author: PRESIDING JUSTICE LaPORTA

text:
    JAMES GONET, Plaintiff-Appellant, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellee.
    First District (6th Division)
    No. 1—89—1748
    Opinion filed March 23, 1990.

      Harold Liebenson, of Chicago, and DeParcq, Hunegs, Stone, Koenig & Reid, P.A., of Minneapolis, Minnesota (William Kvas, of counsel), for appellant.
    Richard A. Haydu, of Chicago (James P. Daley and George H. Brant, of counsel), for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff brought suit against defendant under the Federal Employers’ Liability Act (45 U.S.C. §§ 51 through 60 (1982)), alleging that, due to defendant’s negligence, plaintiff had suffered severe and irreversible hearing loss. After a bench trial, judgment was entered for the defendant, and plaintiff appeals.

On appeal, the plaintiff raises these issues: (1) whether the judgment of the court was contrary to the manifest weight of the evidence at trial, and (2) whether the judgment of the court was based on evidence prohibited under the Federal Employers’ Liability Act.

At trial the court heard the testimony of the plaintiff, his wife, and Dr. Byron Eisenstein, M.D., all of whom were called by the plaintiff as his witnesses, and of Dr. Thomas Cook, M.D., called by defendant as its sole witness.

The Federal Employers’ Liability Act (FELA) provides that every common carrier railroad “shall be liable in damages to any person suffering injury while he is employed by such carrier *** for such injury or death resulting in whole or in part from the negligence of *** such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, ■ track, roadbed, works, boats, wharves, or other equipment.” (45 U.S.C. § 51 (1982).) The statute further provides that the employee’s contributory negligence shall not bar his recovery, but damages shall be diminished in proportion to the employee’s negligence (45 U.S.C. § 53 (1982)), and where the injury or death resulted from any negligence, however slight on the part of the railroad in violation of the statute, the employee shall not be held to have assumed the risks of his employment to defeat his claim for damages under this statute (45 U.S.C. § 54 (1982)).

Basic to the success of plaintiff’s claim is proof of some negligence however slight on the part of defendant railroad and a resulting injury to plaintiff. The evidence must establish not only defendant’s negligence but also a causal connection to plaintiff’s injury. The judicial appraisal of proofs is narrowly limited to the single inquiry whether with reason the conclusion may be drawn that the negligence of the employer played any part at all in the injury. Rogers v. Missouri Pacific R.R. Co. (1957), 352 U.S. 500, 506, 1 L. Ed. 2d 493, 499, 77 S. Ct. 443, 448.

Actionable negligence is the breach of a legal duty through neglect or carelessness which results in injury to another. It is the failure of duty or omission of something which ought to have been done. Black’s Law Dictionary 28 (5th ed. 1979).

The complaint in this case alleges defendant was negligent in failing to provide the plaintiff with a safe place to work, in requiring plaintiff to work in an unsafe place where noise levels were unsafe and dangerous, in failing to provide safe and proper tools and equipment to do the work, in failing to provide adequate and proper hearing-protection devices, in failing to warn plaintiff of his exposure to unsafe noise levels, in failing to adopt safe customary practices to do the work, and in assigning plaintiff to work in a place where he was exposed unnecessarily to excessive and high noise levels without protection.

On appeal, plaintiff frames the question before this court in the following manner: “Did the trial court err in determining that the defendant was not negligent for failing to provide hearing protection, even when it was asked, to an employee it knew had a hearing problem and who worked in an environment which the uncontroverted evidence showed was dangerously noisy?” Plaintiff also argues that aggravation of a preexisting condition is compensable under the FELA.

In announcing his decision, the trial judge stated he was troubled by the quality of the evidence produced. He stated that in total, from all reasonable inferences from the evidence offered, he found no proof of negligence attributable to the railroad and stated he could not guess at the negligence suggested on the part of the defendant. He considered the testimony of plaintiffs treating physician and concluded from his testimony that during his lifetime plaintiff was exposed to noise. The judge commented on plaintiff’s exposure to noise while in military service but stated there was no evidence to establish to what extent plaintiff’s hearing may have been impaired while in service. He stated that he was entitled to consider and make reasonable inferences from the testimony of the plaintiff and his wife, who had an interest in the outcome of the trial. The trial judge, in considering the supposition offered by plaintiff that his impairment is due to negligence of the railroad, commented that he was troubled by plaintiff’s failure as a union official to complain about the noise level and commented that plaintiff was presently employed by the defendant company against whom this claim was filed. The trial judge found that plaintiff had failed to sustain his burden of proof within the requirements of the law, and he entered judgment for the defendant.

The uncontroverted evidence established that plaintiff commenced work for defendant railroad in January 1971 working as an assistant carman assigned to its shop on California Avenue in Chicago, Illinois. His duties required him to work on and repair railroad cars, and in doing so, he used pneumatic air jacks, air rivets, air grinders, air chisels, air nibblers, welding equipment and other power equipment. Plaintiff testified that the noise level was intense and constant. On cross-examination, however, he testified that the noise in the shop was not constant and that since approximately 1979 he has worked in the open yard, where the noise level was greatly reduced.

Immediately prior to his employment with the defendant railroad, plaintiff had worked for another company where his work required the use of hand tools. His military service was in the Marine Corps from September 1961 until January 1966. While in military service, he fired M — 1 rifles and a number of other military weapons and was involved in demolition work. Plaintiff testified he set explosives approximately three times. He also testified that he has hunted since he was 16 years old, going out two or three times each season, and that he was exposed to loud noises from rifle fire when hunting.

Prior to plaintiff’s employment and as part of its established company practice, the defendant railroad required plaintiff to undergo a physical examination which included an audiogram. The examination and hearing test were performed on January 14, 1971.

Following his preemployment physical examination, plaintiff testified he was not informed of the results of his audiogram, and although the test revealed some high frequency hearing loss, no limitations were placed on his employment. He testified that when he began his employment with the defendant he experienced no difficulty with his hearing. The evidence also established that plaintiff had worked for the defendant continuously since 1971 doing the same work and at the time of trial was still an employee of defendant.

Plaintiff testified he was given another physical examination and audiogram test in 1977, which was required by his employer when he returned to work after a gall bladder operation. He was permitted to return to his assigned work without restriction.

Plaintiff and his wife both testified that in 1983 they noticed he had trouble with his hearing in a conversational setting. He was examined by Dr. Byron Eisenstein, who was a hearing specialist and who recommended that he see an audiologist. He testified he was examined by such a specialist, Mary Kay Chism, who did not testify at trial. Following this examination plaintiff testified that he was fitted for hearing aids and has used them since 1983. He was also fitted for hearing-protection devices, which he then used while on the job. The evidence included the audiogram report for testing done on plaintiff on November 24,1987, after four years of hearing aids use.

Plaintiff’s testimony disclosed that he and his co-workers in the shop used heavy machinery and power tools which caused noise so loud that they could not hear one another speak. On direct examination the plaintiff testified he complained of the noise in 1971 and asked for hearing protection, but his foreman told him that he had no hearing-protection devices to give him. He was told to go back to work. He testified that he again complained about the noise to his foreman in 1980 with the same response. However, on cross-examination plaintiff testified that these complaints were made in 1975 and 1983, respectively, and again on redirect he testified that he complained once, it did no good, and that he did not bother to complain after that.

Plaintiff began using hearing protection at work in 1983, wearing ear plugs given him by the audiologist. He testified that the defendant did not provide hearing protection to its employees nor did it encourage its employees to use such protection, although they have been required to use helmet and safety goggles since 1979 or 1980. Plaintiff testified that although hearing protection for employees later was made available, he did not remember when. He did not indicate whether he now uses hearing-protection devices provided by his employer. He further testified that he is the only employee presently wearing any hearing protection on the job.

Dr. Eisenstein testified that he was the treating physician who first saw plaintiff on September 29, 1983. He stated that he is a board-certified otolaryngologist. The doctor testified that two audio-gram tests were administered on that date to detect the nature and extent of plaintiff’s hearing loss. He described an air test, which detects any obstruction in the external ear canal or in the middle ear which obstructs sound waves from reaching the inner ear and which measures conductive loss. He described the bone test, which measures the level at which the nerve in the inner ear is functioning, and testified that this test must be done to detect neurosensory hearing loss in the inner ear.

He further testified that the audiograms done on plaintiff at the time of his first visit in 1983 revealed that he had a moderate to severe bilateral sensory neural hearing loss in both ears and that this was an impairment of the inner ear which diminished his ability to hear high frequency sounds. He stated that this area of the inner ear is particularly vulnerable to damage caused by excessive noise. The doctor testified that from the history given him by plaintiff, that he worked in an area of excessive noise, and from the audiogram readings, he concluded that the impairment “was probably noise induced.”

On cross-examination the doctor testified that plaintiff had not told him of his exposure to noises from pistols, rifles, rocket launchers and other weapons and from demolition and explosive devices while in military service nor had he mentioned his lifelong hobby of hunting, where he frequently was exposed to the sound of rifle fire. When asked if each of these types of noise could have affected plaintiff’s inner ear, he responded “Yes”.

Doctor Eisenstein testified that from his review of the 1971 and 1977 audiograms done by the railroad physicians, he found the test results showed that plaintiff suffered from a high frequency loss as of the dates those tests were made and that high frequency loss is caused by noise exposure. No questions were asked of Dr. Eisenstein to determine whether the 1971 and 1977 audiograms showed any abnormalities in plaintiff’s hearing in the speech frequencies or if his hearing was normal at those levels and at those times. Plaintiff’s counsel did not ask the doctor to describe possible causes of hearing loss in the speech frequencies. His testimony with regard to the effect of noise exposure on hearing was that hearing loss in the high frequency range was caused by noise.

