text:
    Edward J. Dembinski, Plaintiff-Appellant, v. F. & T. Corporation, a Corporation, Henry Nowak, Trustee Under Trust Agreement No. 1180, Henry Nowak, Individually, Henry F. Nowak, and John Truty, Defendants-Appellees.
    Gen. No. 53,232.
    First District, First Division.
    April 27, 1970.

      Lloyd P. Douglas, of Chicago (Lloyd P. Douglas and Gerald M. Chapman, of counsel), for appellant.
    McKinley, Price & Fako, of Chicago (Edwin A. Strugala, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a dramshop action for personal injuries inflicted by an alleged intoxicated person, whose intoxication, plaintiff contends, was caused in whole or in part by alcoholic liquor sold by defendants. Plaintiff appeals from a jury verdict and judgment in favor of defendants.

On appeal plaintiff contends prejudicial trial errors were committed in that (1) the trial court erroneously admitted prior statements of the intoxicated person as impeachment testimony and so instructed the jury; (2) the defendants tendered a police report in the presence of the jury, which was rejected by the trial court; and (3) improper comment by defense counsel was made in his closing argument.

The assailant, Stefan Nicpon, testified for plaintiff. The record indicates that he had a limited use and knowledge of the English language and at times had some difficulty in understanding questions. During his cross-examination it was suggested that he might understand better “if we had a Polish interpreter.” The court directed that the questions be given slowly and that he be given an opportunity to answer.

Nicpon’s testimony showed that on July 8, 1966, he drank about four or five glasses, or more, of half wine and half water in his home. About 9:00 p. m., he went to defendants’ restaurant, known as Nowak’s, where he had a sandwich and purchased and drank at least two beers and two or three shots of cognac. He remained in the restaurant for about a half hour. When Nicpon left the restaurant he felt tired and wanted to go home. He stated, “It was a very hot day, and I am drunk.” He walked for five minutes because “I feel, you know, tired and I didn’t feel so good because I was drunk. I was looking for some place to sleep.” He arrived at a small triangular park where plaintiff Dembinski, Vincent Swiderski, and one Noga, since deceased, were sitting on a park bench. They were all acquaintances of Nicpon. He approached them and attempted to strike up a conversation with plaintiff. Plaintiff told him, “If you want to talk to me I talk to you later.” After a brief exchange of words, plaintiff shoved Nicpon and started to strike and kick him. Nicpon said, “then he lift his legs and push me in my belt and starts to kick me . . . from the sidewalk .... I start, you know, defense myself. I pull out the knife and stab him with the knife.” After the stabbing, Nicpon ran to a fire station approximately one block away and told the fireman to close the door because three men were chasing him. The witnesses who observed Nicpon running testified that he ran straight and did not fall down.

On cross-examination Nicpon testified that he had been plaintiff’s neighbor and had known him for some time. He stated that if he had not been drunk, he never would have stabbed plaintiff. Also, when he was questioned about a statement taken from him by defendants’ representatives at his home on October 30, 1967, the following took place:

Q. “Did you tell them that you did not feel drunk at the time of this incident?”
A. “I don’t remember. I could not tell him that because I was.”
A. “Then I was looking, you know, because I didn’t feel that drunk that I am tipping.”
Q. “You didn’t feel drunk at all then?”
A. “It seems to me, but I was so tired, you know.” Q. “Were those questions asked of you and were those your answers ?”
A. “Maybe they didn’t understand me good.”
Q. “It could be that you said that though?”
Mr. Douglas: “Object.”
The Court: “Question and answer may stand. The answer is, ‘No.’ ”

Plaintiff testified that when Nicpon approached him on the bench he “realized there is a problem. I noticed that he was somewhat excited. He looked like an idiot or as drunk.” He told Nicpon to leave him alone for awhile because he was busy talking to Swiderski. Nicpon wouldn’t leave, so he pushed Nicpon with his foot, and Nicpon jumped back and quickly stabbed him. Nicpon then ran away very fast and in a straight line. Plaintiff did not smell anything on Nicpon’s breath at any time.

Vincent Swiderski, a witness to the stabbing, testified that Nicpon was “just like wild, excited. I didn’t know what was happening with him. He was red in his face.” Nicpon ran away very fast and in a straight line. Nicpon was also “kind of nervous” at the beginning.

Defendants’ witnesses included the two police officers who had arrested Nicpon and a fire lieutenant who was present when Nicpon entered the fire station. Officer Partipilo had a conversation with Nicpon and could understand him. Nicpon was not nervous or excited. The officer was of the opinion that Nicpon was sober and further stated that he smelled no alcohol on Nicpon’s breath. At the police station he made out an arrest slip marking Nicpon’s condition as sober. He also made out a case report but put nothing in it as to intoxication. The arrest slip was offered into evidence but ruled inadmissible by the trial judge.

Officer Kilroy testified that he also spoke to Nicpon in the squad car and could understand him. Nicpon was “panting or breathing hard,” but he could smell no alcohol. Nicpon did appear “restless” but in the opinion of the witness he was sober.

James Lynn, the fireman who was present when Nicpon ran into the fire station, testified that he asked Nicpon why he had stabbed plaintiff, and Nicpon answered “because he kicked me.” He did not smell any alcohol on Nicpon’s breath and was able to understand him. He was of the opinion that Nicpon was sober.

Albert Levin, a court reporter who was present at the interrogation of Nicpon on October 30, 1967, was called by defendant for impeachment purposes and read from his notes, which included a statement by Nicpon that he “didn’t feel drunk” at the time of the occurrence; also, “I must have been drunk because the whole time — I drank all the time — you know — then you don’t feel so— sure, I was drinking.” Levin further testified that Nicpon’s speech was very poor, so that it was difficult to get the precise words that he used throughout the interview.

On the basis of the court reporter’s testimony, the trial court overruled plaintiff’s objection that there had been no impeachment of Nicpon as to drinking and gave defendants’ instruction No. 10, as follows:

“The credibility of a witness may be attacked by introducing evidence that on some former occasion he made a statement inconsistent with his testimony in this case on a matter material to the issues. Evidence of this kind may be considered by you in connection with all the other facts and circumstances in evidence in deciding the weight to be given to the testimony of that witness.”

Plaintiff initially contends that defendants attempted to give the impression that Nicpon’s testimony was wholly manufactured for the purpose of helping his friend Dembinski, and “counsel proceeded with a classical attempt to impeach Nicpon by a prior inconsistent statement. Actually, the alleged impeaching question was clearly ambiguous on its face, and, when taken in context, was not impeaching.” Plaintiff asserts that it was prejudicially erroneous to admit the testimony of Levin. Plaintiff’s authorities on this point include Reilly Tar & Chemical Corp. v. Lewis, 326 Ill App 84, 61 NE2d 290 (1942), and People v. Rainford, 58 Ill App2d 312, 208 NE2d 314 (1965). In Reilly Tar & Chemical Corp. v. Lewis, it is said that for statements to be admissible as impeachment they must meet the following requirements: “(a) statements read as impeachment must be contradictory to and inconsistent with the testimony given in the trial; (b) such contradiction or inconsistency must be as to material matters; (c) the earlier statements must be read or shown to the witness, and (d) the witness must deny making the earlier statements.”

