author: JUSTICE ALLOY

text:
    WALTER G. YANGAS et al., Plaintiffs-Appellants, v. CHARLIE CLUB, INC., et al., Defendants-Appellees.
    Third District
    No. 82-444
    Opinion filed March 16, 1983.
    Douglas L. Ziech and Roger D. Rickmon, both of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet, for appellants.

      Sandra Young, Edward C. Purcell, and Paul Kaulas, all of Purcell & Wardrope, Chartered, of Chicago, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

Plaintiffs Walter G. Yangas, Nancy A. Yangas and Nicholas Yangas appeal from the entry of a directed verdict in defendant Charlie Club, Inc.’s favor, in their negligence action against Charlie Club. Plaintiff Walter Yangas, an invitee of the Charlie Club, had been injured in Charlie Club’s parking lot area as a result of action by defendant Richard Palmer, a person who had been refused admittance into the club. Palmer was sued for negligence and wilful and wanton misconduct in his operation of his auto in the parking lot. The basis of the action against Charlie Club was for its asserted failure to control Palmer, who was allegedly intoxicated and disorderly; for its failure to notify the police of Palmer; for its failure to adequately protect Yangas from Palmer; and for its failure to provide security personnel or other supervision in its parking lot. The case was tried before a jury, but the court directed a verdict for Charlie Club at the close of all the evidence, finding the evidence insufficient to give rise to any of the duties alleged by plaintiffs to have been violated by Charlie Club. A verdict against Palmer, for $1,200,000 compensatory and $500,000 punitive, was entered but is not before us on this appeal. In the instant appeal, plaintiffs Yangas argue that the court erred in directing a verdict for Charlie Club. At the center of the issues on appeal is the question of the duties owed by Charlie Club to Yangas. The question focuses upon the reasonable foreseeability of defendant Palmer’s actions and Yangas’ resultant injuries, on the facts known to Charlie Club.

In reviewing the record, we note that directed verdicts are not to be granted unless all of the evidence, viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) With this in mind, we turn to the pertinent facts. On the evening of November 21, 1979, two men, defendant Richard Palmer and his companion Edward Weiss, entered the premises of the Charlie Club. The Charlie Club is a full-concept health club, included in which is a health club, restaurant and bar. Palmer and Weiss had arrived at the club, parked their auto in the club parking lot, and proceeded to the complex. They entered the outside door and then sought entrance into the lounge and bar area. At the doorway of the lounge and bar area were two club employees whose job it was to check identification of persons seeking admittance to the bar. The two employees on duty the night of November 21, 1979, were Victor Sebastiano and William Denewillis. Sebastiano and Denewillis denied Palmer and Weiss admittance to the bar. At trial, Denewillis testified that the reasons for not allowing them in were that they appeared intoxicated and Weiss had no identification. Palmer, when asked, had produced identification, but Weiss was unable to do so.

Denewillis testified that both men had definitely been drinking, and he noted Palmer’s glassy and bloodshot eyes, and his slightly slurred speech. He testified that Palmer had a normal walk, with nothing unusual in it, and did not stumble when walking. It was Denewillis’ opinion on the night in question that Palmer was intoxicated “to an extent.” Weiss, too, according to Denewillis had been drinking, as evidenced by glassy and bloodshot eyes and his obnoxious behavior. Sebastiano testified that both men had been drinking, as evident from their eyes. He did not recall either one having any slurred speech or any difficulty walking. Sebastiano stated that he could not tell if the men were intoxicated. After Palmer and Weiss were denied admittance, an argument ensued with the club employees Sebastiano and Denewillis. Sebastiano stated that both men gave the “usual amount of back talk” as they were leaving. Although he did not clearly remember who did what talking, when pressed, Sebastiano indicated that it was Weiss who was the louder and more obnoxious of the two. He testified that Palmer was not really loud, and did not appear to care either way. He could remember nothing unusual about their leaving. Denewillis, the other club bouncer, stated that it was Weiss, not Palmer, who was rude, loud and obnoxious. Palmer, according to Denewillis, was not a problem at all, and created no scene or confrontation. Nor, as noted previously, did he notice anything unusual about his walk or about him as he left the premises. Denewillis admitted his belief, on the night in question, that Palmer and Weiss had driven to the Charlie Club, and he stated that he felt that anyone who has had too much to drink is a danger when driving.

Neither Sebastiano, Denewillis, nor any other Charlie Club employee took any action respecting Palmer and Weiss as they left, or immediately thereafter. No call to the police was made concerning them, nor did anyone follow the pair to the parking lot nearby. It is also conceded that there was no club supervision of the parking lot, and no security personnel there. The evidence indicated that Palmer and Weiss left the clubhouse and proceeded to the parking lot and Palmer’s vehicle. As they were leaving the parking lot, there was a near collision with a vehicle in which plaintiff Walter Yangas was a passenger. Weiss, a passenger in the Palmer auto, got out of the auto and began yelling at Yangas and the driver of that other auto. Yangas then got out of the auto, whereupon Weiss got back into the Palmer auto, which then proceeded toward Yangas’ side of the other vehicle. Yangas attempted to get back into the auto, but before he was fully in, and with his right leg still outside the car, his auto was struck by the Palmer auto, on the passenger side, pinning Yangas’ leg. The Palmer vehicle, according to testimony, was going 25 to 30 miles per hour at impact. Yangas, as a result of the accident-attack, suffered serious and permanent injuries to his leg, which eventually resulted in the loss of the leg below the knee.

Yangas, his wife and child brought suit against Palmer, the driver of the auto, for negligence and wilful and wanton misconduct, and against the taverns which had served Palmer alcohol, under dramshop statutory provisions. They also brought the instant action against the Charlie Club alleging negligence in the club’s failures: (1) to protect Yangas from Palmer; (2) to notify the police of Palmer; (3) to supervise the parking lot area; and (4) to provide security personnel in the parking lot area. At the close of all the evidence, the trial court entered its directed verdict in favor of defendant Charlie Club, finding insufficient facts to put Charlie Club on notice of the reasonable foreseeability of Palmer’s subsequent conduct in the operation of his auto.

There is no dispute that Yangas was an invitee of the Charlie Club at the time of the incident. It is also not disputed by the parties that Charlie Club’s duty, as a tavern-keeper to its invitees, was to take reasonable affirmative action to protect against misconduct of third-parties, when the danger is apparent or the circumstances are such as to put a prudent person on notice of the probability of danger. Hayes v. O’Donnell (1979), 76 Ill. App. 3d 695, 697, 395 N.E.2d 184.

The question as to the existence and nature of the duty to take affirmative action hinges, in turn, upon the reasonable foreseeability to the Charlie Club of harm posed by Palmer to invitees in the parking lot. In the instant case, the knowledge of the Charlie Club is limited to that possessed by its two employees, Denewillis and Sebastiano. The evidence is that these men knew that Weiss and Palmer apparently had been drinking, although they knew nothing about how much they had consumed. They knew that Palmer had glassy, bloodshot eyes. Denewillis stated that Palmer appeared intoxicated, but neither employee noticed any problem either man had walking. Weiss, upon being denied admittance, became loud, boisterous and obnoxious, while Palmer was more subdued. He may have given the employees some “back talk,” although Denewillis’ clear testimony was that Palmer was quiet and did not present any problem, which is consistent with Sebastiano’s testimony about the relative participation of the two men in the argument. Neither employee testified that either man had any difficulty walking or exiting, by the stairs, from the Charlie Club. There was no testimony that Palmer was belligerent or abusive to other patrons, or out of control in any manner in his behavior inside the Charlie Club. Neither was evidence presented indicating that Palmer had previously caused any trouble at the Charlie Club. Even viewing the evidence in its aspect most favorable to plaintiffs, Charlie Club’s knowledge was confined to the fact that Palmer, apparently, had been drinking, had bloodshot and glassy eyes, appeared intoxicated, and further that he left, after being told he and his loud and boisterous companion would not be admitted. The evidence does not support plaintiffs’ assertions that Palmer was quarrelsome or belligerent toward anyone in the Charlie Club. Plaintiffs contend, nevertheless, that the operation of an auto by an intoxicated person poses the requisite foreseeability of grave harm to others, such that a duty arose requiring the Charlie Club, having knowledge that Palmer appeared intoxicated and would likely be driving an auto, to call the police, or to otherwise protect Yangas in the parking lot, either by supervision there or security personnel.

We find the facts in the instant case insufficient to give rise to the duties alleged by plaintiffs to be applicable to the Charlie Club. In so concluding, we emphasize the lack of evidence concerning any prior incidents with Palmer or Weiss, the lack of evidence of knowledge of Palmer’s violent or dangerous nature, and the lack of evidence that Palmer was quarrelsome and belligerent. While Palmer had been drinking, as evidenced by his glassy and bloodshot eyes, the extent of any intoxication was unknown, and there was nothing in his conduct or actions which would put a reasonably prudent person on notice that he was likely to injure anyone when operating his auto in the club’s parking lot. Absent evidence that Palmer was belligerent and violent, or other indication that he was not in control of himself, either because of anger or intoxication, and thereby likely to commit wrongful injurious acts against others, no duty arose requiring Charlie Club to take affirmative action to protect its patrons in the parking lot or elsewhere. Nakis v. Amabile (1981), 103 Ill. App. 3d 840, 431 N.E.2d 1255; Anderson v. Yellow Cab Co. (1975), 28 Ill. App. 3d 656, 329 N.E.2d 278; Hayes v. O’Donnell (1979), 76 Ill. App. 3d 695, 395 N.E.2d 184.

