author: JUSTICE LINN

text:
    DONALD J. TOMASO et al., Plaintiff-Appellee and Cross-Appellant, v. PLUM GROVE BANK, Defendant-Appellant and Cross-Appellee.
    First District (4th Division)
    No. 83—2752
    Opinion filed January 10, 1985.

      Holmstrom & Green, P.C., of Woodstock (James A. Campion, of counsel), for appellant.
    Michael J. Smith and J. Scott Troeger, both of Tenney & Bentley, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Donald Tomaso, brought suit in the circuit court of Cook County claiming that the defendant Plum Grove Bank (the bank) wrongfully withheld two cashier’s checks, one in the amount of $130,000 and the other in the amount of $50,000, belonging to plaintiff. Following a bench trial, the court awarded plaintiff judgment in the amount of $180,000 but denied his claim for prejudgment interest. This appeal and cross-appeal followed.

On appeal, the bank maintains (1) that the entry of judgment by the trial court is against the manifest weight of the evidence; (2) that the trial court was without jurisdiction to decide this dispute because certain necessary and indispensable parties were not included as parties defendant; and (3) that the trial court erred in refusing to admit evidence of setoffs against plaintiff's claims. On cross-appeal, plaintiff claims that the trial court erred in denying prejudgment interest on the judgment award.

We affirm in part, reverse in part and remand.

Background

The circumstances which led to this litigation concerned the purchase by plaintiff of a 50% interest in a Colorado gold mine known as L. & M. Oro II. Plaintiff testified that he learned of the possibility of purchasing the gold mine interest in October of 1978 through his friend, Sheldon Moss. There were several telephone calls and meetings that month between plaintiff, Moss, and plaintiff’s brother, David Tomaso, who was president of the Plum Grove Bank at that time. Plaintiff told David about the gold mine deal and stated that five letters of credit totalling $355,000 would be needed to effectuate the purchase. Plaintiff also told David that for bringing the deal to him and for acting as his agent, Moss would receive 10% of whatever interest plaintiff acquired in the venture. David told plaintiff that the bank could issue the necessary letters of credit, but that the bank would require collateral.

Early in November of 1978, plaintiff wire-transferred $355,000 from an account at the American National Bank to the account of Northeast Illinois Financial Corporation (NIFC) at the Plum Grove Bank to use as collateral in connection with the bank’s issuance of the letters of credit. NIFC was a corporation owned by plaintiff, and plaintiff was a signatory on the NIFC account at the bank. Moss had no interest in the NIFC account.

After being informed of the wire transfer, David told plaintiff that written authorization was needed for the bank to withdraw the money from the NIFC account to use as collateral for the letters of credit. David prepared the written authorization, and plaintiff signed it on November 3, 1978. The authorization stated that the $355,000 was to be issued to Moss in five cashier’s checks and these checks were to be used as collateral for each letter of credit that was issued. The five cashier’s checks were issued with Moss as payee, showing NIFC as the remitter. Moss endorsed the five checks in blank and signed the applications for each letter of credit.

The applications for the letters of credit were obtained by David from the Mount Prospect State Bank, Plum Grove Bank’s correspondent. David later testified that he followed his corresponding bank’s instructions in filling out the applications and in issuing the letters of credit. Among the terms on the blank application forms was a provision which pledged all the property of the applicant held by the bank, both as security for the letters of credit and for any other liabilities of the applicant to the bank. At the time the letters of credit were issued, Moss had outstanding certain loan accounts at the bank.

Five letters of credit were issued for various amounts to four individuals and to L. & M. Oro II, Inc. The letters of credit showed Moss as the account party. Each letter of credit had an expiration date of March 15, 1979. Nowhere on the letters of credit, the letter of credit applications, or on the cashier’s checks did plaintiff’s name appear. However, both plaintiff and David testified that David was aware from the beginning that Moss was acting as plaintiff’s agent, that the cashier’s checks were to be used for the sole purpose of securing the letters of credit, and that the cashier’s checks belonged to plaintiff and were to be returned to him if the letters of credit were not presented to the bank before their expiration date.

David also testified that he had told others at the bank about the nature of the transaction. He could not, however, recall whom he told or when he told them. David also recalled mentioning, in written reports to the bank’s directors, the fact of plaintiff’s involvement in the transaction. At trial, these reports were not offered as evidence by either plaintiff or the bank. David was certain that he told Richard Erler, an officer of the bank, about plaintiff’s interest and financial involvement in the transaction. Erler, however, testified that he was aware only of the fact that the bank was holding $355,000 in cashier’s checks made out to Sheldon Moss.

Sometime early in 1979, the gold mine deal began to fall apart. Plaintiff asserted that, after learning of the gold mine deal from Moss, he negotiated the purchase arrangements with Larry Moore, a principal in the corporation which owned the gold mine. In return for the $355,000, Moore was to transfer to plaintiff stock certificates in the gold mine corporation. However, in January of 1979, plaintiff had not received the stock. In an effort to halt the transaction, plaintiff contacted David at the bank and asked him to stop payment on the letters of credit. David told plaintiff that the letters of credit were irrevocable and if properly presented, the bank would have to pay out. David further told plaintiff that if the letters were not presented by their expiration date, the bank would need something in writing from plaintiff in order to return the cashier’s checks to him.

Shortly thereafter, David left his employment at the bank for unexplained reasons. Plaintiff contacted his attorney, Richard Cochran, to protect his interests at the bank after his brother’s departure. Cochran testified that he contacted Milton Perlman, the acting president of the bank, concerning plaintiffs predicament. Perlman told Cochran that the bank had nothing on file indicating that plaintiff had any interest in the cashier’s checks securing the letters of credit. Perlman requested that Cochran send the bank an assignment of all of Moss’ interest in the cashier’s checks so that the bank would have a clear record of plaintiff’s ownership. After Cochran explained to Moss why the assignment was necessary, Moss assigned all his interest in the cashier’s checks to plaintiff. The written assignment was then sent to Perlman.

Three of the five letters of credit were properly presented to the bank and were paid. A fourth letter of credit was never presented. However, the $50,000 cashier’s check securing that particular letter of credit was not returned to plaintiff; rather, the bank cashed it to apply against Moss’ other obligations at the bank.

The fifth letter of credit was presented to the bank, but was denied payment because the bank claimed the tender was improper in form, not having the required documentation. The $130,000 cashier’s check securing the fifth letter of credit was cashed by the bank sometime in early 1981 and was applied to Moss’ other obligations to the bank.

The evidence presented at trial also showed that two other lawsuits resulted from the transaction here at issue. Plaintiff brought suit in Colorado against Larry Moore and L. & M. Oro II, Inc., based on the failed transaction. This litigation was eventually settled. Additionally, the holder of the letter of credit on which the bank had denied payment instituted litigation against the bank in Colorado to enforce payment of the letter of credit. This suit was later dismissed by the Colorado courts based on lack of jurisdiction over the bank. There was also evidence that Sheldon Moss independently invested in the gold mine transaction.

Plaintiff’s action against the bank, filed in the circuit court of Cook County, sought the return of the two cashier’s checks which had been applied to Moss’ other personal obligations to the bank. As noted, following a bench trial, the trial court awarded plaintiff $180,000, representing the issue amount of the two cashier’s checks, and denied plaintiff’s claim for prejudgment interest. This appeal and cross-appeal followed.

Opinion

I

The bank’s initial argument concerns the sufficiency of the evidence underlying the trial court’s judgment.

A

The bank first contests the trial court’s findings that Moss was acting as plaintiff’s agent in the gold mine transaction, that the bank had knowledge of this agency relationship through David Tomaso, its then president, and that plaintiff was entitled to the return of the cashier’s checks securing the two expired letters of credit. The bank argues that these findings were contrary to the manifest weight of the evidence adduced at trial.

It is well established that because of the trial court’s superior position to assess the credibility of the witnesses and to weigh the evidence, its findings will be disturbed only if clearly contrary to the manifest weight of the evidence, and not merely because a reviewing court might reach a different conclusion. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624; Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 454 N.E.2d 723.) Furthermore, the findings and judgment of the trial court may not be overturned if there is any evidence in the record to support them. Jaffe Commercial Finance Co. v. Harris (1983), 119 Ill. App. 3d 136, 142, 456 N.E.2d 224.

In determining the sufficiency of the evidence supporting the trial court’s findings of agency, the application of several principles is important. The existence of an agency relationship may be established, and its nature and extent shown, by circumstantial evidence, and reference may be made to the situation of the parties, their acts and other relevant circumstances. (St. Ann’s Home for the Aged v. Daniels (1981), 95 Ill. App. 3d 576, 579, 420 N.E.2d 478.) Moreover, the agency relationship does not depend on an express appointment or acceptance by the principal and agent. (95 Ill. App. 3d 576, 579.) Finally, the existence of the agency relationship is a question of fact to be decided by the trial court. Swartzberg v. Dresner (1982), 107 Ill. App. 3d 318, 325, 437 N.E.2d 860.

The bank maintains that, considering all of the relevant circumstances, plaintiff’s and David Tomaso’s testimony concerning Moss’ agency in arranging for the letters of credit is insufficient. The bank points to the lack of documentation of the agency relationship, Moss’ subsequent assignment of his interest in the cashier’s checks to plaintiff, and certain allegations in plaintiff’s Colorado lawsuit against Larry Moore and others alleging that plaintiff’s interests in the gold mine were by assignment without mention of Moss’ agency. Further, the bank contends that Moss had an independent investment in the gold mine venture and that fact negated testimony to the effect that Moss was acting as plaintiff’s agent.

