author: Mr. JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD L. JONES, Defendant-Appellant.
    Fourth District
    No. 16612
    Opinion filed September 16, 1981.

      Michael J. Meyer, of Ealy, Bower and Meyer, of Effingham, for appellant.
    Chris Freese, State’s Attorney, of Sullivan (Robert J. Biderman and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

Defendant was convicted in the circuit court of Moultrie County of the offense of driving a motor vehicle when his license was revoked, in violation of section 6 — 303(a) of the Illinois driver licensing law (111. Rev. Stat. 1979, ch. 95/2, par. 6 — 303(a)). He was sentenced to 10 days’ imprisonment and fined $300 and costs.

On appeal, defendant raises four issues: (1) waiver of jury trial; (2) conflict in the licensing statutes; (3) hearsay evidence; and (4) affirmative defense.

The evidence at trial indicated that defendant was involved in a motor vehicle accident on February 8,1979. A deputy sheriff investigated the accident and testified that, at the time, defendant had a Texas driver’s license. The State stipulated that the Texas license was valid. Upon further investigation the deputy discovered that defendant’s Illinois license had been revoked. The State introduced evidence at trial that the revocation was made on January 2, 1976, and had been extended to August 9,1978.

Defendant testified and admitted that he drove the vehicle on February 8, 1979. He further indicated that he had moved from Texas back to Illinois on December 20,1978. The trial court indicated that since the State had stipulated to the validity of the Texas license, it would presume that defendant was a resident of Texas at the time it was issued. Defendant testified that sometime after he returned to Illinois he went to a driver’s licensing station in Effingham and inquired about driving on his Texas license. Someone told him that he could do so. The State objected to the answer as hearsay and the trial court sustained the objection.

Further evidence obtained after a continuation showed that defendant had applied for his Texas license on August 23, 1978. On the application in Texas he indicated that he had an Illinois license through 1979 and that his driving privileges in Illinois were not suspended, revoked, canceled or denied, and that his license in Illinois had never been suspended, revoked, canceled, or denied.

Defendant’s first issue is that he was deprived of his right to trial by jury. We note in passing that this alleged error was never called to the trial court’s attention for a ruling and no motion for new trial was filed (Ill. Rev. Stat. 1979, ch. 38, par. 116 — 1). While the issue might be disposed of on this basis (People v. Wright (1980), 80 Ill. App. 3d 927, 400 N.E.2d 731), we find stronger evidence of waiver in the actions-pf defendant, and his counsel. A brief recapitulation of the sequence of events is as follows:

March 26,1979: defendant arraigned with counsel present; plea of not guilty; demand for jury trial; allotted for jury trial in May, 1979.

April 24,1979: motion by defendant to vacate May setting; continued to August, 1979.

October 17, 1979: cause continued to October 25, 1979, for plea; defense counsel present.

October 25,1979: motion by defendant for continuance; motion allowed.

January 11, 1980: motion by defendant for continuance; continued to January 22, 1980.

January 22,1980: January 23,1980: motion by the People to allot for bench trial; allotted for February 25,1980. circuit clerk’s proof of notice of bench trial on February 25,1980, 9:30 a.m. on file,

February 13, 1980: circuit clerk’s proof of notice of bench trial continuance from 9:30 a.m. to 1:30 p.m. on February 25, 1980, on file.

February 21,1980: motion for continuance by defendant; objection of the People; objection overruled; allotted for trial February 27, 1980, 1:30 p.m.

February 27,1980: trial commences; People’s evidence heard; defendant’s evidence heard; arguments heard; motion by defendant to reopen; strenuous objection by the People; objection overruled; continued 30 days for additional defense evidence,

June 30,1980: on court’s motion, cause specially set for hearing July 7, 1980,1:30 p.m.

July 7,1980: motion by defendant for continuance; strenuous objection by the People; motion allowed; continued to August 4, 1980, 1:30 p.m.

July 14,1980: motion by defendant for continuance; motion denied.

August 4,1980: trial resumed; additional evidence for defendant not available but representations of counsel received; judgment entered in favor of the People and against defendant; sentence imposed; admonition as to right to appeal given to defendant; all motions ordered filed within 30 days; in absence of motions, jail term to commence September 5, 1980.

September 2,1980: notice of appeal on file; appeal bond fixed; mittimus stayed pending appeal.

While we are always reluctant to infringe in any way on the basic right to jury trial, yet the history of this case as recited above has persuaded us that defendant has waived that right. He relies principally on People v. Ceaser (1974), 17 Ill. App. 3d 650, 307 N.E.2d 753. In that case the defendant participated in a two-day bench trial without raising the question of jury waiver. The appellate court held that there must be something more than the trial. We believe that that “more” is here present.

Defendant actively participated in the proceedings from their very inception, mostly by motions for continuance. More compellingly, the circuit clerk’s notice of January 23, 1980, clearly states “bench trial,” although other boxes on the notice form providing for jury trial and other matters are present. “Bench trial” appears in upper case letters, typed on a blank line, which is provided at the end of the column of various other proceedings which the clerk might use for such other proceedings. We fail to see how the notice could be more obvious.

In addition to the clerk’s notice, the record also contains an acknowledgment by defense counsel that the trial is to be at bench. Counsel’s written motion for continuance on February 21, 1980, contains the following recital: “That the above entitled matter [i.e., the instant case] is set for Bench Trial on Monday, February 25, 1980.”

The record demonstrates more than passive acquiescence; it shows a positive acknowledgment that the trial is to be at bench. Ceaser is inapposite and defendant’s contention is without merit.

Defendant’s second issue concerns the interplay of various sections of the Illinois driver licensing law (Ill. Rev. Stat. 1979, ch. 95M, par. 6 — 100 et seq.) (Law). His basic argument rests on section 6 — 102(7) of the Law (Ill. Rev. Stat. 1979, ch. 95Já, par. 6 — 102(7)), which states:

“The following persons are exempt from the requirements of Section 6 — 101 and are not required to have an Illinois drivers license or permit if one or more of the following qualifying exemptions are met and apply:
0 0#
7. A nonresident who becomes a resident of this State, may for a period of the first 90 days of residence in Illinois operate any motor vehicle which he was qualified or licensed to drive by his home state or country so long as he has in his possession, a valid and current license issued to him by his home state or country.”

Defendant’s argument is that he held a valid Texas license and therefore under the foregoing section he could operate a motor vehicle with that license for 90 days; that his driving on the occasion in question was within 90 days of his return to Illinois and therefore was not a violation of section 6 — 303(a) under which he was charged. He concludes that there is a conflict between sections 6 — 102(7) and 6 — 303(a) and that such a conflict should be strictly construed in his favor.

Defendant acknowledges two other sections of the Law, but argues that they do not apply to him. Section 6 — 208(b) (Ill. Rev. Stat. 1979, ch. 95/2, par. 6 — 208(b)), provides:

“Any person whose license or permit or privilege to drive a motor vehicle on the highways has been revoked shall not be entitled to have such license or permit or privilege renewed or restored. However, such person may make application for a license as provided by Section 6 — 106 of this Act:
# # #
(2) After the expiration of 1 year from the date of revocation * « «
In either event, the Secretary of State shall not issue such license unless and until he is satisfied after investigation of such person that to grant the privilege of driving a motor vehicle on the highways will not endanger the public safety or welfare.”

