author: MR. JUSTICE WARD MR. JUSTICE CLARK,

text:
    (No. 52573.
    FREEMAN UNITED COAL MINING COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Allen Horn, Appellee).

      Opinion filed, July 18, 1980.

    Rehearing denied September 26, 1980.

      CLARK, J., dissenting.
    Carter Harrison and Elmer Jenkins, of Benton, for appellant.

      Lindholm & Williamson, of Peoria (Harold G. Lindholm and Nile J. Williamson, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The claimant, Allen Horn, filed an application for adjustment of claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1 et seq.) with the Industrial Commission on April 6, 1973, for injuries suffered as the result of an accident on December 23, 1971, in the course of his employment with the respondent, Freeman United Coal Mining Company. While the proceedings before the arbitrator were not made a part of this appeal, it appears from representations made by counsel for the respondent that the accident consisted of a cave-in at a mine in which Horn was working, and that his injuries included multiple fractures of the pelvis and serious injuries to one leg. Following the accident Horn never returned to work with the respondent or elsewhere.

On April 29 the arbitrator rendered a decision finding that Horn was permanently and totally disabled, and awarded him a lifetime pension. Horn’s award also included a sum for all medical and hospital services incurred up to that time. The record does not indicate that any administrative or judicial review was taken of the award, and its propriety is not an issue in this proceeding.

In 1978 Horn filed a petition under section 8(a) of the Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(a)) requesting that the respondent be ordered to pay unpaid bills aggregating some $5,500, covering various additional medical and hospital services rendered following the award, for conditions he alleged to be the product of the original injury. After a hearing the Commission issued an order that the payments be made, and its decision was confirmed by the circuit court for Franklin County. The respondent has appealed to this court under Rule 302(a)(2). 73 Ill. 2d R. 302(a)(2).

In 1971, when the accident occurred, section 8(a) provided in pertinent part:

“The employer shall provide the necessary first aid medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.
The employee may elect to secure his own physician, surgeon and hospital services at his own expense.” (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(a).)

Effective July 1, 1975, section 8(a) was amended to make the provisions quoted above read as follows:

“The employer shall provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury. ***
The employee may at any time elect to secure his own physician, surgeon and hospital services at the employer’s expense ***.” Ill. Rev. Stat. 1975, ch. 48, par. 138.8(a).

It was held in Health & Hospitals Governing Com. v. Industrial Com. (1978), 72 Ill. 2d 263, that the 1975 amendment is not applicable to claims arising from an accident occurring prior to that date, and the parties concede that it therefore does not apply here.

Horn’s evidence in support of his petition consisted of his own testimony and of five exhibits, four of which were the hospital bills which he sought to have paid by the respondent. The admission of each of these was objected to by the respondent on various grounds. The fifth exhibit was a report by a Dr. George E. Roulhac of an office examination of Horn made on March 17, 1978. This exhibit was admitted without objection. Counsel for the respondent conducted no cross-examination of Horn.

The respondent’s case consisted of an evidence deposition by Dr. John G. Gregory, which was introduced by agreement, and the testimony of Harry A. Treadwell, who had been the respondent’s manager of workmen’s compensation since 1970 and was acquainted with Horn’s case. Treadwell testified that under the respondent’s claims procedure all bills for medical and hospital services had to be submitted to him for approval before being paid.

In 1977 Horn consulted Dr. Palagiri of Carbondale regarding a malfunction of his bladder. Dr. Palagiri treated Horn for this condition and succeeded in remedying it. According to Treadwell, Dr. Palagiri submitted a bill to the respondent which Treadwell approved for payment. The bill itself is not included in the record, and Treadwell did not testify as to the date when he received it. When asked whether he believed that the bladder condition was related to the particular injury for which Horn had been awarded compensation, the witness replied that he did, “since Horn had had multiple fractures of the pelvis in that area.”

Apparently as the result of complaints by Horn of impotence, Dr. Palagiri referred him to Dr. Kenneth Smith of St. Louis, a neurologist. Dr. Smith in turn referred Horn to Dr. John G. Gregory, a urologist, who examined Horn on March 28, 1977. Both in the consultation with Dr. Smith and in that with Dr. Gregory, according to the latter, Horn registered complaints of his impotence. Upon learning of Horn’s earlier consultations with Dr. Palagiri, Dr. Gregory secured from the latter his records of the diagnosis and treatment of Horn’s bladder problem.

Horn was admitted to a St. Louis hospital on April 11, 1977, where Dr. Gregory implanted a prosthetic device to correct the impotence. Horn was discharged on April 21. Both Dr. Gregory and Horn himself testified that the surgery had corrected Horn’s condition. Two of the bills introduced in evidence relate to the professional services of Dr. Gregory and to related hospital charges in connection with the surgery which he had performed.

A third bill was from St. Joseph’s Memorial Hospital in Murphysboro, for physical therapy on Horn’s left leg for 10 to 30 days on or about November 2, 1977.

The remaining bill was from the S emmes-Murphey Clinic in Memphis, Tennessee, where Horn had been sent for a neurological consultation in connection with his back and leg. The bill is dated June 6, 1978, and bears the notation that it was 60 days past due, so that the consultation would have taken place around April 6.

Treadwell testified that the first bill which he recalled receiving was one sent by Dr. Gregory for a “penile prosthesis,” and that he had received the bill on May 4, 1977. The two bills admitted in evidence which related to the surgery performed by Dr. Gregory were dated August 8, 1977, and May 31, 1978. Neither one uses the term “penile prosthesis,” so that the bill referred to by Tread-well must have been an earlier one. Treadwell had not understood the meaning of the term, and when Horn happened to come into the office a few days later “on another matter,” Treadwell testified, he showed Horn the bill and asked him for a layman’s explanation of the procedure, which Horn supplied. Treadwell then told Horn that the respondent would not pay the bill.

The respondent’s first contention is that the prosthesis was not reasonably required to cure or reheve from the effects of the accident of December 23, 1971. This effort to restrict Horn’s claim to the expenses of the prosthesis disregards, of course, the fact that only two of the bills for which payment was sought concerned the prosthesis. The bills from the Semmes-Murphey Clinic and from St. Joseph’s Memorial Hospital, according to Horn’s uncontroverted testimony, were each for teatment of Horn’s injured back and leg.

More importantly, the respondent’s thesis represents a restrictive reading of section 8(a) unwarranted by the decisions of this court. The causal connection between Horn’s original injuries, on the one hand, and both his incontinence and his impotence, on the other, was testifled to by the respondent’s witness, Dr. Gregory. Commenting on the fact that Horn had had both a bladder problem and had experienced impotence, the witness stated:

“Well, I thought that was of extreme significance, because from the history that Mr. Horn gave as to the initiation of this difficulty that he had following a back trauma, the correlation between neurogenic bladder disease, the inability of the bladder to empty in the normal fashion, and impotency are very often seen together, so that I would expect to see the two.”

Dr. Gregory went on to state:

“I don’t believe that the bladder condition affects the erection, or that the erection affects the bladder condition. I would think that a common primary problem would bring about both of those.”

In his report of March 17 Dr. Roulhac also stated, “I do not think there is any doubt but that the sex problems he has had are related to his back injury.”

The respondent argues, however, that the treatment of Horn’s impotence was not, in the language of section 8(a), “reasonably required to cure or relieve from the effects of the accidental injury,” since its cure could not undo the multiple fractures to his pelvis. Such a restrictive reading of section 8(a) was rejected as long ago as W. J. Newman Co. v. Industrial Com. (1933), 353 Ill. 190. It was held in Newman that a claimant who had suffered a fractured spine and paralysis of the legs from the hip down and had received an award for permanent total disability was entitled to be compensated for treatment needed to cope with further consequences of those injuries. The court stated: “A workman who is cured is, of course, relieved from the effects of his injury, but one who is incurable, as in the present case, may still need skillful attention to relieve him of pain or other injurious effects caused by his injury.” 353 Ill. 190, 194. See also Florczak v. Industrial Com. (1942), 381 Ill. 120, 126-27; Efengee Electrical Supply Co. v. Industrial Com. (1967), 36 Ill. 2d 450, 452-53.

The respondent next urges that Horn incurred the costs of obtaining the prosthesis without notice to or authority from the respondent, and thus must be regarded as having elected to secure these services at his own expense. Here again the respondent has given an incorrect and an unduly restrictive reading to section 8(a).

In view of Treadwell’s testimony denying any advance notice of Horn’s desire for treatment of his impotence, and since Horn did not testify to the contrary, it must be conceded that no advance notice or request was shown to have been given. That consideration is not dispositive, however, for an employer may still be held liable if he was “in possession of facts from which he might reasonably be presumed to know or to believe that such services were necessary.” City of Chicago v. Industrial Com. (1959), 18 Ill. 2d 132, 136-37; cf. Quaker Oats Co. v. Industrial Com. (1953), 414 Ill. 326, 337-39; Keystone Steel & Wire Co. v. Industrial Com. (1978), 72 Ill. 2d 474, 484-85.

