author: JUSTICE CLARK

text:
    (No. 56845.
    ROGER SCHULTHEIS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Johnson Outboards, Appellee).

      Opinion filed May 27, 1983.

      Harvey Melinger, of Chicago, for appellant.
    Gifford, Detuno, and Gifford, Ltd., of Chicago (Alan V. Hanson, of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

Petitioner, Roger Schultheis, filed a claim for workers’ compensation for injuries he sustained during an assault. An arbitrator for the Industrial Commission found that the petitioner failed to prove that the injuries he had received arose out of and in the course of his employment and denied petitioner’s claim. On review the Industrial Commission affirmed the arbitrator’s decision, and the circuit court of Lake County confirmed the decision of the Industrial Commission. The claimant has appealed directly to this court (73 Ill. 2d R. 302(a)(2)), asserting that the Commission’s decision is against the manifest weight of the evidence.

The only witness to testify at both the arbitration hearing and on review before the Commission was the petitioner. Schultheis, a jeep driver for Johnson Outboards, testified that on March 12, 1979, he was assaulted during working hours. He testified on that date he had a disagreement with one of the company’s supervisors. After their argument, petitioner sought the intervention of a shop steward. The shop steward and the petitioner then went to speak to the supervisor. During a discussion among the three men, an argument ensued between the shop steward and the supervisor. Thereafter, the shop steward and Schultheis went to the union office which was located in a trailer on the company premises, adjacent to the company plant, to discuss the dispute with a union representative. The union is known as the Independent Mariners Association, and the petitioner testified that he is a member.

Schultheis testified that, as he entered the conference room of the trailer, the president of the union, Kenny McDonald, jumped up, grabbed him, and pinned him up against the wall while yelling obscenities. Petitioner testified that he had not said anything to McDonald as he entered the trailer. In fact, Schultheis stated, he did not even get a chance to say hello before McDonald grabbed him. At the hearing before the arbitrator, the petitioner testified that he did not know the reason why McDonald had hit him.

Following the incident in the trailer, Schultheis requested permission to leave the company premises. He went to his attorney’s office in Chicago. After discussing the incident with his attorney, Schultheis testified, he went to Victory Memorial Hospital in Waukegan and received treatment for his injuries.

On February 22, 1980, after hearing the testimony of the petitioner as to the events of March 12, 1979, the arbitrator found that the petitioner had failed to prove that his injuries arose out of and in the course of his employment and denied petitioner’s claim.

On review before the Commission, the petitioner was again the sole witness to testify. He stated that he had obtained additional evidence regarding his assault since the time of the arbitration hearing. He testified that, approximately one month after the hearing on arbitration, he had spoken to McDonald. According to the petitioner, during this conversation he asked McDonald the reason why he (McDonald) had assaulted him. Petitioner testified that McDonald responded by accusing him of being instrumental in causing an audit of the union books. Apparently the audit had been done in response to a claim that there was a shortage of union funds.

Counsel for respondent strongly objected to petitioner’s testimony regarding the conversation he had with McDonald on the grounds that it was hearsay. Counsel argued that petitioner could not testify as to why McDonald accosted him, that only McDonald could properly testify to the reason he assaulted petitioner. The evidence was admitted over the respondent’s objection.

Even in light of this new evidence, the Commission affirmed the arbitrator’s decision and denied compensation, finding that “[petitioner's injuries did not arise out of and in the course of his employment but were the result of a union dispute.”

The circuit court also found, after reviewing all the evidence, that the Commission’s findings of fact and conclusions of law were not contrary to the manifest weight of the evidence and thus confirmed the decision of the Commission.

On appeal before this court there are two issues: (1) whether the petitioner’s testimony regarding his conversation with the union president was hearsay and therefore improperly admitted, and (2) whether the Commission’s finding that the petitioner’s injuries did not arise out of and in the course of his employment because they were the result of a union dispute is against the manifest weight of the evidence.

The respondent asserts that the petitioner’s testimony before the Commission regarding his conversation with McDonald was hearsay in its purest form and should not have been admitted. In support of its assertion the respondent argues that the primary purpose of offering the petitioner’s testimony was to identify the reason why McDonald assaulted the petitioner. Thus, respondent contends, it was an out-of-court statement being offered to prove the truth of the matter asserted (that McDonald assaulted petitioner because he caused an audit of the union books).

In response, the petitioner asserts that the testimony was not hearsay because it was offered merely to show the state of mind of McDonald and not to prove the truth of the matter asserted.

“A statement expressing the declarant’s then existing state of mind *** is admissible as a hearsay exception.” (E. Cleary & M. Graham, Evidence sec. 803.4, at 428 (3d ed. 1979).) In this case the petitioner testified as to what McDonald said to him. Because of the result we reach here it is unnecessary to resolve this issue. Even if this testimony were admissible it would not affect the result.

We turn now to the issue of whether the Commission’s finding that the petitioner’s injury did not arise out of and in the course of his employment is against the manifest weight of the evidence. In a case like the instant one, the petitioner bears the evidentiary burden of establishing that his injury “arose out of” and “in the course of” his employment. (Wise v. Industrial Com. (1973), 54 Ill. 2d 138, 142.) If an injury occurs during working hours, at a place where an employee can reasonably be expected to be in the performance of his duties and while he is performing those duties or something incidental thereto, the injury is said to have occurred in the course of his employment. (Segler v. Industrial Com. (1980), 81 Ill. 2d 125, 128.) Since the assault in question in this case took place during working hours, on the employer’s premises, while the petitioner was going to speak with a union representative regarding a disagreement he had had with a company supervisor, there seems to be no dispute between the parties that the injury occurred in the course of petitioner’s employment. What is disputed, however, is whether petitioner has met his burden of establishing that the injury inflicted by McDonald “arose out of” his employment as a jeep driver for Johnson Outboards.

In order to establish that an injury arose out of one’s employment, a claimant must make a “showing that the injury resulted from some hazard or risk inherent in the employment situation; i.e., there must be a causal connection between the nature of the employment and the resulting injury.” (Thurber v. Industrial Com. (1971), 49 Ill. 2d 561, 563; Belden Hotel Co. v. Industrial Com. (1970), 44 Ill. 2d 253; Illinois Country Club, Inc. v. Industrial Com. (1944), 387 Ill. 484.) “If the injury results from a hazard to which the employee would have been equally exposed apart from the employment, then it does not arise out of it.” Greene v. Industrial Com. (1981), 87 Ill. 2d 1, 4, citing State House Inn v. Industrial Com. (1965), 32 Ill. 2d 160.

The issue of compensability for injuries resulting from assaults has arisen on numerous occasions before this court. (E.g., Health & Hospitals Governing Com. v. Industrial Com. (1975), 62 Ill. 2d 28; Thurber v. Industrial Com. (1971), 49 Ill. 2d 561.) In these cases, this court has consistently held that injuries suffered by employees resulting from assaults were not compensable if there was evidence to sustain a finding by the Industrial Commission that the motive was personal to the victim rather than work related or if claimant could not demonstrate a reason for the assault. See Rodriguez v. Industrial Com. (1983), 95 Ill. 2d 166, 171; Greene v. Industrial Com. (1981), 87 Ill. 2d 1; Laboy v. Industrial Com. (1978), 74 Ill. 2d 18; Thurber v. Industrial Com. (1971), 49 Ill. 2d 561; American Brake Shoe Co. v. Industrial Com. (1960), 20 Ill. 2d 132; Math Igler’s Casino, Inc. v. Industrial Com. (1946), 394 Ill. 330; Chicago Hardware Foundry Co. v. Industrial Com. (1946), 393 Ill. 294.

In the instant case, the Commission denied compensation because it found that petitioner’s injuries were “the result of a union dispute.” While we believe that simply because an assault results from a union dispute does not necessarily preclude recovery, the Commission here apparently determined that the assault in this case was not work related.

The record in this case does not indicate the role the union had in relation to Johnson Outboards. The petitioner testified that he was a member of the union, but it is unclear whether he was actually required to join the union as a condition of his employment with Johnson Outboards. We do know that the trailer in which the union office was housed was located on the company’s premises and that Kenny McDonald’s salary is paid by the union and Johnson Outboards.

Petitioner asserts in his reply brief that the risk of injury from an assault due to disputes within the union is a risk which is incidental to his employment with the company because if he were not employed by the company he would not be in the union and would not be exposed to injuries resulting from union disputes. Therefore, he contends that his injury, which resulted from a union dispute, was due to a risk that he was subjected to as a condition of his employment and not a risk to which the general public would be subjected.

The respondent acknowledges in its brief that various State courts have granted compensation for injuries arising out of union disputes. However, respondent asserts that compensation was awarded in those cases only because the union itself or the union activity which caused the injury was shown to be of some benefit to the employer or in the furtherance of the interests of the employer. Our research failed to disclose a case in Illinois which holds that because an injury resulted from a union dispute it is not compensable. As the petitioner points out, there are cases in other jurisdictions, however, in which compensation has been allowed for injuries which resulted from union disputes. However, in those cases there was sufficient evidence to demonstrate that some benefits accrued to the company as a result of the union’s presence. See Repco Products Corp. v. Workmen’s Compensation Appeal Board (1977), 32 Pa. Commw. 554, 379 A.2d 1089; Salierno v. Micro Stamping Co. (1975), 136 N.J. Super. 172, 345 A.2d 342.

Since the petitioner had the evidentiary burden of establishing that his injury arose out of and in the course of his employment and he did not provide sufficient evidence to establish the role of the union in this case, we believe that he has failed to meet his burden of establishing that his injury “arose out of” his employment.