Plaintiffs, despite protestation to the contrary, do argue for an extension of the common law duty upon tavern-keepers such as would require them to take affirmative steps to protect their invitees where they have knowledge that someone who has been drinking, and appears somewhat intoxicated, is leaving the premises to operate an auto in their parking lot. The argument is presented that the gravity and foreseeability of harm posed by an intoxicated driver is so great “as to foreclose legitimate discussion by rational and reasonable men.” No one can deny, as a general proposition, that intoxicated drivers pose a danger to others. Foreseeability, in an individual case, involves more than broad general propositions. Foreseeability must be determined upon the facts and circumstances of each case, and therein:

“[I]n determining whether there was a legal duty, the occurrence involved must not have been simply foreseeable, as the plaintiff contends; it must have been reasonably foreseeable. The creation of a legal duty requires more than a mere possibility of occurrence. Negligence as defined in the Restatement (Second) of Torts (1965), section 282, is conduct which falls below the standard established for the protection of others ‘against unreasonable risk of harm.’ Harper and James, in their Law of Torts, observe: ‘Not what actually happened, but what the reasonable prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.’ (2 Law of Torts (1956), sec. 16.9, at 929.)” (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375-76, 308 N.E.2d 617.)

In the instant case, the knowledge possessed by the Charlie Club concerning defendant Palmer, previously set forth herein, was not such that a reasonably prudent person would have foreseen as likely his subsequent improper and injurious operation of his auto in the parking lot. That intoxicated drivers are much more likely to be involved in traffic accidents than those not intoxicated does not establish the reasonable foreseeability to Charlie Club of Palmer’s subsequent wrongful and injurious operation of his auto in the instant case. Nor does Denewillis’ agreement with the general proposition establish that he viewed Palmer as a danger to patrons in the parking lot.

Furthermore, the question of the existence of a legal duty is a question of law, for the courts, based on questions apart from foreseeability alone. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375.) If we were to impose the duties alleged by plaintiffs to exist, the result would be that tavern-keepers, as well as other business establishments, faced with persons who appeared in Palmer’s condition, would be required to take affirmative actions to protect their patrons using a business parking lot where that person might be operating an auto. Whether such affirmative action be the notification of police, or provision for supervision in the parking lots, the enormous potential manpower and financial burden upon businesses and police departments is obvious.

This is not a case where Charlie Club was aware of any violent or dangerous conduct by Palmer, nor aware that he was intoxicated to the point of not being in control of himself. The evidence is to the contrary, and the likelihood, as opposed to the possibility of injury to others, was not established in this case. To impose the duty here would be to impose it upon all businesses whenever they were confronted with a person on their premises who appeared intoxicated, but caused no problem nor appeared seriously impaired in functioning. We decline to do so. We emphasize, however, that this is not a case where the tavern-owner knows the amount of alcohol consumed, nor is it a case where, from the actions of the person, the tavern-owner should realize that he is in such a state as to likely cause harm and injury in the operation of an automobile.

Finally, absent evidence of prior problems and difficulties in the parking lot area, Charlie Club did not have a duty to provide security personnel in the parking lot. O’Brien v. Colonial Village, Inc. (1970), 119 Ill. App. 2d 105, 255 N.E.2d 205; Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 428 N.E.2d 662.

For the reasons stated, we affirm the judgment of the trial court entered in favor of defendant Charlie Club, Inc.

Affirmed.

STOUDER, P.J., and SCOTT, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    GALE LEONARD et al., Plaintiffs-Appellants, v. THE CITY OF STREATOR et al., Defendants-Appellees.
    Third District
    No. 82—472
    Opinion filed March 16, 1983.

      Bernard Engels, William T. Surin and Craig M. Armstrong, all of Law Offices of Craig M. Armstrong, of Ottawa, for appellants.
    Robert M. Hansen and R.J. Lannon, Jr., both of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

Gale Leonard, Lisa Leonard, individually, and on behalf of Monya E. Leonard, a minor, appeal from the dismissal of their dramshop action against the defendant Double D Tap, Inc. The circuit court dismissed the action against Double D Tap, Inc., finding that the plaintiffs had not complied with Civil Practice Act section 46(4)(d) (111. Rev. Stat. 1981, ch. 110, par. 46(4)(d), now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616(d)(4)). The plaintiffs assert that the court erred in dismissing the action, and argue that the misnomer section of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, par. 21, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 401) controls, and prevents a dismissal.

The record reveals that a dramshop action was filed against Delbert Anderson, d/b/a Double D Tavern on December 14, 1979. The basis of the action was an incident which occurred on December 16, 1978, after plaintiffs’ husband and father’ had allegedly been served alcohol at the Double D Tavern, 419 E. Main Street, Streator, Illinois. Service of process in the action was obtained upon Delbert Anderson on December 20, 1979, at the Double D Tavern. It is noted that service upon Anderson was obtained after the one-year dramshop statute of limitations had run, a fact that is relevant at a later time. Subsequent to service, Anderson filed a motion to dismiss, stating that he was not the owner and operator of the tavern, but that it was operated by the Double D Tap, Inc., a corporation. A summary judgment motion was also filed by Anderson, setting forth the corporate owner of the tavern, and stating that he was merely an employee. An affidavit attached to the motion indicated that Anderson was the president of the corporation at the time of the alleged incident, being December 16, 1978. The summary judgment motion was granted as to defendant Delbert Anderson, and the plaintiffs were given leave to file an amended complaint.

Plaintiffs responded with the filing of a motion to amend correcting misnomer, pursuant to section 21 of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, par. 21, now 111. Rev. Stat. 1981, ch. 110, par. 2 — 401). By said motion, plaintiffs sought to change the designation of defendant from Delbert Anderson d/b/a Double D Tavern, to Delbert Anderson d/b/a The Double D Tap, Inc., a corporation, and in support stated that the original designation was a misnomer. The motion set forth that Delbert Anderson was the person in charge of the tavern and in control of its operations. Double D Tap, Inc., responded with a motion to dismiss, setting forth section 46(4) of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, par. 46(4), now 111. Rev. Stat. 1981, ch. 110, par. 2 — 616(d)), which provides in pertinent part that a cause of action against persons not originally named as defendants is not barred by the applicable statute of limitations, where within the time that the action might have brought or the right asserted against him, the person knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him. The motion set forth that Delbert Anderson was the president of the Double D Tap, Inc., and that he had been served, only in his individual capacity, on December 20, 1979, after the statute of limitations had run. The court, on September 18, 1980, by Judge Perona, entered an order denying the defense motion to dismiss, and granting the motion to amend correcting misnomer. It permitted amendment of the applicable counts of the complaint by changing of the designation to Delbert Anderson d/b/a The Double D Tap, Inc., a corporation.

The next pertinent action was on April 12, 1982, when plaintiffs filed an amendment to their complaint, substituting for the previously named defendant “Delbert Anderson, individually, and doing business as Double D Tap, Inc., a corporation.” Defendant Double D Tap, Inc., filed their motion to dismiss the amended complaint, arguing that the addition of it was barred by section 46(4), because the corporation had not had knowledge of the pendency of the action within the limitations period. On April 12, 1982, the court, by the person of Judge Denny, entered its order, finding (1) that the naming of Delbert Anderson d/b/a Double D Tavern constituted a misnomer, and that all provisions of section 46(4) had been complied with, except subsection (d), requiring knowledge of the amended-in defendant within the limitations period. Because the corporation had not had knowledge within the statute of limitations, the court dismissed the action against it. Plaintiffs filed a motion to vacate that order of dismissal, which was denied. An appeal from the denial of the motion to vacate was thereafter filed, seeking reinstatement of the amended complaint against The Double D Tap, Inc., a corporation.

On appeal, plaintiffs argue that the case involves a misnomer, and that, therefore, the complaint against Double D Tap, Inc., should not have been dismissed. Defendant corporation argues that this is not a case of misnomer, but one of mistaken identity, and that since plaintiffs attempted to add a party not originally named, that is the corporation, without complying with section 46(4)(d), the case against the corporation was properly dismissed.

Section 21, in pertinent part, states:

“(2) Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.” 111. Rev. Stat. 1981, ch. 110, par. 21.

Section 46(4), in pertinent part, states:

“(4) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: ***; (d) the person, within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him ***.” (111. Rev. Stat. 1981, ch. 110, par. 46(4).)

The interplay between these rules, and their varying spheres of application was discussed by the court in Ashley v. Hill (1981), 101 Ill. App. 3d 292, 294-95, 427 N.E.2d 1319:

“Misnomer of a party is not a ground for dismissal of an action, and the name of a party may be corrected upon motion and proper proof. [Citations.] The misnomer rule is narrow, however, and applies only where an action is brought and summons served upon a party intended to be made a defendant (thus giving actual notice of the lawsuit against the real party-in-interest), but the process and complaint do not refer to the person by his correct name. [Citations.] The courts of this State have long distinguished the misnomer rule, which is applicable only to correctly joined and served but misnamed parties, from those cases where due to mistaken identity the wrong person is joined and served. [Citations.] The determination of whether a case involves misnomer or mistaken identity depends on the intent of the parties, but the subjective intention of plaintiff as to who he intended to sue has not been held controlling in the face of objective manifestations indicating an intent to sue another. [Citation.]”