However, even putting aside for the moment the trial court’s province to assess the credibility of the witnesses and the weight of the evidence, we cannot conclude that these facts so manifestly negate plaintiff’s and David Tomaso’s testimony that the trial court’s findings should be disturbed. Moss’s assignment was obtained by plaintiff at the bank’s request in an effort to protect plaintiff’s interest in the cashier’s checks, which interest the bank had called into question. Moreover, our review of the pleadings in the Colorado lawsuit, admitted into evidence here, convinces us that the allegations there were, at best, ambiguous about the nature of plaintiff’s interest in the money securing the letters of credit. Furthermore, we fail to see the relevance of Moss’ independent investment in the gold mine venture to his status as plaintiff’s agent in arranging for the letters of credit. Finally, the mere fact that the letter of credit documents do not disclose the agency relationship does not, by itself, either support or exclude a finding of agency. (Cf O’Connor v. Village of Palos Park (1975), 31 Ill. App. 3d 528, 333 N.E.2d 276.) In any event, a judgment will not be found to be against the manifest weight of the evidence merely because there may be sufficient evidence to support a contrary judgment. Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 410.

We briefly note the bank’s additional contention that in order to prevail, plaintiff was required to offer evidence as to why the agency relationship was not disclosed in the letter of credit documents. The bank, relying on Bright v. Max E. Miller & Son, Inc. (1971), 2 Ill. App. 3d 1051, 279 N.E.2d 98, claims that the circumstances of this case require such proof. We disagree.

In Bright, the plaintiffs offered no direct proof of the alleged agency relationship, and the president of the defendant testified that he dealt with the alleged agent believing him to be the principal. The alleged agent had also signed a document affirmatively stating that he was acting as a principal in the transaction in question. In the instant case, however, the plaintiff testified that Moss was his agent and that he, rather than Moss, supplied the money to secure the letters of credit. David Tomaso testified that, in his capacity as president of the bank, he was aware of Moss’ status as plaintiff’s agent. Moreover, the documents here are merely silent as to the existence of the agency relationship. Finally, there was direct documentary proof that the funds used for the cashier’s checks were taken from plaintiff’s account at the bank. As opposed to the almost total lack of evidence of agency in Bright, here there is sufficient testimonial and documentary proof to sustain the trial court’s findings and judgment.

The bank’s argument, taken as a whole, essentially urges us to reassess the credibility of the witnesses and the weight given to the evidence. However, giving proper deference to the trial court’s province in these matters, we conclude that the trial court’s findings must be allowed to stand.

B

The bank also contests the trial court’s award of $180,000 to plaintiff as being against the manifest weight of the evidence. The bank claims that, if anything, the evidence only supported an award of $50,000 to plaintiff, rather than $180,000, because the bank is still entitled to hold $130,000 as security on the letter of credit it refused to honor. There was some evidence at trial that Glen Leney, the holder of the dishonored letter of credit, brought suit against the bank in Colorado, claiming that the dishonor was wrongful. As previously noted, the litigation was later dismissed by the Colorado courts for lack of jurisdiction over the bank. Similar facts were alleged in the bank’s answer to the complaint here, but not by way of affirmative defense. The bank claims that Leney may still sue the bank in Illinois, as the applicable statute of limitations would keep his claim alive in this jurisdiction for 10 years. (See Ill. Rev. Stat. 1983, ch. 110, par. 13—206.) Thus, the bank claims that it is entitled to continue holding the $130,000 as security to protect itself against possible liability to Leney on the letter of credit since the effect of the statute is to extend the letter of credit’s life until the limitation period runs. In reply, the plaintiff maintains that the bank is precluded from raising this argument on appeal because it failed to raise the issue below. We agree.

It is the general rule that the theory upon which a case is tried cannot be changed on review, and that an issue not presented to or considered by the trial court cannot be raised for the first time in the reviewing court. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417.) The only exception to this rule allows an appellee to defend a judgment on appeal by raising an issue not considered by the trial court if the necessary factual basis for determination of the point is contained in the record. (Shaw v. Lorenz (1969), 42 Ill. 2d 246, 248, 246 N.E.2d 285.) Otherwise, the points argued on appeal are required to be commensurate with the issues presented at trial. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.

Our review of the record clearly indicates that the sole theory of the bank’s defense was that Moss was not plaintiff’s agent, but rather that Moss owned the cashier’s checks, thus giving the bank the right to apply the $180,000 to Moss’ other liabilities to the bank under the terms of the letter of credit applications. The references in the record to the Leney litigation were merely offered as foundation for another claim by the bank to setoffs for expenses incurred by the bank in that litigation. Moreover, if the bank’s defense was to include an alternative claim to continued security on the Leney letter of credit, it could have been made quite explicit in the pleadings. It was not. Furthermore, the claim to continued security was never argued to the trial court. Under these circumstances, we must conclude that the bank is precluded from raising this argument on appeal. Cf. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 148.

II

We next address the bank’s claim that that trial court was without jurisdiction to decide this dispute in the absence of certain necessary and indispensable parties, namely, Sheldon Moss and Glenn Leney, the holder of the letter of credit which the bank refused to honor. Plaintiff argues that the bank waived any claim based on this contention and also that, even if there was no waiver, neither Moss nor Leney is a necessary party.

A necessary party is one whose participation in the litigation is required for any of three reasons: (1) to protect an interest which the absent party has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence (Ill. Rev. Stat. 1983, ch. 110, par. 2—406(a); Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 387 N.E.2d 946); (2) to reach a decision which will protect the interests of those before the court (69 Ill. App. 3d 620, 623); or (3) to enable the court to make a complete determination of the controversy. (Ill. Rev. Stat. 1983, ch. 110, par. 2—406(a).) The bank maintains that these standards are satisfied, thus rendering the trial court’s judgment in Moss’ and Leney’s absence null and void.

It is undisputed, however, that the bank did not raise these contentions below. Thus, we must first consider the effect of the bank’s failure to object to the nonjoinder of Moss or Leney on the present appeal.

Section 2—407 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—407) provides in part:

“New parties may be added *** by order of the court, at any stage of the cause, before or after judgment, as the ends of justice require and on terms the court may fix.”

This section has been construed as applying only to necessary parties (Keehner v. A.E. Staley Manufacturing Co. (1977), 50 Ill. App. 3d 258, 267, 365 N.E.2d 275) and vests broad discretion in the trial court to add new parties. (Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 625.) However, objections to nonjoinder of necessary parties after judgment are disfavored (Theodorou v. Community Builders, Inc. (1972), 6 Ill. App. 3d 277, 280, 285 N.E.2d 474), and distinctions are drawn as to when such objections will be considered if raised after judgment has been entered. Fundamental principles of due process require that all persons who have a direct interest in the subject matter of the dispute which will be affected by the judgment be joined in the litigation, and any judgment entered without jurisdiction over such persons is null and void. (Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 156, 362 N.E.2d 382.) Moreover, as the joinder of such indispensable parties is a jurisdictional issue, it may be raised by the parties on appeal or by the appellate court sua sponte. (National Bank v. S.N.H., Inc. (1975), 32 Ill. App. 3d 110, 121, 336 N.E.2d 115.) However, where a party may be considered necessary for reasons other than a direct interest in the subject matter of the dispute, objections to their nonjoinder will not be considered after a judgment has been entered. Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 626; Zieler v. Village of Oak Lawn (1974), 23 Ill. App. 3d 752, 756, 320 N.E.2d 86.

In the instant case, a great part of the bank’s argument that Moss is a necessary party hinges on the possibility of the bank’s being exposed to further litigation and liability on the cashier’s checks. Similarly, the bank’s whole argument that Leney is a necessary party is bottomed on the claim of detriment to the bank from possible litigation instituted by Leney on the dishonored letter of credit. While the possibility of multiple litigation might constitute the basis for requiring the joinder of an absent party, it in no way deprives Moss or Leney of any rights in the present litigation. We must therefore conclude that the bank’s objections to the nonjoinder of Moss and Leney, based on these grounds, come too late and must be rejected. Theodorou v. Community Builders, Inc. (1972), 6 Ill. App. 3d 277, 280.

This conclusion, however, does not dispose of the bank’s argument that Moss’ direct interests in the cashier’s checks or the $180,000 credit to his loan accounts at the bank from the funds represented by those checks were prejudiced by the trial court’s judgment in Moss’ absence. The plaintiff claims that Moss disavowed any interest in the cashier’s checks or the funds when he executed the assignment to plaintiff at the bank’s request. In reply, the bank contends that since plaintiff abandoned his reliance on the assignment as a theory of recovery in favor of his agency claim, he should not now be allowed to rely on the assignment as dispositive of Moss’ indispensability to this litigation.

We find the bank’s claim unpersuasive. The testimony was clear and unrefuted that the bank requested that Moss execute the assignment as evidence of plaintiff’s ownership of the cashier’s checks. The testimony also showed that Moss did so after it was explained that -the bank was claiming that the checks were his rather than plaintiff’s. Under these circumstances, plaintiff’s reliance on the assignment as an affirmative indication by Moss that he has no direct interest in the subject matter of this dispute is in no way contrary to plaintiff’s claim that Moss was acting as his agent in the letter of credit transaction. Moreover, we find that Moss’ assignment serves as a clear disavowal of any direct interest he may have had in the cashier’s checks or in the application of the funds represented by those checks to his loan accounts at the bank. (Cf. Lerner v. Zipperman (1982), 104 Ill. App. 3d 1098, 1100-01, 433 N.E.2d 1072.) We therefore conclude that Moss was not an indispensable party to this litigation.

Ill

The bank’s final contention is that the trial court erred in refusing to admit testimony concerning litigation expenses the bank incurred in defending the lawsuit brought by Leney to enforce his letter of credit. The bank maintains that under the terms of the letter of credit applications, such expenses were setoffs against any claim by plaintiff to the funds securing the letters of credit. The trial court sustained plaintiff’s objection to the testimony on the ground that the bank’s claim to such setoffs was not put in issue by the bank’s pleadings. The bank made no motion to amend its pleadings, but rather relied, as it does now, on its claim that the pleadings sufficiently raised the setoffs. We disagree.

