author: JUSTICE REINHARD JUSTICE LINDBERG,

text:
    ANN MARIE DEZORT DELASKY, Successor Adm’x of the Estate of Frank J. Dezort, Jr., Deceased, Plaintiff-Appellant, v. THE VILLAGE OF HINSDALE, Defendant-Appellee.
    Second District
    No. 81—682
    Opinion filed October 18, 1982.
    LINDBERG, J., dissenting.

      George N. Avgeris, of Hinsdale, for appellant.
    Stanley J. Davidson, David P. Meyer, and Oliver W. Gregory, Jr., all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

This is the third appeal to this court in this case, wherein, plaintiff, Ann Marie Dezort Delasky, successor administratrix of the estate of Frank J. Dezort, Jr., seeks to recover in a wrongful death action from defendant, the Village of Hinsdale, for the suicide of her father while a prisoner in defendant’s village jail. Frank J. Dezort, Jr., was found hanged in his cell on December 21, 1971, and thereafter this action was filed on behalf of the estate alleging the negligence of police officers employed by defendant in failing to exercise reasonable care for the preservation of Dezort’s life while in their custody. The trial court originally granted summary judgment in favor of defendant. This court reversed (Dezort v. Village of Hinsdale (1976), 35 Ill. App. 3d 703, 342 N.E.2d 468 (Dezort 2)) in an opinion which defined defendant’s duty of care for the health and life of a prisoner in its jail.

Upon remand, a jury trial was held, resulting in a verdict for defendant and a specific finding that Dezort was guilty of contributory negligence. This judgment was reversed (Dezort v. Village of Hinsdale (1979), 77 Ill. App. 3d 775, 396 N.E.2d 855 (Dezort II)) on the basis of several instructional errors. The cause was remanded and heard as a bench trial wherein the parties stipulated that the evidence was the record of the prior jury trial in the case. After consideration of the transcript and exhibits of that proceeding, the trial court found no negligence on the part of the defendant, and entered judgment in defendant’s favor. Plaintiff appeals, contending that the judgment is contrary to the manifest weight of the evidence.

We summarize only the evidence pertinent to resolve the issue before us on appeal. On or about the 21st of December 1971, Frank J. Dezort, Jr., the decedent, age 43, arrived at his home in the early morning hours. He was described by family members as being drunk, argumentative, and upset. The decedent got into an argument with several family members and pushed his wife. During or just after this argument, the decedent attempted to go into a closet containing rifles and reached for one of the rifles. He was restrained and pulled out of the closet by two of his daughters. In grabbing for the decedent, one of the daughters noticed that he was wearing a belt in his pant loops. Dezort told his family members that he did not want to hurt anyone anymore and that they should call the police before he did something that he did not want to do.

At approximately 4:50 a.m. two Hinsdale policemen, Patrolman Chester Hall and Sergeant Richard Lyons, arrived at the Dezort residence in response to a call concerning a family disturbance. The family members did not tell the officers about the incident that had occurred before the officers arrived. As the two officers approached the house, they heard shouting from inside. When the two officers entered the front room, the decedent came down the hall shouting at them. He attempted to shove Sergeant Lyons. He grabbed at Officer Hall who pushed him away. At this time the decedent said words to the effect “shoot me and get it over with” or “shoot me or I’ll take your gun and do it myself.” Officer Hall believed that Dezort was trying to get his service revolver from him, although Officer Hall believed Dezort was playacting and that Dezort was not using all the force he could. The two officers were able to calm the decedent and they took him into the kitchen where he sat at the kitchen table. Both officers were of the opinion that decedent was moderately intoxicated.

The decedent at this time quickly became remorseful, apologetic and depressed, but the officers did not characterize his conduct as crazy or wild. He started crying. Officer Hall felt his conduct was playacting for sympathy. At this point Mrs. Dezort said something to the decedent and he immediately became angry and shouted at her. Lyons told the decedent to “shut up” and the decedent responded by cursing the officer and saying words to the effect “why don’t you just shoot me” and “shoot me or I’ll take your gun and shoot myself.” Officer Hall felt this threat was in a taunting tone of voice. Sergeant Lyons, in response to this, zipped up his outer jacket to cover his service revolver in order to prevent the decedent from obtaining his weapon. At this point the decedent jumped Lyons and grabbed for his gun. Officer Hall moved in to assist and in the scuffle all three men fell to the floor. The decedent then succeeded in grabbing Officer Hall’s service revolver, and the two officers managed to disarm the decedent and pin him to the floor. Officer Hall noted at trial that the decedent, who was rather large, did not seem to be putting up much of a fight. Sergeant Lyons, however, indicated that it took both of them to pin the decedent to the floor.

The decedent again became remorseful and apologetic and allowed himself to be handcuffed. While Sergeant Lyons was out of the room, Officer Hall searched the decedent for weapons. He did not recall whether the decedent was wearing a belt at this time. The two officers then escorted the decedent to a patrol car and placed him in the backseat. Sergeant Lyons drove the decedent to the station house approximately four blocks away while Hall followed in his squad car. The entire incident at the Dezort house took approximately 15 minutes.

The decedent was taken to an interrogation room where he was told that he was going to be charged with disorderly conduct and informed that he could post bail and be released. The decedent said words to the effect that “he did not wish to post bail and that he just wanted to be locked up.” The decedent at this time was slightly remorseful and moderately intoxicated. Sergeant Lyons left the room and Officer Hall conducted a quick search of the decedent. Hall was not asked to describe the extent of the quick search. When Sergeant Lyons returned, the decedent emptied his pockets and was told to remove his watch. When the decedent began to argue, the officers allowed him to keep his watch to keep him from “flying off the handle.” Sergeant Lyons, who had left the room, testified that he instructed the decedent to take up a position leaning against the wall so that he could be searched. Officer Hall then told him that the decedent had already been searched. Officer Hall’s version of this conversation differed slightly in that he testified that Sergeant Lyons told the decedent he would have to take his belt off, and decedent responded by pulling up his shirt and stating he didn’t have a belt. Both officers then escorted the decedent to his cell. Officer Hall described decedent’s behavior at that time as calm, submissive and apologetic. He told the officers that “he just wanted to get out of the house” and that “his fight was with his family, not with us.” Officer Hall said that when decedent was placed in his cell he couldn’t detect any effect of alcohol in his speech or walk.

The decedent was placed in a cell at approximately 5 a.m. Later, Sergeant Lyons instructed Officer Hall to look in on the decedent because he had acted or looked a little strange. The officer said he gave this instruction because he wanted to make sure that the decedent was alright and to see if he later wanted to post bail. Officer Hall checked in on the decedent approximately one hour later at a little after 6 a.m. At approximately 7 a.m. Dezort was found dead hanging by the neck from his belt.

Anthony S. Kuharich testified as an expert witness for plaintiff that the Bureau of Detentions Standards and Services of the Illinois Department of Corrections had adopted Municipal Jail and Lock-up Standards, which had been distributed to the various municipal jails and lock-ups in the State of Illinois. Those standards provided that a prisoner showing any evidence of a mental disorder should not be housed in a municipal jail or lock-up, but rather should be referred to an appropriate facility. The Hinsdale Police Department had adopted in 1966 a local regulation, which read, “Before locking up a male prisoner, an officer shall make a careful search and take from him everything which could be used in effecting an escape, or to injure himself, including necktie, belt, and shoestrings.” In response to a hypothetical question, which included as facts to be assumed that the deceased had a belt upon his person, but which question did not describe where the belt was worn or if it was concealed, Mr. Kuharich stated his belief that the search conducted by the police was not complete and was not adequate to this type of defendant. The witness testified that an individual of this kind “should have been very very thoroughly searched.”

Ordinarily, in reviewing the findings of fact of the trial court in a bench trial in which the evidence is conflicting, a reviewing court will not substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110, 382 N.E.2d 1205; Schwarzwalder v. Waitkoss (1981), 101 Ill. App. 3d 337, 428 N.E.2d 633.) However, if the evidence before the trial court consists of depositions, transcripts, or is documentary in nature, the appellate court is not bound by the trial court’s findings and may make an independent decision on the facts. (Wolverine Insurance Co. v. Jockish (1980), 83 Ill. App. 3d 411, 413-14, 403 N.E.2d 1290; Northern Trust Co. v. Tarre (1980), 83 Ill. App. 3d 684, 690, 404 N.E.2d 882; Cassidy v. Luburich (1977), 49 Ill. App. 3d 596, 600, 364 N.E.2d 315; Barraia v. Donoghue (1977), 49 Ill. App. 3d 280, 283, 364 N.E.2d 952.) Accordingly, we have made an independent examination of the stipulated transcript evidence.

In Dezort v. Village of Hinsdale (1976), 35 Ill. App. 3d 703, 342 N.E.2d 468 (Dezort I), we held that the duty of law enforcement officers to those who have been arrested and incarcerated under their care is “to exercise ordinary and reasonable care for the preservation of their prisoner’s health and life under the circumstances of the particular case.” (35 Ill. App. 3d 703, 710, 342 N.E.2d 468; see also Civil Liability of Prison or Jail Authorities for Self-Inflicted Injury or Death of Prisoner, Annot., 79 A.L.R.3d 1210 (1977); Restatement (Second) of Torts sec. 314A(4) (1965).) We further stated that whether the defendant failed to act in accordance with that standard was a question for the trier of fact, and under the facts before us in Dezort I summary judgment was improperly granted.

