text:
    Sam Santiemmo, Appellee, v. Days Transfer, Inc., Appellant.
    Gen. No. 46,715.
    First District, Second Division.
    April 3, 1956.
    Released for publication April 24, 1956.

      Albert M. Howard, of Chicago, for appellant; Charles D. Snewind, of Chicago, of counsel.
    George Simon, Warren J. Hickey, and Edward Wolfe, all of Chicago, for appellee; Edward Wolfe, of Chicago, of counsel.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal was taken from a judgment entered in the Circuit Court of Cook County on a verdict for the plaintiff assessing the plaintiff’s damages at the sum of $15,000.

The defendant here contends that the verdict is against the manifest weight of the evidence; that the trial court erred in the introduction and exclusion of evidence; that the argument of plaintiff’s counsel to the jury was improper; that the jury was improperly instructed; that the court erred in denying defendant’s motions for judgment notwithstanding the verdict and for a new trial; and that the verdict is grossly excessive.

It appears from the evidence that the accident out of which this action arose happened February 2, 1954 between seven and eight o’clock in the evening, on route 112, approximately two miles west of Cambridge Junction in the State of Michigan. The plaintiff was driving his tractor, which was attached to a trailer. He was eastbound, while the defendant, operating a similar tractor and trailer, was westbound. In passing, the vehicles collided.

Route 112 at the place of the accident is a two-way highway, with black top pavement twenty feet, six inches wide. There is room on the paved portion of the road for two lanes of traffic, one eastbound and the other westbound. There is a curve in the highway to the south of the point of the accident and a similar curve to the north. There is a straight roadway between the curves, and at both ends the road curves toward the north. On both sides of the black top pavement there is a shoulder or berm, and on the south side there is a drainage ditch running along the road.

The plaintiff was driving at a speed about forty miles an hour as he approached the scene of the accident. He saw the defendant’s truck approaching him about two or three blocks away, and when it was about two blocks away he noticed that the defendant’s tractor and trailer were “staggering” — going from one lane to the other, crossing the center line. The plaintiff reduced the speed of his equipment to about twenty miles an hour, pulling his equipment off the highway so that Ms rigM wheels were a foot or two off the highway and on the right shoulder. At the time of the impact the left wheels of the defendant’s equipment were in the south lane. The left front of defendant’s trailer hit the left side of plaintiff’s equipment. The plaintiff’s tractor was torn loose from its trailer and the trailer was tipped over on the highway.

The plaintiff and a disinterested witness, who testified on behalf of the plaintiff, were the only occurrence witnesses who testified at the trial. Elliott, the disinterested witness, who was driving a car following plaintiff’s truck, testified that at the time of the collision the defendant’s truck was on the center line or beyond it and that the plaintiff’s truck was not near the center line of the road, but was well on its own side.

The defendant strenuously contends that even though it offered no evidence concerning the occurrence, the jury should have disregarded the testimony of the plaintiff and his disinterested witness because of contradictions therein. Defendant also contends that the plaintiff’s testimony was contradicted by Ms pretrial deposition.

When questioned at the trial the plaintiff admitted that he had made the statements in the deposition. These statements indicated a difference of some three or four feet in the position of the truck with reference to the center line of the road. He explained the variance apparently to the satisfaction of the jury. Counsel for the defendant in his opemng statement assumed it to be a fact that the unit of the defendant was “staggering on the road,” and gave as the reason therefor that the unit had slipped off the edge of the pavement and the driver was bringing it back. He further stated that whether it was an inch one way or the other of the center line would be for the evidence to show, and that the plaintiff either knew or should have known that the truck of the defendant “was in trouble” while he was some distance down the road.

The defendant also complains that the testimony of the disinterested witness and the plaintiff with reference to the position of the truck is not in accord. The variances complained of in the testimony are no more than appear in an ordinary lawsuit. Witnesses are stating their memory of the occurrence. When the testimony of all witnesses is exactly alike it awakens suspicion. When the testimony concerns distances it cannot be measured by a mathematical formula. It is the duty of the jury to consider the evidence as a whole. Differences between witnesses to a much greater degree than those here apparent are daily reconciled in lawsuits by the trier of the fact, whether judge or jury.

As we have indicated, no evidence with reference to the occurrence was offered by the defendant. Under such circumstances, if there was any credible evidence in the record to prove the essential elements of the plaintiff’s case, the trial court could not set aside the verdict as against the weight of the evidence. Where defendant has failed to offer any evidence, plaintiff is entitled to all favorable inferences legitimately arising from the evidence, and a verdict for the plaintiff should remain undisturbed unless it clearly appears that it was the result of passion or prejudice or contrary to the clear weight of the evidence. Moffitt v. O. L. D. Forwarding Co., 331 Ill. App. 278; Kelley v. United Benefit Life Ins. Co., 275 Ill. App. 112. A verdict will not be disturbed as contrary to the evidence, where it fairly tends to prove the allegations of the complaint, and the defendants have not taken the stand and testified in contradiction of the facts prima facie established by the plaintiff’s proof. Earp v. Lilly, 120 Ill. App. 123. In the case of Graham & Morton Transp. Co. v. Owens, 165 Ill. App. 100, the court said:

“As to the merits of the case at bar, six witnesses testified in behalf of appellant, but appellee did not submit any testimony. After a careful consideration of the testimony, ... we think it fully justifies a finding against the defendant ....

“We cannot doubt from the testimony in the record that Owens, appellee, knew that the sugar he was getting from Fonger, was stolen, and while it is true, that the evidence in behalf of appellant is somewhat lacking in that definiteness which might be desired, yet, as the defendant produced no testimony, we are bound by the testimony offered in behalf of the appellant, together with all reasonable inferences to be drawn therefrom.”

The evidence in behalf of the plaintiff in the case before us was sufficient to establish liability. Neither the trial court nor a reviewing court can properly substitute its judgment for that of the jury merely because it might draw other conclusions from the evidence before it.

The plaintiff testified that at the time of the crash he “blacked out”; that when he got out of the cab of the tractor he felt “dizzy and numb”; that following the accident he was taken by a person to a store two blocks away and at that time he still felt dizzy and weak and was numb all over; that he was then taken to Detroit where he lay on a desk in the truck terminal for about three or four hours after taking aspirin, and during that time became violently ill. After he returned to Chicago he saw his attending physician, Dr. Romano, February 4,1954, two days after the accident. He was examined, given some pills, and told to remain in bed as much as he could, and x-rays were taken. He had no outward evidence of injuries, such as bruises, lacerations, cuts or bumps on any part of his body, and the x-rays were negative.

Dr. Romano testified that he made a complete physical and neurological examination on the plaintiff’s first visit and that he found no bruises, contusions or neurological findings suggesting a skull fracture. His diagnosis was that the plaintiff had suffered a cerebral concussion with possible concussive post cranial syndromes and neuroses and that such conditions could result without a blow on the head; that there might be a shaking of the head so violent that it would cause trauma to the brain itself and that such an injury would not be shown by objective findings. It should be noted that the collision was one of considerable force. The left front corner of the defendant’s trailer was caved in at least three or four feet. The coupling between the plaintiff’s tractor and the trailer was broken, the trailer (loaded with 20,000 to 25,000 pounds of freight) was tipped over, and the tractor ended up facing in the opposite direction.

On September 24,1954 Dr. Romano sent the plaintiff to Dr. Joshua I. Spiegel, brain surgeon and neurologist, who gave him a neurological examination and examined the x-ray report. He found no objective symptoms. He made a diagnosis and discussed the matter with Dr. Romano. Testifying over objection, Dr. Spiegel stated that his diagnosis was a post concussion syndrome, and that on January 14,1955 he again gave the plaintiff a neurological examination and reached the same diagnosis. Dr. Spiegel was asked a hypothetical question and over the objection of the defendant gave as his opinion that the plaintiff’s present state of ill-being “might or could have been, or resulted from the accident described.” He then testified over objection that it was impossible for him to give an opinion as to whether or not the injury was permanent, but stated that some patients take years to get well — other patients do not get well. Dr. Romano also testified, over objection, that in his opinion there could or might be a causal relation between the accident and the present ill-being of the plaintiff, and that the plaintiff will continue to have pain for an indefinite period of time. On the witness stand plaintiff complained of dizziness “in my head” and “a sort of heaviness in the back of my head” and about “the pain that travels over to the left front which caused the trouble of my headaches that I got.”

Defendant strenuously argues that the court should not have permitted either Dr. Romano or Dr. Spiegel to answer the hypothetical question concerning causation. With reference to the testimony of Dr. Romano it has been held that an attending physician may make a diagnosis based completely on subjective findings. Kaufman v. Kaufman, 164 F.2d 519, and see Wigmore on Evidence, 3rd Ed. Sec. 688. This is more particularly true when the disability is psychiatric or neurological in character. It has long been the rule in this State that the attending physician may testify as to the statements made to him by the plaintiff concerning his condition, if such statements had guided him in making his diagnosis. Devine v. Rothschild, 178 Ill. App. 13; Quirk v. Schramm, 333 Ill. App. 293; Olin Industries v. Industrial Commission, 394 Ill. 202; Griswold v. Chicago Rys. Co., 253 Ill. App. 498. The defendant insists, however, that Dr. Spiegel should not have been permitted to answer the hypothetical question with reference to the possibility of the conditions having resulted from the accident because he had based his entire diagnosis upon subjective findings, and because, as defendant contends, he having examined the plaintiff solely for the purpose of testifying as an expert, must confine his testimony solely to objective symptoms. It is undoubtedly the law that the testimony of a physician examining a patient solely for the purpose of testifying in the trial as an expert witness is confined solely to objective symptoms. Sanitary Dist. of Chicago v. Industrial Commission, 343 Ill. 236; Casey v. Chicago City Ry. Co., 237 Ill. 140; Greinke v. Chicago City Ry. Co., 234 Ill. 564. However, the record here shows that the plaintiff was sent to Dr. Spiegel by Dr. Romano because Dr. Spiegel was a specialist and consultant in neurology and psychiatry and that Dr. Romano subsequently did consult with Dr. Spiegel concerning the plaintiff. Therefore Dr. Spiegel was not in the category of a physician examining the plaintiff for the sole purpose of testifying at the trial of the case.