In People v. Rainford, it is said (p 320):

“Generally, a prior statement of a witness, in order to be capable of being proved for purposes of impeachment, must be materially inconsistent with his testimony. The test to be applied in determining inconsistency has been variously stated but basically is that the inconsistent statement must have a reasonable tendency to discredit the direct testimony on a material matter.”

Plaintiff further argues that Levin, the court reporter, admitted difficulty in understanding Nicpon, and that the alleged inconsistent statement was the result of a difficulty in expression and understanding. Plaintiff maintains that where an alleged inconsistent statement shows a difficulty in semantics and does not show a prior inconsistent belief, the better rule is to exclude the alleged impeaching statement.

Plaintiff maintains that he was prejudiced when the trial judge gave defendants’ instruction No. 10 dealing with impeachment by prior inconsistent statements. Plaintiff asserts that because there was no other attempt at impeachment, the instruction was predicated on the inadmissible statement made by Nicpon, and that instructions may not be predicated upon inadmissible testimony.

Defendants contend that the jury could not have been-misled by the instruction even if the prior statements had, in fact, not been impeaching. They note that it was for the jury to determine if any of the prior statements in fact impeached Nicpon. Authorities include Michna v. May, 80 Ill App2d 281, 225 NE2d 391 (1967), where it is said (p 292):

“Whether testimony is credible or contradictory or whether it is impeached are generally matters for the trier of fact and its findings will not be disturbed unless they are manifestly against the weight of the evidence.”

Also, People v. Tate, 30 Ill2d 400, 197 NE2d 26 (1964), at page 403:

“Impeachment of a witness by a prior contradictory statement is of course an accepted technique. As this court said in People v. Moses, 11 Ill2d 84, 87: ‘Evidence of prior inconsistent statements by a witness is admissible to impeach his credibility. (People v. Smith, 391 Ill 172, 176.) Such evidence is not admitted as proof of the truth of the facts stated out of court, but to cast doubt on the testimony of the witness by showing his inconsistency, and an instruction to that effect should be given upon request. . . .’”

We find no prejudicial error in the trial court’s ruling on the alleged impeachment testimony and the giving of instruction No. 10. We agree with plaintiff that the alleged inconsistent statement of Nicpon shows a difficulty in semantics. However, we do not believe that the statement was prejudicial to plaintiff. Nicpon stated several times that he was drunk and, in substance, the statement corroborates Nicpon’s court testimony. Also, the pretrial statement of Nicpon showed a sufficient inconsistency to warrant the giving of instruction No. 10, and if its giving was error, plaintiff was not prejudiced.

Considered next is plaintiff’s contention that reversible error was committed by defendants tendering a police report in the presence of the jury. Plaintiff asserts, “After interrogating Officer Partipilo as to his opinion concerning Nicpon’s sobriety at the time of the occurrence, counsel for the defendant produced the officer’s police reports, examined him as to their contents, and offered them in evidence, all in the presence of the jury.”

Plaintiff argues that plaintiff was forced to object in front of the jury, and it placed plaintiff in a prejudicial position before the jury and, although the trial judge did not admit the exhibit, he failed to take remedial action against the prejudice caused by requiring plaintiff’s counsel to object. Plaintiff’s authorities include Johnson v. Plodzien, 31 Ill App2d 222, 175 NE2d 560 (1961), where it is said (p 227):

“The courts in this state have generally held that a police report is not admissible in corroboration of a party’s trial testimony, and that the mere attempt to introduce such an exhibit may be considered reversible error.”

Defendants contend that no prejudicial error was committed in tendering the police report. They note that “all that the arrest slip could have shown was what already was in evidence as to the nature of the offense charged, the time and place, the victim’s name, his assailant’s name, addresses, and other vital statistics as to age, race, etc.” Defendants further argue that the police reports were in fact admissible to show “that the officer was under a duty at the time to determine Nicpon’s condition for sobriety or intoxication, and that he performed his duty and made that determination contemporaneously with the arrest. These circumstances were relevant to the weight to be given his opportunity to observe.”

We are not persuaded that defendants’ reason for tendering the police report was proper in this case. This practice has been repeatedly condemned and has been held many times to be reversible error. In the instant case we think it was improper to make the offer into evidence in front of the jury. This should have been explored with the court out of the presence of the jury. However, the record shows that the officer had been interrogated by defendant, without objection, as to the contents of a case report and an arrest slip, and that he had marked the arrest slip to show that Nicpon was sober at the time he had arrested him. In addition to the officer, several other witnesses testified that Nicpon was sober, and although we do not approve of the offering of the arrest slip or report, we do not think its impropriety was of such substance here as to be prejudicial to the rights of the plaintiff. Black v. DeWitt, 55 Ill App2d 220, 227, 204 NE2d 82C (1965).

Plaintiff finally contends that defendants’ counsel made improper and prejudicial comments in his closing argument. Defendants’ counsel stated, “It seems to me, the defendant that should be here is Nicpon.” Plaintiff argues, “Nicpon’s potential liability to the plaintiff was not in issue in this case so that this argument had no place in the closing arguments. . . . this argument violated the limits imposed on closing argument in two respects: (a) it exceeded the issues in the case, and (b) it was a misstatement of the law in that there was no necessary connection between the claim against these defendants and the claim against Nicpon.” Also, defendants’ counsel inferred that Nicpon had been in trouble before.

Authorities cited include Mattice v. Klawans, 312 Ill 299, 143 NE 866 (1924), where it is said (p 310):

“While it is true that an attorney may in the course of a trial inadvertently make improper remarks, the prejudicial effect of such a statement is usually removed where the court promptly sustains an objection thereto and the attorney makes retraction in good faith; but where the record shows, as it does in this case, that an attorney has deliberately and repeatedly indulged in prejudicial argument to the jury, the effect of such misconduct can not be measured, and the only remedy is to grant a new trial.”

Defendants contend that plaintiff opened the door to comment on Nicpon’s character when he asked Nicpon on direct examination, “And had you ever done anything like that before?”

In considering this question, we think the remarks made in Hopwood v. Thomas Hoist Co., 71 Ill App2d 434, 219 NE2d 76 (1966), are in point. There the court said (pp 443-4):

“The purpose of a closing argument is to assist the jury in arriving at a verdict, with all facts presented fairly. Considerable latitude of expression on anything that is in evidence must be allowed counsel. It is within the function of an advocate to argue that the client is not liable, which was the real purport of the allegedly improper - argument in the instant case. . . . When arguing within the limits of admitted or uncontroverted facts, counsel should enjoy the greatest latitude consistent with decorum.”

We conclude that the comments in question were not improper in this case. See Schneider v. Kirk, 83 Ill App2d 170, 226 NE2d 655 (1967).

After examining this record in detail, we conclude that no prejudicial error was committed, and for the reasons stated the judgment is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Medical Center Commission, a Body Politic and Corporate, Petitioner-Appellant, v. John Powell, et al. (Chicago Transit Authority, a Municipal Corporation), Defendant-Appellee.
    Gen. No. 53,497.
    First District, First Division.
    April 27, 1970.
    Rehearing denied May 21, 1970.

