author: MR. PRESIDING JUSTICE LYONS

text:
    Victor Hugo Elias Garces, Plaintiff-Appellee, v. Department of Registration and Education of the State of Illinois, Dental Examining Committee of Said Department, and William H. Robinson, Director of Said Department, Defendants-Appellants.
    Gen. Nos. 53,934, 54,020.
    First District, Second Division.
    December 16, 1969.

      William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe and Herman R. Tavins, Assistant Attorneys General, of counsel), for appellants.
    Joseph Minsky, of Chicago, for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by the defendants from an order of the Circuit Court in a proceeding under the Administrative Review Act (Ill Rev Stats (1967), c 110, §§ 264-279 inclusive), which order found that: (1) Rules V-A and V-B of the dental section of the Department of Registration and Education of the State of Illinois are void as being arbitrary and discriminatory; (2) the decision of the Department denying plaintiff admission to the examination for a license to practice dentistry in Illinois was against the manifest weight of the evidence and was reversed; (3) the plaintiff was entitled to take the examination; and (4) the Department was directed to admit the plaintiff to the dental licensing examination the next time it was given.

In September, 1967, the plaintiff filed his application for admission to the Illinois dental licensure examination. The application was accompanied by diplomas evidencing the degrees of Bachelor of Dentistry and Dental Surgeon from the Main National University, San Marcos of Lima, Peru; certified copies of course records covering the applicant’s four years of training in dentistry and one year of predentistry education at the Main National University, San Marcos; certified copies of documents showing the courses taken by him and grades earned during his five years of high school education required in Peru; a certificate from the Ministry of Health and Social Welfare of Peru certifying applicant as a registered oral surgeon in that country; a statement from a former employer that the applicant had been employed as an oral surgeon between 1958 and 1962; a statement of the Police Investigation Department that applicant had served as Orthodontologist at the National School of Police Investigations; a declaration of intention to become a citizen of the United States filed by the applicant in the Federal District Court in Chicago; recommendations from two individuals licensed to practice dentistry in the State of Illinois; scores earned by the applicant on the Science Achievement Examination of the American Dental Association; and a statement by the applicant relating to his experience and background.

In December, 1967, the Dental Examining Committee of the Department denied plaintiff’s application for entrance to the examination on the grounds that the Committee had concluded that the dental school from which he had graduated did not have rules and curricula commensurate with those of the University of Illinois Dental School, such conclusion being based upon the refusal of the University of Illinois to admit him to advanced training courses at its School of Dentistry. The denial was further based upon the finding of the Committee that the school from which plaintiff graduated was not accredited by the Council on Dental Education of the American Dental Association. These two bases of denial are established, under Rules V-A and V-B of the Department, as criteria for determining the reputability of dental schools.

Thereafter plaintiff filed his complaint for judicial review of the Department’s final administrative decision alleging, inter alla, that the denial of admission by the Department violated his constitutional rights in that Rules V-A and V-B are contrary to the Constitutions of Illinois and the United States since the rules were not promulgated by the Department but rather the Department unconstitutionally delegated its rule-making power to two outside bodies, the University of Illinois College of Dentistry and the American Dental Association. It was alleged that it was the actions of these bodies that established the criteria which the Department applied in determining the reputability of dental schools. The defendants’ answer to this complaint consisted of the application and attendant documents submitted to them by the plaintiff.

In the first of three amendments to the complaint, the plaintiff alleged, inter alla, that the actions of the Department violated his rights under the Fourteenth Amendment of the United States and under section 2 of Article II of the Illinois Constitution in that its conduct was arbitrary and discriminatory and operated to deprive him of property without due process of law since the Department had delegated, to two outside bodies, its statutory duty to determine the reputability of dental schools. In April, 1968, the Circuit Court entered an order reversing the decision of the Department which had denied plaintiff admission to the dental licensing examination. The trial court, retaining jurisdiction of the case, also remanded the cause to the Department and its Dental Examining Committee for a hearing on the question of whether the dental school from which the plaintiff graduated is a reputable one. Pursuant to this order, the Dental Examining Committee held a hearing in July, 1968, at which the following evidence was presented.

The plaintiff called as a witness Dr. Martin Unterman, a graduate of the University of Illinois Dental School and a licensed dentist in Illinois. He testified that he had, at the time of the hearing, employed the plaintiff as a laboratory technician for two years and during that time had conversed with him about dentistry. The witness testified that he had concluded from those conversations that the plaintiff was as knowledgeable as the graduates of American Dental Schools and that plaintiff’s training was comparable with that offered in American dental schools. Dr. Unterman also testified that if the plaintiff were allowed to take the examination and passed it, he would be considered for a position with the witness as a practicing dentist. During the past two years, the plaintiff had been in charge of the laboratory supervising four other employees and aiding in the complete reconstruction of dentures. Dr. Unterman stated that during this time the plaintiff had done the most technical work that could be done in dentistry in the laboratory. Dentists could not do this kind of work unless they had a good background and training for it.

The plaintiff then introduced into evidence a letter addressed to and received by Dr. Unterman. It was written by T. M. Graber, D.D.S., M.S.D., Ph.D., whom Unterman identified as a former professor at Northwestern University and other schools, an authority on dentistry throughout the world who had lectured in many foreign countries, an author of a dental textbook concerning orthodontics, and a highly respected dentist. In his letter Dr. Graber supplied the following information concerning San Marcos University:

“San Marcos is the oldest university in the western hemisphere. I have been there and lectured at the dental school and know some of the faculty personally. The dental school is one of the better ones in South America, is supported heavily with Kellogg funds, and has had a number of its faculty trained in the United States. I would think that the training is comparable with a number of schools in the United States, and superior to many throughout the world.”

Also admitted into evidence was an extract from the World Directory of Dental Schools, 1963, prepared by the World Health Organization and published by Columbia University Press which publication indicated that the dental course in Peru required four years of study with a nine-month academic year and a University faculty. Instruction is in the form of lectures and clinical and practical work. A student gains admission to the dental school if he has successfully completed one year of predental work conducted in the University faculty of science. Admission to predental school is limited and is handled by a Selection Board composed of the professors of the respective faculties of science and dentistry. To obtain a degree of Dental Surgeon, the candidate must fulfill four conditions precedent: (1) successfully complete the four-year dental course; (2) present and defend a thesis; (3) pass a written qualifying examination in medicine; and (4) pass a qualifying examination, written and practical, in dentistry.

The plaintiff then testified and stated that his education in Peru consisted of five years of elementary school, five years of secondary or high school, one year of predental school in the Science Faculty, and four years of dental school. His educational background was a normal one for a professional school graduate based upon a long established school system existing in Peru. The plaintiff went on to state that he was twenty when he entered dental school; that examinations and consideration of past academic achievement are the criteria used when application is made for predental and dental school at the University; that many applicants are not admitted; and that the school term in dentistry runs for nine months, from April through December. From January through March, the student is working in the summer clinic and is gaining practical experience. The plaintiff described in some detail the courses he had taken in dental school, the practical work required, his independent research in support of his thesis, and his final examinations for the degree of Dental Surgeon. In Peru, one can practice dentistry upon earning this degree. No other licensing examination is required.

The plaintiff then identified certain professional articles written by some of his teachers in the dental school. One of his general pathology professors had received a grant of $4,000 from the Damon Runyon Memorial Fund for Cancer Research. The plaintiff also identified photographs of the various laboratories and clinics at the dental school and a list of books kept in the dental school’s library, some of which were in the English language. These items were then introduced into evidence and made a part of the record. Finally, the witness testified that at the time of his attendance San Marcos was the only dental school in Peru; that prior to moving to the United States he was a general practitioner of dentistry in Lima, Peru, for seven years and also worked part time for the government in his professional capacity; and that he had scored above seventy-five in every one of the ten subjects covered in the two-day Science Achievement Examination of the American Dental Association which examination he had taken in the United States in 1967. Based on his observation of the practice of dentistry in the United States, he believed himself qualified to practice his profession here. In conclusion, the plaintiff stated that graduates of the University of San Marcos Medical School were allowed to take the medical examination in the United States; that he knew some such graduates who now lived and practiced their profession in Chicago; that the dental school is of the same quality as the medical school of the University of San Marcos; and that he was married and lived with his wife and two children in Chicago. This concluded the evidence offered in behalf of the plaintiff.

The Department of Registration and Education then called as a witness Mr. John Cody, assistant secretary for the Council on Dental Education of the American Dental Association. He explained that the Council is composed of nine people with three coming from the American Dental Association, three from the American Association of Dental Examiners, and three from the American Association of Dental Schools. Their task is to accredit dental schools if the educational institution meets the minimum requirements set by the Council. Schools are visited at least once every seven years and evaluated on the basis of administration, facilities, curriculum, faculty, libraries, research, advanced studies, and student achievement. The Council has no mechanism for accreditation of dental schools located outside the United States with the single exception of Canadian schools, which are accredited by reciprocal agreement with the Council on Education of the Canadian Dental Association. Prior to the existence of this agreement, Canadian schools of dentistry were not accredited in the United States. Cody did not know if the dental school from which the plaintiff had graduated was or was not a reputable one. It was not on the Council’s list of approved dental schools, but the school had never been tested by the Council with respect to the Council’s criteria and no plans had been formulated with respect to evaluating, for purposes of accreditation, dental schools located in South America. Cody was not personally fa.miliar with the dental school at Main National University, San Marcos. He did state that a foreign dental school could be reputable although not on the Council’s accreditation list.

