author: Mr. JUSTICE DOWNING

text:
    Joseph Doria, Plaintiff-Appellant, v. Patrick Costello et al., Defendants-Appellees.
    (No. 58471;
    First District (2nd Division)
    September 3, 1974.

      Roland C. Upton, George F. Witteman, and Morrill, Koutsky, Klomann & Chuhak, all of Chicago (Philip J. McGuire, of counsel), for appeUant.
    Epton & Druth, Ltd., of Chicago (Bernard E. Epton, Donald Segal, and Brian M. Waldron, of counsel), for appellees.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff brought an action for personal injuries suffered when he was struck by an auto driven by defendant Patrick Costello, a policeman on duty in the defendant Village of Markham. The jury returned a verdict in favor of the defendants.

Plaintiff now prosecutes this appeal presenting the following issues for review: (1) whether the trial court erred in denying plaintiff’s motion to strike certain testimony; (2) whether the trial court erred in submitting to the jmy instructions pertaining to intoxication; and (3) whether the trial court erred in the giving and refusing of other instructions.

During the evening of December 23, 1967, defendant Costello (then employed as a police officer with the Village of Markham) received a radio communication directing him to pick up an automobile in a shopping center and drive it to the owners home. The shopping center is located on the east side of Kedzie Avenue and extends from 159th Street on the north to 161st Street on the south. Costello picked up the car (a dark-colored Ford), exited the parking lot at a point approximately V4-block south of 160th Street and proceeded northward on Kedzie. Realizing that he should be proceeding southwest of the shopping center, Costello made a left turn into 160th Street so as to go in a westerly direction. As he made this turn, the defendant noticed that the pavement was rough, then continued around the block. When he passed the intersection once again, he found plaintiff sitting on the road’s shoulder approximately 5 feet south of 160th Street and 4 feet west of Kedzie in the shoulder and culvert. In response to Costello’s inquiry, plaintiff stated that he was sitting there because he had been struck by a late model green or dark-colored Ford. After delivering the car, Costello, accompanied by his partner, Officer Casper, returned to 160th and Kedzie where they found plaintiff and-one other man.

While Costello acknowledged at the trial that he had struck plaintiff with the Ford, he stated that as he made the left-hand turn into 160th Street, he never saw plaintiff at the intersection. He testified that there were no sidewalks on the west side of Kedzie, no overhead street lights or traffic signals at the intersection of 160th and Kedzie, although the shopping center’s parking lot was equipped with lights.

The plaintiff testified that on the date in question he operated a gasoline service station located at 159th Street and Central Park. After work at approximately 7 P.M., plaintiff went with his wife and a friend, Bill Horman, to a club across the street from the gas station, where he consumed four or five 6-ounce glasses of beer, leaving at approximately 8:30 P.M., his wife and friend having left before him. From the club plaintiff, accompanied by Les Clark and Ed Gruhlke, proceeded to a liquor store where plaintiff drank one more beer and then left at 9:20 or 9:30 P.M. to walk home. Plaintiff began to walk to his home at 16140 South Kedzie Avenue (about one-quarter mile from the liquor store) by going in an eastward direction down 159th Street to Kedzie Avenue where he turned and proceeded in a southerly direction down Kedzie Avenue, and as he approached 160th Street and Kedzie, plaintiff noticed an oncoming car approximately three-quarters of a block away. He continued walking and, while crossing 160th Street, looked up again and saw that “there were two lights right on top of me.” At this point plaintiff was on the road’s shoulder, 4 to 5 feet south of the paved portion of 160th Street and 3 to 4 feet from the west edge of Kedzie. Realizing that the car was going to hit him, plaintiff tried “to roll away from it.” As the left side of plaintiff’s body came in contact with the left side of the auto, he grabbed the rear view mirror and broke it off the car, then flipped into the air and came down on his back and head. Plaintiff stated that he lay stunned but saw taillights go in a westerly direction down 160th Street. He next remembered Officer Casper and Costello arriving on the scene asking him if he had been hit by a car, and he acknowledged that he had been, indicating the direction in which the car headed, and the officers then pursued it. Plaintiffs employee, Larry Engle, then came by the scene and drove plaintiff home.

Asked to describe his condition at that time, plaintiff replied “terrible shock” and stated that he felt pain in every part of his body, particularly his neck and lower back.

On cross-examination plaintiff stated that he had nothing to eat at the club but that he had a late lunch at 4 or 4:30 that afternoon; that the weather was cold and frosty with a very slight accumulation of snow; and that he had no difficulty walking other than just watching so as not to slip.

Edward Gruhlke stated that he saw plaintiff on the night in question at the club where plaintiff drank four or five beers. Asked his opinion by plaintiff’s attorney concerning the condition of plaintiff’s sobriety when he left the club, Gruhlke stated Doria “was all right as far as I know.” The witness then accompanied plaintiff to the store where he stated Doria had one or two beers. Questioned regarding the condition of plaintiff’s sobriety when he left the liquor store, the witness replied that plaintiff was “All right, he was sober as far as I could see.”

Lawrence Engle had been employed in plaintiff’s gas station during 1967. On December 23, 1967, he and plaintiff’s son locked up the station around 10 P.M. and, after he had driven plaintiff’s son home, the witness drove down 160th Street toward Kedzie when he saw “headlights come flying down the street from the direction of Kedzie.” When the witness came to 160th Street and Kedzie he stopped, noticed plaintiff on his right on the road’s shoulder (south of 160th Street), exited from his car, and helped plaintiff up.

Asked by plaintiff’s attorney whether he noticed any odor of alcohol about the plaintiff, Engle responded that he did not and, when asked whether plaintiff was inebriated, the witness stated: “In my opinion he wasn’t.” Engle further testified that, while riding to plaintiff’s home, he noticed no odor of alcohol about him and when asked if plaintiff appeared sober to him, the witness replied: “Yes, he was shook up a lot.”

Beverly Doria, plaintiffs wife, testified that on the evening in question she dropped her son off at the gas station, met her husband, and both proceeded across the street to the club; that she consumed a soft drink, left the club before her husband so as to do some shopping, and next saw him when Lawrence Engle brought him home. She testified that plaintiff could not stand or walk without someone helping him, and, when asked by counsel for plaintiff whether he was drunk or not, she replied: “No, he most certainly was not.”

Mrs. Doria drove plaintiff to the Markham Police Station and left him in the car while she entered the station where she turned in the mirror her husband had pulled off die car. Describing plaintiff’s physical position in the car, she stated: “He was slumped, he couldn’t sit up.” Inside the station the witness spoke to Sergeant Kalivoda who then went out to her car with her. In talking to the sergeant plaintiff said that he was stiff and sore and wanted to go home.

On cross-examination, when questioned as to whether she observed any smell of liquor about the plaintiff, Mrs. Doria stated: “No, I did not.” She further testified that she was familiar with the smell of beer, did not smell beer on her husband that evening and acknowledged that her husband was in a dazed condition.

James Kalivoda, called by the defendants, was a sergeant with the Markham Police Department at the time plaintiff incurred his injuries. He testified that Officers Costello and Casper had called to advise him of the accident and that Mrs. Doria came to the station at about 10:30 or 11 P.M. requesting the witness to persuade her husband to go to the hospital. Kalivoda did go out to the car to converse with plaintiff, asked him to go to the hospital, but plaintiff said he was alright and did not have to go to the hospital.

Having observed the plaintiff’s physical appearance, Kalivoda testified: “He seemed fairly happy — carefree” and that, although it was dark and hard to see plaintiffs face, “He was smiling.” The witness further testified that during the course of his association with the Markham Police Department, he had had occasion to see intoxicated people. Asked his opinion as to plaintiff’s condition that evening with regard to intoxication, the witness stated: “As I put down in my report, I thought he was under the influence” and based his opinion on the “fact that he had a few drinks, the expression on his face. He seemed carefree.”

On cross-examination Kalivoda testified that, as he spoke to plaintiff, he stood several feet from plaintiff who was seated in the car; that at no time during their conversation did plaintiff get out from the vehicle; and that he conducted none of the usual sobriety tests on the plaintiff.