It is a well-established rule that as a reviewing court, although we might have drawn different inferences from the evidence in the record, we will not set aside an Industrial Commission finding unless it is against the manifest weight of the evidence. (Millis v. Industrial Com. (1982), 89 Ill. 2d 244.) In this case the Commission could have reasonably inferred that the assault did not arise out of the petitioner’s employment. Therefore, we cannot say that the Commission’s decision denying the petitioner compensation is against the manifest weight of the evidence.

For the foregoing reasons, we affirm the judgment of the circuit court.

Judgment affirmed.

JUSTICE MORAN concurs in the judgment.


source: Caselaw Access Project

author: JUSTICE WARD

license: Public Domain

text:
    (No. 56889.
    LEON HORATH, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Baldwin and Associates, Appellee).

      Opinion filed May 27, 1983.

      Warren E. Danz, P.C., of Peoria (Richard G. Leiser, of counsel), for appellant.
    Dennis S. O’Brien, of Livingstone, Mueller, Gunning & Davlin, of Springfield, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

This appeal is from a judgment of the circuit court of De Witt County confirming findings of the Industrial Commission. In its decision, the Commission affirmed an arbitrator’s finding that there was no causal connection between the complaints of Leon Horath, the claimant, of injuries to his cervical spine, left shoulder and neck, and an accident which occurred at work on June 25, 1979. The claimant appealed directly to this court under Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

The claimant filed an application for adjustment of claim on August 10, 1979. In the application, he stated that he was 42 years of age, had been injured in an accident that occurred in the course of his employment on June 25,1979, and as a result was totally disabled.

At the arbitrator’s hearing, Horath testified that he was employed as a laborer at Baldwin & Associates (Baldwin) on June 25, 1979. Shortly before midnight on June 25 he was “stripping forms” on the top of a company building. In so doing, he and other workers were holding ropes that were attached to a steel form. The claimant and other workers held the ropes in order to stabilize the forms as they were lowered by a crane.

As the claimant was holding a rope that was positioned across his back, wind blew the form to which the rope was attached and caused the form to rotate. When the wind blew the form, the rope pulled him forward onto a stack of steel bars.

When he got up, he noticed pain in his back, neck, left arm and left leg. He visited the company nurse, who gave him aspirin. The claimant was admitted to St. Joseph’s Hospital in Bloomington the next day. At St. Joseph’s he was treated by Dr. John Wright and Dr. O. Deneen. He was kept in traction for the next seven or eight days, and was discharged on July 7, 1979. The pain persisted during the hospitalization.

On August 6, 1979, he consulted Dr. J. M. Sethi for a testicular problem. At that time, the claimant complained of pain in his neck and left side of his body. He had pain in the left shoulder. Dr. Sethi treated the claimant but apparently not for the pain in the neck and shoulder. He saw Dr. Sethi once more on August 31, 1979.

He saw Dr. M. L. Mehra on September 28, 1979, and made the same complaints as to pain. Dr. Mehra prescribed a collar. He consulted Dr. Mehra again, and was admitted to St. John’s Hospital in Springfield on January 9, 1980. On January 10, Dr. Robert Hayner surgically removed a cervical disc.

At the time of the hearing, the claimant was still under Dr. Mehra’s care. He testified that no further surgery was scheduled and that he could perform ordinary household chores. He was still experiencing pain, however, in his left leg, left arm, spine and neck, though the pain was not as severe as he experienced after the accident. He complained, too, of numbness in his left arm and hand. He still was using a neck brace, but not a back brace.

The claimant denied telling a contrary version of the accident and his injuries to Baldwin’s nurse, Dr. Hayner (who operated on him) or the doctors at St. Joseph’s Hospital, where he was first treated after the accident. He also denied reinjuring himself between June 25, 1979 and August 6,1979, when he first visited Dr. Sethi.

In a report dated November 12, 1980, Dr. Mehra stated that the claimant was under his care for a cervical disc injury resulting from the accident. Because of that injury, the doctor stated, the claimant remained totally disabled.

According to other physicians’ reports admitted at the hearing, however, the claimant did give different versions of his accident. The report of Dr. Deneen, who treated the claimant at St. Joseph’s Hospital after the accident, stated that “the [claimant] stated that on 6/25 he was lifting some heavy lumbar [sic\ and felt something stab in his back.” According to the report of Dr. Wright, who was called in at St. Joseph’s for an orthopedic consultation, “[the claimant] said he got hurt on June 25th, at the Baldwin Associates, Clinton, Illinois. *** He was doing his usual work, carrying wood forms and stacking them. On one instance, he turned and twisted, causing pain. He said he was unable to finish his day, and the folks had to help him on home.” According to the report of an examination by Dr. William S. Coxe, and the office notes of Dr. Sethi, neither of whom examined the claimant before August 6, 1979, the patient described his accident to them as he did at the hearing.

Too, in the medical evidence there is no indication of any complaints of pain in the neck or left arm before the August 6, 1979, visit to Dr. Sethi. The records at St. Joseph’s, as in fact did the claimant’s application for adjustment of claim, show complaints only of leg and low back pain, and Dr. Wright’s diagnosis was “Acute lumbosacral strain associated with traumatic sciatic neuritis of the left leg.” The radiological consultation report by Dr. Raymond W. Yin at St. Joseph’s stated: “Routine views of the lumbosacral spine show normal findings. There is normal intervertebral disk spacing. Bone density is normal and the apophyseal joints show no deformity.” A radiological report of January 9, 1980, stated that there were degenerative changes in the lower cervical spine.

In the report of Dr. Coxe, dated July 5, 1980, the doctor stated that he was unable to explain the claimant’s complaints as to his lower back on the basis of his examination and review of myelograms made during the preceding six months. Dr. Coxe did state that in the accident as described by the claimant “the rope might have borne down on the left supraclavicular region and the patient might have sustained some stretch of his plexus which would produce a rather more diffuse tingling and numbness in the entire arm ***.” He could not explain, however, the “relationship of these complaints to the ones in the lower extremity.”

In the August 6, 1979, notes of Dr. Sethi, in which the claimant does complain of pain in the left shoulder, Dr. Sethi also noticed multiple bruises and a large healing bruise on the left iliac crest. In Dr. Sethi’s notes of his August 31, 1979, examination, the doctor stated that he believed the claimant probably had spinal injury, but the physician also thought that the claimant was “exaggerating tremendously,” and made “changing complaints.”

The arbitrator found that the claimant did sustain accidental injury arising out of and in the course of his employment with Baldwin. The injury resulting from the accident, however, was a low back injury, he said, which was not causing the plaintiff’s disability at the time of the hearing, and for which $17,412.36 had already been paid by the employer. The arbitrator found that the claimant did not show that his condition of ill-being with regard to the cervical spine and left shoulder were causally connected to the accident.

The claimant testified before the Industrial Commission on review of the arbitrator’s decision. He stated that the pain in his arm, leg, lower back and neck persisted. He remained under Dr. Mehra’s care, and after the arbitrator’s hearing, he was examined by Dr. Gordon Schultz.

Evidence depositions of Dr. Mehra and Dr. Schultz were admitted before the Commission. Dr. Mehra stated that when he first saw the claimant on September 28, 1979, the claimant complained of pain in the neck and left arm. He said that he had been experiencing the pain for the past three months. Also, “he complained vaguely of low back pain and some left leg pain.”

Dr. Mehra explained that the pain worsened during later examinations. In his opinion, the claimant was suffering from cervical disc syndrome throughout the treatments, and he still suffered from that problem or from scar tissue. In response to a hypothetical question that assumed the accident as described by the claimant at the arbitrator’s hearing, the doctor gave an opinion that the cervical disc syndrome was related to the accident. The doctor said he had no other way to explain it. The claimant was never sent back to work, the physician explained, because he continued to complain of pain in his neck and arm.

Dr. Mehra made clear that he was basing his opinion on the facts related to him by the claimant. He was relying upon the claimant’s representation in September 1979 that he had been experiencing pain in the neck and left arm for three months, and that he had been struck in the jaw in the accident of June 25. Dr. Mehra did not receive any report from Dr. Sethi. Dr. Mehra admitted that the disc problem, which was in the neck, could have been the complication of a subsequent injury if such an injury occurred. The neck disc problem, in fact, could be the delayed complication of an injury of any kind. Dr. Mehra never treated the claimant’s lower back.

Dr. Schultz gave an opinion based upon his examination of the claimant and X rays. The doctor said, “He had some arthritic changes in his lower back -with some evidence of a nerve root compression at the L5 level on the left and in his cervical spine he had some severe changes with narrow disk spaces and arthritic changes at the C5, 6 and C7 levels.” The X rays showed minimal degeneration in the lumbar spine due to arthritic changes. The lumbar spine was normal except for arthritic changes in the lower back.

In response to a hypothetical question that assumed the accident as described at the arbitrator’s hearing and immediate pain in his neck, left arm, low back and left leg, Dr. Schultz gave an opinion that the claimant’s condition of ill-being was caused by the accident of June 25.

Upon cross-examination, Dr. Schultz stated that other types of traumatic accidents, such as an auto accident or a fall subsequent to June 25, 1979, could have caused the condition too. Dr. Schultz did not consult the medical reports of other physicians. His only information as to the prior medical history of the claimant was given to him by the claimant.

Dr. Schultz believed that the claimant was not able to work, and that his condition was permanent. The cause of the disability, the doctor stated, was cervical injury. The back problem would interfere only with heavy or repetitive lifting.

