text:
    James S. Saleson and J. Palmer Realty, Inc., Plaintiffs-Appellants in Each of the Causes, v. Department of Registration and Education of the State of Illinois, an Administrative Agency, John C. Watson, Director of Said Department, and Oscar C. Brown, et al., Members of the Real Estate Examining Committee Thereof, Defendants-Appellees in Each of the Causes, Bertha Haug and Fred A. Haug, Appellees in Gen. No. 52,315, Samuel L. Evins, Appellee in Gen. No. 52,316, Margaret Sanchez, Appellee in Gen. No. 52,317.
    Gen. Nos. 52,315-52,317.
    First District, First Division.
    April 22, 1968.
    Rehearing denied June 12, 1968.

      Marvin L. Goldberger and Louis Jaffie, of Chicago (Harry G. Fins, of counsel), for appellants.

      William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole and Robert F. Nix, Assistant Attorneys General, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In three separate administrative decisions, the Department of Registration and Education of the State of Illinois revoked the real estate broker’s certificate of plaintiff, James S. Saleson, who does business under the name of J. Palmer Realty Associates, Inc. Plaintiff filed separate appeals from Circuit Court orders which affirmed each decision of revocation. The appeals (Nos. 52,315-16-17) are consolidated in one opinion for convenience and clarity. The facts in each appeal are set forth separately.

No. 52,315

In this action the report of the “findings and recommendation” of the Real Estate Examining Committee included the following:

“Hearing on the charges herein was held at the Chicago office of the Department on February 17, 1965. The Respondent was present in person and represented by Mr. Louis Jaffie and Mr. Abraham Rottenberg. The relator was present in person. Mr. Frank J. Gagen, Jr., was present on behalf of the Department.
“After due consideration of all of the evidence adduced at the said hearing the undersigned Real Estate Examining Committee, finds as follows:
“1. Respondent James Saleson is, and was at all times referred to herein, a duly licensed real estate broker in the State of Illinois.
“2. That Bertha L. Haug and Fred A. Haug listed their property at 3305 Eastwood, Chicago, Illinois for sale with J. Palmer Realty Associates, Inc. at a net price of $15,500.00. J. Palmer Realty Associates Inc. sold said property to Richard Wrona and Rita J. Wrona, his wife, for the sum of $15,900.00; the Wronas deposited $1,000.00 earnest money with said J. Palmer Realty.
“3. That the deal was closed at Avondale Savings and Loan Association on October 29, 1964; a representative of said J. Palmer Realty delivered a receipt for $400.00 as commission and delivered check #1082, J. Palmer Realty Assoc., Inc. Special Account, drawn on the Bank of Niles, dated October 29, 1964, in the sum of $600.00 payable to Fred A. Haug and Bertha L. Haug; check was deposited by Haug with the Lakeview Trust and Savings Bank.
“4. That said check was returned marked ‘N.S.F.’ A call to the cashier of the Bank of Niles on November 7, 1964 disclosed that there were not sufficient funds in the aforesaid Special Account to pay said check. Mr. Palmer promised to redeem said check on November 9,1964 and on said date promised to redeem on or before November 12, 1964. Calls to Mr. Palmer after November 9, 1964 were not answered.
“5. That the complaint was filed in the Department of Registration and Education on November 14, 1964, and, thereafter, on a date in December, 1964 the amount due the Haugs was delivered to them; that neither this Committee nor any individual member thereof was party to any agreement to dismiss this action and no notice thereof was delivered or served on the Committee for its action or consideration thereon.
“On the basis of the foregoing the undersigned Real Estate Examining Committee concludes that the Respondent is guilty of conduct within the purview of Section 8(d) 7, 11 and 14 of the Illinois Real Estate Brokers and Salesman Law, and it is respectfully recommended to the Director of the Department of Registration and Education of the State of Illinois that the Respondent’s license as a real estate broker in the State of Illinois be Revoked.”

On December 29, 1965, the Director of Registration and Education adopted the findings and recommendation of the Real Estate Examining Committee and revoked “the certificate of registration of James S. Saleson as a real estate broker.”

On April 10, 1967, in a review action, the Circuit Court of Cook County entered an order which revoked plaintiff’s license as a real estate broker and affirmed the decision of the Department of Registration and Education. This is the order from which plaintiff appeals.

As to the foregoing findings of fact of the committee, plaintiff contends: “The evidence in the record shows only that there was, at most, a delay of six weeks in the delivery of $600.00. This does not justify the revocation of a license to practice a trade or profession and the deprivation of a livelihood to the licensee. The real reason for the revocation of the license in the case at bar is to punish the licensee for his refusal to testify before the Department of Registration and Education. The Department’s conduct is prohibited by the Federal Constitution, as determined by the recent decisions of the Supreme Court of the United States, which cases are hereinafter discussed.”

No. 52,316

In this action the hearing was also held on February 17, 1965. Respondent was present in person and represented by counsel.

The findings of the committee included the following:

“2. That on October 9, 1964, Samuel L. Evins presented a contract for the purchase of a four (4) apartment building located at 2642 West Summerdale in the City of Chicago to James Saleson together with a cashiers check in the amount of three thousand ($3,000.00) dollars, endorsed to the J. Palmer Realty Associates, Inc., escrow account only, earnest money deposit.
“3. That under the terms of said contract, the earnest money was to be held in the escrow account until the offer was accepted or rejected, on or before October 19, 1964, and if the offer is rejected, within the ten (10) days, on or before October 19, 1964, the offer shall be null and void and all earnest money refunded immediately to Samuel Evins.
“4. That the contract and earnest money was to be held by J. Palmer Realty Assoc., Inc., escrow account for the mutual benefit of the parties and that James Saleson was the agent and operator of J. Palmer Realty Associates, Inc.
“5. That on the 19th day of October, 1964, the offer was not accepted and on October 24, 1964, James Saleson and J. Palmer Realty Associates, Inc., received a registered letter demanding return of the $3,000.00 escrow deposit which he and it failed to remit to Samuel L. Evins.
“6. That Samuel L. Evins filed his complaint with the Department of Registration on November 5, 1964, and same was served upon James Saleson on November 13, 1964 by registered mail; that on some date thereafter during the month of December, 1964 a sum of money in the amount of $3,000.00 was delivered to Samuel Evins by an agent of James Saleson.”

The committee concluded respondent (plaintiff) was guilty of conduct “within the purview of Section 8(d) 7 and 11 of the Illinois Real Estate Brokers and Salesman Law” and recommended that his license as a real estate broker be revoked.

The subsequent license revocation review procedure and dates, including the trial court order of affirmance, are the same as set forth in appeal No. 52,315.

As to the findings of fact in this case, plaintiff contends: “The evidence in the record shows only that there was, at most, a delay of two months in the return of the $3,000.00 which Evins gave to Saleson. This does not justify the revocation of a license to practice a trade or profession and the deprivation of a livelihood to the licensee.” Plaintiff also asserts, as in appeal No. 52,315, that “ [t] he real reason for the revocation of the license in the case at bar is to punish the licensee for his refusal to testify . . . .”

No. 52,317

In this action the hearing on the charges was held on March 17, 1965. The respondent (plaintiff) was not present in person but was represented by his attorney, Mr. Louis Jaffie. The findings of the committee included the following:

“2. That on December 2, 1964, Marguaret Sanchez executed a real estate contract for the purchase of property at 4948 North Saint Louis Avenue, Chicago, Illinois, and delivered same together with an earnest money deposit of $2,000.00 to James S. Saleson in the offices of the J. Palmer Realty Associates, Inc.
“3. That James S. Saleson failed and neglected to present the offer to purchase the property at 4948 Saint Louis Avenue, Chicago, Illinois to the owners thereof, and had not done so by December 28,1964.
“4. That beginning on December 28, 1964 and on numerous times thereafter, demand was made on the said James S. Saleson by Marguaret Sanchez and her agent for return of the earnest money deposit.
“5. That James S. Saleson has wilfully refused to return the said earnest money deposit or otherwise account to the said Marguaret Sanchez.”