The final witness called was Anthony J. Diekema, Director of Admissions and Records of the University of Illinois, Medical Center campus in Chicago, Illinois. He was not a dentist but held a Ph.D. degree in Sociology and Education and determined the educational qualifications of applicants for admission to the dental school of the University of Illinois. He stated that in considering applications for the admission of foreign dental graduates, their foreign academic background, their scores on the American Dental Association Science Achievement Examination, their proficiency in.the English language, and recommendations from professors under whom they had studied or colleagues with whom they had worked in the United States are the factors which must be evaluated. These criteria are used in screening applicants for admission but do not constitute a basis for evaluating the reputability of the dental schools from which they graduated. Diekema had no personal knowledge regarding the Main National University, San Marcos of Lima, Peru.

Two months later, the Dental Examining Committee found that the Main National University, San Marcos dental school is not a reputable dental school within the meaning of the Illinois Dental Surgery Act (Ill Rev Stats (1967), c 91, §§56-72 inclusive) in that the school neither has rules and curricula commensurate with that of the University of Illinois dental school, nor has been accredited by the Council on Dental Education of the American Dental Association. The Committee also found that the plaintiff’s dental school did not include, as part of its curriculum, sufficient clinical experience in Orthodontics, Pedodontics, Periodontics, or Prosthodontics.

The plaintiff thereafter filed his petition for reconsideration of the Committee’s findings which petition mentioned that he had been admitted to the University of Illinois dental school as a student with advanced standing. He later filed the second and third amendments to his complaint. The second amendment detailed the evidence presented to the Dental Examining Committee, its decision, and asserted that this decision was opposed to the manifest weight of the evidence and, in addition, Rules V-A and V-B of the Department were unconstitutional for the same reasons alleged , in the first amendment to the complaint. The third amendment to the complaint alleged that the Director of the Department of Registration and Education had denied the petition for reconsideration and asserted that this was error for the reasons alleged earlier in the complaint and the two amendments thereto. After the Department filed its answer to these pleadings which answer consisted of the report of proceedings of the hearing before the Dental Examining Committee and a copy of the denial of the petition for reconsideration, the trial court entered its final order in favor of the plaintiff and against the defendants from which the defendants appeal seeking a reversal.

The defendants urge that Rules V-A and V-B of the Department are reasonable, necessary and constitutional and that the plaintiff did not meet his burden, before the Dental Examining Committee, of establishing by satisfactory proof that he is a graduate of and has a diploma from the faculty of a reputable dental college, dental school, or dental department of a reputable university.

In section 58a of the Illinois Dental Surgery Act (Ill Rev Stats (1967), c 91, §§56-72 inclusive), the Legislature has placed with the Department of Registration and Education the power to prescribe rules and regulations defining what shall constitute a reputable dental school, college, university, or department of a university as well as determining such reputability, when the need arises, by reference to a compliance with such rules and regulations. By virtue of the same section of this statute, the Director of the Department exercises these rule-making and determination powers only upon the action and report in writing of a majority of the Dental Examining Committee of the Department. This Committee is composed of seven persons appointed by the Director from time to time, each of whom has been a licensed practitioner of dentistry or dental surgery in Illinois for five years or more and none of whom is in any way connected with or interested in any dental college or dental department of any institution of learning. In section 66 of the Dental Surgery Act, the Legislature has provided the detailed requirements for the recognition, in Illinois, of a dental license granted by a licensing board of another state or territory. If this other license is recognized by the Department, the dentist need only pass the practical examination as he is excused from the written examination in theory. Since 1915 the Legislature has limited reciprocity to properly licensed dentists who otherwise meet the detailed statutory requirements found in chapter 91, section 66, and who come into Illinois from other states or territories. The statute does not extend reciprocity to graduates of dental schools located abroad or in Canada, Mexico, or Cuba who come to Illinois to reside. These dentists, to lawfully practice their profession in Illinois, must apply for admission to take the dental licensing examination although they might have practiced dentistry in their native lands.

Section 58 of the Dental Surgery Act requires, in relevant part, that this application be sent to the Department of Registration and Education and that the applicant must present satisfactory proof that he: (1) is of good moral character; (2) is a citizen of the United States or has made a declaration of intention to become one and has filed a petition for naturalization within thirty days after becoming eligible to do so; (3) is twenty-one years of age or over at time of application; and (4) is a graduate of, and has a diploma from, the faculty of a reputable dental college, school or dental department of a reputable university. If satisfied, the Department then notifies the applicant to appear at a specified time and place for a written examination in all theoretic subjects as well as a practical examination. Pursuant to section 58a of the statute, the Department of Registration and Education has the duty of conducting examinations and issuing dental licenses to the successful applicants on the report in writing of the Dental Examining Committee. Section 58 of the Dental Surgery Act requires that no person can begin to practice dentistry or dental surgery in Illinois without first applying for and obtaining a license for such purpose from the Department. Finally, section 62 (f) provides that all final administrative decisions of the Department are subject to judicial review pursuant to the Administrative Review Act (Ill Rev Stats (1967), c 110, §§ 264-279 inclusive).

In accordance with the rule-making power granted by the Legislature to the Department of Registration and Education allowing the state administrative agency, on the written report of a majority of the members of its Dental Examining Committee, to prescribe rules and regulations defining what shall constitute a reputable dental school, college, university, or department of a university, the Department has adopted Rules V-A and V-B. These rules specify two alternative ways in which a dental educational institution will be classified as reputable thereby allowing its graduates to be admitted to the Illinois dental licensure examination if reciprocity is not permitted. Rule V-B says that if the dental school has been approved by the Council on Dental Education of the American Dental Association, the Department will consider it to be reputable. Rule V-A states that if the particular dental school has rules and curricula commensurate with and equivalent to the rules and curricula of the University of Illinois, College of Dentistry, the Department will consider it to be reputable.

The instant case does not involve any claimed unlaw-. fui delegation of power by the Legislature to an administrative agency. What is involved is an alleged improper exercise, by the Department of Registration and Education, of a power properly delegated to it by the Legislature. The parties to this litigation have so briefed and argued their respective causes. Furthermore, the Department has never contended, in either the trial court or in this court of review, that the predental or high school education of the plaintiff is inadequate. Only the reputability of the dental school from which he graduated is involved in the case at bar. Inasmuch as the Department urges that its Rules V-A and V-B are reasonable, necessary and constitutional, we must first address ourselves to this point.

All parties to this litigation agree that the courts have the power and the duty to determine whether the rules of the Department are reasonable and impartial or are arbitrary and unreasonable. Kettles v. People, 221 Ill 221, 231-32, 77 NE 472, 475 (1906); People v. Love, 298 Ill 304, 313, 131 NE 809, 812 (1921); People ex rel. Schutz v. Thompson, 325 Ill App 95, 99, 59 NE2d 494, 497 (1945). The defendants contend that Rules V-A and V-B represent no delegation of any kind by the Department to two outside agencies but rather are a practical interpretation and guide as to what constitutes a reputable dental school. It is also asserted that the two rules set forth an easily ascertainable standard to be applied by the Department thereby avoiding confusion and distrust and represent a practical alternative since, without them, the Dental Examining Committee would have to visit every dental school throughout the world in order to determine by on-the-site inspections whether or not it was reputable. We are not persuaded by such contentions. If a rule is unconstitutional, it does not become constitutional if it imposes an easily ascertainable standard. For the Dental Examining Committee to meet its legislative duty, we fail to see why it should be necessary for it to conduct on-the-site inspections of dental schools located throughout the world. If this Committee were to meet its duty by holding fact-finding hearings and inviting representatives of properly accredited dental schools in Illinois, it could draw on the expertise of these men interested in dental education as well as the knowledge of members of the Committee who are practitioners of dentistry and in this way could formulate a curriculum which would represent the minimum requirements of a reputable dental school. Such a curriculum could be presented to the Department which presumably would accept and promulgate it in its rules and regulations as a matter of record. The curriculum of other dental schools, no matter where located in the world, could then be compared with the minimum curriculum as formulated by the Committee. Future action would be determined by this comparison and on-the-site inspections of dental schools would be unnecessary. The level of instruction at these dental schools would be demonstrated, in the democratic tradition, by the grades of their students at the practical and theoretical dental licensing examination. Such a student, if otherwise qualified, would not be barred from taking such examination.