      William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe and Herman R. Tavins, Assistant Attorneys General, of counsel), for appellant.
    George J. Schaller, of Chicago, General Attorney, and Foran, Wiss & Burke, of Chicago, Special Attorneys (Robert E. Wiss, of counsel), for Chicago Transit Authority, appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an eminent domain proceeding in which the petitioner, Medical Center Commission, a public body, appeals from an order which dismissed its petition to condemn parcels of land owned in fee simple by defendant, Chicago Transit Authority, a municipal corporation.

On March 28, 1967, the petitioner filed the petition to condemn so as to acquire title to a strip of land within its boundaries which was owned or used under an easement by defendant CTA and constituting part of its elevated right-of-way over which it operated rapid transit trains. The allegations of the petition included:

“(5) The property herein sought to be condemned and hereinafter described ... is situated within the boundaries of said Medical Center District, is necessary and desirable for the lawful uses and purposes of petitioner and is also of the character and nature of property which the aforesaid statute of the State of Illinois authorizes and empowers petitioner to acquire as above set forth;....”

The petition prayed that petitioner be awarded fee simple title to the strip of land “subject, however, to the rights of the Chicago Transit Authority.”

The defendant CTA filed a traverse and motion to dismiss, which denied the right of the Medical Center to exercise the power of eminent domain as to the property or property rights of the CTA. The traverse and motion was based “on the fundamental eminent domain principle that property owned by a public body and devoted to public use is not subject to condemnation by another public body having only a general power of eminent domain.”

On May 29, 1968, the trial court sustained the traverse and motion and dismissed the petition to condemn as to those parcels wherein fee simple absolute title was vested in the CTA. The instant appeal is from that portion of the order.

On appeal the Medical Center states that “the issue is whether a public body may condemn and take property owned by another public body for a use which will not interfere with the uses being made of that land by the public body from which the said property is sought.”

As to the issue on appeal, the CTA asserts that “Appellant’s purported statement of the ‘issue’ herein is wholly inaccurate and inadequate. The true issues herein are: 1. When a Traverse and Motion to Dismiss is filed in an eminent domain case, does the condemning body have to establish, by competent evidence and proof, its right, power and authority to exercise the power of eminent domain? 2. Is it error to sustain and grant a Traverse and Motion to Dismiss, which is based on property being owned by a public body and devoted to public purpose, when in the hearing thereon, the condemning body fails to establish a specific legislative grant of power to condemn public property ?”

Petitioner, Medical Center, maintains that “involved is a strip of land within the boundaries of the area of the Medical Center. The Chicago Transit Authority either owns the land or has an easement by which it maintains its right-of-way at least 14 feet above the land over which it operates its elevated trains. The land below the elevated tracks is not used by the Chicago Transit Authority and what is involved in this case is whether or not this land can be put to use by the Medical Center Commission. It would seem that a mere statement of the issue should resolve it. It is not only desirable for utilitarian purposes that this land be put to use (parking in the area is in short supply and getting shorter all the time); it is desirable to improve the tone of the surroundings. The Chicago Transit Authority has done nothing and has no plans with regard to the land under its right-of-way to either improve it or keep it free from being the refuse dumping ground of the neighborhood.”

Petitioner asserts that it “has the obligation and the duty of putting together a Medical Center and the respondent the duty to provide public transportation on and over the same land. Both functions can be carried out and should be carried out with the public good being the sole consideration. The Medical Center seeks nothing that the Chicago Transit Authority needs to carry out its function and the cases cited by both sides support the contention of the Medical Center Commission that they ought to be allowed to take from the Chicago Transit Authority that which the Transit Authority does not hold or use.”

Plaintiff’s authorities include Peoria P. & J. R. Co. v. Peoria & S. R. Co., 66 Ill 174 (1872), where the parties were two railroad corporations created by Act of the General Assembly. In order for plaintiff to have access to its land, it had to cross over defendant’s land. The court ruled that the defendant’s land was subject to condemnation, stating (p 176) :

“The land of railroad corporations not actually in use by such company, or absolutely necessary for the enjoyment of their franchise, must be upon the same footing as the land of an individual, though that may be taken even from the actual and profitable use of the owner. We perceive no reason why, in this respect, railroad companies would claim and be allowed immunities not accorded to individual proprietors. The legislature has made no exception in their favor, and none in reason can be made.”

Chicago West Division Ry. Co. v. Metropolitan West Side El. R. Co., 152 Ill 519, 38 NE 736 (1894), where a petition to condemn defendant railroad corporation’s land was allowed, the court stating (p 521):

“If the West Chicago Street Railroad Company had constructed its tracks on the property in question, and was using it for a right of way in the transaction of its business, we would not hesitate to hold that defendant in error could not condemn the property and appropriate it to the same use. But that was not the case. The street railroad company had never used the property as a right of way or for the purpose of running cars over it, nor, so far as appears, was it necessary for the company to use it for that purpose. Indeed, during the past three years it had been used but little as a horse barn. The question presented resolves itself into this: whether one railway company can acquire property, and hold it, not as a right of way, but for some other purpose, and thus prevent another railway company from condemning it for a different use.”

City of Chicago v. Sanitary Dist. of Chicago, 272 Ill 37, 111 NE 491 (1916), where the City of Chicago was allowed to take land from the Sanitary District, the court stating (p 41):

“[T]he land sought to be condemned is not devoted to the necessities of the district for the maintenance of its channel, and under the power of the city to construct and maintain sewers, and for that purpose to exercise the right of eminent domain, we are of opinion the city had the right to condemn the land in question.”

Defendant contends that “when a Traverse and Motion to Dismiss is filed in an eminent domain proceeding and the condemning body fails to establish by competent proof and evidence its right, power, or authority to exercise the power of eminent domain, the Traverse and Motion must be sustained and granted.” The defendant CTA asserts that on the hearing of the traverse and motion and on the hearing to dismiss, the petitioner presented no evidence or proof relative to its asserted right to exercise the power of eminent domain generally, or relative to any purported right to condemn property or property rights owned by a public body and devoted to public use. Among the authorities cited are City of Evanston v. Piotrowicz, 20 Ill2d 512, 170 NE2d 569 (1960), and Board of Trustees of Southern Illinois University v. Lange, 28 Ill2d 229, 190 NE2d 789 (1963).

In City of Evanston v. Piotrowicz, it was stated (p 517):

“It is the settled law of Illinois that where a defendant in a condemnation suit contests the petitioner’s right to condemn by traverse, the burden is upon the petitioner to maintain its right to condemn by proper proof. . . . The burden in such instance is upon the petitioner to introduce such evidence as would, prima facie at least, prove the disputed averments.”

