text:
    D. C. WADE et al., Plaintiffs-Appellees, v. HORACE GENTLE, Defendant-Appellant.
    First District (1st Division)
    No. 80-1088
    Opinion filed November 16, 1981.

      Parrillo, Bresler, Weiss & Moss, of Chicago, for appellant.
    Arthur S. Gomberg, Sheldon S. Gomberg, and Noreen Spencer, all of Chicago, for appellees.
   Mr. PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, D. C. Wade and Louella Dixon, sued defendant Horace Gentle for personal injuries and property damage resulting from an automobile collision allegedly caused by the negligence of defendant. Defendant did not appear at trial, and after a jury trial a verdict was returned for Wade in the amount of $5,000 and for Dixon in the amount of $250. Judgment was entered on the verdict. Defendant’s post-trial motion for judgment notwithstanding the verdict and in the alternative for a new trial was denied. On appeal defendant contends that the trial court erred in taking judicial notice of the amount of a collection suit judgment in the amount of $1,787 entered in favor of Michael Reese Hospital against D. C. Wade, in order to sustain Wade’s burden of proving the reasonableness of the amount of the hospital bill in his case against defendant, and in giving Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971), hereinafter cited as IPI Civil No. 5.01 (relating to failure to produce evidence or a witness).

For the reasons set forth herein the judgment is affirmed.

On August 29, 1974, plaintiffs D. C. Wade and Louella Dixon were involved in an automobile collision while driving on the Dan Ryan expressway. Wade was driving and Dixon was his passenger. The collision occurred when the front end of the Wade car struck the rear portion of defendant’s car, which plaintiffs claim pulled in front of the Wade car and stopped suddenly and without warning. Wade alleged both personal injury and property damage as a result of the collision, and Dixon alleged personal injury only. Over defendant’s objection, Wade’s attorney moved the court to take judicial notice of the court file of Michael Reese Hospital v. D. C. Wade for hospital services rendered to Wade from September 5,1974, to September 11,1974, for the purpose of proving the reasonableness of the hospital bill. The cause was set for trial a number of times, and on January 28, 1980, the date trial commenced, defendant’s attorney orally moved the court for a continuance to permit him to go to Beliz, Central America, to take the evidence deposition of defendant. The attorney claimed that defendant was a citizen of Beliz, and according to the American consul in Beliz, would be denied a visa to return to the United States for trial. The court denied the motion as untimely, and stated that the proper place to move for a continuance was before the assignment judge, and that this case had been set for trial for at least four months, since at least October 1979. At the conference on instructions plaintiffs offered IPI Civil No. 5.01, which was accepted over defendant’s objection. The court also submitted to the jury a special interrogatory concerning contributory negligence of Wade. The jury found for Wade in the amount of $5,000, for Dixon in the amount of $250, and answered “no” to the special interrogatory which inquired if Wade had failed to exercise ordinary care for his own safety which proximately contributed to his injuries.

Defendant contends that the trial court erred in taking judicial notice of the amount of a judgment in the amount of $1,787, entered in favor of Michael Reese Hospital for services rendered, against D. C. Wade, in order to sustain Wade’s burden of proving the reasonableness of the hospital bill in his case against defendant. Defendant alleges that he was not a party to the collection suit, and Wade never stated that he contested the collection suit, or that he informed defendant of the suit. Defendant also urges that unless the bill has been paid at the time of trial, competent evidence is required to establish the reasonableness of the charge. (Flynn v. Cusentino (1978), 59 Ill. App. 3d 262, 375 N.E.2d 433.) Defendant further claims that the collection suit judgment is only binding on the parties to the lawsuit or their privies, and therefore does not apply to him as he was neither. C.I.S., Inc. v. Kann (1979), 76 Ill. App. 3d 109, 394 N.E.2d 916; Drabik v. Lawn Manor Savings & Loan Association (1978), 65 Ill. App. 3d 272, 382 N.E.2d 333.

Wade urges that the court acted properly in taking judicial notice of a court file containing a certified copy of a judgment against him in the amount of $1,787, for hospital services rendered from September 5,1974, to September 11, 1974, for the limited purpose of showing that said hospital bill was fair and reasonable. He states that the judgment was entered by the same court, and that the rule in Illinois is that courts will take judicial notice of their own records. (In re Brown (1978), 71 Ill. 2d 151, 374 N.E.2d 209; People v. Davis (1976), 65 Ill. 2d 157, 357 N.E.2d 792.) Wade claims that defendant was not estopped from contesting the hospital bill at trial as plaintiff had the burden of proving causation and the necessity of the hospital services. He states that he testified extensively at trial, and as proof of damages the hospital bill itemized every treatment and service rendered to him. The bill was admitted into evidence, yet defendant did not cross-examine him on the causation and necessity of the bill. Plaintiff also urges that where there is no allegation of excessive damages, as in the instant case, if the court erred in taking judicial notice of the hospital bill, the error was harmless. (Geving v. Fitzpatrick (1978), 56 Ill. App. 3d 206, 371 N.E.2d 1228; Walczak v. General Motors Corp. (1976), 34 Ill. App. 3d 773, 340 N.E.2d 684.) Plaintiff further asserts that where as here there is ample evidence to support the jury’s verdict errors going to damages are viewed as harmless. Chapman v. Powers (1975), 30 Ill. App. 3d 44, 331 N.E.2d 593.

Both parties to this appeal have made numerous references to the record and to the report of proceedings of the trial below in support of their respective positions. Error has been claimed with regard to jury instructions, the admission of a hospital bill, the testimony of the parties, and the plaintiffs’ brief speaks of the testimony of a police officer, yet neither of the parties to this appeal has submitted to this court a complete report of proceedings of the trial below. It is the responsibility of the appellant to provide a complete record to enable the reviewing court to resolve the questions raised (City of Chicago v. Hutter (1978), 58 Ill. App. 3d 468, 374 N.E.2d 802), and we are not persuaded that the record before us is adequate to review the issues presented by this appeal. This court has repeatedly held that an appellate brief cannot serve as a substitute for a complete record (City of Chicago v. Hutter), and excerpts from the trial are equally insufficient. Since the complete record below has not been presented for review, we will not speculate as to the contents of the report of proceedings or utilize the excerpts presented, but will presume that the rulings of the trial court in this contested matter were rendered in conformity with the law, and that the facts before the court were sufficient to support the judgment. People ex rel. Spicer v. Coleman (1979), 72 Ill. App. 3d 631, 391 N.E.2d 46.

Accordingly the judgment of the circuit court of Cook County is affirmed.

Affirmed.

GOLDBERG and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE McGLOON

license: Public Domain

text:
      In re MARRIAGE OF LORRAINE NEAT, Petitioner-Appellant, and EUGENE NEAT, JR., Respondent-Appellee.
    First District (1st Division)
    No. 80-2781
    Opinion filed November 16, 1981.
    Mark J. Heyrman, of Mandel Legal Aid Clinic, of Chicago, for appellant.
    No brief filed for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Lorraine Neat and Eugene Neat were divorced on October 31,1977. Mr. Neat was given custody of the couple’s two children. No provision was made for visitation by Mrs. Neat. Subsequently, on April 22, 1980, Mrs. Neat filed a petition requesting the trial court to order Mr. Neat to allow her reasonable visitation rights. After a hearing on September 24, 1980, the trial court denied Mrs. Neat’s petition. She now appeals.

On appeal, Mrs. Neat argues that the trial court erred in denying her visitation rights.

We reverse and remand.

On October 31, 1977, Eugene Neat (respondent) was granted a divorce from Lorraine Neat (petitioner). Petitioner was not present during the divorce proceedings because she was in the hospital. As a result, no provision was made for visitation with the couple’s two children. Subsequently, on April 22, 1980, petitioner filed a petition requesting the court to order respondent to allow her reasonable visitation. On September 24, 1980, a hearing was held on the matter.

Petitioner’s evidence consisted of her own testimony and that of her social worker. Petitioner testified that she had been in the hospital, but that she had not been hospitalized during the past 2& years. She was being treated on an out-patient basis. She further testified that she was gainfully employed. She described her plans for the proposed visits with her children, which included going to museums, movies and out to lunch.