We find that Rules V-A and V-B are invalid as they represent an arbitrary and unreasonable delegation of power from the Department to two organizations independent of it. The Legislature has imposed a duty on the Department of Registration and Education, through its Dental Examining Committee, to pass rules and regulations defining a reputable dental school. By Rules V-A and V-B the Department has in turn unreasonably and arbitrarily delegated its duty to the American Dental Association and the University of Illinois Dental School. Although the Legislature has looked to the Department to define the standard of reputability, the Department has, in turn, looked to two bodies independent of it. In People ex rel. Sheppard v. Illinois State Board of Dental Examiners, 110 Ill 180, 185 (1884), the court stated that whether a dental college is reputable or not is a question of fact which the statute submits to the decision of the administrative agency and no other tribunal is authorized to investigate the facts and exercise judgment and discretion in the matter. In Illinois State Board of Dental Examiners v. People ex rel. Cooper, 123 Ill 227, 244, 13 NE 201, 203 (1887), the court held that it was error for the administrative agency to refer the matter of reputability to the National Association of Dental Examiners. The reviewing court also stated that the statute clothed the agency, and no other body, with the power to decide the question of reputability and that therefore it could not delegate its discretionary power to an organization beyond the limits of the State of Illinois.

In the instant case, Rule V-B specifies that a dental school is reputable if it is on the list of dental schools approved by the Council on Dental Education of the American Dental Association. By this rule the Department has abdicated its responsibility, under the statute, to define the legislative standard of reputability and has thereby violated the legal principles enunciated in People ex rel. Sheppard v. Illinois State Board of Dental Examiners, 110 Ill 180 (1884) and Illinois State Board of Dental Examiners v. People ex rel. Cooper, 123 Ill 227, 13 NE 201 (1887). Rule V-B has acted to the actual prejudice of the plaintiff since a representative of the Council on Dental Education of the American Dental Association testified that the Council has no mechanism for the accreditation of dental schools located outside the United States with the exception of Canada and yet the plaintiff was denied admission to the examination. We hold that Rule V-B is arbitrary, unreasonable and invalid, being in violation of due process as protected by both the Federal and Illinois Constitutions.

Rule V-A is also invalid for the same reasons since the Department has not itself defined the legislative standard of reputability but has looked to the University of Illinois, College of Dentistry. No reason is suggested in this record why this should be the only dental school relied upon. Indeed, the educational standards existing at this school might well exceed the minimum standards to be found in a reputable dental school as determined by the Committee and recommended to the Department. Furthermore, the standard of reputability might possibly change due to alterations in the curriculum made at the University of Rlinois College of Dentistry but rejected at other accredited dental schools in the State. Fairness to foreign and out-of-state applicants requires that the Dental Examining Committee meet its statutory duty by holding hearings and thereafter establishing its own uniform, reasonable, and minimum standard of educational requirements which would determine whether a dental school, no matter where located, be reputable. The Committee could invite, to its hearings, representatives from all accredited dental schools or colleges located in Illinois as well as representatives of the Council on Dental Education of the American Dental Association and the National Board of Dental Examiners. In this way the Committee itself will be acting as a fact-finding body in cooperation with representatives of dental education in Illinois as well as others from outside Illinois who will inform the Committee of the standards of dental education existing throughout the country. Relying upon the expertise of these representatives as well as their own expertise as practitioners, the Committee must ultimately establish a curriculum of subjects and total hours of instruction in each subject to be taught by a competent faculty for a dental school to meet the minimum requirements of reputability. The Legislature, in section 58a of the Dental Surgery Act, has already stated that these subjects must be given in four courses of instruction of at least eight months each.

Alternatively, the Committee could prepare, after discussion with representatives of Illinois accredited dental schools, the American Dental Association, and the National Board of Dental Examiners, a list of dental schools found in Illinois whose curriculum is consistent with the minimum requirements of a reputable dental school. This list could then be recommended and presented to the Director for his approval, and the Department could thereafter promulgate it in its rules and regulations. The curriculum of applicants who have graduated from dental schools located throughout the United States, if reciprocity cannot be granted in a given case, as well as the curriculum of those applicants who have graduated from foreign dental schools can then be compared with the minimum curriculum of a reputable dental school as determined by the Committee or with the curriculum of reputable dental schools in Illinois which appear on the Committee’s approved list. The applicant would then be accepted or denied admission to the examination. If the application is denied, the Committee could recommend that the Department adopt a rule stating that all rejected applicants are required to take such post-graduate work in a reputable dental school in this country as would cure the educational weakness and would entitle the applicant to take the examination later. In this way, the Department, through its Dental Examining Committee, would be determining and establishing its own independent definition of reputability and would be exercising its own professional expertise as the Legislature has sought to be done and as the judiciary has stated must be done. We offer these alternatives only as suggestions and guidelines to the Dental Examining Committee and do so because the defendants have supported the validity of the Department’s rules by contending that they are practical alternatives to the Committee’s otherwise having to make on-the-site inspections of dental schools throughout the world.

Since the Legislature has decided that all applicants for the dental licensing examination must establish, by satisfactory proof, that he or she is a graduate of and has a diploma from a reputable dental school, we must examine the evidence to see if the plaintiff has met his burden of proof. In Illinois State Board of Dental Examiners v. People ex rel. Cooper, 123 Ill 227, 13 NE 201 (1887), the court defined reputable as being “worthy of repute or distinction; held in esteem; honorable; praiseworthy.” From the letter of Dr. Graber in which he stated that he had taught at the plaintiff’s dental school and the training there is comparable with a number of schools in the United States; from the testimony of another dentist, Dr. Unterman, who stated that he had talked with the plaintiff and had concluded that he was as knowledgeable as the graduates of American dental schools and his training was comparable with that offered here and he continued to employ the plaintiff as a laboratory technician and supervisor of four other employees in the laboratory; from the educational information regarding the plaintiff’s dental school contained in the World Health Organization’s Directory of Dental Schools; from the testimony of the plaintiff himself regarding his dental education in Peru and from the documents admitted into evidence showing the courses he had taken there in dental school; and from the scores which the plaintiff earned in the Science Achievement Examination of the American Dental Association, the conclusion is inescapable that he is, in fact, a graduate of and has a diploma from, a reputable dental school. He deserves the right to sit for the Illinois dental licensure examination.

The Committee also found that the plaintiff’s dental school did not include, as part of its curriculum, sufficient clinical experience in Orthodontics, Pedodontics, Periodontics, or Prosthodontics. We have carefully searched the record and have found no evidence presented by the defendants against which the plaintiff’s evidence could be compared on this point. We must conclude that the Dental Examining Committee went outside the record and acted on its own information when entering this finding. Due process of law requires, however, that findings must be based on evidence presented in the case so that an opportunity is given to all parties to cross-examine the witnesses and to offer evidence in rebuttal. Smith v. Department of Registration and Education, 412 Ill 332, 345-49, 106 NE2d 722, 729-31 (1952); Rutledge v. Department of Registration and Education, 77 Ill App2d 103, 123, 222 NE2d 195, 205 (1966). Since due process was not followed in the instant case, this finding of the Committee will not prevail.

The order is affirmed.

Order affirmed.

BURKE and McCORMICK, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE ABRAHAMSON

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence D. Barrett, Defendant-Appellant.
    Gen. No. 68-170.
    Second District.
    December 19, 1969.

      John R. Snively, of Rockford, for appellant.
    Dexter A. Knowlton, State’s Attorney, of Freeport, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

An information consisting of two counts was filed against the defendant, Lawrence D. Barrett, on July 30, 1968, in Stephenson County. The first count charged the offense of burglary and the second count charged the offense of attempted burglary. Thereafter, defendant waived prosecution by indictment and entered a plea of guilty to attempted burglary and was sentenced to the Illinois State Penitentiary for a term of not less than one year nor more than seven years. Leave to appeal within six months was allowed by this court.

Defendant contends that the information does not state an offense; that the waiver of the indictment was void; that the trial court accepted the plea of guilty without explaining the nature of the charge and the consequences thereof, if found guilty; and, that defendant should have been released on probation or the maximum sentence should be reduced as excessive.

As to defendant’s contention that the information does not state an offense, Count I of the indictment is as follows:

“. . . that Lawrence D. Barrett late of said County and State aforesaid, on to-wit: the 16th day of July in the year of our Lord, One Thousand Nine Hundred and 68 at and within the said County of Stephenson in the State of Illinois aforesaid, knowingly committed the offense of burglary in that he knowingly entered a garage building owned by Larry Lestikow and John Trimble, located in Dakota, Illinois with intent to commit therein the offense of theft, in violation of Chapter 38, Illinois Revised Statutes (1967) Section 19-1. . . .”

and Count II states:

“. . . that Lawrence D. Barrett late of said County and State aforesaid, on to-wit: the 16th day of July in the year of our Lord, One Thousand Nine Hundred and 68 at and within the said County of Stephenson in the State of Illinois aforesaid, knowingly committed the offense of attempt in that he knowingly broke a window from a window of a garage building owned by Larry Lestikow and John Trimble and located in Dakota, Illinois and with the further intent in him to commit the offense of theft therein, in violation of Chapter 38 Illinois Revised Statutes (1967) Section 8-4. . .