In Board of Trustees of Southern Illinois University v. Lange, it was stated (p 230):

“[T]he proper method of testing the sufficiency of an eminent domain proceeding is by a motion to dismiss or traverse, and when such a motion is filed the burden is upon the petitioner to make prima facie proof of the disputed averments. . . .
“We think it clear that the motion to dismiss filed herein sufficiently traversed the jurisdictional allegations of the petition so as to require petitioner to meet this recognized burden of proof ....
it
“The entire record is before us however, and . . . it does not appear that any evidence was introduced at the preliminary hearing on the traversed allegations of the petition. ... We have also examined the statement of the trial court’s reasons for decision and find that they do not indicate that any proofs were offered by petitioner.
“Neither the unsworn statements of counsel . . . the personal knowledge of the trial judge, nor charts, plats, maps and resolutions, not introduced in evidence, can serve as a substitute for competent proof.
“It is our conclusion that respondents, by a proper legal motion, denied the right of the petitioner to exercise the power of eminent domain in this case. It, therefore, became the burden of petitioner to show its prima facie right by the production of competent evidence. . . . The record indicates that it failed to do so. The trial court was, therefore, in error in denying the motion to dismiss . . . .”

Defendant further contends that the essence of petitioner’s argument herein is that “under a general power of eminent domain, property or property rights can be acquired from another public body when the use by the acquiring body will not interfere with the use by the owning body.” The CTA notes that petitioner presented no evidence in the trial court that its use would not interfere, and that defendant presented evidence of the danger and hazards of usage of the property by plaintiff. The CTA also notes that only the legislature can authorize the acquisition of the property of one subordinate agency by another subordinate agency. Authorities cited include Department of Public Works and Buildings v. Ells, 23 Ill2d 619, 179 NE2d 679 (1962), and City of Edwardsville v. County of Madison, 251 Ill 265, 96 NE 238 (1911).

In Department of Public Works and Buildings v. Ells, it was stated (p 620):

“The proposition that a general grant of the power of eminent domain does not authorize the condemnation of property already devoted to a public use is well established. It was applied in Illinois Central Railroad Co. v. Chicago, Burlington and Northern Railroad Co., 122 Ill 473, where one railroad sought to condemn the property of another, in City of Moline v. Greene, 252 Ill 475, where the city sought to condemn the property of a public library board for street purposes, and in City of Edwardsville v. County of Madison, 251 Ill 265, where the city sought to condemn, for street purposes, a strip of land through the county poor farm. . . .
“Where the legislature has intended to confer the power to condemn property already devoted to a public use it has done so explicitly.”

In City of Edwardsville v. County of Madison, the court stated (pp 266-7):

“The right of eminent domain is the power of the State to appropriate private property to the public use .... It is inherent in the State, and may be exercised by a municipality only by virtue of a grant from the State. . . . The statute does not authorize the taking of the property of the State, or of the subordinate municipalities through whose agency the State government is administered, by the exercise of the right of eminent domain. Such property is already devoted to the public use and is subject to the control of the State, which may authorize such use of it as it sees fit. The legislature may authorize one use today and another use tomorrow, and ... its discretion is absolute. . . . Our statute (chapter 47) only authorizes the courts of the State to entertain jurisdiction of proceedings for condemnation when the right to take private property for public use is involved, . . . otherwise the city might condemn the court house square for an engine house, the school district might condemn the engine house for a school house, the county might condemn the school house for a court house, and an endless chain of condemnations by various municipalities might be set in operation.”

From the foregoing we conclude that (1) “a general grant of the power of eminent domain does not authorize the condemnation of property already devoted to a public use,” and “where the legislature has intended to confer the power to condemn property already devoted to a public use, it has done so explicitly,” (23 Ill2d 619); and (2) where the legislature has conferred the power to condemn property already devoted to a public use, “the proper method of testing the sufficiency of an eminent domain proceeding is by a motion to dismiss or traverse, and when such a motion is filed the burden is upon the petitioner to make prima facie proof of the disputed averments.” 28 Ill2d 229, 230.

The record here shows that no evidence of any statutory authority to condemn the CTA property here in question was presented to the trial court; also, petitioner presented no evidence that its intended use would not interfere with the right-of-way of defendant, whereas the CTA presented a resolution passed by it on February 1, 1968, asserting that uses of areas under, over or adjoining its elevated structure can be extremely hazardous to its property and its operation.

For the reasons given, the order of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Andrew M. Bauta, Defendant-Appellant.
    Gen. No. 53,645.
    First District, First Division.
    April 27, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Gramenos, James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Andrew M. Bauta, pleaded guilty and was convicted of unlawful possession of narcotics. He was sentenced to the penitentiary for a minimum of five years and a maximum of five years and one month.

On appeal, the defendant contends that (1) the information was legally insufficient because it failed to show the place of the offense or the chapter and section number of the statute purportedly violated; (2) his plea of guilty was not voluntarily made since it was induced by the suggestion of the court that a failure to enter a plea could result in his receiving a more substantial prison sentence and (3) the trial court accepted his plea without a showing that it was voluntarily and understandingly made by him.

The record reveals that on August 19, 1968, the defendant, Andrew M. Bauta, appeared before Judge Kenneth R. Wendt of the First Municipal District of the Circuit Court for a hearing to determine probable cause on a narcotic charge. At the hearing, Richard McKelvey of the vice control division of the narcotic unit of the Chicago Police Department testified, that on April 24, 1968, a special employee came to his office and advised that he could make a controlled purchase of heroin from a person known to him as Andrez. The informer was given $25 of prerecorded money and taken to the vicinity of 2742 West Adams Street. The informer was to honk his horn as a prearranged signal for the defendant to come to the car and sell him the narcotics. After the informer honked the horn, the defendant emerged from the apartment building and entered the informer’s car. Officer McKelvey testified that he was about four feet from the defendant when the defendant entered the car. When the officer observed a prearranged signal that the informer had purchased the narcotics, he and another officer came to the car and the special employee gave them a container holding an unknown quantity of white powder. The officer arrested the defendant and observed him placing between his legs the $25 in prerecorded currency. The white powder was submitted to the crime laboratory and was found to be heroin. The court then stated that the case was going to the grand jury.

Officer Paul Louis then testified that on May 23, 1968, a police informer stated that he could purchase a $25 bag of heroin from a person called Andrez. The informer was searched, found to be free of all narcotics and money and then given $25 of prerecorded money. Officer Louis drove the man on that day to Washtenaw and Division and then observed him enter a green Ford. He was about twenty to twenty-five feet away when he saw the informer hand the defendant $25 and the defendant in turn give the informer a packet. The informer then returned to the squad car and gave the officer the packet which was field tested. A letter from the crime laboratory stated that the packet was found to contain heroin. The defendant was arrested on the evening of May 24, 1968, and $20 of the prerecorded money was found in his pocket.

The court commented that there were two sales and that the defendant had previously been placed on probation by him and had served one year in the House of Correction. “I imagine the State wants a bunch of years. I have him on three years’ probation ... I will imagine they want to start with at least five years.” The trial judge then asked the public defender if he wanted to talk to the defendant. “They have got two sales here. There is corroboration. They recovered the money . . . .”

The public defender then asked if something couldn’t be done for this man. The prosecutor said that since this would be the second conviction, he couldn’t go under five years. The judge gave the public defender a few minutes to discuss it with the defendant. Afterwards the public defender informed the court that he had told the defendant that if he could plead guilty at this stage of the proceedings his sentence would be around five years, while if the case went to the grand jury there was a possible sentence of from ten years to life. The public defender then requested one or two weeks for the defendant to think it over. When the court questioned whether the defendant had a language barrier, the public defender stated, “No, he knows . . . more about it than I do, your Honor.” The hearing was continued until August 23rd.