In its brief the defendant makes the statement that Dr. Spiegel stated “in his opinion the plaintiff’s present condition was due to injuries received in the accident and that the same were permanent” and that Dr. Romano testified that “there was a causal relationship between the accident and the patient’s present alleged state of ill-being.” This is not borne out by the record. Both physicians testified that there might or could be a causal relation upon the facts in the record set forth in the hypothetical question propounded to them. The rule has been laid down repeatedly by our courts that only where there is no dispute as to whether or not the plaintiff was injured as a result of the occurrence in question can the expert categorically state that the injury did or did not cause the physical or mental conditions complained of. Where there is a dispute as to the injury, then the attending physician or the physician testifying as an expert may be properly asked as to whether he can state with a reasonable degree of medical certainty whether there might or could be a causal relation between the facts assumed in the hypothetical question and the condition of the hypothetical patient. Kimbrough v. Chicago City Ry. Co., 272 Ill. 71; City of Chicago v. Didier, 227 Ill. 571; Hogmire v. Voita, 319 Ill. App. 644; Jannusch v. Weber Bros. Metal Works, 249 Ill. App. 1; Klinke v. Great Northern Life Ins. Co., 318 Ill. App. 43. The hypothetical question in the case before us was couched in the approved form, and the trial court properly allowed the physicians to testify.

The defendant also objects that it was prejudiced by improper argument of counsel for the plaintiff. Plaintiff’s counsel, with reference to the absence of the driver of defendant’s truck, argued that where a witness is available to the defendant who is not produced at the trial of the case it will be presumed that he would testify unfavorably to such defendant unless the latter accounts for not producing him at the trial, and that the absence of the witness was not adequately explained. In his opening statement counsel for the defendant told the jury that Mr. Price, the driver of the defendant’s tractor at the time of the collision, was no longer with the company and had not been for some time, that the defendant was attempting to locate him so as to have him testify at the trial, that at that time defendant was unable to do so, and that Mr. Price might or might not testify. During the trial, the executive personnel and transportation director for the defendant company testified that Price was not with the company and had not been since October 10,1954, when he left the employ of the company. This is the only evidence in the record which attempts to explain the absence of the driver.

The right of counsel to make such comment is thoroughly discussed in Beery v. Breed, 311 Ill. App. 469, which was a case where the defendant failed to offer any testimony, and the court therein held that where the plaintiff makes a prima facie case the failure of the defendant to produce any evidence warrants the inference that the testimony would be unfavorable to him and that comment on such failure is proper. In Corso v. Knapp, 347 Ill. App. 556, it was held that where a party attempts an explanation of why a witness was absent the other party has a right to comment on what he considers the inadequacy of the explanation.

Counsel for the plaintiff had also argued that a Dr. Harold C. Voris who examined the plaintiff should have been produced. In his opening statement counsel for the defendant said: “We have the privilege for medical examination by the ruling of the court, which is part of our position what we intend to prove by the doctor to show he has no injury, but the condition Mr. Santiemmo testified to, whether it was a mental one, or whatever it might be, nothing was injured, or no injury at all in connection with this accident.” The plaintiff in his testimony stated that he had been examined also by a Dr. Voris, and in his argument to the jury counsel for plaintiff commented on the absence of the doctor at the trial, informing the jury that the plaintiff had been examined by order of court by a doctor on behalf of defendant.

The comment of counsel for the plaintiff on the absence of the witnesses was in our opinion proper. If so, the instruction given on behalf of the plaintiff was also proper. An instruction in substantially the same form was approved in Petersen v. General Rug & Carpet Cleaners, Inc., 333 Ill. App. 47.

A witness for the plaintiff, one David Elliott, in his testimony stated that the plaintiff’s truck was on its own side of the road and not near the center line; that the defendant’s truck was either on top of the center line or beyond it, that the side of its equipment was in the center of the road and south of the center line; and that he could not tell in inches and feet the relative positions of the trucks with reference to the center line. Previous to the trial a statement was taken from the witness, and in the statement the witness said: “I cannot make a definite statement concerning the position of the two units in relationship to the center line.” This portion of the statement was read to the witness on the trial, and he said that he did not know whether he had made the statement or not but that he would not deny that he made the statement at the time it was taken. The statement was signed by the witness. He had written on the statement: “This was read to me and corrections made; however, the final draft has not been made.” It was dated January 17, 1955 and was signed by the witness. On the trial the witness stated that he had not read the statement but he had signed it merely for the purpose of identification, and stated that the man who took the statement had assured him that he would prepare another draft of the statement and submit it to him. The witness was thoroughly cross-examined upon the statement. The entire impeaching value of the statement hinges on the meaning given the word “definite.” It could properly be found that when the statement was given the witness meant no more by “definite” than that he could not fix the position of the trucks in inches and feet with reference to the center line. So interpreted, the statement was not contradictory of the evidence given by the witness from the witness stand. The court subsequently refused to admit the statement offered by defendant and defendant makes no point on this ruling. In any case, the rule is that in order to have such a statement admitted where the witness has stated that he could not tell whether or not he made the statement, it is necessary to produce the person who took the statement. The defendant in his examination got the statement before the jury, and under all the circumstances in the case comment upon the failure to produce the witness was proper. Beery v. Breed, supra; Corso v. Knapp, supra; Ranz v. Yaschenko, 329 Ill. App. 274.

Counsel also complains concerning certain instructions given on behalf of the plaintiff by the court, and objects to an instruction quoting the Michigan statute to the effect that whenever any roadway has been divided into “two or more clearly marked lanes for traffic” that a vehicle should be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. The defendant argues that there is nothing in the evidence indicating that the road on which the accident occurred was clearly marked for specific lanes of traffic. The jury had before it pictures of the road showing a division and the evidence indicates that the road was so divided. The instruction was proper.

The defendant also urges that the court erred in giving the following instruction :

“The court instructs the jury that if you find from the evidence in this case that the plaintiff was free from contributory negligence and that the accident herein was caused solely by the defendant’s vehicle being on the wrong side of the street, you should find the defendant guilty.”

Defendant argues that the instruction lacked any reference to proximate cause and assumed that the defendant was in fact on the wrong side of the highway. In his preliminary statement counsel for the defendant said that he would leave it for the evidence to show as to whether or not the defendant’s truck was over the center line and that it could have been an inch or two over. The evidence on behalf of the plaintiff that the defendant’s vehicle was across the center fine and on the wrong side of the road was uncontradicted. It has been held that if words are used in an instruction which have the same meaning as “proximate cause” the instruction is not erroneous. Chicago & E. I. R. Co. v. Crose, 214 Ill. 602; Beery v. Breed, 311 Ill. App. 469; Bobalek v. Atlass, 315 Ill. App. 514. If the accident was caused solely by the defendant’s vehicle being-driven on the wrong side of the road, it must have been the proximate cause of the accident.

Defendant also earnestly urges that the court erred in giving an instruction on behalf of the plaintiff with reference to the measure of property damages. The court instructed the jury that the rule which should be applied, was, that where the vehicle can be repaired, the measure of damages is the reasonable cost of making the necessary repairs.

An estimate proffered by the plaintiff showing the cost of repairs of his truck to be $4,417.76 was admitted by stipulation of the parties. The plaintiff testified that the tractor was his own equipment which he had purchased in the latter part of 1951 for $8,300 and that at the time of the accident the equipment was in good condition; that the tractor was a G-MC tractor with a “million miler” engine and had been driven 160,000 to 180,000 miles; that he did not know how much a similar tractor would be worth on the general market on the date of the occurrence.

A witness on behalf of the defendant was qualified as an expert. He testified that he had made an estimate of the cost of repairs to the truck in the amount of $1,963.40, but that he could not give an estimate of what the mechanical repairs would be to the inside of the housing if mechanical damage had been done; and that he did not take down the housing. The estimate, admitted in evidence, contained a statement that “There is some doubt on the trans. and rear axle. Engine will be checked in garage and estimated therein.” The witness also testified that at the time he examined the vehicle it was in his opinion capable of being repaired. He also testified that at the time of the occurrence the value of a similar tractor with the same mileage would be between $3,300 and $3,700. The evidence as to value was uncontradicted and was not discredited. The defendant contends that the instruction proffered by the plaintiff was improper in that since this evidence was in the record the instruction should have included a statement that the cost of repairs should not exceed the value of the property before it was injured.