It is well settled that the trial court is not required to admit evidence relating to issues not raised by the pleadings. (Orchard Brook Home Association, Inc. v. Joseph Keim Land Development Corp. (1978), 66 Ill. App. 3d 227, 234, 382 N.E.2d 818.) Moreover, a defense not properly pleaded is deemed waived. (M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122, 1125, 424 N.E.2d 1193.) Our review of the pleadings clearly reveals that the bank’s affirmative defense only raised its right under the terms of the letter of credit applications to offset Moss’ other loan obligations to the bank with the cashier’s checks. There is absolutely no claim of a right to offset the litigation expenses, nor are there any averments that the bank incurred such expenses. Thus, we necessarily conclude that the trial court’s exclusion of the testimony in question was entirely proper, and any claim to the setoffs waived.

IV

We now turn to the plaintiff’s cross-appeal contesting the trial court’s denial of prejudgment interest under the interest statute. (Ill. Rev. Stat. 1983, ch. 17, par. 6402.) While the trial court’s denial of prejudgment interest will not be disturbed unless contrary to the manifest weight of the evidence (Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 558, 437 N.E.2d 872), our review of the record, the statute, and the case law convinces us that prejudgment interest should have been awarded in the instant case.

Plaintiff’s argument relies on the “instrument of writing” provision of the interest statute which provides as follows:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; ***.” (Ill. Rev. Stat. 1983, ch. 17, par. 6402.)

To recover prejudgment interest under this provision there must be a fixed and easily calculated amount due from a debtor-creditor relationship that has come into being by virtue of a written instrument. (Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 251, 323 N.E.2d 73.) If these requisites are satisfied, interest attaches to the amount due under the instrument of writing as a matter of law. (Hamilton v. American Gage & Machine Corp. (1976), 35 Ill. App. 3d 845, 852, 342 N.E.2d 758.) Moreover, the existence of a good faith dispute as to liability does not affect the operation of the statute under these circumstances. First Arlington National Bank v. Stathis (1983), 115 Ill. App. 3d 403, 416, 450 N.E.2d 833.

It has been previously held by this court that cashier’s checks wrongfully withheld by a bank are instruments of writing creating an indebtedness (In re Estate of Temple (1970), 131 Ill. App. 2d 434, 266 N.E.2d 438 (abstract of opinion)), and the record in the instant case supports a similar finding. When the letters of credit expired on March 15, 1979, the bank became immediately indebted to plaintiff for the face amount of the cashier’s checks drawn on plaintiff’s account at the bank. The bank’s refusal to return the checks prevented plaintiff from presenting the checks for the return of his funds. These funds, represented by the cashier’s checks, were thus money due on a written instrument.

Additionally, we have no difficulty in finding that the amount due is fixed and capable of exact calculation. We need only look to the face of the two cashier’s checks to ascertain the amount owed plaintiff by the bank. Plaintiff’s claim thus satisfies the requirements for an award of prejudgment interest under the “instrument of writing” clause of the interest statute. We therefore conclude that the trial court’s denial of prejudgment interest must be reversed.

Our finding that plaintiff was entitled to prejudgment interest based on a sum due under an' instrument of writing makes it unnecessary for us to consider his other arguments concerning this issue. Moreover, we also conclude that the bank’s argument contesting the proper date from which to calculate prejudgment interest, based as it is on the bank’s claim of possible exposure to further litigation on the Leney letter of credit, to be without merit.

The judgment of the trial court awarding plaintiff $180,000 is affirmed. The judgment denying an award of prejudgment interest is reversed and the cause remanded for computation and award of prejudgment interest from March 15, 1979, through the date of the judgment appealed from.

Affirmed in part, reversed in part, and remanded.

JOHNSON and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI JUSTICE LINN,

license: Public Domain

text:
    CHARLES HIBBLER, Plaintiff, v. OCKERLUND CONSTRUCTION COMPANY et al., Defendants (Ockerlund Construction Company, Defendant and Third-Party Plaintiff-Appellant, v. Ceisel Masonry, Inc., Third-Party Defendant-Appellee).
    First District (4th Division)
    No. 84—549
    Opinion filed January 10, 1985.

      Law Offices of Thomas R McLaughlin, of Chicago (W. David Utley, of counsel), for appellant.
    Burdick & Smith, of Chicago (Terry Norbert Tamillow, of counsel), for appellee.
   JUSTICE JIGANTI

The setting in this case is most familiar. The general contractor, Ockerlund Construction Company, entered into an indemnity agreement with the subcontractor, Ceisel Masonry, Inc. The agreement provided that Ceisel would indemnify Ockerlund for any claims of injuries for which Ockerlund might be responsible and which “may arise out of or on account of in consequence of the Sub-contractor’s [i.e., Ceisel’s] performance of his contract.” During the course of the construction, Ceisel’s employee, Charles Hibbler, was injured. Hibbler then filed an action based on the Structural Work Act against the general contractor, Ockerlund. (Ill. Rev. Stat. 1977, ch. 48, pars. 60 through 69.) Ockerlund in turn filed a three-count complaint against Ceisel seeking indemnity based on an active-passive theory, contribution and on the express indemnification quoted above. On Ceisel’s motion the trial court dismissed the count based on express indemnification. That is the only count in issue in this appeal.

There can be little doubt that the terms of this contract are covered by section 1 of “An Act in relation to indemnity in certain contracts,” which provides that in every construction contract “every covenant, promise or agreement to indemnify or hold harmless another person [i.e., Ockerlund] from that person’s [i.e., Ockerlund’s] own negligence is void as against public policy and wholly unenforceable.” (Ill. Rev. Stat. 1977, ch. 29, par. 61.) Ockerlund, solely for the purpose of its third-party complaint, has alleged that it is negligent and that Ceisel has agreed to indemnify Ockerlund for Ockerlund’s own negligence. This is the type of agreement that is proscribed by statute.

In Davis v. Commonwealth Edison (1975), 61 Ill. 2d 494, 498-99, 336 N.E.2d 881, the Illinois Supreme Court determined the above statute to be constitutional. In explaining its decision, the court used the instant factual setting as an example as to why in the construction trades it is against public policy for the general contractor to be indemnified for his own violations of the Structural Work Act. The court stated that such indemnification agreements diminish the general contractor’s motivation to lessen the extent of the danger to an employee. Moreover, in Cox v. Lumbermens Mutual Casualty Co. (1982), 108 Ill. App. 3d 643, 439 N.E.2d 126, the court stated that conduct that violates the Structural Work Act can be characterized as ranging from passive negligence to wilful misconduct and that all indemnification agreements for the above conduct are per se prohibited by section 1 (Ill. Rev. Stat. 1977, ch. 29, par. 61).

As interpreted by the above ease law, the statute expressly forbids Ceisel from agreeing to indemnify Ockerlund for Ockerlund’s own negligence. It is for that reason that the trial court properly granted Ceisel’s motion to dismiss the count on express indemnification.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

ROMITI, J., concurs.

JUSTICE LINN,

dissenting:

The majority reads the indemnity provision at issue as Ceisel agreeing to indemnify Ockerlund against Ockerlund’s own negligence. While I readily concur that such an agreement would clearly be void pursuant to Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881, and section 1 of the indemnity statute (Ill. Rev. Stat. 1983, ch. 29, par. 61), the instant provision simply is not such an agreement. For this reason, I respectfully dissent.

It is clear from the plain language of the indemnity agreement included in the Ceisel/Ockerlund contract that Ceisel expressly agreed to indemnify Ockerlund against Ceisel’s negligence, not against Ockerlund’s own negligence. Ockerlund alleged in its third-party complaint not, as the majority seems to interpret, that it was negligent, but that

“10. If OCKERLUND CONSTRUCTION COMPANY is liable to Plaintiff, it will be solely because of the alleged nondelegable duty imposed upon it by reason of the Illinois Structural Work Act, rather than because of any act and/or omission regarding the work and/or materials and equipment involved.
11. If OCKERLUND CONSTRUCTION COMPANY is liable to Plaintiff it will be liable solely because of the acts of negligence and/or misconduct of the Third-Party Defendant, CEISEL MASONRY, INC., to-wit: its failure to adequately supervise Plaintiff’s job; provide appropriate and stable scaffolds; provide sufficient, suitable and safe materials; provide tight toe boards and brackets, etc.
12. The conduct of the Third-Party Plaintiff, if any, within the meaning of the Illinois Structural Work Act is solely passive in nature whereas the conduct of the Third-Party Defendant is active.”

Ockerlund further alleged in its count for express indemnity, after incorporating the paragraphs above, that by reason of the indemnity agreement entered into between it and Ceisel, it was entitled to express indemnity. That agreement, excerpted from the contract in somewhat more complete form than is presented in the majority opinion, reads as follows:

“Second INSURANCE. The Sub-contractor agrees to defend and/or indemnify and save harmless the owner, architect and General Contractor against any loss, expense or damage arising out of a claim or claims for injuries or property damage including death claims which may arise out of or on account of or in consequence of the Sub-contractor’s performance of this contract. This clause is intended to cover any and all claims due to the negligence or claimed negligence of this said Sub-contractor, his employees, agents or servants.
Third INSURANCE. The Sub-contractor shall defend, protect and/or indemnify the said Contractor against any claim, loss or damage, including all expenses in connection therewith, suffered by or through the negligence of the Sub-contractor, his employees, agents or servants; in the event that there are any claims as above-mentioned, the Sub-contractor shall pay for any and all costs and expenses which the Contractor may have or be charged therefor ***.” (Emphasis added.)

