author: JUSTICE JIGANTI

text:
    HAROLD F. RUDOLPH, Plaintiff-Appellant, v. SANTA FE PARK ENTERPRISES, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—3061
    Opinion filed March 15, 1984.
    Susan E. Loggans and Associates, and Galowich and Galowich, both of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (David Reed, of counsel), for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Harold E Rudolph, was injured when he was struck by a motor vehicle being operated at the racetrack owned by the defendant, Santa Fe Park Enterprises, Inc. The other defendants, Bruno Duerr and Kenny Kuehn, were agents of Santa Fe. Prior to bringing this action against Santa Fe for his injuries, Rudolph signed an exculpatory agreement on the date of the occurrence. Santa Fe filed a motion for summary judgment based on that executed agreement. The defendant’s motion was granted. Rudolph, on appeal, asserts that the exculpatory agreement was invalid because of the attendant circumstances surrounding its execution.

On September 23, 1978, upon arriving at the race track, Rudolph knew that in order to gain access to either the pit area or the infield, it was necessary for him to sign a form at the admission gate of the raceway. At the top of the document in bold face type the form was entitled “Waiver and Release.” The body of the form contained language exculpating the racetrack, its agents and employees from any accidents and injuries that may occur. On the above date, the plaintiff signed a “Waiver and Release” form at the bottom right hand corner. In that same corner was a lightly printed stamp saying that “I’ve read this release.”

The exculpatory agreement, as described by the plaintiff, was in “very small, almost illegible print.” The plaintiff also described that the lighting in the area of the admission gate was dim and was not sufficient to read the form.

Attached to the exculpatory agreement was a perforated card entitled “Pit Pass.” Upon entry to the pit area or the infield, the Pit Pass card was detached from the exculpatory agreement and the Pit Pass was given back to the admitee to be worn as identification. The Pit Pass also contained exculpatory language.

In addition to signing the exculpatory agreement described above, Rudolph had previously signed a similar form on June 10, 1978, which stated that it was to cover each and every race for the 1978 season at Santa Fe. Furthermore, between June 10 and the date that the accident occurred, September 23, 1978, the plaintiff, on at least eight other occasions, executed exculpatory agreements identical to the one signed on the date of the occurrence.

On the evening the accident occurred, the plaintiff was standing in the infield when he was struck and injured by the vehicle which was driven off the track. Rudolph was then taken to a hospital where he was treated for his injuries.

Rudolph contends that he never read the relevant exculpatory agreement or the exculpatory language on the Pit Pass. Moreover, Rudolph stated in his deposition that he never read any of the exculpatory agreements he signed before entering Santa Fe Park. Rudolph also contends that he did not have a fair opportunity to read the above documents due to the poor lighting and the pressure created by the crowd; that he understood the documents he signed to merely allow him access to the pit area and that he never intended to release Santa Fe for injuries he might sustain while watching the race; and that the agreements were not explained to him.

In support of these contentions regarding the invalidity of the exculpatory agreement, Rudolph’s principle reliance is on the case of Sexton v. Southwestern Auto Racing Association, Inc. (1979), 75 Ill. App. 3d 338, 394 N.E.2d 49. There, the plaintiff, Richard Sexton, entered the racetrack to act as a “pitman” in the pit area. He was required to pay a $3 fee to obtain a pass to gain access to the pit area on the infield and was told to sign a paper before the pass would be issued. He signed the exculpatory agreement and was subsequently injured when he fell into a mud hole in the infield. The defendants filed a motion to dismiss pleading the agreement. Sexton responded that there was no consideration and that the agreement was void against public policy. Sexton also claimed that the agreement was not explained to him and that he did not have knowledge of its content. Further, and most significantly, Sexton claimed that the written portion of the agreement that contained the exculpatory language was covered by another paper when he signed on one of the numerous signature lines provided, that there was no time to read the agreement and that he did not intend to so exculpate the defendants. The court in Sexton held that the circumstances surrounding the execution of the exculpatory agreement created questions of fact for the jury as to whether he knew or should have known he was signing a release of liability.

A release or an exculpatory agreement may be set aside if there is either fraud in the execution or fraud in the inducement. (Gutierrez v. Schultz (1982), 109 Ill. App. 3d 372, 440 N.E.2d 451; Sexton v. Southwestern Auto Racing Association, Inc. (1979), 75 Ill. App. 3d 338, 394 N.E.2d 49; Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 356 N.E.2d 639; Annot., 134 A.L.R. 6, 49-68 (1941); see generally D. Dobbs, Remedies sec. 9.6, at 645-46 (1973).) Fraud in the execution is where the party was induced to execute the release not knowing it to be a release but believing it to be an instrument of a different character. (Babcock v. Farwell (1910), 245 Ill. 14, 91 N.E. 683; see also Indiana, Decatur & Western R. R. Co. v. Fowler (1903), 201 Ill. 152, 66 N.E. 394 (an illiterate plaintiff signed a release without knowledge of what he was signing); Johnson v. Elgin, Joliet & Eastern Ry. Co. (1948), 338 Ill. App. 316, 87 N.E.2d 567 (plaintiff signed a release he believed to be an application for a job); Annot., 134 A.L.R. 49 (1941); Restatement (Second) of Contracts sec. 163 (1979); J. Calamari & J. Perillo, contracts sec. 9— 22, at 293-94 (2d ed. 1977).) Fraud in the inducement is where the party knows that he is executing a release but was induced to do so by false representations of the other party as to matters other than the character of the instrument. Babcock v. Farwell (1910), 245 Ill. 14, 91 N.E. 683; see also Ott v. Midland-Ross Corp. (6th Cir. 1979), 600 F.2d 24 (plaintiff was induced to sign a consultant agreement in return for relinquishing claims against the defendant); LeClair v. Wells (Me. 1978), 395 A.2d 452 (plaintiff signed a release after an insurance adjuster misrepresented material facts); McCall v. Trucks of Texas, Inc. (Tex. Civ. App. 1976), 535 S.W.2d 791 (plaintiff signed a release based on representations by the defendant of the quality of the truck purchased); Restatement (Second) of Contracts sec. 164 (1979); J. Calamari & J. Perillo, Contracts sec. 9 — 22, at 293-94 (2d ed. 1977).

We do not believe that Rudolph has made sufficient allegations to support fraud in the execution. This type of fraud appears to have been the basis of the decision in Sexton, the principle case relied on by Rudolph. The court in Sexton cited Kusturin v. Chicago & Alton R.R. Co. (1919), 287 Ill. 306, 122 N.E.512, and Johnson v. Elgin, Joliet & Eastern Ry. Co. (1948), 338 Ill. App. 316, 87 N.E.2d 567, to illustrate that circumstances surrounding the execution of a release can create questions of fact for the jury concerning the plaintiff’s knowledge at the time he signed the release. Kusturin involved a post-accident release in a FELA case in which the plaintiff could not speak or read any English and was told by a railroad claim agent that the release was a form necessary to obtain payment under the Workmen’s Compensation Act. Similarly, in Johnson, another FELA action, the evidence established that the defendant’s claim agent fraudulently represented the release to be an application for another job.

It is clear by citing these two cases that the court in Sexton was focusing its attention of the issue of fraud in the execution. In Sexton, the fact that the exculpatory language of the release signed by Sexton was covered when he signed it is evidence that fraud in the execution occurred. (See Provence v. Doolin (1980), 91 Ill. App. 3d 271, 414 N.E.2d 786.) In the instant case, Rudolph has failed to make any allegations that can be considered tantamount to fraud in the execution, that is signing an instrument of a different character than was represented. Neither the fact that the lighting may have been poor nor that Rudolph may have felt hurried in signing the release as a result of a crowd is sufficient to find fraud in the execution. Additionally, under these circumstances, the fact that Rudolph did not read the documents or that they were not explained to him cannot be a basis for finding fraud in the execution. The agreements were captioned in bold face type, “Waiver and Release.” The conspicuousness of this heading militates against Rudolph not knowing what he was signing. Moreover, Rudolph has a general duty to read documents before he signs them and the failure to do so will not render the document invalid. (See Hintz v. Lazarus (1978), 58 Ill. App. 3d 64, 373 N.E.2d 1018; see also J. Calamari & J. Perillo, Contracts sec. 9 — 42, at 328-29 (2d ed. 1977).) The plaintiff has failed in each instance to allege that the defendant did anything to create impressions that Rudolph was signing anything other than an exculpatory agreement. We cannot grant the plaintiff relief simply because he has failed to exercise reasonable care before signing the agreement.

Furthermore, there are no factual allegations stated to support a theory of fraud in the inducement. In the instant case, the plaintiff alleged that he did not read the exculpatory agreements; that he did not understand their purpose; that he never intended to exculpate Santa Fe for injuries he might sustain while watching the race; that he did not have a fair opportunity to read the documents; and that the agreements were not explained to him. None of these allegations allege any conduct that Santa Fe fraudulently induced the plaintiff to sign the exculpatory agreement.