The report of Dr. Roulhac of March 1978, to the admission of which the respondent, as noted above, did not object, marks this case as one in which the respondent was aware of facts that would put it on notice that Horn might require additional medical services following the award. That report, which was directed to the respondent and to Dr. William Thornburg, presumably associated with the respondent, states:

“Allen Horn comes up here today for re-evaluation. [The report then describes the medical referáis and the treatment for impotence.] His complaint today is that he has not so much pain as numbness in his left foot, lateral calf and also on the right side. He has a little pain from time to time in his left hip but he does not stress this and obviously moves around with greater ease than before. He was seen by Dr. Otto’s group in Cape who referred him to the Memphis neurosurgeons who saw him and referred him back to me.”

After further discussion of the present condition of Horn’s spine and leg, Dr. Roulhac went on to suggest the possibility that Horn might be developing a spinal stenosis. He stated that he advised Horn that if that hypothesis should be confirmed, the writer might “consider doing a decompression laminectomy in the lumbar region.”

The respondent’s witness Treadwell was asked a few questions on cross-examination in an unsuccessful attempt to ascertain what role was played by the respondent in Dr. Roulhac’s examination of Horn. Treadwell stated that he had not arranged for the examination, and that he did not know who had. He also stated that he did not know if Horn had been examined or treated by Dr. Roulhac at any time prior to March 1978. He admitted, however, that in some cases the respondent had referred claimants to Dr. Roulhac, and he stopped short of testifying that the respondent had not instituted a program of examining Horn from time to time to ascertain the condition of his back and leg.

The record does not show that Dr. Roulhac submitted a bill to Horn, and the Commission could legitimately infer from that fact, from the report’s statement that Horn had come up for “re-evaluation,” from the range and extent of the report, and from the guarded testimony of Tread-well, that Dr. Roulhac was acting on behalf of the respondent and had not been engaged by Horn as his personal physician.

It seems unlikely that Horn would not have informed the medical personnel retained by the respondent who were examining him of his concern over impotence prior to his having seen Dr. Gregory. We are struck, too, by the apparent inconsistency between Treadwell’s willingness to authorize payment for the medical services rendered by Dr. Palagiri, as to which the testimony also fails to show any advance notice or request, and Treadwell’s later refusal to assume liability for Dr. Gregory’s services.

The respondent’s continuing contact with and examination of Horn sets this case apart from City of Chicago v. Industrial Com. (1959), 18 Ill. 2d 132, and Board of Trustees v. Industrial Com. (1978), 71 Ill. 2d 287, in each of which an allowance of medical expenses was set aside. In the first of these cases the claimant, after treatment by his employer for broken ribs and other injuries incurred when he was run over, had been released by the employer’s physician and told to return to work. The claimant did not do so. Instead, since he still felt pain in his chest, he entered a different hospital on his own initiative and without his employer’s knowledge. He was diagnosed as having tuberculosis, and subsequently parts of one lung were removed.

In the second case cited above, the claimant, who was employed as a construction laborer, suffered a back injury which was diagnosed as requiring only conservative treatment. He was discharged from the hospital as requiring no further treatment but with the treating physician’s recommendation that he obtain a lighter type of work. This the claimant did, but with a different employer. Upon a recurrence of pain in his back he consulted a doctor of his own choosing, who determined that he had suffered a herniated disc and performed a lumbar laminectomy.

The respondent also objects on two grounds to the admission of the medical bills. The first ground is that the bills were not properly “authenticated,” since they did not disclose the identity of the physician, the nature of the service rendered, and the date of treatment. The bills which were introduced in evidence were not those originally sent to Horn, and consequently they omitted some information which would have been contained in the original bills. The testimony of Horn and Dr. Gregory did supply the material facts, however, and if the respondent desired further details it could have made inquiry of these witnesses. See Com Products Refining Co. v. Industrial Com. (1949), 402 Ill. 250, 252.

The second ground of objection is that no showing was made that the charges billed were reasonable. It may be, as suggested in Wicks v. Cuneo-Henneberry Co. (1925), 319 Ill. 344, 348-49, cited by the respondent, that since Horn had not paid any of the charges in question, the respondent should not have been ordered to pay them without evidence that they were usual and customary. The only point made here, however, is that the bills for that reason ought not to have been admitted. The respondent has waived that point by failing to urge it before the Commission.

For the reasons given, the judgment of the circuit court is accordingly affirmed.

Judgment affirmed.

MR. JUSTICE CLARK,

dissenting:

I am constrained to dissent for two reasons. First, the majority has misapplied section 8(a) as it existed in 1971. The claimant personally obtained medical services and the respondent should not be compelled to pay for them. Second, the majority has made assumptions which are not only unsupported by the evidence but also do not lead to the conclusions the majority has drawn.

As the majority correctly points out, the law in effect at the pertinent time stated that an employee who elected “to secure his own physician, surgeon and hospital services,” without notice to his employer, so elected at his own expense (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(a)). We clearly explained the requirements in Health & Hospital Governing Com. v. Industrial Com. (1978), 72 Ill. 2d 263, 272-73:

“Under the law as it stands without the amendment, an employee may recover medical expenses for personaUy obtained services if the treatment is necessary and the employer was aware of such treatment. (Bell & Gossett Co. v. Industrial Com. (1972), 53 Ill. 2d 144, 150-51; Barricks Corp. v. Industrial Com. (1969), 44 Ill. 2d 9, 14; Quaker Oats Co. v. Industrial Com. (1953), 414 Ill. 326, 338.) The employee must make a claim upon the employer for medical services, and the claim must be sufficient to apprise the employer of the employee’s desire for treatment and to allow the employer the opportunity to provide such treatment. (Barricks Corp. v. Industrial Com. (1969), 44 Ill. 2d 9, 14; American Distilling Co. v. Industrial Com. (1968), 40 Ill. 2d 350, 352.) Where the employee justifiably concludes that the employer has disclaimed responsibility for medical care and seeks treatment elsewhere, that will not be deemed a decision to ‘elect to secure his own physician, surgeon and hospital services at his own expense’ (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(a)) within the meaning of the Act. Barricks Corp. v. Industrial Com. (1969), 44 Ill. 2d 9, 14; Jewel Tea Co. v. Industrial Com. (1968), 39 Ill. 2d 180, 183-84.”

While it is true that the claimant sent the bills to the respondent after medical services had been rendered, that could hardly be deemed to be compliance with the statute. The crucial point is that the claimant did not make a claim for medical services prior to obtaining them in 1977, and he did not afford the respondent any opportunity to provide such treatment. Furthermore, since he did not make a claim upon the respondent, the claimant could not possibly be justified in concluding that the respondent disclaimed responsibility for his medical care. Moreover, since the claimant’s injury occurred in 1971 and he was not employed by the respondent when, six years later, he sought medical services, it is difficult to understand how any knowledge by the employer could be inferred. Therefore, the claimant made the election to seek his own medical services and must bear the cost himself.

I also disagree with the unsupported conclusions the majority draws from the evidence. The majority misunderstands a significant fact in discussing Dr. Roulhac’s report. The majority finds that the Commission could infer— from the facts that the record contains no bill from Dr. Roulhac and that the report spoke of “re-evaluation” of the claimant, and from the range and extent of the report and the “guarded” testimony of respondent’s manager of workmen’s compensation — that Dr. Roulhac was acting on behalf of the respondent and had not been engaged by Horn as his personal physician.

I am unclear whether the majority discusses Dr. Roulhac’s role in the case because it assumes either that Dr. Roulhac somehow acted as a representative of the respondent or that Dr. Roulhac’s participation in the case was due somehow to a connection to Dr. Gregory. In either event, there is no evidence to support such an assumption.

First of all, it is a puzzle how the fact that no bill to any person from Dr. Roulhac was admitted into evidence signifies that Dr. Roulhac acted on behalf of respondent. Also, the fact that Dr. Roulhac speaks of re-evaluation of the claimant in his March 17, 1978, report does not establish in any clear or logical manner the inference that the respondent was privy to a prior evaluation or that a prior evaluation, if any existed, took place before the claimant’s surgery in April 1977. Next, the range and extent of the report merely indicate that, as of the late date of March 1978, the respondent had obtained knowledge of the insertion of a penile prosthesis. It is advance notice (which is conceded not to have existed (81 Ill. 2d at 342)), which is required by section 8(a), not notice of the need for medical services 11 months after they have been rendered. Finally, the majority speaks of Treadwell’s “guarded testimony.” The majority states: “Treadwell was

asked a few questions on cross-examination in an unsuccessful attempt to ascertain what role was played by the respondent in Dr. Roulhac’s examination of Horn. Treadwell stated that he had not arranged for the examination, and that he did not know who had. *** [H]e stopped short of testifying [i.e., he did not testify] that the respondent had not instituted a program of examining Horn” periodically to determine the condition of his back and leg. (81 Ill. 2d at 343.) It seems to me that to say Treadwell’s testimony was guarded is somewhat of an exaggeration. In reality, Treadwell merely testified that the respondent had no advance notice of claimant’s need for medical services in 1977, that he did not order an examination by Dr. Roulhac in 1978, and that he did not know who might have, although the respondent did sometimes refer patients to Dr. Roulhac; finally, Treadwell did not state that the respondent had not re-examined the claimant periodically concerning his back and leg. How any of the foregoing negative factors — or, more properly, inferential leaps — can lead one to the conclusion that Dr. Roulhac acted on behalf of the respondent is beyond my comprehension. Also, even assuming Dr. Roulhac did act for the respondent, his report, even if “re-evaluative,” in no way indicates that the respondent had notice prior to April 1977, when the surgery was performed.