Count I was nolie prossed and defendant pleaded guilty to Count II, the attempt charge. Defendant complains that this information does not charge an intent to commit a specific offense and that the offense of burglary is not mentioned in the second count. Therefore, he maintains that the information is vague, uncertain and void and does not comply with the guarantee that the accused shall have the right to know the nature and cause of the accusation against him so as to enable him to prepare for his defense and to plead the judgment in bar of a subsequent prosecution for the same offense. The attempt charge sufficiently complies with statutory form. Ill Rev Stats 1967, c 38, § 111-3. The charge sets forth the nature of the charge of attempt, to wit: “in that he knowingly broke a window from a window of a garage building . . . with the further intent in him to commit the offense of theft therein.” The charge can only relate to the particular garage building and the only crime consisting of entering a building with the intent to commit a theft is burglary.

This information sufficiently apprises the defendant of the charge so that he is able to prepare his defense and is protected from further prosecution for the same offense. Furthermore, when the court asked defendant how he wished to plead, his answer was, “guilty as to attempted burglary, and not to the other charge.”

Defendant states that the waiver of the indictment is void because he did not understand the nature of the crime with which he was charged and was not informed of the punishment for burglary or attempted burglary before waiving indictment. At the time of the waiver of indictment the defendant had consulted with the Public Defender and was represented by him. From a reading of the record it is clear that the trial court properly advised the defendant of all his rights as required by statute and Supreme Court rule. Ill Rev Stats 1967, c 38, § 111-2 and c 110A, Rule 401. The admonition of the trial judge was clear and complete. It also appears that the defendant received a copy of the charge and executed in writing a waiver of indictment. The contention of the defendant that he did not understand the nature of the charge is without merit.

It is also claimed that defendant, at the time he waived indictment, did not understand the consequences of the charge if found guilty because he was not informed of the possible punishment. This claim also has no merit. In People v. Davis, 103 Ill App2d 239, it was stated at p 241:

“Since prosecution by information following waiver of indictment does not, as the trial court so stated to defendant, alter or supersede the right to trial by jury, the admonition of the maximum and minimum sentence that could be imposed is not a necessary element of the admonition concerning waiver of indictment. The proceedings at issue were governed under the former Supreme Court Rule 26(3), chapter 110, § 101.26, S-H Ann Stats 1956, (now Supreme Court Rule 401, chapter 110A, § 401, S-H Ann Stats). The language of both the Rule and the ‘Practice Notes’ of the first cited make clear that the admonition required upon waiver of indictment differs from that required before accepting a plea of guilty. Each admonition serves a different function.”

A similar contention of the defendant is that the trial court accepted the plea of guilty without fully explaining to the defendant the nature of the charge against him and the consequences thereof, if found guilty. The record reveals that the trial judge properly advised the defendant of the nature of the charge and the consequences thereof, if found guilty, before he accepted the plea of guilty. Conversely, defendant complains that the admonition was too extensive because defendant was advised that after a plea of guilty he could make application for probation and have a hearing. It is said that such advice may improperly induce a defendant to plead guilty.

The court’s explanation of the statutory right to apply for probation and to have a hearing on mitigation is not a necessary element of admonition. The remarks were gratuitous but certainly do not require this court to condemn the practice as inducing a defendant to plead guilty.

Finally, defendant contends that he should have been released on probation or, in the alternative, that the sentence should be reduced as excessive. The hearings on probation and aggravation and mitigation were combined and the testimony of Carl Smucker, an Illinois Youth Commission parole agent, revealed that the defendant had committed numerous offenses as a juvenile, had twice been committed to the Youth Commission, and twice returned as a parole violator. At the time of the offense we are now concerned with he was an escapee from the St. Charles facility of the Youth Commission. At the trial defendant agreed with Mr. Smucker’s testimony concerning the history of delinquency. He now claims that the court erred in permitting Mr. Smucker’s testimony without examining the records of delinquency or having them introduced into evidence. Defendant’s attorney had the opportunity to cross-exam-inc Mr. Smucker and did so, but he made no objection to the procedure or the testimony. The defendant also complains that a probation officer’s report was inadequate, but this point has not been properly preserved for review. We find no error in the manner in which the hearing was conducted. The trial court did not abuse its discretion in denying probation and in sentencing the defendant. Although the defendant was only 17 years old at the time of sentencing, his record of committing numerous offenses and as a parole violator justified the court in denying probation.

With regard to the one- to seven-year sentence, the defendant has a right to parole consideration at the expiration of eleven months and there would be sufficient parole supervision, if granted, to assist defendant in his rehabilitation. Under these circumstances, we do not consider the sentence as excessive.

The judgment of the Circuit Court of Stephenson County is affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: ALLOY, J.

text:
    The Department of Public Works and Buildings, State of Illinois, etc., Petitioner-Appellee, v. Frederick Forbeck, Jr., et al., Defendants-Appellants.
    Gen. No. 68-69.
    Third District.
    December 22, 1969.
    Rehearing denied January 19, 1970.
    McNeilly & Olivero, of Peru, for appellants.

      William J. Scott, Attorney General of State of Illinois, of Chicago (Bruno P. Bernabei, Special Assistant Attorney General, of Spring Valley, and Donald Martin, Special Assistant Attorney General, of Princeton, of counsel), for appellee.
   ALLOY, J.

This is an appeal from a judgment of the Circuit Court of Bureau County awarding defendant Frederick For-beck, Jr., $35,500. The record discloses that the Department of Public Works and Buildings filed a petition in eminent domain as against a portion of the land of Frederick Forbeck, Jr. on July 20, 1967. The Department sought acquisition of 40.81 acres for Interstate Route 180 and an easement over 3.21 acres for three years. Appellant was the owner of 549 acres as a unit in the area. The entire tract is on the west bank of the Illinois River. The record shows that appellant had a cornfield on a portion of the 40.81 acres taken and 13 acres out of a total of 21 acres in the cornfield were taken. The taking left about 12 to 13 acres south of the road, with the balance of the acreage located north of the road. The land was primarily used for duck hunting and timber sales and only 22 acres were used for crop land.

At the trial of the cause, two appraisers appeared for the Department of Public Works and two for the appellant, Frederick Forbeck, Jr., Francis Gutschenritter, a professional real estate appraiser who testified for the department, placed the value at $10,200 for the 40.81 acres and 3.21 acres taken and he further testified that there were no damages to the remainder. Truman Esmond, also a licensed real estate broker, who testified for the department, placed the valuation at $12,700 of the 40.81 acres, $482 to the 3.21 acres and fixed damages to the remainder not taken at $5,425, making a total of $18,607. Both appraisers testified that the best use of the land was for agricultural and recreational purposes. On behalf of appellant, Watson Lawton, an appraiser and farm manager, testified that he thought the best use of the land was for commercial and recreational purposes and set the value of the land taken at $31,910 and $242,985 as damages to the remainder for a total of $274,895. Ben Kaszynski also testified for appellant that the best use of the land was commercial and industrial and he valued the land taken at $61,200 with $265,980 in damages to the remaining land, making a total of $327,180. As indicated, following the trial the jury returned a verdict of $35,500 for property taken and awarded no damages for the remainder of property not taken.

The trial court entered judgment on the verdict in the sum of $35,500. In the judgment order entered on February 23, 1968, the trial court recited the verdict of the jury and found that the petitioner had deposited with the clerk the sum of $23,258.75 of which $18,607 was paid over to the owner pursuant to statute, leaving a deposit with the clerk of $4,651.75. The court further found that such sum of $4,651.75, together with the further sum of $12,241.25, with interest on the sum of $12,241.25 to be computed at 6% per annum from the date of possession by petitioner to date of payment of said $12,241.25 “all in full and final satisfaction of the judgment entered herein,” be paid to defendant.

A motion for new trial was filed thereafter which was denied by the trial court. Notice of appeal was filed from the order of the trial court denying the post-trial motion and requesting that the cause be remanded for new trial, on April 25, 1968. Thereafter, on July 5, 1968, a certificate of compliance with the judgment was filed by the Department of Public Works and Buildings reciting that the court on February 23, 1968, entered the judgment order referred to and stating that the petitioner pursuant to and in compliance with the order did pay the amount of the judgment together with interest as provided by statute. Defendant accepted the award and now still attempts to appeal from the trial judge’s denial of the post-trial motion. Following the filing of such appeal in this Court, the plaintiff Department of Public Works and Buildings filed a motion to dismiss the appeal. This Court had originally entered an order granting such motion but vacated such order for the purpose of reconsideration of the motion to dismiss the appeal. The question basically before this Court is whether the motion to dismiss the appeal should be allowed by reason of the fact that defendant-appellant accepted the amount of the award in satisfaction of the judgment.