In determining whether there is a breach of the duty owed as stated in Dezort I, we must examine whether the defendant here exercised ordinary and reasonable care for the protection of their prisoner’s health and life under the circumstances of the particular case. In other jurisdictions, courts have looked to “special circumstances” which form the basis of a jailer’s liability for a prisoner’s act of self-destruction. (Pretty on Top v. City of Hardin (Mont. 1979), 597 P.2d 58; Wilson v. City of Kotzebue (Alaska 1981), 627 P.2d 623; Falkenstein v. City of Bismark (N.D. 1978), 268 N.W.2d 787; Lucas v. City of Long Beach (1976), 60 Cal. App. 3d 341, 131 Cal. Rptr. 470.) Such “special circumstances” where a jailer knows or should know of the suicidal tendencies of a prisoner are found in cases where the prisoner is intoxicated (Wilson v. City of Kotzebue (Alaska 1981), 627 P.2d 623; Shuff v. Zurich-American Insurance Co. (La. App. 1965), 173 So. 2d 392); the condition of the jail is conducive to committing suicide (Falkenstein v. City of Bismark (N.D. 1978), 268 N.W.2d 787); or there is a prior history or warning of a suicidal tendency. (Porter v. County of Cook (1976), 42 Ill. App. 3d 287, 355 N.E.2d 561.) On the other hand, liability has not been found where the prisoner did not have a history of mental disease or emotional disturbances or attempted suicide previously (Pretty on Top v. City of Hardin (Mont. 1979), 597 P.2d 58), or his emotional upset was no different from others who are intoxicated or under the effect of drugs. (Lucas v. City of Long Beach (1976), 60 Cal. App. 3d 186, 131 Cal. Rptr. 470.) While some decisions have decided the issue of a jailer’s responsibility for his prisoner’s suicide under the particular facts under an analysis of intervening act and proximate cause (see, e.g., City of Belen v. Harrell (1979), 93 N.M. 601, 603 P.2d 711; Pretty on Top v. City of Hardin (Mont. 1979), 597 P.2d 58; Lucas v. City of Long Beach (1976), 60 Cal. App. 3d 186, 131 Cal. Rptr. 470), initially we must determine whether the defendant negligently breached its duty to exercise ordinary and reasonable care for preservation of the prisoner’s health and life under the circumstances of the particular case. (See Dezort I, 35 Ill. App. 3d 703, 710, 342 N.E.2d 468.) That issue is a question of fact to be determined from the evidence adduced at trial.

It is the plaintiff’s contention that a careful or thorough search would have disclosed Dezort’s belt, and considering the rules and regulations of the Village of Hinsdale Police Department, State Municipal Jail Standards, and the testimony of Anthony Kuharich on good police practice on searches of prisoners, the defendant was negligent. The defendant argues that under the circumstances of the case the search of Dezort was sufficient.

While this is a close case, we agree with the trial court that the defendant was not negligent under the facts of this particular case. First, we believe that from the evidence it is not unreasonable to conclude that Dezort was not a suicide risk. Officer Hall testified that when Dezort was placed in his cell he could not detect any effect of alcohol in Dezort’s speech or walk. He further described Dezort’s behavior then as calm, submissive and apologetic. No past history of mental illness or past suicidal tendencies were communicated to or known to the officers, nor is any such evidence present in the record. The evidence of a suicidal tendence most strongly relied upon by the plaintiff is Dezort’s two statements at the home to the effect shoot me or I’ll take the gun and shoot myself, followed on the second occasion by his grabbing of Officer Hall’s gun. However, the statements were uttered in a taunting tone toward the officers in the family home during an emotional family argument probably not uncommon in the ordinary investigation of domestic disputes by police officers. Also, it is not unusual for' a physical confrontation with investigating officers particularly by one who may be intoxicated and upset over a family matter. Moreover, Officer Hall felt some of Dezort’s actions may have been “playacting” for sympathy. Police officers generally are not equipped to recognize and analyze emotional problems of persons charged with crimes and particularly those who may appear to be intoxicated. (See Dezort I (1976), 35 Ill. App. 3d 703, 709-10, 342 N.E.2d 468.) Under these facts, the police officers exercised ordinary and reasonable care for their prisoner.

Concluding that Dezort’s conduct at his home and later at the jail gave rise to no special circumstances which might alert the defendant’s police officers that Dezort was a suicide risk, we must examine whether, alone, the failure to find his belt with which he hanged himself was a breach of the duty to exercise ordinary and reasonable care for the life of their prisoner. There was in existence a rule of the Village of Hinsdale Police Department requiring that before locking up a male prisoner, “an officer should make a careful search and take from him everything which could be used in effecting an escape or injure himself, including necktie, belt and shoestrings.” Also, Anthony S. Kuharich testified as an expert witness for plaintiff that the search conducted by the police was not complete and adequate for this type of defendant. Violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence, but a violation does not constitute negligence per se, for the evidence of negligence may be rebutted by proof that the party acted reasonably under the circumstances, despite the violation. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) Here it is contended by plaintiff that since the search failed to disclose the belt, it was not a careful search, thereby violating the department rule which constituted negligence by the officers. Defendant argues that the circumstances of the case govern the type of and thoroughness of the search. We agree with the defendant that under these facts the officers acted reasonably and the search was sufficient to satisfy the village police department rule.

According to Officer Hall, two searches of the decedent were conducted. The first took place at the Dezort home and was conducted to check for weapons. At the police station, Hall had Dezort empty his pockets and himself made a quick search of the decedent. Additionally, Hall testified that when Sergeant Lyons told Dezort he would have to take his belt off, decedent held up his shirt and said he did not have a belt. From our examination of the record of the questioning of Officer Hall, it does not reveal the technique used by Hall in conducting the quick search. Instead he was primarily examined by plaintiff under section 60 about whether a belt could be concealed so as to avoid detection. Officer Hall conceded that it would have been possible to feel a concealed belt through the material of the decedent’s clothing, but that “in most searches, you inadvertently skip areas.” Moreover, Hall stated that if the belt had been tightly rolled, it could have been concealed in the decedent’s crotch or the area between the buttocks and not disclosed even during a pat search. Hall testified that a partial strip search would have disclosed the belt. Anthony S. Kuharich, plaintiff’s expert, testified that under the facts, a careful and thorough pat search would have required the officer to search the prisoner with two hands, touching every part of his body. The officer should have searched the waistband very carefully for any materials secreted here and then have searched down each leg and into the crotch in the front of his groin, and his buttocks. He should examine every crevice. If the officer was not satisfied, or if a belt which the officer believed present had not been discovered, a partial strip search or a full strip search should be conducted.

Whether the officers were negligent depends upon whether they exercised ordinary and reasonable care for the preservation of Dezort’s health and life under the circumstances of this particular case. Here they were dealing with a family disturbance. Two searches of Dezort and questioning of him about his belt took place. He was charged with the misdemeanor offense of disorderly conduct. There was no prior history of suicidal tendencies or an express present threat of suicide. He appeared calm and submissive at the time he was placed in his cell. Under all the circumstances of this particular case, we reach the same conclusion as the trial judge did that the officers were not negligent. We will not find negligence just because the belt with which Dezort hanged himself was not found in the search conducted by the officers. Rather, in reviewing all the facts, including the type of offense the officers were investigating and Dezort’s entire conduct from the initial encounter to his eventual incarceration, we find the search conducted by the officers was in the exercise of ordinary care for their prisoner. We do not feel a partial or full strip search was warranted under these facts. We note that under current law, not in effect at the time of this occurrence, that “[n]o person arrested for a traffic, regulatory or misdemeanor offense, except in cases involving weapons or a controlled substance, shall be strip searched unless there is a reasonable belief that the individual is concealing a weapon or controlled substance.” (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 1(c).) Accordingly, we find the officers’ conduct was not negligent under the record before us, and we need not decide whether the decedent was contributorily negligent or his injuries were proximately caused by the defendant’s negligence.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

VAN DEUSEN, J., concurs.

JUSTICE LINDBERG,

dissenting:

I respectfully dissent because I find a breach of duty in the failure to discover and confiscate the belt in two searches which were not shown to be adequate under the circumstances. I agree this is a close case. But in making an independent examination of the record, as this court is allowed to do, I find that the preponderance of the evidence taken as a whole supports the plaintiff.

I do not mention lightly the fact that the evidence must be viewed as a whole. The majority first focuses on decedent’s condúct to determine if it might have alerted the police officers. Then, having concluded that there were “no special circumstances” in decedent’s behavior, the majority goes on to examine whether — “alone”—the searches were adequate. The case is not so easily dissected.

The evidence showed that the police arrived at decedent’s home to quell domestic violence. Twice decedent grabbed for one of their guns. Both times he expressed a desire to kill himself. On one of those occasions, a violent exchange took place. It was obvious to the officers that decedent was at least moderately intoxicated. It is under those circumstances, among others, that the reasonableness of the searches must be examined.

The officers testified that they did not take decedent’s actions seriously. They thought decedent was taunting them or was playacting. First, I question whether a police officer should ever dismiss an express death threat so lightly, especially when coupled with overt action. Second, I am at a loss to understand why Officer Lyons would zip up his jacket if he thought decedent was merely playacting.

The first search took place at decedent’s home. The officer in this search was concerned only with confiscating weapons in order to effectuate the arrest. The second search took place in the police station prior to decedent’s incarceration. The search was admittedly “quick,” and as one officer put it, “in most searches, you inadvertently skip areas.”