When the case was called on August 23rd, the public defender informed the court that the defendant would plead guilty. The prosecutor said that the State would recommend five years to five years and one month. It was agreed that the defendant would plead guilty to only one count of possession. The public defender then stated:

Your Honor, I have completely admonished my client of his constitutional rights. I have told him in a case like that he has a right to go in front of a grand jury .... I told him he has a right to a trial by jury which in this case he chooses to waive. I told him in a case like this and by throwing himself on the mercy of the court he faces the possible sentence of two to ten years on the possession of heroin charge, ... or if he goes upstairs he faces a possible mandatory life sentence on . . . two sales.

The public defender had his client sign a jury waiver form and then entered a plea of guilty. He also informed the court that he had advised his client that in a case like this if he wanted to plead guilty he had a right of appeal. The court told the defendant that he was charged with two sales of heroin and, if found guilty, he could get ten years to life. He told the defendant that he had been given considerable time to think it over and asked “do you recall that?” and the defendant answered “yes, sir.” The following colloquy then took place:

THE COURT: “So for four days you have had a chance to think about this and take this plea for five years, is that right?”
MR. BAUTA: “Yes, sir.”
THE COURT: “And do you still wish to do that, is that right ?”
MR. BAUTA: “Yes, sir, your Honor.”
THE COURT: “All right. You have a right to have this cause submitted to the grand jury for possible indictment. Do you wish to waive that right? What is that ?”
MR. BAUTA: “Yes, sir.”
THE COURT: “You just signed a piece of paper that says ‘jury waiver’; that means you are waiving your right to trial by jury. Do you wish to waive that right ?”
MR. BAUTA: “Yes, sir.”
THE COURT: “If you plead guilty in this matter, this court may sentence you to the state penitentiary from two to ten years. Knowing that do you still wish to'plead guilty?”
MR. BAUTA: “Yes, sir.”
THE COURT: “And, of course, you always have a right of appeal, even on a plea of guilty . . . .”

The court then found the defendant guilty. The State recommended five years to five years and one month which sentence was ordered by the court.

It is contended that the defendant was found guilty on an information which neither stated the place of the offense nor the statutory provision alleged to have been violated and was therefore fatally defective. We have examined the information and find that there is no merit to this contention. The information and the arrest report which was attached to it sufficiently charged the defendant with violation of chapter 38, section 22-3 of the Ill Rev Stats by unlawfully, knowingly and feloniously possessing heroin, a narcotic drug, on April 24, 1968, and the place of the crime was Chicago, Illinois. People v. Gregory, 95 Ill App2d 396, 237 NE2d 720. The tests respecting the sufficiency of a charge, repeatedly enunciated in the case law, as defense counsel has argued, are whether it would enable the defendant to prepare his defense and whether it would sustain a plea of acquittal or conviction in bar of any further prosecution for the same offense. People v. Mills, 40 Ill2d 4, 11, 237 NE2d 697, 701; People v. Patrick, 38 Ill2d 255, 258, 230 NE2d 843, 845. We are satisfied that these tests were met.

It is principally contended that the defendant’s plea of guilty was not voluntarily made because the trial judge suggested to the defendant that a failure to enter a guilty plea would result in a more substantial prison sentence. In support of this argument, the defendant relies on the recent case of Boykin v. Alabama, 395 US 238, 89 S Ct 1709. In Boykin, three days after counsel was appointed for the indigent defendant, the defendant pleaded guilty to all five robbery indictments against him. So far as the record showed, the judge asked no questions of the defendant who did not address the court.

Trial strategy may of course make a plea of guilty seem the desirable course. But the record is wholly silent on that point and throws no light on it. . . . There was nothing to indicate that he had a prior criminal record. 395 US at 240, 89 S Ct at 1710.

The Supreme Court held that it was error to accept the defendant’s guilty plea without an affirmative showing that it was intelligently and voluntarily made. The judge must canvass the matter with the accused to make certain that he has a full understanding of what the plea connotes and of its consequence.

In the case at bar, the judge did so canvass the defendant. We do not agree that the record reflects that the defendant did not have a full understanding of what the plea of guilty connotes and of its consequence, nor do we find any language barrier. In addition to the defendant’s responses to the judge’s questions which indicate that his plea was voluntarily made, other facts must be remembered. The defendant was not a novice of criminal court proceedings. He had been previously convicted of a narcotics offense, had served a year in jail and was still on probation from the same judge. He was confronted by strong testimony against him of two controlled sales of narcotics, and he knew that if convicted on these charges he faced a mandatory sentence of ten years to life imprisonment. The defendant also knew that if he did not plead guilty all the judge could do would be to find probable cause and hold the defendant over for the grand jury. If the grand jury voted an indictment, the defendant could then have a jury trial. The record establishes that this had clearly been explained to him by his appointed counsel and the court.

We also reject the claim that by advising the defendant that he had a right to appeal even on a plea of guilty, the trial judge illustrated the inducement and coercion which he “may not have intended, but inadvertently created.” It is the plain duty of the judge to so inform the defendant of his right to appeal even after a plea of guilty. Nor are we impressed that the fact that the defendant filed a pro se notice of appeal twelve days after he entered a plea of guilty was an affirmative showing that his plea was not voluntarily and understandingly entered.

It is our conclusion that the trial judge conscientiously attempted to assist the defendant in view of the testimony he had heard and in view of the fact that the defendant could also be held to have violated his probation. The court did not accept a plea of guilty on the day of the first hearing, but continued the matter for several days so that the defendant could have time to consider it. At the second hearing, the defendant who was represented by appointed counsel did not request another continuance, but voluntarily entered a guilty plea.

A mere offer to recommend a reduced sentence does not constitute duress. People v. Bowman, 40 Ill2d 116, 239 NE2d 433. As stated in Bowman:

A guilty plea induced by promises and threats which deprive it of its voluntary character is of course void. (Machibroda v. United States, 368 US 487, 82 S Ct 510, 7 L Ed2d 473.) All persons knowledgeable in the area of criminal trial practice recognize, however, that many guilty pleas are the result of some form of “bargaining,” and that fact alone is not fatal to a conviction based upon such a negotiated plea. (Citing authority.) . . . The crux of the matter is that a defendant who has entered a plea of guilty after understandingly engaging in plea negotiations must be able to show that his plea was coerced by threats or promises of illegitimate action by law enforcement officials. (Citing authorities.) 40 Ill2d at 125, 239 NE2d at 438.

The record demonstrates that the defendant’s guilty plea was voluntarily and understandingly entered and was not induced by promises of illegitimate action by law enforcement officials. The judgment is therefore affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE ADESKO

text:
    William G. Davies, Plaintiff-Appellant, v. Arthur Murray, Inc., et al., Defendants-Appellees.
    Gen. No. 53,856.
    First District, First Division.
    April 27, 1970.
    Rehearing denied June 11, 1970.

