author: JUSTICE EGAN JUSTICE RAKOWSKI,

text:
    CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Plaintiff-Appellant, v. ALLIANZ UNDERWRITERS INSURANCE COMPANY et al, Defendants (St. Paul Fire and Marine Insurance Company, Defendant-Appellee).
    First District (6th Division)
    No. 1—91—1735
    Opinion filed January 22,1993.
    Modified on denial of rehearing April 30,1993.

      RAKOWSKI, J., dissenting.
    Kevin M. Forde, Ltd., of Chicago, Sorling, Northrup, Hanna, Cullen & Cochran, of Springfield, and Anderson, Kill, Click & Oshinsky, of New York, New York (Lester 0. Brown, Stephen R. Kaufmann, and Kevin M. Forde, of counsel), for appellant.
    Adams, Duque & Hazeltine, of San Diego, California (Mitchell L. Latrop, David R. Gold, and Sharon Engel, of counsel), and Kitch, Saurbier, Drutchas, Wagner & Kenney, of Detroit, Michigan (Stephen Kelley and Mary Lou Korejwo, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Central Illinois Public Service Company (CIPS), appeals from an order granting summary judgment to the defendant, St. Paul Fire & Marine Insurance Company (St. Paul).

In December 1969, St. Paul issued a comprehensive general liability policy to Middle West Service Company (Middle West). Middle West was the administrator of the Risk Management Trust, an organization formed by a group of utilities, which included the plaintiff, to secure insurance coverage for certain risks. The policy at issue was purchased by Middle West and provided coverage through December 31, 1972. The premium for the policy was $30,000 per year. According to St. Paul’s motion for summary judgment, at the time it issued the policy, St. Paul did not know that Middle West was acting as an intermediary and that the insurance coverage St. Paul was issuing was actually for 21 independent utility companies. The plaintiff denies this.

The policy was an “occurrence” policy, as distinct from a “claims made” policy. Under an “occurrence” policy, a claim for liability resulting from damage or injury which happened during the policy period may be made after the policy is terminated.

St. Paul sought to limit the number of insureds under the policy, but Middle West would not agree to such a limitation. St. Paul never sought rescission or reformation of the policy. In June 1972, six months before the policy was to terminate, the parties agreed to end coverage. On June 23, 1972, a document entitled “Lost Policy Receipt” was executed and contained the following provision:

“In consideration of the return premium shown above, I (we) hereby surrender, release and relinquish all of my (our) rights, title and interest [in the policy] and all advantages to be derived therefrom, and said insurance policy having been lost or mislaid, I (we) agree to make no claim whatever for any loss or damage on which the company would be liable under the policy, and to return the policy, if same should be found, to the company forthwith, and without further compensation, and I (we) certify that said insurance policy has not been assigned or transferred in any manner whatsoever.”

St. Paul returned to Middle West $15,000 representing a return premium for the six-month period remaining in 1972.

In August 1987, CIPS brought a declaratory judgment action seeking a declaration of the parties’ rights and obligations with respect to environmental damage sustained at a gas manufacturing site in Taylorville, Illinois, during the period the policy was in effect before the execution of the Lost Policy Receipt. St. Paul moved for summary judgment, arguing that it had no duty to defend or indemnify the plaintiff under the policy because of the language of the Lost Policy Receipt. The trial judge granted summary judgment to St. Paul. He held that the terms of the Lost Policy Receipt were unambiguous, and he refused to receive any extrinsic evidence. The judge, however, reviewed the extrinsic evidence offered by the plaintiff and found that the evidence was “useless.”

The plaintiff contends that summary judgment was improperly granted because the Lost Policy Receipt was ambiguous on its face; that if it was not ambiguous on its face, extrinsic evidence should have been permitted; and that if St. Paul’s interpretation of the policy is correct, the Lost Policy Receipt was not supported by consideration. St. Paul maintains that the question of whether the receipt was supported by consideration was not argued in the trial court and is, therefore, waived in this court.

After oral argument in this court, we requested further briefing on the issue of consideration. In the memorandum submitted by St. Paul at our request, it again maintains that the plaintiff had waived any argument that the Lost Policy Receipt lacked consideration; alternatively, St. Paul argues that the Lost Policy Receipt was supported by consideration. We have determined that the plaintiff did not waive the argument that the lost policy agreement lacked consideration, although we concede that the argument was not advanced with the same specificity that it could have been in the trial court and was advanced in this court.

In its motion for summary judgment St. Paul said that the Lost Policy Receipt was “supported by bargained-for consideration.”

In response to the motion for summary judgment, the plaintiff said this:

“In return for the release, CIPS received a refund of $15,000 which represented the premium amount for the remaining six months. St. Paul retained $75,000 in premium payments. It is nonsensical to interpret the Receipt as forfeiting CIPS’ rights to pursue claims for liability resulting from damage or injury which happened during the period of time the policy was in effect and for which CIPS paid for coverage. If the release is interpreted as urged by St. Paul, CIPS paid $75,000 for nothing. *** Although St. Paul opines that CIPS ‘enjoyed the benefits of coverage’ until July of 1972, it fails to explain what those benefits could possibly be in light of its argument that, as of July 1, 1972, CIPS intended that the $75,000 it had paid for coverage actually purchased nothing.”

To that argument of CIPS, St. Paul replied:

“CIPS states, that there would be no surrender of a policy if the carrier retained a portion of the premium paid, because in so doing the insured would have paid for nothing. However, the logical corollary to this argument is that if a person buys a homeowner’s policy against the risk that his house will burn down and his house does not burn down, that he had paid for nothing. The argument reveals a disturbing failure to grasp the nature of insurance. St. Paul’s contention is, and has been, that if CIPS had tendered a covered claim prior to the cancellation of the policy, that claim would have been paid. CIPS had coverage for the two and one-half years that the policy was in effect and premiums were retained for that period of time.” (Emphasis added.)

The judge did consider the plaintiff’s argument as evidenced by these remarks:

“CIPS poses an honest question: Why would it pay $75,000 for no coverage? One can only speculate. The policy had been lost. The kinds of pollution occurrences involved in this case were relatively unknown at the time. It is not my role to answer that kind of question when the language of the Receipt is clear.”

Parenthetically, we observe that it was St. Paul that revealed a failure to grasp the distinction between an “occurrence policy” and a “claims made” policy.

St. Paul has cited Kellan v. Board of Trustees of the Firemen’s Pension Fund (1990), 194 Ill. App. 3d 573, 551 N.E.2d 264, in support of its argument that the plaintiff has waived any argument concerning lack of consideration. The Kellan case is authority against St. Paul. In Kellan, the court noted that the general rule that matters not raised in the trial court may not be raised for the first time in a court of review is a limitation on the parties and not on the court, which has the responsibility for a just result. The court also noted that at the administrative hearing, the plaintiff, a firefighter seeking disability benefits, had in fact raised the argument allegedly waived, although not in the precise fashion he did in the circuit court on administrative review and in the appellate court. The plaintiff argued in the circuit court that the injury he received aggravated a preexisting injury. The defendant pension fund argued that he had waived that argument by failing to make it at the administrative level. The argument was made at the administrative level that the injuries to the plaintiff’s back suffered while on duty were contributing factors to his back problems. The appellate court held that there was no reasonable distinction between an argument that an act contributed to one’s condition and an argument that the act aggravated a preexisting condition.

We repeat that the plaintiff could have posited the issue much more clearly to the trial judge; and we agree with St. Paul that the absence of waiver is clearer in Kellan than it is in this case. But we judge that the burden of establishing waiver of a legal argument should be on the party asserting it. While it may be doubtful to some persons whether the plaintiff here raised the question of lack of consideration, we believe that any doubt should be resolved against St. Paul. Moreover, the facts of this case call for invocation of the exception to the waiver rule recognized in Kellan that the waiver rule is a limitation on the parties and not on the court, which has the responsibility for a just result. (See also Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.) For these reasons, we hold that the plaintiff has not waived the right to argue in this court that the lost policy agreement lacked consideration.

Both parties agree that to be enforceable the Lost Policy Receipt, like any contract, must be supported by consideration. The receipt, which is characterized by St. Paul as a “release,” provides that the consideration is the return of the $15,000 unearned premium. In its brief, St. Paul said this:

“CIPS agreed, in lieu of limiting the number of insureds under the policy, to cancel the policy and to make no claims, in consideration for which St. Paul would return the remaining premium. St. Paul could not unilaterally cancel the policy, CIPS bargained for and got consideration for the early termination.”

Although the right to cancellation is not dispositive of the issue of consideration, it is appropriate to address that right. The policy itself provides that the policy “may be cancelled by either party upon written notice”; the notice was to be not less than a specific number of days. If cancelled by the insured, “adjustment of premium shall be at short rate and if cancelled by the [insurer], adjustment shall be pro rata.” St. Paul denies it had an absolute right to cancel, despite the language of the policy, and cites section 143.16a of the Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755.16a). That section provides that policies of insurance, with some exceptions, may be terminated for only certain express reasons. Section 143.16a was not in effect when the policy of insurance was issued in 1972. At that time the reasons justifying cancellation expressed in section 143.16a applied only to “fire and extended coverage insurance” (Ill. Rev. Stat. 1971, ch. 73, par. 755.1a) and to automobile liability insurance (Ill. Rev. Stat. 1971, ch. 73, par. 755.3). Therefore, we have strong doubts that St. Paul’s right to cancellation in 1972 was subject to the same restrictions now contained in section 143.16a. In any event, our discussion on this point is academic because St. Paul maintains that it sought to cancel because of an increased risk, which is one of the reasons justifying cancellation under section 143.16a. In addition, St. Paul also alleges that Middle West made misrepresentations to St. Paul upon which St. Paul relied. A misrepresentation is another ground for cancellation under section 143.16a. We will discuss misrepresentation later.