The committee concluded that respondent was guilty of conduct within the purview of Section 8(d) 7 and 11 of the Illinois Real Estate Brokers and Salesman Law, and recommended that his license as a real estate broker be revoked.

The subsequent license revocation review procedure and dates, including the trial court order of affirmance, are the same as set forth in appeal No. 52,315.

As to the findings of fact in this case, plaintiff contends : “The evidence in the record shows only that there was, at most, a delay in the return of the $2,000.00 which Mrs. Sanchez gave to Saleson. This does not justify the revocation of a license to practice a trade or profession and the deprivation of a livelihood to the licensee.” Plaintiff also asserts, as in appeals Nos. 52,315 and 52,316, that ‘[t]he real reason for the revocation of the license in the case at bar is to punish the licensee for his refusal to testify . . . .”

In Illinois, the regulation of real estate brokers and real estate salesmen is provided for in Chapter 114%, Illinois Revised Statutes. Section 8 sets forth the grounds for the “Refusal, suspension or revocation of certificate,” and includes the following:

“The Department may refuse to issue or to renew or may suspend or revoke any certificate of registration for any one or any combination of the following causes:
£<
“ (d) Where the registrant in performing or attempting to perform or pretending to perform any act as a real estate broker or salesman, or where such registrant, in handling his own property, whether held by deed, option, or otherwise, is deemed guilty of:
a
“7. Failure to account for or to remit for moneys or documents coming into his possession which belongs to others, or
“11. Having demonstrated unworthiness or incompetency to act as a real estate broker or salesman in such manner as to safeguard the interests of the public,

In the three appeals, plaintiff asserts that the issue presented for review is “whether the Department of Registration and Education of the State of Illinois complied with Federal Constitutional law in the revocation of the real estate broker’s license.” Based upon the foregoing Federal Constitutional issue, plaintiff makes the following contentions:

1. There is no evidence to justify the revocation of a real estate broker’s license in the case at bar.

2. A proceeding to revoke a license to practice a trade or profession causing the deprivation of an opportunity to earn a livelihood through such trade or profession is a “criminal case.”

3. Since the proceedings herein is a “criminal case,” the State had the burden to prove guilt beyond a reasonable doubt, which the State failed to do.

4. The revocation of the license in the case at bar causing the deprivation of the opportunity to earn a livelihood constitutes “cruel and unusual punishment,” in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States.

The determinative contention of plaintiff is that “a proceeding to revoke a license to practice a trade or profession causing the deprivation of an opportunity to earn a livelihood through such trade or profession is a ‘criminal case.’ ” In support, plaintiff relies on Spevack v. Klein, 385 US 511 (1967). In that case, plaintiff, a New York lawyer, refused to produce his records in a disciplinary proceeding. The Appellate Division of the New York Supreme Court ordered him disbarred, holding that the privilege against self-incrimination was not available in the light of Cohen v. Hurley, 366 US 117 (1961). In reversing the New York disbarment order, the court said (p 514):

“We conclude that Cohen v. Hurley should be overruled, that the Self-Incrimination Clause of the Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor or disbarment and the deprivation of a livelihood as a price for asserting it. . . . We said in Malloy v. Hogan [378 US 1 (1964)]:
“ ‘The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarahtees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.’ ”

And on page 516:

“The threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege. That threat is indeed as powerful an instrument of compulsion as ‘the use of legal process to force from the lips of the accused individual the evidence necessary to convict him We find no room in the privilege against self-incrimination for classifications of people so as to deny it to some and extend it to others. Lawyers are not excepted from the words ‘No person . . . shall be compelled in any criminal case to be a witness against himself’; and we can imply no exception.”

Plaintiff argues, “It is, therefore, clear that the holding of Spevack v. Klein is that a disciplinary proceeding is a criminal case.” On the basis of this interpretation of the Spevack decision, plaintiff asserts that the Department of Registration had the burden of proving guilt beyond a reasonable doubt, and the revocation of his broker’s license constituted the infliction of “cruel and unusual punishment.”

Plaintiff further argues that “in order to circumvent the citizen’s protection guaranteed by the Bill of Rights and the Fourteenth Amendment, many States have labeled as ‘civil’ proceedings which result in penalties and deprivation to the citizen. In 1963, the Supreme Court of the United States made it clear that ‘a State cannot foreclose the exercise of constitutional rights by mere labels.’ (N.A.A.C.P. v. Button, 371 US 415, 429).”

The defendants argue that the ruling in Spevack v. Klein, supra, is not applicable to these cases because the record in each case “is completely absent of any suggestion that the license was revoked for failure to cooperate with the Department of Registration and Education. [In appeal No. 52,315] the license was revoked because Saleson gave a worthless check to Mrs. Haug; [in appeal No. 52,316] the license was revoked for withholding earnest money. There was no finding that the licensee failed to cooperate in any way with the Real Estate Examining Committee; [in appeal No. 52,317] the license was revoked for his failure to transmit an offer to purchase and for withholding earnest money. There was no finding that the licensee failed to cooperate in any way with the Real Estate Examining Committee. Thus, the reliance on the Spevack case is misplaced and of no benefit to the licensee.”

We do not agree with plaintiff that “a proceeding to revoke a license to practice a trade or profession causing the deprivation of an opportunity to earn a livelihood through such trade or profession is a ‘criminal case.’ ”

Recently, in a disbarment proceeding, In re Damisch, 38 Ill2d 195, 230 NE2d 254 (1967), our Supreme Court said (p 206):

“Respondent also urges that Spevack v. Klein, 385 US 511, 17 L Ed2d 574, 87 Sup Ct 625, has made it clear that disciplinary proceedings are criminal in nature, entitling respondents therein to all the rights to which criminal defendants are entitled, and that its implications are fatal to complainant’s case. Spevack extends the privilege against self-incrimination to an attorney in a disciplinary proceeding. The reason given for this extension is that disbarment is a punishment and that there can be no punishment for refusal to speak. The fifth amendment provides that: ‘No person . . . shall be compelled in any criminal case to be a witness against himself.’ (Emphasis supplied.) Seizing on the italicized language of this quotation, respondent apparently argues that since the Supreme Court extended the privilege against self-incrimination to an attorney in a disciplinary proceeding, such a proceeding must be a ‘criminal case’. In his reply brief he recognizes that the italicized language has been wholly ignored in defining the limits of the privilege against self-incrimination and by so doing he has acknowledged the defect in his argument. Nothing in Spevack has affected the continuing validity of the rule which has heretofore been adhered to in this State: a disciplinary proceeding is not a criminal prosecution and is not subject to all the rules that govern such a case. E. g., In re Anderson, 370 Ill 515, 522; In re Needham, 364 Ill 65, 68.
“The principal argument presented is that the evidence in support of the complaint is insufficient to establish solicitation, citing our decisions holding the complaint of misconduct similar to an indictment in that respondent is presumed innocent until proved guilty (In re Donaghy, 393 Ill 621) and that the evidence should be resolved upon a theory of innocence where reasonably possible to do so (People v. Bentley, 357 Ill 82). There is no doubt that such is and should be the rule, but neither the Commissioners nor this court are required to be naive or impractical in appraising an attorney’s conduct.”

We believe the pronouncements made in In re Damisch apply here, and the record in each case must be examined in the light of the guidelines established in this state for disciplinary proceedings.

Administrative as well as judicial proceedings are governed by the requirement of due process of law (Italia America Shipping Corp. v. Nelson, 323 Ill 427, 154 NE 198 (1926)), and plaintiff’s right to enjoy the privilege of a real estate broker’s license is entitled to be so protected and secured, and “in a proceeding so serious, due process of law requires a definite charge, adequate notice and a full, fair and impartial hearing.” (Smith v. Department of Registration and Education, 412 Ill 332, 106 NE2d 722 (1952).) The findings of an administrative committee “must be based on evidence presented in the case, with an opportunity to all parties to know of the evidence to be submitted or considered, to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal, and nothing can be treated as evidence which is not introduced as such.” Fleming v. Illinois Commerce Commission, 388 Ill 138, 149, 57 NE2d 384 (1944).