As this court stated in Borkoski v. Tumilty (1977), 52 Ill. App. 3d 839, 842, 368 N.E.2d 136: “The true test in cases such as this is whether the party sued is the real party in interest.”

In the instant case, despite the circuit court’s findings of misnomer, it is evident that this is not a case of misnomer. From the record, and the original designation in the complaint, it must be concluded that the intent of the plaintiffs in their original complaint was to bring an action against the individual Delbert Anderson, who was doing business as the Double D Tavern. They believed that Anderson, as an individual, owned and operated the tavern. Naming him, as an individual, in the complaint and the summons is a clear objective manifestation that he was the party the plaintiffs intended to sue in this action. Summons was served upon him, as an individual, and not as an agent or representative of any corporation. However, the real party in interest was not Anderson, but rather it was the Double D Tap, Inc., a corporation, who owned and operated the business. No service was obtained against the corporation by serving Anderson personally, as an individual. (Fitzpatrick v. Pitcairn (1939), 371 Ill. 203, 208-09, 20 N.E.2d 280.) The plaintiffs were mistaken in their belief as to who owned and operated the tavern, and the real party in interest was not sued. It is a case of mistaken identity, not misnomer. The plaintiffs’ intent was to file suit against the individual Delbert Anderson, which it did, believing incorrectly that he was the owner and operator of the Double D. However, plaintiffs were mistaken in that belief, for the real party in interest was the corporation, the Double D Tap, Inc. Plaintiffs did not merely misname the right party, but rather they named the wrong party. Furthermore, there is no dispute that the real party in interest, the corporation, had no knowledge of the suit until after the running of the statute of limitations. Accordingly, as the court noted in Ashley, section 46(4) requires dismissal where the requirements have not been met. (Ashley v. Hill (1981), 101 Ill. App. 3d 292, 296; Jackson v. Navik (1974), 17 Ill. App. 3d 672, 308 N.E.2d 143; Fitzpatrick v. Pitcairn (1939), 371 Ill. 203.) Plaintiffs’ cases are not on point, for either the real party in interest had been sued originally (Borkoski v. Tumilty (1977), 52 Ill. App. 3d 839, 368 N.E.2d 136 and Kern v. Uregas Service of West Frankfort, Inc. (1980), 90 Ill. App. 3d 182, 412 N.E.2d 1037), or the defendant was held to be estopped from denying a misnomer (Marsden v. Neisius (1955), 5 Ill. App. 2d 396, 126 N.E.2d 44). This is a case of mistaken identity, not misnomer, and section 46(4) had not been complied with fully. Accordingly, the circuit court correctly dismissed the action against the amended-in defendant, Double D Tbp, Inc.

For the reasons stated, the decision of the circuit court of La Salle County is affirmed.

Affirme.fi.

STOUDER, P.J., and BARRY, J., concur.


author: JUSTICE VAN DEUSEN

text:
    WILLIAM PHILLIPS, Petitioner-Appellee, v. CHESTER A. HALL, Respondent-Appellant.
    Second District
    No. 82—277
    Opinion filed March 1, 1983.
    — Rehearing denied April 21, 1983.

      Barry L. Moss and George A. Marchetti, both of Moss & Bloomberg, Ltd., of Bolingbrook, for appellant.
    Thomas F. McGuire, of Long Grove, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

On February 26, 1982, petitioner, William Phillips, filed his complaint for declaratory judgment and injunction against respondent, Chester A. Hall. The complaint sought to have a certain order of February 16, 1982, issued by defendant Hall as chief of police of Warren-ville, Du Page County, Illinois, declared arbitrary, capricious and contrary to the law and an abuse of discretion which improperly infringed upon the liberty and property rights of plaintiff, a captain in the Warrenville police department. The order in question directed plaintiff to terminate his part-time employment with the village of Golf by March 1, 1982, and advised that failure to comply by March 1, 1982, would be a violation of the city personnel code, police department policy and a direct order. The complaint also sought a permanent injunction prohibiting defendant Hall from instituting or imposing disciplinary action against plaintiff for failure to terminate his employment with the village of Golf.

On the same day, Phillips filed a petition for a temporary restraining order without notice enjoining and restraining Hall from instituting or imposing disciplinary action against Phillips until a hearing on the matter, and it was issued that day. On March 4, 1982, Hall filed a document captioned “Memorandum of Law in Response to Complaint for Declaratory Judgment,” which stated, in substance, that Phillips had no legal right to secondary employment, that he had an adequate remedy at law before the board of police and fire commissioners and that any adverse decision of that board was appealable under the Administrative Review Act so that there was no irreparable harm shown, that the order was within the police chiefs authority and based on valid considerations, and concluded that the “Motion for Preliminary Injunction and Declaratory Relief be denied.” The parties treated defendant’s memorandum of law as an answer to plaintiff’s complaint and proceeded to trial on that same date.

The evidence disclosed that petitioner, William Phillips, had been employed by the village of Golf in Cook County since 1965, and, at the time of his 1969 interview for the position of police chief with the city of Warrenville in Du Page County, he was police chief for the village of Golf. In 1978 Phillips stepped down from chief to captain in Golf, and he stepped down from chief to captain in Warrenville in July 1981. At the time the complaint was filed, Phillips was a captain in Warrenville, working approximately 40 hours per week, and he was a captain and chairman of the police safety board in Golf, working approximately 15 hours per week.

In November 1977, the city of Warrenville adopted a Manual of Rules and Regulations for the Police Department. These rules included the following provisions:

“380.24 Outside Employment: Prior to engaging in any outside business or employment, the member or employee shall submit a request for a permit to do so to the Chief of Police via channels in the approved form.
380.25 Issuance of a Permit: The decision of the Chief of Police to issue or deny a permit to work outside of the Department is final and appeal to higher or other levels will not be considered. Departmental General Orders will govern the issuance or denial of the permit and its use.
380.36 Membership in Organizations: Except for the Armed Forces Reserve components, members and employees shall not affiliate themselves with any organization or group, the constitution or by-laws of which in any way exacts prior consideration or which would prevent its members from rendering proper and efficient service to the Department.”

Warrenville adopted these rules while Phillips was chief of police, and he enforced the provisions regarding secondary employment.

On December 15, 1981, respondent, Chester Hall, became Warren-ville police chief. On January 14, 1982, he sent a letter to all police personnel setting forth the secondary employment policy; requiring all officers presently working or employed elsewhere to submit a request form, which would receive a reply by February 8; and requiring termination of any secondary employment by March 1, 1982, unless permission was obtained to continue. The letter concluded as follows:

“This policy is being enacted to comply with the existing personnel policies and to insure proper administrative control over employees. Public policy requires that police officers maintain undivided loyalty and engage only in employment designed to improve police image. No employment will be approved which disrupts departmental efficiency, morale, or ability to properly supervise employees.”

Pursuant thereto, Phillips filed a request for secondary employment for his village of Golf position on January 30,1982.

On February 1 Hall wrote a letter to Phillips requesting certain information about the village of Golf position. Village of Golf responded by letter on February 17, 1982. However, on February 16, 1982, Hall had written another letter to Phillips, which stated that the requested information had not been received but, based on Hall’s understanding of Phillips’ duties to both Warrenville and Golf, he was denying Phillips’ request and ordered him to terminate his employment with Golf by March 1, 1982, or be in violation of the city personnel code, police department policy and a direct order.

At trial, both the village of Golf and Phillips agreed that his Warrenville job supersedes his job with Golf. Phillips’ duties for Golf are primarily advisory, but he does do patrol work. He also has patrol responsibilities for Warrenville.

There have been no simultaneous emergencies requiring his attention, but, in the event of any, Phillips testified that he would choose to respond to Warrenville and arrange for assistance from the Cook County sheriff’s police or Glenview Police Department for the Golf situation. Estimates of travel time for the 30-mile trip between the two municipalities ranged from 36 minutes to V-k hours. While Phillips and his witnesses testified that he could be and had been contacted, if needed, while on duty for Golf, Chief Hall testified that he had been unable to contact Phillips on several occasions. It was the position of Phillips and his witnesses that there was no conflict in Phillips’ law enforcement functions pertaining to the two municipalities, and Warrenville Chief Hall admitted he had no knowledge of any actual conflicts that had occurred with the exception of one court date.

Regarding that court date, Phillips was on duty in Golf and missed a court date in Warrenville resulting in the nolle prosequi of one traffic ticket. Phillips said his absence was an oversight, that it occurred because his court date had recently been changed, and that it was the only date he had missed in over 10 years. Hall testified that, to the best of his knowledge, his directive to Phillips to terminate his Golf employment was issued prior to becoming aware of the missed court date.

Hall testified that he issued his directive because he felt the two jobs were not compatible because of (1) the loss of control over Phillips while he was engaged in police activities in Golf, noting specifically problems in the area of access to confidential information, scheduling and discipline for on-duty and off-duty infractions; (2) the appearance of impropriety in Phillips’ retention of two sworn police positions; and (3) the loss of Phillips’ services and Warrenville’s potential obligation to pay his salary if he were injured while acting as a police officer in Golf, although, he observed, Phillips had no history of injury.