Finally, lest our extensive discussion on this point be misunderstood, we wish to make it clear that whether St. Paul had an absolute right to cancel the policy is irrelevant.

In Knights Templars & Masons Life Indemnity Co. v. Crayton (1904), 209 Ill. 550, 70 N.E. 1066, an insurance company denied that it was liable on a $5,000 life insurance policy because the deceased had committed suicide. The insurer agreed that it was liable for $179, which was the amount of assessments paid on the policy. The payment of $179 was made by a check which contained the following language: “Being payment in full of all demands under policy No. 2174, on the life of John Crayton, deceased.” (Emphasis added.) (209 Ill. at 553.) Upon receipt of the check, the representative of the estate surrendered the policy and endorsed a receipt which purported to be “in full of all claims under the within policy.” The insurer argued that by accepting the $179 “in full of all demands” under the policy, the agent of the insured had released the insurer for payment of the $5,000 death benefit. To that argument the supreme court said this:

“By its supposed settlement with the guardian it paid her one of the sums that it owed to her. There was no question about that amount being due, and the payment of it could not, in any sense, be said to be a settlement of anything. It was simply payment of a sum of money due. *** By the payment of a portion of a whole debt, or by the payment of one of two entire debts, the appellant could not, by any stipulation made with the guardian, be released from its liability to pay the entire debt thus owing, and the release relied upon was ineffectual because there was no consideration for it. [Citations.]” (Knights Templars, 209 111. at 558.)

Knights Templars was cited in Smyth v. Kaspar American State Bank (1956), 9 Ill. 2d 27, 136 N.E.2d 796, for the holding that “[t]he payment of a sum admittedly due furnishes no consideration for the discharge of an additional disputed liability, even where such sum is accepted as full payment.” 9 Ill. 2d at 43.

Knights Templars was also cited in DeSoto Life Insurance v. Jeffett (1946), 210 Ark. 371, 196 S.W.2d 243, in which the insured made a claim for total disability. The insurer began payments of $200 a month. The insurer was three months behind in payments and eventually sent the insured a check for one month. The insured went to the office of the insurer and signed the following instrument: “In consideration of the sum of $400 paid to me this 24th day of May, 1945, I do hereby release the DeSoto Life Insurance Company from the total disability clause in [the policy] and agree to go on partial disability according to the terms of [the policy] ***.” (DeSoto, 210 Ark. at 373, 196 S.W.2d at 244.) Citing several cases from other jurisdictions, the supreme court of Arkansas noted the general rule that “the payment of a liquidated, undisputed, matured obligation does not furnish a consideration for the release of any additional obligation.” DeSoto, 210 Ark. at 377, 196 S.W.2d at 246.

We see no material distinction between this case and Knights Templars. Cancellation did not require consideration, and no release was required. Return of unearned premiums, however, is a condition precedent to cancellation of a policy. (Annes v. Carolan, Graham, Hoffman, Inc. (1929), 336 Ill. 542, 168 N.E. 637.) When St. Paul returned the unearned premium, it gave the plaintiff nothing more than the plaintiff was entitled to receive as a matter of law. In our judgment, St. Paul’s tender of the unearned premium of $15,000 (the sole consideration recited in the receipt) does not constitute consideration for the release of the plaintiff’s claims under the policy.

In the memorandum submitted at our request after oral argument, St. Paul identifies the consideration supporting the receipt as follows:

“In the instant case the entire reason for cancelling the policy was because the premium charge did not reflect the risk that was being insured. St. Paul intended to insure one utility company and its subsidiaries, instead it found itself insuring 21 separate utility companies. St. Paul returned the unearned premium and waived its opportunity to prove misrepresentation, mistake or fraud. This waiver constitutes consideration for the release.” (Emphasis added.)

This argument is not only of very questionable legal validity, but it is factually at odds with the record. St. Paul filed an answer and 34 affirmative defenses. The 34th affirmative defense is based on the Lost Policy Receipt. The 9th affirmative defense is as follows:

“Coverage is barred in whole or in part to the extent that CIPS, negligently or intentionally, failed to disclose, concealed or misrepresented facts which were material and were known by CIPS to be material to the risk allegedly undertaken by St. Paul for the purpose of inducing St. Paul to issue or renew its policy to CIPS.”

The 28th affirmative defense is as follows:

“St. Paul is not liable in any manner set forth in the second amended complaint since CIPS is barred from any recovery by reason of the equitable doctrine of unclean hands.”

The cases cited by St. Paul are not apposite. In two of the cases the insurers introduced evidence that they had undertaken an increased risk justifying the retention of premiums. In another, Nelson v. Fire Insurance Exchange (1987), 156 111. App. 3d 1017, 510 N.E.2d 137, the plaintiffs cashed a check from their insurance company which contained printed language to the effect that endorsement of the check constituted a release of all claims against the company. The plaintiffs crossed out that language from the check and cashed it. The court found that by cashing the check, which was for a sum which was disputed by the insurance company and less than the plaintiffs claimed they were due, the plaintiffs effected an accord and satisfaction. The court said: “If there is an honest dispute between the parties, a tender by the debtor with the explicit understanding of both parties that it is in full payment of all demands, and in acceptance by the creditor, there is an accord and satisfaction.” (Emphasis added.) (Nelson, 156 Illz. App. 3d at 1020.) In the case before us, the record does not establish as a matter of law that there was an honest dispute between the parties.

Although the request we made to the parties after oral argument asked that they address only the question of consideration, St. Paul's memorandum also argued that the plaintiff’s claim was barred by the statute of limitations and laches. We note that the statute of limitations, which was never argued by St. Paul in the trial court, or in this court, is the fourth affirmative defense filed by St. Paul. Laches had not even been pleaded.

We accept St. Paul’s argument and the trial judge’s finding that the Lost Policy Receipt was not ambiguous and that extrinsic evidence was not admissible, but we cannot accept St. Paul’s claim, based on the record before us, that St. Paul has established as a matter of law that the plaintiff’s claim is barred by the statute of limitations or laches. We are passing only on the issue that has been presented to us: Was the plaintiff entitled to summary judgment? We hold, based on the record before us, that St. Paul has not established as a matter of law that the Lost Policy Receipt was supported by consideration.

Before closing this opinion we will address St. Paul’s petition for rehearing. First, St. Paul tells us that our invocation of the exception to the rule that matters not raised in the trial court are waived on review is an unprecedented departure from the rule and is an abridgment of the legislature’s determination that lack of consideration is an affirmative defense which the plaintiff was required to, and did not, plead. Second, St. Paul tells us that we have deprived St. Paul of the right to prove lack of consideration.

In response to St. Paul’s first argument, we point out that an insurance policy is often more than a contract between two parties; very often the public interest is involved. We note that the cases our research has disclosed which recognize the public interest of insurance policies are automobile liability policies (see, e.g., Allstate Insurance Co. v. Keller (1958), 17 Ill. App. 2d 44, 149 N.E.2d 482), but we believe that policies covering pollution of the environment necessarily also involve the public interest. They are, to use the language of the case cited by St. Paul, matters of “great public importance.” (Cf. People ex rel. Baylor v. Bell Mutual Casualty Co. (1973), 54 Ill. 2d 433, 439, 298 N.E.2d 167, 171 (the fact that the trial court did not specifically rule on the interpretation of the Insurance Code by the Director of Insurance did not preclude review by the supreme court; supreme court found the issue to be “of great public importance”).) The nature of the policies in this case, therefore, provides a strong reason for avoidance of the strict provisions of the general waiver rule.

To St. Paul’s second argument, we repeat our emphasis that we were passing only on the question of whether summary judgment was properly granted. If St. Paul can establish to the trial court’s satisfaction, under any legal theory or any set of facts, that the Lost Policy Receipt was supported by consideration, by all means it should be given the opportunity to do so. We said only that St. Paul had not established consideration as a matter of law to our satisfaction based on the arguments St. Paul advanced. We also pointed out that St. Paul’s claim that consideration existed because it had “waived its opportunity to prove misrepresentation, mistake or fraud” was contrary to the record. The ninth affirmative defense, to which we have previously referred, alleges fraud on the part of the plaintiff, and if proved, would entitle St. Paul to rescission. That defense will still be pending in the circuit court after this case is remanded.

In this regard we disagree with St. Paul’s argument in the petition for rehearing that a claim for rescission is not contained in its affirmative defenses. When one party commits fraud in the execution of a contract, the other party has an election of remedies. He may seek rescission or damages in either contract or tort. (See Sciarabba v. Chrysler Corp. (1988), 173 Ill. App. 3d 57, 527 N.E.2d 361.) The ninth affirmative defense is not a claim for damages.

In the petition for rehearing, St. Paul argues that when it agreed to issue the policy to Middle West, St. Paul had not realized it was insuring an additional 21 companies. The plaintiff argues that St. Paul’s argument is not tenable because it calls upon this court “to look to extrinsic evidence on the issue of intent” and that St. Paul has failed to establish that its intent resulted in an agreement between the parties to execute the Lost Policy Receipt. The plaintiff then argues the merits of St. Paul’s contention that it did not know it was insuring 21 independent utilities.

The issue of St. Paul’s intent involves a question of fact and is not properly before us. Like the issue of consideration and the other affirmative defenses raised by St. Paul, the question of St. Paul’s intent, if pertinent, may be resolved by the trier of fact. Under certain circumstances a contract may be rescinded where there is a material mistake of fact going to the essence of the contract.- (17 C.J.S. Con tracts §111 (1991).) Fairness requires that St. Paul should be permitted to plead and prove its right to rescission based on a material mistake of fact.

For these reasons the order granting summary judgment to St. Paul is reversed and the cause is remanded for further proceedings consistent with this opinion.

Judgment reversed and remanded.

McNAMARA, P.J., concurs.

