author: PRESIDING JUSTICE STAMOS

text:
    KNIGHTSBRIDGE REALTY PARTNERS, LTD.-75, Plaintiff-Appellee, v. SIDNEY RUDOLPH, Defendant-Appellant.
    First District (2nd Division)
    No. 81-25
    Opinion filed April 27,1982.
    Rehearing denied May 24,1982.

      Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellants.
    Bishop & Crawford, Ltd., of Oak Brook, for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

The trial court dismissed plaintiff’s complaint for want of prosecution. Plaintiff filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) to vacate the dismissal and reinstate the action. The trial court granted this relief. Defendant appeals pursuant to Supreme Court Rule 304(b)(3) (73 Ill. 2d R. 304(b)(3)).

This case presents a novel issue of procedural law: how much jurisdiction must a trial court have over the person of the respondent to a section 72 petition in order to grant relief under that section? We note that this articulation of the issue (“how much jurisdiction”) assumes that jurisdiction is a quantifiable commodity. Such a conceptualization is admittedly an intellectual contrivance. Nevertheless, we believe that this conceptualization fairly reflects the fluidity of the measures of jurisdiction.

The pertinent facts are relatively simple. Knightsbridge Realty Partners, Ltd.-75, an Illinois limited partnership, is plaintiff in the underlying action and petitioner in the section 72 proceedings. Sidney J. Rudolph, a Florida resident, is defendant and respondent. In 1977, Knightsbridge filed suit against Rudolph, alleging a breach of a lease agreement. The leased property is in Florida. Rudolph filed a special and limited appearance, contending that the Illinois courts lack personal jurisdiction over him.

The lawsuit lumbered on through several procedural maneuvers that are not here relevant. The trial court did not issue a ruling on the question of personal jurisdiction. On July 30, 1980, when the suit was on the preliminary calendar call of nonjury cases, plaintiff failed to appear and the court dismissed the cause for want of prosecution. Plaintiff became aware of this dismissal on October 2, 1980, and filed a section 72 petition to vacate the dismissal. Defendant, having been notified of the petition by certified mail, appeared specially and moved to quash the petition for lack of personal jurisdiction over defendant. The trial court, which had not yet ruled on the personal jurisdiction issue in the underlying action, did not address the jurisdictional issue but simply granted plaintiff’s petition and vacated the dismissal of June 30. Defendant appeals, contending that the trial court could not properly consider the merits of the section 72 petition while the jurisdictional issue remained unresolved.

Plaintiff argues that defendant waived his special appearance by arguing the merits of plaintiff’s section 72 petition. In plaintiff’s view, waiver occurred when defendant made the following argument (here reconstructed in abbreviated form) in the trial court: the trial court lost jurisdiction 30 days after dismissal of plaintiff’s complaint (see Stevens v. City of Chicago (1970), 119 Ill. App. 2d 366, 371, 256 N.E.2d 56); jurisdiction can be revested in the trial court only by a proper section 72 petition (see Stevens v. City of Chicago (1970), 119 Ill. App. 2d 366, 371); plaintiff’s section 72 petition did not adequately allege a meritorious claim or due diligence; plaintiff’s petition was therefore insufficient on its face to revest jurisdiction in the trial court, so the trial court lacked personal jurisdiction over defendant. Since defendant’s argument addressed the merits of plaintiff’s section 72 petition, plaintiff contends that defendant waived his special appearance and his objection to the trial court’s jurisdiction. See Schiffman v. Bowman (1980), 88 Ill. App. 3d 766, 769,411 N.E.2d 71.

The root of such a waiver is that a defendant who is contesting the authority of the court cannot recognize the court’s power to decide any facet of the dispute: “He cannot, by his voluntary action, invite the court to exercise its jurisdiction and at the same time deny that jurisdiction exists.” (Supreme Hive Ladies of the Maccabees of the World v. Harrington (1907), 227 Ill. 511,525, 81 N.E. 533.) It therefore appears that waiver is linked to a litigant’s purpose in putting a given argument before the court. Where, as here, the purpose of making an argument is to attack the court’s jurisdiction, we will not find a waiver, even if the same argument could have been employed to attack the merits of the opposing party’s petition.

Defendant’s argument on appeal starts with the premise that a section 72 proceeding is a new action, separate from the underlying action. (See Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 530-31, 431 N.E.2d 358.) Defendant concludes that due process requires the trial court to have jurisdiction over the person of the respondent (here, defendant Rudolph) before granting relief. Defendant argues that plaintiff has not shown that defendant has the “minimum contacts” with the State of Illinois required to support personal jurisdiction.

We find it helpful at this point to inquire into the meaning of “jurisdiction.” The authorities teach that jurisdiction is, at bottom, power. “Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; * * * If the law confers the power to render a judgment or decree, then the court has jurisdiction.” (Rhode Island v. Massachusetts (1838), 37 U.S. 657, 718 (12 Pet. 657, 717), 9 L. Ed. 1233, 1258.) Personal jurisdiction means “authority, obtained by the service of a summons or by other proper notice, or by an appearance, to render a personal judgment.” (People ex rel. Thompson v. Harper (1910), 244 Ill. 121,122,91 N.E. 90.) Subject matter jurisdiction, on the other hand, is “the right to hear and determine causes of the general class to which the particular cause belongs.” (Walton v. Albers (1942), 380 Ill. 423, 426, 44 N.E.2d 145.) Our courts derive this power from article VI of the Illinois Constitution. (See generally 14 Ill. L. & Prac. Courts §12 (1968).) The outer limit of the State’s power to adjudicate is the due process clause of the Federal Constitution, although the State is free to set limits within this perimeter. Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190,197, 429 N.E.2d 847.

No statute or rule specifies the jurisdictional prerequisites to section 72 relief. Paragraph (2) of section 72 states, “All parties to the petition shall be notified as provided by rule.” (Ill. Rev. Stat. 1979, ch. 110, par. 72(2).) Supreme Court Rule 106 directs that notice of a section 72 petition shall be given by the methods provided in Supreme Court Rule 105. (Ill. Rev. Stat. 1979, ch. 110A, par. 106.) Rule 105 allows several methods of notice, including certified mail (return receipt requested). (Ill. Rev. Stat. 1979, ch. 110A, par. 105(b).) Defendant does not contend that the notice was inadequate. Mere notice, however, cannot confer personal jurisdiction.

In the absence of a statutory limit on the trial court’s power to grant section 72 relief, the only limit is that established by the due process clause. Due process as a criterion for personal jurisdiction was announced by the United States Supreme Court in International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, and recently restated and summarized in World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490,100 S. Ct. 559. Due process requires that, in order to submit a non-resident defendant to the personal jurisdiction of the forum State’s courts, the defendant must have certain “minimum contacts” with the forum State. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158; World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 291, 62 L. Ed. 2d 490, 498, 100 S. Ct. 559, 564.) Notwithstanding the presence or absence of minimum contacts, the trial court has power — that is, jurisdiction — to decide whether it has jurisdiction. (See People ex rel. Adamowski v. Dougherty (1960), 19 Ill. 2d 393, 399, 167 N.E.2d 181.) In the instant case, plaintiff’s complaint was dismissed while the trial court was still considering the jurisdictional issue. The section 72 proceeding did no more than return the case to that jurisdictional juncture. We believe that a court that has the power to decide jurisdiction and to dismiss prior to such decision should also have the power to vacate the dismissal and resume consideration of the jurisdictional issue.

Following International Shoe and World-Wide Volkswagen, the analysis of a court’s personal jurisdiction over a defendant normally begins with a consideration of the defendant’s contacts with the forum State. Here, such analysis is frustrated: the jurisdictional facts were not passed on by the trial court and are not before this court on appeal. Another anomaly is that one of the functions of the minimum contacts concept is to protect the defendant from the burden of litigating in a distant or inconvenient forum. (World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286,291-92,62 L. Ed. 2d 490,498,100 S. Ct. 559,564.) Yet, the defendant who chooses to challenge the sufficiency of contacts rather than default must come to the forum to litigate that issue. Defendant here has chosen to litigate jurisdiction in the Illinois courts.

One factor bearing on the due process issue is the defendant’s reasonable expectation of being haled into court. (See World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286,297,62 L. Ed. 2d490,501,100 S. Ct. 559, 567.) When plaintiff’s complaint was dismissed for want of prosecution, defendant could reasonably have anticipated that plaintiff would contest that result and seek to vacate the order. Whether it is reasonable to require the defendant to defend a particular suit in the courts of the forum State is another facet of the due process analysis. (See World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286,292,62 L. Ed. 2d 490, 498, 100 S. Ct. 559, 564.) The forum State’s interest in adjudicating the dispute is a factor in evaluating the reasonableness of requiring the defendant to respond. (See World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 292, 62 L. Ed. 2d 490,498,100 S. Ct. 559,564.) In the case at bar, the trial court had the power to dismiss the underlying case when it appeared that plaintiff was not pursuing it. The court also had an interest in deciding whether that dismissal was final, that is to say, the court had an interest in disposing of the merits of the section 72 petition.

