text:
    Rauland Division, Zenith Radio Corporation, Plaintiff-Appellant, v. the Metropolitan Sanitary District of Greater Chicago, Defendant-Appellee.
    (No. 54888;
    First District
    — October 6, 1971.

      W. Gerald Thursby, of Chicago, (Hackbert, Rooks, Pitts, Fullagar and Poust, of counsel,) for appellant.
    Allen S. Lavin, of Chicago, (Stanford R. Gail, of counsel,) for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The plaintiff, Rauland Division, Zenith Radio Corporation (hereinafter Rauland) instituted this action on December 15, 1969, to vacate an administrative decision of the defendant, the Metropolitan Sanitary District of Greater Chicago (hereinafter District) which ordered Rauland (1) to reduce the lead content of the effluent discharged into the District’s sewage system to 0.5 parts per million and (2) to “cease and desist from discharging pollutants” into the District’s sewers. The Circuit Court, after reviewing the entire record, entered an order which affirmed the decision of the District; and Rauland appeals.

The administrative proceedings involved herein were conducted before the Board of Trustees of the District in accordance with and pursuant to the Industrial Waste Ordinance of the Metropolitan Sanitary District of Greater Chicago. Rauland initially challenges the authority of the District to pass an ordinance which empowers it to hold administrative hearings and to pass “cease and desist” orders with respect to discharges of effluent into the District’s sewers.

According to Section 1, Article 1 of the Industrial Waste Ordinance, “[t]he intent and authority for this ordinance is provided in Chapter 42 Paragraphs 323 and 326 to 326-bb inclusive of the Illinois Revised Statutes * * *.”

Paragraph 323 (111. Rev. Stat. 1969, ch. 42, par. 323) provides in part: “The board of trustees has full power to pass all necessary ordinances, orders, rules, resolutions and regulations for the proper management and conduct of the business of the board of trustees and the corporation and for carrying into effect the object for which the sanitary district is formed.”

Paragraph 326 (111. Rev. Stat. 1969, ch. 42, par. 326) provides in part: “The board of trustees * * * shall have power to provide for the drainage of such district of both surface water and sewage, by laying out, establishing, constructing and, maintaining one or more main channels, drains, ditches and outlets for carrying off and disposing of the drainage (including sewage) of such district * * * and in the case of the Sanitary District of Chicago * * « some efficient method of treating sewage other than by water dilution shall be annually provided to create an effluent thereof which shall not be offensive or injurious to the health of any of the people of the State * *

Paragraph 326bb(8) (111. Rev. Stat. 1969, ch. 42, par. 326bb(8)) provides in part:

“(8) Order to discontinue discharge — notice—hearing. Whenever the sanitary district acting through the general superintendent determines that sewage or industrial wastes or other wastes are being discharged into any waters and when, in the opinion of the general superintendent such discharge pollutes the same or renders such waters incapable of use for the purposes stated herein, the general superintendent shall by conference, conciliation and persuasion, endeavor to the fullest extent possible to eliminate such violation.
In the case of the failure by conference, conciliation and persuasion to correct or remedy any claimed violation the general superintendent may order whomsoever causes such discharge to show cause before such board why such discharge should not be discontinued. * * * Such Board of Trustees may take evidence with reference to the said matter and after reviewing such evidence such Board of Trustees may issue an order to the party responsible for such discharge, directing that within a specified period of time such discharge be discontinued * *

In Paragraph 326bb(l) (111. Rev. Stat. 1969, ch. 42, par. 326bb(l)) waters are defined as “all waters of any river, stream, water course, pond or lake wholly or partly within the territorial boundaries of such sanitary district.”

Although the District is expressly authorized in section 326bb(8) to conduct hearings and to issue orders with respect to the discharge of pollutants into waterways within the District, there is no express authorization contained in the act for the District to conduct administrative proceedings and issue “cease and desist” orders with respect to the discharge of pollutants into the district’s interceptor sewers. Rauland contends that the District cannot conduct such proceedings with respect to discharges into sewers without express statutory authorization, and it urges that “[t]he proper forum to hear matters such as are involved in the instant case is a court.”

A governmental agency or municipal corporation possesses not only those powers which are expressly delegated to it, but also those which are necessary for the proper exercise of the functions with which it is entrusted. (Strub v. Village of Deerfield, 19 Ill.2d 401, 167 N.E.2d 178, People ex rel. County of DuPage v. Smith, 21 Ill.2d 572, 173 N.E.2d 485.) In Strut the validity of a village ordinance which limited to two the number of scavenger licenses that may be in force at anytime in the village was upheld. The Court in considering the contention that the village had no authority to pass the ordinance stated, 19 Ill.2d at 403, 167 N.E.2d at 179, that “[i]t is a commonplace principle that a municipal corporation can exercise those powers necessarily implied in or incident to the powers expressly granted * *

Likewise in Smith where it was held that the authority to construct a sewage treatment plant was implied in the general grant of power to regulate the disposal of sewage and to construct sewers, the Court with regard to the power of the county to construct the plant stated, 21 Ill.2d at 580, 173 N.E.2d at 490:

“While it is true a municipal corporation has only such powers as are conferred upon it by the General Assembly, (Village of Kincaid v. Vecchi, 332 Ill.586) it is at the same time a commonplace principle of statutory construction that the legislative grant of power carries with it the right to use all means and instrumentalities necessary to the beneficial exercise of the expressly conferred powers.”

The District can exercise not only those powers which are expressly delegated to it, but also those which are implied in its legislative grant. In the present case, we must consequently determine whether the District is authorized by implication to conduct hearings and to issue orders with respect to discharges into the sewers.

The District in addition to the powers set forth in section 326bb(8) is expressly authorized to lay out, construct, and maintain outlets for the disposal of drainage and sewage, and it is required to provide an efficient method of treating sewage so as to create an effluent which is not offensive or injurious to the health of the people of the State. (111. Rev. Stat. 1969, ch. 42, par. 326.) It is necessarily implied from these expressly granted powers that the District has the power to control the effluent discharged into sewer system because the discharge of toxic substances can and does affect (1) the operation of the District’s facilities and (2) the purity of the effluent eventually discharged by the District into the waters and watercourses.

The District is also expressly authorized to carry its object into effect by passing orders (111. Rev. Stat., 1969, ch. 42, par. 323), and it is necessarily implied in this expressly granted power to pass orders which affect individuals that the District can hold hearings to determine which orders should be passed.

In summary, the General Assembly has, by necessary implication, tuthorized the District to regulate discharges into the sewer system and to pass all ordinances and orders necessary to secure, preserve, and promote the public health. We hold that the District has authority to enact an ordinance which empowers it to hold hearings and to issue “cease and desist” orders with respect to effluent discharged into sewers under its control.

Rauland relies, in support of its contention that the District can act only as expressly authorized by statute, upon People ex rel. Illinois Highway Transportation Co. v. Biggs, 402 Ill. 401, 84 N.E.2d 372, Oliver v. Civil Service Commission, 80 Ill.App.2d 329, 224 N.E.2d 671, and Appeal Board of the Department of Environmental Control of the City of Chicago v. United States Steel Corp. 272 N.E.2d 46. In both Biggs, which considered the propriety of granting a writ of mandamus, and Oliver, which considered whether an administrative agency had inherent powers, there is language which indicates that an administrative agency had inherent powers, there is language which indicates that an administrative agency or municipal corporation can act only as expressly authorized. These cases are not controlling here because in neither case was the Court presented specifically with the contention that an agency or municipal corporation had authority to act in a manner necessarily implied from the powers delegated to it. In United States Steel, the Court held that the power to issue subpoenas could not be implied from a simple grant of authority to pass ordinances; but in making this holding the Court recognized that a municipal corporation possesses not only those powers expressly granted to it, but also those necessarily implied from or incident to the powers expressly granted.

It is next contended that the order of the District’s Board of Trustees should be reversed because the Board failed to make findings in support of its decision. Rauland argues that written findings are required by “(1) Section 11 of Administrative Review Act (111. Rev. Stat. ch. 110, par. 274) which provides that ‘findings and conclusions of the administrative agency on questions of fact shall be held prima facie true and correct’ and (2) the due process provisions of the Illinois and United States Constitutions because such findings are necessary for orderly, efficient, effective, fair and just review.”

The record reveals that the Committee on Industrial Waste and Water Pollution of the District’s Board submitted a written report to the Board on November 3, 1969, which contained (1) a proposed order, (2) recommendations made by the committee itself and by the District’s General Superintendent that the order be passed, and (3) a letter dated September 23, 1968, from the Acting Chief Engineer which contained findings and recommendations resulting from the hearing. The Board of Trustees adopted the order as proposed by the committee; and as part of the order it found generally that Rauland was violating the Industrial Waste Ordinance, and it directed that the letter from the Acting Chief Engineer be printed in full in the record of proceedings. We are satisfied that the administrative proceedings and the findings of the Board were sufficient and adequate to permit an orderly and efficient review of the Board’s decision.

Rauland next contends that the evidence introduced at the hearing was insufficient to establish a violation of the Industrial Waste Ordinance. The ordinance prohibits the discharge of “water or wastes containing toxic substances in quantities which are sufficient to interfere with the biological processes of the sewage treatment works.” (Article III, Paragraph 3(e) Industrial Waste Ordinance.) Toxic substances are defined as “any substance whether gaseous, liquid or solid which when discharged to the sewer system in sufficient quantities will interfere with any sewage treatment process, or will constitute a hazard to human beings or animals, or will inhibit aquatic life or create a hazard to recreation in the receiving waters of the effluent from the sewage treatment works of the Sanitary District.” According to the testimony of Stanley W. Whitebloom, a pollution control officer, the maximmn amount of lead which may be discharged into the sewage system under the standard applied by the District is 0.5 part per million.