      Posanski, Johannsen, Krohn & Jacobs, of Chicago, for appellant.
    Kenart M. Rahn, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The plaintiff instituted this action to recover money-paid on contracts for unused hours of dancing instruction which were allegedly unusable because of plaintiff’s physical incapacity. The suit sought cancellation of the contracts and a return of the money paid. Plaintiff’s action was premised upon executory contract law and the fact that the contracts were void as against public policy having been proscribed by a Federal Trade Commission Order. Trial was held without a jury and the court entered judgment for the defendant. Plaintiff seeks to reverse this judgment upon the same grounds that were urged before the trial court.

Suit was commenced against two corporate entities and Albert R. Vente, a licensee of Arthur Murray, Inc., a Delaware Corporation. At the trial the corporate defendants were either dismissed or had not been served with process and the case proceeded only against defendant Vente who had operated an Arthur Murray Dance Studio as a licensee of Arthur Murray, Inc., located in Chicago during the years 1953 to 1966.

The plaintiff, William G. Davies, subscribed for lessons commencing in 1958 and continued to take lessons until September of 1964. He discontinued dancing instruction because of his alleged illness and surgery. Plaintiff was 62 years of age when he commenced taking lessons and had retired. Prior to his surgery, the plaintiff spoke with the defendant on two occasions and requested a refund for prepaid but unused lessons. Plaintiff stated that due to his physical incapacity and on his doctor’s advice he would be unable to complete the lessons contracted for. According to plaintiff’s testimony, the defendant allegedly stated his willingness to comply with the request if it were economically possible in the future. After plaintiff’s surgery, a written demand for a refund was made. The present action was commenced when no refund was received.

The complaint alleged that Albert R. Vente, as a franchise holder from Arthur Murray, Inc., had entered into certain contracts with plaintiff. These contracts were entered into while plaintiff was taking lessons under prior contracts. Copies of several contracts for dance instruction were attached to the complaint, which were dated beginning on September 18, 1960, with the last contract dated August 30, 1963. The plaintiff alleged that these contracts were in direct violation of a Federal Trade Commission Order, dated July 27, 1960, of which the following was set forth in the complaint:

“Contracting with a pupil or prospective pupil for a specific course of dancing instruction and thereafter, prior to completion of the given course, subjecting such pupil or prospective pupil to sales effort toward the purchase of additional lessons, unless (a) any contract for additional lessons is subject to cancellation by such pupil or prospective pupil, with or without cause, at any time up to and including one week after completion of the units of dancing instruction previously contracted for, without cost or obligation, except that a charge may be made for not in excess of two additional lessons furnished during such week and (b) all of such units previously contracted for shall be used or completed prior to the commencement of additional lessons.” 57 FTC 306, 314^15 (1960).

Plaintiff alleged that defendant willfully and maliciously induced him to contract for future lessons while prior contracts had not been completed, all subsequent to the effective date of that order. Finally, the complaint alleged that plaintiff’s illness precluded him from completing these lessons and that defendant Vente had refused plaintiff’s demand for a refund.

The defendant’s answer denied the binding effect of the FTC order as to him on the grounds that the defendant was not a party to that proceeding and had refused to comply with several requests of his licensor to agree to the terms of the order. A copy of a letter from Arthur Murray, Inc. to defendant was attached to the answer. The letter was a notice of the issuance of the FTC order and a request that the licensee assent to be bound by the order which would thereby amend the franchise agreement. Defendant denied the plaintiff’s allegations of inducement and stated that plaintiff voluntarily entered into the contracts in question. Defendant denied knowledge of plaintiff’s illness and denied that he had agreed to refund the monies paid on said contracts. The defendant recalled having a conversation with plaintiff regarding a refund. Defendant said that he only expressed a willingness to comply with the requested refund if he could afford to do so in the future. The defendant also denied that any of his salesmen induced plaintiff into said contracts by a method of “relay selling” as alleged in the complaint. It was established that this type of salesmanship involved having another salesman attempt a sale if the first salesman had failed. Defendant stated that the plaintiff had made the request for additional lessons after talking with his instructor.

Evidence regarding plaintiff’s physical incapacity was introduced through plaintiff’s testimony. On cross-examination, the plaintiff admitted that prior to beginning his lessons in 1958, he had a problem with high blood pressure, It was also disclosed that sometime in 1959, plaintiff had been hospitalized for a hernia condition. Plaintiff acknowledged that sometime in 1960 or 1961 he had been informed of the FTC order by some fellow students. Despite this knowledge, he purchased the lessons which are the disputed contracts involved. Plaintiff stated that he was satisfied with his lessons and only discontinued them due to his ill health.

On these facts and evidence the court found for the defendant. In rendering its opinion the trial judge stated:

“After considering the evidence in this case, having read the brief of the parties and done some research on my own, I have come to a certain conclusion, one, that the defendant in this case was not bound by the FTC order against Murray, Inc., and among reasons for this conclusion is the fact that the FTC order was a consent order, and did not purport to find the respondent had violated any law.”

Furthermore, the trial court declared that there was no violation of public policy, based on either the FTC order or the subsequent legislation enacted in this state. (Ill Rev Stats 1965, c 29, §§ 51-52.)

The plaintiff’s first argument deals with the right to rescind and recover the money paid on these contracts. His briefs and argument rest on two contentions. First, that the provisions of the FTC order were binding upon the defendant. Therefore, according to the pertinent language set forth above, the plaintiff was entitled to rescind the contracts for unused lessons. The order itself is a consent decree representing an agreement of the parties and orders that the following parties were to cease and desist from certain business practices:

“That respondent Arthur Murray, Inc., a corporation, and its officers, and respondents . . . individually and as officers of the corporation, and respondent’s agents, representatives and employees, directly or through any corporate or other device, or through any licensee. . . .” 57 FTC 306, 313 (1960). “Effect of Stipulation. . . . The agreement does not constitute an admission by the parties that they have engaged in any method, act or practice violative of law, but it shall, if relevant to the issues, be admissible as evidence of the prior use of the acts or practices set forth therein in any later formal proceeding.” 16 CFR 1.55 (1960).

Defendant did not deny the existence of the FTC order but maintains that it was not applicable to him. Defendant contends that the consent nature of the order cannot be interpreted as an admission of wrongdoing. Defendant relies upon rule 1.55 of the Federal Trade Commission Rules of Practice, which was in effect in 1960 and he emphasizes the following language:

Defendant further asserts he was not served with notice of the FTC proceeding and that he was not bound by this order because the license agreement admitted into evidence shows that defendant was a sole proprietor of his studio and was not controlled by Arthur Murray, Inc. Defendant refused to agree to be bound by this order despite a request made by Arthur Murray, Inc. and asserts that such a request illustrates that the licensee’s consent was a condition precedent to the binding effect of the FTC order. Finally, defendant argues that even if the FTC order was violated, the consent decree was not automatically incorporated into the contracts in question. Thus, defendant concludes that the only remedy for violating the FTC order is the prescribed civil penalty under Title 15 of the United States Code (15 USCA § 41 et seq.) and plaintiff cannot rely upon the violation of an FTC order as grounds for cancellation of these contracts.