According to Dr. Eisenstein, the plaintiff told him the hearing loss was very gradual and that in 1983 plaintiff’s wife noticed for the first time that plaintiff did not seem to hear conversations. Plaintiff was fitted in 1983 for hearing protection devices for use at work and for hearing aids. Dr. Eisenstein reviewed an audiogram taken in 1987 and testified that no further deterioration of plaintiff’s ability to hear in the speech frequencies from the level measured in 1983 had occurred.

Defendant’s witness, Dr. Cook, testified that he began work for the railroad in 1976 as its medical director. He testified from the medical records of the plaintiff maintained by defendant railroad, specifically from the results of audiograms taken in 1971, as a condition of hiring plaintiff as an employee, and in 1977 as a condition of his return to work following gall bladder surgery. He testified he is not a specialist in diseases of the ear nor is he an otolaryngologist, but that he has a basic working knowledge of the interpretation of audiogram test results and of the air conduction, the bone conduction and the word discrimination tests done by an audiologist.

Dr. Cook was asked to compare the 1971 audiogram administered by the railroad with the 1987 audiogram performed by Dr. Eisenstein describing the hertz scores as to speech frequencies. He testified that the hertz score measures the decibel levels required for the patient to hear sounds at various speech frequencies and that a normal range at the hertz 1,000 level measures about 25. He testified that the 1971 audiogram reflected that plaintiff’s hearing was within the normal range through the speech frequencies but that it dropped off at the high frequency levels. From the 1987 audiogram Dr. Cook testified that the test results showed that speech frequencies at that date had to be amplified five times for the left ear and seven times for the right ear for the plaintiff to hear conversations. Dr. Cook was asked questions only about the test results for the speech frequencies, but no questions were asked of him to compare the test results for the 1971 and 1987 audiograms for high frequency loss. Nor was he asked whether the later report showed any further deterioration at those high frequency levels which plaintiff’s medical expert testified were particularly vulnerable to damage from excessive noise.

We find it particularly significant that plaintiff’s medical expert, who was a board-certified otolaryngologist and the treating physician, testified that his review of the railroad’s 1971 and 1977 audiograms disclosed that in 1971 plaintiff had measurable high frequency loss and that exposure to loud noises was the cause of hearing loss at the high frequency level. However, it is also significant that although Dr. Eisenstein tested and determined that in 1983 plaintiff suffered hearing loss in the speech frequencies and prescribed hearing aids to amplify sound for the hearing impairment at speech frequencies, this is not the type of hearing loss attributed to noise. The doctor was not asked nor did he identify the cause of hearing loss in the speech frequencies. His testimony limited hearing loss caused by noise exposure to high frequency sounds.

Dr. Cook, who acknowledged that he was not a hearing expert, testified that a comparison between the 1971 and 1987 audiograms disclosed a deterioration in hearing at the speech frequency level from 1971 to 1987. He too was not asked nor did he identify the cause of deterioration at the speech frequencies. No one identified excessive noise as the cause of hearing loss at the speech frequencies nor was either physician asked to compare the high frequencies results to determine whether this hearing loss, caused by exposure to noise, had changed from 1971 to 1987. Because the witnesses were not asked to compare the high frequencies scores on the audiograms taken 16 years apart, we infer that a comparison between them would disclose no change in the level of high frequency impairment. We also note that plaintiff did not ask either physician to compare the 1977 audio-gram with the tests taken in 1971, 1983 or 1987.

We next consider what duty the defendant owed to its employee, the plaintiff. Plaintiff alleged a duty to provide a safe place to work where noise levels were not unnecessarily excessive and high. He alleged the railroad had a duty to warn plaintiff of his exposure to unsafe noise levels and alleged a failure to provide safe tools and equipment as well as failure to provide hearing protection. Plaintiff further alleged failure to adopt safe, customary work practices. While these were the allegations in the complaint, proofs were offered at trial to support the allegations of high and dangerous levels of noise in the workplace, failure to warn plaintiff of the possibility of loss of hearing from exposure to this noise and failure to provide hearing protection devices.

An employer will be liable for injuries resulting from conditions under the employer’s control which are not conditions a reasonable person would permit. Wilkerson v. McCarthy (1949), 336 U.S. 53, 61, 93 L. Ed. 497, 504, 69 S. Ct. 413, 417; Tiller v. Atlantic Coast Line R.R. Co. (1943), 318 U.S. 54, 67, 87 L. Ed. 610, 617, 63 S. Ct. 444, 451, 143 A.L.R. 967, 974; see also Del Raso v. Elgin, Joliet & Eastern Ry. Co. (1967), 84 Ill. App. 2d 344, 363, 228 N.E.2d 470, 479.

Under the FELA a carrier is liable to its employee for his injury by reason of any defect or insufficiency due to employer’s negligence, but where the carrier is not guilty of negligence, it is not chargeable with the failure to provide a safe place to work. (Payne v. Baltimore & Ohio R. R. Co. (1953), 351 Ill. App. 186, 189, 114 N.E.2d 323, 325.) The FELA does not make the railroad an absolute insurer against injuries suffered by its employees; the Act imposes liability only for negligent injuries. Amerpohl v. Illinois Central Railroad Co. (1958), 17 Ill. App. 2d 416, 150 N.E.2d 212 (abstract of opinion).

Under the FELA a railroad is not subject to absolute liability to its employee; liability under the statute must arise from employer’s negligence based upon substantial evidence in the record. Kloetzer v. Louisville & Nashville R.R. Co. (1950), 341 Ill. App. 478, 485, 95 N.E.2d 502, 505; Amerpohl, 17 Ill. App. 2d at 416, 150 N.E.2d at 212 (abstract of opinion); Wilkerson, 36 U.S. at 61, 93 L. Ed. at 504, 69 S. Ct. at 417.

The only testimony that the shop had high noise levels was from the plaintiff, who described air-powered and pneumatic equipment used for the work he did but that the equipment and power tools were not used eight hours a day every day, and he stated that because of the noise in the shop, he would have to tap a co-worker on the back to get his attention in order to communicate with him.

In answer to his attorney’s question on direct examination, “Have you ever seen any dosimeters or any noise level measuring devices present in the shop?” he answered “No.” It is reasonable to conclude that plaintiff wanted the court to draw an inference from this question that the defendant had a duty to measure the shop sounds. No further proofs were offered to support any inferred duty on the railroad to record or measure noise levels in the shop. We note that neither did plaintiff offer such test results in support of his conclusory statement that the shop was noisy. The trial court could conclude therefrom that plaintiff himself did not make such a test to establish what the actual noise levels were by any scientific measure. The court could also conclude that plaintiff further failed to prove that the defendant was required by any statute or otherwise to test noise levels. No witness with personal knowledge of noise intensity was called to testify in support of plaintiff’s allegations of noise. The trial court could conclude that the evidence did not establish that the noise was at a dangerous level.

Plaintiff offered no evidence to support a requirement, statutory or otherwise, that defendant provide hearing-protection devices for employees who work under conditions similar to the shop conditions described here. The plaintiff did not prove nor did the medical testimony establish that hearing protection devices would have prevented this plaintiff’s hearing impairment. The evidence did not prove that plaintiff’s hearing loss was caused by the noise of defendant’s shop. The evidence did establish that plaintiff’s work since 1979 or 1980 has been in the yard and outside the shop, where noise levels are dissipated and substantially less than inside the shop, and that no hearing impairment was detected until 1983, some three or more years later when he no longer was exposed to allegedly dangerous levels of noise.

Plaintiff argues that the record is devoid of any other explanation for the decrease in plaintiff’s hearing during his employment by the railroad other than the noise at defendant’s shops. We submit that the fact that the record offers no other explanation is not the legal equivalent of proving causation. The evidence does not support any suggestion that defendant had a duty to warn plaintiff that exposure to the shop noise could result in hearing impairment.

Plaintiff argues that the trial court relied on evidence prohibited by the statute in reaching its conclusion in favor of defendant. Specifically, plaintiff refers to the comments of the trial judge which refer to the testimony of plaintiff and his wife, who “have an interest in the case,” and concludes “the court certainly has a right to consider and make whatever reasonable inferences from the evidence as the fact finder in this cause.” The Illinois Code of Civil Procedure provides in pertinent part:

“No person shall be disqualified as a witness in any action or proceeding *** by reason of his or her interest in the event thereof, as a party or otherwise, *** but such interest *** may be shown for the purpose of affecting the credibility of such witness ***.” (Ill. Rev. Stat. 1985, ch. 110, par. 8—101.)

We find no error by the trial court in considering the interest of the plaintiff and his wife in the outcome of the trial.

Plaintiff contends that the court drew an inference which is prohibited by the FELA when he stated, “and then you have the situation where Mr. Gonet is still presently employed by the company that he complains about.” He argues that this statement reflects that the trial court believed plaintiff bears some responsibility for his impairment because he has assumed the risks of which he now complains. While the statute specifically provides that assumption of risk is no defense (Tiller, 318 U.S. at 64, 87 L. Ed. at 616, 63 S. Ct. at 449-50; 31 U.S.C. § 54 (1982)), this comment about the plaintiff’s continued employment with defendant railroad followed a recital by the trial court of all of the evidence presented at the trial. It then stated that in considering all of the evidence, it was making “reasonable inferences as to whether the plaintiff has proven his case in accord and with the requirements of the law.” We reject plaintiff’s argument because we do not find that this comment by the court raises to the level of a finding of assumption of risk, which would be contrary to the statute.

