author: JUSTICE UNDERWOOD

text:
    (No. 57539.
    KEVIN MORT, Appellant, v. ALICE I. WALTER, Appellee.

      Opinion filed October 21, 1983.

      Harold 0. Werner and Free & Free, of Springfield, for appellant.
    Edward W. Huntley, of Gillespie, Cadigan & Gillespie, of Springfield, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

In this personal injury action the circuit court of Sangamon County directed a verdict in favor of defendant, Alice I. Walter. A divided appellate court affirmed in a Rule 23 order (109 Ill. App. 3d 1221), and plaintiff, Kevin Mort, a minor represented by his father and next friend, William Mort, was granted leave to appeal to this court.

The facts concerning the accident which resulted in plaintiff’s serious personal injuries are essentially undisputed. On June 15, 1978, plaintiff, who was four years old, lived with his family in a farmhouse located on the north side of Old Jacksonville Road, approximately seven miles west of Springfield. At about 5:30 p.m., he went with his father to collect the mail. The mailbox was'located on the south side of the road almost directly opposite the point where the Morts’ driveway joined the road at right angles. William Mort stationed plaintiff approximately four feet away from the road on the blacktop apron which connected the gravel driveway and the road, and instructed him to stay there. Then, after checking to be sure that there was no traffic, the father crossed over to the mailbox, glancing back when he was in the middle of the road to make sure that plaintiff was obeying his instruction. Mr. Mort testified that, upon reaching the mailbox, his attention was focused upon sorting through his mail and that he had his back turned toward plaintiff. Although he had not heard any cars approaching or passing him, when he turned away from the mailbox, he saw plaintiff lying near the spot where he had been standing and defendant’s westbound car was approximately 50 feet to the west of plaintiff. It was later determined that plaintiff had come into contact with the right rear side of defendant’s car, incurring a compound fracture of his left leg as well as serious internal injuries requiring the removal of his spleen and a portion of one rib.

The testimony indicated that weather conditions at the time of the accident were clear and dry. It was also undisputed that the Mort residence was located on a slightly descending straight section of road and that there were no trees, bushes, crops or other obstructions which would affect, a westbound driver’s view of the Mort driveway apron. The nearest curve which westbound traffic had to negotiate before passing in front of the Mort residence was approximately one-fifth of a mile to the east. At the scene of the accident, Old Jacksonville Road was a 22-foot-wide blacktop road with one lane for driving in each direction. The roadway was bounded by low-lying shoulders of gravel and grass, which were flanked by shallow ditches.

Defendant was called by plaintiff to testify as an adverse witness, and stated that she had driven along the Old Jacksonville Road daily for five or six years prior to the accident and was traveling at 55 miles per hour when she passed the Mort residence on this occasion. Defendant also testified that she had seen William Mort standing at the mailbox but had not seen plaintiff. When asked where she was looking, she replied: “Straight ahead. I was watching the road and the man at the mailbox because I thought maybe he would dart back across.” According to defendant, the first indication that she had of plaintiff’s presence was when she heard a “thump” at the rear of her car on the right-hand side.

Two passengers were riding with defendant at the time of the accident, but only one of them testified at trial. The trial judge allowed defendant to elicit testimony from Catherine Workman before plaintiff rested, as a matter of convenience to the witness. Mrs. Workman, who was riding in the back seat behind defendant stated that she was reading a book but had looked up as the car passed through the curve and entered the straight section of road which passed in front of the Mort residence. She stated that she saw a man standing by a mailbox and that she then resumed reading until she heard a noise at the rear of the car. Mrs. Workman corroborated defendant’s statement as to her speed, estimating that the car was traveling around 55 miles per hour, and she additionally testified that the car had not changed direction or left the roadway at the time of the accident. Plaintiff also introduced photographs depicting the scene of the accident and defendant’s car.

In his complaint, plaintiff alleged that defendant was negligent in failing to observe the roadway in front of her car, failing to keep the car under control, failing to keep a proper lookout for children and pedestrians along the road, failing to decrease speed to avoid colliding with persons along the road, and in failing to stop or decrease speed to avoid hitting the plaintiff despite ample time and opportunity to do so. He also alleged that he was too young to have exercised care in his own behalf. Defendant did not dispute plaintiff’s denial of contributory negligence and, in any event, we note that it is conclusively presumed that a child not yet seven years of age cannot be contributorily negligent. (See Duffy v. Cortesi (1954), 2 Ill. 2d 511, 516-17; Maskaliunas v. Chicago & Western Indiana R.R. Co. (1925), 318 Ill. 142, 149-50; Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 872.) When plaintiff had completed his presentation of evidence, defendant moved for a directed verdict, arguing that there was no evidence of how the accident had occurred and that plaintiff had not sustained his burden of proving any of the allegations. The trial judge, after noting that he would not consider Catherine Workman’s testimony, granted the defendant’s motion, denied plaintiff’s motion for a new trial, and entered judgment in favor of defendant.

During oral argument, plaintiff’s counsel urged that the appellate court improperly considered Catherine Workman’s testimony when it evaluated the propriety of the directed verdict. Although a litigant may move for a directed verdict at the close of all of the evidence (Ill. Rev. Stat. 1977, ch. 110, par. 68.1), the record clearly reveals that defendant intended her motion to be considered at the close of the evidence presented by plaintiff, and it was only because of the unusual circumstances concerning the order in which witnesses were presented that Mrs. Workman’s testimony had been heard. The extent of any reliance by the appellate court upon Mrs. Workman’s testimony is unclear, but any consideration of it constituted error in light of the fact that it was not a part of the evidence which formed the basis for the motion and upon which the trial court made its ruling. Accordingly, we will not consider that testimony when examining the record to determine the propriety of the directed verdict.

The primary issue before us is whether the circuit court erred by directing a verdict in defendant’s favor. The propriety of a directed verdict must be judged according to the standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, where this court stated: “In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (37 Ill. 2d 494, 510. See also Long v. City of New Boston (1982), 91 Ill. 2d 456, 463; Bauer v. Johnson (1980), 79 Ill. 2d 324, 332; Hayes v. Alsburg (1978), 72 Ill. 2d 560, 566; Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 86; Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 157.) Negligence may be established by using either direct or circumstantial evidence (Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 85; Walsh v. Finley (1972), 51 Ill. 2d 174, 176-77) and, contrary to defendant’s assertion, the use of circumstantial evidence is not limited to those instances in which the circumstances support only one logical conclusion. Instead, circumstantial evidence will suffice whenever an inference may reasonably be drawn therefrom (Walsh v. Finley (1972), 51 Ill. 2d 174, 176-77; see also Finley v. New York Central R.R. Co. (1960), 19 Ill. 2d 428, 436; Illinois Bell Telephone Co. v. Purex Corp. (1980), 90 Ill. App. 3d 690, 697; Scholle v. Continental National American Group (1977), 44 Ill. App. 3d 716, 721), and the facts established by such inferences are considered when an issue is decided as a matter of law or a verdict is directed. See Hayes v. Alsburg (1978), 72 Ill. 2d 560, 567; Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 86.

Plaintiff contends that the evidence presented by him supported an inference that defendant, while watching Mr. Mort, unknowingly drifted off of the right side of the road and struck plaintiff. As defendant points out, the record fails to contain any direct evidence as to how the accident occurred, and the only circumstantial evidence that would support plaintiffs theory of the incident is the fact that the accident occurred. That fact, in and of itself, is ordinarily insufficient to raise an inference of negligence. (See Mick v. Kroger Co. (1967), 37 Ill. 2d 148, 153; Moss v. Wagner (1963), 27 Ill. 2d 551, 555.) Plaintiff also attacks the directed verdict on the ground that the evidence reveals that defendant was negligent because she failed to see plaintiff, who was in a place where he would be plainly visible. The allegations of plaintiff’s complaint clearly encompassed the theory that defendant negligently failed to maintain a proper lookout and her resulting failure to slow her vehicle to the point where she might have avoided the collision caused plaintiff’s injuries. Because the Pedrick rule requires us to evaluate the propriety of a directed verdict in terms of all of the evidence then before the court, we consider it appropriate to examine the merits of this contention.