Because the exculpatory agreement signed by the plaintiff is valid and has full effect in barring any claim for liability against Santa Fe, and the other named defendants as agents of Santa Fe, it is not necessary to respond to the additional issues in this case.

We affirm the judgment of the circuit court of Cook County.

LINN, P.J., and ROMITI, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN W. UNGER, M.D., Plaintiff-Appellant, v. CONTINENTAL ASSURANCE COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—1083
    Opinion filed March 8, 1984.

      William D. Maddux & Associates, of Chicago (William D. Maddux and Bruce Lane, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stephen R. Swofford, Milo W. Lundblad, Stephen D. Davis, and Joshua G. Vincent, of counsel), for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

The issue central to this action is whether the medical malpractice claim of the plaintiff, John W. Unger, is barred by the exclusive remedy provision of the Workers’ Compensation Act. (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).) The plaintiff alleged that while he was employed by Continental Assurance Company (CAC), he received a physical examination. The examination was performed by the plaintiff’s co-employee, defendant Dr. Carl R. Hines, who allegedly failed to diagnose the plaintiff’s lung cancer until repeat chest X rays were taken almost one year after the initial examination. The plaintiff filed suit against Hines and against CAC as the alleged employer of Hines. After the statute of limitations had expired on the plaintiff’s claim, CAC answered and denied that it was the employer of either the plaintiff or Hines. Thereafter, with leave of court, the plaintiff filed his first amended complaint which added Continental Casualty Company (CCC) as an additional defendant and alleged that the plaintiff and Hines were employed by both CAC and CCC.

The trial court granted summary judgment in favor of Hines, finding that the plaintiff’s cause of action was barred by the exclusive remedy provision of the Workers’ Compensation Act. Summary judgment was also granted in favor of CAC because the trial court found that it was not the employer of Hines. CCC was dismissed as a defendant on the basis that the plaintiff’s failure to name it within the statute of limitations was not inadvertent. The plaintiff now appeals the orders entered in favor of all three defendants.

We find that the plaintiff’s claims were barred by the exclusive remedy provision of the Workers’ Compensation Act. It is therefore unnecessary for this court to identify or address two other issues which have also been raised by the plaintiff on appeal.

The Workers’ Compensation Act bars a common law action by an employee against his employer or co-employees “for injury or death sustained by any employee while engaged in the line of his duty as such employee ***.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).) “Line of duty” injuries are those which “arise out of and in the course of employment.” (See McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 423 N.E.2d 876; McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 434 N.E.2d 377; Komel v. Commonwealth Edison Co. (1977), 56 Ill. App. 3d 967, 372 N.E.2d 842.) If an injury is found to have occurred in the “line of duty,” it is compensable under the Act. See Sjostrom v. Sproule (1965), 33 Ill. 2d 40, 210 N.E.2d 209.

In the case at bar, the plaintiff maintains that his is not a “line of duty” injury compensable under the Act because it is not what he terms a “work-related” condition or an injury that occurred “in connection with the treatment or examination of a work-related injury or condition.” Consequently,, the plaintiff contends that the Act does not bar his medical malpractice action against the defendant doctor. In contrast, the defendants argue that the plaintiff suffered a “line of duty” injury because his physical examination was performed by a co-employee and took place on the company premises during business hours. The defendants further point out that the physical was causally connected to the plaintiff’s employment because the plaintiff was told by his supervisor that he would be fired if he did not have a physical.

Two factual situations similar to the one presented in the case at bar have been addressed by the courts of Illinois. In McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 423 N.E.2d 876, the plaintiff injured his foot during the course of his employment and was treated by co-employee physicians on the company premises. The company physicians misdiagnosed the plaintiff’s injury and consequently aggravated the condition. The Illinois Supreme Court held that the Workers’ Compensation Act provided the sole means of recovery for the plaintiff’s injury and that the plaintiff could not pursue a common law malpractice remedy against his employer for the alleged negligence of its employee physicians.

Similarly, in McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 434 N.E.2d 377, the plaintiff injured his back during the course of his employment and visited his co-employee physician on the company premises. The plaintiff alleged that during the course of his treatment by the doctor, the doctor failed to diagnose or treat an existing tumor that was present in the same area where he had injured his back. The appellate court found that the plaintiff’s medical malpractice action against the company physician was barred by the exclusive remedy provision of the Workers’ Compensation Act. In reaching its holding, the court stated:

“It is the status of the person injured at the time of the injury, not the nature or source of the injury, that determines the exclusive application of the Act. (Ferguson v. Roundtable Motor Lodge (1980), 83 Ill. App. 3d 331, 404 N.E.2d 1039.) *** ‘In the course of employment’ relates to the time, place and circumstances of the injury, while ‘arising out of the employment’ refers to the requisite causal connection between the injury and the employment. (Martin v. Kralis Poultry Co. (1973), 12 Ill. App. 3d 453, 297 N.E.2d 610.) Thus, the exclusiveness of the Act precludes a common law action for damages by an employee against a co-employee based on the latter’s negligence during the course of their employment.” 105 Ill. App. 3d 350, 352, 434 N.E.2d 377, 380.

In the instant case, the injury complained of by the plaintiff is the defendant doctor’s alleged failure to properly diagnose the plaintiff’s lung cancer. The only real distinction between this case and McNeil is that the McNeil plaintiff initially visited the company physician for treatment of a work-related injury while the plaintiff in this case visited the company physician for the sole purpose of having a physical examination which was required by the employer. However, as we shall discuss below, we believe that this distinction is irrelevant where the doctor’s alleged negligence “arose out of” and “in the course of” both the plaintiff’s and the doctor’s employment and where the instant plaintiff occupied the status of employee at the time of his injury.

“ ‘In the course of employment’ relates to the time, place and circumstances of the injury.” (McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 352, 434 N.E.2d 377, 380.) In the instant case, the company doctor’s alleged negligence occurred during working hours on the company premises. Furthermore, at the time of the injury, both the plaintiff and the doctor were acting as employees. The circumstances surrounding the injury centered upon a physical examination required of company employees which had been sponsored and conducted by the plaintiff’s and the doctor’s employer for several years. We believe these facts are sufficient to prove that the plaintiff’s injury occurred “in the course of” his employment.

“ ‘[Ajrising out of the employment’ refers to the requisite causal connection between the injury and the employment.” (McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 352, 434 N.E.2d 377, 380.) We believe that a sufficient causal connection was demonstrated in this case because it was undisputed .that the plaintiff was told that he would be fired from his job if he did not complete a physical examination. Further, the physical examination was obviously provided to employees for the benefit of the employment relationship. Specifically, the employee would benefit by having his physical condition examined by a physician and the employer would benefit by ensuring the continued good health of the employees in whom the employer had invested time, training and money. We think these facts amply demonstrate that the plaintiff’s injury in this case “arose out of” his employment.

Furthermore, under McNeil, “It is the status of the person injured at the time of the injury, not the nature or source of the injury, that determines the exclusive application of the Act.” (McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 352, 434 N.E.2d 377, 380.) Where we believe that the instant plaintiff occupied the status of employee at the time of his injury, we find the reason he was compelled to visit his company doctor, for a physical examination rather than for a work-related injury, to be immaterial under McNeil. We therefore find that the plaintiff’s medical malpractice case against both the defendant doctor and his alleged employers was barred by the exclusive remedy provision of the Workers’ Compensation Act. Because we believe that the employers can in no event be held liable to the plaintiff under a common law theory of malpractice, it is unnecessary for this court to consider the remaining issues which pertain to the dismissal of CCC as a party and to the summary judgment entered in favor of CAC.

As a final matter, the plaintiff raises certain arguments concerning the dual capacity doctrine in its reply brief on appeal. However, because this issue was not properly raised in the plaintiff’s initial brief, we shall not consider the merits or ramifications of such an argument in this opinion. See 87 Ill. 2d R. 341(e)(7), (g).

For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

LINN, P.J., and ROMITI, J., concur.


author: JUSTICE McGLOON

text:
    RONALD NELSON, Plaintiff-Appellant, v. FREDERICK L. WARNKE, Defendant-Appellee.
    First District (1st Division)
    No. 82—2786
    Opinion filed March 5, 1984.

      Robert Handelsman and Lawrence Rubinstein, both of Robbins, Coe, Rubinstein & Shafran, Ltd., of Chicago, for appellant.
    Ronald O. Roeser, of Elgin, and John B. Biallas, of St. Charles, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff brought an action for an account in the circuit court of Cook County. Following combined motions to dismiss under sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 615, 2 — 619), the trial court dismissed the action with prejudice. The issue presented by this appeal is whether the trial court erred in dismissing the action.

We affirm.