The Commission, as we have stated, affirmed the decision of the arbitrator that there was no causal connection between the claimant’s state of ill-being and the accident of June 25, 1979. In its opinion, the Commission pointed out that the history and complaints given by the claimant to the physicians treating him during the initial period of treatment all indicated low back injury, as did the treatment prescribed by the doctors. The first complaints of cervical and left arm pain were not made until he was examined on August 6, 1979, six weeks after the accident at work, at which time Dr. Sethi observed multiple bruises and a large healing bruise on the left iliac crest, the existence of which the claimant denied at arbitration. Dr. Sethi last saw the claimant on August 31, 1979, when he concluded that the claimant was “exaggerating tremendously,” and made “changing complaints.” When the claimant saw Dr. Mehra on September 28, 1979, he complained of neck pain that he said had persisted for three months, but he only incidentally and vaguely referred to low back and left leg pain.

We judge that the circuit court did not err in confirming the decision of the Commission. In a workmen’s compensation proceeding, the claimant has the burden of showing by a preponderance of credible evidence that his injury arose out of and in the course of employment, which requires a showing of causal connection. (Rosenbaum v. Industrial Com. (1982), 93 Ill. 2d 381, 386; Associated Vendors, Inc. v. Industrial Com. (1970), 45 Ill. 2d 203, 205.) It is the function of the Commission to decide the question of causation, and its decision will be overturned only if it is contrary to the manifest weight of the evidence. Goldsamt v. Industrial Com. (1982), 93 Ill. 2d 115, 120-21; O’Neal Brothers Construction Co. v. Industrial Com. (1982), 93 Ill. 2d 30, 37.

We cannot say that the decision here was contrary to the manifest weight of the evidence. The finding as to causation involved the credibility of the claimant. There was evidence that the claimant gave conflicting versions of the accident and the injuries. Too, there was evidence in Dr. Sethi’s examination that the claimant had sustained non-work-related injuries after the complained-of accident.

The claimant contends that the Commission erred by not accepting the medical opinions that the claimant’s condition of ill-being at the time of the hearing was caused by the accident of July 25, 1979. The claimant says there is no medical evidence to the contrary. The medical opinions relied upon by the claimant, however, were based upon the description of the accident and the injury he gave at the hearing. His assertion of immediate and persistent pain in the shoulders and neck was contradicted by other evidence, and a subsequent injury was also indicated. It is the Commission’s role, not ours, to judge the credibility of witnesses. Goldsamt v. Industrial Com. (1982), 93 Ill. 2d 115, 121; White v. Industrial Com. (1982), 88 Ill. 2d 523, 526.

For the reasons given, the judgment of the circuit court is affirmed.

Judgment affirmed.


author: JUSTICE SIMON

text:
    (No. 56903.
    ASSOCIATED MILLS, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (David Lopez, Appellee).

      Opinion filed May 27, 1983.

      Raymond M. Simard, of Discipio, Martay & Caruso, of Chicago, for appellant.
    Lewis R Gaines, of Chicago, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

At issue in this case is (1) whether the Industrial Commission’s award of 39 weeks’ temporary total disability was against the manifest weight of the evidence and (2) whether the respondent’s delay in paying 17 weeks of this compensation justified the Commission’s award of penalties and attorney fees under sections 16, 19(k) and 19(7) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.16, 138.19(k), 138.19(7)). The Commission awarded 39 weeks’ temporary total disability compensation and awarded penalties and attorney fees. The circuit court of Cook County confirmed the decision of the Commission.

The claimant, David Lopez, was working in the shipping department of respondent, Associated Mills, Inc., on April 4, 1978, when he injured his right knee while lifting four large boxes. The parties stipulated before the arbitrator that the claimant’s knee injury arose out of and in the course of his employment and that the respondent had already paid all medical expenses associated with the injury. The parties also stipulated that the respondent paid the claimant $2,552 in compensation, which represented 22 weeks’ temporary total disability through October 18,1978.

At the arbitration hearing the principal disputes between the parties were the extent, if any, of the claimant’s permanent partial disability and whether the claimant was entitled to 17 weeks’ additional compensation for temporary total disability covering the period from October 18, 1978, to February 5, 1979. The arbitrator found that the claimant suffered the permanent and complete loss of use of his right leg to the extent of 40% thereof and that he was entitled to compensation for that permanent disability. The arbitrator also found that the claimant was entitled to 17 weeks’ additional temporary total disability.

Both the Commission and the circuit court upheld the award of permanent partial disability, and the respondent no longer disputes the merit of that award. The Commission also affirmed the award of 17 weeks’ additional temporary total disability benefits and found that the respondent was also liable for penalties of $3,486 and attorney fees of $1,091.61 for its failure to pay the claimant temporary total disability for the period from October 18, 1978, to February 5, 1979. The circuit court affirmed both the award of temporary total disability and the award of penalties, and the respondent appeals directly to this court (87 Ill. 2d R. 302(a)).

The respondent claims that the company physician who was treating the claimant released him for work on October 18, 1978. Accordingly, the respondent argues that the claimant is not entitled to any compensation for temporary total disability after that date. Although the claimant did not work after that date, the respondent explains that this was attributable to layoffs at the company’s plant because of a recession in the economy. The claimant, however, answers that the treating physician released him only for light-duty work on October 18, 1978, and that he was not released for full-duty work until February 5, 1979, when he was completely discharged from treatment by the company physician.

The claimant stated that he went to the company physician for treatment on several occasions after his April 4, 1978, accident. Eventually the physician recommended surgery, which was performed on May 19, 1978, and required a hospital stay of several weeks. After his discharge from the hospital the claimant continued to visit the company physician for treatment and observation. The claimant testified that the company’s physician released him for light duty on October 18, 1978, but that he was unable to obtain light duty from the respondent because “they didn’t have any light jobs for me.” The claimant stated that he was finally discharged from treatment on February 5, 1979, and on that date he went to the respondent’s plant to return to work. A manager of the company told the claimant that there were no jobs available for him “because the job was low” — apparently referring to layoffs due to the recession.

The respondent contends that reports sent to it by the physician who was treating the claimant contradict the claimant’s testimony concerning the date he was released for full-duty work. Ten of these reports were sent to the respondent by the treating physician commencing with the claimant’s discharge from the hospital on June 2, 1978, and concluding with his discharge from treatment on February 5, 1979. In the report dated July 27, 1978, the physician noted that “[p]ossibly patient could do some light work at this time.” In the reports dated August 24, September 11 and September 25, the physician noted that, although the claimant had been advised to return to light work, the respondent could not take him back to work because there was no light work available for him. On the September 25 report the physician also noted that “[the claimant’s] temporary disability will be extended about three weeks” and checked a box marked “Not Recommended For Work Through 3 weeks.”

Three weeks later, in a report dated October 16, the physician noted that “[the claimant] is advised to return to work on 18 Oct. 78” and checked a box marked “To Return To Work 18 Oct. 78.” In this report, and in subsequent reports dated November 13 and December 11, the physician made no mention of releasing the claimant for light duty only. In the later two reports the physician did observe that the claimant had been released for “work,” but that none was available.

On a slip dated February 5, 1979, and handed to the claimant, the physician noted: “David Lopez *** to return to work. Discharged from care. No need to return.” On this slip the physician checked a box marked “Kecommended For Work.”

In order to find that the claimant was eligible for temporary total disability for the 17 weeks between October 18, 1978, and February 5, 1979, the Commission had to determine that it was not until the latter date that his recovery from the knee injury had advanced as far as the character of the injury permitted. (Arbuckle v. Industrial Com. (1965), 32 Ill. 2d 581, 586.) The Commission’s resolution of a disputed factual issue will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (Odie v. Industrial Com. (1982), 88 Ill. 2d 514, 519; Flores v. Industrial Com. (1981), 87 Ill. 2d 48, 55.) Although the evidence presented on this issue was conflicting, and on the whole could fairly have supported the position of either party, we cannot say that the Commission’s decision on this issue was contrary to the manifest weight of the evidence. The claimant testified that he was not released for work on a full-duty basis until February 5, 1979. Although the physician’s reports to the respondent easily could be construed to contradict this testimony, they are somewhat ambiguous and capable of a construction that would support claimant’s testimony as well. These reports, therefore, are neither clear nor persuasive enough to warrant a reversal of the Commission’s findings.

The reports, however, are persuasive enough to require a reversal of the Commission’s award of penalties and attorney fees under sections 16, 19(k) and 19(£) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.16, 138.19(k), 138.19(0). “These sections are intended to prevent bad faith and unreasonable withholding of compensation benefits from injured workers. *** Illinois courts have refused to assess penalties under these sections where the evidence indicates that the employer reasonably could have believed that the employee was not entitled to the withheld compensation.” (Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1, 9; see also Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297.) To award penalties and attorney fees under these sections in this case the Commission had to find that the respondent could not have reasonably believed that the claimant’s right to compensation for temporary total disability terminated on October 18, 1978.