This court has often held that knowledge of hazardous conditions must be imputed to litigants when the danger of one’s actions would be apparent through the exercise of “reasonable precaution and circumspection.” (Carter v. Winter (1965), 32 Ill. 2d 275, 284, cert. denied (1965), 382 U.S. 825, 15 L. Ed. 2d 70, 86 S. Ct. 56. See also Tucker v. New York, Chicago & St. Louis R.R. Co. (1957), 12 Ill. 2d 532, 535-36; Dee v. City of Peru (1931), 343 Ill. 36, 42; Greenwald v. Baltimore & Ohio R.R. Co. (1928), 332 Ill. 627, 632.) The rule has been aptly-phrased by our appellate court: “[0]ne cannot look with unseeing eye and not see the danger which he could have seen by the proper exercise of his sight, or stated another way, one will be deemed to have observed that which would necessarily have been seen if he had looked, and will not be absolved of the charge of negligence in failing to look by testimony that he looked and did not see.” (Pantlen v. Gottschalk (1959), 21 Ill. App. 2d 163, 170.) Although that rule has apparently only been used in the context of proving contributory negligence, we are unable to conceive of any reason why it should not also apply for the purpose of proving a plaintiffs allegation of negligence. (Cf. Blue v. St. Clair Country Club (1955), 7 Ill. 2d 359, 366 (“Negligence may result in a variety of ways. One may not escape liability by refusing to recognize the danger”).) In both instances, an essential question is whether the party has failed to do that which a reasonably careful person would do or has done something which a reasonably careful person would not do. (Compare Haymes v. Catholic Bishop (1968), 41 Ill. 2d 336, with Long v. City of New Boston (1982), 91 Ill. 2d 456.) Accordingly, we find no basis to support defendant’s contention that the rule should be available only to prevent a defendant against whom other evidence of negligence has been offered from disclaiming liability by testifying that he looked but did not see.

In our judgment the evidence in this case is not such that a verdict for plaintiff could never stand, and we believe the trial court erred in directing a verdict. Other jurisdictions, in factually related cases, have considered it appropriate to submit the issue of liability to the jury. (See Rodgers v. Carter (1966), 266 N.C. 564, 146 S.E.2d 806; Thomas v. Gates (Ky. 1966), 399 S.W.2d 689; Williams v. Bluebird Cab Co. (1949), 189 Va. 402, 52 S.E.2d 868; Gonzales v. Xerox Corp. (La. App. 1976), 329 So. 2d 818. See also Schneider v. Macari (1975), 111 Ariz. 483, 533 P.2d 540; Burrell v. Philadelphia Electric Co. (1970), 438 Pa. 286, 265 A.2d 516; Bean v. Butler (1959), 155 Me. 106, 151 A.2d 271.) In Sheley v. Guy (1976), 63 Ill. 2d 544, a case remarkably similar to this on its facts, a majority of this court sustained a verdict for the plaintiff. While the author of this opinion joined the Sheley dissenters, he did so because the manner in which the majority assumed the accident there occurred seemed a physical impossibility. There seems, however, a significant difference here. The undisputed testimony places the plaintiff some four feet north of the edge of the road as defendant approached. The father was standing on the opposite side of the road. Defendant testified that her attention was focused on the father because she thought he might start back across the road, and she had not seen plaintiff at all. In these circumstances a jury could reasonably conclude that plaintiff should have been aware of the presence of the young child standing in plain view, whose precipitous darting across the highway would appear more likely than similar action by its father, and have reduced her speed or moved to the middle of the road, or both, before driving between them, and that her failure to do so was the proximate cause of plaintiff’s injury. Nor would it, in our judgment, have been unreasonable for the jury to have concluded that, since defendant’s car was moving at a speed of some 68+ feet per second, plaintiff must have commenced moving toward the car while he was still within defendant’s range of vision, had she been looking, and could have taken evasive action. Consequently, ,we cannot say that the evidence, when viewed in the light most favorable to plaintiff, so overwhelmingly favors defendant that “no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510. See also Larson v. Harris (1967), 38 Ill. 2d 436.

For the reasons stated, the judgment of the circuit court of Sangamon County and the judgment of the appellate court, affirming the circuit court, are reversed, and the cause is remanded for a new trial.

Judgments reversed; cause remanded.


source: Caselaw Access Project

author: CHIEF JUSTICE RYAN

license: Public Domain

text:
    (No. 57555.
    CATERPILLAR TRACTOR COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Veryl Schoenfeldt, Appellant).

      Opinion filed October 21, 1983.

      James E. Bowles, of Goldfine & Bowles, P.C., of Peoria, for appellant.
    Robert F. Fahey, of Peoria, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Veryl Schoenfeldt, claimant, was awarded compensation by an arbitrator under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.). The arbitrator found claimant had suffered an accidental injury on January 14, 1977. On review, the Industrial Commission affirmed and adopted the decision of the arbitrator, but increased the award by awarding the claimant compensation for 25% of the permanent loss of the use of the left hand. On certiorari, the circuit court of Tazewell County reversed, finding that the decision of the Industrial Commission was against the manifest weight of the evidence. This is a direct appeal to this court pursuant to Rule 302(a) (87 Ill. 2d R. 302(a)). The sole issue presented for our review is whether or not the decision of the Industrial Commission, finding that the claimant sustained an accidental injury on January 14, 1977, arising out of and in the course of his employment, is against the manifest weight of the evidence. We find that it is and affirm the decision of the circuit court.

At the hearing before the arbitrator, Schoenfeldt testified that he was employed by Caterpillar to drive a jeep-styled vehicle to haul and deliver material. Schoenfeldt used his right hand to steer the vehicle, which did not have power steering, and to shift the gears. He also used his hands and arms to put material into and take material out of containers pulled by the jeep. Schoenfeldt states that, in January of 1977, he first noticed a numbness and tingling in his left hand and started to lose his grip in that hand and that at a later date he noticed a tingling in his right hand. When questioned further during the hearing, he stated that he first noticed the onset of this condition in 1976, yet later during the hearing he stated that he had no trouble with his hands prior to January of 1977 and, later still, testified that the onset of the condition began in July of 1976. Schoenfeldt also testified that he told his foreman he would be off work to have an operation to correct this problem, although he did not mention any accident or injury.

Schoenfeldt was admitted to Pekin Memorial Hospital on January 23, 1977, for the treatment of bilateral carpal tunnel syndrome. Dr. John B. Sombeck was the specialist who performed the surgery. Dr. Daniel L. Parr was Schoenfeldt’s personal physician. Schoenfeldt never told either of these physicians that he had been injured or had experienced an accident at Caterpillar.

During his absence from work, Schoenfeldt applied for group insurance benefits and, in filling out the necessary forms, stated that no accidental injury was involved in his absence from work. During the hearing, he testified that he did not have an accident on the job and that he understood an accident to be an injury in the nature of a broken leg or a broken arm.

The medical reports of Drs. Parr and Sombeck, and that of Dr. Horacio Rivero, who had examined Schoenfeldt at the request of his attorney, were admitted into evidence at the hearing before the arbitrator. These reports were in the nature of letters to claimant’s attorney. Dr. Parr, in a letter to claimant’s attorney, stated that “[i]t is impossible to state conclusively that his activity on the job caused the condition to develop *** [or] to categorically state the specific cause of Mr. Schoenfeldt’s condition.” Dr. Parr also stated that a job such as claimant’s could aggravate carpal tunnel syndrome. Dr. Sombeck stated that Schoenfeldt denied any history of injury when examined on January 18, 1977, and that the condition had its onset approximately two months prior to the examination. Dr. Rivero examined Schoenfeldt on February 15, 1978. His report states that Schoenfeldt began to experience his condition of ill-being on January 14, 1977, while lifting materials with his left hand. He diagnosed this condition as carpal tunnel syndrome, resulting from repetitive trauma to the left wrist.

It is undisputed that Schoenfeldt experienced bilateral carpal tunnel syndrome in his left hand; however, Schoenfeldt claims that this is a work-related injury arising from repetitive lifting and from driving a vehicle without power steering, which caused or aggravated his condition.

We agree with the circuit court that the claimant failed to prove that he suffered a work-related accident. Although it is not the province of a court to substitute its judgment for that of the Industrial Commission merely because it might have made a different finding, the findings of the Industrial Commission must be set aside when contrary to the manifest weight of the evidence. Johnson v. Industrial Com. (1982), 89 Ill. 2d 438, 443.

This case is almost a replay of Johnson. In that case claimant’s attorney was the same attorney who represents the claimant in this case, and both cases involve carpal tunnel syndrome. In Johnson Dr. Horacio Rivero also examined the claimant at her attorney’s request, as in this case. In both cases claimant contended that repetitive trauma in performing employment activities was the cause of the alleged injury. In Johnson, as will be discussed later, this court held against the claimant.