These contentions have necessitated inquiry into the purposes and the legal principles of the Federal Trade Commission. This administrative body was created to enforce legislation that was intended to regulate unfair methods, unfair competition, and business practices involving interstate commerce. Regulation did not encompass intrastate commerce, even though that business might affect interstate business activity. Federal Trade Commission v. Bunte Brothers, Inc., 312 US 349 (1941). The commission has been described as a nonpartisan body charged with enforcing the law and its duties have been characterized as quasi-legislative and quasi-judicial in nature. Humphrey’s Executor v. United States, 295 US 602 (1935).

The commission is empowered to institute proceedings when such “would be to the interest of the public.” 15 USCA §45 (1963). This has been considered the judicial function of the commission. Hastings Mfg. Co. v. Federal Trade Commission, 153 F2d 253 (1946). Once an order of the commission has been issued, the U. S. Court of Appeals has exclusive jurisdiction to enforce or review an FTC order. 15 USCA § 45 (1963): Federal Trade Commission v. Balme, 23 F2d 615 (1928); National Harness Ass’n v. Federal Trade Commission, 268 F 705 (1920). The FTC was not intended to have plenary power over the interpretation of the statute. The final decision on the meaning of the legislation was entrusted to the judiciary. Federal Trade Commission v. Klesner, 280 US 19 (1929); Sears, Roebuck & Co. v. Federal Trade Commission, 258 F 307 (1919); Florida East Coast Ry. Co. v. United States, 259 F Supp 993 (1966).

A number of decisions have established that the Federal Trade Commission Act does not create a right of action for any private litigant for the unlawful acts proscribed by the statute. Klesner, supra; Samson Crane Co. v. Union Nat. Sales, Inc., 87 F Supp 218 (1949); La Salle St. Press, Inc. v. McCormick & Henderson, Inc., 293 F Supp 1004 (1968). As stated in Klesner, at page 25: “Section 5 [15 USCA §45] of the Federal Trade Commission Act does not provide private persons with an administrative remedy for private wrongs.” Since the purpose of filing a complaint is for the protection of the public interest, a private litigant’s first recourse must be to the Commission and not to the courts for a violation of an FTC order. For this reason a civil penalty has been established for a violation of an FTC order, which must be prosecuted by the Attorney General. 15 USCA §§45,56 (1963).

From the above analysis we conclude that the Federal Trade Commission was established to vindicate the public interest concerning certain commercial practices. It is clear that a private person is not given a right of action before the commission under the present legislation. Nor can a private litigant base recovery upon the FTC Act or any commission action. Therefore, the plaintiff in the instant case cannot rely upon the FTC order as the sole ground for relief from these contracts. The only significance that can be attributed to this FTC order is the evidentiary value which attaches to said consent order.

As stated above, the trial judge determined that the FTC order in question was to have little weight in his decision. This rested upon the consent nature of the decree and the Commission’s rules of practice which established that such agreements are not an admission of wrongdoing. 16 CFR 1.55 (1960). There are no cases directly dealing with the evidentiary value of FTC consent orders. However, there are cases dealing with such FTC orders with regard to their effect upon section 5 of the Clayton Act. 15 USCA § 16 (1963). The first subsection of the statute deals with the admission of judgments or decrees rendered on behalf of the government as prima facie evidence in suits brought by private litigants for recovery of treble damages for violation of the Clayton Act.

The early decision of Proper v. John Bene & Sons, 295 F 729 (EDNY 1923) held that an FTC order was not a final judgment or decree which would allow its introduction as prima facie evidence in a treble damages suit. This court ruled that an FTC order had no effect until a U. S. Court of Appeals had reviewed or enforced the Commission’s order. It is not clear, whether the Proper case was dealing with a consent order in its decision. The more recent decision of Carpenter v. Central Arkansas Milk Products Ass’n, Inc., 1966 Trade Cases, ¶ 71,817 (DCWD Ark) held that an FTC order became a final judgment upon the expiration of the time for review, or by virtue of a judgment or decree of a U. S. Court of Appeals in enforcing or reviewing such an order. This case dealt with an order of the FTC and raised the question of collateral estoppel upon the defendant. The court determined that the FTC order was the result of a formal proceeding and after testimony had been introduced before the Commission, so that the findings of that consent order were admissible under section 5 of the Clayton Act.

Thus, a distinction is made as to consent orders where testimony has been introduced and where the consent order is purely an agreement before formal proceedings have been undertaken. This distinction regarding evidentiary value has been recognized by Prof. K. Davis, in his Administrative Law Treatise, § 4.02, footnote 14 (1958), where the author states:

“With respect to a cause of action or its administrative equivalent, an order based on consent has the same res ad judicata effect as any other order. The difference has to do with collateral estoppel. An order unaccompanied with findings does not bind parties on any issue arising in connection with another cause of action or its administrative equivalent.”

This distinction is not recognized when dealing with the remaining subsection of section 5 of the Clayton Act with regard to tolling the statute of limitations. In Minnesota Min. and Mfg. Co. v. New Jersey Wood Finishing Co., 381 US 311 (1965), the court held that an FTC consent order entered before any testimony was introduced would be sufficient to toll the statute of limitations in order to provide a private litigant the opportunity to bring suit for violation of the Clayton Act.

The above analogy to the evidentiary value of FTC orders has a telling effect on the issues of this case. The decision announcing the consent order involved in this appeal reveals that no testimony was introduced and the order was purely a matter of agreement between the Commission and the respondents therein. 57 FTC 306, 312 (1960). Thus, assuming that defendant was a party to that proceeding (an issue which we need not determine), the plaintiff could not assert the doctrine of collateral estoppel to bind the defendant since no such findings based on testimony are present. Therefore, the trial court was justified in disregarding the evidentiary value of the FTC consent order in connection with plaintiff’s relief under this contract law aspect of his case. Hence, it is not necessary to reach the question of the applicability of this order to the defendant.

Plaintiff’s second contention rests upon the law of contracts. He argues that his physical incapacity was good cause for discontinuing his dance instruction and he relies upon the principle that executory contracts are terminable at the will of either party. Defendant’s response is that the evidence did not establish the allegations of fraud and overreaching that were alleged in plaintiff’s complaint. Further, defendant argues that plaintiff’s evidence failed to prove by a preponderance of the evidence any ground for the relief sought in this suit. We are of the opinion that plaintiff’s argument with regard to executory contracts is not in point. From our view of the record, these contracts were not wholly ex-ecutory and were not indefinite as to time for performance. Hence, the case of First Mission Church v. Rockford Broadcasters, Inc., 324 Ill App 8, 56 NE2d 632 (1944) is not applicable to our decision.

We note at the outset that plaintiff’s complaint sought recovery for the unused hours of dance instruction which defendant “willfully and maliciously” induced the plaintiff to enter into, by means of relay selling. Our examination of the record leads us to conclude that plaintiff failed to prove any of these allegations. Furthermore, this case does not present a question regarding the mutual consent of the parties to rescission, since the evidence establishes that the defendant did not unequivocally accept the plaintiff’s request to abandon the contracts in question. Tucker v. Beam, 43 Ill App 290, 98 NE2d 871 (1951). Lastly, due to a lack of proof as to misrepresentation or mistake of material fact, the equitable principles of rescission are not involved. For this reason we must disregard the case of Highway Com’rs v. City of Bloomington, 253 Ill 164, 97 NE 280 (1911), upon which the plaintiff relies.

