text:
    (No. 56557.
    MINONK STATE BANK, Adm’r, Appellee, v. IDA GRASSMAN et al. (Ida Grassman, Appellant).

      Opinion filed March 25, 1983.

    Mark J. McGrath, of Mackinaw, for appellant.
    Jeffrey W. Jackson and Brian J. Meginnes, of Westervelt, Johnson, Nicoll & Keller, of Peoria, and James Riely, of Riely & Riely, of Minonk, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Minonk State Bank, as administrator with will annexed of the estate of Agnes Grassman, filed an action in the circuit court of Woodford County seeking a declaratory judgment that plaintiff’s decedent was the owner of an undivided one-half interest in certain real estate and that Ida Grassman (hereinafter referred to as defendant) was a tenant in common with decedent in the ownership of the property, and not a joint tenant with right of survivorship. In two additional counts plaintiff sought partition of, and authority to sell (Ill. Rev. Stat. 1977, ch. IIOV2, par. 20 — 4), the real estate. The circuit court entered judgment declaring that defendant, Ida Grassman, was the sole surviving joint tenant of the disputed property and dismissed the remainder of plaintiff’s complaint as moot. The appellate court reversed and remanded (103 Ill. App. 3d 1106), and we granted defendant’s petition for leave to appeal (87 Ill. 2d R. 315).

A detailed statement of the facts is contained in the appellate court opinion (103 Ill. App. 3d 1106, 1108), and we need only briefly review them. The record shows that by means of a conveyance dated August 22, 1938, the real estate here involved was conveyed to Gustav, Agnes, Ida and Frieda Grassman as joint tenants. Gustav and Frieda died, leaving decedent and defendant surviving. Defendant executed and recorded a deed which conveyed the land from herself as grantor to herself as grantee. The deed contains the following provision:

“(This deed is made for the purpose to dissolve any and all rights of the survivorship under a certain deed heretofore given by and between the above Grantor, Frieda Grassman and Agnes Grassman).”

Decedent had no knowledge of this conveyance.

The circuit court concluded that Duffield v. Duffield (1915), 268 Ill. 29, and Deslauriers v. Senesae (1928), 331 Ill. 437, required it to hold that the purported conveyance did not effect the transfer of any interest in the land. It also held that the enactment of section lb of “An Act to revise the law in relation to joint rights and obligations” (Ill. Rev. Stat. 1977, ch. 76, par. lb) affected only the creation, and not the termination, of joint tenancies. In reversing, the appellate court held that a joint tenant may unilaterally sever a joint tenancy, that the conveyance effectuated the termination of the joint tenancy, and that the decedent was a tenant in common with an undivided one-half interest in the real estate.

Defendant contends that the appellate court, and this court, are precluded from changing the common law rule that a joint tenant cannot destroy the right of survivorship by conveying property to herself. Specifically, defendant argues that section 1 of “An Act to revise the law in relation to the common law” (Ill. Rev. Stat. 1977, ch. 28, par. 1) (the “reception statute”) specifically precludes this court from changing the common law of England as it existed prior to the fourth year of James the First unless it is repealed by the General Assembly. Defendant argues that section lb of “An Act to revise the law in relation to joint rights and obligations” (Ill. Rev. Stat. 1977, ch. 76, par. lb), the statute which effectively overruled this court’s decision in Deslauriers v. Senesac (1928), 331 Ill. 437, and provided that a joint tenancy may be created notwithstanding the fact that the grantor is named as a grantee, applies only to the creation of joint tenancies and not to their termination. Citing Summers v. Summers (1968), 40 Ill. 2d 338, 342, defendant argues that the statute, which is in derogation of the common law, must be strictly and narrowly construed, and that the statute should not be read to overrule that portion of Deslauriers which held that to be valid at common law a conveyance must have a separate grantor and grantee.

Plaintiff, citing Amann v. Faidy (1953), 415 Ill. 422, argues that the reception statute did not adopt “just those precedents which happened to have already been announced by English courts at the close of the sixteenth century, but rather a system of law whose outstanding characteristic is its adaptability and capacity for growth.” (415 Ill. 422, 433.) Plaintiff contends that the reception statute was not designed to preclude judicial recognition of the realities of modern conveyancing and that, in any event, the General Assembly has itself changed certain requirements concerning conveyancing as it relates to joint tenancies “and has thereby recognized change in this area.”

We agree with plaintiff that, as noted in Amann, it is necessary for the common law to keep pace with “ ‘the gradual changes of trade, commerce, arts, inventions and the exigencies and usages of the country.’ ” 415 Ill. 422, 434, quoting Kreitz v. Behrensmeyer (1894), 149 Ill. 496, 502; see also Alvis v. Ribar (1981), 85 Ill. 2d 1, 24; Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 39-40; Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 13-14; Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 366-67.

The appellate court has reviewed the development of the law governing joint tenancies from the 13th century through our decision in Deslauriers v. Senesac (1928), 331 Ill. 437, the enactment of “An Act to revise the law in relation to joint rights and obligations” (Ill. Rev. Stat. 1953, ch. 76, par. 1b), and our decision in Frey v. Wubbena (1962), 26 Ill. 2d 62. (103 Ill. App. 3d 1106, 1108-10.) The appeUate court concluded, and we agree, that the rules applicable to the creation and severance of joint tenancies, in this situation, should be the same.

The common law requirement that there be a separate grantor and grantee was based on considerations concerning the manner in which land transfers were effectuated and recorded. The California Court of Appeals, in discussing whether a conveyance requires a separate grantor and grantee, noted:

“That ‘two-to-transfer’ notion stems from the English common law feoffment ceremony with livery of seisin. [Citation.] *** It is apparent from the requirement of livery of seisin that one could not enfeoff oneself — that is, one could not be both grantor and grantee in a single transaction. Handing oneself a dirt clod is ungainly. Just as livery of seisin has become obsolete, so should ancient vestiges of that ceremony give way to modern conveyancing realities.” (Riddle v. Harmon (1980), 102 Cal. App. 3d 524, 528-29, 162 Cal. Rptr. 530, 533.)

In Illinois, the General Assembly has provided that livery of seisin is no longer necessary for the conveyance of real property and that a writing is sufficient to effectuate such a conveyance. (Ill. Rev. Stat. 1977, ch. 30, par. 1.) Whatever problem a conveyance to oneself presented to the common law feoffment ceremony, such a conveyance presents no problem to our present system of conveyancing. We adopt the rationale of the appellate court and hold that defendant severed the joint tenancy by conveying the property to herself.

Finally, defendant argues that there is an important distinction between the creation and the severance of a joint tenancy. Defendant argues that the creation of a joint tenancy is “akin to a quasi contract or shared common venture” and that, because of the appellate court’s holding, the parties to this “joint venture no longer are able to rely upon the relationship that led to them originally entering into the purchase of the property in question.” We recognize that in certain situations, e.g., where consideration is given for the creation of a joint tenancy or one of the joint tenants takes some irrevocable action in reliance upon the creation or existence of a joint tenancy, problems may arise if one tenant may unilaterally dissolve the joint tenancy. (See Hendrickson v. Minneapolis Federal Savings & Loan Association (1968), 281 Minn. 462, 466, 161 N.W.2d 688, 692; cf. 2 W. Blackstone, Commentaries *195.) Such a situation is not presented here; the record does not show that either party gave consideration for the creation of the joint tenancy or relied, to her detriment, on its continued existence.

For the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
    (Nos. 55718, 56399 cons.
    OWENS-ILLINOIS, INC., Appellee and Appellant, v. WILLIAM M. BOWLING, Director of Labor, et al., Appellants and Appellees.

      Opinion filed March 25, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Joseph D. Keenan III, Special Assistant Attorney General, of Doss, Puchalski, Keenan, Bargiel, & Dicks, Ltd., of Chicago, of counsel), for the Director of Labor et al.

    John A. Relias and Michael W. Duffee, of Vedder, Price, Kaufman & Kammholz, of Chicago, for Owens-Illinois, Inc.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Owens-Illinois, Inc., filed an action in the circuit court of Cook County for administrative review of the decision of the defendant Director of Labor. The circuit court affirmed the Director’s decision and plaintiff appealed. The appellate court affirmed in part, reversed in part and remanded with directions (99 Ill. App. 3d 1117), and both plaintiff and defendant petitioned for leave to appeal. We allowed both petitions and consolidated the cases for briefing, argument and opinion.

The opinion of the appellate court contains an adequate review of the relevant facts and the prior proceedings, and they will be stated here only to the extent necessary to discuss the issues. Employees at three of plaintiff’s plants, represented by the American Flint Glass Blowers Union (AFGWU), were on strike between September 16, 1977, and October 15, 1977. They maintained picket lines at each of the plants. The AFGWU strike involved directly only a relatively small number of plaintiff’s employees, but many employees represented by other unions declined to cross the AFGWU’s picket lines. It appears from the record that plaintiff requested that they comply with the “no strike” clauses contained in their collective-bargaining agreements and return to work, and that work was available.

The question presented in this litigation is whether certain of plaintiff’s employees were entitled to payments of unemployment compensation for the period from September 16, 1977, through October 15, 1977. In three separate hearings certain groups of employees were held to be “not ineligible for unemployment insurance benefits for the period from September 16, 1977, through October 15, 1977, under the provisions of section 604 of the Illinois Unemployment Insurance Act.” It cannot be determined from the record how many individuals filed claims, but it is indicated that they numbered approximately 2,800. The Director’s orders describe the three groups of claimants as “employee-members of Locals 3 and 140 of the Glass Bottle Blowers Association”; “employee-members of Local 109 of American Flint Glass Workers, and of Local 7432 of United Steel Workers Union”; and “employee-members of Locals 24, 40, 135 and 95 of the Glass Bottle Blowers Association.”