An examination of the record in these three appeals shows that the findings of the Real Estate Examining Committee are substantiated by the evidence and are neither arbitrary nor capricious. The conduct of the hearings was fair and impartial, and plaintiff was represented. The record does not reflect plaintiff’s contention that “the real reason for the revocation of the license in the case at bar is to punish licensee for his refusal to testify.” We fail to find, as is required in order to reverse any one of these three appeals, that an opposite conclusion to that of the Committee is clearly evident.

We conclude the judgments of the Circuit Court affirming the orders of the Department of Registration and Education were correct and are hereby affirmed.

Appeals Nos. 52,315, 52,316, 52,317 — judgments of the Circuit Court of Cook County affirmed.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURMAN

license: Public Domain

text:
    Jack C. Caughron, Betty Caughron, James Caughron, and Connie Caughron, Minors, by Betty Caughron, Mother and Next Friend, Plaintiffs-Appellants, v. Henry Welnicki, Individually, and as Parent and Guardian of Bylle L. Welnicki, a Minor, and Bylle L. Welnicki, Defendants-Appellees.
    Gen. No. 52,402.
    First District, First Division.
    April 22, 1968.
    Edward J. Bieg, of Chicago, for appellants.
    C. William Busse, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

Plaintiffs filed a complaint for personal injuries. Defendant, Henry Welnicki, was dismissed and the case went to the jury only as to defendant, Bylle Welnicki. The jury found for defendant and judgment was entered on the verdicts. Upon the denial of the post-trial motions, this appeal was taken.

The plaintiffs’ sole contention, on appeal, is that the court erred in refusing to grant their motion for a new trial. That motion called to the court’s attention the fact that instruction D-7 had misstated IPI 21.03, which instruction D-7 had been intended to state verbatim.

A motion in this court by defendant to dismiss the instant appeal was taken with the case. The grounds advanced by defendant in support of his motion are that plaintiffs’ brief contains numerous statements and arguments of what purports to be facts, but which are, in reality, facts dehors the record because there is no transcript of trial proceedings upon which to be able to state or argue any trial facts or evidence; that plaintiffs’ brief violates Supreme Court Rule 341(e) (6) in that it does not contain appropriate references to the pages of the record; and that the brief contains only plaintiffs’ counsel’s recollection of what occurred at trial and does not contain facts present in the record. We find much merit in these contentions of defendant; however, our holding in this case makes it unnecessary for us to pass on his motion.

We have not been presented, in the record, with a report of the trial proceedings, nor have plaintiffs abstracted for our consideration that portion of the conference settling jury instructions wherein they objected to the giving of the instruction which is now attacked on appeal. Supreme Court Rule 239 provides:

(b) . . . Counsel may object at the conference on instructions to any instruction . . . and the court shall rule on these objections . . . The grounds of the objections shall be particularly specified.
(c) . . . All objections made at the conference and the rulings thereon shall be shown in the report of proceedings.

We have no way of knowing whether any specific objection was made to the instruction now complained of, or if made, the ruling of the court thereon. Nor do we have the benefit of reviewing the other instructions given to the jury. Plaintiffs have failed to abstract the conference on instructions. The alleged objection to the particular instruction in question and the claimed error of the trial court in giving the instruction is not presented to us for review. Backlund v. Thomas, 40 Ill App2d 8, 189 NE2d 682; People ex rel. Rogers v. City of Park Ridge, 86 Ill App2d 82, 230 NE2d 289.

We have, however, examined the instruction itself. The relevant portion of the instruction in question reads as follows: "If, on the other hand, you find from your consideration of all of the evidence that any one of the propositions the plaintiff is required to prove has not been proved, or that any one of the defendant’s affirmative defenses has not been proved, then your verdict should be for the defendant.” (Emphasis added.) IPI 21.03, which the foregoing instruction was supposed to state exactly, ends with the charge, “. . . or that any one of the defendant’s affirmative defenses has been proved, then your verdict should be for the defendant.” (Emphasis added.)

Considering the D-7 instruction in its entirety, however, we find that it twice told the jury that the burden of proving an affirmative defense was upon the defendant, and although the word “not” contained in the last paragraph was in error, when the entire instruction is considered and the error is taken in context we conclude that it could not have misled the jury. In Ankney v. Myroth, 32 Ill App2d 173, 177 NE2d 6, cited by plaintiffs, the court ruled that even the giving of an erroneous peremptory instruction did not necessarily constitute reversible error. The instruction given in the instant case constitutes, in our opinion, a harmless error which could neither have misled the jury nor prejudiced the plaintiffs.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

ADESKO and MURPHY, JJ., concur.


text:
    Martha Evans, Licensee of the Premises Located at 1538 North Halsted Street, Chicago, Illinois (Under License Appeal No. 67LA-3), Plaintiff-Appellee, v. License Appeal Commission of the City of Chicago, Defendant-Appellant.
    Gen. No. 52,525.
    First District, First Division.
    April 22, 1968.

      Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Joseph N. Lascaro, Assistant Corporation Counsel, of counsel), for appellant.
    Samuel L. Bullas, Bernard Hammer, Henry A. Kalcheim, and Irwin Rosen, of Chicago (Bernard Hammer, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal by the defendant, License Appeal Commission of the City of Chicago, from a judgment entered by the Circuit Court reversing an order of the defendant that had sustained an order of revocation, pertaining to the local liquor license of the plaintiff, Martha Evans, licensee of the premises located at 1538 North Halsted Street, Chicago, Illinois, entered by the Local Liquor Control Commissioner. No questions are raised on the pleadings.

Two Chicago police officers, John Ryle and James Reilly, dressed in working clothes, entered the plaintiff’s tavern located at 1538 North Halsted Street, at 2:45 a. m. on October 7, 1966. The tavern is approximately thirty by sixty feet, and has a forty-five foot half-oval bar with approximately twenty-two bar stools. When Ryle and Reilly entered the premises there were six male patrons and one female patron at the bar. Anthony Güilo and John Carbonna, the bartenders, were behind the bar. The two officers seated themselves on adjacent bar stools and ordered drinks, which were poured by Güilo. The aforementioned female patron, one Theresa Wright, then smiled at Ryle and waved at him. When Reilly went to the rear of the tavern to play the jukebox Wright came over and seated herself next to Ryle. Wright then asked Ryle if he was interested in “having a little fun.” When he asked her what she meant Wright replied, “If you want to come with me I’ll lay you for ten dollars.” At this point Reilly returned to his original seat and Ryle ordered drinks for himself, Reilly and Wright, which were poured by Carbonna. Ryle then told Wright that he and Reilly would accompany her to 1641 North Burling for the purpose of having sexual intercourse with her.

Ryle testified that during his conversation with Wright, bartender Carbonna was standing about three feet away with his elbow on the bar and his head on his hand. Ryle further testified that after he made arrangements with the girl, Reilly then said to Carbonna, “My buddy and I are going with this girl to get laid and we want to take some whiskey with us.” Carbonna sold Reilly a half-pint of VO. Ryle stated he then told Carbonna that he and his friend were going to go with Wright and that she was going to charge them Ten Dollars apiece. He asked Carbonna what kind of a girl she was and he replied, “Oh hell, you don’t have to worry about her, she is a fine girl.” Ryle testified that he then asked Carbonna if he could change a twenty-dollar bill so that he could pay Wright what she was asking for, and Carbonna gave him two tens. Ryle testified that he carried on this conversation with Wright in a loud voice.