In short, there is no explanation from the majority as to how Dr. Roulhac’s knowledge, even if one accepts the inplausible conclusion that it is imputable to the respondent, reflected in a report written 11 months after the claimant’s surgery, is able to support the inference that the respondent knew of the surgery prior to its transpiring. Such a conclusion is especially difficult to accept since the opinion concedes that the respondent had no advance knowledge of the surgery. (81 Ill. 2d at 342.) This central contradiction compels me to dissent.


source: Caselaw Access Project

author: MR. JUSTICE RYAN

license: Public Domain

text:
    (No. 52202.

      In re ESTATE OF MARJORIE WILSON (The People of the State of Illinois, Appellant, v. Elmer H. Wilson, Ex'r, Appellee).

      Opinion filed. June 20, 1980.

    Rehearing denied September 26, 1980.

      William J. Scott, Attorney General, of Springfield (Gail A. Moreland, Paul J. Bargiel, and Patricia Rosen, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Robert W. Cook and William G. Kellar, Jr., of Schmiedeskamp, Robertson, House, Neu & Mitchell, of Quincy, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Elmer H. Wilson is the executor of the estate of his wife, Marjorie Wilson, who died on July 14, 1973. At the time of her death she held a checking account, United States government bonds, 1,610 shares of Moorman Manufacturing Company stock, and real estate — all in joint tenancy with her husband, Elmer Wilson. Mr. Wilson filed an Illinois inheritance tax return and listed the joint tenancy property on the appropriate schedule, but he claimed that the property was not subject to inheritance tax because the decedent made no contribution to the acquisition of the above property. Objections to the return were filed by the Illinois Attorney General. The circuit court of Adams County held that evidence of resulting trust was admissible, but that the stipulated facts were insufficient to establish a resulting trust. Therefore, inheritance tax was due on the jointly held property. The appellate court reversed, finding that a resulting trust existed in the case of the 1,610 shares of Moorman Manufacturing Company stock and the checking account, thus enabling Mr. Wilson to avoid the inheritance tax under section 375(5) of the Illinois inheritance and transfer taxes law (Ill. Rev. Stat. 1973, ch. 120, par. 375(5)). (71 Ill. App. 3d 882.) We granted the State’s petition for leave to appeal.

The primary issue is whether, upon the death of Mrs. Wilson, there transferred a sufficient interest in the property she held in joint tenancy with Mr. Wilson to be taxable under the Illinois inheritance and transfer taxes law.

The following facts were stipulated to by the parties. Elmer and Marjorie Wilson were married on October 7, 1931. Mrs. Wilson was never employed during the marriage, and she never received any assets from her family other than personal items of little intrinsic value. Mr. Wilson was employed by the Moorman Manufacturing Company, whose bylaws provided that only stockholders could be directors in the company. Mr. Wilson became a director on May 11, 1943, and general manager on October 5, 1943. He made his first purchase of 150 shares of stock in 1942. These were purchased entirely with Mr. Wilson’s contribution and were registered solely in his name. He next purchased stock in 1945, but this time he had the stock registered “Elmer H. Wilson and Marjorie D. Wilson, his wife, in joint tenancy with the right of survivorship.” Mr. Wilson chose that form of registration to make less expensive and simpler the transfer of the stock to his wife on his death. He intended that she have “a right of survivorship,” but he did not intend to give her any present interest in the stock. In 1946, Mr. Wilson changed the registration on his original 150 shares of stock to joint tenancy with his wife. At other times during 1946 he purchased additional stock in the company and registered it all in joint tenancy with his wife.

In 1947, C. A. Moorman, the president of the Moor-man Manufacturing Company, offered Mr. Wilson a gift of 500 shares of Moorman stock, but, at Mr. Wilson’s suggestion, the shares were given to Mrs. Wilson and registered in her name. Mr. Wilson purchased additional shares of stock in his name and his wife’s as joint tenants so that by August 3, 1950, 1,610 shares were registered in the names “Elmer H. Wilson and Marjorie D. Wilson, his wife, in joint tenancy with right of survivorship.” The jointly held shares were purchased entirely with Mr. Wilson’s contribution, and he considered the joint shares to be his alone and at no time did he intend that his wife have a present interest in them, although he did intend that she receive them on his death. All dividend checks on the joint stock were made payable to “E. H. Wilson” alone, and he always voted the stock, even though Mrs. Wilson never signed a proxy.

A checking account at the Mercantile Trust and Savings Bank, Quincy, was opened in 1933 by Mr. Wilson, as an individual account. In 1943 he changed the registration of the bank account to joint tenancy with Mrs. Wilson. In so doing it was not Mr. Wilson’s intent to give his wife any present interest in the account, but only to make for an easy transfer upon his death.

Mr. and Mrs. Wilson held other assets in joint tenancy, including shares of Investors Mutual, Inc., United States savings bonds, and a home located in Quincy. While the contributions for these assets came solely from Mr. Wilson, the trial court found no indication in the stipulation of his intent at the time of their acquisition that he retain the beneficial interest in this property. We are not concerned with these items of property on this appeal.

After Marjorie Wilson’s death, her husband and surviving joint tenant was appointed executor under her will and in that capacity filed an Illinois inheritance tax return. He listed the joint tenancy property on the appropriate schedule, but claimed it was for informational purposes only and not property that was subject to taxation in Marjorie’s estate.

The Attorney General filed objections to the return, arguing that section 1(5) of the Illinois inheritance and transfer taxes law (Ill. Rev. Stat. 1973, ch. 120, par. 375(5)) is specifically intended to cover all assets held in joint tenancy regardless of the contribution of each joint tenant. Since the property is held or registered in joint tenancy, it is argued that the inheritance tax was properly assessed and any extraneous circumstances regarding contribution or equitable ownership are irrelevant.

The executor, Mr. Wilson, argued that although the property was held in the form of joint tenancy, the court should impose a resulting trust because of his intent that Mrs. Wilson not have a present interest. The circuit court agreed with the executor that a court could look to the circumstances surrounding the ownership of the property and impose a resulting trust, but held the facts were insufficient to impose one. The appellate court disagreed with this conclusion and found a resulting trust as a matter of law as to the 1,610 shares of Moorman Manufacturing Company stock and the checking account held in joint tenancy, based on the source of the contributions used to purchase the property and the stipulated intent of Mr. Wilson. They did not find a resulting trust on the other jointly held property due to a lack of evidence of Mr. Wilson’s intent. The appellate court then held that since there was a resulting trust for the benefit of Elmer Wilson, no beneficial interest passed to him on his wife’s death; thus, no tax could be imposed on the assets under section 1(5). We do not agree with the appellate court’s conclusion.

The rules for establishing a resulting trust are the product of judicial construction. A resulting trust, characterized as an “intent enforcing” trust (G. Bogert, Trusts and Trustees sec. 451, at 611 (2d ed. rev. 1977)), is created by operation of law and has its roots in the presumed intention of the parties. (Wright v. Wright (1954), 2 Ill. 2d 246, 250; Craven v. Craven (1950), 407 Ill. 252, 260; Tuntland v. Haugen (1948), 399 Ill. 595, 602; Murray v. Behrendt (1948), 399 Ill. 22, 28; Cook v. Blazis (1937), 365 Ill. 625, 628; Tritchler v. Anderson (1929), 334 Ill. 211, 215-16.) This court has, in a variety of factual situations, made the following observations. A purchase money resulting trust generally arises where one person purchases property with his own funds and title is taken in the name of another. (Suwalski v. Suwalski (1968), 40 Ill. 2d 492, 495; Wright v. Wright (1954), 2 Ill. 2d 246, 250; Kane v. Johnson (1947), 397 Ill. 112, 117;Link v. Emrich (1931), 346 Ill. 238, 242.) Resulting trusts arise at the instant legal title is taken. (Craven v. Craven (1950), 407 Ill. 252, 260, Murray v. Behrendt (1947), 399 Ill. 22, 28; Spina v. Spina (1939), 372 Ill. 50, 56.) The trust is founded “upon the natural equity that he who pays for the property should enjoy it, unless he intended by the vesting of title to confer a beneficial interest upon the grantee.” (Bowman v. Pettersen (1951), 410 Ill. 519, 524.) The burden of proof is upon the party seeking to establish a resulting trust and the evidence must be clear, convincing and unmistakable. (Wright v. Wright (1954), 2 Ill. 2d 246, 251; Jones v. Keopke (1944), 387 Ill. 97, 104; Paluszek v. Wohlrab (1953), 1 Ill. 2d 363, 366; Heineman v. Hermann (1943), 385 Ill. 191, 199.) The payment of consideration raises a prima facie presumption of a resulting trust which may be rebutted by proof of an intention that the grantee take a beneficial interest and not merely legal title. The purchaser’s intention must be gathered from the facts and circumstances of each individual case. Bowman v. Pettersen (1951), 410 Ill. 519, 524; Peters v. Meyers (1951), 408 lb. 253, 258; Dodge v. Thomas (1914), 266 Ill. 76, 87.