Rauland was first contacted with regard to its discharges into the waterways and into the District’s sewers in March of 1968. During the following year there were conferences and correspondence between personnel from Rauland and from the District, and a problem concerning the discharge of process waters into storm sewers was resolved. On October 1, 1968, Joseph Pieczara, Rauland’s plant engineer, submitted a letter to the District which outlined Rauland’s “program to insure proper processing of water flowing into the sewers,” and on February 14, 1969, Pieczara submitted in another letter an eight step plan and schedule for the design and construction of an effluent treatment system which was to be completed and operational by November 1, 1969. Rauland did not follow and maintain its arranged schedule, and a meeting was held on May 22, 1969, between representatives of Rauland and of the District. At that meeting, according to a letter sent by Pieczara, Rauland explained that the delay was due to labor difficulties and to the introduction of a new manufacturing process, and Rauland agreed to install temporary equipment which would bring the material content of the effluent discharged into conformity with the standard contained in the proposed sewage and waste control ordinance (i.e. which would reduce the lead content of die effluent to 0.5 parts per million) by July 15, 1969. Samples were taken of the effluent discharged into the sewers by Rauland from July 22, 1969, to July 30, 1969, and these samples showed that die effluent discharged contained 0.64 to 2.60 parts of lead per million.

Joseph Pieczara, testified that he reviewed the efforts made by Rauland to alleviate its problems relating to the discharge of wastes. He stated with regard to the lead in the effluent that “[w]e have had demonstrations through our tests that we are under .5 parts per million, but not consistentiy as of this date.” He estimated that with the installation of a filter system die lead problem could be eliminated in 15 to 30 days.

Glen Smith, an analytic chemist employed by Rauland, reviewed the technical improvements made by the corporation to reduce pollutants in the effluent created by its manufacturing. On cross-examination he stated that he made some analysis toward the end of 1968 which showed that the lead content of the effluent exceeded 0.5 parts per million. He estimated that it would take ten weeks to solve the then current lead problem.

The evidence introduced at the hearing, both by Rauland and by the District shows that Rauland was discharging effluent containing in excess of 0.5 parts of lead per million. Rauland argues that this evidence does not establish that it discharges “waters containing toxic substances in quantities which are sufficient to interfere with the biological processes of the sewage treatment works,” as prohibited by Article III, Paragraph 3(e) of the Industrial Waste Ordinance.

Long before the administrative hearing in September, 1969, the District informed Rauland that effluent containing more than 0.5 parts of lead per million could not be discharged into tire District’s sewers, and Rauland agreed to reduce the lead content of its discharge to that amount. This enforcement standard of 0.5 parts of lead per million was not adopted arbitrarily, but was the result of a study made with the assistance of industry in which it was determined that discharges of industrial waste containing quantities of lead in excess of 0.5 part per million would interfere with the biological processes of the sewage treatment works.

On several different days in July, 1969, the District sampled Rauland’s discharge into the sewer system, and on each occasion found lead in excess of 0.5 parts per million. This sampling along with the admissions of Rauland’s plant manager and analytic chemist established the existence of discharges in violation of the District’s enforcement standard, and no evidence was introduced to show that this standard was unreasonable. We conclude that the evidence was sufficient to prove a violation of the Industrial Waste Ordinance.

Rauland also claims that the Board considered incompetent evidence in arriving at its decision. The District in the latter part of July, 1969, collected samples of the effluent discharged from Rauland’s plant into the sewage system, and these samples were chemically analyzed. Rauland argues that its right to a fair and impartial hearing was prejudiced when the Board permitted Stanley Whitebloom, a pollution control officer, to testify concerning the test results even though he was not present when the samples were collected and even though he could not testify that the chemical analyses were properly performed.

The same strict rules with reference to the admissibility of evidence do not apply in proceedings before administrative agencies. Mitchell v. Sackett, 27 Ill.App.2d 335, 169 N.E.2d 833, and under Section 12(2) of the Administrative Review Act (Ill. Rev. Stat, 1969, ch. 110 par. 275(2)) the failure to observe the technical rules of evidence does not constitute grounds for reversal of an administrative decision unless it appears that the failure to observe the rules materially affected the rights of a party and resulted in substantial injustice to him. Rauland had access to the samples which were collected by the District because on each day after the first sample was taken the District thereafter split its samples so that Rauland could conduct its own tests and analysis. Moreover, John Tomaras, a field supervisor of the District’s Industrial Waste Division, testified that he supervised the collection of the samples and that proper procedure was followed. Even if the evidence were improperly admitted, we cannot say, after considering all the facts and circumstances, that Rauland’s rights were materially affected or that it suffered substantial injustice.

We find no merit to Rauland’s final contention that it was deprived of due process because it was not apprised of the case against it. The record before us shows that Rauland, as a result of lengthy consultations with the District, was fully aware of its problems relating to the discharge of industrial wastes long before the administrative hearings in September of 1969.

For the reasons set forth above, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arthur J. Larkin, Defendant-Appellant.
    (No. 55148;
    First District
    — October 6, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Elliot M. Samuels, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Nicholas D. Taubert, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Arthur J. Larkin, was charged with three counts of armed robbery. He was arraigned on October 9, 1969, and was represented by attorney Stuart Katz who entered a plea of not guilty. On January 23, 1970, the case came up for trial and after pre-trial negotiations, defendant pleaded guilty before Judge Mel R. Jiganti, who admonished defendant as to the consequences of his plea. The facts incident to this case were stipulated into evidence. Following a hearing in aggravation and mitigation, defendant was sentenced to two to seven years in the penitentiary.

On February 24, 1970, a hearing was held before Judge Jiganti on defendant’s motion to withdraw a plea of guilty. Defendant attached an affidavit alleging that his plea had been coerced by threats and misrepresentations of the prosecution during pretrial negotiations. The trial court after considering the motion, affidavit and testimony, denied defendant’s motion to withdraw the plea of guilty. Defendant appeals from said order. The issues on appeal are as follows:

(1) Defendant claims his plea of guilty was entered upon misapprehension by defendant of the applicable law and fact; and

(2) Defendant was coerced into said plea by threats of a more severe penalty if he exercised his constitutional right to a jury trial.

The law governing the withdrawal of guilty pleas in criminal prosecutions is well settled and has been succinctly summarized in People v. Worley (1966), 35 Ill.2d 574, 576, 221 N.E.2d 267, cert, denied, 386 U.S. 972, Rehearing Denied (1967), 386 U.S. 1042.

“The general rule is that it is within the sound discretion of the trial court whether a plea of guilty may be withdrawn (People v. Lang, 402 Ill. 170; People v. Throop, 359 Ill. 354.) This discretion will ordinarily not be disturbed unless it appears that the guilty plea was entered through a misapprehension of the facts or of law, that defendant has a defense worthy of consideration, or where there is a doubt of guilt of the accused and the ends of justice would be better served by submitting the case to a trial. (People v. King, 1 Ill.2d 496; People v. Lang, 402 Ill. 170.)”

Defendant here contends that his guilty plea was coerced by representations made by the prosecutor to the effect that defendant would receive a much more severe sentence if he demanded a jury trial. However, the defendant seemed uncertain as to how he was threatened, variously characterizing the prosecutor as threatening 15 years, 30 years, 40 years, 50 and life imprisonment, if he failed to plead guilty.

Defendant cites three cases in support of his contention that the trial court erred in denying his motion to withdraw his guilty plea. However, defendant’s reliance is misplaced. In both People v. McKirdie (1970), 45 Ill.2d 300, 259 N.E.2d 16 and People v. Walston, 38 Ill.2d 39, 230 N.E.2d 233, the Illinois Supreme Court reversed denials of motions to withdraw guilty pleas. In each case, however, our Supreme Court reversed merely because the trial judge had failed to provide a fair hearing before deciding the motion. In the case at bar, a hearing was held and the trial judge carefully considered all the evidence before ruling. Defendant also relies upon People v. Morreale (1952), 412 Ill. 528, 107 N.E.2d 721. In Morreale the Illinois Supreme Court reversed a denial of a defendant’s motion to withdraw his guilty plea after he was denied probation, but only after finding that the prosecutor had already been the sole force in convincing the defendant to plead guilty promising him he would not “get hurt” and would get probation. In Marréale too, the defendant’s attorneys corroborated the pressure exerted by the prosecutor upon the defendant. That is a far different situation from the one before us in the case at bar. For here there is no clear showing of coercion by the prosecutor. There are only the contradictory statements of the defendant which were denied by the prosecutor. The defendant here also admitted that his attorney was present when the alleged coercion took place, but unlike the defendant in Morreóle, the defendant here failed to call his attorney to testify. In the instant case it was proper for the trial judge, who had the opportunity to listen to all the testimony and to examine the j demeanor of the witnesses, to determine whether to believe the defendant or the prosecutor. The record reveals no evidence that the trial judge abused this discretion. On the contrary, the record reveals the trial judge was very careful in safeguarding the defendant’s rights. The defendant admits that his counsel was present at the time this threat was allegedly made, but his counsel was never called to testify. The Assistant State’s Attorney denied coercing the defendant’s guilty plea.

At the hearing on defendant’s motion to withdraw his guilty plea, the trial court heard all the testimony concerning the prosecutor’s alleged coercion of defendant’s plea. After listening to all the evidence the court stated:

“I have a very strong preference to having a person have a trial, any kind of trial he wishes, a bench or a jury trial. And I find as a philosophical matter, I find it difficult to deny any person the right to have a jury trial.
“However, I have considered the testimony of the witnesses in the case; I had an opportunity to see them testify, opportunity to consider their credibility * * * when the plea was taken * 6 *. And I find there is no reason to allow the defendant to withdraw his plea of • guilty.”

