author: Mr. JUSTICE HAYES Mr. PRESIDING JUSTICE STAMOS

text:
    Margaret Keilholz, Plaintiff-Appellant, v. Chicago and North Western Railway Company et al., Defendants-Appellees.
    (No. 56128;
    First District (2nd Division)
    March 27, 1973.

      Rehearing denied April 18, 1973.

      STAMOS, P. J., dissenting.
    King, Robin, Gale & Pillinger, and Kamin, Stanley & Balkin, both of Chicago, (J. William Braithwaite, Stanley N. Gore, and Frank C. Stanley, of counsel,) for appellant.
    James P. Daley, Kenneth J. Wysoglad, of Chicago, for appellees Chicago & North Western Railway Co. and Earl R. Sniff.
    McKenna, Storer, Rowe, White & Haskell, of Chicago, (John F. White and Howard K. Priess II, of counsel,) for appellees Alan Smith Excavating, Paul C. Smith and Alan Smith, Albert J. Mitchell, Inc., and Albert J. Mitchell.
   Mr. JUSTICE HAYES

delivered the opinion of the court:

This is an appeal from an order dismissing with prejudice plaintiff’s complaint for damages allegedly arising from a train-truck collision. A review of the history of the litigation is necessary to highlight the issues raised in this appeal. For convenience, this history will be presented in chronological order with the applicable law interspersed as it becomes involved.

1. On 2 April 1965, the train-truck collision occurred, in which plaintiff was injured.
2. In 1967, prior to the expiration of the two-year Statute of Limitation applicable to plaintiff’s cause of action (Ill. Rev. Stat. 1965, 1967, Chapter 83, Section 15), plaintiff filed a complaint in the Circuit Court of Cook County seeking damages for injuries allegedly incurred through the negligence of defendants in the train-truck collision.
3. After one pre-trial conference in the summer of 1969, and on 11 May 1970, a second pre-trial conference was set for 7 July 1970, at which plaintiff was ordered to appear in person. Supreme Court Rule 218(a) gives the trial court the discretion to enter such an order, even when plaintiff’s attorney is, as he must be, fully authorized to act on behalf of plaintiff. “Rule 218. PRE-TRIAL PROCEDURE (Ill. Rev. Stat. 1969, Chapter 110(A), Section 218)
“(a) Conference. In any civil case, the court may hold a pre-trial conference. At the conference counsel familiar with the case and authorized to act shall appear with or without the parties as the court directs, * *
4. On 7 July 1970, plaintiff’s counsel, fully authorized to act on behalf of plaintiff, appeared, but plaintiff did not appear. The court had been notified by plaintiff’s counsel about a week before that plaintiff was in New York City and would be unable to appear.
5. On 8 July 1970, the court entered the following order:
“It is therefore ordered, adjudged, and decreed that this cause be and the same is hereby dismissed for noncompliance with Supreme Court Rules 218 and 219(c) and the order of this Court entered on May 11, 1970.”
Supreme Court Rule 218(d) provides:
“(d) Enforcement. The court shall make and enforce all rules and orders necessary to compel compliance with this rule, and may apply the remedies provided in paragraph (c) of Rule 219.”
Supreme Court Rule 219(c) provides:
“Rule 219. Consequences of refusal to comply with rules or orders relating to discovery or pre-trial conferences. (Ill. Rev. Stat. 1969, Chapter 110(A), Section 219)
(c) Failure to comply with order or rules. If a party, or any person at the instance of or in collusion with a party, unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
(v) that, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that his suit be dismissed with or without prejudice;”
6. On 15 October 1970, plaintiff’s timely motion to vacate the order of dismissal of 8 July 1970 was denied.
7. Plaintiff elected not to appeal from the order of dismissal and the refusal to vacate the same.
8. Instead, plaintiff elected to re-file her complaint in the Circuit Court of Cook County, which she did on 15 December 1970. In doing so, plaintiff was relying on a section of the Statute of Limitations, not only as obviating what would otherwise have been a limitation bar to the re-filing, but also, as amended in May of 1967, as expressly authorizing the re-filing where the earlier dismissal had been “for want of prosecution”. The section (Ill. Rev. Stat. 1969, Chapter 83, Section 24a) provides as follows:
“Section 24a. Commencement of new action upon reversal or nonsuit. In the actions specified in this Act or any other act or contract where the time for commencing an action is limited, if judgment is given for the plaintiff but reversed on appeal; or if there is a verdict for the plaintiff and, upon matter alleged in arrest of judgment, the judgment is given against the plaintiff; or if the plaintiff is nonsuited, or the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff, his heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the plaintiff is nonsuited or the action is dismissed for want of prosecution.” (Underlining, other than of the section’s title, is ours to indicate the matter inserted by legislative amendment, effective 25 May 1967)
9. On 20 January 1971, defendants filed an amended motion to dismiss plaintiff’s new complaint for the reason that plaintiff’s action was barred both by the Statute of Limitation and by the res judicata effect given to the 8 July 1970 order of dismissal, entered under Rule 219(c), by Supreme Court Rule 273 (Ill. Rev. Stat. 1969, Chapter 110(A), Section 273.) Supreme Court Rule 273 (effective 1 January 1967, which was also the effective date of Supreme Court Rule 219(c) provides as follows:
“Rule 273. EFFECT OF INVOLUNTARY DISMISSAL. Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.”
10. On 25 March 1971 the trial court granted defendants’ amended motion, and dismissed plaintiff’s new complaint with prejudice. The matter before us is an appeal from that order of dismissal of the new complaint.

Plaintiff’s theory of the case is: (1) Section 24a of our Statute of Limitations is applicable in this case to remove what would otherwise have been a limitation bar to the re-filing of the new complaint in December of 1970; and (2) Section 24a, as amended in late May of 1967, is also a statute of this State which “otherwise specifies” within the meaning of the express exception in Supreme Court Rule 273, so that that Rule imparted no res judicata effect to the 219(c) dismissal order of 8 July 1970. Defendants deny both of plaintiff’s contentions.

Defendants’ denial of plaintiff’s first contention is apparently based on the alleged applicability to this case of the holding in three prior cases that Section 24a, despite its literal applicability, is inapplicable to assist a plaintiff whose limitation problem in filing his second action has been created by his own extreme and self-initiated delay either in prosecuting his first action or in filing his second action after the dismissal of his first action. (Tidwell v. Smith (1965), 57 Ill.App.2d 271, 205 N.E.2d 484; Ray v. Bokorney (1971), 133 Ill.App.2d 141, 272 N.E.2d 836; Quirino v. Chicago Tribune-New York News Syndicate, 10 Ill.App.3d 148.) Since the record here discloses no such extreme and self-initiated delay by this plaintiff, we conclude that the “extreme delay” exception to the applicability of Section 24a does not apply in this case.

We perceive another ground upon which to question the applicability of Section 24a to this case. Is the dismissal order of 8 July 1970 an order of dismissal “for want of prosecution” within the meaning of amended Section 24a? On its face, the order of dismissal of 8 July 1970 is essentially based on “noncompliance with * * * the order of this Court entered on May 11, 1970”, and therefore is not expressly “for want of prosecution”. On the other hand, the order of 11 May 1970 was entered under the authority of Rule 218(a), and the order of 8 July 1970 was entered under the authority of Rules 218(d) and 219(c). Therefore, the order of 8 July 1970 is squarely based on Rules 218 and 219. The question then arises: what is the purpose of Rules 218 and 219? The purpose, inter alia, is to authorize and implement the pre-trial conference procedure. That procedure was adopted to expedite the prosecution of civil cases by providing a pre-trial mechanism to sift out the basic issues between the parties and to formulate them as precisely and accurately as possible, to reach a stipulation of as much of the evidence as possible, and to reach an agreed settlement of the case, if possible. All to what end? Obviously, to move the case more expeditiously either to settlement or to trial, and, if to trial, then to a more expeditious trial; in short, to expedite the prosecution of the case. Hence, we think that the penalties authorized under Rules 218 and 219 for failure to participate in the pre-trial conference procedure in accord with the orders of the trial court are essentially penalties “for want of prosecution” within the meaning of Section 24a. In reaching this conclusion, we are mindful of the general proposition that Section 24a, being remedial in nature, is to be liberally construed in order to enable it to achieve its remedial purpose. We also note as an analogy a dictum in the case of Casillas v. Rosengren (1967), 86 Ill.App.2d 139, 229 N.E.2d 141. At a time when Section 24a did not contain any reference to dismissal “for want of prosecution” but did refer to situations in which a plaintiff was “nonsuited”, the Court in dictum in Casillas construed a dismissal “for want of prosecution” as an “involuntary nonsuit” within the meaning of “nonsuited” in Section 24a. (It seems unlikely that the Casillas case was the reason why the Legislature added the phrase “for want of prosecution” to Section 24a on 25 May 1967, because the Casillas opinion is dated 9 August 1967.)

We conclude that Section 24a is applicable in this case to remove what would otherwise have been a limitation bar to the plaintiff’s re-filing on 15 December 1970.

We turn now to plaintiffs second contention. None of the three cases on which defendants relied for the alleged inapplicability of Section 24a has anything to contribute as to the alleged res judicata effect imparted by Rule 273 to the 219(c) (v) order of dismissal. The Tidwell case antedated Rule 273; in the Ray case, the issue does not appear to have been raised; in Quirino, the issue was raised and described, but the court found it unnecessary to decide the issue in disposing of the case. We are not so fortunate.