Officer Reilly testified that the jukebox was located about fifteen feet from where Wright and Ryle were seated and that it played for about ten minutes at average loudness. He then commenced to talk to Wright; a conversation that lasted about fifteen minutes. Reilly related that during the course of their conversation Wright told him that she would have sexual intercourse with him and Ryle for a Ten-Dollar charge each. Reilly further testified that after he had purchased the VO from Carbonna he asked him, “Are you sure that we won’t get into a fight with their girl friends over on Burling Street ?” Carbonna responded, “This girl is clean, so are her friends; go ahead and have a good time.” Thereafter, while Carbonna was standing directly in front of Reilly, the latter leaned over Ryle and said to Wright, “Let’s get straight on the price; how much is it going to cost us to get f-ed.” Wright replied, “I told you ten dollars each, and for God’s sake, don’t talk too loud.” Reilly stated that he then turned to Carbonna and said “Well, the price is right, and as long as you say she is okay, I will go along.” Reilly then asked Carbonna to pour three more drinks, and Carbonna complied with the request.

Shortly thereafter, Wright having left the tavern, Officers Ryle and Reilly proceeded to the address given to them by Wright. They were met there by Wright, and each of them gave her Ten Dollars. The three of them went into a bedroom where Wright disrobed, and the officers placed her under arrest. The two officers then returned to plaintiff’s premises and placed Gullo and Carbonna under arrest. Gullo and Carbonna were both charged with being keepers of a house of prostitution, and both charges were later discharged.

Tony Gullo testified that he did not hear any of the conversation between the officers and Wright, and that he didn’t know that Wright was soliciting in the tavern. Gullo further testified that he didn’t know Wright and that he had seen her once or twice before.

John Carbonna testified that he was putting stock away during the conversation between Ryle and Wright and that he did not hear what was said. He further testified that one of the officers (he didn’t remember which one) asked if the girl was “clean,” and that he responded by saying, “I think she is, she looks clean to me.” The officers then told him they were going with Wright “to get lucky,” and Carbonna wished them luck. Carbonna stated that he didn’t know Wright; he had seen her in the tavern once or twice before with her boyfriend.

At the conclusion of the hearing the Commissioner entered an order revoking the plaintiff’s local retail liquor license. The order contained the following finding:

That on October 7,1966, John Carbonna and Anthony Gullo, bartenders on the licensed premises, permitted a female patron thereon, one Theresa Wright, to solicit police officers on said premises, to engage in acts of prostitution, in violation of the ordinances of the City of Chicago, and the statutes of the State of Illinois.

Plaintiff appealed the Commissioner’s order of revocation to the License Appeal Commission, defendant herein, and after a hearing, the Commission found that the findings of the Commissioner were supported by substantial evidence in light of the whole record, and that the order of revocation was supported by the Commissioner’s findings. The Commission, therefore, entered an order sustaining the order of revocation entered by the Commissioner. Subsequently the plaintiff filed an application for a rehearing with the Commission which was denied.

The plaintiff then filed, in the Circuit Court, an administrative review action, pursuant to the provisions of the Administrative Review Act (Ill Rev Stats 1963, c 110, pars 264-279). The Court entered a judgment reversing the order of the License Appeal Commission. The judgment contained a finding that the determination of the Local Liquor Control Commissioner and the order of the License Appeal Commission affirming said determination were unsupported by sufficient evidence to sustain the determination.

The defendant contends, on appeal, that,

The record conclusively establishes that the finding made by the Commissioner was supported by substantial evidence and, therefore the order of revocation cannot be considered as being against the manifest weight of the evidence.

The Liquor Control Act provides that the Local Liquor Commissioner has the power to revoke for cause all local licenses issued to parties for premises located within his jurisdiction. (Ill Rev Stats 1963, c 43, par 112, § 3.) Upon review of the decision of the Commissioner the License Appeal Commission determines, inter alia, whether the findings made by the Commissioner are supported by substantial evidence in the light of the whole record. (Ill Rev Stats 1963, c 43, par 153, § 8.) In proceedings before the Circuit Court brought to review the decision of the License Appeal Commission, the court’s consideration is limited by the Administrative Review Act to matters of record; and, furthermore, the Act provides that the findings and conclusions of an administrative agency on questions of fact are deemed prima facie true and correct until the contrary is shown. (Ill Rev Stats 1963, c 110, par 274, § 11.) However, the findings of an administrative agency must be based on substantial evidence, and if they are against the manifest weight of the evidence, may be set aside. Bruce v. Department of Registration and Education, 26 Ill2d 612, 187 NE2d 711. Therefore, the basic question presented on appeal is whether the Circuit Court correctly determined that the aforementioned findings of the Commissioner were not supported by substantial evidence.

Upon examination of the record we have concluded that our decision in Daley v. License Appeal Commission, 54 Ill App2d 265, 204 NE2d 36, is dispositive of the issues raised on the instant appeal. The factual situation presented for review in that decision is substantially similar to the one presented in the case at bar. In Daley the Local Liquor Control Commissioner appealed from a Circuit Court judgment confirming the License Appeal Commission’s reversal of the license revocation. The evidence in Daley revealed that a Chicago police officer entered the licensee’s premises in civilian clothes. After the officer had been served a drink by the bartender, John Christen-son, a female approached and stood next to the officer. Christenson was at all times within three or four feet of the officer. The female said she would give the officer a “lay” for Ten Dollars. While the girl was leaving the tavern the officer called Christenson over and said: “Listen, buddy, this girl wants to give me a lay. Is she clean?” Christenson answered: “Yes, she is okay: Stop back in.” The officer testified that while he believed the bartender had heard part of the conversation he was not sure what part of the conversation he had heard. Upon the foregoing evidence the Commissioner revoked the license of the tavern in question.

We held, in Daley, that the determination of the Commissioner was not supported by substantial evidence, because there was not sufficient evidence introduced to show that the bartender heard the solicitation by the girl, and thereby “permitted” her to solicit for prostitution on the licensed premises. We stated, “It would require guess, conjecture and surmise to hold that the licensee, through his bartender, Christenson, ‘permitted’ the female to solicit the officer to engage in acts of prostitution.” 54 Ill App2d at page 270, 204 NE2d 36.

As in Daley, we believe that the evidence in the instant case does not support the Commissioner’s finding that Carbonna and Gullo “permitted” a female patron to solicit for prostitution. The evidence, taken in the light most favorable to the Commissioner, does not establish that either of the two bartenders overheard the conversations between Wright and the two officers. Therefore, their knowledge of the solicitation, an essential element of their “permitting” it to take place, has not been proved by substantial evidence.

Nor do the various verbal exchanges between the two officers and Carbonna during the course of which Carbonna made statements such as “this girl is clean,” “have a good time” and “she is a fine girl,” tend to establish the fact that the latter permitted the officers to be solicited. The officers, in their conversations with Carbonna, presented the bartender with a “fait accompli.” Clearly, these conversations were predicated upon the fact that the act of solicitation had already taken place. The statements by Carbonna were only expressions of opinion by the bartender as to the advisability of the officers having intercourse with Wright: they did not show that Carbonna was cognizant of the act of solicitation while it was taking place, and thereby permitted it to occur.

Likewise, the facts that Carbonna, knowing of the act of solicitation, gave one of the officers change for a twenty-dollar bill, allowed the officers to purchase a half-pint of VO, do not establish the fact that he permitted the act of solicitation to take place. As in the case of the conversation previously referred to in Daley the acts performed by Carbonna took place after the act of solicitation had been completed. The salient feature of the acts complained of is that they did not tend to support the Commissioner’s finding that the bartenders “permitted” an act of solicitation for prostitution to take place.

The question as to whether the act of solicitation which took place on the licensed premises is of itself determinative of the cause before us was decided adversely in Daley v. License Appeal Commission, 54 Ill App2d 265, 204 NE2d 36. There is no doubt that proof of private solicitation between patrons for lewd purposes is not sufficient by itself to justify the revocation of a liquor license. A licensee cannot be charged with conduct over which he has no control. Childers v. Illinois Liquor Control Commission, 67 Ill App2d 107, 213 NE2d 595.