Section 604 of the Unemployment Insurance Act (Ill. Rev. Stat. 1977, ch. 48, par. 434) in pertinent part provided:

“Labor dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. *** This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that a lockout by the employer or an individual’s failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute. * * *
Whenever any claim involves the provisions of this Section, the claims adjudicator referred to in Section 702 shall make a separate determination as to the eligibility or ineligibility of the claimant with respect to the provisions of this Section. This separate determination may be appealed to the Director in the manner prescribed by Section 800.”

Plaintiff contends that the circuit and appellate courts erred in affirming the Director’s determination that the claimants were not involved in a labor dispute. Plaintiff states that it does not contend that because they refused to cross their picket lines the claimants participated, or were directly involved, in the AFGWU employees’ strike. Citing Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Association (1982), 457 U.S. 702, 73 L. Ed. 2d 327,102 S. Ct. 2673, plaintiff contends that by refusing to work during the AFGWU strike, in violation of the “no strike” clauses in their collective-bargaining agreements, these claimants were involved in their own labor dispute. Plaintiff states and we agree that the “relieving proviso” of section 604 (see General Motors Corp. v. Bowling (1981), 85 Ill. 2d 539, 542) was added by the General Assembly to overturn Sangamo Electric Co. v. Donnelly (1962), 26 Ill. 2d 348, Local Union No. 11 v. Gordon (1947), 396 Ill. 293, and American Brake Shoe Co. v. Annunzio (1950), 405 Ill. 44, which held that the failure of a claimant to cross the picket line of another striking group of employees amounted to “participation” by that claimant in the labor dispute of those striking employees. Plaintiff argues that while failure to cross a picket line does not “in itself” constitute participation in the labor dispute of those who maintain the picket line, the refusal to abide by their no-strike clauses resulted in a labor dispute and a work stoppage in which all the employees participated.

We do not agree. Nor need we here decide whether the alleged failure to abide by the no-strike clause constituted a labor dispute. Assuming arguendo that it did, on this record it is clear that it was not the labor dispute between claimants and plaintiff that caused the work stoppage. On the contrary, the record shows clearly that the stoppage of work caused the dispute over the contract. (See Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Association (1982), 457 U.S. 702, 722, 73 L. Ed. 2d 327, 343, 102 S. Ct. 2673, 2685-86.) We agree with the appellate court that “claimants were properly determined to be ‘not ineligible’ for benefits under section 604.” 99 Ill. App. 3d 1117, 1128.

Several issues presented in this appeal arise from the procedures followed in the administrative hearings. It is the position of the defendant Director that the question of ineligibility for benefits under section 604 is to be determined in a hearing separate from that required to determine eligibility for benefits under section 500(C). The relevant portions of section 500(C) (Ill. Rev. Stat. 1977, ch. 48, par. 420) provided:

“An unemployed individual shall be eligible to receive benefits with respect to any week only if the Director finds that:
* * *
C. He is able to work, and is available for work; provided that during the period in question he was actively seeking work.”

Simply stated, his contention is that a hearing must be held to determine that under section 604 a claimant is not ineligible for benefits and that the hearing on the section 500(C) issue is to determine whether he is eligible. He points out that appeals from a claims adjudicator concerning findings under section 500(C) are taken to a referee and to a board of review whereas section 800 provides that “Whenever a ‘determination’ of a claims adjudicator involves a decision as to eligibility under Section 604, appeals shall be taken to the Director or his representative designated for such purpose.” Ill. Rev. Stat. 1977, ch. 48, par. 470.

Plaintiff contends that no findings of eligibility were made under section 500(C) and that the circuit court erred in affirming the Director’s decision. The Director argues that such findings were in fact made, but that no notice was given plaintiff because of its failure to give the notices required under the Department’s Regulation 14.

The circuit court found that plaintiff had failed to file notices of possible ineligibility required under Regulation 14 and held that it was without jurisdiction to review the issue. The appellate court, in reversing, held that “The Department’s policy, as reflected in Regulation 14, as well as its specific findings in the present case also indicate that it does not require claimants to satisfy the burden imposed on them of establishing their eligibility for benefits under section 500(C).” (99 Ill. App. 3d 1117, 1126.) We do not agree. We interpret Regulation 14 and the Director’s decision in this case to hold that the Act, by virtue of the nature of the issues involved and the procedures provided for appeal from the claims adjudicator’s decision, requires a bifurcated hearing, and that section 604 issues and section 500(C) issues will not be considered in the same claims adjudicator’s proceeding. We do not construe any provision of Regulation 14 as being intended to obviate the findings required by section 702 (Ill. Rev. Stat. 1977, ch. 48, par. 452).

We have indicated our agreement with the appellate court that the claimants were properly determined to be “not ineligible for benefits under section 604.” We further agree that section 702 requires that there must be a finding for each week for which benefits were paid that the claimant was eligible for such benefits. On this record, however, we are unable to agree that no such finding was in fact made. The parties disagree as to what notices were given by plaintiff and when they were given. They also disagree concerning the sufficiency of the notices given by plaintiff to raise the question whether the claimants were actively seeking work. Under the circumstances, we modify the judgment of the appellate court and remand the cause to the Department to ascertain whether determinations of eligibility of claimants for the period of time covered by the strike in question were made in accordance with the provisions of the Act, and in the event that they were not, in further proceedings not inconsistent with this opinion, to make such determinations.

In view of the conclusion reached we need not further consider plaintiff’s contentions concerning the denial of its motion to certify its administrative review proceeding as a class action. We note, parenthetically, that as a practical matter the determination of the issues arising under section 604 were made as to three separate classes of plaintiff’s employees, in three orders, in three separate proceedings. Since the issues arising under section 500(C) cannot be determined at this time, there is no further reason to consider the question of proceeding as a class action.

For the same reasons that we do not consider plaintiff’s contentions concerning the class action, it is unnecessary that we consider its contentions concerning the holding of the appellate court in its supplemental opinion concerning the joinder of individual defendants.

For the reasons stated, the judgment of the appellate court is modified, and as modified, is affirmed. The cause is remanded to the Department of Labor for further proceedings consistent with this opinion.

Judgment affirmed as modified; cause remanded.


author: JUSTICE "WARD

text:
    (No. 56192.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DeWAYNE MOORE, Appellee.

      Opinion filed March 25, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and David A. Shapiro, Assistant State’s Attorneys, of counsel), for the People.
    Steven Clark, Deputy Defender, of the Office of the State Appellate Defender, of Chicago (Shelly B. Kulwin and Silets & Martin, Ltd., of counsel), for appellee.
   JUSTICE "WARD

delivered the opinion of the court:

DeWayne Moore was convicted of murder, armed robbery and armed violence after a jury trial in the circuit court of Cook County. He was sentenced to concurrent terms of 40 years for murder and 15 years for each of the other offenses. The appellate court, with one justice dissenting, reversed the judgment of the circuit court and remanded the cause for a new trial, on the ground that it was reversible error for the trial court to refuse to give a voluntary-manslaughter instruction that the defendant had tendered. (102 Ill. App. 3d 651.) We allowed the State’s petition for leave to appeal under Rule 315 (73 Ill. 2d R. 315).

At the trial, Mrs. Bok Kim testified through a Korean interpreter that she was the wife of Chong Kim, who owned the Sun Wig Shop in Chicago. She said that on November 24, 1978, at about 4 p.m., she was working in the store while her husband, her three young children and her brother-in-law were in the back room. The defendant entered the store and she waited on him. While she was waiting on him, three other customers came in, and her brother-in-law, Hun Chong Kim, came from the back room and assisted them. Two more customers entered, but soon all of the customers had left the store except the defendant, who was inquiring about necklaces and sunglasses. The defendant then told the brother-in-law to stand aside, and drew a gun from his coat pocket. The defendant took jewelry from the showcases. Mrs. Kim allowed him to take the merchandise, but then grabbed his arm from behind, struggled with him, and called to her husband for help. When her husband came from the back room, the defendant shot him from a distance of five or six feet. As Mr. Kim fell forward, he grabbed the defendant’s arm and the defendant fired again. Mrs. Kim shouted for help, and two passersby came in the store and held the defendant until police arrived moments later.

Hun Chong Kim testified through an interpreter that he first saw the defendant when his sister-in-law called him from the back room to assist customers. He said that the defendant drew a gun and, after threatening Mrs. Kim and him, pushed him aside and took jewelry from the showcase. Mrs. Kim called for help and when her husband responded, the defendant fired at him from a distance of five or six feet. Hun Chong Kim said that two shots were fired. Neither his brother nor his sister-in-law had touched the gun.

Chicago police officers Ronald Mainellis and Mary Dahl testified that while on patrol they were flagged down by a man who told them that a man in the Kims’ store had a gun. As they pulled up in front of the store, the victim, who was bleeding, told them that he had been shot. Officer Dahl radioed for assistance, while Officer Mainellis entered the store, where he saw the defendant struggling with Mrs. Kim and two men. Mrs. Kim told him that the defendant had shot her husband.

The defendant was handcuffed and placed in the squad car. Officer Dahl attended to the victim and asked him if the defendant had shot him. The victim said yes. A young boy handed Officer Mainellis a gun the boy had found in the store’s doorway area. At the police station, a search of the defendant produced four necklaces, three watches, three rings, two bracelets, a cigarette lighter, automobile keys and $3.35.