Defendants deny that Section 24a is a statute of this State which “otherwise specifies” within the meaning of the express exception in Rule 273, for the reason that Section 24a is limited on its face to the single matter of curing what would otherwise be a limitation bar to the filing of the second action, and does not even purport to address itself to the matter of the res judicata effect imparted by Rule 273 to the 219(c) dismissal order of 8 July 1970. There is, however, some precedent to the contrary in Mages Sports Arenas, Inc. v. Winston Park Shopping Center, Inc. (1969), 112 Ill.App.2d 409, 251 N.E.2d 334. That case involved alternative holdings. In its first alternative holding, the Court held that Rule 273 was inapplicable under the circumstances presented in the case. In its second alternative holding, the Court held that, even if Rule 273 had been applicable, the rule’s own express exception of cases in which “a statute of this State otherwise specifies” would have applied because Section 24a, as amended in late May of 1967 to include the situation in which an “action is dismissed for want of prosecution” and in which the plaintiff had commenced a new action “within the remaining period of limitation”, is such a statute. Concededly, the authority of the case as precedent is weakened by the fact that its holding applicable here was merely a second alternative holding, but, in the absence of any other precedent directly in point, we see no reason to ignore it or to treat it as dictum. In addition, we see possible significance in the prompt legislative amendment of Section 24a, to include tire situation in which an action is dismissed “for want of prosecution”, only five months after Rule 273 had become operative. We conclude that amended Section 24a is a statute of this State which “otherwise specifies” within the meaning of the express exception in Rule 273.

Accordingly, we reverse the trial court herein, and remand the case for such further proceedings as may be had and as are not inconsistent herewith.

We are not unaware of the fact that our holding may be thought to deprive the Supreme Court of its power adequately to enforce Rules 201 through 218. "We do not agree that it does so. We think, rather, that a close reading of Rule 219(c) (v) discloses that the Supreme Court meant thereby to require that every order of dismissal entered under its authority state expressly on its face whether it is entered “with prejudice” or “without prejudice”. Should it expressly state that it was entered “with prejudice”, then Rule 273 would merely confirm that the order operated “as an adjudication on the merits”. The party affected would be expressly alerted to the significance of this dismissal order, would know that his sole opportunity to escape the order lay in an appeal therefrom and that Section 24a provided no alternative route of escape (for the simple reason that Section 24a does not address itself to dismissals expressly “with prejudice for want of prosecution”), and would not be booby-trapped into the false route of re-filing by a failure to appreciate the possible res judicata effect imparted by Rule 273 to a “silent” Rule 219(c) (v) order of dismissal. On the other hand, should the 219(c) (v) order of dismissal expressly state that it was entered “without prejudice”, then the order would fall squarely under the express exception in Rule 273 for an order of dismissal which “otherwise specifies”. None of the unfortunate imbroglio involved in the instant case would be involved, if trial courts would comply with the express requirement which we discern in Rule 219(c) (v) that every order of dismissal entered under the authority of that Rule shall state expressly on its face that it has been entered either “with prejudice” or “without prejudice”, as the intent may be.

Reversed and remanded.

LEIGHTON, J., concurs.

Mr. PRESIDING JUSTICE STAMOS

dissenting:

Two issues are raised in this appeal: (1) Whether Judge Canel’s original order of dismissal operated as res judicata upon the complaint at bar; and (2) Whether the complaint was barred by the Statute of Limitations. It must be emphasized that these two issues are separate and distinct and that different statutes, Supreme Court Rules and case law pertain to each respectively. To illustrate, although Supreme Court Rule 273 is tire focal point for determining tire res judicata issue, it has no bearing on the Statute of Limitations issue. Similarly, the cases of Tidwell v. Smith, 57 Ill.App.2d 271, 205 N.E.2d 484; Ray v. Bokorney, 133 Ill.App.2d 141, 272 N.E.2d 836, and Quirino v. Chicago Tribune-New York News Syndicate, Inc., 10 Ill.App.3d 148 are pertinent to the Statute of Limitations issue, but have no bearing on the res judicata issue. Although this distinction may appear self-evident, it has not been observed in the appellate briefs at bar, and I believe that the procedural significance of this case dictates our utmost efforts for clarity.

I would hold that plaintiff’s second complaint was barred by the doctrine of res judicata.

I do not agree that Section 24a of the Limitations Act is a statute “otherwise specifying” for purposes of Supreme Court Rule 273. The majority opinion to the contrary relies primarily upon the authority of Mages Sports Arena v. Winston Park Shopping Center, 112 Ill.App.2d 139, 229 N.E.2d 141. However, as I interpret that case, its express holding is that pursuant to the Supreme Court order adopting Supreme Court Rules retroactively in 196, Rule 273 would not be applied, due to the patent injustice of a retroactive application under the facts of that case. Subsequent language in Mages to the effect that Section 24a is a statute which “otherwise specifies” constituted only dicta and should not now be elevated to the stature of binding precedent. Even assuming arguendo that such language did constitute an “alternative holding,” I believe that such a holding as well as the majority opinion in the case at bar unduly enlarge the intent of our legislature in enacting Section 24a and undermine tire intent of our Supreme Court in enacting Supreme Court Rule 219 (c).

Section 24a is a limitations statute, intended to extend the period of limitations under certain circumstances. It provides for the refiling of an action, regardless of whether the applicable limitations period has run, within one year of any of the following dispositions: (1) Judgment for plaintiff which is reversed on appeal, when the reviewing court does not decide the merits adversely to the plaintiff, See Carboni v. Bartlett, 290 Ill.App. 351, 8 N.E.2d 722; (2) Verdict for plaintiff, but judgment against plaintiff upon matter alleged in arrest of judgment; (3) Nonsuit; (4) Dismissal for want of prosecution. Plaintiff has cited numerous Illinois cases which state that the purpose of Section 24a is to facilitate disposition of litigation upon the merits and to avoid frustration upon grounds unrelated to the merits. (Roth v. Northern Assurance Co., 32 Ill.2d 40, 203 N.E.2d 415,) However, such pronouncements have consistently been made within the factual context of an expired limitations period which, but for Section 24a, would have barred a refiling. Neither the text of Section 24a, nor the cases which have interpreted it, suggest that it was intended to determine whether or not a particular order of dismissal operates as an adjudication uopn the merits. Prior to 1967 that determination depended upon common law and the unique facts and circumstances attending the order. Subsequent to 1967 Supreme Court Rule 273 has governed. Thus, Section 24a, a remedial statute concerning periods of limitation, is in fact complementary to Supreme Court Rule 273, which concerns the res judicata effect of orders of involuntary dismissal.

I believe that the majority opinion, by misconstruing Section 24a, will have the effect of excising the power of trial courts to dismiss suits with prejudice for failure to comply with rules of discovery, a power expressly conferred by Supreme Court Rule 219(c). Similarly, trial judges who seek to dismiss with prejudice for want of prosecution or pursuant to Supreme Court Rule 103 will find their efforts frustrated by todays decision. It is disingenuous to suggest that the mere inclusion of the phrase, “with prejudice” in an order of dismissal will protect a court’s right to invoke the drastic remedies which are inherently held or conferred by Supreme Court Rules. Nothing in Section 24a suggests that its remedial provisions are limited to situations in which the order of dismissal is silent concerning the res judicata effect of the order. (This is not surprising, since Section 24a is no more than a limitations statute.) Thus, by holding that Section 24a is a statute “otherwise specifying,” the majority opinion is plugging into Rule 273 a statute which will provide a one year refiling period for any litigant that is involuntarily dismissed, regardless of whether the dismissal order bears the words "with prejudice,” “res judicata” or any other language expressing the contrary intent-of the trial comt. Clearly this was not the intention of our Supreme Court or our legislature, but it is the unavoidable consequence of thé majority opinion.

The majority opinion implies that its holding, that Section 24a is a statute “otherwise specifying,” is essential to protect litigants from being “booby-trapped” by “silent” dismissal orders i.e. orders which do not express on their face their res judicata effect. At one time this would have been a compelling argument. It is a basic tenet of the doctrine of res judicata that an order of dismissal may bar the refiling of the same cause of action if the dismissal order derives from an adjudication upon the merits. (I.L:P. Judgments, § 321.) Prior to 1967 application of this rule spawned a substantial body of case law concerning the res judicata effect of various types of dispositions and orders, each case posing the issue of whether the subject disposition or order derived from an adjudication upon the merits. In 1967, however, Supreme Court Rule 273 was adopted with the expressed purpose of “set[ting] to rest the question of the effect of an involuntary dismissal other than those excepted by the rule.” (Supreme Court Rule 273, Committee Comments.) No further clarification is now necessary. The Supreme Court has already provided by the express terms of Rule 273 that a “silent” dismissal order operates as an adjudication upon the merits, thus apprising aggrieved litigants that the appropriate remedy is an appeal rather than a refiling of tire action.

I would therefore hold that Section 24a is not a statute “otherwise specifying” as that phrase is used in Supreme Court Rule 273. For me, the more difficult question is whether the order of dismissal entered by Judge Canel "otherwise specifies,” in which event plaintiff would still prevail on this appeal.