This finding of the Commission is against the manifest weight of the evidence, and accordingly the award of penalties and fees must be reversed. The reports that the treating physician sent to the respondent clearly indicated that he first released the claimant for light-duty work on July 27, 1978, not October 18, 1978, as the claimant testified. Although, as stated above, the subsequent reports are somewhat ambiguous, they sustain the reasonableness of the respondent’s belief that the claimant was released for full-duty work on October 18, 1978, and no longer entitled to any compensation for temporary total disability. All the reports prior to October 18 refer to release for “light duty” work. The reports after that date only refer to release for “work.” In addition, in the October 16 report the physician checked the box marked “To Return To Work,” whereas in prior reports he had either checked no boxes or checked the box marked “Not Recommended For Work.” Moreover, the physician noted in the September 25 report that “[the claimant’s] temporary disability will be extended about three weeks,” but did not refer in any of the later reports to the extension of the temporary disability. These reports could have reasonably led the respondent to conclude that the claimant was sufficiently recovered by October 18 to return to full-duty employment and that the claimant only continued returning to see the physician once a month until February 5, 1979, to observe his condition. Thus we hold that the Commission’s award of penalties and attorney fees is against the manifest weight of the evidence.

For these reasons we affirm the judgment of the circuit court insofar as it confirmed the Commission’s award of 39 weeks’ temporary total disability, but we reverse the circuit court’s confirmance of the award of penalties and attorney fees. The cause is remanded to the Commission for issuance of a corrected award in conformance with this opinion.

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


author: CHIEF JUSTICE RYAN

text:
    (No. 56996.
    ALICE DOYLE, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Capitol Dairy Queen, Inc., Appellant).

      Opinion filed May 27, 1983.

      John E. Cassidy, Jr., of Cassidy & Mueller, of Peoria, for appellant.
    James L. Walker, Ltd., of Bloomington, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

An arbitrator denied Alice Doyle, the claimant, compensation under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.). Upon review, the Industrial Commission affirmed the decision of the arbitrator and on certiorari the circuit court of Livingston County set aside the decision of the Commission and remanded the matter to the Commission for a new hearing. Respondent, Capitol Dairy Queen, Inc., appealed to this court pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)). This court dismissed respondent’s appeal for want of an appealable order. (See Allis-Chalmers Manufacturing Co. v. Industrial Com. (1971), 50 Ill. 2d 2, 5.) A new hearing and oral argument were held before the Commission. The Commission issued a decision and opinion pursuant to the remanding order of the circuit court. In the opinion the Commission stated that the circuit court order setting aside the Commission’s prior decision and remanding the cause for a new hearing was unclear as to the reason for the order. Therefore, the Commission rendered its decision in the alternative. The Commission first found that the claimant had failed to prove a causal connection between her condition of ill-being and any activities performed in the course of her employment prior to the onset of her condition of ill-being. In the alternative, the Commission stated that if the circuit court had determined that there was no factual dispute as to the existence of a causal connection between claimant’s work at the Dairy Queen and her condition of ill-being, and if the case had been remanded merely to determine the nature and extent of claimant’s disability and not to decide any factual dispute, then the claimant was permanently and totally disabled.

Both parties sought review, and on certiorari the circuit court of Livingston County vacated the first finding and affirmed the second finding as to petitioner being permanently and totally disabled and ordered the payment of compensation. This matter is now before us on direct appeal pursuant to Rule 302(a) (87 Ill. 2d R. 302(a)).

Alice Doyle was employed by respondent as the manager of its Dairy Queen store in Pontiac. At the hearing before the arbitrator, claimant testified as to the events of February 24, 1975, the day of the alleged accident. She stated that she arrived at work between 8 and 9 a.m. and worked throughout the entire day. She testified that she was mixing a batch of strawberry topping at approximately 5 p.m. She described this as a somewhat strenuous activity due to the viscosity of the mixture. After mixing two buckets of this topping, Doyle said she carried them to a walk-in cooler and then helped her daughter, who was making ice cream bars. It is undisputed that on two occasions claimant carried a box of ice cream bars to an outdoor freezer located behind the Dairy Queen facilities. These boxes weighed approximately five to six pounds. While returning from her second trip to the freezer, at approximately 5 p.m., claimant felt a numbness in her right leg. The numbness progressed up her leg, and she was subsequently hospitalized. It was later found that claimant had suffered an intracerebral hematoma, the cause of which was an arteriovenous malformation.

The evidence deposition of Dr. Joseph Cascino was admitted before the arbitrator. Dr. Cascino, a neurosurgeon, stated that an arteriovenous malformation is a malformed blood vessel, which is usually congenital in nature. Dr. Cascino explained that when a strain is placed on such a blood vessel, it may rupture, allowing blood to escape and causing a hematoma. Such a blood vessel was located in the area of claimant’s brain and did in fact rupture and cause her condition of ill-being.

At issue here is whether or not this condition of ill-being arose out of and in the course of claimant’s employment. Dr. Cascino stated in his deposition that a straining maneuver would cause an increase in blood pressure, putting more of a strain on a malformed blood vessel, which could cause it to rupture. However, the doctor also stated that if the claimant had not incurred a straining maneuver prior to her condition of ill-being, he “would have to accept the fact that she had a hemorrhage without strain.” The doctor further stated that it was possible for claimant to have suffered the ruptured blood vessel while sitting in a chair at work. The critical question is: Did Alice Doyle perform a work-related straining maneuver sufficient to bring about this condition of ill-being? Although claimant testified at arbitration that she had mixed a batch of topping, carried it to the walk-in cooler, helped her daughter make ice cream bars, and then carried the ice cream bars to the freezer, this testimony was contradicted at the arbitration hearing.

On April 29, 1975, John Vogel, a representative of Aetna Insurance Company, interviewed the claimant. She testified at arbitration that she had given Vogel permission to tape record the interview, a transcript of which was entered into evidence over claimant’s objections. In her statement to Mr. Vogel, claimant related the events of February 24, 1975, the date of the alleged accident. She stated that she “went in early to do [her] paper work, and to go to the bank, and just generally to get started up before [her] people came into work, they came in at ten ***.” When asked if she worked all day, claimant testified, “I don’t remember if I came home that afternoon or what, I think I did for a while.” Claimant then stated she would have returned to work no later than 4 p.m. When asked what she had been doing prior to the onset of her condition of ill-being, claimant said, “Well, I’ll just help wherever I was needed and we had been making Busters [ice cream bars] and I had just taken a box out to the freezer.” Claimant went on to state that there was not much physical activity involved in making these ice cream bars. At no time during her statement to Vogel did claimant mention mixing a batch of topping, or any other strenuous activity. At arbitration, claimant was questioned as to the accuracy of this statement. She indicated she may have given these answers to Vogel but could not remember for sure.

Teresa Doyle, claimant’s daughter, testified that she arrived at the Dairy Queen at approximately 4 p.m. on the day in question, at which time her mother was making strawberry topping.

Donald Doyle, claimant’s husband, testified at arbitration that he arrived at the Dairy Queen about 5 p.m. on the day in question. Mr. Doyle stated that when he arrived, claimant was helping Teresa make ice cream bars. Mr. Doyle also gave a taped interview to Mr. Vogel, a transcript of which was introduced into evidence over claimant’s objections.

In Spector Freight System, Inc. v. Industrial Com. (1983), 93 Ill. 2d 507, 514, we stated:

“It is axiomatic that this court, upon review of a workmen’s compensation case, is limited to the determination of whether the findings of the Industrial Commission are against the manifest weight of the evidence, and that the Commission’s prime function is to resolve disputed questions of fact and conflicts in the evidence and that these findings must be upheld unless against the manifest weight of the evidence. [Citations.]”

Our examination of the record shows that the findings of the Commission are not contrary to the manifest weight of the evidence. It is possible to infer from the record that claimant did not engage in any strenuous activity prior to the onset of her condition. We will not set aside the decision of the Commission merely because it is possible to draw a different inference from the evidence. Spector Freight System, Inc. v. Industrial Com. (1983), 93 Ill. 2d 507, 515; Hart Carter Co. v. Industrial Com. (1982), 89 Ill. 2d 487, 495.

Dr. Cascino stated that claimant’s condition of ill-being could have been precipitated by a straining maneuver such as mixing a viscous batch of topping. He also stated it could have occurred in the absence of any physical activity. It is axiomatic that the resolution of conflicting medical testimony is for the Commission, and its decision will not be set aside by this court unless it is contrary to the manifest weight of the evidence. Spector Freight System, Inc. v. Industrial Com. (1983), 93 Ill. 2d 507; International Harvester v. Industrial Com. (1982), 93 Ill. 2d 59.

Claimant now contends that the transcriptions of the statements of claimant and her husband should not have been admitted because they were not properly authenticated. No such objection was made when the statements were offered before the arbitrator, and we consider such objection waived. The only objection was that the statements were not impeaching. The statement of claimant was not offered as an impeaching statement. Since she was a party, the statement was offered and properly admitted as a prior admission. As such, it is relevant evidence upon the fact in issue. (McCormick, Evidence sec. 37, at 74 (2d ed. 1972).) When Mr. Doyle’s statement was offered, it was objected to as not being impeaching or inconsistent with his testimony. Counsel for the employer stated that since this was not a trial before a jury he suggested the arbitrator could admit the statement. If it contained no impeaching material, the arbitrator could disregard the statement. If it contained some statements inconsistent with the witnesses’ testimony, the arbitrator could consider these statements. The arbitrator admitted the transcript of the oral statements on that basis. We do not consider this error.

For the reasons stated above, the judgment of the circuit court of Livingston County is reversed and the original decision of the Industrial Commission affirming the denial of compensation is reinstated.

Judgment reversed.


text:
    (No. 57000.
    RUSSELL DeSUTTER et al., Appellants, v. THE SOUTH MOLINE TOWNSHIP BOARD et al., Appellees.

      Opinion filed May 27, 1983.

