author: JUSTICE BERLIN

text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Trustee, et al., Plaintiffs-Appellees, v. IRENE T. RYAN et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81-1133
    Opinion filed May 11,1982.
    Ambrose & Cushing, P. C., of Chicago (John C. Ambrose, of counsel), for appellants.

      Denenberg & Denenberg, of Chicago (Joseph B. Denenberg, of counsel), for appellee.
   JUSTICE BERLIN

delivered the opinion of the court:

Defendants, Irene T. Ryan and James Ryan, appeal from a judgment for possession entered in favor of plaintiff Willie Badiner & Associates, Inc., evicting defendants from a condominium unit, Apartment 2805, 330 West Diversey Parkway, Chicago, Illinois. Defendants contend that plaintiff’s security interest in a beneficial interest in an Illinois land trust cannot be enforced in a forcible entry and detainer proceeding and that plaintiff lacked standing to bring an action to evict defendants. For the reasons hereinafter stated, we affirm the judgment of the trial court.

On March 1, 1978, a certain land trust was created at the American National Bank under trust number 42538 which held title to an improvement, being a condominium apartment number 2805 at 330 West Diversey Parkway, Chicago, Illinois. The owner of said condominium and beneficiary of said land trust was Irene T. Ryan. In June 1978 defendants, Irene T. Ryan and James Ryan, assigned 100% of the beneficial interest in the trust property to plaintiff, Willie Badiner & Associates, Inc., as collateral to secure a $40,000 loan. No evidence of a lease was presented, and there was no real estate contract for the purpose of the condominium between plaintiff and defendants. Willie Badiner, a principal of Willie Badiner & Associates, Inc., testified that it was his intention when the documents were executed that defendants would repay the principal of $40,000 plus $6,000 in interest and that he would return the condominium assignment to the defendants.

Badiner testified further that he made repeated demands for repayment of the loan. By an agreement dated January 15,1979, the loan was extended. After further demands were made and not complied with, plaintiff served defendants with a demand for possession. The notice gave defendants 30 days to deliver possession. An action for forcible detainer for possession was filed on November 12,1980, two days subsequent to the period covered by the notice. The trial court entered judgment for possession in favor of plaintiff.

I

Defendants initially contend that plaintiff’s interest was not that of an owner of real estate but that of a secured party of personal property, and that its remedy upon defendants’ default was limited to proceed against the documents which were held as security and not to proceed in an eviction suit.

As security for the loan, plaintiff received an assignment of 100% of the defendants’ beneficial interest in the land trust holding title to the condominium. The beneficial interest under an Illinois land trust is considered personal property. (Levine v. Pascal (1968), 94 Ill. App. 2d 43,50, 236 N.E.2d 425.) An assignment of that beneficial interest to secure a note does not convert it into a real estate mortgage so as to permit a right of redemption. (Horney v. Hayes (1957), 11 Ill. 2d 178,183,142 N.E.2d 94; Shefner v. University National Bank (1976), 40 Ill. App. 3d 978, 980, 353 N.E.2d 126.) The principles applicable to acquiring a security interest in the beneficial interest in an Illinois land trust are those applicable to acquiring a security interest in personalty. (Sheridan v. Park National Bank (1981), 97 Ill. App. 3d 589, 591, 422 N.E.2d 1130.) The creation of a security interest in personal property is governed by article 9 of the Uniform Commercial Code. Ill. Rev. Stat. 1977, ch. 26, par. 9 — 101 et seq.

Section 9 — 501(1) of the Code states:

“When a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this Part and except as limited by subsection (3) [not applicable here] those provided in the security agreement. He may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure.” Ill. Rev. Stat. 1977, ch. 26, par. 9 — 501(1).

Section 9 — 503 provides that “[u]nless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.” (Ill. Rev. Stat. 1977, ch. 26, par. 9 — 503.) The security agreement in this cause specifically extends to plaintiff “all the remedies of a secured party under the Uniform Commercial Code of Illinois, including without limitation the right to take immediate and exclusive possession of the Collateral.”

The thrust of defendants’ argument appears to be that the plaintiff’s security interest in the beneficial interest in the land trust is personal property and as such cannot be enforced through a forcible entry and detainer action. Defendants cite no authority in support of this proposition, and we note that a similar argument was rejected in Mamolella v. Mamolella (1979), 73 Ill. App. 3d 398,392 N.E.2d 99, where the court held that real estate owned by a partnership, although considered an interest in personal property, may be the subject of a forcible entry and detainer action. 73 Ill. App. 3d 398, 400.

An action in forcible entry and detainer is an action for possession. (Ill. Rev. Stat. 1979, ch. 57, par. 2; Mamolella v. Mamolella (1979), 73 Ill. App. 3d 398, 400.) The forcible entry and detainer act does not confine the remedy it provides to a landlord-tenant relationship but provides a remedy whenever peaceable entry is made and possession unlawfully withheld. (Ill. Rev. Stat. 1979, ch. 57, par. 2; Illinois Central R.R. Co. v. Michigan Central R.R. Co. (1958), 18 Ill. App. 2d 462, 483, 152 N.E.2d 627; Thomasson v. Wilson (1893), 146 Ill. 384, 392, 34 N.E. 432.) As the assignee of defendants’ beneficial interest in the land trust, plaintiff had a sufficient right of possession upon defendants’ default to bring this action.

II

Defendants next contend that where land has been conveyed to a land trust and no lease exists, a forcible entry and detainer action must be instituted by the trustee and not by the beneficiary of the trust or an assignee of the beneficiary’s interest. Since, according to defendants, there was no evidence that plaintiff, Willie Badiner & Associates, Inc., owned the trust or that the trust had any interest in the defendants’ property, plaintiff is at best a beneficiary and not a trustee and lacked standing to bring this action.

Defendants rely on Godellas v. Godellas (1973), 11 Ill. App. 3d 871, 872, 296 N.E.2d 876, where the court stated that “[I]t is well established that a forcible entry action must be instituted by the trustee where title to the property has been conveyed to a land trust.” Godellas, however, was not decided on that issue, and both Godellas and the authorities on which it relied for the quoted statement have been rejected in a more recent case not cited by the parties. See Mamolella v. Mamolella (1979), 73 Ill. App. 3d 398,400-402,392 N.E.2d 99.

In Mamolella the court held that possession of legal title is not a prerequisite to the right to sue for “possession” of property held in a land trust. The beneficiary may institute such an action. (73 Ill. App. 3d 398, 401-02.) We find ourselves in accord with this holding because the forcible detainer statute relates solely to the right of possession and provides that the proceeding can be maintained by the “person entitled to the possession of lands or tenements.” (Ill. Rev. Stat. 1979, ch. 57, par. 2.) Legal title is not a prerequisite to the maintenance of such a proceeding, and our supreme court has held that “in an action of forcible entry and detainer the immediate right of possession is all that is involved and the title can not be inquired into for any purpose.” (Davis v. Robinson (1940), 374 Ill. 553, 555, 30 N.E.2d 52.) Where, under the terms of a security agreement, plaintiff, as the assignee of 1002! of the beneficial interest in an Illinois land trust, had a right of possession upon defendants’ default, a forcible entry and detainer action to oust defendants from possession is not barred by plaintiff’s lack of legal title to the property nor by the absence of a lease agreement. See H. Kenoe, Kenoe on Land Trusts sec. 6.26 (Ill. Inst. Cont’g Legal Educ. 1981).

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

Affirmed.

DOWNING and HARTMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    NICK W. FRENDREIS et al., Plaintiffs-Appellants, v. FINANCIAL CONCEPTS, LTD., Defendant-Appellee.
    First District (2nd Division)
    No. 81-1503
    Opinion filed May 11,1982.
    Rehearing denied June 10,1982.

      ■Bradley, McMurray, Black & Snyder, of Chicago (Michael A. Snyder, of counsel), for appellants.
    Fohrman, Lurie, Sklar & Simon, Ltd., of Chicago (Paul Cottrell, of counsel), for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiffs Nick and Bernice Frendreis brought suit against five defendants to rescind the purchase of a note. The defendants are Financial Concepts, Ltd. (the seller of the note), Charles Knapp (a salesman employed by Financial Concepts), Sterling Enterprises, Inc. (the issuer of the note), and John Meatte and Kenneth Kortas (officers of Sterling). Plaintiffs brought this rescission action pursuant to section 13 of the Illinois Securities Law of 1953 (the Act). (Ill. Rev. Stat. 1977, ch. 12Bz, par. 137.13.) Section 13 of the Act provides that notice of an election to rescind the purchase of a security must be given within six months of the time the purchaser acquires knowledge that the sale is voidable under the Act. (Ill. Rev. Stat. 1977, ch. 121M, par. 137.13B.) Defendant Financial Concepts moved for summary judgment, contending that plaintiffs had not given notice of rescission within the six-month period specified in the statute. The trial court granted the motion. Plaintiffs appeal.

The note in question is a $7,000 promissory note issued by Sterling Enterprises. The face of the note, in prominent typeface, bears the message, “These notes have not been registered under either the Federal or Illinois securities acts and are being sold pursuant to exceptions therein.” Plaintiffs purchased the note on August 26, 1975. By June of 1976, Sterling had defaulted on interest payments which, by the terms of the note, were to be made monthly. In June 1977, plaintiffs wrote to the Illinois Secretary of State. In July 1977, a securities investigator for the Secretary of State wrote plaintiffs and requested more information on the transaction. Plaintiffs provided this information. On October 11,1977, the Secretary of State sent plaintiffs a notice of an impending action. This notice is central to the issue of plaintiffs’ knowledge of the voidability of the purchase of the note so the October 11 communication is here related in some detail. That communication consisted of a cover letter and a copy of a notice sent to Financial Concepts, Charles Knapp, and Sterling Enterprises (designated Respondents). The notice informed the respondents of a hearing to determine whether the respondents should be permanently prohibited from selling Sterling’s unregistered securities. The notice went on to state the grounds for the proposed action: (a) Sterling had issued a series of notes; (b) Financial Concepts and Knapp had sold one of these notes to the Frendreises; (c) the notes were not registered and were not exempt from registration, in violation of section 5 of the Act; and (d) Financial Concepts and Knapp were not registered as a dealer and a salesperson, respectively, in violation of section 8 of the Act. See Ill. Rev. Stat. 1977, ch. 121%, pars. 137.5,137.8.

