered from her injury, the testimony of Dr. Coblens was that her condition had stabilized and that she was able to return to work.

Contrary to the claimant’s contention, the Commission did not err in refusing to assess penalties against the respondent under section 19 (k) for unreasonable or vexatious delay in payment of compensation. This section is applicable only when an award has been entered in favor of a claimant and the responsible party has unreasonably delayed payment. See, e.g., Wilbon v. Industrial Com. (1976), 65 Ill. 2d 221; City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99.

The claimant’s contention that she is entitled to attorney fees and costs under section 16 (Ill. Rev. Stat. 1977, ch. 48, par. 138.16) because there has been an “unreasonable or vexatious delay” in the payment of compensation (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(Z)) also must fail, since this provision for a penalty is also premised upon an adjudication in favor of the claimant.

Nor are we persuaded by the claim that the claimant is entitled to compensation under section 19(l) (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(0), where “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.” Though in certain instances the Commission may find that the immediate payment of benefits for temporary total incapacity is required following a claimed injury but prior to a judicial determination of liability so as to provide support for a disabled employee, the sanction of payments of additional compensation for failure to pay these benefits may not be imposed where there has been a good-faith challenge by the employer to the claim of liability. See Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, 304.

The record shows that the claimant had suffered from the identical complaint, cervical disc syndrome, approximately three years prior to the injury in April of 1978 and that the prior injury had caused her to be hospitalized for 10 days. Furthermore, the April 13 appointment which she made with Dr. Kane had been scheduled a number of days before her April 8 injury because she was again experiencing a “pulling pain in her neck.” Thus, there was a question of whether the claimant had sustained a “fresh” injury on April 8. Based on this and other evidence we find that the respondent’s challenge to the claim for benefits was made in good faith and therefore hold that the claimant was not entitled to additional compensation under section 19(1) of the Act.

The remaining question is whether the Commission properly held that the claimant had not suffered permanent injury where the question of permanence was not raised before the arbitrator or the Commission on review. The record clearly shows that only the issue of temporary disability was litigated at such hearings. The decision of the arbitrator was specific in showing this. It states: “This award in no instance shall be a bar to a further hearing and determination of a further amount of temporary compensation or of compensation for permanent disability.” This language is taken from section 19(b), which the claimant invoked for an immediate hearing on the issue of temporary compensation. It is clear from the record that she did not argue or contend that she was entitled to compensation for a permanent disability. In Thomas v. Industrial Com. (1980), 78 Ill. 2d 327, we addressed a very similar question. There, an arbitrator had held that the claimant had failed to prove that he had sustained a permanent disability even though that question had not been raised. As the parties had not litigated this issue, and as the effect of the arbitrator’s action was to deprive the claimants of the opportunity to present the issue, it was held that the holding, which the Commission had affirmed, had to be vacated. 78 Ill. 2d 327, 334.

For the reasons given, the part of the judgment of the circuit court pertaining to the issues of additional temporary total compensation, penalties and costs is affirmed, and the remaining part relating to the issue of permanent disability is reversed and the cause is remanded to the Industrial Commission for further proceedings on that question.

Affirmed in part and reversed in part and remanded.