I.

Plaintiff first contends that the trial court committed reversible error when it refused to strike Kalivoda’s testimony that plaintiff was “under the influence” and when it submitted to the jury instructions pertaining to intoxication.

In his complaint plaintiff alleged the exercise of due care and caution on his part and each defendant denied that allegation. Thus the parties joined issue on the conduct of the plaintiff.

Since a plaintiffs intoxication may defeat his recovery for negligence depending upon the extent to which it affects the care that he takes for his own safety (Patarozzi v. Prairie States Oil & Grease Co. (1966), 71 Ill.App.2d 155, 158, 218 N.E.2d 113), evidence of a plaintiffs intoxication is admissible as a circumstance to be weighed by the jury in its determination of the issue of due care. French v. City of Springfield (1972), 5 Ill.App.3d 368, 376, 283 N.E.2d 18; Patarozzi v. Prairie States Oil & Grease Co., supra.

Ordinarily in a case of this nature, the defendant would bear the burden of proof upon this issue. The record in this case clearly demonstrates though that, probably as a matter of trial strategy, it was plaintiff s counsel who introduced the issue of intoxication by questioning the plaintiff, Edward Grahlke, Lawrence Engle, and Mrs. Doria concerning plaintiffs consumption of liquor on the evening of the accident and by eliciting the opinion of the latter three witnesses as to plaintiffs sobriety or lack of it.

In an effort to challenge this evidence as well as bear their burden of proof on the issue of due care, defendants offered Kalivoda’s testimony that, having been a member of the Markham Police Force for 4 years and having had occasion to see intoxicated persons, the plaintiff was, in his opinion, “under the influence.” Plaintiff moved to have this testimony stricken on the ground that the witness did not have sufficient opportunity to observe plaintiffs physical condition and thus was not qualified to offer an opinion as to his sobriety but the trial court denied the motion.

The rule is well established that a non-expert may testify as to his opinion, based upon experience and observation, whether or not a person was intoxicated (Watson v. Fischbach (1972), 6 Ill.App.3d 166, 171, 284 N.E.2d 720; Suppe v. Sako (1941), 311 Ill.App. 459, 466, 36 N.E.2d 603). As stated by our supreme court in Dimick v. Downs (1876), 82 Ill. 570, 572:

“Whether a person is nervous and excited, or calm, or whether drunk or sober, are facts patent to the observation of aH, and their comprehension requires no peculiar scientific knowledge.”

In the instant case, Kalivoda testified that he had had occasion to observe intoxicated persons during his experience as a policeman and that he had observed plaintiff’s physical appearance on the evening of the accident. In light of the above-quoted authority, Kalivoda was qualified to offer his opinion as to plaintiff’s sobriety or lack of it. Accordingly, we conclude that the circumstances surrounding the witness’ observation of the plaintiff did not affect the admissibility of that testimony. Rather, such was a factor to be considered by the jury in determining the weight to be given to the testimony.

Having permitted the jury to hear testimony concerning plaintiffs consumption of liquor and its effect upon his sobriety, the trial court, over plaintiffs objection, submitted the following instructions to the jury:

“Defendants’ Instruction No. 5 (I.P.1.12.01):
Whether or not a person involved in the occurrence was intoxiGated at the time is a proper question for the jury to consider together with other facts and circumstances in evidence in determining whether or not he was contributorily negligent. Intoxication is no excuse for failure to act as a reasonably careful person would act. An intoxicated person is held to the same standard of care as a sober person.
Defendants’ Instruction No. 6 (I.P.I. 150.15):
A person is ‘intoxicated’ when as a result of drinking alcoholic liquor there is an impairment of his mental or physical faculties so as to diminish his ability to think and act with ordinary care.”

Plaintiff correctly points out that the trial court commits error if it instructs the jury on the issue of intoxication when the record is devoid of any testimony that the plaintiff was intoxicated (Shore v. Turman (1965), 63 Ill.App.2d 315, 322-23, 210 N.E.2d 232). Plaintiff further suggests though, that defendants’ instructions here were improper since plaintiff’s witnesses testified that he was not intoxicated and defendants’ witness, Kalivoda, testified — not that plaintiff was intoxicated — but,, rather, that he was “under the influence.” It is plaintiff’s position that the phrase “under the influence” cannot be equated with the terms “intoxicated” or “drunk,” that the record thus contains no evidence that plaintiff was intoxicated on the night of the accident, and, accordingly, defendants’ instructions were unwarranted. e

Plaintiff cites as authority the case of French v. City of Springfield, supra. There a doctor who had taken a blood sample from the deceased testified that the amount of alcohol found in the sample indicated the deceased “would be # # # under the influence of alcohol.” The trial court then instructed the jury regarding contributory negligence but failed to submit the instructions attacked by plaintiff in the instant case. In reversing the judgment of the trial court, this court noted that, although the doctor’s opinion was proper evidence for the jury to consider, the test is not whether the deceased was “under the influence,” but whether he was intoxicated within the definition of that term as contained in IPI — 150.15. This court further stated that, in the absence of instructions defining intoxication and the relationship between intoxication and the exercise of due care,

“[T]he jury was left in a complete vacuum as to how it was to deal with the evidence. Furthermore, this would have been so even if Doctor Nickey had testified that [the deceased] was intoxicated. Due to the absence of 12.01, the jurors might well have concluded that once evidence of drinking or intoxication appears, recovery is barred and this is not the law, provided the case is submitted to the trier of fact.” (5 Ill.App.3d at 376-377.)

The test then is not whether the plaintiff was “under the influence” or “intoxicated” but whether he was “intoxicated within the definition of that term as contained in I.P.I. 150.15.” 5 Ill.App.3d at 376.

In the case at bar Kalivoda’s testimony provided a sufficient basis for the challenged instructions. Accordingly, the trial court properly submitted to the jury defendants’ instructions 5 and 6.

Of further significance is the fact, as noted earlier, that plaintiff’s counsel initiated the inquiry into plaintiff’s consumption of liquor and its effect upon him. Having introduced that evidence, he now contends it was error to instruct the jury as to how they must interpret and deal with the evidence. This position is untenable since a plaintiff cannot be heard to complain of a situation which he, himself, has created. Levy v. Levy (1969), 117 Ill.App.2d 194, 210, 254 N.E.2d 108.

II.

Plaintiff next contends the trial court erred when, over plaintiffs objection, it instructed the jury concerning contributory negligence, to wit:

“Defendants’ Instruction No. 2 (I.P.I. 11.01):
When I use the expression contributory negligence,’ I mean negligence on the part of the plaintiff that proximately contributed to cause the injury.
Defendants’ Instruction No. 3 (I.P.I. 10.03):
It was the duty of the plaintiff, before and at the time of the occurrence, to use ordinary care for his own safety. That means it was the duty of the plaintiff to be free from contributory negligence.”

The giving of an instruction is proper so long as there is some evidence in the record to support it (Chicago & W.I.R.R. Co. v. Ringenheimer (1886), 116 Ill. 226, 230, 4 N.E. 840). Here the parties joined issue in their pleadings on plaintiff’s exercise or failure to exercise due care for his own safety and each party offered testimony concerning whether or not plaintiff was intoxicated. Since the instructions were supported by evidence in the record, the trial court properly instructed the jury on the issue of contributory negligence.

Plaintiff also attacks the trial court’s refusal to submit to the jury his instruction which set out a driver’s statutory duty to exercise due care to avoid colliding with any pedestrian upon any roadway and to give warning by horn if necessary. Plaintiffs instruction, as submitted, paraphrased IPI-70.03 which, in its entirety, also states the corresponding statutory requirement that a pedestrian crossing a roadway at other than a marked or unmarked crosswalk within an intersection shall yield the right-of-way to all vehicles upon the roadway. Further, plaintiff offered no instruction defining the term "roadway.” In light of these omissions, the trial court properly refused the instruction since it did not fully present to the jury the law governing the issue. Randal v. Deka (1956), 10 Ill.App.2d 10, 134 N.E.2d 36.