Since the law surrounding resulting trusts was created to enforce the intent of the parties, certain rebuttable presumptions have evolved based on the relationship of the parties. Where a husband purchases property and title is taken in the name of his spouse, a rebuttable presumption of a gift arises. (Scanlon v. Scanlon (1955), 6 Ill. 2d 224, 231.) A presumption of gift also arises where the husband pays the purchase price but ownership is taken in joint tenancy with his wife. It is deemed to have been intended by the husband that the wife should have the right to half the benefits for the life of each and, if she survives him, she should be the full owner. (Abraham v. Abraham (1949), 403 Ill. 312, 314-15; Stromsen v. Stromsen (1947), 397 Ill. 260, 262; Spina v. Spina (1939), 372 Ill. 50, 56; United States v. Trilling (7th Cir. 1964), 328 F.2d 699, 701.) The burden is upon one questioning the gift to overcome the presumption by clear, convincing, unequivocal and unmistakable evidence. Suwalski v. Suwalski (1968), 40 Ill. 2d 492; Wright v. Wright (1954), 2 Ill. 2d 246; Paluszek v. Wohlrab (1953), 1 Ill. 2d 363; Jones v. Koepke (1944), 387 Ill. 97.

In the present case the trial court ruled that there was insufficient evidence to rebut the presumption of a gift to Mrs. Wilson. However, the appellate court disagreed, based on the holding in Ludwig v. Ludwig (1952), 413 Ill. 44. In Ludwig, the husband purchased a house with his own funds, but title was taken in the names of the husband and wife jointly. The attorney explained to the parties at the time of the conveyance that title was taken in that manner for convenience so as to avoid the expense of probate in case either party died. The wife subsequently abandoned her husband, was divorced, and remarried. She stated she had no interest in the property. The husband kept up the property and paid the taxes. On these facts, this court held there was a sufficient showing of intent to rebut the presumption of gift and a resulting trust was implied in favor of the husband. The facts in the present case differ from Ludwig, as will be apparent from the discussion below, and thus we do not find it controlling.

Intention is the key to the doctrine of resulting trust. We are asked by Mr. Wilson to hold that under the law of this State his intent to retain the present equitable interest in the property should be enforced, but that his intent to give his wife a right to survivorship should be ignored. The question is whether Mr. Wilson will be permitted to avoid the consequences of his stipulated intent; that is, the intent to create rights of survivorship by placing title to the property in joint tenancy. In construing the apparently conflicting stipulated intentions of Mr. Wilson, we find Cook v. Patrick (1891), 135 Ill. 499, helpful. In that case the doctrine of resulting trust was explained as a creature of equity founded upon presumptive intention, and designed to carry that intention into effect. The court went on to hold that a resulting trust may exist as to a part of the property, or a part of the interest therein, according to the intent existing in each particular case. Thus, if the appropriate intent is present, a resulting trust may be rebutted as to a part of the interest in the property. The court, citing cases from other jurisdictions and authorities in the field of equity, stated:

“[A] resulting trust may be rebutted as to part of the land comprised in a deed and prevail as to the remainder; and if it can be rebutted as to a part of the land, there can be no reason why it may not be rebutted as to a part of the interest in the land.” (Cook v. Patrick (1891), 135 Ill. 499, 508.)

In Cook v. Patrick, the court held that W. L. Stevenson, who purchased real estate with his own money and took title in the name of people by the name of Patrick, was the beneficiary of a resulting trust for life because the intention was clearly expressed when title was taken that he wanted to reserve to himself a life estate in the equitable interest in the realty and that, after his death, the equitable interest, as well as the legal title, would vest in the Patricks. For text discussion of resulting trusts in less than all of the property, or in only a limited interest in the property, see 5 A. Scott, Trusts sec. 454.4, at 3382 (3d ed. 1967); G. Bogert, Trusts and Trustees sec. 454, at 637; sec. 462, at 750-56 (2d ed. rev. 1977).

In Gillespie v. Gillespie (Mo. 1926), 289 S.W. 579, 580, the husband had purchased real estate and had his wife, Ellen, named as grantee in the deed. When he delivered the deed to his wife, he stated, “Here, Ellen, this is yours. I want it to be yours at my death.” Thereafter, the taxes were assessed in the name of the husband and paid by him. He rented the property to others and collected the rent. He made repairs to the property and generally exercised control over it. The court stated:

“We think from the acts and expressed intention of Mr. Gillespie at the time in taking title in the name of his wife, but retaining the management and use of the property as has been mentioned, a trust in his favor could be implied, extending, however, only to a life interest, but that the interest in remainder was intended at the time to pass, and did pass, to the plaintiff.” (Gillespie v. Gillespie (Mo. 1926), 289 S.W. 579, 582.)

To the same effect, see Casa Colina Convalescent Home For Crippled Children, Inc. v. Wiest (1963), 214 Cal. App. 2d 161, 29 Cal. Rptr. 407.

The above cases did not involve title to property held in joint tenancy. However, in Rowland v. Clark (1949), 91 Cal. App. 2d 880, 206 P.2d 59, the court applied the same reasoning as did the courts in the above cases in implying a resulting trust for life in real estate, title to which had been taken in joint tenancy. In that case the defendant grandmother assumed the responsibility for the care and education of her granddaughter, the plaintiff. The defendant purchased property and had title placed in her name and the plaintiff’s name as joint tenants. At the trial the defendant testified, “I told her I would put her name on the deed so she could get the property at my death; it would be hers.” (Rowland v. Clark (1949), 91 Cal. App. 2d 880, 882, 206 P.2d 59, 60.) The court implied a resulting trust in the property in favor of the defendant grandmother for her life. The court stated:

“While in the instant case the title to the property involved was not taken in plaintiff’s name alone, we are of the opinion that the principle of a resulting trust applies to the title acquired by plaintiff insofar as the life estate in the defendant is concerned.” (Rowland v. Clark (1949), 91 Cal. App. 2d 880, 884, 206 P.2d 59, 61.)

Applying the reasoning of the above authorities, we will give effect to the stipulated intent of Mr. Wilson at the time of the acquisition of the property in question and imply a resulting trust in the property in his favor to the extent of a life interest only.

It is apparent from the stipulation that the presumptive gift to Mrs. Wilson has been rebutted, but only in part. It is also clear that the intent was that Mr. Wilson was to have the use and benefit of the property during his lifetime. This intent was corroborated by the conduct of Mr. and Mrs. Wilson with regard to the property; that is, the husband retained the management, use and control of it. Thus, to give effect to this intent, a resulting trust will be implied in favor of Mr. Wilson. However, the express intent goes no further than that Mr. Wilson shall have the beneficial interest in the resulting trust for life. Mrs. Wilson therefore was the trustee of the resulting trust during her life for the benefit of Mr. Wilson as to the interest she held as a joint tenant. There was a clear expression of intent that the resulting trust should not be in the entire estate or interest in the property. The stipulation states that Mrs. Wilson was to have a right of survivorship, which diminishes the beneficial interest of Mr. Wilson in the resulting trust. Historically, the right of survivorship is an incident of and arises out of joint tenancy. (Kane v. Johnson (1947), 397 Ill. 112; Gaunt v. Stevens (1909), 241 Ill. 542.) Had Mr. Wilson died first, Mrs. Wilson would have become vested with title in fee to the property, and the resulting trust would have automatically terminated. Therefore, on the death of Mr. Wilson, his equitable interest in the resulting trust would terminate and the entire title, both legal and equitable, would vest in Mrs. Wilson. No beneficial interest would have passed to his estate.

The next question is whether the interest held by Mrs. Wilson in the property at her death was sufficient to be taxed under the Illinois inheritance and transfer tax statute.

The State argues that, for inheritance tax purposes, the courts, in taxing joint tenancy property, are not permitted to look to the intent of the parties involved or to their contribution. Section 1(5) of the inheritance and transfer tax statute (Ill. Rev. Stat. 1973, ch. 120, par. 375(5)) provides:

“5. Whenever property, real, personal, or mixed, is held in the joint names of 2 or more persons, or is deposited in banks or other institutions or depositories in the joint names of 2 or more persons, and payable to either or the survivor, upon the death of one of such persons, the right of the surviving joint tenant or joint tenants, person or persons, to the immediate ownership or possession and enjoyment of such property shall be deemed a transfer taxable under the provisions of this Act in the same manner as though a fractional part of the property to be determined by dividing the value of the entire property by the number of joint tenants, joint depositors or persons belonged absolutely to the deceased joint tenant, joint depositor or person and had been devised or bequeathed to the surviving joint tenant or joint tenants, person or persons, by such deceased joint tenant or joint depositor by will.”