In any event, the belt was not found. Perhaps it was hidden in decedent’s groin area or between the cheeks of decedent’s buttocks, as suggested by the officers. No matter, it should have been found. We are not dealing with a pill, a razor blade or even a pocket knife. We are dealing with the 43-inch belt of a 200- to 225-pound man. Rolled up, folded over or otherwise just unwound as usual, a careful pat search should have discovered it. And that is so even if it was hidden in one of the discreet areas suggested by the officers.

The regulations of the police department required a “careful search” to find, among other things, items with which a prisoner might hurt himself, such as a belt. Violation of such a regulation can constitute prima facie evidence of negligence. Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380.

Plaintiff’s expert testified that a careful and thorough search would have disclosed the belt no matter where it may have been hidden. I agree. Accordingly, I find a breach of the duty expressed in Dezort I (1976), 35 Ill. App. 3d 703, 342 N.E.2d 468, that a police officer has a duty to exercise ordinary and reasonable care to preserve the life and health of his prisoner.

Having determined that the officers breached their duty of care, I must address the trial court’s further finding that there was no proximate causation. But for the officer’s failure to confiscate the belt, decedent would have been severely hampered, if not thwarted, in his attempt to kill himself. It was reasonably foreseeable to the officers that the failure to confiscate a belt could facilitate the suicide of decedent. Indeed, department regulations suggest that one reason an officer should confiscate a belt is to prevent a prisoner from harming himself. Therefore, I find proximate causation.

Although the trial court further found decedent capable of exercising due care for his own safety, there is no indication decedent was found to have not exercised such care.

Accordingly, I would reverse the order of the circuit court of Du Page County and proceed to a determination of damages.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    YVONNE APPLEGATE, Plaintiff-Appellee, v. INLAND REAL ESTATE CORPORATION, Defendant-Appellant.
    Second District
    No. 81—866
    Opinion filed October 18, 1982.
    Rehearing denied November 18, 1982.

      Law Offices of Harlene G. Matyas, of Chicago, for appellant.
    Lehrer & Flaherty, of Wheaton, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Inland Real Estate Corporation, the defendant, appeals from a judgment holding that it had constructively evicted the plaintiff, Yvonne Applegate, from an apartment, awarding the lessee double her security deposit plus attorney fees and costs (Ill. Rev. Stat. 1981, ch. 80, par. 101), and denying Inland’s counterclaim seeking damages for breach of the lease.

On October 28, 1980, plaintiff signed the lease for the term November 1, 1980, through October 31, 1981. She tendered a security deposit of $335, equal to one month’s rent. At this time plaintiff asked Mary Clevenger, the building manager, if the apartment had any problem with roaches, because she didn’t want to move in if so. According to plaintiff, Clevenger said that she hadn’t heard anything about any roaches. Betsy Turnquist, a friend of plaintiff’s who had planned to move in with her, testified that Clevenger said that the apartment didn’t have any kind of bugs. Clevenger testified at first that she could not remember whether the three had discussed the possible roach problem, but later testified that she told plaintiff that there was no problem.

Plaintiff and Turnquist, along with Clevenger, had inspected the apartment several days before the signing. Plaintiff testified that the apartment then was “filthy,” with broken baseboards, considerable amounts of dirt, scuff marks, and a couple of dead cockroaches, but that Clevenger told her during the inspection that it would be fixed before she moved in. Clevenger testified that she saw nothing wrong with the apartment at the time, or when she inspected it by herself two or three days before plaintiff moved in. Clevenger gave plaintiff permission to move in early without paying extra rent and plaintiff and Turnquist moved in on October 29. At this time a maintenance man who had been working in the apartment during the earlier inspection was still present, and he told them that the apartment was not ready to move in.

As soon as they started bringing in their possessions, plaintiff and Turnquist saw dozens of cockroaches, some of which they sprayed, stamped out, or caught. There was testimony that the roaches started coming out at night in the kitchen, living room, bedroom and bathroom.

Plaintiff testified that she tried to contact Clevenger several times between October 28 and November 1 but could not reach her. She moved out the evening of October 31, before the lease term technically began, thus paying no rent. Plaintiff and Turnquist testified that the problems of the apartment had not been fixed by then except that some work had been done on the front door and a closet.

Clevenger testified that plaintiff told her on November 1 that she was moving out and that Clevenger responded that if there were roaches in the apartment “we would have an exterminator come out the very next time the exterminator was scheduled.” She said that plaintiff refused to wait until the exterminator came out. She also testified that she inspected the apartment shortly after plaintiff moved out and found no roaches.

The defendant withheld the security deposit despite plaintiff’s requests for its return. Defendant did not succeed in rerenting the apartment until January 1981.

After finding that the plaintiff had been constructively evicted the trial judge also found that the defendant had refused to supply the itemized statement of property damages allegedly caused by plaintiff, as required by the statute (111. Rev. Stat. 1981, ch. 80, par. 101) and had failed to return the security deposit. He thus awarded damages in the amount of $670, twice the security deposit, plus attorney fees and costs of $482. The court denied the defendant’s counterclaim for damages.

I

Defendant argues first that the trial court erred in finding that there was a constructive eviction.

A constructive eviction requires that the landlord have done something of a grave and permanent character with the intention of depriving the tenant of enjoyment of the premises. (Advertising Cheeking Bureau, Inc. v. Canal-Randolph Associates (1981), 101 Ill. App. 3d 140, 146.) The question of whether a tenant has been constructively evicted is one of fact and the decision of the trier of fact will not be reversed unless against the manifest weight of the evidence. (John Munic Meat Co. v. H. Gartenberg & Co. (1977), 51 Ill. App. 3d 413, 416.) In Munic the court stated:

“It is not essential that there be an express intention of the landlord to compel a tenant to leave the demised premises or to deprive him of their beneficial enjoyment, since persons are presumed to intend the natural and probable consequence of their acts and, accordingly, acts or omissions of the landlord making it necessary for the tenant to move from the demised premises constitutes a constructive eviction.” 51 Ill. App. 3d 413, 416.

While the defendant argues that the roach problem was not permanent or grave enough to justify plaintiff’s abandonment of the premises, we conclude that the trial court’s finding that dozens of cockroaches in all parts of the apartment which resisted plaintiff’s efforts at extermination and defendant’s earlier spraying, along with other instances of disrepair to which the plaintiff testified amounted to a constructive eviction, was not against the manifest weight of the evidence pursuant to the Munic analysis. See also Low v. Clifton Dey Properties, Inc. (1970), 62 Misc. 2d 817, 310 N.Y.S.2d 130, 132; Ray Realty Co. v. Holtzman (1938), 234 Mo. App. 802, 808-09, 119 S.W.2d 981, 984; Delamater v. Foreman (1931), 184 Minn. 428, 431, 239 N.W. 148,149; Annot., 27 A.L.R.3d 924 (1969).

We reject defendant’s argument that plaintiff may not claim constructive eviction because the lease required that any alteration or modification be put in writing. The plaintiff was not attempting to change the terms of the lease, but was moving out on the theory that defendant had breached the lease by making the apartment uninhabitable. Thus, it was the lessor not the lessee who had terminated the lease by its acts or omissions. We also reject defendant’s argument that because the alleged constructive eviction occurred before the beginning of the lease term, defendant owed no duty to plaintiff. The record compels the inference that the problems with the apartment which plaintiff alleged, and the trial court found, existed in full force the evening before November 1 when the lease technically began and would undoubtedly not have disappeared suddenly at the beginning of the lease term. See Low v. Clifton Dey Properties, Inc. (1970), 62 Misc. 2d 817, 310 N.Y.S.2d 130, 132.

Defendant next argues that there was no valid constructive eviction because plaintiff gave defendant no notice of the alleged defects constituting the eviction and no opportunity to cure them. It is true that the tenant may not abandon premises before allowing the lessor a reasonable opportunity to remedy the problem. (Risser v. O’Connell (1912), 172 Ill. App. 64, 66.) The evidence shows that plaintiff before deciding to vacate did make several attempts to notify defendant of the problems with the apartment which were unavailing because the defendant’s agents could not be reached. It is also questionable whether giving defendant a greater opportunity to attend to the problems involved would have helped. It had already made several unsuccessful inspections and sprayings of the apartment, and could promise only that an exterminator could come several days later, if an inspection revealed roaches. Further, defendant was already aware of a potential cockroach problem and of the other problems found within the apartment. The proof suggests that the roach problem was persistent if not permanent and that an opportunity for an attempt to cure would have availed the plaintiff little. We therefore conclude that the notice requirement is not a bar to recovery under the circumstances of this case.

II

We conclude, however, that the trial court erred in awarding plaintiff damages equal to twice her security deposit, plus attorney fees and costs after finding that defendant had refused to supply plaintiff with the damage statement and failed or refused to return her security deposit. The statute provides generally that a lessor of residential real property containing 10 or more units may not withhold any part of a security deposit “as compensation for property damage” unless he has furnished “an itemized statement of the damage allegedly caused to the premises and the estimated or actual cost for repairing or replacing each item on that statement” in the time provided. (Ill. Rev. Stat. 1981, ch. 80, par. 101.) It does not fairly appear from the record, however, that the defendant was withholding the security deposit for damage to the property but that it was withholding the deposit as a setoff against damages which it considered due based on an alleged breach of the lease. The prohibition of the statute that the lessor “may not withhold any part of the deposit as compensation for property damage” (emphasis added) unless certain statutory conditions are met, does not appear to be intended by the legislature to apply other than where a part or all of the security deposit is retained to compensate for claimed property damage. It appears from the transcript of the legislative debate on the bill that the primary concern of the sponsors was with the property damage issue; one legislator suggested that the lessee who breached the lease by moving out early would not be entitled to invoke the statutory remedies; and it does not appear that the legislature has considered the possibility of a constructive eviction, where the lessee vacates and the lessor may well hold a good faith belief that such vacation is a breach of the lease.