Schoenfeldt argues that Johnson created an exception to International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84, 89, which defined an accidental injury as that which is “traceable to a definite time, place and cause and occurs in the course of employment unexpectedly.” Claimant states that although the court ruled against the claimant in Johnson it, nonetheless, established that evidence of causation between repetitive trauma and the disability is sufficient to establish an accidental injury within the meaning of the Act. The discussion ' of repetitive trauma in Johnson contained no new statement of law. Repetitive trauma had been the basis of recovery in Quaker Oats Co. v. Industrial Com. (1953), 414 Ill. 326, and in Perkins Products Co. v. Industrial Com. (1942), 379 Ill. 115. In Johnson we cited these two cases in support of the repetitive-trauma theory of accidental injury. We simply held in Johnson that the claimant had not brought herself within the pronouncement of those cases.

In Johnson, claimant had worked in a nursing home kitchen loading, unloading, pushing and pulling a 500-pound food cart. She had experienced no pain in her hands prior to beginning this work. After working at the home she began to experience pain and numbness in her hands, which was diagnosed as bilateral carpal tunnel syndrome. Her doctor was uncertain whether the condition was work related. Dr. Horacio Rivero had examined Mrs. Johnson. His report described bilateral carpal tunnel syndrome and its causes, but nowhere did it state that her work-related activities were the cause of the syndrome. In Johnson we affirmed the circuit court’s finding that there was no work-related accidental injury because there was a lack of evidence, to tie the condition to the work activities.

The instant matter is no different. We find nothing in the record to indicate that Schoenfeldt’s condition was caused by work-related activity. Schoenfeldt never stated that he had experienced a work-related accidental injury; he never told his personal physician or the specialist treating his condition that he had sustained an injury or accident at Caterpillar. In applying for group insurance benefits, he denied sustaining any accidental injury. The medical reports of his physician and the surgeon do not show a causal connection between Schoenfeldt’s condition of ill-being and any work-related activity.

Dr. Rivero, in a letter to claimant’s attorney, after describing the condition he found on examining claimant, stated:

“This condition is aggravated by repetitive motion of the left wrist, exposure to cold weather, as well as any repeated trauma to this area.”

In the same report under the heading “history of accident,” Dr. Rivero stated, “on January 14, 1977, while employed by Caterpillar Tractor Company in East Peoria, while repeatedly lifting materials weighing in the vicinity of fifty pounds with the left hand ***,” claimant experienced a numbness and clumsiness in the left hand. The record does not support the claimant or Dr. Rivero’s theory. There is no evidence of repetitive trauma as that term is used in Quaker Oats and in Perkins. Claimant was the sole witness before the arbitrator. Most of the trauma allegedly was caused by the driving of the jeep that did not have power steering and had a standard transmission, which required manual shifting. However, claimant testified that he drove and shifted with his right hand, not his left. Also, Dr. Rivero stated that the accident occurred on January 14, 1977, “while repeatedly lifting materials weighing in the vicinity of fifty pounds with his left hand.” There is no evidence in the record that the claimant repeatedly lifted materials with his left hand weighing in the vicinity of 50 pounds. Claimant testified that, in addition to driving the jeep, he used his hands in sorting materials to be delivered to various areas. The items weighed “sometimes up to fifty pounds.” He also stated he occasionally had help in lifting these larger items. There is no evidence that the claimant ever lifted 50 pounds with his left hand or how often he lifted 50 pounds with both hands. There is no evidence as to the frequency of the lifting of any material regardless of weight. Nor does the record disclose a description of the nature of the operation involved in the lifting process. There is no evidence from which the inference can be drawn that claimant’s employment activities constituted repetitive trauma. Dr. Rivero’s conclusions are based on facts not in the record.

Although January 14, 1977, is pinpointed as the date of the accident, claimant testified that he noticed the symptoms in July 1976. The record contains no description of any unusual occurrence on January 14, 1977. The only reference to that date in the testimony of the claimant is his affirmative response to his attorney’s leading question “On January 14, 1977, were you employed at Caterpillar Tractor Company?”

General Electric Co. v. Industrial Com. (1982), 89 Ill. 2d 432, was also a case involving a claim based on carpal tunnel syndrome. In that case the record described the nature of the employee’s work that allegedly brought on the disability. The record showed that the claimant’s arms started giving her some trouble in the performance of her work and that one day she had a pain in her wrist while picking up a coil that she was processing. She reported to the nursing station. She continued to work for several months, but her condition worsened until she could no longer do her job. This court stated:

“Even if the ultimate collapse of the claimant’s wrist may have been only the high point in a series of repetitive job-related stresses on her body, the Commission could properly find that her condition was the result of an accident within the meaning of the Workmen’s Compensation Act.” General Electric Co. v. Industrial Com. (1982), 89 Ill. 2d 432, 434.

In General Electric Co., there was a specific description of the employee’s work and the movements which one could infer constituted repetitive trauma. Also, there was evidence that at a specific time, as a result of the nature of the employee’s work, she could no longer perform. These facts are not present in our case. The only thing in the record to' support the claimant’s repetitive-trauma theory is found in the conclusions of Dr. Rivero’s letter written to claimant’s attorney. The evidence in the record does not support the foundation upon which Dr. Rivero based his conclusions.

The finding of the Industrial Commission that the claimant suffered an accidental injury arising out of and in the course of his employment was against the manifest weight of the evidence. The judgment of the circuit court of Tazewell County is therefore affirmed.

Judgment affirmed.


author: JUSTICE MORAN

text:
    (No. 57659.
    CONTINENTAL DISTRIBUTING COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Bruce Kazonovitz, Appellant).

      Opinion filed October 21, 1983.

      Reibman & Hoffman, Ltd., of Chicago (George L. Gaines, of counsel), for appellants.
    Kane, Doy & Harrington, Ltd., of Chicago (Gregory E. Ahern, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Petitioner, Bruce Kazonovitz, sought workmen’s compensation benefits and penalties from Continental Distributing Company, respondent, for an injury to his left thumb. The arbitrator awarded petitioner his medical expenses, 83/? weeks of temporary total disability compensation, and 231/s weeks of permanent partial disability compensation. On review, the Industrial Commission agreed with the arbitrator’s findings; however, it modified his decision by also awarding penalties of $3,731.47 as additional compensation pursuant to sections 19(k) and 19(¿) °f the Workmen’s Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, pars. 138.19(k), 138.19(l) and $746.29 in attorney fees as provided in section 16 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.16). The circuit court of Cook County confirmed the medical expenses and benefits but reversed the penalty awards. The only issue is the propriety of the penalty awards.

Petitioner worked for respondent as a truck driver delivering cases of liquor. On July 27, 1979, he was handling a case of liquor when it suddenly dropped on his left hand. He promptly notified his supervisor of the accident. The supervisor sent him to a hospital where the hand was X-rayed and his left thumb was placed in a splint. Subsequently, his hand began to swell and turned purple at the thumb.

On the next day, petitioner showed his hand to his supervisor, who then sent him to a company clinic. His left hand was X-rayed, his thumb was again placed in a splint, and he was sent home. Over the next 10 days, he was off work but returned to the clinic on three occasions for physiotherapy and exercise of his left thumb. On August 6, 1979, the clinic physician, Dr. Harold Herron, examined his thumb and told him to report for work the next day. Petitioner complained his thumb was still painful and he could not bend it. He also informed the physician he had an appointment to see another doctor. Nevertheless, the physician released him for work. He did instruct him, however, to return to the clinic in two days for a follow-up examination.

That afternoon petitioner went to an orthopedic specialist, Dr. Ho Min Dim, who examined and X-rayed his left hand. Dr. Dim placed a hard cast on his hand covering his thumb and palm and extending up his arm half way between the wrist and elbow. Afterward, petitioner returned to respondent’s office and told his supervisor and respondent’s owner he was willing to work. The owner, however, refused to allow him to work with a cast on his hand. The supervisor suggested to the owner that petitioner see another doctor. The owner responded there was no need for that since he already had the cast on. He then instructed petitioner to go home.

' Subsequently, petitioner contacted both respondent and its workmen’s compensation carrier concerning temporary disability benefits. Both told him they could not comply with his request for benefits at that time, because there was a discrepancy between the two doctors regarding his treatment. He was paid no compensation.

. On August 22, 1979, petitioner filed his application for adjustment of claim which also requested penalties. He then filed a petition seeking an immediate hearing. On September 10, 1979, respondent’s workmen’s compensation carrier issued a check for $195.25 to petitioner. Four days later his cast was removed and he returned to work on September 24,1979.

Before the arbitrator, both parties stipulated petitioner’s injury arose out of and in the course of his employment and that timely notice was given to the employer. Only petitioner and Dr. Herron testified at the hearing.

Petitioner described the occurrence of the accident and the treatment he received from the two physicians. He stated his requests for temporary disability benefits were ignored by both respondent and its workmen’s compensation carrier. After filing his claim for compensation and penalties, and after waiting 49 days from the date of the accident, he said he finally received a single check for $195.25 but received no other compensation for his injury.