JUSTICE RAKOWSKI,

dissenting:

At the trial level, the only issue argued by the parties and considered by the trial judge was whether the release was ambiguous. Lack of consideration was never an issue. Yet, on appeal, the case is decided based upon lack of consideration (an issue never raised by CIPS) and the opinion fails to even mention the issue of ambiguity. For the following reasons, I believe that the refusal to apply the waiver doctrine to this case is not in accord with Illinois law and resulted in manifest prejudice to St. Paul. Parenthetically, I construe the majority’s silence on the ambiguity issue to mean that they agree with the trial judge that the release is unambiguous. With this, I am in complete accord.

The record in this case exceeds 2,500 pages and CIPS’ 165-count declaratory complaint alone exceeds 600 pages. Nowhere does CIPS ever mention lack of consideration. The only time consideration was ever mentioned below was in St. Paul’s motion for summary judgment, wherein it is alleged that the Lost Policy Receipt was supported by bargained-for consideration. This allegation was not disputed by CIPS. The majority, in reasoning that CIPS raised lack of consideration below, refer to one paragraph (out of a 2,500-page record) wherein CIPS argues that “[i]f the release is interpreted as urged by St. Paul, CIPS paid $75,000 for nothing.”

This argument, however, was made in an ambiguity issue context. CIPS was attempting to show that St. Paul’s construction was not a reasonable one and that as a result the release was ambiguous. This point is reinforced by the trial judge’s statement:

“CIPS poses an honest question: Why would it pay $75,000 for no coverage? One can only speculate. The policy had been lost. The kinds of pollution occurrences involved in this case were relatively unknown at the time. It is not my role to answer that kind of question when the language of the Receipt is clear.” (Emphasis added.)

Both parties are experienced business entities, represented by more than adequate legal counsel, and lack of consideration is not exactly a remote legal concept. I find it inconceivable for CIPS to maintain that it raised the issue below, yet agree that it never once mentioned lack of consideration in the lengthy record. The issue was simply not raised below. As such, one can only conclude that the issue was not raised by design.

It is well settled that issues not raised in the trial court are generally waived on appeal. (Western Casualty & Casualty Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872.) The reasoning underlying this general precept is that the appellate court should not consider different theories or new questions on appeal, if proof might have been offered to refute or overcome them had they been presented below. Carter v. Dunlap (1986), 138 Ill. App. 3d 58, 60, 484 N.E.2d 1273, citing Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram, & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1052, 452 N.E.2d 804. See also Klubeck v. Division Medical X-Ray, Inc. (1982), 108 Ill. App. 3d 630, 635, 439 N.E.2d 506; McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 528, 515 N.E.2d 157.

While there is support for the majority position that the waiver rule is a limitation on the parties and not on the court, this exception has only been applied to issues of law. Such is not the case sub judice, where St. Paul has referred repeatedly in its brief to facts (apparently not in the record, but not disputed by CIPS) that there was a material misrepresentation on the part of CIPS’ procuring agent to the effect that St. Paul insured multiple utility companies for the price of one. Because CIPS did not argue lack of consideration below, St. Paul had no opportunity (and even more important, no reason) to make a record on this issue. As a result, failure to apply the waiver doctrine to this case did not (as the majority state) reach a just result, but rather operates to prejudice St. Paul and weaken our system of appellate jurisdiction. See Kravis v. Smith Marine, Inc. (1975), 60 Ill, 2d 141, 148, 324 N.E.2d 417.

Based upon the above, I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: JUSTICE McNULTY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY CRANE, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—1328
    Opinion filed March 5, 1993.
    Rehearing denied May 26,1993.—
    Modified opinion filed May 28,1993.

      Michael J. Pelletier and Patricia Mysza, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Rebecca Davidson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

After a jury trial, defendant Anthony Crane was found guilty of aggravated arson and first-degree murder and sentenced to natural life imprisonment. On appeal, we consider: (1) whether there was probable cause to arrest defendant; (2) whether the trial court properly instructed the jury; (3) whether the prosecutor made improper comments during closing argument which denied defendant a fair trial; and (4) whether the trial court abused its discretion when it sentenced defendant to natural life imprisonment.

The evidence at trial revealed that on October 15, 1989, defendant and his friend Jim Valek were at William McHugh’s tavern when they decided to steal the cash register. Defendant and Valek split the money recovered from the cash register. The following day, defendant and Valek sold the register to a woman named Janette.

After learning that he was a suspect in the robbery which occurred at McHugh’s tavern, Valek bought the cash register back from Janette and threw it in the river at Kedzie and 37th Street.

On October 17, 1989, there was a fire at McHugh’s tavern and William McHugh died as a result of injuries he received in the fire. When defendant was arrested on October 31, 1989, and questioned, he initially denied any knowledge of the stolen cash register. Defendant was questioned a second time and admitted that he had taken the cash register. He was then asked about the fire and denied any knowledge. During a third conversation, defendant admitted to being present at the time of the fire but stated that it had been an accident. On November 1, 1989, defendant was interviewed by an assistant State’s Attorney and signed a handwritten statement. In the statement, defendant admitted that, after hearing rumors that he was suspected of stealing the cash register, he went to McHugh’s tavern and told McHugh that he did not steal the cash register. Defendant testified that McHugh did not believe him and slapped him in the face. Defendant stated that he pushed McHugh, who fell to the floor and spilled gas on himself. The argument over the cash register continued as McHugh lay on the floor. Defendant lit a cigarette and then threw the match down near McHugh. McHugh immediately ignited and defendant ran home.

When defendant testified at trial, he denied any knowledge of the fire or the murder of William McHugh. Defendant admitted that he stole the cash register, but claimed that the statement he made was a lie. He claimed he lied because he was afraid that the police officers were going to beat him.

Defendant’s first contention is that the trial court erred when it denied defendant’s motion to quash arrest and suppress evidence since his warrantless arrest was effected without probable cause. He claims the State did not establish that the dispatcher possessed sufficient facts to direct the arresting officers to act, and that the subsequent plain view seizure of narcotics from defendant was not sufficiently proved.

At the suppression hearing, defendant testified that on October 31, 1989, as he was leaving Jim Valek’s apartment at 3045 West 60th Place, he saw a police officer. The officer (who did not identify himself to defendant) asked defendant if his car was blocking the alley. Defendant said that it was. The officer asked defendant for identification. Defendant pulled out of his wallet the ticket that he was driving on. The officer and his partner then frisked and handcuffed him. The officers then took defendant to Valek’s apartment, searched the apartment and found a cocaine seal in the coffee table drawer. Jim Valek also testified that the officers found the cocaine seal in the coffee table drawer.

Officer Sepulveda testified that on October 31, 1989, he and Officer Graeber received an assignment from their dispatcher to look for a man wanted for robbery and arson murder. The man was described to the officers by the dispatcher as a white male, driving a blue station wagon with no front fenders. The dispatcher directed the officers to the area of 3150 West 64th Place. When the officers were unable to locate defendant’s vehicle at that address, they continued their search until they located the car at 3045 West 60th Place. The officers put the car under surveillance and waited for the driver to return. Jim Valek informed the officers that the car was defendant’s and that he would get him. When defendant came into the hallway, the officers asked for his driver’s license. Officer Sepulveda testified that when defendant opened his wallet, Officer Graeber observed a small folded packet of cocaine. Officer Graeber did not testify and Officer Sepulveda did not see the packet until Graeber began removing it from defendant’s wallet. The officers then searched Valek’s apartment but did not recover any other drugs.

Detective O’Meara testified that on October 17, 1989, he was assigned to investigate the arson and homicide that occurred at McHugh’s tavern. O’Meara spoke with Raymond Kurecki, who was a friend of McHugh. Kurecki told O’Meara that he had a conversation with McHugh shortly after the robbery. McHugh told Kurecki that one of the people who took the cash register was “Tony,” the man who used to work for McHugh. Kurecki told O’Meara that he thought the person McHugh was referring to was Anthony Crane. O’Meara testified that Kurecki told him that he knew Anthony Crane and that Crane drove a blue Datsun station wagon with a front fender missing. Kurecki later identified a photograph of defendant. After learning that defendant lived at 3045 West 60th Place, O’Meara went to that address on October 30 and 31, but he did not find defendant or the car. O’Meara testified that he never discussed his investigation with anybody else on the police force.

Based on this testimony, we find that the police lacked probable cause to arrest defendant. When officers are working in concert, probable cause can be established from all the information collectively received by the officers even if that information is not specifically known to the officer who makes the stop. (People v. Fenner (1989), 191 Ill. App. 3d 801, 584 N.E.2d 147.) Although an arresting officer may rely upon a dispatch to make an arrest even if he is unaware of the specific facts that established probable cause to make the arrest, the State must demonstrate that the officer who directed the dispatch to be issued possessed facts sufficient to establish probable cause to make the arrest. People v. Crowell (1981), 94 Ill. App. 3d 48, 418 N.E.2d 477.

Here, it is clear that O’Meara was not working in concert with the arresting officers on the investigation into the robbery or arson at McHugh’s tavern. While O’Meara had knowledge that defendant may have been involved in the robbery of McHugh’s tavern, he testified that he never told anybody he was looking for defendant, he did not direct anybody to arrest defendant, and he was not working with the officers who arrested defendant. Furthermore, there is no evidence in the record as to the source of the dispatcher’s information. It is clear, however, that the information did not come from O’Meara in light of O’Meara’s testimony that he did not tell anybody about the information he possessed on defendant’s connection with the crimes. The State argues that the cause and origin report filed by O’Meara stating that the fire was an arson imputes the arresting officers and the dispatcher with knowledge that defendant was a suspect in the arson and the police report on file in the 8th police district imputes them with knowledge that defendant was a suspect in the robbery. These two reports on file at two separate locations within the Chicago police department did not provide probable cause to arrest defendant, particularly because there is no evidence that arresting officers or the dispatcher who directed the officers to look for defendant knew of the existence of these reports. Furthermore, even if they did read these reports, there is no evidence that the cause and origin report identified defendant as the possible arsonist or that the report on file in the 8th district did anything more than state that one of the possible robbery suspects was named Tony.