In view of the clear omission by the legislature to provide for this particular situation involving a constructive eviction and the good faith though unjustifiable withholding of the security deposit for reasons other than property damage, we construe the statute as inapplicable. While we find that the court erred in assessing double damages the plaintiff was entitled to a return of her security deposit and the award of costs, excluding attorney fees under the statute.

Ill

Since defendant’s counterclaim depends on a finding that plaintiff breached the lease and we have concluded that plaintiff was justified in vacating and withholding rent, we affirm the holding of the trial court denying the counterclaim. A constructive eviction relieves a tenant of any duty to pay rent for the period after the eviction. John Munic Meat Co. v. H. Gartenberg & Co. (1977), 51 Ill. App. 3d 413, 420.

The judgment of the circuit court of Du Page County finding that plaintiff was constructively evicted from her lease is affirmed. That portion of the judgment which denied defendant’s counterclaim is also affirmed. That portion of the judgment which assessed statutory damages in double the amount of the security deposit withheld and awarded costs which included attorney fees is modified to provide for a return of the security deposit to plaintiff and the assessment of costs other than attorney fees.

Affirmed in part and modified in part.

UNVERZAGT and REINHARD, JJ., concur.

       While we have concluded that the statutory terms appear limited to situations where the lease term has expired and the lessor could only claim property damages as a reason to withhold part or all of the security deposit, we recognize that the provisions for double damages and attorney fees were added to discourage a withholding of deposits for baseless reasons. A similar policy could be said to apply to constructive eviction situations but we believe that this is for the legislature to debate and to state with greater specificity.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH RICKETTS, Defendant-Appellant.
    Fourth District
    No. 17571
    Opinion filed October 18, 1982.
    Rehearing denied November 16, 1982.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Michael M. McFatridge, State’s Attorney, of Paris (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals his convictions upon jury verdicts of the offenses of home invasion, robbery, burglary, and felony theft. The sentence of eight years imposed was only upon home invasion.

Defendant argues that the trial court committed reversible error by (1) the partial granting of a motion in limine as to cross-examination of the principal prosecution witness concerning a pending misdemeanor charge and, (2) in permitting a police officer “to give opinion testimony” as to whether the sole of defendant’s boot matched a print left on the floor of the victim’s house.

The essential framework of evidence is that on January 29, 1981, defendant, accompanied by his friends, Ted Lucas and Elmer Cusick, went to the rural home of the victim for the stated purpose of getting a part for an air conditioner. Defendant was distantly related to the victim, Griff Miller, a man of some 90 years.

The victim’s son, Carl Miller, and his daughter, Faye Card, also lived in the home, but the latter was away on that day. At about 2 p.m., Carl Miller and defendant talked for a few minutes on the back porch and, at the request of the former, defendant drove with Lucas and Cusick to a farm silo, a mile or more distant, to assist Miller with some work. Defendant and his companions soon left but Miller remained to feed the cattle — a chore taking about three hours. It is the prosecution’s contention that defendant, Lucas, and Cusick returned to the farm home; that Lucas and Cusick forced Griff Miller into the bathroom so violently that he suffered a broken hip and other injuries; and that defendant then entered and took firearms, silverware and jewelry. The victim was found lying in the blockaded bathroom at about 5 p.m. On January 30, Lucas and Cusick were arrested on unrelated charges and they have not been charged with this offense. Griff Miller was unable to identify the men who seized him and “threw him” into the bathroom.

At the time of the offense Debbie Lucas, a principal witness for the prosecution, was the estranged wife of Ted Lucas. At the time of the trial they were divorced. Defendant had been a friend of each for some period of time.

Apparently acting on the information received, local and state officers interviewed Debbie Lucas on April 1, 1981, and obtained her statement. This was supplied to defendant in discovery and presumably coincided with her testimony as there was essentially no cross-examination as to the facts stated into evidence.

In brief, on Sunday, February 1, 1981, at about noon defendant telephoned Debbie Lucas at the home of her mother and requested that she come to his home. She drove there with a companion. Defendant’s ostensible purpose was to inquire about Ted Lucas and why he was incarcerated. The witness could not tell him what the charges were. Defendant then insisted on talking outside of the presence of the companion, and asked the witness to drive him to a place not then stated. After taking the companion home, the defendant and the witness proceeded at his direction to a small schoolhouse about eight miles from Paris. Defendant went to an adjacent propane gas tank and brought to the automobile several guns, a box or chest of silverware, and some items of jewelry. He then drove the car some distance along the road and stopped at a creek where he took the box of silverware along the bank some distance, and then returned and took the firearms some distance along the creek bank on the opposite side of the road. On April 2, Debbie Lucas took the officers to the schoolhouse and to the creek. A search party recovered a substantial part of the silverware and some of the other items taken.

Defendant, Ted Lucas, and Cusick testified for the defense where each admitted that they had driven to the Miller farm and to the farm silo, but each testified that they had returned directly to Paris and dispersed for various purposes. Defendant also admitted that he telephoned Debbie Lucas on February 1 and talked with her privately, but that he only asked her concerning the arrest of Ted Lucas. He testified that they were together only about 20 minutes, and that she then drove him to the home of his friend, Frank. A man and wife who were friends of defendant testified that he came to their place on businéss on that date — one said before 3 p.m. and the other said after.

Upon the sum of the evidence, it is apparent that Debbie Lucas was a critical witness. The record concerning the challenged motion in limine discloses that on July 29, 1981, the witness, Debbie Lucas, was charged with battery. The State’s Attorney described the event as an altercation with two other women, who on July 31 asked that the charge be dismissed. Defendant was advised of the fact in the State’s Attorney’s response for discovery.

The motion was argued, although not in specific terms of cross-examination as to possible bias of the witness. The trial court spoke of it “only as a charge of simple battery,” and that he did not believe that the charge supported impeachment of credibility. In ruling, the court stated:

“The motion will be granted as to any reference to this particular charge. However, I think it would be a proper question by the defense, if she takes the stand, whether she’s received any promise or reward for her testimony, but without referring to the charge itself.”

Examination of the record discloses no attempt to cross-examination in the context of promises by the State’s Attorney, or any association with him. Cross-examination as to bias appears to be directed to the witness’ attitude concerning her former husband, Ted Lucas, and the friendship between the parties.

We must conclude that the trial court erred in partially granting the motion in limine as to the cross-examination of Debbie Lucas within the rule stated in Alford v. United States (1931), 282 U.S. 687, 75 L. Ed. 624, 51 S. Ct. 77, Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, and People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526. Each holds that cross-examination is a matter of a constitutional right to confront witnesses for the purpose of showing bias in the context that the witness may be subject to undue pressure or coercion by prosecutorial authority when giving testimony. In Alford, bias is framed as the product of a “promise or expectation of immunity, or under the coercive effect of his detention.” (282 U.S. 687, 693, 75 L. Ed. 624, 628, 51 S. Ct. 218, 220.) Confrontation of witnesses for such constitutional purpose is distinct from impeachment of credibility by showing conviction of an offense. In Alford, the court stated:

“[N]o obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked.” 282 U.S. 687, 694, 75 L. Ed. 624, 629, 51 S. Ct. 218, 220.

Careful examination of the facts present in Davis and Wilkerson disclose substantial differences from this record and supports the conclusion that the error of the trial court does not require reversal here. The opinion in Davis observed that the witness was on probation and that his testimony of finding a stolen safe and his identification of defendants was under circumstances which might support a conclusion that the witness had himself committed the burglary at issue. In Wilkerson, the -witness was under several pending felony charges. Defendant’s offer of proof disclosed that the State’s Attorney had stated that he had not made up his mind concerning the future felony prosecution of the witness, but that after the conclusion of the pending trial he would try to work out something with the attorney representing the witness. The potential pressure, or coercion, by reason of such circumstances is plainly apparent.

We conclude that the error found here does not require reversal for the reason that the facts in the record bring it within the ambit of the rationale in People v. Eddington (1979), 77 Ill. 2d 41, 394 N.E.2d 1185. There the trial court granted a motion in limine barring cross-examination upon unrelated drug charges then pending. The court stated:

“We do not believe that these matters should be resolved solely in limine. In situations involving assessment of credibil- - ity, the jury should have a right to consider the pending charges, and, of course, the prosecution should have the right to show that no leniency was offered and that none was expected. The jury would then be able to consider any subliminal influences that could be exerted by the particular situation.” 77 Ill. 2d 41, 46, 394 N.E.2d 1185, 1188.

The opinion then noted that the testimony which the -witness gave had been recorded in statements at a time prior to the filing of the charges pending against the witness, and had been furnished to the defendant, saying:

“In this case, however, following a lengthy hearing in limine, the trial court was satisfied that the testimony of the witness, which had been recorded prior to the cannabis charge that was then pending against the witness, could not have been affected by any bias or interest arising out of this later charge.” (Emphasis added.) 77 Ill. 2d 41, 46, 394 N.E.2d 1185, 1188.

Here, the recorded statement of Debbie Lucas, which was furnished to defendant in discovery, had been taken about four months prior to the filing of the battery charge against her. That statement had been substantially verified by the search the officers had made in April preceding the September trial. Again, we have found virtually no attempt to cross-examine the witness concerning any deviation from facts recorded in her statement given to police officers four months earlier, no attempt to cross-examine her as to association with the prosecutor, or any promise made by him to her, and no cross-examination suggesting other bias or hostility toward defendant. While we find that the trial court erred in limiting the cross-examination even partially, we conclude that we are not required to reverse.