By enacting “An Act in relation to indemnity in certain contracts” (Ill. Rev. Stat. 1983, ch. 29, par. 61 et seq.), the legislature manifested a clear intent to void exculpatory clauses that purport to indemnify a person from his own negligence in construction-related activities. (American Pecco Corp. v. Concrete Building Systems Co. (N.D. Ill. 1975), 392 F. Supp. 789.) It is well established that an indemnity contract will not be construed as indemnifying one against his own negligence unless such a construction is expressed in unequivocal terms. (Fourfouris v. Standard Oil Realty Corp. (1981), 100 Ill. App. 3d 162, 426 N.E.2d 915.) Nowhere in the above-quoted indemnity provisions, those at issue in the present case, do I find any clear or explicit language that states in unequivocal terms that Ceisel intended to indemnify Ockerlund against Ockerlund’'s own negligence. The plain language of this contract, and that upon which its meaning must be determined (Mosley v. Northwestern Steel & Wire Co. (1979), 76 Ill. App. 3d 710, 394 N.E.2d 1230), renders such a construction wholly unsupportable.

The plain language of the indemnity statute reveals no legislative intent to render void indemnity agreements, such as the one at bar, in which an indemnitor agrees to indemnify or hold harmless an indemnitee from the indemnitor’s negligence. The sole prohibition manifested by the clear and unambiguous language of section 1 is directed towards those agreements in which the indemnitor agrees to indemnify the indemnitee against the indemnitee’s own negligence. Because no such agreement is found in the contract at issue, section 1 of the indemnity statute does not provide a valid basis upon which to strike with prejudice count II of Ceisel’s third-party complaint.

Indemnity agreements such as the one at issue have repeatedly been upheld by our supreme court. (Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444; Griffiths & Son Co. v. National Fireproofing Co. (1923), 310 Ill. 331, 141 N.E. 739.)

“There are many cases in which one party is held legally responsible for action by another that *** causes tortious injury to third persons, even though the party so held responsible did not desire the action or in any way instigate it. If such action occurs and he is held responsible to his loss, he ordinarily has a remedy over against the party who actually performs the illegal action; he is not regarded as in pari delicto. A bargain to indemnify him against losses so incurred is not illegal, whether given by the party actively guilty of the wrong or by a liability insurance company or other third party. An owner or a principal contractor may be liable for harms caused by the negligence of *** the subcontractor; a contract of indemnity given by the one ultimately responsible for the negligence *** is not illegal.” (Emphasis added.)

6A A. Corbin, Contracts sec. 1471 (1951), citing Griffiths & Son Co. v. National Fireproofing Co. (1923), 310 Ill. 331, 141 N.E. 739.

The indemnity agreement in Griffiths, a case recently relied on by our supreme court, Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, is essentially identical to the provision here at issue. There, a general contractor and a subcontractor entered into a construction agreement wherein the subcontractor agreed to indemnify the general contractor for loss arising from any accident “occasioned directly or indirectly by the operations of the [subcontractor] or its sub-contractors.” (310 Ill. 331, 332.) The Griffiths court first acknowledged that every contractor and subcontractor is equally bound by the Structural Work Act to comply with its provisions and that in the case of a “wilful failure to comply, each is liable to the party for any direct damages sustained by reason of such failure.” The court then went on to uphold the agreement before it, finding that

“there seems to be no basis for holding it contrary to public policy for *** subcontractors to indemnify original contractors against loss occasioned by the actual negligence of the indemnitors, even though such *** original contractors may have been themselves guilty of passive or constructive negligence. *** The contract in the present case does contemplate that an accident may happen through the negligence of the [subcontractor’s] servants for which the [general contractor] may be liable, and provides that the [subcontractor] will indemnify the [general contractor] against such liability for the [subcontractor’s] negligence. It is not contrary to public policy that the [subcontractor] should contract to pay the damages caused by its own negligence.” 310 Ill. 331, 342, 141 N.E. 739, 743.

While Griffiths explains the theory of active-passive indemnification (Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 454), both Griffiths and Simmons also appear to stand for the proposition that express indemnification agreements relating to claims arising under the Structural Work Act are not void as against public policy where the indemnitor agrees to indemnify the indemnitee against claims arising from the indemnitor’s negligence. This interpretation of Griffiths and Simmons is consistent with the plain meaning of section 1 of the indemnity statute (Ill. Rev. Stat. 1983, ch. 29, par. 61) and with my reading of Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881.

In summary, while I fully agree with my colleagues that indemnity agreements that indemnify a person against that person’s own negligence are void as against public policy and statutorily prohibited by section 1 of the indemnity statute, the agreement in the Ceisel/Ockerlund contract does not, by its plain language, purport to do so. For this reason, I respectfully dissent.


author: PRESIDING JUSTICE HARTMAN

text:
      In re ESTATE OF NELLIE BANIA (Nellie Bania, Cross-Petitioner-Appellant, v. Nannette J. D’Angelo, Petitioner; Chester Pacyna, Cross-Petitioner-Appellee).
    First District (2nd Division)
    No. 84—1499
    Opinion filed December 28, 1984.
    Joseph, Susman & Myers, of Chicago, and Kogut & Puedo, of Des Plaines (Jack Joseph and Anthony J. Kogut, of counsel), for appellant.
    Kenneth E. Scheiwe, of Chicago, for appellee Nannette J. D’Angelo.
    Harry R. Becker, of Mitchell & Allen, of Chicago, for appellee Chester Pacyna.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Acting upon a petition and cross-petitions for appointment of guardian for a disabled person, the circuit court found cross-petitioner-appellant Nellie Bania (Nellie) totally without capacity and appointed persons other than those nominated in her cross-petition as guardians of her person and estate. Nellie appeals and raises as issues whether the circuit court erred by: (1) finding her totally without capacity; and (2) appointing guardians without giving due consideration to her nominees.

On December 16, 1983, Nannette D’Angelo and Salvadore Mendoza filed a petition in the circuit court asking to have Nellie adjudged a disabled person because of her “[mjental instability due to complications'of age and recent surgery,” and to have themselves appointed co-guardians of her person and estate. The court appointed a guardian ad litem for Nellie on December 21, 1983, who, on January 17, 1984, filed her report, concluding therein that: “Nellie Bania is mostly alert. She has some confusion and forgetfulness. I do not believe she is ‘incompetent,’ but I do believe she needs help in her tending to her basic needs and that she is subject to influence.”

On May 10, 1984, Nellie filed a cross-petition to be adjudged disabled and nominated Mary Bania, wife of Nellie’s nephew, as personal guardian and Leona Sonne, a real estate agent, as estate guardian. Another cross-petition was filed on May 17, 1984, by William Pacyna, Nellie’s first cousin, seeking to have Mary Bania named personal guardian and Chester Pacyna named estate guardian.

At a hearing on June 7, 1984, petitioner Mendoza testified that: he has known Nellie since 1946; they are “good friends”; after Nellie’s companion died in 1979, he helped her by taking her shopping, to the doctor, and, when her physical condition worsened, by feeding her; and since her hospitalization in October 1983, he has collected her social security checks and the rent from her building which he then delivered to his attorney. On cross-examination, he initially denied knowing about a quitclaim deed whereby Nellie conveyed to him and herself in joint tenancy a certain apartment building, but then admitted that Nellie told him she had executed the deed. Nellie put the property in his name because he “would be taking care of her and *** the property.” He never asked her to execute the deed. He is not willing to turn over his interest in the property, but would do so if asked by Nellie.

Petitioner D’Angelo testified that Nellie is her mother’s mother’s sister, or great aunt. She is unaware of any other relatives in the Chicago area. After Nellie’s discharge from the hospital in October 1983, Mendoza told her that Nellie was living with Mary Bania. She, her daughters and sister are willing to care for Nellie “where she chooses to live, either in her house or in mine.” On cross-examination, D’Angelo said that Mendoza’s attorney asked her to be co-guardian •with Mendoza, and she agreed.

Raymond Bayster, an attorney, testified that he prepared the quitclaim deed, executed on September 21, 1983, at Nellie’s request. He has known Mendoza for 30 years and has done some legal work for him. He was “retained” by D’Angelo after he contacted her and explained Nellie’s need for a guardian. D’Angelo offered to help Nellie, as her mother was living in Florida and was in poor health, and thus was unable to help. He explained that “[t]he word ‘retain’ is broad,” and considered D’Angelo’s agreement to having her name on the petition as “retaining.” He did not tell D’Angelo that Mendoza, the co-petitioner, had an interest in Nellie’s property. Nellie retained him to prepare three documents before she was hospitalized: the deed; a will; and an instrument giving Mendoza power of attorney.

Nellie testified that she doesn’t need someone to look after her “all the time.” She does not object to Mary Bania being named guardian “to take care of” her. Nellie has no trouble collecting rents, and doesn’t need anyone to look after her property, which she can handle by herself. Nellie said she hasn’t seen D’Angelo much, and then said “I don’t know who she is.” She does not want William Pacyna or his son Chester to take care of her things. She did not retain Bayster for any legal work, and didn’t sign a deed or go to his office, although she identified the signature on the deed as her own.

Cross-petitioner Pacyna testified that he is Nellie’s first cousin and lives in Michigan. His son, Chester Pacyna, testified that he owns and manages two apartment buildings. A retired policeman, he would have ample time to attend to Nellie’s financial affairs.

All parties stipulated to the report of a medical evaluation of Nellie submitted by Dr. Roman Solecki, which was admitted into evidence as a joint exhibit, noting that Nellie suffers from “Senile Dementias— uncomplicated *** manifested by severe memory impairment, impaired judgment, also disoriented as to time, partially oriented to place and person.”

The circuit court found Nellie to be disabled and appointed Chester Pacyna guardian of Nellie’s estate and D’Angelo guardian of her person. No reasons for this decision were given at the hearing. The order entered on June 11, 1984, found Nellie “totally without understanding or capacity to make or communicate decisions regarding his/ her person” and “totally unable to manager [sic] his/her estate or financial affairs.” The court gave as a factual basis for this determination the medical report stipulated to by all parties “and upon a hearing of further testimony.” This appeal followed.