The trier of fact has the duty to weigh contradictory evidence, judge witness credibility, and draw ultimate conclusions from the facts. (Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 512, 492 N.E.2d 1364, 1374.) It is the trial court’s prerogative to draw reasonable inferences and ultimate conclusions from the evidence (Lee, 143 Ill. App. 3d at 512, 492 N.E.2d at 1374), and its judgment will not be disturbed because another trier of fact could have found differently or found reasonable other conclusions. Lee, 143 Ill. App. 3d at 512, 492 N.E.2d at 1374.

Even where plaintiff’s testimony in a bench trial was uncontradicted, the trial court was not required to give credence to or accept that testimony as establishing any fact in issue. (Davies v. Arthur Murray, Inc. (1970), 124 Ill. App. 2d 141, 155, 260 N.E.2d 240, 247.) The court will not upset determinations of facts, credibility of witnesses or weight to be given testimony unless those determinations are manifestly against the weight of the evidence. Davies, 124 Ill. App. 2d at 155, 260 N.E.2d at 247.

The trial judge clearly concluded that the plaintiff’s evidence was insufficient to sustain a finding of negligence by the defendant or a causal link between any act of defendant and plaintiff’s hearing impairment. He expressed concern as to the quality of the evidence, found that during his lifetime plaintiff has been exposed to noise, including his military service and his hunting trips, but stated that the FELA did not impose on the defendant a total duty to the plaintiff and stated that from the evidence he could find no negligence attributable to the defendant.

In considering whether the railroad should have known of the possibility that its shop noise could cause hearing impairment, we note that no evidence was offered to show that any other shop employee was affected by the noise or complained of it. No evidence was offered to establish that the noise levels were greater than customary noise levels for shop work in the industry or that they were a danger to people working there. No proof was offered that the use of hearing devices would have prevented plaintiff’s impairment, which was clearly not established to have resulted from noise.

In FELA cases the scope of appellate review is limited to a determination of whether there is an evidentiary basis for the conclusion reached, and when that evidentiary basis becomes apparent, the appellate court may not weigh the conflicting evidence again or judge witness credibility to reach an opposite conclusion from that of the trial court. (Bowman v. Illinois Central R.R. Co. (1957), 11 Ill. 2d 186, 200-01, 142 N.E.2d 104, 114; Lavender v. Kurn (1946), 327 U.S. 645, 652-53, 90 L. Ed. 916, 922, 66 S. Ct. 740, 744.) A reversible error exists where there is a complete absence of probative facts to support the conclusion reached by the trier of fact. (Bowman, 11 Ill. 2d at 201, 142 N.E.2d at 114; Lavender, 327 U.S. at 653, 90 L. Ed. at 923, 66 S. Ct. at 744.) The appellate court’s function is exhausted when that evidentiary basis becomes apparent. Bowman, 11 Ill. 2d at 201, 142 N.E.2d at 114.

The standard to be applied by the reviewing court in FELA cases requires a determination that there was a sufficient evidentiary basis for the trial court’s verdict or judgment and that reversible error does not occur unless there is a complete absence of probative facts to support the conclusion reached by the trial court. Woodruff v. Pennsylvania R.R. Co. (1964), 52 Ill. App. 2d 341, 354, 202 N.E.2d 113, 120; Goodwin v. Wabash R.R. Co. (1961), 33 Ill. App. 2d 349, 350, 179 N.E.2d 430-31.

All cases cited by plaintiff involve claims for injuries which result from accidents or from circumstances where the injury-causing event is a single occurrence as the result of which the employee is injured. None of these cases concerns injuries resulting from exposure to dangerous work conditions over a period of time, as is alleged here. For this reason we find them factually distinguishable.

Few of the reported FELA cases have addressed the question of employee injuries due to sustained exposure to dangerous workplace conditions. In Mitchell v. Missouri Pacific R.R. Co. (1968), 104 Ill. App. 2d 142, 153, 244 N.E.2d 406, 409, the reviewing court held that the plaintiff was required to prove that defendant knew or should have known that plaintiff was exposed to the dangers of histoplasmosis from inhaling dust created by plaintiff’s duties of scraping bird droppings from beams and braces on employer’s railroad bridges. The trial court directed a verdict in favor of defendant at the close of plaintiff’s case. On appeal, the reviewing court reversed the trial court and held that it is for the jury or the trier of fact to consider the evidence and to determine questions of the employer’s knowledge, duty to warn, negligence and causation; the conclusions of the jury in a FELA case cannot be ignored. Mitchell, 104 Ill. App. 2d at 153, 244 N.E.2d at 412.

In McCorkel v. Pennsylvania R.R. Co. (1961), 32 Ill. App. 2d 193, 177 N.E.2d 369, the plaintiff, a locomotive engineer, sought to recover for severe hearing loss which he alleged was caused by negligent operation of horns on defendant’s locomotives. The record disclosed that it was undisputed plaintiff had a hearing loss. On two separate occasions while he was in the cab of his locomotive the operators of trains on immediately adjacent tracks to his blew sustained blasts from horns or whistles as warnings in the manner which was routine and customary. The jury found no negligence by the railroad. On appeal the reviewing court found there was an evidentiary basis in the record to support the jury’s verdict and in considering the record in light of plaintiff’s contentions concluded that no reversible error was presented.

We reach the same conclusion here. The trial court examined the evidence, assessed the credibility of the witnesses, made findings of fact and concluded that the evidence failed to establish defendant’s negligence. We find no reversible error and affirm the judgment of the trial court.

Judgment affirmed.

EGAN and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    SMART DATA, INC., Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—89—0966
    Opinion filed March 12, 1990.
    Rehearing denied April 27, 1990.

      Mark S. Simon, of Chicago, for appellant.
    Keck, Mahin & Cate, of Chicago (Robert E. Arroyo and Laurie A. Spieler, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff sued defendant for breach of contract for defendant’s delivery of plaintiff’s goods. Defendant’s motion for summary judgment was granted based upon the trial court’s conclusion that plaintiff had ratified defendant’s actions. On appeal plaintiff argues that the trial court erred by inferring ratification as a matter of law.

Plaintiff is a distributor of computer products located in a Chicago suburb, and defendant provides a delivery service as a common carrier. During a three-week period in mid-1987 plaintiff contracted with defendant to ship five orders of merchandise to the Keydata Tech Group, Inc. (KTG), in California. These shipments were sent COD, and defendant was to collect a customer check from KTG and remit the payment to plaintiff. The last delivery occurred on September 14, 1987. Defendant accepted a check for each delivery drawn on a California bank account of Keystrokes Unlimited, Inc. (Keystrokes). Defendant gave these checks to plaintiff, which deposited them; the first deposit was made on September 10, 1987. Each check was dishonored because of insufficient funds in the account or because the account was closed. The first notification of dishonorment to plaintiff occurred on September 28, 1987, and plaintiff then immediately notified defendant on September 28 and eventually demanded reimbursement for $9,215.

Defendant sought summary judgment because it claimed plaintiff ratified its actions by accepting and depositing the checks without protest. Defendant stated that the shipments were delivered to the correct address and the recipient of the parcels gave defendant’s delivery driver a check in the correct amount for each delivery. The checks received by defendant were made payable to plaintiff and remitted to plaintiff, which then unconditionally deposited each check in its bank account without prior protest.

Defendant stated that it had requested plaintiff, by interrogatory, to identify plaintiff’s employees who handled receiving and processing of each of the checks. Plaintiff had responded that the checks were received, copied, endorsed by stamp, listed on a deposit ticket and deposited with plaintiff’s bank on the day of receipt of payment; approximately the next day, the copies of the checks were matched to plaintiff’s invoices, which are kept in alphabetical and numerical order; employees matched the checks received with open invoices on the amounts stated; the invoices were then removed from the “unpaid” file, marked “paid,” and placed in the “paid” file; when the checks were returned as uncollectible, the invoices were placed back in the “unpaid” file. Defendant contended that it was not liable to plaintiff for the dishonored checks since plaintiff ratified defendant’s acceptance of the checks drawn on the Keystrokes account when plaintiff accepted and deposited those checks without prior protest, thus waiving any claim against defendant for breach of contract.

Plaintiff filed an answer and a motion for a summary judgment. Plaintiff maintained that it did not ratify defendant’s actions because it lacked full knowledge of all material facts at the time it deposited the checks, failed to receive or obtain any benefit from the checks and timely repudiated defendant’s actions. In support of its motion for summary judgment, plaintiff stated that the consignee for each parcel was KTG, and defendant did not collect and remit to plaintiff any checks drawn on the account for that customer. Plaintiff also claimed that it deposited the checks as a matter of routine procedure without regard to their source or propriety and they were handled no differently than its other receipts. Furthermore, plaintiff noted that defendant made no effort to call special attention to the fact that plaintiff had the right to protest the checks or that by depositing the checks plaintiff would be waiving its right to protest. Plaintiff claimed that it retained no benefit from defendant’s unauthorized acceptance of the checks. Plaintiff also submitted the affidavit of Robbie Fatorechi, its controller, in which the affiant stated that on September 28, 1987, he called defendant to inform it that plaintiff had received a COD payment from Keystrokes which was returned by plaintiff’s bank as uncollected and informed defendant that it should have collected from KTG.

During argument on the motion, the court stated that plaintiff had received a benefit in terms of the possible actions it could bring against Keystrokes or the real makers of the checks and that this was a matter of first impression. The court then followed Comark, Inc. v. United Parcel Service, Inc. (N.D. Ill. 1988), 701 F. Supp. 641, which involved a summary judgment for the common carrier. The trial court concluded with respect to plaintiff’s claim of repudiation, that the passage of 18 days (from deposit of the first check, on September 10, to Smart’s notification of defendant on September 28) was unreasonable.