Petitioner then offered into evidence Dr. Herron’s records as an admission against interest under Nollau Nurseries, Inc. v. Industrial Com. (1965), 32 Ill. 2d 190. These records contained a letter and a report from Dr. Lim detailing his treatment of petitioner. Dr. Lim apparently had sent these documents, along with X rays of petitioner’s hand, to Dr. Herron pursuant to Dr. Herron’s request to view the X rays. Over respondent’s objection, Dr. Lira’s documents were allowed into evidence with Dr. Herron’s records.

Dr. Herron testified the normal treatment for a thumb fracture is to splint the thumb and have the patient exercise it as soon as possible. He said that such injured employees were often returned to their jobs, even though they complained of pain, because work is considered a form of therapy; and that it was his practice to return employees to work when they had full range of motion of their hand, i.e., when they could make a fist. He stated that on July 28, 1979, he first treated petitioner for his injured thumb and that on August 6, 1979, he found petitioner had full range of motion of his left hand. After reviewing the X rays taken by Dr. Lim, he still opined petitioner was capable of returning to work on August 7.

During cross-examination, he indicated Dr. Lim did not render improper treatment. He said it was a matter of opinion between doctors whether a fractured member of the hand should be placed in a cast. He admitted a cast is the proper treatment for a stretched ligament. However, he disagreed with Dr. Lira’s finding that there was evidence petitioner had stretched a ligament, requiring the cast.

Petitioner did not call Dr. Lim to testify but instead indicated he would rely on his own testimony, Dr. Herron’s testimony, the records and exhibits in evidence, and the petitions previously filed. The record is unclear as to the disposition of the case after this initial hearing. However, at a subsequent hearing before the arbitrator in January 1980, both parties agreed to reopen the proofs in the case. Each offered a report of separate examining physicians detailing the history and diagnosis of petitioner’s injury. The physician’s report submitted by petitioner indicated, in essence, that he sustained a fracture, had his left hand placed in a cast, and suffered some permanent loss of motion in his left thumb. The report of respondent’s physician noted petitioner’s hand was placed in a cast but stated he sustained no permanent injury. Both parties then rested. On appeal to the Commission, the case was submitted on the record.

The Commission found that respondent, without just and good cause, refused payment of weekly compensation benefits in accordance with the arbitrator’s decision for the period of temporary total disability and awarded petitioner the additional sum of $2,500, the statutory maximum, pursuant to section 19(l) (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(l). It also found respondent unreasonably vexatiously delayed payment of compensation for the period of temporary total disability and, as provided in section 19(k) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(k)), assessed a penalty in the amount of 50% of the compensation award payable during that period. Pursuant to section 16 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.16), the Commission additionally awarded petitioner attorney fees in the amount of 20% of the compensation awarded trader sections 8(b), 19(k) and 19(() (Ill Rev. Stat. 1979, ch. 48, pars. 138.8(b), 138.19(k), 138.19(l)).

The relevant sections of the Act, under which the Commission imposed penalties, provide:

“Sec. 16.
* * *
Whenever the Commission shall find that the employer, his agent, service company or insurance carrier has been guilty of delay or unfairness towards an employee in the adjustment, settlement or payment of benefits due such employee within the purview of the provisions of paragraph (c) of Section 4 of this Act; or has been guilty of unreasonable or vexatious delay, intentional underpayment of compensation benefits, or has engaged in frivolous defenses which do not present a real controversy, within the purview of the provisions of paragraph (k) of Section 19 of this Act, the Commission may assess all or any part of the attorney’s fees and costs against such employer and his insurance carrier.” Ill. Rev. Stat. 1979, ch. 48, par. 138.16.
“Sec. 19.
* * *
(k) In [any] case where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which do not present a real controversy, but are merely frivolous or for delay, then the Commission may award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award. Failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay.
* * *
(Í) In case the employer or his insurance carrier shall without good and just cause fail, neglect, refuse or unreasonably delay the payment of weekly compensation benefits due to an injured employee during the period of temporary total disability the arbitrator or the Commission shall allow to the employee additional compensation in the sum of $10 per day for each day that a weekly compensation payment has been so withheld or refused, provided that such additional compensation shall not exceed the sum of $2,500. A delay in payment of 14 days or more shall create a rebuttable presumption of unreasonable delay.” Ill. Rev. Stat. 1979, ch. 48, pars. 138.19(k), 138.19(l).

The intent of these sections is “to implement the Act’s purpose to expedite the compensation of industrially injured workers and penalize an employer who unreasonably, or in bad faith, delays or withholds compensation due an employee.” (Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, 301.) Where there is a delay in paying compensation, it is the employer’s burden to show it had a reasonable belief the delay was justified. Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1, 9.

Respondent maintains its challenge in this case was in good faith, that it acted reasonably and met its burden of justifying the delay in payment of compensation by relying on the testimony and reports of Dr. Herron. It asserts a sanction of payments of additional compensation for failure to pay benefits may not be imposed where, as here, there has been a good faith challenge by the employer to the claim of liability. Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462.

It further argues the Commission erred in allowing into evidence Dr. Lim’s letter and report as an admission against interest under Nollau Nurseries, Inc. v. Industrial Com. (1965), 32 Ill. 2d 190. It asserts Dr. Lim is petitioner’s own physician or agent and, therefore, his documents should not have been admitted as an admission against respondent’s interest. On this basis, it contends the only proper medical evidence in the case is that of its own physician, Dr. Herron. It then posits that when an employer acts in reliance upon reasonable medical opinion or when there are conflicting medical opinions, penalties are not ordinarily imposed. Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297.

We disagree with respondent’s conclusion that Dr. Herron’s testimony and report is the only proper medical evidence that should be in the record. Respondent’s argument overlooks the fact that, before the arbitrator, it agreed to reopen the proofs and to allow two additional medical reports into evidence. Moreover, neither the Commission nor the circuit court addressed the issue of the admissibility of Dr. Dim’s documents. Indeed, at the hearing before the circuit court, the judge stated, “You are only objecting to the penalties?” and respondent replied “Only objecting to the penalties.” However, even if Dr. Dim’s documents were stricken, we find the Commission had ample evidence, based on the other medical reports and the testimony at the arbitration hearing, from which to conclude penalties were warranted.

In addition, respondent’s reliance here on Avon and Brinkmann is misplaced. In both cases the court found penalties were improper, because the evidence established the employer had reasonable grounds to challenge its liability for the claimed injury and did so in good faith. In the instant case, respondent’s stipulation before the arbitrator established that it was liable for petitioner’s injury. The only question raised was the amount of compensation it was required to pay.

Moreover, the conflicting medical opinions in this case did not dispute liability. Rather, they differed only in regard to the proper treatment which should have been rendered to petitioner for his injury. Respondent’s reliance on its own physician’s opinion as to the proper treatment to be rendered does not establish, by itself, that its challenge to liability was made in good faith. The test is not whether there is some conflict in medical opinion. Rather, it is whether the employer’s conduct in relying on the medical opinion to contest liability is reasonable under all the circumstances presented. This is a factual question for the Commission and will not be disturbed unless it is against the manifest weight of the evidence. Board of Education v. Industrial Com. (1982), 93 Ill. 2d 20, 25; McKay Plating Co. v. Industrial Com. (1982), 91 Ill. 2d 198, 209.

Section 8(b) of the Act (I. Rev. Stat. 1979, ch. 48, par. 138.8(b)) provides in relevant part:

“If the period of temporary total incapacity for work lasts more than 3 working days, weekly compensation as hereinafter provided shall be paid beginning on the 4th day of such temporary total incapacity and continuing as long as the total temporary incapacity lasts.”

Under section 19(k), an employer’s failure to pay compensation as provided in section 8(b) is considered unreasonable delay. Moreover, pursuant to section 19(l), a delay in payment of 14 days or more creates a rebuttable presumption of unreasonable delay.

Respondent’s own physician testified, and respondent never contested that petitioner was temporarily disabled for a 10-day period following his accident. However, rather than paying petitioner weekly compensation beginning on the fourth day of this period, as provided in section 8(b), respondent delayed paying any compensation for 49 days.

Moreover, the arbitrator found petitioner was entitled to $315.38 per week during the period of his temporary total incapacity for work. Accordingly, for the seven days of uncontested liability (from the fourth day of petitioner’s disability until he was told to return to work), respondent should have paid petitioner $315.38. Instead, having made only one delayed payment of $195.25, respondent failed and refused to pay the remaining uncontested amount after the arbitrator’s decision was filed.