The State’s argument is based upon the history of section 1(5). In People v. Varel (1932), 351 Ill. 96, this court held that it was appropriate to look to the contributions of joint tenants in imposing the inheritance tax. Paragraph 5 of section 1 then provided that jointly held personal property was to be taxed in the estate of the decedent “as though the whole property to which such transfers relates was owned by said parties as tenants in common ***.” (Smith-Hurd Rev. Stat. 1927, ch. 120, par. 375(5).) Thus, where parties held property as tenants in common and their contributions to the purchase price were unequal, they were generally held to own on the basis of the contribution. The Varel court, relying upon the express language of the inheritance tax law, permitted the trial court to determine the amount of each party’s contribution and impose the inheritance tax accordingly. However, the court in Varel suggested that if the legislature had intended to tax on the basis of the full value of the property passing to the survivor, it should have used apt and unmistakable language to express that intent.

The following year, the legislature acted on the court’s suggestion in Varel by amending the act to tax joint tenancy property on a fractional-interest basis — the denominator to be determined by ascertaining the number of joint tenants. (In re Estate of Arundale (1972), 51 Ill. 2d 311.) In Arundale, this court held that when property is held in joint tenancy, it is irrelevant how much each tenant contributed for inheritance tax purposes. However, in the present case we are not considering contribution for tax purposes, but rather to determine the type of property interests held by the parties. Before a tax can be imposed there must first be a taxable interest or event.

An inheritance tax is designed to tax the privilege of succeeding to property rights of deceased persons and is imposed upon the economic benefit gained thereby. In determining whether the government may impose an inheritance tax on a property interest at death, it must be shown that the death has brought into being, or ripened, for the survivor, property rights of such a character as to make appropriate the imposition of a tax upon that result. As stated in Tyler v. United States (1930), 281 U.S. 497, 502, 74 L. Ed. 991, 998, 50 S. Ct. 356, 358:

“Death duties rest upon the principle that death is the ‘generating source’ from which the authority to impose such taxes takes its being, and ‘it is the power to transmit or the transmission or receipt of property by death which is the subject levied upon by all death duties.’ ”

One need not own or possess or receive a beneficial interest in the conventional use of the term. It is not the beneficial interest or even the acquisition of such an interest which is the occasion for the tax. Relevant to defining the nature of the taxable event or interest when property passes by the right of survivorship is the following language of the Supreme Court in Tyler v. United States (1930), 281 U.S. 497, 503, 74 L. Ed. 991, 998, 50 S. Ct. 356, 359:

“The question here, then, is, not whether there has been, in the strict sense of that word, a ‘transfer’ of the property by the death of the decedent, or a receipt of it by right of succession, but whether the death has brought into being or ripened for the survivor, property rights of such character as to make appropriate the imposition of a tax upon that result *** to be measured, in whole or in part, by the value of such rights.”

Mrs. Wilson possessed the right of survivorship in the stock and the checking account so that Mr. Wilson risked losing the entire interest in this property by predeceasing his wife. This risk was only extinguished at Mrs. Wilson’s death, when Mr. Wilson became the sole owner of the property. Although Mr. Wilson, by virtue of a resulting trust, had a beneficial interest in the property during his life, prior to his wife’s death he had no right to dispose of his interest by will, nor could it pass to his legal heirs. Mrs. Wilson might have survived and thereby obtained a complete fee to the property with attendant rights of possession and disposition by will or otherwise. There was at her death a distinct enlargement of Mr. Wilson’s interest in the property, a decided change in his favor as the surviving joint tenant, since his interest in the property was no longer encumbered by his wife’s. The death of one of the parties to the tenancy, Mrs. Wilson, became the “ ‘gen-crating source’ of important and definite accessions to the property rights of the other. ” (Tyler v. United States (1930), 281 U.S. 497, 504, 74 L. Ed. 991, 999, 50 S. Ct. 356, 359.) The Illinois inheritance tax is validly imposed on this event and enlargement of economic interest.

Under the stipulated facts of this case we have given effect to the manifest intent of Mr. Wilson and under the circumstances find that he was the recipient of a taxable interest in property under section 1(5) of the Illinois inheritance and transfer taxes law on the death of his wife. The judgment of the appellate court is reversed and the cause remanded to the circuit court of Adams County.

Appellate court reversed; cause remanded.


author: MR. JUSTICE WARD

text:
    (No. 52381.
    ROBERT E. LAMP, Appellee, v. SUSAN M. LAMP, Appellant.

      Opinion filed June 20, 1980.

      John R. Sprague, of Sprague, Sprague & Ysursa, of Belleville, for appellant.
    Jim D. Keehner, Ltd., of Belleville, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The plaintiff, Robert E. Lamp, filed a petition in the circuit court of St. Clair County on May 23, 1978, to modify a decree of divorce from the defendant, Susan M. Lamp, which the plaintiff had been granted on August 16, 1974. The circuit court granted the petition, and the appellate court, with one judge dissenting, affirmed (73 Ill. App. 3d 713). We granted the defendant’s petition for leave to appeal.

The plaintiff’s complaint for divorce charged the defendant with extreme and repeated mental cruelty. It asked that custody of the three minor children of the marriage be awarded to the plaintiff, and that the court make an equitable distribution of the property of the parties. The defendant filed a counterclaim for separate maintenance which also charged mental cruelty. The counterclaim asked that all the property of the parties be awarded to the defendant, and that the plaintiff be ordered to provide support for the defendant and the three children. The circuit court found in favor of the plaintiff on the complaint and found against the defendant on her counterclaim.

The decree ordered the payment of “temporary” alimony to the defendant of $300 a month, limited to a period of three months from the date of the decree. No further monetary award of alimony was made. The decree also gave custody of the three children to the defendant, subject to visitation privileges for the plaintiff. The plaintiff was ordered to pay the defendant child support in the amount of $100 per month for each of the three children, subject to escalation or de-escalation in the event of a change in the plaintiff’s net income from its level in 1974. Each of the parties was directed to maintain specified amounts of life insurance payable to the three children as beneficiaries.

The decree gave the defendant possession of the marital home until the defendant should remarry or until the youngest of the three children should reach the age of 18 years, whichever should first occur. While the defendant was in possession of the home the plaintiff was to pay real estate taxes and mortgage installments, the defendant was to maintain a homeowners insurance policy, and maintenance expenses were to be divided equally between the parties. Upon the sale of the marital property, whose market value in 1974 was found to be $30,000, the defendant was to receive “one-half of that portion of the proceeds which represent the difference between the said $30,000 base amount and the then existing mortgage indebtedness.”

On February 8, 1977, the plaintiff, who had remarried, petitioned the court to modify the decree by awarding him the custody of the children, subject to visitation privileges for the defendant. The petition alleged that circumstances had developed at the defendant’s residence which prevented her from attending to the needs of the children and which created a threat of physical harm to them. The petition also asked that the obligation to make child-support payments be eliminated. The defendant filed an appearance as well as a consent to the entry of a default order as to custody and visitation. The circuit court granted the petition to modify the custody and visitation provisions. The court did not eliminate the child-support payments, and the record does not show whether these continued to be made by the plaintiff.

On May 16, 1978, the plaintiff filed a second petition to modify the decree, the one which is the subject of this appeal. At this time the defendant had not remarried, and the youngest child was 12 years old. The petition stated that the children were now residing with the plaintiff, and that their use of the marital home of the parties as a residence was no longer required. The petition asked that the property be sold without awaiting the occurrence of the events enumerated in the decree. The court entered an order so providing.

The central question on this appeal is whether the provision of the decree awarding possession of the marital home to the defendant is to be characterized as a provision for periodic alimony or for child support, which are subject to modification, or rather as a property settlement or alimony in gross, which are not.

Section 801(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 801(c)) makes the Act applicable to “all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act.” Section 510(a) (Ill. Rev. Stat. 1977, ch. 40, par. 510(a)) permits modification of provisions respecting maintenance, a term which corresponds to what was formerly called alimony, or child support upon a showing of “a substantial change in circumstances.” Section 510(a) further states: “The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.”

These provisions in general seem to carry forward the provisions of section 18 of the former statute regulating divorce (Ill. Rev. Stat. 1973, ch. 40, par. 19), which was in effect at the time the divorce decree in the present case was entered. The fifth paragraph of section 18 states:

“The court may, on application, from time to time, terminate or make such alterations in the allowance of alimony and maintenance, and the care, education, custody and support of the children, as shall appear reasonable and proper. ***”

The parties have not called our attention to any significant difference between the pertinent provisions of the former act and the present act, and for purposes of our decision we will consider that decisions under the former act remain applicable here.

The decisions of this court have established that the statutory power of a court to reduce the amount of periodic payments, whether by way of alimony or child support, is not defeated by the fixing of the amount of the payments in a settlement agreement which was incorporated in the decree. That rule is also followed in most other States (Annots., 61 A.L.R.Sd 520, 657 (1975).) In Herrick v. Herrick (1925), 319 Ill. 146, the settlement agreement provided that the husband was to pay the wife $300 a month for her support and that of their son. Some 8 years later the husband filed a petition to reduce the payments because of a deterioration in his financial position, and the court lowered them to $200 per month. The court rejected the wife’s contention that the incorporation of the agreement into the decree barred subsequent alteration. The court reasoned that the agreement had been merged in the decree and that since the statute permitted modification of the allowance, that statutory provision became a part of the agreement. This result, it was held, was not altered by a provision in the agreement and the decree that the payments were “in lieu of alimony.” 319 Ill. 146, 152-53.

