author: JUSTICE HARTMAN

text:
    ANNETTE M. LOTTER, M.D., Plaintiff-Appellee, v. COLLAGEN CORPORATION et al., Defendants-Appellants.
    First District (2nd Division)
    No. 82—2046
    Opinion filed June 21, 1983.

      John P. Scotellaro and John W. Rotunno, both of Bell, Boyd & Lloyd, of Chicago (Wilson, Sonsini, Goodrich & Rosati, of Palo Alto, California, of counsel), for appellants.
    No brief filed for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

This controversy arises out of the business decision of defendant Collagen Corporation (Collagen) not to sell a product called Zyderm Collagen Implant (Zyderm) to plaintiff Annette Letter, M.D. Count I of Lotter’s amended complaint charged defendants Collagen, Judy Abbey, Robert Swartz, M.D., and Richard Roe, M.D., inter alia, with violating the Illinois Antitrust Act (Ill. Rev. Stat. 1981, ch. 38, par. 60— 1 et seq.) and the common law by conspiring together to restrain trade or commerce. Count II alleged that defendants violated the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1981, ch. 121V2, par. 311 et seq.) by making certain false representations with respect to Letter. On August 19, 1982, the circuit court entered a written order granting Lotter’s motion for a preliminary injunction from which this interlocutory appeal proceeds. 87 Ill. 2d R. 307(a)(l).

The issues raised on appeal include whether: Lotter established the prerequisites for preliminary injunctive relief; defendants were denied due process of law; the order complied with section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11— 101); and the court properly allowed into evidence the letters written by Lotter’s patients and the photographs of some of her patients. We reverse and remand with instructions.

At the hearing on Lotter’s motion for a preliminary injunction, the president of Collagen, Howard Palefsky, stated that a patent, issued to Stanford University on the application of soluble collagen for soft tissue reconstruction, was ultimately licensed to Collagen for its use. Collagen has engaged in developmental and clinical testing, as well as marketing and sale of Zyderm since it received United States Food and Drug Administration clearance in July 1981. Collagen is concerned that the initial use of this product by physicians who may abuse it could ultimately ruin its availability for everyone. Under adverse examination, Palefsky stated that Collagen refuses to sell Zyderm to Lotter because of her unfavorable reputation in the medical community.

The vice-president of marketing at Collagen, Judith Boshart, also testified as an adverse witness. She sought out information from others concerning the reputations of physicians with whom Collagen would be involved. Dr. Lotter had an inordinate number of lawsuits filed against her, lost her hospital privileges and had a patient die in her office from a phenol peel, which is a very common procedure. She made no independent investigation of Lotter.

Dr. Lotter testified that she belonged to numerous medical societies, won several academic awards and authored many publications. Since starting private practice in 1972, she performed over 8,000 surgical procedures. Of these, only 25, or three-tenths of one percent, had resulted in lawsuits against her, a much lower percentage than the national average. Most of the malpractice suits were settled; none resulted in a judgment against her. She resigned from her position at Grant Hospital because she was unable to comply with the hospital’s bylaw requiring her to carry personal malpractice insurance. She was not then under investigation by the Illinois Department of Registration and Education. Based on her education and experience, she would be able to use Zyderm professionally and competently.

Zyderm is designed to elevate depressions in the skin and reduce disfigurement. The safety of the product is insured by pretesting the patient through administering a very small dosage. Two hundred of her patients were in need of Zyderm. She identified 21 sets of photographs, received in evidence, showing the specific skin problems of 21 patients. All had been treated to the fullest extent possible. Zyderm is the only further treatment available. All the patients desire this further treatment. Two of her patients were suicidal due to the nature of their appearance. Lotter introduced documentary evidence revealing that, until that time, the Medical Disciplinary Board of the State of Illinois found her not guilty of gross medical malpractice, “manifest” professional incompetence, or poor standards of care in her treatment of the patient who died in her office.

On the seventh day of the hearing, during Collagen’s direct examination of its first defense witness, Palefsky, the court stated that it had “heard enough,” and was ready to order injunctive relief. It refused to allow Collagen to complete Palefsky’s testimony or to put on the remainder of its defense. Collagen offered to prove that Lotter lost her malpractice insurance because the insurance company felt that she presented an excessive risk due to the number of malpractice suits filed against her. Collagen was also prepared to introduce a certificate showing that Lotter was currently under investigation by the Illinois Department of Registration and Education.

The court’s written order required: Collagen to “prepare” Lotter for use of Zyderm; Collagen to ship to Lotter two six-syringe boxes of “test” doses; Lotter to transmit to Collagen case report forms denoting the results of Zyderm testing; Collagen to ship one six-syringe box for each patient showing negative test results in accordance with Collagen’s customary procedures, to a maximum of 12 boxes. This interlocutory appeal followed. On September 1, 1982, this court stayed the order of the circuit court during the pendency of the appeal.

I

Lotter previously moved to dismiss the interlocutory appeal, contending that the controversy is moot because of this court’s stay of the preliminary injunction order and the lapse of time since the latter order was entered. She asserted that the emergency status of her patients “no longer exists” and she would no longer object to the vacation of the preliminary injunction order. That motion was denied on March 1, 1983. We briefly comment on the reason for that denial. Although an appellate court will not review a case merely to resolve moot or abstract questions, to establish precedent, or to render a judgment to guide future potential litigation (La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 379, 121 N.E.2d 486; Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 527, 430 N.E.2d 139), Letter’s motion failed to explain how the passage of time eliminated the emergency status of the patients in need. Her motion is contrary to the evidence she introduced at the proceeding before the circuit court, and her subsequent contention, that her inability to provide treatment requiring the “use of Zyderm *** [was] effectively destroying her medical practice.” More importantly, her motion declares an intent to proceed at the trial level with the merits of her complaint. Among the prayers for relief therein set forth is one for a permanent injunction based upon the same theories that were utilized at the preliminary injunction hearing. On the other hand, Collagen seeks a judicial determination as to its rights and duties, to which it is entitled. (Two Hundred Nine Lake Shore Drive Building Corp. v. City of Chicago (1971), 3 Ill. App. 3d 46, 49, 278 N.E.2d 216.) Accordingly, the motion to dismiss the appeal as moot was denied.

II

Lotter has failed to file a brief on appeal. Nevertheless, we elect to decide the merits of the case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.

Collagen contends that the circuit court erroneously entered the preliminary injunction because Lotter failed to establish any of the prerequisites for injunctive relief. In particular, Collagen maintains that Lotter did not demonstrate that she has a clearly ascertained right to purchase Zyderm from Collagen. In order for a preliminary injunction to issue, the movant must show, inter alia, he or she has a lawful right in need of protection. Kaplan v. Kaplan (1981), 98 Ill. App. 3d 136, 141, 423 N.E.2d 1253.

Collagen maintains that it has the unilateral right to determine with whom it will and will not deal, asserting that in the absence of a purpose to create or maintain a monopoly, an antitrust law does not limit the right of the manufacturer engaged in an entirely private business, freely to exercise its own independent discretion as to parties with whom it will deal. (United States v. Colgate & Co. (1919), 250 U.S. 300, 307, 63 L. Ed. 992, 997, 39 S. Ct. 465, 468; see Reeves, Inc. v. Stake (1980), 447 U.S. 429, 438-39, 65 L. Ed. 2d 244, 252, 100 S. Ct. 2271, 2278.) Central to a patentee’s legal monopoly is the right to prevent others from utilizing its discovery without its consent. (Zenith Radio Corp. v. Hazeltine Research, Inc. (1969), 395 U.S. 100, 135, 23 L. Ed. 2d 129, 155, 89 S. Ct. 1562, 1583.) Incidental to the monopoly grant of a patent are the rights in the patentee to choose the licensees who will be authorized to practice the teaching of the patent. (La Salle Street Press, Inc. v. McCormick & Henderson, Inc. (7th Cir. 1971), 445 F.2d 84, 95.) The antitrust laws do not require a patent holder to forfeit the exclusionary power inherent in his patent the moment the patent affords him monopoly power over a pertinent market. (SCM Corp. v. Xerox Corp. (2d Cir. 1981), 645 F.2d 1195, 1204, cert. denied (1982), 455 U.S. 1016, 72 L. Ed. 2d 132, 102 S. Ct. 85.) A private manufacturer retains his right to decide with whom he will deal so long as he does not intend to restrain competition or expand his monopoly and does not act coercively. (Official Airline Guides, Inc. v. FTC (2d Cir. 1980), 630 F.2d 920, 927-28, cert. denied (1981), 450 U.S. 917, 67 L. Ed. 2d 343, 101 S. Ct. 1362.) Although the foregoing authorities dealt with Federal, rather than State, antitrust laws, under our Illinois Antitrust Act, our courts are bound to follow Federal court construction of statutes similarly worded, as in this case. Ill. Rev. Stat. 1981, ch. 38, par. 60 — 11.

In the case sub judice, Lotter offered no evidence that defendants conspired together to unreasonably restrain competition or to expand their monopoly. The circuit court’s decision to issue the preliminary injunction was not based upon any finding that defendants violated the antitrust laws. Rather, during the course of the proceedings, the court formed the foundation for its decision as follows:

“I don’t think that a human being[’]s well-being because of a patent is something to be restricted because of a patent. *** I can see where an opener for a bottle cap has a patent. That would be something entirely different. But when you [Collagen’s counsel] are telling me that a drug is something that you have a right to determine who in the world is going to get it, I disagree with you.”