As chief since December 1981, Hall testified, he is responsible for the administration, scheduling, coordination, discipline, and enforcement of rules of the department and of the city. The secondary employment rules in question were drafted by then chief Phillips in 1977 with the advice and consent of the safety committee and police and fire commission. The city council adopted personnel procedures in March 1981 which impacted on the police department rules.

Hall testified that any incidents in Golf reflecting adversely on Phillips could be construed as an official act of Warrenville, although Phillips did not wear any portion of his Warrenville uniform while on duty in Golf or vice versa; Phillips’ access to confidential police files through Golf would contravene Hall’s desire for strict control over employees’ access to such information; Phillips’ police duties in Golf, which exactly duplicate his Warrenville official duties, violate city personnel code prohibitions on employment in work closely related to official duties and employment that would tend to influence the exercise of impartial judgment; being a police captain for two municipalities makes the public think an individual is “double dipping”; allegations of wrongdoing in either municipality would bring discredit to the Warrenville police department; other Warrenville officers felt it looked bad for a Warrenville officer to also be a police officer for another municipality; and being a sworn law enforcement officer in two places is, by its very nature, contrary because it is not possible to serve two masters in two sworn positions.

Hall observed that officers are always subject to call and that, if Phillips were called in on an emergency basis to court while on duty in Golf, he might not arrive in Warrenville in time. However, he also said it takes 20-35 minutes for him to get to Warrenville from his Villa Park home, that there is no requirement that officers stay within Warrenville or within a certain radius of Warrenville while off-duty, and that another officer, Sergeant LaDeur, had an approved part-time job delivering office furniture and working behind the counter in his father’s office supply store in Villa Park.

Hall contrasted LaDeur’s duties in his secondary employment with those of Phillips: LaDeur is always available to Hall when on his other job; LaDeur’s furniture deliveries are strictly in Du Page County; Hall has control over LaDeur’s conduct while on his other job because he is not doing police work; and LaDeur’s conduct on the other job could not be construed as official or as sanctioned by the Warrenville police department.

Finally, Hall testified that he might have to call on Phillips if he needed an extra man on the street. There is one full-time police officer in Golf and six to eight part-time officers, while Warrenville has six to eight full-time police officers and seven part-time officers, with one person generally assigned to each shift. Phillips testified that Warrenville has a mutual aid agreement with adjacent municipalities and with the county sheriffs police in the event that an emergency arose necessitating additional police personnel, but Hall testified that the Warrenville police department relies primarily on police officers in its own department to respond to police calls so that the nature, extent and integrity of the investigations or handling of incidents can be controlled.

At the conclusion of the trial, the trial court found that exhaustion of administrative remedies in this case would not serve the basic ends of justice; that the police chiefs letter and the basis found thereunder were arbitrary and capricious; that the secondary employment rule had not been violated because the rule read “prior to engaging in any activity” and Phillips’ secondary employment predated the new chief and continued with the acquiescence and consent of prior chiefs and prior police and fire commission members and board; that Phillips developed a property right in the job in Golf; that “the real crux here” was a possible power struggle going on between the new chief and a captain who was a former chief; that there was no insubordination; and that, if insubordination did occur, there would be adequate remedies for that. A permanent injunction thereupon issued “prohibiting Chief Hall from instituting or initiating disciplinary action against William Phillips due to his position with the Village of Golf.”

The first issue we must face in this appeal is whether petitioner should have been required to exhaust his administrative remedies prior to seeking relief in the circuit court concerning secondary employment. If the principle of the exhaustion of administrative remedies is applicable in this matter, Phillips would be required to first exhaust his remedies before the Board of Police and Fire Commissioners of the city of Warrenville prior to filing this action, and his failure to do so would require the dismissal of this action. An almost identical situation was present in Buege v. Lee (1978), 56 Ill. App. 3d 793, and the disposition of the issue in that case appears to be controlling on the issue here.

As in Buege, respondent contends that relief in this case is precluded by the presence of an adequate remedy at law by way of an administrative hearing before the city board of police and fire commissioners. Because Phillips filed his complaint a few days before the termination date specified in Hall’s order, he was not in violation of the order at that time. Therefore, no procedure was pending before that board, and Hall’s contention essentially would force Phillips to disobey the order and then challenge its validity in a subsequent disciplinary proceeding before the board. Hall further states that Phillips would be entitled to seek judicial review from any disciplinary sanctions imposed by the board. Ill. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—17; Ill. Rev. Stat. 1981, ch. 110, par. 264 et seq., now Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.

This court observed in Buege that a declaratory judgment action allows the court to intercede in a controversy after the dispute has arisen but before steps are taken that give rise to claims for damages and other relief so that the parties can learn the consequences of their action before acting. While recognizing the exhaustion of remedies principle, that a party aggrieved by administrative action ordinarily cannot seek review in the courts without first pursuing all administrative remedies available to him, this court held that the plaintiff in Buege should not be required to provoke a disciplinary proceeding against himself so as to provide a forum to challenge the chief’s order. (Buege v. Lee (1978), 56 Ill. App. 3d 793, 798.) Similarly, there appears to be no reason to require Phillips to follow that course under the circumstances of this case.

This case is distinguishable from Myers v. Cook County Police & Corrections Merit Board (1978), 67 Ill. App. 3d 223, cited by respondent for the proposition that an order need not be prima facie reasonable before it is obeyed and that a police officer does not have the prerogative to disobey a direct order while seeking judicial review as to its reasonableness. In Myers the plaintiffs were in violation of a direct order so that the authority, discipline, and respect essential to the effective operation of the police force was threatened. (67 Ill. App. 3d 223, 229.) Here, Phillips sought a declaratory judgment prior to being in violation of Hall’s order.

Respondent cites Buege for the proposition that extraordinary circumstances must exist for court intervention by way of a declaratory judgment action, and he states that those circumstances did not exist here. However, while Buege does say that extraordinary circumstances subject the police chief to continuing review or supervision by the courts, it goes on past the language cited by the respondent to state that the interdepartmental orders of a police chief to his subordinates are not insulated from judicial review and, in a proper case, the order may be examined to determine whether it was issued in good faith and involved a reasonable exercise of discretion. Buege v. Lee (1978), 56 Ill. App. 3d 793, 796-97.

Under the circumstances of this case, the trial court properly found that Phillips was not barred from judicial review of the challenged order based upon a failure to exhaust administrative remedies. Therefore, the merits of his appeal will be considered.

In this appeal, Hall first contends that the order of the trial court enjoining the enforcement of secondary employment regulations against Phillips should be reversed. This court will not substitute its opinion for the findings of the trier of fact unless the holding of the trial court is against the manifest weight of the evidence, i.e., an opposite conclusion must be clearly evident. (Comm v. Goodman (1972), 6 Ill. App. 3d 847, 853; Ash v. Barrett (1971), 1 Ill. App. 3d 414, 418.) In this case, it appears that an opposite conclusion is clearly evident.

Our review of the Illinois law makes apparent that in those cases dealing with the enforcement and promulgation of secondary employment rules, the propriety of promulgation of such rules is recognized. (See Weisenritter v. Board of Fire & Police Commissioners (1978), 67 Ill. App. 3d 799; Chigaros v. Murphy (1975), 27 Ill. App. 3d 545.) Under Illinois statutory law, the corporate authorities of each municipality may prescribe the duties and powers of all police officers (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 1—2), and, absent manifest and palpable abuse of discretion, the wisdom, necessity and propriety of any action regarding the administration of its police force is a matter for the municipality to decide. (Cook County Police Association v. City of Harvey (1972), 8 Ill. App. 3d 147, 149.) Moreover, in the trial court, Phillips did not challenge the municipality’s authority to make such rules, he enforced the rules as chief, and he really does not contend on appeal that the making of secondary employment rules is improper.

The police chief has the responsibility to the community of securing maximum efficiency from the police force, and his actions should not be subject to review by the courts except to determine whether there was or was not good faith and a reasonable exercise of discretion. (Charles v. Wilson (1964), 52 Ill. App. 2d 14, 25-26; see Buege v. Lee (1978), 56 Ill. App. 3d 793, 796-97.) The oppression and gross injustice, claimed by Phillips, that would justify judicial intervention in the exercise of discretionary power (Stewart v. Department of Public Works & Buildings (1929), 336 Ill. 513, 518) is simply not demonstrated by the record in this case.

Hall has three bases for denying Phillips’ application for secondary employment: (1) the loss of control over Phillips while he was engaged in police activities in Golf, noting specifically problems in the areas of access to confidential information and discipline for on-duty and off-duty infractions; (2) the appearance of impropriety in Phillips’ retention of two police positions; and (3) the loss of Phillips’ services if he were injured while acting as a police officer in Golf.