Mr. Kim died of his wound. Dr. Robert J. Stein, chief medical examiner of Cook County, testified that an autopsy showed that the cause of death was a bullet wound to the abdomen, which also involved the lung, liver and spleen. Dr. Stein examined the victim’s clothes but did not detect powder burns or stipplings round the bullet hole in the fabric.

Donald Gunnell, a technician of the Chicago police department criminalistics division, testified that he examined the pistol recovered at the scene. His opinion was that a bullet recovered from Mr. Kim’s body was fired from the weapon, and that two expended cartridges found in the store had been fired from the gun.

Officer Robert Bunk testified that he observed an automobile illegally parked in an alley behind 3529 South Halsted Street. (The address of the Sun Wig Shop was 3515 South Halsted Street, and the defendant did not live in the vicinity of the shop.) Officer Bunk testified that a vehicle check revealed that the car was registered to the defendant. Officer Bunk said that a set of keys taken from the defendant that Bunk received from Officer Mainellis at the police station fit the auto’s locks.

The defendant testified and claimed that the People’s witnesses had lied. He said that when he entered the store he already had the jewelry found on his person at the police station. He said that he did not have a gun when he entered the store. In the store, he testified, he spoke with Mrs. Kim about having his initials inscribed upon a cigarette lighter he owned. She agreed to put the initials on the lighter without charge if he would purchase a pair of sunglasses, he testified, and he was leaving to get the cigarette lighter from his car when Mrs. Kim held him and began screaming in Korean. The defendant said that Mr. Kim then came from the back room with a gun in his hand and approached the defendant. According to the defendant, he and Mr. Kim then struggled. The defendant tried to knock the gun from Kim’s hand, fearing that he would be shot, but the gun went off twice while in Kim’s hand. The defendant also said that he had parked his car at a curb on Halsted Street, not in an alley.

Officer Thomas Quinn testified that he was assigned to investigate the killing of Mr. Kim. He related that the defendant spoke to him about the killing after he had given the defendant Miranda warnings. According to Quinn, the defendant said that he entered the store with the loaded gun, which he had found in an alley the previous day. The defendant told the officer that he did not intend to shoot Kim, but did so accidentally during his struggle to get out of the store. The defendant said that he had gotten the idea for the robbery from a television program.

The defendant had been charged by information with murder (including felony murder), armed robbery and armed violence. The jury was instructed as to each offense. The trial court refused, however, to give an instruction on voluntary manslaughter tendered by the defendant, but it did give an instruction on the justifiable use of force. The State had objected to the voluntary-manslaughter instruction on the ground that it involved intentional or knowing killing, and the defendant’s theory was that the killing was accidental. The court said in refusing the instruction that the evidence did “not lend itself to voluntary manslaughter * * * >>

As has been stated, the appellate court reversed the conviction on the ground that the trial court erred in refusing to give the voluntary-manslaughter instruction. The court noted that the instruction on the justifiable use of force was given, and that section 9 — 2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 2(b)) provides that one who intentionally or knowingly kills commits voluntary manslaughter if at the time of the killing he unreasonably believes the circumstances to be such that, if they existed, would justify or exonerate the killing. The court concluded:

“After carefully reviewing the record, we believe that the trial court erred in refusing the tendered instruction. The jury could have concluded from all the evidence before it, despite some inconsistencies in defendant’s testimony, that defendant killed Kim in the unreasonable belief that he was justified in doing so. Since the evidence was conflicting, it was for the jury, with the benefit of proper instructions, to decide whether the killing was murder or manslaughter or justified as self-defense. [Citation.] We, therefore, must reverse and remand this cause for a new trial.” 102 Ill. App. 3d 651, 661.

We judge that the appellate court erred in reversing the conviction. We need not decide whether the trial court should have given the instruction, because, as the dissenting justice in the appellate court observed (102 Bl. App. 3d 651, 661-62, it is clear that if it was error, it was harmless error.

A refusal to give an instruction will be held to be harmless and not a ground for reversal where it can be said that the result of the trial would not have been different if the instruction had been given. People v. Diekelmann (1937), 367 Ill. 372, 387; e.g., People v. Davis (1957), 10 Ill. 2d 430, 443, cert. denied (1957), 355 U.S. 820, 2 L. Ed. 2d 35, 78 S. Ct. 25 (“[E]rror in the giving or refusing of instructions will not, alone, justify a reversal when the evidence of the defendant’s guilt is so clear and convincing, as it was in the case at bar, that a jury could not reasonably have found the defendant not guilty”); People v. Nathanson (1945), 389 Ill. 311, 319, cert. denied (1945), 325 U.S. 872, 89 L. Ed. 1990, 65 S. Ct. 1412 (a refused cautionary accomplice instruction “could well have been given,” however, the failure to give it was not prejudicial).

Here the defendant was charged and the jury was instructed under the felony-murder rule embodied in section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1). That section provides in part:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than voluntary manslaughter.” (Emphasis added.)

To be convicted of murder under the felony-murder doctrine, the accused need not have intended to kill. (People v. Trinkle (1977), 68 Ill. 2d 198, 202; People v. Viser (1975), 62 Ill. 2d 568, 582.) Too, self-defense cannot be used as a defense to a charge of felony murder. (People v. Baker (1978), 57 Ill. App. 3d 401.) In section 7 — 4 (Ill. Rev. Stat. 1977, ch. 38, par. 7 — 4), the Code provides: “The justification [of the use of force in defense of person and property] described in the preceding Sections of this Article is not available to a person who: (a) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; ***.”

The jury, acting on the overwhelming weight of the evidence, found the defendant guilty of armed robbery, a forcible felony. Under those circumstances it made no difference whether the defendant killed the victim knowingly or intentionally but with an unreasonable belief that the killing was justified as self-defense. Even with an instruction as to voluntary manslaughter, the jury, acting on the clear evidence that the defendant was committing a forcible felony, could not have convicted the defendant of less than murder. (See People v. Payne (1935), 359 Ill. 246 (where the deceased was shot during an attempted robbery the refusal to give a manslaughter instruction was proper, in view of the statutory provision that where the killing is committed in the prosecution of a felonious intent, the crime is murder); People v. Weathers (1974), 18 Ill. App. 3d 338 (where the defendant admitted participation in a planned armed robbery, and where the State charged him under the felony-murder statute, it would have been impossible for the jury to have found the defendant guilty of manslaughter or reckless conduct and the instruction thereon was properly refused).) Any possible error in failing to give the instruction on the offense of voluntary manslaughter, therefore, was not a ground for reversing the conviction.

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

Appellate court reversed; circuit court affirmed.


author: JUSTICE SIMON

text:
    (No. 56382.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RICHARD E. SMITH, Appellee.

      Opinion filed March 25, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Bruce W. Black, State’s Attorney, of Pekin (Michael B. Weinstein and Ronald Lee Bell, Assistant Attorneys General, of Chicago, and John X. Breslin and Gary F. Gnidovec, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Verlin R. F. Heinz, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The issue here is whether a deputy sheriff’s warrant-less search of a small closed box found in the defendant’s motor vehicle violated the warrant requirements of the State (Ill. Const. 1970, art. I, sec. 6) and Federal (U.S. Const., amends. IV, XIV) constitutions. The sheriff found cocaine and cannabis inside the box, and the defendant, Richard E. Smith, was charged with unlawful possession of a controlled substance (cocaine) and unlawful possession of cannabis (Ill. Rev. Stat. 1979, ch. 56V2, pars. 704, 1402(b)). The circuit court of Tazewell County denied the defendant’s motion to suppress the evidence discovered in the search. A jury found the defendant guilty of both charges, but on the State’s motion the circuit court entered judgment only on the controlled-substance charge and sentenced the defendant to three years’ imprisonment. The appellate court reversed Smith’s conviction, concluding that the deputy sheriff’s warrantless search of the closed box violated the fourth amendment’s warrant requirement. (103 Ill. App. 3d 430.) We granted the State’s petition for leave to appeal.

To dispose of this appeal we need only review the facts relating to the stop and search of the defendant’s motor vehicle on the afternoon of June 4, 1980. A Tazewell County deputy sheriff testified that he stopped Smith’s truck because it had an expired safety-inspection sticker. Smith met the officer half way between his vehicle and the officer’s squad car. The officer asked for Smith’s driver’s license, examined it, and then gave it to another officer in the squad car to run a license check.

Smelling alcohol on Smith’s breath, the officer approached the window in the door on the driver’s side of the truck, and observed an open bottle in a brown paper bag on the floor of the passenger compartment. The bottle’s neck was exposed and the officer could observe that it contained liquid. Judging from the shape of the bottle and color of the label on the neck, the officer was nearly certain that it was a bottle of Miller’s beer. The officer also observed a small three- by five-inch wooden box with a sliding top which was lying on the floor of the driver’s side underneath the steering wheel. He recognized it as what was popularly referred to as a “one-hitter box,” a type of box often used to carry cannabis.

With neither a warrant nor the defendant’s consent to a search the officer moved to the passenger side and entered the vehicle. During the subsequent search of the vehicle’s interior the defendant remained standing outside on the driver’s side. Upon entering the passenger’s side, the officer observed a hypodermic syringe lying on the floor of the driver’s side next to the “one-hitter box.” He placed the cap on the bottle and seized the bottle, the box and the syringe. Opening the box the officer found cannabis, a metal pipe, and a plastic bag containing a white powdery substance which laboratory examinations later identified as cocaine. The officer then placed the defendant under arrest for the absence of a valid safety-inspection sticker; the unlawful opening of alcoholic beverages in a motor vehicle; the possession of a controlled substance; the possession of cannabis; and the possession of a hypodermic syringe.