In 1972, plaintiff, Ronald Nelson, entered into a limited partnership agreement with defendant, Frederick L. Warnke. Defendant was the general partner. The partnership was formed for the purpose of acquiring and operating eight apartment buildings. By February 1978, all the buildings had been sold. The net proceeds available for distribution were $247,000, of which $74,000 was due plaintiff. Although all the partnership debts and liabilities had been satisfied by April 1978, plaintiff did not receive the bulk of his share of the proceeds until November 4, 1980. On that date he received $70,750.83. (He had already received $6,500.) During the 2V2 year period when the funds were allegedly available for distribution to the limited partners, they were invested in certificates of deposit for a total of 15 months.

Plaintiff filed a complaint seeking an accounting in August 1981. The parties met on December 3, 1981, to discuss the pending action. After their meeting, defendant tendered a check to plaintiff in the amount of $5,854.79. By letter dated December 13, 1981, plaintiff informed defendant that he had been advised that defendant’s failure to invest the partnership funds was a violation of defendant’s fiduciary responsibility. This allegation was added to plaintiff’s second amended complaint. On October 18, 1982, the trial judge granted defendant’s motion to dismiss the second amended complaint and dismissed the cause of action with prejudice.

The issues presented by this appeal are: (1) whether defendant, as general partner, owed plaintiff a fiduciary duty to invest the funds held for distribution to the limited partners, and (2) whether the trial court erred in finding that an accord and satisfaction barred plaintiff’s claim.

Defendant concedes that as a general rule a fiduciary relationship exists between partners. (Bandringa v. Bandringa (1960), 20 Ill. 2d 167, 170 N.E.2d 116.) Plaintiff’s contention, that defendant is liable for allowing funds to remain in a non-interest-bearing account, is premised upon this general rule. However, we find controlling the fact that the partnership agreement specifically permits the general partner to invest partnership funds in non-interest-bearing investments. The right of partners to establish, by means of an agreement, the duties and obligations owed one another has long been respected by this court. (Estate of McKay v. Mosses (1976), 35 Ill. App. 3d 458, 343 N.E.2d 45; Meyer v. Sharp (1950), 341 Ill. App. 431, 94 N.E.d 510.) Where there is a partnership agreement, the court must construe it as any other contract to determine the duties of the parties. Estate of McKay.

Article IX of the agreement, entitled “Partnership Funds,” provides:

“The funds of the partnership shall be deposited in such bank account or accounts or invested in such interest bearing or non-interest bearing investments, as shall be designed by the general partner. All withdrawals from any of such bank accounts shall be made by the general partner or his duly authorized agent or agents.”

This provision governs defendant’s obligations toward the funds of the partnership. It is unambiguous in that it gives the general partner discretion to hold partnership funds in non-interest-bearing investments.

We are unconvinced by plaintiff’s argument that the provision is irrelevant because the funds at issue are “moneys earmarked for distribution” rather than “funds of the partnership.” A partnership remains in existence after dissolution until the winding up of the partnership’s affairs is completed. (Mandell v. Centrum Frontier Corp. (1980), 86 Ill. App. 3d 437, 407 N.E.2d 821.) Accordingly, we agree with the trial court’s finding that the funds were partnership funds. Therefore, under the terms of article IX of the partnership agreement, defendant was not obligated to place the funds in an interest bearing account.

Next, plaintiff contends that the trial court erred in dismissing plaintiff’s complaint under section 2 — 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(9)). To support this contention, plaintiff argues that the parties’ affidavits are merely contradictory regarding whether plaintiff’s acceptance of the check for $5,854.79 served as an accord and satisfaction. We need not, however, address this contention because the dismissal of a complaint will be upheld on any basis appearing in the record which demonstrates that the judgment is correct. White Fence Farm, Inc. v. Land & Lakes Co. (1981), 99 Ill. App. 3d 234, 424 N.E.2d 1370; Sandberg v. American Machining Co. (1975), 31 Ill. App. 3d 449, 334 N.E.2d 246.

The record before us establishes that plaintiff received a portion of his share of partnership assets on June 5, 1977, and the balance on November 4, 1980. After the instant action was filed, the parties met at defendant’s home. Defendant tendered to plaintiff a check for $5,854.79. In a letter dated December 13, 1981, plaintiff admits that he was able to verify that “the partnership funds had not been misappropriated; and that based upon the interest actually received from certificates of deposit, the amount still due [him] was $5,854.79.” Plaintiff also acknowledged receiving a check drawn on the partnership account in that amount. Having already determined that the partnership agreement allows defendant to deposit the partnership funds in non-interest investment, we find that plaintiff received all that was due him. Accordingly, we affirm the trial court’s order dismissing the complaint and striking the cause with prejudice.

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLYDE ROGERS, Defendant-Appellant.
    First District (1st Division)
    No. 82—22
    Opinion filed March 5, 1984.
    Rehearing denied April 9, 1984.

      James J. Doherty, Public Defender, of Chicago (Patricia J. Handlin and Mary T. Woodward, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Richard B. Levy, and Thomas Gearen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After a jury trial, defendant Clyde Rogers was convicted of murder, burglary and robbery. He was sentenced to concurrent terms of imprisonment of 65 years for murder, seven years for burglary, and seven years for robbery. Defendant appeals.

On appeal, defendant contends (1) the trial court erred in denying the motion to suppress his confessions; (2) hearsay evidence was improperly admitted; (3) the trial court erred in allowing evidence that one of defendant’s confessions was obtained in Pontiac, Illinois; (4) he was not proved guilty beyond a reasonable doubt; (5) his motion for a new trial was improperly denied; and (6) the trial court erred in imposing an extended-term sentence.

We affirm.

The charges against defendant arose from an incident during which Michael Lux was murdered and certain items were taken from Lux’ home. Prior to trial, a hearing was held on defendant’s motion to suppress. One statement was made on June 16, 1979, three days prior to defendant’s indictment. Three other statements were made after defendant’s arrest on July 31,1979.

At the hearing, Detective John Yucaitis testified that on June 16, 1979, he spoke to defendant at Pontiac Correctional Center about the murder of Michael Lux. He and his partner Dennis McGuire met with defendant at 11 a.m. Yucaitis read defendant his rights and defendant stated he understood them. He never threatened defendant or made any promises in exchange for defendant’s statement. Yucaitis told defendant that he had talked to Thomas Jones during the investigation and that Jones had been indicted. He also read parts of Jones’ statement to defendant. After Yucaitis told defendant facts learned during the investigation of the murder, defendant told of his involvement in the incident. During the interview, defendant asked about the possibility of being a State’s witness. Yucaitis told defendant that only the State’s Attorney could consider the matter.

Officer Dennis McGuire testified he was with Yucaitis when defendant was interviewed at Pontiac. Yucaitis gave defendant Miranda warnings at the beginning of the interview. During the interview, defendant gave a statement regarding the murder of Michael Lux. Defendant was never threatened or promised anything in exchange for his statement.

Detective Peter Dignan testified that on July 31, 1979, he and his partner Robert Dwyer were instructed to bring defendant from the penitentiary at Pontiac to Chicago. When defendant was in their custody, Dignan advised defendant that he had been indicted for the murder of Lux and read defendant his rights. Defendant said he understood his rights. They brought defendant to Chicago and interviewed him at the State’s Attorney’s office. Prior to the interview, defendant was again advised of his rights. Defendant gave a statement and agreed to have it transcribed. Dignan contacted Assistant State’s Attorney Rakoczy. Rakoczy told defendant he had been indicted, told defendant his rights and interviewed defendant. Before defendant’s statement was transcribed, defendant was again advised of his rights. Each time Miranda warnings were given defendant said he understood his rights and defendant never attempted to invoke his right to remain silent or his right to counsel. Defendant was never promised leniency in return for his statement or threatened. The testimony of Detective Robert Dwyer corroborated that of Dignan.

Assistant State’s Attorney Mark Rakoczy testified that when he met with defendant on July 31, 1979, he told defendant about the indictment and advised defendant of his rights. Defendant said he understood his rights. Rakoczy asked defendant whether he had been threatened or if any promises had been made to him and defendant replied no. Defendant never asked to speak to an attorney. Rakoczy never discussed the possibility of defendant being a State’s witness in exchange for his statement.

Defendant testified that on June 16, 1979, he was imprisoned at Pontiac for a parole violation. On that day, he spoke with two Chicago police officers who asked defendant to give a statement about the murder of Michael Lux. Defendant said he wanted his lawyer present, but Yucaitis told him he did not need a lawyer. Yucaitis told him that Jones had been indicted, was in custody, and had given a statement. In his statement, Jones said Willie Henderson had shot the victim. Yucaitis threatened to charge defendant with murder and recommend the death penalty if defendant refused to give a statement. Yucaitis also told defendant he would never be released from prison if he did not cooperate. On July 31, 1979, Dignan and another Chicago police officer took defendant from Pontiac to Chicago. He was never advised of his rights. Defendant requested the presence of his attorney, but Dignan said that was not necessary. Defendant said he would not sign any statements, but Dignan threatened to charge defendant with murder and seek the death penalty. Dignan also said that if defendant cooperated, he would be a State’s witness. Later, defendant was questioned by the State’s Attorney who failed to advise defendant of his rights. The State’s Attorney also threatened to charge defendant with murder if defendant failed to cooperate.