The defendant cites the case of Daley v. Johnson, 89 Ill App2d 100, 233 NE2d 95, in support of its contention that a finding that a bartender has permitted solicitation for prostitution is sufficient to support an order of revocation. Of course, if substantial evidence establishes the fact that a bartender has permitted solicitation on the licensed premises the Commissioner has authority to revoke the license in question, and the Johnson case supports this proposition. However, the finding in Johnson that the bartender had permitted a female to solicit for prostitution, was clearly supported by the evidence introduced before the Commissioner. In that case, unlike the instant case, the bartender actively steered the police officer to a prostitute, thus presenting a situation wherein he had obviously permitted a prostitute to solicit on the licensed premises. In the case at bar, it is patently clear that neither Gullo nor Carbonna actively participated in procuring customers for Wright. Therefore, the factual situations between Johnson and the case at bar are substantially dissimilar, and the Johnson decision is not applicable to the instant case.

For the reason that the findings of fact of the Commissioner are not supported by substantial evidence the judgment of the Circuit Court is affirmed.

Judgment affirmed.

ADESKO and MURPHY, JJ., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank L. Taylor, Defendant-Appellant.
    Gen. No. 51,267.
    First District, Fourth Division.
    April 24, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John F. Ward, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Defendant was charged with attempted (murder). (Ill Rev Stats 1963, c 38, § 8-4.) After a bench trial he was found guilty and sentenced to a term of five to ten years.

In this court the defendant urges: 1) that the State failed to prove him guilty of the crime of attempted murder beyond a reasonable doubt; and 2) that he was denied due process of law because the trial court made a determination based upon private knowledge of the court, untested by cross-examination or any of the rules of evidence.

On May 9, 1964, at approximately 11:45 p. m., Officers Lynwood Harris and Love Davis of the Chicago Police Department were on patrol in an unmarked squad car, dressed in civilian clothes. They were traveling north on Kedzie Avenue, approaching 5th Avenue, when they heard shots coming from the rear. Officer Harris testified that when they heard the shots he and his partner turned around and saw the defendant standing on the corner, wearing a white cowboy hat, and firing a gun. Officer Harris stated that he drove into a gas station, jumped out of the car, and pursued the defendant to a billboard in an alley where he saw the defendant reloading his gun; that he called to the defendant, identified himself as a police officer, and ordered the defendant to halt and drop the gun, at which point the defendant closed the chamber of his gun and fired a shot in Officer Harris’ direction.

Officer Harris further testified as follows: The defendant ran to Kedzie Avenue where he encountered Officer Davis, who called to the defendant, “Halt, police officer.” The defendant slipped and fell, fired two shots at Officer Davis, and ran across a vacant lot; he then turned and fired again at Officer Davis. Officer Harris called to the defendant, “Halt, drop the gun, police officer.” The defendant kept running across the vacant lot to a building at 3237 West Adams Street, where he hid behind a 4-foot retaining wall. When Officer Harris got to the side of the building he saw the defendant crouched on the ground reloading his gun; he told the defendant to leave the gun on the ground and to come up with his hands in the air. The defendant said, “Don’t shoot; I’m shot already.” After the defendant was taken into custody Officer Harris asked him why he was firing the gun on the corner and the defendant said he was “firing at some guys.” When asked what guys, he said he didn’t know. The testimony of Officer Davis substantially corroborated that of Officer Harris.

The defendant testified that he wore the pistol to work because he had been robbed on several occasions, which robberies he had reported to the Fillmore District Police Station. His testimony continued as follows: On the night in question he had failed to get off a bus at his stop, and was walking back to Jackson; as he approached the corner a car with six or seven teen-agers inside pulled out of a service station up to the stoplight; they cursed the defendant and he said, “Well, if anything that I said or did wrong, well, I was sorry.” When the car pulled away from the light two shots were fired from it at the defendant. He fired three shots at the car. He ran behind the gas station. He did not go up the alley because it was too dark. He was trying to reload the gun behind the station when a couple of shots were fired over his head. He closed the gun and ran east on Kedzie, where he slipped and fell, and “two more shots appear on me.” He got up and started running north on Kedzie toward Madison, where he knew there was a police car at all times.

The defendant said he did not know the shots were being fired by policemen; that he did not hear the words, “Halt, police”; that he believed the shots were fired by the boys who had been shooting from the automobile; that “my gun didn’t have but three shots in it from the time of the corner”; and that he never raised his gun after the three shots were fired at the corner. He claimed that when he tried to reload he was unable to put the shells in the gun because “they was right up on me.” He stated that he did not know the men chasing him were policemen until he saw the handcuffs in their hands. He also testified that there was a man standing with him when the boys fired at him; that this man said he worked in the gas station, but he couldn’t bring him to court because he couldn’t find him, even though he had gone to the service station several times looking for him.

On cross-examination the defendant stated that when he was behind the billboard he was unable to put any more ammunition in his gun, and that he did not at any time fire his gun at the two men chasing him. He was on Adams Street when shot and was finally arrested while attempting to reload.

Defendant’s first contention is that the State failed to prove him guilty beyond a reasonable doubt of the crime of attempted murder. Section 8-4 (a) of the Criminal Code of 1961 (Ill Rev Stats 1963, c 38, § 8-4 (a)) provides that “a person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” The intent to kill or do great bodily harm to another satisfies the mental state requirement for the offense of murder. (Ill Rev Stats 1963, c 38, § 9-1 (a) (1).)

The Criminal Code of 1961 (Ill Rev Stats 1963, c 38, § 4-4) defines “intent” as follows:

“A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.”

In People v. Smith, 71 Ill App2d 446, 219 NE2d 82, this court stated at page 454:

“As the Supreme Court noted in People v. Coolidge, 26 Ill2d 533, 187 NE2d 694 (1963), intent is a state of mind and if it is not admitted, it can be shown only by surrounding circumstances; consequently, an intent to commit murder may be inferred from the character of the assault, the use of a deadly weapon and other circumstances. A sane man is presumed to intend all the natural and probable consequences of his own deliberate act; if one voluntarily and willfully does an act the direct and natural tendency of which is to destroy another's life, the conclusion, in the absence of qualifying facts, is that the taking of the other person’s life was intended. People v. Brooks, 52 Ill App2d 473, 202 NE2d 265 (1964); People v. Coolidge, supra.” [Emphasis supplied.]

See also People v. Moore, 77 Ill App2d 62, 222 NE2d 142; People v. Masterson, 79 Ill App2d 117, 223 NE2d 252.

The evidence in the instant case indicates that there are conflicting stories as to what took place on the night in question. The police officers contend they called out to the defendant that they were police officers and that the defendant replied by firing at them several times. The defendant maintains that he did not hear the officers call out to him and that he did not fire any shots in their direction; that in fact, he did not fire any shots after the first three on the corner. It is evident that the trial judge believed the police officers. In Schulenburg v. Signatrol, Inc., 37 Ill2d 352, 226 NE2d 624, the Supreme Court said, at page 356:

“Although a trial court’s holding is always subject to review, this court will not disturb a trial court’s finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. (Brown v. Zimmerman, 18 Ill2d 94, 102; Illinois Nat. Bank & Trust Co. of Rockford v. County of Winnebago, 19 Ill2d 487, 495; Mortel v. Beckman, 16 Ill2d 209.) Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of facts, have come to a different conclusion.”

In our opinion, the State proved the case against the defendant in the instant case beyond a reasonable doubt.