The State claims that the officer’s warrantless search of the box was lawfully conducted both as a search incident to an arrest (New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860) and as a valid search under the automobile exception to the warrant requirement (United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280). Because we hold that the search was permissible under the automobile exception we need not consider whether it might also have been permissible as a search incident to arrest.

In holding that the search violated the fourth amendment the appellate court relied heavily on the plurality opinion in Robbins v. California (1981), 453 U.S. 420, 69 L. Ed. 2d 744, 101 S. Ct. 2841. In that case six justices concurred in the court’s judgment that the police should not have opened two packages wrapped in green opaque plastic without a warrant even though the packages were found during a lawful warrantless search under the automobile exception. The plurality opinion observed that the police may conduct a warrantless search of a closed container found in a search under the automobile exception only if the container so clearly announces its contents “whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer.” 453 U.S. 420, 428, 69 L. Ed. 2d 744, 752, 101 S. Ct. 2841, 2847 (opinion of Stewart, Brennan, White & Marshall, JJ.).

Applying the plurality standard in Robbins to the present case, the appellate court held that the wooden “one-hitter box” was not sufficiently distinctive in appearance to make its contents obvious to the ordinary person. Although law-enforcement officers knew that this type of box was often used for the transportation of cannabis according to the appellate court, their “subjective knowledge, while relevant, is not conclusive. Rather, the container must be evaluated to determine whether society as a whole would recognize it as one commonly used to carry a controlled substance.” 103 Ill. App. 3d 430, 433.

Shortly after the appellate court’s decision in this case, the Supreme Court expressly rejected the precise holding in Robbins and repudiated the approach of the plurality opinion in that case. In United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157, the court held that the nature of the container in which contraband is secreted does not determine the permissible scope of a warrantless search under the automobile exception:

“We hold that the scope of the warrantless search authorized by [the automobile] exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” (456 U.S. 798, 825, 72 L. Ed. 2d 572, 594, 102 S. Ct. 2157, 2172.)

Thus, under Ross an officer who lawfully stops a vehicle and who has probable cause to believe that the vehicle is carrying contraband may lawfully search the vehicle and any closed containers in the vehicle that might reasonably contain the object of the search.

The defendant argues that the permission granted by the court in Ross does not apply in this case because the officer’s probable cause to search the vehicle focused on the box and not on the entire vehicle. He observes that Ross did not overrule either Arkansas v. Sanders (1979), 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586, in which the court held invalid the warrantless search of a suitcase found in the trunk of a taxi or United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476, in which the court held invalid the search of a footlocker found in a trunk of an automobile. Instead, Ross distinguished Sanders and Chadwick as cases in which the police only had probable cause to search the closed containers in the vehicles and not the entire vehicle. (456 U.S. 798, 813-14, 72 L. Ed. 2d 572, 587, 102 S. Ct. 2157, 2167.) In Chadwick the police had probable cause to search the footlocker based upon the prior observations of law-enforcement officers. In Sanders the police had probable cause to search the suitcase based upon the tip of a reliable informer that was provided before the suitcase was loaded into the automobile. The police in neither case had any reason to search the balance of the transporting vehicles. As interpreted by Ross, Chadwick and Sanders only prohibit warrantless searches of containers found in automobiles when the police officers conducting the search have no probable cause to search the entire vehicle for contraband and are thus not operating under the automobile exception.

“To establish probable cause to search it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that contraband was present in the automobile. [Citations.]” (People v. Clark (1982), 92 Ill. 2d 96, 100.) The uncontroverted testimony of the deputy sheriff supports the circuit court’s determination that the officer had probable cause to search the vehicle for contraband.

The officer stopped the defendant’s vehicle because it lacked a valid safety-inspection sticker. Nothing in the record indicates that the safety-sticker violation was a pretext for an unlawful search of the defendant’s vehicle. The officer smelled alcohol on the defendant’s breath, and peering through the window on the driver’s side of the vehicle the officer could see an open bottle. The shape of the bottle and the color of the label made the officer virtually certain that it was a bottle of Miller’s beer. With this information alone it was reasonable for the officer to enter the passenger compartment of the defendant’s vehicle in order to inspect the bottle and search for alcohol.

By the time the officer seized the box he also had probable cause to search the entire vehicle for drugs. In determining whether the officer had probable cause, his factual knowledge, based on law-enforcement experience, is relevant. (Cf. United States v. Cortez (1981), 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690 (articulable suspicions justifying stop of vehicle by officers of border patrol); People v. Smith (1978), 67 Ill. App. 3d 952 (probable cause where officer smelled odor that he knew from experience to be the odor of marijuana).) Before entering the vehicle the officer observed the small wooden box with a sliding top. Based on his own knowledge and experience with such containers, the officer recognized it as a “one-hitter box” commonly used to carry cannabis. Moreover, upon entering the vehicle the officer also immediately observed a hypodermic syringe lying on the floor next to the “one-hitter box.”

Finding the hypodermic syringe and the “one-hitter box” gave the officer probable cause to believe that the vehicle contained drugs. Thus, under Ross the officer could search the vehicle and any closed containers carried in it that might hold drugs or drug-related paraphernalia. The fact that the officer chose to search first in the most obvious location does not invalidate the search. As the Supreme Court observed in Ross:

“[Prohibiting police from opening immediately a container in which the object of the search is most likely to be found and instead forcing them first to comb the entire vehicle would actually exacerbate the intrusion on privacy interests. Moreover, until the container itself was opened the police could never be certain that the contraband was not secreted in a yet undiscovered portion of the vehicle; thus in every case in which a container was found, the vehicle would need to be secured while a warrant was obtained.” (456 U.S. 798, 821 n.28, 72 L. Ed. 2d 572, 591-92 n.28, 102 S. Ct. 2157, 2171 n.28.)

Thus, we hold that the officer’s search of the “one-hitter box” was permissible under the automobile exception to the warrant requirement as elaborated by the Supreme Court in Ross.

Because the search involved in this case occurred before the Supreme Court decided Ross, the defendant argues that we should not apply the Ross standard to his case. In United States v. Johnson (1982), 457 U.S. 537, 73 L. Ed. 2d 202, 102 S. Ct. 2579, the Supreme Court recently held that decisions adopting new interpretations of the fourth amendment are to be applied retrospectively to all cases not yet final at the time the decision was rendered.

Although Johnson involved an expansion of fourth amendment protection for criminal defendants, many of the same arguments that supported retrospective application in that case are similarly applicable here. Retrospective application of Ross “would further the goal of treating similarly situated defendants similarly.” (457 U.S. 537, 555, 73 L. Ed. 2d 202, 217, 102 S. Ct. 2579, 2590.) It would also “comport with our judicial responsibilities ‘to do justice to each litigant on the merits of his own case’ [Desist v. United States (1969), 394 U.S. 244, 259, 22 L. Ed. 2d 248, 261, 89 S. Ct. 1030, 1039 (Harlan, J., dissenting)], and ‘to resolve all cases before us on direct review in light of our best understanding of governing constitutional principles.’ [Mackey v. United States (1971), 401 U.S. 667, 679, 28 L. Ed. 2d 404, 413, 91 S. Ct. 1160, 1173 (separate opinion of Harlan, J.).]” 457 U.S. 537, 555, 73 L. Ed. 2d 202, 217, 102 S. Ct. 2579, 2590.

In any case, retrospective application of Ross would also comport with the pre-Johnson balancing test for determining whether a new constitutional decision should be applied retrospectively. (See, e.g., Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967; see also United States v. Johnson (1982), 457 U.S. 537, 543-54, 73 L. Ed. 2d 202, 209-16, 102 S. Ct. 2579, 2584-90.) In Ross the court observed:

“[Although we reject the precise holding in Robbins, there was no Court opinion supporting a single rationale for its judgment and *** we are convinced that the rule we apply in this case is faithful to the interpretation of the Fourth Amendment that the Court has followed with substantial consistency throughout our history.” (456 U.S. 798, 824, 72 L. Ed. 2d 572, 593, 102 S. Ct. 2157, 2172.)

In addition, no legitimate reliance interests could be affected by the court’s application of the Ross standard in this case: “Any interest in maintaining the status quo that might be asserted by persons who may have structured their business of distributing narcotics or other illicit substances on the basis of judicial precedents clearly would not be legitimate.” (456 U.S. 798, 824 n.33, 72 L. Ed. 2d 572, 593 n.33, 102 S. Ct. 2157, 2172 n.33.) This court and other courts have already applied Ross retrospectively to cases on direct appeal, and we see no reason for refusing to do so in this case. See, e.g., People v. Clark (1982), 92 Ill. 2d 96, 100; United States v. Floyd (5th Cir. 1982), 681 F.2d 265, 266; United States v. Groth (6th Cir. 1982), 682 F.2d 578, 580.

The defendant also argues that the warrant requirement in the Illinois Constitution (Ill. Const. 1970, art. I, sec. 6) affords Illinois criminal defendants greater protection against searches of containers carried in automobiles than the protection afforded by the Supreme Court’s interpretation of the fourth amendment in Ross. In interpreting the warrant requirement of our State constitution and applying the exclusionary rule we must carefully balance the legitimate aims of law enforcement against the interest of all our citizens in preventing unreasonable intrusions on their privacy. We believe that the Supreme Court’s interpretation of the automobile exception, announced in Ross, achieves a fair balance between these competing objectives, and we see no reason at this time to adopt a different standard in applying Illinois constitutional provisions.