The original order of dismissal reflects that it was entered as a sanction against plaintiff for failure to comply with the Supreme Court Rule governing pretrial conferences. Clearly, this did not constitute an adjudication upon the merits. Since the order, on its face, belies the existence of an adjudication upon the merits, it might be argued that the order “otherwise specifies” for purposes of Rule 273. Such a contention, however, would misconstrue the specific language and the general purpose of Supreme Court Rule 273. That Rule creates a presumption that a non-exempt dismissal order “operates as” an adjudication upon the merits, not that there has in fact been an adjudication upon the merits. It is directed to the effect of dismissal orders, not to their underlying basis. This is clearly stated in the Committee Comments. Therefore, unless a dismissal order reflects in some manner that it was not intended to bar a subsequent refiling, it should operate as an adjudication upon the merits regardless of whether there has been an adjudication upon the merits. (See People v. Gulf, Mobile & Ohio R.R. Co., 125 Ill.App.2d 473, 261 N.E.2d 221.) Appearance of the phrase, “without prejudice,” in an order would certainly rebut the presumption created by Rule 273. (In re Estate of Crane, 243 Ill.App. 327, 99 N.E.2d 204). However, an order need not contain particular magic words in order to “otherwise specify.” Each order should be interpreted on the basis of the disposition thereby reflected and of the precise language utilized.

In the case at bar, the original order of dismissal provided in pertinent part: “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that tins cause be and the same is hereby dismissed for noncompliance with Supreme Court Rules 218 and 219(c) and the order of this Court entered on May 11, 1970.” It was within the power of the court to dismiss plaintiffs suit with or without prejudice. (Ill. Rev. Stat. 1969, ch. 110A, par. 219(c).) Thus, there is nothing inherent in the nature of Judge Canel’s disposition which would suggest an intent to allow refiling of the action. Nor is there language within the order indicating such an intent. Under these circumstances, I conclude that the order of dismissal did not "otherwise specify,” as that phrase is used in Supreme Court Rule 273.

I would hold that neither the order of dismissal entered by Judge Canel nor a statute of this state “otherwise specifies” as that phrase is used in Supreme Court Rule 273. Judge Canel’s order operated as an adjudication upon the merits, barring subsequent refiling of the cause of action. I express no opinion as to whether the original order of dismissal was justified by plaintiff’s conduct. Plaintiff chose not to appeal that order, despite the availability of an appellate remedy. (See Federenko v. Builders Plumbing Supplies, 123 Ill.App.2d 129, 130, 260 N.E.2d 41.) She should be bound by her election. I also express no opinion as to whether the complaint at bar was barred by the Statute of Limitations. I would affirm.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ROMITI

license: Public Domain

text:
    HARRIS TRUST AND SAVINGS BANK, Guardian of the Estate of John B. Hopp, Jr., a Minor, Plaintiff-Appellee, v. MASROOR ALI, M. D., et al., Defendants-Appellants.—(MELVIN FEINBERG, M. D., Defendant.)—MASROOR ALI, M. D. et al., Plaintiffs-Appellants, v. MELVIN FEINBERG, M. D., Defendant-Appellee.
    First District (4th Division)
    Nos. 80-2129, 80-2130 cons.
    Opinion filed September 3,1981.

      Lord, Bissell & Brook and Baker & McKenzie, both of Chicago (Harold L. Jacobson, Hugh C. Griffin, Harry J. O’Kane, and Francis D. Morrissey, of counsel), for appellants.
    Eugene J. Pavalon and Robert J. Cooney, both of Chicago (John W. Fisk and James T. Newman, of counsel), for appellee Harris Trust and Savings Bank.
    Dore & Clark, Ltd., and Ronald A. Parizek & Associates, Ltd., both of Chicago (Cornelius F. Dore, William G. Clark, Jr., and llene M. Davidson, of counsel), for appellee Melvin Feinberg, M.D.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The plaintiff as guardian of John Hopp, Jr., recovered $1,500,000 from defendants Drs. Ali and Feinberg and Sherman Hospital, Ah’s employer, when the child was misdiagnosed and improperly treated for spinal meningitis. Sherman was sued solely as Ali’s employer. Ah and Sherman Hospital appeal this verdict contending that:

1. a so-called loan receipt agreement between plaintiff and Feinberg, which provided that if plaintiff recovered from any other party Feinberg would be reimbursed for the $750,000 he paid under the receipt but which in no way released Feinberg from liability, should have been disclosed to the jury;

2. the trial court erred in not dismissing, until after the close of the evidence, a counterclaim by Feinberg against Ah and Sherman for total indemnity brought on the theory of active/passive negligence;

3. the trial court erred in refusing to allow Ah to introduce testimony from experts, whose names had not been given to the plaintiff prior to trial, to refute testimony of plaintiff’s expert as to when irreversible injury occurred;

4. the plaintiff’s questioning of Mrs. Hopp, the child’s mother, as to whether she had made prior inconsistent statements in a deposition was reversible error;

5. plaintiff’s rebuttal closing argument exceeded the bounds of proper advocacy.

Ali and Sherman do not contend that the verdict is against the weight of the evidence or unsupported by the evidence or that the damages are excessive.

We find no reversible error in the trial of Harris Trust v. Ali and Sherman and affirm that award.

Ali and Sherman had filed a counterclaim against Feinberg for indemnity and pro rata contribution. The trial court directed a verdict for Feinberg against Ali and Sherman at the close of the evidence on this counterclaim. We agree with the trial court that Ali and Sherman cannot recover under “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.). However we hold that the counterclaim did state a cause of action for pro rata indemnification and that the evidence, both that introduced into evidence and that of the excluded experts, was such that we cannot say “no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494,510,229 N.E.2d 504,513.) Furthermore, we hold that while as to plaintiff’s suit there was no reversible error in excluding the testimony of the three unlisted experts, it was error to exclude the testimony of two of them in support of the counterclaim. Accordingly, we reverse and remand for a new trial.

Despite the many witnesses at the trial, most of the facts leading up to the injury and lawsuit are uncontradicted.

John Hopp, Jr., was born on May 13,1972. He was a healthy baby at birth and developed normally during the next six months. He first became ill on November 19, 1972, the Sunday before Thanksgiving. He vomited and had an 102? temperature, for which his mother gave him liquid aspirin. Since the infant did not improve, Mrs. Hopp took him to Feinberg, their pediatrician, Tuesday afternoon, November 21, 1972. Feinberg examined the child, diagnosed bronchitis, and prescribed Polycillin to be taken orally four times a day. Mrs. Hopp followed instructions but the child did not get any better. In fact the next day his temperature rose to about 105°. He was staring — that is, he could not follow movements of people or things. He was like a wet dishrag. He had no control, no movement of his extremities. The parents tried to reach Feinberg three times by telephone — unsuccessfully. They left a message for him but he did not return their telephone calls. Finally, late in the afternoon on Wednesday, November 22, the parents took the child to the emergency room at Sherman Hospital. They arrived at 4:50 p.m.

Mrs. Hopp told the nurse that the child was running a high fever, was vomiting, was staring and was doing nothing. The nurse noted on the emergency room record that the child was staring and was nonreactive. She took the baby’s temperature rectally and recorded it at 105°. The infant was given one grain of aspirin and the nurse then brought towels and ice cold water to sponge the child down. The Hopps sponged the child for about an hour or more, after which the child’s temperature was down to 100-102°.

After the child’s temperature had fallen, he was examined by defendant Ali. Both the Hopps testified that he was in the room for about two minutes and examined the child for less than a minute. He only used a stethoscope. He did not X-ray the child or take any blood from him.

Ali claimed that he gave the child a complete physical examination and performed the basic neurological tests. The child, although tired, was reactive; he was able to move his head, arms and legs in a normal manner and his eyes were normal. However Ali admitted on cross-examination that when he examined the child, the child remained silent, did not clench his fists, and was quiet. He was “washed-out.”

Ali only found an upper respiratory infection and pharyngitis. He advised the Hopps to continue with the medication prescribed by Feinberg. He also claimed that he called Feinberg and advised him of his findings and diagnosis. Feinberg denied this and claimed that he did not know of the emergency room visit when he saw the child again on November 27,1972. His secretary testified that the Hopps told her of the visit but she did not recall seeing a copy of the emergency room record for November 22, although the usual practice is to deliver the physician’s copy of the record to the physician by putting it in his box at the hospital.

The Hopps left at 6:15 p.m. with their child; he was not hospitalized for observation. Before leaving, they were given a printed slip of paper stating that if the patient’s condition persisted or got worse, they should contact his physician or return to the emergency room.

The emergency room record as it read immediately before suit was filed solely indicated that the diagnosis was “U.R.I. pharyngitis.” The sole treatment listed was “aspirin grain 1,” “continue medication as prescribed by Dr. Feinberg yesterday” and “cold sponge.” Ah did not record the vital signs of the child, or put down that any physical or neurological exam of the child was conducted. After the complaint was filed, the emergency room record was again subpoenaed and copied. It had been altered by Dr. Ali to add a detailed examination of the infant which examination was negative. He also added “Dr. Feinberg notified” “to see Dr. Feinberg in the morning.” At trial Ali admitted altering the record but could not recall when he did it.

The day after the emergency room visit, Thanksgiving, the child was slightly improved. He was able to move his head and neck slightly but his extremities were still limp. Mr. Ho£p called Feinberg who told him to continue the Polycillin and bring the child in to his office on Monday, November 27.

Over the weekend, the child became worse. His temperature persisted, he became limp and listless; he began to emit a screech or hurt cry, and his eyes appeared to be crossed. When Mrs. Hopp saw Feinberg on Monday she advised him of all this. Although these are classic signs of meningeal infection, Feinberg again diagnosed bronchitis and changed the prescription from Polycillin to Declomycin, an antibiotic known to be ineffective against meningitis. Feinberg told the parents to take the child home and made no appointment for any follow-up observation.