Thus, the circuit court apparently believed that since the product involved here was a medical drug to be used for purposes of health care, Collagen did not have the right to refuse to sell to Lotter. No precedent was offered to support the court’s theory. In the absence of an antitrust violation or some other illegal purpose, Collagen had the right to decide not to sell Zyderm to Lotter and was not required to justify its business judgment by showing that Lotter was unqualified or incompetent. Lotter failed to establish a right to purchase Zyderm from Collagen on any other basis. Accordingly, the preliminary injunction was improperly entered and must be vacated upon reversal. In light of the foregoing disposition, other issues raised by appellant need not be addressed.

Reversed and remanded with instructions.

DOWNING, P.J., and STAMOS, J., concur.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
    DOLORES L. McCANN, Plaintiff-Appellee, v. LISLE-WOODRIDGE FIRE PROTECTION DISTRICT, Defendant-Appellant.
    Second District
    No. 82—551
    Opinion filed June 21, 1983.

      Kristine A. Karlin, Jay S. Judge, and James S. Stephenson, all of Judge, Kurnik & Knight, Ltd., of Park Ridge, for appellant.
    A. Mark Ialongo and Fred Lambruschi, both of Chicago, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiff, Dolores L. McCann, was involved in an automobile collision and brought suit for personal injuries against two other drivers, defendant David A. Rainford and defendant James J. Filliung and also against defendant Lisle-Woodridge Fire District (District) a local public entity, on the grounds that Filliung at the time and place in question was acting as agent and servant and in the course of his employment for the District. Negligence was charged against each defendant. The jury returned a verdict in favor of Rainford and in favor of plaintiff against defendants Filliung and Lisle-Woodridge Fire Protection District in the amount of $169,097. Only the District has brought this appeal.

Briefly stated, the collision occurred at a “T” intersection of Maple Avenue and Elm Street in Lisle, Illinois. Defendant Filliung, a volunteer fireman for defendant Lisle-Woodridge Fire Protection District, was responding to a call for his services and pulled around the left side of plaintiff’s vehicle, which was stopped at a stop sign on Elm Street facing north at its intersection with Maple Avenue, and into the path of the Rainford vehicle, which was proceeding eastbound on Maple Avenue. Rainford applied his brakes, they locked, and his vehicle skidded until the left front fender struck the driver’s door of plaintiff’s vehicle.

On appeal, defendant first contends that the trial court should have awarded a new trial in this cause because plaintiff failed to comply with discovery procedures by failing to disclose the existence of certain photographs of plaintiff’s vehicle and that such noncompliance was substantial and in bad faith. (E.g., Biehler v. White Metal Rolling & Stamping Corp. (1975), 30 Ill. App. 3d 435, 443.) We do not disagree with the principles and supporting authorities regarding discovery and the purpose of full and complete discovery suggested by defendant, but, from our examination of the record, we conclude that there was no intentional or wilful conduct on the part of the plaintiff to hide or a failure to disclose the photographs in question.

On the contrary, a review of plaintiff’s response to defendant’s interrogatories concerning the photographs of the scene, person or vehicles involved in possession of plaintiff reveals that it is, as the result of typographical errors, unintelligible and meaningless. Defendant could have and should have sought clarification of this response well in advance of trial. Further, the record discloses that one of the attorneys representing the District did voir dire the plaintiff concerning the photographs in question and was given an opportunity to examine her concerning them and that, on motion of said attorney, the photographs were admitted into evidence. Thus, the photographs were available to the District’s counsel in his closing argument, referred to several times in that argument, and were available to the jury for examination. In sum, plaintiff’s typographical errors in her response to interrogatories did not constitute a violation of discovery procedures, and the trial court properly denied a new trial on the basis of this alleged discovery violation.

Defendant next maintains that a review of the record shows an oral agreement existed between plaintiff and defendant Rainford which undermined the integrity of the adversary nature of the judicial process. However, both counsel for plaintiff and for defendant Rain-ford, who were officers of the court, assured the court in no uncertain terms that there were no agreements. Considering the total circumstances shown by the evidence in this case, the conduct of counsel for plaintiff and counsel for defendant Rainford does not lead to the single inference that an agreement existed between plaintiff and defendant Rainford as contended by the defendant District. Therefore, a finding that no agreement existed would not be against the manifest weight of the evidence. The trial court did not abuse its discretion in failing to award defendant District a new trial on this ground.

Next the defendant contends that the trial court erred in excluding evidence regarding the effect of taxation on plaintiff's lost wages. Specifically, the court sustained an objection to defendant’s attempts to elicit testimony as to plaintiff's net lost wages. Defendant contends that this evidence should have been admitted.

Defendant argues on appeal, as it did in its post-trial motion, that Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755, a wrongful death action brought under the Federal Employers Liability Act (FELA) (45 U.S.C. sec. 51 et seq. (1976)) is applicable and supports the conclusion that evidence of the effect of taxation is admissible. Specifically, defendant points to language of the Supreme Court that the FELA is compensation oriented and that a “wage earner’s income tax is a relevant factor in calculating the monetary loss suffered by his dependents when he dies.” (444 U.S. 490, 494, 62 L. Ed. 2d 689, 694, 100 S. Ct. 755, 757.) The narrow issue before us is whether Liepelt should be applied to a nonFELA case, specifically a State action for personal injuries.

In Illinois cases both before and after Liepelt, Illinois courts have prohibited jury instructions as to the nontaxable nature of damages awards. In two cases cited by the parties, the first and third districts of this court rejected the proposed application of Liepelt that would allow such jury instructions, basing the rejection on a determination that the Liepelt holding does not apply to claims arising under State law. (Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 262; Newlin v. Foresman (1982), 103 Ill. App. 3d 1038, 1046.) Specifically, the court found in these cases that Raines v. New York Central R.R. Co. (1972), 51 Ill. 2d 428, 430, cert. denied (1972), 409 U.S. 983, 34 L. Ed. 2d 247, 93 S. Ct. 322, is applicable to a State action and that the proffered jury instruction was properly refused. Accord, Johnson v. Hoover Water Well Service, Inc. (1982), 108 Ill. App. 3d 994, 1009.

Defendant attempts to distinguish between jury instructions on the nontaxability of damages awards, which was the subject of the post-Liepelt cases of Christou and Newlin, and evidence to be introduced that pecuniary loss is a net amount to be determined after deduction for taxes, the issue at bar. Defendant would apply Liepelt to the latter. We agree with plaintiff that defendant is seeking to obtain through evidence at trial what it could not do by way of instructions and that allowing such evidence at trial would be inconsistent with prohibiting the instructions.

The United States Supreme Court recognized in Liepelt that both of these questions in an FELA action are governed by Federal rather than State law. (444 U.S. 490, 492-93, 62 L. Ed. 2d 689, 693, 100 S. Ct. 755, 757.) However, this court, in the post-Liepelt cases discussed above, has rejected Liepelt and found that Raines is applicable in cases arising under State law. In Raines our supreme court stated as follows:

“In Hall v. Chicago and Northwestern Ry. Co., 5 Ill. 2d 135, at 151-152, this court observed: ‘It is a general principle of law that in the trial of a lawsuit the status of the parties is immaterial. Thus, what the plaintiff does with an award, or how the defendant acquires the money with which to pay the award, is of no concern to the court or jury. Similarly, whether the plaintiff has to pay a tax on the award is a matter that concerns only the plaintiff and the government. The tortfeasor has no interest in such question. And if the jury were to mitigate the damages of the plaintiff by reason of the income tax exemption accorded him, then the very Congressional intent of the income tax law to give an injured party a tax benefit would be nullified.’ ” (51 Ill. 2d 428, 430.)

This view is in accord with that of the dissent in Liepelt, wherein Justice Blackmun and Justice Marshall said:

“[B]y mandating adjustment of the award by way of reduction for federal income taxes that would have been paid by the decedent on his earnings, the Court appropriates for the tortfeasor a benefit intended to be conferred on the victim or his survivors.
* * *
Ordinarily, however, the effect of an income tax upon the receipt of a payment is of no real or ultimate concern to the payer. Apart from required withholding, it just is not the payer’s responsibility or, indeed, ‘any of his business.’ The concept of ‘net after taxes’ and the omnipresence of the tax collector, to be sure, are present facts of life and are within the constant awareness of both recipient and payer. But these factors do not change the basic character of an award for damages, whether that award be one to compensate the surviving victim for his injury, or one to compensate the deceased victim’s survivors, by way of statutory wrongful-death benefit, for their loss. The income tax effect should flow and be retained in its own channel. Surely, it should not operate to assist the tortfeasor by way of a benefit, perhaps even a windfall.” 444 U.S. 490, 498-99, 62 L. Ed. 2d 689, 697, 100 S. Ct. 755, 760.

There appears to be no reason to distinguish between permitted jury instructions and permitted testimony at trial on the effect of taxation on the amount (after-tax) of an award that the successful plaintiff will realize. We conclude that where, as here, a case is brought pursuant to State law, Liepelt is inapplicable, and the rationale of State judicial decisions prohibiting jury instructions on nontaxability of damage awards should also prohibit the introduction of evidence of the effect of taxes on income loss in a personal injury action. The trial court did not err in sustaining plaintiff’s objection to the testimony as to plaintiff’s net lost wages. See In re Air Crash Disaster (N.D. Ill. 1981), 526 F. Supp. 226, 229-31 (most logical and likely conclusion is that Illinois law precludes both admission of evidence and giving of an instruction as to taxation and damage awards).