The judgment of the appellate court is reversed and the judgment of the circuit court of Tazewell County is affirmed.

Appellate court reversed; circuit court affirmed.


author: JUSTICE UNDERWOOD

text:
    (No. 56892.
    EMMY LOU SPILLER et al., Appellants, v. THE CONTINENTAL TUBE COMPANY, Appellee.

      Opinion filed March 25, 1983.

      Anthony C. Raccuglia & Associates, of Peru, for appellants.
    Louis E. Olivero, of Peru, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

The plaintiffs in this case, Emmy Lou and Clifford E. Spiller, were the owners of two corporations, Spiller and Spiller, Inc., and L. P. Industrial Building Corporation. Emmy Lou Spiller, individually, and the L. P. corporation loaned money to Spiller and Spiller, Inc., in return for the promissory notes of the corporation. The L. P. corporation was subsequently dissolved, and its assets transferred to Clifford Spiller.

On September 1, 1974, defendant, the Continental Tube Company (Continental), entered into an “Agreement for Purchase of Assets" with Spiller and Spiller, Inc., et al., whereby defendant allegedly agreed to purchase the assets and assume the liabilities of that company. The document was signed on behalf of defendant by Henry Hofmann, then its president and also vice-president of Hofmann Industries, defendant’s parent corporation. Clifford Spiller, then president of Spiller and Spiller, Inc., executed the contract on behalf of the corporation and also as “named stockholder." Among the then-existing liabilities were the several promissory notes earlier referred to.

In October 1975 judgments were confessed on the notes in the circuit court of La Salle County against Spiller and Spiller, Inc., and in favor of the plaintiffs in the amount of $64,143.45. Continental was not a party to that action, but Henry Hofmann was thereafter served with a summons to confirm the judgments by confession. He appeared specially and moved to quash the service and vacate the judgments. Plaintiffs objected that Henry Hofmann was not a party to the litigation and hence had no standing to seek the relief requested. Hofmann’s motion was denied, and defendant Spiller and Spiller, Inc., was given 21 days to file any additional motions. Continental, as assignee of Spiller and Spiller, Inc., then filed a motion to vacate the confession judgments, plaintiffs objected, the motion was denied, and defendant was given 21 days to answer or otherwise plead. The record indicates that Continental then filed a motion for leave to file instanter an amended answer which alleged, as a further defense, that plaintiffs had breached certain representations in the contract regarding their compliance with environmental-protection requirements, and that had Continental been aware of such violations, it would not have executed the agreement, and was not bound thereby because of lack of mutuality of obligation and remedy. The court allowed Continental to file the amended answer, and plaintiffs moved to strike it and confirm the judgment by confession, arguing that Continental’s allegation concerning the breach of contract was not a defense to the obligation of Spiller and Spiller, Inc., on the notes. The trial court eventually entered an order denying all motions, striking all defense pleadings, and confirming the judgments by confession. No appeal was taken.

Plaintiffs brought the action now before us in November 1976, alleging that Continental’s contractual assumption of the liabilities of Spiller and Spiller, Inc., obligated it to pay the judgments rendered on the notes. Continental answered, denying liability, and filed its counterclaim seeking indemnification in the amount of $140,000 for an alleged breach of contract involving the environmental misrepresentations earlier referred to. After dismissing the counterclaim in 1981 as a sanction for noncompliance with a discovery order, the trial court, believing the earlier confession of judgment proceedings were res judicata, entered summary judgment for plaintiffs. A divided appellate court reversed and remanded (105 Ill. App. 3d 790), and we granted plaintiffs leave to appeal.

Between November 1976, when plaintiffs filed their complaint, and 1979, numerous motions, objections and amendments to pleadings were filed. A status conference was held on February 6, 1979, and the case was continued until May 15, 1979, at which time the parties were to advise the court on their efforts to complete discovery. On August 9, 1979, another status conference was held, and the case was set for trial on June 30, 1980. Not until some seven months later, on March 17, 1980, did plaintiffs commence discovery by filing a request to produce and 72 interrogatories. On April 9 defendant’s attorney wrote a letter to plaintiffs’ attorney advising him that the person most knowledgeable regarding answers to the interrogatories had retired from the company and lived out of State. An additional 30 days to answer the interrogatories were requested. On May 16 plaintiffs’ attorney, having received no responses yet, wrote to defendant’s attorney advising him that, given the impending trial date, unless the interrogatories and request to produce were answered in 15 days, he would move for sanctions. A few days later, on May 21, defendant’s attorney again wrote to plaintiffs’ attorney advising him that the answers to the interrogatories were near completion and requesting an additional 15 days to finalize them. Plaintiffs apparently received unverified answers on June 6; verified answers and several objections were filed on June 18. On June 15, plaintiffs filed a notice to take the discovery deposition of Henry Hofmann, and on June 20, plaintiffs filed the first of several motions for sanctions. In this motion, plaintiffs stated that defendant had not complied with the request to produce and that the answers to the interrogatories were inappropriate, unresponsive and incomplete. Further, plaintiffs complained that defendant had not cooperated with respect to scheduling the deposition of Henry Hofmann. Plaintiffs asked that a default judgment be entered against defendant on both the complaint and the counterclaim or, alternatively, for a less drastic sanction. Defendant responded on June 23, objecting to plaintiffs’ motion on several grounds. Defendant stated that its objections to certain interrogatories were valid, that its answers were complete, that plaintiffs’ appropriate remedy under this court’s rules was to file a motion to compel compliance before seeking sanctions so as to allow the trial court to determine the validity of defendant’s objections, and, finally, that Henry Hofmann was no longer an employee of Continental and defendant could not be held to have unreasonably refused to comply with the request since it had no obligation to produce him.

Thereafter numerous motions and objections were filed by the parties, hearings held and orders entered by the trial judge, who, it is clear, was attempting to expedite the proceedings and trial of the case. In view of our conclusion it would unnecessarily extend this opinion were we to detail those actions, and we deem it sufficient to note that both parties could have proceeded much more expeditiously than they did.

The question crucial to our disposition is whether defendant had agreed to produce Henry Hofmann for a deposition to be taken by plaintiffs in Pennsylvania. Plaintiffs concede that defendant had no duty to produce for deposition purposes an individual not affiliated with defendant or its parent corporation. (See 73 Ill. 2d R. 204(a)(3).) They do not dispute defendant’s assertion that Hofmann had severed all connection with defendant and with Hofmann Industries, defendant’s parent corporation, although they seem to intimate that defendant in some unexplained manner retained some degree of control. It is plaintiffs’ position that defendant agreed in a letter which is not in the record and in an unrecorded in-chambers conference on March 10, 1981, that it would produce two employees and Hofmann for depositions in Pennsylvania. Defendant denied making any commitment beyond producing the two employees and making a good-faith effort to produce Hofmann, and maintained that it had been unable to arrange the latter. The trial judge on March 19, indicating his recollection was that defendant had agreed in the unrecorded conference to produce Hofmann, entered a written order requiring production on March 21. He dismissed defendant’s counterclaim on March 30 for violation of that order. In doing so, we believe he erred. This record contains no agreement, stipulation or promise by defendant to produce Hofmann, and defendant denies that it made any commitment beyond a good-faith effort to secure Hofmann’s cooperation which it could not accomplish. In these circumstances the trial judge’s recollections or impressions of the discussion in chambers cannot be relied upon to supplement a record devoid of any other evidence of such agreement. (Hartgraves v. Don Cartage Co. (1976), 63 Ill. 2d 425, 432.) Similarly plaintiffs’ reliance on the January 13 letter, not in the record, is misplaced, although we would observe that defendant, which contends that the letter actually supports its position, moved in the appellate court to amend the record to include this letter but its motion was denied. Although plaintiffs assert here that their objection in the appellate court to defendant’s amending the record did not relate to the letter, we note they did not seek to amend the record in this court to include this document.

At a subsequent hearing on defendant’s motion to reconsider the dismissal of the counterclaim, the court indicated that the counterclaim was dismissed not only because of the failure to produce Hofmann but also because the court believed that defendant “failed to in any way cooperate” with respect to discovery. Thus, plaintiffs argue here that the sanction should be upheld because of a continuous course of conduct in which defendant unreasonably refused to cooperate in complying with discovery requests. Our difficulty with this argument is twofold. First, it is not completely compatible with the trial court’s initial announcement at the time of dismissal that it was motivated by defendant’s failure to produce Hofmann; secondly, the discovery problems were not solely of defendant’s making. Had they been, the court would, of course, have been fully justified in imposing an appropriate sanction. Such sanctions, however, must be proportionate to the gravity of the violation (Buehler v. Whalen (1977), 70 Ill. 2d 51, 67), and this record, notwithstanding the judge’s later remarks, simply does not support a finding that defendant “failed to in any way cooperate” with discovery. Rather, the record demonstrates that the delays and the difficulties in completing discovery prior to the date set for trial were a result of the actions of both parties.

Plaintiffs did not commence discovery until March 17, 1980, 3V2 years after suit had been filed and only three months before the date set for trial, although that date had been scheduled the previous August. While defendant was dilatory in responding to the requests and verifying answers, when the answers to the interrogatories were filed plaintiffs immediately moved for sanctions primarily because they were dissatisfied with the responses. In doing so they ignored the requirements of our Rule 201(k) (87 Ill. 2d R. 201(k)), which we have recently emphasized is not precatory (Williams v. A. E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, 566). Contrary to plaintiffs’ assertion here, the record does not indicate that they made reasonable attempts to resolve their differences with defendant without judicial intervention. Nor can we conclude that either party acted in a spirit of cooperation with respect to discovery, despite our repeated admonitions and statements urging the bar to use the tools of discovery in a manner consistent with their purposes rather than for purposes of obstruction and harassment. (E.g., Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 282; Williams v. A. E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, 564-65; People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 197.) Cooperation between counsel and good-faith efforts by them to resolve disputes without judicial intervention are essential to the efficient and expeditious administration of justice in this State, and we trust that, upon remand, the parties and counsel will proceed accordingly.