I

Nellie contends that the circuit court’s finding of total disability and its granting of plenary guardianship are not supported by the record and thereby contravene section 11a—3(b) of the Probate Act (Ill. Rev. Stat. 1983, ch. IIOV2, par. 11a—3(b)), which provides, in part, that guardianship is to be utilized only as is necessary to promote the well-being of the disabled person, to protect her from neglect, exploitation, or abuse, to encourage development of her maximum self-reliance and independence, and should be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations.

All the parties herein stipulated, however, that Nellie was disabled. The “limited capacity” argument being put forth on appeal was never raised in the circuit court. Indeed, the record reflects that the court’s inquiry was limited from the outset to a determination of who should be appointed guardian. At the beginning of the hearing the court asked whether Nellie was “disabled under the statute,” and, upon being advised by counsel that she was, stated that “the question is who should be the guardian of her estate and person.” Later the court sustained Nellie’s objection to certain testimony related to her competency and rejected appellees’ argument that this testimony was relevant to the issues before the court, stating:

“THE COURT: Before me is a petition as to whether or not Nellie Bania is a disabled person. There is a stipulation by the three of you, by all three counsel that she is disabled as to her person and to her estate and the only issue before me is who is going to be appointed guardian of the estate and of the person.
MR. KOGUT [Nellie’s attorney]: Exactly.
THE COURT: That is the only thing before me.”

Nellie’s subsequent objection to further such testimony was also sustained. Having succeeded in excluding this testimony, counsel for Nellie did not thereafter raise the “limited capacity” argument.

Nellie’s closing argument, furthermore, addressed only the question of who should be appointed her guardian. She offered no suggestions for limiting the guardianship order to conform to her degree of disability. Nellie has waived her right to argue the “limited capacity” issue or to suggest how tne guardianship order should be restricted. A party cannot complain of such errors which she has committed, invited or induced the court to make. (Meyer v. Polivat (1957), 13 Ill. App. 2d 491, 492, 142 N.E.2d 747; Peters v. Hokin (1976), 41 Ill. App. 3d 995, 997, 355 N.E.2d 205. See also City of Waukegan v. Stanczak (1955), 6 Ill. 2d 594, 608, 129 N.E.2d 751.) We find no basis for overturning the court’s conclusion in this regard.

II

Nellie next maintains that the circuit court erred by rejecting her choice of guardians, contrary to section 11a—12(d) of the Probate Act (Ill. Rev. Stat. 1983, ch. 11OV2, par. 11a—12(d)), which provides, in part, that the selection of the guardian is in the discretion of the court, which is to give due consideration to the preference of the disabled person as to a guardian in making its appointment. Nevertheless, the paramount concern in the selection of a guardian is the best interest and well-being of the disabled person, regardless of that person’s choices. See In re Estate of Vicic (1979), 79 Ill. App. 3d 383, 385, 398 N.E.2d 420.

The record here supports the court’s rejection of Nellie’s nominee for personal guardian, Mary Bania, and its appointment of Nannette D’Angelo. In her report, the guardian ad litem noted that, after Nellie’s discharge from the hospital, Mary Bania took her to the bank in which Nellie keeps $150,000-$200,000. The guardian ad litem was concerned especially that Nellie did not know why she and Mary went to the bank or what happened there. The guardian ad litem also interviewed Dr. Huq, Nellie’s treating physician. He told her that elderly people who need physical care are insecure, very subject to influence, may be frightened, and when they are being cared for do not want to “rock the boat.” Although present at the hearing, Mary Bania did not testify. In view of the doubt cast on Mary Bania’s motives and freedom from self-interest, and her failure to explain the trip to the bank or to testify at all, the court did not err by rejecting her as guardian. Under the former provisions of the Probate Act, the conservator of an incompetent’s estate was required to be free of any interest which might appear to prevent the proper assertion or protection of the incompetent’s rights. In re Estate of Lamont (1973), 13 Ill. App. 3d 714, 716, 300 N.E.2d 574; Proehl v. Leadley (1967), 86 Ill. App. 2d 472, 477, 230 N.E.2d 516.

The appointment of D’Angelo as personal guardian was also amply supported by the record. Nellie contends that D’Angelo was solicited by Mendoza’s attorney to join Mendoza on his petition as co-guardian; therefore, since Mendoza’s interest in the guardianship is questionable, his co-nominee should also have been rejected. The court correctly did not appoint Mendoza because of his possible self-interest; however, nothing suggests similar self-serving motives on the part of D’Angelo. She was not told of Mendoza’s interest in Nellie’s property and only wanted to help her great aunt. D’Angelo has known Nellie for 44 years and has visited or phoned her weekly since 1982. She is divorced and the co-owner of a health food store, and her daughters (aged 18 and 21) and sister would help her care for Nellie, whether in Nellie’s home or D’Angelo’s. Through D’Angelo’s testimony, therefore, the court was justified in concluding that she could provide “an active and suitable program of guardianship for the disabled,” as required by section 11a—5(a) (Ill. Rev. Stat. 1983, ch. 11OV2, par. 11a— 5(a)).

The court also did not abuse its discretion by appointing as Nellie’s estate guardian Chester Pacyna, the son of Nellie’s first cousin, instead of Leona Sonne, Nellie’s nominee. Although available, Sonne, a real estate agent unrelated to Nellie, did not testify. The only evidence concerning her was Nellie’s assertion that she was a “very good woman” who could be trusted to collect her rents. Chester, however, testified that he is a retired policeman who lives in Chicago; has had repeated contact with Nellie over the years; owns and manages two buildings of his own; and would have ample time available to manage Nellie’s estate. We find no abuse of discretion in the selection and appointment by the circuit court of Nellie’s personal and estate guardians.

For the foregoing reasons, we affirm the circuit court findings of Nellie’s disability and its appointment of Nellie’s personal and estate guardians.

Affirmed.

STAMOS and PERLIN, JJ., concur.


author: PRESIDING JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE DAVIS et al., Defendant-Appellants.
    First District (4th Division)
    Nos. 82—2781, 82—2873 cons.
    Opinion filed December 20, 1984.

      James J. Doherty, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and David Kluever, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendants, Joe Davis and Dwayne Reid, were convicted of armed robbery. (Ill. Rev. Stat. 1981, ch. 38, par. 18—2.) Both defendants were sentenced to 18 years in the Illinois Department of Corrections. This consolidated appeal followed.

Defendants raise eight issues for consideration on review. Both defendants contend (1) that they were not proved guilty beyond a reasonable doubt of armed robbery. Defendant Davis individually contends that (2) he was denied a fair trial by the State’s failure to disclose his statement, elicited from the victim at trial, concerning the commission of another crime; and (3) that improper evidence of flight in the course of his arrest was put before the jury. Defendant Reid individually contends that he was denied a fair trial by (4) the admission of the testimony of his mother; and (5) the ineffective assistance of counsel. Finally both defendants contend that (6) the trial court erred in admitting prior consistent statements of the victim; (7) that the prosecutor’s remarks in opening statement and closing arguments denied them a fair trial; and (8) that the 18-year sentences imposed by the trial court are excessive.

We reverse the convictions for armed robbery and remand for a new trial.

Facts

On November 12, 1981, at approximately 4:45 to 5:30 in the afternoon, the victim was accosted and robbed by two men as she walked home from work. According to the victim’s testimony, she had just gotten off the CTA train at the Cicero Avenue stop and was walking westbound on Lexington Avenue toward her home when defendant Davis, whom the victim knew from school and the neighborhood, grabbed her from behind. The victim testified that Davis held her by the neck with his left arm while at the same time cutting her gold neck chains off with a five- to seven-inch knife. At the same time, defendant Reid, also known to the victim from the neighborhood, attempted to grab her purse and asked her if she had any money. At this point in time, the victim’s friend Cassandra Davis walked by the victim and defendants on the sidewalk. The victim testified that Cassandra stopped and asked her, “What’s happening, Pumpkin.” Defendant Reid then approached Cassandra and spoke with her while defendant Davis stood directly in front of the victim holding the knife in his pocket pointed at her side and telling her not to say anything. On cross-examination, the victim stated that Davis did not hold onto her while Reid and Cassandra spoke. After speaking with defendant Reid, Cassandra walked on toward her home.

After defendant Reid returned to where the victim and defendant Davis were standing, four men passed them on the street. The victim asserted that defendant Reid once again ran up to one of the men and spoke with him while Davis held the knife in his pocket to her side. The four men then moved on.

Cassandra Davis’ testimony essentially corroborates that of the victim. According to Cassandra, she first saw the victim when she was at the corner of Lexington and Cicero and the victim was “about six houses” down the street with the defendants. Cassandra was not aware at that time that it was the victim or the defendants and recognized them only when she had caught up to them. Like the victim, Cassandra knew the defendants from school and the neighborhood. According to Cassandra, • the victim was between the defendants on the sidewalk. Cassandra testified that at the time she caught up to the victim and defendants she stopped, looked at the victim, and noticed that she “looked scared.” She inquired of the victim if anything was the matter, and Reid came up to her and told her that Davis was trying to make a date. Cassandra then walked toward home looking back several times and passing four men walking toward the victim and defendants. On cross-examination, Cassandra testified that at no time had she seen any knives in Reid’s or Davis’ hands. The above events took place in the space of about 10 minutes.

The victim and defendants then moved to a gangway between two houses facing the street and into the backyard of one of the houses. The victim alleged that while in the gangway, Davis removed her leather coat. The defendants then-pulled the victim into the backyard.