Petitioner’s social worker testified that he had been counseling petitioner for three months for an hour to an hour and one-half each week. During counseling sessions, the social worker discussed with petitioner plans for visiting with the children, the difficulties she might encounter in reestablishing a relationship with them and how she would handle any difficulties or emergencies which might arise. He stated that in his opinion petitioner was capable of caring for her children during the proposed visits and that he did not believe the visits would endanger the children’s physical, mental, moral or emotional health. He further stated that petitioner was taking medication, but that he believed that the medication would not affect her ability to care for the children during the proposed visits.

Respondent testified in his own behalf at the hearing. He stated that two years ago, petitioner had been arrested for disorderly conduct in the presence of the children. He additionally testified that five years ago, petitioner had been hospitalized and had been restrained for her own protection. Based on these facts, respondent stated that he felt that visits would endanger the children’s physical, mental, moral and emotional health.

At the close of the hearing, the trial judge noted that “the lady here has been swaying back and forth. Her eyes are glazed. She is under medication. The [social worker] was holding her elbow.” The court then denied petitioner visitation rights. She now appeals.

Pursuant to section 607(a) of the Illinois Marriage and Dissolution of Marriage Act, “[a] parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health.” (Ill. Rev. Stat. 1979, ch. 40, par. 607(a).) This section was enacted in 1977 as part of a comprehensive reform of Illinois’ marriage and divorce laws. (M. Auerbach and A. Jenner, Jr., Historical and Practice Notes, Ill. Ann. Stat., chs. 39-40, p. XIX (Smith-Hurd 1980).) The old statute directed the court to enter orders regarding the “care, custody and support of the children ° * * as * * * shall be fit, reasonable and just 0 * V’ (Ill. Rev. Stat. 1975, ch. 40, par. 19.) Further, it authorized the court to enter orders regarding the “care, custody, support and education of the minor children * * ® as shall be deemed proper and for the benefit of the children.” Ill. Rev. Stat. 1975, ch. 40, par. 19.

In marked contrast to these vague guidelines, section 607(a) deals specifically with visitation. The Commissioner’s Note to section 407 of the Uniform Marriage and Divorce Act, which was enacted in its entirety in section 607, described the endangerment standard as “onerous” and states that “it was deliberately chosen to indicate its stringency when compared to the ‘best interest’ standard traditionally applied to this problem.” The statute speaks affirmatively of a parent’s “entitlement” to visitation unless the visits would endanger the children. Because of this phraseology, we believe that the custodial parent bears the burden of proving by a preponderance of the evidence that visitation would endanger the children. See Crichton v. Crichton (1979), 75 Ill. App. 3d 326, 393 N.E.2d 1319.

In our judgment, the evidence presented by respondent falls far short of satisfying the rigorous endangerment standard. Respondent testified that petitioner had been arrested for disorderly conduct in the presence of her children. Because this incident occurred two years ago, we believe that it is of little assistance in assessing petitioner’s present ability to care for her children. Respondent additionally testified that petitioner was physically restrained for her own protection when she was in the hospital five years ago. Again, we note that the time lapse between the incident and the trial court hearing mitigates the import of the evidence. We further note that respondent had not seen petitioner for seven years prior to the hearing. As a result, his opinion that the visits would endanger the children’s health is of little value.

It appears from the record that the trial judge’s denial of petitioner’s petition was based on his personal observations of petitioner in the courtroom. While we recognize that it is the trial judge’s function to observe the demeanor of witnesses in the courtroom, we must also recognize the primacy of the parent-child relationship in the area of visitation rights. In Frail v. Frail (1977), 54 Ill. App. 3d 1013, 370 N.E.2d 303, it was noted that “[cjourts are reluctant to deny all visitation rights because of the underlying rationale that parents have a natural or inherent right of access to their children and that the sound public policy of this State encourages the maintenance of strong inter-family relationships, even in post-divorce situations. Only very extreme circumstances require and allow the trial court to permanently deprive a parent of visitation.” 54 Ill. App. 3d 1013, 1015.

In addition, it has been recognized that a petition to regain visitation rights is appropriate “whenever [a parent] can show an improvement in [his or her] mental condition, particularly if [he or she] obtains psychiatric treatment.” (Taraboletti v. Taraboletti (1978), 56 Ill. App. 3d 854, 858, 372 N.E.2d 155.) In the case at bar, petitioner has demonstrated that although she was hospitalized for psychiatric treatment 2M years ago, she has improved significantly since then. Her improvement is borne out by the fact that she is working full-time doing office work. Petitioner’s social worker corroborated her testimony concerning her ability to care for her children during the proposed visits and presented additional affirmative evidence of her fitness. He stated that she had improved “in her expressions and in her ability to work on problems confronting her” and that she had made “substantial strides” in her life. He stated that she was “very diligent” in following the instructions of her present physician and that her medication would in no way interfere with her ability to care for her children.

Having carefully considered the testimony of the witnesses and the trial judge’s observations, we do not believe that a denial of visitation rights was warranted. We believe that visitation provisions can be made which would accommodate the mother’s interest in seeing her children without endangering the health of those children.

For the foregoing reasons, we reverse the trial court’s order denying petitioner visitation rights and remand the cause for a redetermination of visitation rights in accordance with this opinion.

Order reversed; cause remanded.

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


author: Mr. JUSTICE PERLIN

text:
    SOPHIE STARNAWSKI, Plaintiff-Appellant, v. LICENSE APPEAL COMMISSION OF THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (2nd Division)
    No. 80-2685
    Opinion filed November 17, 1981.
    Aldus S. Mitchell and Stephen Stern, both of Mitchell & Rlack, P. C., of Chicago (Richard N. Kaplan, of Rosenfield, Kaplan & Halperin, of counsel), for appellant.
    Stanley Garber, Corporation Counsel, of Chicago (Robert Retke and Frank W. Nagorka, Assistant Corporation Counsel, of counsel), for appellees.
   Mr. JUSTICE PERLIN

delivered the opinion of the court:

The plaintiff, Sophie Starnawski, appeals from a judgment of the circuit court of Cook County entered in an action under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.). The circuit court judgment affirmed a decision of the License Appeal Commission of the City of Chicago, which sustained the revocation of Starnawski’s liquor license by Mayor Jane Byrne, the local liquor control commissioner of the City of Chicago.

The following issues are presented for review: (1) whether refusal to provide a licensee a copy of the administrative hearing officer’s report to the local liquor control commissioner is a denial of due process of law; (2) whether sections 5 and 8 of article VII of the Dramshop Act (Ill. Rev. Stat. 1979, ch. 43, pars. 149 and 153), which provide for different procedures for reviewing revocation orders based on the population of the community in which the licensed premises is located, create an unconstitutional classification; (3) whether the conversation between Officer Lamb, the City of Chicago’s sole witness, and Judy Martin, an alleged prostitute, was properly admitted into evidence at the license revocation hearing; and (4)' whether the decision of the local liquor control commissioner is supported by the manifest weight of the evidence.

For the reasons which follow, we affirm the judgment of the circuit court.

Sophie Starnawski was the holder of a local retail liquor license for the Subway Inn tavern located at 1549 West Division Street, Chicago, Illinois. She had operated the tavern since 1967 and resided in the same building in which the tavern is located.

Based on events which occurred on October 20,1978, Starnawski was charged by the Chicago local liquor control commission with having: (1) “by and through her agent, Judy Martin, knowingly offered or agreed to perform an act of prostitution for money with L. Lamb, said offer or agreement being made on the licensed premises, contrary to Chapter 38, §11 — 14(a), Ill. Rev. Stat. 1977”; and (2) “by and through her agent, Henry Thomas, who was exercising control over the licensed premises, knowingly permitted the licensed premises to be used for the purposes of prostitution, contrary to Chapter 38, §11 — 17(a)(1), Ill. Rev. Stat. 1977.”