Plaintiff contends the trial court erred by inferring ratification as a matter of law. Plaintiff maintains that its receipt of worthless checks cannot satisfy that part of the doctrine of ratification which requires that the person ratifying obtain a benefit, that it timely repudiated defendant’s conduct, and that it did not have knowledge of all material facts. In addition, plaintiff says that the trial court did not apply the proper standard in deciding defendant’s motion for summary judgment.

Summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 214, 531 N.E.2d 1.) In determining the existence of a genuine issue of material fact, the trial court should construe the pleadings, depositions, admissions, exhibits and affidavits strictly against the movant and liberally in favor of the nonmovant. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 543 N.E.2d 1304.) Although a party may rely on reasonable inferences which may be drawn from the facts, an inference cannot be established on mere speculation, or conjecture; and if reasonable persons could draw different inferences from the facts presented, questions cannot be determined as a matter of law. (Salinas v. Werton (1987), 161 Ill. App. 3d 510, 514-15, 515 N.E.2d 142.) Issues concerning agency such as ratification become questions of law proper for disposition by summary judgment where the evidence is not disputed. Advance Mortgage Corporation v. Concordia Mutual Life Insurance Co. (1985), 135 Ill. App. 3d 477, 485, 481 N.E.2d 1025.

Plaintiff initially contends the undisputed facts established that plaintiff never received a benefit and timely repudiated defendant’s acts. In Buford v. Chief, Park District Police (1960), 18 Ill. 2d 265, 270, 164 N.E.2d 57, the court said that a party cannot repudiate the acts of another done in his interest and on his behalf and at the same time retain the benefits of those acts. “Receipt of these benefits with full knowledge of the material facts relating to the source of the benefits and the manner of acquisition, constitutes a ratification of such act unless the principal returns the benefits and repudiates the act within a reasonable time.” (18 Ill. 2d at 270.) For the reasons stated below, we conclude that summary judgment was improper. A fact question is presented whether plaintiff ratified defendant’s acts under the standard set forth in Buford. The matters on file do not establish that plaintiff had full knowledge when it deposited the checks, or that plaintiff received any substantial benefit from depositing the checks. And a question of fact also exists whether plaintiff repudiated defendant’s acts within a reasonable time.

The court in Comark, which the trial court relied on here, set forth that although a carrier such as defendant breaches its contract, it can escape liability if the shipper ratified its actions. (Comark, 701 F. Supp. at 646.) The Comark decision is partly distinguishable since one of the three shipments was on November 13, 1986, but Comark did not protest to defendant until late summer of 1987. It is unclear . when, if ever, Comark protested the other two shipments.

In this case, plaintiff’s employees accepted and routinely processed the checks submitted to it by defendant and it is this action that is relied on to establish ratification. The record explains in detail the manner in which plaintiff processed the checks, but does not show plaintiff’s employees knew that, contrary to plaintiff’s instructions to defendant, the checks which defendant forwarded to plaintiff were not from its customer, but bore a different name and address. Under such circumstances, we are unable to conclude as a matter of law that plaintiff ratified the actions of defendant which were not in accordance with plaintiff’s instructions. Plaintiff’s clerical employees would not necessarily know that the checks were accepted contrary to instructions. Plaintiff is required to act with full knowledge of the material facts for ratification to apply. If an order is truly COD, i.e., cash only, and instead a check is accepted, it should be clear to anyone that there has been a deviation from the instructions because a check is accepted instead of cash. But if, as here, a check is specified as acceptable payment for a COD order, knowledge that a check has been accepted contrary to instructions cannot necessarily or reasonably be imputed to clerical office employees. In comparable circumstances, our supreme court has recently held that the question whether a bank had exercised ordinary care in paying checks without manual verification of the signatures presented creates a genuine issue of material fact which should be answered by the trier of fact. Wilder Binding Co. v. Oak Park Trust & Savings Bank (1990), 135 Ill. 2d 121, 129-30.

Defendant argues that an unqualified acceptance of a check has been considered an adoption or ratification of the act of the carrier, as in Rathbun v. Citizens’ Steamboat Co. (1879), 76 N.Y. 376, 379, 32 Am. Rep. 321, where the carrier accepted a check payable to the consignor, rather than cash as directed, but the court held the unconditional acceptance of the check amounted to a waiver of the requirement to collect the money and a ratification of the act of the carrier receiving the check in lieu of the money; thus, the consignor adopted the act of the carrier by taking a check instead of cash. (See Annot., Liability of Carrier Delivering Goods Sent C.O.D. Without Receiving Cash Payment, 27 A.L.R.3d 1320 (1969); Mountain States Waterbed Distributors, Inc. v. O.N.C. Freight Systems Corp. (1980), 44 Colo. App. 433, 614 p. 2d 906; Karat Gold, Inc. v. United Parcel Service, Inc. (1989), _ Ohio App. _.) As the annotation suggests, many of the decided cases (e.g., Rathbun, Mountain States, Karat) in which ratification was found involved the carrier taking a regular check instead of cash (or its equivalent such as a cashier’s check) so that the carrier’s breach must have been evident at the time the check was accepted and deposited by the shipper. In this case the breach was much less evident, since taking a customer check was allowed by the plaintiff and a customer check at least arguably was accepted by defendant, but drawn on a different company’s account. The noncustomer checks were processed by low-level clerical help of plaintiff. Whether their actions in depositing these checks amounted to a ratification presents a question of fact, since it is not clear that plaintiff’s employees in fact knew and understood there had been a breach when the checks were deposited.

Plaintiff contends that it did not receive a benefit, since the checks were uncollectible. Defendant argues that plaintiff benefited in retaining a cause of action against its customer or the maker of the checks as the circuit court stated. We do not agree that plaintiff’s legal right to sue on the dishonored checks constituted a sufficient benefit to plaintiff that plaintiff should be considered to have ratified defendant’s actions. Moreover, a fact question is presented concerning whether plaintiff promptly repudiated defendant’s acts within a reasonable time. (Buford, 18 Ill. 2d at 270.) On September 28, 1987, 18 days after plaintiff deposited the first check, plaintiff was first notified that a check was uncollectible. That same day, plaintiff’s controller notified plaintiff that this check was uncollected and informed defendant that defendant should have collected a check from KTG. A question of fact exists whether plaintiff timely repudiated defendant’s actions.

Plaintiff also contends that the trial court did not apply the proper legal standard for summary judgment, but it is not necessary to decide this issue. A question of fact precluding summary judgment exists as to whether plaintiff ratified defendant’s acts.

Therefore, the judgment of the circuit court of Cook County is reversed and the cause is remanded.

Reversed and remanded.

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


author: JUSTICE STEIGMANN PRESIDING JUSTICE KNECHT,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM L. BAKER, Defendant-Appellant.
    Fourth District
    No. 4—89—0462
    Opinion filed March 28, 1990.
    Rehearing denied April 27, 1990.

      KNECHT, P.J., specially concurring.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Roger Simpson, State’s Attorney, of Monticello (Leonard R. Rumery, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, William L. Baker, was convicted after a jury trial of unlawful restraint and battery (Ill. Rev. Stat. 1987, ch. 38, pars. 10— 3, 12—3). Defendant appeals his convictions, claiming that the prosecutor’s remarks during closing argument deprived him of a fair trial. In addition, defendant maintains that the trial court’s recoupment order requiring him to pay $200 to the county for the services of his public defender must be vacated.

We affirm.

Defendant contends that the prosecutor’s closing argument denied him a fair trial because the prosecutor (1) expressed his personal opinion, and (2) accused the defendant of “fogging” the issues during defendant’s closing argument.

With regard to the first allegation, defendant argues that the following passages constitute improper argument:

“That substantiates and provides the proof, I believe, beyond a reasonable doubt, as her testimony is uncontroverted in this case, on the battery charge. * * *
* * *
Judge Shonkwiler is going to read to you certain instructions that you have already indicated that you will follows [sic]. *** Number one is unlawful restraint. ‘A person commits the offense of Unlawful Restraint when he knowingly and without legal authority, detains another person.’ If ever there was a situation where a person was detained, I think it was demonstrated by the testimony of Theresa Taylor. *** I think it could be reasonably inferred from the evidence, she feared for herself and the safety of her young child, and yet she was not allowed to remove herself from that situation.”

In his rebuttal argument, the prosecutor made the following remarks, which defendant again claims are improper argument:

“I live on the west side of Monticello, and from time to time I drive into town early in the morning, and there is a fog over our town, over our community, and as the sun gets higher, the fog burns and the outline of the city becomes clearer. I think [defense counsel] is attempting to drop a fog on this particular trial, and the facts when he says, hey, after all this is just kind of a domestic dispute, after all they have kind of forgiven each other and we should just let them go on and live their lives.
* * *
The fact that we are dealing with two people who continue to live together, commonly, where it is commonly known as a domestic dispute is not relevant. It is a fog, and I submit you should not consider that when weighing the evidence in this particular case.”

Defendant, however, failed to object to the prosecutor’s closing argument at trial. Unless the prosecutor’s remarks constitute plain error, defendant has waived consideration of this issue on appeal. (People v. Hall (1986), 114 Ill. 2d 376, 418, 499 N.E.2d 1335, 1353, cert. denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618.) Because we do not find the prosecutor’s closing argument to be inappropriate, we find no plain error.

A prosecutor may state an opinion which is based on the record or on a legitimate inference derived from the record. (People v. Johnson (1987), 119 Ill. 2d 119, 143, 518 N.E.2d 100, 111, cert. denied (1988), 486 U.S. 1047, 100 L. Ed. 2d 629, 108 S. Ct. 2027.) In the present case, the prosecutor expressed opinions as to the proof offered against the defendant. These opinions were legitimate inferences based on the trial record. While it might be good practice for prosecutors to refrain in argument from using sentences beginning with, “I believe” or “I think,” we reject defendant’s argument that any time a prosecutor does so error results.