Once in the backyard, Davis pushed the victim up against the house. According to the victim’s testimony, Reid then emptied her purse on the patio, taking $20, CTA tokens, and a leather compact. The victim asked Davis why they were doing this, and Davis responded that they needed “to get their ladies out of jail” and that “he [Davis] had just robbed another man.”

The victim further testified that Reid then forced her by the chimney part of the wall on the back of the house. Reid then searched her for more money, forcing her to take off her shoes. Reid also untucked the victim’s shirt and felt for money under her shirt and bra.

Reid then told the victim that he believed she had more money and hit her with a closed fist three times on her face, splitting her lip. Reid again asked her if she had any more money. When she told Reid that she had no more money, Davis took out his knife, held it to her throat, and again asked for money. Her testimony continued that when she repeated that she had no more money, Davis lowered his knife and Reid also took out a knife. The victim stated that Reid said that they would have to hit her “where it hurts” and that Davis stated that they would have to leave her there because she could identify them.

The victim testified that the robbery ended when a Mrs. Jones, who lived in the next house, came out to empty her garbage, frightening away Davis and Reid. At that point, she jumped the fence into Mrs. Jones’ yard and asked to use the telephone. Once in Mrs. Jones’ house, the victim told her that she had been robbed and beaten and that she knew her attackers. Mrs. Jones’ testimony essentially corroborated this portion of the victim’s testimony, except that there was no testimony that Mrs. Jones saw any knives or that the victim told her about the knives.

The victim testified further that she called home from the Jones’ house and talked with her mother. A short time later, her father came and took her home. In the meantime, someone at the victim’s home called the police. Prior to their arrival, the victim received a phone call from Cassandra Davis. She testified that she told Cassandra that she had been robbed and beaten by defendants. She also learned the full names of both defendants from Cassandra. Cassandra testified that the victim had told her that the defendants had “hit her in the jaw and they had cut her chains and took her jacket.”

The victim claimed that about 6 p.m. police officers arrived at her home and spoke with her, her mother, and her father. One of the officers, Officer Nelson, testified that he and his partner received a radio call to investigate an “attempt rape” and proceeded to the victim’s home where they were met by the victim and her mother and father. According to the officer, the victim was upset and the right side of her face was swollen and red. She told the officer that she was robbed at knifepoint by the defendants and that they had taken her coat, purse, $20, a small leather purse, and some tokens. The officer also stated that the victim told him that both defendants had knives. On cross-examination, however, the officer acknowledged that the police report prepared by him and his partner mentioned only one knife and omitted several of the items claimed by the victim to have been taken.

Defendant Davis was arrested at his home on November 17, 1981. Defendant Reid voluntarily surrendered two days later. Following a jury trial, both defendants were convicted of armed robbery and sentenced to 18 years in the Illinois Department of Corrections. This appeal followed.

Opinion

I

The defendants’ first argument on appeal is that they were not proved guilty of armed robbery beyond a reasonable doubt. The victim’s testimony was the only direct evidence that the defendants had committed armed robbery. Defendants contend that the victim’s testimony, taken as a whole, is so unbelievable as to preclude a finding of guilt beyond a reasonable doubt.

The State contends that the question of reasonable doubt turns upon the issue of the credibility of the victim, and that because the jury found the victim to be credible, defendants were proved guilty of armed robbery beyond a reasonable doubt. We agree with the State’s contention.

It is the function of the trier of fact to determine the credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence; and a court of review will not substitute its judgment for that of the trier of fact. (People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733.) Moreover, the testimony of one witness, if positive and credible, even if contradicted, is sufficient to convict. (People v. Novotny (1968), 41 Ill. 2d 401, 411, 244 N.E.2d 182.) A conviction will be reversed, however, where the State’s evidence is so improbable, unconvincing, or contrary to human experience that a reasonable doubt as to guilt is raised. People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666.

Defendants’ convictions for armed robbery rest solely on the testimony of the victim. The jury found her testimony to be credible, and we cannot conclude that her testimony was so improbable or unconvincing to compel a reversal of the defendants’ conviction on this ground alone. The victim’s testimony was positive and consistent in all respects material to establishing the offense of armed robbery. Moreover, the victim’s credibility was enhanced by the corroborating testimony of Cassandra Davis and Mrs. Jones concerning the time, place, the identification of the defendants, and the mental state of the victim during and immediately after the robbery.

No evidence at trial directly impeached or contradicted the victim’s testimony. While it appears from the evidence that the first three times she recounted the facts of the robbery she omitted any mention of knives, this alone does not render her testimony so improbable as to raise a reasonable doubt of the guilt as the defendants contend. Every witness who saw the victim immediately after the robbery testified that she was crying and upset. Under such circumstances, we cannot independently conclude that such omissions render the victim’s testimony unbelievable.

Similarly, we cannot accept the defendants’ contention that the fact that the police officers who initially investigated the victim’s complaint were responding to an “attempt rape” call raises a reasonable doubt of defendants’ guilt. We refuse to speculate as to the possible explanations for this inconsistency.

Finally, we reject defendants’ contention that the victim’s failure to cry out to the four men who passed her and the defendants on the sidewalk defies human experience and creates a reasonable doubt as to defendants’ guilt. We agree with the State’s contention that the presence of knives is a reasonable explanation for the victim’s failure to cry out for help. Considering all of the above, we find that the victim’s testimony was positive, credible and sufficient to support defendants’ convictions for armed robbery.

II

Our inquiry, however, does not end with our finding that the victim’s testimony was sufficient to convict defendants of armed robbery. Defendants both individually and together set forth contentions to the effect that certain testimony adduced at trial was so prejudicial as to deny them a fair trial. We will therefore examine each of defendants’ contentions in turn.

A

The first of these contentions is asserted by defendant Davis. On direct examination, the State elicited from the victim that during the robbery Davis had told her that he had just robbed another man. Counsel for Davis was never informed of this statement during pretrial discovery and was unaware of the statement or that the State intended to use such testimony at trial. Counsel objected to the testimony and moved for a mistrial. This motion and a motion to strike were denied.

Illinois Supreme Court Rule 412, which governs the mechanics of criminal discovery, provides in pertinent part:

“(a) *** [T]he State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
(ii) any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgement of such statements ***.” (73 Ill. 2d R. 412(a), (ii).)

The purpose of this rule is to allow defense counsel to investigate the circumstances surrounding the statement in order to protect the defendant from surprise and inadequate preparation. (People v. Perez (1981), 101 Ill. App. 3d 64, 427 N.E.2d 820.) Moreover, compliance is mandatory, and the State must disclose not only statements made to law enforcement personnel in the nature of an admission or confession, but all statements known to it. (People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E.2d 1029.) This includes statements to witnesses unconnected with the State. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) Furthermore, once the trial court determines that a discovery violation has occurred it may order compliance, grant a continuance, exclude the evidence in question, declare a mistrial or order any sanction it “deems just under the circumstances.” (73 Ill. 2d R. 415(g); People v. Watson (1979), 76 Ill. App. 3d 931, 395 N.E.2d 682.) Reversal, however, is required only where the defendant is surprised or prejudiced by the undisclosed statement. People v. Greer (1980), 79 Ill. 2d 103, 120.

Defendant Davis contends that he was prejudiced by the nondisclosure in that it prevented him from barring “other crimes” evidence by a motion in limine, and, alternatively, it prevented him from investigating the statement so as to impeach the victim’s account. Underlying Davis’ contentions is the prejudice he claims resulted from the jury’s hearing this “other crimes” evidence.

The State claims that, although the discovery rules required that the prosecutor disclose Davis’ statement, Davis has not demonstrated that he was prejudiced by the nondisclosure. According to the State, reversal is not required here since the victim was listed as a potential witness, defendant Davis had an opportunity to interview the victim and did so, and Davis’ statement was not essential to support his conviction.

Under the concepts of a fair and impartial criminal trial, it is fundamental that a defendant, no matter how reprehensible or how great his history of past crimes, is entitled to have his guilt or innocence determined solely with reference to the crime with which he is charged. (People v. Gregory (1961), 22 Ill. 2d 601, 603, 177 N.E.2d 120, 122.) Thus, evidence of separate or unrelated crimes for which the defendant is not on trial is inadmissible if relevant merely to establish propensity to commit criminal acts. (People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288.) Such evidence overpersuades the trier of fact, which is likely to convict defendant merely because of feelings he is a bad person deserving punishment rather than on the basis of facts related to the offense for which he is on trial. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) Thus, such evidence carries a high risk of prejudice for the criminal defendant. 79 Ill. 2d 129, 140.

We can discern no reason, and the State has not supplied any, why Davis’ statement was elicited at trial except to establish that Davis had a propensity to commit robbery. While we agree with the State’s contention that nondisclosure of a defendant’s statement is not ordinarily prejudicial unless essential to the conviction (People v. Greer (1980), 79 Ill. 2d 103, 120), we cannot agree that its admission into evidence was not prejudicial in this case. As the State concedes, defendant Davis was clearly entitled to the disclosure of the substance of this statement prior to trial from the State. We therefore find that it was error for the trial court to refuse to take some action to exclude this “other crimes” evidence, especially where Davis was completely surprised when the statement was elicited at trial. Compare People v. Weaver (1982), 92 Ill. 2d 545, 561, 442 N.E.2d 255; People v. Bailey (1982), 103 Ill. App. 3d 503, 431 N.E.2d 723.

B

The next contention, raised by defendant Reid, is that he was denied a fair trial by the admission of the statement by Reid’s mother that she apologized to the victim and requested her to drop the charges. Reid claims that this was highly prejudicial and impermissible hearsay.

At trial, during the State’s case in chief, the victim testified to a conversation she had with Reid’s mother nine months after the robbery. The victim was on her way to work and coincidentally met with Mrs. Reid on the train. According to the victim, Mrs. Reid apologized for “what he did” and that “she was sorry, real sorry.” The victim further testified that Mrs. Reid asked her if she would “drop the charges.” Counsel for defendant Reid did not object to this portion of the victim’s testimony.