On May 14, 1979, proceedings to revoke Starnawski’s retail liquor license were held. Deputy Liquor Control Commissioner Max Rittenberg presided at the evidentiary hearing. Jory Wishnoff, assistant corporation counsel for the City of Chicago, called, as the City’s sole witness, Officer Leslie Lamb.

Officer Lamb testified that he was a Chicago police officer, assigned at that time to the Sixth District. On October 20,1978, at approximately 1:20 a.m., he entered the Subway Inn. He was dressed in civilian attire. Upon entering the premises, he looked for a seat at the bar, sat down and ordered a drink from the bartender, Henry Thomas.

Lamb asked Thomas “where all the women were because there were only two women in the place, and he [Thomas] told me that they had been in earlier but they had just left before my arrival.” Lamb told Thomas that he was “looking for a girl to either get a blow job or a lay.”

Thomas allegedly replied that he would “take a look outside” if Lamb “really wanted” a girl. Thomas walked outside the tavern and returned three to five minutes later. He told Lamb that he had not seen “any of the girls outside.” A few minutes later a female, later identified by Lamb as Judy Martin, entered the tavern.

Thomas called to Judy, and Lamb overheard him ask her if she was “busy.” Thomas asked her if she wanted a drink, pointed at Officer Lamb, and told her to sit with Lamb. Thomas then introduced Martin to Lamb.

Lamb told Martin that “my wife had just had a baby and I haven’t been laid or had a blow job in a long time and that I was willing to pay her for either one and how much would it cost me.” Martin replied that “it would cost $20 for either e 0 and that they could “go around the corner to a hotel.” Lamb agreed to pay her the $20. He told her that he only had a $50 bill, but she said, “Don’t worry, I’ll get Henry to change the fifty.” She then called Thomas over to the table where she and Lamb were sitting.

Lamb informed Thomas that “I was going to pay Judy the twenty for a lay and I also wanted to have the money broken so I could pay for the hotel and I would give him a tip for getting her for me.” Taking the money out of the tavern’s cash register, Thomas “broke the fifty dollar bill” for Lamb. Lamb then paid for the drinks, gave Thomas a five dollar tip and thanked him for “getting Judy.” Thomas placed the tip in a glass next to the cash register and remarked that Judy “is all right” and that “Judy would go with [Lamb].”

Lamb and Martin left the tavern together. Once outside, Martin was arrested by Lamb and charged with prostitution. Lamb then reentered the tavern and arrested Henry Thomas, charging him with being the “keeper of a disorderly house.”

The only other witness to testify at the revocation hearing was Sophie Starnawski. She stated that from 1967 until January 1978 she had worked in her tavern seven days a week. On January 4, 1978, her son underwent surgery and remained in the hospital until March 10, 1978. On that date Starnawski brought her son home. As he was in a comatose state, it was necessary for her to give him constant care and attention. She thereafter hired a bartender, Henry Thomas, to work in the tavern. Starnawski’s son died on January 19,1979.

Following the arrest of Thomas on October 20, 1978, Starnawski “fired him.” She stated at the hearing that she was not working in the tavern on the evening of Thomas’ arrest, and that she had no knowledge of the events that occurred on the premises at that time. She also stated that she had “never heard” of Judy Martin and that Martin was not in Starnawski’s employ.

On July 16, 1979, after reviewing a transcript of the hearing and a report by the deputy commissioner, the local liquor control commissioner for Chicago, Mayor Jane Byrne, revoked Starnawski’s license. The commissioner found that “the licensee, by and through her agent, Henry Thomas, who was exercising control over the licensed premises, knowingly permitted the licensed premises to be used for purposes of prostitution.”

On July 25, 1979, Starnawski filed an appeal of the revocation order with the License Appeal Commission of the City of Chicago. Prior to the hearing of that appeal, she filed a motion to produce a copy of the deputy commissioner’s report to the commissioner. She also filed a motion requesting a de novo hearing before the License Appeal Commission. The Commission denied both motions.

On December 6, 1979 the License Appeal Commission affirmed the order revoking Starnawski’s liquor license, and on January 14, 1980, the Commission denied her petition for a rehearing. On the same day that her rehearing petition was denied, Starnawski filed a complaint for administrative review. On September 17,1980, the circuit court of Cook County affirmed the revocation order. Starnawski appeals from that order.

I

Starnawski’s initial contention is that where a licensee has claimed that the decision of the local liquor commissioner “is not substantiated by the evidence,” refusal to provide the licensee a copy of the hearing officer’s report to the commissioner is a denial of due process of law. To determine whether, as Starnawski argues, it is fundamentally unfair to deny a litigant a copy of the report of the only person who had an opportunity to judge the credibility of the witnesses testifying in a proceeding, we consider the relationship between the hearing officer and the commissioner.

Administrative proceedings may be conducted by a hearing officer who refers the case for final determination to a decision-making body which has not “heard” the evidence in person. (Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 128-29, 357 N.E.2d 785, 791.) The hearing officer, to comport with due process requirements, must convey his findings, conclusions and impressions of conflicting testimony, by either oral or written report, to the decision-making body. (Southern Illinois Asphalt Co. v. Environmental Protection Agency (1973), 15 Ill. App. 3d 66, 80, 303 N.E.2d 606.) Due process does not require that such report be made available to the parties to the proceedings. (See Ramos v. Local Liquor Control Com. (1978), 67 Ill. App. 3d 340, 345, 384 N.E.2d 912; see generally 2 Am. Jur. 2d Administrative Law §430, at 239 (1962).) Neither the Illinois Dramshop Act nor the Municipal Code of the City of Chicago requires disclosure of such report. The only requirement is that the hearing officer “shall report his findings to the mayor.” Chicago Municipal Code, ch. 10, §27.

In the instant case Starnawski asserts that without access to a copy of the hearing officer’s report, neither she, nor the License Appeal Commission, nor the courts on administrative review, can determine whether the commissioner, in making her decision, considered the hearing officer’s impressions of witness credibility. Starnawski seeks production of the hearing officer’s report to support her argument that the commissioner’s decision to revoke Starnawski’s license “was not substantially supported by the evidence.”

It should be noted that the hearing officer’s recommendations are not necessarily determinative of the commissioner’s decision. The commissioner may accept or reject any of the hearing officer’s recommendations and is free to make her own decision based on evidence in the record. (See Ramos v. Local Liquor Control Com. (1978), 67 Ill. App. 3d 340, 344-45, 384 N.E.2d 912.) It is the commissioner and not the hearing officer who is responsible for the decision to revoke a liquor license.

Starnawski relies heavily upon the case of Mazza v. Cavicchia (1954), 15 N.J. 498, 105 A.2d 545, discussed by the Illinois Supreme Court in Des Plaines Currency Exchange, Inc. v. Knight (1963), 29 Ill. 2d 244, 194 N.E.2d 89. In Mazza the New Jersey Supreme Court held that an interim report of findings of fact must be made available to the parties prior to the agency’s final decision so that an opportunity will exist to correct any factual mistakes or erroneous conclusions. In discussing the Mazza holding, our supreme court stated:

“Although it is indisputable that the procedure of submitting the examiner’s report to the parties prior to a final decision is desirable from a practical point of view, the Mazza decision, insofar as it establishes this procedure as a constitutional prerequisite to a fair hearing, has been criticized as an unwarranted limitation upon ‘the general rule that administrative officers are free to consult with noninvestigating and nonprosecuting staffs and that the only limits have to do with personal consideration of records and with use of extra record facts.’ [Citation.] A conclusion opposite to the Mazza case has been reached by several other courts.” 29 Ill. 2d 244, 250.

Thus, in Des Plaines Currency Exchange, Inc., it is established only that disclosure to the parties of the hearing officer’s report to the commissioner is “desirable.”

Although several Illinois courts have suggested that it would be “better practice” to disclose to the parties the hearing officer’s report to the commissioner, such disclosure has not attained the status of a due process requirement. (See Ramos v. Local Liquor Control Com. (1978), 67 Ill. App. 3d 340, 345, 384 N.E.2d 912; Des Plaines Currency Exchange, Inc. v. Knight (1963), 29 Ill. 2d 244, 250, 194 N.E.2d 89, 92, cert. denied (1964), 376 U.S. 969, 12 L. Ed. 2d 84, 84 S. Ct. 1136.) Therefore, we conclude that in the instant case the nondisclosure to Starnawski of the hearing officer’s report was not an abridgment of her due process rights.