The cases cited by defendant in support of his first contention have no application to the case at bar. In Hammond v. People, 199 Ill 173, the court was no doubt correct in holding that to support a charge of attempted murder the attempt must have occurred under such circumstances that, had death ensued, the killing would have constituted murder and not merely manslaughter or homicide justifiable on the grounds of self-defense. That is the construction which clearly should be given to section 8-4 (a) of the Criminal Code. In the instant case, however, had defendant’s attempt succeeded, the killing would have resulted in the murder of Officer Davis. As mentioned previously, the defendant must be considered to have been aware of the fact that his pursuers were police officers attempting to apprehend him. Defendant is also unable to bring his appeal within the doctrine of manslaughter pronounced in People v. Scalisi, 324 Ill 131, 151 NE 715. Unlike the situation in that case, the defendant in the instant case did not resist and attempt to kill a known police officer who was illegally attempting to arrest him. Certainly, a police officer observing a man firing a gun on a street corner would have probable cause to arrest that person.

Defendant next contends that he was denied due process of law because the trial judge made a determination based upon private knowledge of the court. This contention is also without merit. The rule regarding the application by a trial court of its own private knowledge was set forth in People v. Wallenberg, 24 Ill2d 350, 181 NE2d 143, where the court stated at page 354:

“A determination made by the trial judge based upon a private investigation by the court or based upon private knowledge of the court, untested by cross-examination, or any of the rules of evidence constitutes a denial of due process of law.”

However, in People v. Jeffries, 26 Ill2d 248, 186 NE2d 242, the rule of the Wallenberg case was distinguished in that it only applied to the specific situation where the private knowledge was used to contradict important testimony offered by the defense.

In the instant case, the trial judge erroneously determined from his own private knowledge that the defendant lived on a street which would place his address in the Warren Avenue District rather than in the Fillmore Avenue District. The record clearly shows, however, that the court was corrected and acknowledged its mistake. The defendant was not prejudiced.

The trial judge took judicial notice of the fact that Kedzie Avenue, where the shooting took place, was eight blocks past the Crawford Avenue stop nearest the defendant’s home. This determination can in no way be said to contradict the defendant’s testimony. All that the defendant testified to was that he had fallen asleep, which accounted for his missing the stop; he never denied being on Kedzie Avenue, nor that it was a mile from his customary stop. In People v. Biocic, 80 Ill App2d 65, 224 NE2d 572, the court stated that the trial court had a right to take judicial notice of the nature of the area involved. A court may take judicial notice of whatever may be known by common observation, since a court is presumed to be as well informed as the general public and can certainly take judicial notice of that which everyone knows to be true.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    J. Joseph Daly, et al., Plaintiffs-Appellants, v. Golden Rule Life Insurance Company, an Illinois Corporation, Defendant-Appellee.
    Gen. No. 52,216.
    First District, Fourth Division.
    April 24, 1968.
    John W. Daly, of Chicago, for appellants.
    Arthur J. Hessburg, of Lawrenceville, and Fred Carman, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiffs appeal from a summary judgment in favor of defendant in their suit under a contract of insurance for expenses of $300 incurred in a Caesarean delivery. The sole issue raised on this appeal is whether the insurance contract, fairly construed, provided compensation for these expenses which were incurred after the policy’s termination.

Plaintiffs’ complaint alleged that plaintiff Kathleen A. Daly had become pregnant in May of 1965 when the insurance policy was in effect, and that a Caesarean delivery was performed on February 11, 1966. Defendant’s answer admitted the facts but denied liability asserting that plaintiffs’ policy was a group policy; that it contained a provision stating that the company could refuse to renew if renewal was refused to all policies held by members of the group; that the employer of the group members had instituted a new insurance plan because of which a majority of the members of the group had terminated their coverage with defendant and that defendant had exercised its option to refuse to renew the remaining policies on or before October 31, 1965. Plaintiffs’ reply to these defenses contested defendant’s construction of the insurance policy.

Plaintiff does not question the right of the defendant to terminate the policy under the circumstances recited in the answer and defendant’s motion for summary judgment. The only question on appeal is — does this insurance policy provide coverage for expenses incurred in a pregnancy after the termination of the policy where conception took place while the policy was still in force? The policy provides initially that defendant:

HEREBY INSURES the person listed on line 1 of the Family Group Schedule (herein called the Insured) against loss occurring while this Policy is in force for which a specific sum is specified in the Schedule of Benefits, which loss is incurred by the Insured and the eligible members of the Insured’s family, if any, named in the Family Group Schedule below (all of whom, including the Insured, are hereafter called the Family Group and shall individually be called a “Covered Person”), resulting from accidental bodily injuries sustained while this Policy is in force (hereinafter referred to as “such injuries”), or caused by illness which is contracted while this Policy is in force (hereinafter referred to as “such illness”), in the manner and to the extent herein provided. (Emphasis ours.)

Plaintiffs assert that the Caesarean operation was caused by an illness contracted while the policy was in force. Since pregnancy benefits are included in the Schedule of Benefits, “illness” covers pregnancy. Plaintiffs, however, contend that it is a sufficient precondition to recovery that the loss be a result of an illness contracted while the policy was in force. It is apparent that the clause “or caused by illness which is contracted while this Policy is in force” qualifies the clause “against loss occurring while this Policy is in force.” We believe that these clauses read together require both that the loss occur and that the illness be contracted while the policy is in force.

Plaintiffs also argue that the section entitled “Pregnancy Benefit” should be treated as a separate matter. However, this section appears under the general heading “Schedule of Benefits” and is not an assumption of liability separate from the insuring clause heretofore discussed.

Plaintiffs’ next contention is that a paragraph appearing in a section of the policy entitled “Exceptions And Reductions” actually expands the coverage of expenses resulting from pregnancy. The paragraph reads:

The Policy shall cover Pregnancy, childbirth, miscarriage or complications arising therefrom only under the Pregnancy Benefit and only in respect to the Member or the Member’s spouse, and provided the loss occurs 9 months after the effective date of coverage of the Member or spouse for whom claim is made. There shall be no coverage under the policy for loss resulting from pregnancy, childbirth, miscarriage or complications arising therefrom in respect to any Member or such Member’s spouse unless the Family Premium, has been paid in respect to the Member and the Member’s dependents for a period of 9 consecutive months prior to the occurrence of such loss.

Plaintiffs interpret the clause “provided the loss occurs 9 months after the effective date of coverage” to mean that, regardless of any other policy provisions, a pregnancy loss will be compensable, if it occurs nine months after the policy is terminated. However, this interpretation would make ineffective the requirement that the premiums be paid “for a period of 9 consecutive months prior to the occurrence of such loss.” We believe that these provisions mean that the policy must be in effect at least nine months before the pregnancy loss and that it must not have lapsed in the intervening period. In Bartulis v. Metropolitan Life Ins. Co., 72 Ill App2d 267, 218 NE2d 225, where plaintiff sought to recover for hospitalization, after termination of the policy, for illness incurred prior to termination, the court denied recovery stating at page 271:

We cannot agree with the plaintiff that liability arose when the injuries were sustained. The coverage was not for expense caused by injuries sustained during the life of the policy, but for the cost of hospitalization and surgery obtained during the life of the policy. We recognize the rule that insurance contracts are construed in favor of the insured, but construction does not degenerate into a perversion of plain language to create an ambiguity where none exists or to father a contract obligation where none is stated or reasonably implied. Miller v. Madison County Mut. Automobile Ins. Co., 46 Ill App2d 413, 197 NE2d 153; Thompson v. Fidelity & Casualty Co. of New York, 16 Ill App2d 159, 148 NE2d 9. Nor does either justice or public policy compel a different result.

The judgment in favor of defendant is affirmed.

Affirmed.

MCCORMICK, P. J. and ENGLISH, J., concur.


author: GOLDENHERSH, J.

text:
    Evelyn Mancou, Plaintiff-Appellant, v. Benjamin R. Mancou, Defendant-Appellee.
    Gen. No. 51,540.
    First District.
    April 24, 1968.