On October 19, 1977, plaintiffs first contacted their attorney. The attorney was initially engaged to collect the value of the note from Sterling Enterprises. Within a few days of plaintiffs’ first conversation with their attorney, they provided him with all documents relevant to the note, including the October 11 notice from the Secretary of State. The Secretary’s hearing was held on December 12 and 19, 1977, and on January 9,1978. On March 20,1978, the hearing officer issued his finding that all three respondents had violated the Act. On April 19, 1978, the Secretary of State again wrote plaintiffs. This letter included a copy of the hearing officer’s findings and specifically advised plaintiffs of their right to rescind the purchase of the unregistered note. On July 13, 1978, plaintiffs’ attorney mailed to all five defendants herein a notice of intent to rescind the purchase. This litigation followed.

In granting summary judgment for defendant Financial Concepts, the trial court found that plaintiffs had notice in October 1977 of the voidability of the sale. This was more than six months prior to plaintiffs’ notice (on July 13,1978) of intent to rescind, so the trial court found that plaintiffs’ action was barred as a matter of law by section 13 of the Act. That section provides:

§13. Civil remedies. A. Every sale of a security made in violation of the provisions of this Act shall be voidable at the election of the pin-chaser exercised as provided in subsection B of this Section; B. Notice of any election provided for in subsection A of this Section shall be given by the purchaser, within 6 months after the purchaser shall have knowledge that the sale of securities to him is voidable.” Ill. Rev. Stat. 1977, ch. 121%, par. 137.13.

The crucial concept in subsection B is “knowledge of voidability.” Courts of this State have held that “[knowledge that the sale is ‘voidable’ is a mixed question of fact and law on which a layman is entitled to acquire his first knowledge from an attorney.” (Curtis v. Johnson (1968), 92 Ill. App. 2d 141, 155, 234 N.E.2d 566.) The legal component of this “mix” is embodied in the questions, “Did the buyer know that the unregistered security was illegal under the Act,” and, “Did he know that an illegal sale is voidable?” The knowledge required to answer these questions is not usually possessed by a layman. In Curtis v. Johnson, therefore, the court found that the buyer did not acquire knowledge of voidability until he had consulted his attorney. (See 92 Ill. App. 2d 145, 155.) Also relevant, however, is the rule that an attorney’s knowledge is imputed to his client. (See People ex rel. Rogers v. Elrod (1975), 35 Ill. App. 3d 26,28,340N.E.2d598.) Thus, in McPhersonv. Hewitt (1975), 32 Ill. App. 3d 435, 335 N.E.2d 606, the buyers of securities were held to have acquired knowledge of the illegality of the securities transaction when their attorney received information from the Secretary of State that the securities were unregistered. See 32 Ill. App. 3d 435, 442.

In the instant case, Financial Concepts admits that the plaintiffs, had they not consulted an attorney, would have had no knowledge of voidability until receipt of the Secretary of State’s April 1978 letter which unequivocally advised that the sale was voidable. Financial Concepts maintains that plaintiffs’ attorney, on the other hand, did not need to wait for the final word from the Secretary of State since the attorney knew or should have known of the voidability of the sale from the fact of the Secretary’s action to restrain allegedly illegal trading by Financial Concepts. Plaintiffs point out that Financial Concepts actively contested the Secretary’s charge of illegal trading. From this, plaintiffs conclude that their attorney could not have acquired certain knowledge of the illegality (and voidability) of the transaction until the Secretary’s action concluded with a finding of a violation of the Act.

The issue, thus narrowed, appears to be a question of first impression in this State: when a buyer of securities acquires knowledge (through his attorney) that the legality of the securities is being challenged, does that knowledge (given the related knowledge that an illegal sale is voidable) start the running of the six-month period provided in section 13B of the Act? Put another way, is the buyer of challenged securities permitted to defer his own action until the illegality of the sale has been determined in a contested quasi-judicial proceeding?

Financial Concepts contends that the McPherson case provides an answer to these questions. In McPherson, the buyers’ attorney wrote to the sellers and demanded proof that the transaction was not fraudulent. He received no reply. The attorney then contacted the Secretary of State and learned that the securities were unregistered. Concluding that the transaction was illegal, the attorney then (six days later) gave the sellers notice of the buyers’ intent to rescind the sale. (See McPherson v. Hewitt (1975), 32 Ill. App. 3d 435, 438.) The attorney acted to rescind on the bare knowledge that the securities were unregistered. Here, Financial Concepts argues, plaintiffs’ attorney was required to act because he knew not only that the security was unregistered but also that the Secretary of State deemed the transaction illegal. The signal distinction between McPherson and the instant case, however, is that Financial Concepts denied it had violated the Act and sought to prove that the security was exempt from registration and the transaction was therefore legal. Parenthetically, we note the inconsistency of Financial Concepts’ position. Financial Concepts maintained throughout the Secretary of State’s hearing that the security in question was exempt from registration and its sale was legal. In this litigation, however, Financial Concepts insists that plaintiffs’ attorney should have known of the illegality of the sale as soon as he learned that the Secretary had charged a securities violation and scheduled a hearing.

Whether the note was exempt from registration is a mixed question of fact and law. Financial Concepts claimed an exemption under section 3L of the Securities Act. That section provides that promissory notes “which arise out of current transactions” and have a maturity period not exceeding nine months are exempt securities. (Ill. Rev. Stat. 1977, ch. 121/2, par. 137.3L.) The hearing officer found the claimed exemption inapplicable because the note did not arise out of any “current transaction” between the Frendreises and Sterling. The hearing officer also found that the note exceeded the nine-month maturity limit because the note was renewable at Sterling’s option.

We do not here review the findings or recommendations of the hearing officer. We only note that his responsibilities encompassed both the determination of the facts and the interpretation of the Securities Act. We also note that our courts have stated that the Act “is paternalistic in character and should be liberally construed to better protect the public not just from fraud or dishonesty, but also from the incompetence, ignorance and irresponsibility of persons engaging in the business of disposing of securities to the public.” (Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 245, 323 N.E.2d 73; see also Norville v. Alton Bigtop Restaurant, Inc. (1974), 22 Ill. App. 3d 273, 284, 317 N.E.2d 384.) A liberal construction of section 13B requires that the buyer be given sufficient time after the illegality of securities transaction has been determined to elect to void the sale. We therefore hold that when the seller or issuer of challenged securities is defending the legality of the transaction, the buyer does not acquire knowledge of voidability (for purposes of the six-month rule) until the illegality of the transaction has been established in a judicial or quasi-judicial proceeding.

Our conclusion is supported by cases describing the nature of the six-month rule. In Gowdy v. Richter (1974), 20 Ill. App. 3d 514, 523, 314 N.E.2d 549, the court held that the six-month rule is not a statute of limitations but is an equitable feature designed to protect a seller from stale claims. The Act provides a separate three-year statute of limitations for civil remedies under the Act. (Ill. Rev. Stat. 1977, ch. 121%, par. 137.13D.) In Martin v. Orvis Brothers ir Co., the defendant accused the plaintiff of conduct which, if true, would constitute just the sort of “stale claim” that the six-month rule was intended to prevent. Orvis Brothers’ salesman testified that he told the plaintiff (Martin) that he could rescind the purchase of certain unregistered stock. The salesman testified that Martin indicated he would not rescind because the stock had risen in value above his purchase price. (See 25 Ill. App. 3d 238, 243-44.) Ten months later, when the stock’s value had plummeted, Martin gave notice of intent to rescind the sale. (See 25 Ill. App. 3d 238, 241-42.) In Martin, this court stated that the purpose of the six-month rule is to prevent a buyer who has sufficient knowledge of the availability of a remedy from waiting out the full three-year statute of limitations before deciding whether to rescind the purchase. (Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 246.) The instant case does not present such a situation.

Given that the six-month rule is an equitable aspect of the statute, we find no inequity in leaving Financial Concepts vulnerable to a demand for rescission of a transaction when the demand was made within six months of the time that the transaction was adjudicated illegal. We therefore hold that the trial court erred in granting summary judgment to Financial Concepts. The judgment should be reversed and the cause remanded for further proceedings in plaintiffs’ action for rescission.

Reversed and remanded.

DOWNING and PERLIN, JJ., concur.

       Sterling, Meatte and Kortas did not appear in the trial court. Default judgment was entered against those defendants. Knapp did not join in the motion for summary judgment and is not a party to the instant appeal.

       These allegations regarding Martin’s conduct were not passed upon by the trial court in Martin. The case was remanded for a factual determination of when the plaintiff acquired knowledge of the stock sales’ voidability. See Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 252.


author: JUSTICE HARTMAN

text:
      In re MARRIAGE OF FRANCINE LEOPANDO, Petitioner-Appellant, and OLIVO LEOPANDO, Respondent-Appellee.
    First District (2nd Division)
    No. 82-44
    Opinion filed May 11,1982.
    Gregory P. Turza, of Chicago, for appellant.
    Paul A. Karkula, of Edward R. Vrdolyak, Ltd., of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

After the trial court had initially awarded temporary custody of a 4-year-old child to his mother, Francine Leopando (Francine), it awarded permanent custody, after a hearing, to the father, Olivo Leopando (Olivo). Francine appeals. The issue we address is whether the trial court abused its discretion in awarding custody to the father.

The parties were married on December 23, 1973. The minor child, Phillipe, was born October 7, 1976. Francine was appointed temporary custodian of Phillipe on September 20,1979. The parties lived together in the marital home in Lansing, Illinois, with Phillipe, through the hearing.

Francine testified she was a critical-care nurse specialist. She worked two to three weekends per month, during which time she left the house at 2 p.m., and arrived home after midnight. She left Phillipe with a.babysitter while she was gone. It would be in Phillipe’s best interest for her to have custody of him because she is with him most of the time. He confides in her, she feeds him, clothes him, bathes him, takes him to the physician, to the dentist, to school and to the gym. She and Phillipe take exercise classes together, swim, ice skate, roller skate, play ball, jog and read together. She takes him to his gymnastics class twice per week at the YMCA.

