author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Salvatore Abruscato, Defendant-Appellant.
    Gen. No. 50,891.
    First District, Third Division.
    November 17, 1966.

      Thomas J. Maloney, of Chicago (Richard H. Devine, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant was charged with one Franklin Oaks, in indictment No. 64-2906, with conspiracy to commit the offense of arson. He was also charged with one Franklin Oaks, in indictment No. 64-2907, on three counts of arson.

The defendant was tried alone before a jury on both indictments. He was found guilty of conspiracy in indictment No. 64-2906 and guilty of arson in counts 1, 2 and 3 in indictment No. 64-2907. The trial court vacated and set aside the verdict and judgment on the conspiracy indictment, and the defendant was sentenced to the Illinois State Penitentiary for a term of three to ten years on counts 1, 2 and 3 in indictment No. 64-2907 for arson.

The defendant contends that the People failed to prove under count 1 that the building was damaged without the consent of the owners, and that the People failed to prove under counts 2 and 3 that the building was designed for use as a dwelling.

The evidence was as follows:

On May 19, 1964, a policy of insurance was taken out with the Hartford Fire Insurance Company to cover a building and contents of a restaurant at 2748 North Cicero Avenue, for a period of five years. The beneficiary of the policy was Rose Abruscato, doing business as Sports Grill. There was also a policy of insurance taken out with the Northwestern National Insurance Company covering the same building and for the contents of the restaurant in that building. The beneficiary was Rosaría Abruscato, doing business as Sports Grill. The inception of this policy, likewise, is May 19, 1964, and covered a period of five years.

About a week before August 16, 1964, Franklin Oaks was with the defendant. The defendant stated to him that “business was kind of bad,” and said if the place were to be burned that he could go to work and at least make a decent living. On August 16, 1964, Oaks and the defendant again were together, and had a conversation in a car. At that time the defendant suggested that Oaks go to a service station and tell them he ran out of gas, and they would then give him an oil can which could be filled with fuel to burn the restaurant. Oaks got a six-gallon can and a tire and put them in the trunk of the defendant’s car. He obtained this can and tire from one Edward Mincey. The defendant, Mincey and Oaks went into a tavern and the defendant asked Mincey what it would cost him to get help to burn the place. Mincey stated he didn’t want any part of it. Oaks and the defendant drove to a gasoline service station at Ashland and Belmont, and Oaks obtained five gallons of fuel oil and put it in the car. They then went to another gas station and got five gallons of oil, and from there they went to the Sports Grill at 8:00 o’clock on Sunday. The defendant opened the front door and went in. Oaks came in the back door which the defendant had opened for him. Oaks brought the oil in with him and set it in the back room. They then left. At about 10:00 p. m. the same day Oaks went back to the Sports Grill and spread oil around the back bar, on the floor, newspapers, and behind the grill and steam table. Oaks had a key which had been given to him by the defendant. Oaks then left and went to Cathy Foreman’s house and stayed until 2:30 a. m. of the morning of August 17, 1964. He then went back to the building in question and went in. He attempted to start the fire from a cigarette but it did not start. At about 3:30 a. m. Oaks tried again and failed. At 4:00 o’clock a. m. Oaks went back and struck a match, and the flame went to the fuel oil. Oaks then ran out, locked the door and went back to the girl’s house. He called the defendant’s home and told him “the place is all ablaze.” Oaks told the defendant where he was and the defendant came over to the girl’s house. The girl was asleep when the defendant arrived but she got out of bed. She said to Oaks that he smelled like he had been in a turpentine factory. She washed Oak’s clothing. He left and went to the restaurant where he found that the fire was out. The defendant was at the restaurant by that time. Oaks saw the defendant that afternoon at Halsted and Diversey “at a hamburger joint.” They talked about the fire. Oaks owed the defendant $100. It was agreed that debt was cancelled.

A detective assigned to the Arson and Bomb Unit on August 18, 1964, investigated a fire at 2748 North Cicero Avenue. He found the first floor badly burned behind and on the floor of the grill. He called the defendant and they went to the premises. The ceiling had been burned and there was fire damage in the basement. He smelled gasoline or oil. The defendant was later arrested.

On behalf of the defendant Jane Burns testified that she was a waitress in a restaurant at Cicero and Diversey and that they were doing “real well.”

The defendant testified that he did not with Franklin Oaks damage the building which was owned by Vincent Angeleri and one Mulligan; that he did not set fire to the building with Franklin Oaks for the purpose of defrauding the insurers, nor did he intend to defraud the Northwestern National Insurance Company. He testified that he was not with Oaks on the afternoon and night of August 16, 1964. He further testified that he did not go to Mincey’s house, nor did he have a fuel can in his automobile in the middle of August. He also stated that he had never been to Cathy Foreman’s house.

On rebuttal Edward Mincey was called by the State. He testified that he had known the defendant and Oaks all of his life. They had come to his house a little after sundown one evening and borrowed a five-gallon kerosene can. They went to a tavern and drank a beer. The defendant asked Mincey “what would it cost to get a place took care of.” Mincey testified that he said “I don’t do nothing like that.”

Cathy Anderson was called as a rebuttal witness. She stated that on August 17, 1964, she saw Oaks at her house. He smelled of oil or kerosene. She knew the defendant since he came to her home after the fire; that Bud (Oaks) called him from her house and told the defendant what he had done. He also told the defendant he could come over and pick up the keys. The defendant came to her house and there was a conversation between the defendant and Oaks. The Cathy Anderson who testified on rebuttal is apparently also known as Cathy Foreman.

Franklin Oaks testified that he did not have permission from the landlord to set the fire.

The defendant’s first contention is that the People failed to prove that the building was damaged without the consent of the owners. Count 1, indictment No. 64-2907, is based on section 20-1 (a) (1), and Counts 2 and 3 of said indictment are based upon section 20-1 (a) (3) of chapter 38 of Ill Rev Stats 1963. Section 20-1 reads in pertinent part as follows:

“20-1. Sec 20-1. ARSON.) A person commits arson when:
“ (a) By means of fire or explosive, he knowingly:
“(1) Damages any building of another without his consent; or
“(2) Damages any vehicle, aircraft, or watercraft of another designed for use as a dwelling without his consent; or
“(3) With intent to defraud an insurer, damages any building, vehicle, aircraft or watercraft designed for use as a dwelling.”

People v. Maertz, 375 Ill 478, 32 NE2d 169, involved a proceeding in which the defendants were found guilty of malicious mischief. The statute covering malicious mischief required that the damage to the property be done without the consent of the owner. The defendants on appeal asserted that they were not proved guilty for the reason that it was not shown the windows were broken without the consent of the owners of the property, and the statute made want of consent an element of the crime. The court in that case on page 480 said:

“It is so unlikely that a person or corporation would consent to the violent destruction of his or its property, at least by strangers that there is a sound presumption no such consent was given. Until some evidence is introduced tending to show consent was given, the presumption prevails, and it is not incumbent on the People to prove want of consent. Here there was not a scintilla of evidence of consent. This contention must be overruled.”

In the instant case there was not a scintilla of evidence that the owners of the building consented to the damage, and by the same reasoning there is a presumption no such consent was given.

In People v. Vozel, 346 Ill 209, 178 NE 473, involving an appeal from a conviction of arson, the court on page 219 said: “The presumption is that a man will not purposely burn his own property.” The People in this case were under no obligation to prove that the owners of the property did not consent, in the absence of any evidence tending to show that there might have been consent on their part. Likewise, the evidence in this case did show that Oaks, involved in setting the fire, did not have the consent of the owners.

The second point raised by the defendant was that the People failed to prove under counts 2 and 3 of the indictment that the building was designed for use as a dwelling. Both counts 2 and 3 were based upon section 20-1 (a) (3) of the Criminal Code, which we will again set forth for the purpose of clarity:

“20-1 (a) (3) With intent to defraud an insurer, damages any building, vehicle, aircraft or watercraft designed for use as a dwelling.”

It is true that there was no evidence that the building which was damaged by fire was designed for use as a dwelling, and the defendant reads this section to mean “with intent to defraud any insurer, damages any building (designed for use as a dwelling), vehicle (designed for use as a dwelling), aircraft (designed for use as a dwelling) , or watercraft designed for use as a dwelling.” While the wording of this subsection of the statute standing alone would make it appear that the defendant’s interpretation is correct, nevertheless, by reading all of the subsections of section 20-1 together it is apparent that the legislature intended to cover by section 20-1 (a) (3) all buildings whether or not designed for use as a dwelling. If the interpretation urged by the defendant were found to be the law, then it would be impossible to convict anyone of the crime of arson for damages to a warehouse, factory or any other type of building with intent to defraud an insurer, except one designed for use as a dwelling.