The trial court denied defendant’s motion to suppress. Thereafter, the court ordered that defendant and Thomas Jones be tried simultaneously before separate juries. The following evidence was presented at trial.

Peter Lux testified that on June 16, 1978, at about 5:45 p.m., he spoke to his brother Michael Lux (the victim). The following day, he was unable to contact the victim by phone. He became worried and, at about 2 p.m., went to his brother’s home. He discovered the victim’s body on the dining room floor. The victim’s hands and feet were bound and a belt was fastened around his neck. The house was in disarray. Lux phoned police. He noticed that two televisions and some jewelry were missing from the home and the victim’s car was not in the garage.

Officer Dominick Alston and Detective Peter Dignan took part in the investigation at the victim’s home on June 17, 1978. They observed the victim’s body, bound hand and foot with electrical cord, lying on the dining room floor. A belt was wrapped tightly around his neck. Dignan testified the body was cold and advanced post-mortem lividity was evident in the victim’s hands, arms, back and legs. Both witnesses testified that they observed drag marks on the living room and dining room carpeting from the corner where the victim’s television set once stood to the kitchen at the rear of the home. The house had been ransacked, but there were no signs of forcible entry. Dignan further testified he examined the garage with Peter Lux and noticed that a pane of glass had been forced from a window. The victim’s auto had been stolen.

Mitra Kalelkar performed the autopsy on Michael Lux. External and internal examinations indicated that the cause of death was asphyxiation due to strangulation with the belt.

Joe Tallie testified that on June 16, 1978, he resided across the street from the victim. At about noon, Bruce O’Neal, Tom Jones and Willie Henderson arrived at his home. Henderson said that he, Jones and defendant were going to “rip off the old white man across the street.” The next day, he saw police officers at the victim’s home. Tallie further testified that he spoke to police about the murder about one year later.

Detective John Yucaitis testified that on June 11, 1979, he and his partner John Ryan went to speak to Joe Tallie. Yucaitis left a business card because Tallie was not home. The following evening Tallie phoned Yucaitis, who then spoke to Tallie at his home. After the conversation, Yucaitis and Ryan arrested Thomas Jones. On June 16, 1979, Yucaitis and Detective McGuire went to Pontiac, Illinois, to interview defendant. They told defendant they wanted to question him about the murder of Michael Lux and advised defendant of his rights. Defendant then stated that on the day of the murder, he, Willie Henderson, Thomas Jones and Joe Tallie were at Tallie’s home and planned to “rip off” the old man who lived across the street. Later that evening, defendant, Jones and Henderson went to Lux’ back door. When Lux answered, defendant fled because he thought Lux had a gun. Henderson and Jones hid under the porch. Defendant returned 10 or 15 minutes later and found that Lux was dead. Jones said Henderson killed Lux. The men took two television sets, put them in the victim’s car, drove to Jones’ home and brought the televisions inside. They abandoned the car in an alley and threw the keys into a vacant lot. The next day, Jones sold the televisions and jewelry and gave defendant $85.

Detective Peter Dignan testified he arrested defendant at Pontiac, Illinois, on July 31, 1979. He drove defendant to the State’s Attorney’s office at 26th and California in Chicago. In the presence of Dignan and his partner, defendant made a statement concerning the murder of Michael Lux. Defendant was advised of his rights at the time of his arrest and prior to giving his statement.

Dignan testified that defendant gave the following statement. On June 11, 1978, defendant, Jones and Henderson were at Henderson’s home. Henderson said he knew an old, rich man in the neighborhood and “he wanted to rip him off.” They talked about breaking into the man’s house, and Henderson suggested they do it the following day. Jones suggested and they all agreed to break in the evening of the 16th because a band would be playing at the home next door and no one would hear them. When they arrived at Lux’ residence that evening, defendant watched the victim through a window near the back door. Henderson made noise and Lux came to the back door. Defendant thought Lux had a gun and ran to the side of the house. When Lux answered the door, Henderson, who had been hiding under the porch with Jones, jumped the victim. Defendant ran from the scene and returned shortly thereafter. When he entered the house, he saw that Lux was dead. Henderson said he had to kill Lux because during a struggle with the victim, Jones called out Henderson’s name. Thereafter, the men took two televisions, jewelry and other items from Lux’ home and put them in the car in the garage. The next day, they sold the items taken from Lux’ home.

Mark Rakoczy testified that he spoke with defendant in the presence of Dignan and Dwyer. He first advised defendant of his rights. Defendant agreed to have his statements transcribed. Defendant read and signed the statement. Rakoczy read defendant’s statement in court. Defendant’s written statement is virtually identical to the oral statement given to Dignan and does not merit recitation.

First, defendant contends the trial court erred in denying his motion to suppress. He maintains the evidence shows his confessions were obtained by coercion and without a knowing waiver of his right to remain silent and his right to counsel.

The critical question in deciding a motion to suppress is whether the confession was voluntary and given without compulsion or inducement which would overcome defendant’s will. (People v. Kincaid (1981) , 87 Ill. 2d 107, 429 N.E.2d 508; People v. Prude (1977), 66 Ill. 2d 470, 363 N.E.2d 371.) In deciding this question, the totality of circumstances must be considered (People v. Prude (1977), 66 Ill. 2d 470, 363 N.E.2d 371; People v. Mitchell (1981), 98 Ill. App. 3d 398, 424 N.E.2d 658), and the trial court’s decision will not be reversed unless it is against the manifest weight of the evidence. People v. Dalton (1982) , 91 Ill. 2d 22, 434 N.E.2d 1127; People v. Dixon (1982), 105 Ill. App. 3d 340, 434 N.E.2d 369.

In this case, there is ample evidence which if believed by the trial court indicates that defendant’s statements were voluntary. The facts show tha., defendant was fully advised of his rights prior to each interrogation and no force, coercion, threats or promises were used to induce the confessions. The fact that defendant’s testimony contradicts that of the State’s witnesses is not a basis for reversal. Contradictions in the evidence are best resolved by the trial court, whose duty is to decide the credibility of witnesses and the weight to be accorded their testimony. (People v. Dixon (1982), 105 Ill. App. 3d 340, 434 N.E.2d 369; People v. Lester (1981), 102 Ill. App. 3d 761, 430 N.E.2d 358.) In view of the evidence, we find the trial court’s denial of defendant’s motion to suppress is not against the manifest weight of the evidence.

Second, defendant contends the testimony of Joe Tallie was inadmissible where the State failed to offer independent evidence of a conspiracy.

Under the co-conspirator’s declaration exception to the hearsay rule, declarations of one co-conspirator are admissible against another. (People v. Olmos (1979), 77 Ill. App. 3d 287, 395 N.E.2d 968.) A conspiracy need not be charged, but a prima facie case of conspiracy must be established and it must be shown that the statements were made during the course and in furtherance of the conspiracy. Olmos; People v. Meagher (1979), 70 Ill. App. 3d 597, 388 N.E.2d 801.

A person commits conspiracy when, with the intent that an offense be committed, he agrees with another to commit that offense. (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 2.) Here, the State presented independent evidence of a conspiracy. Defendant’s statements to Yucaitis, Dignan, and Assistant State’s Attorney Rakoczy evidence the agreement and intent to commit an offense. The statements to Tallie were made on the day the incident occurred. Additionally, the trial court could have reasonably concluded that the statements made to Tallie were a request for his assistance or a warning not to interfere. Such statements are clearly in furtherance of the conspiracy. We therefore find no error in the admission of Tallie’s testimony.

Defendant’s third contention is that the trial court erred in allowing Yucaitis and Dignan to testify that defendant was questioned and arrested at Pontiac, Illinois. He argues he was prejudiced by the references to the city because trials stemming from riots at the correctional facility there were being publicized at the time of his trial. Thus, the jury could have concluded that defendant had been imprisoned for other charges prior to his arrest.

In ruling on defendant’s motion to prohibit the introduction of this evidence, the trial court prohibited the State from referring to or inferring that defendant was in a correctional facility. Only the city of Pontiac was mentioned during the trial testimony of Yucaitis and Dignan. The jury was never informed of defendant’s incarceration and the State never attempted to infer this fact at any time during the trial. Therefore, we find no error in the admission of this evidence.

Fourth, defendant contends he was not proved guilty of murder, robbery and burglary beyond a reasonable doubt either as a principal or by accountability. Even accepting defendant’s version that he fled before his companions entered the home, we nonetheless find that defendant was proved guilty under an accountability theory.