Mrs. Reid was called as a defense witness to testify to certain facts not important to this appeal. However, in an apparent attempt to rebut the victim’s claim that Mrs. Reid had asked the victim to drop the charges, defense counsel asked her if she had in fact made such a request, to which she responded that she had not. On cross-examination, the State was allowed, over Reid’s objection, to again cover the entire conversation between the victim and Mrs. Reid.

We first face the State’s claim that defendant Reid waived any objection to the complained-of testimony for purposes of appeal. The State first asserts that defendant Reid made no objection to the testimony, and it was not raised in his written motion for a new trial, thus waiving the objection. Second, the State urges that defendant Reid’s exploration of the victim’s testimony on cross-examination of the victim and in calling Mrs. Reid as a defense witness and questioning her concerning the conversation resulted in waiver of the objections. We treat the latter contention first.

Where a defendant objects to the admission of testimony on direct examination, but then pursues a similar line of questioning on cross-examination, any error is thereby waived for purposes of appeal. (People v. Bost (1980), 80 Ill. App. 3d 933, 400 N.E.2d 734.) Similarly, where a defendant fails to object to certain testimony, and elicits the same or similar testimony on cross-examination, any error in the testimony is deemed waived. (People v. Darby (1978), 58 Ill. App. 3d 294, 374 N.E.2d 229.) Thus, we conclude that defendant Reid has waived any error concerning the victim’s testimony into which he inquired on cross-examination or on direct examination of Mrs. Reid. Our review of the record, however, shows that Reid’s inquiry into the conversation was limited to Mrs. Reid’s request that the victim drop the charges against her son. Therefore, defendant Reid has not waived any error concerning his mother’s apology to the victim based on his cross-examination of the victim or direct examination of Mrs. Reid.

The unfortunate circumstance of the victim’s testimony concerning Mrs. Reid’s apology is that severely prejudicial testimony was adduced at trial without objection and without mention in defendant Reid’s post-trial motion. The law is well settled that a defendant’s failure to object to hearsay testimony or to include such an objection in a post-trial motion as grounds for a new trial results in a waiver of the error. (People v. Key (1984), 122 Ill. App. 3d 491, 461 N.E.2d 517.) Accordingly, we may properly treat these omissions as waived on appeal. The defendant claims, however, that the testimony was so prejudicial that we should consider it as plain error. We find merit in this contention.

Under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), the court may elect to consider errors that have not been properly preserved for review where the complained-of error is so prejudicial that real justice has been denied or that the jury’s verdict may have resulted from the error. (People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369, cert. denied sub nom. Williams v. Illinois (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.) As we find that the testimony of the victim concerning Mrs. Reid’s apology, if improperly admitted, was so severely prejudicial to the defendant Reid, we elect to consider his contention under the plain-error doctrine.

The defendant argues that the apology testimony was impermissible hearsay, not within any exception, and offered to prove the truth of the matter asserted. The State insists that the hearsay was admissible because the declarant (Mrs. Reid) was available for cross-examination.

While it is true that hearsay testimony is admissible where the declarant is present at trial and available for cross-examination (People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738), we cannot find this to be the case here. Here, the apology testimony was elicited by the State from the victim. The State, however, did not call Mrs. Reid as a witness to complete the foundation for the apology testimony. Thus, the mere fact that defendant Reid called Mrs. Reid as a witness did not make her subject to cross-examination by the defendant. Although defendant Reid called Mrs. Reid as a witness, it is a general rule that a party may not cross-examine his own witness (Peo ple v. Boyd (1974), 22 Ill. App. 3d 1010, 1021, 318 N.E.2d 212; People v. Kelly (1976), 39 Ill. App. 3d 190, 350 N.E.2d 163) except under limited circumstances not applicable here. She was therefore not available to defendant Reid for cross-examination. We must therefore conclude that the victim’s testimony was impermissible hearsay.

Out-of-court statements used for purposes other than establishing the truth of the matter asserted, however, may be admissible. Such statements may be used to show state of mind of the recipient after hearing the statement (People v. Cooper (1981), 97 Ill. App. 3d 222, 422 N.E.2d 885, cert. denied (1982), 455 U.S. 945, 71 L. Ed. 2d 657, 102 S. Ct. 1442), or notice or knowledge of a certain fact (People v. Campbell (1975), 28 Ill. App. 3d 480, 328 N.E.2d 608). Prior inconsistent out-of-court statements may also be admissible if used to impeach a witness. (People v. Montgomery (1972), 51 Ill. 2d 198, 282 N.E.2d 138.) Here, the defendant argues, and we agree, that the only conceivable purpose for eliciting the apology testimony from the victim and cross-examining Mrs. Reid concerning the alleged apology-was to raise the highly prejudicial inference that the defendant’s own mother believed him to be guilty of the crimes charged. Under these circumstances, we must find that the admission of this hearsay testimony was error. Compare People v. Palmer (1979), 76 Ill. App. 3d 1014, 395 N.E.2d 713.

C

Next, defendants contend that they were denied a fair trial by the State’s use of the victim’s prior consistent statements. Defendants point to nine separate instances in the victim’s testimony, that of other State’s witnesses, and that elicited from Mrs. Reid on cross-examination, which allowed the State to bolster the victim’s in-court account of the robbery.

The victim first testified that moments after the crime, she told Mrs. Jones that she had been robbed and beaten. The victim also testified that in her phone conversation with her mother from Mrs. Jones’ house, she told her mother that she had been robbed and beaten. On defense counsel’s objection, the substance of this conversation was stricken. Later in her testimony, she described how she told Cassandra Davis that “Butch and Joe robbed me and beat me up.” She also testified that she told the investigating police officer that she was robbed at knifepoint by the defendants and recounted again how she was robbed. Finally, her conversation with defendant Reid’s mother was recounted in which the defendant testified, over defense objection, that she told Mrs. Reid all the details of the crime including that defendant Reid had used a knife. While objections were raised only to the victim’s testimony with regard to what she told her mother and Mrs. Reid, the defendants raised all of the testimony in their written motion for a new trial.

In addition to the victim’s testimony, Cassandra Davis, the victim’s father and the police officer who responded to the victim’s initial complaint all testified, without objection from the defendants, as to the substance of their conversations with the victim in detail. Furthermore, over a defense objection, the State cross-examined Mrs. Reid concerning the details of her conversation with the victim nine months after the robbery.

We again face the State’s assertion that any error based on these prior consistent statements was waived by the defendant’s failure to object at trial and the defendants’ contention that we should consider this testimony as plain error. Because the sheer volume of prior consistent statements admitted at trial may have improperly influenced the jury’s verdict of armed robbery, we elect to consider the defendant’s contentions under the plain-error doctrine. (Compare People v. Hudson (1980), 86 Ill. App. 3d 335, 408 N.E.2d 325.) Moreover, we cannot decline to consider defendants’ contention with respect to the victim’s testimony concerning her conversation with Mrs. Reid, as the defendants properly preserved their objection for our review.

It is the general rule that a witness may not testify as to statements she made out of court for the purpose of corroborating her testimony given at trial. (People v. Emerson (1983), 97 Ill. 2d 487, 501, 455 N.E.2d 41.) Exceptions to this rule allow the admission of prior consistent statements to rebut a charge of recent fabrication (97 Ill. 2d 487, 501), or where the statements qualify as spontaneous declarations. (People v. Robinson (1978), 73 Ill. 2d 192, 199, 383 N.E.2d 164.) The State argues that the prior consistent statements admitted at trial in the instant case fit within these exceptions.

Before turning to the State’s claims concerning the spontaneous declaration and recent fabrication exceptions, we must first dispose of the State’s argument that a third exception to the prior consistent statement rule is applicable here. The State, relying on People v. Rodriguez (1978), 58 Ill. App. 3d 562, 374 N.E.2d 904, maintains that prior consistent statements may be admitted to assist the jury in determining whether a witness actually made an alleged prior inconsistent statement, and that this exception is available under the facts of the instant case. The State points to particular inconsistencies, raised by the defense, between the victim’s testimony and the report she made to the police shortly after the robbery and the unexplained “attempt rape” call to which the police responded. The State argues that it was for the jury to decide whether the victim made these allegedly impeaching statements, and that the prior consistent statements were admissible to aid the jury in their determination.

Rodriguez, however, does not support the State’s argument. There, the defendant was found guilty of aggravated battery and attempted murder for shooting a patron in his tavern. A friend of the victim testified that he had observed the shooting from a table approximately eight feet from the victim. A police report, however, indicated that the witness had been in the washroom at the time of the shooting, but the officer who made the report testified that he realized his report was erroneous when he later heard the witness’ statement being given to an assistant State’s Attorney six hours after the shooting. A prior consistent statement of the witness was admitted to rehabilitate the witness’ testimony. The court held that where there is doubt as to whether an impeaching statement was ever made, a prior consistent statement may be admitted to help the jury decide whether the impeaching statement was in fact made. The court also held that the statement was proper to rebut the inference of recent fabrication raised by the defense.

Clearly, the facts of this case are distinguishable from Rodriguez. The only prior statement which arguably would allow the exception noted in Rodriguez to be applicable here was the testimony by Officer Nelson that he responded to an “attempt rape” call. However, neither Officer Nelson’s testimony nor the testimony of any other witness claimed that the victim had ever stated that the defendants attempted to rape her. Thus, unlike Rodriguez, where the police report, indicating that the witness had not observed the shooting, strongly inferred that the witness had actually made such a statement, here there is no indication that the “attempt rape” call was related to any statement made by the victim to the police. In fact, the testimony shows that the victim was not the person who initially reported the crime to the police. Therefore, we cannot find that a doubt was raised concerning whether the victim ever made such an impeaching statement which would trigger the claimed exception.