Finally, defendant contends that under section 1 of “An Act in relation to tort liability of firemen of fire protection districts or corporations” (Ill. Rev. Stat. 1979, ch. 1271/2, par. 46) (hereinafter fire protection district statute) defendant District cannot be held liable for plaintiff’s injuries where wilful and wanton misconduct on the part of defendant Filliung, a compensated volunteer fireman, was neither pleaded nor proved. Specifically, this section provides:

“Sec. 1. In case any injury to the person or property of another is caused by the negligent operation of any motorized fire fighting equipment by a compensated fireman or authorized volunteer fireman of a fire protection district or incorporated fire protection organization while he is engaged in the performance of his duties as a fireman, and without contributory negligence of the injured person, of the owner of the injured property or of the agent or servant of the injured person or owner, the fire protection district or incorporated fire protection organization in whose behalf the fireman is performing his duties shall be liable for that injury. While engaged in preventing or extinguishing fires, any fireman or authorized volunteer fireman of a fire protection district or incorporated fire protection organization may enter upon the lands of any person, firm, private or municipal corporation or the State of Illinois to carry out his duties and while so acting shall not be criminally or civilly liable for entering upon such lands. In no case shall such a fireman be liable in damages for any injury to the person or property of another caused by him while engaged in the performance of his duties as a fireman, unless such injury results from his wilful and wanton misconduct.”

The thrust of defendant District’s argument is that under this section defendant Filliung, a compensated volunteer fireman, could only be held liable for injuries and damages resulting from his wilful and wanton misconduct and that, since the responsibility of the District in this cause rests on the doctrine of respondeat superior, it could not be held liable unless Filliung was charged and proved guilty of wilful and wanton misconduct rather than negligence.

In ruling on defendant’s motion, the trial judge construed the last sentence of the aforesaid fire protection district statute as modifying only the previous sentence and interpreted the statute as applying the wilful and wanton standard only when a fireman is engaged in the performance of his duties of preventing or extinguishing fires and not while otherwise operating motorized firefighting equipment. For the reasons set forth below, we conclude that, while the trial judge’s particular interpretation of the statute was in error, the defendant District can be held liable under the statute for the negligence of its fireman in the operation of motorized firefighting equipment even though the fireman individually can be held liable only for his wilful and wanton misconduct. The trial court’s ruling was correct even though based on an erroneous reading of the statute. A reviewing court can affirm a judgment of the trial court for reasons other than those relied upon by the trial court, and the judgment of the trial court will be sustained if it is correct, irrespective of whether the court’s reasoning was correct. Monarski v. Greb (1950), 407 Ill. 281, 291; Hintz v. Lazarus (1978), 58 Ill. App. 3d 64, 67.

We agree with the defendant District that, inasmuch as the fire protection district statute, section 1 — 4—4 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 4—4) (hereinafter municipal fire department statute), and section 5 — 103(b) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 5 — 103(b)) (hereinafter Tort Immunity Act) all relate to the same subject matter and are parts of a comprehensive statutory scheme, the sections should be construed in pari materia in order to determine legislative intent and avoid injustice. (Clement v. O’Malley (1981), 95 Ill. App. 3d 824, 838 (Sullivan, P.J., dissenting).) These sections, therefore, will be considered together so that they may be given harmonious effect. People v. Scheib (1979), 76 Ill. 2d 244, 250.

Section 5 — 103(b) of the Tort Immunity Act provides that the fire protection district statute and the municipal fire department statute are exceptions to the provisions of section 5 — 103(b) that grant immunity to a local public entity and public employee from liability caused by an act or omission by the public employee in fighting a fire. In Adams v. City of Peoria (1979), 77 Ill. App. 3d 683, 687-88, the third district of this court recognized that the tort liability of firefighters of fire protection districts and, inferentially, of fire protection districts themselves is found in the fire protection district statute. Similarly, the municipal fire department statute establishes the tort liability of members of municipal fire departments and of municipalities for the conduct of their firemen in operating motor vehicles.

The municipal fire department statute provides as follows:

“Sec. 1 — 4—4. In case any injury to the person or property of another is caused by the negligent operation of a motor vehicle by a member of a municipal fire department while the member is engaged in the performance of his duties as fireman, and without the contributory negligence of the injured person or the owner of the injured property or the agent or servant of the injured person or owner, the municipality in whose behalf the member of the municipal fire department is performing his duties as fireman shall be liable for that injury. But in no case shall a member of a municipal fire department be liable in damages for any injury to the person or property of another caused by him while operating a motor vehicle while engaged in the performance of his duties as a fireman, unless such injury results from his wilful and wanton misconduct. As used in this section the term ‘member of a municipal fire department’ includes an authorized volunteer fireman.” (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 4—4.)

A reading of this statute together with the fire protection district statute makes evident the legislative intent to impose liability upon fire protection districts and municipalities for the negligence of their firemen in the operation of motor vehicles or motorized firefighting equipment while engaged in the performance of their duties as firemen and, at the same time, to impose a higher standard, that of wilful and wanton misconduct, as a basis of liability for an individual fireman for the acts or omissions committed while engaged in the performance of his duties as a fireman.

In reaching this conclusion, we have noted that in the fire protection district statute liability is imposed on a fire protection district for the negligence of its fireman in the operation of “any motorized fire fighting equipment,” while in the municipal fire department statute liability is imposed on the municipality for the negligence of its fireman in the operation of “a motor vehicle.” We agree with defendant District that any distinction between a motor vehicle and motorized firefighting equipment is without basis. In Stubblefield v. City of Chicago (1971), 48 Ill. 2d 267, 271, our supreme court, in order to avoid possible constitutional defects arising from an invalid classification (see Harvey v. Clyde Park District (1964), 32 Ill. 2d 60), held that “ ‘motorized fire fighting equipment’ ” as used in the fire protection district statute is no broader than “ ‘motor vehicle’ ” as used in the municipal fire department statute. For the same reasons, we feel compelled to hold that “motorized fire fighting equipment” as used in the fire protection district statute is no less extensive than “motor vehicle” as used in the municipal fire department statute and that Filliung’s privately owned vehicle, which he was driving in response to a fire call while operating the blue emergency light, was “motorized fire fighting equipment” within the meaning of the fire protection district statute.

We agree with the defendant District that the phrase “while engaged in the performance of his duties as a fireman” in the last sentence of the fire protection district statute is not limited, as the trial court held it to be, to include only those duties performed in connection with preventing or extinguishing fires. The reference to “such a fireman” in the last sentence of that statute was intended to include any compensated fireman or authorized volunteer fireman of a fire protection district while he is engaged in the performance of his duties as a fireman, including the operation of motorized firefighting equipment. However, we disagree with the conclusion drawn by the defendant District that it could therefore only be liable if Filliung’s conduct was wilful and wanton.

In support of the aforesaid contention, defendant District argues that section 2 — 109 of the Tort Immunity Act (111. Rev. Stat. 1979, ch. 85, par. 2 — 109), which provides that a public entity is not liable for any injury resulting from an employee’s action when the employee is not liable, requires that Filliung’s conduct had to be shown to be wilful and wanton in order to impose liability of the District. This argument is not valid for several reasons. In Adams v. City of Peoria (1979), 77 Ill. App. 3d 683, 687, the court pointed out that the fire protection district statute is an exception to the broad immunity granted under section 5 — 103(b) of the Tort Immunity Act and therefore, by implication, to the provisions of section 2 — 109 of that Act. Further, it is a well-settled rule of statutory construction that where there is a specific statutory provision, and where there is a general statutory provision either in the same or in another act which relates to the same subject that the specific provision relates to, the specific provision controls over the general statute. (People ex rel. Goodman v. Wabash R.R. Co. (1946), 395 Ill. 520, 540; Nabor v. Occidental Life Insurance Co. (1979), 78 Ill. App. 3d 288, 294; United States Steel Corp. v. Pollution Control Board (1978), 64 Ill. App. 3d 34, 43.) Clearly, the intent of the fire protection district statute, manifest in its words, is to impose liability upon fire protection districts for the negligence of its firemen in the operation of motorized firefighting equipment, while, at the same time, limiting the liability of firemen as individuals to wilful and wanton misconduct. Any other construction would nullify and completely ignore the positive and specific language of the statute which makes the fire protection district so liable. Cf. People ex rel. Goodman v. Wabash R.R. Co. (1946), 395 Ill. 520, 540-41 (statutes specifically providing that city bonds issued for hospital purposes be payable out of taxes for hospital purposes controlled over general statute providing that taxes levied to pay refunding bonds be in addition to and exclusive of the maximum of other taxes authorized to be levied).