Phillips responds that actual problems regarding lack of control, access to confidential information and discipline had not arisen during the period of over 10 years he had engaged in dual employment; that he would not be immune to discipline, but he would be subject to discipline in both Golf and Warrenville; that other government employees, e.g., mayor, aldermen and general assembly members, have dual employment without concern for the question of divided loyalty and that no conflict had actually occurred in over 10 years; and that Phillips could be injured in any kind of secondary employment and had, in fact, an excellent health-related work record. His witnesses testified that there had been no actual conflicts between his Golf and Warren-ville positions, several testified that they had engaged in other occupations while holding full-time elected positions, and some testified that Phillips was hired in Warrenville with full knowledge of his responsibilities to Golf.

Phillips presented evidence at trial concerning Sergeant LaDeur’s other employment. He worked several hours per week in his father’s furniture moving business, and Hall approved his application. However, Hall’s concerns with Phillips’ employment elsewhere as a sworn police officer were specifically and uniquely related to that kind of employment, and, therefore, would not apply equally to another officer’s secondary employment as a furniture mover.

The efficiency of public employees generally is a legitimate and substantial government interest. (Elk Grove Firefighters Local No. 2340 v. Willis (N.D. Ill. 1975), 400 F. Supp. 1097, 1100, aff'd (7th Cir. 1976), 539 F.2d 714.) This interest is particularly strong with respect to police officers because of the need for them to act quickly and effectively to protect life and property. (Cf. 400 F. Supp. 1097, 1100 (applied to the need for firefighters to act quickly and effectively to prevent grievous loss of life and property).) A police department is a paramilitary institution, and discipline is necessarily inherent in such an operation. Myers v. Cook County Police & Corrections Merit Board (1978), 67 Ill. App. 3d 223, 229.

Hall’s order was rationally related to this legitimate and substantial government interest. The evidence at trial did not controvert his testimony regarding the factors he considered in making the order and the statement in his January 14 letter setting forth the purpose of the order. Though the trial judge appears to have felt that Hall’s action against Phillips was related to a power struggle between a present and former chief, there was no evidence whatsoever that such a power struggle existed and that it, or any other arbitrary factor, motivated Hall’s order. The testimony at trial related basically to the absence of any actual conflict, but the chief may properly consider potential conflicts (see Elk Grove Firefighters Local No. 2340 v. Willis (N.D. Ill. 1975), 400 F. Supp. 1097, 1103, aff’d (7th Cir. 1976), 539 F.2d 714).

This is not a situation where there is conflicting testimony and the credibility of witnesses is the issue. Clearly, in that case, this court would defer to the trier of fact. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352.) Rather, the uncontroverted evidence makes clear that Hall’s motives were rationally based on the best interests of the city police department and that his order was issued in good faith and was not an abuse of discretion. Therefore, the trial court’s finding that Hall’s order was arbitrary and capricious is against the manifest weight of the evidence, and judicial intervention on that basis was unwarranted.

In addition to finding the basis for Hall’s order to be arbitrary and capricious, the court found that Phillips had acquired a property right in his Golf employment. Phillips cites several United States Supreme Court cases, notably Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701, for the proposition that property rights in employment cannot be denied without due process of law. This principle has no application here. The village of Golf is not attempting to terminate Phillips’ employment; the gist of Hall’s order is that, if Phillips elects to continue his employment with Golf, he subjects himself to sanctions for violation of Warrenville, rules. Cases cited by Phillips for the proposition that public employees cannot be treated in an arbitrary or capricious manner (e.g., Derringer v. Illinois Civil Service Com. (1978), 66 Ill. App. 3d 239; Fox v. Illinois Civil Service Com. (1978), 66 Ill. App. 3d 381) are also inapposite because, as discussed above, the evidence made it clearly evident that Chief Hall’s actions were not arbitrary and capricious.

The court also found that the secondary employment rule was not violated in this case because rule 380.24 specifically said “prior to engaging” in any activity and Phillips’ employment with Golf both predated the rule and had the consent and acquiescence of prior village officials. Phillips makes an effective argument that an administrative rule is subject to the same principles of construction as statutes (De-Grazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 485) and that, where statutory language is clear and unambiguous, the only proper function of the court is to apply that language (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84). On initial reading, the rule could be construed to apply only to secondary employment obtained after the passage of the rule. On the other hand, the language can be construed as a change in regulations regarding secondary employment and requiring approval for all secondary employment activities prior to engaging in such activities under the new rule, irrespective of when such employment commenced.

The conditions of public employment may be changed. Section 11 — 1—2 of the Illinois Municipal Code (111. Rev. Stat. 1981, ch. 24, par. 11 — 1—2) has been held to confer the power to make regulations concerning members of the municipal police force. (City of Chicago v. O’Brien (1915), 268 Ill. 228, 230.) Additionally, authority is found in section 10 — 4—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 4—1) for the general power of the municipality to set conditions and restrictions in employment. (Redemske v. Village of Romeoville (1980), 85 Ill. App. 3d 286.) Public employers may change the conditions of employment by changing the regulations. (See Grobsmith v. Kempiners (1981), 88 Ill. 2d 399; Steinmetz v. Board of Trustees (1978), 68 Ill. App. 3d 83.) Phillips had an expectancy based upon the anticipated continuance of the circumstances existing at the time he was hired by Warrenville (see Andre v. Board of Trustees (7th Cir. 1977), 561 F.2d 48, cert. denied (1978), 434 U.S. 1013, 54 L. Ed. 2d 756, 98 S. Ct. 727; see also In re Support of Josic (1979), 78 Ill. App. 3d 347), at which time secondary employment was apparently not regulated, but Warrenville exercised its right to regulate the duties and powers of its police officers (Cook County Police Association v. City of Harvey (1972), 8 Ill. App. 3d 147) by passing a secondary employment rule. Absent manifest and palpable abuse of discretion, the validity of this action, pursuant to the authority vested in the city by law, is a matter for legislative determination and not the subject of judicial review. Hunt v. City of Peoria (1964), 30 Ill. 2d 230.

Further, Phillips’ argument that the rule did not apply to his Golf employment is belied by his own conduct. As chief of police for Warrenville, Phillips testified, he received and approved secondary employment applications. Additionally, he testified, he submitted his own application for secondary employment from and after the date of the adoption of the rules in 1977, although he had been working for both Golf and Warrenville since 1969.

A reviewing court should accord substantial discretion to administrative agencies in the construction and application of their rules, interfering only if a body’s interpretation is plainly erroneous or inconsistent with long-settled constructions. The doctrine does not invite arbitrariness or inconsistency from case to case, because an interpretation, like its parent statute and rule, binds the agency as its policy and must be followed. Scheffki v. Board of Fire & Police Com missioners (1974), 23 Ill. App. 3d 971, 973, and cases cited therein; 2 Am. Jur. 2d Administrative Law secs. 241, 242, 243 (1962).

Applying these principles of law and statutory construction and considering the facts of this case, we determine that the trial court erred in finding that the secondary employment rule was not violated because Phillips’ Golf employment commenced prior to the passage of the rule.

The court’s finding that Phillips’ secondary employment with the village of Golf had the consent and acquiescence of former Warrenville officials may raise some question of estoppel. However, it is clear that Phillips did not act to his detriment based on any statement or action of Warrenville officials. (Compare Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 161-63.) At best, the record shows that, at the time Phillips was hired and during the course of his employment, Warrenville officials knew of his association with Golf and voiced no objection to it. As discussed previously, it appears that Phillips had only an anticipation of the continuance of this consent and acquiescence.

The findings of the trial court that Hall’s order was arbitrary and capricious, that Phillips’ property interest in his Golf position precluded Hall’s action, and that Phillips’ position with Golf did not violate the secondary employment rule were contrary to the manifest weight of the evidence. The injunction, therefore, was improperly granted. Having made this determination, we need not address the denial of Hall’s motion to vacate the injunction based on the passage of a new secondary employment ordinance, Ordinance No. 606, superseding the ordinance that was in effect when the injunction was granted. Likewise, we need not address Phillips’ motion ordered taken with the case to strike all references to Ordinance No. 606 in Hall’s brief as being not properly before this court.

For the reasons set forth above, the March 4, 1982, order of the trial court granting the permanent injunction is reversed.

Reversed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE HOPF

text:
    HODGMAN, INC., Plaintiff-Appellee, v. MARSHALL FELD, Indiv. and d/b/a Marshall Feld, Inc., Defendant-Appellant.
    Second District
    No. 82—519
    Opinion filed March 15, 1983.

      Donald C. Hudson and Marc E. Webbies, both of Geneva, for appellant.
    Ronald A. Gullstrand, of Aurora, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, Marshall Feld (Feld), appeals from a judgment of the circuit court of Kane County requiring him to pay $2,258, plus costs, to plaintiff, Hodgman, Inc. (Hodgman), for breach of an oral contract to purchase goods. Defendant raises three issues on appeal: (1) whether the agreement between the parties constituted a contract to purchase or a brokerage agreement; (2) whether the contract is unenforceable under the statute of frauds (111. Rev. Stat. 1981, ch. 26, par. 2 — 201(1)), and; (3) whether plaintiff has established a prima facie case of breach of contract.