Defendant argues that at the time one year from the date of revocation occurred, he was a resident of Texas and hence not able to apply for an Illinois license. Without deciding, as we need not under the facts here present, whether residence in Illinois is necessary to obtain a license, we observe that the record is barren of any effort by defendant to obtain one during the period from December 20, 1978, the date of his return to Illinois, to February 8,1979, the date of his offense.

Defendant also acknowledges section 6 — 210 of the Law (Ill. Rev. Stat. 1979, ch. 95/2, par. 6 — 210), which provides:

“Any resident or nonresident whose drivers license or permit or privilege to operate a motor vehicle in this State has been suspended or revoked as provided in this Act shall not operate a motor vehicle in this State:
0 0 0
(2) After such revocation until a license is obtained when and as permitted under this Act ” *

Defendant argues that his purported exemption under section 6 — 102(7) by obtaining a valid Texas license operates as compliance with section 6 — 210. We disagree.

Defendant’s argument might have some validity if Texas were a party State to the Driver License Compact (Ill. Rev. Stat. 1979, ch. 95)2, par. 6 — 700 et seq.; Ill. Ann. Stat., ch. 95M, par. 6 — 700, Complementary Legislation, at 398 (Smith-Hurd 1971)). Since it is not, there is no apparent method by which the Texas authorities might become aware of the Illinois revocation. Even if Texas were a party State to the Compact, it is only speculative whether it would have issued a license under the provisions of section 6 — 704 (Ill. Rev. Stat. 1979, ch. 95)2, par. 6 — 704), which provides in substance that a party State may issue a license after revocation in another State when one year has elapsed from the revocation, provided the issuing authority determines that it will be safe to do so.

While it is true that penal statutes are to be construed strictly in favor of an accused, it is likewise true that they should not be construed so rigidly as to defeat the intent of the legislature. (People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31). In the instant case we find no ambiguity or conflict among the sections which have been discussed.

Section 6 — 102(7) is a comity provision which allows a newcomer to enjoy a grace period during which to make application and to secure an Illinois license. Section 6 — 210 by its obvious terms prohibits operation of a motor vehicle under a foreign license when the Illinois license has been revoked and requires that a license be obtained under the Law. Section 6 — 208(b) allows one whose license has been revoked to make application for restoration. There is no guarantee that a new license will issue; the statute is quite specific thatthere is no entitlement to a new license. Read as a whole, these sections complement one another and present a logical statutory scheme.

Defendant’s Texas license, however obtained, was irrelevant to this case.

Defendant next complains and assigns as error the ruling of the trial court in sustaining an objection to the statement made at the licensing station in Effingham. As has already been indicated, he went to that station upon his return to Illinois and inquired about the validity of his Texas license. He testified that some unknown person there told him that it was valid for driving purposes.

He asserts that the statement was offered, not for its truth, but for the fact that it was made and hence is not hearsay. We assume that defendant is referring to the rule found in 6-Wigmore, Evidence §1789, at 314 (Chadbourne rev. 1976):

“Wherever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned.”

See also McManus v. Feist (1966), 76 Ill. App. 2d 99, 221 N.E.2d 418.

On this theory the statement was admissible to show defendant’s belief that he could drive on his Texas license. It was error to sustain the objection, but as will be seen from our discussion of defendant’s final issue, the error was harmless.

That final issue is closely allied with the statement just discussed and is largely dependent upon it. Defendant claims that by the introduction of that statement, had he been permitted to do so, he raised the affirmative defense of reliance upon an official interpretation of a statute made by an officer legally authorized to do so. (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 8(b)(4).) Having raised some evidence of an affirmative defense under the foregoing section, he claims that the burden of proof then shifted to the State to rebut it and it did not do so. We do not agree.

The value of any out-of-court statement of the kind present here depends upon the credibility of the declarant and at least a prima facie showing of such credibility must be made. Such was not done in the instant case. Defendant offered no shred of evidence as to the identity of the person he spoke with other than that it was someone present in the licensing station. Defendant in his testimony referred to the person as “him,” without even identifying him as an officer. Furthermore, he could not place the time of the visit, saying only that it was sometime after Christmas.

While there has been no unanimity of opinion as to the quantum of evidence necessary to require rebuttal evidence in the case of an affirmative defense, we note that the supreme court has held in the case of the affirmative defense of insanity the evidence must be sufficient to raise a reasonable doubt. (People v. Redmond (1974), 59 Ill. 2d 328, 320 N.E.2d 321.) The evidence presented in the instant case was insufficient as a matter of law to require rebuttal from the State.

The judgment of the circuit court of Moultrie County is affirmed.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE JONES Mr. JUSTICE KARNS,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE PITTMAN, Defendant-Appellant.
    Fifth District
    No. 80-44
    Opinion filed September 25, 1981.

      KARNS, J., dissenting.
    John H. Reid, of State Appellate Defender’s Office, of Mt. Vernon (Gary D. Duncan, of counsel), for appellant.
    Donald Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Defendant, Maurice Pittman, appeals his conviction and sentence for unlawful delivery of a controlled substance entered by the circuit court of Madison County after a trial by jury. On appeal defendant contends (1) he was not proved guilty beyond a reasonble doubt, (2) the prosecution improperly attempted to inform the jury of defendant’s prior criminal record, and (3) a consecutive sentence was improperly imposed.

The case against defendant was based almost entirely on the testimony of police informant Robert Gubin. Gubin admitted that he had previously been convicted for narcotics violations several times and that he had also been convicted as an accessory after the fact to manslaughter for tampering with evidence during a homicide investigation. Gubin also admitted that narcotics charges were pending against him in Madison County at the time he was helping police in the hope he would receive leniency on those charges.

Gubin stated that he first met defendant when they were both confined in the county jail. However, Gubin stated that it was his girlfriend who informed him of defendant’s drug-dealing activities and that it was on the basis of her information that he called police. According to Gubin, he contacted two officers assigned to the Metropolitan Enforcement Group of Southwestern Illinois (MEGSI), and the MEGSI officers met him in the parking lot of an East Alton restaurant. He informed the officers that defendant was selling drugs in an apartment at 828 Alby Street in Alton, Illinois, and the officers then drove him to that location. Once they were parked across the street from that address, the officers subjected him to a strip-search in their van and gave him three $20 bills, which he took across the street to purchase heroin. Gubin then went across the street and knocked on the front door of the building. After being let in the building, he knocked on the first door to his right and was let into an apartment, the only one he entered in the building. Once he entered the apartment, he handed defendant the three $20 bills and received an aluminum packet in return. He then left the apartment and returned to the police officers, giving them the aluminum foil packet, which contained a white powdered substance. A forensic scientist testified that he had tested the substance and identified it as heroin.

The two MEGSI officers were able to corroborate a portion of Gubin’s testimony. They stated that they met Gubin at the restaurant parking lot and then drove him to the address he gave them. The officers confirmed that they strip-searched Gubin and gave him the three $20 bills which he took across the street. Although the officers saw him enter the apartment building, they could not observe which apartment he entered. The officers stated that Gubin was in the building for nine minutes and that when he returned he gave them the packet containing heroin. The officers admitted that they did not strip-search Gubin after the transaction even though ordinary MEGSI practice would require they do so.

Defendant attempted to impeach Gubin with the testimony of Rqbert Belcher. Belcher stated that he had met Gubin when they were both inmates at the county jail. At that time Gubin expressed an intention to set someone up in order to gain leniency for himself. During his testimony Gubin had admitted having spoken with Belcher but denied having expressed a desire to set someone up.