Finally plaintiff argues that the trial court improperly instructed the jury regarding circumstantial evidence as follows:

“Defendants’ Instruction No. 7 (I.P.I. 1.03):
A fact may be proved by circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances which give rise to a reasonable inference of the truth of the facts sought to be proved.”

Each party established the facts necessary to support his theory of the case by means of direct evidence. Accordingly, there was no need to instruct the jury as to circumstantial evidence but, viewing the conduct of the trial and the instructions in their entirety, we are of the opinion that whatever prejudice to plaintiff’s case resulted from this error was not of such a degree as to warrant reversal.

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

Judgment affirmed.

STAMOS and LEIGHTON, JJ., concur.

       Costello, called by the plaintiff as an adverse witness, was asked if he had struck plaintiff and responded, “It appears that way.”

       Similarly this court, in Weiner v. Trasatti (1974), 19 Ill.App.3d 240, 244, 311 N.E.2d 313, stated that:
      “[Pjroof of intoxication in a dram shop suit requires evidence which establishes that the person involved was in fact intoxicated. It is not enough that the evidence prove only that the alleged intoxicated person consumed alcohol. 6 * * In all instances of this kind, therefore, the crucial inquiry is whether consumption of intoxicating liquor, together with evidence of unusual behavior, shows that as a result of drinking alcoholic liquor there was an impairment of mental or physical capabilities that diminished the person’s ability to act with ordinary care.”


source: Caselaw Access Project

license: Public Domain

text:
    Bi-Lo Stations, Inc., Plaintiff-Appellant, v. The Village of Alsip et al., Defendants-Appellees.
    (No. 58636;
    First District (2nd Division)
    September 3, 1974.
    Nat M. Kahn and Paul L. Smith, Jr., both of Chicago, for appellant.
    Ancel, Clink, Diamond & Murphy, P. C., of Chicago (Louis Ancel and Barry S. Shanoff, of counsel), for appellees.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Bi-Lo Stations, Inc. (hereinafter plaintiff), brought an action against the Village of Alsip, a municipal corporation, its mayor, and the members of its board of trustees (hereinafter the defendants below will be referred to collectively as the Village), seeking an injunction and a judgment declaring a certain Village ordinance unconstitutional; a section of the ordinance in question provided that all gasoline service stations within the Village, including plaintiff’s, were permitted to be in operation only between the hours of 6 A.M. and midnight of each day. After having heard evidence without a jury, the trial court entered a decree declaring the said ordinance constitutional and valid and dismissing the plaintiffs petition for a declaratory judgment and injunction. This appeal followed.

The single issue on appeal, as we see it, is whether the ordinance in question is a constitutional regulation of the operation of plaintiffs business, reasonably related to the public safety, health, or welfare.

The record presented here reflects the following transpiration of events. On Februaiy 8, 1971, the mayor and the board of trustees of the Village passed Ordinance No. 536, an ordinance amendatory to Ordinance No. 267. Ordinance No. 536, which included a section entitled “Automobile Service Stations,” provided in part:

“Hours of Operation: A service station shall be permitted to be in operation only between the hours of 6:00 A.M. and Midnight of each day.”

Subsequently, plaintiff brought suit against the Village, seeking declaratory relief and an injunction against the enforcement of the ordinance. On March 29, 1971, a temporary injunction against the ordinance’s enforcement, in its closing hour requirements, was entered. However, after a hearing before Judge Francis Delaney on August 18, 1972, an order was entered dismissing plaintiff’s petition and dissolving the injunction.

On August 21, 1972, plaintiff filed another petition for declaratory relief and injunction, and, after a denial of the Village’s motion to dismiss on the grounds that the matter was res judicata owing to the decree entered by Judge Delaney, the case was set for hearing before Judge Nathan Cohen on October 12,1972. The evidence adduced at the hearing may be summarized as follows. At the time of the hearing, the Village, a suburban community south of Chicago, had approximately 40 business establishments, 10 or 12 of which were gasoline service stations, including plaintiffs’ located on South Cicero Avenue in the Village, which had been in operation for about 4 years. On August 26, 1972, after the dissolution of the temporary injunction restraining the enforcement of the Village’s closing-hour ordinance, an attendant at plaintiffs station was arrested by the Village police sometime after midnight on that date, the police charging that the station was closed down. Prior to that date, the station had operated on a 24-hour-a-day basis.

As part of its case, plaintiff called several Village officials as adverse witnesses pursuant to section 60 of the Civil Practice Act; they included the mayor, two members of the board of trustees, the chief of police, and the Village attorney. A fair summary of their testimony is that service stations in the Village which remained open all night had become the target of serious crimes against persons and property, particularly during the hours between midnight and 6 A.M. Local citizens, as well as spokesmen for the police department, had expressed concern to Village officials. The situation had become a recurring topic of discussion at the Village’s board meetings. The Village officials refrained from an immediate legislative response, but the situation worsened; the crimes at the stations included numerous thefts, armed robberies, and one homicide, tire latter that of a young man who worked as an attendant at plaintiff’s service station. It is clear from a review of tire testimony of the various Village officials that the ordinance in question was passed with a view toward halting the serious crimes affecting Village service stations which remained open between midnight and 6 A.M.

On October 13, 1972, the court below decreed that Ordinance No. 267, as amended by Ordinance No. 536, was constitutional and valid and entered judgment in favor of the Village.

On appeal, plaintiff contends variously: (1) that the ordinance is discriminatory and invalid in that it deals only with service stations and ignores all other retail establishments in the Village; (2) that the ordinance is void in that a municipality is without authority under its police power to regulate arbitrarily and unreasonably the hours of private business conducted in a proper manner without potential detrimental elements; and (3) that the incidence of crimes committed at the service stations between midnight and 6 A.M. was due not to any actions of station employees but to inadequate police protection in the Village.

I.

Among the several powers delegated to municipalities under Illinois’ Cities and Villages Act are these: “The corporate authorities of each municipality may regulate and prevent the storage of * * * petroleum, or any of [its] products, # (Ill. Rev. Stat. 1971, ch. 24, par. 11 — 8—4); and “The corporate authorities of each municipality may locate and regulate the use and construction of * * * garages, * * * ” (Ill. Rev. Stat. 1971, ch. 24, par. 11 — 42—8.) It has been held that the authority thus conferred embraces the regulation of gasoline stations, or, as they are often known, service stations (Chicago Title & Trust Co. v. Village of Lombard (1960), 19 Ill.2d 98, 103, 166 N.E.2d 41; Fligelman v. City of Chicago (1932), 348 Ill. 294, 304, 180 N.E. 797; and Gore v. City of Carlinville (1956), 9 Ill.2d 296, 298-299, 137 N.E.2d 368). We find, therefore, that the Village in the matter at hand was possessed of the authority to regulate the use of plaintiff’s service station.

While it is settled that the operation of service stations may be regulated by municipalities, the regulation must be “reasonably related to the public safety, health or welfare or to the prevention of public nuisances.” (7 McQuillin, Municipal Corporations §24.345 ( 3d ed. 1968).) This principle is reiterated in the 2nd Edition of American Jurisprudence:

“Regulations by municipalities of the hours during which specified businesses may be conducted have been declared reasonable and constitutional where there is a patent relationship between the regulations and the protection of the public health, safety, morals, or general welfare, such as where the business is of such a character that the public health or morals are likely to be endangered if it is carried on during the late hours of the night.” 56 Am. Jur. 2d Municipal Corporations § 474 (1971).

It is also a well-founded rule that legislatures are “[n]ecessarily vested with broad discretion to determine not only what the public interest and welfare require, but what measures are necessary to secure such interests.” Tometz v. Board of Education (1968), 39 Ill.2d 593, 600 237 N.E.2d 498.