II

Starnawski’s second contention is that article VII, sections 5 and 8 of the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, pars. 149 and 153), which provide for different procedures for reviewing revocation orders based on the population of the community in which the licensed premises is located, create an unconstitutional classification.

Section 8 of article VII provides that in home-rule municipalities of less than 500,000, appeals from all orders of local liquor control commissioners shall be determined in a trial de novo before the State Commission, unless the municipality adopts a resolution requiring that such review be based on the official record of proceedings before the local commissioner. Appeals from local commission revocation orders in municipalities of 500,000 or more are to be determined by the License Appeal Commission on review of the official record of the revocation proceedings.

Starnawski contends that by allowing to inhabitants of municipalities of less than 500,000 de novo review of liquor license revocation orders and denying such review to inhabitants of municipalities of 500,000 or more, the Dramshop Act creates an arbitrary and discriminatory legislative classification in violation of article IV, section 13 of the Illinois Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This contention has already been considered and rejected by this court in the case of Rincon v. License Appeal Com. (1978), 62 Ill. App. 3d 600, 605-06, 378 N.E.2d 1281.

In Rincon the court stated:

“It is competent for the legislature to determine upon what basis a distinction may be made for the purpose of statutory classification. The prohibition against special and local legislation does not prohibit classification nor does it mean a statute must affect everyone or every locality in the same way. It means that ‘a law shall operate uniformly throughout the State in all localities and on all persons in like circumstances and conditions. [Citations.]’
° ° ° A legislative classification based on population is valid if there is a reasonable basis for it. [Citations.] * * * (Emphasis added.)
Densely populated municipalities present problems of complexity and volume not encountered in less populated municipalities. It was not unreasonable for the legislature to conclude that despite the desirability of a hearing de novo, such review in municipalities of over 500,000 was simply impractical and that a review limited to the record was necessary to ensure the timely and effective discharge of the License Appeal Commission’s duties. The Illinois Supreme Court ‘has frequently held that differences in the size of the municipalities may raise special or unique problems in connection with many activities which justify classification ” ° [Citations].” (Emphasis added.) 62 Ill. App. 3d 600, 605-06.

In the case at bar appellant Starnawski has provided this court with no argument that would persuade us to depart from the holding in Rincon: that the legislature did not act unreasonably or arbitrarily in differentiating between municipalities with a population of 500,000 or more and those with less population.

III

Starnawski’s third contention is that Officer Lamb’s conversation with Judy Martin is hearsay and thus was improperly admitted into evidence during the license revocation proceeding. Starnawski objects to that part of Lamb’s testimony in which he stated, “Judy told me that it would cost $20.00 for either a blow job or a lay, whichever I desired and we would go around the corner to a hotel that was about a block away.”

Starnawski argues that Lamb’s conversation with Martin, offered by the city to establish that an act of prostitution occurred on the licensed premises, is hearsay because it “includes the statements of a third party made out of court * * * and is offered to show the truth of the matters contained therein.”

Hearsay evidence has been defined as:

“Testimony in court * 0 ” offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” E. Cleary & M. Graham, Handbook of Illinois Evidence §801.1, at 392 (1979).

The city urges that the value of Officer Lamb’s testimony does not rest upon the credibility of an out-of-court asserter. Lamb was simply describing an incident in which he was a participant. He testified under oath, and Starnawski had ample opportunity to cross-examine Lamb concerning his recollection of the incident.

In People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, the Illinois Supreme Court noted that the “fundamental purpose of the hearsay rule * * * is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered.”

In the instant case Lamb was not merely repeating the assertions of an unavailable witness as to some remote event. Officer Lamb was a participant in the conversation to which he testified and he was available for cross-examination. Thus, we hold that Lamb’s testimony as to the conversation between him and Martin was not hearsay, and its admission was not error.

IV

Starnawski’s final contention is that the decision of the commissioner is not supported by the manifest weight of the evidence.

The finding of the commissioner was that “the licensee, by and through her agent, Henry Thomas, who was exercising control over the licensed premises, knowingly permitted the licensed premises to be used for the purposes of prostitution, contrary to chapter 38, §11 — 17(a), Ill. Rev. Stat. 1977.” It is clear that if this finding was supported by substantial evidence, it constituted a sufficient cause for the order of license revocation. See Ill. Rev. Stat. 1977, ch. 43, par. 149; Daley v. Jack’s Tivoli Liquor Lounge, Inc. (1969), 118 Ill. App. 2d 264, 254 N.E.2d 814.

Officer Lamb testified that while he was sitting at the bar in the Subway Inn, dressed in civilian attire, he told the bartender that he was “looking for a girl” with whom he could have sexual relations. The bartender told Lamb that he would “take a look outside.” Thomas, the bartender, walked outside and returned three to five minutes later. Lamb stated that there were perhaps six or seven other patrons in the tavern at that time.

Shortly after the bartender returned to the tavern, Judy Martin entered. The bartender called to Martin, briefly spoke with her and motioned toward Officer Lamb. Lamb testified that Martin then sat down next to Lamb, after which the bartender walked over to where they were sitting and introduced Lamb to Martin. A conversation ensued between Martin and Lamb in which the woman stated that she would engage in sexual relations for $20. She then called the bartender over so that Lamb could “break a fifty” dollar bill.

Lamb told the bartender that he needed “change from the fifty” so that he could pay $20 to Martin, pay for a hotel room, and give a $5 tip to the bartender. The bartender accepted the tip, placed the tip in a glass next to the cash register and remarked that “Judy is all right” and that “Judy would go with [Lamb].”

Starnawski argues that Lamb’s testimony is incredible. She urges that a bartender would not leave the tavern unguarded for three to five minutes. She also maintains that the police officer cannot be believed because, on cross-examination, he had some difficulty recalling whether there was a juke box and/or a pool table in the tavern.

In administrative review proceedings the trial court and the appellate court are limited to a consideration of the record to determine (1) whether the findings and orders of the commissioner are contrary to the manifest weight of the evidence, and (2) whether the commissioner acted arbitrarily and without cause or in clear abuse of his discretion. The findings and conclusions of the agency on questions of fact are accepted as prima facie true and correct (Ill. Rev. Stat. 1977, ch. 110, par. 274), and courts have generally held that it is not the function of either the trial court or the appellate court to reweigh the evidence or assess the credibility of the witnesses. (Spiros Lounge, Inc. v. Illinois Liquor Control Com. (1981), 98 Ill. App. 3d 280, 423 N.E.2d 1366.) It is the commissioner as the trier of fact who is authorized to assess credibility, weigh the evidence, reconcile conflicting evidence, and determine which witnesses are worthy of belief. Daley v. Jack’s Tivoli Liquor Lounge, Inc. (1969), 118 Ill. App. 2d 264, 277, 254 N.E.2d 814.

It appears from the record that Officer Lamb informed Henry Thomas, the bartender, that he was “looking for a girl,” and that Thomas said that he would “take a look outside.” Subsequently Thomas introduced Judy Martin to Lamb, and shortly thereafter Thomas was made aware of the fact that Martin had agreed to perform for money sexual acts with Lamb. Thus it is reasonable to infer that Thomas, as Starnawski’s agent, knowingly permitted acts of prostitution to be transacted on the licensed premises. (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 17(a)(1).) Officer Lamb’s testimony, if believed, was adequate to support the license revocation. Therefore, we conclude that the decision of the local liquor control commissioner was not contrary to the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN, P. J., and DOWNING, J„ concur.

       On cross-examination, Officer Lamb stated that at the time of the arrest of Henry Thomas, Lamb did not summon Starnawski from her apartment above the tavern because he “did not realize that she lived upstairs.”

       Section 5 (which refers to section 8) provides for appeal from a revocation order:
      «o o . (-jle licensee * “ * shall have the privilege * ° ° of appealing the order to the local license appeal commission and upon the filing of such an appeal by the licensee the license appeal commission shall determine the appeal upon certified record of proceedings of the local liquor commissioner in accordance with the provisions of Section 8 of this article.”