To accept defendant’s contention that the trial court erred in refusing his motion to withdraw his guilty plea would require this court to assume the truth of defendant’s testimony and the falsity of the prosecutor’s. A similar situation arose in People v. Kwiek, (1959), 18 Ill.2d 121, 163 N.E.2d 474. There the defendant contended his guilty plea had been induced by the prosecutor’s assurance that he would receive probation, but the prosecutor denied he ever made any such agreement. In affirming the denial of defendant’s motion to withdraw his guilty plea, the court held at page 124:

“The defendant’s claim that the trial judge abused his discretion assumes the truth of his own testimony and that of the attorney who then represented him. But the trial judge was not required to believe that testimony. He could have regarded it as at best improbable and at worst false. The record does not show that the judge abused his discretion. On the contrary, it shows that he was scrupulous to safeguard the defendant’s rights.”

Similarly, in the case at bar, the record reveals the trial court as being most careful in safeguarding defendant’s rights. The court heard all the evidence concerning defendant’s desire to withdraw his guilty plea. After considering the testimony and the credibility of the witnesses, the trial judge chose to believe the Assistant State’s Attorney’s evidence, rather than the defendant’s evidence. The trial judge did not abuse his discretion.

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

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE BURMAN.

text:
    William H. Kirby, et al., Plaintiffs-Appellees, v. Walter A. Kolbosh, et al., Defendant-Appellants.
    (No. 55236;
    First District
    — October 6, 1971.
    Francis X. Riley, of Chicago, for defendants-appellants.
   Opinion by

Mr. JUSTICE BURMAN.


author: Mr. JUSTICE DIERINGER

text:
    Joseph Talarico, et al., Plaintiff-Appellees, v. The County of Cook, Defendant-Appellant.
    (No. 55344;
    First District
    — October 6, 1971.
    Edward V. Hanrahan, States Attorney, of Chicago, (Daniel P. Coman, and Cohn C. E. Simpson, Assistant State’s Attorneys, of counsel,) for appellant.
    Herbert F. Friedman, of Chicago, for appellees.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from the entry of a declaratory judgment holding the Cook County Zoning Ordinance unconstitutional as it applies to the plaintiffs’ property.

The plaintiffs are Joseph and Maiy Talarico, and Joseph Talarico is now operating and has operated for the past thirty-six years, an emergency highway assistance automobile wrecking, towing, parts and salvage business under the name of Speedway Garage, located at Route 30 and Greenwood Avenue adjoining Chicago Heights in Cook County. Under the threat of condemnation proceedings, the Talaricos sold the real estate to the Housing Authority of Cook County in 1969.

Plaintiffs then attempted to obtain a site upon which to relocate the business and entered into a contract for the purchase of a new site about one mile west of the original location. The new site, which is the subject of this litigation, consists of about one and a half acres and is located in an unincorporated area of Cook County. The subject site is in the middle of an area zoned for the heaviest industrial use under the ordinances of Cook County (M-3) and Chicago Heights (G-l).

Under the provisions of the Cook County Zoning Ordinance, Speedway Garage is classified under the caption of a “Junkyard” and as such must obtain a special use permit in areas zoned either M-2 or M-3. In 1969, plaintiffs made an application for the special use permit, and a hearing had before the Zoning Board of Appeals, which recommended that the Board of Commissioners of Cook County grant the permit, based on the evidence which showed all the relevant standards to be satisfied. When the Board hesitated to act for a period of five months, plaintiffs filed a suit in the Circuit Court of Cook County for a declaratory judgment. After the suit was filed the Board denied the application for the special use permit.

The trial judge held the plaintiffs are entitled to the relief sought by them and declared that the restrictions of the Cook County Zoning Ordinance prohibiting the proposed use of tire subject premises are uncontitutional, invalid and void as being arbitrary and unreasonable and without substantial relation to the public health, safety, morals, comfort, and general welfare. The relief was conditioned upon the following requirements:

1. That the property excluding the easement be completely enclosed with at least an eight foot high opaque fence and gates, and to be so maintained.

2. That the fence and gates when closed shall be set back no less than fifty feet from the northern curb line of Highway 30 fronting the subject property.

3. That there shall be no stacking of vehicles one upon another excepting when vehicles are being crushed and/or removed.

4. That the plaintiffs shall cause the front yard of the subject property to be lanscaped in a manner compatible with the nearby existing uses and such landscaping shall be maintained.

In an oral summation the trial judge noted that plaintiffs had been forced out of one area and there was no other which .is more susceptible to this type operation than M-3 or G-l areas.

The County appeals from the order of the trial court and maintains the evidence shows the proposed use would be detrimental to the industrial development of the area and would cause property values to decline. It therefore concludes that the allowance of the proposed junkyard on the subject site as a special use was arbitrary and unreasonable.

There was contradictory testimony regarding how the presence of Speedway Garage would affect surrounding property values and the j further development of the area. Mr. Rolf C. Campbell, a planner and zoning consultant, testified that Speedway Garage, if located in the subject site, would have a detrimental effect on the development of the industrial park east of the subject site. He also testified that the operation of a salvage yard would not be compatible with the existing industrial uses and concluded that holding back the industrial development would adversely affect the tax base of the area.

Willard Brown, Jr., vice president of Arthur Rubloff & Co., testified that the presence of the yard would make it difficult to promote sales in the area.

Mr. Talarico admitted that two years previous there had been complaints from groups regarding cars off his property and unsightliness. On the other hand, there were never any complaints about fumes or smoke, and some of the cars complained of were brought by others over whom the plaintiffs had no control.

Mr. Leo Mikos, a realtor, appraiser, real estate consultant, and lifelong resident of Chicago Heights, testified that the intended use for the subject property would not be detrimental to and would not endanger the public health, safety, morals, comfort, or general welfare because of the zoning of the property surrounding the subject site. He also testified that property values in the surrounding area would not be adversely affected. In his opinion there is not any one square mile area in any part of southern Cook County that would be more conducive to the location of Speedway Garage’s business, and that possibly there would be no other unincorporated Cook County area where they could locate if the proposed site could not be used.

Several policemen testified with regard to the benefit of Speedway Garage to the public. Anthony Yucevicius, Deputy Chief of the Staff Services Bureau for the Sheriff’s Department of Cook County, stated that abandoned cars are a problem for the County and that anyone who assisted in the removal of them would be contributing to the general welfáre and safety of the County.

Richard G. Rhodes, Sergeant in the Sauk Village Police Department, testified they had used Mr. Talarico’s services for the last four years for removing abandoned cars, for tow facilities at accidents, and emergency road repair of vehicles that might break down in the middle of the night. He stated that Mr. Talarico never refused a call for assistance from Sauk ViHage and that Speedway Garage had been a big help to the Sauk Village Police Department.

Nick Babush, Police Chief of Thornton, testified with similar approval regarding the reliability and competence of Speedway Garage.

While there is some conflict in the opinions of the witnesses as to the possible effect of Speedway Garage on the surrounding territory, the recommendation of the Board of Zoning Appeals must be accorded proper weight, even though it is not binding. (Society of Divine Word v. County of Cook, 107 Ill.App.2d 363.) Their findings are as follows:

1. Effect on General Welfare. The special use for the storage of salvaged vehicles will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare in the area.

2. Effect on Nearby Property. Due to the zoning in the City of Chicago Heights to the east for an Industrial Park and to the south of the subject site for heavy manufacturing, it is not likely to reduce property values in the area.

3. Effect on Development of Surrounding Property. As already indicated the uses of manufacturing surrounding the subject site and the zoning change being south, will not impede the normal and orderly development in the area.

4. Adequacy of Facilities and Utilities. Applicant has testified that adequate utilities, including water, sewage and storm water runoff will be made available.

5. Egress and Ingress. The special use will have no detrimental effect on the sufficiency of present ingress and egress.

6. Conformity to Regulations. Applicant has testified that the proposed special use will conform with all the requirements and regulations of applicable governmental bodies and agencies.

The standards of the Cook County Zoning Ordinance regarding the granting of a special use permit have been set forth in Pioneer Trust and Savings Bank v. The County of McHenry, 89 Ill.App.2d 257:

“The role of the court in such a case is to determine, first whether the particular use is properly within the special use classification; and, second, if so, whether the specified standards or prerequisites to the granting of a permit are reasonable.
Absent some constitutional or other objection to the ordinance not presented in the case at bar, the issuance of a permit is mandatory if each of the required standards are found to exist and are established by the evidence.”

There is no question here that the use is within the special classification, and the standards set forth are the same ones used by the Zoning Board of Appeals in making its recommendation to the County Board. Cook County Zoning Ordinance, Article VI, Section 6.9(f).

It is axiomatic that every owner has a right to use his property in his own way, subject only to the restraint necessary to secure the common welfare. (Village of LaGrange v. Leitch, 377 Ill. 99; Columbus Park Congregation v. Board of Appeals, 25 Ill.2d 65.) We believe that the statutory standards and the restrictions imposed by the trial judge are sufficient to protect the public’s interest.

For these reasons, the decision of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Brewer, Defendant-Appellant.
    (No. 55629;
    First District
    — October 6, 1971.
    Gerald W. Getty, Public Defender, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

.The defendant, Charles Brewer, was indicted for robbery and entered a plea of not guilty. At a bench trial he was found guilty and sentenced to a term of not less than five nor more than ten years in the Illinois State Penitentiary.

The defendant chose to appeal, and the public defender was appointed to represent him. The public defender now seeks to withdraw. He has filed a brief in support of his motion pursuant to the case of Anders v. California (1967), 386 U.S. 738. He states that a review of the record indicates two possible bases for appeal: whether the defendant was deprived of his Sixth Amendment right to counsel at the lineup, and whether the in-court identification of the defendant by the complaining witness was tainted due to a suggestive prior photographic and lineup identification.