    Winstein, Kavensky, Wallace & Doughty, of Rock Island (Franklin S. Wallace, of. counsel), for appellants.
    Stuart R. Lefstein, of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island (Tom M. Lytton, of East Moline, of counsel), for appellees.
   JUSTICE SIMON

delivered the opinion of the court:

This taxpayers’ action seeking an accounting of expense allowances paid by the defendant, South Moline Township Board, to the township officers who are defendants requires us to consider the application and meaning of article VII, section 9(b), of the Illinois Constitution. It provides:

“(b) An increase or decrease in the salary of an elected officer of any unit of local government shall not take effect during the term for which that officer is elected.”

The question presented is whether expense accounts in a fixed amount, for which the recipient need not account, provided by a township board of trustees for officers of a unit of local government (supervisor, clerk and road commissioner of South Moline Township) before their terms of office commenced were precluded by this provision of our constitution. Put another way: Is such an expense allowance an increase in salary of the type prohibited?

This case, in which the plaintiff taxpayers challenge the right of South Moline Township to pay the officials the expense allowances in question, was tried without a jury in the circuit court of Rock Island County. The circuit court held for the plaintiffs, and the appellate court, with one judge dissenting, reversed (107 Ill. App. 3d 86). The circuit court reached its decision on the basis of a stipulation of facts and an undisputed admission contained in the defendants’ affirmative defense. (See Ill. Rev. Stat. 1979, ch. 110, par. 40(2)), which provides “every allegation *** not explicitly denied is admitted ***.”) Among the stipulated facts on which the circuit court relied were the following: Salaries and the expense accounts in question for the three officers were set by the township board on March 1, 1977, to become effective upon the election of the next board. The election in which the township board and officers were elected was held on April 5, 1977. The newly elected officers and township board took office on April 25, 1977. The expense allowances provided in addition to the salaries for these officers were $200 per month for the supervisor, $800 per month for the clerk, and $100 per month for the road commissioner. At a meeting on April 11, 1978, the township board adopted a motion which provided travel expenses were to be itemized and reimbursed at the rate of 17 cents per mile, and a week later it adopted another motion which directed that expenses should be submitted every two weeks and paid once a month. On October 16, 1979, the township board adopted a motion which provided that “the lump sum allowances be reinstated” for the officers in question. The affirmative defense on which the circuit judge relied recited “that the township board upon setting the aforementioned expense accounts, intended them to be an increase in compensation for officers affected thereby.” It is thus the defendants’ position that the expense allowances were additional compensation provided for prior to their term of office and that they raise no problem under the constitutional provision. The text of the resolutions and motions adopted by the township board are not part of the record; the only information we have regarding them is what is contained in the amended complaint, the stipulation of facts and the affirmative defense.

The circuit court concluded that to construe the expense allowances as lump-sum expense accounts as opposed to ceilings on expenses would by indirection increase the compensation of the officers in violation of the Constitution. To avoid declaring the expense allowances set by the township board unconstitutional, the circuit court found that the allowances were intended not as lump-sum payments, but rather as ceilings upon actual expenses for which any of the officials could receive reimbursement during a monthly period. Its order required the officers to repay the township all amounts received by them as expenses, and to submit verified statements of their actual and necessarily incurred expenses for which they could receive reimbursement to the amounts of the ceilings set prior to their election.

The appellate court held that the expense allowances were intended as additional compensation for the officers, but were not constitutionally objectionable because they had been approved by the township board prior to the term for which the officers were elected. Thus, according to the appellate court majority, they received no increase in their salaries during their terms. The appellate court was right.

We find no warrant in the record for viewing the lump-sum expense allowances as the circuit court did — that is, as ceilings upon expense reimbursements for which the officers were required to account. The affirmative defense, as well as the amended complaint, established that the expense allowances were to be paid regardless of whether any expenses were incurred. As noted above, the affirmative defense stated that the expense allowances were intended to increase the compensation received by the officers. The amended complaint contains no hint of any claim or theory being advanced by the plaintiffs that the township board intended that the lump-sum expense allowances were ceilings to be applied only against expenses actually incurred. On the contrary the amended complaint alleged that each of the officers received a monthly flat-rate sum in addition to his compensation, and that the flat-rate expense accounts were to be paid without any showing of what expenses were incurred and without justifying any expenses. That by its action on March 1, 1977, the township board intended that expense allowances were to be paid without the need for itemization and regardless of whether expenses were actually incurred is borne out by the motions adopted at the two meetings in April 1978 requiring that thereafter expenses be itemized and submitted every two weeks for payment and a further change in October 1979 reinstating the “lump sum allowances.”

The salaries of the officers and their lump-sum expense allowances were approved by the township board as part of the compensation of the officers to be elected before their terms took effect. It is therefore our judgment that the “lump sum allowances,” even though labeled as expense allowances, were additional salary or compensation for the officers and did not conflict with the constitutional prohibition.

The only constitutional violation which appears to have occurred was in connection with the replacement of the lump-sum expense allowances in April 1978, during the terms of office of the officers in question, by a system requiring the officers to account for their mileage. To the extent that this change reduced or increased the amount payable to the officers each month, the change took effect during their term and violated article VII, section 9(b), of the Constitution, thereby rendering the action invalid. The plaintiffs do not, however, take issue with this change but question the later change of October 1979. This action, reinstating the lump-sum allowances, did not conflict with the Constitution, for it did nothing more than restore the unobjectionable allowances which had taken effect in 1977 upon the commencement of the term of the officers. Since the net effect of the 1978 and 1979 enactments was to preserve the pre-election status quo, we will not hold the latter enactment invalid even though it would not, by itself, survive constitutional scrutiny had it not been preceded by the identical resolution adopted prior to the start of the term of office.

The dissenting opinion of the appellate court advanced a theory which has not been urged upon us by the plaintiff taxpayers in this court. It is that to the extent the lump-sum expense allowance was not fully used by an officer in any monthly period to defray his expenses, the officer’s compensation in that month was increased. However, whether all of the expense allowance, part of it, or none of it was in fact used by the officer in performing his duties is immaterial so long as there was no requirement that the officer account for what he spent or for that matter whether he spent any part of it on account of his work; as we have explained above, nothing in the record before us supports the conclusion that the township board imposed any such requirement.

The plaintiffs rely on two earlier decisions of this court, Peabody v. Forest Preserve District (1926), 320 Ill. 454, and Cullom v. Dolloff (1880), 94 Ill. 330. Peabody is not relevant because the compensation for the forest preserve commissioners was fixed in 1918, the commissioners in question took office in 1922 to serve a four-year term, and a lump-sum expense allowance was granted to them by resolution adopted in 1924 which obviously came into effect during their term of office. We do not regard Cullom as a persuasive precedent because the constitutional requirement that the compensation paid to officers of local government be “a reasonable compensation for services actually rendered” (emphasis added) (Ill. Const. 1870, art. X, sec. 12), on which the Cullom court relied, no longer appears in our constitution (see Ill. Const. 1970, art. VII, sec. 9). In addition, the resolution involved in Cullom and adopted prior to the start of the defendant’s term of office fixed an amount for “necessary” clerk hire. Limiting the amount to be paid to what was “necessary” for clerk hire was construed in Cullom to provide only for amounts which were actually expended by the officer in question for employing clerks. Moreover, the provision of the 1870 Constitution which was applicable at that time, unlike the 1970 constitutional provision on which plaintiffs rely, authorized the county board only to fix the amount of necessary clerk hire which was to be paid out of fees collected. By contrast, the resolution with which we deal in this case did not provide for reimbursement only for “necessary” expenses.

Plaintiffs argue that as a matter of policy it is not permissible to call a payment to an officer an expense allowance if it is actually intended as additional compensation. This is a policy argument which has no constitutional foundation. We find no constitutional prohibition against the payment of additional compensation to the defendants by means of unconditional lump-sum expense allowances, so long as they were established before the defendants entered upon their terms of office, as was the case here. Accordingly, the plaintiff taxpayers are entitled to neither an accounting nor an injunction prohibiting payment of the expense allowances.

The judgment of the appellate court is affirmed.

Judgment affirmed.


author: JUSTICE GOLDENHERSH

text:
    (No. 57184.
    THE BOARD OF COMMISSIONERS OF THE WOOD DALE PUBLIC LIBRARY DISTRICT et al., Appellees, v. THE COUNTY OF DU PAGE et al., Appellants.

      Opinion filed May 27, 1983.

      Samuelson, Knickerbocker & Schirott, of Des Plaines, and James R. Schirott and John T. Eisner, of Schirott & Eisner, of Itasca, for appellants.
    Barry L. Moss and George A. Marchetti, of Moss and Bloomberg, Ltd., of Bolingbrook, for appellees.
    Botti, Marinaccio & Maksym, Ltd., of Oak Brook (Aldo E. Botti and Walter P. Maksym, Jr., of counsel), for amicus curiae Urban Counties Council of Illinois.
    Nathan M. Cohen, Robert M. Sarnoff, Michael E Baccash, and Leonard Saphire-Bernstein, of Arvey, Hodes, Costello & Burman, of Chicago, for amicus curiae Board of Trustees of Community College District No. 508.
    Thomas W. Kelty and Frank M. Pfeifer, of Pfeifer & Kelty, P.C., James C. Craven, of James C. Craven, P.C., and Thomas F. Londrigan, of Londrigan & Potter, P.C., all of Springfield; Louis Vitullo, of Friedman & Koven, of Chicago; and Paul C. Yerticchio, of Verticchio & Verticchio, of Gillespie, for amici curiae Illinois Municipal League et al.

    Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Philip L. Bronstein, Assistant Corporation Counsel, of counsel), for amicus curiae City of Chicago.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

The board of library trustees of the Wood Dale Public Library District, and the library district, a municipal corporation, on its own relation and on behalf of all municipal corporations and other local governmental bodies similarly situated, filed a two-count complaint in the circuit court of Du Page County against defendants, the County of Du Page, its board of commissioners and its treasurer and ex-officio collector. In count I it was alleged that the county treasurer, as ex-officio county collector for the defendant county, collected tax monies for and on behalf of the members of the plaintiff class, invested the tax monies collected on behalf of the plaintiffs, but failed, as required by section 2 of “An Act relating to certain investments of public funds by public agencies” (the Investment of Public Funds Act) (Ill. Rev. Stat. 1981, ch. 85, par. 902), to distribute the earnings on the investments of these monies. In count II it was alleged that the county treasurer’s practice of retaining interest earned on the investment of funds collected for members of the plaintiff class violated section 9(a) of article VII of the 1970 Illinois Constitution. Both counts prayed for a declaratory judgment that the retention of interest by the county treasurer was improper, a permanent injunction enjoining the defendant from retaining interest earned upon funds collected for the plaintiffs, an accounting for the period “from October 1, 1972 to and including the date of the conclusion of this litigation ***,” and for other relief. The defendants moved to dismiss the complaint on the ground, inter alia, that it did not state a cause of action. The circuit court dismissed the complaint with prejudice.

On appeal, the appellate court noted the apparent conflict between section 6.1 of “An Act concerning county treasurers ***” (the County Treasurers’ Act) (Ill. Rev. Stat. 1981, ch. 36, par. 22.1) and section 2 of the Investment of Public Funds Act (Ill. Rev. Stat. 1981, ch. 85, par. 902). The court held that under the defendants’ proposed construction of the County Treasurers’ Act, permitting the county treasurer to retain interest earned on the investment of monies collected for other taxing districts would result in the charging of fees for the collection of those taxes, in violation of section 9(a) of article VII of the 1970 Illinois Constitution. The appellate court refused to place an unconstitutional construction on the pertinent sections of the County Treasurers’ Act, and construed the statutory provisions to provide that the Investment of Public Funds Act controlled. It reversed the judgment of the circuit court and remanded the cause with directions. (107 Ill. App. 3d 409.) We granted defendants’ petition for leave to appeal. 87 Ill. 2d R. 315.

Section 6.1 of the County Treasurers’ Act provides:

“All earnings accruing on any investments or deposits made by the County Treasurer whether acting as such or as County Collector, of county monies as in this Act is defined, shall be credited to and paid into the County Treasury for the benefit of the county corporate fund to be used for county purposes, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund.” (Ill. Rev. Stat. 1981, ch. 36, par. 22.1.)

Section 1 of the Act, in pertinent part, provides:

“The term ‘county moneys’ shall include all moneys to whomsoever belonging, received by or in possession or control of the incumbent of the office of county treasurer when acting as such or in any other official capacity incident to his incumbency of the office of county treasurer.” (Ill. Rev. Stat. 1981, ch. 36, par. 17.)

Section 2 of the Investment of Public Funds Act provides, in pertinent part:

“All earnings accruing on any investments or deposits made pursuant to the provisions of this Act shall be credited to the public agency by or for which such investments or deposits were made, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund.” (Ill. Rev. Stat. 1981, ch. 85, par. 902.)

Section 1 of the Act provides:

“The words ‘public funds’, as used in this Act, mean current operating funds, special funds, interest and sinking funds, and funds of any kind or character belonging to or in the custody of any public agency.” Ill. Rev. Stat. 1981, ch. 85, par. 901.

Article VII, section 9(a), of the Illinois Constitution provides:

“(a) Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes.” Ill. Const. 1970, art. VII, sec. 9(a).

In its well-reasoned opinion the appellate court held that the statutes are in pari materia and that “it is difficult to reconcile them by familiar rules of statutory construction” (107 Ill. App. 3d 409, 411); that the retention by the county collector of the interest earned by the deposited funds “is functionally a charge based upon the levy and disbursement of taxes” (107 Ill. App. 3d 409, 415); and that it was the intent of the framers that article VII, section 9(a), proscribe the retention of those earnings (107 Ill. App. 3d 409, 416). The appellate court concluded that to hold that section 6.1 of the County Treasurers’ Act included the interest earned on funds owned by other units of local government would render it unconstitutional. We agree.

Defendants contend that tax monies collected by the county collector, but undistributed, fall within two separate statutory definitions. They are, defendants contend, county monies within the contemplation of section 1 of the County Treasurers’ Act, but while they remain undistributed, they are also “public funds” within the definition of section 1 of the Investment of Public Funds Act. They argue that section 2 of the Investment of Public Funds Act has application only when the county treasurer, ex-officio collector, does not otherwise “have authority to invest such funds” and that “by its very terms” section 2 does not apply to collected but undistributed funds held by the collector up to 30 days after the due date of the taxes.

Defendants also cite the amendment to section 280 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 761), which became effective on November 12, 1981, and provides:

“In counties with a population of less than 3,000,000, the county collector shall within 30 days after due date and at 30-day intervals thereafter, pay over to the other proper authorities or persons the amounts in his hands and payable to them as taxes, not theretofore paid over. Taxes collected in counties with a population of less than 3,000,000 and not distributed to other proper authorities shall be invested in accordance with the provisions of Section 1 of ‘An Act in relation to the deposit of public funds’, approved July 16, 1963, as heretofore or hereafter amended, and the interest accrued on monies held by the county collectors in excess of 30 days after the due date and the succeeding 30 day intervals thereafter, shall be distributed along with the principal amount of taxes.”

Keading these enactments in pari materia defendants contend that interest earned up to 30 days after the due date of the taxes is to be retained by the county collector while interest on funds retained for a period of more than 30 days after the due date of the taxes is to be distributed along with principal to the units of local government on whose behalf the investments were made.

In the posture in which this matter comes before us, the only issue presented is whether the complaint stated a cause of action, and, for the reasons stated, we agree with the appellate court that it did. We need not and do not reach the question of the standing of the plaintiff district, as a municipal corporation, to attack the constitutionality of the statute. The cause of action seeks a declaratory judgment that section 2 of the Investment of Public Funds Act rather than section 6.1 of the County Treasurer’s Act controls the question of entitlement to the interest earned on investments of tax funds collected by the county collector and undistributed. Unquestionably, plaintiff had standing to seek a determination of that issue, and because incidental to the determination of the question presented it became necessary to consider the validity of a statute in the event it were given a particular construction, plaintiff was not divested of the requisite standing.

We do not reach the question whether the provision of section 280 of the Revenue Act of 1939 is applicable and, if so, its effect on plaintiffs’ cause of action. The amendment to section 280 became effective subsequent to the order of dismissal entered in the circuit court, and that court had no opportunity to consider its effect, if any, on the issues presented.

For the reasons stated the judgment of the appellate court is affirmed and the cause is remanded to the circuit court of Du Page County for further proceedings consistent with this opinion.

Affirmed, and remanded.

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


author: JUSTICE MORAN JUSTICE SIMON,

text:
    (No. 56561.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHARLES MILLER, Appellee.

      Opinion filed April 13, 1983.

    Rehearing denied May 27, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Tim P. Olson, State’s Attorney, of Jacksonville (Michael B. Weinstein and Darrell Panethiere, Assistant Attorneys General, of Chicago, and Robert J. Biderman and Garry W. Bryan, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Gary R. Peterson, Assistant Defender, of Springfield, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Charles Miller (defendant), Clarence Armstrong and Randy Williams were charged by information with the offenses of murder, kidnaping, aggravated kidnaping and armed robbery of Neil Gorsuch in violation of sections 9—1(a)(1), 10—1(a)(2), 10—2(a)(5), and 18—2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 9—1(a)(1), 10—1(a)(2), 10—2(a)(5), 18—2(a)). Defendant and Armstrong were tried separately. (Williams pleaded guilty to the charge of kidnaping and agreed to testify against defendant and Armstrong in return for which the State dismissed the other charges pending against him.) Following a jury trial in the circuit court of Morgan County, defendant was found guilty of all charges except armed robbery. He was, instead, found guilty of robbery. Although, in a separate sentencing proceeding, the State sought the death penalty, the jury recommended that defendant be sentenced to imprisonment. The trial judge sentenced defendant to concurrent terms of 80 years’ imprisonment for murder, 30 years for aggravated kidnaping, and seven years for robbery. (The judge vacated defendant’s kidnaping conviction because it is a lesser included offense of aggravated kidnaping.) The appellate court reversed defendant’s convictions and remanded the cause for a new trial on the ground that the prosecutor improperly cross-examined defendant regarding his post-arrest silence. (104 Ill. App. 3d 57.) We granted the State leave to appeal.

Although defendant, in his answering brief, alleges numerous errors in the trial court proceedings, we find it necessary to address only the following issues: (1) whether the prosecutor improperly cross-examined defendant as to his post-arrest silence, and (2) if so, whether the error was harmless beyond a reasonable doubt.

The record discloses that, during the evening of February 8, 1980, Randy Williams, his brother Richard, and Clarence Armstrong were drinking at the Regulator Tavern in Jacksonville. The victim, later identified as 23-year-old Neil Gorsuch, was also present at the tavern and occasionally conversed with Armstrong. Gorsuch was not previously acquainted with the Williams or Armstrong. At approximately 1:30 a.m. on February 9, 1980, all four individuals left the tavern together. Later that afternoon, the victim’s body was discovered partially submerged in a creek near the Markham bridge in Morgan County. .