This state’s supreme court dealt with a set of circumstances similar to those presented here in Gibbons v. City of Chicago (1966), 34 Ill.2d 102, 214 N.E .2d 740, cert. denied (1966), 385 U.S. 829. In Gibbons, an action was brought to enjoin the enforcement of an ordinance relating to self-service, coin-operated laundries. The ordinance under scrutiny in Gibbons provided in part that no laundries of the type covered by the legislation could be operated between the hours of 11:30 P.M. and 6:30 A.M. The court upheld the constitutionality of the compulsory closing requirement, citing the authority delegated to municipalities by the state statutes (Ill. Rev. Stat. 1965, ch. 24, par. 11 — 42—8), which allowed for the regulation of the use and construction of laundries. In Gibbons, as here, it was contended that the closing requirement bore no reasonable relation to the public health, safety, and welfare, and, thus, was unconstitutional. The. court found to the contrary, and stated at pages 108-109 of its opinion:

“We need not determine whether the matters thus far discussed, which relate to considerations of public health and the risks of fire and personal injuries, would be sufficient, standing alone, to justify the requirement that an attendant be present when the establishment is open at night. For we are of the opinion that when they are considered in conjunction with considerations related to the deterrence of crime and criminal activity, both the requirement of an attendant and the compulsory closing provision of the ordinance are clearly justified.
Several representatives of the Chicago Police Department expressed the opinion, based upon their experience, training, background and knowledge, that the presence of an attendant between the horns of 6 P.M. and 11:30 P.M. would have a deterrent effect on crimes related to self-service, coin-operated laundries. Reports compiled by the Chicago Police Department show that the peak period of reported crime for this type of laundry increases sharply about 5 P.M., reaches a peak sometime after midnight, and decreases sharply after 4:30 A.M. This period correlates with that during which the presence of an attendant and compulsory closing are required under the ordinance. There was testimony of numerous incidents of crime of varying degrees of seriousness in connection with these laundries. Police officers testified that any warm, well-lighted place would contribute to certain types of crime, but that open, unattended laundries are almost unique in their attractiveness. It was the opinion of the police officers who testified that the incidence of larcenies of coins from the machines would decrease significantly as a result of the attendant and closing requirements.”

We are satisfied, upon this record, that the compulsory closing provisions of Ordinance No. 267, as amended by Ordinance No. 536, are neither arbitrary nor unreasonable, and that the regulation is a constitutional one, reasonably related to the public health, safety, and welfare of the Village. We hold, therefore, that the court below committed no error in entering judgment in favor of the Village.

In so holding, we are not unaware of the numerous cases cited by plaintiff from this and other jurisdictions which were meant to support its position; we find those cases to be inapposite. Each of those cases is factually distinguishable from the matter at hand, principally in that the records presented therein were virtually barren of any circumstances which would have justified the municipal regulation.

Plaintiff, in its briefs before this court and upon oral argument, places particularly heavy reliance upon Fasino v. Mayor (1973), 22 N.J. Super. 304, 300 A.2d 195, an action which challenged the validity of a general closing ordinance, wherein it was held that the ordinance requiring the closing of all businesses for off-premises consumption of food and beverage from 11 P.M. to 6:30 A.M. was not a constitutional exercise of police power. We have reviewed Fasino carefully and find that it, too, is distinguishable from the case at bar. Fasino involved the question of the constitutionality of a general closing ordinance; here, that precise question is nowhere presented. Moreover, it is apparent from the Fasino decision that the court was not presented with a record such as that presented here, one which displays a patent relation between the closing ordinance of the Village and the deterrence of criminal activity. As a matter of fact, the Fasino court, in its analysis of various cases across the States which have upheld the validity of closing hours for certain types of businesses, points to Gibbons v. City of Chicago, supra, the case upon which we principally rely, as reflecting circumstances wherein a closing-hour ordinance was constitutionally justifiable.

Plaintiff acknowledges that ordinances prescribing reasonable closing hours are valid as a proper exercise of police power for taverns, liquor stores, pawn shops, pool rooms, second hand stores, junk dealers and the like “because of the potential detrimental factors that are inherent in the very nature of the conduct of these activities.” Thus admitting the authority, under the proper exercise of the police power, to prescribe reasonable closing hours, the plaintiff says the qualifying conditions are absent here. Having stated that the record here established a valid basis for the exercise of the police power, and there being nothing in the record to establish that the closing hours are arbitrary or unreasonable, we find no reason, under these circumstances, why the automobile service station cannot be similarly treated as the other businesses cited by the plaintiff.

It is clear from the record before us that the closing provisions of the Villages ordinance were wholly justified as they patently related to the deterrence of crime and criminal activity in the Village.

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

Judgment affirmed.

HAYES, P. J., and STAMOS, J., concur.

       Plaintiff argues before this court that the order of Judge Delaney dismissing plaintiff’s prior suit was tantamount to an order of non-suit, which did not bar the subsequent suit against the Village. While plaintiff raises this issue in its initial brief on appeal, the Village nowhere in its brief addresses itself to the issue. Therefore, we adhere to the principle stated in Supreme Court Rules 341(e)(7) and 341(f) (Ill. Rev. Stat. 1971, ch. 110A, pars. 341(e)(7) and 341(f), to the effect that points not argued in the Village’s brief are waived. In the oral argument before this court, the Village acknowledged it was not urging this point.

       Ill. Rev. Stat. 1971, ch. 110, par. 60.

       Plaintiff was not bound to vouch for the veracity of the testimony of the adverse witnesses and they could have introduced any competent evidence in direct contradiction. However, plaintiff was bound by testimony of any adverse witness which stood uncontradicted and unrebutted. See Chance v. Kinsella (1923), 310 Ill. 515, 142 N.E. 194; In re Estate of Donovan (1951), 409 Ill. 195, 98 N.E.2d 757; Kapraun v. Kapraun (1957), 12 Ill.2d 348, 355, 146 N.E.2d 7.

       The record indicates that the closing hours of the Village liquor stores and taverns were regulated by municipal ordinance, though not by the ordinance in question here.


text:
    Pamela M. Ziarko et al., Plaintiffs-Appellees, v. John Ziarko, Defendant-Appellant.
    (No. 59736;
    First District (2nd Division)
    September 3, 1974.
    Allan G. Levine and Anthony Spina, both of Chicago, for appellant.
    Richard D. Price and Frederick J. Bertram, both of Chicago, for appellees.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

This is an appeal from an order establishing a constructive trust in certain life insurance benefits and pension funds. Plaintiffs are heirs at law of the deceased, Stanley Ziarko, who claimed in the court below that they were entitled to the proceeds of the insurance and pension funds, which had allegedly been wrongfully converted by their uncle, the brother of the deceased, John Ziarko, one of the defendants below. John Ziarko had been designated beneficiary of the insurance policies and pension funds in question. The trial court, sitting without a jury, entered judgment for plaintiffs, and this appeal follows.

The amended complaint to declare a trust and for an accounting alleged, in pertinent part, that plaintiffs were the children and heirs at law of the deceased, who died intestate on January 31, 1971; that plaintiffs had lived with and had been supported by the deceased, who had been employed as a bus driver for approximately 25 years by the Chicago Transit Authority (hereinafter CTA); that, upon the the death of their father, certain benefits under a retirement plan of the CTA, accrued salary, and certain life insurance benefits were to accrue to the family of the deceased; that, in 1963, the deceased and plaintiffs’ mother, Dolores Ziarko Valenta, had been divorced; and that the decree of divorce provided, among other things, that: 1) plaintiffs’ mother was to maintain custody of plaintiffs, who were minor children at the time; 2) Stanley Ziarko was to provide school tuition, books, and uniforms for plaintiffs, pay all of their medical and dental expenses, and continue in full force and effect certain fife insurance policies written on each of the lives of the plaintiffs; and 3) Stanley Ziarko was to maintain in full force and effect life insurance in the amount of $1,600 written on his own life, under which insurance plaintiffs were to be named primary beneficiaries.

The amended complaint further alleged that John Ziarko (hereinafter defendant) was a successful businessman, that Stanley Ziarko was unacquainted with business matters, and, in such matters, placed implicit confidence and trust in the defendant; that, based upon such trust and confidence, Stanley placed the defendant’s name, as beneficiary, upon all insurance policies covering his life and those of the plaintiffs, as well as upon documents seeming Stanley’s pension and retirement funds; that Stanley designated the defendant as beneficiary based upon his confidence that defendant, upon Stanley’s death, would hold said funds and proceeds in trust for the use and benefit of plaintiffs and would distribute same to plaintiffs; that their father informed plaintiffs, before his death, that when he died, defendant would collect for them all monies due upon such insurance, pension funds, and the retirement plan and that defendant had promised them further that he would turn over said proceeds to plaintiffs; and that their father informed them that, because plaintiffs were minors, an adult had to be named as beneficiary of said proceeds, but that defendant could be trusted to turn over all of the money to them.