A situation resembling that in the case at hand was presented by Maginnis v. Maginnis (1926), 323 Ill. 113. In that case the wife had obtained a divorce in which she was awarded the custody of a minor child. The husband was ordered to pay the wife a total of $25 a week for her own use, so long as she remained unmarried, and for the support of the child. The husband was also required to pay the premiums on a life insurance policy which named the wife and the child as beneficiaries. Although the parties disagreed on whether these provisions of the decree had been consented to and incorporated in the decree by agreement, the court’s opinion assumes that to be the case.

Thereafter the wife remarried, and the daughter, who had now reached the age of 18, took up residence with her father, and was supported by him. The husband petitioned the circuit court to be released from both the obligation to make further payments to the wife and the obligation to continue his life insurance in effect. The circuit court granted the petition. On appeal by the wife, the appellate court agreed that the husband need make no further payments to her, but held that he remained liable to pay premiums on the insurance policy. On a further appeal here the decision of the appellate court was reversed and that of the circuit court affirmed.

This court, adhering to its decision in Herrick, held that the agreement of the parties to the provisions of the decree did not preclude the court from modifying it. The court accepted the husband’s claim that since his duty to support his wife ended when she remarried and his duty to support his child ended when the latter became of age, his obligation to pay insurance premiums terminated at the same time. The court considered but rejected the wife’s claim that the obligation to maintain the insurance was a continuing and irrevocable obligation, stating, “the requirement to pay the insurance premium was part and parcel of the provision for maintenance.” 323 Ill. 113, 120. See also Adler v. Adler (1940), 373 Ill. 361, 371-72.

So far as the minor children in the present case are concerned, the plaintiff’s duty to make payment for their support was not limited by the decree to the period of their minority. Such payments are not an issue on this appeal, but under the circumstances here, where the children are residing with the plaintiff, and, we assume, are being supported by him, there can be no question but that elimination of monetary support payments would be appropriate under the Maginnis decision.

We consider that the provision for temporary possession of the marital home stands on the same basis as the provision for monetary support.

During the period that the defendant was to be in possession, mortgage installments and real estate taxes were to be paid by the plaintiff. The decree did not require her to pay rent during this period, so that the accomodation of the children was provided rent free. An arrangement that the children continue to live in the marital home foUowing the divorce was plainly intended for their benefit. Moreover, had it been necessary for the defendant to find other quarters, we must assume that a larger support payment would have been awarded. The award of possession of the home may thus be regarded as a supplement to the monetary child-support payments.

Although subject to earlier termination in the event of her remarriage, the outside limit on the defendant’s possession was the date when the youngest child reached majority, which is the same date on which, under both section 18 of the former act and section 510(c) of the present act, the plaintiff’s duty of child support would normally terminate. Finley v. Finley (1980), 81 Ill. 2d 317.

As is true of the support payments, the defendant’s right to possession must be predicated on a continuance of the custody which the decree had awarded to her. Although the decree does not state in terms that her right to possession shall continue only as long as she has custody of the children, we do not find that omission significant. Our concern here is whether there has been a substantial change in circumstances, not whether that change was anticipated in the decree. As Herrick and Maginnis hold, an attempt in a decree to prohibit its future modification is ineffective. By the same token the modification here cannot be precluded by the failure of the decree to anticipate that its provisions for custody would themselves have been modified, particularly when the latter alteration had been agreed to by the defendant.

The defendant’s claim is that she was entitled to remain in possession until the youngest child reached the age of 18, regardless of custody. The defendant’s brief fails to state any basis for that position, but it must be that the award of possession was either a settlement in lieu of alimony under the third paragraph of section 18 (Ill. Rev. Stat. 1973, ch. 40, par. 19) or a provision as to property disposition under section 17 (Ill. Rev. Stat. 1973, ch. 40, par. 18) of the former act.

The defendant’s claim presents several difficulties. In the first place, she assumes that the various provisions of the decree, including the disposition of the marital home, were founded on an agreement between the parties which was approved by the court. The decree does not approve, or indeed even mention, any settlement agreement, however.

The record contains no transcript of the report of proceedings. The only basis for the defendant’s assumption that the decree was a consent decree is the following finding by the judge who granted the petition to amend the judgment:

“1. That the decree of December 3rd, 1974, was not the result of a contested hearing reflecting the decision of the Court. Rather, the support and property provisions therein were the result of negotiation between the parties and approved by the Court.”

The judge who made this finding was not the same judge who presided at the divorce proceedings, and there is nothing anywhere in the record to show on what it is based. If one assumes that it is only the existence of an agreement between the parties which bars modification of a decree (see Smith v. Smith (1929), 334 Ill. 370; Walters v. Walters (1951), 409 Ill. 298, 302) the necessary predicate for the defendant’s claim has not been laid.

Secondly, there is no basis in the record for treating the possession of the marital home as being either alimony in gross or as part of a property settlement. As to the former, permanent alimony, whether periodic or in gross, is not normally awarded to the spouse whose fault was the basis for the divorce. (Adler v. Adler (1940), 373 Ill. 361, 369.) The preferred form of alimony, moreover, is by periodic payments, and an award in gross is appropriate only in exceptional circumstances. (Canady v. Canady (1964), 30 Ill. 2d 440, 445.) No such circumstances are asserted or shown.

As to the hypothesis that the award of possession was part of a property settlement, the defendant assumes that the marital home was held in joint tenancy, another assumption not supported in the record. Even if it were held in joint tenancy, the defendant does not assert that she contributed to the purchase of the home, or that there were other special equities entitling her to occupancy prior to the partition of the property which was later to take place, or that she gave up some interest of her own as a quid pro quo for the possession. Podgornik v. Podgornik (1945), 392 Ill. 124; Walters v. Walters (1951), 409 Ill. 298, 304.

The case principally relied on by the defendant is Chamberlin v. Chamberlin (1970), 119 Ill. App. 2d 295, which also involved a divorce decree that awarded temporary possession of the marital home to one of the parties. In a proceeding which was apparently contested, the wife obtained a divorce on the ground of cruelty. The decree awarded her the custody of four minor children, and the husband was required to pay $50 a week for child support. The plaintiff was directed to convey to the defendant her interest in the marital home, which was held in joint tenancy, while the plaintiff was given sole and exclusive possession until the youngest child should reach majority. The plaintiff released all rights to alimony and all other claims arising out of the marital relation.

The plaintiff subsequently remarried, and after her new husband moved into the home, the defendant filed a petition to modify the decree by requiring the plaintiff and the children to vacate the premises. The appellate court held that so far as the plaintiff’s possessory interest was concerned, the decree was a property settlement and not subject to modification.

The court agreed, nevertheless, with the defendant’s contention that the provision relating to possession was also for the benefit of the minor children, and as such would be subject to modification, to the extent of requiring the children to vacate the premises, but concluded that no showing had been made that removal of the children would benefit them in any way.

The facts of the Chamberlin case obviously differ widely from those of the case at hand.

In Pope v. Pope (1972), 7 Ill. App. 3d 935, also cited by the defendant, the husband obtained a divorce from the wife and was given custody of four minor children. The husband was given possession of the marital home, which was held in joint tenancy, until the youngest child reached majority. The wife was ordered to vacate the home, and she was enjoined from conveying her interest in it prior to that date. The holding of the appellate court was that a suit by the wife for partition must be dismissed. In the course of its opinion the appellate court stated:

“We believe that the intent of the court in entering the Divorce Decree was to ensure the existence of a home for the minor children of the marriage until they reached their majorities by granting possession of the marital home until the youngest child reached the age of 21 to the parent having custody.” 7 Ill. App. 3d 935, 937.

The decision in Pope is not inconsistent- with the result which we reach in the present case.

More pertinent, perhaps, than the decisions just discussed are Barlow v. Barlow (1978), 56 Ill. App. 3d 629, and Gray v. Gray (1978), 57 Ill. App. 3d 430. In Barlow the wife obtained a divorce and was given custody of four minor children. She was also given the “use” of the marital home, without any limitation as to time. The home was then held in joint tenancy, but subsequent to the decree it had been converted to a tenancy in common. No alimony was decreed, and each party waived any right to the same. The husband was required to pay $65 a week in child support.

Some years later the defendant filed a petition for partition and also a petition to modify the decree by terminating the plaintiff’s use of the home. As formulated by the appellate court (56 Ill. App. 3d 629, 630-31), the defendant’s position was that the use of the home had been given to the plaintiff “so as to provide a home for the couple’s children, and since the youngest child had reached the age of majority, that need no longer existed,” whereas the plaintiff contended that the decree gave her the use of the marital home for life. The appellate court agreed with the defendant.