Where a defendant has solicited, aided, abetted or agreed or attempted to aid another in the planning or commission of an offense with the intent to promote or facilitate the commission of the offense, he is legally accountable for the conduct of another. (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c).) Whatever is done in furtherance of the design is the act of all, and each is guilty of the crimes that are committed. People v. Muellner (1979), 70 Ill. App. 3d 671, 388 N.E.2d 851.

Defendant’s statements and confessions evidence an agreement to commit burglary. In these, defendant stated he and the other men planned to break in later that evening and “rip off” the victim. Defendant also assisted in removing property from the home and transporting it to Jones’ home. Defendant received money from the sale of stolen goods. The evidence was sufficient to prove defendant guilty of burglary. Defendant’s robbery and murder convictions should also stand." Even if defendant was not present at the time the victim was threatened and murdered, his knowledge and planning of the criminal scheme and subsequent participation and execution are sufficient to hold him accountable. People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29; In re M.H. (1980), 85 Ill. App. 3d 385, 406 N.E.2d 873.

Fifth, defendant contends the trial court erred in denying his motion for a new trial where the State withheld evidence requested during discovery which was material to the issue of guilt. The alleged discovery violation arose from the State’s failure to inform defendant that Bruce O’Neal was a party to the conversation with Tallie and that Tallie had testified against O’Neal in criminal intimidation proceedings. However, we find that the denial of the post-trial motion was proper. Upon learning of an alleged nondisclosure, a defendant must take affirmative action by seeking a continuance or requesting appropriate sanctions and cannot wait until after trial and verdict to complain. (People v. Williams (1980), 91 Ill. App. 3d 631, 414 N.E.2d 1235.) Defendant learned of the evidence during trial, failed to take any action then, and thus waived his objections to the nondisclosure.

Finally, defendant contends the trial court committed reversible error in imposing an extended-term sentence of 65 years for murder where there was no proof of exceptionally brutal or heinous behavior and where he was convicted only as an accomplice who did not actively participate in the offense.

The fact that defendant was convicted as an accomplice does not affect the application of the extended-term statute (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2). As noted in People v. Gray (1980), 87 Ill. App. 3d 142, 408 N.E.2d 1150, the imposition of an extended-term sentence is determined by the offense, not the nature and degree of defendant’s participation. Furthermore, unnecessary additional physical intrusions, such as binding or terrorizing victims, are proper factors upon which to base an extended term. (People v. Viens (1982), 109 Ill. App. 3d 1017, 441 N.E.2d 660.) In imposing the sentence, the trial court cited the fact that the victim was bound and found that the crime was accompanied by particularly brutal behavior. Considering these factors and giving the proper deference and weight to the sentencing decision (People v. Butler (1976), 64 Ill. 2d 485, 356 N.E.2d 330), we find defendant’s contention to be without merit.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE McNAMARA JUSTICE RIZZI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL COWAN, Defendant-Appellant.
    First District (3rd Division)
    No. 82—1781
    Opinion filed March 14, 1984.
    RIZZI, J., dissenting.
    James J. Doherty, Public Defender, of Chicago (Kathleen M. McGinnis and Judith A. Stewart, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Adam Dabek, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant Earl Cowan was charged with two counts of armed robbery, two counts of armed violence, and one count each of home invasion, burglary, unlawful restraint, aggravated kidnaping and attempt burglary. A jury found defendant guilty of unlawful restraint and attempt burglary and acquitted him of all the other charges. The trial court sentenced him to extended terms of 10 years for attempt burglary and six years for unlawful restraint. The sentences were to run consecutively with 15 months credit for pretrial incarceration only on the attempt burglary sentence. On appeal defendant contends that he was not proved guilty beyond a reasonable doubt; that the prosecutor’s closing argument was inflammatory and prejudicial; that the trial court erred in giving a Prim instruction to the jury; and that the trial court abused its discretion by imposing multiple extended terms to be served consecutively.

James Wolf, a homosexual, testified for the State that on the evening of April 24, 1981, defendant broke in the back door of Michael Dermody’s apartment where Wolf was staying. Wolf was residing there to help Dermody, 88 years old, in and out of bed and with meals. Wolf testified that he was sleeping on the floor when defendant entered. Defendant said that he needed help because four white men were chasing him. Defendant placed a telephone call ostensibly to the police but Wolf did not hear the conversation. When Wolf suggested calling the police again, defendant told Wolf to do so, but Wolf hesitated because he was not sure of the emergency number. Defendant placed another telephone call and looked out the window. He then drew a knife and robbed Wolf and Dermody. Defendant directed Wolf to carry the stereo downstairs to Wolf’s automobile and subsequently defendant took a television set. As they walked, defendant asked who lived across the hall. Wolf told him that Wallie Mitomme, an elderly lady, lived there, and defendant threw his shoulder against the Mitomme door. The door did not give, and the men proceeded to Wolf’s automobile. Defendant told Wolf to keep his head down and drove to an apartment building in Oak Park where they brought the stereo and television. After a few minutes, defendant told Wolf he would bring him back. Defendant drove awhile, stopped and told Wolf to keep his head down. Defendant departed and after a few minutes Wolf drove to the Oak Park Police Station to report the incident.

Wallie Mitomme testified that she was sleeping when she heard a loud noise in her living room. She went back to sleep and the next day she saw that her door was splintered.

Michael Dermody testified that he was awakened by voices. He saw Wolf standing there with a black man.

After conducting an investigation, the Oak Park police obtained a search warrant for the apartment of defendant’s brother. There, they seized the stereo, television set and two knives.

Defendant testified that as he urinated in an alley, he saw a man in an apartment window motioning him to come upstairs. Wolf invited him in for a drink and then made homosexual advances to which defendant acquiesced. Defendant refused Wolf’s request to stay all night, but accepted Wolf’s offer to drive him to defendant’s brother’s apartment. Defendant earlier had offered to try to repair Wolf’s stereo and television, and the men brought the sets with them. Defendant was arrested at his brother’s apartment on the following day.

Defendant initially contends that he was not proved guilty of the attempt burglary of the Mitomme apartment and of the unlawful restraint of James Wolf beyond a reasonable doubt. It is fundamental that the credibility of witnesses and the weight to be given their testimony is for the jury, and the reviewing court will not substitute its judgment for that of the jury merely because the evidence is conflicting, unless guilt has not been established beyond a reasonable doubt. (People v. Anderson (1964), 30 Ill. 2d 413, 197 N.E.2d 24.) Here, the triers of fact rejected some of Wolf’s testimony, as was their prerogative, but they did not find him incredible. Moreover, Wolf’s testimony was corroborated by that of Wallie Mitomme who found her door splintered the next morning. There was sufficient evidence to establish defendant’s guilt of both crimes.

We next consider defendant’s contention that the trial court erred in giving a Prim instruction to the jury.

When the trial was concluded, the jury received the instructions and retired to deliberate at noon. During the course of their deliberations on that day, the jury sent three notes to the judge. The first note requested a copy of the trial transcript to review Wolf’s testimony. The trial court denied the request. The next two notes stated as follows:

“4:14
Your honor—
We are totally deadlocked. There is no way that we will be able to unanimously agree one way or another. The evidence is inconclusive.
(signed) Bill Frey, Foreperson
Your honor—
We have carefully deliberated each and every charge and are completely and hopelessly unable to unanimously agree on either a guilty or not guilty verdict. We believe that further progress is ‘impossible’ (6 votes) ‘unlikely’ (6 votes).
(signed) William Frey — Foreperson.”

The jury deliberations continued until 7 p.m. when the judge ordered the jury sequestered for the night. The next morning after 45 minutes of deliberation, a fourth note was sent to the judge. It read, “Your honor, this jury will never reach a unanimous decision on any of the nine counts, (signed) Bill Frey, Foreperson.” At this time, over the objection of defense counsel, the judge read a Prim instruction to the jury and thereafter the jury returned a guilty verdict on two counts and acquittals on seven counts.

In People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, our supreme court dealt with the issue of supplemental instructions to deadlocked juries. Although the court recognized the possible coercive effect of a supplemental instruction, it believed a deadlocked jury should not be left to grope without some guidance from the trial court. Pursuant to its supervisory powers, the court set forth a specific instruction which avoided the coercive language previously used in Allen instructions. (See Allen v. United States (1896), 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154.) The Prim instruction, which was given almost verbatim by the trial court in the present case, was based on the recommendations of the American Bar Association Project on Minimum Standards for Criminal Justice. The trial court has great latitude as to when a Prim instruction should be given. (People v. Preston (1979), 76 Ill. 2d 274, 391 N.E.2d 359.) The time at which it is given as well as the surrounding facts are considered in determining the coercive effect on the jury. (People v. Bonds (1980), 87 Ill. App. 3d 805, 410 N.E.2d 228.) There is less danger of coercion when the instruction is given to a venire (People v. Bonds), or to a jury which has not reached a deadlock. People v. Wilson (1976), 37 Ill. App. 3d 560, 346 N.E.2d 161; People v. Prim.