Where property has been injured by a defendant and can be repaired, the true measure of damages is the reasonable cost of repairs providing that it is less than the value of the property before the injury. McDonell v. Lake Erie & W. R. Co., 208 Ill. App. 442, 454. The purpose of awarding compensatory damages is to make the injured party whole, but not to enable him to make a profit on the transaction. The plaintiff could not recover the cost of repairs exceeding the value of the truck. The jury had before them the estimate of the plaintiff in the amount of $4,417.76. TMs estimate was $717.76 over the highest value placed on the truck by the defendant’s witness. The amount of the verdict should be reduced by that sum.

We have carefully examined the other instructions which defendant urges were erroneously given on behalf of the plaintiff, and find no error in the ruling of the court.

The defendant also urges that the verdict is so excessive that it indicates it was the result of passion, prejudice or sympathy, and contends further that it was not supported by the evidence. We have carefully examined the record and find that the verdict was supported by the evidence, and we find nothing to indicate that it was the result of passion or prejudice on the part of the jury. The question of damages is ordinarily one of fact for the jury to determine and the court cannot substitute its judgment for the judgment of the jury. Dodds v. Chicago Transit Authority, Gen. No. 46645 filed February 21, 1956; Garner v. Burns Mid-Town, Inc., 346 Ill.App. 162; Levanti v. Dorris, 343 Ill. App. 355; Gorczynski v. Nugent, 335 Ill. App. 63; Mueth v. Jaska, 302 Ill. App. 289. However, as we have pointed out, we feel that on the issue of property damage the judgment is excessive in the amount of $717.76. If the plaintiff will file with the clerk of this court within twenty days a remittitur in such amount the judgment of the Circuit Court will be affirmed; otherwise the judgment will be reversed and the cause remanded for a new trial.

Affirmed upon filing remittitur; otherwise reversed and remanded.

ROBSON and SCHWARTZ, JJ., concur.


source: Caselaw Access Project

author: JUBGE BOBSON

license: Public Domain

text:
    Peter B. Schyman, Appellant, v. Department of Registration and Education of State of Illinois, Administrative Agency, and C. Hobart Engle, et al., Appellees.
    Gen. No. 46,640.
    First District, Second Division.
    April 3, 1956.
    Rehearing denied April 24, 1956.
    Released for publication April 24, 1956.

      Albert W. Dilling, Kirkpatrick W. Billing, and G. Wallace Both, all of Chicago, for appellant.
    Latham Castle, Attorney General of State of Illinois, of Chicago, for appellees; William C. Wines, Baymond S. Sarnow, A. Zola Groves, and Bobert E. Cleveland, Assistant Attorneys General, all of Chicago, of counsel.'
   JUBGE BOBSON

delivered the opinion of the court.

This is an appeal from an order of the trial court affirming the final administrative decision of the defendant Bepartment of Begistration and Education revoking plaintiff Peter B. Schyman’s license to practice medicine. The appeal was originally filed in the Supreme Court and transferred by it to this court.

Plaintiff’s contentions pertaining to due process of law as guaranteed to him by Sec. 2, Art. II of the Constitution of the State of Illinois and Amendment XIV to the Constitution of the United States, cannot be passed upon by us. We must assume that the Supreme Court in transferring the case to this court decided that these issues were not material to the ultimate decision of the appeal.

The principal grounds plaintiff alleges for reversal of the order of the trial court which are properly before us are that (1) the complaint filed against plaintiff was void because of the failure to mention specifically the place where the offense charged against plaintiff was committed; (2) the evidence adduced at the hearings did not support the findings of the administrative agency; (3) certain evidence introduced involving persons and criminal charges that were not connected with or related to plaintiff or the issues at bar, constituted such error as to render the proceedings void and of no effect; and (4) the delegation to the Medical Examining Committee to pass upon purely legal questions constitutes an illegal sub delegation of power.

The complaint was in the nature of an information filed by one Marjorie Taylor who presented herself to the plaintiff for treatment of diabetes. It was amended, and as one of the principal grounds for reversal is the inadequacy of this complaint, we here quote the charges .therein:

“2. That said Peter B. Sehyman, on or about the 16th day of December, A.D., 1949, has held himself out as a specialist in the treatment of many human diseases and particularly diabetes, claiming to use a method for treating said disease and using a certain medicine that will aid in the treatment and cure for said disease of diabetes. The said Peter B. Sehyman so holds himself out and makes such claims knowing that such claim and representation is false and of no value; that such claim as to the efficacy of said medicine and treatment is entirely contrary to all regular methods of treatment employed by members of his profession and school of training who are specialists in the treatment of diabetes;

“3. That said Peter B. Sehyman, on or about the 16th day of December, A.D., 1949, recommended and prescribed to your relator, a certain liquid medicine that the said Peter B. Sehyman uses in treating and curing diabetes and led relator to believe that said liquid medicine was compounded of substances of great medical value; that the said Peter B. Sehyman well knew such representations were grossly inaccurate and untrue; that the said Peter B. Sehyman well knew that the formula for said medicine was developed by one Charles F. Kaadt and one Peter S. Kaadt of South Whitley, Indiana, and doing business as the Kaadt Diabetic Clinic at South Whitley, Indiana; that the said Peter B. Sehyman well knew that on May 4,1948, in the U. S. District Court, Northern District of Indiana at Fort Wayne, Indiana, the said Peter S. Kaadt and Charles F. Kaadt were convicted and sentenced on the charge of shipping interstate drugs falsely claimed to cure diabetes.

“4. Relator further states that the said Peter B. Schyman, after recommending and prescribing said medicine as stated in paragraph three (3) gave relator a one gallon jug of said medicine and received from relator the sum of thirty ($30.00) dollars; that the said Peter B. Schyman gave relator full written instructions for taking said medicine.”

The complaint is informal. It does not mention specifically the place where the offense charged against the plaintiff was committed and plaintiff contends that it is the law of this state that not only the time but also the place of the alleged offense must be stated in the complaint or other documents setting forth the charges. Section 60(c) of the statute governs the procedure to be taken by the Department of Registration and Education ,of the State of Illinois (Ill. Rev. Stat. 1953, ch. 127, secs. 58-63) in revoking a license. The pertinent part pertaining to this issue is as follows:

“Certificates may be revoked or suspended in the manner provided by this Act and not otherwise. The Department may upon its own motion and shall upon the verified complaint in writing of any person, provided such complaint or such complaint together with evidence, documentary or otherwise, presented in connection therewith shall make a prima facie case, investigate the actions of any person holding or claiming to hold a certificate. Before suspending or revoking any certificate, the Department shall issue a citation notifying the registrant of the time and place when and where a hearing of the charges shall be had. Such citation shall contain a statement of the charges or shall be accompanied by a copy of the written complaint if such complaint shall have been filed. . .

An examination of this section does not indicate that the allegation of the place where the offense occurred is a substantive requirement. It is the law that charges filed before an administrative agency need not be drawn with the same nice refinements and subtleties as pleadings in a court of record. Joyce v. City of Chicago, 216 Ill. 466; Davis v. Board of Registration of Medicine, 251 Mass. 283. The defendant, however, must be reasonably apprised by the complaint of the case against him so that he will be able to intelligently prepare his defense. Smith v. Department of Registration and Education, 412 Ill. 332. Plaintiff, however, contends that the construction of the Act should be highly technical and we should require set specifications for every case regardless of the particular situation. As authority for this he cites Kalman v. Walsh, 355 Ill. 341, which involved the revocation of a dentist’s license. The court said, p. 346:

“While it is not necessary that charges of professional misconduct, proof of which would justify the suspension or revocation of the license of the practitioner, should be drawn with the same accuracy and certainty as an indictment or information in a criminal case, . . . yet such charges should be so drawn as to bring the alleged act of misconduct clearly within the purview of the statute and should specify the time and place when and where such prohibited act was committed. The right to proper notice and a sufficient and explicit charge is not procedural but substantive. In the absence of such charges being filed the State Board of Dental Examiners would have no jurisdiction either to proceed with the hearing against the accused or to make a decision therein.” (Italics ours.)

He places great stress on the language “and should specify the time and place when and where such prohibited act was committed.” It is apparent from the reading of this case that the complaint was completely inadequate in every respect. In Tarr v. Hallihan, 375 Ill. 38, the Kalman case is discussed. The court said as to the Kalman case: “. . . it is not controlling here. The basis of that decision . . . was that no charges, as a matter of fact, had been filed against the dentists involved, but that they were merely notified the department was going to conduct a hearing in the nature of an investigation by a grand jury to determine whether or not they had violated any of a number of provisions of the Dental Practice Act.” Later in the same case the court said: “It is sufficient that the practitioner be fairly and reasonably apprised of the acts of misconduct with which he is charged so that he may properly prepare to defend such charges.” This would seem to be a proper test for determining whether or not the complaint in the instant case is sufficient.

Is the complaint as filed in the instant case definite enough to reasonably apprise plaintiff of the charges against him even though the place of the occurrence of the prohibited act was not specified? In the case of In re Van Hyning, 257 Mich. 146, this issue was discussed. The charges against Van Hyning were as follows:

“Violation of Section 3, p. 6 of Act No. 237, Pub. Acts of 1899 as amended, ‘grossly unprofessional and dishonest conduct’ as defined in this section, and in particular with having professional connection with and lending your name to an unlicensed individual in the person of Harry M. Hoxsey, who on March 9, 1931, examined and diagnosed an alleged physical condition in one Otto Fischel. Further that said Harry M. Hoxsey is not licensed to practice medicine in the state of Michigan.”