Gray v. Gray was not a modification proceeding but an appeal from the divorce decree. The decree granted a divorce to the husband, but granted custody of five minor children to the wife and required the husband to pay $500 a month for their support. The wife was also given exclusive possession of the marital home until she should remarry or until the youngest child should reach a specified age. On appeal the husband argued that the grant of possession was alimony in gross, which was alleged to be improper because the court had also awarded periodic alimony. The appellate court rejected this characterization, holding that the decree was intended only to make sure “that a permanent home was provided for the five minor children, rather than attempting to give the wife alimony in gross.” 57 Ill. App. 3d 430, 436.

Although none of them involves precisely the same constellation of facts as the case at hand, to the extent that the appellate court decisions discussed above are pertinent they support the view that the possession awarded to the defendant here was a form of support for the benefit of the children. A substantial change in circumstances having plainly occurred, the modification of the decree was proper.

The defendant also contends that the acceleration of the sale of the marital home somehow deprived her of a homestead. The marital home, according to the defendant, was held in joint tenancy; the divorce decree adjudged her to be at fault; it ordered partition and sale of the property; and she no longer has custody of the children. We cannot see how the modification of the decree deprived her of any homestead rights which she then had, and neither in her brief nor on oral argument has the defendant made clear the theory of her claim. We accordingly agree with the appellate court (73 Ill. App. 3d 713, 715) that the Homestead Act (Ill. Rev. Stat. 1977, ch. 52, par. 1 et seq.) has no bearing on the case.

For the reasons stated, we affirm the judgment of the appellate court.

Judgment affirmed.


author:
MR. JUSTICE KLUCZYNSKI
      MR. JUSTICE WARD,

text:
    (No. 51817.
    SUREN PASHINIAN, Appellant, v. ALEX HARITONOFF, Appellee.

      Opinion filed June 20, 1980.

    Rehearing denied September 26, 1980.

      WARD, J., and GOLDENHERSH, C.J., and MORAN, J., dissenting.
    Toni McNamara, Richard S. Fleisher and Barbara J. Clinite, of Karlin & Fleisher, of Chicago (David A. Novoselsky, of counsel), for appellant.
    Leo J. Sullivan III, Michael K. Noonan, and Richard J. Smith, of Waukegan (Sullivan, Smith & Hauser, Ltd., of counsel), and D. Kendall Griffith, of Chicago (Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Plaintiff, Suren Pashinian, filed suit in the circuit court of Lake County seeking damages for personal injuries he sustained as the result of a fall in the home of defendant, Alex Haritonoff. The circuit court dismissed plaintiff’s complaint, and the appellate court affirmed (79 Ill. App. 3d 1203) in an unpublished order under Rule 23 (73 Ill. 2d R. 23). We allowed plaintiff’s petition for leave to appeal.

Plaintiff’s amended complaint alleges that, on or about September 1, 1975, he was visiting defendant in defendant’s home and that, in attempting to locate the restroom, he fell down a flight of stairs leading to the basement. Count I of the complaint alleged that the fall resulted from defendant’s wilful and wanton failure to properly maintain the premises or, alternatively, from defendant’s wilful and wanton failure to warn plaintiff of the defective condition of the stairway. Count II was phrased in similar terms but characterized defendant’s omissions as negligent rather than wilful and wanton. Plaintiff later voluntarily dismissed count I, and count II was dismissed on motion by defendant on the ground that plaintiff, admittedly a social guest of defendant, could not recover on a negligence theory.

Plaintiff concedes that, under existing law, dismissal of the negligence count was proper. (See Biggs v. Bear (1943), 320 Ill. App. 597.) He acknowledges that, as a social guest of defendant, he is properly denominated a licensee and therefore unable to recover in the absence of a showing of wilful and wanton misconduct. He contends, however, that existing law should be changed. Specifically, plaintiff attacks the so-called “premises doctrine” under which an occupier’s duty to entrants varies, depending on whether the entrant is an invitee, licensee or trespasser. Plaintiff contends that the circumstances under which the doctrine developed have so changed as to require a change in the law. Plaintiff further argues that exceptions have engulfed the general classifications and created confusion, thereby calling the validity of the doctrine into question. Therefore, plaintiff contends, this court should adopt a standard of ordinary care in all cases involving injuries sustained by one who enters upon the premises of another. Defendant argues in response that no change in conditions is discernible which would require a change in the common law; that the home remains a form of sanctuary in which the occupant enjoys some degree of immunity from liability to his social guests; and that any change in the law would more properly be left to the legislature. Defendant argues further that the existence of exceptions to the general categories of invitee, licensee, and trespasser does not require invalidation of the premises doctrine in toto but only indicates the desire of courts to do justice in the individual case.

Having considered this matter and the cases cited by plaintiff in which the premises doctine has been abolished in whole or in part (Annot., 32 A.L.R.3d 508, sec. 4 (1970)), we are not persuaded that conditions have so changed as to require a change in the law. On this point, we concur with the numerous jurisdictions which have refused to discard the premises doctrine. (See, e.g., Gerchberg v. Loney (1978), 223 Kan. 446, 450-51, 576 P.2d 593, 597-98; McMullan v. Butler (Ala. 1977), 346 So. 2d 950, 951-52; Werth v. Ashley Realty Co. (N.D. 1972), 199 N.W.2d 899, 906-07; Mooney v. Robinson (1970), 93 Idaho 676, 678, 471 P.2d 63, 65; Astleford v. Milner Enterprises, Inc. (Miss. 1970), 233 So. 2d 524, 525.) An individual can still expect to find some degree of refuge on his own property. A standard which holds the individual responsible for wilful and wanton misconduct strikes an appropriate balance between the desirability of such refuge and the need to hold one liable for tortious conduct. “[I] f the mores and values of present society dictate changes such changes should be worked out individually as the circumstances of a particular case may warrant. Such changes will result in less general confusion and better understanding of each particular change.” (Gerchberg v. Loney (1978), 223 Kan. 446, 452, 576 P.2d 593, 598.) In the absence of evidence to the contrary, we believe it reasonable to assume that the distinctions drawn between invitee, licensee and trespasser provide valuable guidance to the finder of fact and that juries, as well as judges, are able to recognize and apply the distinctions and the exceptions thereto intelligently, so that a defendant is called upon to respond in damages when it is just to do so.

While we do not agree with plaintiff that the premises doctrine should be abolished, we also do not agree with defendant that such action could only be accomplished by the legislature. We are dealing here with the common law, and a change in the circumstances upon which that law is based could justify a judicially effected change in the law. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 352-53; Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 336-37; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 614-17; Dini v. Naiditch (1960), 20 Ill. 2d 406, 413-17; Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 14-26.) We hold merely that conditions have not so changed that the common law should be rewritten.

The judgment of the appellate court is accordingly affirmed.

Judgment affirmed.

MR. JUSTICE WARD,

dissenting:

In recent years a number of jurisdictions have abandoned, in whole or in part, the tripartite classification of entrants upon land in terms of their status which the common law used in determining tort liability. (See Annots., 32 A.L.R.3d 508 (1970), 25 A.L.R.2d 598 (1952); Note, Tort Liability of Owners and Possessors of Land — A Single Standard of Reasonable Care Under the Circumstances Towards Invitees and Licensees, 33 Ark. L. Rev. 194 (1979).) I nevertheless agree with the majority that to abolish the common law doctrine of premises liability in its entirety would not be warranted in this case. Such a course would eliminate many rules, such as those governing trespassers, which are not relevant here. I do not believe, however, that the complaint should have been dismissed for failure to state a cause of action.

The complaint does not state in what respect the stairway was defective, nor does it state whether the defendant’s fault lay in a failure to correct the defect or only to warn the plaintiff of its existence. The paucity of factual allegations makes it impossible for the court to determine whether the plaintiff might indeed be entitled to recovery as a licensee under existing doctrine, and, if he is not, to formulate a standard of liability which would be meaningful.

The complaint does allege, nevertheless, that the plaintiff was present in the defendant’s residence at the defendant’s express invitation, and the question is thus before us whether the plaintiff is entitled to less protection than would be due were the purpose of his visit a matter of business concern to the defendant. I do not think that such a distinction should be drawn.

The difference between the duty owed to a licensee and to an invitee has been recognized in this State at least as early as Pauckner v. Wakem (1907), 231 Ill. 276. The concept that a social guest is not, in the legal sense, an invitee, however, stems only from a decision of the appellate court in Biggs v. Bear (1943), 320 Ill. App. 597. The court based its decision in that case upon two Massachusetts decisions, Plummer v. Dill (1892), 156 Mass. 426, 31 N.E. 128, and Comeau v. Comeau (1934), 285 Mass. 578, 189 N.E. 588, which in turn had their origin in the English case of Southcote v. Stanley (1856), 1 H. & N. 247, 25 L.J. Ex. (n.s.) 339, 156 Eng. Rep. 1195. Of the latter it is perhaps sufficient to say that the rationale put forward by the court strikes a reader of today as unpersuasive.