Nor does the evidence provided here establish that the police had probable cause to arrest defendant for possession of a controlled substance. The seizure of evidence under the plain view doctrine requires that: (1) the object seized is in plain view; (2) the officer views the object from a position where he has a right to be; and (3) the facts and circumstances known to the officer at the time he acts give rise to a reasonable belief that the items seized constitute evidence of criminal activity. (People v. Montgomery (1980), 84 Ill. App. 3d 695, 405 N.E.2d 1275.) What constitutes probable cause for a seizure must be determined from the standpoint of the officer who made the seizure, with his experience and training in the detection of controlled substances being taken into account. People v. Stout (1985), 106 Ill. 2d 77, 477 N.E.2d 498.

The evidence presented at the suppression hearing does not establish that the cocaine packet was in plain view when it was seized since Graeber, the officer who made the seizure, did not testify at the suppression hearing. Officer Sepulveda was not competent to testify about what the seizing officer, Officer Graeber, observed at the time of the seizure. Accordingly, there is no evidence in the record as to whether the packet was in Graeber’s plain view when it was inside the wallet or what led Graeber to believe that the packet contained cocaine. Sepulveda’s testimony cannot be relied on to establish plain view because he did not see the packet until after Graeber began removing it from defendant’s wallet.

When a confession is obtained from a defendant through custodial interrogation after an illegal arrest, that confession must be suppressed unless the State can establish that intervening events have broken the causal connection between the illegal arrest and the confession so as to render the confession an act of free will. (People v. Thomas (1984), 123 Ill. App. 3d 857, 463 N.E.2d 832.) Whether attenuation has been established may be determined by considering whether Miranda rights have been given and understood, the time between the arrest and confession, and the presence of intervening circumstances, such as an appearance by the defendant before a magistrate. (Thomas, 123 Ill. App. 3d 857, 463 N.E.2d 832.) The State requests that we follow People v. Booker (1991), 209 Ill. App. 3d 384, 568 N.E.2d 211, and remand this case for an attenuation hearing. However, under the circumstances of this case, an attenuation hearing is unnecessary. The State has given us no indication of what additional evidence it is capable of adducing on remand to establish that the arrest and statement were attenuated. Rather, the State insists that the record here is more than adequate to establish attenuation. From this record, we conclude that although defendant was given Miranda warnings several times, neither the length of time nor intervening circumstances dissipated the taint of defendant’s illegal arrest. Therefore, we find that because the trial court improperly denied defendant’s motion to suppress his statement, this case must be remanded for a new trial.

Defendant next maintains that the trial court erred in instructing the jury to consider, first, whether the State had proven defendant guilty of aggravated arson; second, whether defendant has been proven guilty of felony murder; and third, whether defendant has been found guilty of the two other first-degree murder charges. Then, if defendant is found not guilty of all the other charges, the jury was instructed to consider whether defendant was guilty of involuntary manslaughter. Defendant now contends that this instruction unduly emphasized the first-degree murder charges over the involuntary manslaughter charge. At the instruction conference, however, defense counsel admitted that there was no pattern jury instruction specifically addressing this situation. Both the State and defendant tendered instructions that instructed the jury to first consider the first-degree murder charge. The court found that both instructions covered the same items, but that the State’s instruction was easier for the jury to understand. Although defense counsel objected to the State’s instruction, defense counsel’s objection was based on the argument that his tendered instruction was clearer and not on the basis that the State’s instruction unduly emphasized the more serious charges over the less serious one. Under these circumstances, defendant has waived his right to appeal the issue of the content of the instruction.

Defendant next contends that the prosecutor made improper comments in closing argument concerning the charge of involuntary manslaughter. Defendant first takes issue with the prosecutor’s comment that:

“Involuntary manslaughter, folks is a reckless act. It’s like a car accident. That’s for car wrecks. It’s an involuntary act.”

Defense counsel objected to this comment, but his objection was overruled. The prosecutor in People v. Gutirrez (1990), 205 Ill. App. 3d 231, 264, 564 N.E.2d 850, also argued that recklessness was equivalent to accident. The court found the prosecutor’s comment improper since recklessness and accident are not synonymous. We reach the same conclusion here.

Defendant also alleges error in the prosecutor’s characterization of second-degree murder as “something a little less than first degree murder *** a lower offense.” An objection to this argument was sustained. The prosecutor then argued that after the jury rejected second-degree murder, it had “to go a step farther” and consider involuntary manslaughter. Defense counsel’s objection to this comment was also sustained. We agree with defense counsel that it was improper to apprise the jury of the comparative severity of the defendant’s possible sentence. (See Gutirrez, 205 Ill. App. 3d at 263 (the prosecutor’s reference to involuntary manslaughter as “the lowest class of felony” was improper since the purpose of this comment was to imply that an involuntary manslaughter verdict would result in negligible punishment for the defendant as compared to first-degree murder).) We therefore find that the prosecutor’s comments were improper and should not be repeated at the new trial on remand.

Because we are remanding this case for a new trial, we do not consider whether the trial court, in sentencing defendant to natural life imprisonment, failed to consider defendant’s rehabilitative potential.

Accordingly, for the reasons set forth above, this case is reversed and remanded for a new trial.

Reversed and remanded.

GORDON, P.J., and MURRAY, J., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROGER HOOD, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—2841
    Opinion filed March 31,1993.

      Rita A. Fry, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a jury trial, defendant, Roger Hood, was convicted of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(2)) and armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)). He was sentenced to 32 years’ imprisonment. On appeal, defendant asserts that he was denied a fair trial because (1) the trial court barred his mother as a defense witness; (2) the trial court refused to publish a properly authenticated photo of his brother; (3) the trial court deleted a phrase of the Illinois Pattern Jury Instructions, Criminal, No. 3.06 — 3.07 (2d ed. 1987) (hereinafter cited as IPI Criminal 2d); and (4) the State committed prosecutorial misconduct during closing argument. We affirm.

At 7:15 a.m. on March 20, 1987, Henry Pykalo was shot and killed during an armed robbery outside the Rymer meatpacking plant at 4600 South Packers Street, Chicago. Margarita Martinez, who worked with the victim at the Rymer plant, testified that she was walking to work when she saw the victim drive by her and park his car. According to Ms. Martinez, an African-American man was in the victim’s car’s back seat and there were no other cars in the area. The man, who was holding a small, silver-colored gun, was standing, blocked the victim’s exit, and demanded money. When the victim refused, the man shot him.

Ms. Martinez, who was a street’s width away, called out the victim’s name as he fell. She stood there watching. The shooter looked through the car’s rear window at Ms. Martinez, who ran toward the plant. As she ran, Ms. Martinez turned to see the shooter searching the victim. Ms. Martinez testified that she could not distinguish the man’s face or eyes, but that his face was elongated.

When the police arrived, Ms. Martinez described the shooter as a tall, slim, African-American man, six feet or six feet one inch tall, about 26 years old, wearing a dark jacket and a small hat. At trial, Ms. Martinez was shown a 1982 photograph of defendant, but did not recognize the man in the picture. When asked whether defendant, who was sitting at the defense table, was the man who shot the victim, Ms. Martinez asked to see defendant’s back and right profile. Then, she replied, “I would say yes,” and that he looked like the shooter she saw.

Ms. Martinez stated that she had known the victim for three years, worked the same shift as he did, thought he was a hard worker, knew he carried large amounts of cash in his wallet, and knew that for eight months before his death, he had cashed checks for Rymer employees and sold clothing and candy on the side.

Three days later, Chicago police detective Janette McCarthy spoke with Ronald Hood, who is defendant’s brother, at the Rymer plant. On May 22, 1987, she spoke with him at the police station. After that conversation, McCarthy and her partner, Detective Kukulka, went to defendant’s mother’s house, where they found defendant, who voluntarily came to the police station.

McCarthy testified that defendant denied knowing anything about the murder until the detectives told him they did not believe him. Defendant then stated that he went to the Rymer plant on the morning of March 20, 1987, knowing that the victim carried large amounts of cash on payday. He also knew where the victim parked his car. When the victim drove up, defendant approached his car and demanded money. Defendant then pulled out his gun and the victim was shot. After searching the victim for his wallet, which contained $900 to $1,000, defendant boarded a bus and went to his mother’s house.

Defendant then agreed to give a court-reported statement. McCarthy testified that there were inconsistencies in defendant’s statements, including whether he shot the victim or the gun discharged while it was in his pocket.

Detective Kukulka testified that he questioned defendant at the police station. During the first interview, defendant denied any knowledge of the murder. According to Kukulka, defendant was not confronted with any discrepancies at that time. Two and one-half hours later, Kukulka told defendant that there were discrepancies between his statements and information the detectives had. Kukulka’s account of defendant’s subsequent oral statements was essentially the same as McCarthy’s account.

Defendant’s court-reported statement was read to the jury. According to that statement, defendant was at the scene to rob the victim. When defendant asked the victim for money and the victim refused, defendant pulled a .25-caliber automatic from his right jacket pocket and shot the victim in the arm. When the victim fainted, defendant searched his body. After defendant found the wallet in the victim’s coat pocket, he ran from the scene and took a bus to his mother’s house. Later, he told his brother that he robbed and shot a dude. Defendant further stated that he bought clothes with the $900 he found in the victim’s wallet.

Dr. Eupel Choi, who performed the autopsy, testified that the gunshot wound to the left upper arm was a contact wound. The bullet entered the body at a 45-degree downward angle and lodged in the victim’s chest. In Dr. Choi’s opinion, the cause of death was a gunshot wound to the left arm.

There was a stipulation that a .25-caliber bullet was removed from the victim and that the spent casing found at the scene was a .25-caliber shell. It was also stipulated that numerous fingerprints were taken from the victim’s automobile, but none of them matched those of defendant.