       Article VII, section 6(a) of the 1970 Illinois Constitution entrusts home-rule authority to any municipality having a population in excess of 25,000. Other municipalities are permitted to become home rule units by referendum.

       In Rincon the appellant contended that section 8 of article VII of the Dramshop Act created an arbitrary and discriminatory legislative classification in violation of article IV, section 13 of the Illinois Constitution. The contention that such provision of the Dramshop Act also violated the Federal equal protection clause was not raised. The latter contention was met in the case of Maldonado v. License Appeal Com. (1981), 100 Ill. App. 3d 639, 427 N.E.2d 225, in which it was stated that the Rincon analysis “is similarly applicable when analyzing [section 8] in terms of equal protection. Although [article IV, section 13 of the Illinois Constitution] is not identical to the equal protection clause, it supplements the equal protection clause [citations] and the two provisions are generally judged according to the same standards.” Based on the rationale employed by the Rincon court, in its holding that section 8 did not violate the Illinois Constitution, the court in Maldonado held that section 8 was not violative of the equal protection clause.

       Section 11 — 17(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 17(a)) provides:
      “Any person who has or exercises control over the use of any place which could offer seclusion or shelter for the practice of prostitution who performs any of the following acts keeps a place of prostitution:
      (1) Knowingly grants or permits the use of such place for the purpose of prostitution; or
      (2) Grants or permits the use of such place under circumstances from which he could reasonably know that the place is used or is to be used for the purposes of prostitution; or
      (3) Permits the continued use of a place after becoming aware of facts or circumstances from which he should reasonably know that the place is being used for purposes of prostitution.”
      The act of “prostitution” is defined as * ° any person who performs, offers or agrees to perform any of the following acts for money ° ° ® (1) any act of sexual intercourse; or (2) any act of deviate sexual conduct “ ° °Ill. Rev. Stat. 1977, ch. 38, par. 11 — 14.


author: Miss JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEAN JOHNSON, Defendant-Appellant.
    First District (3rd Division)
    No. 79-2407
    Opinion filed November 18, 1981.
    Ralph Ruebner and Susan Bandes, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   Miss JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a bench trial the defendant, Dean Johnson, was found guilty of the murder of Patricia Baldwin (Patty) and the attempt murder of Steven Bush (Steven). The defendant was also found guilty of two counts of aggravated battery and one count of armed violence in that while armed with a dangerous weapon he committed the offense of aggravated battery. The defendant was sentenced to a term of 20 years for murder, a term of 10 years for attempt murder, and a term of 10 years for armed violence. All sentences were to run concurrently.

On appeal, the defendant contends that the State failed to prove beyond a reasonable doubt that he was sane at the time he committed the offenses. He also asserts that the court erred in sentencing him for both attempt murder and armed violence since both convictions arose from the same act.

The evidence presented at trial revealed that the defendant, Patty and Steven suffered from hearing impairments and were students at William R. Harper College in Palatine, Illinois. The three students had attended the same high school in Hinsdale where they were enrolled in the hearing impairment program.

During 1978 the defendant and Patty attended several social affairs together. At a party in November Patty and the defendant argued. Thereafter Patty refused to speak to the defendant.

Subsequently Patty began to date Steven. In February 1979 an incident occurred near the college cafeteria when the defendant attempted to discuss with Patty the reason she refused to go out with him. According to Steven, the defendant followed the couple to the campus parking lot where he slapped Patty’s face. The defendant then followed Steven and Patty as they drove home and attempted to force Steven’s automobile off the road. Steven stopped at a gas station to call the police. The defendant pounded on the car window and threatened to kill the couple if they told their parents about the incident.

Charlene Dwyer, the college’s counselor for the hearing impaired program, spoke to the defendant concerning this incident. The defendant claimed that he became upset because Patty and Steven were talking about him in the cafeteria. The defendant admitted that he “blew up,” but stated that the incident was now forgotten. Following a student conduct hearing the defendant was told not to contact Patty or he would be dismissed from school.

On March 1,1979, Steven drove Patty to school and parked his automobile in the campus parking lot. As they got out of the car, Steven saw the defendant walk toward them. The defendant struck Patty in the face with his hand. When Steven tried to intervene, the defendant stabbed him in the neck with a knife. Steven fell, and the defendant stabbed Patty 14 times. When a campus nurse arrived at the scene, Patty had no pulse or respiration.

The defendant fled and was arrested that evening in a cemetery.

Dr. Eugene Mindel, a psychiatrist who specializes in working with the handicapped, testified concerning his examination of the defendant. The defendant told Dr. Mindel that he became very upset whenever Patty refused to speak with him. He began to have bad dreams about Patty which progessively caused him to become more disturbed. On the evening before Patty’s death, the defendant went to the computer room at the college. However, images from his dreams prevented him from working. The defendant told Dr. Mindel that on March 1,1979, he went to Lee & Eddie’s Catering where he had worked for several years. The defendant took a nap and dreamed that Patty was a monster. When he left work, the defendant took a knife and placed it in his car’s trunk. The defendant drove to the college, took out the knife and placed it in his belt. When he saw Steven and Patty, the defendant yelled “I have bad dreams” and stabbed Patty. The defendant only remembered one small cut on Patty. After the stabbing, the defendant wanted to kill himself. He drove his car very fast in an attempt to have a fatal crash. He stole and took some aspirins which made him dizzy. The defendant tore at the interior of his car before abandoning it in a snowbank. The following morning in jail the defendant attempted to cut his wrists on the bolts of a toilet bowl.

Dr. Mindel believed that at the time of the stabbing the defendant suffered from a dissociative reaction, a state in which certain functions of the personality escape the individual’s control. The defendant was under extreme stress, exhausted from bad dreams, and had no rational control over his behavior. Dr. Mindel concluded that the defendant was unable to conform his conduct to the requirements of the law and was unable to appreciate the criminality of his acts. It was Dr. Mindel’s opinion that the fact that the defendant recalled only one small cut on Patty indicated that the defendant was in a psychotic frenzy when the stabbing occurred and that he had lost control over his rational process.

Barbara Rayson, a clinical psychologist who works with the hearing impaired, tested the defendant at the request of Dr. Mindel. In her opinion the defendant had a borderline personality, a fragile organization of the personality which under extreme stress can become, for a short time, psychotic.

Dr. Melvin Seglin, a psychiatrist, examined the defendant one week after the murder. He found the defendant incoherent and concluded that at the time of the murder the defendant could not conform his conduct to the law and lacked substantial appreciation for what he was doing. Dr. Seglin believed that the defendant had an obsessive-compulsive neurosis which became a schizophrenic psychosis. As a result of the psychosis, the defendant was under the control of unconscious forces in his mind and had lost his ability to control these unconscious forces.

The State presented expert witnesses to rebut the defendant’s claim of insanity. Dr. Gershon Kaplan, a psychiatrist employed at the psychiatric institute of the circuit court of Cook County, examined the defendant and concluded that although the defendant had a personality disorder, there was no evidence of psychosis. The defendant had a passive-aggressive personality in that he had difficulty handling anger. Dr. Kaplan felt that at the time of the stabbings the defendant could conform his conduct to the law and was able to appreciate the criminality of his acts. He found it significant that the defendant could recall clearly and completely his actions before and after the stabbings.

Michael Rabin, a clinical psychologist at the psychiatric institute, examined the defendant and had him perform several tests. Rabin found that the defendant had a passive-aggressive personality and that there was no evidence of psychosis.

Dr. Werner Tuteur, a psychiatrist associated with Elgin Mental Health Center, examined the defendant. He also concluded that at the time of the stabbings the defendant had no mental disease which would have deprived him of his ability to conform his conduct to the requirements of the law.

Autis Price and Thomas Kolessar worked with the defendant on the morning of March 1 at Lee & Eddie’s Catering. Neither man observed anything unusual about the defendant’s behavior.