We are required to review the trial court action solely on the record (People v. Edwards (1978), 74 Ill. 2d 1, 7, cert. denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862), and on this record dismissal of the counterclaim cannot be upheld.

The question remaining is whether plaintiffs were entitled to summary judgment on the basis of res judicata or estoppel principles as the trial judge held. Those judicially created doctrines “are *** designed to protect litigants from the burden of retrying an identical cause of action or issue with the same party or privy, and to enhance judicial economy by prohibiting repetitive litigation.” (People v. Bone (1980), 82 Ill. 2d 282, 286, cert. denied (1981), 454 U.S. 839, 70 L. Ed. 2d 120, 102 S. Ct. 145, citing Parklane Hosiery Co. v. Shore (1979), 439 U.S. 322, 326, 58 L. Ed. 2d 552, 559, 99 S. Ct. 645, 649.) The doctrine of res judicata provides that “ ‘a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.’ ” (La Salle National Bank v. County Board of School Trustees (1975), 61 Ill. 2d 524, 528, cert. denied (1976), 425 U.S. 936, 48 L. Ed. 2d 177, 96 S. Ct. 1668, quoting People v. Kidd (1947), 398 Ill. 405, 408.) The principle extends not only to questions which were actually litigated but also to all questions which could have been raised or determined. (People v. Bone (1980), 82 Ill. 2d 282, 287, cert. denied (1981), 454 U.S. 839, 70 L. Ed. 2d 120, 102 S. Ct. 145; Hughey v. Industrial Com. (1979), 76 Ill. 2d 577, 582-83; see Cromwell v. County of Sac (1877), 94 U.S. 351, 352, 24 L. Ed. 195, 197.) Where, however, the second action is between the same parties but upon a different claim or demand, the former action operates as an estoppel by verdict or judgment only as to those matters in issue, a determination of which was necessary to the finding or verdict rendered in the initial action. (People v. Borchers (1977), 67 Ill. 2d 578, 582-83; People v. Grayson (1974), 58 Ill. 2d 260, 263, cert. denied (1975), 421 U.S. 994, 44 L. Ed. 2d 484, 95 S. Ct. 2001; People ex rel. Chicago & Eastern Illinois R.R. Co. v. Fleming (1969), 42 Ill. 2d 231, 235; Skolnik v. Petella (1941), 376 Ill. 500, 503; Hoffman v. Hoffman (1928), 330 Ill. 413, 417.) Even had the parties been the same in the confession judgments and here, we agree with the appellate court that res judicata principles are inapplicable because the actions or claims in the two suits are not the same. Neither the issues raised by way of defense to the second lawsuit nor the issues created by defendant’s counterclaim were originally adjudicated so as to trigger estoppel principles.

Plaintiffs in their original action sued Spiller and Spiller, Inc., to recover on the promissory notes. Continental was not a defendant, and the litigation did not involve its alleged liability on those notes pursuant to the sales contract, the validity of the contract or plaintiffs’ alleged breach of contract. That litigation involved only the existence of a debt owed by the Spiller company to Clifford Spiller, successor in interest to L. P. Industrial Building Corporation, and Emmy Lou Spiller. It is true that Continental subsequently attempted to open the judgments by confession, and raise as defenses the issues raised here in their counterclaim. However, as plaintiffs themselves argued in the prior lawsuit, Continental was not named as a defendant in that case, did not appear until after judgment, and its allegations concerning the contract or whether it assumed the obligations of Spiller and Spiller, Inc., were not a defense to that company’s obligation on the notes. Thus, the suits involve different claims and res judicata is inapplicable.

Similarly, estoppel principles will not bar defendant from presenting its contemplated defense or its counterclaim to this action. Although the procedural history in the prior lawsuit is not altogether clear, the action upon which plaintiffs rely is the court’s final order denying all motions and striking all pleadings of defendant and Continental and confirming the judgments by confession. That order cannot be characterized, as plaintiffs suggest, as an adjudication of the merits of the alleged contractual obligations of Continental or plaintiffs’ alleged misrepresentations or breaches of contract, because those issues could not have been considered in that action. Plaintiffs’ reliance upon our Rule 273, which provides that an involuntary dismissal of an action is, with certain exceptions, an adjudication on the merits, is obviously misplaced. (73 Ill. 2d R. 273; see Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 122.) The court’s order denying Continental’s motions to vacate the judgments by confession and striking its pleadings was clearly not the dismissal of an action; it was simply a determination by the court that Continental’s allegations did not present a prima facie defense on the merits to plaintiffs’ claim against Spiller and Spiller, Inc., on the notes. See 73 Ill. 2d R. 276, governing a motion to open judgment by confession.

Plaintiffs present additional arguments, not considered by the trial judge, in urging that we affirm the entry of summary judgment in their favor. Since the cause is being remanded, however, and defendant’s counterclaim reinstated, we judge it appropriate that the trial court consider those arguments in that context.

For the reasons stated, the appellate court’s judgment is affirmed, and the cause is remanded to the circuit court of La Salle County for further proceedings consistent with this opinion.

Affirmed and remanded.


author: JUSTICE WARD

text:
    (No. 56200.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN BOHM, Appellee.

      Opinion filed February 18, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Gary L. Spencer, State’s Attorney, of Rock Falls (Marcia L. Friedl and Kenneth A. Fedinets, Assistant Attorneys General, of Chicago, and John X. Breslin and Kenneth A. Wilhelm, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Stephen H. Omoleki, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

On February 11, 1981, John Bohm was charged by complaint in the circuit court of Whiteside County with theft (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1) and with driving after his license had been revoked (Ill. Rev. Stat. 1979, ch. 95V2, par. 6 — 303). The theft complaint charged that he, on or about February 11, 1981, “knowingly: obtained or exerted unauthorized control over property, to wit: $20.00 of regular gasoline, 15.9 gallons, belonging to Town & Country Food Store, Inc., a corporation, and in so doing intended to deprive the owner of the use or benefit of the property, said property being then and there of a value of less than $150.00: in violation of Section 16 — 1, Chapter 38, Illinois Revised Statutes.” Counsel was appointed for the defendant and he entered pleas of not guilty and waived his right to a jury trial. After a bench trial, the defendant was found guilty of both offenses and was sentenced to two concurrent terms of 363 days to be served in the Department of Corrections. The appellate court, in a Rule 23 order (73 Ill. 2d R. 23), reversed the conviction for theft, vacated the trial court’s sentencing order, and remanded the cause for resentencing on the driving on a revoked license conviction. (102 Ill. App. 3d 1206.) We granted the People’s petition for leave to appeal. 73 Ill. 2d R. 315.

The trial proceedings were not transcribed, but two months after trial, the parties, under Supreme Court Rule 323(d) (84 Ill. 2d R. 323(d)), submitted an agreed statement of facts which summarized the evidence presented. The statement of facts reads:

“There was a stipulation by the defendant that he drove a motor vehicle on the streets of Rock Falls, Whiteside County, Illinois, on February 11, 1981 and that on that date his privilege to drive in the State of Illinois had been revoked by the Secretary of State.
The first witness, Patricia Richerson, testified substantially as follows:
She was an employee at a self-service Shell service station in Rock Falls, Illinois on February 11, 1981. At about 1:00 a.m. on February 11, 1981 a person identified as John N. Bohm entered the station area and proceeded to put gasoline in his car. The monitor in the office of the service station showed that the defendant had put gasoline in his automobile of a value of $20.00. The defendant approached the office in his automobile and offered to pay $2.00. Ms. Richerson refused the money and the defendant drove away without paying anything.
On cross examination Ms. Richerson stated that the pump used by the defendant had a fixed final number of zero. As the defendant pumped gasoline only three numbers would have moved; the final zero remaining constant.
Lt. Mangan of the Rock Falls Police Department stated that he stopped Mr. Bohm near the service station and arrested him for theft. After further checking he discovered Mr. Bohm’s driving privilege was revoked and arrested him for that as well.
In his own defense, Mr. Bohm testified he drove into the service station with less than $10.00 in his possession. He stated that he only wanted $2.00 worth of gasoline and that he was unaware of the fixed final number on the pump. After he had put what he thought was $2.00 worth of gasoline into the car, he drove to the office and offered the attendant $2.00. The attendant refused the $2.00 and Mr. Bohm drove out of the station. He was stopped by Lt. Mangan a short distance away.”

The theft complaint alleged that the defendant had stolen gasoline belonging to Town & Country Food Store, Inc., in Whiteside County Illinois. At trial the evidence was that the defendant had taken the gasoline from “a self-service Shell service station in Rock Falls, Illinois.” On the ground that no relationship was shown to exist between the corporation and the service station, the appellate court reversed the theft conviction. The court considered that the variance between the charge and the evidence created a vagueness as to the identification of the owner of the gasoline that would not insure that the theft conviction would act as a bar in any subsequent prosecution for the same offense.

The People contend that in order to prove the commission of theft it need only be shown “that someone other than the accused possessed or held an interest in the property and that the accused was unauthorized in exerting control over that property.” Since the evidence shows that the defendant, without authorization, took gasoline belonging to a self-service Shell service station, the People say that the elements of theft were proved.