Continuing, plaintiffs further alleged that, subsequent to their father’s death, defendant and his wife, Lillian, procured the above-described insurance policies and proceeded to collect certain life insurance benefits and the pension and retirement funds, all of which totalled $14,467.-95; that, thereafter, they were informed by defendant that plaintiffs had no interest in any of the proceeds, that defendant was the only person entitled to the proceeds, as the named beneficiary, and that plaintiffs would receive none of the proceeds; and that defendant and Lillian Ziarko had knowingly and wilfully violated the trust and confidence placed in them by their father, Stanley Ziarko.

As part of their prayer for relief in the court below, plaintiffs requested that the court order an accounting to the plaintiffs by the defendant and Lillian Ziarko for all of the proceeds described and that the court decree the existence of a trust for the use and benefit of plaintiffs in said proceeds.

The answer filed in response to plaintiffs’ amended complaint may be characterized, for our purposes here, as a general denial of the material allegations contained therein.

The testimony and evidence presented below established, in pertinent part, that plaintiffs are the children of Stanley Ziarko, who died intestate on January 31, 1971, at the age of 50. On December 20, 1963, Stanley was divorced from Dolores Ziarko Valenta, plaintiffs’ mother, and Dolores was awarded sole custody of plaintiffs, who were minor children at the time. Sometime in 1962, Stanley, alone, moved into a basement apartment in a building owned by his brother, the defendant, where he lived rent-free for a period of from 3 to 4 years; during that period, defendant provided Stanley with food and did not charge him for the use of utilities in the apartment.

As to the CTA retirement plan, the record indicates that on April 20, 1950, Stanley designated his mother as the primary beneficiary and his father as the secondary beneficiary and that that designation was changed by Stanley on December 2, 1964, whereupon the defendant was named primary beneficiary and the three children (Pamela, Nancy and Joseph) secondary beneficiaries, share and share alike. On the date of the change, the ages of the children of Stanley were: Pamela 12, Nancy 9 and Joseph 8.

Regarding the CTA employees group policy with Travelers Insurance Company and the policy upon the life of Stanley with Prudential Insurance Company of America, the record does not clearly indicate the date of the beneficiary change. However, the record is abundantly clear that the matter was tried on the theory that a beneficiary change had been made, designated the defendant as the primary beneficiary, and that the defendant collected and retained the proceeds upon the death of Stanley.

In 1967, Stanley took a different apartment in defendant’s building and began paying defendant a monthly rental of $70. Tire same year, Stanley’s oldest daughter, Pamela, a plaintiff herein, came to live with her father; at the time she was 15 or 16 years of age. Stanley’s youngest child, Joseph, a plaintiff herein (then age 13), began living with his father sometime during 1969, and, approximately 2 or 3 months prior to her father’s death, Stanley’s other daughter, Nancy (then a minor), also a plaintiff herein, took up residence with her father.

Pamela testified, in part, that her father had been capable of handling his own business affairs and that defendant had controlled none of her father’s funds. She stated that her father handled his own checking account, maintained a bank account for several years prior to his death, and owned bonds, some of them in his own name, others in his and Pamela’s names. Pamela shared some of the household expenses while living with her father, and she testified that, prior to his death, her father paid all debts for which he was responsible to defendant.

Over objection, Pamela further testified regarding a conversation which allegedly took place on or about December 22, 1970; present during the conversation were her father, herself, Nancy Ziarko, and Joseph Ziarko. Pamela testified that, at that time, her father had told the children that “if anything should ever happen to him [Stanley] that he’s [defendant] got plenty of money and my uncle John [defendant] should take care of us and we wouldn’t have to worry about it.” Continuing, she testified further that her father said on the occasion in question that “Your uncle will take care of you, I put the policy in his name because you aren’t old enough to be on them.”

Nancy Ziarko also testified with respect to the December, 1970, conversation, and stated that her father had said that “he [Stanley] had insurance policies and pension and everything from C.T.A. signed over to my Uncle John [defendant] because Pam wasn’t twenty-one, and he felt that she couldn’t take care of herself and two kids younger than her and tuitions. He said that my uncle would take care of us and make sure our tuition was paid and everything else.”

Joseph Ziarko also testified regarding the December, 1970 conversation, and he stated that his father had said that the insurance would “cover us and we get the money for the insurance if he died * *

Pamela characterized her relationship with defendant as a “short hello,” and she stated that plaintiffs and defendant only visited on certain holidays and only when their father was present. She stated that she never conversed with defendant prior to her father’s death concerning the fact that defendant was the beneficiary of her father’s insurance, and, further, that she and her father had physical possession of the insurance policies until after her father’s death.

Pamela further testified that she had a conversation with Lillian Ziarko, in the presence of her sister, Nancy, just after her father’s death, in which Lillian allegedly assured her that defendant would give her the insurance proceeds. Nancy Ziarko also testified to the same conversation, stating that Lillian had said that defendant would “make sure he takes care of you children” with the proceeds of the insurance. Lillian Ziarko, when called to testify, denied the substance of this conversation as characterized by Pamela and Nancy, stating that she, Pamela, and Nancy had spoken of other matters related to Stanley Ziarko’s death.

Defendant, testifying on his own behalf, denied that he had any knowledge of the insurance policies and retirement benefits in question prior to Stanley Ziarko’s death. He stated that the first time he learned about the circumstances was at the funeral chapel after Stanley had died. Lillian Ziarko, in her testimony, stated that defendant first learned of the insurance on the first night of Stanley’s wake.

Anna Golding, a CTA employee, identified the defendant and his wife as the persons who had appeared at the CTA offices on March 8, 1971, to collect an insurance check from the CTA, and testified that she had presented the defendant with a check for $6,000 on that date. She stated that, at the time of the transaction, defendant, to the best of her recollection, had said that the “money will be left in trust for the children.” Defendant denied, in his testimony, the substance of the March 8, 1971, conversation as characterized by Anna Golding and further denied that his wife had accompanied him to the CTA offices on that date. Lillian Ziarko testified that she was home the entire day on March 8, 1971.

There was also testimony in the court below by various witnesses that Stanley Ziarko had borrowed money from defendant over a period of many years. Lillian Ziarko, testifying from records she had kept, stated that the total of the loans made by defendant to Stanley was approximately $1,800. Defendant testified that none of the money had been repaid.

The trial court, after having rendered its findings, entered judgment for plaintiffs, and against defendant, for the sum of $14,467.95, plus costs; ordered that defendant render an accounting to plaintiffs for the use of said sum and for any interest received thereon by defendant; dismissed as a defendant the CTA, without prejudice to the rights of either plaintiffs or the CTA; and found the issues with respect to Lillian Ziarko in her favor and against plaintiffs.

The issues presented on appeal are:

1) whether the trial court erred in admitting plaintiffs’ testimony concerning alleged conversations between plaintiffs and their father before his death;
2) whether plaintiffs failed to establish the presence of the elements necessary to support a constructive trust; and
3) whether, assuming that all evidence offered by plaintiffs was properly received, the decree entered below was contrary to the manifest weight of the evidence.

I.

Defendant urges that plaintiffs’ testimony in the court below regarding the conversations with their father, Stanley, prior to his death, should have been excluded (a) as hearsay evidence or (b) as violative of the “Dead Man’s Act” (Ill. Rev. Stat. 1971, ch. 51, par. 2); defendant further argues (c) that if the testimony was admissible, it should have been afforded no weight. Defendant asserts that these errors were critical, as plaintiffs’ entire case in support of the existence of a confidential relationship between Stanley and John was based upon the testimony.

A.