Defendant has also cited numerous cases holding that under the doctrine of respondeat superior the employer cannot be held liable unless the employee is liable. (E.g., Woodman v. Litchfield Community School District No. 12 (1968), 102 Ill. App. 2d 330; Fustin v. Board of Education (1968), 101 Ill. App. 2d 113.) However, these cases are in-apposite, since none of them involve the application of a statutory provision, such as here, which clearly imposes one standard upon the employer for the acts or omissions of the employee that can be imputed to the employer and a different standard on the employee for his acts or omissions where he is to be held individually responsible. In enacting the fire protection district statute and the municipal fire department statute, the legislature in its wisdom recognized that, in answering fire calls, firemen are obligated to drive motorized equipment as rapidly as possible in order to respond promptly to such calls and thus effect the saving of lives and property. While the legislature apparently felt that it was necessary to protect the public from injury due to the operation of such equipment at fast and dangerous speeds by making the district or the municipality responsible for the negligent operation of the vehicles, it could at the same time properly decide that it would be unfair to impose personal liability on the fireman individually for any such negligent conduct so that the liability of the fireman was limited only to his wilful and wanton acts or omissions.

This appears to be a reasonable and valid classification. Defendant has not contended that it is in any way constitutionally defective. In this case, the defendant District’s fireman, Filliung, was found negligent by the jury in the operation of his motor vehicle while engaged in the performance of his duties as a fireman, and, pursuant to the provisions of the fire protection district statute, the jury properly found the District responsible for that negligence.

The judgment of the trial court is affirmed.

Affirmed.

LINDBERG and REINHARD, JJ., concur.


author: JUSTICE NASH

text:
      In re MARRIAGE OF ROBERT J. EMERSON, Plaintiff-Appellant, and GEORGIANN EMERSON, Defendant-Appellee.
    Second District
    No. 82—665
    Opinion filed June 16, 1983.

      Roger T. Russell, of Victor, LaFayette & Russell, of Rockford, for appellant.
    Robert C. Becker, Jr., of Genoa, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Robert J. Emerson, appeals from an order of the circuit court of Boone County denying his petition in which he sought termination of child support pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510) and, alternatively, to vacate portions of a judgment of dissolution pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure (formerly section 72 of the Civil Practice Act). (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401.) We affirm.

Plaintiff married defendant Georgiann Emerson on February 19, 1971, and on June 3, 1971, defendant gave birth to a child, Dawn M. Emerson; the birth certificate listed plaintiff as Dawn’s father. Thereafter, on September 10, 1979, plaintiff filed a petition for dissolution of the marriage in the circuit court which alleged, inter alia, that «*** one (¿¿id has been born of the marriage, to-wit: Dawn M. Emerson, age 8.” Defendant admitted that allegation in her answer to the petition and plaintiff testified accordingly in the dissolution hearing. On December 12, 1979, a judgment of dissolution was entered which found that Dawn M. Emerson had been born of the marriage, her custody was given to defendant and plaintiff was ordered to pay $50 per week for child support. No direct appeal was taken from the judgment nor was a section 72 petition filed within two years thereafter.

On January 12, 1982, plaintiff filed a petition to terminate child support which, as amended, sought in count I to terminate child support pursuant to section 510 of the Act based upon a substantial change in circumstances caused by plaintiff’s alleged discovery that he was not the father of Dawn M. Emerson. On the same grounds, in count II, plaintiff sought to vacate those portions of the decree which established the paternity of Dawn pursuant to section 72 of the Civil Practice Act (now section 2 — 1401 of the Code of Civil Procedure).

At the hearing of the petition, both plaintiff and defendant testified they had first met in October 1970. At that time defendant was married to Ronald Stelling, but that marriage was dissolved on October 30, 1970. Plaintiff and defendant began dating in early November and first had sexual relations in mid-November 1970. Approximately two weeks later, during the first week of December 1970, defendant was advised by her physician that she was three months pregnant. She informed plaintiff of this fact and told him she thought Ronald Stelling was the father. Notwithstanding this situation, the parties married in February 1971. Plaintiff testified he thought there was a possibility that he was the father of the child, but always had doubts and was “reasonably sure” he wasn’t the father. After the child’s birth plaintiff treated her as his child throughout the marriage, the dissolution and thereafter until May 1981. In May 1981 plaintiff had a telephone conversation with defendant in which she informed him for the first time, unequivocally, that he was not Dawn’s father; since that time plaintiff has not seen the child.

The trial court denied plaintiff's petition finding (1) that plaintiff’s prior knowledge of probable nonpaternity and his acknowledgement of the child equitably estops him from now denying paternity; (2) that the prior dissolution decree is res judicata on the issue of paternity; (3) that plaintiff has shown no fraud upon which to base section 72 relief sought more than two years after judgment; and (4) that there was no change of circumstances sufficient to justify relief pursuant to section 510 of the Act.

It is apparent that plaintiff was aware of all of the circumstances surrounding the possible paternity of the child, nonetheless, he married defendant and permitted his name, as father, to be placed on the birth certificate. Plaintiff alleged in his petition for dissolution that Dawn was born of the marriage, testified accordingly at the hearing and acquiesced to the dissolution judgment which established his paternity. Plaintiff thereafter complied with the child-support requirements of the judgment until, more than two years after its entry, he sought to vacate it, in part, solely because defendant had unequivocally stated a fact of which he had been “reasonably sure” since his marriage to her in 1971. Under these circumstances we consider plaintiff estopped to deny paternity of the child as found in the judgment and that determination is res judicata for purposes of his post-decree petition. Fohr v. Fohr (1979), 75 Ill. App. 3d 575, 579, 394 N.E.2d 87, 90; Sanders v. Sanders (1977), 55 Ill. App. 3d 248, 251, 371 N.E.2d 121, 124-25, appeal denied (1978), 71 Ill. 2d 601.

In Fohr, the father filed a post-decree petition seeking to transfer custody of the children from the mother. The mother contended that he was not the actual father of the children notwithstanding that she had sought the judgment which established his paternity. The reviewing court found that the judgment determining parentage was res judicata and that the mother’s efforts in seeking it estopped her from contending to the contrary in order to obtain a present favorable judgment. In Sanders, the same result was reached where the mother sought custody and the father denied maternity. Although in the present case both parties now say plaintiff is not the biological father, plaintiff has not established any facts which would alter the estoppel and res judicata effect of his prior representation to the court or the judgment.

Plaintiff has also failed to establish facts which would entitle him to relief under section 510 of the Illinois Marriage and Dissolution of Marriage Act or section 2 — 1401 of the Code. Section 510 provides, in part:

“the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to the filing of the motion for modification with due notice by the moving party and only upon a showing of a substantial change in circumstances.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 40, par. 510.)

The trial court’s finding whether there has been a substantial change in circumstances warranting modification of child support is one which rests in its sound discretion and will not be reversed absent a showing of an abuse of that discretion. (In re Marriage of Butler (1982), 106 Ill. App. 3d 831, 836, 436 N.E.2d 561, 564-65; Harner v. Harner (1982), 105 Ill. App. 3d 430, 434, 434 N.E.2d 465, 468-69.) Normally, factors to be considered by the trial court in exercising its discretion regarding modification of child support provisions include financial resources of children, financial status of custodial parent, financial resources of noncustodial parent, standard of living the children would have enjoyed in absence of divorce, and physical, emotional and educational needs of the children. (In re Marriage of Butler (1982), 106 Ill. App. 3d 831, 836, 436 N.E.2d 561, 564-65; Runge v. Kohn (1981), 102 Ill. App. 3d 356, 361, 430 N.E.2d 58, 62.) In the present case plaintiff has shown no change in these circumstances. At most, he has shown merely a change of mind by the parties regarding paternity. The trial court did not abuse its discretion in finding there had been no change in circumstances which would permit the modification sought by plaintiff.

Similarly, plaintiff is not entitled to relief under section 72 of the Civil Practice Act (now codified as section 2 — 1401 of the Code). Section 72 provides, in part:

“(3) The petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.” (Ill. Rev. Stat. 1981, ch. 110, par. 72.)

Since plaintiff filed his section 72 petition more than two years after the entry of the judgment of dissolution, he must show that the grounds asserted for relief were fraudulently concealed from him. Although a fraudulently obtained judgment may be attacked at any time (Pennington v. Pennington (1975), 27 Ill. App. 3d 344, 349, 326 N.E.2d 431, 434), it is not sufficient for a party to come into court and simply assert that the judgment was premised upon false facts and that a good defense exists. (Filosa v. Pecora (1974), 18 Ill. App. 3d 123, 128, 309 N.E.2d 356, 360.) Rather, the party must show that such facts could not reasonably have been disclosed at or prior to the entry of judgment and also requires a showing of due diligence by the petitioner. (Bennett v. Gollant (1970), 127 Ill. App. 2d 224, 231, 262 N.E.2d 34, 37, appeal denied (1970), 44 Ill. 2d 586.) As previously noted, plaintiff testified that he had knowledge of all of the relevant facts concerning the child’s paternity at the time of his marriage to defendant. It is specious to contend, at this late date, that defendant’s prior failure to unequivocally state plaintiff was not the child’s father constituted fraudulent concealment from him. Motions under section 72 are addressed to the sound discretion of the trial court and will not be overturned absent abuse. (In re Marriage of Hopkins (1982), 106 Ill. App. 3d 135, 137, 435 N.E.2d 897, 899; Schiffman v. Bowman (1980), 88 Ill. App. 3d 766, 769-70, 411 N.E.2d 71, 74.) While this section is an exception to the general rule that the trial court loses jurisdiction after 30 days, the exception is limited and requires that a party allege and prove a proper ground for relief. (Kelly v. Kelly (1982), 105 Ill. App. 3d 136, 140, 434 N.E.2d 55, 58, appeal denied (1982), 91 Ill. 2d 570.) Section 72 was not intended to relieve a party from the consequences of his own mistake or serve as a remedy for a belated change of mind. (Kelly v. Kelly (1982), 105 Ill. App. 3d 136, 140, 434 N.E.2d 55, 58, appeal denied (1982), 91 Ill. 2d 570; In re Estate of Reilly (1979), 68 Ill. App. 3d 906, 912-13, 386 N.E.2d 462, 467.) In light of these criteria, we find no basis in the record for the relief requested by petitioner.