Defendant similarly failed to object to the prosecutor’s allegation that defendant was “fogging” the issues during his closing arguments. Once again, these comments will be considered on appeal only if they constitute plain error; and, once again, because these remarks are not improper, no error, much less plain error, is present.

While prosecutors must refrain from personal attacks on defense counsel, they need not refrain from attacking defendant’s case as presented in the defendant’s closing argument. This distinction is particularly important where, as here, the prosecutor’s argument is mere rhetorical flourish.

Our supreme court recently found a prosecutor’s closing argument to be not prejudicial in a capital case where the prosecutor’s descriptions of the defendant’s argument were much harsher than the rather mild metaphors used in the present case. See People v. Franklin (1990), 135 Ill. 2d 78, 112 (prosecutor’s characterization of defendant’s closing argument as “shocking,” “bunk,” “abominable,” and “insulting” did not prejudice defendant).

Defendant also claims that the trial court’s order under section 113 — 3.1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 113—3.1), requiring him to pay the county $200 for the services of the public defender, was improper. The trial court ordered that this $200 assessment be taken from the $300 cash bond defendant had previously posted. Defendant argues that the court, prior to the entry of the order, failed to consider his ability to pay the $200.

We first note that no objection was raised by the defendant on this or any other ground to the payment order entered by the trial court. Accordingly, we find ourselves once more in a position in which a defendant seeks to have this court review and reverse actions by the trial court which the defendant is questioning for the first time on appeal. Because of defendant’s failure to object to this alleged procedural deficiency at any point during the trial court proceedings, defendant has waived this issue on appeal unless the plain error rule applies. See 107 Ill. 2d R. 615(a).

Among the last cases in which the supreme court discussed the plain error rule are People v. Szabo (1986), 113 Ill. 2d 83, 497 N.E.2d 995, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1330, and People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274. Interestingly, both cases involved defendants who received the death penalty, and in both cases the supreme court refused to apply the plain error rule with regard to unobjected-to issues being raised for the first time on appeal. (Szabo, 113 Ill. 2d at 94-96, 497 N.E.2d at 999-1000; Enoch, 122 Ill. 2d at 198-99, 522 N.E.2d at 1135-36.) These issues arguably affected the guilty verdicts or the imposition of the death penalty or both. In Enoch, the supreme court went even further and held that merely objecting at the trial level was not enough to preserve trial court errors for appeal; a post-trial motion had to be filed as well. Enoch, 122 Ill. 2d at 185-92, 522 N.E.2d at 1129-32.

In Szabo, the supreme court described the plain error rule as “ ‘a narrow and limited exception to the general waiver rule’ [citation], to be invoked only when the error alleged is ‘so substantial as to deprive defendant of a fair trial’ [citation].” (Szabo, 113 Ill. 2d at 94, 497 N.E.2d at 999.) Similar language was used in Enoch. Enoch, 122 Ill. 2d at 198-99, 522 N.E.2d at 1135-36.

Given these recent holdings by the supreme court in these death penalty cases, there is no basis for the defendant’s argument that the plain error rule is applicable to issues on appeal concerning this recoupment order. Even if technical deficiencies were present in the procedures used by the trial court when it entered the recoupment order under section 113 — 3.1 of the Code, those deficiencies can hardly be “so substantial as to deprive defendant of a fair trial.”

If the defendant does not bother to complain of procedural or technical deficiencies at the trial level, he should be barred from doing so on appeal.

The plain error rule means precisely what the supreme court says it means. It is to be invoked only when the error alleged is so substantial as to deprive a defendant of a fair trial. It is not a “catch-all” provision permitting the supreme court, much less this court, to review any order or judgment of the trial court simply because this court may think the trial court erred.

In the context of the present case, not only is the plain error rule not applicable, it has nothing whatsoever to do with whether defendant received a “fair trial.” He sat on his rights at the trial level; he should not be permitted to challenge the court’s recoupment order at this stage.

In so holding, we are not unmindful of the recent decision of this court in People v. Atwood (1990), 193 Ill. App. 3d 580, but we believe Atwood to be the exceptional case and distinguishable on its facts. In Atwood, this court considered arguments concerning section 113 — 3.1 of the Code that defendant raised for the first time on appeal. One of the distinguishing features in Atwood was the circumstance that defense counsel in that case would likely be paid out of whatever sum the court ordered the defendant to pay for reimbursement of court-appointed counsel.

“[I]f here defense counsel was required, in order to preserve error, to take some step in the trial court to point out such error, we are most reluctant to impose a waiver when that counsel appears so likely to have a personal interest in the amount of reimbursement ordered.” Atwood, 193 Ill. App. 3d at 591.

In Atwood, this court also made reference to People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, a case in which the trial court, in pronouncing sentence, revealed that it gave consideration to an improper aggravating factor. As the primary aggravating factor in that voluntary manslaughter case, the trial court found that defendant’s conduct caused terrible harm to the victim. The defense made no response in the trial court, but raised the issue on appeal. The supreme court held the issue to be not waived. In writing for the court, Justice Ryan noted that it was not necessary for counsel to interrupt the judge and point out that he was considering wrong factors in aggravation, “especially in light of the argument that had preceded the ruling.” (Saldivar, 113 Ill. 2d at 266, 497 N.E.2d at 1142.) The argument deemed by the supreme court to be especially significant was defense counsel’s pointing out, immediately prior to the trial court’s consideration of the improper aggravating factor in imposing sentence, that there is always going to be a death in a case of voluntary manslaughter.

In People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855, the supreme court had before it a case requiring an interpretation of section 5 — 8—1(b) of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(b)), that read as follows:

“ ‘The sentencing judge in each felony conviction shall set forth his reasons for imposing the particular sentence he enters in the case, as provided in Section 5 — 4—1 of this Code.’ ” Davis, 93 Ill. 2d at 157-58, 442 N.E.2d at 856.

In Davis, which involved consolidated appeals, the trial court failed to set forth its reasons for the felony sentence imposed. The issue before the supreme court was whether defendant’s sentence should be vacated and a new sentencing hearing held. The supreme court answered in the negative, holding section 5 — 8—1(b) of the Unified Code to be merely directory, not mandatory. In explaining this decision for the majority of the court, Justice Ryan, the same justice who delivered the court’s opinion in Saldivar, stated the following:

“Here, the defendants failed to request a statement of reasons for the sentences given. The statute not being mandatory, there was no independent duty upon the court to give a statement of reasons. Instead, the right is purely personal to the defendants and thus may be waived. Accordingly, we hold that where a defendant fails to request a statement of reasons for a particular sentence, the issue is waived.” (Emphasis added.) Davis, 93 Ill. 2d at 162-63, 442 N.E.2d at 858.

The above language suggests that the “burden” of interrupting a sentencing judge or addressing the judge immediately after the judge has imposed a sentence (or entered a recoupment order) is not thought by the supreme court to be unreasonable. This analysis of Davis lends further support to our conclusion that the decision of this court in Atwood should be limited to the unusual facts present in that case.

In People v. Burrows (1989), 183 Ill. App. 3d 949, 955-56, 539 N.E.2d 842, 846, this court noted that it had declined to apply waiver rules to cases involving recoupment orders under section 113 — 3.1 of the Code in order to remedy any confusion at the trial level concerning the application of the then-new recoupment statute. However, section 113 — 3.1 of the Code became effective July 1, 1982, and the reasons for our not applying waiver rules have dissipated with time. As we stated in Burrows,

“It is an inappropriate use of judicial resources to permit a defendant who has been provided ample opportunity to present objections and evidence to the trial court to sit silently, do nothing, and then be allowed to raise matters on appeal which should have been presented to the trial court at the first recoupment hearing.” Burrows, 183 Ill. App. 3d at 956, 539 N.E.2d at 846.

Even if we were to reach the merits, we note that defendant’s position is groundless. Defendant claims that a hearing must be held to determine whether the recoupment order was reasonable. Yet, at the time that order was entered in this case, the judge who entered it was the same judge who presided over the multiple pretrial hearings, the one-day felony jury trial, the hearing on the post-trial motion, and the sentencing hearing. At the conclusion of the sentencing hearing, the judge determined that $200 of the $300 cash bond the defendant had posted should be used under section 113 — 3.1 of the Code to pay the county for the services it provided to defendant of court-appointed counsel. The trial court can take judicial notice of its own records and properly enter a recoupment order based thereon ■without any further hearings to determine whether it was a “reasonable sum” where, as here, no legitimate question as to that sum’s reasonableness can be raised. It would simply be ridiculous to require a hearing under these circumstances to determine whether $200 for the services of counsel was appropriate.

Defendant also argues that the court was obligated to conduct a hearing before entering an order under section 113 — 3.1 of the Code because the bond money may have been borrowed. Earlier in this opinion, we noted that it is the defendant’s burden to call to the trial court’s attention any errors or technical deficiencies in proceedings under this statute resulting in the imposition of a recoupment order. That holding applies to this claim as well. The court had before it a $300 cash bond posted to secure the defendant’s release. If the defendant wanted the court to give “special consideration to the interests of relatives or other third parties who may have posted” that bond (see section 113 — 3.1(c) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 113—3.1(c))), he should have said so.

We note that the provisions of section 113 — 3.1(c) of the Code, concerning the interests of relatives or third parties, are entirely discretionary with the trial court. If the trial court thinks it appropriate, it may use all of the cash bond posted to pay a recoupment order, even if the money was borrowed from or posted by relatives or third parties, and even if some financial inconvenience or hardship might befall them as a result of the court’s using this money to pay the recoupment order. It should be remembered that the people who post bond money on behalf of a defendant are volunteers; no one has ever been drafted into that position. Furthermore, the judicial system does not become the guarantor of the funds posted on behalf of those who choose to post bond to secure the release of a defendant. In fact, it is they who become the voluntary guarantors for the appearance of the defendant whenever that appearance is required by the court, risking everything they posted to secure his release if he fails to comply. Ill. Rev. Stat. 1987, ch. 38, par. 110 — 8(g).