Sheriff’s Officer Busby testified concerning a boot print found in the dust on the dark wooden floor of a second story bedroom. He measured its length at IV-k inches and sketched the details observed, including ridges across the sole and areas which appeared to be worn. Subsequently, the print was photographed to scale and the picture was introduced into evidence. When defendant was arrested his boot was seized and at trial introduced into evidence. Defendant admitted that he was wearing the boot in January 1981.

Busby testified that he had measured the respective lengths of the boot and of the boot print, and that each was IV-k inches long, and he testified to the apparent worn spots on the sole and heel. The examination continued with the question:

“Q Do those worn spots correspond to the spots on the photograph being a representation of the footprints as you saw it?”

The objection made and overruled was “No foundation.”

In defendant’s brief, the issue is stated to be:

“Whether a non-expert police officer should have been permitted to give opinion testimony ***.”

In the post-trial motion it was stated that the trial court erred in permitting testimony:

“[Ajbout similarities between a photograph of a shoe print and the tread of a boot taken from the Defendant.”

In the body of the brief, defendant argues:

“To avoid misunderstanding, it must be emphasized that the issue being raised is not that Detective Busby was not an expert at footprint comparison. There is no question that expert testimony is not required for footprint comparison, and in fact is unnecessary and inadmissible.”

We find the framing of the arguments to be inconsistent and shifting in focus. Suffice to say that the objection “No foundation” as made at trial could only be deemed by the trial court to refer to expert testimony and, on appeal, cannot be transmogrified into an objection that expert opinion is inadmissible because it is unnecessary. This is particularly so since the objection made to similar questions immediately preceding was stated more fully “No foundation that this individual is an expert to make such a conclusion.” The scaled photograph of the boot print and the boot itself were in evidence for purposes of comparison by the jury. The testimony objected to was illustrative of the observations to which Busby testified, and did not undertake to state as a matter of expert opinion that the boot in evidence made the print shown by the photograph in evidence.

Assuming arguendo that a factor of lay opinion is found in the record, such testimony comes within the rule of People v. Burton (1972), 6 Ill. App. 3d 879, 286 N.E.2d 792, appeal denied (1972), 52 Ill. 2d 598, cert. denied (1973), 411 U.S. 937, 36 L. Ed. 2d 399, 93 S. Ct. 1917, and People v. Stokes (1981), 95 Ill. App. 3d 62, 419 N.E.2d 1181, holding that a lay witness may express an opinion where such opinion is one that men in general are capable of making and accustomed to make, but it is difficult or impossible for the witness to reproduce the totality of the conditions perceived by the witness. We find no error.

The judgment of the trial court is affirmed.

Affirmed.

WEBBER and LONDRIGAN, JJ., concur.


author: JUSTICE WEBBER

text:
    DELMAR DEATRICK, Plaintiff-Appellant, v. FUNK SEEDS INTERNATIONAL, a Company of Ciba-Geigy Corporation, Defendant-Appellee.
    Fourth District
    No. 4—82—0149
    Opinion filed October 26, 1982.
    Rehearing denied November 22, 1982.

      Herrick, Rudasill and Moss, of Clinton (Ray Moss, of counsel), for appellant.
    Dunn, Brady, Goebel, Ulbrich, Morel & Kombrink, of Bloomington (William M. Goebel and Mark T. Dunn, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff filed an action against defendant, his former employer, in the circuit court of McLean County alleging retaliatory discharge for filing a claim for workers’ compensation. The trial court entered summary judgment for the defendant and plaintiff appeals. We affirm.

The principal issue on appeal is whether plaintiff has failed to exhaust his administrative remedies under the collective bargaining contract between his union and the defendant. We hold that he has and adopt the holding and rationale of Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95. In Cook the appellate court reasoned that Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, which established a cause of action for retaliatory discharge, applied to employees at will, since they possessed no other remedy; but that Kelsay did not apply to workers covered by a collective bargaining contract, since they possessed a remedy under the contract.

The facts of the case at bar place it somewhere between Kelsay and Cook. In Kelsay the plaintiff was an employee at will; in Cook the plaintiff was clearly a member in good standing of the union; in the instant case plaintiff had been dropped from the union rolls of membership for nonpayment of dues. Nevertheless, plaintiff was still a member of the bargaining unit as defined in the collective bargaining contract.

The operative facts are taken from the common law record: plaintiff was injured on the job on July 18, 1972, and remained off the job thereafter until his termination; on October 1, 1973, his doctor released him to light duty and he made several inquiries of defendant concerning work but none was forthcoming; he filed his claim for workers’ compensation on January 18, 1974; after hearing before an arbitrator he was granted an award which was reviewed by the Industrial Commission and made final on April 9, 1975; meanwhile, on June 1, 1975, defendant terminated plaintiff’s employment, stating that the termination was “due to injury.” Plaintiff then filed the instant complaint on October 5,1976.

The procedural history of the case is more convoluted. Some preliminary motions were filed and on September 26, 1977, the defendant answered with a general denial; no affirmative defenses were raised. On September 14, 1979, defendant was granted leave to withdraw its answer and to file a motion to strike certain allegations of the complaint relating to punitive damages; this motion was allowed and the complaint was amended by interlineation, striking those allegations. Defendant then filed a motion to dismiss which was based on Kelsay, alleging that the cause of action for retaliatory discharge did not exist at the time the complaint was filed. These latter actions took place after the supreme court's opinion in Kelsay was handed down; by agreement the parties had continued the litigation until that opinion had been received.

The motion to dismiss was taken under advisement by the trial court and was exhaustively briefed by the parties. It was ultimately denied by the trial court on November 26, 1979. Defendant then answered the complaint as amended, again setting up a general denial, but also alleging as an affirmative defense that plaintiff had not exhausted his remedies under the collective bargaining agreement.

The case then went on dead center again and showed no activity save for some sporadic discovery and pretrial calls until January 27, 1982, when defendant filed a motion for summary judgment based on Cook. The motion alleged that plaintiff had been a member and officer of the union at defendant’s plant; attached to the motion were copies of the collective bargaining agreements in force from November 1970 to November 1975. The pertinent provision was contained in article III of the agreements and related to grievances. It provided:

“ARTICLE III
Grievance Procedure and Arbitration
Section 1. Whenever any grievance or dispute arises out of the terms and conditions of this contract between the Company and any of its employees covered hereby, the following procedure shall be used:
(1) The employee shall attempt to settle the matter with the Superintendent of the Division involved, accompanied, if the employee desires, by one steward.
(2) If the grievance is not settled in the first step, it shall then be taken up by the steward with the Manager of the Division involved. If an agreement is reached by them, it shall be binding upon all parties.
(3) If no settlement is reached in the foregoing step, the grievance shall be reduced to writing and shall be taken up by the Shop Committee and the General Manager of the Company, or his appointee. In the event an agreement is reached by them, it shall be binding upon all parties.
Section 2. The Company will recognize a Shop Committee of three (3) persons selected by the Union for the purpose of adjusting grievances, as aforesaid. Meetings for the adjustment of grievances shall be held on the fourth Friday of each month at 3:30 p.m.; provided, however, that in the event of an emergency, a meeting shall be held at such time as may be mutually agreed upon.
Section 8. Cases of employees claiming to have been unjustifiably discharged shall come within the purview of this Article and shall be decided in accordance therewith. Complaints thereof in writing shall be filed with the superintendent within three working days from the date of discharge. In the event of a failure to file such claim within such time, same shall be considered as having been waived by the employee and the Union. Employees found to have been unjustifiably discharged and ordered reinstated shall be paid for time lost.”

Also attached to the motion were affidavits and other documentary evidence from defendant’s employees which indicated that neither plaintiff-nor anyone on his behalf had filed any complaints for unjustifiable discharge.

In response-plaintiff filed a counteraffidavit in which he stated that he had been a member of the union and that his union dues had been withheld from his wages at his request during his time of employment; that after his injury he received no wages and therefore dues payments to the union had ceased; as a consequence he was dropped from the union membership rolls for failure to pay dues. He further stated that at the time of his termination he talked to some union officers about assistance to him but was told that since he was no longer a union member, nothing could be done for him.

The trial court first denied the motion for summary judgment apparently on the basis that the plaintiff in Cook was undoubtedly a union member while plaintiff in the instant case was not. Defendant then filed a motion to reconsider and argued that even if plaintiff were not a union member, he was still a member of the bargaining unit which under the contract included all of defendant’s employees with certain exceptions not pertinent here; and that it was the duty of the union fairly to represent all members of the bargaining unit. On reconsideration the trial court allowed the motion for summary judgment in favor of the defendant and this appeal ensued.

Plaintiff’s principal argument is that by requesting the union to represent him he did everything necessary to exhaust his administrative remedies. The argument must fail because it ignores the initiative which lies on the plaintiff himself and the record is devoid of any proper indication that the union acted improperly.

Any fair reading of article III of the collective bargaining agreement set forth above demonstrates that a grievance, which by definition includes unjustifiable discharge, must be initiated by the employee. Since plaintiff was not actively on the job, it is reasonable to assume that steps 1 and 2 of the procedure were unnecessary. The agreement itself so indicates by providing in section 3 that “complaints thereof,” i.e., of unjustifiable discharge, should be filed in writing with the superintendent within three days of discharge. Nothing in this language limits such a filing to the union only. Yet the record here demonstrates without contradiction that no such grievance was ever filed.