Randy Williams, the State’s chief witness, testified that Armstrong offered the victim a ride to the motel at which the victim was staying. Richard'Williams was driving his girlfriend’s car. Randy sat next to him in the front seat, and Armstrong and Gorsuch were in the back seat. Richard first drove himself to his home, where he and his girlfriend lived, and allowed Randy to borrow the car for the evening. He began driving, with the victim and Armstrong seated in the back seat.

Randy further stated that, after driving for some time, Armstrong began hitting Gorsuch. Although his reason for administering the beating is unclear, it seems that Armstrong believed the victim was making sexual advances. Randy eventually drove to his parents’ house, at which time Armstrong took Randy’s stocking cap and pulled it down over the victim’s face. He then ordered him to go into the bathroom and wash off the blood. Once inside, it was discovered that the victim had defecated in his pants. He cleaned himself, and subsequently threw out his underwear.

While the victim was in the bathroom, Armstrong pocketed Randy’s .32-caliber revolver which was loaded with one bullet. He also obtained Randy’s shotgun and some ammunition.

The trio then returned to the car, and Armstrong shoved Gorsuch into the rear seat. He then sat in the front seat with Randy, and directed him to drive to a trailer court. Sometime during the ride, Armstrong fired the revolver into the back seat. The bullet did not strike the victim. Randy parked at the designated trailer home, which Armstrong then entered. He returned a few minutes later and sat in the front seat. Shortly thereafter, defendant emerged from the trailer and sat in the back seat of the car with the victim. Randy began driving again, at Armstrong’s direction. He stated that it was still dark out at this time.

During the course of the ride, Armstrong requested the victim to perform fellatio. He refused, and Armstrong asked if he wanted to “be hurt.” He still resisted, and Armstrong informed him that he was a “dead man.” The defendant subsequently asked the victim if he had any money. When he indicated that he did, defendant began to hit him and demanded his money. Randy stated that he “heard” defendant rustling through the victim’s pockets.

Armstrong directed Randy to stop the car when they reached the Markham bridge. Defendant exited the car, and Armstrong handed him the shotgun. Armstrong then pulled the victim out of the car, removed the stocking cap which was still covering his face, and pushed him against the railing of the bridge. Defendant, while standing at a distance of 10 to 12 feet from the victim, shot him in the back of the head. Armstrong reloaded the shotgun, and he also shot the victim in the head. He then placed a third shell in the gun, handed it to Randy, and ordered him to shoot the victim. Randy shot and missed, and the shell rolled through a gap in the bridge and dropped underneath. The gun was reloaded and Armstrong threatened Randy that he “better do it right, or we’ll bury [you] with him.” Randy fired a second shot at the victim and thought he may have hit him. Armstrong then grabbed the victim by the feet and “flipped” him over the railing of the bridge into the creek below.

At Armstrong’s direction, Randy retrieved the spent shells, except' the one which fell under the bridge. All three returned to the car and sat in the front seat, with Randy driving. The shells, and the victim’s wallet and driver’s license were thrown out the window on the passenger side of the car.

The witness further testified that he gave Armstrong a ride home, and then he and the defendant went to a cafe, owned by Mrs. Williams, for breakfast. It was beginning to get light when they arrived at the restaurant.

Later that evening, the defendant, the Williams brothers, and Richard’s girlfriend went to the Williams’ house. Randy stated that, while at his parents’ home, he, Richard and defendant went into a bedroom to talk. At one point during the conversation, defendant admitted to participating in the killing.

During cross-examination, Randy’s testimony was impeached in certain respects. Defense counsel elicited the fact that, in a statement he gave the police following his arrest, he indicated that Armstrong fired the revolver into the rear seat of the car as they approached the murder site. He also, at one point, denied having any contact with the victim. In his statement, he indicated that Armstrong did not enter the trailer at which defendant was staying; he just opened the storm door and talked to somebody. Further, he named a different trailer park in his statement than the one in which defendant was staying.

As previously noted, Randy stated, on direct examination, that defendant was 10 to 12 feet away from the victim when he shot him. However, a pathologist testified that the victim died from contact or near-contact wounds. In addition, Randy did not tell the police officers about the conversation with his brother and defendant, during which defendant allegedly admitted his complicity in the murder. He only informed the officers that he told his brother “I think I might be in trouble.” Randy admitted during cross-examination that he lied in his statement to the police. It was further disclosed that Randy had been drinking during most of the day on which the murder occurred and had taken a narcotic substance that evening. He was uncertain as to the routes he had driven on the evening of the murder or the amount of time which elapsed between events.

Finally, the defense called a doctor who testified that, in his opinion, the victim was not killed at the bridge because of the small amount of blood found on the bridge. However, on cross-examination, the doctor admitted that he never personally viewed the bridge or the victim’s body. His opinion was based on photographs of the scene and a review of the report prepared by the pathologist who performed the autopsy. Further evidence indicated that there was a great deal of blood and brain matter located in the area around the bridge.

Although impeached in certain instances, Randy’s testimony was corroborated in a number of particulars. Numerous witnesses confirmed that the Williams brothers and Armstrong left the tavern with the victim at approximately 1:30 a.m. on the day of the murder. Richard Williams testified as to the seating arrangement in the car, and that he was dropped off at home after leaving the tavern. Dr. Dietrich, a pathologist who performed the autopsy, confirmed Randy’s testimony that the victim received a beating while he was still alive. He also indicated that death resulted from at least two shotgun wounds to the back of the head. Although there was a severe laceration on the victim’s forehead, he did not believe this wound was lethal. The doctor further stated that the victim was fully clothed at the time of the autopsy, except that he was not wearing any underwear.

A forensic scientist testified that, in his opinion, all of the discharged shotgun shells were fired from Randy’s 12-gauge shotgun. The witness also stated that a projectile which was recovered from the rear seat of Richard’s girlfriend’s car could have been fired from Randy’s revolver. Three of the shells and the victim’s driver’s license were recovered by police in the approximate area where Randy had indicated the items were discarded. A fourth shotgun shell was found underneath the bridge.

A number of witnesses confirmed Randy’s testimony that Armstrong arrived at the trailer where defendant was staying sometime during the early morning of February 8, 1980. They stated that defendant left with Armstrong at that time and did not return until after daylight. There was testimony to the effect that it was still dark when defendant left the trailer.

Mrs. Williams testified that her son and the defendant arrived at the restaurant at approximately 6:15 a.m. on the morning of the murder. She stated that it was just beginning to get light at that hour. Both parties stipulated that the sun rose at 6:59 a.m. on February 9,1980.

Richard Williams confirmed Randy’s testimony that, on the evening following the murder, the defendant and Randy spoke with him in a bedroom at his parents’ house. They both admitted to participating in the murder, and defendant warned him to “be quiet about it.” On cross-examination, Richard admitted to having made a statement to a police officer in which he denied knowing the victim. He also denied any conversation with his brother regarding the crime, except that Randy told him he was in trouble.

Defendant testified in his own behalf. He essentially stated that, at approximately daybreak on the morning of February 9, 1980, Armstrong came to the trailer at which he was staying and said he needed advice. He later told the defendant that he had beaten the victim, and Randy said he hit him with a pair of “numchucks.” According to defendant, they had killed the victim because they were afraid he would inform the police about the beating. Thus, it was defendant’s contention that the victim was already dead when Armstrong and Randy sought his advice.

He further testified that, during the evening following the murder, Randy and Richard were conversing in a bedroom at their parents’ home. Defendant said he overheard Randy say to his brother: “I really ain’t kiddin’. I did kill that dude.” At the conclusion of his testimony, defendant stated that he had been convicted of aggravated battery in 1976.

The prosecutor commenced his cross-examination of the defendant with the following questions:

“Q. Mr. Miller, how old are you?
A. 23.
Q. Why didn’t you tell this story to anybody when you got arrested?”

Defense counsel immediately objected and asked to approach the bench. A discussion was held outside the presence of the jury, during which defense counsel requested a mistrial on the grounds that defendant’s right to remain silent was violated. The judge denied the motion for a mistrial, but sustained the objection and informed the jury “to ignore that last question, for the time being.” This line of inquiry was not further pursued, nor was defendant’s silence commented upon during the State’s closing argument.

It is clear that where a defendant is given the Miranda warnings at the time of his arrest and exercises his right to remain silent, the State may not comment at trial upon his post-arrest silence. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.) However, in their briefs, both parties contend that the trial record does not indicate whether defendant received the Miranda warnings at the time of his arrest. They therefore characterize the issue as involving the propriety of cross-examining a defendant as to his post-arrest silence, in the absence of the Miranda warning assurances. The State primarily cites Fletcher v. Weir (1982), 455 U.S. 603, 607, 71 L. Ed. 2d 490, 494, 102 S. Ct. 1309, 1312, for the proposition that, where a defendant does not receive Miranda warnings, it does not violate “due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.” The defendant relies on People v. Beller (1979), 74 Ill. 2d 514, in which this court determined that the Doyle rule, prohibiting comment on a defendant’s post-arrest silence, is applicable whether or not Miranda warnings have been given. Because we find that defendant did receive the Miranda warnings in the instant case, it is unnecessary to resolve the differing principles set forth in Fletcher and Better.