The State also maintains that the complained-of statements were admissible as spontaneous declarations. For a statement to be considered admissible as a spontaneous declaration, three elements must be present: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Robinson (1978), 73 Ill. 2d 192, 199, 383 N.E.2d 164.) Moreover, while time elapsed is material in determining spontaneity, it is not controlling, and a court must determine from the entirety of surrounding circumstances whether there was opportunity for reflection and invention. (People v. Chatman (1982), 110 Ill. App. 3d 19, 26, 441 N.E.2d 1292.) Furthermore, statements made in response to a general inquiry as to what occurred may nonetheless be spontaneous declarations. (People v. Grover (1983), 116 Ill. App. 3d 116, 120, 451 N.E.2d 587.) However, repetition or discussion of the facts removes the immediacy required for spontaneous declarations. People v. Robinson (1978), 73 Ill. 2d 192, 199.

Applying the above principles to the case at bar, we have no difficulty in finding, and indeed the defendants all but concede, that the victim’s statement that she was robbed and beaten, made to Mrs. Jones seconds after the robbery ended, was admissible as a spontaneous declaration. In the same vein, we clearly cannot find that the victim’s testimony concerning what she told Mrs. Reid about the robbery nine months later was a spontaneous declaration.

The other prior consistent statements, likewise, are not spontaneous declarations. Although we have considered the State’s contentions that these statements were all made within one-half hour to 45 minutes after the robbery and the fact that the witness was visibly upset, our consideration of the entirety of the circumstances surrounding the statements convinces us that the statements lacked the immediacy required. When Cassandra Davis telephoned the victim, she did not blurt out the details of the crime, but volunteered them only upon Cassandra’s inquiry as to what had happened. We note also that this was at least the third time the victim had made an account of the crime and that the victim had the presence of mind to ask Cassandra the names of the defendants. In addition, her very detailed account of the robbery to the police was a repetition and apparently the first mention of the use of knives by the defendants. As these latter statements were repetitions made some time after the event and in response to questioning, we conclude that they were not spontaneous declarations.

The State also contends that admission of the prior consistent statements was proper to rebut defendants’ charge that the victim’s testimony was fabricated or that she was motivated to testify falsely. We cannot agree.

It is well settled that prior consistent statements are admissible only to rebut a recent fabrication or motivation to testify falsely. (People v. Emerson (1983), 97 Ill. 2d 487, 501, 455 N.E.2d 41.) It is clear from the record in this case that, if the defense raised any inference, it was that the victim’s story was fabricated from the very start, especially with respect to the defendants’ use of knives. We therefore conclude that the prior consistent statements were not admissible for the claimed purpose. As none of the exceptions to the rule barring the admission of prior consistent statements are applicable to the instant facts, we conclude that their admission in this case was error.

Ill

The State also contends that the errors discussed above, even if improper, did not play a material role in defendants’ convictions in light of the overwhelming evidence of defendants’ guilt. While we may agree that each of defendants’ contentions, standing alone, did not constitute reversible error, when considered together each compounds the other. Accordingly, we cannot say that, when considered as a whole, such errors were harmless or that they did not contribute to defendants’ convictions. Cf People v. Connors (1980), 82 Ill. App. 3d 312, 322, 402 N.E.2d 773.

In summary, while we find that the victim’s testimony was sufficient to sustain the defendants’ convictions, the (1) admission of “other crimes” evidence, (2) inference of guilt raised by the victim’s testimony concerning Mrs. Reid’s apology, and (3) gross corroboration of the victim’s testimony by improper prior consistent statements severely prejudiced the defendants’ rights to a fair trial. Our determination that the errors discussed mandate a new trial in this case precludes the necessity of reviewing the defendants’ remaining claims of error.

For all of the above reasons, the judgment of the circuit court of Cook County finding defendants guilty of armed robbery is reversed and this cause is remanded for a new trial.

Reversed and remanded for a new trial.

JOHNSON and ROMITI, JJ., concur.


author: PRESIDING JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE O. WALKER, Defendant-Appellant.
    Second District
    No. 84—308
    Opinion filed January 17, 1985.
    G. Joseph Weller and Manuel Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Andrea Becker, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE NASH

After a bench trial, defendant, Jessie 0. Walker, was convicted of the offense of unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10— 3(a)) and was sentenced to a term of 30 months’ probation and to 50 hours of public service. Defendant appeals, contending he was not proved guilty beyond a reasonable doubt as the victim of the alleged offense was defendant’s minor child over whom he was lawfully exercising a parental right to custody and control.

Defendant and his wife, Yera, were separated and she was living in a residence in Wheaton with their 2/2-year-old son, Brynell. Defendant came to the house at 8:30 a.m. on December 6, 1982, to visit with his son, which Vera allowed, and during the visit defendant wrote a suicide note which he gave to Vera to read. In it he said that he no longer wished to live, or to let his son live, in a world like this. The note also stated “[tjhere is only one way out for us[.] I will take my wife with us if we can’t live as a family then let us die as one.” Defendant produced a knife and asked Vera to sit down with him; she declined and, saying she was getting coffee, went into the kitchen and out the back door. Vera called the police from a neighbor’s house.

Vera testified defendant had a good relationship with his son and had not pointed the knife at either her or Brynell. She was frightened when she left the house and stated she was “concerned about both of them, but mostly Brynell.” When the police arrived at 11:15 a.m., Vera asked defendant to release the boy, but he refused. He also refused police requests to release the child and threatened to level the house if they tried to enter.

The standoff continued until about 2 p.m., when defendant allowed the child to leave the house. In the interim, defendant held the boy to a window, when requested by the police, so they could see he was unhurt. At about 1 p.m. officers noted a strong odor of natural gas emanating from the house and had the gas supply to the house shut off. Officers also noted flashes of light from inside the house and, when they subsequently entered, found an electrical cord which had been stripped and that all the burners on the gas stove had been turned on. When the officers entered the house after the child had been released, defendant was seated upon a radiator holding a knife to his stomach. He threatened to stab himself and was subdued by the officers.

Defendant testified he came to the house in which his wife was living only to visit their son. He acknowledged writing the note and stated he wanted some time with the boy before killing himself. Defendant had no matches and stated there had been an accidental spark when he was splicing the electrical cord. He said that the boy played with his toys and watched television during this period and never asked to leave.

Defendant argues that as his son was not injured and as defendant was visiting the child with the mother’s permission, he acted with lawful parental authority in detaining him in these circumstances, as the unlawful restraint statute does not apply to the parent-child relationship.

Section 10—3(a) of the Criminal Code of 1961 provides:

“A person commits the offense of unlawful restraint when he knowingly without legal authority detains another.” Ill. Rev. Stat. 1981, ch. 38, par. 10—3(a).

A parent’s right to exercise authority over a child is broad, but it is not absolute. In matters of discipline or punishment, a standard of reasonableness has been applied to determine whether a parent’s conduct towards his child was legally justified and authorized by law. (People v. Ball (1974), 58 Ill. 2d 36, 39, 317 N.E.2d 54; People v. Warner (1981), 98 Ill. App. 3d 433, 435, 424 N.E.2d 747; People v. Virgin (1978), 60 Ill. App. 3d 964, 968, 377 N.E.2d 846.) In Ball and Virgin the test of reasonableness was considered in finding that the physical injuries there inflicted for punishment by a parent, or one standing in loeo parentis, were not legally justified so as to be a defense to charges of battery. In Warner, a parent’s conviction for unlawful restraint was sustained where the punishment imposed upon a child was unreasonable confinement in an unventilated room for an extended period.

In each of the above cases to which we have referred, the courts relied upon Fletcher v. People (1869), 52 Ill. 395, in which our supreme court upheld the conviction of defendant for false imprisonment of his own child. Fletcher had confined his blind son in an unheated cellar for several days in winter in an effort to rid the boy of a vermin infestation. The reviewing court rejected defendant’s argument he was merely exercising his lawful parental authority over the child and noted that while parents do have a large discretion in the exercise of authority over their children, “this authority must be exercised within the bounds of reason and humanity. If a parent commits wanton and needless cruelty upon his child, either by imprisonment of this character or by inhuman beating, the law will punish him.” 52 Ill. 395, 397.

In our view, just as a parent must conform to a standard of reasonableness when punishing his child, so too must he when confining or detaining the child for reasons other than punishment.

In the present case defendant admits he initially intended to take his own life together with the lives of his child and wife. After his wife left the house, defendant turned on the gas jets and apparently attempted to ignite the fumes with an electrical spark; he also exhibited a knife in a threatening manner. It was in this context that defendant over a three-hour period of time refused to release the young child to either the mother or police officers, and threatened to level the house if the officers tried to enter it.

We agree with the trial court that in these circumstances defendant’s detention of the child was unreasonable and without lawful authority. We reject defendant’s argument he was merely exercising his parental right to visit with his son and was thus authorized to detain the child. Defendant was not immune from prosecution for unlawful restraint in these circumstances, and his conduct towards the child was subject to the standard of reasonableness. That is the rule Illinois reviewing courts have applied in cases relating to physical punishment of a child by a parent, and it appears also to have been applied by the court in Fletcher v. People (1869), 52 Ill. 395, to parental detention of a child which was not intended as punishment. See contra, State v. Lawrence (1983), 135 Ariz. 569, 663 P.2d 561.

Defendant agrees his conduct was not rational and was misguided and ill-advised; while he does not state that it was a reasonable exercise of parental authority to hold the child hostage in that dangerous and volatile situation without the protection of law, such would be the result should we sustain his argument. We do not do so.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

STROUSE and UNVERZAGT, JJ., concur.

      The present offense of unlawful restraint has replaced the former offense of false imprisonment. (Ill. Ann. Stat., ch. 38, par. 10—3, Committee Comments, at 586 (Smith-Hurd 1979).)