On December 2,1972, as the child’s condition had still not improved, Mr. Hopp took him to Feinberg’s office and insisted he be admitted to the hospital for testing. Feinberg was reluctant to do so but finally agreed. A spinal tap was traumatic and showed blood in the spinal fluid. The child was immediately admitted to the hospital, placed in an oxygen tent and given intramuscular, not intravenous, shots of Polycillin. Although on December 2, 1972, the child was showing even more classic meningitis symptoms and other hospital tests on that date showed abnormal sugar, protein, and blood cell counts, all commonly associated with meningitis, it was not until December 4, 1972, that Feinberg made his first definitive diagnosis of spinal meningitis and changed the prescription to intravenous Polycillin. The disease thereafter ran its course, and the child was discharged from the hospital on December 31,1972. He had suffered serious injuries from the disease including extreme brain damage and quadriplegia. The child, because of his condition, has had to be placed in a home.

At trial, plaintiff produced expert witnesses who testified that Ali should have performed a spinal tap on the child, that the tap would have revealed spinal meningitis and that had proper medication been given on that day, the child would have recovered without adverse effect. Conversely, Ali produced an expert who testified that Ali exercised the proper degree of emergency room care. However that witness admitted that Ali should have done a lumbar puncture if he noticed that the child was limp and “washed-out” or if the child did not clench his fists, move his arms and was silent. That witness further agreed that if after sponging, the extremities were still limp and the child was only able to move his head and neck slightly, it could not be considered a significant improvement and the child should have been kept for further diagnostic tests. Finally, the witness agreed that the altered chart showed the examination which should have been made.

Plaintiff also produced expert medical testimony from Dr. Mendelsohn to the effect that Feinberg violated the accepted standards of medical care by:

1. failing to see the child and perform a spinal tap on November 23, 1972, after being advised that the fever still persisted and the child was not responding to medication;
2. ignoring the compelling signs of meningeal infection on November 27,1972, and failing to do a spinal tap on that date;
3. changing the medication on November 27, 1972, from Polycillin, a meningitis combatant, to Declomycin, a drug known to have no effect on meningitis bacteria, even though the child had numerous meningitis symptoms on that date. This change meant that from November 27 until December 2, five days, the child was receiving absolutely no medication for spinal meningitis;
4. failing to make a definitive diagnosis of spinal meningitis on December 2,1972, despite the many symptoms, and administering intramuscular shots instead of intravenous antibiotics although the latter are much more effective;
5. failing to change the prescription from Polycillin when it was likely that resistance to that antibiotic had developed in the child’s system.

Mendelsohn testified that if Feinberg had properly treated the child on November 24, 1972, the child would have had an overwhelming chance of complete recovery. By the 27th, he still would have had a good chance of recovery if properly treated but his chances were beginning to fade. He would have had an 80-90 percent chance of recovery without residual damage. By November 29, the child would have had only a 50-60 percent chance of complete recovery, especially since Feinberg had discontinued one of the antibiotics which constituted the best treatment. Mendelsohn further testified that irreversible brain damage had occurred by December 2, 1972, and that even if proper treatment had been instituted on that date, the course of the illness would not have been significantly changed. This conclusion was based on certain laboratory tests taken on that day which showed a major drop in the blood sugar. He believed that this drop occurred after the drug Declomycin was substituted for Polycillin.

Feinberg produced expert witnesses who testified that his conduct was reasonable.

I

Shortly before trial, plaintiff and Feinberg signed a written loan agreement, which stated:

“Loan Agreement Docket No: 76 L 11705

Harris Trust and Savings Bank, as guardian of the Estate of John B. Hopp, Jr., plaintiff, hereby acknowledges receipt from United States Fire Insurance Company, paid on behalf of Dr. Mel Feinberg, one of the defendants, of the sum of SEVEN HUNDRED FIFTY THOUSAND and No/100 DOLLARS ($750,000.00) as a loan, which said sum it promises to repay to the United States Fire Insurance Company, at the time of and in the event of recovery by it by means of judgment, compromise, settlement or in any other manner whatsoever, from any person, persons, corporation, corporations, or any other legal entities, causing or liable for loss or damage sustained by John B. Hopp, Jr., as a result of medical treatment administered to John B. Hopp, Jr., in 1972. This Agreement is in no way to be construed as evidence of wrongdoing or fault on the part of Dr. Mel Feinberg, and Dr. Feinberg makes no admission of fault.”

The loan receipt agreement was fully reveáled to the court, which over appellants’ objections permitted Feinberg to remain a party defendant in the case. It also denied appellants’ motion to declare the agreement void. Finally, it ruled that appellants could not disclose the existence of the agreement to the jury or use it to cross-examine Feinberg, the only witness who had knowledge of the agreement. (The child’s parents, not being his guardian for purposes of the lawsuit, did not have knowledge of the agreement.)

Appellants on appeal no longer contend that the loan receipt was invalid so that issue is not before this court. They contend, relying on Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 412 N.E.2d 959, Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859, Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 337 N.E. 23, cert, denied (1976), 425 U.S. 936, 48 L. Ed. 2d 178, 96 S. Ct. 1669, Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 303 N.E.2d 377, Schell v. Albrecht (1978), 65 Ill. App. 3d 989, 383 N.E.2d 15, and Hook v. Heim (1977), 54 Ill. App. 3d 368, 370 N.E.2d 157, that the trial court’s refusal to permit cross-examination on the loan agreement or to allow the agreement in evidence for any purpose was reversible error. The cited cases are not factually in point, since in all of them the loan receipt barred any additional recovery against the signing defendant or at least suit against that defendant was dismissed (except in Schell where the plaintiff could recover against the signing defendant if the other defendant was found not liable). However in the present case the loan receipt did not bar enforcement by plaintiff against Feinberg of any or all of the judgment and the claim against Feinberg was not dismissed. Nevertheless, certain general principles can be drawn from the cited cases:

1. a loan receipt agreement is tolerated if it is entered into before judgment because it encourages settlement but it is void if entered into after judgment since then its sole purpose is to enforce improper indemnification;

2. a loan receipt, even though entered into before trial, is void if not disclosed to the trial court, and a new trial will be granted;

3. a loan receipt can be used by the nonsigning defendant for the sole purpose of cross-examining any witnesses who know of the agreement as to bias.

However, it is clearly established in Casson v. Nash (1978), 74 Ill. 2d 164, 384 N.E.2d 365, and Kenny v. Lakewood Engineering & Manufacturing Co. (1979), 85 Ill. App. 3d 790, 407 N.E.2d 551, that such agreement may not be used for impeachment where the bias of the witness is already evident and that its admission under such circumstances would be reversible error. In Casson, the trial court allowed the defendant to question the plaintiffs as to the existence of a loan agreement. The Illinois Supreme Court held this to be reversible error, pointing out at 74 Ill. 2d 164, 169, 384 N.E.2d 367:

“The relevant principle that emerges from Reese is that when a witness whose interest in the outcome of the case is not apparent to the jury may be influenced by the existence of a loan-receipt agreement, the jury may properly consider the effect of the agreement on the credibility of that witness. The plaintiffs here certainly stood to gain by a recovery against Nash, but this is true in every case. A plaintiff always has an interest in his own recovery. Because the plaintiff’s interest is already apparent (see McCormick, Evidence sec. 274, at 665(2d ed. 1972)), there is no need for the jury to be informed about the loan-receipt agreement.”

In the present case the only witness who knew of the loan receipt was Feinberg — thus, he was the only witness whose bias could have been affected by its existence. Under Reese, normally the appellants would have been permitted “to establish that [the] witness knows of the existence of a loan agreement, and, if so, that the witness may be biased or prejudiced as a result thereof.” (Reese, 55 Ill. 2d 356, 364, 303 N.E.2d 377, 387.) Clearly Feinberg was prejudiced against appellants since he could only recover the $750,000 if a judgment was awarded against them. But the jury was already fully aware of this prejudice since both doctors had counterclaimed, each against the other. As the supreme court pointed out in Casson, the bias of the plaintiff against the defendant is apparent; as to his counterclaim, Feinberg was the plaintiff suing Ali and Sherman, the defendants. Accordingly, following Casson, it would have been reversible error for the trial court to have permitted the use of the loan receipt in evidence.

We would further note that appellants’ contentions in their brief that the case was a “sham” since Feinberg’s liability to plaintiff was not conditioned on the verdict in his own case but on that in the case against appellants; that plaintiff had a possible bias in favor of one defendant over another; and that Feinberg’s counterclaim was a sham since because of the loan receipt he would not need indemnity are all groundless. Since, as we have already stated, the loan receipt did not bar recovery against Feinberg, the plaintiff could recover any verdict awarded against him although of course the $750,000 already paid would act as a set off; for the same reason the counterclaim was no sham. Finally since plaintiff could enforce any judgment against any party it had no reason to favor one defendant over another.