In the recent case of County of Cook v. Malysa, 39 Ill2d 376, 235 NE2d 598, the facts were somewhat different from the case before us in that in the Malysa case, the County of Cook attempted to appeal after voluntarily paying the amount of the award and accepting title to the property. The Supreme Court of this State stated in such case, at page 379:

“Rather we would adhere to the general rule in civil cases that when a judgment has been voluntarily paid or its benefits accepted the question becomes moot. (Massell v. Daley, 404 Ill 479; 2 ILP, Appeal and Error, p 176.) ”

The court further stated, at page 380:

“While such result is not spelled out in the Illinois statute, we think that it must follow. While the precise question presented here was not involved, we read the prior decisions of Illinois courts to indicate that a property owner may not accept the fruits of an award and later appeal from the judgment setting such award. Moll v. Sanitary District of Chicago, 228 Ill 683; Union Mutual Life Ins. Co. v. Slee, 123 Ill 57; Kile v. Town of Yellowhead, 80 Ill 208.
“We believe that it is a salutary rule that a party who either voluntarily satisfies a judgment under no legal compulsion or voluntarily accepts the fruits thereof has waived any error in the proceedings.”

The principles announced in the Malysa case are applicable in the instant case. We do not believe there is any basis for permitting a party to an adjudication to avail himself of those parts of the judgment which he deems to be beneficial to him and afterwards seek to reverse those parts which he feels are unfavorable to him.

Accordingly, we believe that the motion to dismiss the appeal was well taken and that the appeal in this cause should be dismissed pursuant to such motion. The appeal in this cause is, therefore, dismissed.

Appeal dismissed.

STOUDER, P. J. and TRAPP, J., concur.


author: MORAN, P. J.

text:
    In the Matter of the Estate of Antonio Dal Paos, Deceased.
    Gen. No. 69-36.
    Fifth District.
    December 22, 1969.

      Daniel G. Reese, of Taylorville, and Vernon H. Houchen, of Decatur, for appellants.
    Robert D. McWard, of Taylorville, for appellee.
   MORAN, P. J.

Claimant, Anna DeRochi, filed a claim in the Probate Division of the Circuit Court of Christian County against the estate of Antonio Dal Paos for services rendered to the decedent during his illness for the five years immediately preceding his death. The legatees under the will of decedent objected to the claim, and after a trial without a jury, judgment was entered for claimant for $6,500, plus costs, from which the legatees appeal.

Claimant had been acquainted with decedent prior to her husband’s death in 1936. In 1942, decedent moved into her home on West Third Street in Taylorville, Illinois, where he lived until 1952, paying $16 per week for room and board. At that time claimant and decedent purchased a home together on Pawnee Street in Taylor-ville. Each paid one-half of the $6,600 purchase price and the title was placed in joint tenancy with right of survivorship. From that time until the death of Antonio Dal Paos, each paid one-half of all expenses incurred, including bills for real estate taxes, utilities and groceries. During this period claimant did all the housework, cooking and laundry and helped with the yard work. Decedent did some yard work except for the last two years, when because of his age and illness he was unable to help, even though he could walk without a cane. He died at the age of eighty-four.

The record shows that decedent, had prostate trouble and a bad heart, and although he was hospitalized only once for one week, his condition caused claimant to perform additional laundry and nursing duties during the last five years, and more so during the last two, as decedent’s physical condition rapidly deteriorated. Because of his prostate trouble, it was necessary to change the sheets on his bed each morning. The reasonable value of these services was shown to be $40 to $50 per week; however, the claim is for only $25 per week. No one else helped care for the decedent. Several neighbors testified that they saw claimant doing laundry and housework on many occasions.

Claimant testified that on many occasions decedent told her, “You take care of me and I take care of you. If I die, I leave for you everything.” A neighbor who had known claimant and decedent for over forty years testified that decedent told her that claimant would never have to worry and that he would take care of her. At no time did claimant present a bill to decedent or demand payment for her services.

The trial court found that there was an implied contract between decedent and appellee for services, that the services were rendered, that they were not paid for, that the decedent intended they should be paid for, that appellee did not intend that the services should be gratuitous, and that the proof of value of services was within the amount demanded.

Appellants contend that since claimant and decedent lived alone together for sixteen years a family relationship existed, and therefore the services rendered are presumed to be gratuitous, and that there are no facts or circumstances to support an inference that both parties contemplated payment for claimant’s services which would rebut that presumption.

As stated in Heffron v. Brown, 155 Ill 322, 326, 40 NE 583:

“Where services are rendered by one admitted into the family as a relative, the presumption of law is that such services are gratuitous, and that the parties do not contemplate the payment of wages therefor. This presumption, however, may be overcome by proof. The proof necessary to overcome the presumption may be either of an express contract, or of a contract established by such facts and circumstances as show that both parties, at the time the services were rendered, contemplated or intended pecuniary recompense other than that which arises naturally out of the family relation.”

However, we do not believe that a family relationship existed between claimant and decedent; therefore, the presumption that the services were gratuitous is not applicable. They were not related by blood or marriage, and there is no evidence or contention that they lived together as man and wife. The original express agreement between them in 1942 whereby decedent paid room and board brought them together as members of the same household, but not into a family relationship. In 1952 the arrangement changed, but again under an express agreement to share expenses equally. Their continued residence together was pursuant to this agreement. They lived in the same household for twenty-six years, but were never married. Neither party loaned or gave money to the other, nor did decedent ever give or bequeath any money to claimant’s children.

These factors indicate that claimant’s services were not rendered in discharge of the mutual moral or legal obligations of a family relationship and refute appellants’ assertion that such a relationship existed. Appellants have not cited any cases or adduced any evidence which would require a finding that such a relationship existed.

Under these circumstances, it is not necessary to prove that the services were rendered under an express contract; nor is it necessary for claimant to prove that she expected to receive payment and decedent expected to pay for her services. Floyd v. Estate of Smith, 320 Ill App 171, 175, 50 NE2d 254; In re Estate of Brumshagen, 27 Ill App2d 14, 22, 169 NE2d 112. Where services are rendered by one person for another, which are knowingly and voluntarily accepted, without more, the law presumes that such services were given and received in the expectation of being paid for, and implies a promise to pay their reasonable worth. In re Estate of Foster, 46 Ill App2d 319, 326, 197 NE2d 257; 58 Am Jur, Work and Labor, § 6. Claimant’s evidence of services of value beyond those contemplated by their express agreement to share expenses, performed by claimant for decedent and received and accepted by him, is sufficient to support an implied promise on the part of decedent to pay the reasonable value of such services.

However, assuming that such a family relationship did exist, we believe that there is sufficient evidence in the record to rebut the presumption that the services were gratuitous and to support the finding of the trial court that there was an implied contract to pay for the reasonable value . of the services. The presumption diminishes in direct proportion to the remoteness of the degree and character of the family relationship and the character of the duties performed. Quigly v. Harold, 22 Ill App 269; 58 Am Jur, Work and Labor, § 15, and may be overcome by proof of facts or circumstances which show that the deceased intended that compensation would be paid and that the claimant intended to receive compensation, both intentions existing at the time the services were rendered. In re Estate of Lyons, 303 Ill App 642, 25 NE2d 555.

The record shows that decedent made repeated promises to claimant that if she cared for him he would pay for those services, and that he led her to believe she would be compensated. These promises and the burdensome nature of the nursing, laundry, cooking and housekeeping chores performed by claimant support the finding that she expected to receive payment. There is no evidence to require a finding that either party intended these services to be gratuitous.

In this respect the present case is similar to In re Estate of Lyons, supra, where expressions of decedent that “he did not know how he could get along without his sister-in-law keeping house for him, and that he was really going to take care of her later on,” were considered sufficient to rebut the presumption that services performed by a relative were presumed to be gratuitous. See also In re Estate of McWain, 77 Ill App2d 359, 222 NE2d 576.

Appellants stress the facts that claimant never made a demand for payment on decedent before his death, that they never mentioned an amount to be paid for her services, that decedent had a substantial bank account and that he had a reputation for paying his debts promptly, and argue that it is incredible that decedent did not pay claimant if that was intended.

It seems clear from the testimony that claimant expected to receive a substantial bequest in lieu of periodic payment during decedent’s lifetime. In view of the repeated promises made by decedent, it was unnecessary for her to press demands for immediate payment. Furthermore, as stated in In re Estate of McWain, supra, at 367:

“. . . The mere fact that there was no specific agreement as to the amount to be paid for the services, or the time of payment, would not prevent the implication of a promise to pay for necessary services requested and faithfully performed.”

Under these circumstances we believe that a sufficiently definite set of circumstances existed to form an evidentiary basis for the trial court to find an implied contract to pay the reasonable value of those services.

This case was tried before a court without a jury, and we will not, as a reviewing court, interfere with the findings of fact of the trial court which were based upon the statements of witnesses whom he saw and heard testify, unless the judgment is clearly against the manifest weight of the evidence. Floyd v. Estate of Smith, supra, at 177.

In our opinion, the findings of the trial court are not contrary to the manifest weight of the evidence. The judgment is therefore affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


text:
    Eugene R. Walls, Sr., et al., Plaintiffs-Appellees, v. John Jul, et al., Defendants-Appellants.
    Gen. No. 69—66.
    Second District.
    December 23, 1969.

      Fearer & Nye, of Oregon, Dixon, Devine, Ray & Morin, of Dixon, and Wilson and Frederick, of Springfield, for appellants.