The public defender notes the lineup was conducted prior to indictment, so there was no violation of the defendant’s constitutional rights. People v. Palmer (1969), 41 Ill.2d 571.

He further notes that photographic identification is proper (People v. Caldwell (1969), 117 Ill.App.2d 64; People v. Williams (1969), 117 Ill.App.2d 34), and a four-man lineup is acceptable (People v. Caldwell, 117 Ill.App.2d 64). He therefore concludes under the totality of the circumstances test of People v. Blumenshine (1969), 42 Ill.2d 508, the three-man lineup cannot be deemed unfair.

The defendant received a copy of the public defender’s motion and brief. He was also sent a letter from this court notifying him of the motion and giving him an opportunity to file any points he might choose to support his appeal. He has not responded to the letter, although three months have elapsed.

After a complete examination of the record, we have concluded the public defender is correct and there is no merit to this appeal. There is evidence the defendant was fully informed of his rights at all times during the proceedings from the time of his arrest. The photographic identification was made by the complaining witness from a group of ten or twelve photographs of men with similar physical characteristics after rejecting another group of twelve photographs in which no picture of the defendant appeared.

The defendant was identified at a lineup consisting of himself and two other men with similar physical characteristics. While it would be preferable to have more men in the lineup, the fact the complaining witness had seen the defendant prior to the crime, along with other identification evidence in the case, convinces us there was no unfairness.

The motion of the public defender to withdraw as counsel for the defendant is allowed and the judgment is affirmed.

Judgment affirmed.

ADESKO, P. J„ and BURMAN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Johnson, Defendant-Appellant.
    (No. 55725;
    First District
    — October 6, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (George L. Lincoln, and James J. Doherty, of counsel,) for appellant.
    William J. Scott, Attorney General, James B. Zagel, Assistant Attorney General, Edward V. Hanrahan, State’s Attorney, all of Chicago, (Robert A. Novelle, and James Stemik, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Defendant was charged with the crimes of attempted robbery and aggravated battery. A jury found him not guilty of attempted robbery and guilty of aggravated battery for which he was sentenced to serve six to eight years in the penitentiary. On appeal he raises three issues. (1) Erroneous rulings and impatience of the trial judge which denied him a fair trial. (2) Denial of admission of certain documents containing statements of prosecution witnesses; and (3) Improper tactic in attacking the credibility of the defendant by the prosecution.

The complaining witness, John Vernas, was riding on a C.T.A. bus heading West on Madison Street, at about midnight. He was seated in the rear of the bus. The defendant was seated in back of Vernas and questioned him about a Leica camera which Vernas was carrying at his side. The defendant then got up and tried to take the camera. Vernas resisted and was struck by the defendant about the face and left eye which swelled and closed. The bus driver signalled for police who arrested defendant.

We find that the defendant was given a fair trial. We find no error on the part of the trial judge. Defense counsel in his zeal to present a good defense for the accused needlessly extended the examination and cross-examination of some of the witnesses. The trial court properly called counsel’s attention to this and urged counsel not to delay. In general, the latitude allowed in cross-examination of witnesses rests largely in the discretion of the trial court, and only in a case of clear abuse of such discretion will the reviewing court find fault. In our opinion the trial court’s action did not influence the jury in its decision. We find no erroneous rulings or impatience of the trial court.

Defendant contends further that the denial by the prosecution of a certain document, the so-called “prep sheet”, allegedly containing the prosecution witness’ previous statements, constituted reversible error. Defense failed to make a showing that the “prep sheet” contained statements of the defendant. In People v. Durso, 40 Ill.2d 242; 239 N.E.2d 842, the Illinois Supreme Court held that a defendant is entitled to a previous statement of a witness to be used for impeachment purposes, but the said requirement applies only to specific statements which have been established to exist and which are in the witness’ own words or substantially verbatim. In the instant case, there was no showing, except a bare allegation, that the “prep sheet” contained some statements and that allegation was not precise. Also, in People v. Golson, 37 Ill.2d 419, 226 N.E.2d 610, the court said: “We cannot elevate such unverified remarks to the level of evidence creating a preliminary showing of the existence of a transcribed oral statement.” In Golson defense failed to establish their right to a discovery of the statement because neither the statement giver, nor the statement taker, indicated that a statement was made or that, if it was made, the written transcription of it allegedly in the State’s possession, truly reflected that which was said. The trial court properly denied discovery of the “prep sheet” in question.

The defendant’s last point on appeal finds fault with the prosecutor’s attack on the credibility of the defendant. The defense actually introduced evidence of the defendant’s past conviction, probably in the hope that the jury might infer that since defendant was on probation at the time, he would not have engaged in an activity which could be considered a violation of his probation. It was proper for the State to ask questions about the nature of the previous crime of which he had been convicted. In addition, the defendant’s answers were evasive as to certain questions, causing the prosecutor to inquire further. Also, the defendant should not be heard to complain about the State improperly commented on this evidence, for any fair comment upon matters already in evidence is proper. People v. Kemp, 29 Ill.2d 321, 194 N.E.2d 217.

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

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sandra Mallett et al., Defendant-Appellants.
    (No. 54380-54381;
    First District
    — October 7, 1971.

      Gerald W. Getty, Pubhc Defender, of Chicago, (Elliott Samuels, of Defender Project, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Theo Karsenas, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

Sandra Mallett and Raymond Anderson were indicted for aimed robbery, tried by the court, found guilty and sentenced. MaUett was given a one to three year term in Dwight Reformatory, Anderson a two to six year teim in the penitentiary. The defendants contend that they were not proved guilty beyond a reasonable doubt.

The robbery occurred in Sandra Mallett’s apartment about 8:00 P.M. The victim, Carl McCormick, a young married man, testified that he went there at her suggestion. As soon as he got inside the door, she drew a gun and two men, Anderson and another, came at him. He was struck in the head and Anderson said, “Give me your money or I wñl kill you.” He was instructed to take the currency out of his wallet; he gave aU that he had — two ten, two five and six one dollar büls — to MaUett. McCormick ran out of the third floor apartment, down the stairs and to a police station. Accompanied by police officers, he returned to the apartment building in time to see the defendantes come out of the hallway. They were arrested and taken back to the apartment. The third robber was not apprehended.

In the apartment Anderson said to him: ‘You can beat me up, I’ll give you your money back right now, but don’t sign a complaint.” He threatened “to get” McCormick if he signed a complaint. Mallett accused McCormick of having sexual intercourse with her and then robbing her of $150.00.

Anderson did not testify at the trial; Mallet did. She testified that McCormick gave her $36.00 for sexual relations, then said she was only worth $3.00 and attempted to get his money back. She resisted and screamed; when Anderson appeared McCormick ran out with the money. She denied robbing him or saying that he took more from her than the $36.00.

One of the four arresting officers testified at the trial. He confirmed McCormick’s head wound and verified his testimony that Anderson had said, “Hit me back, and we will give you the money, but don’t sign a complaint. If you sign a complaint, we’ll get you.” The officer testified that he recovered two tens, two fives and six singles from Mallett, who said the money had been given to her by McCormick for prostitution. She claimed that he knew the denominations of the bills because it was part of the $150.00 he stole from her.

Mallett’s and McCormick’s stories of the events leading up to the robbery differed as widely as did their versions of the robbery. Mallett testified that she was a prostitute and was out looking for business on North Avenue near Halsted Street when McCormick stopped his car and beckoned to her. He asked her if she wanted a “jump.” She said she would for $50.00; he said he had $40.00 and she got in his car. She suggested going to her house; he protested, but nevertheless they went there and she “proceeded to lay him.”

McCormick testified that he stopped for a red light at North and Halsted as he was on his way home after applying for a job in a gas station at North Avenue and Clark Streets. Mallet approached his car, knocked on the window, opened the door and asked if he would give her a "jump.” He had ignition jumper cables in the trunk of his car and he said he would for $3.00. She got in and, when asked, said her car was near Fullerton Avenue and Halsted Street. When they arrived at Fullerton and Halsted, she said her car was farther north but that she would have to go home first to get her husband and the money. She told him where she lived and, since it was a couple of miles away, he raised his price to $4.00. He drove her home and said he would remain in the car while she went inside; but she insisted that he come in and help explain to her husband what had happened. She kept repeating that her husband might be mad, so he agreed to go with her. When he entered her apartment he saw, for the first time, a gun in her hand and the robbery immediately followed.

Although the principles may not have had a meeting of the minds on the meaning of the word “jump,” they agree that Mallet persuaded McCormick to drive her home and enter her apartment. They also agree that Anderson was waiting there and that McCormick’s money was transferred to her. Whether it was passed by force or in payment for her services, was a question for the trier of facts. From the evidence the trial court could have concluded that Mallett induced McCormick, by one pretense or another, to come to her home where her confederates were awaiting the arrival of a victim; that, unusual though it might be for a robbery to take place in a robbers home, the defendants’ took a calculated risk that the victim would not have the courage to complain; that a married man involved in a compromising situation with a prostitute would rather forget about the whole thing than report it to the police and run the risk that it would be revealed to his wife and friends.

The conflict in the testimony presented a question of the credibility of the witnesses. This conflict was resolved by the trial court who, sitting without a jury, had the responsibility to observe the witnesses, determine their credibility and weigh their testimony. A trial court’s judgment will not be overturned on review unless a defendant’s guilt was not proved beyond a reasonable doubt, an unjust decision was reached, or an error of prejudicial dimension occurred in the trial.

The defendants’ guilt was proved, the court’s decision was not unjust and there was no trial error. The judgment is affirmed.

Judgment affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE McGLOON

text:
    Sandra Otto, Plaintiff-Appellant, v. Allstate Insurance Company, Defendant-Appellee.
    (No. 54415;
    First District
    — October 7, 1971.