We note initially that the parties’ contentions assumed a different posture during oral argument. There, they each conceded that defendant did not receive the Miranda warnings at the time he was initially arrested, but that he was later informed of his rights at the police station. This point is significant under the circumstances of this case.

Testimony at a pretrial suppression hearing indicated that defendant and Randy were arrested together at a gas station during the early morning of February 10, 1980. Although Miranda warnings were not administered, it is undisputed that defendant was arrested, at that time, for unlawful use of weapons. A police officer testified that, at the time of the arrest, he had no knowledge of defendant’s complicity in the Gorsuch murder. Following their arrest, defendant and Randy were transported to the police station. Later that afternoon, Randy was interviewed by a police officer and gave a formal statement in which he implicated himself and defendant in the murder. A review of the common law record indicates that this interview was concluded at 2:30 p.m.

Also included in the common law record was an investigation report written by a police officer on February 11, 1980. This report indicates that, on February 10, 1980, Detectives Lieb and McKenna brought defendant into Lieutenant Turke’s office for questioning concerning the murder. He was informed of his Miranda rights at 2:57 p.m. Defendant refused to talk and requested a lawyer, after which he was reincarcerated.

Under these circumstances, we conclude that defendant did receive the Miranda warnings at the time of his arrest for the instant offenses. The fact that he was not informed of these rights at the time of his initial arrest is irrelevant, since the unlawful-use-of-weapons charge was not the offense for which defendant was ultimately tried. Because defendant did receive the Miranda warnings at the relevant time, the rule enunciated in Doyle controls. Consequently, the State’s inquiry during cross-examination violated defendant’s right to remain silent.

The State next contends that, even if the prosecutor’s inquiry concerning defendant’s silence was improper, the error was harmless. Defendant asserts that the harmless-error doctrine is inapplicable because “[t]he prosecution’s case was weak, premised solely on accomplice testimony.” It is argued that the trial was basically a credibility contest between defendant and Randy, and the reference to defendant’s silence may have injured his credibility.

This court, along with a number of other courts, has determined that a Doyle violation may constitute harmless error. (See People v. Beller (1979), 74 Ill. 2d 514, 525, and cases cited therein.) As previously stated, defense counsel made a prompt objection to the prosecutor’s inquiry, after which the trial judge instructed the jury to disregard the question. Normally, an instruction of this nature is sufficient to cure an error at trial. (People v. Carlson (1980), 79 Ill. 2d 564.) Defendant, however, cites three cases for the proposition that remarks concerning post-arrest silence cannot be cured by a “cautionary instruction.” (See People v. Scalisi (1926), 324 Ill. 131; People v. McCray (1978), 60 Ill. App. 3d 487; People v. Kilzer (1978), 59 Ill. App. 3d 669.) These cases are inapposite.

In Scalisi, the prosecutor attempted to impeach the defendant with a statement he had previously made to him at the police station. Responding to an objection by defense counsel, the prosecutor stated, in the presence of the jury: “He is telling one story on the stand here, and at the time I talked to him right after the transaction he told an entirely different story; he was making a defense then; his counsel did not think it would get across in this case.” (324 Ill. 131, 144.) This court determined that informing the jury to disregard the comment was insufficient to cure the error. However, this conclusion was based on the fact that the prosecutor, who was not sworn as a witness, stated a fact purporting to be within his personal knowledge. This misconduct is dissimilar to that involved in the instant case, and was one of many errors noted by the court in reversing the cause.

In McCray, the defendant, charged with robbery, testified on his own behalf. During cross-examination, the prosecutor inquired as to whether defendant had “[a]ny occupation other than robbing people.” (People v. McCray (1978), 60 Ill. App. 3d 487, 489-90.) This error, for which the cause was reversed, simply did not involve any reference to defendant’s post-arrest silence. Similarly, the reversal of defendant’s conviction in Kilzer was not based upon a Doyle violation. In Kilzer, the prosecutor improperly commented upon defendant’s allegedly prior inconsistent statement which was not introduced into evidence. The court determined that the verdict may have been otherwise had the remarks not been made.

Here, it is our view that, beyond a reasonable doubt, the prosecutor’s improper inquiry did not affect the verdict. In addition to the fact that the jury was informed to disregard the question, it was but a single, isolated reference to defendant’s post-arrest silence made during the course of a lengthy trial. Further, the evidence, as previously recited, was sufficient to prove defendant’s guilt beyond a reasonable doubt. We do not consider this “a case in which, absent the constitutionally forbidden [inquiry], honest, fair-minded jurors might very well have brought in [a] not-guilty [verdict].” Chapman v. California (1967), 386 U.S. 18, 25-26, 17 L. Ed. 2d 705, 711, 87 S. Ct. 824, 829.

For the above-stated reasons, the judgment of the appellate court is reversed, and the cause is remanded to the appellate court with directions to consider the other issues raised by defendant in that court but not decided.

Reversed and remanded, with directions.

JUSTICE SIMON,

dissenting:

The prosecutor’s improper inquiry into the defendant’s post-arrest silence was not harmless error. A prosecutor's comment upon the “silence of the accused is a crooked knife and one likely to turn in the prosecutor’s hand. The circumstances under which it will not occasion a reversal are few and discrete.” (United States v. Edwards (5th Cir. 1978), 576 F.2d 1152, 1155.) I would affirm the judgment of the appellate court which reversed the defendant’s convictions of murder, aggravated kidnaping and robbery, and remand the cause to the circuit court of Morgan County for a new trial.

The State’s case against the defendant depended heavily upon the testimony of Randy Williams, the defendant’s alleged accomplice. As the appellate court observed, “nothing except Williams’ testimony directly links [the defendant] with the crimes.” 104 Ill. App. 3d 57, 61.

Accomplice testimony of this kind is inherently unreliable as it often may be motivated by pressures other than the witness’ desire to reveal the truth, “such as the promise of leniency or immunity and malice toward the accused.” (People v. Wilson (1977), 66 Ill. 2d 346, 349.) This court has often stated that it “will not hesitate to reverse a conviction based upon the testimony of an accomplice when that testimony lacks material corroboration or is discredited by other credible evidence.” E.g., People v. Hermens (1955), 5 Ill. 2d 277, 286.

In this case, the defendant vigorously disputed Williams’ version of the events on the evening of the murder and the following morning. The defendant denied any involvement in the crime and implicated Williams. The jury had the sole responsibility for resolving the sharp conflict between the testimony of Williams and the testimony of the defendant. The resolution of this conflict depended totally upon the jury’s assessment of the defendant’s credibility, for the other evidence in the case could have fairly supported either the defendant’s or Williams’ story. The record clearly shows that the prosecutor, the trial court judge and the appellate court all understood that “[t]he trial was essentially a credibility contest between defendant *** and Randy Williams.” 104 Ill. App. 3d 57, 61.

Given the importance of the defendant’s credibility at his trial, I cannot say beyond a reasonable doubt that the prosecutor’s reference to the defendant’s post-arrest silence did not affect the jury’s verdict. The prosecutor’s statement— “Why didn’t you tell the story to anybody when you got arrested?” — was obviously calculated to undermine the credibility of the defendant’s story with the jury. I do not understand how anyone could know beyond a reasonable doubt that it did not succeed.

The majority erroneously maintains that the trial court’s cautionary instructions rendered the prosecutor’s improper inquiry harmless error. An improper inquiry by the prosecutor concerning the defendant’s post-arrest silence is not automatically remedied by a cautionary instruction. (See e.g., United States v. Curtis (3rd Cir. 1981), 644 F.2d 263, 270-71; cert. denied (1982), 459 U.S. 1018, 74 L. Ed. 2d 512, 103 S. Ct. 379; United States v. Prescott (9th Cir. 1978), 581 F.2d 1343, 1352; Morgan v. Hall (1st Cir. 1978), 569 F.2d 1161, 1168, cert. denied (1978), 437 U.S. 910, 57 L. Ed. 2d 1142, 98 S. Ct. 3103; see also, United States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133.) If the majority were correct, the prosecutor would have little incentive to avoid such inquiries on cross-examination of the defendant; he could safely inform the jury of the defendant’s post-arrest silence, risking only an objection by the defendant’s counsel and a cautionary instruction by the trial court. A cautionary instruction is at best only a partial remedy. Cf. Bruton v. United States (1968), 391 U.S. 123, 136-37, 20 L. Ed. 476, 485, 88 S. Ct. 1620, 1628.) The instruction may confuse the jury; or the jury may disregard it and use the defendant’s silence against him anyway. In a close case like this one, based wholly upon accomplice testimony and circumstantial evidence, the reference to post-arrest silence can work extreme prejudice against the defendant, notwithstanding a cautionary instruction. In such cases the defendant must receive a new trial, for the Miranda warnings mean nothing unless an innocent defendant can remain silent at his arrest without prejudicing his case.

Even if a proper cautionary instruction could have cured the prosecutor’s improper reference to the defendant’s post-arrest silence, the instruction given in this case was insufficient. The trial court only directed the jury to ignore the prosecutor’s remarks ‘‘for the time being.” This instruction is not a precise and unambiguous statement to the jury that it should ignore the prosecutor’s remarks. Given that the trial was essentially a credibility contest between Williams and the defendant, this opaque instruction did not render the prosecutor’s remarks harmless error. It did not prevent the prosecutor’s highly questionable cross-examination tactic from infecting the defendant’s entire testimony and lowering its value to the jury.

In my opinion, the prosecutor’s improper remarks were not harmless error and the judgment of the appellate court should be affirmed and the cause remanded to the circuit court for a new trial.