We acknowledge that defendant could not respond to the merits of plaintiff’s section 72 petition without waiving his special appearance. This fact, however, should be evaluated in light of the essential simplicity of the decision required in the instant appeal. The question is jurisdiction, and, in the absence of statute, the answer is found in due process. The lowest common denominator of due process is fundamental fairness, so the question becomes: is it fundamentally unfair to require this defendant to return to the trial court without an opportunity to argue the merits of plaintiff’s section 72 petition? Given the fact that defendant did not “win” the earlier dismissal and could not have relied on its finality, we find that there is no unfairness in requiring the parties to resume their status quo ante. Returning to the quantitative analogy set forth above, we conclude that the trial court had “enough” jurisdiction over defendant to decide the merits of the section 72 petition.

It is also important to note the matters that we do not decide. Although the trial court reserved the jurisdictional question for consideration in the reinstated underlying case, we see no reason to prefer this sequence over its alternative. The trial court might have evaluated its personal jurisdiction over defendant before deciding the merits of the section 72 petition, in which case a finding of personal jurisdiction would have bound defendant in the underlying action. Also, nothing herein is meant to suggest that a trial court may ignore personal jurisdiction over the respondent to a section 72 petition. It is not likely, however, that the question will arise often. The great majority of section 72 proceedings fall into one of two categories, neither of which presents a jurisdictional problem. Where both parties appeared generally in the underlying action, personal jurisdiction is revested by a proper section 72 petition. (See Stevens v. City of Chicago (1970), 119 Ill. App. 2d 366, 371, 256 N.E.2d 56.) Where the defendant in the underlying action fails to appear and defaults, he submits to the court’s jurisdiction by filing a section 72 petition to vacate the default judgment. The jurisdictional question posed by the present case is likely to recur only where the defendant in the underlying case appeared specially and the plaintiff in the underlying action is the petitioner in the section 72 action.

Considering the due process criteria set forth in International Shoe and World-Wide Volkswagen Corp., we hold that the trial court’s reinstatement of Knightsbridge’s action is not fundamentally unfair to defendant Rudolph. Since the jurisdictional objection is the only point raised by Rudolph on appeal, the decision of the trial court is affirmed.

Affirmed.

DOWNING and HARTMAN, JJ., concur.

       This form of revesting jurisdiction is unrelated to a concept that bears the same name: revesting by knowing participation in proceedings after the trial court has lost jurisdiction. The latter form of revesting was last applied by our supreme court in Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 50, 97 N.E.2d 817. The current vitality of the doctrine is open to question.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    FIRST NATIONAL BANK OF BLUE ISLAND, Respondent-Appellant, v. ESTATE OF THOMAS PHILP, Petitioner-Appellee.
    First District (3rd Division)
    No. 81-2005
    Opinion filed April 28,1982.
    Thomas G. Vent and Hyman K. Bielsky, both of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    Feiwell, Galper & Lasky, Ltd., of Chicago (Barbara J. Vrdolyak, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, the administrator of the estate of Thomas Philp, brought these citation proceedings seeking a turnover order with regards to the proceeds of an individual retirement account established by the decedent with the respondent First National Bank of Blue Island as custodian. The trial court denied the bank’s motion to quash the citation proceedings and ordered the bank to turn over the proceeds of the I.R.A. to the estate. On appeal the bank contends that it was entitled to set off the proceeds of the I.R.A. against the general indebtedness of the depositor upon the depositor’s death.

On December 31,1975, decedent established an I.R.A. with the bank as custodian. The I.R.A. designated decedent’s wife as the beneficiary and, in the event that she predeceased decedent, recited that the proceeds would pass to the estate. On January 3,1978, decedent and his wife died in an airplane crash. There is no evidence that either party survived the other.

During decedent’s lifetime, he incurred certain debts to the bank as evidenced by various promissory notes. The notes contained the following language:

“The holder has a security interest for the payment of all obligations due it in all property and assets of Debtor which are in the possession or control of Holder and a right of set-off or lien on any deposit or sums now or hereafter owed by Holder to Debtor.”

In July 1979, the bank attempted to set off the proceeds of the I.R.A. against the indebtedness of the decedent under three promissory notes. These proceedings ensued, and the trial court directed the bank to distribute the I.R.A. proceeds to the estate in accordance with the beneficiary clause of the I.R.A. agreement.

An I.R.A. is defined as a trust created or organized for the exclusive benefit of an individual or his beneficiaries. (Internal Revenue Code, Pub. L. No. 94-455,90 Stat. 1834 (codified at 26 U.S.C. sec. 408(a) (1976)).) The code also provides that the trustee must be a bank; that the interest of the individual in the balance of the account is nonforfeitable; and that the assets of the trust will not be commingled with the other property, except in a common trust fund or common investment fund. (Sec. 408(a)(2)(4)(5).) The I.R.A. agreement in the present case contained the following pertinent provisions:

“Article III. No part of the custodial funds shall be invested in life insurance contracts, nor may assets of the custodial account be commingled with other property except in a common trust fund. Article IX(1). Depositor’s contribution shall be held by the custodian in a savings account or certificate of deposit as the Depositor may direct. All contributions shall be held in the name of the Depositor and shall not become mingled with other such accounts or property. All interest shall be credited to the Depositor’s custodial account.
Article IX(2). The Depositor shall not have the right to assign transfer or pledge any interest in his account and the Depositor’s interest in the account shall not be subject to any claims of creditors.”

The I.R.A. agreement also provided that the depositor’s interest in the account shall be nonforfeitable.

On appeal the bank maintains that it was entitled to set off the proceeds of the I.R.A. against the general indebtedness of the depositor upon the depositor’s death.

A bank has the right to set off funds on general deposit against a debt of depositor. (Mid-City National Bank v. Mar Building Corp. (1975), 33 Ill. App. 3d 1083, 339 N.E.2d 497.) A special deposit, however, is the delivery of either money or chattel to a bank under a special agreement, or other circumstances sufficient to create a trust. (People ex rel. Auditor of Public Accounts v. West Side Trust & Savings Bank (1941), 376 Ill. 339, 33 N.E.2d 607.) In the case of a special deposit, instead of creating the relation of debtor and creditor, the deposit creates a bailment, and there is an agreement that the money or chattel is to be returned intact on demand. (Mid-City National Bank v. Mar Building Corp.) Examining the present I.R.A. agreement, it is clear that the proceeds of the I.R.A. constituted a special deposit. The assets were not to be commingled with other property nor mingled with other such accounts; decedent’s interest was not subject to claims of creditors; and the decedent’s interest was nonforfeitable. (See Durkee v. Franklin Savings Association (1974), 17 Ill. App. 3d 978, 309 N.E.2d 118.) Consequently, the proceeds of the I.R.A. were not subject to set-off against a general indebtedness of the decedent depositor.

The bank apparently concedes that the I.R.A. here was a special deposit, but argues that such special status was terminated upon the depositor’s death. We do not agree. The bank assumed certain duties and obligations under the I.R.A. agreement, and among these was its duty to distribute the proceeds according to its agreement. Upon the death of the depositor prior to distribution, the bank is obligated to distribute the proceeds of the estate under the provisions of the I.R.A. agreement. The proceeds never became available to the bank, and the I.R.A. remained a special deposit until that distribution of the proceeds had been made. See Filosa v. Pecora (1976), 44 Ill. App. 3d 912, 358 N.E.2d 1213.

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

Judgment affirmed.

WHITE, P. J., and McGILLICUDDY, J., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    GUILLERMO ROMO, Adm’r of the Estate of Francisco Romo, Deceased, Plaintiff-Appellant, v. ALLIN EXPRESS SERVICE, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 81-1994
    Opinion filed April 30,1982.
    William C. Starke, of Chicago (Larry Saska, of counsel), for appellant.
    Van Duzer, Gershon, Jordan & Petersen, of Chicago (John B. Van Duzer and Horace W. Jordan, of counsel), for appellees.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal involves the propriety of an order dismissing plaintiff’s action against certain defendants on the ground that it was barred by the provisions of section 5(a) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)).

It appears that plaintiff’s decedent, an employee of defendant Allin Express Service, Inc. (Allin), was operating one of its trucks in the course of his employment when the truck caught fire and decedent received burns resulting in his death. Plaintiff made application for and obtained benefits under the Act on the basis that the death of decedent arose out of and in the course of his employment.

In count I of his complaint, plaintiff asserted an action under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 1 et seq.) against Allin and the individual defendants, who as officers of Allin were co-employees of plaintiff, alleging they were negligent in the maintenance and use of the truck. Defendants then moved, under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48), to dismiss count I on the ground that the action against them was barred by section 5(a) of the Act. Plaintiff responded by asserting that defendants were acting in a dual capacity as the employers of decedent and as owners of the truck he was driving, and that his wrongful death action was against them in their capacity as owners of the truck. After a hearing, the motion to dismiss was granted as to all defendants and this appeal followed.

Opinion

Initially, we note that, while plaintiff has appealed from the order dismissing all defendants, the only issue presented by him on appeal is “whether the employee can recover from the employer if his injuries resulted from a breach of a duty independent of the duty of an employer qua employer.” Plaintiff makes no contention or argument that the case was improperly dismissed as to the individual defendants, and that issue not having been presented on appeal, it is waived (see Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 401 N.E.2d 1032), and the dismissal as to them will be affirmed. In any event, the action was properly dismissed as to the individual defendants, because it was based on the dual-capacity doctrine which is not applicable to co-employees. As stated in McCormick v. Caterpillar Tractor Co. (1980), 82 Ill. App. 3d 77, 80, 402 N.E.2d 412, 415:

“No case has been called to our attention where statutory immunity of coemployees has been abrogated by the ‘dual capacity doctrine.’ One purpose of the Workmen’s Compensation Act was to relieve employees of the possible financial burden arising from their negligently injuring coemployees [Citation]. We see no indication of intent in Smith [v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 396 N.E.2d 524] to deny this immunity merely because an employee might be serving an employer in a capacity different than that of another employee whom he might injure.”