      Ruttenberg and Ruttenberg, of Chicago, (David W. Ruttenberg, of counsel,) for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban and Fuller, of Chicago, (John M. Moelmann, John L. Kirkland and D. Kendall Griffith, of counsel,) for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal by plaintiff from the trial court’s adverse decision in a declaratory judgment proceeding brought by the plaintiff to construe the limits of coverage available to her under an automobile insurance policy issued by the defendant, Allstate Insurance Company. More specifically, the plaintiff Otto contends that where two automobiles are insured for uninsured motorist coverage in the same policy, and where an insured, while riding on a motorcycle, is injured by an uninsured motorist, the injured insured should be allowed to recover under the uninsured motorist provision of both automobiles thereby doubling the coverage available. Thus, plaintiff would recover $20,000 rather than $10,000 as allowed by the trial court.

Plaintiff supports this contention by arguing: (1) That her right to the double coverage is manifest by the separate terms and coverages of the two certificates constituting the single Allstate policy. (2) The protection afforded by these separate insurance certificates applies separately and together to plaintiff s protection, since all the terms of the policy “apply separately to each.” (3) Plaintiff’s coverage is not reduced by the “other insurance” provision of the AUstate policy, since Allstate insurance is the only insurance available to her.

We affirm.

Sandra Otto, plaintiff, is the daughter of Raymond Otto. Raymond Otto was insured by defendant, Allstate Insurance Company, for automobile legal liability pursuant to Allstate’s “Crusader Policy.” On September 13,1967, plaintiff was injured while riding on a motorcycle which was struck by an uninsured motorist. Plaintiff was an insured within the meaning of the Allstate policy which provided insurance for two separate automobiles: Item 1, a 1965 Rambler, and Item 2, a 1961 Pontiac. Both items were insured under one policy, but each item was evidenced by a separate insurance certificate on a supplement page which bore the breakdown of premium charges applicable to that item. According to tlie stipulation of facts produced at trial, the uninsured motorists premium on Item 1 was $4 and that on Item 2 was $3. The limit of liability stated on the supplement pages under uninsured motorists coverage was:

“1. ‘Each person is the limit of Allstate’s liability for all damages arising out of bodily injury sustained by one person in any accident. (Hereinafter referred to as ‘Limit of Liability Clause.’)”

The limit for each person was $10,000 as noted on the supplement pages next to the premium charges for uninsured motorists insurance. Other clauses pertinent are:

“IF THERE IS OTHER INSURANCE.

With respect to bodily injury sustained by any insured while occupying any automobile, other than one owned by the named insured, the insurance hereunder shall not apply if the owner of such automobile has insurance similar to that provided for herein.

Subject to the preceding paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and Allstate shall not be liable for a greater proportion of any loss, to which this Coverage S applies, than the Emit of EabiEty hereunder bears to the sum of the applicable Emit of EabiEty of this Coverage S and such other insurance. (Hereinafter referred to as ‘Other Insurance Clause.’) Condition 3. Insurance on Two or more Automobiles.

When two or more automobiles are insured by this poEcy, the terms of this policy shall apply separately to each, but an automobile and attached trailer shall be deemed to be one automobile as respects the limits of liability under Part I of Section I and separate automobiles under Section IV, including any deductible provisions which may apply. (Hereinafter referred to as ‘Separability Clause.’)”

Plaintiff predicates her claim for $20,000 upon the following arguments: First, the fact that the two items insured are evidenced by two separate certificates constitutes, in effect, two separate policies. Second, the separability clause of the insurance contract makes both of the uninsured motorist coverages available to her, and because each coverage has an “each person” limit of $10,000, she should be entitled to $20,000. Third, because there has been a double payment of premiums, she can rightfully expect a double recovery. Fourth, in any of these three instances, Allstate’s “other insurance clause” is not operative so as to reduce her recovery to $10,000.

We will begin by considering plaintiffs argument that the two separate certificates of insurance, which make up the insurance policy in issue, should be interpreted as two separate policies of insurance, one covering each of the insured cars.

This issue was raised in Polland v. Allstate Ins. Co. (App. Div. 1966), 226 N.Y.S.2d 286, where the court in considering the same argument raised as to a similar Allstate “Crusader Policy” stated:

“We are constrained to disagree with appellant’s contention that defendant’s policy with the two attached supplemental sheets constitutes in law two policies, one covering each of the insured cars, and affords Thomas Haynes coverage in the sum of $20,000. The original “Crusader Policy” and the two endorsements formed one contract and each person injured is limited to $10,000 (see Government Employees Insurance Co. v. Lally, 4 Cir., 327 F.2d 568.)” 266 N.Y.S.2d at 287.

We agree with the reasoning set out in the Polland case and find plaintiff’s argument not well taken. We must now ascertain whether the “separability clause” of the Allstate “Crusader Policy” compells us to consider the two items insured therein as tantamount to being insured under two separate policies of insurance. If we were so to find, plaintiff would have us apply the rule of Deterding v. State Farm Mut. Auto. Ins. Co. (1966), 78 Ill.App.2d 29, 222 N.E.2d 523 to tire case at bar, and plaintiff could recover $20,000. Deterding was concerned with an insured who claimed under the uninsured motorists provision of two separate policies with the same insurer covering two separate vehicles owned by the insured. The main issue raised in the case was the availability of the “other insurance clause” to the insurer. The court ruled that the clause was non-applicable, for if it were to be applied, the insurer would be discounting its own primary liability, for it could not be secondarily liable on an auto owned by its insured and upon which it issued a separate insurance policy.

Plaintiff raises the case of Government Employees Insurance Co. v. Sweet (Fla. App. 1966), 186 So.2d 95 as authority for her interpretation of the effect of the separability clause. In Sweet, there was a single policy covering two separate vehicles, each vehicle insured having a premium assessed to cover medical payments with limits of liability of $3,000 for each person. The insured was injured while driving one of the vehicles and sustained $6,000 in medical damages. The court stated that medical payment insurance was different than public liability insurance, and found the separability clause of the policy and the limits of liability language to be hopelessly in conflict. Thus, the court affowed the insured a recovery of $6,000.

In the case of Allstate Insurance Co. v. Mole (5th Cir. 1969), 414 F.2d 204, the court was confronted with an insured who was claiming three times the stated policy Emit because the policy in question insured three owned automobiles. The claim was being made under the non-owned automobile provision of the policy, said policy containing both a separability clause and a limit of liability clause. The court, in refusing to adopt the Sweet court’s interpretation of the pyramiding effect of a separability clause stated at page 205:

“On the face of the policy we find no ambiguity between the separability clause and the limit of liability. The separability provision merely renders the policy applicable to whichever of the insured cars is involved in an accident. The liability limits are also clear; for bodily injury Allstate will pay up to $10,000 for injury to one person.” Emphasis added.

Thus, the court denied a multiple recovery such as was allowed in Sweet. Sweet was distinguished as arising out of a special type of insurance, medical payment, which is treated differently than normal liability insurance, and is “derived from a specifically insured vehicle.”

Construction of a separability clause was also considered in Yates v. Interinsurance Exchange Of the Automobile Club of Southern Cal. (Cal. App. 1969), 79 Cal. Rptr. 604. In this case, a party injured by the insured attempted to recover in excess of the $25,000 limit of the insured’s policy on the theory that the coverage was extended to two separate automobiles. The Y ates court cited with approval Pacific Indemnity Co. v. Thompson (1960), 56 Wash.2d 715, 355 P.2d 12 which held that a separability clause does not operate to increase the policy limits, but “merely assures the applicability of the policy to whichever car is involved in an accident, or to aU the cars and does no more.” 79 Cal. Rptr. 604 at 607.

The final case that we wiU consider on this issue is Polland v. Allstate Ins. Co., supra., which is concerned with an Allstate “Crusader Policy” similar to the one before us. In Polland, the plaintiff was injured while a passenger in an automobile owned by DiVesto and operated by Thomas Haynes. Thomas Haynes was insured under the terms of Allstate's “Crusader Policy” which insured two cars, a Thunderbird and a Volkswagen, and which recited limits of liability of $10,000 for each person in any one accident. Plaintiff requested $20,000 from Allstate based upon the theory that Allstate had issued, in effect, two separate policies due to the separability clause appearing in the policy. The court stated at page 287:

“We find nothing uncertain or ambiguous in the provisions of the policy. In our view Condition ‘3’ which provides that “when two or more automobiles are insured by this policy, the terms of this policy shall apply separately to each * * *” means nothing more than to render applicable the policy to whichever car insured under the policy (The Thunderbird or the Volkswagen) is involved in an accident (See Pacific Indemnity Co. v. Thompson, 56 Wash.2d 715, 355 P.2d 12).” Emphasis added.

In conclusion, we hold that a separability clause appearing in an automobile insurance policy does not act, in and of itself, to pyramid the limits of liability established by that policy. See also, Allstate Ins. Co. v. Zellars (Tex. 1970), 462 S.W.2d 550; Appleman, Insurance Law and Practice (1971 Pocket Part), Vol. 8, § 4891.

We must next consider plaintiff’s argument that payment of a double insurance premium for uninsured motorist coverage entitles her to a double recovery. Plaintiff places great emphasis on the cases of Sturdy v. Allied Mut. Ins. Co. (1969), 203 Kan. 783, 457 P.2d 34, and Rosson v. Allied Mut. Ins. Co. (1969), 203 Kan. 795, 457 P.2d 42 as authority for this argument. Because Rosson is completely dependent upon the law of Sturdy, we shall limit our discussion to the latter.