The Act also provides that the employee can secure his own physician at any time at the employer’s expense, provided that, “in the event the Commission shall find that a doctor selected by the employee is rendering improper or inadequate care, the Commission may order the employee to select another doctor ***.” Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a).

Respondent did not proffer evidence showing Dr. Lim rendered inadequate or improper care. Its own physician testified the decision to cast a fractured member of the hand was a matter of opinion between doctors. Moreover, petitioner testified that respondent’s owner saw him with the cast on, and, in response to a suggestion petitioner should see another doctor, said it was unnecessary for him to do so. The owner then refused to allow petitioner to return to work and sent him home. However, no compensation was paid to petitioner until after he filed an adjustment of claim and sought penalties. Even after the arbitrator’s decision, respondent still refused to pay petitioner the remaining uncontested amount of compensation. In fact, respondent admitted at the circuit court hearing it still had not paid petitioner any of the compensation or medical expenses awarded by the Commission.

Given these circumstances, we cannot say the Commission’s determination to impose penalties was against the manifest weight of the evidence.

For the reasons stated, the judgment of the circuit court of Cook County confirming the medical expenses and benefits is affirmed, and that part of the judgment reversing the penalty awards is reversed. The award of the Commission is reinstated.

Affirmed in part and reversed in part; award reinstated.


author: JUSTICE CLARK CHIEF JUSTICE RYAN,

text:
    (No. 52676.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MONROE LAMPKIN, Appellant.

      Opinion filed November 10, 1983.

    Rehearing denied December 9, 1983.

      RYAN, C.J., and UNDERWOOD and MORAN, JJ„ dissenting.
    Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield (Melbourne A. Noel, Jr., Michael A. Ficaro, Mark L. Rotert, and Faith S. Salsburg, Assistant Attorneys General, all of Chicago, of counsel), for the People.
    Sam Adam, of Chicago, for appellant.
   JUSTICE CLARK

delivered the opinion of the court:

Monroe Lampkin was indicted in the circuit court of Ford County for the murders of Michael McCarter and Donald Vice trader section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1) and the murder of William Caisse under sections 9 — 1 and 5 — 2(c) of the Code (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 1, 5 — 2(c)) by accountability. Prior to trial, defendant's request for a change of place of trial (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 6) was granted and defendant was tried before a jury in Kankakee County. At the conclusion of the trial, the jury returned verdicts of guilty on all three counts of murder. The State requested a hearing to determine whether the death penalty should be imposed. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d).) Defendant exercised his right to have the determination made by the jury. The jury found unanimously, beyond a reasonable doubt, that the defendant, Monroe Lampkin, murdered an individual known to the defendant to be a peace officer in the performance of his official duties (Michael McCarter), as well as two other individuals, both of which are aggravating factors supporting the imposition of the death penalty. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b).) The jury unanimously found that there were no mitigating factors sufficient to preclude the imposition of the death penalty. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(g).) The trial judge entered judgment sentencing the defendant to death. The jury that convicted the defendant was the same jury that found there were no mitigating factors sufficient to preclude the sentence of death. Thus, all of the evidence introduced at trial was heard by the jury that sat at the death sentencing hearing. The death sentence was stayed (73 Ill. 2d R. 609(a)) pending direct appeal to this court, pursuant to Rule 603 (73 Ill. 2d R. 603).

On the evening of April 7, 1979, four brothers, Monroe, Cleveland, David and Clyde Lampkin, were traveling southbound on Interstate Highway 57 near Paxton. Monroe and Cleveland were traveling in a red and silver Ford Thunderbird; David and Clyde in a red camper-type pickup truck. The two vehicles carrying the Lampkins came upon a van driven by Melvin and Phyllis Lynch and a blue Buick driven by Eartis Farrell, carrying Jackie Townsend and their infant son. These four vehicles were traveling south on Interstate Highway 57. Illinois State Trooper Michael McCarter was patrolling the southbound lanes in State of Illinois Car No. 659, an unmarked vehicle. Accompanying McCarter was Donald Vice, his brother-in-law, a civilian.

McCarter began traveling with the convoy of the four vehicles and, after a radar speed check, radioed Iroquois County Deputy Sheriff Gary Weisenbam requesting assistance in stopping the convoy. William Caisse and Larry Hale, both officers of the Paxton police department, responded. Caisse entered the southbound lanes of Interstate Highway 57, but Hale remained on the Route 9 overpass to stop a motorcyclist and issue him a citation.

McCarter stopped the van and Buick while instructing Caisse to stop the Thunderbird and pickup. The pickup pulled over but not the Thunderbird. Caisse remained with the three stopped vehicles on Interstate 57 at the Route 9 overpass, while McCarter pursued the Thunderbird. Monroe and Cleveland pulled to the shoulder a mile and a quarter farther south, just south of the Route 17 overpass. Trooper McCarter stopped approximately five feet behind the Thunderbird. McCarter ordered Monroe and Cleveland out of their car. Shortly before 9 p.m., Ronald Wallace, a passing motorist, saw the stopped vehicles. Trooper McCarter and two individuals were standing between the vehicles talking. Just after 9 p.m., McCarter radioed Caisse and requested that he bring the other three vehicles to his position and that Caisse “come down here and back me up. I got a subject giving me a hard time.” A few seconds later, McCarter again radioed Caisse to “[bjring those vehicles here to where I’m at right here ***. This subject down here is giving me a hard time.” One and one-half minutes later McCarter radioed “I’m shot, I’m shot.”

At approximately 9 p.m., Don Kutz was traveling southbound on Interstate Highway 57. Kutz observed Caisse’s car and the vehicles stopped at the Route 9 overpass and the two vehicles stopped at the Route 17 overpass. Kutz “observed three, approximately three flashes of lights and I heard three at least three sounds.” They were coming from between the two vehicles. Kutz saw a man crouched at the left rear comer of car 659 and two men just north of the Thunderbird. The flashes coming from between the vehicles were pointed north.

An autopsy showed McCarter had been shot on the right side of the neck, left upper chest and left upper thigh. Dr. Yve T. Ho, who performed the autopsy, opined that the bullet wound to the neck would have been sufficient to cause McCarter’s death. Vice had been shot twice. Krail. Lattig, a forensic scientist and firearms expert employed by the Illinois Bureau of Scientific Services, established that the bullets recovered from the body of Donald Vice and a bullet recovered from the clothing of McCarter were all fired by the same .38-caliber weapon. None of the weapons recovered at the scene were found to have fired these bullets. Spent casings, as well as live .38-caliber cartridges, were also recovered from the grassy area west of 1-57 at the Route 17 overpass south of Route 17; however, no .38-caliber pistol was ever recovered. McCarter shot Cleveland, who later died of the wound, and also shot defendant in the left wrist, wounding him.

Obert and Barbara Litteral were traveling north on Interstate Highway 57 at approximately 9 p.m. when Mr. Litteral observed an individual running northbound on I-57. The individual jumped over the guardrail at the Route 17 overpass in a westerly direction, went behind the pillar of the overpass and then ran south. The individual wore a brownish vinyl-type jacket. Litteral observed a second individual, McCarter, who ran north along 1-57 and stopped at the pillar. Litteral observed that McCarter had a weapon in his right hand, appeared to be wounded, and “[i]t looked like the gun was pointed around the pillar.” Barbara Litteral also observed the individual in the brown jacket. The Litterals both identified the jacket they saw that night as similar to that which defendant admitted wearing on the night in question and which was in evidence.

It appears that Officer Caisse and the other three vehicles arrived on the scene while the events last mentioned were happening or immediately thereafter. Mr. Lynch (who was in the van) heard gunfire and saw McCarter firing his weapon in a westerly direction up the embankment towards the Route 17 overpass. Caisse then assisted McCarter to his, Caisse’s, squad car and placed him in the passenger seat. David and Clyde then got out of the pickup but were ordered back to it by Caisse. Officer Hale, who had been detained while giving a citation to a motorcyclist at the Route 9 overpass, then arrived and fired a few shots in a westerly direction towards the embankment, as he had heard shots and saw muzzle flashes from this area. Hale then went to Caisse’s vehicle, removed a shotgun from the trunk and gave it to Caisse. Hale returned to his own vehicle to call for more help and to get additional equipment, and Caisse returned to a position near the overpass facing southwest. David Lampkin then got out of the pickup track again, put on a brown leather jacket and obtained a rifle from the back of the track. David shot Caisse in the back, killing him, and then shot Vice and McCarter. David fired at Hale, wounding him; however, Hale returned the fire, killing David on the spot.

Clyde Lampkin was found standing next to the body of David. Trooper Michael McCarter, Officer William Caisse, Donald Vice, David Lampkin and Cleveland Lampkin all died as a result of these events. Officer Larry Hale was wounded but recovered. Defendant was found and arrested 26 hours later, north of Paxton.