The “Dead Man’s Act,” section 2 of the Evidence Act (Ill. Rev. Stat. 1971, ch. 51, par. 2) reads, in pertinent part:

“No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the ” ” * executor, administrator, heirs, legatee or devisee of any deceased person, * *

Defendant argues that he, as a designated “beneficiary,” occupies a position not unlike that of a “legatee” within the meaning of the statute quoted. He argues that the beneficiary of insurance and pension death benefit proceeds, the payment of which is conditioned upon death, should occupy no different a position than one named in a deceased persons will. We disagree, and we hold that the court below committed no error in receiving plaintiffs’ testimony, as defendant did not defend as the executor, administrator, heir, legatee or devisee of any deceased person. He defended only as the beneficiary of certain insurance policies and pension and retirement funds. Anderson v. Lybeck (1958), 15 Ill. 2d 227, 233, 154 N.E.2d 259; Clemens v. Sandee Manufacturing Co. (1st Dist. 1969), 114 Ill.App.2d 322, 336-337, 252 N.E.2d 897.

B.

Defendant next urges that the trial court erred in allowing plaintiffs’ testimony concerning conversations they had had with their father on December 22, 1970, outside the presence of defendant; it is defendant’s contention that this testimony was hearsay evidence and, as such, should have been excluded. Conversations such as those which are claimed to have been erroneously admitted in this case have been considered competent in a long line of Illinois cases involving constructive bust situations. Kauzlarich u. Landrum (3rd Dist. 1971), 2 Ill.App.3d 591, 274 N.E.2d 915; Kester v. Crilly (1950), 405 Ill. 425, 91 N.E.2d 419; and Sharp v. Bradshaw (1937), 367 Ill. 526, 12 N.E.2d 1, aiming them.

While under other circumstances such testimony might be inadmissible as hearsay evidence, owing to the peculiar nature of cases involving the imposition of constructive trusts, our courts have seen fit to admit the testimony and allow the court before whom it is presented to consider the credibility of the witness testifying to the conversation and to weigh the value of its contents. We hold that the trial court committed no error in admitting the plaintiffs’ testimony. The testimony’s weight, and the credibility of the plaintiffs in so testifying, were clearly matters for the trial court.

C.

Defendant also suggests that even if legally admissible, plaintiffs’ testimony should have been given no weight. As we have stated, we find the testimony legally admissible, and the question as to the weight it should have been given is fully discussed in the remaining sections of this opinion.

II.

Defendant contends that plaintiffs failed to establish the presence of the elements necessary to support a constructive trust. Our courts have often addressed themselves to questions concerning the nature and definition of a constructive trust. This court, in Kauzlarich v. Landrum, supra, stated at page 595:

“Constructive trusts are divided into two general classes, one being where actual fraud is present and the other where the existence of the confidential relation and subsequent abuse thereof is present. The mere existence of a confidential relationship prohibits the dominant party from seeking any selfish benefit during the course of the relationship and affords a basis for fastening a constructive trust upon property so acquired. Where a confidential relation exists it is presumed that the transaction resulted from influence and superiority and the burden rests upon the grantee or devisee to show that it was fair, equitable and just. Kester v. Crilly, 405 Ill. 425; Wagner v. Clauson, 399 Ill. 403; Schueler v. Blomstrand, 394 Ill. 600. See also Scott on Trusts, Third Edition, 1967, Volume I, Section 55.1, Pages 419 et seq.”

Professor Bogert, in his treatise on the law of trusts and trustees, states:

“In declaring a relation technically ‘confidential,’ the courts lay stress on various factors. There is always, of course, the actual placing of trust and confidence on at least one occasion, and often such reliance has been exhibited through a series of months or years. In some cases this imposition of confidence seems to be the sole foundation for the finding of a confidential relation. But generally there is great disparity of position, in addition to the actual intrustment and this disparity is treated as highly important or as absolutely essential.” The Law of Trusts and Trustees § 482, at 136-138 (2d ed. 1960).

In Kapraun v. Kapraun (1957), 12 Ill.2d 348, 146 N.E.2d 7, our supreme court, at pages 352-353 of its opinion, stated:

“It is well settled that where a fiduciary relationship does not exist as a matter of law, but the parties seek to establish a constractive trust by parol evidence, the burden of proof is on the plaintiffs in the first instance to prove the existence of the fiduciary relationship by proof so clear, convincing, strong, unequivocal and unmistakable as to lead to but one conclusion. (Kolze v. Fordtran, 412 Ill. 461; Compton v. Compton, 414 Ill. 149; Maley v. Burns, 6 Ill.2d 11.) A fiduciary or confidential relationship, as used in a case of this nature, is a very broad one and the factors to be taken into consideration are difficult to define precisely. The relationship may exist as a matter of law or it may be moral, social, domestic or purely personal. We have said that some of the factors to be taken into consideration are degree of kinship, disparity in age, health and mental condition, the relative education and business experience of the parties, and the like. Kester v. Crilly, 405 Ill. 425; Stephenson v. Kulichek, 410 Ill. 139.”

It is also clear that a close familial relationship, such as that of brother and sister, does not, of itself, establish a fiduciary or confidential relationship. Bilyeu v. Plant (5th Dist. 1966), 75 Ill.App.2d 109, 120, 220 N.E.2d 513.

Set against this backdrop of principles, we find, based upon a thorough review of the record, that plaintiffs established in the court below the elements necessary to support the imposition of a constructive trust upon the insurance proceeds, pension benefits, and retirement funds of their father, which were converted by defendant to his own use.

The trial court was in a position to observe the demeanor of the various witnesses and to determine the weight to be accorded their testimony, as well as their credibility. Credibility of witnesses, particularly in circumstances wherein the existence of a confidential relationship is sought to be shown, looms large among the factors which may lead a court to find whether such a relationship did, in fact, exist.

It is apparent from the record presented that at several junctures the testimony of defendant and his wife, Lillian, was directly at odds with that of the plaintiffs herein; at times, in fact, defendant’s statements could have been construed by the trial court as simply incredible. Both plaintiffs and Lillian testified regarding the meeting they had just after Stanley Ziarko died, and the versions of what was said and what took place were wholly in conflict; thus, the respective witnesses’ credibility became acutely important to the trial judge.

Further, there were testimonial conflicts as to the time at which defendant learned that he had been named beneficiary of the insurance and the pension and retirement funds: Lillian testified that his knowledge came on the first night of Stanley’s wake; defendant claimed that he learned of the matter at Stanley’s funeral, though he did not divulge the source of the information; Josephine Brash testified that when she mentioned to defendant that she had heard he had been named beneficiary, defendant indicated that he already knew of the fact. Anna Golding, a disinterested witness, testified as to what defendant stated to her on March 8, 1971, concerning the plaintiffs’ welfare; defendant not only denied that he had a conversation with Anna Golding, but also denied that he had been accompanied by his wife on the day in question, although Anna Golding identified her in court as having been at the CTA offices on that day.

From the evidence presented, we have no doubt that the trial court found that Stanley Ziarko had placed trust and confidence in his brother, the defendant, on several occasions, specifically at those times at which Stanley arranged to change the beneficiary designations to name his brother as beneficiary on the various insurance policies and retirement and pension fund documents. It is evident from the record that these changes were undertaken to insure that plaintiffs, then of tender age, were to be taken care of, to be provided for, with the proceeds which were to flow from the several sources upon the death of their father. It is also apparent that Stanley, based upon the trust and confidence which he reposed in his brother, evidenced by the close contact between the two, made the changes in light of the seemingly trustworthy, stated intention of the defendant that he would provide for the children upon his brother’s death.

In fact, the record is clear that Stanley had not forgotten his minor children. This is evident from his action on December 2, 1964, when he changed the beneficiary under the CTA retirement plan and named John as the primary beneficiary and his three minor children as the secondary beneficiaries.

We find the confidential relationship established below to have been moral and personal in character. In arriving at that characterization, we have considered all of the testimony, especially that with respect to the relative disparity of business acumen between the two men, as well as testimony relating to their social and familial relationship.