The factual setting of Sturdy is quite similar to that of the case at bar. Two automobiles were insured for uninsured motorist coverage as separate items in the same policy. The named insured, while riding a motorcycle, suffered bodily injury and attempted to recover $10,000 under each item of uninsured motorist insurance. However, in Sturdy, the premium for this coverage was identical for each automobile, i.e. $2. Thus, the court remarked that when two independent premium charges of equal amounts are made, a construction holding for a double recovery is more readily apparent. This approach was further developed when the court distinguished Ringenberger v. General Accident Fire and Life Ass. Corp., (Fla. App. 1968), 214 So.2d 376 on the basis that in Ringenberger the uninsured motorist premium payment on the second car was less than that on the first car.

In Ringenberger the plaintiff insured was injured by an uninsured motorist while riding in a non-owned automobile. In attempting to recover the maximum under each item of insurance, the plaintiff argued that insuring two vehicles under the same policy is tantamount to taking out two policies of insurance because a double premium is charged. The court observed that in its understanding:

“The addition of the second automobile did not increase exposure to the company from accidents while the insured was occupying a non-owned automobile, but the exposure to the company was increased by the coverage provided with respect to accidents involving the additional owned automobile of tire insured # * this in our opinion was the consideration for the additional premium.” 214 So.2d at 377.

This same argument was urged on appeal by defendant in the instant case, and we find it a convincing one. Raymond Otto paid a $4 premium on his first car, and a $3 premium on his second. Thus, there was no additional premium charged to cover the insured when he (or an insured party under the policy) was injured by an uninsured motorist, while occupying a non-owned automobile or in a pedestrian capacity. The consideration for the $3 premium on the second car, if we apply the logic of Ringenberger, was Allstate’s increased risk of an injury occurring while an insured was occupying the second automobile. An increase or decrease in owned cars has no direct effect on the risk of one’s being injured while not a passenger in one’s owned cars. Because we find our case analogous to Ringenberger, and because the court in Sturdy found its case distinguishable from Ringenberger on the very facts which are the basis of our analogy, we find Sturdy distinguishable from the case at bar.

Furthermore, we find the limit of liability clause appearing in the present policy to be unambiguous. The limit expressed is $10,000 for each person arising out of any one accident. Although this clause is not as detailed as that appearing in Hilton v. Citizens Ins. Co. of N.J. (Fla. App. 1967), 201 So.2d 904 which was also distinguished in Sturdy, in light of the nature of the matters with which we are dealing and the purpose which the parties sought to accomplish, we find the clause sufficient for the purpose intended, namely, to impose a $10,000 limit for each person for injuries arising out of any one accident. Cook v. Suburban Cas Co. (1964), 54 Ill.App.2d 190, 203 N.E.2d 748.

The final argument which plaintiff raises was taken up in Sellers v. Government Employees Ins. Co. (Fla. App. 1968), 214 So.2d 879 which plaintiff cited in its reply brief. This argument would hold that if one can be beneficiary under the uninsured motorist provisions of multiple insurance policies, as in Deterding, supra, there is no reason to limit recovery simply because two or more vehicles are insured under the same policy. Thus, the Sellers court stated at page 882:

“* * * The principle appears to be established that if one who is a beneficiary under the uninsured motorist provision of multiple insurance policies suffers a compensable loss, he is entitled to payment of his loss from any or aU of the insurance carriers within the limits of liability stated in their respective policies. His recovery is not restricted to the coverage of the policy insuring the vehicle in which he was riding at the time of his loss. Such being the controUing law in case of multiple insurance policies, we perceive no reason why a different rule should be applied merely because the insurance coverage afforded on different vehicles is combined in one instead of two or more policies. This is particularly true when each of the insured vehicles is separately described, the coverage granted under the policy is separately listed for each vehicle, and a separate premium is charged for the coverage afforded to each of the described vehicles as is trae in the case sub judice.”

However, Sellers v. Government Employees Ins. Co. was expressly overruled in Morrison Assurance Co., Inc. v. Polak (Fla. 1970), 230 So.2d 6 where the court ruled that issues of coverage raised because of multiple vehicles insured under a single policy are best decided without regard to multiple coverage cases with more than one policy in question.

We are in accord on this point, and we do not see any necessity to discuss the problems raised by “other insurance” clauses as in Deterding, supra, for the plaintiff has failed to demonstrate a convincing basis for seeking a double recovery, such a basis being a condition precedent to the “other insurance” clause becoming operative to defendant’s benefit.

Judgment affirmed.

McNAMARA, P. J., and DEMPSEY, J., concur.


author: Mr. PRESIDING JUSTICE LEIGHTON

text:
    A. S. S. Wrecking Co., Inc., Plaintiff-Counterdefendant-Appellee, v. Guaranty Bank & Trust Co., as Trustee under Trust No. 11013, el al., Defendants-Counterplaintiffs-Appellants.
    (No. 54205;
    First District
    — October 12, 1971.

      Thomas W. McNamara, Clarold L. Britton, and Arthur M. Martin, of Chicago, (Jenner & Block, of counsel,) for appellants.
    Marvin Patrick Cohen, and Jesse H. Brown, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of tire court:

This is an appeal from a judgment that rejected affirmative defenses, adjudicated counterclaims and ordered foreclosure and sale of two parcels of real estate. The issues arise out of a controversy concerning contracts to demolish two slum buildings.

On February 18, 1963, Richard A. Keefe was appointed receiver of two parcels of real estate, a four-story building at 938-944 North Wells and a five-story building at 1001-1005 North Wells, Chicago. In 1964, Keefe was ordered to demolish the buildings. Accordingly, Keefe and plaintiff entered into two contracts to wreck each building “[d]own to grade level, leaving only solid debris, and removing all burnable materials.” The costs for 938-944 North Wells were $8,000; those for 1001-1005 North Wells were $10,775, later increased to $12,540.

On May 14, 1985, plaintiff filed intervening petitions and obtained two orders in which the trial court found that the two buildings had been demolished. Keefe, as receiver, was ordered to execute two trust deeds, one to secure receiver’s certificates in the aggregate amount of $8,000 to pay for demolition costs of 938-944 North Wells. The other to secure receivers certificates in the aggregate amount of $15,775 to pay for the demolition costs of 1001-1005 North Wells. Both orders were “[e]ntered under and by virtue of tire authority of Sections 11 — 31.1 and 11 — 32.2 [sic] of Chapter 24 of the Illinois Municipal Code in connection with dangerous conditions on [sic] the building on the premises in question, * # * »

On May 21 and June 29, 1965, Keefe, in two trust deeds, “[n]ot individually but as Receiver for the following described real estate, * * *” conveyed and warranted by legal description 938-944 and 1001-1005 North WeHs Street in Chicago. The two trust deeds were recorded in the offices of the Recorder of Deeds of Cook County. Each document had stapled to it a typewritten statement that “[t]he Mortgagor has issued the Principal Promissory Notes hereinafter described and intends to transfer them, for good and valuable consideration relating to the demolition and other services performed * * *” on the described real estate.

The receiver’s certificates were not paid. On August 23, 1967, using the short form provided by statute, plaintiff filed two complaints to foreclose the trust deeds. Keefe was described at the mortgagor. It was alleged that each parcel of real estate was conveyed in fee simple and plaintiff prayed for a foreclosure of each trust deed. Attached to each complaint, as exhibits, were the trust deed and the receiver’s certificates. In the complaint concerning 938-944 North WeHs, defendant Guaranty Bank and Trust Co., as Trustee under Trust No. 11013 was named defendant. In the complaint concerning 1001-1005 North Wells, National Boulevard Bank of Chicago, as Trustee under Trust No. 1613 was named defendant. Richard Keefe, receiver and Chicago Title and Trust Company, the trustee in each trust deed, were named defendants in each complaint. They were defaulted for faüure to appear and answer.

Guaranty and National Boulevard appeared in their respective suit. They filed an answer which included two affirmative defenses and a counterclaim. As their first affirmative defense, Guaranty and National Boulevard alleged that plaintiff’s cause of action accrued on August 5, 1965, when there was default in payment of the receiver’s certificates. Both alleged that because plaintiff’s action as to each of them was not commenced until August 23, 1967, the suits were barred by Ill. Rev. Stat. 1965, ch. 24, par. 11 — 31—2 “[w]hich provides that actions to foreclose such a trust deed must be commenced within two years after the date of default.” Each answer contained a second affirmative defense which alleged that plaintiff breached its contract of demolition because “[i]t failed to fill the property with solid fill to grade level. To the contrary, plaintiff filled the property with unfit, combustible materials in violation of the contract.” In addition to the answer and affirmative defenses, Guaranty and National Boulevard each filed a counterclaim in which it was aHeged that there were breaches of the demolition contract by the plaintiff and prayed for damages, Guaranty as to 938-944 North Wells, $10,000; National Boulevard, as to 1001-1005 North Wells, $8,000.

Prior to trial, plaintiff moved to strike the first affirmative defense and the counterclaims. The motion to strike was allowed as to the first affirmative defense and denied as to the counterclaims. Defendants were granted leave to amend their counterclaim. The complaints were consolidated for trial. The court then heard evidence on the counterclaims.

To support their allegations that plaintiff breached the demolition contracts, defendants called four witnesses: a photographer, the president of a building wrecking company, a project engineer for a soil testing service and Keefe, the receiver. 43 exhibits were included in their proof. In addition, they requested, and the trial court took judicial notice of section 76 — 6.4 of the Revised Building Ordinance of the City of Chicago which provided that “[o]n completion of demolition, the site shall be filled where necessary with clean soil, cinders or other inorganic material and graded to a level not lower than nor more than twelve inches above the level of sidewalks, alleys, or adjoining property with proper allowance for settlement.”