Section 1 of chapter 131 in force prior to January 1, 1965, (Ill Rev Stats 1963, c 131, par 1) read as follows:

“1. RULES TO BE OBSERVED.) sec 1. In the construction of statutes the provisions of Sections 1.01 to 1.22, inclusive, shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly or repugnant to the context of the statute.”

Section 1.01 of the same statute reads as follows:

“All general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the General Assembly may be fully carried out.”

Subsection (a) (1) of section 20-1 of the Criminal Code covers the offense of damaging any building of another without his consent. Subsection (a) (2) covers damages to any vehicle, aircraft or watercraft of another designed for use as a dwelling without his consent. Obviously the purpose of subsection (a) (3) was to include any building as set forth in subsection (a) (1), and also any vehicle, aircraft or watercraft designed for use as a dwelling, as set forth in subsection (a) (2) where the damage was done with intent to defraud an insurer. While we realize that subsection (a) (3) of the act on arson is not artfully drawn, we feel that to construe this statute in the way the defendant urges would be inconsistent with the manifest intent of the General Assembly.

The Committee Comments appended to section 20-1, (SHA chap 38, sec 20-1) state the following:

“Therefore, section 20-1, Arson, includes the more serious elements of knowingly damaging by fire or explosive (1) any building of another without his consent, or (2) any vehicle, aircraft or watercraft (of another) designed for use as a dwelling, or (3) any property (including personal) with intent to defraud an insurer. These are the more common types of offenses which have been brought within the statutory definition of arson in other states.”

We feel the Committee Comments support the interpretation that we have placed upon this disputed subsection (a) (3). Had that section read as follows, “With intent to defraud an insurer, damages any building; or with intent to defraud an insurer, damages any vehicle, aircraft or watercraft designed for use as a dwelling,” the manifest intent of the legislature would have been expressed more clearly.

We therefore find that it was not incumbent upon the People to prove that the building which was damaged was designed for use as a dwelling. For the foregoing reasons the conviction is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Mid-States Vending Service, Inc., Plaintiff-Appellee, v. Jack Rosen, et al., Defendants-Appellants.
    Gen. No. 51,407.
    First District, Third Division.
    November 17, 1966.

      Nathan T. Notkin, of Chicago, for appellant, Jack Rosen.
    John R. Fielding, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an interlocutory order granting a temporary injunction restraining defendant, Jack Rosen, from soliciting business of customers of plaintiff, Mid-States Vending Service, Inc., (Mid-States), who had been its customers during the period of employment of Rosen by the plaintiff. The petition for temporary injunction had initially included Rosen’s subsequent employer, Dynamic Automatic Leasing Corp., (Dynamic) and the president thereof, Eugene Breakstone. However, after the master’s hearing on the petition and answers thereto, plaintiff dismissed the defendants other than Rosen.

Mid-States, an Illinois corporation, is engaged in the business of operating vending machines. In such operation they make contracts with owners or operators of businesses, such as restaurants, taverns, nightclubs, gasoline stations, etc., under which contracts they leave vending machines on the premises of the businessmen, fill said machines with merchandise from time to time, and service the machines. The owners of the premises receive commissions based upon the merchandise sold. The amounts and methods of computation of the commissions vary from contract to contract.

The defendant, Dynamic Automatic Leasing Corp., leases cigarette vending machines to owners of various businesses. Their operation differs from that of plaintiff insofar as the owners of premises are lessees of the machines. The lessees fill the machines on their premises and pay monthly rentals to Dynamic.

The defendant Jack Rosen was employed by one Rowe Service Company (Rowe) prior to January of 1965. During that month the plaintiff purchased about seven hundred fifty (750) cigarette vending machines from Rowe and received assignments of the contracts involving these machines, which were then being operated in various locations. About that time Rosen left Rowe and went to work for Mid-States in the capacity of salesman and adjuster. His duties were primarily seeking out new customers and servicing complaints of the current customers. During that time he was under no written contract and he never entered into a covenant not to compete with plaintiff. He stayed in this position until early March, 1965, at which time he became employed by Dynamic in a similar capacity. Since May, 1965, Rosen has been a free lancer in the same business, obtaining locations for various vending machine operators on a commission basis.

A period of about four months had elapsed from the termination of Rosen’s employment by Mid-States to the date of the master’s hearing, during which period plaintiff lost some fourteen customers. These locations are now serviced by Dynamic. Mid-States had about eleven hundred (1100) machines in operation at that time made up of three hundred fifty (350) originally belonging to it and seven hundred fifty (750) purchased from Rowe.

Plaintiff’s president, Kiley, testified that he was never aware of any customer lists held by Mid-States’ salesmen. He further said he “must assume” Rosen was familiar with and subsequently “went after” the fourteen locations that are now served by Dynamic. Kiley could not testify to personal knowledge of any actual solicitation of these customers by Rosen. Defendant Breakstone testified that ten of the customers had come to Dynamic through Rosen and that the others had come through other sources.

Defendant Rosen contends on appeal that the motion for temporary injunction should not have been granted for the reasons that (1) in absence of specific agreement not to compete with a former employer, it is legitimate for an employee to so compete, once the employment relationship has terminated; (2) competition in trade or business is a justification for interference with contract; (3) most of the contracts allegedly interfered with were illegal under the Municipal Code of Chicago, chap 147, par 16.2, so that plaintiff is not petitioning with “clean hands,” and (4) no irreparable injury was shown by the plaintiff.

Defendant first argues that a person is free to compete with his former employer in absence of an express agreement not to do so. Defendant relies upon American Cleaners & Dyers v. Foreman, 252 Ill App 122, in which the former employee, a laundry route salesman and deliveryman, had ceased working for the plaintiff and had gone into business for himself and, within a month thereafter, had taken away thirty-nine of the forty-three customers on his old route. Defendant took no list of customers when he left plaintiff’s service, but was evidently familiar with his route customers. In the absence of an express covenant not to compete, nor to contact these customers, the court refused to enjoin defendant from soliciting business from the customers whom he had serviced while employed by plaintiff. The court quoted with approval a similar case, Fulton Grand Laundry Co. v. Johnson, 140 Md 359, 117 A 753, saying at page 133:

“But, while we do not decide that there might not be cases in which an employer should be protected from the use by an employee of a list of customers, fraudulently and surreptitiously obtained, or where, in the nature of the particular case, or by reason of the care used in concealing them, the names of customers are so guarded as not to be easily obtainable by others than confidential employees, we are not willing to hold that in any ordinary business an employee, on going into business for himself or into the employ of another, should be enjoined from seeking to do business with friends he has made in the course of a previous employment, merely because he became acquainted with them while so engaged. . . . Under such a rule, a traveling salesman, every time he changed employers, if in a like business, would be compelled to give up all the friends and business acquaintances made during the previous employment. Such a rule would tend to destroy the freedom of employees and to reduce them to a condition of industrial servitude.”

Another case, Professional Service Corp. v. Johnson, 316 Ill App 431, 45 NE2d 191, held that a defendant could solicit his former employer’s customers, even though he had been employed as manager of plaintiff’s collection agency.

On the other hand, plaintiff cites House of Vision, Inc. v. Hiyane, 58 Ill App2d 431, 208 NE2d 390, in which the court affirmed the granting of a temporary injunction against defendant, a former employee of plaintiff. The order restrained defendant from the solicitation of plaintiff’s customers. A written employment contract between the parties had contained a restrictive covenant under which defendant agreed not to compete with plaintiff after the employment relationship ended. There was evidence that defendant had actively solicited plaintiff’s customers. Because of the restrictive covenant and the actual solicitation of customers by the defendant, this case does not control in the case at hand.

Rosen and Mid-States had no written contract and there was no agreement not to compete. Rosen had, according to his testimony, dealt with only ten of the fourteen customers Mid-States lost to Dynamic. Plaintiff presented no positive evidence that Rosen had solicited these or any other customers. The only testimony relating to such activity was by Rosen, to the effect that he had not solicited the business of these locations. It was only after he had been contacted by them or had been advised that they were attempting to locate him that Rosen discussed the possibility of these customers being served by Dynamic.

Defendant cites cases that clarify what an employee may take with him when changing employers or entering into competition with his former employer. Generally he may take all skill and knowledge received during the employment, so long as he takes nothing belonging to the employer. Activated Sludge v. Sanitary Dist. of Chicago, 33 F Supp 692, affirmed as Guthard v. Sanitary Dist. of Chicago, 118 F2d 899. In the instant case Rosen had taken no customer list with him from Mid-States, nor had he given any such list to Dynamic. The testimony showed only that Kiley “must assume” that Rosen had become familiar with all the locations involved in this case. This does not indicate the existence of a customer list, but shows only that Rosen may have been familiar with those with whom he dealt while in plaintiff’s employ.