At the conclusion of all the evidence, the trial court found that the defendant was sane when he committed the acts and guilty of all the offenses charged in the indictment.

The defendant first contends that the State failed to prove beyond a reasonable doubt that he was sane at the time he committed the offenses. A person is not criminally responsible for his conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Ill. Rev. Stat. 1977, ch. 38, par. 6 — 2(a).

W’hile the law presumes all individuals to be sane, once the defendant introduces sufficient evidence to raise a reasonable doubt of his sanity, the burden shifts to the State to prove beyond a reasonable doubt that the defendant was legally sane at the time the offense was committed. (People v. Martin (1980), 87 Ill. App. 3d 77, 409 N.E.2d 114.) In ascertaining the defendant’s sanity the trier of fact must consider the totality of the evidence. In so doing, the trier of fact is entitled to weigh the testimony and to determine the credibility of witnesses, both lay and expert, without being required by law to accept the opinions of psychiatrists. (People v. Sims (1976), 35 Ill. App. 3d 401, 342 N.E.2d 256.) The determination of the credibility of witnesses and the weight to be given to their testimony are functions of the trier of fact. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.) A finding of sanity will not be disturbed unless it is so palpably erroneous as to indicate that it was based upon prejudice or passion. People v. Rennert (1977), 49 Ill. App. 3d 485, 364 N.E.2d 506.

In the instant case there was conflicting expert testimony concerning the issue of whether the defendant was criminally responsible for his actions. The defendant argues that the testimony of the State’s expert witnesses was discredited in several ways. He points out that these experts were not trained to work with the deaf; that their examinations of the defendant were not as extensive as those of the defendant’s experts; that Rabin, the clinical psychologist, did not administer several of the tests which Rayson did; and that Dr. Tuteur was impeached. These factors, however, concern the credibility of the witnesses, an issue to be determined by the trier of fact. The record reveals that the trial court heard extensive testimony, which this opinion has summarized, concerning the witnesses’ qualifications, their interviews with the defendant, the bases of their opinions, and their criticism of the contrary theories concerning the defendant’s mental state. After carefully evaluating the totality of the evidence, the trial court concluded that the State had proved beyond a reasonable doubt that the defendant was sane. We cannot say that this conclusion was so palpably erroneous as to require reversal.

The defendant also argues that the trial court considered matters not in evidence in finding the defendant sane. We have reviewed the extensive findings of fact set forth by the court and conclude that these findings were based on evidence or were reasonable conclusions derived from the evidence presented at trial.

The defendant’s second argument is that he was improperly sentenced for both attempt murder and armed violence since both convictions arose from the same act. Multiple convictions cannot stand when they are carved from the same physical act. People v. Myers (1981), 85 Ill. 2d 281, 422 N.E.2d 620; People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 181, 98 S. Ct. 273.

• 3 In the instant case the charge of attempt murder arose from defendant’s act of stabbing Steven in the neck. That same single physical act was the basis of the armed violence charge which stated “while armed with a dangerous weapon, to wit: a stabbing instrument (he) committed the offense of aggravated battery.” Thus, both convictions cannot stand.

The State refers us to recent decisions of the second division of this court which held that multiple convictions are proper for armed violence and the underlying offense when the latter may be committed without possession of a dangerous weapon. (People v. Feierabend (1981), 98 Ill. App. 3d 731, 424 N.E.2d 765; People v. Lynom (1981), 97 Ill. App. 3d 1113, 423 N.E.2d 1281; People v. Best (1981), 97 Ill. App. 3d 1083, 424 N.E.2d 29.) The court relied on two recent supreme court decisions in reaching this conclusion, People v. Myers and People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627. We have carefully examined both opinions and must respectfully disagree with the second division’s interpretation of these cases. We do not believe that either opinion modifies in any way the holding of People v. King. We, therefore, vacate defendant’s conviction and sentence for armed violence.

Accordingly, the judgments of the circuit court of Cook County for murder and attempt murder are hereby affirmed; the judgment for armed violence is vacated.

Affirmed in part, and vacated in part.

RIZZI, P. J., and McNAMARA, J., concur.


author: Mr. JUSTICE WHITE

text:
    PATRICIA MAID et al., Plaintiffs-Appellees, v. ILLINOIS FARMERS INSURANCE COMPANY et al., Defendants-Appellants.
    First District (3rd Division)
    No. 80-1724
    Opinion filed November 18, 1981.

      Walter M. Ketchum, Ltd., of Chicago (Patrick S. Moore, of counsel), for appellants.
    Heller & Morris and Schwartzberg, Barnett & Cohen, both of Chicago (Benjamin H. Cohen and Hugh J. Schwartzberg, of counsel), for appellees.
   Mr. JUSTICE WHITE

delivered the opinion of the court:

Plaintiffs Patricia Maid and Philip Maid, Sr., brought this action for a declaratory judgment construing an uninsured motorist provision in four automobile insurance policies issued by defendant, Illinois Farmers Insurance Company. Plaintiffs sought a declaration by the circuit court that they were entitled to aggregate or “stack” benefits potentially payable under the policies. The trial court granted a motion by plaintiffs for summary judgment and held as a matter of law that plaintiffs were entitled to “stack” uninsured motorist benefits under all four policies.

The facts are not in dispute. On December 9, 1977, Patricia Maid, daughter of Philip Maid, Sr., was involved in an automobile collision with defendant Melvin C. Wilson, an uninsured motorist. The automobile, being operated by Patricia at the time of the accident, was owned by her father and was the insured vehicle under one of the policies issued by the company to her father. Patricia was the named insured under one of the policies and was at this time a member of her father’s household, thus qualifying as an insured under the other three policies. Each policy issued by the company provided uninsured motorist insurance in the amount of $10,000, medical expense coverge in the amount of $2,000, and wage loss coverage in the amount of $150 per week for one year. On appeal defendant contends that the trial court erred in interpreting the provisions of the subject insurance policies and in holding that they permitted stacking of uninsured motorist benefits as a matter of law.

Defendants assert in support of this argument that two clauses of the insurance policy prohibit stacking, one appearing in the policy itself, the other in an amendment to the policy. Coverage “C” of the primary policy, “Benefits for Bodily Injury Caused by Uninsured Motorist,” contains this limitation:

“Limits of Liability
(a) The limits of the Company’s liability shall be the limits of bodily injury liability required by the motor vehicle financial responsibility law of Illinois.”

Defendants’ position is that under this language, Patricia Maid is limited in her recovery to $10,000, the minimum coverage required by the State statute for bodily injury caused by an uninsured motorist. (Ill. Rev. Stat. 1979, ch. 73, par. 755a(l).) It is our opinion that while the language of section (a) of clause “C” does serve to limit the company’s liability under any one of the insurance policies owned by the insured to the statutory $10,000 limit, it in no way affects the right of the insured to stack benefits potentially recoverable under several different policies.

If this is not the only permissible construction of coverage “C” it certainly is one which the language of the policy permits. If the clause is ambiguous it must be construed in favor of the insured, i.e., construed to permit stacking. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539.) The language of the insurance policy here is to be contrasted with the wording of the policy in Sharples v. General Casualty Co. (1980), 85 Ill. App. 3d 899, 407 N.E.2d 674. In that case the court was also construing a limits of liability clause under an uninsured motorist coverage provision to determine if it prohibited stacking. The Sharpies court held that it did. There, however, the clause limiting liability contained the following restrictive language not found in the policy of the instant case: “The limit of liability of uninsured motorists coverage stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages * ° * because of bodily injury sustained by one person as the result of any one accident * * (Emphasis added.) 85 Ill. App. 3d 899, 900.

While this language clearly specifies the limits of the company’s liability, the clause in the instant case is ambiguous and capable of more than one construction. Our conclusion is supported by plaintiffs’ payment of separate premiums under each of the policies issued them by the insurance company which may reflect an intent by the contracting parties that stacking be permitted.