Prior to the defense case, the State moved in limine to bar defendant from calling his mother as a defense witness. The trial court granted the State’s motion after finding that defendant’s mother’s testimony would be irrelevant, cumulative, and would not provide defendant with an alibi.

In his own behalf, defendant testified that he was living with his half-brother, Ronald Taylor, and Ronald’s girl friend, Mary Griffin, at 629 E. Bowen Street, Chicago, during March 1987. (Ronald Taylor is not Ronald Hood.) At that time, defendant was receiving unemployment compensation after being laid off from Church’s Chicken. Defendant had worked nights at Rymer for three weeks in 1983 and knew the victim.

Defendant denied shooting the victim or going to the Rymer plant to rob him. In addition, defendant stated that his custodial statement was not truthful. Defendant testified that he awoke at noon when he lived on Bowen Street, never at 6 or 7 a.m. Although defendant voluntarily went to the police station on May 22, 1987, to answer questions, he denied any knowledge of the murder. According to defendant, Detective Kukulka told him that he was going to get the death penalty and threatened to arrest his whole family, including his mother, if he did not go along with Kukulka’s story.

Defendant testified that he went along with the detective’s story because he was scared. Defendant acknowledged that no one hit him, but stated that he was not allowed to call his mother to get help.

Detective Kukulka denied making any of those remarks and stated that defendant never asked to make a phone call.

Ronald Taylor and Mary Griffin both testified that defendant lived with them at 629 Bowen Street, Chicago, during March 1987. Although neither witness could specifically remember March 20, 1987, they both testified that defendant usually got up at 11 a.m. or noon, and never before 7 a.m.

Jeanne Sidemore, the Rymer Foods payroll clerk, testified that the victim worked at Rymer from September 1981 until his death and defendant worked at Rymer for three weeks in April 1983. Ronald Hood worked at Rymer from September 1982 until June 1987, but did not work on March 20, 1987, because he was on vacation.

When defense counsel attempted to introduce exhibit 7, which was a front and side profile photograph of Ronald Hood, the trial court refused to allow the photograph into evidence on the basis that it was cumulative and clearly identifiable as a police mug shot. Instead, a family photograph that included Ronald Hood was admitted into evidence.

At the instructions conference, defendant objected to the State’s version of IPI Criminal 2d No. 3.06 — 3.07, which omitted the phrase that the jury was “to determine whether the defendant made the statements.” The trial court allowed the State’s version, finding that defendant never denied making the statements, but merely explained why he gave them.

After the jury deliberated, it found defendant guilty of murder and armed robbery. Defendant was sentenced to 32 years’ imprisonment for murder and 30 years’ imprisonment for armed robbery, to run concurrently.

On appeal, defendant asserts that the trial court erred when it barred him from calling his mother as a witness. Defendant argues that barring his mother from testifying denied him his right to present a defense, to present witnesses to establish that defense, and to present relevant evidence since Mrs. Hood’s testimony was relevant to show that his confession to the police was false. Although conceding that his mother’s testimony was not sufficient to establish an alibi, defendant contends that it had a tendency to show that his confession was false. According to defendant, Mrs. Hood would have testified that defendant did not live with her on the day of the shooting and that he did not go to her house that morning. Defendant stresses that his oral statement to the police indicated that he had taken a bus to 47th and Racine to rob the victim, then took the 47th Street bus “back home to his mother’s house” at 556 East 38th Street.

Further, defendant argues that his mother’s testimony regarding family members who worked at Rymer’s and were known to the police was relevant because the police produced a false statement by threatening family members, one of whom was a Rymer employee who was at the police station. Defendant concludes that the use of the motion in limine to choke off his mother’s admissible testimony was a manifest abuse of discretion and requires reversal. We disagree.

The State moved in limine to bar defendant from calling his mother as a witness on the basis she had no knowledge of defendant’s whereabouts on March 20, 1987. The State argued that she could not provide a credible alibi and the sole reason to call her as a witness would be to gain sympathy. In an offer of proof, defense counsel argued that Mrs. Hood would testify that defendant was not living with her on March 20, 1987, and that she did not see him that day. She also would testify about family members who worked at the Rymer plant.

After the defense counsel represented to the court that defendant would testify, the trial court granted the State’s motion, finding that Mrs. Hood’s testimony would be cumulative and irrelevant because she could not provide an alibi. Moreover, the court stated, its function would be to gain sympathy before the jury.

A motion in limine permits a party to obtain an order before trial excluding inadmissible evidence. (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549.) If the rules of evidence do not require exclusion of the disputed testimony, the trial court must deny the motion. (People v. Escobar (1988), 168 Ill. App. 3d 30, 43.) Use of a motion in limine should be exceptional, rather than general, and the burden is on the party seeking to bar the evidence to show why it is inadmissible and prejudicial. Bradley v. Caterpillar Tractor Co. (1979), 75 Ill. App. 3d 890, 900.

The trial court erred when it excluded defendant’s mother’s testimony. By keeping Mrs. Hood from testifying, the trial court prevented defendant from fully presenting his defense. Which witnesses to present at trial is a matter of defense strategy. Defendant has a right to call his mother as a witness even if he later testifies to substantially the same facts as long as her testimony is competent, material, and significantly more probative than the same evidence later elicited from him. Where the admitted evidence is not substantially the same, is not as broad and comprehensive, or does not have the same probative force as the excluded evidence, it is error to reject competent and material evidence. People v. Hoddenbach (1983), 116 Ill. App. 3d 57, 61.

Nevertheless, we affirm defendant’s convictions because we find that the error was harmless beyond a reasonable doubt. When a trial error affects a Federal constitutional right, it is reversible unless it is harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 827.) To be harmless error, there must be no reasonable possibility that the trial’s outcome would have been different if the excluded testimony had been admitted. (Fahy v. Connecticut (1963), 375 U.S. 85, 86-87, 11 L. Ed. 2d 171, 173, 84 S. Ct. 229, 230.) In determining whether the error was harmless, the sufficiency of the evidence proving guilt beyond a reasonable doubt is considered. People v. Perez (1991), 209 Ill. App. 3d 457, 471.

In reviewing all the evidence, we conclude that this error is harmless. There is no reasonable probability that Mrs. Hood’s testimony would have altered the trial’s outcome. Whether defendant returned to his mother’s house on the morning of the shooting is not important to the issue of guilt. Furthermore, Mrs. Hood’s testimony that defendant did not live with her would have been cumulative. Beside defendant, two other witnesses, Ronald Taylor and Mary Griffin, testified that defendant lived with them, not his mother, on the day of the shooting. More importantly, Mrs. Hood would have testified that she had no personal knowledge of defendant’s whereabouts on the morning of March 20, 1987. The admitted evidence was substantially the same, as comprehensive, and had the same probative force as the excluded evidence.

Similarly, Mrs. Hood’s proposed testimony regarding family members who worked at Rymer’s would not have affected the trial’s outcome. After considering the totality of the evidence presented, we conclude that a trial without this error would produce no different result. People v. Warmack (1980), 83 Ill. 2d 112,128-29.

Next, defendant asserts that he was denied the right to present a defense when the trial court refused to publish a properly authenticated photograph of his brother, Ronald Hood, on the basis that it was cumulative and clearly identifiable as a police mug shot. Defendant maintains that the excluded photograph is important to rebut the State’s insinuation that Ronald Hood had named defendant as the offender.

In its closing argument, the State commented:

“[Detective Kukulka] talked to the defendant’s brother Ronald Hood on two occasions. On the second occasion after he finished talking to him right away he went and started looking for Roger Hood and found Roger Hood and brought him in for questioning and Roger Hood confessed. Then and only then was he placed under arrest.
When you get to this statement and you take it back to the juryroom take a look at it because in the statement he’s asked, if he told his brother Ronald Hood what he did.
And his answer was T told him I had robbed the dude, and I had shot him.’
Now you know why the police had Ronald Hood because Ronald Hood told the police *** [w]hat his brother Roger had told him. *** That’s why Ronald Hood isn’t here because two years later he’s in hiding because he doesn’t want to come in and testify against his brother.”

Defendant contends that Ronald Hood was the shooter and had shifted the blame to defendant. Thus, defendant argues, the excluded photograph, which shows Ronald from the front and profile, was probative of the fact that Ronald and Roger had similar profiles and could have been mistaken for one another by a witness viewing them from a distance of more than 50 feet. The photograph that was admitted into evidence was a family photograph that showed only Ronald Hood’s frontal view above the waist.

Furthermore, defendant maintains, the State’s heavy reliance on the six-inch height discrepancy between defendant and Ronald Hood is unimportant because height and weight discrepancies are common even in reliable identifications. (People v. Slim (1989), 127 Ill. 2d 302, 312.) More importantly, defendant argues, the eyewitness could not positively identify defendant as the offender. After asking to see defendant’s back and profile, Ms. Martinez said that he looked like the man she saw.

Finally, defendant contends that the police identification number did not make the photograph inadmissible because Ronald could not have been prejudiced by it. To support his contention, defendant relies on People v. Smith (1982), 105 Ill. App. 3d 84, 90-92, where the court ruled that the defendant should have been able to cross-examine the State’s chief witness about his prior convictions because it was a credibility issue and could not be prejudicial to him.

We hold that the trial court did not abuse its discretion in excluding the second photograph. Although the photograph of Ronald Hood’s profile could have been helpful to the issue of identification, the admission of one photograph of Ronald was sufficient to show the jury the similarities and dissimilarities between the brothers.

Next, defendant asserts that the trial court denied him a fair trial by deleting the phrase of IPI Criminal 2d No. 3.06 — 3.07 that directed the jury to determine whether defendant made the custodial statements attributed to him at trial. We disagree.

The jury was instructed:

“You have before you evidence that the defendant made a statement relating to the offense charged in the indictment.
It is for you to determine what weight should be given to this statement. In determining the weight to be given to a statement you should consider all the circumstances under which it was made.”