Rosen further contends that although the customers who changed from Mid-States service to Dynamic service had been under contract with the former, business competition justifies the interference with those relations. London Guarantee Co. v. Horn, 206 Ill 493, 69 NE 526, involved an action for malicious interference with an employment contract. The court held competition in trade, employment, or business, in the absence of fraud, to be sufficient justification for interference with existing contract relations. This competition surely existed here between Mid-States and Dynamic or Rosen. Plaintiff also cites cases dealing with tortious interference with contract relations; however, study of these cases disclosed that they are not controlling on the facts. Although plaintiff contends that Rosen induced the customers to break existing contracts with the plaintiff, no evidence was introduced in support of this contention. It may even be said the customers had made their decisions to sever their relations with Mid-States, or were at least contemplating such moves, before contacting Rosen. It was dissatisfaction with the plaintiff’s service that prompted the contacts with Rosen. According to Rosen, one customer had said he felt he was being cheated by Mid-States. It appears, therefore, that Rosen merely gave these locations a subsequent opportunity to contract elsewhere.

Because the evidence does not show that defendant Rosen solicited the customers of his former employer, nor induced the breaches of contract involved, we feel it unnecessary to discuss defendant’s points regarding the alleged illegality of the contracts of Mid-States and its customers and the alleged failure on the part of plaintiff to prove irreparable injury.

The master found that plaintiff had raised a fair question of its right to injunctive relief. A temporary injunction will not issue unless the evidence shows that defendant is doing or threatens to do something contrary to law and prejudicial to plaintiff. Here the evidence is wholly lacking as to solicitation of customers by defendant, and, therefore, there could be no showing of illegal, unjustifiable or injurious solicitation of plaintiff’s customers. The order granting the temporary injunction restraining Rosen must be reversed.

Reversed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Huguley, Defendant-Appellant.
    Gen. No. 50,512.
    First District, Fourth Division.
    November 18, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Charge : Attempted rape.

Defense at Trial : Defendant denied that he committed the alleged offense.

Judgment : After a bench trial the court found defendant guilty and imposed a penalty of three to five years in the Illinois State Penitentiary.

Points Raised on Appeal : The sentence should be reduced on a lesser included offense because the only evidence on the offense charged in the indictment was inadmissible.

Evidence: Testimony of State witnesses.

Louise Harris testified that on December 16, 1964, she was walking home from work at about 11:20 p. m., going west on Fulton Street, when she noticed the defendant, Charles Huguley, walking behind her, going in the same direction; that as he walked by her he grabbed her, put his hand over her mouth, and said, “You’re going with me.” She stated that he then dragged her into a driveway; that she broke away from him twice and started to run, but he grabbed her and hit her each time; that he continued to drag her towards the alley and she fought back, screaming; that he said “Shut up. I’m going to stick you with this knife”; that she did not see the knife. She stated that the defendant hit her on the side of the head, pushed her up against a building; that she struggled with him and he hit her again and they fell to the ground; that he told her to take off the long-line panty girdle she was wearing; that she told him she couldn’t take it off lying down, so he let her up, at which time she started running towards the alley, screaming, and he caught her and they again fell on the ground. She stated that about that time they saw a man coming across the driveway with a stick in his hand; that she ran towards him and asked for his help. She further testified that the defendant had crawled away when the man came towards them, and when the complaining witness told the man the direction in which the defendant had gone he started after him, but the defendant managed to get away. The man who came to the witness’ aid was Jesse Baxter; he called the police after the defendant got away.

The complaining witness described to the police the defendant and the clothing he was wearing; the police then searched the neighborhood and discovered the defendant and placed him under arrest. That same evening the defendant was identified by both the complaining witness and Baxter in a lineup in the police station.

Jesse Baxter testified that on the evening in question he was sitting in his car when he saw the complaining witness walking on Fulton Street; he saw the defendant coming in the same direction, and he recognized the defendant because he had seen him a week before “following my sister-in-law the night she was attacked — ” He described the defendant and the clothing he was wearing. He further testified that he, Baxter, got out of his car to see if the defendant was going to bother the complaining witness; that he saw the defendant grab her and pull her into the driveway and across the alley; that he ran across the street to the store of a friend and told them to call the police, then ran after the defendant, picking up a stick on the way. He stated that at first he could not see the defendant and the complaining witness, then saw them fighting; that the complaining witness ran toward him and grabbed his coat, at which time the defendant got away, although Baxter tried to cut him off. He further testified that he identified the defendant in a lineup.

Ronald Mainellis, a police officer, also testified that after receiving a call he went to Fulton and Kedzie where he met and talked with the complaining witness and Baxter; that Baxter went with him to search the neighborhood, and they came across the defendant wearing the clothes as described, and the officer placed the defendant under arrest.

Testimony of defendant.

The defendant testified that he was arrested about two doors from his home; that he was taken to the police station where he denied to the police that he had attempted to rape the complaining witness; that after work on the night of December 16 he went to a skating rink with two friends, then to a restaurant, and later to a house where Clarence Williams and his sister, Ora Lee Williams lived, and stayed there until about 11:25 or 11:30, when he started home and was arrested. Ora Lee Williams testified that she had seen the defendant at her home, and that he left at about 11:15.

Opinion :

The point made by the defendant that the evidence was not sufficient to convict him of attempted rape is based on the following development during the trial. The complaining witness had testified that when the defendant had her lying on the ground he let her up and she ran; the defendant caught her and again they fell to the ground. While the complaining witness was testifying the following occurred:

The Court: Let’s get down to the gist of it. Did he assault you sexually?

The Witness: No, because he couldn’t get my garment but he would have, he was trying—

Mr. McDonnell : Object, Your Honor, she said “No.”

Mr. Larrey: Would you—

The Court : You mean he couldn’t, he didn’t. Is that what you’re saying, he did not?

The Witness: No, he did not.

The Court: That is all right.

On cross-examination the complaining witness testified that after the defendant had been arrested the police told her he had a man in custody and asked her if she could identify the man who had attempted to rape her, and she said yes.

After the State had finished its case the court made the following statement:

“. . . The young lady who was assaulted, I asked particularly whether or not, that is Louise Harris, whether or not this man wanted to commit an act of sexual intercourse and she said no, he couldn’t.”

He asked the State’s Attorney to clarify the matter. The State’s Attorney then said the complainant had stated in her testimony that she had on a long-line panty girdle which the defendant told her to take off; that the fact that defendant referred to a panty girdle and told her to take it off indicated that he was attempting to rape her. The court then indicated that it wanted more evidence and gave the State the right to recall the complainant. In response to leading questions the complaining witness testified that the defendant had attempted to rape her. These questions were all asked over the objections of the defendant. In this court the defendant argues that the only evidence going to the necessary element of the intent to commit rape was that brought out by the aforementioned leading questions. However, the defendant does not take into account the fact that the testimony of the complaining witness before her recall was sufficient to prove the intent of the defendant to commit rape. At the time the complaining witness was recalled to the stand the court had apparently misunderstood her previous response to the question, “Did he assault you sexually?” She answered, “No, because he couldn’t get my garment but he would have, he was trying — ”

Also, it must be considered that this case was tried by a court without a jury. In McCormick on Evidence, Trials Without a Jury, § 60, at page 137, it is stated that the courts have generally said that the same strictness in applying the rules of evidence will not be observed in judge-trials as in trials before a jury, and further:

“The most important influence in encouraging in trial judges this attitude toward evidence rules in non-jury cases is a rule of presumption obtaining in most appellate courts. These courts have said that in reviewing a case tried without a jury the admission of incompetent evidence over objection will not ordinarily be a ground of reversal if there was competent evidence received sufficient to support the findings, since the judge will be presumed to have disregarded the inadmissible and relied on the competent evidence.”

The same rule is laid down in 5 CJS, Appeal and Error, § 1564(5) where numerous Illinois cases are cited. The Illinois courts have followed the rule above stated in trials before a judge without a jury. People v. Egan, 241 Ill App 189. In Brady v. Paine, 391 Ill 596, 63 NE2d 721, the court said: “Disregarding entirely the evidence objected to as incompetent, we think there is ample evidence in the record to sustain the decree.” To the same effect are McCleary v. Lewis, 397 Ill 76, 72 NE2d 862; People ex rel. Hartshorn v. Hartshorn, 21 Ill App2d 91, 157 NE2d 563. Even in jury cases the Supreme Court has taken a similar position. In People v. Baker, 365 Ill 328, 6 NE2d 665, which was a trial before a jury, the trial court, over objection, permitted certain questions to be asked. The Supreme Court held that the questions were improper and the objection to them should have been sustained. However, the court said, “We are unable to see how any other verdict than that returned could have been the verdict of the jury had the objection to these questions been sustained.” In People v. DeFelice, 376 Ill 312, 33 NE2d 475, a trial by court and jury, the court held that while the objection to certain questions should have been sustained, in view of the strong evidence of guilt the error did not warrant a reversal. In 2 ILP, Appeal and Error, § 633, it is said that a reviewing court will affirm the judgment of the trial court if in its opinion the judgment was justified in the law for any reason or ground appearing in the record. Also see Harrison v. Kamp, 395 Ill 11, 69 NE2d 261.