The premium rule states that when premiums have been paid for separate policies, it seems both equitable and desirable to permit recovery under more than one policy until the claimant is fully indemnified. (Westchester Fire Insurance Co. v. Industrial Fire & Casualty Insurance Co. (1978), 58 Ill. App. 3d 439, 374 N.E.2d 779.) The thrust of this rule is that insurance companies should not be permitted to collect premiums for a given amount of coverage and thereafter apply limiting clauses to absolve their liability to the insured. (Greenholt v. Inland National Insurance Co. (1980), 87 Ill. App. 3d 638, 410 N.E.2d 329.) The rule, according to the Greenholt court, “is best understood as a mere explication of the general rule that the insured is to be favored in construing insurance policies.” (Greenholt, 87 Ill. App. 3d 638, 641.) Thus, the rule should be viewed as one of construction, and should not be applied unless the insurance contract reveals an ambiguity as to the amount of coverage intended. Having found the limits of liability clause of the uninsured motorist coverage provision to be ambiguous, we find it fitting that the premium rule be applied here.

As we have stated earlier in this opinion, each of the four policies owned by plaintiffs provided identical uninsured motorist coverage in the amount of $10,000. Since plaintiff paid separate premiums under each of these policies, it is conceivable that he expected to receive additional coverage for his money. Under these circumstances the intent of the contracting parties is uncertain, and we believe the matter should be resolved in favor of the insureds. Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539.

The second clause relied upon by defendant does contain language limiting recovery of benefits to one policy. However, this clause appears as a condition in a “Basic Personal Injury Protection Amendatory Endorsement.” As such, it lends no support to defendants’ contention that recovery of uninsured motorist benefits is limited to one policy. These conditions in the amendatory endorsement apply only to the provisions of the endorsement which in pertinent parts read as follows:

“Conditions
The following conditions apply to all Provisions of this endorsement except where otherwise noted:
# # #
(6) Other insurance. No person may recover benefits afforded under this coverage from more than one policy or company on a duplicate basis. The insurance afforded shall be primary unless Basic Personal Injury Protection benefits are available to the injured person as a result of being struck by an automobile with respect to which a specific premium for Basic Personal Injury Protection has been made under another policy or as the result of such person being injured while occupying such an automobile. In such an event, this insurance shall not apply.” (Emphasis added.)

This language of the amendatory endorsement refers only to the “Basic Personal Injury Protection” coverage and does not limit Patricia’s right to stack benefits for bodily injury caused by uninsured motorists under coverage “C” of the policy. It specifically refers to “Basic Personal Injury Protection” and there is nothing in the endorsement to indicate that the conditions apply to any other coverage. Indeed, the contrary is made clear by the language limiting the applicability of the conditions to the provisions of the endorsement.

Our supreme court has denied the right to stack uninsured motorist benefits when the contract language clearly indicates a limitation on such recovery. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539.) However, in the absence of such unambiguous limiting language, stacking has been approved. (Kaufmann v. Economy Fire & Casualty Co. (1979), 76 Ill. 2d 11, 389 N.E.2d 1150; Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 370 N.E.2d 1044; Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336, 312 N.E.2d 247.) No such language has been found in the clauses upon which defendant relies. We therefore find no error in the trial court’s ruling that the uninsured motorist benefits of the policies here could be stacked.

In addition to the two clauses discussed above, defendants in their reply brief in this court raise for the first time as a defense against stacking, Condition No. 10 of the policy relating to other insurance. This clause was not relied upon by the defendant insurance company in the trial court, or in their initial brief on appeal. Supreme Court Rule 341(e)(7) provides:

“The appellant’s brief shall contain the following parts in the order named:
# * «
(7) Argument, which shall contain the contentions of the appellant. ° * 0 Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” (Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)(7).)

Section (g) states additionally: “The reply brief, if any, shall be confined strictly to replying to arguments presented in the brief of the appellee and need contain only Argument.” (Ill. Rev. Stat. 1979, ch. 110A, par. 341(g).) It is clear under the language of this Supreme Court Rule that defendants waived their right to raise Condition No. 10 in this appeal. For this reason, and pursuant to motion of plaintiffs, defendants’ reply brief has been stricken and no construction of Condition No. 10 is involved in the foregoing opinion.

For the foregoing reasons the judgment of the circuit court of Cook County is affirmed.

Affirmed.

RIZZI, P. J., and McGILLICUDDY, J., concur.


author: Mr. JUSTICE JIGANTI

text:
      In re MARRIAGE OF SUZANNE W. HELFRICH, Petitioner-Appellee, and GEORGE BAIRD HELFRICH, Respondent-Appellant.
    First District (4th Division)
    No. 80-3148
    Opinion filed November 19, 1981.
    Owen L. Doss, of Puchalski, Keenan & Puchalski, of Chicago (Joseph D. Keenan, III, of counsel), for appellant.
    Schiller & Du Canto, Ltd., of Chicago (Donald C. Schiller and Pamela S. Trapp Goodemote, of counsel), for appellee.
   Mr. JUSTICE JIGANTI

delivered the opinion of the court:

The trial court increased an award of unallocated maintenance and child support in the petition of Suzanne W. Helfrich. Dr. George Baird Helfrich brings this appeal, contending that there is no evidence of a substantial change of circumstances since the last modification some three years before and further that the previous modification order stated that it would remain in effect unless George had net income in excess of $50,000. George contends that although he has gross income in excess of the $50,000 figure he does not have “net” income in the amount contemplated by the parties in the prior order.

Suzanne and George were divorced in 1973 after 10 years of marriage and three children. At the time of the divorce the children’s ages were eight, seven and three. Under the terms of the divorce judgment, George was ordered to pay $10,000 a year in unallocated alimony and child support. The court reserved the right to increase or decrease the unallocated alimony and child-support payments in the event of a change of circumstances of any of the parties. The judgment provided that Suzanne would be permitted to earn an additional $6000 a year without constituting a change of circumstances.

On December 1, 1976, Suzanne filed a petition for modification. At that time, George’s gross annual income was $62,466. The action resulted in an agreed order between the parties in which George consented to increase his annual, unallocated maintenance and child-support payments from $10,200 to $15,000 per year. The parties further agreed, and this language was incorporated into the modification order, that this modification would “continue in effect unless the respondent has a net income in excess of $50,000.” The order did not define or elaborate the term “net income.”

On June 18,1980, Suzanne filed the present petition. She alleged that her needs and those of her minor children had substantially increased since the previous modification order. She presented evidence to the court to show that her children, now ages 15, 14 and 10, had increased expenses as they grew older; that the house in which she and the children lived was in need of repair and redecoration; and that she was unable to keep up with the cost of living and support four people with only $15,000 in payments from her former husband combined with the $4830 which she made as a part-time bookkeeper, both incomes being taxable to her. Therefore, she was falling into debt.

Suzanne Helfrich also alleged in her petition that George’s netincome had risen above the $50,000 mark which was specified in the earlier order. She presented evidence to the court to show that George had an annual salary of $70,000 a year; that he was eligible for $5000 in bonuses per year; that he acquired a residential building in 1979 which contained a rental unit renting at $6900 a year; that he owned 50 percent interest in “Mount View Farm” in southern Illinois; that he had inherited an interest bearing accommodation account with a balance in excess of $190,000; and that he was the sole equitable owner of a professional corporation that had $38,269.33 in assets in 1978.

Although George admitted receiving $75,000 in salary and bonuses a year and verified that he controlled the substantial assets delineated above, he denied that his “net” income amounted to $50,000 a year as contemplated by the parties on the prior order. In support of his assertion he produced his 1979 Federal tax return which showed a gross income of $77,957 and a net income of $41,657 after deductions, including a $15,000 deduction for the unallocated maintenance and child support.

After a hearing where both the plaintiff and defendant testified, the trial court granted the plaintiff’s petition for modification of judgment. In its order, the court stated that it had found a substantial change in the circumstances of the parties. Specifically the court found that George’s “real income” had increased and also the “real expenses” of the petitioner and their children since the last modification order. The court then awarded the petitioner an additional $6000 per year.

George concedes on appeal that the trial court had the power to alter the previous modification order upon a finding of substantial change of circumstances and was not limited in the exercise of this power by the $50,000 “net” income amount. Lamp v. Lamp (1980), 81 Ill. 2d 364, 410 N.E.2d 31, interpreting Ill. Rev. Stat. 1977, ch. 40, par. 510(a).