      John B. Cashion and John D. Hayes, of Chicago, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the judgment of the Circuit Court of Lee County awarding $15,000 property damages under the Dram Shop Act (Ill Rev Stats 1965, c 43, § 135) to plaintiffs, Eugene R. Walls, Sr. and Connie Walls, parents of Eugene R. Walls, Jr., who was severely injured in an automobile accident after allegedly consuming vodka purchased at the Rainbow Inn in Dixon. The action was brought against John Jul, owner of the tavern and liquor store known as the Rainbow Inn, his employee, Verna Crowder Powers, and the property owner, Carl Petersen.

The issues raised in appellant’s brief are (1) whether plaintiffs established the fact of intoxication, (2) whether the trial court ruled correctly on certain objections to evidence, (3) whether the jury was improperly instructed, and whether the court erred in failing to grant to defendants relief in light of plaintiffs’ inadequate compliance with the court’s order for production of documents, (4) whether the court erred in giving instructions on negligence in a dramshop suit, (5) whether plaintiffs’ attorney made prejudicial remarks in his closing statement to the jury, and (6) whether plaintiffs failed to prove a proposition in their instruction.

Testimony at the trial adduced the following recital of events. On August 17, 1966, Eugene Walls, Jr., a minor, was employed at the Dixon State Hospital. About 1:30 p. m. that day, three other boys employed at the school (all minors) and Walls cashed their pay checks at one grocery store, went to a gas station, and then to the Rainbow Inn where Walls, Jr. purchased a fifth of vodka at the drive-in window from Verna Powers. They were not questioned about the purchase. They picked up a six-pack of 7-Up at another grocery store and then drove a short distance to a gravel road, where they stopped. Earlier that day, the boys had been drinking beer and Walls, Jr. drank one can of beer on the way to the gas station. While the car was parked on the gravel road, each boy drank part of the contents of each 7-Up bottle and then filled it with vodka and drank it. There were varying accounts of the quantity of vodka consumed by each boy. After the drinks were consumed, they drove a short distance and Walls, Jr. took the wheel, and turned into Route 26. The accident occurred about one-half mile from the second stop. They passed a truck as they went around a curve on Route 26; the car went off the pavement on the right, swerved back and went off to the left. Walls, Jr. lost control of the car and hit a culvert.

A Mr. Hoag testified that he was driving a pickup truck about 30 miles per hour north on Route 26 about 2:23 p. m. on August 17,1966, when an automobile passed him, went on the right shoulder of the road, skidded as it returned to the pavement, and looked like it would tip over. He said he didn’t notice that the car traveled with any excessive speed. He had passed the scene of the accident, thinking it was “a pile of junk,” when he saw smoke coming from the wreckage.

A State Trooper, J. 0. Buckley, in his testimony, said he was called to the scene of the accident and found the burned out wreckage of an automobile and learned that the occupants had been removed to the hospital. He found an uncapped bottle of vodka, partially filled, lying four or five feet from the wreckage. Officer Buckley made a freehand sketch of the area showing the skid marks and physical characteristics of the scene. He searched the area but found nothing but the vodka bottle. The accident occurred at 2:25 p. m. and Officer Buckley arrived at the scene about 2:44 p. m. At the hospital the next day he talked with the survivors, Walls, Jr., Hernandez and Ramos. Walls, Jr. could remember nothing, and the other two boys stated that all four had been drinking.

Dr. Howard M. Edwards, the physician who attended Walls, Jr., stated that the boy had been operated on three times, that both legs were amputated above the knees. The doctor stated that, in his opinion, Walls would continue to require medical treatment and that the artificial limbs he was wearing would have to be replaced.

Mr. Jul, operator of the Rainbow Inn, testified that on the day in question he sold a bottle of vodka to a woman accompanied by three or four boys. He said he recognized the boys because he had refused to sell to them on previous occasions. The woman assured him the purchase was for her own use. Mrs. Powers, the former employee, said she did not sell the vodka to the boys and would not have done so, because they appeared to be minors.

Mr. Eugene Walls, Sr. testified that the total expenditures in connection with the accident amounted to approximately $7,500. He had had further expenses, and anticipated more in the future. Walls, Jr. had not worked at all since the accident and did not pay for any of his own medical expenses.

On plaintiffs’ motion, Verna Powers was dismissed from the suit. The court admitted into evidence the bottle of vodka, and over the objections of the attorney for the defendants, also admitted the sketch prepared by Officer Buckley.

The jury returned a verdict in favor of the plaintiffs, Eugene R. Walls, Sr. and Connie Walls, and against the defendants, John Jul, individually, and d/b/a Jul’s Rainbow Inn, and Carl Petersen in the sum of $35,000. The court reduced the award to $15,000 in accordance with the provisions of section 14 of Article VI of “An Act Relating to Alcoholic Liquor.” Smith-Hurd Annotated Statutes, c 43, § 135. A post-trial motion to set aside the verdict in favor of the plaintiffs and against the defendants and for judgment notwithstanding the verdict was denied. The defendants subsequently appealed to this court.

Defendants contend that the plaintiffs failed to establish the essential element that Eugene Walls, Jr. was intoxicated at the time of the accident and that there is no evidence to support a finding that Walls, Jr. was intoxicated. They, therefore, claim that the court erred in failing to direct a verdict and in refusing to enter a judgment n. o. v. Although the evidence hereinbefore set forth in this opinion was not detailed, we must conclude that its totality was sufficient to permit the jury to determine that Walls, Jr. was intoxicated. Morehead v. Rock Tavern, Inc., 89 Ill App2d 111, 114, 231 NE2d 259. Although there was conflicting testimony on intoxication, under the circumstances present, this was a question of fact to be settled by the jury. The contention that there was no evidence to support a finding that Walls, Jr. was intoxicated and that, therefore, a directed verdict or a judgment n. o. v. should have been entered in favor of the defendants is without merit since there was probative fact to support the verdict. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504. Furthermore, the finding of the jury on the question of intoxication is not against the manifest weight of the evidence.

Defendants also contend that the court erred in admitting into evidence part of a State Police report as an exhibit for the plaintiffs stating that police reports are inadmissible, Smith v. Johnson, 2 Ill App2d 315, 319, and that since it was in corroboration with a witness’s trial testimony, the mere attempt to introduce a police report is reversible error. Johnson v. Plodzien, 31 Ill App2d 222, 227, 175 NE2d 560.

It will be recalled that State Trooper Buckley made a diagram or sketch which was apparently part of a police report showing certain measurements concerning the accident. Defendants’ position appears to be that since the diagram prepared by the officer was a part of a police report, it is per se inadmissible. We do not believe that the diagram made by the officer comes within the prohibition against introduction into evidence of police reports, but was itself admissible as a diagram explanatory in nature, although it was a part of a police report. The court said in Smith v. Sanitary Dist. of Chicago, 260 Ill 453, 103 NE 254 at p 460:

“Plats, photographs, drawings and diagrams which illustrate the subject matter of testimony are frequently received in evidence for the purpose of showing a particular situation explaining the testimony or enabling the jury to apply the testimony more intelligently to the facts shown. The exhibits excluded were of this character and might properly have been admitted, but their admission was largely within the discretion of the court. . . .”

Police reports are usually ruled inadmissible because they are in the nature of hearsay or state conclusions. Johnson v. Plodzien, supra, p 227. However, the diagram in question contained the physical observations and measurements made by the officer and gave the jury a clearer picture so that they could more intelligently consider his testimony. The trial court did not abuse its discretion in admitting the diagram into evidence. In any event, we cannot see how the diagram could have been prejudicial to the defendants and its accuracy is not in question.

A further contention of the defendant is that the trial court erred in giving jury instructions inconsistent with the court’s own order and in not applying sanctions under Supreme Court Rule 219 (c) in response to plaintiffs’ failure to properly respond to defendants’ motion for the production of documents.

On March 4, 1968, upon hearing defendants’ motion for summary judgment, the trial court entered an order which, in part, reads:

“. . . that the proof of loss alleged to have been sustained by the plaintiffs be limited to and include only the reasonable and necessary medical expenses causedly connected to the occurrence complained of in the plaintiffs’ complaint . . . and that all other claims for damages purportedly sustained by the plaintiffs . . . in . . . (their) complaint be stricken, with prejudice.”

Plaintiffs filed a motion to reconsider, stating that “injury to property” does not limit damages to strictly medical expenses, but includes all future medical and other necessary expenses which will occur and have to be paid by Eugene Walls, Sr.

It does not appear that the court acted on this motion but apparently there were discussions with the judge. Testimony concerning future expenses was introduced into evidence by the plaintiffs, and plaintiffs’ Instruction #5 concerned itself not only with the elements of damage as to medical expense, but also expenses, medical and otherwise, which are reasonably certain to be incurred in the future. We cannot conclude that the trial judge ignored his own order. There was no objection to giving Instruction #5 on the basis that it was in contravention of the court’s order dated March 4, 1968, and that point cannot be raised for the first time on appeal. Furthermore, the defendants have not contended in this appeal that the amount of damages and the judgment for $15,000 is excessive.