Phillipe has attended a Montessori school since he was 22 months old. At the time of the hearing he was attending five days per week from 9-11:45 a.m. Francine described in detail the procedures followed in the classroom, what Phillipe does there and how she works with him on his homework. She has asked Olivo to come with them to church on Sunday and to participate in functions such as the school picnic, but he has refused. She tries to put the child to bed by 8:30 p.m., but this was difficult since Olivo did not come home until approximately the child’s bedtime, or later, with a new toy each night. Olivo also gave Phillipe a new toy every morning, which made it difficult for her to get him to school.

Francine cooks everyday, makes sure Phillipe eats a balanced diet, prepares her own foods rather than using canned foods and gives candy only occasionally. She and Phillipe have already eaten by the time Olivo gets home. She followed certain safety precautions where Phillipe was concerned; however, Olivo left medication around the house, allowed Phillipe to stand in the car without his seat belt, to ride in the back of a pick-up truck unattended and to go outside in the winter with his coat open and no shoes on. Olivo gave Phillipe dangerous toys, such as a BB gun, a sling shot, a fencing sword and police handcuffs. Olivo never took the child to the dentist or to the pediatrician. Francine disciplined Phillipe by telling him, on eye level, of what she disapproved. She occasionally spanked him. Phillipe’s father has read to him on occasion and played with him infrequently. Francine on many occasions attempted to discuss the child with Olivo but he refused and walked away. As Phillipe is too young for Francine to work full-time, she intended to continue working part-time only. She would not work full-time while the child is in school full-time, as he still might need her. If she does not receive support she would have to move to Florida, where her parents can help out.

Joyce Skully testified that she was a caseworker from the Cook County Department of Supportive Services. When she interviewed Olivo, he told her he gets home between 7 and 8 p.m., and that his hours vary. He liked to take Phillipe to a friend’s house, and he took the child out in the evenings about once per week or once every other week. Olivo admitted that he hit his wife in front of Phillipe because she called him names and that he would continue to do so. He thought he would be a better custodial parent because of newspaper clippings and magazine articles which described divorced women’s boyfriends beating children. He could give Phillipe a better education because he had better economic resources as a doctor, whereas Francine was only a nurse, and he could provide a better cultural environment and total routine. Olivo wanted custody because he wanted to put the child on a regular diet. It was also very important for Phillipe to have a strong male influence; being raised by his mother would make him feminine. He needed a man to bring him up to be a man. He allowed Phillipe to stay up late at night because it is hard to regulate the child when the mother is around. Olivo told her that he had no need to discipline the child. When asked what he did for Phillipe when he was small, Olivo said this was the mother’s job and that he worked.

Skully further testified she found the marital domicile neat and clean, except for the bedroom on the lower floor, which was cluttered. Francine had testified that room was occupied by Olivo, and other witnesses testified that it was cluttered with male clothing, among other things. Olivo denied that the room was his, but was extremely vague regarding where he slept; at one point he stated he slept on the floor in the living room. Skully observed Phillipe and Francine. They seemed to respond and listen to each other and Francine spoke softly to Phillipe. Phillipe’s babysitter told Skully that Olivo let him play with matches, and on one occasion fed him four packages of candy in one day.

In Skully’s opinion, it was in the child’s best interest for Francine to have custody. She found it unusual that Olivo supported his reason for wanting custody with newspaper articles about complete strangers, his admission of physical violence concerned her, and she felt that Olivo did not put enough limitations on Phillipe.

Susan Jairado, a registered nurse and social acquaintance of Francine’s, testified on Francine’s behalf. Francine kept the house neat and took good care of Phillipe. She reiterated Francine’s method of disciplining Phillipe as Francine herself described it. She testified she had seen Phillipe play with dangerous toys such as a sling shot and an arrow, and that she had seen Francine put such toys out of his reach. Another friend of Francine’s, Rosvita Guzaski, testified that she and her children had engaged in activities with Francine and Phillipe such as attending church, playing games, roller skating and swimming. She stated that on one occasion she observed Olivo pass on the street in a pick-up truck with Phillipe riding in the back unattended.

Olivo testified that he was a staff cardiologist at South Chicago Community Hospital. He made rounds at the hospital everyday, maintained his own private office four days a week, and was on call 24 hours a day. He had two children by a prior marriage living in the Philippines. He had sent no money to the children’s mother, Rachel. Although he was “made to believe” the children were living with his ex-mother-in-law, he had not sent her any money for the support of the children. He sent money directly to the children; however, at his deposition he said that the children were too young to take money. He had not seen them for seven to nine years. He arrived home on Mondays, Tuesdays, Thursdays and Fridays at approximately 4-5 p.m., rather than between 8 p.m. and 12 a.m., as Francine testified. Sometimes he went out again so that Phillipe would not see the tension between himself and Francine. Francine had attempted to minimize his contact with Phillipe. At another point, however, he testified there was no friction between himself and Francine. He had changed Phillipe’s diapers, fed him and cooked for him, but had not cooked for him lately.

Olivo admitted he did not know who took Phillipe to school or brought him home, or the name of his babysitter, whom he calls “the old lady next door.” He bought toys for Phillipe everyday, and sometimes gave him one in the morning and one in the evening. He disciplined Phillipe “by example.” He never says “no” to him, but takes a more positive approach. Francine disciplined in a threatening way. On one occasion Phillipe told him his mother hit him, and Olivo found bruises on his face. He would be a better custodian of Phillipe because he could better care for Phillipe’s physical well-being, growth and development. For example, he chose Phillipe’s pediatrician and dentist; however, Francine takes Phillipe to see them. He also feels he can give Phillipe psychological consistency. Phillipe should be taught stability “by example.” He would give Phillipe intellectual guidance, as he had done in the past by taking him to see “Snow White and the Seven Dwarfs” and to a farm to see how an egg is laid. He had never consulted with Phillipe’s teachers and did not know their names, although he had a list of them at home. Olivo would be able to give the child spiritual leadership because of the Catholic background of his country. He had taken Phillipe to church once in the last year, and about four or five times in the past two years. He did not know whether Phillipe went to church regularly with his mother or not. He should get custody because he had more money and he would be willing to give the child what he needed. He has not taught the child any anatomy; sex education should be taught again “by example.” With regard to the physical aspects of the child’s sex education, he stated, “I will teach him how to screw somebody if you want me to.” If he received custody he would hire up to four full-time nannies to take care of Phillipe. Ideally, he would like Francine to take care of Phillipe for three or four days a week. Olivo claimed that Francine drinks, and has been intoxicated in his presence three or four times per year.

Eugene Citadino testified on Olivo’s behalf that he had known Olivo for four years. Olivo brought Phillipe to his house two or three times a month. They played games with Phillipe and he would swim in the pool. Olivo disciplined Phillipe by talking to him and without yelling or hitting him. Citadino saw warm affection between them.

During closing argument, Arthur M. Berman, representative of the minor child, stated that Francine and Olivo were fit parents. He stated that “[i]f the court believes that everything is equal, I would recommend custody be given to Mrs. Leopando primarily because of her current relationship with the child, but only if the court makes it perfectly clear to her that the child is not a chattel to be taken to Florida just because she may choose a particular way of life.” He added that if the court believed Olivo, custody should be awarded to him without fear for the child’s health or safety.

On February 4,1981, the court orally awarded custody to Olivo. The court gave no reason for its decision, but declared it took into consideration the factors found in section 602 of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1979, ch. 40, par. 602.) The court stated that both parties were fit and proper to have custody. A written . judgment for permanent custody was entered December 15,1981.

I

We first address the contention by the representative of Phillipe at oral argument of this appeal, who had never been served with notice of its filing. He makes the argument that upon the filing of his appearance after appointment by the circuit court, he was entitled to recéive notice of all trial and post-trial proceedings affecting his assignment as representative of the minor around whom the custody issue revolves. Counsel for Francine concedes that no notice of filing notice of appeal was ever served upon said representative, but claims that nothing in the law or rules requires that he serve notice upon a non-party or his counsel or representative in custody proceedings. We disagree. An examination of Supreme Court Rule 303(d) (73 Ill. 2d R. 303(d)) reveals that notice of filing notice of appeal is required to be served upon “* ° ” every other party and upon any other person or officer entitled by law to notice of appeal.” (Emphasis added.) In a custody proceeding, it is difficult to conceive of one more entitled to notice of trial or post-trial proceedings affecting such custody than the minor child or children and their representatives. (See Roth v. Roth (1977), 52 Ill. App. 3d 220, 226-27, 367 N.E.2d 442.) This is not to suggest that such representative should necessarily seek intervention in every appeal; however, he should be given the opportunity of determining whether that step would be necessary in order to safeguard and preserve the rights of the subject minor children. Although absence of notice does not affect our jurisdiction to consider the appeal (Lachona v. Industrial Com. (1981), 87 Ill. 2d 208,211,429 N.E.2d 858; Echols v. Olsen (1976), 63 Ill. 2d 270, 274-75, 347 N.E.2d 720), the better procedure here would have been to have notified said minor through his duly court-appointed representative. Since the representative sought no leave to intervene in the appeal or to file a brief, we proceed to the merits of the appeal.

II

Francine argues that the trial court abused its discretion in awarding custody to Olivo because the evidence demonstrates that she has a close, full-time daily involvement with Phillipe and that she takes an active interest in his life, whereas Olivo has only a passive interest in Phillipe, knows little about the day-to-day details of his life, is rarely at home, and shows interest in Phillipe primarily by giving him toys and candy. Francine further contends that Olivo’s repeated characterization of his guidance of Phillipe as “by example” is meaningless and empty. He does not know who takes Phillipe to and from school, who his teachers are, or his babysitter’s name. She claims further that Olivo is careless of Phillipe’s safety in giving him dangerous toys and allowing him to ride on the back of a pick-up truck unattended.