Pursuant to Supreme Court Rule 323(d) (87 Ill. 2d R. 323(d)), the parties submitted an agreed statement of facts in which the following facts were established. Testifying as an adverse witness pursuant to section 60 of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, par. 60, now codified at 111. Rev. Stat. 1981, ch. 110, par. 2 — 1102), defendant stated that in early 1981 he visited plaintiff’s warehouse in Aurora and examined 2,258 pairs of rubber cut-off boots which he planned to sell to a third person, Raymond Buckner. Prior to that date, defendant had visited the warehouse on several occasions and had taken samples of the boots, apparently to show his intended buyer. Defendant negotiated with plaintiff for the purchase of said boots at $1 per pair. The boots were to be sold to Mr. Buckner for $1.50 per pair. In June 1981 an employee of Mr. Buckner picked up the boots from plaintiff’s warehouse, and paid plaintiff by a check issued by Mr. Buckner in the sum of $3,388. At no time did defendant complain to any officer or agent of plaintiff about the quality of the merchandise.

Defendant also testified that he had conducted business with the plaintiff several times in the past. On some of these occasions, he directed the ultimate buyer of the goods to pick up the goods and pay Hodgman directly. On other occasions, Feld arranged to pick up the goods and himself pay Hodgman. In the price quoted to his ultimate customer, Feld usually figured in the fees or profit to be realized by him on the transaction. On one particular occasion, Feld purchased 3,058 pairs of boots from plaintiff for Ventures Four, a corporation owned by defendant. Said corporation paid plaintiff directly for the goods. On another occasion, goods were purchased by Feld’s company for a sum certain and then resold to a third person, who in turn paid plaintiff for the goods. In that instance, Feld received his profit directly from Hodgman.

Ronald Foster, president of Hodgman, testified he was contacted in 1981 by defendant who agreed to purchase 2,258 pairs of rubber cut-off boots. Mr. Foster stated it subsequently developed that Feld had resold the boots to Mr. Buckner with the understanding that Feld would receive the overage above the $1 per pair price quoted and accepted by Féld. Mr. Foster testified that Feld verbally agreed to guarantee the check of Mr. Buckner and that despite numerous requests by Mr. Foster, said check was not honored by Mr. Buckner, nor was it guaranteed by defendant. Mr. Foster stated he at no time agreed to pay commission to Feld, but he did agree that if Feld had resold the goods, any sum realized over and above plaintiff’s asking price would be paid to Feld directly by plaintiff. The check from Mr. Buckner represented plaintiff’s asking price of $1 per pair plus Feld’s profit of $0.50 per pair.

Mr. Foster also testified to a course of dealing whereby Feld either purchased the goods or agreed to have them purchased by a third party, and received the difference between plaintiff’s asking price and the price for which the goods were resold. Foster testified Feld originally agreed to purchase all distressed merchandise that plaintiff had, if a price could be agreed upon between plaintiff and Feld. A letter from defendant’s attorney, dated September 4, 1981, was admitted into evidence as plaintiff’s exhibit No. 1. The letter stated that defendant had tried to return the goods to Hodgman because they were defective, that Hodgman would not accept their return, and that the goods would therefore be sold to compensate defendant for storage charges which had accumulated in the amount of $3,000.

Foster admitted on cross-examination that no written contract was ever executed by the parties for the purchase of the goods in question. No purchase order was ever received from defendant, and all agreements between the parties were oral. Foster could not recall ever billing Feld’s company for the goods in question.

At the close of plaintiff’s case, defendant moved for a directed judgment on the ground that plaintiff failed to prove the existence of a contractual obligation to pay for the goods and because any contract which may have existed violated the Statute of Frauds. (111. Rev. Stat. 1981, ch. 26, par. 2 — 201(1).) The motion was denied.

Defendant was called as a defense witness. He testified neither he nor his company ever agreed to purchase the goods in question from plaintiff. He testified he never signed any agreement to purchase the goods, never offered to pay for any of the goods or guarantee Buckner’s check, and that he never received nor took possession of the goods. Feld stated he was never billed, and neither he nor his company ever exercised any dominion or control over the goods. He first learned of a problem with the transaction when he was contacted over the phone by Foster. It was Feld’s understanding that he was acting as a broker or a middleman for Hodgman, and that plaintiff had in fact agreed to pay him a commission for the goods purchased by Mr. Buckner.

The court entered judgment for the plaintiff for the purchase price of the goods ($1 per pair), plus costs.

The parties do not dispute the fact that a contract was formed between them. Rather, they dispute the nature of the contract and its terms. Defendant contends the evidence established a brokerage agreement under which he agreed only to sell the goods in question for at least $1 per pair, with any amount over $1 to be paid to him as commission. He maintains he was therefore not liable for payment of the purchase price of the goods. Plaintiff, on the other hand, argues that defendant verbally agreed to purchase the cut-off boots regardless of whether the boots were resold by defendant. Thus, he contends, and the circuit court held, defendant was liable for this amount when the sale to Mr. Buckner fell through.

Whether an oral contract exists, its terms and conditions, and the intent of the parties are questions of fact to be determined by the trier of fact. (Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 431 N.E.2d 738; Panko v. Advanced Appliance Service (1977), 55 Ill. App. 3d 301, 371 N.E.2d 3.) Under general principles of contract law, where an agreement is indefinite, the courts will look to and adopt an interpretation which the parties themselves have placed on it. (Board of Trade v. Dow Jones & Co. (1982), 108 Ill. App. 3d 681, 439 N.E.2d 526; Burgener v. Gain (1981), 101 Ill. App. 3d 699, 428 N.E.2d 722.) Evidence of such an interpretation may be seen in the parties’ contemporaneous or subsequent acts or conduct. (In re Marriage of Whetstone (1980), 87 Ill. App. 3d 164, 409 N.E.2d 41.) In determining whether a certain relationship exists between the parties, the court must look to the substance rather than the form of the transaction, and the categorization given to a relationship by the interested parties is not conclusive of the nature of the relationship. Abt v. Department of Revenue (1966), 34 Ill. 2d 324, 215 N.E.2d 243.

A broker’s contract is governed by the law applicable to ordinary contracts, in that the parties’ minds must meet through offer and acceptance and the contract must be definite in its terms. (Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 400 N.E.2d 614; Bau v. Sobut (1977), 50 Ill. App. 3d 732, 365 N.E.2d 724.) Under a brokerage agreement, the parties agree that one party shall be employed as an agent to make bargains and contracts between other persons in matters of trade, for compensation. (Sunderland v. Day (1957), 12 Ill. 2d 50, 145 N.E.2d 39.) A broker “bargains or carries on negotiations in behalf of his principal as an intermediary between the latter and third persons in transacting business relative to the acquisition of contractual rights, or to the sale or purchase of any form of property, real or personal, the custody of which is not entrusted to him for the purpose of discharging his agency.” (Village of Itasca v. Luehring (1954), 4 Ill. 2d 426, 431, 123 N.E.2d 312; City of Chicago v. Barnett (1949), 404 Ill. 136, 88 N.E.2d 477.) No particular words are necessary to engage the services of a broker; rather, the essential requirement is that a broker act in that capacity with the consent of the principal. (Plastics & Equipment Sales Co. v. DeSoto, Inc. (1980), 91 Ill. App. 3d 1011, 415 N.E.2d 492.) The principal’s consent to an individual acting as its broker can be manifested either expressly or by implication from the parties. (Plastics & Equipment Sales Co. v. DeSoto, Inc.) An implied contract exists in the situation where a property owner knows that the broker is endeavoring to effect a sale and expects to receive compensation for his services, and where the owner encourages the broker to aid in the sale and leads the broker to believe he will receive compensation. Arthur Rubloff & Co. v. Drovers National Bank.

In this case the parties both rely upon evidence of their prior dealings as support of their respective positions. However, it is clear from the evidence that the course of dealing between the parties included both an agency-type relationship and, under certain circumstances, a buyer-seller relationship.

The particular transaction in question here involved the sale of goods to a third party, who was to pay plaintiff directly and was to receive the goods directly from plaintiff. It is clear that the third party, Mr. Buckner, was the buyer and plaintiff was the seller. Defendant, on the other hand, acted only as a middleman, and was to be paid by plaintiff only after the sale was consummated. Defendant never had custody of the goods in question prior to the sale to Mr. Buckner, except for a few samples, nor did he ever receive a bill for the goods. In addition, defendant never sent a purchase order to plaintiff for the goods, and all agreements between the parties were oral. Although the record does not indicate that plaintiff expressly consented to defendant’s acting as an agent on plaintiff’s behalf, plaintiff’s conduct implied such consent. Plaintiff knew that defendant was attempting to effect a sale to a third party and retained custody of the goods until such sale was consummated. Plaintiff also knew that defendant expected to be paid compensation for any amount over plaintiff’s asking price, and plaintiff agreed with this arrangement. From this evidence, it seems clear that defendant was acting as a broker for plaintiff, and that this was the interpretation placed upon the agreement by the parties themselves. See Village of Itasca v. Luehring (1954), 4 Ill. 2d 426, 123 N.E.2d 312; Burgener v. Gain (1981), 101 Ill. App. 3d 699, 428 N.E.2d 722.