Relatives and other third parties who post a cash bond have no greater claim under section 113 — 3.1(c) of the Code to the funds posted when the court imposes a recoupment order than they do when the court imposes a fine or an order of restitution. All that section 113 — 3.1(c) of the Code says is that a trial court may, but need not, give special consideration to their interests.

To remove any uncertainty about the law concerning cash bonds that relatives or other third parties posting them may have, the legislature recently amended section 110 — 7(a) of the Code, dealing with the deposit of bail security, by adding the following:

“The clerk of the court shall provide a space on each [bail bond] form for a person other than the accused who has provided the money for the posting of bail to so indicate and a space signed by an accused who has executed the bail bond indicating whether a person other than the accused has provided the money for the posting of bail. The form shall also include a written notice to such person who has provided the defendant with the money for the posting of bail indicating that if the defendant fails to comply with the conditions of the bail bond, the court shall enter an order declaring the bail to be forfeited and may be used to pay costs, attorney’s fees, fines or other purposes authorized by the court.” (Emphasis added.) Pub. Act 86—337 eff. Jan. 1, 1990 (1989 Ill. Laws 2287), amending Ill. Rev. Stat. 1987, ch. 38, par. 110—7(a).

We view this new statutory provision as a codification of the views we expressed in People v. Ray (1984), 130 Ill. App. 3d 362, 471 N.E.2d 933, a case in which the court imposed a fine of $1,500 and ordered it paid out of a $2,500 cash bond that had been posted by the defendant to secure his release. In affirming the trial court, we stated the following:

“[T]he sum of $2,500 had been posted by [defendant] as a 10% bond deposit. Those proceeds were available for fine payment regardless of who may have furnished the money. People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194.” Ray, 130 Ill. App. 3d at 368, 471 N.E.2d at 172.

Citing People v. Cook (1980), 81 Ill. 2d 176, 407 N.E.2d 56, defendant also argues that the trial court erred by not conducting an inquiry into defendant’s personal ability to pay the $200 recoupment order. At first blush, this argument strikes us as most peculiar since, on this record, there can be no doubt that defendant possessed the “ability” to pay the recoupment order — that is, the $200 recoupment order was paid by court order out of the $300 cash bond previously posted by defendant. While it is true that the supreme court in Cook said it had never adopted any presumption that, “the posting of bail, without more, was a sufficient indicium of ability to pay wholly or partially for legal counsel” (Cook, 81 Ill. 2d at 181, 407 N.E.2d at 59), those remarks, understood in context, lend no support to defendant’s argument.

In Cook, the sole issue before the court was the constitutionality of then-section 110 — 7(g) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 110—7(g)), which read as follows:

“Whenever a defendant who has been admitted to bail utilizes the services of a public defender or other appointed counsel, the amount deposited may be used to reimburse the county funding the legal services.” (Cook, 81 Ill. 2d at 180, 407 N.E.2d at 58.)

The supreme court held this statute to be invalid because it violated both the equal protection and the due process clauses of the United States and Illinois Constitutions. (Cook, 81 Ill. 2d at 187, 407 N.E.2d at 61.) It violated the equal protection clause because it singled out for possible reimbursement only those indigent defendants who had posted bail. (Cook, 81 Ill. 2d at 181, 407 N.E.2d at 58-59.) It violated the due process clause because section 110 — 7(g) of the Code did not on its face provide for a hearing before a recoupment order was entered and, in that very case, no hearing was ever held. Instead, the appellate court directed the trial court to deduct a sum representing the reasonable value of appointed counsel’s service from the cash bond defendant had posted. Cook, 81 Ill. 2d at 185-86, 407 N.E.2d at 60-61.

Readily apparent from this analysis is that the discussion in Cook about whether “the posting of bail, without more, was a sufficient indicium of ability to pay wholly or partially for legal counsel” (Cook, 81 Ill. 2d at 181, 407 N.E.2d at 59) is obiter dicta, unnecessary to the constitutional holding ultimately rendered by the court. Not only is this discussion dicta, it is wholly unconnected to the issue for which defendant in the present case wishes to cite it, namely, does the posting of a cash bond demonstrate a defendant’s “ability” to pay a recoupment order from all or part of that bond? The recoupment statute at issue in this case, section 113 — 3.1 of the Code, was not even in existence at the time of the Cook decision. Instead, the supreme court in Cook was addressing a then-recurring problem, namely, the failure of the trial courts either to appoint counsel or to provide free transcripts for indigent defendants solely because those defendants had posted a cash bond. This focus of the supreme court’s discussion in Cook is most clearly shown by the three citations appearing at the end of the paragraph in question in Cook. Those citations are to People v. Pankoff (1978), 70 Ill. 2d 69, 374 N.E.2d 182; People ex rel. Baker v. Power (1975), 60 Ill. 2d 151, 330 N.E.2d 857; People v. Eggers (1963), 27 Ill. 2d 85, 188 N.E.2d 30. See Cook, 81 Ill. 2d at 181-82, 407 N.E.2d at 59.

In Eggers, defendant posted a $350 cash bond and was released. Subsequently, defendant asked for court-appointed counsel, and his request was denied. The supreme court reversed, stating the following:

“From the statements of the court it is clear that an attorney was not appointed to defend the defendant solely because the defendant had spent $350 for a bail bond. The trial judge stated that ordinarily the public defender would have been appointed if this had not been done. The trial court’s action in this regard was erroneous.” (Emphasis in original.) Eggers, 27 Ill. 2d at 88, 188 N.E.2d at 32.

In Baker, the supreme court entered a supervisory order, citing only Eggers. The court stated the following:

“It appears from the papers on file in this cause that petitioner’s request for the appointment of counsel has been denied without a determination of defendant’s indigency, on the ground that petitioner is at liberty on bail. This ruling was erroneous.” Baker, 60 Ill. 2d at 152, 330 N.E.2d at 857.

In Pankoff, defendant’s family posted $6,000 cash on a $60,000 appeal bond. The trial court denied defendant’s request for a free transcript for his appeal. The supreme court again entered a supervisory order, citing Baker, and directing the trial court to consider defendant’s motion for a free transcript without regard to the fact that defendant is at liberty on bail. Pankoff, 70 Ill. 2d at 70, 374 N.E.2d at 182.

The language of Cook, cited by defendant in the present case, was simply a reaffirmation that an otherwise indigent defendant could not be denied court-appointed counsel or a free transcript because he or someone on his behalf had posted a cash bond. This language, however, addresses no issue connected with the assessment of a recoupment order under section 113 — 3.1 of the Code. By definition, a defendant against whom a recoupment order is assessed already has had the benefits of court-appointed counsel. “Whenever *** the court appoints counsel to represent a defendant, the court may order the defendant to pay *** a reasonable sum to reimburse either the county or the State for such representation.” Ill. Rev. Stat. 1987, ch. 38, par. 113-3.1(a).

Consistent with our analysis of Cook and the cases cited therein, we now hold that a cash bond posted to secure the release of a defendant is definitive evidence of his “ability to pay” a recoupment order as long as the recoupment order does not exceed the amount of the cash bond. By “definitive evidence,” we mean the mere act of defendant’s posting a cash bond does, in itself, demonstrate an “ability to pay” a recoupment order, at least to the extent the order does not exceed the cash bond. No further evidence concerning the defendant’s “ability to pay” under these circumstances is required.

Because this holding discusses only the defendant’s personal financial concerns, it is in no way inconsistent with the provisions of section 113 — 3.1(c) of the Code, which state that the trial court may give special consideration to the interests of relatives or other third parties who may have posted the cash bond on defendant’s behalf.

To the extent that this court’s decision in People v. Brady (1988), 172 Ill. App. 3d 1079, 1086, 527 N.E.2d 590, 595, in its analysis of Cook is inconsistent with the holding just stated, it is overruled.

In conclusion, we repeat that if the defendant somehow was going to personally suffer some great financial burden because of this recoupment order, that should have been called to the attention of the trial court. This requirement is particularly appropriate in a case where, as here, the court specifically addressed the defendant at the time the order was entered and asked him if he had any comment concerning the $200 order. The defendant said he did not.

Apparently, on appeal defendant has found his tongue. He is too late.

For the reasons stated, the judgment and sentence imposed by the court upon the jury’s verdict, as well as the recoupment order, are affirmed.

Affirmed.

McCullough, j., concurs.

PRESIDING JUSTICE KNECHT,

specially concurring:

I concur, and write only to comment on the impact of this decision on waiver and People v. Brady (1988), 172 Ill. App. 3d 1079, 1086, 527 N.E.2d 590, 595. As the author of several decisions involving recoupment, and whether waiver should be applied, I fully agree with the decision here. Any confusion concerning the rights of defendants and the standards to be met in recoupment orders should by now have been clarified.

As in People v. Burrows (1989), 183 Ill. App. 3d 949, 955-56, 539 N.E.2d 842, 846, it is inappropriate to permit a defendant to sit silently, and then raise this issue on appeal. Trial courts have many hoops to jump through. In future, the defendant concerned about recoupment must point out the hoop or be barred from criticizing the trial judge’s form. It might also help if State’s Attorneys would assist trial judges in making a complete record instead of perfunctorily participating in recoupment proceedings.