The defense also offered several alibi witnesses, but they were not consistent with each other in their testimony. Reggie Taylor testified that on the evening in question he was in the apartment Gubin claimed to have visited and that neither Gubin nor defendant had been in the apartment. Taylor stated that the apartment belonged to defendant’s brother-in-law, Henry Smith, and that on that evening the only other people in the apartment were Ben Jones, Smith and his nephews. Taylor was certain of the date because Smith’s wife had just died. Taylor further testified that the only time he had seen defendant on the date in question was at defendant’s home around noon. During cross-examination Taylor denied having any close ties to defendant or his wife, but, over objection, he did admit that he had testified on defendant’s behalf on two previous occasions.

Henry Smith also testified on behalf of defendant, but his testimony contradicted Taylor’s in several respects. Smith stated that his wife had died over a month prior to the date in question, and the only reason he remembered that day was because Gubin had come to his apartment looking for his (Smith’s) sister and defendant’s wife, Shirley Pittman. According to Smith, his sister left with Gubin.

The defense also offered the testimony of defendant’s brother, Benjamin Jones, who stated that he was with defendant in Edwardsville on the date in question. According to Jones he met defendant in Edwardsville at approximately 11:30 a.m. After lunch they met with an assistant public defender for about an hour and a half in an attempt to help his nephew. Jones stated that after that he and defendant met with an associate judge and then visited with an attorney in East Alton until approximately 4:30 p.m. Both the assistant public defender and the associate judge subsequently testified that they remembered meeting with defendant, but neither could remember the exact date on which their meetings had occurred.

Jones further testified that after their meetings had ended he and defendant went to their mother’s home for dinner. Jones related that after dropping defendant off at their mother’s residence, he drove over to Smith’s apartment and picked up defendant’s wife, who accompanied him back to their mother’s home for dinner. Jones testified that they all remained at the mother’s residence until approximately 7 p.m.

Following this testimony the jury returned a verdict of guilty.

Defendant first contends that the uncorroborated testimony of Robert Gubin was insufficient to prove him guilty beyond a reasonable doubt. Defendant cites Gubin’s several narcotics convictions and his motive of gaining leniency for himself. While this undoubtedly bears upon the witness’ credibility, the mere fact that Gubin had a narcotics record and that he was aiding police to benefit himself does not render his testimony unworthy of belief. (People v. Barney (1959), 15 Ill. 2d 503, 155 N.E.2d 615.) Instead, the test is whether, considering all of the surrounding circumstances, the informant may still be believed. (People v. Norman (1963), 28 Ill. 2d 77, 190 N.E.2d 819.) While it is true that Gubin’s testimony was not corroborated in every detail, it has long been recognized that corroboration is not required, since by its very nature a narcotics transaction is secret and only the informant will generally witness the actual exchange. (People v. Perkins (1962), 26 Ill. 2d 230, 186 N.E.2d 330.) Corroboration can exist in varying forms and degrees. Certainly this case is not similar to People v. Bazemore (1962), 25 Ill. 2d 74, 182 N.E.2d 649, where police failed to keep the addict-informant under surveillance as he went to the area of the alleged drug sale. Here, the officers watched Gubin as he entered the apartment building, stayed for only a short time and returned with heroin he did not previously have. And even if the supposed impeachment testimony of Robert Belcher is accepted as true, it only shows that Gubin intended to gain leniency by exposing some one else in a drug deal. Drug purchases by informants are by their very nature set up to one degree or another, which is not synonymous with a frame-up, as defendant is apparently contending.

In this case, at least a portion of Gubin’s testimony was corroborated by other evidence. In view of this fact, and in view of the contradictory testimony offered by the defense, there was a firm basis for the jury to believe Gubin and to find defendant guilty beyond a reasonable doubt.

Defendant’s next contention is that the prosecution improperly attempted to inform the jury of other criminal conduct by defendant. During opening argument the prosecutor stated that he would show that Gubin had received both heroin and cannabis from defendant. Although defense counsel’s objection to the mention of cannabis was sustained, it was sustained only after a conference was had outside the presence of the jury. During the course of that conference defense counsel conceded that although he had finally decided not to raise the defense of entrapment, he had previously told the prosecutor he “would not waive the defense of entrapment.” Since an entrapment defense raises an issue as to the origin of the purpose to sell contraband, evidence of other sales is admissible to rebut the defense. (People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528; People v. Price (1974), 17 Ill. App. 3d 911, 309 N.E.2d 56.) In view of defense counsel’s admission, the prosecutor’s statement cannot be viewed as error since it was nothing more than a good faith effort to rebut the asserted defense of entrapment. Only after defense counsel made it clear that entrapment would not become an issue was it proper to sustain the objection, and at that point and thereafter the prosecutor properly refrained from any further reference to cannabis.

Defendant also contends that the prosecutor improperly brought his prior criminal record to the jury’s attention when defense witness Reggie Taylor was asked whether he had testified on defendant’s behalf on two previous occasions. Unlike the cases cited by defendant, here there was no explicit reference to any prior crimes, nor was there any attempt to identify the prior litigation as criminal. It was merely an impeachment attempt aimed at showing Taylor’s bias and was directed at Taylor’s statement that he had no close ties to either defendant or his wife. Since no specific reference to prior criminal activity was made, the case is similar to People v. Guyton (1972), 53 Ill. 2d 114, 290 N.E.2d 209. In Guyton, the following exchange took place during examination of a police officer:

“Q. You were the one that noted [defendant’s] speech impediment?
A. Yes, it’s always in the crime pattern, too, that — ,
THE COURT: That is not the question.
Q. There was a picture taken of [defendant] wasn’t there?
A. Yes sir.”

The court reasoned that since no specific reference was made to prior crimes and since no resulting prejudice was shown, no reversible error had occurred. A similar result is warranted here.

Defendant’s final contention is that the trial court improperly made his six-year sentence consecutive to that imposed in another case. Section 5 — 8—4(b) of the Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(h)) provides,

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.”

Defendant contends that this statute was not complied with since the judge did not explicitly state that defendant was being given a consecutive sentence because such a term is required to protect the public. Defendant cites People v. Green (1980), 83 Ill. App. 3d 982, 404 N.E.2d 930, which was remanded for resentencing because of the court’s failure to comply with section 5 — 8—4(b). Defendant cites the Green court’s statement that “[t]he language of the statute is explicit: the basis for the trial court’s imposition of consecutive sentences shall be set forth. An indirect acknowledgment of the statute’s purposes is insufficient.” (83 Ill. App. 3d 982, 988, 404 N.E.2d 930, 934.) While an isolated reading of this passage might support defendant’s assertion, we are persuaded that such an interpretation is not a fair reading of Green. The Green court emphasized that the reason for its ruling was that the “trial judge in the instant case failed to adequately specify his reasons for the imposition of a consecutive sentence.” (83 Ill. App. 3d 982, 988, 404 N.E.2d 930, 934.) On the same page the Green court went on to state that “[o]ne of the primary purposes of the provision * ° * is to enable reviewing courts to determine just what went into the sentencing decision * * The record in the instant case does not satisfy this purpose # *

In this case, immediately prior to sentencing the trial court admonished defendant as to the danger he posed because of repeated convictions for “serious drugs.” The court went on to state, “We’re not going to allow pushers and dealers in serious drugs to survive in this county, without facing the penalties — the stiff penalties * * On the basis of these statements we believe that the trial court complied with the dual purposes of section 5 — 8—4(b). The trial court here did set forth in the record its reasons for imposing consecutive sentences, and the reviewing court has been provided a basis for determining what considerations went into the sentencing decision. When the trial court’s reasoning for imposing consecutive sentences is undeniably set forth in the record, a formalistic recital that a consecutive term is needed to protect the public is not required.