In deciding that this was a sufficient complaint to give the board authority to revoke the physician’s license, the court said at p. 148-9:

“It is claimed that these charges were not sufficiently specified. It is true that they were not stated as clearly and connectedly as they probably would have been if drafted by a lawyer. In proceedings of this kind it is not necessary that they be stated with that exactness required of court pleadings. It is sufficient if they inform the defendant with substantial certainty in what manner he has been guilty of unprofessional and dishonest conduct. ... We think it was stated with sufficient certainty to reasonably inform him of what he was required to answer when he appeared at the hearing.”

Plaintiff in the instant case was certainly afforded a more specific and more adequate complaint than was the physician in the above Michigan case. It is inconceivable that plaintiff was placed at any disadvantage by virtue of the omission complained of. The fact that the complaint did not say that this all happened in Chicago did not prevent plaintiff from understanding the charges against him or from preparing a defense. There is no question but that plaintiff was informed as to where his alleged misconduct occurred long before the hearing. Defendant’s discovery deposition dated June 27, 1950 (five months before the hearing) stated that this all occurred when she visited his office. The complaint itself stated that both complainant and plaintiff lived in Chicago, and also gave the date of the occurrence in question. We conclude that the amended complaint was sufficient to apprise plaintiff of the charges made against him.

The second contention of plaintiff that we will consider is that the evidence does not support the findings of the Special Medical Examining Committee, which were approved by the director of the Department of Registration and Education and affirmed by the trial court.

The findings of the Commission were as follows:

“1. That the respondent, Peter B. Schyman, is duly licensed to practice medicine in all its branches in the State of Illinois.

“2. The Committee finds from the evidence that the respondent, Peter B. Schyman, holds himself out as a specialist in various branches of medicine; that in the Bed Book, Chicago Classified Telephone Directory of December, 1950, the said Peter B. Schyman is listed under the following medical classifications:

a. Physician and Surgeon

b. Chiropractor

c. Osteopath

d. Naturopath

“3. The Committee further finds from the evidence that on December 15, 1949, Mrs. Marjorie Taylor, also known as Marjorie Hackett, went to the office of Dr. Peter B. Schyman at 1869 North Damen Avenue, Chicago, Illinois; that at this office on the above mentioned date, she talked to the respondent, Dr. Peter B. Schyman, and told him she was a diabetic and ‘heard it is possible to obtain from you the medicine that used to be available in Indiana and I want to get some’; that Dr. Schyman then told Mrs. Taylor to sit down and he would talk to her in a few minutes, that he was busy with another patient at the present time.

“4. That thereafter Mrs. Taylor left the office of Dr. Peter B. Schyman at 1869 North Damen Avenue, Chicago, Illinois, but called him on the telephone on the same evening to apologize for leaving and to make another appointment for the next day, to-wit: December 16, 1949; that in said telephone conversation Dr. Peter B. Schyman asked Mrs. Taylor, among other things, how long she had had diabetes and how much insulin she was taking and other questions pertaining to her statement that she was suffering from diabetes for three and one-half years.

“5. That another appointment was made for Mrs. Taylor to return to the office of Dr. Peter B. Schyman at 1 p. m., on December 16, 1949, in Chicago, Illinois; that at the said time Mrs. Taylor did appear at the office of Dr. Schyman at 1869 North Damen Avenue, Chicago, Illinois. After a short wait the said Mrs. Taylor was taken into a room off the reception room, commonly called a consulting room, by Dr. Peter B. Schyman; that the said Dr. Peter B. Schyman then proceeded to examine Mrs. Taylor; that the said Dr. Peter B. Schyman took her blood pressure, examined her heart and analyzed a urine specimen that the said Mrs. Taylor had brought with her to the doctor’s office.

“6. That during said examination Mrs. Taylor again said to Dr. Schyman that ‘she wanted to get this new medicine, because I was tired of taldng insulin hypodermically’; that Dr. Schyman then told Mrs. Taylor that this medicine was new stuff and that the people who made insulin objected; that the said Dr. Schyman further told Mrs. Taylor ‘Well, of course you understand that you can’t cut out insulin right away, that you use this stuff and it reactivates your glands so that you should be able to cut down the use of insulin gradually, probably at the rate of five units a month.’ That Dr. Schyman further told Mrs. Taylor it was a new medicine and that he had become interested in it through a patient of his, a Mrs. Kaadt and through her he was able to make this stuff available to diabetics and that he was organizing a research institute for the purpose of finding a new cure for diabetes; that after said conversation and examination the said Dr. Peter B. Schyman said he would get the medicine for Mrs. Taylor and the said Mrs. Taylor returned to the reception room.

“7. The Committee further finds from the evidence that the medicine was then brought to Mrs. Taylor; that a further conversation was then held between Mrs. Taylor and Dr. Schyman as to how to take the medicine ; that the said Dr. • Schyman asked Mrs. Taylor when she would return for some more and being advised that Mrs. Taylor would be back in Chicago around Easter, Dr. Schyman then said as follows: ‘Ordinarily people take three tablespoonfuls a day in a glass of water before each meal’; that he then advised Mrs. Taylor if she took the said medicine in the above dosages, the gallon of medicine would not last until the middle of March; that then the said Dr. Peter B. Schyman gave Mrs. Taylor written instructions, that is known as Delator’s Exhibit No. 1, in this proceeding on specific directions to take said medicine; that said directions called for teaspoonfuls in lieu of tablespoonfuls and a reduction as ordinarily taken as above mentioned; that for his services and medicine Mrs. Taylor paid to Dr. Schyman the sum of thirty (30.00) dollars.

“8. The Committee further finds from the evidence that the medicine given to Mrs. Taylor is not in fact, nor is there any reputable medical learning or opinion indicating that it is, either a cure, or preventive for diabetes and that the administration thereof is without therapeutic value in diabetes cases.

“9. The Committee further finds that the respondent’s statement to Mrs. Taylor that this medicine or material reactivates your glands so that you should be able to cut down the use of insulin gradually, probably at the rate of five units a month, is not a statement in accordance with any reputable medical learning; it was false and was either known by the respondent, Dr. Peter B. Schyman, to be false or was made by him with reckless and wilful disregard as to truth or falsity. Wherefore, the Committee finds said statement false, fraudulent and of no value.

“10. The Committee, therefore, finds and declares that the respondent, Dr. Peter B. Schyman, has held himself out to treat human ailments by making false statements, by making false claims of his skill and by making false claims as to the efficacy and value of his medicine and remedy, knowing such statement to be false within the purview of Paragraph 8 of Section 16 of the Illinois Medical Practice Act.

“11. The Committee further finds that the respondent, Dr. Peter B. Schyman, does not possess the personal or professional fitness to practice medicine in all its branches.”

The record of the testimony upon which the Committee based its findings reveals that four witnesses testified for defendants. Marjorie Taylor testified that on December 15,1949, she went to plaintiff’s office with John Hoder, an inspector for the Department of Registration and Education of the State of Illinois. This was done at the suggestion of Norma Lee Browning, a reporter for the Chicago Tribune. Hoder introduced himself and her to plaintiff as Mr. and Mrs. Hackett from Pana, Illinois. She talked to plaintiff and told him she was a diabetic; that she had heard it was possible to obtain from him medicine that was formerly available in Indiana. Plaintiff told her to wait, that he was busy and would be with her in a few minutes. She and Hoder left. She called plaintiff that evening on the telephone and apologized for leaving. She made another appointment for the next day. In her telephone conversation with plaintiff she was asked how long she had had diabetes and how much insulin she was taking. She told him she took twenty-five units of regular insulin once a day in the morning; that she had had a blood sugar test about six months ago and that her urinalysis was all right. Plaintiff suggested that she go to a certain laboratory to have her urine tested. The next day, December 16, 1949, accompanied by George Woltman, a reporter for the Chicago Tribune, she went to plaintiff’s office. Woltman was introduced to plaintiff by Mrs. Taylor as her brother-in-law. After a short wait she went into a consultation room with Bernice Martin, a part time receptionist, who took her case history. She had a specimen of urine with her. Shortly thereafter plaintiff came into the room and proceeded to examine her. He took her blood pressure and analyzed the urine specimen. He asked her if she had gone to the laboratory to have her urine tested and she said that she had not; that it was not convenient for her to do so. When he returned he told her that she should drink goat’s milk, that it was better than cow’s milk. He asked her if she took vitamins and she told him that she did not. He told her that she should take them. He asked her if she ate candy and she told him that she did not; that when she craved something sweet she ate dates. He told her that dates were fine and that she could use honey or dried fruit. She told him she wanted to get his new medicine because she was tired of taking insulin hypodermically. Plaintiff told her that ordinarily he didn’t prescribe the medicine to someone who had not taken it but if she wanted to try it there was no reason why she shouldn’t. He told her that it was new stuff and that people who made insulin objected because they have a good thing in insulin; that the discovery of insulin probably set back the research for a cnre for diabetes one hundred years; that insulin controls the disease but doesn’t cure it; that you have to keep taking it always. She told him that that was why she wanted to try the new stuff. Plaintiff told her that she could not cut out insulin right away; that the use of the new medicine reactivates the glands so that she would be able to cut down the use of insulin gradually, probably at the rate of five units a month; that if she was taking twenty-five units now, and took the new medicine, she could get along with twenty units of insulin the first month, fifteen units the next month, and so on. He said he became interested in the medicine through a patient of his, a Mrs. Kaadt who had come to him as a heart patient and was also a diabetic; that through her he was able to make the medicine available to other diabetics, and that he was organizing a research institute for the purpose of finding a cure for diabetes; that this was what he was working on in his research institute.