Nevertheless George argues that it was not appropriate for the court to modify the order without strict observance of the $50,000 net income limitation which represented an agreement between the parties. He also argues that the evidence does not support a conclusion that the parties had undergone a substantial change of circumstances since the prior order.

It is true that the law looks with favor upon the amicable settlement of property rights between the parties to a divorce and is reluctant to disturb judgments based upon such settlements. (Wohl v. Wohl (1975), 28 Ill. App. 3d 298, 328 N.E.2d 138; Ill. Ann. Stat., ch. 40, par. 502(f), Historical and Practice Notes, at 403 (Smith-Hurd 1980).) However, whenever a request for modification is sought, it is the duty of the court in which the action has been brought to ascertain all the pertinent facts and circumstances and then apply the statutory standard of “substantial change of circumstances” to determine if a modification should be made. Ill. Rev. Stat. 1977, ch. 40, par. 510(a); Lamp v. Lamp (1980), 81 Ill. 2d 364, 410 N.E.2d 31; see In re Bayuk (1979), 79 Ill. App. 3d 877, 398 N.E.2d 1109.

Since a trial court must find a substantial change in circumstances to modify a prior order, the remaining inquiry is whether or not the evidence reasonably supports such a finding. Under the holding in Scott v. Scott (1979), 72 Ill. App. 3d 117, 389 N.E.2d 1271, for increased support a moving party must show that the children have grown older and the cost of living has risen if, at the same time, the moving party can also demonstrate an increased ability on the part of the defendant to pay. Scott, 72 Ill. App. 3d 117, 124, 389 N.E.2d 1271, 1276, citing Addington v. Addington (1977), 48 Ill. App. 3d 859, 863, 363 N.E.2d 151, 154.

To meet this two-part burden of proof, Suzanne presented evidence to show that her children were older and that these four people could riot keep up with the cost of living on what the defendant was paying them.

Suzanne also presented evidence to show that George’s ability to pay had increased. George’s gross income had increased from $62,466 in 1976 to $75,000 in salary and bonuses in 1980. Since the 1977 decree, George had also acquired interests in a $190,000 inheritance and a residential building with a rental unit. In addition, he also maintained one-half ownership in “Mount View Farm” and continued to be the sole equitable owner of a professional corporation.

Although the exact dollar amount of George’s interests are unclear from the record, we do not believe that the trial court abused its discretion when it decided that the plaintiff’s real needs had increased and also the defendant’s real income and ability to pay. We also do not believe that the trial court was in error when it failed to observe the $50,000 net income limitation in the previous order notwithstanding the fact that the parties strongly disagreed as to whether this $50,000 mark had been reached. Since the change in circumstances of the parties since the 1977 order was substantial, we believe that the trial court was correct when it decided that the legal policy favoring prior agreements between the parties containing limitations on future modifications must yield in a case of unallocated maintenance and child support to a proper application of the statutory standard for modification.

Affirmed.

ROMITI, P. J., and JOHNSON, J., concur.


author: Mr. JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNEST MYERS, Defendant-Appellant.
    Third District
    No. 81-318
    Opinion filed November 19, 1981.

      Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Rreslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Ernest Myers, appeals from the judgment of conviction for armed robbery entered against him in the Circuit Court of Will County following a jury trial. In his appeal, the defendant raises but one issue: Whether the trial court erred by giving the jury a non-IPI instruction as to when a person is armed with a dangerous weapon.

At the trial, the defendant conceded he was guilty of robbery but, testifying the gun was not loaded, contested the question of whether he was armed with a dangerous weapon at the time of the robbery. The trial court instructed the jury as follows:

“A person commits the crime of armed robbery who, while armed with a dangerous weapon, takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” Illinois Pattern Jury Instructions, Criminal, No. 14.01 (1968) (hereinafter IPI).
“To sustain the charge of armed robbery, the State must prove the following propositions;
That the defendant took United States Currency from the person or presence of Diane Campbell; and
That the defendant did so by the use of force or by threatening the imminent use of force; and
That the defendant was armed with a dangerous weapon.
If you believe from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.” (IPI Criminal No. 14.02.)

The trial court also gave the following non-IPI instruction over defense objection:

“A person is considered armed with a dangerous weapon when he carries on or about his person or is otherwised [sic] armed with a bludgeon, or other weapon of like character.”

We agree with the defendant that a non-IPI instruction should not be given unless the relevant IPI instructions fail to accurately state the law. (Ill. Rev. Stat. 1979, ch. 110A, par. 451(a).) We also agree that what constitutes a dangerous weapon for armed robbery does not necessarily constitute a dangerous weapon under the armed violence statute, wherein categories of dangerous weapons are specified. People v. Watkins (1981), 94 Ill. App. 3d 749, 419 N.E.2d 54.

Therefore, we agree that it was improper for the trial court to instruct the jury as it did. A comparison of the new IPI Criminal Nos. 4.17 and 11.19 will demonstrate this error. No. 4.17 is the definition for a dangerous weapon, to be used in armed robbery situations, and states:

“An object or an instrument which is not inherently dangerous may be a dangerous weapon depending on the manner of its use and the circumstances of the case.”

No. 11.19, which is to be used in armed violence cases, states, in relevant part:

“A person is considered armed with a dangerous weapon when he carries on or about his person or is otherwise armed with a >>

The disputed instruction in this case is very similar to No. 11.19 even though this is an armed robbery case, rather than an armed violence case.

Nevertheless, a review of the record indicates not only that the defendant has waived this issue for purposes of review, but that the error was harmless beyond a reasonable doubt. Although the defendant objected to the instruction, the issue was neither included in the defendant’s written, post-trial motion, nor was it argued to the court at the time the motion was considered. As a result, the defendant has waived this issue for purposes of review on appeal. People v. Brabson (1977), 54 Ill. App. 3d 134, 369 N.E.2d 346.

Furthermore, since the jury, based on the instruction given, must have determined that the gun could have been used as a bludgeon, i.e., was bludgeon-like, and even an unloaded handgun capable of being used as a bludgéon is a dangerous weapon for purposes of armed robbery (People v. Skelton (1980), 83 Ill. 2d 58, 414 N.E.2d 455; People v. De La Fuente (1981), 92 Ill. App. 3d 525, 414 N.E.2d 1355), the error was harmless.

The defendant attempts to argue that the Illinois Supreme Court decision in Skelton holds that every bludgeon-like instrument is not a dangerous weapon for armed robbery. However, the court does not quite state the rule in that fashion. Instead, the court held that a plastic, toy gun was not a dangerous weapon because, among other things, it was too light to be used effectively as a bludgeon. Yet, the court did state:

“Most, if not all, unloaded real guns and many toy guns, because of their size and weight, could be used in deadly fashion as bludgeons. Since the robbery victim could be quite badly hurt or even killed by such weapons if used in that fashion, it seems to us they can properly be classified as dangerous weapons although they were not in fact used in that manner during the commission of the particular offense. It suffices that the potential for such use is present; the victim need not provoke its actual use in such manner.” People v. Skelton (1980), 83 Ill. 2d 58, 66, 414 N.E.2d 455, 458.

At the trial, the handgun, admitted into evidence, was described as a 6.35 millimeter, semi-automatic handgun from West Germany. The gun, which could be unloaded either by firing or removing the clip, weighed a little less than 13 ounces. We have also observed that the gun is made of heavy metal and has metal corners which could cause serious injury if the weapon were used as a bludgeon.

In this case, the jury must have made one of two findings to return a guilty verdict. If they found the gun was loaded, certainly it would be dangerous per se. (People v. Skelton (1980), 83 Ill. 2d 58, 414 N.E.2d 455.) If the jury found the gun was unloaded, but could be used as a bludgeon, this finding, too, is supported by the evidence. Therefore, the giving of the instruction was harmless beyond a reasonable doubt.

For the foregoing reasons, the judgment of the Circuit Court of Will County is affirmed.

Affirmed.

ALLOY and BARRY, JJ., concur.