As to his action against Allin, plaintiff maintains that the facts come within the dual-capacity doctrine, concerning which it was said by the supreme court in McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 357, 423 N.E.2d 876, 878, that:

“In relatively recent years an exception to the exclusive-remedy provision of the Workmen’s Compensation Act has developed under what has come to be called the dual-capacity doctrine. Professor Larson, in his treatise on Workmen’s Compensation Laws states: ‘Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.’ (2A A. Larson, Workmen’s Compensation sec. 72.80, at 14 — 114 (1976);) The doctrine of dual capacity was applied by this court in Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313.”

As further stated in McCormick:

“The decisive test to determine if the dual-capacity doctrine is invocable is not whether the second function or capacity of the employer is different and separate from the first. Rather, the test is whether the employer’s conduct in the second role or capacity has generated obligations that are unrelated to those flowing from the company’s or individual’s first role as an employer. If the obligations are related, the doctrine is not applicable.” 85 Ill. 2d 352, 357, 423 N.E.2d 876, 878.

Plaintiff contends here that the dual-capacity doctrine is applicable because, in addition to its role as employer, Allin was also the owner of the truck driven by decedent and, in this capacity, plaintiff maintains — relying on Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 396 N.E.2d 524 — that Allin does not have section 5(a) immunity. In Smith, plaintiff was an employee of a joint venture who sued one of its members (defendant) who leased to the joint venture a defective truck which allegedly caused plaintiff’s injuries. The court, in applying the dual-capacity doctrine, found that in his role as lessor of the truck, defendant did not have section 5(a) immunity, reasoning that an employer who acts in the second capacity as a lessor of a truck would incur obligations unrelated to those flowing from his role as an employer in that “[a] lessor of a defective vehicle is held to the same strict liability standards as a manufacturer or seller.” 77 Ill. 2d 313, 319, 396 N.E.2d 524, 527.

Here, plaintiff has pointed to no such unrelated obligation incurred by an employer who is the owner of a truck furnished to an employee to be used in the course of employment, and we are aware of none. It is significant that in Smith, the court also said “[t]he allegedly defective truck which caused plaintiff’s injuries was not a tool furnished by defendant as a member of the joint venture [plaintiff’s employer], but was equipment leased to the joint venture under the express terms of the joint-venture agreement.” (77 Ill. 2d 313, 319, 396 N.E.2d 524, 527.) We believe that the Smith court used the word “tool” in the sense of something furnished an employee for the performance of his work, which implies that the dual-capacity doctrine is not applicable where an employee is injured by a tool or other object provided by his employer.

In that regard, we note that in Rosales v. Verson Allsteel Tress Co. (1976), 41 Ill. App. 3d 787, 354 N.E.2d 553, plaintiff sustained an injury while operating the punch press of his employer, and after receiving Workmen’s Compensation benefits, he brought a common law action against his employer on the basis of its alleged dual capacity of a “quasi-manufacturer” because it had modified the safety control of the press. The court stated:

“To sustain the doctrine of dual capacity here would circumvent the exclusive remedy provision of the Workmen’s Compensation Act, because all employers would then occupy a dual capacity upon the furnishing of tools to their employees. Such a result would repudiate the long line of Illinois Supreme Court cases holding the Workmen’s Compensation Act to be the exclusive remedy against the employer for work-related injuries and would nullify the legislative scheme for compensating work-related injuries.” (41 Ill. App. 3d 787, 790, 354 N.E.2d 553, 556.)

Here, the truck, whose defective condition allegedly brought about the death of decedent, was furnished by Allin for use by decedent in performing the duties of his employment. Thus, the dual-capacity doctrine does not apply, and the trial court properly dismissed the action against Allin because it was barred by section 5(a) of the Workers’ Compensation Act.

For the reasons stated, the judgment is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.

       Section 5(a) provides in part: “No common law or statutory right to recover damages from the employer, his insurer, ° 0 0 or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, 0 6

       Counts II and III, directed against defendant Ford Motor Co., remain pending in the trial court and are not involved in this appeal.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID OLBROT et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 79-1879, 79-2231 cons.
    Opinion filed May 3,1982.
    Rehearing denied June 1,1982.

      Sherwin H. Zaban, of Chicago, for appellant David Olbrot.
    Samuel V. P. Banks and Terrence LeFevour, both of Chicago, for appellant Raymond Burke.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and James B. Koch, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendants Raymond Burke and David Olbrot were found guilty of attempted murder (Ill. Rev. Stat. 1975, ch. 38, pars. 8 — 4, 9 — 1), aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12 — 4(b)(1)) and attempted armed robbery (Ill. Rev. Stat. 1975, eh. 38, pars. 8 — 4,18—2), after a jury trial in the circuit court of Cook County. Burke was sentenced to 30 to 90 years for attempted murder, 3 to 10 years for aggravated battery and 6 to 20 years for attempted armed robbery; Olbrot, to terms of 50 to 100 years, 3 to 10 years and 6 to 20 years, respectively.

Defendants contend they were deprived of a fair trial because (1) the court improperly denied a motion to suppress identifications derived from a suggestive procedure; (2) the testimony of an out-of-State police officer violated discovery rules; (3) constitutional rights to cross-examination of witnesses were improperly restricted by the court; (4) the court erred in sentencing defendants for both attempted murder and aggravated battery and the sentences were excessive; (5) the prosecutor made improper comments during closing arguments; and (6) they were not proven guilty beyond a reasonable doubt. Other issues raised individually by the defendants include (1) bias exhibited by the trial court requires reversal; (2) there was no hearing on a motion for severance; (3) refusal to submit a diagram to the jury was error; (4) alleged admissions by Olbrot were improperly allowed by the trial court; (5) a continuance should have been granted in order to depose a former assistant State’s Attorney previously assigned to the case; and (6) the jury was not properly instructed.

The record shows: During the early morning hours of October 30, 1976, a robbery of the Musket & Henricksen Drug Store, Skokie, Illinois, was attempted. Edward Thun, an off-duty Chicago police officer, was working part-time as a pharmacist at the time. Thun testified that he was approached by a masked man with a gun who ordered him to get away from the cash register. While moving away, Thun grabbed for the gun and struggled with the armed intruder. The mask, of the Halloween variety, fell off during the struggle. Thun was then shot by a second man, who was positioned at the end of the counter. He did not get a chance to see the face of the first gunman.

Lloyd Hannum, an investigator for the Illinois Secretary of State Police, was in the pharmacy to pick up a prescription. He knew Thun casually as one of the workers in the pharmacy. While waiting for the prescription, Hannum noticed two men dressed up for Halloween come into the pharmacy. One man wore a face mask, the other had a plastic bag over his face. He then saw Thun wrestling with the man who wore the mask. Hannum heard gunshots and ran around the prescription counter, behind which he had been standing. He saw Thun on the floor. He observed the masked man running away without his mask. He also saw the second man in a crouched position, holding a gun. As the two assailants fled the pharmacy, Hannum gave chase and fired his own gun at them. He thought one of his shots wounded one of them. The bag covering the second assailant came off while he was running away and Hannum was able to see his face. Hannum identified him at trial as defendant Olbrot.

The following day, Hannum testified, he went to Area 6 police headquarters of the Chicago Police Department, where he examined the “mug” books. He identified a picture of Olbrot from one book and a picture of Burke from another.

Hannum made two reports. The first was basically a statement in the field report of the investigating Skokie police officer, Adam Maher. This report described the defendants as 5'8" to 5'9" and noted that the mask was ripped off one assailant during the struggle. The second report made by Hannum was to his superiors. It also contained a diagram of the incident, indicating the positions from which he fired his gun. This diagram positioned everything in the pharmacy, including the various counters, cash register and the location of bullet holes caused by the gunfire. It also contained the positions of the people involved in the incident. On cross-examination, Hannum admitted he did not indicate the positions where he saw the assailants in the store. The diagram also did not contain the positions where Hannum identified the assailants after their masks fell off.

Adam Maher testified that he arrived on the scene to find an injured Thun on the floor. He broadcast the description given to him by Hannum that the defendants were 5'8" or 5'9" or smaller. His police report, however, described the assailants only as 5'8" or 5'9". Maher recovered four lead fragments and a rubber mask from the scene.

At the Skokie Police Department Maher observed a green 1974 Pontiac Firebird. The vehicle identification number observed on the dashboard through the windshield was checked with the Secretary of State’s Office. The true photostatic copy of the title was read into the record. The car belonged to Olbrot.

Robert Heelan, another Skokie police officer, heard a call over his radio about the shooting at the pharmacy. He proceeded to make a roadblock east of the store at an intersection when he noticed an approaching car. As he walked towards the slowing car, he identified it as a dark green Firebird. He was within four feet of the car when it sped . away. He saw one man in the car. The road was lighted by corner street lights, lights from several businesses and the headlights of his car. In court, he identified the man he saw as defendant Burke.