Where a defendant denies making a statement, he is entitled to an instruction which informs the jury that it may determine whether defendant made any statement at all. (People v. Cook (1965), 33 Ill. 2d 363, 369-70; IPI Criminal 2d No. 3.06 — 3.07, Committee Note, at 20.) If, however, the defendant does not deny making the statement and the jury is apprised of the circumstances under which it was made, there is no error in instructing the jury with the deletion. People v. Lee (1986), 151 Ill. App. 3d 510, 530.

The trial court did not err in making the deletion because defendant did not deny making the statements. Defendant admitted that he made the statements, but contended that the incriminating words did not originate with him. He stated that he was only telling the story that Detective Kukulka told to him. He also testified that he continued to tell the same story to Detective McCarthy, Assistant State’s Attorney De Grazia, and the court reporter. Defendant’s testimony about the circumstances surrounding his statements goes to the weight and credibility to be given to the confession. The jury was properly instructed that it should determine the weight to be given to defendant’s statements.

Finally, defendant asserts that he was denied a fair trial when the State committed prosecutorial misconduct during its closing argument by making improper comments about the fingerprint evidence, commenting on Ronald Hood’s role in the investigation, and appealing to the jury’s passion and prejudice.

Defendant waived these arguments because he did not raise them in his post-trial motions. Failure to object to closing remarks at trial and not including the issue in the post-trial motion generally constitutes waiver of the issue. (People v. Threadgill (1988), 166 Ill. App. 3d 643, 650.) We decline to consider the remarks under the plain error doctrine.

Based on the foregoing, the circuit court judgment is affirmed.

Affirmed.

TULLY, P.J., and RIZZI, J., concur.


author: JUSTICE GREIMAN

text:
    ALLIANCE SYNDICATE, INC., Plaintiff-Appellant, v. BRAD FOOTE GEAR WORKS, INC., et al., Defendants-Appellees (Brad Foote Gear Works, Inc., Counterplaintiff; Alliance Syndicate, Inc., Counterdefendant; Bell Helicopter Textron, Inc., Nominal Defendant).
    First District (3rd Division)
    No. 1—92—0774
    Opinion filed March 31, 1993.

      Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (Louis W. Brydges, Sr., and Leslie A. Peterson, of counsel), for appellant.
    Wessels & Pautsch, P.C., of Milwaukee, Wisconsin, and Lamb & Lamb, of Washington, D.C. (Frank A. Bumina and George Peter Lamb, Jr., of counsel), for appellee Brad Foote Gear Works, Inc.
    James C. Schroeder, of Mayer, Brown & Platt, of Chicago, for appellee Bell Helicopter Textron, Inc.
   JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff Alliance General Insurance Company, formerly Alliance Syndicate, Inc. (Alliance), appeals the trial court’s declaratory judgment that it must defend and indemnify its insured, defendant Brad Foote Gear Works (Brad Foote), in an underlying action brought by Bell Helicopter Textron (Bell) against Brad Foote arising from alleged breach of a contract requiring Brad Foote to design and manufacture gear boxes for Bell.

We have no jurisdiction to hear this appeal pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) since it is not a final order which disposes of all of the issues in the case and there is no written finding regarding the appealability of the order, pursuant to In re Application of the Du Page County Collector (1992), 152 Ill. 2d 545, 550-51, 605 N.E.2d 567.

Alliance issued an insurance policy to Brad Foote entitled “Broad Form Comprehensive General Liability Policy” effective January 1, 1988, and retroactive to January 1, 1987. Alliance later issued to Brad Foote an insurance policy titled “Commercial General Liability Policy” effective January 1,1989, and retroactive to January 1, 1987.

Bell filed the underlying action against Brad Foote in Texas in 1989 and alleged (1) breach of contract; (2) negligence; (3) breach of warranty; (4) improper assignment and agency; and (5) constructive fraud.

Brad Foote tendered its defense to Alliance, which refused to defend and thereafter filed this declaratory judgment action to determine the extent of coverage under the insurance policies that it had issued to Brad Foote.

Brad Foote filed an answer and counterclaim which alleged (i) counts I through III: Alliance’s duties to Brad Foote under its 1989 insurance policy; (ii) counts IV through VI: Alliance’s duties to Brad Foote under its 1988 policy; (iii) count VII: for attorney fees and costs for unreasonable and vexatious delay by plaintiff; and (iv) count VIII: that Alliance breached a duty to act in good faith, entitling Brad Foote to treble damages.

On September 16, 1991, Brad Foote filed a motion for partial summary judgment as to Alliance’s entire complaint and as to its own counts I through VI (the 1988 and 1989 policy liability), but not as to its count VII (plaintiff’s unreasonable and vexatious delay in refusing to tender and refusing to settle the underlying action with Bell) and count VIII (plaintiff’s breach of duty of good faith when refusing to tender and refusing to settle the underlying action). Brad Foote was joined by Bell in support of this motion.

Shortly thereafter, Alliance filed its motion for summary judgment as to the entire complaint of both parties (including Foote’s counts VII and VIII).

On February 5, 1992, after a hearing on the motions, the trial court stated:

“The court has determined that there is coverage under the 1989 policy and a duty to defendant. The ’89 policy is the only one which is sufficiently — definitely set out for the court to make a determination as to coverage. That’s the ruling of the court.”

The order which was subsequently entered provided:

“With all parties being present before the Court, the Court hereby orders as follows:
(1) That Plaintiff has a duty to defend its insured, Brad Foote Gear Works, Inc., under the 1989 Alliance policy of insurance.
(2) That Plaintiff has a duty to indemnify its insured, Brad Foote Gear Works, Inc., under the 1989 Alliance policy of insurance.”

Neither the remarks of the trial court nor the order entered addressed counts IV through VIII. Notwithstanding the court’s silence on these issues, Alliance alleges in its appellate brief that jurisdiction lies under Supreme Court Rule 303 (134 111. 2d R. 303), which provides for appeals from final judgments rather than under Rule 304 (134 Ill. 2d R. 304), which concerns appeals from a final judgment that do not dispose of all of the parties or all of the issues in a proceeding.

Supreme Court Rule 304(a) provides that where there are multiple parties or multiple claims for relief, no appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims, unless the trial court makes an express written finding that there is no just reason for delaying enforcement or appeal. 134 Ill. 2d R. 304(a).

The February 5 order does not contain an express written finding that this order is appealable, as required by Du Page (152 Ill. 2d at 551). Nor does the record indicate that any request was made for such a finding.

Alliance suggests that summary judgment as to counts I through III of Brad Foote’s counterclaim disposed of all of the issues before the court since both Alliance and Brad Foote had both moved for summary judgment and since the trial court did not expressly reserve any ruling on any portion of the Brad Foote counterclaim.

Alliance argues that the court’s ruling with respect to counts I, II, and III of Brad Foote’s counterclaim implicitly reject all of the other claims asserted in the complaint and counterclaim. In support of that proposition, Alliance cites Weigel v. O’Connor (1978), 57 Ill. App. 3d 1017, 373 N.E.2d 421, and Baldi v. Chicago Title & Trust Co. (1983), 113 Ill. App. 3d 29, 446 N.E.2d 1205.

However, Weigel, Baldi, and cases citing them, such as In re Application of Busse (1989), 183 Ill. App. 3d 682, 685, 539 N.E.2d 323, and In re Marriage of Brust (1986), 145 Ill. App. 3d 257, 261, 495 N.E.2d 133, provide that orders or judgments ought to be examined like other written instruments and should be reasonably construed as a whole to give effect to the intention of the court and must be read, understood and construed in connection with the pleadings on file. Weigel, 57 Ill. App. 3d at 1026-27; Baldi, 113 Ill. App. 3d at 33.

The sparse language of the court’s ruling and the order do not provide us with the expanded intention of the court that Alliance urges upon us. To the contrary, in its brief remarks, the trial court states that “[t]he ’89 policy is the only one which is sufficiently — definitely set out for the court to make a determination as to coverage.” In other words, in examining the record on a motion for summary judgment, the court found that only the 1989 policy was susceptible to summary proceedings. It did not expressly or implicitly reject the notion that the 1988 policy or Brad Foote’s other causes of action or a part of Alliance’s complaint might not be meritorious after the trial of the case.

We concede that where the issue in the initial complaint is exactly the same as those necessary to determination of the counterclaim, summary judgment on the complaint will be a final judgment notwithstanding the order’s silence as to the counterclaim. (Lynch Imports, Ltd. v. Frey (1990), 200 Ill. App. 3d 781, 558 N.E.2d 484; Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 529 N.E.2d 243.) However, that is not the case here since a portion of plaintiff’s initial complaint as to the 1988 insurance policies as well as other portions of Brad Foote’s counterclaim remained undetermined by the order of February 5.

The supreme court recently interpreted Rule 304(a) to state that where an appeal is taken from a judgment which defeats a claim or is in the nature of a dismissal, the written finding of the trial court must refer to the appealability of the judgment. (Du Page, 152 Ill. 2d at 550-51.) Not only is a written finding of appealability required, but such a finding, if improper, cannot make a nonfinal order final and consequently appealable. (In re Johnson (1985), 134 Ill. App. 3d 365-, 480 N.E.2d 520; Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006, 443 N.E.2d 268.) In the instant case, there was no statement of the appealability of the judgment in the court’s written order.

For the foregoing reasons, we find we have no jurisdiction over this appeal and this appeal is hereby dismissed.

Dismissed.

TULLY, P.J., and RIZZI, J., concur.


text:
    CINDY L. WATERS, Plaintiff-Appellant, v. INTERNATIONAL HARVESTER COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 92—0875
    Opinion filed April 16,1993.