For the reasons stated we affirm.

Affirmed.

KASSERMAN, P. J., concurs.

Mr. JUSTICE KARNS,

dissenting:

I do not believe that the defendant received a fair trial. Pittman was convicted on the testimony of Robert Gubin, who had 21 prior convictions for possession of drugs. As the majority opinion points out, he admittedly arranged the drug purchase in order to obtain leniency for himself. His testimony is subject to close scrutiny (People v. Bazemore (1962), 25 Ill. 2d 74, 182 N.E.2d 649), and the court should be particularly mindful to assure defendant a fair trial.

I consider the cross-examination of defendant’s witness Reggie Taylor to be reversible error. It told the jury that Pittman had twice been on trial and allowed the jury to infer that defendant was a “veteran” of prior criminal trials who likely had a record of prior convictions. In a case I consider close on the facts, I believe the admission of this evidence constituted reversible error.

I also believe the court imposed a consecutive sentence without making the explicit findings mandated by section 5 — 8—4(b) of the Unified Code of Corrections. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(b).) The court so held in People v. Green (1980), 83 Ill. App. 3d 982, 404 N.E.2d 930. I further doubt that the record supports the imposition of a consecutive sentence. The defendant had never been charged with the delivery of narcotics prior to the instant offense. Defendant is married, the father of five children, has completed three years of college and is trained as a journeyman pipefitter.


author:
Mr. JUSTICE WELCH
     Mr. JUSTICE JONES,

text:
    ELVIN L. ROBERTSON, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    Fifth District
    No. 79-599
    Opinion filed September 28,1981.
    JONES, J., dissenting.

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

delivered the opinion of the court:

On March 28, 1975, plaintiff, Elvin L. Robertson, filed a one-count complaint in the Circuit Court of St. Clair County against: (1) his employer, Kaskaskia Constructors (Kaskaskia); (2) Kaskaskia’s workmen’s compensation insurer, Travelers Insurance Company (Travelers); and (3) several employees of Travelers. The complaint alleged that defendants had caused plaintiff to suffer severe mental anguish, and that they had committed the tort of “outrage” against plaintiff by their handling of his workmen’s compensation claim. An amended complaint, filed on April 16, 1979, dropped Kaskaskia as a defendant, and a jury trial commenced on April 30, 1979. At the conclusion of plaintiff’s evidence the individual employees of Travelers were dismissed as defendants. A jury verdict in the amount of $150,000 compensatory damages and $2,000,000 punitive damages was returned against Travelers, and judgment was entered on the verdict. Travelers appeals that judgment.

The evidence presented was largely undisputed. It established that on June 25, 1971, plaintiff was a carpenter employed by Kaskaskia at the Fults Lock and Dam project. At that time plaintiff slipped and fell, and although an injury was sustained there was later a dispute as to whether one or both of his knees were injured. As a result of the injury plaintiff consulted several doctors for treatment, and Travelers paid for most of those expenses. The only benefit which plaintiff received directly was a temporary total disability payment which Travelers sent on March 22, 1972, and plaintiff received on March 30, 1972. Under the law as it then existed plaintiff was required to file his claim for workmen’s compensation before the Industrial Commission no later than one year after the date upon which he last received direct benefits (Ill. Rev. Stat. 1969, ch. 48, pars. 138.6(c)(3) and 138.8(a)). In plaintiff’s case the limitations period would therefore expire on March 30,1973.

■ Plaintiff testified that on March 14,1973, shortly before the statutory period would expire, he telephoned Travelers’ agent Thomas Walz. Walz had been in charge of plaintiff’s case and plaintiff had contacted him on several occasions. Plaintiff informed Walz that surgery on both knees would begin in the next month and Walz told plaintiff that Travelers’ name could be put on the bill. Walz admitted telling plaintiff that Travelers’ name could be placed on the bill, but Walz testified that in addition he told plaintiff that other agents were now in charge of the case and they would have to make the final decision on whether to. pay for the surgery. Plaintiff testified that he did not recall that portion of the conversation, but stated Walz may have said that.

On March 16,1973, supervisor James Balsiger wrote a memorandum to the claims representative, Rodger Nelson, who had been assigned to plaintiff’s claim. Balsiger noted:

“On March 14, Mr. Walz of our office received a phone call from this man [plaintiff]. The man indicated that he was going in the hospital in April to have his knee operated on. 0 * * The man asked Mr. Walz who would pay for this operation and apparently Mr. Walz told the man ‘they can put our name on the bill if they want to.’ What impression the man got from the statements I do not know.”

In the memorandum, Balsiger stated his belief that the claim was questionable because a medical diagnosis indicated that plaintiff’s condition may have been due to a degenerative health problem rather than caused by injury. He continued:

“As can be noted, the statute of limitations were run [sic] on this case on March 22, 1973. I would suggest that we contact this man and determine what doctor is going to do what to him and on what date. I would make it clear to him that we are accepting no responsibility for this and are not going to pay compensation. I think we are in such a position at this time that we cannot voluntarily accept this matter.”

Acting under the misapprehension that the statute of limitations would run on March 22, rather than March 30, Travelers’ employees made no attempt to contact the plaintiff before March 22. Claims representative Nelson conducted a lengthy interview of the plaintiff at his home on March 26. Nelson did not remind him of the running of the statute of limitations, but he did ask the plaintiff whether he had retained an attorney or filed a workmen’s compensation claim. The plaintiff responded in the negative.

On March 29, Nelson wrote the plaintiff a letter which stated:

“On examination of all information available regarding the above workmen’s compensation claim, we feel that your present complaints are not as a result of the above incident. Therefore, Travelers Insurance Company will not authorize or accept the responsibility of any additional medical treatment or temporary total disability benefits regarding the above incident. May I suggest you contact your Group Insurance carrier for possible Group Insurance Benefits?”

Plaintiff received this letter on April 2, 1973. Only then did he consult an attorney for the first time, and a formal application for adjustment of claim was sent to the Industrial Commission that same day.

Claims representative Nelson wrote a memorandum to the file on April 11,1973. He remarked that, in his view, the statute of limitations had expired before his interview and subsequent correspondence with the plaintiff. He further detailed:

“On 4-3-73, this writer discussed the above case with Supervisor Balsiger and Claims Attorney Knobbe and both of these individuals agree with this writer that the statute of limitations has expired and unless Mr. Robertson lied about retaining an attorney or previously filing an application, for adjustment, The Travelers Insurance Company should be ‘home free.’ ”

Travelers defended against plaintiff’s workmen’s compensation claim by asserting the statute of limitations. The issue was litigated by the parties, and finally resolved by the supreme court in Kaskaskia Constructors v. Industrial Com. (1975), 61 Ill. 2d 532, 337 N.E.2d 713. In that case the supreme court held that the Industrial Commission’s ruling, that Travelers was estopped from asserting the statute of limitations, was not contrary to the manifest weight of the evidence. It was only after that ruling that Travelers paid plaintiff’s claim plus accrued interest.

In the meantime the plaintiff, who was recovering from surgery, could not work. He was forced to borrow from relatives, go on public aid, and accept charity from the volunteer fire department of which he was a long-standing member, in order to provide for his family. This financial strain upset the plaintiff and caused him to become, in his own words, “highly nervous and forgetful.”