II

Appellants’ second contention is that the trial court’s refusal to strike Feinberg’s counterclaim prior to trial was reversible error — the counterclaim was only dismissed after the close of the evidence. We need not determine if the counterclaim stated a cause of action since we find the appellants have not shown that they were prejudiced by the failure to strike the counterclaim and as this court has repeatedly stated, before a trial court can be reversed for an alleged error, prejudice must be shown. (Millette v. Radosta (1980), 84 Ill. App. 3d 5, 404 N.E.2d 823, appeal denied (1980), 81 Ill. 2d 593; Herman v. Hamblet (1980), 81 Ill. App. 3d 1050, 401 N.E.2d 973; Gale v. Hoekstra (1978), 59 Ill. App. 3d 400, 375 N.E.2d 456.) The appellants contend that the trial court’s refusal permitted the introduction of improper evidence in that after completion of plaintiff’s case Feinberg called Ali under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60), and examined him on the alteration of the hospital record, thus focusing attention on this issue. Appellants further contend that the refusal permitted Feinberg to attack Ali on every issue. We find these contentions to be without any merit.

The admission of evidence as to Ali’s altering of the record was not improper. It is textbook law that the fabrication of false documents is an admission by conduct in that the person fabricating the document gives grounds for believing that his case is weak. As stated in 2 Callaghan’s Illinois Evidence §3.152 (1964), “When evidence is shown to have been fabricated, a presumption arises that the cause of action or the defense it was intended to support is without substantial foundation.” Furthermore, the question by Feinberg on this issue was relevant to show the incredibility of Ali’s testimony. He “could not recall” when he altered the document but he could remember exactly what he did on a single routine day several years before, including informing Feinberg of his examination and diagnosis.

Moreover the evidence was not admitted solely because of Feinberg’s counterclaim. It was first mentioned by Ali’s counsel in opening argument. It was developed when he was called by plaintiff under section 60. Finally, the same examination was possible and proper under appellants’ counterclaim, and the same is true as to the complained-of attacks by Feinberg against Ali.

Ill

Appellants’ third contention is that the trial court erred in preventing Ali from introducing expert testimony to rebut plaintiff’s expert’s (Mendelsohn) surprise change in testimony as to when permanent injury first occurred.

Because defendants had failed to name their expert witnesses, despite repeated interrogatories, the trial court on plaintiff’s motion ordered defendants to identify all experts who would testify on their behalf on or before August 15,1979. On September 5,1979, Sherman and Ali identified Dr. Mennes as their expert. No attempt was made before trial began in January 1980 to designate additional expert witnesses.

After the end of the first week of trial, long before Mendelsohn testified, appellants indicated to the court they wished to produce an additional expert, Dr. Carruthers. No claim was made that Carruthers had just recently been discovered. The trial court ruled that Carruthers could not testify since she had not been listed in compliance with the court’s order.

After the plaintiff had rested its case, Ali again tried to call Carruthers. He also attempted to call two additional unlisted expert witnesses, Drs. Levine and Segal. He stated that Carruthers and Levine would rebut a surprise change in Mendelsohn’s testimony — however, the offer of proof, as the court noted, indicated that their testimony went far beyond the alleged area of change. Segal was offered merely to rebut the claim of one of plaintiff’s experts, Dr. Baker, that he had practiced at Little Company of Mary Hospital in 1971 and 1972. Since the appellants only complain of the trial court’s refusal to allow them to rebut Mendelsohn’s testimony, any error in the court’s exclusion of Segal is obviously waived. The trial court excluded all three witnesses since they had not been listed in compliance with the trial court’s order and it would be unfair to plaintiff to allow these witnesses after it had rested its case.

We agree wj,th the trial court that it had the right and duty to enforce its orders and prevent the calling of surprise witnesses to the prejudice of the plaintiff. (Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 422 N.E.2d 241; Carlson v. General Motors Corp. (1972), 9 Ill. App. 3d 606, 289 N.E.2d 439, appeal denied (1973), 53 Ill. 2d 605.) These were not witnesses whom Ali neither knew of nor could have known of before trial. Nor are we convinced that Mendelsohn’s alleged change in testimony warranted the ignoring of the trial court’s orders. In his deposition Mendelsohn testified that irreversible damage probably occurred around December 6, 1972, but might have occurred at the time of the child’s admission, December 2. He stated that it could not be determined if there was brain damage before December 6. He clearly stated he did not have any laboratory reports and had not used them in forming his conclusion. In fact the laboratory reports at that time were in the control of the defendants and as the trial court noted, he should have been asked if his opinion would have been different if he considered the laboratory reports. At trial Mendelsohn, relying on these same laboratory reports, testified that after November 27 the chances of complete recovery began to fade and that by December 2, the damage was irreversible and the course of the illness would not have been significantly changed had proper treatment been instituted at that time. Mendelsohn repeatedly stated that any change in his testimony was due to the fact that he had not had the laboratory reports at the time of his deposition. In light of the fact that Mendelsohn stated in his deposition that the damage could have become irreversible by December 2,1972, we find no significant change in his testimony. Furthermore, a party cannot refrain from asking questions or producing relevant documents within his control at a deposition and then use his own failure in order to claim surprise.

In any event, even if the exclusion of the witnesses had been error, the appellants still would not be entitled to a reversal of plaintiff’s judgment against them, since the testimony was not relevant to the issues in plaintiff’s case against appellants. Ali, and therefore Sherman, are liable for all damages caused to the child regardless of when the damage became irreversible. (Alberstett v. Country Mutual Insurance Co. (1979), 79 Ill. App. 3d 407, 398 N.E.2d 611.) Accordingly, the exclusion of the testimony could not have prejudiced appellants’ defense of that case.

IV

Appellants’ fourth complaint is that the trial court erred in permitting Mrs. Hopp to admit in direct examination that she had made an inconsistent statement at trial but that that statement was not true. Appellants contend that it was error to allow her to deny the truth of the statements before her cross-examination took place and that Supreme Court Rule 212, which controls the use of discovery depositions, does not permit such use.

Appellants overlook the fact that Supreme Court Rule 212 merely permits the use of depositions where they would otherwise be inadmissible. Plaintiff was not using the deposition. To the contrary, Mrs. Hopp was denying, not affirming, the truth of a statement made in the deposition.

Appellants are not contending that the statement in the deposition was inadmissible. Rather, appellants are complaining because plaintiff destroyed their trial tactics and prevented them from springing a surprise on Mrs. Hopp. A trial is still a search for the truth and not a game.

V

Finally appellants contend that certain remarks in plaintiff’s rebuttal argument, constituted improper argument. A reading of the whole record, however, discloses that the complained-of remarks were a proper comment on the evidence and a proper response to the defendants’ arguments. See Oh Boy Grocers v. South East Food & Liquor, Inc. (1979), 79 Ill. App. 3d 252, 398 N.E.2d 269; Lawson v. Belt Ry. Co. (1975), 34 Ill. App. 3d 7, 339 N.E.2d 381; Saputo v. Fatla (1975), 25 Ill. App. 3d 775, 324 N.E.2d 34, appeal denied (1975), 58 Ill. 2d 599.

VI

As previously stated, Ali and Sherman have also appealed from the trial court’s adverse ruling on their counterclaim against Feinberg. One count of the counterclaim sought pro rata recovery under “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.). Another sought common law pro rata indemnification for that portion of any judgment returned against Ali and Sherman attributable to Feinberg’s subsequent malpractice. The first claim was dismissed by the court prior to trial; a directed verdict was entered at the close of the evidence on the other claim.

We agree with the trial court that appellants cannot recover under the Act in relation to contribution among joint tortfeasors. That act is applicable only to causes of action arising on or after March 1,1978. Appellants contend that the cause of action referred to is the cause of action for indemnity and that it did not arise until the judgment was awarded and paid. However, the statute is clearly merely a legislative adoption of the mandate laid down by the Illinois Supreme Court in Skinner v. Reed-Prentice Division Package Machinery Co. (1978), 70 Ill. 2d 1, 17, 374 N.E.2d 437, 444, which provided that its ruling permitting contribution only applied to “causes of action arising out of occurrences on and after March 1, 1978.” The occurrence in this case was the improper diagnosis and treatment in 1972. Accord, Kenny v. Lakewood Engineering & Manufacturing Co. (1979), 85 Ill. App. 3d 790, 407 N.E.2d 551.

However we agree with the appellants that under Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40, and Alberstett v. Country Mutual Insurance Co. (1979), 79 Ill. App. 3d 407, 398 N.E.2d 611, appellants do have a cause of action for pro rata indemnification and that the evidence was sufficient to go to the jury.

In Gertz, a motorist, Campbell, struck Gertz with his automobile. When Gertz filed suit against Campbell, Campbell in turn filed suit against Snyder, the doctor who had treated Gertz for the injuries received in the accident, alleging that Gertz’s leg only had to be amputated because Snyder had delayed in performing needed surgery and that but for the neglect Gertz could have anticipated a normal recovery from a broken leg. Campbell in his third-party complaint claimed that he would be liable for the aggravation of Gertz’s injury caused by Snyder’s negligence and asked for judgment against Snyder for the amount of the damages caused by Snyder’s malpractice. The Illinois Supreme Court held that the third-party complaint stated a cause of action, explaining at 55 Ill. 2d 84, 91-92, 302 N.E.2d 44, 45:

“Campbell is to be liable for the aggravation of the injuries suffered by Gertz because of Dr. Snyder’s negligence simply because it is the policy of the law to hold him legally responsible for the additional damages which are said to have been foreseeable. He did not act in concert with Dr. Snyder. There is nothing to suggest that he had anything to do with the selection of the physician and certainly he had no control over Snyder’s conduct. There was nothing he could have done to have prevented the independent negligence of the physician. If Campbell, who is to be liable for the malpractice of Dr. Snyder, is precluded from seeking indemnity from Snyder, the result will be a really indefensible enrichment of Snyder at the expense of Campbell.”