Although Heelan identified Burke before trial from police photographs shown him by Chicago Police Officer Fornelli, he was unable to identify Olbrot. None of the photographs from which identifications were made were produced at trial.

Arthur Von Ahn, a Los Angeles police officer, testified thát he had met Olbrot in November 1976 while working as an undercover officer. He had approached Olbrot to sell a stolen television set in a police-run “fencing” operation. They went to a tavern. While there, Von Ahn testified, Olbrot told him of a drugstore robbery in Illinois and said he had shot a policeman while receiving a bullet wound in the back. In January 1977 Von Ahn arrested Olbrot after learning his identity.

Both defendants maintain that the trial court’s denial of the motion to suppress suggestive photographic identification was error. At the hearing on the motion to suppress, Burke’s divorced wife, Lois, testified that on the evening of October 30, 1976, she let several police officers into her apartment without a search warrant. These officers had their guns drawn. She said they questioned her in the kitchen. No search of the apartment was conducted. She stated, however, that on a later visit her apartment had been ransacked by the police. She noticed that an address and telephone book were missing and that several pictures had been taken. At no time had she been shown a search warrant.

Skokie Police Officer Donald Hennessy testified that he visited Mrs. Burke’s apartment on several occasions and that Mrs. Burke gave him three pictures of her former husband. He did not give her a receipt nor did he mention the pictures in his police report. He also stated he was present when Heelan made a photographic identification of Burke from the mug books. He also showed Heelan a picture of Burke he had received from his visit with Burke’s former wife. Hennessy stated Heelan never identified Olbrot.

Chicago Police Officer Fornelli also testified to the identification procedures at the hearing to suppress. He first showed mug books to Hannum, who made positive identifications of both Olbrot and Burke. He then showed the mug book with Burke’s photograph to Heelan, who made an identification.

Heelan and Hannum testified to the photographic identifications they made. Thomas Kelly testified he was the Chicago police officer in charge of investigating the robbery of October 30,1976. He said Chicago police personnel were involved because the victim was a Chicago police officer. Kelly stated he was present in Mrs. Burke’s apartment and interviewed her. He stated he was unaware of anything taken from the apartment except several pictures which were given to him by Mrs. Burke.

Burke argues that the photographic identifications made by the two police officers were impermissibly suggestive and there was a substantial likelihood that misidentification occurred. (Simmons v. United States (1968), 390 U.S. 377,19 L. Ed. 2d 1247,88 S. Ct. 967.) It is also argued that the failure to produce the photographs used in the out-of-court identification procedures should be held against the State. (People v. Jackson (1973), 12 Ill. App. 3d 789, 299 N.E.2d 142.) We disagree with these contentions. In Jackson, under similar circumstances it was held that a photographic identification where the photos were not produced was not suggestive. (12 Ill. App. 3d 789,793.) Although it is poor police procedure not to retain photographs used in a photographic identification, photographs need not be produced to prove or disprove suggestiveness. People v. Brown (1972), 52 Ill. 2d 94,285 N.E.2d 1; People v. Dallas (1980), 85 Ill. App. 3d 153,405 N.E.2d 1202.

Suggestiveness may be demonstrated by testimony from the participants in the photographic identification or by any other evidence relative to the inquiry. (People v. Dallas). Officer Hannum identified both defendants while viewing mug books obtained from the Chicago Police Department. Officer Heelan failed in his first viewing of the mug books to identify either defendant. At the same time he also failed to identify a “doctored” photo of defendant Olbrot. After a second viewing of similar mug books, Officer Heelan identified defendant Burke. He also identified a single photograph of Burke wearing a tuxedo. Officer Heelan never identified Olbrot at any time.

The record does not reflect that the police directed attention to defendants’ photographs or in some manner suggested that they were the ones who committed the crime. Officers Hannum and Heelan separately viewed the mug books and made the identification therefrom. We find, under the circumstances, that the photographic identifications were not suggestive. People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112.

Olbrot argues that he was denied a hearing on his motion for severance. This motion was based on the fact that his defense would include evidence which was part of his co-defendant’s motion to suppress and thus there were antagonistic defenses.

The mere apprehension that defenses may prove antagonistic, without a showing that such apprehensions are well founded, is an insufficient ground for severance. (People v. Murphy (1981), 93 Ill. App. 3d 606, 417 N.E.2d 759; People v. Moore (1978), 65 Ill. App. 3d 712, 382 N.E.2d 810, cert, denied (1980), 444 U.S. 1043, 62 L. Ed. 2d 729,100 S. Ct. 729.) The record reflects that the trial court heard arguments before the hearing to suppress and, after reserving a ruling on the matter, again at the end of the hearing. At that time, the trial court found there were no antagonistic defenses. We find that the trial court’s refusal to grant a severance was proper and was within the sound exercise of its discretion. People v. Rogers (1979), 79 Ill. App. 3d 745, 398 N.E.2d 1058.

Defendants contend the trial court erred in permitting Officer Von Ahn of the Los Angeles Police Department to testify to alleged oral admissions made to him by Olbrot because that testimony was not disclosed pursuant to a discovery request. In answer to defendants’ prior discovery motion, the State had listed Officer Von Ahn as a possible witness. This answer also indicated that any statements by defendants were contained in police reports which had previously been furnished to defendants’ counsel. These reports revealed Olbrot told Officer Von Ahn about being involved in a drugstore robbery and shooting in Indiana.

Officer Von Ahn arrived in Chicago after the trial in this cause had commenced. The State then learned that he had additional information which was not contained in the police reports. This information included a statement by Olbrot relating to involvement in a robbery in Illinois. Upon discovering this information, the State informed defense counsel and made Officer Von Ahn available for depositions. Defense counsel took his deposition.

Defendants claim surprise and a lack of adequate time to prepare and investigate the circumstances surrounding Olbrot’s statements as testified to by Von Ahn. (73 Ill. 2d R. 412(a) (ii); Ill. Rev. Stat. 1979, ch. 38, par. 114 — 10(a); People v. Young (1978), 59 Ill. App. 3d 254, 375 N.E.2d 442.) The State argues that it was unaware of the additional information possessed by Officer Von Ahn and that the information was revealed immediately upon its discovery.

The legislative purpose behind the discovery provisions is to provide the accused with protection against surprise, unfairness and inadequate preparation. (People v. O’Connell (1964), 30 Ill. 2d 603,198 N.E.2d 834; People v. Clinton (1976), 43 Ill. App. 3d 62, 356 N.E.2d 1119.) Compliance with such discovery requests is excused only where the “court is satisfied that the prosecutor was unaware of the existence of such confession prior to trial and that he could not have become aware of such in the exercise of due diligence.” Ill. Rev. Stat. 1979, ch. 38, par. 114 — 10(c); People v. Shegog (1976), 37 Ill. App. 3d 615, 346 N.E.2d 208.

The trial court was informed that although Von Ahn had stated that he had given the information to a former assistant State’s Attorney, that attorney when reached by telephone had claimed a lack of knowledge of the additional information. It is clear from the record that defendants were aware of Officer Von Ahn from the earlier witness list. The record also indicates that defense counsel had knowledge of the general nature of the inculpatory information possessed by Officer Von Ahn. Furthermore, defense counsel deposed Officer Von Ahn the day before he testified and were able to conduct an extensive cross-examination of the witness. Under the circumstances, we feel defendants were not placed at an unfair disadvantage by surprise. People v. Carbona (1975), 27 Ill. App. 3d 988, 327 N.E.2d 546, cert, denied (1976), 424 U.S. 914, 47 L. Ed. 2d 319, 96 S. Ct. 1114; People v. Gamble (1976), 41 Ill. App. 3d 394, 353 N.E.2d 136.

Defendant Olbrot also argues that it was prejudicial error for the court to allow Officer Von Ahn to testify to his admissions because they were vague as to time and place. An admission is a statement of independent fact which, when taken in connection with other facts, may lead to an inference of guilt of the alleged crime. (People v. Ellis (1976), 41 Ill. App. 3d 377,354 N.E.2d 369.) The credibility of an admission is for the trier of fact and, where there are inconsistencies between several admissions in evidence, the trier of fact may accept all, parts or none of the admissions. (People v. Gamble; People v. DiGerlando (1964), 30 Ill. 2d 544, 198 N.E.2d 503.) We conclude there was no error in admitting Von Ahn’s testimony.

Defendant Olbrot next argues that a defense request for a continuance to depose the former assistant State’s Attorney should have been granted. All motions for continuance are addressed to the discretion of the trial court and are considered in light of the movant’s own diligence. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 4(e).) This discretion will not be interfered with except in cases of clear abuse. (People v. Clark (1956), 9 Ill. 2d 46, 137 N.E.2d 54, cert, denied (1957), 352 U.S. 1002, 1 L. Ed. 2d 546, 77 S. Ct. 558.) A defendant challenging the denial of the motion must show that he was prejudiced at trial by its refusal. (People v. Banks (1974), 19 Ill. App. 3d 857, 312 N.E.2d 332.) No such showing was made by Olbrot and an examination of the record reveals no abuse of discretion.