We find no reversible error in the record. The defendant was proved guilty beyond a reasonable doubt of the offense charged. The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

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

       Ill Rev Stats 1963, ch 38, § 8-4. Attempt.
      (a) Elements of the Offense.
      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.
      Ill Rev Stats 1963, ch 38, § 11 — 1. Rape.
      (a) A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape. . . .


text:
    Robert L. Nicholson, Plaintiff-Appellant, v. Martin Lowenstein, Defendant-Appellee.
    Gen. No. 50,741.
    First District, Fourth Division.
    November 18, 1966.
    Rehearing denied December 8, 1966.
    William A. Cain, of Chicago, for appellant.
    No appearance made for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This is an appeal from an order entered in the Circuit Court of Cook County which denied and dismissed plaintiff’s petition to vacate the judgment order and satisfaction of the same entered on July 5,1962.

On March 29, 1961, the plaintiff filed a suit against the defendant alleging that the defendant was employed by the plaintiff as a practical nurse and attendant for the plaintiff’s father who was over 83 years old and who suffered from a complication of diseases because of which he required diet and medication at specific times. It is alleged that the defendant failed to follow instructions given him as to the diet, medication and care, and as a result the father of plaintiff died from a heart attack.

The attorney for the plaintiff at the time of the filing of the suit was M. G. Kaufman. The defendant, through his attorney, Lawrence W. Harris, filed an appearance and answer on April 5, 1961, denying the allegations set out in the plaintiff’s complaint. Later, on May 19, 1962, without withdrawing his answer, the defendant’s attorney filed a motion to dismiss the suit. On March 8, 1962, the case was dismissed for want of prosecution. On March 12, 1962, the dismissal for want of prosecution was set aside. On June 10, 1962, the cause was again dismissed for want of prosecution; on June 22, 1962, the order of dismissal was set aside, and on July 5, 1962, on motion of Kaufman (plaintiff’s attorney), the court set the cause for hearing on the same date. On that date the court entered the following order:

“And now this cause coming on for hearing upon the non-jury call, the defendant Martin Lowenstein attending in response to the trial call upon trial and consideration the court finds the issues for the plaintiff Robert Nicholson against defendant Martin Lowenstein and assesses damages in the sum of $200: Wherefore it is ordered plaintiff recover $200 and costs.
“Further finds that the same has been paid in open court wherefore it is ordered that the same be and it is satisfied in open court being now paid.”

The order was signed by the trial judge and also contained the notation “OK. M. G. Kaufman, Martin R. Lowenstein.”

On February 5, 1965, the plaintiff, having engaged his present attorney, filed a petition to vacate the judgment and satisfaction. In that petition it was alleged that the judgment and satisfaction were void inasmuch as there was a motion to strike the complaint and dismiss the cause of action in the record. It was further alleged that the judgment and satisfaction are void in that there was no testimony offered by either party; that they are void in that no money was paid to plaintiff or to plaintiff’s attorney in open court, nor at any other time or place, to satisfy the judgment. The plaintiff further alleged that he has newly discovered evidence of two letters written by his father, complaining of the treatment he received from the defendant, and plaintiff alleged that he “was induced not to appear in court on the date of entry of judgment”; that plaintiff was not guilty of negligence or want of diligence in allowing the judgment to be entered; that “his attorney advised him to stay out of court on the date the judgment was entered”; and that fourteen months after the entry of the judgment the plaintiff found the letters set out in the petition.

The plaintiff also filed an affidavit dated March 18, 1965, in which M. G. Kaufman stated:

“. . . that as such he was attorney for the Plaintiff in the above entitled cause on the 5th day of July, 1962, when judgment therein was recovered for the Plaintiff, ROBERT L. NICHOLSON and against the Defendant, MARTIN LOWENSTEIN in the sum of Two Hundred Dollars ($200.00) and costs, that said judgment was satisfied in open Court.
“FURTHER, Affiant sayeth that as attorney for said Plaintiff, Affiant never received payment of the Two Hundred Dollars ($200.00) and costs, or any other sum whatsoever from the Defendant, MARTIN LOWENSTEIN.”

The court held hearings on the petition on February 5, March 19, and April 30, 1965; at the March 19 hearing counsel for the plaintiff stated he had an affidavit from Mr. Kaufman which he had obtained “to obviate the necessity of dragging Mr. Kaufman in and taking his time.” At this hearing the defendant appeared in person, represented by no attorney. The court continued the matter until April 30, 1965, to permit the defendant to get an attorney, and at that hearing the defendant was represented by an attorney from the Legal Aid Bureau. The court asked, “Where is Kaufman?” and counsel replied that he was not available. The court then said, “Kaufman was the one who presented the order. You were going to get Kaufman in here.” Counsel stated that he did not understand that the court wanted Kaufman to come into court, and the court again stated that Kaufman should be brought into court. After some further discussion with reference to Kaufman, counsel for the plaintiff said, “I have no quarrel as to Kaufman.” On May 3, 1965, the court entered an order denying plaintiff’s petition, and it is from this order that the plaintiff takes this appeal.

The plaintiff here alleges that the judgment entered in his favor in the trial court was void. It is, of course, the law that a void judgment is subject to attack at any time. [Cherin v. The R. & C. Co., 11 Ill2d 447, 143 NE2d 235, together with cases therein cited.] However, in the instant case the judgment was entered in the trial court at a time when the plaintiff was represented by counsel and the defendant was in court in person. As we have pointed out, the judgment order was okayed by the defendant in person and by the plaintiff through his attorney. Where a judgment is entered in that form it is not a void judgment.

Since we hold it is not void, any other attack upon the judgment which the plaintiff could be considered to have made under his petition must be treated as falling within the provisions of section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 72). Section 72 provides that a petition brought under that Act must be filed within two years, and failure to file a petition within that time requires its dismissal. Antczak v. Antczak, 61 Ill App2d 404, 209 NE2d 838. The plaintiff’s petition was filed more than two years after the judgment and satisfaction complained of were entered in the trial court. The trial court properly dismissed the petition.

We adopt the statement made in Zaidenberg v. Occidental Life Ins. Co., 65 Ill App2d 305, 212 NE2d 526, as applicable to the instant case:

“The appellee filed no brief nor appearance. Under such a circumstance we could have, in accordance with the prayer of the appellants, reversed the judgment of the Circuit Court. [Citing cases.] However, in those cases the court did examine the record. In the instant case we have examined the record and the appellants’ brief, and we have determined that in order to do substantial justice the order of the trial court should be affirmed. Barton v. Barton, 318 Ill App 68, 47 NE2d 496; 2 ILP 560.”

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

Affirmed.

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


author: MR. JUSTICE ENGLISH

text:
    In the Matter of the Estate of Alice B. Atwood, Deceased. Thomas H. Fisher, Respondent-Appellant, v. Continental Illinois National Bank and Trust Company of Chicago, as Executor of the Estate of Alice B. Atwood, Deceased, Petitioner-Appellee.
    Gen. No. 51,829.
    First District, Fourth Division.
    November 18, 1966.
    Thomas H. Fisher, pro se, of Chicago, appellant.
    Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago (Roger W. Barrett, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

The order from which respondent seeks to appeal directs him to produce at a citation hearing on November 23, 1966, certain books, papers and records which might contain information concerning the estate of decedent.

The jurisdiction of this court to review orders of the Circuit Court is limited to (1) final judgments, and (2) those kinds of interlocutory orders covered by Supreme Court Rules 30 and 31. Harris Trust & Savings Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 14-19, 211 NE2d 32. The order in question falls in neither of these categories, so, on the court’s own motion, this appeal is dismissed. Impey v. City of Wheaton, 60 Ill App2d 99, 102-105, 208 NE2d 419.

Appeal dismissed.

DRUCKER, P. J. and MCCORMICK, J., concur.