We hold that the giving of the Prim instruction in the present case, rather than properly given to guide the jury, had a coercive effect on the jury and was prejudicial to defendant. Contrary to the effect the instruction was intended to provide, the trial court left the deadlocked jury groping without guidance after it sent two deadlocked notes and, only after the third note, provided the jury with the Prim instruction. We have not found a case where the use of the Prim instruction was approved after eight hours of deliberation and three deadlocked notes. In the Prim case, a supplemental instruction was given after the jury had deliberated only four hours and the foreman indicated that he believed a unanimous verdict was possible. See also People v. Canale (1972), 52 Ill. 2d 107, 285 N.E.2d 133 (supplemental instruction after seven hours of deliberations and foreman’s statement that a verdict could be reached in a reasonable period of time); People v. Preston (1979), 76 Ill. 2d 274, 391 N.E.2d 359 (Prim instruction after 6V2 hours of deliberations and foreman’s statement that the jury had not completely reached a verdict); People v. Harris (1981), 96 Ill. App. 3d 970, 422 N.E.2d 208 (Prim instruction given at start of the second day of deliberations after jury indicated for first time that it was deadlocked.)

Although we do not establish a rigid rule that a Prim instruction after three deadlocked notes is coercive, we find from the surrounding circumstances that the instruction in the present case had a coercive effect. The verdicts reached here, guilty on two of the least serious charges and not guilty on the seven more serious charges, indicate a compromise was reached after the jury was told to keep deliberating despite its deadlock. Where the jury was repeatedly told it must continue to deliberate after eight hours of deliberations and several notes stating it “will never reach a unanimous decision,” the jury may well have believed it had no other choice but to reach a verdict.

Two cases cited by the State in support of its contention that the Prim instruction was properly given, People v. Harris (1981), 96 Ill. App. 3d 970, 422 N.E.2d 208, and People v. Allen (1977), 47 Ill. App. 3d 900, 365 N.E.2d 460, are factually distinguishable from the present case. In those cases, the judges received only one or two deadlocked notes. The notes did not comment negatively about the evidence, nor did the verdicts reached reflect a compromise or coercion.

In light of our holding that the Prim instruction had a coercive effect on the jury, we need not address the errors claimed by defendant with regards to the sentence imposed and the alleged impropriety of the prosecutor’s closing argument.

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

Reversed and remanded.

McGILLICUDDY, J., concurs.

JUSTICE RIZZI,

dissenting:

I do not agree with the majority that the Prim instruction had a coercive effect on the jury. Also, I do not believe that the trial court erred in giving the Prim instruction. Accordingly, I would affirm the judgment.

The jury found defendant guilty of unlawful restraint and attempt burglary, and not guilty of burglary, home invasion, aggravated kidnaping, two counts of armed violence and two counts of armed robbery. I fail to see how this finding demonstrates coercion. To me, the fact that the jury did not reach the same finding as to all counts mitigates against the allegation that the jury was coerced. (See People v. Harris (1981), 96 Ill. App. 3d 970, 976, 422 N.E.2d 208, 212.) Moreover, the jury was not polled. While it is not necessary that a jury be polled in order to establish coercion, the fact that the jury was not polled militates against a conclusion that the jury was coerced.

In addition, I see no error by the trial judge in giving the Prim instruction. The jury began its deliberation at noon. During the course of the deliberation on that day, the judge received two notes from the jury indicating that it was deadlocked. At 7 p.m., the judge ordered the jury sequestered for the night. Deliberation by the jury began the following day at 9 a.m. At 9:45 a.m., the jury sent the judge a third note stating that it was deadlocked. At that point, after less than eight hours of deliberation, the judge read the Prim instruction to the jury. Thereafter, the jury returned its verdict. The record does not demonstrate how long the jury deliberated after it was read the Prim instruction. However, even if the jury had deliberated only a short period, that would not demonstrate that the jury was coerced. In People v. Preston (1979), 76 Ill. 2d 274, 285, 391 N.E.2d 359, 364, the court stated: ‘ ‘Nothing in Prim, where the court found no coercion although the jury deliberated only 15 minutes after receiving the instruction, requires a reversal.”

Under the circumstances, I see no reason to reverse the trial judge’s decision to give the jury the Prim instruction. Plainly, it is within the trial judge’s discretion to permit further deliberation even after the jury has stated that it is hopelessly deadlocked or that it cannot reach a verdict. (People v. Allen (1977), 47 Ill. App. 3d 900, 906, 365 N.E.2d 460, 464; People v. Harris (1981), 96 Ill. App. 3d 970, 975-76, 422 N.E.2d 208, 212.) In Allen, after deliberating between six and seven hours, the jury indicated that it was deadlocked. The court then sequestered the jury for the evening and deliberation resumed for about two hours on the following morning. At that point, the jury again indicated in somewhat stronger terms its inability to reach a verdict. The court then read the jury the Prim instruction, and a verdict was reached approximately l/2 hours later. (People v. Allen (1977), 47 Ill. App. 3d 900, 906, 365 N.E.2d 460, 464.) The judgment in Allen was affirmed. In Harris, after a period of deliberation, the jury informed the trial court that it could not reach a verdict. The trial court arranged for overnight housing. The following morning, the foreman sent a note to the trial court which stated, “ T believe that this jury is hopelessly deadlocked (11 to 1) and that further discussion would be pointless.’ ” At that point, the jury had been deliberating for 11 hours. The trial judge then gave the jury the Prim instruction, and the jury subsequently found the defendant guilty on two counts of armed robbery and two counts of armed violence. The defendant was found not guilty on two counts of unlawful restraint. The judgment was affirmed. (People v. Harris (1981), 96 Ill. App. 3d 970, 975, 422 N.E.2d 208, 212.) Here, although the jury sent the trial court three notes stating that it was deadlocked, it had been deliberating less than eight hours when it was read the Prim instruction. The eight-hour deliberation was certainly not unduly long. Thus, I believe that the trial judge acted properly when he gave the jury the Prim instruction.

To my knowledge, up until now, there has never been a criminal case in Illinois in which a verdict was reversed on the ground that the jury was coerced after the Prim instruction was given. While this fact may not be of controlling significance in itself, it does suggest to me that reviewing courts have taken the perspective that trial judges must be given ample discretion and “great latitude” in deciding whether to give the jury the Prim instruction. (People v. Preston (1979), 76 Ill. 2d 274, 283-84, 391 N.E.2d 359, 363.) There is nothing in this record to demonstrate that the trial judge abused that kind of discretion. Moreover, I believe that the majority opinion will unduly restrict the discretion that is to be exercised by trial judges, because it will dissuade the judges from giving the Prim instruction after they have received three notes indicating that a jury is deadlocked. In effect, the use of the Prim instruction will be curtailed to the extent that its use will have a Plimsoll mark, below which trial judges will not act.

The majority seems to place significance on its conclusion that the notes commented “negatively about the evidence.” However, that conclusion can be reached about any note from any jury that states that it is deadlocked. Of course, if a jury did not feel “negatively” about the evidence to some extent, it would not be deadlocked. Thus, contrary to what is stated by the majority, the notes from the jury in the present case were no different from the notes in any other case where the jury stated that it was deadlocked and use of the Prim instruction was approved. (See People v. Allen (1977), 47 Ill. App. 3d 900, 906, 365 N.E.2d 460, 465 (1977); People v. Harris (1981), 96 Ill. App. 3d 970, 975, 422 N.E.2d 208, 212.) Also, if the length of time that the jury is allowed to deliberate is not unreasonable, it should make no difference whether the jury gives the judge two notes or three notes stating that it is deadlocked. It is the function of the jury to continue to deliberate and resolve any deadlock situation it may encounter unless the deadlock continues for an unreasonable length of time. I do not regard an eight-hour period of deliberation to be unreasonable under the circumstances of this case.

In light of my disagreement with the views and holding expressed by the majority in regard to the Prim instruction, I shall not address the other errors claimed by defendant with regard to the sentence imposed and the alleged impropriety of the prosecutor’s closing argument other than to state that I have reviewed these alleged errors, and I believe that defendant’s arguments are without merit. Also, I agree with the majority that there was sufficient evidence to prove defendant guilty of the two crimes for which he was convicted. Accordingly, I would affirm the judgment.

      The majority opinion refers to an additional note. In its first note, the jury requested a copy of the trial transcript in order to review Wolf’s testimony. The court denied the request. It is within the discretion of the trial court to allow or refuse a request for review of testimony (People v. Davies (1977), 50 Ill. App. 3d 506, 513-14, 365 N.E.2d 628, 634), and the court here did not abuse its discretion in denying the jury’s request.


author: JUSTICE GOLDBERG

text:
    WILLIAM McCARTHY, Plaintiff-Appellant, v. MORGAN M. FINLEY, Clerk of the Circuit Court, et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—1537
    Opinion filed March 5, 1984.