The primary consideration before the trial court in a child custody case is the welfare and best interests of the child. (People ex rel. Morris v. Morris (1969), 44 Ill. 2d 66, 68, 254 N.E.2d 478; Eaton v. Eaton (1977), 50 Ill. App. 3d 306,365 N.E.2d 647.) In awarding custody of a child, the trial court has broad discretion; however, such discretion is not unlimited, is subject to review, and when the award is contrary to the manifest weight of the evidence, it is the duty of a reviewing court to reverse that decision. Applegate v. Applegate (1980), 80 Ill. App. 3d 81, 84-85, 399 N.E.2d 330; Soldner v. Soldner (1979), 69 Ill. App. 3d 97, 103, 386 N.E.2d 1153; Comiskey v. Comiskey (1977), 48 Ill. App. 3d 17, 22, 366 N.E.2d 87.

The evidence in the instant case, detailed above, overwhelmingly supports Francine’s contention that she should have been awarded custody of Phillipe. That evidence revealed that she had devoted full time to and took an active interest in every facet of the child’s upbringing. Detailed accounts of Francine’s intimate and daily involvement with Phillipe’s life in contrast with the absence of such involvement by Olivo demonstrates that custody of Phillipe by Francine would have been in his best interest. Olivo planned to secure the services of full-time babysitters until he was able to arrive home, lacked knowledge concerning Phillipe’s daily educational, religious, social and physical activities, was ignorant of the child’s personal habits, and anticipated separation from Phillipe for long periods of each day. These circumstances demonstrate a similarity with those that existed in In re Marriage of Farris (1979), 69 Ill. App. 3d 1042, 388 N.E.2d 232. There the court noted evidence of the mother’s inability to devote sufficient time to the children as one of the principal bases for its decision. As well, in Applegate v. Applegate, one of the principal reasons given for the reviewing court’s decision was the mother’s inability to care for the children properly because of her employment and observed that the children would spend more time with the babysitter than they would with the putative custodial parent. (80 Ill. App. 3d 81, 85.) Here Olivo is engaged in a busy medical practice, and his ability to be in close contact with the child is seriously undermined.

A trial court possesses a superior vantage point in reaching its decision, having had the opportunity to observe the parents and the child as well as to assess and evaluate their temperaments, personalities and capabilities. (Comiskey v. Comiskey (1977), 48 Ill. App. 3d 17, 24; Marcus v. Marcus (1974), 24 Ill. App. 3d 401, 407, 320 N.E.2d 581.) Our analysis of the entire record and of the briefs compel us to conclude, however, that the order awarding custody to Olivo is contrary to the manifest weight of the evidence and its enforcement would be contrary to the welfare and best interests of the child.

Accordingly, the order appealed from is reversed and the cause remanded to the trial court for the purpose of returning custody to Francine on a permanent basis and to establish reasonable rights of visitation by Olivo.

Reversed and remanded.

STAMOS, P. J., and DOWNING, J., concur.


author: PRESIDING JUSTICE JOHNSON

text:
      In re APPLICATION OF COOK COUNTY TREASURER AND EX-OFFICIO COUNTY COLLECTOR.—(EDWARD J. ROSEWELL, Collector-Appellee, v. LASALLE-LAKE INVESTORS, Objector-Appellant.)
    First District (4th Division)
    No. 80-1862
    Opinion filed May 13,1982.
    Arvey, Hodes, Costello & Burman, of Chicago (Nathan M. Cohen, Eugene L. Griffin, Robert M. Sarnoff, and Glen M. Zatz, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Henry A. Hauser, Michael F. Baccash, and Penny Nathan Kahan, Assistant State’s Attorneys, of counsel), for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

LaSalle-Lake Investors objected to the increased valuation of its property in a nonquadrennial year by the Cook County assessor on the grounds that the assessor had not afforded notice and an opportunity to be heard prior to the increase. In its order of judgment, the trial court denied the objection, finding that an increase notice had been mailed and that the assessor had afforded LaSalle-Lake notice and an opportunity to be heard. The issue presented for review is whether the trial court erred in holding that the required statutory notice was given.

We affirm.

Section 97 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 578) (hereafter the Act) provides that an assessment increase shall not be made without notice and an opportunity to be heard. Section 314 of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 795) provides that all notices shall be in writing and served personally or by mail.

In 1977, the assessed valuation of property owned by LaSalle-Lake Investors was increased from $4,960,286 to $7,295,449. At trial, Daniel A. Burke, chief of real estate operations for the Cook County assessor’s office, described the procedure for handling notices of increase in non-quadrennial years. A revision sheet is sent to data processing. If an increase in the assessment occurs, a notice is generated by the computer. The tape which generates the notice also generates a microfiche which is the only record of the individual notice retained by the assessor’s office. The mailing of the notice starts a 20-day appeal period in which the taxpayer may file a complaint. A second notice will be generated after the first mailing if either a complaint is filed or the assessor’s office finds an error.

After the notices are produced, they are mailed in bulk by the taxpayer’s assistance department. The notices are sent by ordinary mail and a record is kept of the date of the mailing and the number of items sent. Burke stated that notices of increase dated December 9, 1977, and February 8, 1978, and addressed to LaSalle-Lake Investors at 180 North LaSalle Street in Chicago, appeared on microfiche generated from a tape which also produced the notices which would be sent to the taxpayer.

Wilbert T. Wellington, supervisor of taxpayer’s assistance, testified that he received increase notices from Burke. It was Wellington’s responsibility to see that the notices were mailed. He identified a receipt made in the ordinary course of business of a bulk mailing of notices on December 9, 1977, and February 8, 1978. Ronald Reizner and Harry Reynolds, employees of the assessor’s office, testified that they personally delivered to the post office all the notices given to them.

Howard J. Edelman testified on behalf of LaSalle-Lake Investors. Between October 1, 1977, and March 1, 1978, he had been the financial vice-president of Centre Properties, a partnership that managed and developed 180 North LaSalle Street. During that period, it was Edelman’s responsibility to forward tax bills to Romanek and Golub. Edelman stated that he received no oral or written notice of a tax assessment between October 1, 1977, and March 1, 1978. He further testified that during the period, six persons were employed by Centre Properties. The name LaSalle-Lake Investors was not on his door. He was not sure whether the name was listed in the lobby of the building.

Donna L. Chuick, property manager of Romanek and Golub, testified that she never received the notice of increase. She admitted, however, that it was not her responsibility to pay property taxes.

Van Lage Pell, who was vice-president in finance for Romanek and Golub in 1977 and 1978, testified that he did not receive notice of an increased assessment.

After closing arguments in this bench trial, the court stated:

“The conclusion I am going to draw, based on the facts as I see them, is that the notice was, in fact, prepared and was, in fact, mailed, mailed on December 9,1977; and why it was not received I do not know; perhaps it was a confusion as to identity on the part of the taxpayer itself, as to who was to receive them. One person testified they were on the board in the building; another testified he wasn’t sure they were on the board or even on the office door, under the name that they put on the tax bills and on which the Assessor could rely for the purpose of making a mailing.
I think the proofs show that the mailing was, in fact, made, here, and the objection will be denied.”

The court also stated that “not everybody who could have possibly received the mail in their office was called to testify and deny it.”

LaSalle-Lake contends the trial court erred in holding that statutory notice was given because the trial court found that the notices of increase were never received and because the evidence of mailing was insufficient to raise a presumption of receipt. Section 97 of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 578) provides that an assessment increase shall not be made without notice and an opportunity to be heard. (Lindheimer v. Nelson (1938), 369 Ill. 312, 16 N.E.2d 734; Exchange National Bank v. Cullerton (1974), 20 Ill. App. 3d 370, 314 N.E.2d 271.) Whether LaSalleLake was given notice of the increased assessment was a question for the trier of fact to decide. The trial judge found that notices had been prepared and were in fact mailed. Sufficient proof of mailing consists of proof that a notice was properly filled out coupled with evidence of office custom with reference to the mailing of notices and corroboration sufficient to establish that the particular custom was followed in a particular case. Commonwealth Edison Co. v. Property Tax Appeal Board (1980), 86 Ill. App. 3d 414,417,407 N.E.2d 1088,1090; Owl Electric Co. v. United States Fidelity & Guaranty Co. (1971), 131 Ill. App. 2d 333, 268 N.E.2d 493.

A copy of the microfiche, which was a duplicate of the notice of increase, showed the correct name of LaSalle-Lake and the last given address. Employees of the assessor’s office testified to the customary procedure for mailing and the particular mailings on December 9, 1977, and February 8,1978. The assessor also produced two post office receipts showing bulk mailings on the dates in issue.

The findings and judgment of a trial court will not be disturbed by the reviewing court if there is any evidence in the record to support such findings. (In re Estate of Freund (1978), 63 Ill. App. 3d 1, 4, 379 N.E.2d 935, 937.) We have examined the record in this cáse and we are of the opinion that the findings of the trial court are supported by the evidence. Contrary to what LaSalle-Lake alleges, the trial court did not make a formal finding in its order of judgment that the notice was not received. At trial, the court observed that not everyone who could have received the notices was called to testify and deny receipt. We cannot say that the trial court’s findings are contrary to the manifest weight of the evidence.

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

Affirmed.

JIGANTI and ROMITI, JJ., concur.


author: JUSTICE LORENZ

text:
    EMILY A. BEDNAR, Plaintiff, v. VENTURE STORES, INC., et al., Defendants and Third-Party Plaintiffs.—(VENTURE STORES, INC., Defendant and Third-Party Plaintiff-Appellant, v. KENNETH BALK & ASSOCIATES et al., Third-Party Defendants—(READY PAVING AND CONSTRUCTION COMPANY, Third-Party Defendant-Appellee).)
    First District (5th Division)
    No. 81-352
    Opinion filed May 14,1982.

      Schaffenegger, Watson and Peterson, Ltd., of Chicago, for appellant.
    Burdick & Smith, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

The sole question in this appeal is whether the trial court erred in dismissing plaintiffs second amended third-party complaint against this defendant for failure to state a cause of action for implied indemnity.

This action arose out of a personal injury suit filed by Emily Bednar against defendants and third-party plaintiffs, Venture Stores, Inc. (Venture), a division of May Department Stores Co., and May Properties, Inc. (May). In April of 1976, Bednar was departing from a Venture store in Oak Lawn, Illinois, when she slipped and fell on a ramp-like exit and entranceway, sustaining injuries.