In Alberstett, a child who had suffered a severe knee laceration was taken to a health center where the wound was cleaned and sutured by Dr. Canfield. A day later, his mother called Dr. Bazuin at the health center, who suggested she loosen the bandages and give the child some aspirin. The next day the child was taken to Rockford Memorial Hospital where he was treated by Drs. Webb and Stohl. Still later he was transferred to another hospital where he died. The parents sued Canfield and Bazuin. They settled but sued Rockford, Webb and Stohl for equitable contribution, alleging the third-party defendants were negligent in attempting to treat the child knowing they did not have the proper facilities for effective treatment. The appellate court held that the third-party complaint stated a cause of action, stating at 79 Ill. App. 3d 407, 411-12, 398 N.E.2d 614:

“The third-party defendants argue that Gertz is factually inapplicable, primarily because the third-party plaintiffs are not the original tortfeasors, as in Gertz, but are prior malpracticing doctors. But Gertz emphasized two things about the relationship between the tortfeasors in that case: (1) that the first tortfeasor be found liable at law for the negligence of the second party, and (2) that the first tortfeasor lacks effective control over the actions of the second party. These factors are fulfilled in this case as well.
It may be true, as appellees argue, that a doctor has the continuing duty to care for the patient. But that duty cannot be extended to make him liable for the negligence of doctors sought out for treatment by the plaintiffs independently. The Alberstetts took Scott to the hospital on their own initiative. They chose the hospital and the doctors that would care for the boy. Although it is probable that this was the best course of action, in so doing they ended the doctor-patient relationship with Doctors Bazuin and Canfield. Thus, Doctors Canfield and Bazuin no longer had the right to treat Scott Alberstett. Therefore, it is not fair to consider that they continue to owe a duty to care for him. More importantly for the Gertz analysis, Canfield and Bazuin cannot be said to have controlled the professional actions over the course of the treatment which the third-party defendants applied to Scott Alberstett.
On the other hand, Canfield and Bazuin have been charged for the damages caused by the negligence, if any, of the hospital and doctors (third-party defendants). As it is foreseeable that plaintiff will seek out medical aid to correct the injury done through the negligence of the original tortfeasor, so it is foreseeable that plaintiff will seek alternative medical aid to correct an injury aggravated by the negligent malpractice of the first doctors. Thus, because the law makes each» person liable for the foreseeable results of his negligence, it is logical that both the original tortfeasor and the negligent doctors are liable at law for the negligent acts of subsequent malpracticing doctors. * ° °
Thus we hold that where certain tortfeasors effect a good faith settlement with the plaintiff by means of a release intended to cover all injuries, these settling tortfeasors may maintain a third-party action to recover from subsequent allegedly malpracticing doctors the pro rata share of the damages caused by their acts.”

As in Gertz and Alberstett, the serious injuries which finally did occur might not have occurred had Feinberg not been guilty of malpractice. Nevertheless, for the reasons stated in Alberstett, Ali was liable for all the damages, not merely those caused by his own misconduct. Likewise, as in Gertz and Alberstett, Ali had no control over Feinberg’s actions, nor could he treat Feinberg’s patient.

Feinberg contends that he and Ali were joint tortfeasors because the injury was indivisible and that the witnesses testified that they could not fix the time when the disease began or irreversible damage occurred. However there was ample evidence from which the jury could have concluded that no irreversible damage would have occurred had Dr. Feinberg properly treated the child on November 24, 27 or even December 2. Mendelsohn, plaintiff’s expert witness, testified that had the child been properly treated on November 24 the child would have had an overwhelming chance of complete recovery and that by November 27 he still had a good chance of recovery. After that, his chances were much less because of Feinberg’s discontinuance of Polycillin which both he and Ali had prescribed and his prescription of an absolutely useless medication. Dr. Gotoff, one of Feinberg’s expert witnesses, testified that the child suffered irreversible brain damage after December 4, 1972. Dr. Kieff, Feinberg’s other expert witness, indicated that the brain damage became irreversible after December 6. Feinberg himself admitted that he did not believe there had been “brain involvement” on November 27; this meant of course that there was no brain damage on that date. He further testified that while there may have been some brain damage on December 2, it would not have been irreversible.

From the evidence, the jury could have concluded that while Ali’s treatment did not meet the proper standard, any injuries resulting from that negligence would have been minimal had Feinberg, who reassumed the role of the child’s physician after November 22, not so grievously erred in diagnosing and treating the child. It could easily have concluded that all of the permanent injuries were due to Feinberg’s continuing errors and not to Ali’s single mis judgment. To saddle Ali with full responsibility toward the plaintiff for the damages reasonably satisfies the aim of tort law to provide full compensation to the victim. (Alberstett v. Country Mutual Insurance Co. (1979), 79 Ill. App. 3d 407, 398 N.E.2d 611.) But to saddle Ali with the full responsibility and allow Feinberg to escape scotfree despite the possible jury findings we have noted would be an indefensible enrichment of Feinberg at the expense of Ali. (Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40.) The right of indemnity arises out of the principle that everyone is responsible for the consequences of his own wrongs, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer, they may recover from him. Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40.

This court ruled earlier in this opinion that the trial court’s refusal to allow appellants’ unlisted expert witnesses to testify was not prejudicial error as far as the claim by plaintiff was concerned. However, it was error to refuse to allow Levine’s and Carruther’s testimony in support of the counterclaim. The order limiting witnesses was entered on behalf of the plaintiff, not on behalf of Feinberg. Indeed the counterclaim had not even been filed at the time that order was entered. The testimony of Levine and Carruthers would have related to when irreversible damage occurred, and thus was material. It should be permitted at the new trial.

For the foregoing reasons, the judgment for plaintiff against all of the defendants is affirmed. The judgment against Ali and Sherman on their counterclaim is reversed and the claim is remanded for a new trial.

Judgment for plaintiff against all defendants affirmed; judgment on counterclaim reversed and remanded for new trial.

JOHNSON and LINN, JJ., concur.


author: Mr. JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS BRYANT, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1112
    Opinion filed September 1,1981.

      Ralph Ruebner and Eva Field, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, George M. Velcich, and Gino P. Naughton, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Following a jury trial, defendant Dennis Bryant was convicted on two counts of armed robbery. Defendant appeals, contending that identification testimony should have been suppressed, that the trial court erred in allowing a witness to be called as a court’s witness and in permitting the impeachment of that witness, that he was not proved guilty beyond a reasonable doubt, that the prosecutor made improper and prejudicial remarks in his closing argument, and that the trial court erred in entering judgment on two convictions when both counts arose from a single act.

At about 6:30 a.m. on December 31, 1978, a 7-Eleven food store on Howard Street in Evanston was robbed. The only witnesses to the robbery were Harold and Norma Lederer. Harold was the night manager of the 7-Eleven. His wife Norma had come to the store to pick up Harold at the end of his shift. A black male entered the store and announced a stickup. Brandishing a pistol, he forced Harold to open the cash register and the store’s safe. The robber pocketed loose change and small bills from the register and several packages of bills from the safe that had been counted and wrapped in register tape.

The store was brightly lit, and the Lederers had several minutes to observe the robber. The man’s face was masked by a white cloth, apparently torn from a bedsheet, that came over the bridge of his nose and was tied behind his head. He wore a blue knit cap with an orange tassel; the cap was pulled low on his forehead, about half an inch above his eyebrows. The robber wore a blue denim jacket and light blue pants. At trial, Norma Lederer testified that she was able to discern some of the robber’s facial features as the robber moved and the mask conformed to his face. Norma observed that the robber had high cheekbones and a prominent jaw line.

Prior to leaving the store the robber ordered the Lederers to lie on the floor. Harold complied but Norma ignored the order. The gunman slapped Norma’s face and then left the store. Harold immediately called the police but was too nervous to describe the offender. Norma took the phone and gave police a description of the robber.

Evanston police immediately responded to the call. Officer Douglas Glanz, proceeding in the direction of the 7-Eleven, aimed his squad car’s spotlight at the drivers of oncoming cars. In one oncoming car, a white and aqua Cadillac, Glanz observed a black male wearing a blue knit cap with an orange tassel. Glanz immediately activated the car’s Mars lights and turned to follow the Cadillac. A chase ensued. After several blocks, the Cadillac entered an alley that was blocked by an abandoned auto. The driver of the Cadillac then fled on foot. Glanz pursued on foot, noting that there were no other occupants of the Cadillac.

In the course of the chase, the suspect vaulted a chain link fence. Glanz climbed the same fence, sustaining a puncture wound on his left palm. Glanz fell behind in the chase but was able to follow the suspect’s footprints, as the ground was covered with 3 inches of fresh snow. The pursuit on foot covered several blocks. Glanz followed the footprints to the basement entrance to a dwelling. By this time, another police officer had caught up with Glanz. The door to the basement apartment was standing open, and the two officers entered the basement. After ascertaining that the back door to the basement was locked, the officers concluded that the suspect was still in the basement. The officers then looked in the bedrooms of the basement apartment. In one room, they found a black male talking on the phone. They took this individual, later identified as Early Patterson, to a squad car outside. At trial, Glanz testified that Patterson said, “It’s not me yoxi want. It’s my nephew. He is still hiding behind the refrigerator.” Other officers then found the defendant, Dennis Bryant, crouching next to a refrigerator. After a brief struggle, defendant was placed under arrest. The arresting officers observed that defendant wore a blue denim jacket and blue pants, and that his shoes and pants cuffs were wet. The officers also found packages of dollar bills wrapped in register tape in defendant’s pockets. At the police station, Glanz noted that defendant had a puncture wound on his hand similar to the wound on Glanz’s left palm. Glanz also noticed a tear in defendant’s pants.