The theft statute in part provides:

“A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the owner;
* * *
and
(1) Intends to deprive the owner permanently of the use or benefit of the property ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)(1).)

“Owner” is defined as “a person, other than the offender, who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.” Ill. Rev. Stat. 1979, ch. 38, par. 15 — 2.

There is no doubt that the People proved that the defendant took gasoline which belonged to another “person.” (See Ill. Rev. Stat. 1979, ch. 38, par. 2 — 15.) Since the defendant offered the station attendant $2 in claimed payment for the gasoline, it is obvious that he knew that he had no interest in the gasoline.

Although it is clear that the defendant obtained unauthorized control over the property of another, we must consider the question of the variance between the complaint’s allegations and the evidence presented by the People.

In discussing the standard to be applied when it is alleged for the first time on appeal and there was a variance between the allegations and the proof, this court in People v. Johnson (1976), 65 Ill. 2d 332, 337, stated: “It has been held that a variance, to require reversal, must be material and of such character as to mislead the accused in making his defense or expose him to double jeopardy. People v. Nelson, 33 Ill. 2d 48, cert. denied, 383 U.S. 918, 15 L. Ed. 2d 671, 86 S. Ct. 911; People v. Figgers, 23 Ill. 2d 516; People v. Bristow, 8 Ill. App. 3d 805.”

There is no suggestion that the defendant here was misled by the variance.

Too, we judge that the appellate court erred in holding that because of the variance the defendant was left exposed to possible future jeopardy through a prosecution for the same offense. This court in People v. Gilmore (1976), 63 Ill. 2d 23, 30, observed: “ ‘[T]he time when an indictment defined the limits of jeopardy has passed and a prior prosecution on the same facts may be proved by resort to the record.’ ” We judge that even the summary type of record here provides adequate protection against any future prosecution for the same crime. That record shows that the defendant was convicted of the theft of gasoline of the value of $20, which gasoline was taken from a self-service Shell service station at about 1 a.m. on February 11, 1981, at Rock Falls, Whiteside County, Illinois. The record shows that Patricia Richerson was an employee at the service station and that she testified that the monitor in the office of the station showed that the defendant pumped $20 worth of gasoline into his auto and then had come to the office and offered to pay $2 for the gasoline. The record would show further that she refused the money and that the defendant, without paying, drove off. That record would disclose that the defendant testified that at the time and place he had less than $10 and that he believed he had pumped only $2 worth of gasoline into the tank of his auto. The agreed-upon evidence was that the defendant was stopped by Lt. Mangan of the Rock Falls police department and placed under arrest for theft and for driving on a revoked license after he had driven a short distance from the service station.

We consider that the record here clearly would bar a subsequent prosecution for the same offense.

The defendant also contends that the failure of the complaint to allege that the defendant took the gasoline with the intent to permanently deprive the owner of its use or benefit was both material and insufficiently specific to allow him to prepare his defense. The contention is not convincing.

In People v. Johnson (1976), 65 Ill. 2d 332, 337, which we cited above, this court declared: “When a complaint is attacked for the first time on appeal, its sufficiency must be judged by whether or not it apprised the accused of the precise offense charged with sufficient specificity to allow him to prepare his defense and to plead a resulting conviction as a bar to future prosecution arising out of the same conduct. (People v. Pujoue, 61 Ill. 2d 335.)” There is no showing or claim that the defendant was not informed as to the precise offense with which he was charged. The defense presented did not relate to whether the defendant had the intention of permanently depriving the owner of the benefit of the gasoline. The defense was that the defendant was unaware “of the fixed final number” on the gasoline pump and that he mistakenly believed that he pumped only $2 worth of gasoline.

As we have seen above, the record here shows that the defendant would be able to plead his conviction as a bar to any future prosecution arising out of the same conduct.

The appellate court remanded the cause for the defendant’s resentencing on the revoked-license conviction. The parties agree that the matter of resentencing is now moot since, during the pendency of the appeal to this court, the defendant served in full the concurrent sentence which was imposed for driving on a revoked license. See People v. Murrell (1975), 60 Ill. 2d 287.

For the reasons given, the judgment of the appellate court is reversed and the judgment of the circuit court of Whiteside County is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (Nos. 55811, 55837 cons.
    ELVIN L. ROBERTSON, Appellee, v. TRAVELERS INSURANCE COMPANY, Appellant.

      Opinion filed April 22, 1983.

      Donald M. Haskell and Mitchell A. Orpett (Haskell & Perrin, of Chicago, and Dunham, Boman & Leskera, of East St. Louis, of counsel), for appellant.
    Listeman, Bandy & Hamilton, of Belleville (Charles E. Hamilton, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

In this case we decide whether a common law action seeking compensatory and punitive damages for allegedly outrageous conduct in the handling of a workmen’s compensation claim can succeed where recovery was had on the underlying workmen’s compensation action. We hold that it may not.

On June 25, 1971, the plaintiff in this action, Elvin L. Robertson, slipped and fell while at work as a carpenter for Kaskaskia Constructors, Inc. As a result of the accident he complained of pain in both knees and consulted with several doctors between the accident and the mid-die of 1973. Most of Robertson’s medical expenses were paid by Travelers Insurance Company, Kaskaskia’s insurance carrier and the defendant in this action. Travelers also sent Robertson a payment of temporary total disability benefits on March 22, 1972, which Robertson received on March 30, 1972. The law as it existed during 1972 and 1973 required claimants to file their claims for workmen’s compensation within a year of the date on which they last received compensation benefits (Ill. Rev. Stat. 1971, ch. 48, par. 138.6(c)(3)); in Robertson’s case the limitations period was to expire on March 30, 1973.

Robertson worked sporadically during 1972 and 1973, and on March 14, 1973, he telephoned Thomas Walz, the Travelers’ claim representative who had been handling his case, to inform him that he would soon enter a hospital for treatment and to inquire whether Travelers would pay the hospital bill. Walz told him that he could sign Travelers’ name to the bill, and according to Walz’ testimony in this action he also told Robertson that the claim was being handled by someone else and that that person would have to decide whether and how much Travelers would pay.

On March 16, 1973, Rodger Nelson, the Travelers representative then in charge of the claim, received a note from his supervisor stating a belief that Robertson’s continuing symptoms were the result of a degenerative ailment rather than the accident at work. This memorandum advised Nelson to inform Robertson that Travelers would accept no further responsibility for the injury and made reference to the statute of limitations, which the supervisor mistakenly believed would expire on March 22 rather than on March 30. Nelson contacted Robertson on March 20 or 22 and asked to see him regarding the claim at Robertson’s convenience. An appointment was made for March 26. On that day Nelson conducted an interview at Robertson’s home, accompanied by a court reporter. A transcript of their conversation reveals that Nelson did not mention the statute of limitations, apparently because he believed it had already expired, but asked if Robertson had filed a workmen’s compensation claim or hired a lawyer. Robertson told him he had done neither but was considering hiring an attorney. On March 29 Nelson wrote Robertson a letter informing him that Travelers would not pay any further medical or compensation benefits. The letter did not mention the statute of limitations, although an internal memorandum written by Nelson a week later expressed his belief as well as that of his supervisor and a claims attorney for Travelers that because of the statute of limitations the insurance company was “home free.” Robertson received Nelson’s letter on April 2 and immediately hired an attorney, who filed a workmen’s compensation claim that day.

Travelers defended the compensation claim on statute of limitations grounds. An arbitrator for the Industrial Commission ruled that the claim had not been timely filed and denied it. The Industrial Commission overruled the arbitrator’s decision, concluding that Travelers’ conduct estopped it to assert the statute of limitations, and entered an award for temporary disability and medical expenses incurred. The circuit court of St. Clair County confirmed the award, and this court affirmed in a divided opinion. (Kaskaskia Constructors v. Industrial Com. (1975), 61 Ill. 2d 532.) The mandate was issued November 21, 1975, and Travelers paid the judgment, with interest, shortly thereafter. In the meantime Robertson underwent surgery at least once in 1973, and did not work. He found it necessary to borrow money from relatives and from the volunteer fire department of which he was a member, and he sought and received public aid.

On March 28, 1975, while the workmen’s compensation case was pending in this court, Robertson filed a complaint against Travelers and Kaskaskia Constructors in the circuit court of St. Clair County seeking recovery for the tort of “outrage.” The complaint alleged that Travelers’ handling of his compensation claim was maliciously deceptive and resulted in severe emotional distress, as the financial strain to which he was subjected humiliated him and left him nervous and forgetful. The complaint was amended to include only Travelers as a defendant and did not go to trial until 1979. The jury found for Robertson, awarding him compensatory damages of $150,000 and punitive damages of $2 million. The appellate court affirmed the finding of liability but reversed the award of punitive damages and remanded for a new trial as to compensatory damages. (100 Ill. App. 3d 845.) Appeals by both parties followed and were consolidated by this court.

Travelers raised several threshold issues in a post-trial motion in the trial court concerning the propriety of bringing an action for severe emotional distress. One of its contentions was that section 19(k) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(k)), which was in effect throughout this litigation, was intended to be the exclusive remedy for outrageous conduct by an employer or insurance company in the handling of a workmen’s compensation claim. The trial court denied the motion after hearing argument from both parties. The appellate court ruled that section 19(k) did not preclude Robertson’s action because that section permits recovery for any instance of unreasonable or vexatious delay in payment, conduct which need not involve any actual intent to harm plaintiff such as Robertson alleged.