Plaintiff excused Mrs. Taylor and she went out to the waiting room. Shortly thereafter Mrs. Martin, plaintiff’s receptionist, came out carrying a one-gallon jug of the medicine. She put it in a paper shopping bag and handed it to Mr. Woltman. Mrs. Taylor then asked to see the plaintiff to get directions about taking the medicine. She went to a place in his office with a sign over it that said “pharmacy.” He told her he was looking for some vitamins for her and she said that she would get them at the drug store. He gave her directions for taking the medicine. Plaintiff asked her when she would be back in Chicago and she told him around Easter. He told her that she was to take three tablespoons of the medicine a day; one tablespoon in a glass of water before each meal; that if she took the medicine in those dosages the gallon would not last until the middle of March. He then gave her written directions as to the taking of the medicine. She paid him $30 for it. On cross-examination she admitted that she did not have diabetes; that Miss Browning of the Tribune asked her to go to plaintiff’s office to get material for a story; that she used the name of Marjorie Hackett at Miss Browning’s suggestion; that she did not live in Pana, Illinois; that Mr. Woltman was not her brother-in-law ; that she had never taken insulin; that she made a report of her visit to plaintiff’s office.

Mr. Albert A. Uebbing, a witness for defendants, testified that he was an analytical chemist, employed by the Miner Laboratories in Chicago, Illinois; that a gallon of medicine marked “diabetes medicine” was delivered to him with a letter from the managing editor of the Tribune. He made a qualitative analysis limited to vinegar, saltpeter and a malt product. This was a partial analysis. A report of the test was sent to the Chicago Tribune, attention Miss Horma Lee Browning.

Dr. Robert W. Keeton, testifying for defendants, said he was a physician and a professor of medicine. He was licensed to practice medicine in all its branches in 1916. He was the head of the Department of Medicine, and professor of medicine at the University of Illinois. He specializes in internal medicine, with special reference to diabetes and metabolic disorders. He belongs to the Chicago Medical Society, the Illinois Medical Society, the Institute of Medicine and the Chicago Society of Internal Medicine. (The parties stipulated that he was well qualified to testify as a witness.) He examined the report of the analysis made by Mr. Albert A. Uebbing and stated that the medicine in question containing vinegar, saltpeter and a malt product would have no therapeutic value in the treatment of diabetes. He said that he knew of no medicine that could be taken by mouth that had any therapeutic value in the treatment of diabetes; that about twenty-five years ago a compound was used but that it was found that it damaged the liver and had no true therapeutic effect; that the various elements contained in the medicine had no therapeutic value in the treatment of diabetes. In the course of his practice he had never prescribed or used a compound containing any of the elements mentioned in the report in the treatment of diabetes. He said that honey was not harmless for a diabetic, and that doctors do not normally prescribe dates and things of that kind for diabetes.

George G, Woltman, a reporter for the Chicago Tribune, testified for defendant. His testimony corroborated Marjorie Taylor’s statements as to her going to the office and meeting with plaintiff’s employee, Mrs. Martin. He did not hear any of the conversation between Mrs. Taylor and Mrs. Martin when she went into the consultation room, nor between Mrs. Taylor and plaintiff when she was in his office. He corroborated the testimony between Mrs. Taylor and plaintiff when she came out of plaintiff’s office and received directions from plaintiff as to the taking of the medicine contained in the one-gallon jug.

The testimony introduced by plaintiff was his own and that of his employee, Bernice Martin. Plaintiff testified that he was a general practitioner and did not specialize in any particular branch of medicine; that he did not hold himself out as a specialist in the treatment of diabetes; that Mrs. Taylor visited his office as a patient on the 15th and 16th of December; that he did not tell her he had a certain medicine that would aid her in eliminating the use of insulin in the treatment of diabetes, and that he was of the opinion she was not suffering from diabetes. After questioning and examining Mrs. Taylor he came to the conclusion she had nervous indigestion; that she might have thought she had diabetes but that as a result of his diagnosis he excluded it entirely; that he did not prescribe anything for her that was intended as a remedy for diabetes; that the medicine he prescribed was to improve her appetite and not to help her with diabetes, but that she insisted on having some of the medicine and as a matter of fact she stated she wanted a whole gallon of it. The other part of his testimony on direct examination was a contradiction of all the statements made, by Mrs. Taylor.

On cross-examination he said that he was listed in the Red Book, the Chicago classified telephone directory, as a physician, as a chiropractor, as an osteopath and as a naturopath. He said he had special courses in chiropractic and a degree in it. He gave adjustments in connection with physical therapy. The purpose of the listing under the heading of chiropractors was to inform the public if they wanted chiropractic treatment they could get it from him. A chiropractor holds himself out as a chiropractor for manipulation and you could call him a specialist in that particular field. He gave physical therapy and that in a sense is a specialization in the field of medicine. He studied osteopathy and practiced it and is licensed as an osteopath. He authorized the placing of his name in the Chicago classified telephone directory under the various classifications by the R. H. Donnelley Corporation. He stated that he also did rupture work and fitted trusses to patients. He is not listed in the telephone book in connection with this. Another party runs the truss business. The other party calls him in to make examinations for rupture.

Plaintiff said the reason he gave Mrs. Taylor the gallon of medicine was that she had asked for an acid-tasting medicine. He didn’t know whether this was exactly what she wanted but she was insistent. He said she had a neurotic or psychogenesis factor involved in her demeanor or conduct; that he wasn’t the type of a doctor to hold out something if a patient insists on it so long as it is not poisonous and if she thinks it is going to help her she can take it; that he was not a psychiatrist but since she insisted and was nervous, apprehensive, fidgety and restless he would let her have the medicine. When a patient goes to a doctor it is his duty to tell the patient what he has unless there is some other factor. Mrs. Taylor was a neurotic and a psychotic in his opinion. He said he knew of no cure for diabetes and no treatment other than the standard exercise and insulin and that the discovery of insulin set it back one hundred years. He said he was not a psychiatrist and that when he had mental patients he referred them to a psychiatrist. He was treating her mentally. He admitted he told her that if her condition continued she could reduce the insulin.

The testimony of Bernice Martin, plaintiff’s employee, corroborated the interview with Mrs. Taylor on December 16. She said that Mrs. Taylor told her that she was tired, nervous and had no pep nor ambition; that she mentioned something about an acid-tasting medicine that she wanted in order to gain weight and appetite. Mrs. Taylor said she had diabetes and that she took insulin on and off moderately. No testimony was introduced by plaintiff to deny that of the analytical chemist and Dr. Robert W. Keeton.

Eleven findings were made by the Medical Committee. The first ten findings are on questions of fact. Finding No. 11 is to the effect that the Committee finds that “the respondent, Dr. Peter B. Schyman, does not possess the personal or professional fitness to practice medicine in all its branches.”

The license to practice medicine is a very valuable right to plaintiff. If he is deprived of it he might well lose his means of livelihood. For this reason the burden is not only on the defendants to prove their case but they are required to do it by so-called “clear and convincing evidence.” Schireson v. Walsh, 354 Ill. 40, 45. However, when the Committee has made its findings which were adopted by the Director of the Department and affirmed by the trial court, then this court cannot reverse unless it appears to us that the ruling is against the manifest weight of the evidence. As we understand it, we must balance this requirement of “clear and convincing evidence” against the limitation on our own power to review. We have, therefore, first examined the record to determine whether in the first instance it could be said that the evidence presented by the defendants was clear and convincing. We find that it was. While it is true that the plaintiff denies much of the testimony we are of the opinion that this denial does not weaken the clear and convincing character of the defendants’ case.

Society places itself in the hands of plaintiff’s profession for protection of the life and health of the community. The practice of medicine, in addition to skill and knowledge, requires honesty and integrity of the highest degree. A patient that goes to a doctor is entitled to believe that as a result of his skill, knowledge and integrity he will honestly diagnose his corn-plaints of illness. When medication is prescribed to a patient as a result of a diagnosis, he is entitled to trust that it will have the necessary therapeutic and curative value to help alleviate or cure the illness of which he complains. The state under its police powers has the duty of protecting society from those of the profession who are not qualified to be the recipients of this trust. In this connection the state has the power to enact comprehensive, detailed and rigid regulations for the practice of medicine. People v. United Medical Service, Inc., 362 Ill. 442.

Inherent in this power of the state is the right to revoke the license of those who violate the standards it sets. Paragraph 8 of Section 16 of the Illinois Medical Practice Act (Ill. Rev. Stat. 1953, ch. 91, sec. 16a, par. 8) specifically provides for revocation and suspension of license or certificate of any person for “holding one’s self out to treat human ailments by maldng false statements, or by specifically designating any disease, or group of diseases and making false claims of one’s skill, or of the efficacy or value of one’s medicine, treatment or remedy therefor.”