In the abandoned Cadillac, police found a blue knit cap with an orange tassel, a .32-caliber automatic pistol, two pieces of white cloth torn from a bedsheet, and an amount of rolled coins and loose change. The Cadillac was registered to defendant and his mother.

At trial, Norma Lederer testified that, on the afternoon of December 31, she was called to the Evanston police station to view “some objects.” Police displayed a gun, a white cloth, and a blue knit cap to Mrs. Lederer. She identified these objects as the ones used by the robber. The police also showed Mrs. Lederer an array of photographs. Five of the photos were police “mug shots,” incorporating frontal and side views of the subjects and containing identification numbers. One picture was a frontal picture taken by a Polaroid camera. This was defendant’s picture, and this was the picture selected by Norma Lederer. At trial, the six photos were introduced in evidence, and Mrs. Lederer was allowed to testify to the identification made at the police station. Over defendant’s objection, Mrs. Lederer was also allowed to identify defendant in court. Harold Lederer also identified defendant at trial, but the strength of this identification was diminished by Harold’s imperfect recollection of the robber’s appearance and by the fact that Harold had been afforded a clear view of defendant at the preliminary hearing. Harold did not identify defendant’s picture from the photo spread. Harold was able to identify the packages of bills wrapped in register tape that were taken from defendant at the time of his arrest.

After eliciting testimony from the Lederers and Officer Glanz, the State sought to call Early Patterson. The State advised the trial court that Patterson had given evasive answers in prior discussions with the prosecutors and the State requested the trial court to call Patterson as a court’s witness. The trial court declined to call Patterson as a court’s witness, but found that Supreme Court Rule 433 (Ill. Rev. Stat. 1979, ch. 110A, par. 433) applied and the court allowed the State to call Patterson as a hostile witness. On direct examination, Patterson described his encounter with the police on the morning of December 31. The prosecutor asked Patterson if, prior to the arrival of the police, defendant had admitted that he had committed a robbery. Patterson denied hearing such an admission. The State then proceeded to impeach Patterson with a statement Patterson had given to a police detective.

“Q: Was this question asked of you, Mr. Patterson, by Detective Haytow, and did you give these answers: ‘Q Mr. Patterson, will you tell me what you know of this armed robbery? A Dennis Bryant came down in the basement. I went down behind him. I asked him what was wrong. He said the police had just taken his car. He said he just robbed a 7-Eleven, I think that’s what it was.’ Now, was that the question asked of you by Detective Haytow, and did you give that answer?
A: I don’t even know if the question was asked, but I know definitely for sure I think, like I told you, I was under the influence of alcohol at the time. I don’t know what was going on. # # #
THE COURT: Okay. Just answer the question, sir.
THE WITNESS: I don’t know.”

Later the State completed the impeachment by offering the testimony of Detective Haytow, who stated that Patterson had given an oral statement, and that Haytow had typed the statement and Patterson had signed it. Haytow acknowledged that the question and answer cited above were included in Patterson’s statement. On cross-examination by defendant, Patterson testified that he had been up all night drinking and that he is unable to read. Patterson stated that he signed the statement, not knowing what it said, because he “wanted to get out of there.”

The State has confessed error regarding one of the issues on appeal. Defendant argues, and the State now agrees, that he was improperly convicted of two counts of armed robbery, in that he was separately convicted of the armed robbery of Harold Lederer and the armed robbery of Norma Lederer. The robbery involved only the contents of the 7-Eleven’s cash register and safe and no property was taken from Norma Lederer. These facts do not support two separate convictions for armed robbery. See People v. Chaka (1977), 55 Ill. App. 3d 470, 473-74, 371 N.E.2d 74; People v. Hunter (1976), 42 Ill. App. 3d 947, 951, 356 N.E.2d 822.

Defendant also contends that the trial court erred in refusing to suppress Norma Lederer’s in-court identification of defendant. Defendant argues that the pre-trial photo array was impermissibly suggestive and that the subsequent in-court identification was thereby tainted. Defendant cites Simmons v. United States (1968), 390 U.S. 377 19 L. Ed. 2d 1247, 88 S. Ct. 967, where the Supreme Court noted that the danger of misidentification is increased if the photograph of any one individual is in some way emphasized. (Simmons, 390 U.S. 377, 383, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967, 971.) The court further stated that, “[T]he witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.” Simmons, 390 U.S. 377, 383-84,19 L. Ed. 2d 1247,1253, 88 S. Ct. 967, 971.

In People v. Beyah, (1979), 72 Ill. App. 3d 690, 391 N.E.2d 96, the court considered a photo array similar to that in the case at bar. In Beyah, a witness was presented with 11 mug shots and one Polaroid picture of the defendant. The court in Beyah found that the procedure tended to emphasize the defendant’s picture in a suggestive manner. (Beyah, at 695.) The court went on to say that where there has been an improper pretrial identification procedure, the State must prove by clear and convincing evidence that the witness’ in-court identification of the defendant was uninfluenced by the suggestive pretrial procedure. (Beyah, at 696; see also People v. Calhoun (1973), 11 Ill. App. 3d 600, 603-04, 297 N.E.2d 304.) A paramount consideration in this matter is the witness’ opportunity to view the suspect at the time of the offense. Beyah, at 696.

In the instant case, the robber’s face was continually masked. When Norma Lederer viewed the photo array, on the same day as the robbery, she was already aware that the police had made an arrest, since she had seen the hat, the gun, and some of the proceeds of the robbery. Mrs. Lederer could have deduced that the Polaroid picture was that of the arrestee, since an “instant picture” connotes a quality of recency absent in “mug shots.” Norma Lederer testified that she made her selection based on her observations of the robber, but this claim is not convincing. The test of an unnecessarily suggestive identification procedure depends on the facts and circumstances of each case. (Simmons, 390 U.S. 377, 383, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967, 971; People v. Lee (1969), 44 Ill. 2d 161, 169, 254 N.E.2d 469.) Exigent circumstances sometimes render a suggestive procedure imperative (see Lee, at 169), but the instant case reveals no circumstances that prevented a nonsuggestive procedure. The defendant was in custody and could have been made available for a lineup. (Cf. People v. Holiday (1970), 47 Ill. 2d 300, 307, 265 N.E.2d 634 (photographic identification should not be employed when lineup is feasible).) We find that the photo array was impermissibly and unnecessarily suggestive and that the State has not supplied clear and convincing evidence that the in-court identification was based on Norma Lederer’s observations at the time of the robbery, rather than her viewing of defendant’s photograph. It follows that the trial court erred in admitting testimony regarding the pretrial identification and in allowing the in-court identification.

Defendant’s next contention on appeal is that the trial court erred in allowing the State to call Early Patterson as a hostile witness and permitting the State to impeach Patterson with proof of his prior statement to police. The State asked to call Patterson as a court’s witness; the trial court found that Patterson was more properly called under Supreme Court Rule 433. Our review of the action taken below necessitates an examination of both theories.

Supreme Court Rule 433 states only that, “The examination of hostile witnesses in criminal cases is governed by Rule 238.” (Ill. Rev. Stat. 1979, ch. 110A, par. 433.) Supreme Court Rule 238 states:

“If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination. The party calling an occurrence witness, upon the showing that he called the witness in good faith and is surprised by his testimony, may impeach the witness by proof of prior inconsistent statements.” (Ill. Rev. Stat. 1979, ch. 110A, par. 238.)

The first question is whether Early Patterson displayed the requisite hostility. The fact that a witness may be unsympathetic to the calling party’s case is, of itself, insufficient to show hostility as required by Rule 238. (See Yamada v. Hilton Hotel Corp. (1977), 60 Ill. App. 3d 101, 109, 376 N.E.2d 227.) In order to preserve the trial court’s discretion to determine hostility under Rule 238, the Rule should only be applied to witnesses who have already taken the stand and shown themselves hostile or uncooperative or unwilling. (See Quagliano v. Johnson (1968), 100 Ill. App. 2d 444, 450, 241 N.E.2d 187.) Assuming, however, that Patterson could have been found hostile for purposes of Rule 238 even prior to taking the stand, the Rule does not allow impeachment by prior inconsistent statement unless the hostile witness is an occurrence witness and the party calling him is surprised by his testimony. (See Ill. Rev. Stat. 1979, ch. 110A, par. 238; see also Hall v. Baum Corp. (1973), 12 Ill. App. 3d 755, 760, 299 N.E.2d 156.) In the case at bar, the prosecutor explicitly disavowed the element of surprise. Furthermore, Patterson was not an occurrence witness. (See Yamada, at 108.) We conclude that Supreme Court Rules 433 and 238 did not authorize Patterson’s impeachment by prior inconsistent statement. See generally E. Cleary and M. Graham, Handbook of Illinois Evidence §607.4, at 267-68 (3d ed. 1979) (giving reasons why hostile witnesses are only subject to certain methods of impeachment).