Plaintiff appears to argue that his status as a nonunion member excuses him from the provisions of the collective bargaining agreement. The argument is without foundation. As the trial court properly held, the agreement by its own terms includes union as well as nonunion employees. Plaintiff’s nonunion status was of his own doing. The cessation of dues checkoff did not forfend other arrangements for the payment of dues. Plaintiff’s own allegation of discharge from employment on June 1, 1975, carries with it a necessary implication of status as employee prior to that time.

In Billing v. Levitt (1968), 10 Mich. App. 399, 159 N.W.2d 376, a nonunion employee sued his employer to recover wages paid to union employees. The Michigan court held that where the nonunion employee was a member of the bargaining unit, he must exhaust the grievance machinery as a condition precedent to suing the employer.

Plaintiff nowhere claims ignorance of the grievance procedure, nor could he, since he appears as one of the signatories to one of the agreements on behalf of the union, specifically as secretary of the local.

• We also deem it significant that plaintiff nowhere claims any wrongful conduct on the part of the union. He alleges only a conversation at about the time of his discharge with unnamed union officials.' If the authority of the union had been properly invoked by a specific demand on the part of plaintiff and it had refused to proceed, the situation might have been different. In O’Neill v. Public Law Board No. 550 (7th Cir. 1978), 581 F.2d 692, it was held that a union’s duty to represent employees extended to an employee who had been dismissed and was asserted no longer to be a union member on account of nonpayment of dues for nearly two years. As a former secretary of the local, plaintiff is charged with knowledge of procedures, both under the grievance procedures of the contract and the internal mechanics of the matter within the union. The counteraffidavit is totally inadequate to create a factual question as to any misconduct on the part of the union.

In summary to this point, we find that plaintiff was subject to the terms of the collective bargaining contract and that by failing to exhaust the grievance procedures under that agreement he cannot sustain a lawsuit directly against his employer.

Plaintiff’s next contention is that even assuming that he failed to exhaust his administrative remedy, defendant has waived the point by failing to allege it until more than three years had passed from the time of the filing of plaintiff’s complaint. As has been said, the complaint was filed October 5, 1976; in September 1979 defendant was granted leave to withdraw its answer and substitute a motion to dismiss; in October 1979 as an addendum to its brief in support of the motion defendant raised the grievance procedure under the contract, and upon denial of the motion, alleged it as an affirmative defense in its amended answer. In the addendum to the brief defendant alleged that the grievance procedure was newly discovered matter. It is difficult to see how it could be newly discovered when it had existed in the bargaining contracts at least as early as November 1970.

Nevertheless, the whole question, whether it be laches, waiver, or estoppel, or a combination of the three, has been raised for the first time on appeal. Contentions not raised in the trial court are waived on appeal and this rule applies in summary judgment cases. Witek v. Leisure Technology Midwest, Inc. (1976), 39 Ill. App. 3d 637, 350 N.E.2d 242.

For the foregoing reasons, the order of the circuit court of McLean County is affirmed.

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE HEIPLE

text:
    GAYLON H. EHLERS, Trustee, et al., Plaintiffs-Appellees, v. ANDREW G. FREY, Defendant-Appellant.
    Third District
    No. 82—41
    Opinion filed October 19, 1982.
    Rehearing denied November 22, 1982.
    Ernest S. Kettelson, of Kettelson Law Offices, Ltd., of Joliet, for appellant.
    B. Douglas Stephens, Jr., and Gary S. Schwab, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

In the original action on this cause, Gaylon H. Ehlers, trustee, for the use and benefit of Chief Industries, Inc., and Chief Industries, Inc., filed to foreclose a trust deed and note. A deficiency judgment was also sought. The defendant, Andrew G. Frey, then counterclaimed for usury. Both parties sought summary judgment on the usury counterclaim. After hearing oral arguments on the issue, the trial court granted the plaintiffs’ motion for summary judgment and denied Frey’s similar motion. Frey appeals from the entry of judgment in favor of the plaintiffs and against him on the usury counterclaim.

The background of this case follows. On December 14, 1976, a $400,000 note was executed by the A. G. Frey & Sons, Inc., a corporation and Andrew G. Frey, individually, payable to plaintiff Chief Industries, Inc., a corporation. The terms thereof provided for an interest rate of nine percent per annum. The note was secured by a chattel mortgage of all the tools, equipment, inventory, and vehicles which constituted the major assets of A. G. Frey & Sons, Inc. Andrew Frey signed this chattel mortgage wherein he warranted he was the owner free and clear of all the chattels itemized. At the same time a corresponding trust deed dated December 14, 1976, was signed by defendant Andrew G. Frey and his then wife Patsy Ann Frey, making certain Illinois real estate, then owned by them jointly, security for the $400,000 note. It is this Illinois real estate that plaintiffs seek to foreclose on, and in defense of which defendant has filed this counterclaim for usury now on appeal. Frey contends that the interest rate of nine percent per annum is usurious in violation of the then maximum rate of eight percent per annum. Ill. Rev. Stat. 1975, ch. 74, par. 4.

A brief corporate history of A. G. Frey & Sons, Inc., is necessary. Prior to July 1976, the defendant, Andrew G. Frey, conducted a construction business as sole proprietor under the name of A. G. Frey & Sons Building Service. This business engaged in the erection of grain storage bins. In July 1976, the defendant organized the Illinois corporation, A. G. Frey & Sons, Inc. (hereafter Frey, Inc.), for the same purposes his sole proprietorship operated: erection, construction, and repair of grain storage bins. Thereafter, the defendant became president and general manager of Frey, Inc.

The grain storage bins which were constructed by defendant before July 1976 and by the corporation Frey, Inc., after July 1976 were purchased primarily from the plaintiff Chief who manufactured such items. The defendant notified Chief by letter that his business was thereafter to be conducted by the corporation Frey, Inc., and invited Chief to terminate their business relationship if it had any objection to such change. Chief continued to do business with Frey, Inc. A formal dealership agreement was signed by Chief and Frey, Inc., in December 1976.

Sometime around the latter part of November 1976 or early December 1976, Paul Elsbernd, one of Chief’s officers, discussed the financial conditions of Frey, Inc., with the defendant Andrew G. Frey. The fruit of this discussion was a loan and a $400,000 note by defendant Frey and the corporation Frey, Inc., payable to Chief. This note, dated December 14, 1976, provided for interest at the rate of nine percent per annum. This note was secured by a chattel mortgage by defendant Frey, individually, listing all the corporate assets of which he was the owner. Defendant Frey and his then wife, Patsy Ann Frey, signed a trust deed making certain Illinois real estate owned jointly by the Freys security for the note.

The corporate business offices of Frey, Inc., were located on the real estate in question. The real estate was zoned M-l for light manufacturing. The property includes at least six offices plus other space devoted entirely to the business operations of Frey, Inc. There is no evidence that the property was ever used as a residence or for any residential purpose other than one room of the office building used by Andrew Frey to sleep in overnight occasionally during the pendency of his divorce action. There was no eating, cooking, or laundry facilities on the property. During daylight hours the entire property was used full time to conduct the grain bin and construction business.

. The entire proceeds of the loan from Chief were used for business purposes, partially to retire debts incurred by Frey when he operated the business as a sole proprietor before incorporation and partially to pay creditors of Frey, Inc. According to Chief’s credit manager, the loan proceeds were specifically distributed as follows: $109,276.69 was credited to Frey’s account balance with Chief; $200,000 was paid to Frey, Inc.; $67,092.30 was paid to Frey; $23,631.01 was paid to Parsons Manufacturing, Inc., a creditor of Frey.

On or about May 30, 1978, Chief entered the premises of Frey, Inc., and seized its entire assets. On October 25, 1979, Chief filed its amended complaint for foreclosure, claiming no payment on the note since March 1978 and a sum of more than $350,000 due and owing Chief on the note. Defendant Frey filed a counterclaim on January 29, 1981. Therein Frey alleged that nine percent per annum interest charged on his note to Chief was unlawful and usurious because on the date the note was executed, December 14, 1976, the maximum that could be charged was eight percent per annum. (Ill. Rev. Stat. 1975, ch. 74, par. 4.) Frey sought to recover the statutorily provided remedy from Chief: an amount equal to twice the total of all interest discount and charges determined by the loan contract or paid by the obligor, whichever is greater, plus reasonable attorney fees and court costs.

Both parties filed motions for summary judgment on the usury counterclaim. The court heard oral arguments and entered an order on December 22, 1981, in favor of the plaintiffs and against the defendant Andrew Frey on their respective motions for summary judgment.

On appeal Frey asserts that the nine percent per annum interest rate provided for by the note was in violation of the Illinois Interest Act. While Chief argues that Nebraska law should control the resolution of this issue, we agree with Frey that Illinois law is applicable. A trust' deed on Illinois real estate secured the note to Chief. Where real estate is involved, the law of the State where the real estate is located controls. Harrison v. Weatherby (1899), 180 Ill. 418.

It is undisputed that at the time the note in the instant case was executed, the Illinois Interest Act provided for a maximum lawful interest rate of eight percent per annum. The note in this case specified an interest rate of nine percent per annum. The Interest Act, however, does provide for exceptions to the general limitation on interest rates. Section 4 of the Interest Act provides in part:

“It is lawful to charge, contract for, and receive any rate or amount of interest or compensation with respect to the following transactions:
(a) any loan made to a corporation;
* * *
(c) any business loan to a business association or copartnership ***. The term ‘business’ shall be deemed to mean a commercial or industrial enterprise which is carried on for the purpose of investment or profit ***.”