      Anesi, Ozmon & Rodin, Ltd., of Chicago (Richard L. Rumsey and Scott H. Rudin, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Hugh C. Griffin and Sandra K. Macauley, of counsel), for appellees.
   JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Cindy L. Waters filed a two-count complaint in negligence and strict liability against defendants International Harvester, Fontaine Trucking Equipment, and Navistar International Corporation. The trial court entered summary judgment in favor of the defendants and plaintiff appealed.

Plaintiff was employed as a truck driver for Leaseway Leasing, Inc. On September 13, 1984, during the course of her employment, she was injured while attempting to disengage an allegedly defective fifth wheel from her tractor truck. (The fifth wheel was manufactured by the Fontaine Trucking Equipment Company while the tractor truck was manufactured by Navistar International Corporation.) Plaintiff subsequently filed a two-count complaint (in strict liability and in negligence) against defendants Fontaine Trucking Equipment, International Harvester, and Leaseway Leasing.

In her complaint plaintiff alleged that she had been driving the truck at issue since June of 1984. She further alleged that she had complained in her daily vehicle intake reports that the fifth wheel on her tractor, which she identified by serial number 216872, was unreasonably dangerous. In subsequent deposition testimony, answers to interrogatories, and affidavits, plaintiff claimed that this identification number was incorrect and that the correct number was actually 214872. She recalled this number because she had written it every day on her reports. (Even though these reports were required by law, Leaseway was unable to find any of them as requested in discovery.) Additionally, plaintiff had taken pictures of the truck at issue. (The probative value of the pictures is weakened by the fact that they were taken almost a year after the accident occurred.)

Defendants filed a motion for summary judgment supported by affidavits and business records confirming their contention that the tractor at issue (serial number 214872 and vehicle identification num-, ber (VIN No.) 1HSZAL7NXEHA62967) was not delivered to Lease-way until September 18, 1984, and not placed in service until September 20, 1984, a week after plaintiff’s accident. The specific documentation was as follows:

1. The warranty agreement between International Harvester and Leaseway showing that the truck bearing VIN No. 1HS-ZAL7NXEHA62967 was delivered to Leaseway on September 18,1984, with an odometer reading of 80 miles.
2. The certificate of title showing that Leaseway truck bearing VIN No. 1HSZAL7NXEHA62967 was purchased by Lease-way on September 20, 1984.
3. Maintenance inspection records showing that Leaseway truck No. 214872, VIN No. 1HSZAL7NXEHA62967, was placed in service on September 20, 1984. The service date was defined as the first date that the vehicle would be leased to a leasing customer and go out on the street.
4. An asset purchase document showing that Leaseway truck No. 214872, VIN No. 1HSZAL7NXEHA62967, was not placed in service until October 1, 1984. (For tax depreciation purposes, the date of service on this document was the first day of the first full month that the truck was actually in service.)

The trial judge granted the motion for summary judgment, finding that the evidence presented by the defendants firmly established that the tractor at issue was not possessed by Leaseway until after the date of the alleged injuries, and that plaintiff’s allegations to the contrary were not sufficient to raise a genuine issue of material fact.

In her appeal, plaintiff notes that the rules governing summary judgment are well established. Summary judgment should be granted only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) In ruling on a motion for summary judgment, the court must construe the pleadings, depositions and exhibits on file strictly against the movant and liberally in favor of the nonmovant. In the case at bar, the trial judge ruled for the movants, having determined that there was no genuine issue of material fact, as the tractor’s nonexistence at Leaseway was conclusively established by the aforementioned business records and supporting affidavits, notwithstanding plaintiff’s deposition testimony to the contrary.

Plaintiff argues that the business records themselves, which show conflicting in-service dates for the truck at issue (September 20, 1984, and October 1, 1984), as well as deposition testimony that mistakes in the records occur about 5% of the time, raise some doubt as to whether she has misidentified the truck which injured her. Defendants explain that the conflicting dates are really bookkeeping matters and suggest that the September 20 date was the date for maintenance inspection (and the first date that the vehicle would go out on the street), while the October 1 date was the in-service date for tax depreciation purposes, as it was the first day of the first full month that the vehicle was acually in use. (We note that even the earlier date is a week before plaintiff’s accident.)

Plaintiff additionally maintains that her deposition testimony based on her recollection of the truck’s serial number is sufficient to raise a genuine issue of material fact and defeat defendants’ motion for summary judgment. Defendants disagree. Although both sides cite a variety of case law to support their respective arguments, none involves the same factual situation as the case at bar, that is documentary evidence balanced against sworn testimony. Plaintiff first cites Arnold v. Village of Chicago Ridge (1989), 181 Ill. App. 3d 778, 537 N.E.2d 823. While this case involves the appellate court’s reversal of a grant of summary judgment, factually it balances conflicting eyewitness testimony. The cases of Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449, and Gillespie v. R.D. Werner Co. (1978), 71 Ill. 2d 318, 375 N.E.2d 1294, are also of no assistance to plaintiff as they do not involve an identity of the product issue, but rather focus on whether the products at issue could have caused the claimed injuries. In this regard plaintiff also unsuccessfully relies on Neubauer v. Coca Cola Bottling Co. (1968), 96 Ill. App. 2d 18, 238 N.E.2d 437.

Case law cited by defendants to support their position (that if plaintiff cannot identify the product at issue, summary judgment is appropriate) is also not instructive, as such cases involve the identity of a specific manufacturer, rather than the identity of a product. (Here, the identity of Fontaine Trucking Equipment as the manufacturer of the fifth wheel is not at issue.) (See Smith v. Eli Lilly & Co. (1990), 137 Ill. 2d 222, 560 N.E.2d 234 (summary judgment improper because plaintiff was unable to identify the manufacturer of DES drug that she ingested); Estate of Henderson v. W.R. Grace Co. (1989), 185 Ill. App. 3d 523, 541 N.E.2d 1055 (plaintiff was unable to show that the asbestos which caused his injury was manufactured by the defendant); Sutton v. Washington Rubber Parts & Supply Co. (1988), 176 Ill. App. 3d 85, 530 N.E.2d 1055 (summary judgment was properly entered because plaintiff only offered the possibility that the allegedly defective light bulb which caused his injuries was manufactured by Westinghouse).) Defendant also relies on State Bank v. Young (1986), 149 111. App. 3d 460, 500 N.E.2d 732, in which the appellate court reversed a finding for plaintiff and against defendant bank because there was a direct conflict in the parties’ testimony and the weight of the documentary evidence was in favor of the bank. What defendants neglect to note, however, is that this decision was made after a full trial on the merits.

Since summary judgment is such a drastic measure, it is not appropriate unless the rights of the moving party are free and clear from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) In the instant action, the case law and the facts are not unequivocally persuasive as to the moving parties’ rights. We therefore reverse the trial court’s grant of summary judgment to defendants and remand for a trial on the merits.

Reversed and remanded.

MURRAY and COUSINS, JJ., concur.


author: PRESIDING JUSTICE TULLY JUSTICE GREIMAN,

text:
    GLORIA J. WHYTE et al, Petitioners-Appellees, v. ESTATE OF JOHN E. WHYTE, Deceased, Julie Whyte Jefferson, Adm’r, Respondent-Appellant.
    First District (3rd Division)
    No. 1—90—1655
    Opinion filed March 31,1993.
    GREIMAN, J., specially concurring.
    Betty Burns Paden, of Evanston, for appellant.
    O’Brien, O’Rourke, Hogan & McNulty, of Chicago (Michael Gilman, of counsel), for appellees.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

This case involves a dispute about the validity of decedent John E. Whyte’s marriage to his third wife, petitioner Gloria J. Whyte. John was legally divorced from his first two wives, Barbara and Helen, at the time of his marriage to Gloria in Cook County, Illinois. Gloria was first married to William E. McCune in Cook County in December 1961. Gloria and William separated in 1963. In March 1970, Gloria received notice that William had filed for divorce from her in Bell County, Texas. In a letter from William’s attorneys, Gloria was asked to sign and return various documents to them in order to bring about the divorce. Gloria, unrepresented by counsel, executed these documents (an appearance, waiver of notice, and consent to decree) on March 24, 1970, and mailed them to William’s lawyers. At this time, Gloria erroneously believed that her execution of these papers alone was all that was necessary to effectuate a divorce from William. However, it was not until November 6, 1970, that the Texas court entered its divorce decree ending the marriage. In the meantime, Gloria, believing herself to be divorced from William, married John in Cook County on August 17, 1970. Gloria and John lived together in Evanston, Illinois, until December 1979, when they separated for four months. They then resumed living with one another until John died on February 24, 1986, without a will, but leaving an estate valued in excess of $120,000. John and Gloria had no children together.

On May 29, 1987, a petition for letters of administration of the estate was filed by John’s daughter, respondent Julie Whyte Jefferson, and listed as heirs herself, her brother Steven Whyte, and her half-brother Anye Whyte. On that date, the trial court entered orders appointing Julie the estate’s administrator and declaring Julie, Steven, and Anye to be John’s sole heirs. However, an amended order was entered on July 1, 1987, declaring Gloria an additional heir as a surviving spouse. On July 27, 1987, the trial court appointed, without objection, Gloria as the independent administrator of the estate.

On November 12, 1987, Gloria petitioned the trial court to vacate the July 27, 1987, order appointing her independent administrator of the estate. In this petition Gloria explained that she had only recently discovered that the Texas divorce decree was not entered until November 6, 1970. Accordingly, she asked the trial court to redetermine the matter. At the same time, Julie repetitioned the trial court to be appointed the estate’s administrator. In its orders of that day, the trial court relieved Gloria as independent administrator, deleted her name from the list of heirs as a surviving spouse, and appointed Julie as the estate’s independent administrator.

After a two-year series of motions unrelated to the issues presented in this appeal, Gloria petitioned the court on March 10, 1989, to declare her John’s surviving spouse and to amend the list of heirs to include her name. After an exhaustive and contested hearing on the matter, the probate court granted Gloria’s motion on May 18, 1990. It is from this order that Julie now appeals to this court pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

Gloria’s claim of heirship is premised upon section 212(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1985, ch. 40, par. 212(b)) whereby her marriage to decedent allegedly became valid as of the date of her divorce from William.