On appeal, Travelers attacks the judgment against it by advancing a number of arguments, of varying degrees of merit. As its first block of arguments, Travelers contends that the plaintiff may not bring an outrage suit against it, for such a claim is barred by (1) the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 767), (2) the exclusivity provisions of Illinois’ Workers’ Compensation Act (111. Rev. Stat. 1979, ch. 48, par. 138.5(a)), and (3) the Illinois and Federal constitutions. It then urges us to find that the plaintiff did not plead or prove that he was entitled to compensatory or punitive damages. Finally, it is claimed that various errors below denied Travelers a fair trial.

The tort of “outrage” or “intentional infliction of emotional distress” became a part of the law of Illinois two decades ago. (Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157). Although the Illinois Supreme Court has not been presented with the issue, other tribunals in this State have conceded, if occasionally only in dicta, that an insurer would be liable for its outrageous conduct. (Eckenrode v. Life of America Insurance Co. (7th Cir. 1972), 470 F.2d 1; Ledingham v. Blue Cross Plan (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540, rev’d on other grounds (1976), 64 Ill. 2d 338, 356 N.E.2d 75; Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 371 N.E.2d 373; Urfer v. Country Mutual Insurance Co. (1978), 60 Ill. App. 3d 469, 376 N.E.2d 1073; Siegal v. Health Care Service Corp. (1980), 81 Ill. App. 3d 784,401 N.E.2d 1037; Tobolt v. Allstate Insurance Co. (1979), 75 Ill. App. 3d 57, 393 N.E.2d 1171). Travelers seeks to avoid the application of the tort of outrage to the insurance industry by asserting that section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1979, eh. 73, par. 767) allows the plaintiff to recover attorney fees for an insurer’s “vexatious refusal to pay” and thus bars all other recoveries. However, in this case, the plaintiff was not an insured, but was a third-party claimant on a policy issued by Travelers, and as Travelers concedes, the remedies of section 155 are not available to third-party claimants. (Stamps v. Caldwell (1971), 133 Ill. App. 2d 524, 273 N.E.2d 489; Scroggins v. Allstate Insurance Co. (1979), 74 Ill. App. 3d 1027, 393 N.E.2d 718.) Therefore, even if section 155 would bar an outrage suit by an insured against its insurer, it cannot possibly preclude this suit by this plaintiff, who is not entitled to partake of the benefits accorded by section 155.

In a similar vein, it is argued that the plaintiff is not entitled to recovery beyond the scope of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138 — 1 et seq.) for outrageous conduct concerning an injury which would be compensable under that Act. Travelers directs our attention to Collier v. Wagner Castings Co. (1979), 70 Ill. App. 3d 233, 388 N.E.2d 265, where it was held that an employee could not sue his employer for outrage involving an on-the-job injury unless actual intent is alleged. Plaintiff Collier stated that his employer did not provide him with adequate medical care and did not arrange for him to be transported to a hospital, even though he exhibited symptoms of a heart attack while at work. Instead, defendant’s employees diagnosed plaintiff’s complaints as indigestion, and refused his requests for outside medical help for three hours, during which time the plaintiff vomited in a sink in defendant’s first aid station. A co-worker finally called the plaintiff’s wife, who took him to a hospital, where he suffered three episodes of cardiac arrest.

In a 2-1 decision, the Fourth District held that, while Collier’s complaint may have alleged “gross and wanton conduct” by the defendants, it did not plead that they acted with “actual intent to injure” him. Consequently, the action was said to have been barred by the exclusivity provisions of the Workers’ Compensation Act. (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a).) We do not believe that the result in Collier must be followed here, because this case is distinguishable from Collier on three grounds.

First, while Collier sued his employer, the plaintiff in this case sued his employer’s workmen’s compensation insurer. (Compare Ill. Rev. Stat. 1979, ch. 48, par. 138.11.) Second, while Collier sued for. injuries which occurred while he was “engaged in the line of his duty” (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)), this plaintiff sought compensation for injuries resulting from conduct which occurred long after he had ceased to work for Kaskaskia. Finally, even if Collier’s complaint failed to allege intentional conduct by the defendants, Robertson here claimed that Travelers “fraudulently and maliciously induced plaintiff to rely on their assurances of fair treatment until mroe [sic] than one year had elapsed since the date of last payment of compensation, before notifying plaintiff of their intentions not to honor their obligations under the workmen’s compensation act.”

The plaintiff specifically alleged that Travelers intended to injure him. Thus, the rule of Collier would not apply here by its own terms, even if Collier would be extended to cover outrageous conduct committed by the employer’s insurer outside the workplace. But see Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.

For similar reasons, this action is not superseded by the remedy of section 19(k) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(k)). According to its terms, that provision grants a penalty to the claimant for “unreasonable or vexatious delay of payment” of a workers’ compensation claim. The person or entity responsible for payment need not act with intent to injure the claimant in order to be liable under this section. (Board of Education v. Industrial Com. (1968), 39 Ill. 2d 167, 233 N.E.2d 362.) As plaintiff’s complaint alleged that Travelers acted with the intent to injure him, and as it claimed that Travelers did more than simply delay in paying him, it goes well beyond the requirements of section 19(k). To construe this section to prohibit plaintiff’s action for outrage would require us to read more into the language of this provision than is there. Defendant cites no authority for the proposition that this section bars recovery for delay in payment done with the intent to injure him, and we have not found any such case. The permissible recovery available under section 19(k) cannot be said to, bar plaintiff’s outrage suit.

As its final argument against the plaintiff’s ability to maintain this action, Travelers asserts that to allow this suit would deprive it of constitutional rights. This argument is somewhat nebulous, but, as we understand it, Travelers claims that the maintenance of this action materially impairs its contractual obligation to defend against the plaintiff’s claim, and thus Violates the contracts clause of the Illinois and Federal constitutions. We do not see how it can seriously be contended that to allow an outrage suit for the tortious processing of a workmen’s compensation claim is unconstitutional simply because the defendant is obligated by contract to assert defenses against that claim.

To summarize the arguments thus far, the plaintiff’s outrage suit against his employer’s workmen’s compensation insurer is not barred by the Illinois Insurance Code or Workmen’s Compensation Act, or on constitutional grounds. In order to determine whether the plaintiff has stated a cause of action for intentional infliction of emotional distress, and whether he is entitled to the damages granted at trial, we must examine those cases which have applied this tort to the handling of insurance claims.

The starting point for the application of the tort of outrage to the insurance industry in Illinois is our opinion in Ledingham v. Blue Cross Plan (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540, revd on other grounds (1976), 64 Ill. 2d 338, 356 N.E.2d 75. There, we noted that a plaintiff could sue an insurer under either of two tort theories. First, if the actions of the insurer are in bad faith and outrageous, the plaintiff may recover compensatory damages for the intentional infliction of emotional distress, but not punitive damages. Second, if the insurer makes threatened and actual bad faith refusals to pay, accompanied by false and threatening communications designed to cause the other party to surrender his policy or settle to his disadvantage, then punitive damages may be appropriate. There has been some controversy surrounding the existence of the second, “bad faith refusal” tort recognized in Ledingham and the availability of punitive damages under that tort. (See discussions in Lynch v. Mid-America Fire & Marine Insurance Co. (1981), 94 Ill. App. 3d 21, 418 N.E.2d 421, and Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 407 N.E.2d 156.) However, as noted above, Illinois law holds an insurer liable for its outrageous conduct in settling or handling a claim.