Thus, the issues presented are whether the plaintiff’s physical incapacity is a sufficient cause for the cancellation of these contracts and whether the proof submitted was sufficient to sustain the plaintiff’s recovery by a preponderance of the evidence.

According to learned authority on the subject of rescission:

“There is no hard and fast rule on the subject of rescission, for the right usually depends on the circumstances of the particular case. It is permitted for failure of consideration, fraud in making the contract, for inability to perform it after it is made, for repudiation of the contract or an essential part thereof, and for such a breach as substantially defeats its purpose.” Williston, Law of Contracts, § 1467, pp 187-88 (3rd Ed 1970).

We believe the plaintiff’s argument in the case at bar belongs in the category of those principles dealing with impossibility of performance. As stated in the Restatement of Contracts, § 459 (1932):

“A duty that requires for its performance action that can be rendered only by the promisor or some other particular person is discharged by his death or such illness as makes the necessary action by him impossible or seriously injurious to his health, unless the contract indicates a contrary intention or there is contributing fault on the part of the person subject to the duty.”

Similarly, section 460 of the Restatement states:

“(1) Where the existence of a specific thing or person is, either by the terms of a bargain or in the contemplation of both parties, necessary for the performance of a promise in the bargain, a duty to perform the promise ... is discharged if the thing or person subsequently is not in existence in time for reasonable performance, unless a contrary intention is manifested, or the contributing fault of the promisor causes the nonexistence.”

This rule has been recognized in this State. Summers v. Hibbard & Co., 153 Ill 102, 38 NE 899 (1894); Leonard v. Autocar Sales & Service Co., 392 Ill 182, 64 NE2d 477 (1946).

From the nature of the contracts involved in this case, we are of the opinion that the above rules are applicable. We think it is quite reasonable that the parties contemplated that a term would be implied concerning the continued ability of the plaintiff to take dancing instruction at the defendant’s studio. The fact that these lessons were assignable only goes to the ascertainment of damages, which is irrelevant to the issue before this court.

Therefore, this question remains whether the plaintiff introduced sufficient evidence to warrant recovery based on the applicable law. A review of the record discloses that the plaintiff was the only witness who testified as to the alleged physical incapacity. No corroboration was provided as to his surgery and his doctor’s alleged instructions to discontinue lessons. Plaintiff also admitted that prior to and during the time he was taking lessons from 1958 to 1964, he had problems with high blood pressure and a hernia. These were the same ailments which he alleged rendered him incapable of continuing with his dance instruction after 1964.

We are of the opinion that the proof submitted falls short of that necessary for recovery. The issue of plaintiff’s physical incapacity was crucial. This fact allegedly caused the impossibility of the plaintiff to perform and was the appellant’s ground for rescission. That fact was not established. The only evidence are the self-serving statements of the plaintiff. Some corroboration or other evidence would be necessary to justify plaintiff’s recovery. Although plaintiff’s testimony was uncontradicted, the trial court was not required to give credence or accept that testimony as establishing the fact in issue. The inherent improbability of plaintiff’s testimony appears when one considers that he was hospitalized and treated for the same physical ailments prior to 1964, yet he continued with his dance instruction regardless of that fact. This court will not upset determinations of fact, creditability of witnesses or the weight to be given testimony by a court sitting without a jury, unless those determinations are manifestly against the weight of the evidence. Gable v. Village of Hinsdale, 87 Ill App2d 123, 230 NE2d 706 (1967); Country Mut. Ins. Co. v. Murray, 97 Ill App2d 61, 239 NE2d 498 (1968). Therefore, we hold that no error was committed as to this issue.

The remaining contention of the plaintiff is that the contracts in question were void as against public policy. Plaintiff relies upon the FTC order of July 1960 and the Health or Dance Studio Services Act of this State. (Ill Rev Stats 1965, c 29, §§ 51-52.) As to the statute, the pertinent provisions declare that persons who have prepaid money for dance studio services are entitled to refunds when unable to receive such services by reason of death or substantial physical disability. Another provision establishes that contracts which do not comply with the above are void as against public policy.

The Health or Dance Studio Services Act was effective on May 28, 1965, subsequent to the cause of action in this case. However, plaintiff contends that the statute does not create public policy but merely “expresses” that policy which sought to protect the “unwary from overreaching by the greedy.” We do not agree with this contention. One of the basic rules of construction in the law of contracts is that all laws in existence when the contract is made are a part of its terms, as if expressly referred to or incorporated. Illinois Bankers Life Ass’n v. Collins, 341 Ill 548, 173 NE 465 (1930). Thus, the statutes must have been in existence when the contract is formed. In the instant case, the statute was effective subsequent to plaintiff’s contracts and his claim for a refund. To hold these contracts as void would require a retroactive application of the public policy declared by this statute. The rule is that in the absence of express language to the contrary, legislative enactments are to be construed as prospective and not retrospective. Friedman v. City of Chicago, 374 Ill 545, 30 NE2d 36 (1940); United States Steel Credit Corp. v. Knight, 32 Ill2d 138, 204 NE2d 4 (1965). Accordingly, we do not consider the statute as applicable to the issue of public policy.

With regard to the FTC consent order, the trial court disregarded that order and found that public policy had not been violated. Plaintiff argues that the FTC order was a part of this State’s public policy, relying upon the following statement from Schnackenberg v. Towle, 4 Ill2d 561, 123 NE2d 817 (1954), at page 565:

“There is no precise definition of policy, and consequently no absolute rule of admeasurement, making it necessary to judge and determine each case, as it arises, according to its own peculiar facts and circumstances. It has often been said that the public policy of the State is to be found in its constitution and its statutes, and when cases arise concerning matters upon which they are silent, then in its judicial decisions and the constant practice of government officials.”

The determination of public policy has been reserved to this State and is an attribute of sovereignty of this government. Declarations of public policy are premised upon a State’s exercise of its police power. Memorial Gardens Ass’n v. Smith, 16 Ill2d 116, 156 NE2d 587 (1959); Schuringa v. City of Chicago, 30 Ill2d 504, 198 NE2d 326 (1964). Thus, the FTC order cannot be considered as establishing the public policy for the State of Illinois. That policy was manifested by the enactment of the Health or Dance Studio Services Act, which has no application to the instant case. Moreover, we are of the opinion that a cease and desist consent order of an administrative body which has not been judicially tested is not the type of pronouncement which fits within the accepted definition of public policy. Therefore, the trial court was correct in holding that the above contracts were not void as against public policy.

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

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


author: PRESIDING JUSTICE BURMAN.

text:
    Fred Williams, Plaintiff-Appellee, v. Benjamin Butler, Defendant-Appellant.
    Gen. No. 54,588.
    First District, First Division.
    April 27, 1970.
    Braden, Hall, Barnes, Moss & Turner, of Chicago (Alvin H. Moss, of counsel), for appellant; Van Emden, Busch and Van Emden, of Chicago (George J. Van Emden, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BURMAN.

Not to be published in full.