Defendant asserts their constitutional right to confront and cross-examine witnesses (U.S. Const., amend. VI) was unfairly limited by the trial court. (People v. Kellas (1979), 72 Ill. App. 3d 445,389 N.E.2d 1382.) Specifically, it is argued that they were not permitted to delve into police investigative procedures during the cross-examination of Officers Hannum and Fornelli. Attempts were also made to show the personal and working relationship of several of the investigative officers and the victim. The State argues that the prohibited impeachment was repetitive, of a harassing nature and defendants were actually allowed to inquire into the procedures used during the investigation.

It is proper on cross-examination to develop all circumstances within the knowledge of a witness which explain, qualify, discredit or destroy his direct testimony, although the circumstances may incidentally constitute new matter which aids the cross-examiner’s case. (People v. Williams (1977), 66 Ill. 2d 478, 363 N.E.2d 801; Card, Illinois Evidence Manual R. 22:08, at 439 (2d ed. 1979).) The scope of cross-examination is largely within the discretion of the trial court and his decision will not be overturned unless there has been an abuse of discretion which has prejudiced the defendant. People v. McElroy (1980), 81 Ill. App. 3d 1067, 401 N.E.2d 1069.

Here, defense counsel was allowed to question Officer Hannum about the circumstances surrounding his making of several reports and the omission of some facts from these reports. Officer Fornelli testified to his role in the investigation of the incident. He detailed the procedures used during the photographic identifications made by Officer Hannum and Heelan. Defense counsel was not allowed to read to the jury a Chicago Police Department manual on investigative procedures. However, defendants’ attorneys were able to cross-examine Officer Fornelli on the procedures he usually followed for similar photo identifications.

In our view, the trial court did allow cross-examination as to the investigative procedures used in this case. Any discrepancies between those used in this case and the procedures normally followed were heard by the jury. Alleged bias was also allowed to be shown through the witness’ relationships with the victim. Questioning was restricted only when it became repetitive and argumentative. Under these circumstances we cannot find the trial court abused its discretion.

Defendant Olbrot further claims that a diagram, concerning which Officer Hannum testified, should have been submitted to the jury. The diagram was a firearms report made by Hannum to be filed with his superiors to explain the circumstances surrounding the firing of his gun. Merely because a diagram is part of a police report does not bar its admission when the diagram is separated therefrom and the diagram only is admitted. (Peterson v. Lou Bachrodt Chevrolet Co. (1978), 61 Ill. App. 3d 898, 378 N.E.2d 618; Walls v. Jul (1969), 118 Ill. App. 2d 242, 254 N.E.2d 173.) Admission of such a report, containing an officer’s physical observation, is within the trial court’s discretion for clarification of the testimony. People v. Watkins (1981), 98 Ill. App. 3d 889,424 N.E.2d 701.

Officer Hannum testified at length about his diagram and what was or was not contained in it. Discrepancies and omissions which were elicited were fully argued to the jury. Consequently, the jury had all the evidence on that issue before it. The trial court refused to submit the diagram to the jury because of the extraneous information contained therein which he considered to be hearsay. There was no prejudice to Olbrot and no error by the court.

Defendants next maintain that they were denied a fair trial due to the improper and prejudicial comments of the prosecutor during closing arguments. Alleged improper comments included allusions to defendants not testifying and misrepresentations of the record. In the former instance, the prosecutor stated, “have you heard any evidence that they were not in the drug store.” An objection by defense counsel was sustained by the trial court. After examining the record and the context within which it appears, we find People v. Carroll (1977), 49 Ill. App. 3d 387, 364 N.E.2d 408, appeal denied (1977), 66 Ill. 2d 632, to be controlling. There, the appellate court upheld similar statements which were directed at the defense attorneys. (49 Ill. App. 3d 387,395.) Also, in People v. Hopkins (1972), 52 Ill. 2d 1, 284 N.E.2d 283, the supreme court held that references to uncontradicted evidence were proper in a situation where the testimony was actually uncontradicted.

Defendants must establish that there was a reasonable possibility that the questionable language, in light of all of the evidence, was a material factor in their convictions. (People v. Shorter (1978), 59 Ill. App. 3d 468, 375 N.E.2d 513; People v. Nicholls (1969), 42 Ill. 2d 91, 245 N.E.2d 771, cert, denied (1970), 396 U.S. 1016, 24 L. Ed. 2d 507,90 S. Ct. 578.) We feel the arguments complained of did not constitute a material factor in the convictions (People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363) or result in a substantial prejudice to defendants. People v. Nemke (1970), 46 Ill. 2d 49, 263 N.E.2d97.

Defendant Burke further argues that comments made by the trial court showed bias against him. The comments claimed to evince bias are isolated events in the course of the trial and are argued by defendant in a vacuum. Although a statement from the bench obliquely referring to defense counsel’s religion may have been ill-advised, it did not manifest any hostility to counsel or his client.

Defendants argue they were not proved guilty beyond a reasonable doubt. It is for the trier of fact to determine the credibility of witnesses, the weight to be given their testimony and inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) Discrepancies or conflicts in the testimony generally affect only the weight to be given the testimony and the trier of fact is free to accept or reject a witness’ testimony. People v. Tribett (1981), 98 Ill. App. 3d 663, 424 N.E.2d 688; People v. Beasley (1977), 54 Ill. App. 3d 109, 369 N.E.2d 260, appeal denied (1977), 65 Ill. 2d 578.

Defendants’ arguments center around the credibility of Officer Hannum’s identifications and bias involved with the participation of the victim’s fellow members of the Chicago Police Department. The jury, as it was entitled to do, determined that the testimony of Officer Hannum, among others, was credible. (People v. Bradley (1971), 3 Ill. App. 3d 101, 278 N.E.2d 243.) We have reviewed the record carefully and find that the verdict of the jury is sustained by the evidence beyond a reasonable doubt.

Defendant Burke also contends reversible error occurred when the trial court submitted instructions to the jury on the elements of attempt murder and accountability. It is argued that the instructions given would allow the jury to convict him without finding that he had the specific intent to murder. (Citing People v. Harris (1978), 72 Ill. 2d 16,377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.) These cases are not directly applicable to the instructions given here.

The tendered instruction for murder reads:

“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he intends to kill that individual; or he knows that such acts will cause death to that individual.”

Belief on the part of an actor that certain results would follow his conduct is sufficient to show a specific intent for that result to occur. (People v. Morano (1979), 69 Ill. App. 3d 580, 387 N.E.2d 816, appeal denied (1979), 79 Ill. 2d 616; People v. Shields (1955), 6 Ill. 2d 200,127 N.E.2d 440.) We have examined the evidence and the instructions and find that the trial court properly instructed the jury on the elements of attempt murder and accountability. See People v. Morano; People v. Hancock (1980), 83 Ill. App. 3d 700, 404 N.E.2d 914, appeal denied (1980), 81 Ill. 2d 595.

Defendants finally contend they were improperly sentenced for both the convictions of aggravated battery and attempted murder. This argument is based on the premise that aggravated battery is the lesser included offense of attempted murder. People v. Williams (1978), 62 Ill. App. 3d 966,379 N.E.2d 1268; People v. Peery (1967), 81 Ill. App. 2d 372, 225 N.E.2d 730.

In the case at bar, separate and distinct acts occurred upon which convictions for both aggravated battery and attempted murder are proper. (See People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273; People v. Cross (1980), 84 Ill. App. 3d 868, 406 N.E.2d 66.) During the robbery attempt, Burke, armed with a revolver, began fighting with Thun. Olbrot then appeared and fired a shot, injuring Thun. These acts clearly constituted separate acts, committed during the attempted robbery, for which defendants may be held accountable. Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2; People v. Hamilton (1981), 100 Ill. App. 3d 942,427 N.E.2d 388.

As to the claim of excessive sentences, the imposition of a sentence is a matter of judicial discretion and, absent any abuse of that discretion by the trial court, a sentence may not be altered upon review. (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Defendants have not shown nor do we find that the trial court abused its discretion.

The convictions and sentences are affirmed.

Affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.


author: JUSTICE McGLOON

text:
      In re MARRIAGE OF BARBARA SALES, Petitioner-Appellee, and WILLIAM A. SALES, Respondent-Appellant.
    First District (1st Division)
    No. 80-3045
    Opinion filed May 3,1982.
    Mel Sloan, of Chicago, for appellant.

      Howard H. Rosenfeld and Alan M. Goldberg, both of Rosenfeld, Hafron & Shapiro, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Respondent appeals from the judgment entered in a dissolution of marriage proceeding. On appeal, respondent contends the trial court (1) abused its discretion in distributing the marital property; (2) abused its discretion in awarding petitioner $1000 per month in maintenance; and (3) erred in denying respondent a hearing on attorney fees.

We affirm in part, as modified, reverse in part, and remand.

Initially, we note that this action should have been filed in Lake County, where the parties were domiciled prior to the dissolution of marriage. Section 104 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 104) provides that proceedings are to be conducted in the county where petitioner or respondent resides. This section is not an idle directive from the legislature which may be disregarded as the parties choose. As noted in In re Marriage of Jones (1982), 104 Ill. App. 3d 490, wherein a similar venue problem existed, the parties should have advised the court that venue was not proper and obtained an appropriate order waiving the venue requirement and granting leave to file the petition. Nonetheless, despite the parties’ failure to comply with section 104, we elect to consider this appeal.