With regard to defendants’ contention that the trial court erred in refusing, pursuant to motion, to apply sanctions to the plaintiffs for not complying properly with an order for the production of documents, since the trial court did not rule on that motion, there is nothing for this court to review.

Defendants claim that the court erred in giving plaintiffs’ Instructions Nos. 3 and 7 over defendants’ objection. These instructions are:

(3) “More than one person may be to blame for causing injury. If you believe that the defendants are liable under the Dram Shop Act, it is not a defense that some third person may also have been to blame.”
(7) “Verna Powers was the agent of the defendant, John Jul, at the time of the occurrence. Therefore, any act or omission of the agent at the time was in law the act or omission of the defendant, John Jul.”

They state that it was error to give these instructions because a dramshop suit is not predicated on the issue of negligence. Schneider v. Kirk, 83 Ill App2d 170, 172, 226 NE2d 655. As to Instruction #3, the objection by one of the defense attorneys at the conference on instructions was that it was preemptory and tends to lead the jury. The attorney for another defendant, at that time, stated that he thought the instruction was fair to both plaintiffs and defendants. In this court defendants contend that the word “blame” conveys to the jury a legal concept of negligence. The concept of negligence as an objection to this instruction was not raised in the conference on instructions. The specific objection of conveying the concept of negligence to the jury should have been made at the conference on instructions.

The plaintiffs’ instruction No. 12 is IPI 150.-09, which covers the elements of proof required in a dramshop action. One of the elements stated in IPI 150.09 is, “5. That his intoxication was at least one cause of the occurrence in question.” While plaintiffs’ Instruction #3 is stated to have been tendered because of the possibility that the jury could consider Walls, Jr. to be himself to blame in causing the medical and other expenses being sued for by his parents, it would have been better to have given IPI 150.09 alone. However, in considering plaintiffs’ Instructions Nos. 3 and 12 together, we hold that there was no reversible error in giving plaintiffs’ Instruction No. 3.

As to plaintiffs’ Instruction No. 7, it is the standard IPI instruction 150.02 modified and is an agency instruction. In the conference on instructions, defendants’ objection was that an act or omission is an element in a negligence case and that the mere selling of an intoxicant, if in fact it was sold to anyone, is a negligent act for the injury. It is, therefore, claimed that the instruction was confusing and could have led the jury to misapply the law since they were instructed to apply dramshop law with principles of negligence. It is noted that the word “negligence” is not used in plaintiffs’ Instruction No. 7. We do not see how this instruction could have prejudiced the jury when considered with the other instructions given. If the jury by conjecture took this instruction to mean that the plaintiffs had to prove a negligent sale of liquor, rather than a mere sale without negligence, it would have made plaintiffs’ burden stricter than required under the Dram Shop Act and would have been of benefit to the defendants. We, therefore, conclude that there was no reversible error in giving these two instructions.

During the closing argument of plaintiffs’ attorney to the jury he commented several times that the sale of liquor to minors was like “putting dynamite in a child’s hands.” These comments were objected to but the court did not rule on the objections. The defendants state that these remarks are particularly inflammatory and prejudicial because the plaintiffs had not sustained the burden of proving that Walls, Jr. was intoxicated and that the jury, wishing to punish someone who might have mistakenly sold alcohol to minors, could have been prejudiced by the analogy argued by plaintiffs’ attorney.

We previously stated that the intoxication herein alleged was sufficiently proved and that the jury’s verdict was not against the manifest weight of the evidence. Attorneys must be allowed to make reasonable comments upon the evidence. Roesler v. Liberty Nat. Bank of Chicago, 2 Ill App2d 54, 61, 118 NE2d 621. Attorneys for both sides during their closing remarks asked the jury to decide the case without sympathy, prejudice or speculation. We do not consider that the remarks objected to were materially prejudicial to defendants and denied them a fair trial. Bruske v. Arnold, 100 Ill App2d 428, 435, 241 NE2d 291.

Finally, it is contended that the plaintiffs failed to prove that defendant Petersen had knowledge of liquor sales on the Rainbow Inn premises owned by him. This contention was first raised by Petersen on a motion for a judgment n. o. v., which was denied. The trial court’s decision must be viewed in the light of the Pedrick decision, namely, that the evidence must be viewed most favorably to the party moved against. Pedrick v. Peoria & Eastern R. Co., supra. After considering the pleadings of all parties and the evidence, we cannot say that the inference must be drawn that Petersen did not know liquor was being sold at the Rainbow Inn. From the evidence in this case the jury could properly determine that Petersen knew that liquor was being sold there.

For the reasons stated above, the judgment of the Circuit Court of Lee County is affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: MR. JUSTICE STAMOS

text:
    John J. Scully, as Receiver for Safeway Construction Company, Plaintiff-Appellee, v. Morrison Hotel Corporation, Defendant-Appellant.
    Gen. No. 52,144.
    First District, Fourth Division.
    December 24, 1969.
    William Henning Rubin, Thomas P. Sullivan, and Donald R. Harris, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.

      Philip Conley and Barry B. Nekritz, of Chicago (Mitchell Edelson, Sr. and William N. Wise, of counsel), for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff, John J. Scully, as Receiver for Safeway Construction Company, filed a complaint at law against defendant Morrison Hotel Corporation alleging a balance due Safeway of $136,360.36 on an oral agreement for work performed and monies expended by Safeway at the Morrison Hotel. After defendant’s answer was filed denying the existence of the agreement, plaintiff filed a reply amending his claim to include an additional amount owed Safeway by the defendant of $29,080 representing the salary of Safeway’s superintendent at the Morrison which was allegedly agreed to be paid by the defendant. The jury returned a verdict of $136,360.36 in favor of plaintiff, on which the judgment was entered and from which this appeal is taken by defendant.

Defendant seeks reversal of the trial court’s adverse ruling on its motion for a directed verdict, or in the alternative, requests a new trial contending that the verdict is against the manifest weight of the evidence and that the trial court erred in making certain evidentiary rulings.

In the fall of 1956, Murray Gold, president of Safeway Construction Company, had a series of meetings with William H. Rubin, president of the defendant. The matters discussed at these meetings are in dispute, as are the subsequent events.

Gold testified that in October of 1956 Rubin requested him to assume direction of the contracting work at the Morrison Hotel, to put the various laborers on Safeway’s payroll and to supervise the work done, allegedly, because Rubin was having problems with some of these workers.

Gold further testified that soon after the initial meeting which had occurred in Rubin’s office, another meeting was held there with Harold Kerman, Gold’s fellow stockholder, director, and officer of Safeway, and Burke, auditor of the defendant, now deceased. Gold stated that at this second meeting an agreement was reached whereby Safeway would take over direction of the workers at the Morrison Hotel putting them on its payroll in return for a cost plus consideration which was based on the total payroll of the workers plus 10% for insurance and taxes, 12% overhead, and 10% profit.

Rubin testified, however, that Gold approached him about assuming the work at the Morrison in order to create a reference for future jobs. Rubin stated that at that time he was having no problems with his laborers, but that at the request of Gold he entered into an arrangement whereby the laborers were to be taken over by Safeway on a cost basis including only payroll plus 10% to cover insurance and taxes.

Kerman’s only recollection of meetings wherein terms were allegedly discussed occurred late in 1956 before actual work started. He testified that at one meeting in the coffee shop of the Morrison Hotel with Gold, Rubin and Kerman present, Rubin requested Gold to take over the work at the Morrison, because Rubin was having trouble with the laborers; that at a second meeting attended by Rubin, Gold, Grande, the Hotel’s general manager, and Kerman there was a discussion about which specific trade union laborers were to be taken over, but that he left early and recalls nothing else.

Gold testified that thereafter Safeway started first assuming the payroll for the painters and later the carpenters, steamfitters, and plumbers and that the normal billing procedure he followed was to take the time cards at the end of the week back to the office and prepare invoices therefrom for presentation on the following Monday. While the first week’s invoices reflected the profit and overhead, this practice was allegedly discontinued at the request of Rubin, who stated that it would be a tax benefit to omit them. Rubin, according to Gold, promised to reimburse Safeway at a later time for these figures, but even after frequent requests during the period of 1956-1959 never did. In early 1957 it became necessary to hire someone to supervise the work and Rubin agreed to assume the superintendent’s salary as part of the job cost on the profit-overhead package. Safeway was never paid amounts due under this package.

Alice Galatola, office employee of Safeway testified that at the direction of Gold she filled out the weekly invoices attributable to the Morrison work after receiving the time cards of the workers from her husband, who was employed by Safeway as superintendent of the work. She stated that the billing period was Thursday to Wednesday and the invoices included the profit and overhead figures. Mrs. Galatola then testified that the original copy of the invoice was given to Mr. Gold for presentation to the Morrison.

Evidence presented at trial showed two sets of invoices. One typewritten set was for a Thursday-to-Wednesday billing period, including 10% profit and 12% overhead. The other set was in Gold’s handwriting and covered a Monday-to-Saturday billing period, but did not recite any overhead and profit figures. The can-celled checks of the defendant match the amounts on the handwritten invoices and exceed the amounts in the typewritten invoices, although the latter included charges of 12% and 10% which did not appear on the handwritten invoices.