Keefe testified that after he entered into the demolition contracts, and while the work was in progress, he visited the sites but did not see anything unusual. After he issued the receivers certificates and delivered the trust deeds to plaintiff, problems arose with the fill materials that had been used. For example, a car parked on one of the lots sank into the ground on its axle, requiring a tow truck to get it out. In the spring or summer of 1966, portions of the sidewalk of 1001-1005 North Wells collapsed. Sidewalk cave-ins also occurred at 938-944 North Wells. The City of Chicago filled and repaved the sidewalks. Later, in the spring and summer of 1967, cinders had to be brought in to fill the “cavities” and “voids” which had occurred on the two properties. Keefe estimated that wood was approximately 25 to 50% of the fill which plaintiff used to grade and level the two properties. Keefe said he hired a soil testing firm to analyze the fill which plaintiff had used.

The supervising project engineer of the soil testing firm testified that two borings were made on each property. On 1001-1005 North Wells the quantity of wood in the fill ranged from none to 50%. On 938-44 North Wells, wood in the fill ranged from none to 35%. This witness testified that wood is an improper fill material because it lacks compactability, it is subject to decay, causes settlement of the filled land, requiring re-excavation before any building of substance can be constructed on a site with wood as fill material. The president of the building wrecking company testified that he inspected the lots at 938-944 and 1001-1005 North Wells after plaintiff completed the demolitions, grading, leveling and filling. He estimated that the cost of reexcavating and re-filling the properties “[wjould be in the neighborhood between 15 to $20,000.” Of defendants’ exhibits, 10 were photographs of the two lots showing the fill material that had been used.

Plaintiff called three witnesses: an administrative assistant in the trust department of National Boulevard Bank, the building inspector of the City of Chicago who approved the demolitions and Richard Keefe, called as an adverse witness. The trust department administrative assistant testified concerning trust documents. Keefe explained why payments on the receivers certificates were discontinued. He said, “There were two substantial reasons: One, we found difficulty with the wood, was part of the reason; the other part of the reason was that he entered into a, sort of a general agreement with some of the principals of A.S.S. Wrecking in the formulation of a dump company * # The building inspector testified that while demolition of the buildings on 938-944 and 1001-1005 North Wells was in progress, he visited the properties but saw no wood put in as fill material. Fifteen exhibits were offered by plaintiff and received in evidence.

After hearing the witnesses and receiving the exhibits, the trial court rejected the affirmative defenses, found against defendant on the counterclaims and ordered foreclosure and sale of the two parcels of real estate. In this appeal defendants present three issues.

1. Whether the trial court erred in striking defendants’ first affirmative defense which alleged that each of plaintiff’s complaints to foreclose the trust deeds were barred by the statute of limitations which requires that a suit to foreclose the Hen of a receiver’s certificate “[sjhall be commenced within two years after the date of default.”

2. Whether the trial corut erred in ordering foreclosure of the trust deeds.

3. Whether the trial court erred in finding in favor of plaintiff and against defendants on the counterclaims which alleged breaches of the demolition contracts.

Concerning the first issue, defendants contend that plaintiff’s suits were to foreclose liens of a receiver’s certificates. Pointing to plaintiff’s allegations, defendants argue that the certificates were in default on August 5 and 6, 1965, respectively. The suits were filed on August 23, 1967, more than two years later. Therefore, defendants argue, the suits were barred by the provisions of Ill. Rev. Stat. 1965, ch. 24, par. 11 — 31— 2 which required “[sjuch suit to foreclose such lien shall be commenced within two years after the date of default.”

Plaintiff, on the other hand, contends the limitation provisions are inapplicable because they were added to the statute, effective August 5, 1965, to provide for the two-year period of limitation. Plaintiff argues that when the certificates were issued on May 21 and June 29, 1965, no period of limitation applied to suits on defaulted receiver’s certificates. Moreover, it is argued, the statute relates to lien of a certificate, much like a mechanic’s lien, and not to the lien of a first mortgage on real estate. By this argument, plaintiff emphasizes that it was a holder of receiver’s certificates secured by trust deeds and possessed all the rights of a plaintiff who sues to foreclose a mortgage of real estate.

A mortgage, or a trust deed, is a conveyance of real estate or assignment of personal property, without parting with the possession in either case, as security for the performance of some act, usually the payment of money. (In re Estate of Lalla, 281 Ill.App. 124, 132-33.) As to land, a trust deed is a warranty conveyance by one having legal title, with a condition of defeasance on payment of the debt it secures. (Chicago Title and Trust Co. v. Wallace, 250 Ill.App. 293, 299.) Richard A. Keefe, who executed and delivered the two trust deeds, was an appointed receiver. His receivership was court-created. (See Community Renew. Found., Inc. v. Chicago Title & T. Co., 44 Ill.2d 284, 255 N.E.2d 908.) A receiver is a custodian of the assets involved in a litigation. Title to the assets remains in the owner or owners who are parties in the proceedings which lead to appointment of the receiver. The receiver is the managing agent of the property for the benefit of the parties. (McIlvaine v. City National Bank and Trust Co. of Chicago, 314 Ill.App. 496, 42 N.E.2d 93; Knickerbocker v. McKindley Coal and Mining Co., 67 Ill.App. 291, 294.) We have no statute which conferred title to the receivership property on Keefe, the receiver. In this jurisdiction, absent a statute, a receiver can only acquire title to property by a conveyance. Heffron v. Gage, 149 Ill. 182, 193-94, 36 N.E. 569.

This being the case, despite the court order which authorized him to execute the trust deeds, Keefe could not convey and warrant legal title to the parcels of real estate described in the two trust deeds which plaintiff sued to foreclose. Therefore, plaintiff’s suits could only have been to foreclose liens of the receiver’s certificates. Whether plaintiff had foreclosurable liens on the real estate described, depends on proof of compliance with the court’s order and applicable law. Turner, et al. v. P. & S. R.R. Co., 95 Ill. 134, 35 Am. Rep. 144; and compare Cronin v. Tatge, 281 Ill. 336, 118 N.E. 35; Rochelle Bldg. Co. v. Oak Park Trust & Savings Bank, 121 Ill.App.2d 274, 257 N.E.2d 542.

Whether issued by statutory authority or by exercise of general jurisdiction, a receivers certificate is a lien on assets of the receivership. (See Cody Trust Co. v. Hotel Clayton Co., 293 Ill.App. 1, 12 N.E.2d 32; Community Renew. Found., Inc. v. Chicago Title & T. Co., supra.) A lien is property. It is a right protected by provisions of state and federal constitutions which prohibit impairment of the obligation of contract and the taking of property without due process of law. (Walker v. People ex rel Raymond, 202 Ill. 34, 66 N.E. 827; Steger v. Traveling Men's Building and Loan Ass’n., 208 Ill. 236, 70 N.E. 236; and see Armstrong v. United States (1960), 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554; Wood v. Lovett (1941), 313 U.S. 362, 61 S.Ct. 983, 85 L.Ed. 1404.) In this case, the obligations of contract which 12 of the certificates reflect was that “[o]n demand, for value received, (the receiver) . . . promises to pay to bearer the sum of One Thousand and no/100 ($1000.00) Dollars, together with interest thereon at the rate of six per cent (6%) per annum from date of issuance, payable annuaUy on the 1st day of January in each year, payable out of said property and the rents and issues thereof, * * *” One additional certificate, on the same terms, was for $775.

It can be seen that on the date of their issuance, these certificates were demand obligations. The holder of them had the right to their continued ownership, without modification of this right which can be caused by a two-year period of limitation. If demand for payment of principal or the interest due were followed by default, the holder could elect to delay enforcement of the certificate liens. To construe amended section 11 — 31—2 of chapter 24 and apply it retroactively to the certificates issued to plaintiff prior to the amendment, as urged by defendants, would impair the obligation of contract which led to issuance of the certificates. This construction would render the statute unconstitutional. (Hogan v. Bleeker, 29 Ill.2d 181, 193 N.E .2d 844; and see Pacific Mail Steamship Co. v. Joliffe (1864), 2 Wall. 450, 69 U.S. 450, 17 L.Ed. 805.) We will not adopt an unconstitutional statutory construction when a construction consistent with constitutionality appears more reasonable. Therefore, we hold that the limitation period contained in the amendment to chapter 24, par. 11 — 31—2 is not to be applied to receivers certificates issued prior to August 5, 1965. As a consequence, plaintiff’s suits are not barred by its provisions. See Hogan v. Bleeker, supra; compare Country Mutual Insurance Company v. Knight, 40 Ill.2d 423, 240 N.E.2d 612 and Stanley v. Denning, (Ill.App.2d), 264 N.E.2d 521.

The second issue arises from defendant’s contention that the receiver was ordered to issue the certificates to plaintiff “[a]s a means of paying for the demolition performed relative to the premises * * located at 938-944 and 1001-1005 North Wells Street, Chicago. Defendants argue that their evidence established a material failure to perform the two demolition contracts. They say that plaintiff did not fill the foundation of each demolished building “[wjith solid fill to grade level. To the contrary, plaintiff filled the property with unfit, combustible materials in violation of the contracts] * * *” “on completion of demolition, the site shall be filled where necessary with clear soil, cinders or other inorganic material * *

To meet this contention, plaintiff points out that the trust deeds do not mention the demolition contracts. It argues that the contractual obligations were disposed by completion of the work, approval by the City of Chicago and acceptance of performance by the receiver, who, on order of the comt, issued the certificates. Implicitly, plaintiff contends that defendants cannot, in these proceedings, prove a defense which Keefe failed to interpose prior to plaintiff’s suits to foreclose.

The demolition contracts were executed by Keefe as a receiver, “[a]n agent appointed by the court to serve the parties interested.” (Knickerbocker v. McKindley Coal & Mining Co., supra.) Defendants had the right to meet plaintiff’s suits with the defense of material failure to perform the demolition contracts. By analogy, this was a suit to foreclose a mechanic’s lien. The property owner in such a suit, against the contractor or mechanic, can make any defense which proves a defect, a delay or a non-performance of the contract. Booher v. Williams, 341 Ill.App. 504, 95 N.E.2d 518; Baker v. Palmer, 332 Ill.App. 284, 75 N.E.2d 50.