As for Brady, I agree its analysis of People v. Cook (1980), 81 Ill. 2d 176, 407 N.E.2d 56, is inconsistent with our decision here. To that extent, it should be overruled. The act of posting cash bond is evidence of an “ability to pay” a recoupment order. The trial court may elect to handle recoupment in a different fashion, but it is incumbent on both the defendant and the prosecution to assist in achieving an appropriate and fair result.


author: JUSTICE STEIGMANN JUSTICE LUND,

text:
    RALPH SPRAGUE, d/b/a Ralph Sprague and Son Trucking Company, Plaintiff-Appellee, v. J. THOMAS JOHNSON, Director of the Department of Revenue, et al., Defendants-Appellants.
    Fourth District
    No. 4—89—0423
    Opinion filed March 30, 1990.
    Rehearing denied April 27, 1990.

      LUND, J., concurring in part and dissenting in part.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Law Office of Thomas J. Wolf, Jr., P.C., of Harrisburg, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

The Illinois Department of Revenue (Department) appeals the circuit court’s decision to refund money assessed as retailers’ occupation tax and use tax against plaintiff, Ralph Sprague. The Department claims (1) Sprague engaged in retail sales when he acted as a hauler and a middleman between a quarry and purchaser of rock, and (2) Sprague owed use tax on two pickup trucks purchased during the audit.

We reverse.

The Department audited Sprague to determine his liability for retailers’ occupation tax (retailers’ tax) for the period of January 1, 1983, to December 31, 1985. Sprague’s trucking service specialized in hauling rock, coal, sand, and fertilizer. Sprague never advertised he had rock for sale and never offered to sell rock to anyone. Instead, customers called him to request that he acquire and haul rock to locations they specified. Sprague then quoted the sales price, the retailers’ tax on the purchase, and the hauling charge. These charges were determined by the Illinois Commerce Commission. Sprague did not charge retailers’ tax on hauling.

After a customer placed an order, a Sprague employee would drive to a quarry, load the rock onto a truck, and deliver the rock to the location requested by the customer. On one occasion, Sprague hauled some rock to his own place of business because his truck could not gain access to a customer’s driveway. Sprague did not offer this rock for sale and never purchased other quantities of stone on his own behalf.

After hauling was completed, Sprague billed the customer. The bills did not itemize the price of the rock, the retailers’ tax on the rock, or the hauling charge, but simply listed a total charge.

The quarries with which Sprague did business did not require that Sprague’s service haul their rock and did sell rock directly to their customers. The price of the rock was the same in both cases because Sprague added no markup and did not receive any kickbacks. Sprague did not testify about the weight of the rock he hauled. His secretary testified about one order for 44.9 tons of rock.

Frank Cook, an auditor for the Department, concluded that Sprague was conducting retail sales because (1) Sprague’s customers called him, placed their orders with him, were billed by him, and paid him; (2) Sprague paid the quarry for the purchase amount of the rock; and (3) Sprague did not itemize the hauling charge, the charge for the rock, and the amount of tax on the rock on his bills. Cook concluded that Sprague was a retailer despite the absence of an inventory at Sprague’s place of business.

The circuit court cited the definition of “sale at retail” set forth in section 1 of the Retailers’ Occupation Tax Act (Act) (Ill. Rev. Stat. 1987, ch. 120, par. 440) and determined that the Act, not the Department regulations described by Cook (86 Ill. Adm. Code §§130.415(b), (d) (1985)), should govern the outcome of the case. The court found that Sprague and his customers made an oral contract at the time of ordering. Based upon the contract and the circumstances of this case, the court concluded that the parties to the transaction intended for Sprague to merely be the customer’s agent for the purpose of purchasing the rock and that title to the rock pass to the customer when Sprague picked up the rock at the quarry. The court noted that Sprague had even purchased rock from one of his customers during the incident in which Sprague hauled the rock to Sprague’s place of business because the customer’s driveway would not allow delivery. The court found for Sprague and ordered a refund.

In addition to contesting the retailers’ tax on the hauling charge, Sprague also contested the Department’s determination that use tax was owing on two pickup tracks purchased during the period of the audit. Sprague’s bookkeeper testified that the trucks were used to haul commodities to Indiana and to transport repairmen and tires for the repair of tractor trailers. The court held that these trucks were used in interstate commerce and were exempt from taxation. The Department appeals both of these rulings.

Section 2 of the Act (Ill. Rev. Stat., 1988 Supp., ch. 120, par. 441) imposes a tax “upon persons engaged in the business of selling tangible personal property *** at retail.” Section 1 of the Act (Ill. Rev. Stat. 1987, ch. 120, par. 440) provides the following definitions:

“ ‘Sale at retail’ means any transfer of the ownership of or title to tangible personal property to a purchaser, for the purpose of use or consumption, *** for a valuable consideration * * *
* * *
‘Selling price’ or the ‘amount of sale’ means the consideration for a sale *** determined without any deduction on account of the cost of the property sold, the cost of materials used, labor or service cost or any other expense whatsoever ***.
* * *
‘Gross receipts’ from the sales of tangible personal property at retail means the total selling price or the amount of such sales, as hereinbefore defined.”

The Department argues Sprague engaged in sales of rock at retail and is subject to the retailers’ tax for all charges in connection therewith. The evidence presented at trial concerning the transactions between Sprague and his customers was as follows: (1) the customer would telephone Sprague to order rock; (2) Sprague would quote a price for the rock; (3) Sprague would go to the quarry and load the rock onto a truck; (4) Sprague would deliver the rock to the customer; (5) Sprague would bill the customer; and (6) Sprague would pay the quarry when billed. Because the quarry charged the retailers’ tax on the rock he hauled, Sprague collected that retailers’ tax from the customer for the sale of the rock.

The Act essentially defines a “sale at retail” as the transfer of title for the purpose of use or consumption in exchange for consideration. The circuit court determined that title to the rock passed to the customer, not to Sprague, when he picked up the rock at the quarry. However, this analysis is contrary to the rule set forth in section 2— 401(2) of the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1987, ch. 26, par. 2—401(2)), which states the following:

“(2) Unless otherwise explicitly agreed[,] title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading * * *
(b) if the contract requires delivery at destination, title passes on tender there.”

If we assume, as the circuit court did, that the customer was the buyer and the quarry was the seller, then according to section 2— 401(2) of the Code, title to the rock passed when Sprague delivered the rock to the customer and not when Sprague loaded the rock at the quarry. It also follows that Sprague received title to the rock when he took possession of it at the quarry and held the title until he delivered it to the customer.

The circuit court further reasoned that the time at which the title passed was to be determined by the intentions of the parties. However, these intentions control only when the parties “otherwise explicitly agree” as to when title will pass. (Country Mutual Insurance Co. v. Aetna Life & Casualty Insurance Co. (1979), 69 Ill. App. 3d 764, 767, 387 N.E.2d 1037, 1039.) In this case, no evidence was presented indicating that Sprague, the quarry, or the customers explicitly agreed that title would pass from the quarry to the customer after Sprague loaded the rock onto his truck.

In Federal-Bryant Machinery Co. v. Department of Revenue (1968), 41 Ill. 2d 64, 241 N.E.2d 857, the Illinois Supreme Court considered whether a middleman is a retailer subject to the retailers’ tax. In Federal-Bryant, the Department assessed the retailers’ tax on a corporation which solicited and forwarded orders from customers to manufacturers. The manufacturers shipped directly to the customer, but billed the corporation which, in turn, billed the customer. The corporation guaranteed payment to the manufacturer and received commission from the orders solicited.

The court in that case determined that the corporation was not the manufacturer’s agent because the purchase order was routed through the corporation and the customer paid the corporation and not the manufacturer. Furthermore, the corporation’s responsibility for payment to the manufacturer and the corporation’s complicated ordering and billing procedures led the court to conclude that the corporation purchased from the manufacturers and resold to its customers. Federal-Bryant, 41 Ill. 2d at 68-69, 241 N.E.2d at 859.

Federal-Bryant differs factually in some ways from the present case. In Federal-Bryant, the corporation (1) exclusively represented the manufacturer, (2) solicited orders, (3) received commissions, (4) did not haul its product, and (5) used a complicated ordering and billing procedure. We note, however, that both the present case and Federal-Bryant have in common the middleman’s purchase from and remittance to one party, coupled with a sale to and payment from another party.

We find that Sprague took title to the rock at the quarry and transferred title to the customer upon unloading the rock at the customer’s place of business. Admittedly, Sprague realized no profit above and beyond the tariffs required to be charged by law. However, the fact that a taxpayer does not incur a profit does not preclude the assessment of the retailers’ tax. (Valier Coal Co. v. Department of Revenue (1957), 11 Ill. 2d 402, 409-10, 143 N.E.2d 35, 39.) Thus, Sprague conducted a “sale at retail.” Federal-Bryant lends support to this position despite its factual dissimilarities.

Having determined that Sprague conducted sales at retail, we now must determine whether Sprague’s hauling fees should be taxed under the Act. The Department contends Sprague failed to prove his hauling services are exempt from the retailers’ tax.

Section 4 of the Act states that a taxpayer’s return corrected by the Department, “shall be prima facie correct and shall be prima facie evidence of the correctness of the amount of tax due.” (Ill. Rev. Stat. 1987, ch. 120, par. 443.) The taxpayer must establish by competent evidence that the return corrected by the Department is not correct, and until he provides such proof, the corrected returns are presumptively correct. (Copilevitz v. Department of Revenue (1968), 41 Ill. 2d 154, 156, 242 N.E.2d 205, 206-07; Quincy Trading Post, Inc. v. Department of Revenue (1973), 12 Ill. App. 3d 725, 729, 298 N.E.2d 789, 792.) This prima facie case is overcome, and the burden shifts to the Department to prove its case, when the taxpayer presents his books and testimony, “which is not so inconsistent or improbable itself as to be unworthy of belief.” Quincy Trading Post, Inc., 12 Ill. App. 3d at 729-30, 298 N.E.2d at 793.