However, Mr. Foster also testified to an additional promise made by defendant “to purchase all distressed merchandise that the plaintiff had, if a price could be agreed upon.” He also testified that defendant orally promised to guarantee the check of Mr. Buckner if it did not clear. Although we agree with the defendant that his primary role in this particular transaction was that of broker, the evidence above also indicates that an additional promise may have been made which provided for the guarantee by defendant of payment for the goods in question. Whether an oral contract exists, its terms and conditions, and the intent of the parties are questions of fact to be determined by the trier of fact. (Emmenegger Construction Co. v. King (1982) , 103 Ill. App. 3d 423, 431 N.E.2d 738; Panko v. Advanced Appliance Service (1977), 55 Ill. App. 3d 301, 371 N.E.2d 3.) The trial court’s determination of defendant’s obligation to pay the purchase price was supported by evidence in the record and therefore will not be reversed. Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 426 N.E.2d 604.

Defendant’s second contention is that any alleged contract for the sale of goods by plaintiff to defendant is void under the Statute of Frauds because the goods were valued in excess of $500. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 201.) He further maintains that the parties’ subsequent performance is not consistent with the terms of any alleged oral agreement to purchase. Plaintiff contends that the oral contract to purchase falls within one of the exceptions to the Statute of Frauds and, therefore, is not void for lack of a writing memorializing it. See Ill. Rev. Stat. 1981, ch. 26, pars. 2 — 201(1), (2), (3Kb), (3)(c).

Section 2 — 201(1) of the Code requires all contracts for the sale of goods for the price of $500 or more to be in writing. (111. Rev. Stat. 1981, ch. 26, par. 2 — 201(1).) Section 2 — 201(2) provides for an exception in transactions “[bjetween merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents ***.” (111. Rev. Stat. 1981, ch. 26, par. 2 — 201(2).) Plaintiff claims the contract to purchase falls within this exception because both parties were “merchants” within the meaning of section 2— 201(2). Although defendant does appear to be a “merchant” as that term is defined in the Code (see Ill. Rev. Stat. 1981, ch. 26, par. 2— 104(1)), section 2 — 201(2) was not intended to apply to the present situation. This section’s only intended effect is “to take away from the party who fails to answer [a written confirmation] the defense of the Statute of Frauds; ***.” (Emphasis added.) (Ill. Ann. Stat., ch. 26, par. 2 — 201, Uniform Commercial Code Comment, at 114 (Smith-Hurd 1963).) Even assuming the letter was a “written confirmation,” which we do not believe it was, the defense here is being asserted by the sender of the letter rather than the receiver of it. Therefore, this section is inapplicable to the case at bar. Cf. Campbell v. Yokel (1974), 20 Ill. App. 3d 702, 313 N.E.2d 628.

Sections 2 — 201(3)(b) and (3)(c) provide for exceptions to the Statute of Frauds where the party asserting the defense admits in court that a contract for sale was made, or where the goods have been received and accepted. (111. Rev. Stat. 1981, ch. 26, pars. 2 — 201(3)(b), (3)(c).) Plaintiff relies upon its exhibit No. 1 as support for its position that defendant admitted in court that he accepted and received the goods in question in May 1981 and then attempted to return the goods four months later. However, while the letter might indicate an agreement to receive goods on a contingency basis from an intended buyer, it does not indicate that defendant agreed to purchase those goods. Thus, the letter is not an admission of a contract to purchase within the meaning of section 2 — 201(3)(b).

Under section 2 — 201(3)(c) of the Code, partial performance of a contract will substitute for a writing if the goods have actually been received (see section 2 — 103(l)(c)), and accepted (section 2 — 606). (111. Ann. Stat., ch. 26, par. 2 — 201(3)(c), Illinois Code Comment, at 113 (Smith-Hurd 1963).) Section 2 — 103(l)(c) states that one “receives” goods when he takes physical possession of them. (111. Rev. Stat. 1981, ch. 26, par. 2— 103(l)(c).) The letter in the instant case supports plaintiff’s position that defendant actually had possession of the goods. It can also be assumed, in the absence of specific findings of fact, that the trial court found defendant accepted the goods in question, possibly by failing to make an effective rejection of the goods within a reasonable period of time. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 606(b); National Acceptance Co. of America v. Pintura Corp. (1981), 94 Ill. App. 3d 703, 418 N.E.2d 1114.) Such a finding is supported by the record. Defendant had samples of the goods in question from the beginning of 1981 and therefore had ample opportunity to inspect and reject them at an earlier time. Having actually received and accepted the goods in question the contract to purchase was partially performed under section 2 — 201(3)(c), so that it was effectively removed from the Statute of Frauds. Ill. Ann. Stat., ch. 26, par. 2— 201(3)(c), Illinois Code Comment, par. (c), at 113 (Smith-Hurd 1963).

We also believe the contract to purchase distressed goods and guarantee the check of Mr. Buckner may be viewed as a promise to answer for the debt or default of another. A promise to pay the debt of another, after the debt is incurred, is void under the Statute of Frauds, unless it is made upon a consideration and reduced to writing. (Raveret-Weber Printing Co. v. Wright (1939), 301 Ill. App. 421, 23 N.E.2d 203.) Where, however, goods, money or services are furnished to a third person at the request and upon the credit of the promissor, the undertaking is original, and the statute is inapplicable. (Raveret-Weber Printing Co.) In the present case, Mr. Foster testified that defendant originally promised to pay for all distressed goods and that defendant guaranteed Mr. Buckner’s check prior to its acceptance by plaintiff corporation. Therefore, it is clear that the goods in question were sold to Mr. Buckner upon the credit of the defendant, and the Statute of Frauds is inapplicable in this type of situation. Raveret-Weber Printing Co.

Defendant’s final contention is that the trial court erred in denying his motion for a directed verdict because the plaintiff failed to establish in his case-in-chief a prima facie case of breach of contract. Section 64(3) of the Civil Practice Act provides:

“(3) In all cases tried without a jury, defendant may, at the close of plaintiff’s case, move for a finding or judgment in his favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to the defendant, a judgment dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant he may proceed to adduce evidence in support of his defense, in which event the motion is waived.” (Emphasis added.) (111. Rev. Stat. 1981, ch. 110, par. 64(3), now codified at Ill. Rev. Stat. 1981, ch. 110, par. 2-1110.)

In the instant case defendant proceeded to introduce evidence in support of his defense, following the denial of his motion. In so doing, defendant waived this issue on appeal. Even if this issue were not waived, we believe there was sufficient evidence to establish a prima facie case of breach of contract. Mr. Foster testified that defendant orally agreed to purchase all distressed goods and guarantee the check of Mr. Buckner. In addition, Mr. Foster stated defendant agreed to purchase the specific goods in question here for $1 per pair. The letter sent to plaintiff by defendant’s attorney indicated defendant had possession of the goods in question which were alleged to be defective. This supports plaintiff’s position that defendant agreed to assume responsibility for distressed goods. On the basis of this record there is sufficient evidence to prove the existence of an oral contract to purchase distressed goods. The breach of that contract was established through sufficient evidence that defendant had accepted the goods and had physical possession of them, yet never paid plaintiff.

Although the evidence indicated that the parties’ relationship in the subject transaction was more like that of agent-principal rather than buyer-seller, nothing in plaintiff’s case-in-chief negated or disproved the allegation that defendant orally agreed to purchase distressed goods and guarantee the check of Mr. Buckner. Thus, in our opinion a prima facie case of breach of contract was established by plaintiff and the motion for a directed verdict was properly denied. Happel v. Mecklenburger (1981), 101 Ill. App. 3d 107, 427 N.E.2d 974.

Accordingly, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

SEIDENFELD, P.J., and REINHARD, J., concur.


author: JUSTICE HEIPLE JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS EARL ABNER, Defendant-Appellant.
    Third District
    No. 82—182
    Opinion filed March 22, 1983.

      STOUDER, J., specially concurring.

      Thomas E. McClure, of Elliott & McClure, of Momence, and Robert Agostinelli and Gary Hicks, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Dennis Abner, was charged in the circuit court of Peoria County with attempted armed robbery. Following a jury trial, he was found guilty as charged and sentenced to eight years’ imprisonment.

On appeal, the defendant contends that: (1) the court erred in denying the defendant’s motion for additional discovery; (2) the court erred in denying the defense motion to suppress identification; and (3) the State failed to prove him guilty beyond a reasonable doubt.

The defendant was charged with the attempted armed robbery of the Lincoln Branch Peoria Public Library. On September 25, 1981, a black male, wearing sunglasses and holding a gun, handed a note to Jeanne Stokes, a library employee, telling her to hand over money or he would shoot her. The man left after Mrs. Stokes threw the note back at him and told him to leave. Mary Genzel was also working that day. She had assisted the man in locating some books and observed him as he left the library after the attempted robbery. Later, at the police station, the women were shown some photographs. Ms. Genzel selected two photos of different men for the purpose of demonstrating particular features similar to the armed robber. The State was not aware of this fact prior to trial, and there was no police record of the incident. Meanwhile, relying on a description given by Mrs. Stokes and Ms. Genzel, the police had apprehended the defendant. Ms. Genzel and Mrs. Stokes separately viewed a lineup. Ms. Genzel positively identified the defendant as the armed robber. Mrs. Stokes also picked out the defendant but she was not positive. Both women again identified the defendant at trial.

The defendant now asks us to reverse the trial court because he did not know prior to the trial that Ms. Genzel and Mrs. Stokes had viewed mug shots before the lineup was conducted. The defendant maintains that the court should have granted his motion for additional discovery on this matter since the State was required to disclose that information prior to trial pursuant to Supreme Court Rule 412 (73 Ill. 2d R. 412). In order to determine if the trial court abused its discretion in denying the defendant’s motion, we must first ascertain whether the State was indeed required to divulge the information.