In this case, Keefe, the receiver, testified concerning the condition of the two properties after the buildings were demolished. The project engineer who supervised borings on the two foundations described the percentage of wood that was found in the fill. In addition, photographs disclosed the content of the fill used on the properties. Plaintiff’s only evidence was the testimony of an inspector who said that in his visits during the demolitions, he did not see wood used as fill. This testimony left open the possibility that the inspector did not look to see if wood was used to fill the foundation of buildings which plaintiff had contracted to wreck “[djown to grade level, leaving only solid debris, and removing all burnable materials.” Nonetheless, the trial comt found in favor of plaintiff on the issue raised by the affirmative defense. This finding was against the manifest weight of the evidence. See Friedman Elec. Co. v. St. Clair County Housing Auth., 23 Ill.App.2d 16, 161 N.E.2d 473.

The third and final issue is whether the trial court erred in finding in favor of plaintiff and against defendants on the counterclaims which alleged breaches of the demolition contracts. On this issue, defendants contend that according to Keefe and the project engineer, both properties require reexcavation and re-filling. The president of the wrecking company testified that he inspected the two lots and estimated the costs for re-excavating and re-filling to be between $15,000 to $20,000. He said that a reasonable charge for this kind of work in the City of Chicago was $2 to $2.75 per cubic yard. The breakdown for each parcel was $6,610 to $9,088.75 for 938-944 North Wells and $6,112.20 to $8,404.28 for 1001-1005 North Wells. Defendants argue that this evidence proved they were damaged. They insist it was error for the trial court to find in favor of the plaintiff and against them on the counterclaims.

In resolving this issue, we observe that plaintiff did not refute the testimony of defendant’s witnesses nor the evidence represented by the photographs offered in their support. Plaintiff’s argument is a repetition of the one it advanced to meet defendant’s contention concerning the affirmative defenses: that Keefe, the receiver, did not complain about plaintiff’s performance of the demolition contracts; therefore, defendants are bound by this failure.

It is an oft-repeated principle that “[w]here the trial court has seen and heard the witnesses and the testimony is contradictory, this court will not substitute its judgment as to the credibility of witnesses for that of the trial court and will not disturb the findings unless they are manifestly against the weight of the evidence.” (Brown v. Zimmerman, 18 Ill.2d 94, 102, 163 N.E.2d 518; Narowetz Heating and Vent. Co. v. Solar Sales, Inc., 86 Ill.App.2d 387, 392, 230 N.E.2d 37.) But, it is our duty to carefully examine the record to determine whether the evidence justifies the judgment. If, from a consideration of the record as a whole it appears to us that the evidence does not justify the judgment, it is our plain duty to reverse. (Sharkey v. Sisson, 310 Ill. 98, 114—15, 141 N.E. 427: Friedman Elec. Co. v. St. Clair, County Housing Auth., 23 Ill.App.2d 16, 19, 161 N.E.2d 473.) In this case, defendants had the right to counterclaim. (Rozema v. Quinn, 51 Ill.App.2d 479, 201 N.E.2d 649.) The evidence tending to prove damages was not refuted. Therefore, it was error for the trial judge to enter judgment in favor of plaintiff and against defendants on the counterclaims.

For these reasons, we reverse and remand the causes for new trial, with directions that plaintiff and defendants be given the opportunity to file new, additional or amended pleadings; and that after trial court determines the rights, duties and obligations of the parties, it enter a judgment consistent with the views expressed in this opinion.

Reversed and remanded with directions.

SCHWARTZ and STAMOS, JJ., concur.

         Apparently, the statutory authority to which the trial court referred was Ill. Rev. Stat. 1963, eh. 24, pars. 11 — 31—1 and 11 — 31—2.

       It appears, however, that as to Guaranty Bank, plaintiff alleged that the date of default was August 6, 1965.

       When this appeal was first reached for oral argument, we called attention of counsel to Calumet Fed. Sav. & Loan Ass’n. v. Markman, 50 Ill.App.2d 430, 200 N.E.2d 419 and Harlem Sav. Ass’n. v. Lesniak, 91 Ill.App.2d 194, 234 N.E.2d 160, two decisions of this court which cast doubt on the finality, hence the appealability, of the judgment of foreclosure and sale in this case. Memoranda which counsel have filed convince us that the judgment that ordered foreclosure and sale is final and appealable.


author: MR. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Bell, et al., Defendants-Appellants.
    (Nos. 54520, 54521, 54522, 54523 cons.;
    First District
    — October 12, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Saul Brauner, Ronald P. Katz, and James J. Doherty, of counsel,) for appellants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Nicholas D. Taubert, of counsel,) for the People.
   Opinion by

MR. JUSTICE GOLDBERG.


author: Mr. JUSTICE STAMOS

text:
    Guardian Savings & Loan Association, Plaintiff-Appellant, v. Reserve Insurance Company, Defendant-Appellee.
    (No. 54806;
    First District
    — October 12, 1971.
    Kralovec, Swemey, Marquard & Scoby, of Chicago, for appellant.
    Heineke, Schrader, Marsch & Cuncannan, of Chicago, (Paul H. Heineke, of counsel,) for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff appeals from a judgment wherein the court found that defendant properly denied plaintiff’s claim on a fire insurance policy. On appeal plaintiff contends that the trial court erred in construing the provisions of the mortgage clause of the fire insurance policy.

Plaintiff held a mortgage on the subject property, legal title to which was vested in Cosmopolitan National Bank of Chicago, as trustee. Defendant issued a fire insurance policy on the property designating Cosmopolitan as the named insured and plaintiff as the loss-payee under the standard mortgage clause. The policy provided as pertinent herein:

“Loss or damage, if any, under this policy, shall be payable to (herein the name of the mortgagee) Mortgagee [or trustee] as interest may appear and this insurance as to the interest of the mortgagee [or trustee] only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this pohcy, provided, that in case the mortgagor or owner shaH neglect to pay any premium due under this policy, the mortgagee [or trustee] shall, on demand, pay the sum.
Provided also, that the mortgagee [or trustee] shall notify this Company of any change of ownership or occupancy or increase of hazard which shaH come to the knowledge of said mortgagee [or trustee] and, unless permitted by this policy, it shall be noted thereon and the mortgagee [or trustee] shall, on demand, pay the premium for such increased hazard for the term of the use thereof, otherwise this policy shall be nuU and void.”

Subsequent to the issuance of the policy and within the policy period, foreclosure proceedings were instituted by plaintiff and a quit-claim deed was dehvered by Cosmopolitan to plaintiff on March 23, 1967. The deed was recorded on May 3, 1967.

On May 6, 1967, a fire ensued on the premises and a claim was made by plaintiff on the policy. Upon defendant’s refusal to pay, plaintiff instituted the instant suit resulting in the judgment in favor of defendant.

The pleadings and admissions of fact establish that had plaintiff requested defendant to accept an assignment of the policy to plaintiff, it would have been routinely accepted; that the change in title resulted in no increase in the risk and that the parties in possession before foreclosure remained in possession after conveyance of title to plaintiff.

OPINION

Plaintiff contends that the provisions of the mortgage clause clearly entitle it to recovery on.the policy. However, defendant maintains that plaintiff’s insurable interest at the time of the loss was that of owner and not mortgagee and that, therefore, it is not entitled to recover since the policy in question only insured plaintiff’s interest as mortgagee. Defendant further maintains that even if the policy is construed to cover plaintiff’s ownership interest, it stiff cannot recover, since plaintiff faffed to notify defendant of any change in ownership as required by the second paragraph of the mortgage clause.

We cannot agree with defendant’s initial argument. In School Trustees v. St. Paul Ins. Co., 296 Ill. 99, the court was confronted with a mortgage clause almost identical to that in the present case. It is significant to note that at page 103 the court stated:

“It is admitted that by the agreement the insurance was not to be invalidated by a foreclosure, which could only apply in case the plaintiff became the purchaser, for the reason that if anyone else had purchased the plaintiff would not have had any further insurable interest.”

Therefore, since the clause only has meaning where the mortgagee purchases upon foreclosure, it is apparent that the provisions of the mortgage clause in question were clearly intended to cover the mortgagee’s interest as it succeeded to ownership through foreclosure.

Defendant’s second argument is that plaintiff cannot recover since it failed to notify defendant of the change in ownership. While defendant admitted that assignment of the policy would have been routinely accepted, it maintains that the right to receive notification was valuable. The value of this right as urged by defendant is that under the mortgage clause the insurer is given the right to receive assignment of the mortgage debt upon payment of the proceeds of the policy to the mortgagee. Therefore, when the mortgage is extinguished by foreclosure, the insurer’s rights to assignment are similarly extinguished and it is important for the insurer to be notified of this fact.

However, defendant fails to explain tihe manner in which the knowledge of the extinguishment of this right could be utilized to the insurer’s benefit. Furthermore, the entire tenor of the mortgage clause is to extend coverage under various contingencies to the mortgagee. One of those contingencies was to extend coverage to the mortgagee irrespective of whatever interest in the subject property the mortgagee might succeed to after foreclosure. In so doing the defendant insurer agreed to accept assignment of the policy in the event foreclosure resulted in plaintiff mortgagee’s ownership of the subject property. Therefore, the notice provision on the mortgage clause was of no benefit to defendant.

In view of the foregoing, we find that plaintiff’s breach in failing to notify defendant of the change in ownership was not substantial and did not excuse defendant’s performance.

The judgment is reversed.

Judgment reversed.

LEIGHTON, P. J., and SCHWARTZ, J., concur.