The appellate court employed too narrow a standard in evaluating Travelers’ exclusivity defense. Section 5(a) of the Workmen’s Compensation Act, the general exclusivity provision, is broadly worded:

“Sec. 5(a). No common law or statutory right to recover damages from the employer [or] his insurer *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.” (Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a).)

Against an employer or its insurer, it requires exclusive resort to the workmen’s compensation remedy for any “injury” arising out of and in the course of the employment which is covered by a provision of the Act. (Hindle v. Dillbeck (1977), 68 Ill. 2d 309; Chmelik v. Vana (1964), 31 Ill. 2d 272; O’Brien v. Rautenbush (1956), 10 Ill. 2d 167.) Section 19(k) of the Act provides for the payment of penalties of 50% of the amount of compensation payable whenever “there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which *** are merely frivolous or for delay” (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(k)); this section, while applicable in cases of ordinary delay without justification (see, e.g., Board of Education v. Industrial Com. (1982), 93 Ill. 2d 20; Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1), is no less applicable to delay which is malicious. (See Webster’s Third New International Dictionary 2548 (1971) (“vexatious” defined as “intended to harass”).) A common law action should not, without other evidence of legislative intent, be held to survive the Act’s exclusivity provisions merely because the remedy provided in the Act for the injury alleged applies to other kinds of injuries as well.

Professor Larson, in his treatise on workmen’s compensation (2A A. Larson, Workmen’s Compensation sec. 68.34(c) (1982)), notes two lines of cases bearing on whether the exclusivity provisions of compensation statutes bar tort claims for intentional infliction of emotional distress. A majority of the jurisdictions that have considered the question have concluded that the tort action is barred. (Sandoval v. Salt River Project Agricultural Improvement & Power District (1977), 117 Ariz. 209, 571 P.2d 706; Hixon v. State Compensation Fund (1977), 115 Ariz. 392, 565 P.2d 898; Everfield v. State Compensation Insurance Fund (1981), 115 Cal. App. 3d 15, 171 Cal. Rptr. 164; Sullivan v. Liberty Mutual Insurance Co. (Fla. App. 1979), 367 So. 2d 658; Young v. United States Fidelity & Guaranty Co. (Mo. App. 1979), 588 S.W.2d 46; Chavez v. Kennecott Copper Corp. (10th Cir. 1977), 547 F.2d 541 (applying New Mexico law); cf. Greenwalt v. Goodyear Tire & Rubber Co. (1955), 164 Ohio St. 1, 128 N.E.2d 116 (tort alleged not specified, but probably intentional infliction of emotional distress); Hicks v. Board of Education (1979), 77 Ill. App. 3d 974, 978 (stating in dictum that section 19(k) of the Workmen’s Compensation Act is the exclusive remedy for “malicious delay” of payment).) The rationale of these cases has typically been that the legislature, anticipating that bad faith in delaying payment of benefits would occur on occasion, provided a “quick, simple and readily accessible method” of resolving disputes over such payments without “the proof and defenses incident [to a common law action], the intolerable delay in resolution of a lawsuit, economic waste to all and expense to the worker” (Everfield v. State Compensation Insurance Fund (1981), 115 Cal. App. 3d 15, 20, 171 Cal. Rptr. 164, 166) or the spectre of “multiple jurisdictions being engaged in the resolution of the same basic questions with the possibility of conflicting results” (Sandoval v. Salt River Project Agricultural Improvement & Power District (1977), 117 Ariz. 209, 214, 571 R2d 706, 711). The minority view that a common law action may be brought (Stafford v. Westchester Fire Insurance Co. (Alaska 1974), 526 P.2d 37; Gibson v. National Ben Franklin Insurance Co. (Me. 1978), 387 A.2d 220; Flamm v. Bethlehem Steel Co. (1959), 18 Misc. 2d 154, 185 N.Y.S.2d 136, affd mem. (1960), 10 A.D.2d 881, 202 N.Y.S.2d 222 (conspiracy); Coleman v. American Universal Insurance Co. (1979), 86 Wis. 2d 615, 273 N.W.2d 220; Martin v. Travelers Insurance Co. (1st Cir. 1974), 497 F.2d 329 (applying Federal law concerning the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. sec. 901 et seq. (1976))) advances the idea that the injury complained of in an action for intentional infliction of emotional distress is not covered by the workmen’s compensation remedy because it does not arise “in the course of” the employment (Martin v. Travelers Insurance Co. (1st Cir. 1974), 497 F.2d 329, 330-31), because it was intended rather than “accidental” (Flamm v. Bethlehem Steel Co. (1959), 18 Misc. 2d 154, 157, 185 N.Y.S.2d 136, 138, affd mem. (1960), 10 A.D.2d 881, 202 N.Y.S.2d 222), or because the penalty sections of the compensation act, unlike the tort, do not allow recovery when the defendant relies on responsible medical testimony in delaying payment (Stafford v. Westchester Fire Insurance Co. (Alaska 1974), 526 P.2d 37, 42). Other cases have allowed plaintiffs to circumvent the workmen’s compensation remedy where the defendant’s conduct went far beyond the bounds of mere delay and the emotional distress for which relief was sought arose from the atrocious nature of the conduct itself rather than from any delay in payment which resulted. Unruh v. Truck Insurance Exchange (1972), 7 Cal. 3d 616, 498 P.2d 1063, 102 Cal. Rptr. 815 (insurance company’s investigators kept plaintiff under surveillance and exhibited films of her in workmen’s compensation hearing, thereby causing emotional upset).

We believe that the majority view correctly states the law of Illinois. While it is true that the intentional activity charged by Robertson was not accidental and did not arise in the course of the employment relationship, we note that the remedy provided by section 19(k) does not require that the unreasonable or vexatious delay in payment be “accidental” or arise “in the course of” the employment as long as the original injury surmounts those hurdles. Nor is section 19(k) limited on its face to instances of delay in payment not justified by medical opinion, so that no request for penalties can succeed where delay may be justified but the tactics employed for the purpose of delay are outrageous. While section 19(k) does not speak of delay in general terms, its scope is not limited to “unreasonable” delay; it provides penalties for “unreasonable or vexatious delay.” (Emphasis added.) Ill. Rev. Stat. 1973, ch. 48, par. 138.19(k).

We express no views as to whether a plaintiff in a case such as Unruh may claim in tort for emotional distress resulting from outrageous activity apart from delay. However, the instant case presents no such claim. Robertson’s alleged injury consists of individual harms each of which is attributable to his inability to work and his failure to secure medical and compensation benefits in timely fashion. The essence of his claim is vexatious delay, evidenced by unorthodox and perhaps even outrageous conduct by Travelers which in itself, apart from the delay it caused, resulted in no harm to Robertson. “The overriding purpose of the [Workmen’s Compensation] Act, especially as expressed through its penalty sections, is to compensate claimants as early and as thoroughly as possible for income lost due to job-related injuries” (Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1, 14); the legislature must have contemplated in enacting section 19(k) of the Act that, when payments are delayed, psychological harm might result as well as financial harm. We note in this regard that since this action was filed in the circuit court, the legislature has amplified the remedy available to victims of wrongful delay, so that it may include not only a penalty of 50% of the compensation award but also a penalty of $10 for each day of delay (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(l)) and an award of attorney fees (111. Rev. Stat. 1975, ch. 48, par. 138.16). Inasmuch as Robertson was allowed to present his compensation claim to the Industrial Commission and voluntarily chose to do so, he had an opportunity to seek whatever statutory penalties were available to him and cannot seek his remedy for delay in an action at common law. To permit such a course would invite the indefinite prolonging of litigation and risk double recoveries and inconsistent findings of fact, a result which the legislature, in enacting a system of compensation in place of common law remedies, certainly wished to avoid. See Rhodes v. Industrial Com. (1982), 92 Ill. 2d 467; Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 240-41.

Robertson argues that inasmuch as the instant case was tried before a jury it was incumbent upon Travelers to plead and prove the statutory bar of the Workmen’s Compensation Act (Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75), and its failure to do so could not be cured by raising the issue in the trial court in a post-trial motion as Travelers did. Although we do not dispute the general rule that a defense resting on the exclusivity provision of the Act is affirmative in nature, we do not believe Travelers’ omission was fatal in this case. This court has held the failure to plead and prove such a defense decisive only where there was a factual question as to whether the injury alleged arose out of and in the course of the work, so that a verdict for the defendant despite failure to prove coverage was an impermissible shifting of the burden of proof. (Victor v. Dehmlow (1950), 405 Ill. 249; Mueller v. Elm Park Hotel Co. (1945), 391 Ill. 391; O'Brien v. Chicago City Ry. Co. (1922), 305 Ill. 244.) In this case the necessary factual allegations concerning Travelers’ intent to delay payment appear in the record or were advanced by Robertson himself at trial, and the underlying injury was the subject of a proceeding which led to a workmen’s compensation recovery. The question of whether Robertson’s emotional distress was covered by the Workmen’s Compensation Act was therefore purely a legal one, and no purpose would have been served by requiring its pleading before the jury as long as it came to the attention of the trial judge and Robertson was given a chance to respond. (See Blackhawk Hotel Associates v. Kaufman (1981), 85 Ill. 2d 59, 67; People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, 384; People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 313.) The trial court had the discretion to entertain the issue in a post-trial motion, and it was thus properly before the appellate court (100 Ill. App. 3d 845, 849-50) and this court.

For the foregoing reasons, we believe that Robertson was foreclosed from bringing an action for the tort of outrage. We reverse the judgment of the appellate court and remand the cause to the circuit court with instructions to vacate its judgment and dismiss the action.

Judgment reversed; cause remanded, with directions.