Bednar filed a two-count complaint against Venture and May, alleging that defendants had negligently designed the ramp on which she fell with a higher angled grade which was unreasonably unsafe for use as an entrance or exit ramp-way to the store.

May and Venture then filed a third-party complaint seeking indemnity from the architectural firm that designed the ramp, Kenneth Balk and Associates, and subsequently amended this complaint to include the third-party defendant in the case at bar, Ready Paving & Construction Co. (Ready).

The second amended third-party complaint contained these general allegations against Ready: (1) Ready was the party responsible for supplying the materials and labor for the installation of the ramp-like entrance and exit upon which Bednar fell; and (2) Ready was actively negligent in designing and/or negligently constructing the ramp at an unreasonably unsafe grade. The complaint further alleged that third-party plaintiffs, as owners of the store, were, if negligent, only passively negligent in that they had merely engaged Ready to install the ramp-like entrance and exit and were therefore entitled to indemnification from Ready.

Ready moved to dismiss the second amended third-party complaint, relying on the rule in Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368, which holds that an independent contractor is not liable if it carefully carries out the specifications provided to it, unless they are so obviously dangerous that no competent contractor would follow them.

The trial court allowed Ready’s motion to dismiss as to both Venture and May. The dismissal order provided that both third-party plaintiffs were granted leave to file a motion for rehearing supported by an amended count II.

Pursuant to that order, a motion for rehearing was filed, supported by an amendment to count II of the third-party complaint.

That amendment alleged, in pertinent part, that:

“6. Ready * * ° constructed the exterior walkway and ramp-like entrance in a careless and negligent manner in that it:
A. deviated from the plans and specifications so substantially that it knew or should have known that the configuration of the exterior walkway and ramp-like entrance was hazardous to persons walking on it, or,
B. complied with plans and specifications which were so defective and dangerous that a reasonably well qualified paving and construction company would or in the exercise of reasonable care should have recognized them to be dangerous and defective # « « ”

The trial court allowed only May to vacate the dismissal and to file this amendment to count II, but denied leave as to Venture.

Venture appeals from the orders allowing Ready’s motion to dismiss, and denying its motion to vacate the dismissal, and denying it leave to file the amendment.

Opinion

As a prelude to our discussion, we note that the judicially created theory of implied indemnity arose in order to mitigate the harsh effects resulting from an inflexible application of the traditional Illinois rule prohibiting contribution among joint tortfeasors. (Carver v. Grossman (1973), 55 Ill. 2d 507,511,305 N.E.2d 161.) Application of the indemnity doctrine historically shifted the responsibility for the indemnitee and onto the truly culpable person who in fact caused the loss. Prosser, Torts sec. 51, at 310 (4th ed. 1971).

In 1978, the court in Skinner v. Reed-Prentice Division Package Machinery Co. (1978), 70 Ill. 2d 1, 374 N.E.2d 437, ushered in contribution and thereby filled the void in the allocation of responsibility for tortious conduct.

Subsequently, the court in Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 422 N.E.2d 979, held that the recently enacted 1979 contribution-among-joint-tortfeasors act (Ill. Rev. Stat. 1979, ch. 70, par. 301) did not extinguish indemnity as a basis for recovery in Illinois. With this historical background in mind, we nonetheless observe that since the instant cause of action arose prior to March 1,1978, the indemnity issues in this case are controlled by the traditional rule prohibiting contribution among joint tortfeasors. Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 417 N.E.2d 154.

In the instant case, plaintiff contends that the amendment to count II set out sufficient facts to constitute a cause of action for implied indemnity. We agree.

A third-party complaint in an action for indemnity must allege a duty to indemnify arising from the pre-tort relationship of the parties, and a qualitative, i.e., active-passive, relationship between the negligence of the third-party plaintiff and third-party defendant. Zajac v. Illinois Heating & Ventilating Co. (1980), 82 Ill. App. 3d 1148,403 N.E.2d 674.

Because this case is before us on the pleadings, we are governed by the rule enunciated in Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790, where the court held that a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover.

As the court explained in Solar v. Dominick’s Finer Foods, Inc. (1978), 65 Ill. App. 3d 192, 196, 382 N.E.2d 581, “This theory springs from the well rooted conviction among courts and lawyers that the right to amend should be liberally granted. This situation is even more pronounced in the troublesome cases involving indemnity.”

Ready cites Hunt v. Blasius (1978), 74 Ill. 2d 203,384 N.E.2d 368, for the general proposition that it cannot be held liable for merely following plans provided by the architect and owner.

This is only a partial recitation of the rule expressed in Hunt, which further provides that if the contractor carefully carries out the specifications provided him, he is justified in relying upon the adequacy of the specifications, unless they are so obviously dangerous that no competent contractor would follow them.

In addition, a number of cases in Illinois have held that a contractor is not liable for damages if he (1) performs his work in accordance with the plans and specifications furnished by the owner, and (2) does so in a workmanlike manner. (Georgetown Township High School District No. 218 v. Hardy (1976), 38 Ill. App. 3d 722, 349 N.E.2d 88.) Breach of either of these two duties can give rise to a cause of action. Endurance Paving Co. v. Pappas (1969), 117 Ill. App. 2d 81, 253 N.E.2d 895.

In the present case, paragraph 6 of Venture’s amendment to count II alleges, in the alternative, that Ready either deviated from performing its work in accordance with the plans, or else complied with plans which were so obviously dangerous that no competent contractor would follow them. Plantiff therefore alleged, with sufficient clarity, a violation by defendant of his duties to plaintiff. The amendment further alleged a qualitative distinction between the conduct of Venture and the conduct of Ready; that is, it properly alleged that Ready was the active tortfeasor while Venture’s fault was merely passive.

Accordingly, we find that Venture’s amendment to count II contains sufficient allegations of fact indicating a qualitative distinction between the conduct of the parties, and a pre-tort relationship giving rise to a duty on the part of Ready to indemnify. Therefore, we conclude that the trial court erred in dismissing Venture’s third-party complaint without a trial on the merits. Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630.

For the foregoing reasons, we reverse the order of the circuit court of Cook County dismissing Venture’s amended third-party complaint and denying leave to vacate the dismissal and file the amendment to count II of the third-party complaint, and we remand for further proceedings consistent with the views expressed herein.

Reversed and remanded.

SULLIVAN, P. J., and MEJDA, J., concur.


text:
    HOMER BROOKS, a Minor, by Dorothy Brooks, his Mother and Next Friend, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (4th Division)
    No. 81-1042
    Opinion filed April 22, 1982.
    Perry M. Berke, of Baskin, Server & Berke, of Chicago, for appellant.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Maureen J. Kelly, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Homer Brooks, appeals from an order of the trial court which set aside the jury’s verdict in his favor and which entered judgment notwithstanding the verdict for defendant, the City of Chicago (City). Plaintiff raises the following issues for review: (1) whether the trial court erred in holding that plaintiff was guilty of contributory negligence as a matter of law; (2) whether the trial court erred in holding that there was insufficient evidence to support a finding that defendant was negligent; (3) whether the trial court erred in holding that the verdict of the jury was excessive or a compromise verdict; and (4) whether the trial court erred in holding that the municipal notice served upon defendant was defective and fatal to the cause of action.

We reverse.

Testimony at trial established the following.

Homer Brooks, plaintiff’s father, testified that on July 3,1974, he saw his son, Homer Blane Brooks, with a motorcycle in the alley behind their house. The cycle was owned by a professional motorcyclist who had asked plaintiff to clean it. Because the cycle looked new and expensive, Brooks did not want his son to be responsible for it. Brooks wanted to take it to a friend’s garage where the owner could later pick it up. Brooks drove his car, following Homer, who rode the motorcycle. As Homer was riding on Ridgeland Avenue, a one-way street running north, someone crossed the street in front of him. When Homer turned to the right to avoid hitting the person, the motorcycle bounced straight up. Then it began bouncing again from holes in the street and turned on its side. Thereafter, his son failed to control the cycle and fell off. In Brooks’ opinion, the speed of the motorcycle was 20 miles per hour. Brooks had been about two car lengths behind the cycle.

The father went over to his son who was bleeding from his ears and nose. Brooks noticed in the street a 3-inch deep depression which was about 4 or 5 feet in length. There were scratch marks alongside potholes. Brooks identified the scratch marks from a photograph taken the evening of the accident. The photograph did not show the potholes or the depression because they were south of the area photographed. After the accident, Brooks went to a nearby fire station to summon an ambulance which took Homer to Jackson Park Hospital. Brooks did not talk with the police at the accident scene or at the hospital.

According to Brooks, his son had learned to ride a motorcycle from a neighbor and had no formal training. Homer had never owned a motorcycle, but he had owned a minibike.

Larry Stafford testified for plaintiff. On July 3,1974, he was 17 years old and living at 7949 Ridgeland in Chicago where he had resided since 1970. The accident occurred between 5 and 7 p.m. during daylight hours. Stafford was standing on the lawn of his house which was on the east side of the street; he and a friend were talking. He heard a motorcycle, turned and saw its light, then turned back to talk with his friend. Then he saw a girl, who was about 15 years old, run across the street in front of the motorcycle. The cyclist swerved to the right to avoid hitting her, straightened out the cycle which then hit a sewer. The cycle bounced and began hitting depressions in the street; the cyclist lost control. The cycle continued to bounce and tilted. The cyclist could not straighten out the cycle and it fell on its side after sliding down the street. The cycle and the plaintiff ended up on the east side of the street.

Stafford estimated the speed of the motorcycle at 15 to 20 miles per hour. Scrape marks started about 7 feet from the sewer and went beyond the depression which had existed for as long as Stafford had lived there. The witness stated that driving a car over the depression was like driving over speed breakers. Stafford also testified that he did not know the plaintiff or his father. On rebuttal, Stafford said that repairs were made on Ridgeland after July 3, 1974, and before May 12, 1975, when photographs were taken of the street which did not show a depression.