      Jerome Berkson, of Chicago, for appellant.
    Torme & Horwich, of Chicago (Joseph H. Horwich, of counsel), for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the order of the Circuit Court of Cook County denying her verified petition for modification of a divorce decree. The petition was denied without a hearing on the ground that plaintiff failed to allege facts legally sufficient to support a modification of the decree.

In her petition filed on November 16, 1965, plaintiff alleges that on July 2,1953, following a jury trial, a decree was entered granting her a divorce from defendant, and on November 19, 1953, a supplemental decree was entered ordering defendant to pay her alimony in the amount of $85 per week; that since 1964 plaintiff has incurred extensive extraordinary medical expenses in the approximate amount of $2,500 because of having suffered a heart attack and acute glaucoma; that she is solely dependent upon the alimony ordered to be paid by defendant and is unable to pay the medical expenses incurred; that at the time of the entry of the decree in July 1953, she was employed and earning approximately $259 per week, but that when the supplemental decree was entered on November 19, 1953, her earnings were less than that amount; that since early in 1964 she has been totally incapacitated, is not employed, and is without income or support; since the entry of the decree and supplemental decree defendant’s income and assets have substantially increased and he is well able to pay an amount commensurate with plaintiff’s needs. So far as pertinent to this appeal, the petition seeks an order directing defendant to pay all of the extraordinary medical expenses incurred by plaintiff, and an order directing him to pay increased alimony “predicated upon her needs and station in life and commensurate with his means and ability to pay.”

The supplemental decree provides:

“2. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant BENJAMIN R. MAN-COU pay to the plaintiff, EVELYN MANCOU, as and for permanent alimony, subject to the further order of this court, and for so long as she shall remain unmarried, the sum of $85.00 per week, effective as and from the first day of November, 1953. The said award is made in contemplation of the fact that the plaintiff may augment her income by engaging in remunerative work and shall be in addition to such income as she may so earn, and the amount of such alimony award shall not be reduced because of such additional earnings by the plaintiff.”

Chapter 40, section 19, Ill Rev Stats provides:

“Irrespective of whether the court has or has not in its decree made an order for the payment of alimony or support, it may at any time after the entry of a decree for divorce, upon obtaining jurisdiction of the person of the defendant by service of summons or proper notice, make such order for alimony and maintenance of the spouse and the care and support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just, but no such order subsequent to the decree may be made in any case in which the decree recites that there has been an express waiver of alimony or a money or property settlement in lieu of alimony or where the court by its decree has denied alimony.”

The parties agree that section 19 of the Divorce Act confers jurisdiction to modify the decree, and that no modification should be made unless there has been a material change in the conditions and circumstances of the parties, Gregory v. Gregory, 52 Ill App2d 262, 202 NE2d 139. The many cases cited in the briefs are not, however, decisive of, or for the most part relevant to, the sole issue presented in this appeal, i. e. whether plaintiff’s petition was sufficient to entitle her to a hearing.

Defendant argues that plaintiff’s petition is “fatally defective” in that it fails to allege (a) how and in what manner plaintiff’s employment or lack of employment is a change in circumstance which the court might consider in ordering an increase in the alimony payments; (b) “how and in what manner defendant is obligated to pay plaintiff’s debts in the form of alleged medical bills . . .”; (c) “how and in what manner defendant has substantially increased his earnings and assets.”

To paraphrase the statement found in Irving v. Rodriquez, 27 Ill App2d 75, 81, 169 NE2d 145, “The essential test of a complaint (petition) is that it has informed the defendant of a valid claim under a general class of cases of which the court has jurisdiction as distinguished from a complaint (petition) that states no cause of action at all.”

In Kita v. Young Men’s Christian Association of Metropolitan Chicago, 47 Ill App2d 409, 198 NE2d 174, Mr. Justice McCormick states most eloquently the cause for simplicity of pleadings toward the end that substantial justice may be done. That it is not necessary to plead evidence is so clearly established as to require no citation of authorities.

The petition sufficiently advises the defendant that plaintiff, by reason of illness is no longer employed, that she has incurred substantial debts in the form of medical expenses, and that his earnings and assets have substantially increased. What evidence she expects to adduce to support her allegations is readily discoverable, and plaintiff is not required to plead it in her petition.

In our opinion the petition is sufficient to entitle plaintiff to a hearing and the court erred in summarily denying it.

For the reasons herein set forth the order of the Circuit Court of Cook County is reversed and the cause remanded for further proceedings consistent with this opinion.

Order reversed and cause remanded.

MORAN and EBERSPACHER, JJ., concur.


text:
    B. R. Paulsen & Co., Inc., an Illinois Corporation, Plaintiff-Appellant, v. Leonard M. Lee, LeRoy L. Lee, and Clara Lee, d/b/a Lee Supply & Tool Company, and Frank R. Garapolo, et al., Defendants-Appellees.
    Gen. No. 51,420.
    First Judicial District.
    April 24, 1968.

      Henehan, Donovan & Isaacson, of Chicago (Edward V. Donovan, Jr. and Malcolm W. Burnett, Jr., of counsel), for appellant.
    Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (Guy E. Rodrick, Louis A. Lehr, Jr., and Eugene J. Kelley, Jr., of counsel), for appellees.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Cook County entered in favor of all defendants upon allowance of defendants’ motion to strike its complaint and dismiss the cause of action.

In Count I of its complaint plaintiff alleges that for approximately 39 years it had engaged in the business of selling mill supplies at wholesale, that it enjoyed a good reputation and the goodwill of many customers who constantly and continually purchased its goods, that defendants, Leonard M. Lee, LeRoy L. Lee and Clara Lee, copartners, doing business as Lee Supply & Tool Company, were for a long period of time engaged in a business similar to that of plaintiff, that in July 1965, these defendants attempted to institute preliminary negotiations to purchase all of plaintiff’s assets including its goodwill, but that the negotiations were not further pursued because plaintiff expressed no interest in a sale, that plaintiff on January 11, 1966, employed 15 persons among whom were defendant, Frank R. Garapolo, who served as its sales manager and also engaged in selling plaintiff’s merchandise, defendant, George A. Stadler, its chief purchasing agent, defendants, John L. Jach and Lee V. Cunningham, employed as salesmen, and defendant, Viola A. Henderson, its assistant purchasing agent, that each of these defendants performed duties “which were the very essence of plaintiff’s business,” each was a key employee and thus, in the course of his duties had acquired confidential information important to the operation of plaintiff’s business such as its list of customers, its policy with respect to quotation of prices, its costs, and its sources of merchandise, disclosure of which information to a competitor would be damaging to plaintiff’s business, that each of such employee defendants, by virtue of their respective key positions owed plaintiff a fiduciary duty of good faith and fair dealing, that defendants, Frank R. Garapolo, John L. Jach and Lee V. Cunningham, in the course of the performance of their duties for plaintiff acquired the goodwill of a large number of plaintiff’s customers “wholly as a result of the plaintiff’s good reputation and long course of business.”

Plaintiff also alleges:

“9. That the defendants, Leonard M. Lee, LeRoy L. Lee and Clara Lee, d/b/a Lee Supply & Tool Company, did encourage and conspire with the defendants, Frank R. Garapolo, George A. Stadler, John L. Jach, Lee V. Cunningham and Viola A. Henderson for the purpose of inducing them to leave the employment of the plaintiff and to instead enter employment with them and that they did such for the purpose of unlawfully and wrongfully benefiting themselves and for obtaining the confidential business secrets of the plaintiff and thus and thereby obtaining the advantage of the plaintiff’s long experience and acumen and particularly converting the goodwill of the plaintiff by way of acquiring its customers and key employees and for the unlawful and wrongful and malicious purpose of injuring the business of the plaintiff for their own benefit and competitive advantage.
“10. That the defendants, Frank R. Garapolo, George A. Stadler, John L. Jach, Lee V. Cunningham and Viola A. Henderson did conspire with the defendants, Leonard M. Lee, LeRoy L. Lee and Clara Lee, d/b/a Lee Supply & Tool Company, and with one another for the purpose of unlawfully and wrongfully aiding and abetting the defendants, Leonard M. Lee, LeRoy L. Lee and Clara Lee, d/b/a Lee Supply & Tool Company, in the realization of their objectives as set forth in paragraph 9 hereof and for the purpose of benefiting themselves thereby; and furthermore, that they did in furtherance of such objectives enter into the employment of the defendants, Leonard M. Lee, LeRoy L. Lee and Clara Lee, d/b/a Lee Supply & Tool Company, and have or intend to disclose to them the confidential information referred to in paragraph 7 hereof.”