The following evidence was adduced during the hearings in the court below. Petitioner and respondent had been married 27 years and reared four children. The children were past the age of majority. When respondent became unemployed in 1970, petitioner began working and continued until 1976. She quit working because of arthritis.

The parties stipulated that all property was marital property. The primary assets were the marital residence, three businesses in which respondent had interests, and an airplane. Regarding the marital residence, petitioner testified that a realtor estimated the value at $135,000. Respondent believed the house was worth approximately $180,000. The balance on the mortgage was approximately $20,000 to $25,000.

Respondent also had an 80% interest in William A. Sales Industries, a partnership which owns and leases the realty in which respondent operates William A. Sales, Limited. The downpayment on partnership property was made with funds from the parties’ savings accounts and, at the time of the hearings, the realty had an appraised value of $200,000. The remainder on the principal of the mortgage was approximately $93,000. Each year, the partnership collected $8000 in rental income. Respondent’s income from the partnership as reflected on his 1976, 1977 and 1978 personal tax returns was $605, $6,116, and $1,775, respectively.

Respondent had a two-thirds interest in William A. Sales, Limited, a company which manufactures laboratory glassware. The parties’ home was remortgaged to finance the business. As president and principal salesman, respondent was entitled to $36,000 per year in salary. His net pay per month based on this figure was $2,100. However, respondent did not receive his full salary in years of limited cash flow. Respondent’s expert valued this business between $50,000 and $60,000. Petitioner testified that respondent told her it was worth approximately $300,000.

Respondent owned a 50% interest in William A. Sales, Limited of New Jersey. He testified that he received one-half of the $6000 paid by the company in commissions in 1977. He further testified that he received none of the $8,500 paid in commissions in 1978.

Respondent also claims a 50% interest in an airplane used almost exclusively for business purposes. Respondent contributed one-half or $12,500 of the purchase price but reports all the rental income, depreciation, and expenses on his personal tax returns.

The balance in petitioner’s savings account was $1,500. She also had $2000 in an Individual Retirement Account (IRA). Respondent testified he had $800 in a checking account and $4,500 in two IRAs.

After the hearing, the trial court entered a judgment which provided, in part, as follows. Petitioner was to have possession of the marital residence and personalty contained therein, receive $1000 per month maintenance, and obtain 20% of respondent’s interest in William A. Sales Industries. Respondent was to provide petitioner with a hospitalization policy and a new car. Respondent retained his interests in William A. Sales, Limited, William A. Sales, Limited of New Jersey, and the airplane. He was also ordered to pay one-half of petitioner’s $10,000 attorney fees and $6,441.62 in arrearages resulting from his failure to pay support pursuant to a temporary order.

First, respondent contends that the trial court erred in failing to assign a specific value to each marital asset. The Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.) requires only that evidence of value be introduced and does not require the trial court to determine and articulate an actual value. (In re Marriage of Hyland (1981), 95 Ill. App. 3d 31, 419 N.E.2d 662; In re Marriage of Thompson (1979), 79 Ill. App. 3d 310,398 N.E.2d 17.) Thus, respondent’s contention to the contrary is without merit.

Second, respondent contends the trial court abused its discretion in distributing the marital property. Section 503 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 503) lists the factors to be considered by the trial court regarding distribution. Where the trial court considers these factors, its decision will not be reversed absent an abuse of discretion. In re Marriage of Smith (1980), 90 Ill. App. 3d 168, 412 N.E.2d 985.

The only aspect of the distribution which disturbs this court is the award to petitioner of 20% of respondent’s interest in William A. Sales Industries. In dissolution of marriage proceedings, courts should seek to minimize further business dealings between the parties. Division of small businesses or closely held corporations is particularly disadvantageous where it would require ongoing business association between the parties and the record reflects animosity between the parties. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087; In re Marriage of Kennedy (1981), 94 Ill. App. 3d 537, 418 N.E.2d 947.) In the case at bar, there was sufficient other property from which to award petitioner an equitable share without dividing respondent’s interest in the partnership. Furthermore, respondent’s retention of his interest in the partnership would serve to advance one purpose of the Act, namely cutting off entitlements so the parties can go their separate ways. (In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321.) We, therefore, modify that portion of the judgment awarding petitioner a 20% interest in William A. Sales Industries.

Regarding the other aspects of the distribution, we find no abuse of discretion. Evidence was introduced on the value of the marital residence, the businesses owned by respondent and the airplane. The record indicates that the trial court was aware of and considered the age, health, occupations, amounts and sources of income, employability, needs and economic circumstances of each party as well as the opportunity of each party for the future acquisition of capital assets. The parties had been married for 27 years and reared four children and the trial court properly considered petitioner’s contribution as a homemaker and parent during this time. (In re Marriage of Komnick (1981), 84 Ill. 2d 89, 417 N.E.2d 1305.) The trial court heard the evidence and observed the witnesses and was in a better position than this court to determine the equities.

Third, respondent contends the amount of maintenance awarded petitioner is excessive. An award of maintenance is within the discretion of the trial court. (In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321; In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 398 N.E.2d 641.) The criteria for determining the amount and duration of the award are enunciated in section 504 of the Act. Ill. Rev. Stat. 1979, ch. 40, par. 504.

In the case at bar, the trial court found respondent’s economic position to be superior to that of petitioner. Indeed, respondent was employed, owned his own businesses, and pursuant to this court’s action, retains his full interest in them. On the other hand, petitioner was unable to meet her expenses regardless of the allocation of marital assets. The property awarded to her was not income-producing property nor was it readily convertible to cash. She had been employed only 6 of the 27 years of marriage. She testified that the few skills she had were difficult to perform because of arthritis. The only source of income other than support from respondent was from house-sitting and occasionally caring for others’ children. Also, petitioner was to pay the mortgage, taxes, and maintenance expenses for the residence. We find that this evidence supports the $1000 per month award of maintenance.

Fourth, respondent contends the trial court erred in refusing to grant a hearing on the award of attorney fees. On April 10,1980, the petition for fees and the supporting affidavit were filed. A hearing on this petition and other motions was set for June 6, 1980. There is no evidence that this hearing was held and the record reflects petitioner’s recognition of this fact. However, a judgment ordering respondent to pay $5000 of the $10,000 fee was entered on September 23, 1980. On October 22, 1980, respondent filed a motion to vacate the judgment order alleging that fees could not be awarded properly without a full and complete hearing.

We believe the better procedure in this case would be to grant respondent a hearing on the issue of fees. From the facts, it appears that respondent reasonably believed a hearing would be held prior to the entry of an order on the issue and wanted this hearing. Where a hearing is requested, one should be granted. (Scott v. Scott (1979), 72 Ill. App. 3d 117, 389 N.E.2d 1271, citing Sahs v. Sahs (1977), 48 Ill. App. 3d 610, 363 N.E.2d 156.) We are cognizant of the trial court’s familiarity with the parties’ financial positions and the nature of the case. However, respondent should be permitted to present evidence or challenge the amount and reasonableness of the fees.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, as modified, reversed in part, and the cause is remanded for further proceedings.

Judgment affirmed in part, as modified; reversed in part; cause remanded.

CAMPBELL, P. J., and O’CONNOR, J., concur.


author: PRESIDING JUSTICE JOHNSON

text:
    LOIS MULLER, Plaintiff-Appellant, v. HEALTH & HOSPITAL GOVERNING COMMISSION OF COOK COUNTY et al., Defendants-Appellees.
    First District (4th Division)
    No. 81-741
    Opinion filed May 6,1982.
    Rehearing denied June 9,1982.
    Terrence E. Leonard, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Saul A. Epton, Jeffrey Singer, and Mary F. Stafford, all of Epton, Mullin, Segal & Druth, Special Assistant State’s Attorneys, of counsel), for appellees.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Lois Muller, appeals the trial court’s dismissal of her complaint under section 21.1 of “An Act in regard to limitations” (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) (hereinafter referred to as the Limitations Act).

Plaintiff’s complaint alleged that in September 1936 defendants owned and operated Cook County Hospital where plaintiff was born and, as an infant, treated with radiation therapy to combat an enlarged thymus. Plaintiff learned that she had cancer from the treatment when she underwent surgery for removal of a cancerous thyroid on March 23,1978. Plaintiff obtained her original birth records (plaintiff is an adopted child) on September 2, 1979, and discovered that she was born at Cook County Hospital. On March 24, 1980, plaintiff filed suit against defendants. On August 18, 1980, defendants filed a motion to dismiss pursuant to the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 22.1). The trial court granted defendants’ motion to dismiss.

From this judgment, plaintiff appeals, raising the following issues: (1) whether the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 22.1) should be applied to abrogate the discovery rule when the injury is a slowly developing disease whose symptoms did not appear within any applicable limitation period, and (2) whether the Limitations Act was retroactively applied so as to terminate a cause of action without giving plaintiff a reasonable amount of time to file.

We affirm.

Plaintiff contends the Limitations Act should not apply in cases where the negligence causes the insidious development of a disease that cannot be detected by plaintiff until after the applicable limitation period has run. Even in light of the statute’s constitutionality, it should not be applied to these situations.