The plaintiff in Ledingham showed signs of an illness two days after the effective date of the policy issued by the defendant. The defendant refused payment because it asserted, according to an exemption in the policy, that the illness was contracted within 270 days before the effective date of the policy. We found no evidence that the defendant ever accused the plaintiff of fabricating her claim, that the defendant attempted to use false defenses to force her to settle, or that it acted to delay excessively her payments. It is obvious that the conduct of the defendant in Ledingham in no way resembles the conduct of the defendant in this case. Our finding of no outrageous activity in Ledingham thus does not control the result here.

In Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 114, 371 N.E.2d 373, 376, the plaintiff’s allegations of misconduct by the defendant were that it “ultimately denied liability under the disability policy, that it referred the plaintiff’s claim from its Illinois office to its Nebraska office, and that it offered to settle a disputed claim with the plaintiff in return for a sin-render of the policy.” The appellate court properly affirmed the dismissal of plaintiff’s complaint as it failed to allege specific facts which could be interpreted as outrageous conduct by the defendant.

Similarly, the dismissal of plaintiff’s complaint was affirmed in Tobolt v. Allstate Insurance Co. (1979), 75 Ill. App. 3d 57, 393 N.E.2d 1171. According to the complaint, the'insurer acted outrageously in failing to pay the plaintiffs the amount requested under a fire insurance policy. The court stated that the correspondence attached to the complaint showed that the insurer never disputed its liability. It only differed with the plaintiffs’on the amount of the loss, and, as the Illinois Department of Insurance suggested upon its review of thé case, there was a proper basis for dispute. The insurer did not make any abusive communications with the plaintiffs, or offer any untrue defenses. The complaint showed simply that the insurer “adjusted the loss based upon its own investigation and the independent investigation of plaintiffs’ public adjuster” (75 Ill. App. 3d 57, 65-66, 393 N.E.2d 1171, 1177) which is well within the realm of insistence upon one’s legal rights inn permissible way.

The plaintiffs in Ledingham, Debolt and Tobolt thus failed to allege outrageous conduct by their respective insurers. Indeed, our research has not uncovered a case in the courts of this State in which plaintiffs have met their burden of pleading against an insurer for this tort. However, in Eckenrode v. Life of America Insurance Co. (7th Cir. 1972), 470 F.2d 1, the Seventh Circuit found that the plaintiff had stated such a cause of action under Illinois law. The facts alleged to constitute outrageous conduct were as follows:

“Defendant’s life insurance policy covering plaintiff’s husband issued September 22,1967. Under the policy Insurer agreed to pay plaintiff $5,000 immediately upon due proof of death from ‘accidental causes.’ On December 17, 1967, insured was an accidental victim of a homicide. Plaintiff met all conditions of the policy and repeatedly demanded payment, but Insurer refused to pay. Decedent left plaintiff with several children, but no property of value. She had no money, none even for the funeral expenses. Denied payment by Insurer, she was required to borrow money to support her family, while her financial condition worsened. The family was required to live with, and accept charity from, relatives. -
FURTHER: Insurer knew or should have known of the death of decedent from accidental causes and of plaintiff’s dire need of the policy proceeds. Yet Insurer repeatedly and deliberately refused her demands for payment, and as a proximate result she was caused to suffer ‘severe distress and disturbance of [her] mental tranquility.’ Instead of paying her the proceeds of the policy, and being fully aware of the accidental cause of decedent’s death and of plaintiff’s financial distress, Insurer breached the policy promise to pay immediately upon proof of death. Insurer, knowing full well that plaintiff needed the proceeds of the policy to provide necessaries for her children, applied ‘economic coercion’ in refusing to make payment on the policy, and in ‘inviting’ plaintiff to ‘compromise’ her claim by implying it (Insurer) had a valid defense to the claim.”

When this case is compared to Eckenrode, it is apparent that the conduct of this defendant is at least as outrageous as the conduct held actionable by the Seventh Circuit. In some respects, the deviousness of Travelers’ employees renders their actions even more reprehensible. Furthermore, the plaintiff here suffered injury comparable to that suffered by Mrs. Eckenrode, as he was forced to go on public aid, borrow from relatives and accept charity from the church and volunteer fire department to which he belonged. He claimed that this financial distress, which the defendant knew would result from his hospitalization and subsequent recuperation without benefits, caused him serious mental strain. All of these facts, alleged by the plaintiff, show conduct significantly more outrageous than that in Ledingham, Debolt, and Tobolt. His complaint resembles that in Eckenrode, and thus states a cause of action in outrage under Illinois law.

Moreover, the evidence introduced at trial conforms to the allegations in the complaint. As this evidence was largely uncontested, we reject Travelers’ claim that neither the complaint nor the proof at trial is sufficient to establish its liability to the plaintiff.

However, we do agree with Travelers that the judgment entered against it was erroneous in one respect. When the tort of outrage was incorporated into the law of Illinois, the supreme court ruled that punitive damages may not be recovered in such an action. It was stated that “[s]ince the outrageous quality of the defendant’s conduct forms the basis of the action, the rendition of compensatory damages will be sufficiently punitive.” (Knierim v. Izzo (1961), 22 Ill. 2d 73, 88, 174 N.E.2d 157, 165.) As this theory has been a well-established part of the law in Illinois, we must reverse the portion of the judgment which awards punitive damages. Eckenrode v. Life of America Insurance Co. (7th Cir. 1972), 470 F.2d 1.

Since the case was tried upon a theory which would permit the recovery of punitive damages, we must assess the impact of this error on the rest of the judgment. In general, a new trial should be awarded if the case is tried under an erroneous theory of law. (Woolsey v. Rupel (1957), 13 Ill. App. 2d 48, 140 N.E.2d 855.) In this case, the trial court allowed the jury to hear evidence on matters which would only pertain to the award of punitive damages, such as testimony concerning the assets of the defendant. It permitted the lawyers to discuss the propriety of punitive damages in argument, and it instructed the jury that it could, if it chose, grant recovery in the form of these damages. The use of this erroneous theory at trial is beyond doubt.

However, the improper request for punitive damages could not have affected the jury’s decision that the plaintiff had established the defendant’s liability. That evidence, as we noted above, was largely unchallenged. Instead, we feel that the amount of compensatory damages could have been affected by a trial with a prayer for punitive damages. Where, as here, the reason that punitive damages are improper is because the conduct necessary to prove entitlement to those damages is the same as that required to recover compensatory damages, trial on a theory allowing for the recovery of both may have confused the jury and influenced its decision on compensatory damages. It is difficult to tell whether the jury would have awarded a greater amount, a smaller amount, or the same amount of compensatory damages, had the option of punitive damages been unavailable. It cannot be said then which party would be prejudiced by severing the award of punitive damages from the award of compensatory damages and affirming only the latter, but, to uphold the compensatory damage portion of the judgment would deny at least one party a fair trial on the issue of damages.

It appears to us, therefore, that an appropriate remedy would be to remand this cause for a new trial on the issue of damages alone. In order to invoke this procedure, we must find the damage issue to “be so separable and distinct from the issue of liability that a trial of damages alone may be had without injustice.” (Sommer v. City of Taylorville (1978), 59 Ill. App. 3d 765, 375 N.E.2d 1031, 1032.) The conduct leading to defendant’s liability is both undisputed and easily severable from the elements of damage suffered by the plaintiff. By granting a new trial on the issue of damages alone, we cure all prejudice which could have resulted from the references to punitive damages, and we use a remedy which seems ideally suited to the facts of this case.