       SHA Const Art VI, § 7; Ill Rev Stats (1965), ch 110, §§ 101.30 and 101.31 relating to new trials, injunctions and receivers.


author: MR. JUSTICE MURPHY

text:
    Richard M. Rutledge, M.D., Plaintiff-Appellant, v. Department of Registration and Education of the State of Illinois, William Sylvester White, Director of Registration and Education, and Kathryn M. Ford, Defendants-Appellees.
    Gen. No. 50,808.
    First District, First Division.
    November 21, 1966.

      Morris A. Haft, of Chicago, for appellant.
    William G. Clark, Attorney General of the State of Illinois, of Springfield (Richard A. Michael, Philip J. Rock, A. Zola Groves and John J. O’Toole, Assistant Attorneys General, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an administrative review action. Plaintiff appeals from an affirmance by the Circuit Court of a “revocation order” entered by the Department of Registration and Education of the State of Illinois, which revoked the license of Richard M. Rutledge to practice medicine in the State of Illinois.

The report of the “findings and recommendation” of the Medical Examining Committee of the Department, on which the “revocation order” was based, shows that Velma Meyer went to the office of plaintiff, and after an examination was informed by him that she was pregnant. After giving $200 in currency to his assistant, Mrs. Kelso, the plaintiff inserted an instrument in her “for the purpose of aborting her,” and then “inserted packing into her cervix.” She was given pills to take every three hours and was sent home. The following day her legs were stiff, and she experienced cramps. She continued to take the pills and “removed the packing and took a douche.” She made several unsuccessful trips to plaintiff’s office to see him, and “finally, on July 19, 1958, Mrs. Meyer did see the Respondent in his office and complained to him of the pains across her back. Respondent examined her and advised her she was still pregnant. He further advised her to go home, get her things and stay all night and that it would cost her Two Hundred Dollars ($200) for another abortion. She replied that she did not have the money and Respondent advised her that he could do nothing for her and she went home in great pain. That on the evening of July 19, 1958, Dr. William Cutter, Jr. was called and she was moved to the Pekin Hospital in Pekin, Illinois, where she remained for thirty-two (32) days. Dr. William Cutter, Jr. diagnosed her case as “Septic Abortion with a Septic Fulminating Peritonitis.”

The findings conclude with paragraph 6: “That the Respondent, Dr. Richard M. Rutledge, did on July 3, 1958, perform an incomplete abortion on Velma Meyer which resulted in permanent injuries to said Velma Meyer in the nature of an enlargement of the left leg, pains extending downward from above the left knee to above the left foot, pain in the right foot and in the lumbar region of the back and across the hips. That said abortion was the cause of Velma Meyer developing peritonitis and thrombophlebitis of the left lower extremity, resulting in said permanent injuries above mentioned.”

On appeal, plaintiff contends: (1) that the charge in the complaint and amended complaint was not specific and, failing this, the medical committee and the Department of Registration and Education were without jurisdiction to proceed thereon; (2) that the proceedings to revoke his license were not commenced within three years of the commission of the prohibited act, as required by the Medical Practice Act; (3) that the order of revocation is against the manifest weight of the evidence; (4) that plaintiff was not tried by an impartial committee, and that the attorney representing the committee did not conduct himself with the same respect for fairness as was required by the committee; and (5) that plaintiff has been deprived of due process of law.

The briefs of both parties consider and argue that the instant proceedings were covered by the provisions of section 60c of the Civil Administrative Code (Ill Rev Stats, c 127). We do not agree. In Schireson v. Walsh, 354 Ill 40,187 NE 921 (1933), it is said (p 53):

“Section 60c of the act of 1927 attempts to cover substantially the same ground as section 17 of the Medical Practice act but varies therefrom in many material particulars. ... As applied to physicians the act of 1927 is unconstitutional, being in violation of section 13 of article 4 of the constitution.”

See, also, Kalman v. Walsh, 355 Ill 341, 343, 189 NE 315 (1934); People v. Thompson, 387 Ill 134, 56 NE2d 618 (1944).

The statutory procedure to be followed for the “revocation or suspension” of a medical license is set forth in section 16b of Chapter 91, Medicine and Surgery (Ill Rev Stats 1959). That section provides that a citation, signed by the Director, be issued, and that the license holder be summoned to appear at a hearing before the Department. “No citation shall be issued except upon a sworn complaint, filed with the department, setting forth the particular act or acts charged against the person to be cited.” At the hearing, the respondent “shall be accorded ample opportunity to present to the department in his defense, in person or by counsel, such statements, testimony, evidence and argument as he may desire to bring to its attention.” The record shall be “the citation, answer and all other documents in the nature of pleadings filed in the proceedings, and the transcript of testimony.” In section 16b-l it is provided that the action or report in writing of a majority of the examining committee shall be sufficient authority upon which the Director of Registration and Education may act.

The revocation proceedings were commenced on June 23, 1961, by a verified complaint filed with the Department by Kathryn M. Ford, relator, as follows:

“1. Relator is and was at all times referred to herein a duly appointed employee of the Department of Registration and Education of the State of Illinois, and in such capacity she is duly authorized to, and does on behalf of said Department, make this complaint against the respondent.
“2. Respondent is and at all times referred to herein was duly licensed to practice medicine in all of its branches in the State of Illinois.
“3. That on or about the 3rd day of July, A. D., 1958, the said respondent, Dr. Richard M. Rutledge, did professionally treat and/or perform surgery upon the person of one Velma F. Meyer, a female;
“4. That the said respondent was grossly negligent and said negligence resulted in the permanent injury to the said Velma F. Meyer.
“Wherefore, relator states that respondent is guilty of violation of Section 16, paragraph 3, of the Illinois Medical Practice Act and respectfully requests that the Department of Registration and Education of the State of Illinois investigate the actions of the respondent in accordance with the provisions of the said Act.”

The verification of the complaint states that Kathryn M. Ford “knows the contents thereof and the same are true except as to matters stated on information and belief to which she says she verily believes same to be true.”

On July 31, 1961, a verified amended complaint was filed, dated July 7, 1961, which repeats the allegations of the complaint of June 23, 1961, with the exception of paragraph 4, which is restated and charges “that the said respondent was guilty of gross malpractice resulting in the permanent injury to the said Velma F. Meyer.” A notice dated August 11, 1961, sent by registered mail, informed respondent that “a verified amended complaint has been filed in the above matter, a copy of which verified amended complaint is hereto attached and made a part hereof.” Motions made by respondent to strike the complaint and amended complaint were denied.

The hearing of witnesses by the Medical Examining Committee commenced on November 9, 1961, and, with intervals, concluded on January 17, 1963. Subsequently, the committee filed a report of its “findings and recommendation,” signed by seven doctors and dated April 24, 1963. After respondent’s motion for rehearing had been denied, the Director of the Department of Registration and Education entered a “revocation order” on July 2,1963, which adopted the findings and recommendation of the Medical Examining Committee and revoked the license of plaintiff “to practice medicine in all its branches in the State of Illinois.”

Initially, we consider plaintiff’s contention that the charge in the complaint and amended complaint must be specific. Plaintiff asserts that he “has maintained that the Complaint originally filed in this cause was in fact no complaint at all and has likewise maintained that the amended complaint filed without notice to the plaintiff did not constitute a complaint whatsoever,” and that “plaintiff took the step required to be taken, i. e., filed a motion for a bill of particulars or a more specific complaint, and that motion was overruled.”

We note here that the record shows that plaintiff’s motions for a bill of particulars were denied by the committee, and plaintiff did not waive or abandon these motions, as defendant indicates in its brief.

In support of the contention that the complaint should have made “clear and specific charges, giving time, place and acts of misconduct with reasonable certainty,” plaintiff’s authorities include Kalman v. Walsh, 355 Ill 341, 189 NE 315, where it is said (p 346) :

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

Also, Smith v. Department of Registration and Education, 412 Ill 332, 106 NE2d 722 (1952), where it is said (p 344):

“Appellant has charged throughout these proceedings that the complaint upon which he was tried is legally insufficient. It has been repeatedly held in this State that the revocation of a license of a professional man carries with it dire consequences. It not only involves necessarily disgrace and humiliation but it means the end of his professional career. In a proceeding so serious, due process of law requires a definite charge, adequate notice, and a full, fair and impartial hearing.”

The defendant contends that “an examination of the complaint and the amended complaint established that the plaintiff was apprised of: (1) the date of the alleged offense; (2) the act performed; (3) the person upon whom the act was performed; (4) the charge that the acts amounted to gross negligence and gross malpractice; and (5) that said acts have caused permanent injury to the person upon whom they were performed.”