Supreme Court Rule 412 requires the State to disclose information to the accused under certain circumstances. Rule 412(a) requires the State to disclose information within its possession and control upon written motion of defense counsel. This paragraph goes on to list the types of information discoverable. Although the defendant filed a written motion pursuant to Rule 412, he made no specific request for information concerning the lineup. Therefore, disclosure was not required by Rule 412(a).

Rule 412(c) requires the State to disclose any information in its possession or control which tends to negate the guilt of the accused. Although section (c) does not explicitly require a written request for such information, the Illinois Supreme Court has held that absent a specific request, the prosecutor is not required to furnish the defendant with everything in his file that might influence the jury. However, information favorable to the accused may be so significant that the State’s duty to disclose is not dependent upon the defendant’s request. The standard to be applied is the materiality of the information, which depends on a review of the record. If the omitted information would create a reasonable doubt of the defendant’s guilt which did not otherwise exist, then a new trial is justified. (People v. Jones (1977), 66 Ill. 2d 152, 160.) After reviewing the record, we cannot conclude that the prior viewing of mug shots by the two librarians created a reasonable doubt as to the defendant’s guilt.

Ms. Genzel did not identify the defendant in any of the photographs and only selected two photographs of different men for the sole purpose of showing features which were similar to the defendant’s. In all respects, Ms. Genzel’s identification was positive and unwavering. Although Mrs. Stokes’ identification was not as positive, in view of the other evidence which is discussed later in this opinion, the fact that the witnesses viewed some mug shots before identifying the defendant in a lineup does not raise a reasonable doubt as to the defendant’s guilt.

In addition, upon learning that the witnesses had viewed mug shots, the State’s Attorney’s office checked the police file. There was no report of any photographic viewing by the witnesses, and the officer in charge of the investigation could not remember any such viewing or who might have shown the photographs to the witnesses. Despite the fact that the State’s Attorney’s office had no knowledge of the photograph viewing session, the defendant argues that the State should have known this fact. This argument is irrelevant. Our previous discussion has indicated that even if the State had such knowledge, disclosure was not required unless the defendant specifically requested the information, or the information would have raised a reasonable doubt as to the defendant’s guilt. The testimony of the librarians was sufficient to demonstrate that no reasonable doubt could be raised simply because they had viewed some mug shots and since there was no record of the viewing, additional discovery would have been counterproductive.

Next, the defendant argues that the lineup identification should have been suppressed because it was impermissibly suggestive. At the suppression hearing, the burden was on the defendant to show that under the totality of the circumstances, the lineup was conducted in an impermissibly suggestive manner and raised a substantial likelihood of irreparable mistaken identification. (People v. Anton (1981), 100 Ill. App. 3d 344.) The defendant contends that he confronted two white females while being led to the lineup room. The implication is that the two women were Mrs. Stokes and Ms. Genzel. However, this is pure conjecture on the part of the defendant. It is equally possible that the two women the defendant saw were civilian secretaries who were on duty that night. Since it is not clear who the two women were, the incident cannot support a finding of impermissible suggestiveness at the lineup.

The defendant also argues that other members of the lineup were so dissimilar in appearance to himself as to make the lineup procedure unduly suggestive. The librarians had described the offender as tall, thin and light-complected with reddish brown hair. The defendant states that he was the only person in the lineup who matched that description.

After reviewing a photograph of the lineup as it appeared to Mrs. Stokes and Ms. Genzel, we find that the two other members of the lineup were approximately the same height as the defendant and any disparity in weight is not readily apparent. Although the defendant was the lightest complected person in the lineup, the difference in complexion shading between the five persons in the lineup was a matter of degree and not prejudicially suggestive.

The defendant also argues that the lineup was unduly suggestive because he was the only person wearing a ring. In the absence of any evidence showing that the defendant was required by the police to wear the ring, there can be no claim of impermissible suggestiveness as to require suppression of the identification. (People v. Madden (1977), 52 Ill. App. 3d 951, 956.) In the present case, the record clearly established that it was routine police procedure to require the members of a lineup to remove their jewelry if possible. The defendant testified that he was unable to remove the ring. A ring on a finger would be a distinguishing feature of de minimus proportions. Thus we reject his contention that the lineup for such reason was unnecessarily suggestive.

The defendant’s final argument is that the State failed to prove him guilty beyond a reasonable doubt. The defendant bases this argument on three grounds. First, the lineup identification should have been suppressed. For reasons already stated, we have concluded that this evidence was properly admitted.

Second, there was no independent basis for the in-court identification of the defendant. Before the State is required to demonstrate an independent basis for an in-court identification, it must first be established that the out-of-court identification was improper. Since we have concluded that the lineup was properly conducted, there is no need to discuss this issue.

Third, the defendant was never linked to the physical evidence used during the attempted armed robbery. Although it is true that the police never found the note, gun or sunglasses which the defendant used during the attempted armed robbery, there was still sufficient evidence to sustain a guilty verdict.

The defendant was identified by two eyewitnesses who had ample time to observe him under good viewing conditions. Approximately three blocks from the library, the police saw a man who matched the description given them by the librarians. As the police approached him, he ran away. The police pursued him to the back door of a private residence. A woman who identified herself as Yvonne Abner, admitted the officers through the front door. They found the defendant in the basement of the residence, wearing different clothes from those he had on during the chase. The original clothing was found on .a ledge near where the defendant was standing. In light of this evidence, we find that the jury’s verdict was not so unsatisfactory as to raise a reasonable doubt of the defendant’s guilt.

Affirmed.

SCOTT, J., concurs.

JUSTICE STOUDER,

specially concurring:

While I agree with the result reached by the majority of the court and with most of the reasoning, there are aspects of the opinion which cause me concern. This area of concern relates to the motion for additional discovery made during trial when defense counsel learned for the first time the two occurrence witnesses for the prosecution had been shown mug shots or photographs by police officers before later making an identification of the defendant at a lineup.

The first observation of the majority with which I disagree is the assertion that Officer Hoffman’s knowledge or that of any other police officer and their participation in the photographic exhibition cannot be considered knowledge of the prosecution because there was nothing in the file of the State’s Attorney regarding the event and apparently, according to the majority, the prosecutor’s office is not charged -with knowledge and information possessed by the investigative staff of police officers. This is not the rule contemplated by Supreme Court Rule 412(f) (73 Ill. 2d R. 412(f)), and indeed if the purposes and goals of pretrial discovery could be so easily defeated by merely having investigating officers fail to communicate information or reports to the State’s Attorney’s office, discovery procedures would be of little benefit. (See People v. Shegog (1976), 37 Ill. App. 3d 615, 346 N.E.2d 208.) However, in the case at bar, although it appears the occurrence witnesses made two trips to the police station and the viewing of photographs took place on the first visit, there is no evidence that any report was made of this visit, there was therefore no possibility of furnishing any additional discovery at the time it was requested. However, the exhibition of photographs is a subject which should have been encompassed in a report as is demonstrated by the police report incident to the second visit which declares that no photographs were exhibited because the defendant was already in custody. The testimony of the two occurrence witnesses concerning the viewing of photographs is unequivocal, and the police officer’s failure to make an appropriate memorandum of the viewing ought not be approved.

I think the reports and statements of the witnesses would have been discoverable under Supreme Court Rule 412(a)(i) (73 Ill. 2d R. 412(a)(1)) -without any specific reference to a lineup or a showup contrary to the assertion in the majority opinion, but I am inclined to agree that no reversible error occurred because the record fails to disclose that there were items discoverable under Supreme Court Rule 412(a)(i) which were in fact in existence and not provided to defendant.

Defendant in his brief asserts that he was entitled to the additional discovery not under Supreme Court Rule 412(a)(i) but under Supreme Court Rule 412(c). This rule is somewhat like the rule in Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, declaring that suppression by the prosecution of evidence favorable to the defendant fails to accord the defendant his constitutional due process. People v. Jones (1977), 66 Ill. 2d 152, 361 N.E.2d 1104, the principal case cited by the majority, relying on United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392, considers the failure to disclose exculpatory evidence in terms of constitutional due process requirements and announces the test which is described in the majority opinion. Several caveats are in order before the test can or should be accepted and applied in the broad terms suggested. First, in Agurs the court is not concerned with pretrial discovery procedures established by rule or statute and in fact disclaims any intent that its test be applied to those cases where the prosecution has failed or refused to comply with specific discovery rules. Second, where exculpatory material is specifically described and its production is refused Agurs would require a different rule than one in which in effect no request for discovery is made or it is made in such general terms that it is the equivalent of no request. Third, the test finally envisions a showing of a lesser effect on the fact-finding process than that required for relief based on newly discovered evidence, even though the language of the test may be regarded as somewhat ambiguous in this respect. And fourth, the statement in Jones which the defendant claimed should have been produced was not even exculpatory.

I have made the foregoing observations because I believe the broad generalizations either in this opinion or in those relied upon may be confusing when considered apart from the factual context in which they are made. I would affirm the defendant’s conviction based on the observation that under the facts of this case the record reveals no evidence which could be subject to the defendant’s motion for additional discovery at the time it was made.