With respect to these exceptions to the general limitation of interest rates specified by the Interest Act, the Illinois Supreme Court stated in People v. Gallo (1973), 54 Ill. 2d 343, 351:

“The line here is drawn between loans to those who are engaged in business and loans to those who are not.”

As also stated in Chicago Title & Trust Co. v. Jensen (1933), 271 Ill. App. 419, 422:

“The question whether a loan is usurious is a question of fact, and in determining that question equity will look to the substance of the transaction and disregard the form, and will not permit parties to evade the statute by any scheme or expedient.”

In the instant case, Frey alleges that he was not a business association and was not a person owning and operating a business as a sole proprietor. In essence, Frey claims that he was merely an employee of Frey, Inc., and not himself engaged in business. Analysis of the facts leads to a contrary conclusion for purposes of the Interest Act.

Although a corporate charter was issued to Frey, Inc., on July 16, 1976, Frey himself still held title to the substantial assets of the business at the time the note was executed five months later. In the chattel mortgage he executed as security for the note, Frey warranted that he was the owner, free and clear of all liens, of the tools, equipment, and vehicles on the premises of Frey, Inc. Frey also owned the real property upon which the grain bin construction business operated. Whilé all the loan proceeds were used for business purposes, to pay bills and provide working capital, some of the bills were incurred by Frey when he operated the business as a sole proprietor before incorporation.

This court considered a similar factual situation in Rock River Savings & Loan Association v. Kelly (1978), 58 Ill. App. 3d 339. In Rock River Savings & Loan Association, as in the instant case, a note and mortgage were executed by a corporation and individuals. In Rock River Savings & Loan Association, the mortgage covered real estate owned by the corporation. The proceeds of the loan were applied to pay the existing short-term mortgage on the premises. The premises was improved by a motel. The lender filed suit on the note against the corporate and individual defendants. The individual defendants, who were cosigners on the note along with the corporation, filed a defense of usury. The court noted that the individual defendants were all shareholders of the corporate defendant. The loan was obtained in anticipation of future financial gain by the corporation, which would inure to the benefit of the individual shareholders. The court held that the business loan exception applied to the loan stating:

“Therefore, while the proceeds of the loan may have been directed to be paid to the corporation by the individual defendants, as shareholders of such corporation, the individual defendants, in obtaining the loan, were acting collectively as a business association or joint venturer in promotion of the project and their investments in the shares of Sterling Motel. On the basis of the record, therefore, we conclude that the trial court properly determined that the loan which was made through the actions of the individual defendants, came within the business exception of section 4(l)(c) of The Interest Act.” 58 Ill. App. 3d 339, 343.

Looking to the instant case, we see a stronger case. In the instant case the individual co-maker, Frey, was the principal shareholder of the corporate co-maker. The proceeds of the loan were used for business purposes, both for the purpose of paying bills and providing working capital for Frey, Inc., and to pay business loans which Frey incurred as a sole proprietor. However, the principal factor in the instant case is that Frey and not the corporation held the substantial business assets. The corporation was little more than a shell.

There was a solitary business enterprise here: the construction of grain bins. This enterprise was operated publicly as a corporate venture, as Frey, Inc. However, when the note was executed the principal business assets were all held by Andrew Frey, individually. Thus, we are led to conclude the business, in reality, was not Frey, Inc., but Andrew Frey, individually.

The defendant argues that he was not an unincorporated business enterprise or sole proprietor after the incorporation of Frey, Inc., in July 1976. He asserts he was merely an employee of Frey, Inc., and that he had no other solitary business interests and thus, the loan was not made for his business purposes and he was not within the business loan exception of the Interest Act. The defendant has cited Metcoff v. Mutual Trust Life Insurance Co. (1975), 33 Ill. App. 3d 1059, in support of his argument. In Metcoff, the two sons who were engaged in a business purpose, and who desired to obtain a loan to develop a real estate investment, were unable to obtain financing in their individual capacities. The prospective lender suggested that the sons enlist the financial support of their parents, and a loan was eventually consummated with the parents and the sons signing as principals. The Metcoff court adopted the view that the loan was made to the parents, who had no business interest, and that the loan proceeds were then transferred to the sons for the purpose of the sons’ business purpose. The Metcoff court there concluded that the parents could interpose the defense of usury (not including the sons) for the reason that no business purpose of the parents was served by the loan. Metcoff, therefore, is readily distinguishable from the instant case. The loan in the instant case was to be used for the furtherance of Frey’s business interests. As owner of all the substantial assets of the business operation at the time the note was executed, Frey was more than a mere employee of Frey, Inc. Frey, Inc., was the alter ego of Frey. Their business interests were one and the same. Frey cannot set up a corporation, retain the substantial business assets thereof and say that he, himself, is not engaged in a business venture.

Thus, we hold where a corporation and an individual co-make a note, the individual, as well as the corporation, come within the business loan exception to the Illinois Interest Act, where the loan is made for business purposes and where the individual is the owner of the substantial assets of the corporation at the time the note was executed and where loan proceeds are used to retire precorporation debts of the individual who operated the same business venture in another form before incorporation. Thus, Andrew Frey is not entitled to defend Chief’s foreclosure action on the note with usury as a defense, there being an identity of business interests between the corporation, Frey, Inc., and himself.

In view of our disposition of this issue, we find it unnecessary to discuss any of the additional issues argued by the parties.

For the reasons herein stated, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM J. FOLEY, Defendant-Appellant.
    Second District
    No. 81—174
    Opinion filed October 20, 1982.

      G. Joseph Weller and John J. Barrett, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville (Phyllis J. Perko and Nancie S. Hudell, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

The defendant, William J. Foley, was charged by information with armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)). After a jury trial, he was convicted of robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1(a)) and was sentenced to a seven-year term of imprisonment. The defendant appeals, contending that the trial court committed reversible error by restricting (1) his cross-examination of a crucial State’s witness and (2) his questioning of a defense witness.

This case presents the question of whether or not a State’s witness, who was an accomplice to the robbery defendant was charged with, can be cross-examined as to whether he had received probation for the robbery. Here, the trial court held that the question of probation could not be explored in the absence of evidence that an agreement had been reached that the witness was going to receive probation for his testimony in this case.

At trial, Keith Kramer testified that he was working at the Pride gas station in Oswego, Illinois, on the evening of May 1, 1980. At about 9:15 p.m. Kramer was counting coins in the cash register when an individual entered the station and said, “Give me the money.” Kramer, without looking, told the individual to wait until he was done counting. Then the individual restated his demand and added, “This is a stick-up.” Kramer looked up and saw that the robber was armed. He observed the offender from a distance of two feet for approximately 15 to 20 seconds. Kramer indicated that the robber was approximately five feet 10 inches or five feet 11 inches tall, was wearing blue jeans, tennis shoes, a white tee shirt, and a nylon stocking which fully covered his face. Kramer also testified that the perpetrator had shoulder-length, dishwater-blond hair and no facial hair except a mustache. He indicated at trial that as the robber ran from the scene of the crime he limped, favoring his right leg. Kramer had earlier stated, at a preliminary hearing, that the offender appeared to be favoring his left leg.

Kramer was shown two groups of photographs of possible suspects. He was unable to identify anyone from the first group of six photographs. This group did not include a picture of the defendant. When the sheriff’s office showed Kramer a second group of photos, he positively identified defendant as the offender.

Four other individuals were standing at the self-service islands of the gas station at the time of the robbery. They were shown the same photographic array as was Kramer, but they did not identify the defendant from the photos.

Kenneth Massingill testified for the State that he and defendant planned to rob the gas station in question. They had purchased a toy gun and a pair of nylon stockings for the purpose. Massingill then drove to the parking lot from which he could see the Pride gas station.

Massingill remained in the automobile while defendant Foley walked over to the gas station. He added that he did not watch defendant during the time of the robbery. Massingill added that he had previously been convicted of felonies in both Kendall and Du Page counties. He indicated that no promises had been made by the State’s Attorney’s office nor by the sheriff’s office in exchange for his testimony. .

On cross-examination Massingill revealed that he had been locked out of his room at the Aurora YMCA for nonpayment, and he had moved in to defendant Foley’s apartment. He testified that he had been charged with armed robbery of the Pride gas station, but had pleaded guilty to robbery. Cross-examination of Massingill regarding the disposition of the robbery charge was not allowed. In sustaining the State’s objections, the trial court stated that there would have to be a showing of an agreement or promise with the State’s Attorney prior to exploring Massingill’s probationary status. During closing argument, the trial court again precluded defense counsel from commenting on the fact that Massingill had been placed on probation for the May 1, 1980, robbery of the Pride gas station. Massingill also stated on cross-examination that he had been convicted of an unrelated attempted robbery in Du Page County and that, after having been arrested on that charge, he had informed the Du Page County authorities that the defendant in the present case also was involved in an attempted robbery in Du Page County. Defendant was later precluded from offering evidence that he had been acquitted of this charge.

Theodore Lane and James Hall testified for the defense. They indicated that they had been incarcerated in the Kendall County jail with Massingill and they had conversed with him. According to Lane, Massingill told him that he had committed the robbery and that “he was going to go for probation *** because he had a perfect fall guy.” Massingill told the witnesses that he had a perfect fall guy or someone to go down for him. Massingill denied this and stated he had only told them that he hoped to be placed on probation.