An examination of pertinent authorities shows that the instant proceeding is not a common law or criminal proceeding but an investigation, and in Joyce v. City of Chicago, 216 Ill 466, 471, 75 NE 184 (1905), the court said “it was not necessary that the charge should be formulated in technical language similar to that of a declaration or indictment,” and the charge preferred should be in such form that the respondent could clearly understand the ground assigned. “Formality in proceedings before an administrative agency is not exacted by the courts. ... A hearing before an administrative agency should not be a partisan hearing with the agency on one side arrayed against the individual on the other. Instead, it should be an investigation instituted for the purpose of ascertaining and making findings of fact. . . . The hearing should adhere reasonably to the procedure ordinarily followed in controverted matters.” Gigger v. Board of Fire & Police Com’rs of City of East St. Louis, 23 Ill App2d 433, 163 NE2d 541 (1960). In Schyman v. Department of Registration and Education, 9 Ill App2d 504, 133 NE2d 551 (1956), which was a medical license revocation proceeding, where it was contended that the complaint was insufficient, the court said (p 510):

“[Cjharges filed before an administrative agency need not be drawn with the same nice refinements and subtleties as pleadings in a court of record.”

We conclude that the original complaint reasonably apprised plaintiff of the charges against him, so that he could properly prepare to defend such charges. It contained the date of the offense, the name of the person involved, the professional act, and the allegation that he was grossly negligent so as to cause permanent injury to the person on whom he performed the professional act. Although the original complaint did not set forth the statutory language, “gross malpractice resulting in permanent injury” (§ 16a of the Medical Practice Act, Ill Rev Stats 1959), we consider the charge of “gross negligence” adequate and within the purview of the statute. The exact statutory language was not required here.

Our conclusion that the charge in the original complaint was sufficient disposes of plaintiff’s contention that the proceedings to revoke his license were not commenced within three years of the commission of the prohibited act. The date of the act charged was July 3, 1958. The revocation proceedings were commenced on June 23, 1961, and the amended complaint related back to the date of the filing of the original complaint. Simmons v. Hendricks, 32 Ill2d 489, 494, 207 NE2d 440 (1965).

Plaintiff further asserts that none of the allegations of the complaint or the amended complaint are made upon “information and belief,” and that when such, is the case “the law requires the verification to be absolute.” Authorities cited include Hovnanian v. Bedessern, 63 Ill App 353 (1896); People v. Jenner, 214 Ill App 321 (1919); and Village of Hinsdale v. DuPage County Court, 281 Ill App 571, 589 (1935), which involved the validity of an election under the provisions of the Illinois Liquor Control law, where the court decided that a petition which included a verification similar to the one contained in the instant complaint “was not properly verified,” and “the county court acquired no jurisdiction to enter the order invalidating the election therein referred to.” In Schireson v. Walsh, 354 Ill 40, 187 NE 921, the same point was urged but found waived.

Although a sworn complaint is required by section 16b of Chapter 91, no form of verification is set forth. Where the statute requires “a sworn complaint,” but does not prescribe the form of verification, we assume that such a complaint should be verified by affidavit in the same manner as complaints in civil cases may be verified, and “the affidavit should be in such form as to subject the party making it to a prosecution for perjury in case the matter sworn to proves to be false,” and “in the same manner as bills in chancery may be verified.” See Farrell v. Heiberg, 262 Ill 407, 409, 410, 104 NE 835 (1914), and Girhard v. Yost, 344 Ill 483, 486, 176 NE 899 (1931). Although the instant complaint does not specify that any of the charges are made upon information and belief, the relator does verify “that she knows the contents . . . are true.” This was sufficient to subject her to prosecution for perjury in case the charge that the “respondent was grossly negligent and said negligence resulted in permanent injury to the said Velma F. Meyer” proved to be false. While the form of verification used here might not meet the requirements of a pleading in a court of record, we consider it adequate, given the facts and circumstances of this case.

Notwithstanding that we are of the opinion that plaintiff’s motion for a bill of particulars should have been granted, it was largely a matter for the discretion of the committee. The amended complaint met the guidelines set forth above, and the extended nature of the hearing gave the plaintiff ample opportunity to prepare his defense and to meet the testimony offered before the committee. We find no prejudicial error here.

Considered next is plaintiff’s contention that the order of revocation is against the manifest weight of the evidence. On administrative review, the court does not weigh the evidence, and its function is limited to ascertaining if the pleadings and decision of the administrative agency are against the manifest weight of the evidence. (DeGrazio v. Civil Service Commission of City of Chicago, 31 Ill2d 482, 489, 202 NE2d 522 (1964).) In order to reverse the administrative order, it is required that an opposite conclusion be clearly evident. Bruno v. Civil Service Commission of City of Chicago, 38 Ill App2d 100, 107, 186 NE2d 108 (1962).

The evidence considered by the Medical Examining Committee included testimony of witnesses for the relator and the respondent. The witnesses called on behalf of the relator included Velma Meyer, Dr. Cutter, three other doctors, and the former State’s Attorney for Peoria County. The witnesses called on behalf of respondent included Dr. Rutledge, Helen Kelso (his office assistant) , and Dr. Burton Finne.

The testimony of Velma Meyer, previously summarized, is fairly set forth in detail in the findings of the committee. She was cross-examined extensively by counsel for the respondent and said that she did not watch the plaintiff “all the time” on July 3, 1958 — “I was crying half the time.” She replied affirmatively to the question, “Did you see what he was doing all the time?”

Dr. Cutter testified that he was a general medical practitioner. He was licensed to practice in Illinois in 1941 or 1942. He was a member of the Tazewell County Medical Society and on the staff of Pekin Memorial Hospital. He saw and examined Velma Meyer at the Pekin hospital on July 19, 1958. He took her blood pressure, examined her abdomen, rectum, extremities, heart and lungs, and discovered that she had “a spiking fever of 103.6.” He testified, “The patient was in shock. She had a severe peritonitis. She had a beginning thrombophlebitis of the lower left extremities, and the uterus was palpable in the abdomen.” She was treated for “septic abortion with a septic fulminating peritonitis. . . . A septic abortion ... is an abortion carried out under septic technique, .... The uterus becomes infected, and from there the infection spreads into the peritoneum and the peritonitis.”

Dr. Cutter continued to treat her until the time of the hearing — “I saw her last on October 31, 1961, at which time she was still having trouble with her left leg. She has a persistent edema in the left lower extremity. After any type of standing or walking, there is a little enlargement of that leg, and she experiences pain in that leg after walking.” In his opinion the condition was permanent, “I think she will have some trouble with that left leg for the rest of her life.” She remained in the hospital for about a month, and Dr. Cutter called Dr. Helden for consultation four or five days after her admission to the hospital.

Dr. Cutter pointed out Dr. Rutledge in the hearing room — “The first time I did see him was when he came to my office of his own accord on . . . September 27, 1958. . . . Well, he wanted to talk to me about Mrs. Meyer at that time. ... He asked me if I wouldn’t try my best to put the soft pedal on Mrs. Meyer so that she wouldn’t cause any trouble for him and stated that he thought that his type of operation was justified, and we had quite an argument about that at that time. ... I told him I had nothing to do with that, and that I was treating her strictly medically, and I would neither influence her one way or the other.”

Dr. Helden testified that he was a medical doctor, licensed to practice in the State of Illinois in 1955. He examined Mrs. Meyer on July 24, 1958. “This patient was acutely ill with high fever and was apparently suffering from generalized peritonitis, and also a complete cessation of mobility of the intestines. She was a gravely ill patient when I saw her. Other things which developed shortly thereafter, on succeeding days, were a swelling of the left lower extremity, indicative of thrombophlebitis. ... It is my opinion that the injury of those veins, in the deep venous system of the affected leg will probably be permanent.” On cross-examination he stated he had not examined Mrs. Meyer after she was discharged from the hospital “about August 19th.”

Dr. Hesseltine, an expert on obstetrics and gynecology, was questioned hypothetically.

Mr. Eugene M. Pratt testified that he was the former State’s Attorney of Peoria County. Dr. Rutledge, upon invitation, appeared at his office in September, 1958, and was questioned about Velma Meyer. He denied treating her or performing an “illegal operation” on her. Velma Meyer visited his office and stated that she had an illegal operation performed on her and had a lot of bills to pay. He wanted her to sign a complaint, and she made no reply. She was told to wait in the reception room when Dr. Rutledge came over, and afterwards when Mr. Pratt looked for her, she was gone, and he never saw her again.