Joseph Flores, a Chicago police officer, arrived at the scene of the accident at 7:40 p.m. which was 5 to 20 minutes after the accident. The weather was clear and dry; it was just beginning to get dark. Flores could not recall seeing either the ambulance or the plaintiff at the accident scene, but he did see plaintiff in the emergency room of the hospital. The motorcycle was lying on its side in the middle of Ridgeland Avenue and marks in the center of the street led up to it. Flores measured 87 feet of scrape marks. An evidence technician photographed the marks. A diagram in Flores’ report indicated that there was a dip in the street, but he could not tell if the photograph of the marks included the area of the dip.

When Flores testified on behalf of defendant, he stated that the dip was not sufficient to cause a cyclist to lose control and that there were no potholes in the street. From the length of the marks, he determined that plaintiff was traveling 45 to 50 miles per hour. Flores said that if plaintiff had been going only 15 miles per hour, the marks would have been 10 to 15 feet in length. After the accident, a man asked Flores what had happened. When Flores asked the man who he was, the man said, “I am the kid’s father.” The officer said, “I don’t know. I just got here.” Flores did not remember what the father looked like, nor did he write the father’s name in the police report or make notes of the conversation. Flores said that pictures taken on May 12, 1975, showed the street in the same condition as it appeared at the time of the accident.

Dorothy Brooks, plaintiff’s mother, testified that after her son was injured, he remained in intensive care at the hospital for 9 days. During his hospitalization, Homer was paralyzed on the left side of his body. He could not use his left arm and leg, his mouth was twisted, his eyes were crossed and he appeared to be confused. Homer was transferred from the hospital to the Schwab Rehabilitation Hospital for therapy. While there, he was depressed, confused and wanted to go home. A week after this transfer, Homer fell from a window and sustained a spinal injury. After a second hospitalization, Homer returned to Schwab for therapy. When he left the rehabilitation center, he walked with a limp in his left leg and used a cane. His eyes were crossed and he was still confused, forgetful and restless. Homer went to Spalding, a school for handicapped children, briefly. He also attended public high school for a short time. After a while, he secured a job pumping gas. In 1978, he was hired by U. S. Steel but was laid off in the spring of 1980. Mrs. Brooks stated that her son is still forgetful, has irritable moods and is irresponsible. At times, his eye pops out.

Dr. Isaac Martin Thapedi, a neurological surgeon, treated plaintiff in the emergency room of Jackson Park Hospital in July 1974. Plaintiff was unconscious and paralyzed on his left side. Spinal fluid was coming out of plaintiff’s right ear; blood was flowing from his nose. Thapedi’s diagnosis was basal skull fracture. Homer’s brain stem was damaged.

When Homer was released from intensive care, he breathed on his own but was confused and disoriented, restless and agitated. The paralysis on his left side had improved. When Homer left the hospital, his speech was coherent, but he had periods of confusion and disorientation. He was still paralyzed on his left side, the arm to a greater extent than the leg. Paralysis of the cranial nerves affected Homer’s eyes, causing the right upper lid to drop and the eyes to turn inward.

Dr. Thapedi saw Homer again on October 22, 1974. Homer complained of being absent-minded and of having nightmares. The cranial nerves had returned to normal but there was weakness in the left arm. On Homer’s last visit in August 1977, he complained of dizziness and low back pain. He had returned to almost complete normalcy. According to Thapedi, Homer is likely to develop infection of the brain and is a candidate for seizures as a result of his brain stem injury.

Dr. Pabme Sundarum treated plaintiff at Schwab Rehabilitation Hospital in August 1974. Her examination revealed that plaintiff suffered from cranial nerve paralysis, his eyes deviated inward, his muscle tone was depressed, and coordination on his left side was impaired. Plaintiff was depressed, anxious about his disability, crying and wanting to go home. While at Schwab, he tied bed sheets together, climbed out of the window, fell down and injured his spine. In Sundarum’s opinion, plaintiff’s spinal injury was caused because of depression about his brain injury. On cross-examination, Sundarum said that in her treatment she relied on a psychological evaluation that stated plaintiff had poor impulse control. According to this report, plaintiff was unable to control impulses or actions; he exhibited aggressiveness, hostility and childlike behavior. Sundarum also relied on a social worker’s report that indicated plaintiff had been a patient in a child psychiatric clinic 2 years before the accident.

Homer Blane Brooks, plaintiff, testified that he had no recollection of the accident. He remembered being in the alley behind his house and seeing his father. At that time, plaintiff had a motorcycle owned by a friend named Rudolph who rode at neighboring tracks and performed in shows. Rudolph had asked plaintiff to clean the cycle for a show. Plaintiff had the motorcycle for 2 or 3 days before the accident and had kept it in a friend’s garage. On July 3,1974, plaintiff knew how to ride a motorcycle, having picked up the skill on his own. Before the accident, plaintiff had ridden two or three of Rudolph’s motorcycles for 10 or 11 months.

Plaintiff’s only recollection of his stay at Jackson Park Hospital was that he was hungry. He remembered that when he was at Schwab, his left side was weak and his eyes were crossed. He was depressed and forgetful. He decided that the best place for him was his own home. He tied sheets together to get out of the window, but he could hold on only with his right hand. He could not hold himself with only one hand and so he fell. After this accident, plaintiff was taken to Mount Sinai Hospital and put in a body cast.

After being released from Schwab, plaintiff attended Spalding school for about 1 month. He felt out of place, was impatient and could not concentrate. Plaintiff tried to go back to public school, but he was behind the other students and did not do well.

At the time of trial, plaintiff noticed that his leg stiffens after he runs for one-half block. He had regained normal strength in his arm and hand, but he was still forgetful and occasionally confused.

Dr. Charles F. Samelson, a psychiatrist, testified for defendant. He had a psychiatric consultation with plaintiff at Schwab in September 1974. In his opinion, plaintiff was depressed at that time because 2 years before the motorcycle accident, plaintiff had given his brother a loaded gun with which the brother had killed himself. Samelson’s diagnosis was chronic traumatic neurosis which caused plaintiff’s nightmares, depression, restlessness, aggression and poor impulse control. According to Samelson, plaintiff’s memory was intact.

Ludwig Leskavar, a legal investigator for the city of Chicago, talked with plaintiff’s occurrence witness, Larry Stafford, on September 15, 1980. When asked how the accident happened, Stafford said that plaintiff tried to avoid hitting a girl who had come from between two cars. Leskavar made an oral report to the defense attorney but did not take notes or make a written report of this conversation.

Mary B. Jennings, coordinator and chief instructor of the motorcycle rider education program in Cook County at Northeastern Illinois University, testified for defendant. She described the training necessary to properly operate a motorcycle: a 20-hour course consisting of 12 hours of riding and 8 hours in the classroom. She was familiar with the type of motorcycle involved in the accident, a Honda 450. Jennings stated that a slight turn would cause it to accelerate rapidly.

At the close of all the evidence, the jury found for plaintiff in the amount of $67,000. A special interrogatory found plaintiff not guilty of contributory negligence. The trial court granted defendant’s motion for judgment notwithstanding the verdict because it found the evidence in favor of plaintiff insufficient under the Pedrick standard. The court held that plaintiff was guilty of contributory negligence as a matter of law and that defendant was not negligent. In the trial court’s opinion, the verdict was a compromise, notice provisions were not complied with, and the failure of plaintiff to call all the physicians listed in the notice deprived the City of valuable information. Plaintiff appeals from the order granting defendant judgment notwithstanding the verdict.

The primary issue raised by this appeal is whether the trial court order granting judgment n.o.v. was proper. In Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, our supreme court adopted the following rule:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand.” 37 Ill. 2d 494, 510.

Applying the Pedrick rule to the instant case, we hold that the trial court erred in granting judgment n.o.v. to defendant. When all the evidence is viewed in the aspect most favorable to plaintiff, it does not favor defendant. Plaintiff introduced evidence of reasonable care in riding the motorcycle. Two witnesses testified that the speed of the cycle at the time of the accident was about 20 miles per hour, and plaintiff had been riding motorcycles for almost 1 year. Plaintiff also introduced evidence of defendant’s negligence, the existence of a depression several inches deep in the street. Defendant presented contrary evidence. However, it is the jury’s function to resolve substantial factual disputes requiring either the assessment of witness’ credibility or an election between conflicting evidence. (Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 491, 422 N.E.2d 925, 929.) Further, when the evidence supports the jury’s verdict and there is no showing that a party was denied a fair trial, it is an abuse of discretion for the trial court to substitute its judgment for that of the jury. The jury’s verdict should not be disturbed by the trial court unless it is unreasonable, arbitrary and unsupported by the evidence. Neither the trial court nor the appellate court should sit as a second jury. (Looft v. Missouri Pacific R.R. Co. (1982), 104 Ill. App. 3d 152, 432 N.E.2d 1152.) In the case at bar, we find the verdict of the jury amply supported by the evidence. Therefore, it was error for the trial court to find plaintiff guilty of contributory negligence as a matter of law and to find evidence of defendant’s negligence insufficient in contravention of the jury verdict.

Plaintiff’s next contention is that the trial court erred in finding that the jury verdict was excessive or a compromise. The trial court stated:

“THE COURT: I think the verdict of the jury was excessive, that it was a compromised verdict. A few minutes before they arrived at the verdict they said they were absolutely unable to arrive at a verdict. Two minutes later they said they have a verdict. What do they have? They have a verdict of $67,000, that is $17,000 of medical expenses and they throw in $50,000 of the City’s money. If they thought that the plaintiff was entitled to a verdict he was entitled to every penny you asked for and more.
MR. BERKE [plaintiff’s attorney]: In other words, if the plaintiff was to win this case they should have given him what I asked for?
THE COURT: And more.
MR. BERKE: And since they gave him less it indicates the jury didn’t do their job properly?
THE COURT: Just compromised.”

The amount of damages is primarily a question of fact for jury determination. (Horton v. City of Ottawa (1976), 40 Ill. App. 3d 544, 551, 352 N.E.2d 23, 28.) In Golden v. Big Bear Foods, Inc. (1968), 102 Ill. App. 2d 237, 243 N.E.2d 730, defendant argued that the jury verdict in a wrongful death action was a compromise because it was less than the maximum recovery permitted by statute. The appellate court stated: “we cannot agree that the verdict was a ‘compromise’ merely because the jury returned a verdict less than the statutory limit.” (102 Ill. App. 2d 237, 252.) We hold that in the instant case, the trial court erred in finding that the jury verdict was a compromise.