Plaintiff further alleges that the defendants who are its former employees “have threatened to and in fact intend to disclose” the confidential information to the defendants Lee, and intend to convert plaintiff’s long experience, acumen and goodwill and transfer same to the defendants Lee by depriving plaintiff of all or a great part of its principal customers and key employees, that the defendants who are its former employees, at the behest of defendants Lee, in furtherance of their unlawful, wrongful and malicious purposes caused another salesman-employee to terminate his employment with plaintiff without notice; that by reason of the “aforesaid conspiracy among and between the defendants and their aforesaid overt acts” plaintiff has been deprived of virtually all its key employees, will be deprived of its goodwill, the greater part of its customers and will be competitively damaged and its business destroyed.

In Count II plaintiff repeats and realleges many of the allegations of Count I, alleges that it will sustain great and irreparable damage unless its former employees are restrained from revealing the confidential information above described and prays the issuance of a writ of injunction.

Defendants, jointly moved to strike the complaint, deny the writ of injunction and dismiss the action on the grounds that the complaint did not allege (a) a contractual arrangement or other understanding, oral or written, between plaintiff and its former employees, defendants here, which would prevent their leaving plaintiff’s employ, restrict their seeking other employment, limit their conduct with regard to confidential matters, require notice of termination of their employment or create a fiduciary relationship; (b) a restriction on the defendants Lee to refrain from competing with plaintiff or hiring the defendants, formerly plaintiff’s employees, or any of them; (c) that the employee-defendants had “knowledge or notice of any secrecy or confidential status of any of the policies, prices or customers of plaintiff.” In their motion defendants state that the allegations of conspiracy, that the employee-defendants are key employees, and the existence of a “fiduciary duty,” are mere conclusions.

The motion was argued and allowed, plaintiff elected to stand on its complaint, the complaint was stricken and the case dismissed, and this appeal followed.

Defendants contend before this court that the complaint does not (a) state a cause of action for the reason that it does not contain such information as reasonably informs the defendants of the nature of the claim which they are called upon to meet (b) charge defendants with an actionable conspiracy to injure plaintiff’s business (c) state a cause of action for unjustifiable interference with the relationship of employer and employee (d) contain allegations which establish a breach of the duty of good faith and fair dealing owed by an employee to his employer.

The purpose of a complaint, and the test of its sufficiency, is that it inform the defendant of a valid claim under a general class of cases. Irving v. Rodriquez, 27 Ill App2d 75, 169 NE2d 145.

“In a civil case the wrongful acts alleged to have been done in pursuance of a conspiracy, and not the fact of the conspiracy itself, is the gist of the action for damages. Hardy v. Bankers Life & Cas. Co., 19 Ill App2d 75, 153 NE2d 269; Seno v. Franke, 16 Ill App2d 39, 147 NE2d 469. The charge of conspiracy is merely an aggravation of the alleged wrongful acts; it serves the purpose of associating all the defendants with the acts done, and the declarations made, by any one of the defendants in pursuance of the conspiracy.” Ammons v. Jet Credit Sales, Inc., 34 Ill App2d 456, 465, 181 NE2d 601.

“It is well settled the mere allegation of a conspiracy does not of itself constitute the allegation of a wrong upon which liability for damages may be predicated. It is the act performed in pursuance of the agreement that may result in liability.” Bertash Market Co. v. Brown, 70 Ill App2d 8, 16, 217 NE2d 362.

In a case decided in England in 1880 (Bowen v. Hall, 50 LJQB 305) the court said: “Merely to persuade a person to break his contract may not be wrongful in law or fact. But, if the persuasion be used for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, it is a malicious act, which is law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act if injury ensues from it. . . . The theory of this doctrine is that a party to a contract has a property right therein which a third person has no more right maliciously to deprive him of, or injure him in, than he would to injure his property real or personal, and that therefore such an injury amounts to a tort for which the injured party may claim compensation by an action in tort for damages. Under such circumstances to say that the injured party has his remedy against the other contracting party is in many cases offering a mere shadow for substance, for oftentimes the other party to the contract may be financially irresponsible. The contractual relation of master and servant is still that with reference to which the rule here considered is most frequently invoked.”

The Supreme Court in Doremus v. Hennessy, 176 Ill 608, 52 NE 924, followed Bowen v. Hall and as the Appellate Court said in Cook-Master, Inc. v. Nicro Steel Products, Inc., 339 Ill App 519, 90 NE2d 657, at page 534: “We need not look beyond Doremus v. Hennessy. . . . The rule there laid down has not been departed from in this state.”

The malicious inducement of an employee to terminate his existing employment and enter the employ of another gives rise to a cause of action, Bloom v. Bohemians, Inc., 223 Ill App 269, and the fact that the contract of employment is terminable at will does not bar recovery. W. P. Iverson & Co., Inc. v. Dunham Mfg. Co., 18 Ill App2d 404, 152 NE2d 615.

Lists of customers compiled in the course of business are valuable assets, and our courts have consistently protected their owners against improper use by persons who by virtue of their employment have gained knowledge of them. Witkowsky v. Affeld, 283 Ill 557, 119 NE 630; Holsinger, Theis & Co. v. Holsinger, 329 Ill App 460, 69 NE2d 360; Boylston Coal Co. v. Rautenbush, 237 Ill App 550; Litow v. Aurora Beacon News, 61 Ill App2d 127, 209 NE2d 668.

In Schulenburg v. Signatrol, Inc., 33 Ill2d 379, 212 NE2d 865, at page 387, the Supreme Court said: “It is clear that an employee may take with him, at the termination of his employment, general skills and knowledge acquired during his tenure with the former employer. It is equally clear that the same employee may not take with him confidential particularized plans or processes developed by his employer and disclosed to him while the employer-employee relationship exists, which are unknown to others in the industry and which give the employer advantage over his competitors. The facts and circumstances in a particular case sometimes necessitate the drawing of a fine line of distinction in determining which rule should properly apply.” Whether the information allegedly gained by plaintiff’s former employees as to its policy with respect to quotation of prices, its costs, and its sources of merchandise falls within the scope of “general skills and knowledge” acquired by the employee, or “confidential particularized plans,” is a matter of proof, and is not determinable at this time.

From our review of the record and authorities, we conclude that the complaint charges sufficient facts to state a cause of action of conspiracy to injure plaintiff’s business, wrongfully interfere with its relationship with its employees and to make improper use of information obtained by the employee-defendants in their respective positions while in plaintiff’s employ. Obviously plaintiff is not required to plead its evidence and as stated in Field v. Oberwortmann, 14 Ill App2d 218, 144 NE2d 637, at page 221, “A plaintiff need not allege with precision facts which ‘to a much greater degree of exactitude’ are within the knowledge of defendants rather than of plaintiff.”

In their argument under sections I and II of their brief, defendants charge many deficiencies in the language of the complaint. If such deficiencies do in fact exist, they are semantic, and not legal, in nature, and do not serve to render the complaint insufficient as a matter of law.

For the reasons herein set forth the judgment of the Circuit Court of Cook County is reversed and the cause remanded with directions to vacate the order of dismissal and for further proceedings consistent with his opinion.

Judgment reversed and cause remanded with directions.

EBERSPACHER and MORAN, JJ., concur.