The findings rendered by the trial court are unequivocal, reflecting the court’s feeling that the evidence presented by plaintiffs was clear, strong, and convincing; it was evidence which could lead to but one conclusion. Moreover, in reviewing a case of this nature tried without a jury, this court is not in a position to disturb the findings of the trial court unless such findings are manifestly erroneous (Bilyeu v. Plant, supra, at page 119). We certainly cannot say, judging from the record before us, that the trial court’s findings reflect any manifest error. .

III.

Finally, defendant argues that the decree entered by the trial court was contrary to the manifest weight of the evidence presented. For the reasons previously set forth in section II, we reject this argument as well, following the rule that we will not disturb findings of a trial court unless they are manifestly erroneous. Bilyeu v. Plant, supra.

For these reasons, then, we affirm the decree entered by the circuit court of Cook County.

Judgment affirmed. .

STAMOS and LEIGHTON, JJ., concur.

       Plaintiffs joined as defendants below the Chicago Transit Authority and Lillian Ziarko, the wife of John Ziarko, the anpellant herein. As part of its decree, the trial court dismissed the CTA and found the issues in favor of Lillian Ziarko and against the plaintiffs. Consequently, the CTA and Lillian Ziarko are not parties to this appeal.

       These policies are not among those contested in this litigation and are not those upon which defendant collected proceeds.

       It is to be noted that in the original answer filed in the court below (verified by John and Lillian), defendant, who was joined at that point as party defendant with Lillian Ziarko and the CTA, admitted that Stanley Ziarko had trust and confidence in defendant, because defendant had taken Stanley into his home when all others had abandoned him, and further stated that defendant had been designated beneficiary on the life insurance policies as repayment for the many kindnesses defendant had extended to Stanley. Defendant further denied that any trust had been imposed upon him by Stanley Ziarko and that any promise had been made by defendant to turn over the proceeds of the policies to plaintiffs.

       It is to be noted that the “Dead Man’s Act” was completely rewritten, effective October 1, 1973, with respect to all proceedings filed on and after that date (Ill. Rev. Stat. 1973, ch. 51, par. 2(4)(d)).

       This can be illustrated, for example, by defendant’s testimony regarding when he first learned he had been designated as a beneficiary; when he had acquired the Prudential insurance policy; and whether he had had conversations at the office of .the CTA with Anna Golding.


text:
    Renee Kay, n/k/a Renee Marsh, Plaintiff-Appellee, v. Gerald Kay, Defendant-Appellant.
    (Nos. 54064, 56419 cons.;
    First District (3rd Division)
    September 5, 1974.

      Rehearing denied October 15, 1974.

      Gerald Kay, pro se.

    No brief for appellee.


text:
    Donald Shoemaker et al., Plaintiffs-Appellees, v. M. Walter et al., Defendants—(Marvin Walter, Defendant-Appellant.)
    (Nos. 57291, 57937 cons.;
    First District (3rd Division)
    September 5, 1974.
    Adamowsld, Newey & Riley, of Chicago, for appellant.
    Gomberg, Missner and Schaps, of Chicago (John M. Murtaugh, of counsel), for appellees.


text:
    All State Lumber Company, Plaintiff-Appellee, v. Edward Delgado, Defendant-Appellant.
    (No 59939;
    First District (1st Division)
    August 19, 1974.
    Elaine K. Hyman, of DePaul Law Clinic, of Chicago, for appellant.
    No brief for appellee.


text:
    La Salle National Bank, Trustee, Plaintiff-Appellee, v. The Village of Western Springs, Defendant-Appellant.
    (No. 59526;
    First District (2nd Division)
    August 20, 1974.

      Lord, Bissell & Brook, of Chicago (Hugh C. Griffin, of counsel), for appellant.
    Sidley & Austin, of Chicago (Thomas H. Morsch and Ronald V. Hirst, of counsel), for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

La Salle National Bank (hereinafter plaintiff) petitioned the board of zoning appeals of the Village of Western Springs, seeking to have certain unimproved property reclassified from R-2 Residential, which limited the use of the property to single-family dwellings, among other uses, to R-3 Residential, which would allow for the construction of two, two-family or “duplex” residences,, one on each of the two lots which comprised the subject property. By a four-to-three vote, the board denied the petition, and, subsequently, the board of trustees of the Village approved the recommendation of the zoning board.

Thereafter, plaintiff filed suit in the court below, seeking a declaration that the R-2 Residential classification was arbitrary and discriminatory, and, hence, invalid and unconstitutional, as it applied to the subject property; further, plaintiff prayed that the Village be enjoined from interfering with such use of the subject property as would be permitted under the R-3 Residential classification. After having made its findings subsequent to a hearing on the matter, the court below entered an order holding the R-2 zoning of plaintiff’s property to be “arbitrary and discriminatory and, hence, invalid and unconstitutional as applied to plaintiffs proposed use” and further enjoined the Village from interfering with plaintiffs proposed use of the property “in full compliance with all requirements set forth for R-3 Residential Districts as defined by the Zoning Ordinance of the Village of Western Springs.” The Village appeals.

The Village of Western Springs is located in suburban Cook County southwest of Chicago. The Burlington Northern Railroad tracks bisect the Village at a southwesterly-northeasterly angle.

In 1948, the zoning ordinance adopted by the Village provided for a staggered, R-3 zoning classification on the south side of Burlington Street, which paralleled' the Burlington Railroad right-of-way. This R-3 classification had a north-south depth of approximately 140 feet and extended westerly from the eastern Village boundary for five blocks. The R-3 classification acted as a buffer zone between the railroad right-of-way and the R-2 zoning classification which extended southward to the Village limits. The record indicates that the Village maintained this identical R-3 staggered zoning area to the date of the instant litigation.

The subject property consists of two adjoining vacant lots, each with 50 feet frontages and depths of 213 feet, approximately 140 feet south of Burlington Street, located on the east side of Howard Avenue, a north-south street. Since 1948, the property has been zoned R-2.

Plaintiff acquired legal title to the property for approximately $3,900 in 1954. At the time of tire hearing in the court below, the beneficial interests in the property were as follows: 25% was owned by G. Grant Dixon, Jr., who had acquired his interest from his father, who died in 1958; 25% was owned by Robert Dixon, the brother of G. Grant Dixon, Jr.; and the remainder was owned by Charles N. Hodge. Plaintiff made no effort to sell the property under the R-2 zoning prior to seeking the instant rezoning.

The property immediately adjacent to the subject property to the' north, continuing northward to Burlington Street, is zoned R-3 and improved with three, two-family dwellings, one on each of the three lots. The property immediately adjacent to plaintiffs on the south is zoned R-2 and is improved with single-family residences, located on lots of approximately the same dimensions as those comprising the subject property. On the west side of Howard Avenue, across the street from the plaintiffs property, there are three lots, zoned R-3 and improved with two-family dwellings, which are located immediately south of Burlington Street; thereafter, continuing south, the property is zoned R-2 and is. improved with single-family dwellings. Owing to the slant of the railroad! tracks, the three two-family dwellings on the west side of Howard Ave-nue do not directly align with the three two-family residences on plaintiff’s side of the street. Consequently, the southernmost two-family dwelling is directly across the avenue from the subject property.

The property abutting plaintiff’s to the east, facing Clausen Avenue, is part of a resubdivision. Three lots, which face Clausen Avenue, are zoned R-2; the northernmost is improved with a single-family residence; the remaining two are vacant; the southernmost and the south half of the middle lot of the three immediately abut plaintiff’s property. Immediately north of these three lots are three others, zoned R-3, which face on Burlington Street; the two westernmost lots are improved with two-family dwellings, and the remaining lot is vacant.

Plaintiff called three witnesses on its behalf: a realtor, a real estate consultant, and a real estate appraiser. Their testimony, in pertinent part, can be summarized as follows. They testified that the highest and best use of the subject property would be to develop it in the manner proposed by plaintiff, that is, with two, two-family residences, which were contemplated to be tenant-occupied; that tire proposed development would enhance the value of the surrounding property; that the construction of single-family residences on tire subject property would be inconsistent with the general character of the neighborhood; that the construction of either two single-family residence buildings (under the R-2 zoning) or the proposed development would not affect the fair market value of the surrounding property; that the proposed development would be entirely consistent with the character of the environment wherein it would be located; that it would be uneconomical to develop the subject property with two single-family rental units; and that the development proposed by plaintiff would neither essentially change the character of the neighborhood, nor adversely affect the health, wealth, or safety of the adjoining properties.