Rubin testified that the only invoices presented to him by Gold were the handwritten ones which were accompanied by waivers of lien for the amounts so invoiced. Gold testified that the waivers of lien were given, because Rubin told him that the First National Bank, holder of Morrison’s mortgage, required them.

Gold further testified that in February of 1959 Safeway had to cease operations at the Morrison for lack of funds due to the failure of Rubin to reimburse Safeway for the profit and overhead as per oral agreement. In March of 1959 defendant paid Safeway $7,000 and in return Gold gave Rubin a waiver of lien for “all labor furnished and material delivered to date.” However, Gold stated that check and waiver were for specially priced extra work Safeway had done at the Morrison. Subsequently, Safeway returned the workers to the Morrison payroll and quit the job.

Safeway closed operations in 1959 and Scully was appointed receiver on December 8, 1959. Scully testified that he could not find the books and ledgers of Safeway after a diligent search.

Jerome Morris, attorney for Harold Kerman, stated that he had use of the books and ledgers but that the last he saw of them was in late 1961 or early 1962 in his office where they were being packed for return to Mr. Kerman.

Plaintiff stated that he brought suit in 1960 upon the advice of his attorney who allegedly based his opinion on documents prepared by Mr. Pauli, a certified public accountant. Mr. Pauli had been hired by Kerman in 1959 to straighten out the records of Safeway.

OPINION

The defendant initially asserts that the trial court erred in denying its motion for a directed verdict. In view of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967), we hold that the ruling of the trial court was proper and the motion for a directed verdict was properly denied. For the same reason, we do not agree with defendant’s contention that it is entitled to an outright reversal by this court.

Defendant next asserts that the trial court erred in admitting Plaintiff’s Exhibit 4 over objection. This exhibit labeled “Summary of Transactions for the Years 1956, 1957, 1958 and 1959,” recites a balance due Safeway from the Morrison Hotel of $136,360.36. The document is a purported summation of the total payroll of Safeway due its employees from jobs done at the Morrison. To total payroll figures for these years in question, 10% payroll tax and insurance, 12% overhead, and 10% profit have been added. Cash receipts from the defendant have then been subtracted from that total to arrive at the balance due.

The exhibit was prepared by Mr. Kerman’s accountant, Mr. Pauli, who testified that the figures used in the summation were derived from worksheets provided and prepared by Safeway’s two office employees, Mrs. Galatola and Mrs. Clark. The summation assumes the existence of an oral agreement for 12% overhead and 10% profit.

Pauli further testified that the worksheets were computed from time sheets of Safeway’s employees pertaining to the Morrison work and that some of the time sheets were unavailable. Since some were missing, the totals attributable to the Morrison work were computed by subtracting non-Morrison work from the total work hours as evidenced by these remaining sheets.

The exhibit was brought to the attention of the court during the cross-examination of John J. Scully, Receiver for Safeway and plaintiff in the cause. Defendant’s counsel cross-examined Scully as to the basis for the allegations of the complaint. When the witness referred to documents in the possession of his attorney, defense counsel requested their production. Among those then presented was Plaintiff’s Exhibit 4. Defense counsel then briefly questioned Scully as to whether he had read the documents produced and the witness stated that he could not remember whether or not he had.

After cross-examination plaintiff offered the produced documents including Plaintiff’s Exhibit 4 into evidence and the court admitted them over defendant’s objections.

The defendant asserts that the trial court erred in admitting Plaintiff’s Exhibit 4 into evidence and that the document, as admitted, was prejudicial. In support of its contention the defendant cites authority referring to the foundation required for admissibility of summations of voluminous records, e. g., Flame Coal Co. v. United Mine Workers of America, 303 F2d 39, 45 (1962).

Plaintiff, however, maintained at oral argument that while such authority is correct and would normally preclude admission of the document, the document, nevertheless, became admissible to rehabilitate plaintiff’s witness Scully. In support of the contention plaintiff cites 32A CJS, Evidence, § 759 (1964) where the English rule is discussed:

“ [W] here a party calls for a paper and inspects it, it is thereby admissible evidence in favor of, but not against, the party who produces it, even though it would have been incompetent if it had not been called for and examined.”

Leonard v. Taylor, 315 Mass 580, 53 NE2d 705 (1944) is cited as American authority for this rule. In that case the court stated:

“[W]e suspect that critics may not fully appreciate the disastrous effect upon a jury in a perfectly good case as defense of a bold and dramatic demand by opposing counsel for the production of a document at some critical moment of the trial. It may be impossible to refuse without creating an impression of evasion and concealment, and even if the demand is acceded to it may be practically impossible to prevent the same impression without showing the document itself to the jury. It is our belief that if there is sharp practice anywhere it is more likely to be found on the side of the demanding party than on that of the party upon whom the demand is made, and that if unfortunate consequences follow, the demanding party should be the one to suffer them. He can commonly avoid them by utilizing his opportunities for discovery before trial or by limiting his demand to that which is competent.”

The rule as adhered to by Massachusetts has been criticized in other jurisdictions. In Smith v. Rentz, 131 NY 169, 30 NE 54 (1892) the court in citing Carrodine v. Hotchkiss, 120 NY 608, 24 NE 1020 (1890) points out that the rule no longer exists in England. The court further states at page 56:

“The party who has in his possession books or papers which may be material to the case of his opponent has no moral right to conceal them from his adversary. If, on inspection, the party calling for them finds nothing to his advantage, his omission to put them in evidence does not prevent the party producing them from proving and introducing them in evidence if they are competent against the other party. The party calling for books and papers would be subjected to great hazard if an inspection merely, without more, would make them evidence in the case. That rule tends rather to the suppression than ascertainment of truth, and the opposite rule is, as it seems to us better calculated to promote the ends of justice.”

In Merlino v. Mutual Service Cas. Ins. Co., 23 Wis2d 571, 127 NW2d 741 (1964) where the requested documents were used in cross-examination and later offered into evidence by the opposing counsel, the court stated:

“The underlying theory was that a party was not entitled to know or inspect the documentary evidence of the opposing party and, if he took the chance of asking that documents be produced without knowing what they contained, then he should be penalized, if he examined the produced documents, by having them admitted in evidence. This is hardly in keeping with modern trends that a lawsuit is not to be conducted as a contest of skill but rather a search for truth and justice, and discovery of evidence in possession of the opposing party is to be encouraged. Therefore, we refuse to adopt the ‘English Rule.’ ”

Plaintiff cites Boudinot v. Winter, 190 Ill 394, 398, 60 NE 553 (1901) in support of his contention as to the applicability of the English rule in Illinois. In that case the defendant in a mortgage foreclosure action filed a cross-bill alleging that plaintiff’s deceased had kept accurate books and memoranda relating to their financial arrangement and praying for discovery thereof. The plaintiff answered the cross-bill with the requested information. The court therein held that the information as produced must have equal evidentiary value, and defendant could not reject the parts or the words which disparaged his case, while accepting that which tended to aid it.

We do not deem Boudinot, supra, to be dispositive of the issue as to the applicability of the English rule in Illinois since the incompetency of evidence was not raised.

The only Illinois cases which seemingly adhere to the rule are Harper v. Ely, 70 Ill 581 (1873) and Marsh v. French, 82 Ill App 76 (1898).

In Harper, supra, the court held that where the request was for original books of account and the producing party presented only the ledger that the ledger was not admissible on behalf of the producing party, since it was not the document requested. The court expressly declined to decide whether the original books would have been admissible.

In Marsh, supra, the issue raised was whether books of account, otherwise incompetent, produced upon request,. were admissible, even though the requesting party had not inspected them. The court therein held that a mere request of such documents did not make them admissible where they were otherwise incompetent.

The only other authority referring to the applicability of the English rule in Illinois is 7 Wig-more, Evidence (3d ed) p 560, § 2125. Therein Civil Practice Act 1933, § 103, Rule of Court 9, par 1, is cited as adopting the rule in Illinois. Rule of Court 9, par 1, as read, however, refers only to the genuineness of the document and not to the general admissibility of normally incompetent records. Based on the foregoing, we are of the opinion that Illinois has not nor should it adopt the English rule as asserted by plaintiff and that the trial court, therefore, erred in admitting Plaintiff’s Exhibit 4 into evidence.

We also deem such error to be prejudicial. The trial court sanctioned the document by allowing its admission and gave it the evidentiary value of admissible books of account by so doing. The jury found for plaintiff returning a verdict of $136,360.36, the precise amount recited in Plaintiff’s Exhibit 4. This amount reflected the amount on the exhibit, but it is significant to note that it excluded the value of the superintendent’s salary which plaintiff alleged was due and owing. It is reasonable to infer that the jury gave undue weight to improperly admitted evidence.

The judgment is reversed and the cause remanded for new trial.

We therefore do not consider it necessary to discuss the many other issues raised by plaintiff as grounds for a new trial.

Reversed and remanded.

DRUCKER, P. J. and ENGLISH, J., concur.