Dr. Julian, a licensed medical doctor in Illinois, a specialist in “cardiovascular surgery,” examined Velma Meyer on October 29, 1962. She was 40 years of age and gave a history of a termination of a pregnancy. At the time he saw her, she was “complaining of pain in the lower part of the back, pain in both buttocks regions, and pain extending down the posterior aspect of the left leg.” Accepting her story in an objective fashion, it was his opinion that her complaint “was the type of pain that occurs ... at the outset, associated with a postphlebitic sympathetic dystrophy, a sympathetic pain severe, in which the patient protects the part from pressure of and dislikes examination.” In his opinion, the pain was real and a scar on her extremity was not significant. When questioned as to whether the condition “will be permanent or of long duration,” he replied, “I think that we can only answer that what happens to the patient in many instances it is that the pain is permanent; in other instances, it disappears, sometimes a long time after the injury. In other patients it is relieved by doing a sympathectomy.” He replied affirmatively to the question, “Patients that have had thrombophlebitis or a disease of this nature are likely to have recurrences.”

The respondent, Dr. Rutledge (plaintiff here), testified on his own behalf. He was licensed to practice medicine on June 21, 1921, and for a number of years he specialized in women’s diseases. He first saw Velma Meyer on May 6, 1958, at which time he examined her. She claimed that she was pregnant, and he inserted a speculum to examine the cervix and found a large amount of foul-smelling vaginal discharge which ran into the basin. He could see nothing in the cervix that would indicate a pregnancy. He removed the speculum and then performed a bimanual examination to determine the size and position of the uterus, both of which were of normal size. He told her she was not pregnant. He received a $5 examination fee. He had rubber gloves on when he made the examination.

He saw her again on July 3, 1958, and she was very nervous and hysterical. He did not examine her that day, and she went home. Plaintiff further testified that “Velma Meyer did not pay me any money on July 3rd, nor did she pay Helen [Mrs. Kelso] any money. She did not give me $200.00 in bills, nor did she give Helen $200.00 in bills. She tried to pay Helen $5.00 for the examination which she refused because there was no examination of this lady. I did not draw water in a bucket on July 3rd, nor did I tell Velma Meyer that she was pregnant. I did not insert a tube or instrument into the body of Velma Meyer on that date. I do not have a tube-like instrument in the office ... I do have a tube which connects with the water supply, and that is the only tube that I have in my office. On that date that I tried to examine her I did not slap her leg, nor did I tell her to lie still. Neither at that time nor at any time did I insert any packing into the body of Velma Meyer. The next time I saw her was some time in the latter part of the third week or so in August of 1958. About a week before that time a man called me up relative to her and I went down to talk to Dr. Cutter. . . . Mrs. Meyer was the subject of our conversation. ... He asked me why I was interested, and I explained to him that she thought she was pregnant and she had come to see me on May 6th, at which time I examined her and in my opinion she was not pregnant, but she had a bad case of what I thought was trichomonas vaginalis; that she came back to see me July 3rd and was hysterical after getting on the table prepared for an examination at which time she refused to allow me to examine her. I understand she was in the hospital and that you were her attending physician, and I would like to know what her condition was. He said . . . she had a septic abortion, . . . after some talk he said she was very sick . . . and I said, ... I examined her with rubber gloves on May 6th. She apparently wanted me to examine her on July 3rd, but refused to let me. He said, well, you might have introduced some germs in her vagina on May 6th and they could have laid dormant there until some time in July and become active. I said, how in the world could they do that, so he didn’t answer, and I said, well, Dr. Cutter, as far as a doctor, you couldn’t carry your father’s shoes, and I walked out.”

Plaintiff further testified that he saw Velma Meyer after his talk with Dr. Cutter. “When she came in she had a plastic bandage on her left leg . . . and she told me it had a tendency to swell and I said, ‘Well, you had some trouble before with that left leg due to an injury you said,’ and she said, ‘Yes, that’s right,’ and I said, ‘Do you know a Mr. Brisson?’ She said, ‘Yes, he is my boyfriend.’ I said, T want to know what is this idea of wanting $2,500 or $2,700.’ She said, ‘My God, you didn’t give it to him, did you?’ I told her that I didn’t give it to him. The reason I saw Dr. Cutter was because he made that demand, .... She said, ‘My doctor bills amount to about $1,200.00 and I should have about $1,500 for my troubles,’ and I said, ‘Your troubles were never caused by me, Mrs. Meyer.’ ” He also stated that Brisson called him a number of times, making demands on behalf of Mrs. Meyer. He further said, “I attended my office between July 3rd and the end of that month in 1958 and at no time did I ever refuse to see Velma Meyer, nor did I attempt to evade her in any manner. I wanted to help her. . . . Mr. Brisson was attempting blackmail and threatened to go to the State’s Attorney’s office, which he did do. The State’s Attorney called me and I went to his office, but I did not sign a complaint against Brisson and Mrs. Meyer for the reason that I think that she is mentally off, and that Brisson was not much better.”

Helen Kelso testified that she was employed by plaintiff as an office assistant for about 15 years. She knew Velma Meyer and met her first in April 1958 at the doctor’s office, when Mrs. Meyer stated she thought she was pregnant and wanted the doctor to examine her. She was instructed to wait in the reception room, but when it came her turn to see the doctor, she had gone. She appeared a week later and left shortly. She reappeared in May of 1958 and was examined then by plaintiff, in her presence. She described in detail the conversation between plaintiff and Mrs. Meyer and the equipment in the doctor’s office. During the examination the doctor had rubber gloves on his hands. “His examination of this lady consisted of a vaginal examination, . . . and he looked in with a vaginal speculum. The examination took about ten minutes and the doctor told Mrs. Meyer that she was not pregnant. . . . She then gave me $5.00 for the examination.” The next time she saw her was about two weeks later in the doctor’s office. She wanted another examination, and after being told to wait in the reception room, she left.

On July 3, 1958, Mrs. Meyer appeared at the office, and plaintiff prepared to examine her, but she was in such a nervous condition, plaintiff was unable to proceed with the examination, and she gave Mrs. Meyer a sedative — “She didn’t talk and when I asked her something she would just shake her head or she would nod. She remained in our offices approximately two hours which took in the time that she was in the treatment room. . . . She stayed there until nearly 5:00 and the doctor told her to come back on Monday . . . and she left. This was on July 3rd. The next time I heard from her was in the fall sometime, I would say September. ... In the interim, however, she had called on the telephone several times and that would be after the 4th of July. ... On the telephone she said to me why wouldn’t the doctor examine her, and I told her that she didn’t come back. ... On occasion when she came into the reception room I did not recognize her immediately because she had dark glasses on and her hair covered with a babushka She would get up and walk around the reception room. . . . During the visits Mrs. Meyer made to our office he never had a long tubular instrument in his hand. I never distributed or gave Mrs. Meyer any so-called blue pills. . . . Although Mrs. Meyer testified that the doctor drew water in a bucket from a faucet, he did not do so.” Mrs. Meyer at no time gave her $200 in bills.

Dr. Burton Finne testified he was a general surgeon and licensed to practice in Illinois in 1930. He examined the record of the Pekin Hospital and the nurses’ records, and said, “There is nothing in the State’s exhibits numbered 28, 30, 31, 32, 33 and 34 purporting to be doctors’ notes, progress notes and examinations of Velma Meyer to substantiate a diagnosis of septic abortion. I base my opinion on the fact that there is nothing to substantiate a diagnosis of septic abortion by virtue of the physician’s failure to make a vaginal examination, failure to do a curretment in a fulminating case of peritonitis to clean out any secunda tissues, and failure of diagnosis of tissue. This woman could have had a general peritonitis from a dozen, innumerable causes which could have been due to an old standing salpingitis or . . . she could develop peritonitis due to a vaginal infection, or from a venereal disease or from an invading Strep., without any traumatic instrumentation. To me there is no significance of the statement that there is a history of a septic abortion about three months in age and the likelihood of developing a septic abortion three months after the instrumentation is very unlikely as the incubation period of the pathogenic organisms would be between 72 hours and a week at the latest. . . . Further, from the clinical evidence contained in the hospital records, I find that Velma Meyer suffered no permanent injury, however, from a reading of State’s Exhibit No. 74, I understand she had a deep scar in her left leg which could be a predisposing factor for a thrombophlebitis.” In his opinion, the rectal examination made by Dr. Cutter was inadequate.

A careful examination of this record shows that the findings of the Medical Examining Committee are substantiated by the evidence. A wide latitude was permitted in the examination of all witnesses and members of the committee participated at length in the examinations. Although the record is marked with spirited exchanges between counsel, the conduct of the hearing was fair and impartial, and plaintiff was ably and effectively represented. We fail to find, as is required in order to reverse, that an opposite conclusion to that of the committee is clearly evident.

Finally, we agree with plaintiff that 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 that the right to practice medicine is entitled to be so protected and secured.

“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 & Education, 412 Ill 332, 344, 106 NE2d 722 (1952).) The findings of the 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).