As noted above, the jury found the defendant guilty on all three counts of murder, and he was sentenced to death.

After notice of appeal was filed, certain facts became known to defendant’s counsel which were dehors the record on appeal. Defendant’s counsel felt that this necessitated an evidentiary hearing and filed a combined petition in the trial court seeking post-conviction relief (Ill. Rev. Stat. 1977, ch. 38, par. 122 — 1 et seq.) and relief from judgment under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72). The proceedings before this court were stayed pending disposition of the combined post-conviction and section 72 petition.

Defendant alleged in his combined post-conviction and section 72 petitions three general areas of constitutional deprivation: suppression of evidence by the prosecution; knowing misrepresentation by the prosecution to the jury; incompetency of defendant’s trial counsel resulting from the failure of the trial court to grant sufficient time for trial preparation; and/or a conflict of interest resulting from trial counsel’s representation of both defendant and defendant’s brother, Clyde Lampkin.

The relief sought was denied, and we now consider the combined appeal from the sentence of death and denial of the post-conviction relief.

We first address the defendant’s contention that the court erroneously permitted the prosecution to introduce evidence at trial of a statement made by defendant almost six years prior to the incident in question. In June of 1973, Officer Harold Kunz, on an investigation for the Chicago police department, had occasion to question defendant in connection with an auto theft. Kunz testified at trial that the defendant stated, “You white honky coppers are [expletive deleted] with us now, and we will get you later.” The defendant claims the prejudicial nature of this testimony has denied him a fair trial. We agree.

Defense counsel strenuously objected to the testimony from the time Officer Kunz was added to the People’s list of witnesses on August 31, 1979. Defense counsel filed a motion in limine seeking “an order barring the use of a statement purportedly made by Defendant, Monroe Lampkin, on June 19,1973.”

The court conducted a hearing on the motion in limine and at the hearing Kunz testified that on June 19, 1973, he was employed as a Chicago police officer assigned to Area 3 Auto Theft. He said that on that day he had seen the defendant Monroe Lampkin, who had been arrested at 7226 South Morgan, Chicago, in connection with a stripped automobile. Kunz testified he saw Monroe Lampkin at the police station in the company of Cleveland Lampkin and Paul Lampkin, at which time Kunz interviewed Monroe Lampkin, and the defendant made the statement that “You white honky coppers are [expletive deleted] with us now, and we will get you later.”

In denying the motion in limine the trial court mistakenly relied upon the case of People v. Scott (1918), 284 Ill. 465, as authority for finding that the evidence should not be excluded.

The State asserts that because the comment indicates a hostile purpose on the part of the speaker, and the deceased is encompassed within the scope of the threat against “white honky coppers,” that Scott provides authority that such a statement is admissible. We disagree. The remark admitted into evidence in Scott was made two days prior to the killing in that case and spelled out a specific time and location. In Scott the court also said that a “threat by the accused to kill or injure a person other than the deceased, or a mere idle threat of a general nature not directed to any particular person, is not admissible to show malice towards the deceased.” 284 Ill. 465, 474-75.

This evidence was not only wrongfully introduced into evidence at trial, it was emphasized in the prosecutor’s opening statement and highlighted in the prosecutor’s closing argument. It is apparent that the prosecuting attorney wanted to leave no doubt in the jury’s mind that the alleged remarks constituted a direct threat that was purposefully and intentionally acted upon. The prosecutor’s statements were inflammatory, prejudicial and groundless.

In his opening statement the prosecutor described what he expected the forthcoming evidence to show and stated:

“This is the same man, ladies and gentlemen, who the evidence will show in the past communicated a threat to a Chicago police officer that he was going to get even with the white police.”

At trial the prosecution waited until near the close of its case in chief to call Officer Kunz to the stand. The defendant argues that this was done to place greater emphasis on the officer’s testimony.

Oh cross-examination, Officer Kunz acknowledged that he did not report the alleged threat to his supervisor but he indicated that he independently remembered the events of that day in June of 1973. On redirect examination, the State’s Attorney asked if Officer Kunz had some explanation as to why six years later he was able to independently recall what happened. Officer Kunz responded that he did have an explanation, and when asked what it was he responded that “We, we have been threatened many times, but this one stuck out in my mind. It was apparently a threat that was carried out — ” (Emphasis added.) Defense counsel’s vehement objection to this testimony was overruled.

During the People’s closing argument the prosecutor drove home Kunz’ theme that the defendant had carried out his threat. Later in the prosecutor’s summation, the State’s Attorney again drew attention to the alleged threat in responding to the argument of defense counsel that the defendant had no weapon, or any need for a weapon. The prosecutor said:

“Well, I am sure that you will recall the testimony of police officer Kunz, and the circumstances under which the defendant here told him, ‘You are messing with us now, but we will get you white honky coppers later.’ I think that it is a fair inference from the evidence that Monroe Lampkin did indeed have a need for weapons.” (Emphasis added.)

Moments later the prosecutor again dramatized the significance of Officer Kunz’ testimony:

“You are next told that there really was no purpose in asking police officer Harold Kunz to testify in this case. That it was done to give you, ladies and gentlemen, the impression that the defendant had a grudge against the police. Well, you will have to draw your own conclusions from that officer’s testimony, but I think it graphically demonstrates that this defendant certainly had a predisposition to kill police officers.” (Emphasis added.)

It was not brought out in the opening or closing remarks that the defendant’s comment was made in a setting totally unrelated to the instant cause in any manner whatsoever and was made six years earlier to a police officer who had nothing to do with this case. No report of the alleged threat was ever made, but rather the officer’s testimony was based entirely upon his independent recollection of what had happened on that day six years ago.

To understand the prejudicial impact of Officer Kunz’ testimony we need only look at the context in which the prosecutor’s account of the alleged threat was being told. A black defendant was being charged with killing three white men, two of them police officers. The evidence against the defendant was entirely circumstantial, and the prosecutor was describing to an all-white jury an alleged threat made by this black defendant to a white policeman.

We note that while the statement about the “white honky coppers” was not introduced at the sentencing hearing, the jury impaneled for the sentencing hearing was the same as the trial jury. Therefore, the jury that found no mitigating factors to preclude the sentence of death heard all of Officer Kunz’ testimony at trial.

The State argues that the statements of the defendant are admissible as evidence of malice or criminal intent. For support, the State cites People v. Lion (1957), 10 Ill. 2d 208, and People v. Jayne (1977), 52 Ill. App. 3d 990, which held that prior threats of an accused to do violence to the person eventually slain are admissible as showing such malice and intent.

The State’s reliance on those cases is misplaced. In People v. Lion two witnesses testified as to prior threats made by the accused against the decedent. (10 Il. 2d 208, 217.) In People v. Jayne a number of witnesses testified that the accused had specifically threatened to kill the decedent in that case, and the court found the statements to be admissible, reasoning that “[p]rior threats of an accused to do violence to the person eventually slain have consistently been held admissible as showing malice and criminal intent.” (People v. Jayne (1977), 52 Ill. App. 3d 990, 1007.) To hold admissible a threat made by an accused individual against the person actually killed is categorically different from saying that a general threat that is not specifically directed towards any one person is admissible to show malice and criminal intent. There is no indication that the statement at issue in the instant case meant that violence would be perpetrated on the person who was eventually slain.

The defendant’s alleged statement was so general and impersonal that it cannot reasonably be characterized as being directed towards anyone in particular.

The State also asserts that the case of People v. Osborne (1917), 278 Ill. 104, supports its position that the statement of defendant Lampkin should be admissible here. It does not. In Osborne a prosecution witness testified that the defendant had stated if an attempt was made to arrest him he would “ '*** shoot every damned policeman as fast as they come down; every policeman in Peoria is afraid of me.’ ” (278 Ill. 104, 108.) When an officer attempted to arrest the defendant within the next two hours a gun was fired at the officer. The court ruled that admission of the statement was proper because it tended to show the intent with which the shot was fired. The defendant there threatened a clearly identifiable group of Peoria policemen who might attempt to arrest him, two hours before an arrest of the defendant was made in which the defendant did shoot at the arresting officer. The defendant there sufficiently identified the arresting officers who were the object of his threat. Such circumstances are a far cry from the situation at hand where defendant Lampkin allegedly made a general statement six years earlier about getting “white honky coppers” which may have been prompted by a police investigation into his alleged activities involving stolen cars and stolen auto parts.