We disagree with plaintiff’s contention. This contention has been foreclosed by our supreme court’s decision in Anderson v. Wagner (1979), 79 Ill. 2d 295,402 N.E.2d 560, appeal dismissed (1980), 449 U.S. 807,66 L. Ed. 2d 11,101 S. Ct. 54. Citing an Arkansas Supreme Court case, the court stated:

“ ‘Any statute of limitations will eventually operate to bar a remedy and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment.’ (Owen v. Wilson (1976), 260 Ark. 21, 24-25, 537 S.W.2d 543, 545.)” (79 Ill. 2d 295, 311.)

In Owen v. Wilson, the court held that a claimant is not denied due process of law where a reasonable period of limitation has barred the claim without awareness by the claimant that he has been injured. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 311-12; see Baker v. Allen (1982), 104 Ill. App. 3d 1055,_N.E.2d_.) The Anderson court noted that “[although such a result — a cause of action barred before its discovery— seems harsh and unfair, the reasonableness of the statute must be judged in light of the circumstances confronting the legislature and the end which it sought to accomplish.” 79 Ill. 2d 295, 312.

We find Anderson controlling. The Limitations Act provides that no action could be filed more than 2 years after the claimant knew or through the use of reasonable diligence should have known of the injury, but in no event could the action be brought more than 4 years after the date on which the alleged act occurred. Plaintiff’s alleged injury occurred in September 1936. Giving the Limitations Act a liberal construction, plaintiff had until she reached majority (18 years) plus 4 years to file suit (1958). The outer limit, contained in the statute, of 4 years means precisely 4 years. As noted by the Anderson court, this result may seem harsh and unfair. However, the legislative intent was to establish the 4-year outer limit for malpractice cases. Consequently, plaintiff’s case was not filed within the period prescribed by the Limitations Act.

Plaintiff contends the Limitations Act, which shortens the time within which an action must be brought, may not be retroactively applied unless plaintiff has a reasonable amount of time in which to file suit. Thus, applying the statute retroactively to this cause, in effect, gives plaintiff no opportunity to exercise her rights. Defendants contend plaintiff is asserting this issue for the first time on appeal; therefore, it cannot be considered on appeal where it was never raised by the plaintiff in the trial court.

Although plaintiff may not have raised the issue at the trial level, we will consider it on appeal.

Illinois follows the generally accepted rule that an amendment shortening the period in which suit may be filed will not be retroactively applied so as to terminate a cause of action unless the party has a reasonable amount of time after the amendment’s effective date in which to file his action. (Baker v. Allen (1982), 104 Ill. App. 3d 1055, 433 N.E.2d 1032.) Further, the legislature may shorten a statute of limitations and apply it retroactively as long as a reasonable time is available after the enactment of the statute within which preexiting claims may be brought. Charles v. Meyer Medical Group, S.C. (1981), 96 Ill. App. 3d 275,277,421 N.E.2d 334, 335.

The amendment to the Limitations Act became effective on September 19, 1976. Plaintiff’s injury was discovered on March 23, 1978. Therefore, the Limitations Act was shortened before her cause of action was brought. However, the inception of plaintiff’s injury occurred in 1936, approximately 42 years prior to plaintiff’s discovery of the injury. Therefore, the 4-year maximum time limit of the Limitations Act barred plaintiff’s action even before she learned of her injury (Anderson v. Wagner (1979), 79 Ill. 2d 295, 311, 402 N.E.2d 560, 567, appeal dismissed (1980), 449 U.S. 807, 66 L. Ed. 2d 11,101 S. Ct. 54.) As we stated above, this result may seem harsh and unfair, but it is in accord with the Anderson decision. The trial court did not err by dismissing plaintiff’s complaint.

We are aware of the decision in Isaacs v. Michael Reese Hospital & Medical Center (1981), 101 Ill. App. 3d 876, 428 N.E.2d 941, appeal al lowed (1982), 89 Ill. 2d 18, which reached a contrary result. We are not bound by that decision. Isaacs is an appellate court decision; Anderson is a supreme court decision.

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

Affirmed.

LINN and JIGANTI, JJ., concur.


author: JUSTICE LINN delivered

text:
    HERBERT R. LEOPOLD, Plaintiff-Appellant, v. JACK HALLECK, Defendant-Appellee.
    First District (4th Division)
    No. 81-779
    Opinion filed May 6,1982.

      McConnell & Campbell, of Chicago (Anthony S. DiVincenzo, of counsel), for appellant.
    John E. Cunningham, of Chicago, for appellee.
   JUSTICE LINN delivered

the opinion of the court:

Plaintiff, Herbert R. Leopold, now deceased, for whom Marjorie Leopold Rosen, executor of his estate, has been substituted as plaintiff, brought this action against defendant, Jack Halleck, to collect on a promissory note. At trial in the circuit court of Cook County, the trial judge, pursuant to defendant’s motion at the close of plaintiff’s case, directed a verdict in favor of defendant. Plaintiff appeals, contending that under the controlling statute (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 307(2)), plaintiff had satisfied the requirements for establishing a prima facie case, and the trial judge therefore should have denied defendant’s motion and directed defendant to proceed with his defense. The only issue on appeal is whether plaintiff Leopold had presented sufficient evidence to establish a prima facie case which thereby mandated the denial of defendant Halleck’s motion for a directed verdict.

We reverse the dismissal of plaintiff’s complaint and remand for completion of the trial on the merits.

Facts

Plaintiff Leopold filed this action on October 27,1976, to recover on a negotiable promissory note payable to the order of H. R. Leopold and signed by the defendant Jack Halleck. The note, dated August 2, 1971, was for the amount of $5,207.50 at 4% annual interest and was due on August 2,1976, five years from its date of issue and delivery.

On November 9, 1977, after filing suit but before trial began, Leopold died. Marjorie Leopold Rosen, executor of Leopold’s estate, was substituted as plaintiff in this action.

When trial commenced on February 27,1981, plaintiff produced the original note and introduced it as Plaintiff’s exhibit No. 1. Plaintiff then called Halleck as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 60). Halleck testified that the signature on the note was his own. Plaintiff moved the note into evidence over defendant’s objection, rested, and moved for a directed verdict. The trial court denied plaintiff’s motion. Defendant Halleck then moved for a directed verdict in his favor. Counsel for plaintiff argued that introduction of the instrument as evidence of the debt and admission by the defendant that the note bore his signature were the only two requirements to establish a prima facie case under the provisions of the Uniform Commercial Code, the controlling statute (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 307(2)). The trial court nevertheless asserted that, as a matter of law, those two evidentiary factors were insufficient to establish the debt and concluded that plaintiff had failed to prove the individual liability of Jack Halleck and the plaintiff executor’s status as the holder of the note. Accordingly, the trial court granted defendant Halleck’s motion for a directed verdict, concluding that even if plaintiff had established a prima facie case, the evidence was insufficient to shift to defendant Halleck the burden of going forward with his defense.

Opinion

Initially, we note the problem created by what appears to be an existing conflict between two Illinois statutes, each of which purports to govern the procedural and evidentiary requirements for establishing a prima facie case. The plaintiff’s objective under both statutes is to present sufficient evidence to withstand defendant’s possible motion for a directed verdict made at the close of the plaintiff’s case in chief. In the present case, defendant Halleck contends that the applicable standard is that found in section 64(3) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 64(3)), which requires the trial court sitting without a jury to “weigh the evidence,” a phrase interpreted in Hawthorn Mellody Farms Dairy, Inc. v. Rosenberg (1973), 11 Ill. App. 3d 739, 297 N.E.2d 649, to mean that the court must weigh all the evidence, not just evidence favorable to the plaintiff, and reach a final determination on the merits. The trial court immediately enters judgment for the defendant if the plaintiff has not met his burden of proof by a preponderance of the evidence. (11 Ill. App. 3d 739,744,297 N.E.2d 649,653.) Defendant Halleck argues that plaintiff’s limited evidence was insufficient to establish a right to recover on the instrument in question. He points out that delivery of the note, consideration given for the note, the fact that plaintiff is the legal holder of the note, and defendant’s personal liability on the note were never even alleged, much less proven.

Plaintiff, on the other hand, maintains that the standard set by section 64(3) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 64(3)) is inapplicable in the present case because the pertinent Uniform Commercial Code section (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 307) establishes the requirements for recovery on a negotiable instrument such as the note in this case. Plaintiff contends that the presentation of evidence here satisfied the statutory requirements of section 3 — 307 and thus precluded a directed verdict for defendant at the close of plaintiff’s case. We agree with Leopold.

The Uniform Commercial Code standards for establishing a prima facie case on a negotiable instrument take precedence over those in the Civil Practice Act simply because the Civil Practice Act says they do: “The provisions of this Act apply to all civil proceedings 0 0 0 except in • * * proceedings, both at law and equity, in which the procedure is regulated by separate statutes.” (Emphasis added.) Ill. Rev. Stat. 1975, ch. 110, par. 1.