Ronda Davis and Barbara Rockwell testified that the defendant had a disability in that his right leg was approximately four inches shorter than his left leg. Both witnesses remarked that the defendant wore corrective boots to compensate for the shorter leg; that they had never observed the defendant wear a shoe on his right foot which was not built up; and that they had never seen him wear any footwear other than two pairs of corrective boots. In addition, Ms. Rockwell stated that to the best of her knowledge the defendant did not own a pair of tennis shoes. Ms. Davis and another witness, Raymond Rockwell, testified that the defendant was wearing glasses on May 1, 1980, because he was unable to see without them.

The defendant presented an alibi defense at trial. Both Raymond and Barbara Rockwell testified that defendant was with Raymond Rockwell at 8:50 on the evening in question when they picked Barbara Rockwell up from work. They dropped Barbara off at her home at 9:10, went to get some beer and returned to her home at 9:20. At about 9:30 Massingill came to her house. Later in the evening at about 11 defendant went home and Barbara Rockwell went to a restaurant known as the Golden Bear with some friends. Massingill paid for everyone.

During the trial defense counsel asked Ronda Davis if she knew Phillip Massingill, who was Kenneth Massingill’s brother. When asked how tall Phillip Massingill was, the court sustained the State’s objection. Outside the presence of the jury defense counsel urged that this evidence was relevant because the man who robbed the gas station was described as having long blond hair, and being approximately five feet 10 inches tall. Defense counsel urged. that Davis would testify that Phillip Massingill was approximately the same height as defendant Foley, rather than the five feet two inches as Massingill had testified. Therefore, he urged, Phillip Massingill would easily fit the description of the individual who committed the robbery. The court refused to allow defense counsel to explore this absent some showing that Phillip was involved in the case.

After closing arguments, the trial court ruled that the toy pistol was not a dangerous weapon. The trial court reduced the charge from armed robbery to robbery. After deliberation the jury returned a guilty verdict. Defendant Foley was sentenced to seven years with the Department of Corrections.

The defendant contends before this court that both his cross-examination of Kenneth Massingill, a key witness for the State, and his direct examination of a defense witness, Ronda Davis, were improperly restricted by several rulings of the trial court. We address first the contention that the trial court erred in not allowing defense counsel to ask Kenneth Massingill during cross-examination whether he had been placed on probation for the instant offense. He also alleges that it was error to preclude defense counsel from commenting during closing argument that Massingill had been sentenced to probation for the present offense. As indicated, the court reasoned that the question of probation could not be examined or discussed in the absence of evidence that an agreement had been reached that the witness was going to receive probation for his testimony in this cause.

Certain general principles govern the use of testimony to impeach a witness’s credibility on the basis of bias, interest, or motive to testify falsely. It is well established that the demonstration of interest, bias, or motive to testify on the part of a witness is an accepted method of impeachment. (People v. Phillips (1981), 95 Ill. App. 3d 1013, 1020, 420 N.E.2d 837; People v. Eddington (1979), 77 Ill. 2d 41, 46, 394 N.E.2d 1185, cert. denied (1980), 445 U.S. 944, 63 L. Ed. 2d 777, 100 S. Ct. 1340; People v. Kellas (1979), 72 Ill. App. 3d 445, 452, 389 N.E.2d 1382.) The fact that a witness has been arrested or charged with an offense may be shown or inquired into where it would reasonably tend to indicate that his testimony might be influenced by bias, interest, or a motive to testify falsely. (People v. Freeman (1981), 100 Ill. App. 3d 478, 480-81, 426 N.E.2d 1220; People v. Barr (1972), 51 Ill. 2d 50, 51, 280 N.E.2d 708.) Similarly, the jury is entitled to hear the defense theory that a witness who is on probation at the time of trial is biased because he might be vulnerable to pressure, either real or imagined, from the authorities in connection with continuing his probationary status. People v. Kellas (1979), 72 Ill. App. 3d 445, 453, 389 N.E.2d 1382; People v. Baptiste (1976), 37 Ill. App. 3d 808, 811, 347 N.E.2d 92; see Davis v. Alaska (1974), 415 U.S. 308, 318-19, 39 L. Ed. 2d 347, 354, 94 S. Ct. 1105, 1111.

Although the scope of cross-examination is generally within the trial court’s discretion, the widest latitude should be allowed the defendant for the purpose of establishing bias, motive, or interest on the part of a witness (People v. Pizzi (1981), 94 Ill. App. 3d 415, 420, 418 N.E.2d 1024; People v. Lenard (1979), 79 Ill. App. 3d 1046, 1049, 398 N.E.2d 1054; People v. Barr (1972), 51 Ill. 2d 50, 51-52, 280 N.E.2d 708), particularly when the witrfess is an accomplice (People v. Lake (1978), 61 Ill. App. 3d 428, 378 N.E.2d 364; People v. Bergeron (1973), 10 Ill. App. 3d 762, 768, 295 N.E.2d 228). Cross-examination for this type of impeachment is a matter of right subject only to the trial court’s broad discretion to preclude repetitive or unduly harassing interrogation and to confine the cross-examination to a proper subject matter. Moreover, where the defendant’s theory is that the prosecution’s witness is unbelievable, it is error not to allow the cross-examination on matters which would reasonably tend to show bias, interest, or motive to testify falsely. (People v. Phillips (1981), 95 Ill. App. 3d 1013, 1020, 420 N.E.2d 837; People v. Lenard (1979), 79 Ill. App. 3d 1046, 1050, 398 N.E.2d 1054; People v. Lake (1978), 61 Ill. App. 3d 428, 431, 378 N.E.2d 364.) However, evidence of bias, interest or motive must not be remote or uncertain, because the evidence must potentially give rise to the inference that the witness has something to gain or lose by his testimony. People v. Phillips (1981), 95 Ill. App. 3d 1013, 1020, 420 N.E.2d 837.

Nonetheless, it is clear the admissibility of this type of impeachment is not dependent on whether defense counsel can prove beforehand that promises of leniency had been made or any expectations of special favor existed in the witness’ mind. People v. Freeman (1981), 100 Ill. App. 3d 478, 481, 426 N.E.2d 1220; People v. Kellas (1979), 72 Ill. App. 3d 445, 453, 389 N.E.2d 1382; People v. Baptiste (1976), 37 Ill. App. 3d 808, 812, 347 N.E.2d 92.

We believe it was error for the cross-examination of Massingill, the State’s witness, to have been so restricted that the defense was unable to explore the possibility that the witness may have been biased or testifying falsely. This same problem arose in Davis v. Alaska (1974), 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 354, 94 S. Ct. 1105, 1110, where the court recognized that “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” In Davis the witness was on probation at the time of his testimony and, as in the case before us, it was reasonably possible that the witness may have felt as though he was in a vulnerable position, whether real or imagined, regarding his status as a probationer, and such subtle pressure could have induced him to testify against the defendant.

In light of the principles set forth above, we believe the defendant should have been allowed to cross-examine Massingill so that a record could be made from which to argue why he may have been biased or motivated to testify falsely. The defendant was entitled to expose the jury to this inference.

At this point the question becomes whether, as the State asserts, this error was harmless beyond a reasonable doubt. The standard of review of an error affecting a Federal constitutional right is whether it was harmless beyond a reasonable doubt, that is, whether there is a reasonable possibility that the error might have contributed to the accused’s conviction. People v. Freeman (1981), 100 Ill. App. 3d 478, 481, 426 N.E.2d 1220; Chapman v. California (1967), 386 U.S. 18, 23-24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 827-28.

Our review of the record shows that Massingill was a key witness for the prosecution. Although he was not the only person to place the defendant at the scene of the crime, we cannot say his testimony did not affect or contribute to the jury’s verdict. Despite the fact that the robbery victim’s identification of defendant was positive, MassingM’s testimony was crucial.

Although Massingill did not actually observe the defendant commit the robbery in issue here, he testified that he and the defendant had planned the burglary; that the defendant bought a toy gun and a pair of nylon stockings in preparation for the robbery; that he parked the car near the Pride gas station and waited in the vehicle while the defendant proceeded toward the gasoline station; and that the defendant returned to the automobile and told Massingill to get out of there. The jury was also aware that the witness had been convicted of the same robbery offense and had informed the Du Page County authorities that the defendant was involved in the instant robbery. Given those facts, we believe that Massingill was a key witness and that the limitation upon the jury’s ability to be apprised of all the potential facts relating to the witness’s credibility and motivátion for testifying was prejudicial, not harmless beyond a reasonable doubt.

Because of the possibility that they may arise on retrial, we address two other evidentiary issues raised by defendant.

During the cross-examination of Massingill he testified that both he and defendant Foley had been involved in an attempt robbery in Du Page County. He indicated they had both been charged with attempt robbery. When asked whether Foley was acquitted of that charge, the State objected and the court sustained that objection. Defendant contends that the jury should have been allowed to hear that Foley was acquitted of the charge in Du Page County. While the trial court may have erred in this regard, we believe that on retrial Massingill should not be allowed to testify about defendant’s prior criminal record, regardless of whether there were prior charges, acquittals or convictions.

Defendant also contends he should have been allowed to elicit information about Massingill’s brother, Phillip. Our review of the record shows that defense counsel was properly precluded from delving into this area. The record did not show that Phillip Massingill was involved in the case in any way.

For the reasons stated, defendant’s conviction is reversed and this cause is remanded for a new trial.

Reversed and remanded.

UNVERZAGT and VAN DEUSEN, JJ., concur.