Finally, Travelers mentions approximately a dozen errors which took place at trial and which were allegedly prejudicial. These errors relate predominantly to jury instructions, voir dire examination of jurors and the admission of certain testimony. Some of these errors were waived for failure to object to them at trial. Others relate solely to the issue of damages and need not be considered, given our disposition of the case. The remaining errors, when taken together, are insufficient to cast doubts on the jury’s determination of defendant’s liability to the plaintiff. They are, at most, harmless error.

For the reasons enumerated above, we affirm that portion of the judgment of the Circuit Court of St. Clair County which holds that the defendant is liable in outrage to the plaintiff. We reverse that portion of the judgment which grants punitive damages, and we remand this cause for a new trial on the issue of compensatory damages.

Affirmed in part, reversed in part, and remanded.

HARRISON, J., concurs.

Mr. JUSTICE JONES,

dissenting:

I respectfully dissent.

The majority has purported to analyze the Illinois law of intentional infliction of severe emotional distress without so much as mentioning the latest case of our supreme court to consider that tort. (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85,360 N.E.2d 765.) The omission immediately flaws the analysis, and it cannot be excused by the suggestion that some distinction exists when the tort of intentional infliction of severe emotional distress is applied to “the insurance industry.” There can be no such distinction, of course, for the tort possesses traits of its own that, when present, will apply to any area of law.

In Public Finance Corp. v. Davis, our supreme court considered in detail the tort of intentional infliction of severe emotional distress. The court commented upon the Restatement (Second) of Torts §46 (1965), law review articles and cases from other jurisdictions in deciding that upon the alleged facts before it no cause of action had been stated. No purpose would be served by reciting here the salient points of the Davis decision. We do not consider the sufficiency of the allegations in a complaint for the case has been tried and the facts are established. When those facts are considered in the light of Davis, it is apparent the plaintiff has failed to prove a tenable case.

No conduct of the defendant towards the plaintiff could be termed outrageous. From the time of plaintiff’s injury the defendant disputed whether there had been an injury to both his knees. Defendant paid several doctors for treating plaintiff and paid some temporary total disability payments, all pursuant to the Workmen’s Compensation Act. When plaintiff told agent Walz that he was to have surgery on both knees on March 14,1973, Walz told plaintiff that defendant’s name could be put on the bill. Walz stated that he also told plaintiff that other agents were in charge of the case and they would have the final decision on whether to pay for the surgery. Plaintiff stated that Walz “may have said that.” The Balsiger memorandum of March 16,1973, stated the belief that plaintiff’s condition resulted from a degenerative health problem rather than from an injury. The position thus taken was legitimate, founded on medical advice and not born of an insidious scheme to defeat plaintiff’s claim. In any event, the memorandum was strictly “in house” and was not communicated to the plaintiff. In the interview with plaintiff on March 26, representative Nelson said nothing about the statute of limitations, but he did inquire of plaintiff whether he had retained an attorney or filed a claim. Again, there was nothing in the conduct of Nelson at that time that could be considered outrageous. The Nelson letter to plaintiff on March 29 was apparently a follow-up of the March 26 visit and interview. Although doubtless a disappointment to the plaintiff, it is nevertheless a bland disclaimer of liability on the part of the defendant. The position taken in the memorandum had a legitimate foundation in medical opinion. A refusal to pay voluntarily under that circumstance cannot be termed outrageous.

The Nelson memorandum to the file written on April 11,1973, used a callous phrase, “The Travelers Insurance Company should be home free,” in reference to the fact that the statute of limitations on the filing of a workmen’s compensation claim had then run. However, that memorandum and that phrase were never communicated to the plaintiff and accordingly could not have caused him any distress.

Squarely applicable to this case is the quotation from Restatement (Second) of Torts §46, comment g (1965):

“The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.”

This excerpt from comment g was expressly adopted in Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 92, 360 N.E.2d 765, 768.

The majority characterized the “injury” to the plaintiff in the following terms:

“He was forced to borrow from relatives, go on public aid, and accept charity from the volunteer fire department of which he was a long-standing member, in order to provide for his family. This financial strain upset the plaintiff and caused him to become, in his own words, ‘highly nervous and forgetful.’ ”

It is submitted that the condition in which plaintiff found himself resulted from the mere denial of his claim by the defendant. In point of fact, defendant was not shown to have done anything other than deny plaintiff’s claim, and that denial was for legitimate reasons.

When plaintiff finally did retain an attorney and file his claim for workmen’s compensation, the arbitrator who heard his case denied the claim on the grounds that it was barred by the statute of limitations. The Industrial Commission reversed on the grounds that plaintiff’s physical condition was not yet permanent, and the circuit court affirmed the Industrial Commission. On appeal, the supreme court in Kaskaskia Constructors v. Industrial Com. affirmed, with two justices dissenting. Thus, the fact that in the workmen’s compensation adjudication procedure the arbitrator entered an order favorable to defendant and the ultimate decision for plaintiff was by a divided supreme court belie any assertion that defendant’s conduct in denying liability and placing reliance on the statute of limitations was outrageous conduct. To the contrary, it can be said that plaintiff’s distress was the result of his own failure to retain an attorney when defendant first ceased the payment of temporary total compensation. By his own action plaintiff could have alleviated the severity of his circumstances, and it is improper to lay the blame upon defendant when all it had done was assert its legal rights.

The facts of this case are far afield from those in the Eckenrode case, and the conduct of the defendant here cannot be deemed equivalent to the conduct of the defendant in that case.

The finding of “outrageous conduct” by the majority here will cast a pall upon the insurance business in Illinois. The denial of a claim, no matter how justifiable, will inevitably bring forth a two-count complaint for compensation, one count for recovery under the policy, and the second for intentional infliction of severe emotional distress. Under the authority of the majority decision it will in all cases be merely a question for the jury.

Not only do I disagree with the treatment of the “outrageous conduct” aspect of the case, I also disagree with the propriety of remanding the case for a new trial as to damages. However, in the interest of brevity I will not comment beyond an expression of disagreement.

       Judge Thomas M. Welch replaced Judge Dorothy W. Spomer on the panel as Judge Spomer retired from the bench during the pendency of this appeal.


author: Mr. JUSTICE WELCH

text:
    STEVE MONTEFELICE, Plaintiff-Appellee, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Defendant-Appellant.
    Fifth District
    No. 80-510
    Opinion filed September 30,1981.
    Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Richard M. Roessler and William P. Gavin, of counsel), for appellant.
    Jon G. Carlson, of Granite City (William J. Harte, of counsel), for appellee.
   Mr. JUSTICE WELCH

delivered the opinion of the court:

Steve Montefelice is employed as a switchman by the Terminal Railroad Association of St. Louis. In the evening of January 5, 1978, he was riding on the caboose of a train in General Motors’ Pickerel Railroad Yard in St. Louis. He saw another train, unguarded by a switchman, heading toward the caboose from an adjoining track. Montefelice leapt from the caboose to avoid the imminent collision, but as he jumped to safety he struck a railroad car on another line, injuring his back.

Suit was brought in the Circuit Court of Madison County against Terminal under the Federal Employers’ Liability Act (FELA) (45 U.S.C. par. 51 et seq. (1976)). Following the presentation of the plaintiff’s evidence, Terminal admitted its negligence and the plaintiff’s lack of contributory negligence. The jury assessed Montefelice’s damages at $200,000 and judgment was entered on that verdict. In this appeal, Terminal claims that it was denied a fair trial because (1) the plaintiff was allowed to introduce evidence that he had been threatened with discharge for bringing this action, and (2) it was improperly restricted in cross-examining a medical witness for the plaintiff.