      Edward T. Graney, Michael D. Gerstein, and William J. O’Connor, all of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and James McVane, Jr., Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

William McCarthy (plaintiff) filed a class suit against Morgan M. Finley, clerk of the circuit court, Edward J. Rosewell, county treasurer of Cook County, and the County of Cook (defendants). Plaintiff alleged unlawful collection of fees by defendants for the filing of motions to vacate judgments. Plaintiff prayed declaratory and other relief. Plaintiff filed a motion for summary judgment. Defendants filed a response and plaintiff filed a further response. The motion for summary judgment was denied. After an evidentiary hearing, the trial court entered judgment for defendants. Plaintiff has appealed.

Prior to 1981, the statute regulating fees charged by the clerk of the circuit court (Ill. Rev. Stat. 1979, ch. 25, par. 27.2) provided:

“(7) Petition or motion to vacate, alter or modify any judgment, decree or other final order of Court, if filed later than 30 days after the entry of a judgment or order, except in forcible entry and detainer cases and small claims cases, $10.
(8) Petition to vacate judgment of dismissal for want of prosecution, whenever filed, $10.”

Effective in 1981, these subparagraphs of the statute were amended to authorize clerk’s fees as follows (Ill. Rev. Stat., 1982 Supp., ch. 25, par. 27.2(7)):

“(a) Petition for modification of a judgment, decree or order of Court, except in forcible entry and detainer cases and small claims cases; petition to vacate judgment of dismissal for want of prosecution; petition to reopen an estate; petition to vacate order of default, if filed before 30 days after the entry of such judgment decree or order, $20.
(b) Petition for modification of judgment, decree or order of Court, except in forcible entry and detainer cases and small claims cases; petition to vacate judgment of dismissal for want of prosecution; petition to reopen an estate; petition to vacate order of default, if filed later than 30 days after the entry of such judgment decree or order, $30.”

Simple examination of these statutes demonstrates immediately and conclusively that the purpose of the amendment was to increase the income of the clerk’s office. The fee of $10 provided in the former law is gone. It is replaced by fees of $20 and $30. Also, at the evidentiary hearing, there was strong testimony from persons associated with the drafting of the 1981 amendment that the purpose of the amendment was to alleviate a huge deficit resulting from operation of the office of the clerk of the circuit court. Two witnesses so testified. One witness, the director of the Judicial Advisory Commission, bluntly stated the purpose of the amendment was, “To raise the fees.”

A transcription of the debate held on the floor of the Illinois House of Representatives on May 18, 1981, shows Representative Getty stating, “Presently, the Circuit Court of Cook County is operating at a very substantial deficit in the millions of dollars. This [Bill] will provide the additional revenue so it will at least be a break-even operation. I know of no opposition.” It is impossible to conceive of passage of an amendment to reduce the clerk’s fees under these circumstances.

Plaintiff contends that the collection by the clerk of a fee for filing a motion to vacate a judgment is unlawful because the amended statute does not specifically authorize such a fee. Plaintiff bases this contention on the fact that the previous version of the statute authorized the collection of a fee for the filing of a “(petition or motion to vacate, alter or modify any judgment,” (Ill. Rev. Stat. 1979, ch. 25, par. 27.2(7)). The current statute refers twice only to a “[p]etition for modification of a judgment” (Ill. Rev. Stat., 1982 Supp., ch. 25, pars. 27.2(7)(a), (b)).

The difficulty with this contention is that it is entirely contrary to accepted and established legal principles. As shown, it is abundantly clear from the face of these statutory enactments that the legislature intended simply to increase the funds generated from operation of the clerk’s office. Also, there is definite and uncontradicted testimony leading to the same conclusion from persons closely connected to the drafting of the later statute. The record before us shows simply an obvious mistake in the wording of this statute.

In this regard, the supreme court has repeatedly described the function of this court in considering the meaning of legislation. In People v. Beam (1979), 74 Ill. 2d 240, 242-43, 384 N.E.2d 1315, the supreme court stated:

“The primary function of the court in construing a statute is to give effect to the intention of the legislature. [Citations.] *** Courts are not bound, however, by a literal reading of a statute if that reading was clearly not intended. [Citation].”

In the instant case, plaintiff contends “vacate” is different from “modification” so that under the 1981 statute the clerk could not charge a fee for the filing of a motion for vacation of a judgment either before or after 30 days after entry, but could only charge fees for the filing of a petition for modification of the judgment. Defendants contend “modification” includes “vacation” under the pertinent statute. In our opinion we need not consider these contentions. The supreme court has approved a direct and much simpler method of solving this problem.

In People v. Garrison (1980), 82 Ill. 2d 444, 412 N.E.2d 483, appeal dismissed (1981), 450 U.S. 961, 67 L. Ed. 2d 610, 101 S. Ct. 1475, the supreme court struck the word “excepted” from a statute and substituted the word “expected.” The supreme court held (82 Ill. 2d 444, 455):

“The cardinal rule of statutory construction is to effectuate the intent of the legislature. [Citations.] When necessary to achieve that goal a court may alter, supply or modify words and correct obvious mistakes. [Citations].”

Other cases in Illinois have utilized this power of the court to prevent failure of a statute to perform its proper function. Among these cases see Community Consolidated School District No. 210 v. Mini (1973), 55 Ill. 2d 382, 386-87, 304 N.E.2d 75, appeal dismissed (1974), 416 U.S. 923, 40 L. Ed. 2d 279, 94 S. Ct. 1921; Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 128, 302 N.E.2d 64; People ex rel. Barrett v. Anderson (1947), 398 Ill. 480, 485-86, 76 N.E.2d 773; Rushton v. O'Malley (1980), 89 Ill. App. 3d 103, 411 N.E.2d 528. In addition, there is testimony in the record that a therapeutic amendment to the statute has been offered to the legislature. This amendment will make the issue before us either de minimis or moot.

In accordance with the authorities above cited, it is ordered that the judgment appealed from, entered herein on June 16, 1983, shall be and is hereby modified by inserting in subparagraphs (7)(a) and (7)(b) of section 27.2 of the Clerks of Courts Act (Ill. Rev. Stat., 1982 Supp., ch. 25, par. 27.2), between the words “for” and “modification” the additional words “vacation or.” As thus modified the judgment appealed from is affirmed.

Judgment modified and affirmed.

McGLOON and CAMPBELL, JJ., concur.


author: PRESIDING JUSTICE LINN

text:
    DAVID COMASTRO, Plaintiff-Appellant, v. THE VILLAGE OF ROSEMONT, Defendant-Appellee.
    First District (4th Division)
    No. 82—2771
    Opinion filed March 15, 1984.

      Stephen E. Alloy, of Susan E. Loggans and Associates, of Chicago, for appellant.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, of counsel), for appellee.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Plaintiff, David Comastro, filed an action in the circuit court of Cook County seeking damages from defendant, the village of Rosemont (Village), for injuries he allegedly sustained as a result of the Village’s negligent failure to use due care in patrolling its premises and thereby prevent a criminal attack by an unknown third party. The Village responded by filing a motion for summary judgment, arguing that as it had no duty to protect Comastro from random criminal attack, no genuine issue of material fact existed, and the Village was entitled to summary judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005.) The Village’s motion was granted, and Comastro now appeals.

The sole issue raised on appeal is whether the trial court erred in granting summary judgment to defendant, the village of Rosemont.

We reverse the entry of summary judgment by the trial court and remand the case for trial on the issues of breach of duty, proximate cause of injury, and damages.

Facts

The record discloses that Comastro, his brother, and some friends were among the audience at a September 20, 1980, rock concert presented by the group AC/DC at the Rosemont Horizon, a large arena owned by and located in the village of Rosemont. When Comastro and his girlfriend arrived at the Horizon, he saw several Rosemont policemen directing traffic into the parking lot. At each entrance to the arena, police personnel wearing yellow jackets were conducting pat-downs of the incoming patrons and confiscating any bottles, cans, fireworks, drugs, or weapons found. During the concert, the traffic officers patrolled the parking lot to discourage vandalism, catch bootleg vendors of AC/DC items, and prevent damage to the private property surrounding the Horizon.

After the concert was over, the police assumed the task of helping the 18,000 spectators leave the building in a safe, orderly manner. According to the depositions of Comastro and the resident manager of the Horizon, no fights or arguments had broken out during the concert, no one was observed drinking, and the only “rowdiness” was some dancing in the aisles.

Following the concert, the members of Comastro’s party left the arena, stopped briefly on the walkway outside the door, and then parted to go to their cars. As Comastro looked back, he saw a large male hit his brother; he went back and asked what the trouble was, whereupon the unknown male attempted to punch him. Comastro hit back and broke his hand. At that moment another assailant began hitting Comastro on the back of the head, and an empty bottle came down on his shoulder. With that, the assailants fled. Comastro located his girl friend, but neither she nor any of his brother’s friends had witnessed the incident. Although Comastro did not report the attack to any Horizon official or the local police, he did relate the incident to his attorney, who thereafter filed this suit.