The standard applicable in the present case is that found in section 3 — 307(2) of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 307(2)): “When signatures [on commercial paper] are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” It is apparent that plaintiff Leopold satisfied the statutory requirements; under section 1 — 201(20) (Ill. Rev. Stat. 1975, ch. 26, par. 1 — 201(20)), a “holder” is “a person who is in possession of ” * ” an instrument 0 0 0 issued or indorsed to him or to his order * * Herbert Leopold, the named payee on the instrument, personally instituted this action in 1976. The fact of his death and the court-appointed substitution of his executor does not alter the fact that he or his estate qualified as the holder of the instrument. In Telpner v. Hogan (1974), 17 Ill. App. 3d 152, 308 N.E.2d 7, plaintiff Rose Telpner, legal representative of the estate of Louis Telpner, presented several notes bearing defendant’s admitted signature and testified that they were in the decedent’s possession when he died. The court there stated that “[a]t that point the plaintiff had established a prima facie case and, under the authority of section 3 — 307(2), the burden of proving any defense to enforcement of the instrument shifted to the defendant.” 17 Ill. App. 3d 152, 158,308 N.E.2d 7,11.

Defendant Halleck claims that because the executor did not testify, it was never established that Leopold’s estate was the holder of the note. Further, the attorney for Leopold’s estate refused the court’s invitation to have Marjorie Rosen, the executor, testify to establish her status as holder.

Defendant Halleck contends that the trial court correctly determined that a person claiming to be a holder must prove his status in court. We disagree. Not only does the pertinent case law as well as the statute clearly show that the possession of a negotiable note is prima facie evidence that the possessor is the owner (Schmoldt v. Chicago Stone Setting Co. (1941), 309 Ill. App. 377,33 N.E.2d 182), but the named payee, Leopold himself, originally produced the note when filing this action. We find no merit in defendant Halleck’s claim that Marjorie Rosen, executor, had to produce proof of her status as holder in order to fulfill the statutory requirements of section 3 — 307. Similarly, if the document on its face fulfills the requirements for negotiability set forth in section 3 — 104 of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 104), it is prima facie a negotiable instrument. The necessity for proof of holder status, negotiability, consideration, or any other requirement arises only after the defense has presented some evidence challenging the efficacy of the instrument, the holder status of the possessor, or any other mandatory requirement. “In a suit upon a negotiable instrument itself, the Section presumes a right to recovery, upon proof of the instrument, until and unless it is shown that a defense does exist. Section 3 — 307(2) (3).” Bank of North Carolina, N.A. v. Rock Island Bank (C. D. Ill. 1979), 471 F. Supp. 1301, 1304.

The case of McConnaughy v. Gage (1929), 252 Ill. App. 17, which was not cited by either party in this case, dealt with a situation identical to the one here. Plaintiff McConnaughy introduced a document purporting to be a negotiable note on which she was the named payee. She then called Gage, the maker of the note, as an adverse witness, and he verified the signature as his own. McConnaughy rested her case and moved for a directed verdict, which the court denied. Although defendant Gage had filed an affirmative defense, he chose to produce no evidence but moved instead for a directed verdict in his favor, which the court granted.

When McConnaughy appealed, the appellate court stated, “The introduction of the note in evidence, and the testimony of defendant unequivocally supporting the same, made a sufficient prima facie case entitling plaintiff to recover the amount due upon the note with interest as in said note specified. [Citations.] ‘When appellant offered the notes in evidence it established a prima facie case, and in the absence of evidence to support the special pleas was entitled to a verdict. 6 ” ” The action of the court in directing a verdict in favor of appellee was contrary to the law and the evidence.’ ” (252 Ill. App. 17, 21, quoting Visible Measure Gasoline Dispenser Co. v. Suprunowski (1922), 226 Ill. App, 107, 109.) Although those cases were decided under the old Negotiable Instruments Law, section 1 — 103 of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 1 — 103) provides for the use of pre-Code principles of law to aid in interpreting the Code unless Code language specifically displaces the earlier law. The dispositive language in McConnaughy directly parallels that of the current statute and thus should be accorded consideration. Moore v. Burt Chevrolet, Inc. (1977), 39 Colo. App. 11,563 P.2d 369.

For all the above reasons, we reverse the judgment of the trial court and remand the cause for further proceedings in accordance with the findings herein set forth.

Reversed and remanded.

JOHNSON, P. J., and ROMITI, J., concur.


text:
    TINA HUDSON, a Minor, by Essie Hudson, her Mother and Next Friend, Plaintiff-Appellee, v. SAFEWAY INSURANCE COMPANY, Defendant-Appellant.
    First District (4th Division)
    No. 81-1407
    Opinion filed May 6,1982.
    Parrillo, Weiss & Moss, of Chicago (David J. Weiss, of counsel), for appellant.
    Reese and Schaffner, of Chicago (Fred Rabinowitz, of counsel), for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Tina Hudson, filed a petition to compel arbitration under the uninsured motorist provisions of her father’s insurance policy. On May 27,1981, the trial court held that defendant, Safeway Insurance Company (Safeway), had waived the right to have the arbitration panel hear an issue that was decided on January 27, 1981. The sole issue raised by this appeal is whether the trial court erred in entering the order of May 27, 1981.

We affirm.

On June 10, 1978, plaintiff was struck by a car. Her father, James Hudson, was a policyholder with defendant Safeway at that time, and his policy covered members of his household. The arbitration clause of the policy provided as follows:

“Arbitration. If any person making claim hereunder and the company do not agree that both the vehicle(s) and the driver(s) of the vehicle(s) with which any person making claim has had an accident, were not covered by liability insurance at the time of the accident, or do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount payable hereunder, then these matters shall be submitted to arbitration, and after those making claim have complied with the applicable conditions of this policy, each party shall, upon written demand of either, select an arbitrator. The two arbitrators so named shall select a third arbitrator, or if unable to agree thereon within 60 days, then upon request of the insured or the company such third arbitrator shall be selected by a judge or a court of record in the county and state in which such arbitration is pending. The arbitrators shall then hear and determine the questions so in dispute, and the decision in writing of any two arbitrators shall be binding upon the insured and the company. Unless the parties otherwise agree, the arbitration shall be conducted in the county and state in which the insured resides and in accordance with the usual rules governing procedure and admission of evidence in courts of law of that county.”

On September 26,1979, plaintiff filed a petition to compel arbitration and prayed to have defendant name a second arbitrator and to have the court name a third. On January 27, 1981, a hearing was held on the petition. The trial court stated:

“THE COURT: Let’s agree, then, between the parties that the issue before the Court will be whether or not the plaintiff pedestrian was in fact struck by an uninsured vehicle.
MR. O’HALLORAN [defendant’s attorney]: That is correct.”

Essie Lee Hudson, plaintiff’s mother, testified that after the accident she talked to Leroy Williams, the motorist who struck her daughter. Williams told her that he had no insurance. At the conclusion of the hearing, the trial court found satisfactory the evidence that plaintiff was struck by an uninsured motorist and that she was entitled to coverage under her father’s insurance policy. The court ordered the appointment of arbitrators.

On May 14, 1981, defendant claimed the arbitration panel should decide whether the person who struck plaintiff was insured. Plaintiff claimed the only issue for arbitration was liability and damages. At a hearing on May 27,1981, the trial court found that defendant had waived the issue of whether the motorist was uninsured by proceeding to trial on that issue and entered an order that the arbitration proceed. Defendant appeals that order.

Defendant contends it should be able to avoid the consequences of its stipulation at the January 27, 1981, hearing because there was a mutual mistake of fact. According to defendant, the parties and the judge forgot that the pleadings contained an insurance policy provision which submitted to arbitration the issue of the motorist’s uninsured status. Plaintiff’s petition alleged the following policy in regard to arbitration:

“If any person making a claim hereunder and the company does not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount payable hereunder, then each party shall, upon written demand of either, select a competent and disinterested arbitrator.”

Defendant’s amended answer included the following provision:

“If any person making claim hereunder and the company do not agree that both the vehicle(s) and the driver(s) of the vehicle(s) with which any person making claim has had an accident, were not covered by liability insurance at the time of the accident, or do not agree that such person is legally entitled to recover damages * * 9 or do not agree as to the amount payable hereunder, then these matters shall be submitted to arbitration * 0

Thus, the provisions in defendant’s amended answer provided for arbitration of the issue of whether the motorist was insured, whether the injured party is entitled to recover, and the amount of damages.

Defendant cites Hakala v. Illinois Dodge City Corp. (1978), 64 Ill. App. 3d 114, 380 N.E.2d 1177, for the proposition that parties can avoid the consequences of their acts if the act was based upon mutual mistake. However, this case was concerned with the rescission of a contract and not concerned with stipulations made by counsel at trial. Parties are bound by their stipulations unless such stipulations are shown to be unreasonable, the result of fraud or violative of public policy. (In re Marriage of Sanborn (1979), 78 Ill. App. 3d 146, 149, 396 N.E.2d 1192, 1195.) In Sanborn, the court held that respondent’s stipulation was valid even though he was mistaken as to the stipulated value of the marital residence. 78 Ill. App. 3d 146,150.

In the instant case, defendant’s attorney drafted the motion informing the court of the incorrect policy provision. Defendant introduced no evidence showing that the parties were unaware of the change in pleadings, nor did defendant show that the stipulation was unreasonable, fraudulent or violative of public policy. We hold, therefore, that defendant is bound by its January 27,1981, stipulation and that it waived any right to have the arbitration panel decide the issue of the motorist’s insured status.

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

Affirmed.

ROMITI and LINN, JJ„ concur.