The State argues that Patterson should have been examined as a court’s witness. The court’s witness doctrine developed in response to situations where a witness’ testimony was crucial but neither the State nor the defense would vouch for the witness’ credibility. (See People v. Moriarity (1966), 33 Ill. 2d 606, 615, 213 N.E.2d 516.) In order to prevent a miscarriage of justice (i.e., the loss of testimony vital to the factfinder’s search for truth), the court is permitted to call the witness and both parties can cross-examine. (See Moriarity, at 615; People v. McKee (1968), 39 Ill. 2d 265, 270, 235 N.E.2d 625.) The authorities are in agreement that the court’s witness doctrine is to be employed sparingly, and only to prevent a miscarriage of justice. (See, e.g., McKee, at 270; Moriarity, at 615; People v. Pastorino (1980), 90 Ill. App. 3d 921, 926, 414 N.E.2d 54, appeal allowed (1981), 84 Ill. 2d 21.) It is further required that the witness’ testimony relate to the direct issue to be tried. (Moriarity, at 615.) Older cases required that the court’s witness be an eyewitness to the crime charged, but this rule has been relaxed in more recent cases. See Moriarity, at 615.

We are unable to see how the instant case meets the requirements set forth in Moriarity. At the threshold is the voucher issue: the State is unable to vouch for a witness’ testimony only when the testimony is unknown. (See Pastorino, at 927.) If the State knows what a witness will relate, the State must either refrain from calling the witness or limit questions to the evidence the State desires to elicit. (Pastorino, at 927.) Assuming, however, that the State could fairly claim that Patterson’s testimony was unexpected, the State is still unable to show that Patterson’s testimony related to direct issues. The direct issue on trial was defendant’s guilt or innocence of armed robbery, not whether a witness once said defendant was guilty of robbery. (See People v. Grigsby (1934), 357 Ill. 141, 148, 191 N.E. 264.) Giving the State the benefit of every doubt, then, we may assume that Patterson’s testimony was unanticipated, that the State believed his testimony might bear directly on the issue of defendant’s guilt, and that the loss of this testimony would be a miscarriage of justice. In this event, the issue is whether the State, having properly called a court’s witness, can impeach the witness by means of a prior inconsistent statement when the witness’ testimony fails to meet the State’s expectations. A review of the authorities indicates that this question must be answered in the negative.

It is well settled that prior statements of a witness are hearsay, inadmissible as substantive evidence. (See People v. Spicer (1979), 79 Ill. 2d 173, 179-80, 402 N.E.2d 169, cert, denied (1980), 446 U.S. 940, 64 L. Ed. 2d 794, 100 S. Ct. 2162; see also People v. Gant (1974), 58 Ill. 2d 178, 183, 317 N.E.2d 564; People v. Collins (1971), 49 Ill. 2d 179, 194, 274 N.E.2d 77; People v. Paradise (1964), 30 Ill. 2d 381, 384, 196 N.E.2d 689.) The rationale for this rule was stated in People v. Collins:

“To give these statements substantive value would allow an accused to be convicted on extra-judicial statements of witnesses — a practice that runs counter to the notions of fairness on which our legal system is founded.” (49 Ill. 2d 179,194.)

Prior inconsistent statements of a witness are admissible only for impeachment purposes (see Paradise, at 384), and are so admissible only when the testimony to be impeached affirmatively damages the calling party’s case. (See Pastorino, at 928; People v. Triplett (1980), 87 Ill. App. 3d 763, 767, 409 N.E.2d 401; People v. Lipscomb (1974), 19 Ill. App. 3d 114, 122, 311 N.E.2d 257; E. Cleary & M. Graham, Handbook of Illinois Evidence §607.4, at 270-71 (3d ed. 1979); McCormick, Evidence §36, at 71-72 (2d ed. 1972).) It is not enough that the witness’ testimony disappoints the calling party; the testimony to be impeached must aid the opposing party. (Pastorino, at 928.) A noted commentator has explained the rationale for this rule:

“[Ilf a party interrogates a witness about a fact which would be favorable to the examiner if true, and receives a reply which is merely negative in its effect on examiner’s case, the examiner may not by extrinsic evidence prove that the first witness had earlier stated that the fact was true as desired by the inquirer. An affirmative answer would have been material and subject to be impeached by an inconsistent statement, but a negative answer is not damaging to the examiner, but merely disappointing, and may not be thus impeached. In this situation the policy involved is not the saving of time and confusion, as before, but the protection of the other party against the hearsay use by the jury of the previous statement.” (McCormick, Evidence §36, at 71-72 (2d ed. 1972).)

As noted above, our supreme court has recently reaffirmed this State’s adherence to the rule that extrajudicial statements of witnesses are hearsay. See Spicer, at 180; see also Grigsby, at 149 (outlining the dangers of trying a defendant by means of extrajudicial statements).

The State argues that the hearsay nature of Patterson’s pretrial statement is irrelevant insofar as the statement was offered as impeachment and not for the truth of the matter asserted. However, the purpose of impeachment is to destroy credibility (McKee, at 270), and if Patterson has already been shown to be a witness for whom the State cannot vouch (the threshold requirement for a court’s witness), the need for further attacks on his credibility is questionable. As our supreme court stated in People v. Grigsby:

“If the witness admitted making the previous statement, it would prove nothing except that he, an admittedly unreliable witness, had said so. If the witness denied making the statement the matter would necessarily end there, because to pursue it further would be trying a collateral issue rather than a fact material under the indictment.” 357 Ill. 141, 149.

The quoted passage from Grigsby demonstrates another reason for disallowing the impeachment of Patterson. As soon as Patterson denied that defendant had made an admission, it became clear that Patterson could offer no evidence on the direct issue in controversy, i.e., defendant’s guilt or innocence. (See Grigsby, at 148.) What Patterson may have said at the police station is a collateral matter, so Patterson’s denial that he made the statement was conclusive and the State should not have been allowed to prove this collateral matter by extrinsic evidence of the statement. (See People v. Johnson (1929), 333 Ill. 469, 474-75, 165 N.E. 265.) At trial, Patterson said nothing tending to incriminate defendant. By impeaching Patterson, the State could show only that Patterson’s neutral testimony was incredible. To permit the jury to infer guilt from the unreliability of inconclusive testimony is to convict a defendant by innuendo rather than direct evidence.

The courts of this State have uniformly condemned the practice of bringing unsworn testimony before the jury under the guise of impeachment. (See, e.g., Johnson, at 475; Pastorino, at 927; People v. Robinson (1977), 46 Ill. App. 3d 713, 718, 361 N.E.2d 138; People v. Chitwood (1976), 36 Ill. App. 3d 1017, 1024, 344 N.E.2d 611; People v. Dandridge (1970), 120 Ill. App. 2d 209, 213, 256 N.E.2d 676.) The record in the instant case suggests that this was indeed the State’s intent. In presenting his motion to have Patterson called as a court’s witness, the prosecutor said:

“Judge, I have a written statement that he signed which contains what took place. I would ask in the interest of justice, Judge, that I not have to call him and vouch for his credibility. That I call him as a court’s witness and be allowed to call his attention to that statement. And, if necessary, to impeach him.”

A recent opinion in this court has held that when the State puts on a witness, knowing his testimony will differ from a prior statement, the State’s impeachment is in fact an offer of substantive evidence under the guise of impeachment. (Pastorino, at 927.) In light of the foregoing, we conclude that the impeachment of Patterson with his prior inconsistent statement was error.

The State relies on People v. Larson (1980), 82 Ill. App. 3d 129, 402 N.E.2d 723, arguing that it is “strikingly similar” to the case at bar. In Larson, the daughter of one of the defendants was called as a witness. Before a grand jury, the daughter had testified that she had helped the defendants gain admittance to the museum that was robbed. The State was allowed to call her as a court’s witness, whereupon she denied that she had ever been to the museum, although she admitted that she had made such a statement to the grand jury. The Larson case is distinguishable from the present case because the State had reason to believe that the witness was an eyewitness to a portion of the crime. She therefore could have testified regarding a direct issue in the case. The appellate court in Larson held that the daughter was properly called as a court’s witness. (82 Ill. App. 3d 129, 139.) The Larson court, however, did not address the propriety of the State’s impeachment of the court’s witness. Following the cases set out above, the daughter’s prior statement to the grand jury was hearsay and should not have been used to impeach her when the State was disappointed by her testimony that she had never been to the museum. As the court in Larson failed to consider the impeachment issue, we decline to follow the result in that case.

The next issue is whether the admission of Patterson’s hearsay prior statement can be considered harmless error. Defendant contends that he was not proved guilty beyond a reasonable doubt, and that no error can be deemed harmless. A review of the evidence reveals that the admissible evidence of guilt was substantial: defendant was arrested in clothing resembling that of the robber, and in possession of proceeds identified as those taken in the robbery. A trail of footprints linked the occupants of the basement apartment to the robber’s car, which contained items used in the crime, and which car was registered to defendant. We have no hesitation in holding that this evidence is sufficient to support a conviction. On the other hand, there is a reasonable possibility that the erroneously admitted evidence (the pretrial and in-court identifications of defendant and Patterson’s hearsay prior statement) contributed to the conviction. (See Robinson, at 718; see also Chapman v. California (1967), 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 827; Fahy v. Connecticut (1963), 375 U.S. 85, 86-87,11 L. Ed. 2d 171, 172-74, 84 S. Ct. 229, 230-31.) We also note that the errors were compounded when the prosecutor referred in closing argument to the inadmissible evidence. In particular, the State’s rebuttal argument made repeated references to Patterson’s statement, without reference to the fact that the statement was ostensibly offered for the limited purpose of impeachment. In light of all the circumstances, we hold that the errors were not harmless.

Accordingly, defendant’s convictions are reversed and the cause is remanded for a new trial.

Reversed and remanded.

HARTMAN, P. J., and DOWNING, J., concur.