Opinion

In order to prevail in a negligence action, a plaintiff must prove that the defendant breached a duty owed to plaintiff and thereby proximately caused plaintiff’s injuries. (Gill v. Chicago Park District (1980), 85 Ill. App. 3d 903, 407 N.E.2d 671.) A trial court may enter summary judgment only when, after examining all the pleadings, depositions, and affidavits, it concludes that no genuine issue of material fact exists between the parties and summary judgment may be entered as a matter of law. (Kusiciel v. LaSalle National Bank (1982), 106 Ill. App. 3d 333, 435 N.E.2d 1217; Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005.) Conversely, if a court is presented with disputed facts or conflicting inferences, entry of summary judgment is inappropriate. Marciniak v. O’Connor (1981), 102 Ill. App. 3d 381, 430 N.E.2d 536.

The existence of a duty, i.e., the legal obligation imposed upon one person or entity for the benefit of another, is a question of law to be determined by the court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.) On the other hand, questions concerning a breach of that duty and proximate cause of injury are questions for the trier of fact. Johnson v. Hoover Water Well Service, Inc. (1982), 108 Ill. App. 3d 994, 439 N.E.2d 1284.

In its motion for summary judgment, the Village acknowledged that although the general rule is that a person has no duty to protect someone from criminal attack by third persons (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 306 N.E.2d 39), its relationship to Comastro was, as Comastro alleged in his amended complaint, that of an owner of business premises to a business invitee, one of four “special relationships” recognized as exceptions to the general rule. (Burks v. Madyun (1982), 105 Ill. App. 3d 917, 435 N.E.2d 185; Krautstrunk v. Chicago Housing Authority (1981), 95 Ill. App. 3d 529, 420 N.E.2d 429; Restatement (Second) of Torts sec. 314A (1965).) These four “special relationships,” which do give rise to a duty to protect another from harm, are (1) carrier-passenger, (2) innkeeper-guest, (3) business inviter-invitee, and (4) voluntary custodian-protectee under certain limited circumstances. In each one of these relationships, the carrier, the innkeeper, the business inviter, and the voluntary custodian all owe their respective charges a duty to protect them from harm as long as they have the requisite “knowledge of previous incidents or special circumstances [that] would charge the owners [carriers, etc.] with knowledge of the dangers and the duty to anticipate it.” O’Brien v. Colonial Village, Inc. (1970), 119 Ill. App. 2d 105, 108, 255 N.E.2d 205, 207.

The duty imposed on a private party, who may or may not be involved in a special relationship, is to exercise reasonable care under the circumstances to the extent of its undertaking. (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596.) A municipal corporation engaged in a nongovernmental function, such as the operation of a public stadium or arena (Gill v. Chicago Park District (1980), 85 Ill. App. 3d 903, 407 N.E.2d 671), a public transportation system (McCoy v. Chicago Transit Authority (1977), 69 Ill. 2d 280, 371 N.E.2d 625), or a public housing project (Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038), will be held to the same standard of care as that imposed on a private party. In situations involving one of the “special relationships” discussed above, the “extent of the undertaking” is the special relationship itself; the common carrier, like the innkeeper, the business inviter, and the custodian, is “bound to exercise a high degree of care toward its passengers and this include [s] the responsibility to prevent injuries which could have been reasonably foreseen and avoided.” Letsos v. Chicago Transit Authority (1970), 47 Ill. 2d 437, 441, 265 N.E.2d 650, 653.

Noting that business visitors subjected to personal attack are owed the same duty by the premises owner as are owed by the carrier to its passengers, Haynes v. Chicago Transit Authority (1978), 59 Ill. App. 3d 997, 1002, 376 N.E.2d 680, 684, concluded,

“[0]nce a common carrier has knowledge of prior criminal acts or a condition which might result in an assault on its passengers, it is duty bound to take reasonable precautions for the protection and safety of its passengers.”

What precautions are reasonable is a question for the trier of fact.

In its motion for summary judgment, the Village conceded its special relationship to plaintiff; the main issue, therefore, is whether or not the Village had sufficient knowledge so that the likelihood of danger to its patrons was reasonably foreseeable. The Village argued that it did not have this requisite knowledge of prior criminal acts or special circumstances that would charge a premises owner with knowledge of the danger and the resulting duty to take reasonable precautions to prevent harm to its invitees. In support of its position, the Village noted that the depositions and affidavits of Horizon management personnel, representatives of the producing organization, and Comastro himself all contained statements that no unruly behavior had taken place in the arena, no fights had broken out, and no drinking had been observed. Therefore, the Village concluded, it had insufficient warning of possible danger to its patrons to hold it liable for negligence. While we agree that those statements would support a contention of insufficient notice on the part of Franklin Fried Associates, another of the original defendants and the author of the motion for summary judgment in question, we do not agree that they suffice in the case of the Village, the defendant that simply adopted that motion without alteration to reflect facts within its knowledge.

The deposition of Donald Stephens, deputy chief of police of the Rosemont Police Force, clearly demonstrated that the Village, which retained authority over all exterior portions of the Horizon and its grounds as well as provided security inside the arena, had advance notice of potential trouble at the AC/DC rock concert. The police department had telephoned several other locations where the group had performed and had learned of the specific problems previously encountered by those other arenas. Further, AC/DC had performed at the Horizon only a year before, at which time, according to Stephens, “we learned pretty good. *** The band attracts a rowdy type of — a very rowdy, drunkers, drug users.” We find, therefore, that the Village had sufficient advance warning of potential trouble at the concert in question to establish a duty owed to its business invitees to take reasonable steps and exercise the degree of care and vigilance practicable under the circumstances to prevent the injury. (Letsos v. Chicago Transit Authority (1970), 47 Ill. 2d 437, 265 N.E.2d 650.) Whether the actions of the Village in deploying the police everywhere except the parking lot after the concert constituted a breach of that duty is a question to be determined by the trier of fact.

On appeal, the Village alternatively claimed that it was shielded from liability for negligently failing to protect its citizens from criminal attack by “the general rule of non-liability of municipalities for failure to exercise general police powers.” However, the Village presented no arguments to establish the necessary fact that its activities at the Horizon were those of a municipality engaged in a governmental function and supplying only general police protection to preserve a community’s well-being. Instead, Comastro’s observation, corroborated by the deposition of the deputy chief of police, that the policemen conducting the patdowns and maintaining order inside the Horizon were wearing yellow jackets instead of their official uniforms indicates that the police were providing special protection to specific members of the community. The duty of the police acting in their official capacity to preserve a community’s well-being is owed to the community at large, not to specific members of the community (Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 410 N.E.2d 610); it is this general duty, not any special duty owed to a specific individual or group, that is subject of the general rule that a municipality is not liable for failure to supply general police protection. Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214.

Even if the police had been acting in their official capacity, the recent case of Krautstrunk v. Chicago Housing Authority (1981), 95 Ill. App. 3d 529, 420 N.E.2d 429, appears to indicate that a duty to protect against criminal attack will arise when the police are paid to provide “a level of service greater than that afforded other [village] residents.” (95 Ill. App. 3d 529, 530, 420 N.E.2d 429, 431.) In Krautstrunk, the Chicago Housing Authority paid for extra police patrols of the Cabrini-Green housing project. That action, by which the residents of Cabrini-Green were afforded police protection greater than the customary police protection provided Chicago residents, was deemed a voluntary undertaking, and the police were held to a duty to perform it with reasonable care. Correspondingly, the actions of the police at the Horizon in providing the patrons with greater protection than that offered to the Village residents at large was a similar type of voluntary undertaking to which the same duty should apply.

Other instances of the voluntary assumption of a duty where none is imposed by law appear in the many landlord-tenant cases cited by Comastro. A landlord in Illinois is under no obligation to keep his premises safe from criminal activity. (Pippin v. Chicago Housing Au thority (1979), 78 Ill. 2d 204, 399 N.E.2d 596.) However, once he elects to do so, he owes a duty to his tenants to perform that service with such competence and skill as he possesses, for liability then rests on a breach of the duty to perform the gratuitous service with due care. (Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038, citing Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769.) It appears clear to us that when the situation in the instant case is analyzed under either the business inviter-invitee theory or the police protection theory, the result is the same: the village of Rosemont owed Comastro a duty to use reasonable care in providing for his safety while he was on the premises of the Horizon.

For all the reasons discussed above, we find as a matter of law that the Village owed Comastro a duty as a patron of the Horizon to exercise reasonable care to protect him from criminal attack. Whether the Village breached that duty by deploying the security personnel as it did and thereby proximately caused Comastro’s injuries are material issues of fact which must be determined by the trier of fact. The entry of summary judgment in favor of the Village was error, and we accordingly reverse the judgment of the trial court and remand this case for trial.

Reversed and remanded.

JOHNSON and JIGANTI, JJ., concur.