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

Affirmed.

REINHARD and UNVERZAGT, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BRENTS, Defendant-Appellant.
    Fourth District
    No. 4—82—0449
    Opinion filed June 6, 1983.

      Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Kevin T. McClain, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant was found guilty of armed robbery following a jury trial in the circuit court of Sangamon County. He was convicted and sentenced to a 20-year term of imprisonment. During the defendant’s preliminary hearing on the armed robbery offense, he had become unruly in court, was held in contempt and sentenced to serve six months in jail. The sentencing court refused to grant credit for the four-month period of jail time elapsing between February 16, 1982, the date of contempt, and June 17, 1982, when the defendant was sentenced on the armed robbery conviction. The defendant appeals both his armed robbery conviction and his sentence insofar as he was not given credit for the four months that he was held for contempt. We affirm.

Defendant attempts to challenge his conviction on grounds that the trial court committed plain error in admitting into evidence at his trial three mug shots of him. The State’s entire case against the defendant hinged on the complaining witness’ identification of him as the person who had held her at gunpoint and robbed her.

The offense occurred on the evening of December 29, 1981, as Jill Sandner was preparing to leave a grocery store parking lot with her car and groceries. A person described by her as a black male in his late twenties, tall and of thin build, came up to the car, told her to move over, and drove her car some short distance before relieving her of her purse and letting her out. He then apparently drove a little further, parked the car and disappeared with Sandner’s groceries, money and personal items from her purse. Sandner reported the incident to the Springfield police, and they located her car in the neighborhood near where she had been dropped off.

On January 8, 1982, Sandner went to the police station to review mug books of black adult males. At the conclusion of her search, Sandner had found three photographs of individuals resembling the man who had robbed her. Two of the photographs were of the defendant taken on two separate occasions, and the third was another individual. On January 22, 1982, Sandner was again at the police station, this time for the purpose of reviewing a photo lineup of five mug shots of individuals, one of whom was the defendant. Sandner selected the defendant’s photo.

The defendant was arrested on January 25. A physical lineup conducted on January 27 again resulted in Sandner’s identification of the defendant. At the defendant’s trial on. May 11, 1982, Sandner once again identified the defendant as the person who had robbed her the previous December. All of the photographs which had been identified by Sandner were admitted into evidence without objection at the defendant’s trial; and the jury, again without objection by defendant, was permitted to take them into the jury room during their deliberations.

Because the defendant raised no objection at the trial to the admission of the mug shots into evidence and failed to include the issue in his post-trial motion, we will consider the issue on review only if the trial court’s admission of the photos into evidence constitutes plain error. (See People v. Clark (1973), 12 Ill. App. 3d 280, 297 N.E.2d 395.) We do not believe that the prejudice inherent in admitting mug shots into evidence rendered the trial court’s ruling in the instant case plainly erroneous.

The purpose of admitting the mug photos was to demonstrate how the defendant was identified by Sandner. Although Sandner said she was not absolutely certain of her initial identification, she positively identified the defendant on three subsequent occasions — at the photo lineup, physical lineup and in court. The suggestiveness of this procedure was forcefully argued by defense counsel in an attempt to show that Sandner’s in-court identification could not be believed by the jury. Sandner’s credibility was at issue. She testified that she had observed the robber’s face for about three minutes during the incident and that the lighting conditions were excellent in the grocery store parking lot. Since no other evidence identifying the robber, such as fingerprints, etc., was available, the process by which the complaining witness had made her identification was fundamental to establishing her credibility. The purpose for which the mug shots were introduced was not improper. (People v. Adams (1974), 22 Ill. App. 3d 665, 318 N.E.2d 278.) Although we believe that it would have been preferable to have deleted the legends which conclusively displayed that the defendant had been in police custody on prior occasions (People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254), we cannot say that the probative value of the photos in the instant case was outweighed by their prejudice to this defendant. In our opinion, the evidence of the defendant’s guilt was not closely balanced. Accordingly, the error, if any, in admitting the mug shots does not rise to the level of plain error in this case as aforesaid.

The defendant’s second issue on appeal appears to be one of first impression in Illinois. The defendant contends that he is entitled to credit for all jail time served between the date when he was first taken into custody and his sentencing for the instant offense by virtue of section 5 — 8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—7(b)). That section provides for credit “for time spent in custody as a result of the offense for which the sentence was imposed.” (Emphasis added.) As the State correctly asserts, however, the jail time spent by the defendant from February 16 to the date of his sentencing was also the result of the defendant’s six-month jail sentence imposed for criminal contempt. The question before us, then, is whether jail time served concurrently as a result of the charged offense and a subsequent criminal contempt sentence need be credited towards the sentence imposed on the first offense. We think not.

As a general rule, the defendant does not have a fundamental right to credit for time spent in custody prior to sentencing. The effeet of section 5 — 8—7(b) is to abrogate the general rule by legislatively granting credit for in-custody time under certain conditions. The justification for the enactment is obvious in a case such as this wherein the defendant’s financial inability to make bail on the charged offense is the reason for his preconviction incarceration. In our opinion, this section of the statute does not mandate crediting of jail time where preconviction incarceration is also the result of a sentencing determination on a contempt-of-court citation. This is so even though the occasion of the defendant’s court appearance resulted from the criminal charge for which he was originally held in custody awaiting trial.

Federal courts, addressing the question before us with respect to analogous civil contempt situations, have consistently ruled that the trial judge has discretionary authority to give credit or not as justice requires under the circumstances. (Anglin v. Johnston (7th Cir. 1974), 504 F.2d 1165, cert. denied (1975), 420 U.S. 962, 43 L. Ed. 2d 440, 95 S. Ct. 1353; In re Application of U.S. Senate Permanent Subcommittee on Investigations (D.C. Cir. 1981), 655 F.2d 1232, cert. denied (1981), 454 U.S. 1084, 70 L. Ed. 2d 619, 102 S. Ct. 641. These well-reasoned cases provide ample grounds for holding that the matter of crediting or not the four-month period in question is best left to the sound discretion of the trial court. To hold otherwise would greatly diminish a defendant’s incentive to comply with the trial court’s order respecting proper decorum in the courtroom and render the contempt citation itself meaningless and inoperative.

We have reviewed the language used by the defendant in this case as he addressed the trial judge at the defendant’s preliminary hearing. We find no abuse of the court’s discretion in its determination that the four-month period of incarceration subsequent to that incident should not be credited towards the 20-year sentence imposed for armed robbery.

For the foregoing reasons, we affirm the defendant’s conviction and his sentence.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE MEJDA

text:
    DAVID BUCHANAN, Plaintiff-Appellant, v. ROBERT J. LENZ et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—53
    Opinion filed June 17, 1983.

      Gerald A. Goldman and Robert E. Marcus, both of Goldman and Marcus, of Chicago, for appellant.
    James J. Costello and Norman P. Jeddeloh, both of Chicago, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff requested the Merit Board of the State Universities Civil Service System of Illinois (Merit Board) to review certain employment decisions of defendant University of Illinois (University). The Merit Board refused review for plaintiff’s failure to file the request within the period provided by Rule 13 of the Civil Service Rules (Rules). Plaintiff filed the instant complaint for administrative review of the decision of the Merit Board. Plaintiff now appeals from the order of the circuit court affirming the decision.

The issues on appeal are: (1) whether the trial court erred in affirming the Merit Board’s decision; and (2) whether the decision of the Merit Board is subject to judicial review as to the merits of plaintiff’s charges.

Plaintiff is employed by the University of Illinois Hospital as a Medical Technician II. On March 16, 1979, he filed a grievance charging that the University failed to follow the prescribed procedure for appointment to fill an open position and instead, through supervisory personnel, appointed Jeanne Miller to act as a Medical Technician III. Plaintiff argues that the appointment constituted a promotion and thus violated the Rules and Illinois statute. (Ill. Rev. Stat. 1981, ch. 241/2, par. 38b9.) The grievance was considered by various individuals within the University internal grievance procedure. Finally, on May 30, 1979, the University Director of Nonacademic Personnel (University Director) denied plaintiff’s original grievance based on its prior consideration and further information obtained at a hearing held May 10, 1979. Review of the University Director’s decision was requested of the Director of the Merit Board (Director) who replied that he found no official personnel action had been taken regarding the allegedly improper promotion of Jeanne Miller. Plaintiff thereafter sent a request for review to the chairman of the Merit Board. The secretary of the Merit Board responded that the record showed no official action which constituted a violation as alleged. On August 10, 1979, plaintiff again appealed to the secretary of the Merit Board who again replied that there had been no violation and referred plaintiff’s request for consideration of his grievance back to the University Director. On August 20, 1979, the University Director for the second time stated that he found no evidence of any violation. Following a subsequent hearing the University Director denied the grievance for the third time on November 27, 1979, again stating that a review disclosed no evidence of a violation.