An examination of the testimony of Marjorie Taylor and the other witnesses for the defendant shows that plaintiff prescribed medicine that he knew to be of no therapeutic value. He argues that Marjorie Taylor admitted that she did not have diabetes; that she came to his office at the behest of a newspaper reporter who desired to get a story. While these statements are correct, an investigation to apprehend those who violate the standards of the medical profession would be impossible if the investigator told the doctor she had no illness or cause for complaint. In the instant case when Marjorie Taylor came to plaintiff’s office for treatment it was his duty to properly diagnose her case. The diagnosis he claims to have made, but did not tell her of, was that she was a neurotic and a psychotic. If this was true he should have told her and sent her to a psychiatrist. He should have honestly informed her that she had no diabetes. If this had been done there would have been no cause for complaint. If he was to have taken her statements as true that she had diabetes and had prescribed medication that had the necessary therapeutic or curative values, again there would have been no cause for complaint. Instead, he pretended to diagnose her condition and prescribed a medicine which had no curative or therapeutic value and made a charge of $30.

In examining the testimony of Marjorie Taylor we find little, if any, discrepancy between her testimony on direct examination and on cross-examination. The same applies to the other three witnesses for defendant. On the other hand, there are marked discrepancies between plaintiff’s testimony on direct examination and on cross-examination. In many instances his answers were evasive and not responsive to the question. An examination of his testimony leads to but one conclusion : that he held himself out as a specialist in the field of medicine, chiropractic, osteopathy, naturopathy, and in the treatment of ruptures. The Committee did not believe his statements that he did not hold himself out to Marjorie Taylor as a specialist in diabetes, and there is no basis for disturbing this finding. After reading his testimony we can readily see why the Committee placed little credence in his statements.

Plaintiff’s third contention is that the admission in evidence of certain records of conviction in another state involving persons and criminal charges in no way connected with plaintiff constituted fatal error. The Medical Examining Committee permitted the introduction of certified copies of the opinions of an Indiana court and certified copies of judgment and conviction orders of Charles F. Kaadt and Peter S. Kaadt who were associated with the Kaadt Institute at South Whitley, Indiana. The record contains evidence from which an inference may be drawn that the medicine sold by plaintiff to Marjorie Taylor had some similarity to that prescribed by the Kaadt Institute at South Whitley, Indiana. We are of the opinion that in a court of law such conviction records would not have been sufficiently relevant for admission into evidence. However, an examination of the findings of the Committee in the instant case does not reveal that the Committee relied upon or even mentioned the Kaadts’ convictions.

Under the circumstances, were these records of conviction of such a nature that they prejudiced the Committee so that plaintiff did not have a fair and impartial hearing? Plaintiff cites Com’r of Union Drain Dist. No. 1 v. Smith, 233 Ill. 417; City of Naperville v. Wehrle, 340 Ill. 579, and Smith v. Department of Registration & Education, 412 Ill. 332, as supporting this contention. In each of these cases the court reversed the agency’s order because of a biased hearing where the prejudice was direct, personal and present from the inception of the hearing. It was capable of demonstration from the very beginning by the acts of the agency. In the instant case, the prejudice, if any, was created by the admission of the certified copies of the conviction of the Kaadts, which at best was irrelevant evidence. The admission of irrelevant evidence in administrative proceedings does not of itself require the reversal of the order of the administrative agency where there was independent probative evidence to support the order. In Sisto v. Civil Aeronautics Board, 179 F.2d 47, the revocation of a pilot’s license by the Civil Aeronautics Board was involved. Defendant objected to the admission of his two prior violations of regulations which were of a somewhat different nature. The court held at pp. 51-52 that:

“The admission of irrelevant or incompetent matter before an administrative agency does not constitute reversible error, if there is substantial evidence in the record to sustain the agency’s determination. This being the case prejudice cannot be alleged to the admission of improper evidence unless it be shown that the board relied on it . . . the Board itself in its findings, conclusions and orders took no notice thereof and in no way relied on them or even mentioned them. It found substantial grounds aliunde for supporting its order. Assuming therefore, arguendo, that these amendments were improper and irrelevant, the petitioner still cannot predicate error on their admission. And even less can he claim prejudice when he cannot demonstrate it ” (Italics ours.)

To reverse the findings of the Committee under such circumstances where it cannot be shown that the administrative board was prejudiced would amount to requiring such an agency to follow formal legal rules of evidence which it is not equipped to do.

As to the fourth point, that the delegation to the Medical Examining Committee to pass upon purely legal questions constitutes an illegal subdelegation of power, counsel for plaintiff argues that the members of the Committee passed upon purely technical legal questions with reference to the admission of evidence which they were not competent to do, and that upon questions of admission they relied upon counsel for the agency and as a result he acted as both prosecutor and judge.

The Medical Practice Act provides that the hearing be conducted by a Committee of five qualified doctors. In the instant case the Special Medical Examining Committee was specially appointed after plaintiff had filed a petition for change of venue from the original medical examining committee. No question was raised as to their competence or ability. From our examination of the record, the hearings were conducted fairly, impartially and in an orderly manner. Our examination also reveals no prejudice or preconceived notions on the part of any of the members of the Committee. They made their findings based on evidence that was properly before them.

The report of the Committee was filed with the director. Plaintiff filed his objections thereto. The director approved the report of the Committee. It is clear that the Medical Examining Committee exercised no final decision-making powers. It was merely a fact-finding body that made recommendations in a report to the director. Bodenweiser v. Department of Registration & Education, 347 Ill. 115, 121; Schireson v. Walsh, 354 Ill. 40, 45; Smith v. Department of Registration & Education, 412 Ill. 332, 333; Chicago College of Osteopathy v. Puffer, 3 Ill.App.2d 69. The director, though not possessing power to act without the Committee’s recommendations, in his sole discretion decides whether the Committee’s findings and recommendations shall be adopted by him and become final or the matter returned to the Committee for rehearing. (Ill. Rev. Stat. 1953, ch. 91, secs. 16b — 1, 16d; ch. 127, secs. 60, 60a.) An appeal may be had to the circuit or superior courts only if he adopts the findings and recommendations of the Committee. The Act empowered the director to exercise these quasi-judicial powers that were incidental to its administration. The hearing was not a judicial proceeding. The fact that in the performance of the duties imposed on the director under the Medical Practice Act it was necessary for him to exercise judgment and discretion does not constitute the exercise of judicial power. Toplis & Harding, Inc. v. Murphy, 384 Ill. 463; Department of Finance v. Gandolfi, 375 Ill. 237. Likewise under the Act, the Medical Examining Committee, acting as a fact-finding body that made the report to the director, was not exercising judicial power and its acts were not an illegal and unconscionable subdelegation of that power. Under the circumstances we do not see any merit to this contention of plaintiff.

As to acts of the attorney for the agency, the record does not reveal that he acted both as prosecutor and judge. We find nothing in the record to indicate that the Committee relied on his advice in making its rulings. He presented his arguments as an advocate in the same manner as counsel for plaintiff. This contention likewise has no merit.

The order of the trial court is affirmed.

Order affirmed.

MoCORMICK, P. J. and SCHWARTZ, J., . concur.


author: JUDGE ROBSON

text:
    Marion Connors, Appellee, v. Board of Education of City of Chicago, Benjamin C. Willis, General Superintendent of Schools, and Stephen E. Hurley et al., Defendants. Board of Education of City of Chicago, Appellants.
    Gen. No. 46,708.
    First District, Second Division.
    April 3, 1956.
    Released for publication April 24, 1956.

      Frank R Schneberger, of Chicago, for appellant; Frank S. Righeimer, and Hugh M. Simborg, both of Chicago, of counsel.
    Sigel and Albin, of Chicago, for appellee; Maurice Albin, of Chicago, of counsel.
   JUDGE ROBSON

delivered the opinion of the court.

This is an appeal from an order entering judgment on the pleadings issuing a writ of mandamus, directing and commanding defendant Board of Education to issue a voucher payable to plaintiff for salary withheld during an improper suspension period.

The record reveals that on April 6, 1953, defendant Benjamin C. Willis, General Superintendent of Schools, suspended the plaintiff, Marion Connors, a civil service school clerk, pending the institution of formal proceedings for the removal of plaintiff from the service of the Board of Education for cause. Authority for such action is found in sec. 4-6 of the Rules of the Board of Education of the City of Chicago (adopted pursuant to statutory authority of ch. 122, sec. 34 — 18, Ill. Rev. Stat. 1951):

“No civil service employee shall be removed except, as provided by Section 34-14 of The School Code, on written charges signed by the General Superintendent óf Schools. The attorney shall sign the charges filed against civil service employees in the Law Department. Pending the hearing and final disposition of charges, the employee charged may be suspended by the General Superintendent of Schools or by the attorney, as the case may be, but, if acquitted, the employee shall not suffer any loss of salary by reason of the suspension.”

No charges were ever filed and no hearing was had pursuant to sec. 4-6. Instead, the general superintendent notified the plaintiff by letter dated May 6, 1953, that her suspension under sec. 4-6, pending charges, had been changed to a disciplinary suspension for thirty days without pay, to operate retroactively from the date of the original suspension of April 6. The letter also directed the plaintiff to report to work at a new school on May 7, 1953. Defendant contends that authority to order such thirty-day disciplinary suspension without pay lies in sec. 4-5 of the Rules of the Board of Education:

“The General Superintendent of Schools may, as a disciplinary measure, suspend without pay, for a period not to exceed thirty days, any civil service employee under his charge and control. . . .”