We believe this record meets the foregoing tests and, therefore, the judgment of the Circuit Court affirming the order of the Department of Registration and Education was correct and is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Gonzales, Defendant-Appellant.
    Gen. No. 66-15. (Abstract of Decision.)
    Second District.
    November 22, 1966.
    John Gonzales, pro se, of Joliet, appellant; James E. Boyle, State’s Attorney, of Sycamore, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold E. Long, Defendant-Appellant.
    Gen. No. 66-26.
    Second District.
    November 22, 1966.

      Knight, Ingrassia & Schirger, of Rockford, for appellant.
    John L. Moore, State’s Attorney of Ogle County, of Oregon, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Ogle County. On the evening of January 27, 1966, at approximately 8:00 p. m., Harold E. Long, the defendant, was involved in an automobile accident in Ogle County. From all of the evidence before us, it is apparent he was under the influence of alcohol. He was taken from the scene of the accident to a hospital where minor cuts were administered to and from there he spent the night as a guest of the county in jail. The next morning he was taken before the court to answer to an information which had been served upon him, charging him with the offense of operating a motor vehicle while under the influence of an intoxicating beverage.

Long was asked if he had received a copy of the information and if he had read it. To this he answered, “I haven’t got a very good education.” His education had not extended beyond the fourth grade, and he said he “could not read to amount to anything.” The information was then read to him. He said he understood it. Long pleaded not guilty to the charge against him.

He was asked if he wished to be represented by counsel. This he declined. Without further explanation of the charges against him, and of the penalties provided should he be found guilty, nor of any of his other rights, the court proceeded to trial without a jury. At the conclusion of the testimony, Harold E. Long, was found guilty and sentenced to six months at the Illinois State Farm at Vandalia. The following day he commenced serving this sentence.

During the following week, the family secured counsel for him and a motion for a new trial was filed. This motion the court denied without a hearing. Against the defendant’s contention that the procedure here denied him of his constitutional rights to a fair trial, the State urges that the defendant being sui juris and mentally competent had the right to conduct his defense without the assistance of counsel. In examining the record before us, we find that the defendant was asked if he wished to have an attorney to represent him, but was not advised of his right of counsel. The information was read to him, but the consequences and penalties provided were not explained to him.

From the record before us, we cannot say that the defendant waived the right to counsel and proceeded to immediate trial with the full knowledge and understanding either of the charges against him or of the rights he was waiving when he proceeded to trial without counsel. The defendant was illiterate. In view of the haste with which he was brought to trial on a charge involving intoxication, we could question whether he was fully sober at the time of the trial.

We are of the opinion that the procedure here violated the defendant’s right to a fair trial provided him by the provisions of section 2 of article II of the Illinois Constitution and by section 1 of the Fourteenth Amendment to the Constitution of the United States. The People v. Lewis, 413 Ill 116, 122, 108 NE2d 473 (1952).

The waiver of the right to counsel and other constitutional rights must be knowingly and intelligently made. The People v. Bush, 32 Ill2d 484, 488, 207 NE2d 446 (1965); People v. Stevens, 68 Ill App2d 265, 271-273, 215 NE2d 147 (1966); People v. King, 30 Ill App2d 264, 268, 174 NE2d 213 (1961).

We are of the opinion that the defendant did not knowingly and understandingly waive his right to counsel or that he was fully advised of the charges against him and the penalties which could be imposed upon him.

In view of our reversal we do not deem it necessary to pass upon the evidentiary errors urged. We are of the opinion that this case must be reversed and remanded for a new trial.

Reversed and remanded.

MORAN, P. J. and SEIDENFELD, J., concur.


text:
    Elmo E. Koos, Plaintiff-Appellant, v. Pere Marquette Building Corporation, an Illinois Corporation, and Edwin A. Boss, Defendants-Appellees.
    Gen. No. 66-26. (Abstract of Decision.)
    Third District.
    November 23, 1966.
    Elmo E. Koos, pro se, of Peoria, appellant; Harry B. Hoffman and Kavanagh, Scully, Sudow & White, of Peoria, for appellees.
   Opinion by JUSTICE STOUDER. Not to be published in full.


author: MR. PRESIDING JUSTICE BRYANT

text:
    In the Matter of the Estate of Lawrence Wakefield, Deceased. People of the State of Illinois, Appellee, v. Constance Stineberg Wakefield, Appellant. In the Matter of the Estate of Lawrence Stineberg Wake-field, Deceased. Constance Stineberg Wakefield, Petitioner-Below Appellant, v. James L. O’Keefe, Public Administrator of Cook County, etc. et al., Respondents-Below Appellee.
    Gen. Nos. 50,332 and 50,333.
    First District, Second Division.
    November 29, 1966.
    Louis P. Miller and J. H. Silver, of Chicago, for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division and Donald J. Veverka, Assistant State’s Attorney, of counsel) , for appellee, State of Illinois.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This is a consolidated appeal from the judgment of the Circuit Court of Cook County, Probate Division, which denied appellant’s petition for letters of administration, and which held the appellant in contempt of court for perjury and attempted fraud, and assessed costs and attorney’s fees against her. The only issue which we need consider on this appeal is the claim of the appellant that she was wrongfully denied a change of venue.

Briefly, the factual background of this case is as follows: Lawrence Wakefield died leaving a sizeable fortune. Constance Wakefield, the appellant, filed a petition claiming to be the only daughter and heir at law of the deceased. This cause of action came up for hearing on November 9, 1964. At the opening of the court, and before any other proceedings were had, petitioner by her attorney presented a petition for a change of venue, alleging that the trial court was prejudiced against her and that she feared she would not receive a fair trial. The petition further alleged that the prejudice of the judge first came to appellant’s attention on November 6, 1964, the Friday preceding the Monday on which the petition was presented to the court. No court days intervened between November 6 when the alleged prejudice came to the knowledge of the appellant and November 9 when the petition was presented to the court. This petition was denied, not because of any irregularities or insufficiencies, but solely “as a matter of time.”

The rule in this State is not that a petition must be filed before the trial has begun, but that it must be filed before any formal hearing dispositive of any substantive issue. People v. Chambers, 9 Ill2d 83, 136 NE2d 812; Roherty v. Green, 57 Ill App2d 362, 206 NE2d 756; Steiner v. Steiner, 44 Ill App2d 355, 194 NE2d 508. On the basis of the above criterion, the petition in this case was filed in apt time. The record shows that the original petition by appellant requesting that she be adjudged the sole heir of the deceased was filed on May 19, 1964. An answer to this petition was filed by the Public Administrator. An order was entered substituting attorneys for petitioner. And, a motion was filed by the attorneys for another claimant praying that the appellant be held in contempt for failing to appear or produce documents on a deposition. The next document filed, as shown by the record, was the petition for change of venue. From the above, it is obvious that when the petition was presented at the opening of the court, no order had been entered going to the merits or substance of this controversy.

The situation in this case is analogous to the situation in Ace Match Corp. v. Consolidated Modern Press, 5 Ill App2d 240, 125 NE2d 308, where the cause of action was set to be heard on January 5, 1954. When the case was called for trial defendant presented a petition for change of venue, stating that knowledge of the prejudice of the trial court first came to him on December 29, 1953. There were only two court days left in 1953, and on January 1, 2, and 3 of 1954 no business was transacted in the courts. On January 4 notice of the petition was served, and on January 5 it was presented. The trial court refused to grant the petition. In reversing, the Illinois Appellate Court said:

“In the instant case the defendant presented his petition immediately at the opening of court and before the hearing had started (Lionel Corp. v. Central Appliance and Furniture Co. Inc., 3 Ill App2d 460, 122 NE2d 832). Under the circumstances shown by this record we think the petition for a change of venue was presented at the earliest practicable moment. We are, therefore, of the opinion that the trial judge erred in denying the change of venue.”

We reiterate that in the present case the only ground for denial of the petition for change of venue was that the petition was not filed in time. No objection was made as to the form or sufficiency of the petition. It does not appear that appellant in seeking a change of venue did so in order to delay the hearing. In view of the above authorities we have no choice but to reverse and remand this cause of action for a new trial.

In view of the fact that we have decided that the trial court erred in denying the petition for a change of venue it follows that all proceedings (including the contempt citation and fixing of costs) subsequent to the order of denial are void. Talbot v. Stanton, 327 Ill App 491, 64 NE2d 388; Jones v. Jones, 40 Ill App2d 217, 189 NE2d 33.

For the above reasons the judgment of the trial court is reversed and the cause remanded with directions to grant the change of venue and for further proceedings not inconsistent with these views.

Judgment reversed and cause remanded with directions.

LYONS and BURKE, JJ., concur.