On December 11, 1979, Michael Wallace, staff counsel for the Illinois State Employees Association, on plaintiffs behalf filed a request for review of the November 27 decision with the Director of the Merit Board, presumably under Rule 13.1. On December 14, 1979, the Director advised plaintiff that he found no statutory or rule violation. The record shows no request for review of this decision under Rule 13.2. The decisions of defendant University were restated by its president in a. series of letters written on June 16, 1980, to Wallace and to several State legislators.

On November 25, 1980, plaintiff filed with the Director of the Merit Board a “formal appeal” wherein he described the alleged unfair employment practices of the University and his efforts to correct them and requested a review of the various decisions made by the University Director. On December 3, 1980, the Director of the Merit Board denied review on the ground that the 15-day period within which a request for review under Rule 13.1 could be filed had passed and that further review would therefore not be proper. Plaintiff appealed this decision to the Merit Board under Rule 13.2. The appeal was rejected by letter of the Merit Board dated December 16, 1980, which stated:

“Reference your letter of December 9, 1980 concerning a request for review under Civil Service Rule 13.2.
Civil Service Rule 13.2 states in part:
‘An applicant, a candidate, an employee, or an employer, affected by a Review Decision of the Director under Rule 13.1,***'
Since your request for review via Civil Service Rule 13.1 was untimely filed on November 25, 1980 because of an action or omission of an action on or about June 24, 1979, no Director’s Review Decision under Rule 13.1 was rendered.
Therefore, there can be nothing before the Merit Board in this matter.”

Plaintiff thereupon filed the instant complaint for administrative review and briefs were filed. The circuit court found that although plaintiff raised substantial questions as to the procedure involved, the issue is the matter of timeliness of the filing before the administrative agency and that it was without jurisdiction to reverse the decision of the administrative agency. The court entered judgment to affirm the Merit Board decision.

Opinion

Plaintiff appeals from the order of the trial court entered December 4, 1981, which he characterizes as “dismissing plaintiff’s cause of action for lack of jurisdiction to review the Administrative Agency’s decision to dismiss plaintiff’s cause- for failure to timely file his grievance before the Administrative Agency.” Plaintiff first contends that the circuit court erred in stating that it lacked jurisdiction to reverse the decision of the administrative agency. We find this contention without merit.

The trial court order here appealed from provides:

“The Court, having read the briefs and heard oral argument, finds that although the brief of Plaintiff raises substantial questions in the Court’s mind as to the procedure involved, the issue is on the matter of timeliness of the filing before the Administrative Agency and the Court is without jurisdiction to reverse the decision.
It Is Therefore Ordered that the decision of the Administrative Agency is affirmed.
The Court finds no just reason for delay of enforcement or appeal.”

The Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.), which is applicable to the proceedings for review of Merit Board decisions (Ill. Rev. Stat. 1981, ch. 241/2, par. 38bl4), vests jurisdiction in the circuit court for review of final administrative decisions (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 104) and expressly vests the court with power “to affirm or reverse the decision in whole or in part” (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 111(a)(5)). Ordinarily, a court lacking subject matter jurisdiction of a case has power only to dismiss the case. (Glasco Electric Co. v. Department of Revenue (1980), 87 Ill. App. 3d 1070, 409 N.E.2d 511.) It is significant that the trial court in fact did not dismiss the case but entered a ruling affirming the administrative decision.

“ ‘Jurisdiction’ is often used ambiguously. In its stricter sense, it is used only to mean judicial authority over the subject" matter and parties. [Citation.] In its broader sense, it also includes the privileges and power to grant specific relief in cases within such authority.” (Lake Wauwanoka, Inc. v. Spain (Mo. App. 1981), 622 S.W.2d 309, 314.) In the instant case defendant did not allege lack of jurisdiction of the parties or of the subject matter and admitted in its answer that plaintiff was entitled to judicial review of the administrative decision. The trial court did not dismiss plaintiffs complaint for administrative review but instead read the briefs, considered oral arguments and affirmed the decision of the administrative agency. In light of these facts we construe the finding that “the court is without jurisdiction to reverse the decision” to indicate that the record did not entitle plaintiff to the relief prayed for in his complaint for administrative review, namely, his prayer that the decision be reversed.

It is well settled that a judgment will be affirmed if it is justified in law for any reason or ground appearing in the record regardless of whether the particular reasons given by the trial judge, or his specific findings, are correct or sound. (Stigler v. City of Chicago (1971), 48 Ill. 2d 20, 268 N.E.2d 26; Thornton v. Williams (1980), 89 Ill. App. 3d 544, 412 N.E.2d 157.) “The reasons given for a judgment order, or the findings upon which it is based, are not material if the judgment or order is correct.” (Keck v. Keck (1974), 56 Ill. 2d 508, 514, 309 N.E.2d 217, 220.) Moreover, only the decretal portion of a judgment is operative as a judgment; the rights of the parties are adjudicated by that portion alone and not by the recitals. (First State Bank & Trust Co. v. Stackler (1981), 93 Ill. App. 3d 619, 417 N.E.2d 795; Stewart v. Stewart (1975), 35 Ill. App. 3d 236, 341 N.E.2d 136.) The decretal portion of the order of the circuit court adjudicated the rights of the parties and thereby affirmed the decision of the Merit Board. The propriety of the court’s affirmance is, therefore, the issue before us on appeal.

The Merit Board is authorized to promulgate and apply rules for personnel administration of the University of Illinois. (Ill. Rev. Stat. 1981, ch. 241/2, pars. 38bl, 38b3.) Under Rule 13 actions or omissions of the University may be subject to a review decision first by the Merit Board Director (Rule 13.1) and then by the Merit Board (Rule 13.2). Rule 13, in pertinent part, provides as follows:

“13.1 Review by Director of Action, or Omission, of Designated Employer Representative. Any action, or omission, by a designated employer representative shall be the basis for a review decision by the Director, upon a timely filed written request by an applicant, a candidate, or an employee. The request shall be deemed to be timely filed if filed within 15 calendar days following the action, or omission of the action, by the employer, or as otherwise may be deemed appropriate by the Director under the circumstances. ***
13.2 Review by Merit Board of Review Decision of Director. An applicant, a candidate, an employee, or an employer, affected by a Review Decision of the Director under Rule 13.1, may file a written request with the Secretary for the Merit Board for a Merit Board review of the Director’s Review Decision, ***.”

We agree with plaintiff’s assertion that the 15-day time period expressed in Rule 13 is not mandatory but discretionary; the language of the rule itself so states. The courts will not interfere with the discretionary authority vested in administrative bodies unless such authority is exercised in an arbitrary or capricious manner. (People ex rel. Stephens v. Collins (1966), 35 Ill. 2d 499, 221 N.E.2d 254.) As it is undisputed that plaintiff’s filing was not timely, the focus of our inquiry must be whether the Merit Board’s dismissal of plaintiff’s request was arbitrary or capricious. We find that it was not.

Rule 13 provides for a review decision of an action if the request for such review is filed within 15 days or as otherwise deemed appropriate by the Director of the Merit Board. The Merit Board Director reviewed the May 30, 1979, decision of the University Director and the Merit Board twice reviewed that decision. Plaintiff did not request review under Rule 13.1 of the University Director’s August 20, 1979, decision. Following the University Director’s third denial of plaintiff’s grievance on November 27, 1979, plaintiff requested review under Rule 13.1 but did not request further review under Rule 13.2.

Finally, a full year later, plaintiff requested review under Rule 13.1 of all the various decisions of the university director. That request prompted the Director’s determination that further review under Rule 13 was improper in view of the untimely filing. The Merit Board, in effect, concurred.

We find the Merit Board’s final refusal to rehear a grievance already considered many times to be neither arbitrary nor capricious. In finding untimeliness a bar to further consideration of plaintiff’s grievance, the Director did not have before him a mere technical failure to meet a filing date or an insignificant delinquency. The Merit Board deemed the final action of the University of which the plaintiff requested review under Rule 13.1 to have occurred on or about June 24, 1979. Under such facts plaintiff’s request for review occurred 17 months after the final University action. Considering the University Director’s third review and decision as the final University action places such final action a full year before plaintiff’s request for review under Rule 13. And if the letters sent by the University president are deemed the final University action, plaintiff’s request for Rule 13 review occurred five months after the prescribed time for such request. Thus, under any set of facts, plaintiff’s request occurred substantially beyond the suggested time for filing. In view of the lateness of the request, to hold that the Director of the Merit Board abused his discretion and acted arbitrarily in enforcing a 15-day time limit would be to render the time limit a nullity. Plaintiff has made no showing that he was unable to act within the time limit and, moreover, offers no reason why the Director should have disregarded the suggested time for filing in favor of plaintiff who filed his request at least five months and as many as 17 months after the prescribed time.