In Du Page Liquor Store, Inc. v. McKibbin (1943), 383 Ill. 276, 48 N.E.2d 926, the court determined that the taxpayer overcame the Department’s prima facie case by offering both financial documents and testimony at trial. The court explained,

“there should be some evidence introduced which is identified with books or records as kept by the taxpayer and supported by proof of facts entitling it to be admitted as evidence or facts gathered from some other source which imports equal verity.” Du Page Liquor Store, Inc., 383 Ill. at 279, 48 N.E.2d at 927.

In Quincy Trading Post, Inc., this court stated the following:

“In Copilevitz [citation], the supreme court said that the Act and its regulations are ‘explicit in its demand for documentary evidence ***.’ The language of that case indicates that evidence corroborating statements of the taxpayer and other supporting data is necessary. A taxpayer has all of his books and records, so, if wrongfully assessed, he could easily overcome the prima facie case of the department at the hearing procedures provided. In short, the plaintiff may not prevail by merely saying its own return was correct, and that the revenue department must prove its return correct. Simply questioning the Department of Revenue’s return or denying its accuracy does not shift the burden to the Department of Revenue.” Quincy Trading Post, Inc., 12 Ill. App. 3d at 730-31, 298 N.E.2d at 793.

In the instant case, Sprague offered no documentary evidence showing that the sale of rock and the hauling of rock were separate transactions. In fact, Sprague’s sales invoices reveal one total charge for both the rock and the hauling. We therefore conclude that Sprague failed to overcome the Department’s prima facie case. Accordingly, we find that he owes the retailers’ tax for his hauling services.

Also at issue is whether Sprague is exempt from use tax for his two pickup trucks. Section 3(c) of the Use Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 439.3(c)) imposes a use tax on tangible personal property purchased at retail, but exempts several activities, including the following:

“the use, in this State, by owners, lessors, or shippers of tangible personal property which is utilized by interstate carriers for hire for use as rolling stock moving in interstate commerce as long as so used by interstate carriers for hire.” Ill. Rev. Stat. 1987, ch. 120, par. 439.3(c).

Again, Sprague failed to overcome the Department’s prima facie case. At trial, Sprague merely offered the testimony of his bookkeeper, who indicated that the trucks in question were used to haul for a mine service located in Indiana and to aid in the repair of tractor trailers. This evidence is insufficient as a matter of law. As previously noted, documentary proof of tax-exempt status is required to prevail against an assessment of tax deficiency by the Department.

Reversed.

SPITZ, J., concurs.

JUSTICE LUND,

concurring in part and dissenting in part:

The computation and assessment of liability by the Department for the retailers’ tax and use tax, taken from various records of those participating in sales, results in a prima facie case against the taxpayer. (Masini v. Department of Revenue (1978), 60 Ill. App. 3d 11, 14, 376 N.E.2d 324, 327.) Taxpayers cannot overcome the prima facie case by oral testimony. Adequate record keeping is necessary. (Copilevitz v. Department of Revenue (1968), 41 Ill. 2d 154, 156, 242 N.E.2d 205, 207.) The taxpayer’s argument that the prima facie rule should not apply to him because he is a hauler, not a retailer, cannot be sustained. We agree that all cases cited by the Department involved obvious retailers (Masini, 60 Ill. App. 3d 11, 376 N.E.2d 324; Copilevitz, 41 Ill. 2d 154, 242 N.E.2d 205; American Welding Supply Co. v. Department of Revenue (1982), 106 Ill. App. 3d 93, 435 N.E.2d 761; Pedigo v. Department of Revenue (1982), 105 Ill. App. 3d 759, 434 N.E.2d 860, appeal denied (1982), 91 Ill. 2d 572; Central Furniture Mart, Inc. v. Johnson (1987), 157 Ill. App. 3d 907, 510 N.E.2d 937, appeal denied (1987), 117 Ill. 2d 542, 517 N.E.2d 1084; Quincy Trading Post, Inc. v. Department of Revenue (1973), 12 Ill. App. 3d 725, 298 N.E.2d 789; Smith v. Department of Revenue (1986), 143 Ill. App. 3d 607, 493 N.E.2d 653; Terrace Carpet Co. v. Department of Revenue (1977), 46 Ill. App. 3d 84, 360 N.E.2d 153); or businesses assessed use taxes for items purchased without payment of sales taxes in Illinois (Colorcraft Corp. v. Department of Revenue (1986), 112 Ill. 2d 473, 493 N.E.2d 1066; Sundstrand Corp. v. Department of Revenue (1975), 34 Ill. App. 3d 694, 339 N.E.2d 351; Klein Town Builders, Inc. v. Department of Revenue (1966), 36 Ill. 2d 301, 222 N.E.2d 482; United Air Lines, Inc. v. Johnson (1981), 84 Ill. 2d 446, 419 N.E.2d 899). However, to allow a business which could be hauling and selling at retail to evade the prima facie rule does not make sense, and would put an untenable burden on the State in policing the payment of taxes. Adequate records must be kept, even as in this case, where the business is an unregistered account. The circuit court determined that Department regulations (86 Ill. Adm. Code §130.415 (1985)) did not govern the outcome of the case, basically holding that Sprague was not a retailer as defined by section 1 of the Act. This interpretation is incorrect.

However, the evidence indicates the correctness of the circuit court’s inferences that the parties intended that the title to the limestone passed to the consumer when Sprague picked it up as the consumer’s agent. All of the evidence indicated the gross profit (defined for purposes of this dissent as the sum received from the customer, less the amount paid by Sprague to the quarries for the limestone and the sales tax charged at the quarries) received by Sprague was the equivalent to his tariffs on file with the Illinois Commerce Commission (ICC).

Sprague’s hauling activities were governed by the Illinois Commercial Transportation Law (Ill. Rev. Stat. 1987, ch. 95½, par. 18c—1101 et seq.). The ICC covers “motor carriers,” which are defined as persons transporting property for hire. (Ill. Rev. Stat. 1987, ch. db^z, par. 18c — 1104(19).) I see no justification for ignoring this classification when determining Sprague’s status as an agent in contrast to one involved in resale.

The Department’s auditor, in preparing the return assessing the disputed tax, fixed the retailers’ tax based on the hauling rate established from the tariff which had been filed with the ICC by Sprague. He did not include the amounts paid to the quarries, because of the collection of the retailers’ tax at the quarries. Obviously, the Sprague records were sufficient to establish the breakdown of the cost of the rock at the quarries, the retailers’ tax paid to the quarries, and the actual cost of hauling.

Section 2 — 401(2) of the Code is not applicable to the facts in this case. Using that section presupposes that Sprague is a seller of limestone. If he is nothing more than an agent hauler, which the circuit court determined, then section 2 — 401(2) should not be considered. To conclude, as does the majority, that, because of the section, title passed to Sprague when the seller quarry placed the limestone in Sprague’s truck escapes logic. It is more reasonable to say, if Sprague is an agent for the consumer, the delivery to Sprague resulted in title being vested in the consumer.

I also see no similarity with the facts in Federal-Bryant Machinery Co. v. Department of Revenue (1968), 41 Ill. 2d 64, 241 N.E.2d 857, and the present case. There is no evidence of solicitation of orders, or the forwarding of orders. The Sprague business advertises hauling, and the business is licensed as a hauler. If you ask him to move a commodity from one port to another, you would pay the fixed tariff but retain title. If you want rock from a quarry, you actually reimburse Sprague for his advances and pay him for the hauling at the fixed tariff.

This case rests not on the issue of title, but on the issue of record keeping and itemized-billing procedures. Our supreme court stated that statutory provisions requiring that those who engage in retail sales keep adequate records are mandatory. (Copilevitz, 41 Ill. 2d at 157, 242 N.E.2d at 207.) I find no problem in extending these requirements to those who are not registered with the Department as retail sellers but who should, because of their activities, be audited by the Department. In the present case, the Department would require, in addition to records in existence at Sprague’s business, copies of itemized bills from Sprague to the consumer and a written contract between Sprague and the consumer providing for title to flow from the quarries to the consumer. I find the contract requirement under the facts in the case ludicrous.

Sprague operates out of Harrisburg, population 9,300, in Saline County, population 27,300. His customers necessarily include people from all over the area. When someone calls for a load of gravel for their driveway, to require them to come into the office and sign a written contract, or to have Sprague or one of his employees drive to their home to obtain a signature prior to going to the quarry, would be unreasonable. Sprague, as are many like-kind businesses throughout the less-populated counties of this State, is in the business of hauling, and is not necessarily a retailer. The nature of his business requires a practical look at the Department’s call for written agreements, and that look must result in a negative response to the call. While the Department justifiably has discretion in adopting regulations, we are not required to blindly sustain the application of those regulations. Terrace Carpet Co., 46 Ill. App. 3d at 90, 360 N.E.2d at 157.

The requirement for itemized billing is more reasonable, and should be adopted by those in the hauling business. While the hauling business could be operated so that the retailers’ tax liability is never incurred, the nature of the business could allow for buying rock, gravel, coal, and fertilizer, and reselling to the consumer. However, there was sufficient documentary evidence to overcome the prima facie case created by the auditor’s assessment. All of the evidence indicates Sprague was only receiving compensation based upon his tariff. Sprague should no more be called a retailer than a frog be called a prince.

I concur in the majority opinion as it relates to the use tax and the two pickup trucks. I dissent from the majority opinion, however, insofar as it reverses the circuit court on the assessment of the retailers’ tax.