Section 212 provides, in pertinent part, as follows:

“§212. Prohibited Marriages, (a) The following marriages are prohibited:
(1) a marriage entered into prior to the dissolution of an earlier marriage of one of the parties[.] * * *
(b) Parties to a marriage prohibited under subsection (a) of this Section who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment.” (Ill. Rev. Stat. 1985, ch. 40, par. 212(b).)

Thus, the trial court ruled that Gloria and John’s previously void marriage became lawful under section 212(b) because the impediment of Gloria’s previous marriage to William was removed and the couple subsequently cohabitated with each other.

On appeal, Julie first urges that the trial court erred in concluding that there was a marriage between John and Gloria. Specifically, Julie cites error in the trial court’s finding that: a marriage ceremony took place between the couple; the marriage license was properly executed; and Gloria’s testimony was credible. We disagree.

While a trial court’s decision in a case is always subject to review, a court of review may not reweigh the evidence or substitute its judgment for that of the trier of fact simply because it does not agree with the lower court or because it might have reached a different result had it been the trier of fact. A trial judge, as the trier of fact, is in a superior position to that of a reviewing court to observe the demeanor of witnesses while they testify, to judge their credibility, and to measure the weight their testimony should receive. As a result, a court of review will not disturb a trial court’s finding absent a conclusion that such finding was against the manifest weight of the evidence. In re Application of County Treasurer (1989), 131 Ill. 2d 541, 546 N.E.2d 506; Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Bl. 2d 172, 545 N.E.2d 684; In re Estate ofSchisler (1980), 81 Ill. App. 3d 280, 401 N.E.2d 301.

After a careful review of the record, we cannot conclude that the trial court’s judgment was contrary to the manifest weight of the evidence. We perceive no error in the trial court’s conclusion that a valid wedding ceremony had occurred and that such ceremony was duly recorded on the marriage license. Although it is true that Gloria’s testimony is not free from flaws, we are not of the opinion that it is so incredible or inconsistent that it warrants reversal of this cause. Rather, we believe there was sufficient evidence from which the trial judge could find a factual basis for concluding that a marriage ceremony occurred, the impediment of Gloria’s previous marriage to William was removed, and that the couple cohabitated subsequent to Gloria’s divorce such that the requisites of section 212(b) were met. Schisler, 81 Ill. App. 3d 280, 401 N.E.2d 301.

Still to be considered is Julie’s contention that the estate’s heirs were denied due process of law. We feel obliged to point out that the estate’s heirs are not parties to this litigation. Rather, this dispute is between the estate, represented by Julie as its independent administrator, and petitioner Gloria. Thus, it logically follows that the heirs could not be denied due process in a proceeding in which they played no part. Consequently, we find this contention is without merit.

In light of the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CERDA, J., concurs.

JUSTICE GREIMAN,

specially concurring:

The majority opinion is fair and equitable in result and I concur with it. However, I believe that the central issue in the case requires a different analysis.

The majority reasons that Gloria and John participated in a proper marriage ceremony; however, Gloria’s prior unresolved marriage was an impediment to a lawful marriage. The majority cites section 212 of the 1977 Illinois Marriage and Dissolution of Marriage Act (the Act), which provides that upon the removal of an impediment which would otherwise invalidate a marriage and subsequent cohabitation, the marriage is recognized as valid from the date of removal of the impediment.

At first glance In re Estate of Schisler (1980), 81 Ill. App. 3d 280, 401 N.E.2d 301, would seem to support that proposition. However, we must remember that the Act became effective October 1, 1977. In Schisler the invalid marriage ceremony took place in 1964. The impediment was removed in 1977 subsequent to the effective date of the Act.

However, in the case at bar, the marriage to which the majority seeks to give validity was performed in 1970 and the impediment removed in 1970 — seven years before the effective date of the Act. In Schisler, although the marriage ceremony was performed prior to the effective date of the Act, the removal of the impediment occurred after the effective date. Here, both the marriage and the removal of the impediment occurred long before the enactment of the Act and no part of the marriage transaction or removal of the impediment occurred under the aegis of the new legislation.

In 1977, Illinois adopted a modified version of the Uniform Marriage and Dissolution Act. (Ill. Rev. Stat. 1977, ch. 40, par. 305.) Before its enactment, marriages entered into where one party had a living spouse were absolutely void and only a reaffirmation by a valid marriage ceremony could revive such marriages. See, e.g., Kirkland v. Kirkland (1962), 38 Ill. App. 2d 280, 186 N.E.2d 794.

Since the central issue with respect to the timing of the marriage is the removal of the impediment, it is that critical action that must take place after the effective date of the Act to breathe vitality and life into what would otherwise be a void marriage. Had the parties entered into marriages with others during the period from 1970 to 1977, to whom would they be married after the effective date of the Act?

The majority misinterprets the legislative intent as to the retroactive effect of the Act. When detractors of the 1977 Act sought to make it applicable only to marriages entered into after the effective date of the Act, the sponsor acknowledged that it would be folly to have two marriage laws. The Act has application to the marriages existing at the time of enactment. Issues like marital property, child custody and a host of other provisions will be considered in light of the 1977 Act notwithstanding celebration of the marriage prior to the Act.

But the marriage of Gloria and John was not an existing marriage at the time of the effective date of the Act and no cognizable event took place after the effective date of the Act which would remove any impediment to the marriage of Gloria and John. I disagree with the trial court, which suggested that their continued cohabitation after the effective date of the Act was sufficient.

Although like the majority I believe that the trial court was correct in determining that the parties celebrated a marriage in 1970 and thereafter shared a rocky off-and-on existence for the next 16 years until John’s death, the actions of the parties prior to the enactment of the Act do not bring them within the penumbra of the Act by reason of section 212, but rather by section 305, which deals with the rights of a putative spouse.

That section provides:

“Any person, having gone through a marriage ceremony, who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited, under Section 212, or declared invalid, under Section 301 ***.” Ill. Rev. Stat. 1991, ch. 40, par. 305.

The purpose of section 305 is to provide a remedy for those persons who have celebrated a marriage ceremony and cohabited with each other and who in good faith believe themselves married, but who for other reasons would be denied the right of marriage. Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 64-, 394 N.E.2d 1204; Ill. Ann. Stat., ch. 40, par. 305, Supplement to Historical & Practice Notes, at 17 (Smith-Hurd 1992), citing In re Marriage of Flores (1981), 96 Ill. App. 3d 279, 421 N.E.2d 393.

The rights of a putative spouse include, among others, the rights of maintenance (In re Marriage of Belluomini (1982), 104 Ill. App. 3d 301, 432 N.E.2d 958) and inheritance. However, the primary inquiry in determining rights under section 305 is consideration that the putative spouse had the requisite good-faith belief in the validity of the marriage. Hence, we consider the subjective attitude as well as the knowledge of the putative spouse and limit that spouse’s rights to the period in which he or she was unaware of the invalidity of the marriage. See Hewitt, 77 Ill. 2d at 64.

Our statute is specifically drawn to provide for termination of the status of putative spouse and that time is when the putative spouse no longer has a good-faith belief in the validity of the marriage. (Daniels v. Retirement Board of Policemen’s Annuity & Benefit Fund (1982), 106 Ill. App. 3d 412, 435 N.E.2d 1276.) In Daniels, the plaintiff was always aware that her police officer husband was not divorced from his first wife; therefore, recognition of her rights under section 305 was not available to plaintiff to apportion her putative spouse’s pension.

Similarly, section 305 is not available to a putative spouse for loss of consortium where the accident occurred prior to the ceremony. Sostock v. Reiss (1980), 92 Ill. App. 3d 200, 415 N.E.2d 1094.

The language of the statute also frees us from the impediment that the marriage was celebrated prior to the adoption of the Illinois Marriage and Dissolution of Marriage Act in 1977 since, by its terms, it does not apply to common law marriages contracted in the State after June 30, 1905. We are led to the conclusion that it must apply therefore to marriages other than common law contracted during the period prior to the enactment of the 1977 revision.

In the case at bar there is little to indicate the scope of Gloria’s knowledge as to the infirmities of her marriage and when she became aware of those infirmities. However, the record does disclose that in 1989 she became aware of those infirmities after John’s death. In her direct testimony, she stated:

“I thought I was divorced from him in March. When I finally found out that I was truly divorced from Mr. McKuen was a couple of months ago [sic].”

Later on cross-examination she was questioned by defense counsel:

“Q. You applied for a marriage license with John on August 4th and you believed that got your divorce on March, 1970. Alright. And you would know that in August, you would know in August that you believed you got your divorce in March.
A. I still believe that. Yes.”

Accordingly, what little evidence we find in the record as to Gloria’s good-faith intentions clearly indicates that she was unaware that her marriage was the subject of any infirmities until after the death of John; her rights to participate in his property accrued pursuant to the provisions of section 305.

I believe, therefore, that the judgment of the circuit court of Cook County should be affirmed because Gloria has brought herself within the application of section 305.

That these are critical decisions for the court and the legislature is best evidenced by the Supreme Court:

“If there is one thing that people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom.” Estin v. Estin (1948), 334 U.S. 541, 553, 92 L. Ed. 1561, 1571, 68 S. Ct. 1213, 1220 (Jackson, J., dissenting), quoted in Note, Rights of the Putative Spouse Under Section 305 of the Illinois Marriage and Dissolution of Marriage Act, 3 S. Ill. U. L.J. 423, 423 (1978).

       We note that while the effective date of the Act was October 1, 1977, our review of its legislative history confirms that the General Assembly intended for the Act to have retroactive effect and that there not be a separate body of law governing marriages occurring before its enactment.

      See 80th 111. Gen. Assem., House proceedings June 15, 1977, at 27 (statements of Representatives Stearney and Jaffe).