Plaintiff returned to work on May 8,1953. Subsequently, she requested a hearing on the alleged charges. This right was denied.

Plaintiff filed this action praying that a writ of mandamus issue commanding defendants to pay plaintiff her salary as a school clerk for the period during which plaintiff alleged she was improperly suspended. Defendants’ answer denied plaintiff was entitled to the relief prayed and alleged that the thirty-day suspension without pay was in accordance with the provisions of sec. 4-5.

The sole question to be determined by us is whether the general superintendent, having ordered a suspension under sec. 4-6 pending removal for cause, upon deciding not to go through with the removal proceedings, can convert the sec. 4-6 suspension into a sec. 4-5 disciplinary suspension without pay.

The last sentence of sec. 4-6 states that “if acquitted, the employee shall not suffer any loss of salary by reason of the suspension.” Upon being suspended under this section the plaintiff knew she would have to defend herself, and the Board’s own rule guaranteed her no loss of salary if she was acquitted. She was not afforded an opportunity to obtain an acquittal because of the action of the superintendent. Although the record in this case does not indicate the expenses incurred by the plaintiff, if any, between April 6 and May 6, it is conceivable that an employee could not only be deprived of thirty days’ salary, but could also suffer substantial expense in the preparation of a defense.

This court cannot assume that there was good cause for the removal of the plaintiff from the civil service. Quite to the contrary, the defendants’ decision not to press the charges, despite plaintiff’s demand for a hearing, could be considered an admission that the charges were inadequate. A subsequent disciplinary suspension for thirty days without pay is not only inconsistent with such an admission, but it is also inconsistent with the salary guarantee of sec. 4-6. If an acquittal entitles an employee to recover lost salary, a voluntary dismissal of charges by the general superintendent should have the same effect.

We do not question the initial right of the general superintendent to suspend for thirty days without pay. He can do so without stating specific cause. Thomas v. City of Chicago, 194 Ill. App. 526. The general superintendent must, however, elect between a sec. 4-6 suspension pending removal and a sec. 4-5 disciplinary suspension without pay. Once he chooses the former he must carry the removal proceedings to a conclusion or dismiss the charges without prejudice to the salary rights of the employee. He cannot, however, dismiss the charges and avoid reimbursing the employee for salary withheld during the suspension pending removal by making it a disciplinary suspension, unless the employee stipulates to that effect.

Defendants argue that the action of the general superintendent was one of leniency; that he decided to give the plaintiff another chance and thus imposed a punishment less severe than removal. We are not impressed with this reasoning. Such conduct could become a means of employee harassment that is not contemplated by the rules of the Board of Education, and is not consonant with the design of civil service.

Order affirmed.

McCORMICK, P. J. and SCHWARTZ, J., concur.


text:
    Edward J. Baldwin et al., Appellants, v. Stephen E. Hurley et al., Civil Service Commissioners of City of Chicago, and Timothy J. O’Connor, Commissioner of Police of City of Chicago, Appellees.
    Gen. No. 46,759.
    First District, Second Division.
    April 3, 1956.
    Rehearing denied April 24, 1956.
    Released for publication April 24, 1956.
    Roy J. Egan, of Chicago, for appellants.
    John C. Melaniphy, Acting Corporation Counsel of City of Chicago, of Chicago, for appellees; L. Louis Karton, Head of Appeals and Review Division, and Harry H. Pollack, Assistant Corporation Counsel, both of Chicago, of counsel.
   JUDGE ROBSON

delivered the opinion of the court.

Plaintiffs appeal from the trial court’s order dissolving a temporary injunction and dismissing their suit.

The plaintiffs were sergeants of police in the classified service of the police department of the City of Chicago. They had successfully passed a promotional examination for lieutenant of police and their names appeared on the eligible register, posted April 23,1952. Upon learning that defendants intended to strike their names from said promotional register, plaintiffs, on November 29, 1954, filed a complaint in chancery seeking an injunction to restrain the civil service commission from so striking their names. Defendants filed a motion to strike the complaint, and when the trial court indicated it would deny the motion for temporary injunction, plaintiffs, by leave of court on February 7, 1955, filed an alternative complaint for a declaratory judgment and for ancillary relief and for a writ of prohibition.

On January 17, 1955, the civil service commission did strike the names of plaintiffs from the register and posted a new register for lieutenant of police two days later. On February 16, 1955, the matter having been transferred from the chancery calendar to the common law calendar, a temporary injunction was issued under the prayer for ancillary relief to restrain defendants from certifying and appointing persons from the new register for the position of lieutenant of police. Defendants thereupon filed a motion to dissolve the injunction and dismiss the suit. The motion was granted.

The issue that will be determinative of plaintiffs’ rights on this appeal is whether the defendants had authority to cancel the promotional register. The civil service commission’s power to cancel registers appears in section 10 of the Civil Service Act of Cities (ch. 24%, par. 48, Ill. Rev. Stat. 1953). Defendants contend that this section refers only to registers of candidates for admission into the civil service and not to promotional registers; that section 9 (ch. 24%, par. 47, Ill. Rev. Stat. 1953) pertains to promotions and there is no mention therein of a power to cancel promotional registers.

The question presented is not a novel one in this state. In People ex rel. Walsh v. City of Chicago, 226 Ill. App. 409, cert, denied, 226 Ill. App. 409, a three-year-old promotional register for sergeant of police was cancelled by the civil service commission and the registrant Walsh sued for a writ of mandamus to compel the commission to appoint him a sergeant. The relator contended that the cancelled register was still in effect. The court said: “The statute gives to the commission the undoubted right to strike from an eligible list all names appearing thereon for a period of more than two years.” The court further said: “It is our opinion, therefore, that the civil service commission did not exceed its powers when it cancelled the eligible list of April 4, 1917, and whatever may be said about other questions presented in defense of the right claimed by relator, this holding is sufficient to put an end to his rights so claimed under his petition.” (Italics ours.)

The same issue was before this court in People ex rel. Richards v. Allman, 289 Ill. App. 586, leave to appeal denied, 290 Ill. App. xix. The court refused to sustain counsel’s contention “that the provision in section 10 providing that the commission may strike off the names on the list after they have remained thereon for more than two years applies only to original examinations.” The following language from the opinion in the Richards case leaves no doubt as to the state of the law: “The opinion in the Walsh case (226 Ill. App. 409) was filed October 30, 1922, and it has been uniformly held by this court since that time that the civil service commission may, after two years, properly cancel a list posted as a result of a promotional examination.” People ex rel. Lynch v. City of Chicago, 271 Ill. App. 360; People ex rel. Jahn v. City of Chicago, 279 Ill. App. xviii, and Malkin v. City of Chicago, 6 Ill.App.2d 151, are to the same effect.

Plaintiffs attempt to distinguish these cases on the ground that in all of them the register was cancelled prior to the institution of the suit. From this they conclude that issue was not joined on the commission’s authority to cancel a promotional list in those cases. In the instant case the cancellation took place subsequent to the filing of the original complaint. We are unable to find any merit in this distinction. A close examination of the cases clearly discloses that a finding that the commission did have such authority was necessary to the ultimate disposition of the issues therein.

We follow the interpretation of the Civil Service Act of Cities, often announced and approved by the courts of this state, and hold that the trial court properly dissolved the temporary injunction and dismissed the suit.

Our decision on this issue makes it unnecessary for us to consider plaintiffs’ other contentions.

Order affirmed.

McCORMICK, P. J. and SCHWARTZ, J., concur.


author: JUDGE SCHWARTZ

text:
    People of State of Illinois, Plaintiff-Appellee, v. Edwin H. Schulze, Defendant, and Summit Fidelity & Surety Company, Defendant-Appellant.
    Gen. Nos. 46,676, 46,677, 46,678.
    First District, Second Division.
    April 3, 1956.
    Released for publication April 24, 1956.
    Richard H. Devine, of Chicago, for defendant-appellant.
    John Gutknecht, State’s Attorney of Cook county, of Chicago, for appellee; Gordon Nash, Selig Drezner, Charles D. Snewind, and William Sylvester White, Assistant State’s Attorneys, all of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

This is a consolidated appeal from three judgments rendered on recognizance bonds given for the appearance of Edwin H. Schulze on two charges of embezzlement and one of forgery. Nine continuances and two orders for the transfer of the cases were entered before November 9, 1953, the day forfeiture was declared. In all these orders it was shown that the defendant Schulze appeared in Ms own proper person, as well as by an attorney. The orders of September 15 and October 2 continued the cases “with subpoenas,” which means that the parties would have their witnesses in court at that time. The record shows that in the intervening period the state’s attorney procured subpoenas duces tecum for the production of books by a large group of banks and several individuals for the purpose of proving the case for the prosecution. On November 9, 1953 the case was called and the order of the court shows that the defendant Schulze appeared by his counsel (and not personally). The"defendant Schulze not being there in person, the bond was declared forfeited and a capias was ordered. A motion to vacate, apparently made orally by counsel without the assignment of any ground therefor, was continued from time to time until February 19, 1954, when the court heard counsel and overruled the motion. The order of November 9, 1953 declared a forfeiture but did not enter a judgment against the surety. It laid the basis for a scire facias proceeding pursuant to the statute (Ch. 38, Par. 625, Ill. Rev. Stat. 1955) which provides:

“When any person who is accused of any criminal offense shall give bail for his appearance, and such person does not appear in accordance with the terms of the recognizance or bond, the court shall declare such recognizance or bond to be forfeited, and the clerk of the court shall issue a scire facias as in other civil actions against such person and his sureties, returnable on a designated return day not less than thirty or more than sixty days from the date of such forfeiture to show cause why judgment should not be rendered against such person and his sureties for the amount of the recognizance or bond .... Before any proceeding shall have been instituted on any such forfeited bond or recognizance, the court may, in its discretion, set aside such forfeiture . . . upon motion and a proper showing to the court that the accused person has been apprehended or surrendered or has died or has been convicted and imprisoned by some other state or by the United States or upon the accused being brought or coming into open court.”