The defendant’s statement should have been excluded because it is irrelevant, it has little or no probative value, and is very likely to arouse prejudice or hostility on the part of the jury. See People v. DeHoyos (1976), 64 Ill. 2d 128; McCormick, Evidence sec. 185, at 438-39 (2d ed. 1972).

In People v. Wilson (1948), 400 Ill. 603, the defendant was charged with the unlawful use of high explosives. The entire State’s case, as in the case at bar, was circumstantial. In the instant case, as in Wilson, no eyewitness testimony was introduced, and the State offered no direct evidence. The prosecution in both cases relied upon inferences to be drawn from indirect evidence. In Wilson, the State was permitted to introduce evidence to show that 17 years prior to the occurrence the defendant had used explosives. In reversing, this court held:

“[W]e do not think it proper to go to the extent of presenting evidence which discloses collateral facts which are remote and incapable of affording any reasonable presumption or inference as to the principal matter in dispute. It is true it is sometimes difficult to draw the line as to just when collateral facts afford sufficient inference as to the issues in dispute in order to be admissible, and when such collateral facts tend to divert the minds of the jurors from the point in issue and arouse their prejudice. Especially is this true where the case is entirely circumstantial, and where too much latitude is permitted pertaining to testimony which is remote it is likely to arouse passion and prejudice. Without burdening the record with all of the details we are of the opinion the prosecution was given too much latitude in the examination of witnesses pertaining to events which occurred during the parties’ married life and a number of years before the alleged offense.” (Emphasis added.) 400 Ill. 603, 606.

The prejudicial effect of the defendant’s alleged statement made six years earlier in the instant case outweighed any probative value the evidence might have had.

The testimony of Officer Kunz at trial also informed the jury that the defendant had previously been arrested. In describing the events of that day in June of 1973, Officer Kunz testified about his assignment to “conduct a followup and arrest investigation regarding a stripped automobile” at 7226 South Morgan Street in Chicago. Following a conversation at that address, Officer Kunz said that he had occasion to go to the police station at 61st and Racine Avenue in Chicago. Officer Kunz testified that while at the police station, he talked with the defendant Monroe Lampkin and “advised him of his constitutional rights.” Officer Kunz testified further that the defendant was handcuffed at the time and that the defendant was “arrested, processed and scheduled for a hearing.”

This testimony that the defendant had previously been arrested should not have been admitted into evidence. This court has held it is fundamental that mere proof of an individual's arrest cannot be used against that individual in a criminal case since the evidence of an arrest would prejudice the defendant in the eyes of the jurors. (People v. Bennett (1953), 413 Ill. 601.) The defendant is entitled to a jury that is not prejudiced against him because of a prior arrest. The court spoke to the need for the jury’s impartial disposition in People v. Gregory (1961), 22 Ill. 2d 601, where, in ruling that evidence of other crimes unrelated to the crime charged must be deleted from a statement or confession, it said:

“Under our concepts of a fair and impartial criminal trial, it is elementary that a defendant, no matter how reprehensible his crime or how black his history of past misdeeds, is entitled to have his guilt or innocence determined solely with reference to the crime with which he is charged. Accordingly, it is well settled that evidence of other offenses unrelated to the crime for which a defendant is on trial is incompetent. And where such irrelevant material is contained in an otherwise competent statement or confession, it must be deleted before the statement or confession is read to the jury, unless to do so would seriously impair its evidentiary value. (People v. Oden [(1960)], 20 Ill. 2d 470; People v. Donaldson [(1956)], 8 Ill. 2d 510; People v. Lane [(1921)], 300 Ill. 422.) As a corollary to this rule, we have pointed out that the duty of the State’s Attorney to safeguard the rights of all the people extends to one accused of a crime, and have held that the failure of a prosecutor to see to the deletion of prejudicial and improper matters from a statement or confession is a violation of that duty. People v. Oden [(1960)], 20 Ill. 2d 470.” (22 Ill. 2d 601, 603-04.)

As a result of the introduction of this evidence, we cannot say that the jury considering the defendant’s fate in the instant case was an impartial one. For all of the reasons we have discussed, the alleged threat should not have been admitted, and we find that such an admission constitutes reversible error.

In view of our determination that admission of this highly prejudicial and inflammatory testimony constitutes reversible error, it is unnecessary for us to resolve the other issues raised in this appeal. We do, however, feel it is necessary to point out a few of the other troubling dimensions of this case.

Crucial to the prosecution’s presentation of the case was the identification of a trail of blood leading from the scene of the killings to a concrete abutment (overpass Route 17) and up an embankment. In the grass on the embankment several blood-stained expended .38-caliber cartridges were found. The prosecution theorized that it was the defendant who had left the trail of blood from the automobile to the concrete abutment and up the embankment.

At trial, the defendant denied being near the abutment or embankment. Because no one identified the defendant as being in either place, the circumstantial evidence presented to the jury was crucial as the jury attempted to assess the defendant’s credibility.

The State called Ms. Debra Verges, a seriologist with the Illinois Department of Law Enforcement. She testified that the blood on the abutment and the blood on the shells was Type 0, and the blood of the defendant was also Type 0.

The jury was never told that the blood on the concrete abutment and the blood on the shells and the defendant’s whole blood had each been analyzed by forensic scientist Parmod Dhawan of the Illinois Department of Law Enforcement, whose analysis excluded the defendant from any possibility of being the one whose blood was on the abutment or the shells. Nor was the jury informed of the professional conclusions of Mark Stolorow, seriology coordinator for the Illinois Department of Law Enforcement. During his testimony at the post-conviction hearing, Mr. Stolorow expressed doubts about the accuracy of Dhawan’s report. However, Stolorow agreed that if Dhawan’s report was accurate with respect to the phenotyping of David Lampkin’s blood, and the defendant’s blood, and the blood on the shells and cartridges (there was nothing contradicting those shell and cartridge findings), and the blood on the concrete abutment (which Stolorow corroborated), then the defendant could not have been the source of either the blood on the concrete or the blood on the shells. Furthermore, Stolorow acknowledged that under such circumstances nothing excluded David Lampkin, defendant’s brother who was shot and killed at the scene, from being the donor of either the blood on the concrete and/or the blood on the shells found on the embankment.

At the post-conviction hearing, defense counsel testified with respect to the exculpatory report reflecting an analysis that, if accurate, demonstrated that the incriminating blood on the shells and casings could not have been the defendant’s.

Defense counsel stated that he did not have an independent recollection of the document but that another document stood out in his mind that indicated Dhawan made some error. This other document was identified by defense counsel as a memorandum signed by Gary J. Bombard, an assistant laboratory supervisor to Ms. Sally Dillon, the laboratory supervisor.

According to defense counsel, he concluded that based upon the memo from Mr. Bombard the competence of Dhawan’s testing “probably was lousy.” While Bombard’s memorandum does raise allegations as to Dhawan’s competency, defense counsel testified that the memorandum did not relate to any tests that concerned Monroe Lampkin.

Defense counsel testified at the post-conviction hearing that he was told by the Department of Law Enforcement shortly prior to trial that Dhawan was unavailable or that he left the Department. He testified further that he made no attempt to locate Dhawan because, according to defense counsel, there was never enough time.

When asked why he did not make any attempt to corroborate or contradict what was said in the memo about Dhawan, defense counsel responded:

“I wanted to, but my recollection is that this document was tendered to me late and I was concerned in view of the fact that there had been no opportunity to as far as I was concerned to interview this witness as well as numerous other witnesses. There simply wasn’t enough time allowed in this case.”

Defense counsel had a copy of Dhawan’s report, but he did not use the report at the trial. The State asserts that it is immaterial that Dhawan’s report was not introduced at trial. While the reliability and credibility of Dhawan’s work was attacked by the State at the post-conviction hearing, it is one thing to impeach favorable testimony, as the State asserts would have happened had the report been introduced at trial, and quite another never to have a report introduced which might exonerate the defendant.

Counsel made a motion for a continuance on September 19, 1979, and renewed that motion on September 24, 1979, prior to trial, and informed the trial court that he was not ready to proceed. The court denied the motion for a continuance. Counsel then filed a motion for injunctive relief in the United States District Court which was denied on abstention grounds. A second motion for a continuance by defense counsel was denied.

After the first day of voir dire, defense counsel was stricken with chest pains and admitted to the hospital on an emergency basis, where he was diagnosed as having a “cardiovascular disturbance.” Defense counsel’s testimony at the post-conviction proceedings does not show if he was released later that day, but there is no indication that the next day of voir dire was delayed whatsoever because of counsel’s health. Despite the fact defense counsel took extraordinary steps to gain a continuance and then suffered a heart attack following the first day of voir dire, he went on with the voir dire and on with the trial.