The propriety of evidence concerning wrongful discharge in FELA actions has been discussed in several cases from other jurisdictions. In Reanland v. Chicago, Rock Island & Pacific R.R. Co. (8th Cir. 1973), 480 F.2d 109, the plaintiff was injured as he jumped from a train. A collision followed, in which a brakeman on his train was killed. The plaintiff was discharged, and he sued his employer in Federal court. His complaint stated three causes of action; the first was brought under FELA to recover for injuries caused by the negligence of his employer, and the last two were breach of contract and conspiracy counts, respectively, in which the plaintiff sought recovery for wrongful discharge. The FELA count was severed from the others and tried separately. During the course of that trial, plaintiff’s counsel asked several medical witnesses hypothetical questions which referred to the death of the brakeman and to the plaintiff’s discharge. The purpose of these questions was to assess the effect of these incidents on the plaintiff’s mental condition.

On appeal, the defendant challenged the trial court’s decision to permit the use of these questions. In considering the discharge portion of the questions, the circuit court noted that “[djamages resulting from intentional acts, such as the discharge, have no place in a personal injury FELA action which deals exclusively with negligence.” (480 F.2d 109, 113.) It was concluded that evidence of the discharge was prejudicial error.

Montefelice argues that Beanland is distinguishable from this case. He states that, whereas Beanland did not relate the intentional act of discharge to his injuries from the collision, he contends that he suffered psychological damage because of the collision and that the later threats made by defendant’s employees only aggravated his condition. Whether or not this distinction would be significant enough to disregard Beanland, the fact remains that Beanland did argue, as does Montefelice, that “since the testimony of the medical witnesses related the mental injury and worry to the physical trauma, damages for such mental anguish were proper herein.” (480 F.2d 109, 112.) Beanland thus cannot be distinguished for the reasons given by the plaintiff.

The Beanland decision is in accord with other cases which have found the introduction of evidence or argument concerning a plaintiff’s discharge to be prejudicial in a FELA action. (Kelly v. New York, New Haven & Hartford R.R Co. (D. Mass. 1956), 138 F. Supp. 82; Loftin v. Howard (Fla. 1955), 82 So. 2d 125.) To prohibit this evidence is at least as warranted when, as here, the plaintiff has not been discharged, but has only been threatened in that regard. Because the decisions of the Federal courts in interpreting a Federal statute such as the FELA are to be considered as controlling (Elgin, Joliet & Eastern Ry. Co. v. Industrial Com. (1956), 9 Ill. 2d 505, 138 N.E.2d 553), we must apply the rule of Beanland to this case and conclude that the evidence of discharge threats made to the plaintiff should not have been introduced. The defendant is therefore entitled to a new trial, although, as has been mentioned above, the only contested issues remaining pertain to plaintiff’s damages.

As a new trial must be held because of the evidence of discharge threats, it is not strictly necessary to examine the second assignment of error. However, to ensure a fair trial on remand, we will consider this argument nonetheless. Essentially, the defendant complains of its inability to cross-examine one of plaintiff’s medical witnesses about his surgical experience.

The witness in question, Dr. Deitchman, a psychiatrist, began to treat Montefelice after the January 1978 accident, and after a facet rhizotomy had been performed on him by a Dr. Schaerer, who did not testify at trial. As explained by plaintiff’s witness Dr. Goldenberg, certain back pain may be alleviated by destroying the nerve to one or more facet joints which lie between the vertebrae. Montefelice underwent this procedure, known as a facet rhizotomy, to reduce a burning sensation in his lower back and buttocks. After the operation, he still felt this pain, and he went to Dr. Deitchman to receive treatment for the psychological aspects of his injury. Deitchman did not ask Dr. Schaerer about the procedure used on Montefelice’s back, nor did he ever consult with Dr. Goldenberg, who was generally responsible for treating Montefelice. Dr. Deitchman did tell Montefelice “that his complaints had a connection with the trauma [the accident] and that whatever procedures [were] followed may not have given him complete relief.”

Before Deitchman took the stand, plaintiff’s counsel made a motion in limine to prevent defense counsel from cross-examining Deitchman about his understanding of facet rhizotomy procedures. The court, reasoning that the rhizotomy was a specialized operation far outside Deitchman’s normal practice, allowed the motion. Terminal assigns this as error.

As a general proposition, the scope of cross-examination of witnesses is entrusted to the discretion of the trial court. But, a wide latitude should be granted to attorneys in their cross-examination of expert witnesses, in order to test their opinions, which are usually on subjects which are not of common knowledge. Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, cert, denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204; City of Chicago v. Avenue State Bank (1972), 4 Ill. App. 3d 235, 281 N.E.2d 66.

The plaintiff does not disagree with these principles, but states that the court’s order should be upheld under the authority of Lilegdon v. Hanuska (1967), 85 Ill. App. 2d 262, 229 N.E.2d 314. The plaintiff, Mrs. Lilegdon, was injured in a collision with defendant’s automobile. Some time after the collision, a hysterectomy was performed on her. Defendant introduced a witness, Dr. Petty, who testified that Mrs. Lilegdon had made a complete recovery before the hysterectomy was performed, and therefore there was no relation between the collision and the hysterectomy.

Plaintiff’s counsel cross-examined Dr. Petty to show his lack of experience with this type of surgery. Dr. Petty replied that he had performed a hysterectomy at Augustana Lutheran Hospital some time during the past six months. As rebuttal evidence, plaintiff endeavored to call as a witness the record librarian of that hospital to testify that Dr. Petty had not performed such an operation there. The trial court did not allow the use of this witness, stating that this testimony was not solely related to Dr. Petty’s qualifications and that the offered impeachment did not pertain to the ultimate issues and facts in the case. This ruling was upheld on appeal.

From Lilegdon, Montefelice urges us to affirm the trial court’s restriction of Terminal’s cross-examination of Dr. Deitchman. He claims that Deitchman’s knowledge of facet rhizotomy procedures is not material to the issues and ultimate facts in this case. However, it is a mistake to apply the language of Lilegdon directly to this case. This is because the plaintiff in Lilegdon offered to impeach Dr. Petty with extrinsic evidence, which may not be done on a collateral matter (Sullivan v. Fawver (1965), 58 Ill. App. 2d 37, 206 N.E.2d 492), while in this case, the defendant desired to cross-examine Dr. Deitchman about his surgical knowledge and experience. In Lilegdon, the court permitted the plaintiff to test Dr. Petty’s knowledge by cross-examining him on his familiarity with hysterectomy operations. To us, this portion of Lilegdon is entirely in agreement with the policy behind cross-examination of expert witnesses, and is a closer analogy to the cross-examination requested by Terminal than is the offered rebuttal evidence refused by the Lilegdon trial court.

Unlike the trial judge in this case, we do not believe that Dr. Deitchman’s occupation as a psychiatrist immunizes him from cross-examination on surgical procedures. Where a medical witness makes a diagnosis based entirely or in part on the success or failure of a surgical procedure, that witness’ knowledge or experience concerning that procedure is a proper subject for cross-examination, even if that procedure is not within the witness’ normal area of practice. For this reason, the trial court improperly restricted Terminal’s cross-examination of Dr. Deitchman.

In conclusion, this cause is remanded to the Circuit Court of Madison County for a new trial on the issue of plaintiff’s damages. The plaintiff may not refer to threats of discharge made to him by defendant’s employees, and the defendant is not to be prevented from cross-examining Dr. Deitchman concerning his experience with facet rhizotomy operations.

Affirmed, in part, reversed in part, and remanded.

KASSERMAN, P. J., and JONES, J., concur.