On December 16, 1953, a writ of scire facias was filed summoning the defendant Schulze and his surety to appear December 29, 1953, to show cause why the forfeiture should not be made absolute, that is, why a judgment should not be entered. After various continuances an order was entered on August 31, 1954 reciting that the defendant and surety were three times severally, solemnly called in open court to show cause why the forfeiture should not be declared absolute, and the defendants not answering, the court declared the forfeiture absolute and entered judgments against the defendant Schulze and his surety.

On September 30, 1954, a motion to vacate the judgments, unsupported by affidavit, was filed by the attorney for the surety company reciting the following ground: “That the sureties have co-operated with the State’s Attorney in the attempt to secure the apprehension of the defendant, Edwin H. Schulze, and have reason to believe that within thirty (30) days they will apprehend the defendant, Edwin H. Schulze.” Thereupon the motion to vacate the judgments was continued to November 1,1954. On that date by agreement of the state’s attorney and the defendant surety and its counsel the case was continued and on January 21, 1955, the surety filed a written motion to dismiss the scire facias on the ground that the judges of the criminal court do not have jurisdiction to hear scire facias causes of action. This motion was denied, and from this the surety, hereinafter called appellant, has appealed.

It is argued that there is no showing that the defendant was thrice called and failed to appear. That the case was called and defendant Schulze failed to appear is clearly shown in the record not once hut many times.

Appellant cites Brown v. People, 24 Ill. App. 72. In that case the condition of the recognizance was that the defendant should appear before a justice of the peace at 8 -.00 a.m. The court said that the justice did not wait the expiration of an hour from 8 a.m., but declared a forfeiture at 8 a.m. of that day, meaning 8 o’clock sharp. Mr. Justice McAllister said:

“By the common, or unwritten law of this State, it is the rule that in proceedings before Justices of the Peace, which are notified to begin at a fixed hour, neither party is in default until the expiration of that hour and the commencement of the next. This is a convenient rule, prevents surprise and exacts as much promptness as is safe and reasonable. That it prevails in this State is understood by the courts and the legal profession, as well as by the generality of the community.”

Thus the learned justice held that 8 o’clock remained 8 o’clock until it was 9 o’clock. We cannot refrain from noting that he was the first justice of the Appellate Court after its statutory creation, and a bronze bust of his Ciceronian features adorns the southwest corner of our hearing room. He was not only a learned man but versed in the ways and wiles of practice before the justices of the peace of those days. He possessed great moral courage and in the interest of justice did not fear to repeat Joshua’s memorable feat of stopping the sun in its course. But it will be noted he did so for only one hour. What the appellant in this case desires is that time be held in suspense while appellant has two or three years to search for and produce the defendant Schulze.

The other Illinois cases cited by appellant have no bearing here. State ex rel. Wilson v. Reger, 103 Okla. 92, 229 P. 470, held that a suit on a recognizance was prematurely filed when a motion to vacate the forfeiture was still pending. In the instant case the appellant’s oral motion to vacate the forfeiture was disposed of. The motion to vacate the judgments was no more than a plea for a continuance to give the appellant a further opportunity to apprehend the defendant Schulze. Grounds for vacating a forfeiture such as this are set forth in the statute which provides that a forfeiture may be vacated upon a showing that the defendant has been apprehended or surrendered or has died or has been convicted and imprisoned by some other state or the United States or upon the accused being brought or coming into open court.

Appellant argues that the record shows that 58 days before the bond forfeiture the court ordered the case to be stricken, with leave to reinstate. This is not correct. The forfeiture was declared November 9, 1953. The later order made this absolute, which can only mean that judgment was entered.

The order striking the causes from the call was entered December 23, 1953. The appellant appeared and made many motions, as we have shown. Appellant argues, however, that the order strildng the criminal cases from the trial call deprived the court of further jurisdiction, citing People v. Pastel, 249 Ill. App. 205. In that case the cause was stricken from the docket with leave to reinstate. After a lapse of a year the case was reinstated without any notice to the defendant. It was that lack of notice that was the basis for the judgment. The case bears no resemblance to the instant case.

Judgments affirmed.

McCORMICK, P. J. and ROBSON, J., concur.


text:
    People of State of Illinois ex rel. Frank Siegal, and Robert Morris, Appellants, v. William C. Griffin, as Chief of Police of Department of Police of Village of Skokie, Joseph Urbanus et al., as Members of Board of Fire and Police Commissioners of Village of Skokie, George D. Wilson, as President, and Patrick Seul et al., as Members of Board of Trustees of Village of Skokie, and Village of Skokie, Appellees.
    Gen. No. 46,712.
    First District, Second Division.
    April 3, 1956.
    Released for publication April 24, 1956.
    McCarthy, Toomey and Reynolds, of Chicago, for appellants; John E. Toomey, of Chicago, of counsel.
    Bryant, Colwell & Wells, of Chicago, for appellees.
   JUDGE SCHWARTZ

delivered the opinion of the court.

The relators, sergeants of police of the Village of Skokie, brought this mandamus suit to compel the appointment of one of them to fill a vacancy which, it is charged, exists in the position of lieutenant of police. The two relators are the only remaining persons on a civil service promotional list for that position. The trial court found against them, and they have appealed.

The substance of relators’ case is that upon the resignation of one Stenson, the board of trustees on June 22, 1954, passed a resolution that in the best interest of the village, such vacancy should not be filled. An appropriation ordinance adopted July 13, 1954, failed to include any appropriation for the position. On September 7, 1954 an ordinance was duly passed by the board of trustees permanently abolishing the office. All this, relators contend, was done in bad faith and for the purpose of circumventing the appointment of one of the relators. Although the village contends that courts have no power to inquire into the motives for the passage of an ordinance legally adopted, they accepted the issue of good faith and rely on the evidence to sustain their position.

The mayor, chief of police, and trustees of the village testified in substance that the position had been left vacant and was later abolished because they found the police department could get along very well without that position. It appears that Stenson, the last incumbent, was essentially an office man and did the book work while a sergeant did the other work that might have been done by a lieutenant. This arrangement worked out so well the village concluded that in the interest of economy it would have the book work done at a cost of $80 a month, relieving the regular police officers of that work and letting a sergeant do the other work.

One of the witnesses presented by relators to prove the animus of the chief of police against the relator Morris was a police magistrate. He testified he was present at a dinner given for the chief of police where a conversation took place in which it was stated that if Morris were made a lieutenant, arrangements could be made to have state traffic cases sent to Skokie. According to this witness for relators, officials and politicians there present agreed this was a problem for the chief, and when it was submitted to him, he exploded with an expletive characterizing Morris and saying “. . . if he is made lieutenant I am going to resign as chief.” That ended the negotiations. The chief testified that all he said was that he would resign before he would make a recommendation appointing Morris a lieutenant; that he had an understanding with the mayor and board of trustees he would only accept the job as chief under one condition; that “I could operate the department without interference of politicians or anybody else from the outside, and that is what I had in mind when I refused to make this appointment.” His testimony reveals the difficulties of a chief of police endeavoring to perform the functions of his office and emphasizes the need for caution when courts are asked to interfere with the administration of a police department. The trial court having heard all the testimony was apparently convinced that the board of trustees of the village was acting in good faith.

It is true, as counsel for relators point out, that the reasons for the trial court’s decision are not set forth in the record, but the issue of good faith was squarely presented. In colloquy between the court and counsel for relators, the court asked what power it would have if the abolition of the office was in good faith. Counsel for relators answered that if it had been done in good faith, the court would have no power. Thus, the case was submitted on that issue of fact. The court having decided the issue in favor of respondents, the finding is not to be reversed unless it is against the manifest weight of the evidence. Our conclusion is that it is amply supported by the evidence.

The cases cited by relators do not support their position. It is true there are cases holding that where a municipality abolishes a civil service position and then creates an identical position under a different name merely for the purpose of substituting one person for another, courts will not permit such an evasion of the Civil Service Act. People ex rel. Jacobs v. Coffin, 282 Ill. 599; People ex rel. Gillespie v. Bundesen, 277 Ill. App. 169; People ex rel. Turner v. Johnson, 340 Ill. App. 171; People ex rel. Fleming v. Geary, 322 Ill. App. 338. That is not the situation in the instant case. It may be that a sergeant is now given more supervisory duties while the clerical duties performed by a former lieutenant are being discharged by a clerical employee. That may well be sound police administration. In any event, it is no adequate basis for a court’s interference with the administration of the Police Department of the Village of Skokie.

Judgment affirmed.

McCORMICK, P. J. and ROBSON, J., concur.