Plaintiff’s final contention is that the trial court erred in holding that the notice served upon the City was defective. The trial court gave two reasons for this holding: (1) the notice stated that the accident occurred “at or near the public sidewalk” of 7945 South Ridgeland rather than on the street; and (2) the plaintiff did not call all the physicians listed in the notice. In Greene v. City of Chicago (1976), 48 Ill. App. 3d 502, 363 N.E.2d 378, aff’d (1978), 73 Ill. 2d 100, 382 N.E.2d 1205, an alleged defect in the notice was that the location of the accident was listed as “105th and Wentworth” instead of the actual intersection of 104th and Wentworth. We held that plaintiff had substantially complied with the notice requirements of section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1969, ch. 85, par. 8 — 102) because the city had received actual as well as statutory notice of the exact location of the accident. Greene v. City of Chicago (1976), 48 Ill. App. 3d 502, 511.

In the instant case, we hold that plaintiff substantially complied with the notice requirements of section 8 — 102. Defendant was aware that the accident happened in the street because plaintiff alleged negligent maintenance of the street and also because of the police report. Finally, we find no authority for the proposition that failure to call all physicians listed in the notice must be construed as a defect in the notice itself.

Defendant contends that assuming arguendo the trial court erred in entering judgment n.o.v., it should have granted defendant’s post trial motion for a new trial. Defendant alleges as prejudicial error the court’s refusal to give the following instruction:

“There is in force and effect a law in the State of Illinois which provides that slight inequalities in level, or minor defects frequently found in the public way are not actionable.
Whether the evidence in this case established that there was a minor defect is for you to decide.”

The trial court allowed the following instruction: “A city has a duty to use ordinary care to maintain streets in a reasonably safe condition.”

A liberal application of the harmless error doctrine to jury instruction issues is favored when it appears that the rights of the complaining party have in no way been prejudiced. (Quick v. Nagel (1980), 85 Ill. App. 3d 342, 347, 406 N.E.2d 835, 838.) Defendant has not shown how it was prejudiced by the failure to give its instruction nor do we see how defendant could have been prejudiced even assuming that it was error to refuse to give the instruction. We conclude that the trial court did not err in refusing to grant defendant’s motion for a new trial.

This cause is reversed and, pursuant to our authority under Supreme Court Rule 366(a)(5) (73 Ill. 2d R.366(a)(5)), judgment is entered on the verdict of the jury in favor of plaintiff and against defendant for $67,000, plus costs.

Reversed, with judgment here.

ROMITI and LINN, JJ, concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICO ADAMS et al., Defendants-Appellants.
    First District (1st Division)
    No. 80-1461
    Opinion filed April 26, 1982.

      Ralph Ruebner, of State Appellate Defender’s Office, of Chicago (Ira A. Moltz, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Richard B. Levy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Rico Adams, defendant Fred Johnson and Albert Winfrey were charged in an indictment with burglary, armed robbery and armed violence. Winfrey’s motion for severance was granted and defendants Adams and Johnson were tried jointly.

Prior to trial, defendant Adams filed a motion for discharge, alleging that pursuant to section 103 — 5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5(a)) his right to a speedy trial was violated because he was not brought to trial within 120 days from the day he was taken into custody. Adams was arrested on September 18, 1978, for the armed robbery in the case now before us. At the time of his arrest he was on parole stemming from a plea of guilty to an offense listed as murder and reduced to armed robbery. On October 8, 1978, he posted bond for the armed robbery and was released from custody. On January 8,1979, he was arrested for a parole violation because of his arrest on the armed robbery charge. On April 23, 1979, he filed motions to quash his arrest and to suppress evidence. On May 29,1979, he surrendered himself in exoneration of his bond. The trial court denied Adams’ motion for discharge, finding that his detention on the parole warrant did not trigger the 120-day rule.

After a jury trial, defendants were found guilty of burglary, armed robbery and armed violence. The circuit court of Cook County sentenced both to extended terms of imprisonment: Adams to extended terms of 14 years for burglary and 35 years for armed robbery; Johnson to 15 years for armed robbery and an extended term of 10 years for burglary.

Defendants appeal. Adams contends that the trial court erred in denying his motion to discharge because he was not brought to trial within 120 days of being taken into custody. Both defendants contend they were denied a fair trial (1) because of alleged improper cross-examination of defense witnesses, (2) because the prosecutor made improper comments during closing argument, and (3) because defendants were improperly given extended term sentences.

Because of the contentions raised, the evidence need not be stated in detail. The record shows:

On September 17, 1978, defendants Adams and Johnson and a third person entered the house at 5222 South Green Street, Chicago, occupied by Diane Brashear, her two children, Edward Marshall, Lamont Marshall and Tony Marshall. Both Adams and Johnson had guns. The occupants were made to lie on the floor. Threats of death were made. Two radios, a gold watch, a small television set and money were taken by defendants. Adams and Johnson, after their arrest, were identified by the occupants. Both defendants presented alibi witnesses.

We disagree with Adams’ contention that the trial court erred in refusing to discharge him because he was not brought to trial within 120 days of his being taken into custody. The State argues that because Adams made bail on October 8, 1979, the applicable limitation period required for a speedy trial is 160 days from the date defendant demands trial (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5(b)) (the 160-day rule) and that the rule set forth in section 103 — 5(a) (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5(a)) that a defendant be tried for an alleged offense within 120 days from the date he was taken into custody (the 120-day rule) is inapplicable here. We agree with the State.

In order to be discharged under the 120-day rule, defendant must have been in custody in connection with the charge for which he was subsequently tried. (People v. Nettles (1969), 107 Ill. App. 2d 143, 246 N.E.2d 29.) The issue here is whether Adams’ detention on the parole warrant, which began on January 8,1979, is to be considered as detention on the robbery, armed violence and burglary charges for purposes of the 120-day rule.

This issue was raised in People v. Daily (1975), 30 Ill. App. 3d 413,332 N.E.2d 146. In that case, defendant was arrested for armed robbery on August 17,1973. He posted bond on September 5,1973, and was released. On September 7,1973, he was arrested on a parole violation. He remained in custody until December 13, 1973. On that date the parole warrant was withdrawn and defendant was granted return of his bond money on the armed robbery charge. Defendant was then released on his own recognizance. The Daily court found defendant’s detention on the parole warrant beginning on September 7 was not to be considered as detention on the armed robbery charge for purposes of the 120-day rule. The Daily court pointed out that this same question had been raised in People v. Patheal (1963), 27 Ill. 2d 269,189 N.E.2d 309, but had not been decided.

In People v. Patheal, the defendant was arrested on August 20,1959, on a warrant charging the offense of armed robbery. At the preliminary hearing on September 4, 1959, the defendant was ordered held to await the action of the grand jury. On December 11, 1959, the defendant was delivered into the custody of a State parole agent under a warrant charging him with violation of parole, and he was taken from the county jail to the penitentiary. The indictment charging armed robbery was returned by the grand jury on December 15, 1959. The defendant was discharged from the penitentiary on January 21, 1960, and was immediately taken into custody on a warrant issued under the indictment. He remained in custody continuously until February 23,1960, when he filed his motion for discharge, which was denied. The supreme court reversed, finding that the time spent in the penitentiary would be counted in computing the period of delay involved in bringing the defendant to trial upon a different charge and because the defendant had not been brought to trial within four months of his arrest, he was discharged.

We find that the court in Daily correctly determined that the precise issue raised in that case had not been decided by the court in Patheal. We note that in Patheal the defendant was in custody continuously from the date he was arrested on the armed robbery charge until he filed his motion for discharge. However, in Daily the defendant was on bond on the armed robbery charge at the time he was taken into custody on the parole warrant. Similarly, in the case before us defendant Adams was on bond on the charges of robbery, armed violence and burglary at the time he was arrested on the parole warrant. We conclude that because defendant Adams was released on bond on the burglary, armed robbery and armed violence charges, the 160-day rule for defendants on bail or recognizance became applicable. (People v. Griegel (1978), 64 Ill. App. 3d 508, 381 N.E.2d 369; People v. Sibley (1976), 41 Ill. App. 3d 616, 354 N.E.2d 442.) The cases which follow Patheal all involved defendants who were in custody continuously from the date of arrest on the offense in question until the day they filed motions for discharge. See People v. Burchfield (1978), 62 Ill. App. 3d 754, 379 N.E.2d 375.

Applying the 160-day rule here, we find that defendant Adams was not denied his right to a speedy trial. The motions to quash his arrest and to suppress evidence filed by Adams on April 23,1979, did not constitute a demand for trial. While no magic words are required to constitute a speedy trial demand, there must be some affirmative statement in the record that requests a speedy trial. (People v. Coleman (1977), 50 Ill. App. 3d 40, 365 N.E.2d 246.) The motions filed by Adams on April 23, 1979, cannot be construed as a communication to the court that Adams was demanding trial. Although the record reveals that Adams made a formal demand for trial on October 5, 1978, we note that he was not on bail on that date. A demand for trial made while a defendant is in custody is ineffective to trigger the running of the 160-day rule. (People v. Byrn (1971), 3 Ill. App. 3d 362, 274 N.E.2d 186; contra, People v. Arch (1975), 33 Ill. App. 3d 331, 337 N.E.2d 221.) Because Adams’ formal request for a speedy trial was made while he was in custody and was never renewed at the time of filing the motion for bail or after he was admitted to bail, the running of the 160-day rule was not triggered. Defendant Adams was not denied his right to a speedy trial.

Even if the motions of April 23, 1979, are construed to be a demand for trial, defendant Adams was not denied his right to a speedy trial because the trial began well within the 160-day period.

Because we find the 160-day rule applicable here, we heed not address the issue of whether a continuance granted February 5, 1979, should be attributed to defendant Adams as a delay “occasioned by the defendant” (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5(a)), thereby rendering the 120-day rule inapplicable.