Exclusion of a social guest from the class of invitees has been based by some courts on the proposition that even in a commercial setting the basis for imposing a higher duty toward invitees is the actual or potential economic benefit to the operator of the establishment. (See Prosser, Torts sec. 61, at 386-87 (4th ed. 1971); Prosser, Business Visitors and Invitees, 26 Minn. L. Rev. 573, 603-05 (1942).) As Prosser notes, however, a majority of courts now base liability on the theory that a landowner who encourages others to enter in order to further some purpose of his own impliedly represents “that reasonable care has been exercised to make the place safe for those who come for that purpose.” Prosser, Torts sec. 61, at 388 (4th ed. 1971). On this theory there would be no reason to withhold protection from a guest invited to residential premises simply because the invitation was not made for a business purpose. See Antoniewicz v. Reszczynski (1975), 70 Wis. 2d 836, 845-46, 236 N.W.2d 1,5.

I would hold that the standard of care owed to a social guest shall be the same as that owed to a business visitor.

GOLDENHERSH, C.J., and MORAN, J., join in this dissent.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 52414.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DONALD L. DEEMS, Appellant.

      Opinion filed May 30, 1980.

    Rehearing denied September 26, 1980.

      Robert Agostinelli, Deputy Defender, and G. Joseph Weller, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    William J. Scott, Attorney General, of Springfield, and Michael Mihm, State’s Attorney, of Peoria (Donald B. Mackay, Melbourne A. Noel, Jr., and M. Anita Donath, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On grounds of double jeopardy the circuit court of Peoria County dismissed theft charges against the defendant, Donald L. Deems. The appellate court reversed (74 Ill. App. 3d 543), and we granted leave to appeal.

The history of this case may well be unique. Originally defendant was indicted for knowingly receiving stolen property in violation of section 16 — 1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(d)(1)). On the date set for trial, approximately three months after indictment, the State moved to dismiss the charges. The State’s Attorney conceded in open court that the defendant was not guilty of receiving stolen property but indicated that he would seek an indictment against the defendant for theft (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(a)) and be ready for trial thereon within a week.

Despite the State’s admission that the defendant did not commit the offense with which he was charged and its motion to dismiss, the defendant demanded an immediate trial on the original charge. The trial judge, likening the State’s motion to a request for a continuance, decided that the defendant was entitled to go to trial if he was prepared to do so. The prosecutor reiterated the State’s admission that the defendant did not commit the offense of receiving stolen property and pointed out that the court’s refusal to dismiss the charge would force the State to prosecute a man who was concededly innocent. The judge indicated he would prefer to dismiss the case with prejudice for want of prosecution but could not do so because the appellate court had held that a trial judge did not have that power. (People v. Thomas (1975), 24 Ill. App. 3d 907.) He therefore decided to call the case for trial and acquit the defendant. The defendant accordingly waived jury trial, and neither party made an opening statement. When the trial judge called for the witnesses, only the defendant was sworn and he did not testify. The State indicated it had no witnesses to call. The court then found the defendant not guilty and entered its judgment acquitting him. A subsequent indictment for theft was dismissed on double jeopardy grounds. The State appealed, seeking reversal of both the acquittal and the dismissal, and the appellate court reversed both.

It is contended by defendant that the original trial court proceedings placed him in jeopardy and that the “acquittal” by the trial judge bars his prosecution for theft under the double jeopardy clauses of the Federal and State constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10). It is, however, entirely clear to us that defendant has not yet been subjected to jeopardy, much less double jeopardy. The fundamental notion embodied in the double jeopardy clause has been emphasized frequently.

“ ‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ ” (United States v. Scott (1978), 437 U.S. 82, 87, 57 L. Ed. 2d 65, 71-72, 98 S. Ct. 2187, 2192, and Crist v. Bretz (1978), 437 U.S. 28, 35, 57 L. Ed. 2d 24, 31, 98 S. Ct. 2156, 2160, quoting Green v. United States (1957), 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223.)

This principle has been effectuated through rules that specify when jeopardy attaches and that prohibit a retrial of an acquitted defendant. But those rules should not be applied mechanically when the interests they protect are not endangered and when their mechanical application would frustrate society’s interest in enforcing its criminal laws. Illinois v. Somerville (1973), 410 U.S. 458, 463, 35 L. Ed. 2d 425, 430, 93 S. Ct. 1066, 1070.

The trial court entered an order purporting to acquit the defendant but the word “acquittal” “has no talismanic quality for purposes of the Double Jeopardy Clause” {Serfass v. United States (1975), 420 U.S. 377, 392, 43 L. Ed. 2d 265, 276, 95 S. Ct. 1055, 1064), and what constitutes an acquittal for purposes of the double jeopardy clause is not necessarily controlled by the form of the judge’s action {United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1354), or what the judge calls it (United States v. Jorn (1971), 400 U.S. 470, 478 n.7, 27 L. Ed. 2d 543, 552 n.7, 91 S. Ct. 547, 554 n.7; United States v. Scott (1978), 437 U.S. 82, 96, 57 L. Ed. 2d 65, 77, 98 S. Ct. 2187, 2196). While the judge denominated his action an “acquittal,” it bore none of those characteristics except the label. The proceedings were not an attempt by the State to convict defendant. The prosecutor was, in fact, doing his best to dismiss the charge against defendant on the ground that defendant was not guilty of the charged offense. Presumably the indictment would have been dismissed had defendant not persisted in demanding a trial. See Jeffers v. United States (1977), 432 U.S. 137, 152, 53 L. Ed. 2d 168, 181, 97 S. Ct. 2207, 2217, where defendant’s claim of double jeopardy was rejected because the subsequent conviction occurred when defendant “persuade [d] the trial court to honor his election” to have the cases tried separately.

The “trial” held at the first proceeding was a sham, an artifice employed by the trial judge to achieve the result of a dismissal with prejudice for want of prosecution which Thomas had held he did not have the authority to order. Such a “trial” might conceivably be appropriate in extraordinary circumstances (People ex rel. Castle v. Daniels (1956), 8 Ill. 2d 43;People ex rel. Elliot v. Covelli (1953), 415 Ill. 79), but it is not permissible when the prosecutor, well within the 120-day rule, seeks to dismiss, stating that the defendant is not guilty of the crime charged and declaring that the State intends to seek an indictment for a related offense which will be promptly tried.

The interests protected by the double jeopardy clause simply are not threatened in this case. The traditional rule is that jeopardy attaches in a bench trial when the first witness is sworn and the court begins to hear evidence. (United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 569, 51 L. Ed. 2d 642, 650, 97 S. Ct. 1349, 1353; Serfass v. United States (1975), 420 U.S. 377, 388, 43 L. Ed. 2d 265, 274, 95 S. Ct. 1055, 1062; Illinois v. Sommerville (1973), 410 U.S. 458, 471, 35 L. Ed. 2d 425, 435, 93 S. Ct. 1066, 1073.) That rule is predicated upon the fact that the first witness is normally an individual whose testimony is part of the State’s case — a prosecution witness whose appearance is a part of the incriminating presentation jeopardizing defendant. Here, the only person sworn was the defendant himself, and he did not testify. No evidence of any type was introduced, and it is clear that defendant was at no time during these proceedings in danger of being found guilty of any offense. A somewhat similar case is Newman v. United States (D.C. Cir. 1969), 410 F.2d 259, cert, denied (1969), 396 U.S. 868, 24 L. Ed. 2d 121, 90 S. Ct. 132. In Newman the witnesses were sworn, but before any evidence was introduced the prosecutor nol-prossed the case. The court of appeals consequently ruled that jeopardy had not attached. This result reflects the principle later stated by the Supreme Court in Serfass v. United States (1975), 420 U.S. 377, 391-92, 43 L. Ed. 2d 265, 276, 95 S. Ct. 1055, 1064, that “[without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.” In the instant case the State’s Attorney admitted in open court before the “trial” that the defendant was innocent and during the “trial” no prosecution evidence was introduced. The defendant therefore never faced the “risk of a determination of guilt” and jeopardy did not attach.

In addition to raising a claim of double jeopardy, the defendant also argues that the State does not have the authority to appeal from the rulings of the circuit court. Our Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)) provides:

“(a) Appeals by the State.
(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.”

Among the grounds for dismissal listed in section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 1) is that the prosecution is barred by sections 3 — 3 through 3 — 8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 3 — 3 through 3 — 8). Those sections include the statutory analog to the double jeopardy clause, and the State therefore was authorized to appeal the dismissal. To the extent that consideration of the prior proceeding was necessary to evaluate the double jeopardy claim, that consideration was proper and did not require an appeal therefrom. The trial judge’s action in the first proceeding was, as previously indicated, improper. In the exercise of our supervisory power (Ill. Const. 1970, art. VI, sec. 16; 73 Ill. 2d R. 315(a); People v. Breen (1976), 62 Ill. 2d 323) the trial court is directed to vacate the judgment of “acquittal” and allow the State’s motion to dismiss the indictment.

We accordingly affirm the appellate court judgment reversing dismissal of the theft indictment, and order vacation of the trial court “acquittal” judgment and dismissal of the stolen property indictment.

Appellate court affirmed in part; supervisory order entered.