“An administrative agency has the power to construe its own rules and regulations to avoid absurd or unfair results.” (Modine Manufacturing Co. v. Pollution Control Board (1976), 40 Ill. App. 3d 498, 502, 351 N.E.2d 875, 879.) Deference must be given to the agency’s interpretation of its own rules; the reviewing court will not overrule the agency’s construction unless it is unreasonable (Brown v. Sexner (1980), 85 Ill. App. 3d 139, 405 N.E.2d 1082) or plainly erroneous. (Modine.) In the instant case we do not find the Director’s decision that plaintiff’s request for review was not filed within an “appropriate” time was plainly erroneous. Nor do we find, in view of the many opportunities for review and the substantial lateness of plaintiff’s filing, that the refusal to review the Director’s decision was unreasonable. We, therefore, will not disturb the finding of the circuit court.

We do not reach the second issue raised by plaintiff regarding various wrongs which he asserts defendant University committed. Plaintiff appeals from the December 4, 1981, order of the circuit court, and the only question presented here is whether the circuit court erred in affirming the decision of the Merit Board. (See Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885.) Thus, plaintiff’s allegations against defendant University have no bearing on this appeal and, therefore, are not considered.

For the foregoing reasons, the order of the circuit court is affirmed.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.


author: JUSTICE LINDBERG

text:
    DAVID H. LOCKS, Plaintiff-Appellant, v. NORTH TOWNE NATIONAL BANK OF ROCKFORD, Defendant-Appellee.
    Second District
    No. 82—613
    Opinion filed June 21, 1983.
    David H. Locks, of Chicago, for appellant, pro se.

    Stephen T. Moore, of Thomas, Thomas, Keeling & Moore, of Rockford, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, David H. Locks, appeals from the judgment of the circuit court of Winnebago County in favor of defendant North Towne National Bank of Rockford (North Towne). Locks seeks payment by North Towne on a cashier’s check which it issued and later dishonored. Because Locks has no standing to bring an action to recover on the cashier’s check, we affirm.

The material facts of this case were either stipulated or uncontradicted. Locks, an attorney, represented Patrick Newell, the purchaser in a real estate transaction. Thorsen Realtors (Thorsen) was the real estate broker for this transaction, having been retained by the seller, and was to act as escrowee for the purposes of receipt and distribution of an earnest money deposit concerning the property.

Newell had an agreement with Gail Russie, whereby Russie was to advance a portion of the $8,500 earnest money deposit that Newell was required to transmit to Thorsen pursuant to the real estate sales contract. On December 16, 1977, Russie negotiated to North Towne a check for $4,250 drawn on the account of “Russie’s Floor Maintenance & Supplies, Inc.” at the DeKalb Bank. In exchange for the Russie check, North Towne issued its own cashier’s check in the amount of $4,250 payable to Thorsen. Thereafter, the cashier’s check found its way into the hands of Newell who personally delivered it to Thor-sen. Thorsen deposited the cashier’s check into its escrow account at First Security Bank of Oak Brook, a trial defendant not a party on this appeal.

Subsequently, the DeKalb Bank dishonored the Russie check used to purchase the cashier’s check, and North Towne discovered a large overdraft in Russie’s account with it. North Towne informed Thorsen of its decision to stop payment on the cashier’s check on December 23, 1977, prior to the closing date of the real estate transaction, and dishonored the cashier’s check upon presentment. Newell then raised other funds to satisfy his earnest money obligation.

"As a result of a debt Newell owed to Locks for previously rendered legal services, Newell assigned all interest, legal or equitable, that he had in the cashier’s check to Locks. Locks, as assignee of Ne-well, instituted this action to recover payment on the cashier’s check. Although Thorsen was originally named as one defendant, it was dismissed by stipulation of the parties at the start of trial. After a bench trial, the circuit court entered its judgment of July 9, 1982, in favor of defendants.

On appeal, Locks raises two issues: (1) whether he has standing to sue North Towne for recovery on the dishonored cashier’s check; and (2) whether North Towne improperly dishonored the cashier’s check.

Locks claims standing to sue as a holder, but not as a holder in due course. Any interest he may have is derived from Newell’s, as the assignment shows and the trial court found. Locks argues that Newell was the beneficial owner of the instrument and that Thorsen, the payee, acted merely as “technical holder” for Newell’s benefit. Furthermore, Locks argues that Thorsen surrendered the instrument to him at trial where Locks produced it as an exhibit, this act rendering Locks the transferee of the holder with the rights that were vested in the transferor.

Section 3 — 301 of the Uniform Commercial Code (UCC), under which Locks claims recovery from North Towne, provides that “[t]he holder of an instrument whether or not he is the owner may *** enforce payment in his own name.” (Ill. Rev. Stat. 1977, ch. 26, par. 3 — 301.) Thus, only the holder of the instrument has standing in an action under this section. A “holder” is defined as a person in possession of an instrument drawn, issued or indorsed to him or to his order or to bearer or in blank. (Ill. Rev. Stat. 1977, ch. 26 par. 1— 201(20).) Thus, proof of possession is essential for standing to enforce payment on an instrument. Burritt Mutual Savings Bank v. Transamerica Insurance Co. (1980), 180 Conn. 71, 428 A.2d 333; Rex Smith Propane, Inc. v. National Bank of Commerce (N.D. Tex. 1974), 372 F. Supp. 499.

Locks neither alleged nor proved physical possession of the cashier’s check. Each version of Locks’ complaint, including the second amended complaint under which this cause was tried, alleged that Thorsen “holds and owns” the cashier’s check, albeit for the benefit of Newell. We regard this as an admission by Locks in his pleadings and, therefore, proper evidence that Thorsen, not Newell or Locks, was the possessor of the instrument at the time the complaint was filed. (See Mooney v. Underwriters at Lloyd’s, London (1965), 33 Ill. 2d 566; Walorf v. Marlas (1977), 56 Ill. App. 3d 358, 371 N.E.2d 1021.) Locks presented no evidence at trial of his or Newell’s physical possession. The cashier’s check itself was introduced into evidence as a stipulated exhibit.

The thrust of Lock’s argument is that he has standing as the assignee of the beneficial owner (Newell) of the instrument. He cites no authority, however, for the proposition that a beneficial owner can sue to recover on an instrument where the legal holder does not sue. To the contrary, Illinois cases prior to the adoption of the UCC point to the opposite conclusion. It was held that a legal holder alone can maintain an action on instrument. (Kroer v. Smith (1943), 318 Ill. App. 489, 48 N.E.2d 743; Williams v. Estate of Frederick (1937), 289 Ill. App. 410, 7 N.E.2d 384.) While a holder with no beneficial interest in an instrument could maintain a suit upon it (Joslyn v. Joslyn (1944), 386 Ill. 387; Kazunas v. Wright (1936), 286 Ill. App. 554, 4 N.E.2d 118), our research uncovers no case permitting the owner of solely the beneficial interest to sue. The section of the UCC authorizing enforcement of payment on an instrument by a holder does not attempt to change the law in this regard. (Ill. Rev. Stat. 1977, ch. 26, par. 3 — 301; see Ill. Ann. Stat., ch. 26, par. 3 — 301, Illinois Code Comment and Uniform Commercial Code Comment, at 124-25 (Smith-Hurd 1963).) We hold that Newell’s position as beneficial owner of the cashier’s check, even if it were established at trial, considered alone, is insufficient to confer standing upon him to enforce payment of that instrument.

We note that some jurisdictions have recognized that a principal’s constructive possession through his agent’s physical possession may render the principal a holder of commercial paper. (See, e.g., Billingsley v. Kelly (1971), 261 Md. 116, 274 A.2d 113; Lazidis v. Goidl (Tex. Civ. App. 1978), 564 S.W.2d 453; see also Investment Service Co. v. Martin Bros. Container & Timber Products Corp. (1970), 255 Ore. 192, 465 P.2d 868, suggesting that whether constructive possession is sufficient under the UCC is questionable.) One Illinois case might be read to permit constructive possession as sufficient for holder status. (Schranz v. I. L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 412 N.E.2d 1378, which found delivery to the plaintiffs in the placing of the instrument in escrow where neither plaintiffs nor the previous holder could retrieve it until the happening of a certain event.) We need not address whether that concept is applicable here because Locks has not argued that theory (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379); nor was an agency relationship between Newell and Thorsen proved at trial. At opening argument, Locks stated that, “Thorsen was acting as agent of the seller [of the real estate Newell was purchasing].” During his testimony, Locks stated that Thorsen “was acting as broker having been retained by the seller.” The depository of an escrow is a special and not a general agent, and his powers are limited to the conditions of the deposit. (Ortman v. Kane (1945), 389 Ill. 613; Chicago Title & Trust Co. v. Walsh (1975), 34 Ill. App. 3d 458, 340 N.E.2d 106.) Since the escrow agreement in this case or its provisions were not produced at trial, it could not be determined whether Thorsen’s possession of the cashier’s check after it had been dishonored and after the real estate transaction had been closed was pursuant to an agency relationship with Ne-well.

Since Newell was not the holder of the cashier’s check, his assignment to Locks could not have given Locks standing to enforce payment on the instrument. Locks also maintains, however, that he has standing as Thorsen’s transferee. The UCC provides that a transfer of an instrument vests in the transferee such rights as the transferor has. (Ill. Rev. Stat. 1977, ch. 26, par. 3 — 201.) Transfer of an instrument in such form that the transferee becomes a holder is a “negotiation,” and negotiation always requires delivery. (Ill. Rev. Stat. 1977, ch. 26, par. 3 — 202.) “Delivery” with respect to an instrument means the voluntary transfer of possession. Ill. Rev. Stat. 1977, ch. 26, par. 1-201(14).