We also disagree with the contentions of defendants that they were denied a fair trial because (1) during cross-examination of defendant Johnson the prosecutor was allowed to question Johnson about whether he had any prior convictions, and (2) during cross-examination of defendant Adams’ wife the prosecutor was allowed to ask her who the father of her children was and whether defendant Adams contributed to their support.

During cross-examination of defendant Johnson, the prosecutor asked Johnson if he had ever been convicted of a crime. Defense counsel objected to the question and made a motion for mistrial which the trial court denied. A defendant who testifies in his own behalf may be impeached by a prior conviction only by the record of the conviction or an authenticated copy thereof. (People v. Flynn (1956), 8 Ill. 2d 116, 133 N.E.2d 257; People v. Kosearas (1951), 408 Ill. 179,96 N.E.2d 539; People v. White (1980), 84 Ill. App. 3d 1044,406 N.E.2d 7.) Cross-examination of a defendant as to a prior conviction is improper where direct examination has not covered the subject. (People v. White; People v. Natoli (1979), 70 Ill. App. 3d 131, 387 N.E.2d 1096.) However, even though improper, cross-examination of a defendant as to a prior conviction does not mandate reversal unless the error has deprived defendant of substantial justice or influenced his determination of guilt. People v. Madison (1974), 56 Ill. 2d 476, 309 N.E.2d 11; People v. White.

Although the cross-examination of defendant Johnson as to his prior conviction was clearly improper here, we do not reverse because of it. Where the evidence against a defendant is such that the jury could not have arrived at any other verdict, a conviction will not be reversed even though defendant was subjected to improper cross-examination regarding a prior conviction. After a careful review of the record, we find that the error did not deprive defendant Johnson of substantial justice or influence the determination of his guilt. People v. Madison.

During cross-examination of Rose Ann Adams, defendant Adams’ wife, the prosecutor asked her who the father of her children was. Defense counsel’s objection to the question was overruled. The prosecutor then asked Rose Ann if defendant Adams contributed to the support of the children. Defense counsel’s objection was overruled.

Defendant Adams argues that prejudicial error was committed during this cross-examination because the paternity of Rose Ann’s children and their source of support were collateral issues. We disagree.

Wide latitude should be allowed on cross-examination to establish bias of a witness. (People v. Mason (1963), 28 Ill. 2d 396,192 N.E.2d 835.) This is largely a matter for the sound discretion of the trial court (People v. Halteman (1956), 10 Ill. 2d 74, 139 N.E.2d 286; People v. Marichec (1976), 41 Ill. App. 3d 604, 353 N.E.2d 692), and only where there is clear abuse resulting in manifest prejudice to defendant will the reviewing court interfere. People v. Halteman; People v. Marichec.

It is well established that a prosecutor has the right to cross-examine a defense witness in regard to his bias, prejudice or interest in the outcome of the suit. (People v. McGovern (1923), 307 Ill. 373,138 N.E. 632; People v. Sampson (1953), 1 Ill. 2d 399, 115 N.E.2d 627; People v. Strickler (1977), 47 Ill. App. 3d 419, 362 N.E.2d 28.) The feelings of bias and the relationship of the witness to defendant are never collateral. People v. McGovern.

Rose Ann testified as an alibi witness that defendant Adams had been at her home at the time of the crime. The paternity of Rose Ann’s children and whether defendant Adams contributed to their support are relevant subjects of inquiry on cross-examination because they could reveal an interest, a bias or a motive to testify falsely. We find no error in the prosecutor’s cross-examination.

We also disagree with the third contention that improper comments were made by the prosecutor during rebuttal in closing argument which deprived defendants of a fair trial. Defendants cite five alleged instances of overstepping the bounds of proper argument.

The first two instances are:

“If you believe them then you tell them to go out there and rob and kill some more. The only reason these neighborhoods are like that is because of guys like that.”
“We also have a right to a guarantee to not be in fear of our homes and when we walk down the street and we have guys like that out there. # # #
They [complainants] know if these guys are found not guilty, they are coming back out on that street.”

Defendants contend that the first comment was improper because the prosecutor argued that if found not guilty defendants would “kill some more” when defendants were not charged with murder and there was no evidence presented relating defendants to anyone’s death in this case or in any other case. They contend that the second comment was improper as an attempt to arouse the prejudice of the jury.

In criminal appeals involving questions of improper argument on the part of the prosecutor, each case must be decided on its own facts. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880.) Furthermore, the propriety of remarks during closing argument is generally left to the discretion of the trial court. (People v. Rodriguez (1980), 89 Ill. App. 3d 941,412 N.E.2d 655.) “[Arguments and statements based on the proof or legitimate inferences deductible therefrom do not transcend the bounds of legitimate argument” and “it is entirely proper for the prosecutor to dwell upon the evils of crime and to urge the fearless administration of the law.” (People v. Hairston (1970), 46 Ill. 2d 348, 375, 263 N.E.2d 840, cert, denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) “[I]t is not improper to request the jury to consider the possibility that evil results might arise if defendant is released provided that such remarks are based on the evidence or legitimate inferences therefrom. [Citations].” People v. Galloway (1979), 74 Ill. App. 3d 624, 629, 393 N.E.2d 608.

In People v. Johnson (1979), 73 Ill. App. 3d 431, 392 N.E.2d 587, defendant was convicted of the armed robbery of a boy who was on his way to school. The prosecutor there stated in closing argument that if defendant is let go, one day the jurors may read in the papers that someone was shot on the street. The court there held this remark to be proper comment.

We find that the prosecutor’s comments here were within the bounds of legitimate argument.

The third instance occurred when the prosecutor stated:

“[Defense counsel] talked about how they didn’t see all the property taken and all this. * 0 * [Defense counsel] brought out as to what all was taken from each witness, each victim. * * * I think it was Lamont Marshall up on the stand. We didn’t bring it out. We can’t bring it out because it would be hearsay.”

Defendants contend that this remark infers that the prosecution had access to other information which the jury had not heard. However, in defense counsel’s closing argument he had stated:

“Now, we don’t have any testimony about Daniel’s losses, Marie’s losses, or Lowell’s losses. We have Diane talking about how she can see people emptying their pockets, can’t see what’s taken.”

Defendant cannot complain that he has been prejudiced by any remarks made by the prosecutor which have been invited or provoked by defense counsel. (People v. Galloway.) We find that the prosecutor’s comments were a legitimate response to the argument of defense counsel and thus were proper argument.

The fourth instance occurred when the prosecutor stated:

“Rico Adams has one brief alibi witness, Rosie. And I feel sorry for her. And you should too. It’s not her fault she got hooked up with a guy like that * * * who else is going to lie for him?”

Defendants contend that it is improper for the prosecutor to comment on the truthfulness of a witness because this is a matter to be determined by the trier of fact. However, a prosecutor may charge that a witness has lied as long as it is apparent that this opinion is based on the evidence or reasonable inferences therefrom. (People v. Wirth (1979), 77 Ill. App. 3d 253, 395 N.E.2d 1106.) In Wirth, the prosecutor stated that a defense witness who had known the defendant for five years and dated him for two months had reason to lie and did lie. The court there found that the comment was proper. Similarly here, Rose Ann was the wife of defendant Adams and would possibly have a motive for lying. We find no error in the prosecutor’s comments.

The final instance occurred when the prosecutor stated:

“He [defense counsel] comes over here and he leans over and confers with his client. He thinks well he’s got a little time to relax, there is no question pending. Now he thinks I don’t have to pay that — attention span can only last so long — and after he confers with Rico he gets back up and he says, ‘Now who was in the bedroom?’ ”

Defendants contend that this comment was improper because it constituted an impermissible attack on defendant through his legal counsel. The meaning and purpose of this comment is unclear to us; but, if it can be said to be improper, it did not constitute prejudicial error because, in light of the overwhelming evidence against defendants, we find that it did not constitute “a material factor” (People v. Clark (1972), 52 Ill. 2d 374, 390, 288 N.E.2d 263) in their convictions or that “the verdict would have been different had the improper closing argument not been made * ° People v. Trice (1970), 127 Ill. App. 2d 310, 319, 262 N.E.2d 276.

We conclude that the comments of the prosecutor do not, singly or cumulatively, constitute reversible error.

Defendants’ final argument is that the trial court abused its discretion when it imposed extended term sentences on defendants. Defendant Adams was sentenced to extended terms of 14 years for burglary and 35 years for armed robbery. Defendant Johnson was sentenced to 15 years imprisonment for armed robbery and an extended term of 10 years for burglary.

Section 5 — 5—3.2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)) states:

“(b) The following factors may be considered by the court as reasons to impose an extended term sentence under Section 5 — 8—2 upon any offender who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts; or
(2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.”

As to defendant Adams, at the sentencing hearing it was shown that in February of 1978 he pleaded guilty to an offense which was listed as murder and reduced to armed robbery and was sentenced to 7 years imprisonment. He was released in March of 1978. Within eight months from his guilty plea to that offense he committed the burglary and armed robbery in the case before us. The trial judge noted that during the perpetration of the crime here, defendant Adams threatened the lives of his victims, asking them if they had “ever seen anybody get their brains blowed out?” Defendant Adams then told his victims that “he had done it before, [you] should see it squirt.” He stated that “he had done time for killing somebody * * * and did not mind killing no nigger.”

It has been held that a court may impose an extended term when either one or both of the aggravating factors set forth in section 5 — 5—3.2(b) are present. (People v. Gray (1979), 80 Ill. App. 3d 213, 399 N.E.2d 206.) Here, as to defendant Adams both factors were present. The trial court did not abuse its discretion in sentencing defendant Adams to extended terms of 14 years’ imprisonment for burglary and 35 years’ imprisonment for armed robbery.

As to defendant Johnson, at the sentencing hearing it was shown that he had received one year probation for battery in 1971. He also had pleaded guilty to robbery in May of 1974 and served a sentence of a year and a day for that offense. Because he had previously, within 10 years, been convicted of the same or a greater class of felony, the trial court did not abuse its discretion in sentencing defendant Johnson to an extended term of 10 years imprisonment.

The convictions and sentences are affirmed.

Affirmed.

GOLDBERG and McGLOON, JJ., concur.