While the defendant asserts he did not receive effective assistance of counsel at trial, we need not resolve that issue in view of our holding today that the admission of Officer Kunz’ testimony concerning the alleged threat made by the defendant constitutes reversible error.

In sum, we reverse the judgment of the circuit court of Kankakee County, vacate the sentence of death, and remand the cause to the circuit court of Kankakee County for a new trial. Further proceedings in the circuit court are to be conducted in a manner consistent with this opinion.

Reversed and remanded.

CHIEF JUSTICE RYAN,

dissenting:

The opinion of this court bases the reversal of the defendant’s conviction on the admission into evidence of a statement made by the defendant almost six years before the murders involved in this case: “You white honky coppers are [expletive deleted] with us now, and we will get you later.” Under the case law of this State as noted below, the statement was admissible. The prosecution need not, and indeed should not, pull its punches and not present evidence it has simply because it may be damaging to the defendant’s cause. I must therefore dissent.

A previously made threat, while it may not be general in nature, need not be directed at the person subsequently killed to be admissible in evidence. A threat is admissible if the person killed is a member of a class against whom the threat was made.

In People v. Scott (1918), 284 Ill. 465, this court set forth the general proposition that a threat to commit a crime for which the accused is being tried is admissible to show intent if such threat imparts a hostile purpose on the part of the accused and the deceased is one who is encompassed within the scope of the threat. Trooper McCarter, a white police officer, clearly falls within the class of people encompassed by defendant’s threat against “white honky coppers.” In People v. Osborne (1917), 278 Ill. 104, 108, defendant made a similar threat when he said, “*.** I will shoot every damned policeman as fast as they come down ***.” The defendant was later convicted for attempting to shoot a police officer and claimed that testimony as to the above statement should not have been admitted at trial. In affirming his conviction, this court held the testimony admissible to show intent. (See Palmer v. People (1891), 138 Ill. 356, 367; see also People v. Lion (1957), 10 Ill. 2d 208; Painter v. People (1893), 147 Ill. 444; but cf. Bird v. United States (1901), 180 U.S. 356, 45 L. Ed. 570, 21 S. Ct. 403, and People v. Sorrells (1920), 293 Ill. 591 (where threats, which were of a general nature and the person injured was not within the scope of the threats, were held to be not admissible).) In Painter v. People (1893), 147 Ill. 444, this court held that the lapse of time intervening between a threat made by the accused and the subsequent killing went only to the weight to be given to the evidence of the threat, and not to the admissibility thereof. In People v. Griswold (1950), 405 Ill. 533, this court held that a similar objection went only to the credibility of the witness who was testifying as to the prior threat. Although the time period involved in the matter at hand is somewhat longer, the reasoning of Painter and Griswold is still applicable, and the evidence of defendant’s prior statement was properly admitted at the guilt phase of the trial. The jury was entitled to decide what weight to give to the evidence.

The majority opinion complains that the prosecution commented on this threat in the opening statement and the closing remarks. The prosecutor, in the opening statement, had the right to inform the jury what the evidence would show and, in the closing remarks, had the right to comment on the evidence properly introduced and to draw legitimate inferences therefrom. The fact that the threat that the defendant had previously made to “get” white police officers later did not help his cause is no reason to require the prosecutor to refrain from mentioning or commenting on this evidence. Furthermore, my examination of the record discloses that not a single objection was made to these comments during the opening statement, the closing argument, or rebuttal. Also, I find nothing in the record to indicate that these issues were raised in a written post-trial motion, or that an oral motion was made raising these issues. The question of the propriety of the prosecutor’s comments has not been preserved for appeal.

To preserve an issue for appeal, an objection must be raised at trial and in a post-trial motion. (People v. Lucas (1981), 88 Ill. 2d 245; People v. Jackson (1981), 84 Ill. 2d 350.) The reason for this requirement is judicial economy and fairness to the parties.

“Timely and specific objection at trial affords the court an opportunity to prevent most errors by sustaining the objection or instructing the jury to disregard the answer or remark. [Citations.] And specific references in post-trial motions to the reasons why a trial judge’s actions or rulings were wrong enables him to reconsider their propriety in a less pressured environment. If an egregious error has actually occurred, the judge can order a new trial, thus avoiding the delay and expense of appellate review.” (People v. Jackson (1981), 84 Ill. 2d 350, 359.)

See People v. Free (1983), 94 Ill. 2d 378, 425; People v. Pearson (1981), 88 Ill. 2d 210; People v. Lykins (1979), 77 Ill. 2d 35; People v. Precup (1978), 73 Ill. 2d 7; People v. Pickett (1973), 54 Ill. 2d 280.

A defendant should not be permitted to have “two bites at the apple.” The waiver rule encourages timely objections to error at trial. If it is not applied, a defendant may intentionally permit erroneous comment to be made solely for the purpose of creating error to support him on appeal if the verdict is against him. He would thus be rewarded for his failing to act and permitting error. People v. Adkisson (1980), 83 Ill. 2d 1.

My colleagues also see something sinister in the manner in which the evidence of this threat was presented, stating: “At trial the prosecution waited until near the close of its case in chief to call Officer Kunz to the stand. The defendant argues that this was done to place greater emphasis on the officer’s testimony.” My only response is, What is wrong with that? Are we now going to compel the prosecutor to present his evidence in a manner that will minimize its impact? Also, the criticism of Officer Kunz’ testimony in the opinion following the above-quoted statement does not go to its admissibility, but only to the weight to be given this testimony, which is not for us to determine.

The opinion also highlights the fact that the prosecutor did not point out to the jury the factors that may detract from the weight to be given to the threat. This is no reason to fault the prosecutor. This trial, as are all trials, was an adversary proceeding. The defendant was represented by an attorney who could have commented on the weakness of this testimony if he felt that it was necessary to do so. The prosecutor was certainly not required to do so.

I do not understand the majority’s reliance on People v. Wilson (1948), 400 Ill. 603. That case held that it was error to introduce evidence of similar conduct that occurred 17 years before the crime. In our case, we are not talking about 17 years, and we are not talking about similar conduct. We are here talking about a threat that the defendant made to kill white police officers, and the decedent was a white police officer. The previous threat is evidence of intent and motive. In my opinion, Wilson is irrelevant.

The majority is also troubled by the fact that the jury was never told about the report of a blood analysis made by Farmed Dhawan which, the defendant contends, would have benefited his defense. The defendant’s attorney had a copy of this report but chose not to use it at trial. The prosecutor has neither the duty, nor the right, to conduct the defendant’s defense, nor to dictate his counsel’s trial strategy.

Since a new trial has been ordered by the majority opinion, any discussion of the failure to grant a continuance is unnecessary. I wish to point out, however, that the court had originally set this case for trial on July 23, 1979. On July 5, 1979, defense counsel moved for a continuance and requested a new trial date of September 17, 1979. For reasons of convenience, the date of September 24, 1979, was agreed to by counsel. Although the defense counsel had over five months to prepare for trial on a date of his choosing, on September 19, 1979, and again on September 24, 1979 (the trial date), counsel sought continuances. Both motions were denied. The trial judge stated that taking into account the difficulty of the case and the length of time allowed for preparation, he believed the defendant had been given adequate time to prepare for trial.

In People v. Lott (1977), 66 Ill. 2d 290, this court stated that a motion for continuance lies within the sound discretion of the trial court but that a refusal to grant a continuance which deprives the accused of a reasonable time to prepare for trial is reversible error. However, in Lott the defendant was denied a continuance which was sought after the State produced a surprise witness. Defendant sought time to discover additional information in an attempt to impeach this witness. This court determined that this denial of defendant’s motion for a continuance was prejudicial. This is simply not the case presented here.

“There is no mechanical test, statutory or other, for determining the point at which the denial of a continuance in order to accelerate the judicial proceedings violates the substantive right of the accused to properly defend. The circumstances of each case must be weighed, particularly the reasons presented to the trial judge at the time the request is denied.” (People v. Lott (1977), 66 Ill. 2d 290, 297.)

I feel that the trial judge weighed the facts involved in this situation and did not abuse his discretion in denying defendant’s motion for a continuance. See also People v. King (1977), 66 Ill. 2d 551.

The record is not clear as to the nature of defense counsel’s health problem which arose during the first day of voir dire examination. He, apparently, was admitted to the hospital and was released either the same day or the next morning. In any event, his ailment obviously was not serious. The defendant did hot contend that a continuance was sought after the seizure or that the court forced counsel to proceed in spite of his ailment. Nor is there any showing or contention that counsel’s performance as an attorney was impaired as a result of this incident. This discussion of counsel’s seizure in the majority opinion is totally irrelevant.

For the reasons stated, I respectfully dissent.

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