Locks argues that a transfer took place at trial when the cashier’s check was admitted into evidence as an exhibit stipulated to by the parties. He asserts that he produced the instrument at trial after Thorsen surrendered it to him in exchange for dismissal of Thor-sen as a defendant. However, the record only shows that the instrument was introduced as a stipulated exhibit and does not reveal the reason for Thorsen’s dismissal. No other evidence of a delivery to Locks is suggested. We cannot see how the introduction of the instrument as an exhibit by all parties with the non-party-holder’s apparent acquiescence would constitute delivery, negotiation, or transfer to Locks.

Moreover, a plaintiff’s legal interest to sue upon an instrument must be shown as of the commencement of the suit. (Kroer v. Smith (1943), 318 Ill. App. 489, 48 N.E.2d 743; Investment Service Co. v. Martin Bros. Container & Timber Products Corp. (1970), 255 Ore. 192, 465 P.2d 868.) Transfer at the time of trial, even if it had taken place, came too late and the complaint was never amended to reflect that now-alleged transfer.

We conclude that Locks did not have an interest in the cashier’s check such as to give him standing to bring a suit to enforce it. Because of this conclusion, we need not address the issue of the propriety of North Towne’s dishonoring of the instrument. Accordingly, we affirm the judgment of the circuit court of Winnebago County.

Affirmed.

SEIDENFELD, P.J., and HOPE, J., concur.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KAY ANN KROGUL, Defendant-Appellant.
    Second District
    No. 82—623
    Opinion filed May 27, 1983.

      Paul A. McWilliams, of Palatine, and Edwin J. Belz, of Chicago, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant was indicted on three counts of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), (2)), and one count of voluntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 2(b)). The State entered a nolle prosequi on the voluntary manslaughter count before trial. At trial, both the defendant and the State tendered an instruction on voluntary manslaughter, and the State’s instruction was given to the jury which tried the case. Defendant also submitted an instruction on justifiable use of force or self-defense, which was also given to the jury. A not guilty verdict was returned for the offense of murder, and a judgment of acquittal was entered on that charge. The jury was unable to reach a verdict on the voluntary manslaughter charge, and a mistrial was declared.

The State attempted to continue the voluntary manslaughter prosecution, whereupon defendant filed a motion to dismiss claiming that the prosecution was barred by the previous nolle prosequi and acquittal. The motion was denied, and defendant appeals pursuant to Supreme Court Rule 604(f) (87 Ill. 2d R. 604(f), effective July 1, 1982).

Defendant contends that her motion to dismiss was erroneously denied because after the nolle prosequi of the voluntary manslaughter count and her acquittal of murder, nothing was pending before the court. She further claims that a retrial of the voluntary manslaughter charge is barred by her former acquittal of the greater offense of murder. (See Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(b)(1).) For the reasons that follow, we believe defendant’s contentions are without merit.

The crime of voluntary manslaughter is a lesser included offense of murder, and an accused may be convicted of voluntary manslaughter under an indictment for murder if the evidence warrants such a finding. (People v. Fausz (1982), 107 Ill. App. 3d 558, 562, 437 N.E.2d 702; People v. Ellis (1982), 107 Ill. App. 3d 603, 611, 437 N.E.2d 409; People v. Burks (1981), 103 Ill. App. 3d 616, 619, 431 N.E.2d 1085.) Thus, it is clear that the indictment for murder was sufficient to apprise defendant of the charge of voluntary manslaughter. (People v. Simmons (1982), 93 Ill. 2d 94, 100-01, 442 N.E.2d 891.) The State’s nolle prosequi of the voluntary manslaughter count is therefore of no legal significance, and that count need not be revived by the State in order for the court to retain jurisdiction over the defendant as to that charge. We also note that defendant herself raised the issue of justifiable use of force in the initial trial, submitted an instruction on this issue to the jury, and there was evidence to support this defense. Under these circumstances, an instruction on voluntary manslaughter was required, and a failure to do so would have constituted reversible error on appeal. (People v. Manley (1982), 104 Ill. App. 3d 478, 483-84, 432 N.E.2d 1103; People v. Smith (1981), 94 Ill. App. 3d 969, 972-73, 419 N.E.2d 404; People v. Lockett (1980), 82 Ill. 2d 546, 550, 413 N.E.2d 378.) The charge of voluntary manslaughter was therefore properly before the jury in the original trial of this cause.

It is also well established that where a trial court, absent an abuse of discretion, discharges a jury because of its failure to reach a verdict, the constitutional prohibition against double jeopardy does not bar a new trial on that charge. (People v. Rehberger (1979), 73 Ill. App. 3d 964, 969, 392 N.E.2d 395; People v. Bean (1976), 64 Ill. 2d 123, 128, 355 N.E.2d 17; Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066.) Defendant has not alleged an abuse of discretion in the trial court’s discharge of the jury. Thus, it must be presumed no abusé of discretion occurred. It is therefore evident that the reprosecution of defendant on the voluntary manslaughter charge is not barred on double jeopardy grounds.

Finally, defendant claims the retrial is barred by the compulsory joinder provisions of sections 3 — 3(b) and 3 — 4(b)(1) of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, pars. 3 — 3(b), 3— 4(b)(1).) Section 3 — 3(b) provides:

“(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.”

Section 3 — 4(b)(1) provides:

“(b) A prosecution is barred if the defendant was formerly prosecuted for a ■ different offense, or for the same offense based upon different facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3 — 3 of this Code (unless the court ordered a separate trial of such charge); or was for an offense which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial began ***.”

Defendant claims that because she was formerly acquitted of the offense of murder arising out of the same occurrence as that which forms the basis of the voluntary manslaughter charge, that acquittal acts as a bar to her subsequent prosecution for voluntary manslaughter.

As previously stated, an indictment for murder allows a defendant to be convicted of the lesser included offense of voluntary manslaughter. (People v. Fausz (1982), 107 Ill. App. 3d 558, 562, 437 N.E.2d 702; People v. Goolsby (1979), 70 Ill. App. 3d 832, 836, 388 N.E.2d 894.) Thus, the voluntary manslaughter charge was not required to be formally joined under section 3 — 3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 3(b)). Further, section 3 — 4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(b)(1)) is inapplicable in circumstances such as exist here. That section has been held to bar prosecutions which could have been brought in the first trial of the cause, but were not (People v. Goolsby; cf. People v. Harrison (1946), 395 Ill. 463, 70 N.E.2d 596), or prosecutions of a lesser included offense where the defendant was previously charged with and acquitted of the greater offense and the trier of fact in the first trial was silent as to lesser included offenses. In the latter situation, acquittal of the lesser offenses is implied by the jury’s silence. (See People v. Chatman (1981), 102 Ill. App. 3d 692, 698, 430 N.E.2d 257; People v. Jenkins (1976), 41 Ill. App. 3d 392, 393, 354 N.E.2d 139.) Neither of those situations exist in the present case. The voluntary manslaughter charge was implicitly joined with the murder charge in the original prosecution, and although the defendant was acquitted of murder, the jury was not silent as to the voluntary manslaughter offense. The record reveals the jury was instructed on that charge and considered it, but was unable to return a unanimous verdict of either guilt or innocence. Under these circumstances, the jury was not silent on the voluntary manslaughter charge, and an acquittal of that charge need not be inferred from silence. Accord, People v. Chatman; People v. Jenkins.

A similar situation existed in People v. Jenkins (1976), 41 Ill. App. 3d 392, 354 N.E.2d 139. In that case, the defendant was indicted for attempted murder and the lesser included offense of aggravated battery. Following a jury trial, defendant was acquitted of attempted murder, but a mistrial was declared when the jury was unable to reach a verdict on the aggravated battery charges. The State attempted to reprosecute defendant for aggravated battery, and defendant filed a motion to dismiss, claiming section 3 — 4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 3-4(b)(l)) barred a subsequent prosecution of the lesser included offense following acquittal on the greater offense. The trial court granted the motion, but the appellate court reversed, stating that section 3 — 4(b) was “never intended to be applied when the lesser included offense was charged in the indictment and a mistrial was declared because the jury failed to agree on a verdict.” (41 Ill. App. 3d 392, 393, 354 N.E.2d 139.) Defendant here distinguishes Jenkins from the instant case on the ground that in Jenkins defendant was formally indicted on the lesser included offense, whereas here the formal indictment on the lesser offense was nol-prossed by the State. While this distinction does exist, it is in our opinion of little significance in light of established case law permitting a voluntary manslaughter conviction upon an indictment for murder. One of the principal purposes of an indictment is to put the defendant on notice of what he stands charged with so that he might adequately prepare his defense. Having once gone through a trial on these charges, the defendant certainly had such notice. (People v. Brownell (1980), 79 Ill. 2d 508, 524, 404 N.E.2d 181, cert. dismissed (1980), 449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59; People v. Sims (1982), 108 Ill. App. 3d 648, 651, 439 N.E.2d 518.) We therefore find the Jenkins case controlling here, despite the absence of a formal indictment for the lesser included offense of voluntary manslaughter.

Accordingly, the decision of the circuit court of Lake County denying defendant’s motion to dismiss is affirmed.

Affirmed.

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