Plaintiff’s witnesses also acknowledged that there was a need and demand for single-family property, improved or vacant, in the Village; that the subject property was capable of single-family development; and that single-family development would not have an adverse economic effect on the surrounding properties or the general neighborhood.

The testimony of the Village’s expert witnesses, a city planning consultant and a real estate broker and appraiser, can be summarized, in pertinent part, as follows. Both testified that the highest and best use of tire subject property was single-family residential under the existing R-2 classification, and the reasons for their opinions were these: the property was part of an area characterized predominantly by single-family residences; it had all the characteristics of other properties in the immediate area which had been developed for single-family residences; the property was suitable for single-family use and development; the R-3 properties to the north, and those across tire street from the subject property, did not make the site less suitable for single-family development, because those properties acted as a buffer zone between the railroad and the single-family development to the south; that the property drew its character, not from the R-3 properties developed with two-family residences, but from the single-family residences in the area; the property could be sold or developed and marketed for single-family use at a fair return to the seller or developer; and there was a strong demand for single-family dwellings in the Village.

The Village’s experts further testified that there would be an adverse effect upon the existing single-family residences in the area should the property be developed for two-family homes, whereas the single-family homes would appreciate in value if the lots were developed for single-family use. Still further, they testified, inter alia, that two-family development of the property could be detrimental to the Village’s overall zoning plan for R-2 and R-3 classifications, in that the development could establish a precedent for further extension of R-3 areas into single-family neighborhoods.

Another witness, a nearby property owner, was called to testify for the Village. He testified, in pertinent part, that he was basically against the zoning change because he believed the addition of four tenant units with absentee ownership would alter the neighborhood’s basic character as single-family; and that such a development plan might affect the storm and sanitary conditions on the particular block.

So far as the evidence concerning property values, the plaintiff’s appraiser testified that the market value of the property under the R-2 classification was between $20,000 and $25,000, but that it would be worth $31,000 to $35,000 if zoned under the R-3 classification. Defendant’s appraiser testified that under the R-2 zoning, the property had a market value of between $24,000 and $30,000 and that under the R-3 classification the value would be $30,000 to $36,000.

After having heard the evidence recounted, the court below found, among other things, that the classification of the subject property as R-2 Residential imposed an undue economic hardship on plaintiff and had no reasonable relationship to the public health, safety, and welfare of the Village, insofar as the R-2 classification prohibited the construction thereon of the two-family dwellings proposed by plaintiff. The court’s order held that the R-2 Residential classification, as it applied to plaintiff’s proposed use of the subject property under the Village’s zoning ordinance, was arbitrary and discriminatory, and, hence, invalid and unconstitutional; that plaintiff’s proposed use of the subject property was reasonable and proper; and that the Village would be enjoined from interfering with plaintiffs use of the subject property for the construction thereon of one two-family dwelling on each of the two lots in full compliance with all requirements set forth in the R-3 zoning classification.

The sole issue on review is whether the court below erred in holding that the R-2 Residential classification, as it applied to plaintiffs proposed use of the property under the Village’s ordinance, was arbitrary and discriminatory, and, hence, invalid and unconstitutional.

I.

The Village urges on appeal that the evidence adduced below established that the single-family zoning of plaintiffs property was not arbitrary, unreasonable, or discriminatory.

The plaintiffs burden of proof in this type of case has been delineated by our supreme court in First National Bank v. County of Lake (1955), 7 Ill.2d 213, 130 N.E.2d 267, where the court stated that a presumption always obtains favoring the validity of a properly adopted zoning ordinance, and

“One assailing the validity of such an ordinance as arbitrary and unreasonable as applied to particular property must prove by clear and affirmative evidence that the ordinance constitutes arbitrary, capricious and unreasonable municipal action, that there is no permissible interpretation which justified its adoption or that it will not promote the safety and general welfare of the public. (People ex rel. Alco Deree Co. v. City of Chicago, 2 Ill.2d 350; Mundelein Estates, Inc. v. Village of Mundelein, 409 Ill. 291.)” (7 Ill.2d at 225.)

At page 226, the court went on to declare the applicable rule in the context of zoning cases:

“Where there is room for a legitimate difference of opinion concerning the reasonableness of an ordinance governing the use of private property or where such question of reasonableness is fairly debatable, the courts will not interfere with the legislative judgment. (Herzog Bldg. Corp. v. City of Des Plaines, 3 Ill.2d 206; Trust Co. of Chicago v. City of Chicago, 408 Ill. 91; Ehrlich v. Village of Wilmette, 361 Ill. 213; Forbes v. Hubbard, 348 Ill. 166.)”

To overcome the presumptive validity of the Village zoning ordinance, as applied to its property, plaintiff has the burden to show by clear and convincing evidence that, in restricting plaintiff from using the subject property as desired, the existing zoning classification will not promote the public safety or convenience and bears no reasonable basis in public welfare, thereby resulting in a monetary loss to plaintiff. See First National Bank v. County of Cook (1958), 15 Ill.2d 26, 31, 153 N.E.2d 545; First National Bank & Trust Co. v. City of Evanston (1st Dist. 1964), 53 Ill.App.2d 321, 325, 203 N.E.2d 6.

The general legal principles applicable to zoning cases have long been established, and we find no reason for repeating them here. As we said at page 75 of our opinion in Goeller v. City of Chicago (1st Dist. 1968), 103 Ill.App.2d 67, 243 N.E.2d 444:

“Each case must determine the applicability of these principles in balancing the factors of the character of the neighborhood, the use to which nearby property is put, the extent to which property values are diminished by the restrictions imposed by the ordinance, and the gain to the public compared with the hardship imposed on the complaining property owners against the presumption of the proper exercise of legislative discretion. See, e.g., LaSalle Nat. Bank of Chicago v. City of Chicago, 5 Ill.2d 344, 350-351, 125 N.E.2d 609 (1955); LaSalle Nat. Bank v. County of Cook, 12 Ill.2d 40, 46, 145 N.E.2d 65 (1957).”

We have given consideration to each of these factors as they relate to the circumstances of the case at bar, and we find that the order entered in the court below was erroneous.

It is clear from a thorough reading of the record presented that the zoning plan under which the subject property is zoned has been in force, virtually without change, since 1948. The Village plan reflects the intent of its drafters that the “staggered” R-3 zoning south of Burlington Street was to provide a relatively uniform buffer zone in the locale of the subject property, beyond which the R-2 classification, or single-family zoning, would continue uninterrupted.

The municipal body has the primary and basic responsibility to establish and draw the lines of demarcation between the zoning classifications and uses of property within its jurisdiction. This legislative discretion is not to be interfered with by the judiciary except where there is a clear showing of an abuse of discretion or where the legislative action is arbitrary, capricious, and unrelated to the public morals, safety and general welfare.

The “staggered buffer zone” technique, adopted by the Village in 1948 and maintained without change, was the manner used by the Village for establishing residential zoning districts pursuant to the exercise by the Village of its police power. Plaintiff has failed to demonstrate or provide any authority to establish that such type of zoning exceeds the authority of the Village. We hold that the staggered buffer zone technique is itself a proper application of legally accepted zoning principles which authorize the right of a municipality to set its own classifications. See Mutz v. Village of Villa Park (2nd Dist. 1967), 83 Ill.App.2d 1, 9, 226 N.E.2d 644; Menolascino v. Village of Franklin Park (1st Dist. 1969), 106 Ill.App.2d 472, 246 N.E.2d 122.

The next question is whether the Village zoning classification of R-2, based on the use of the staggered buffer zone technique, is valid as appfied to plaintiff’s property. While the experts for the respective parties differed in their opinions as to the highest and best use of the subject property, it is readily apparent that there was a need — indeed, a demand —for single-family property in the Village. Moreover, single-family development of the plaintiff’s property was not only feasible, but such development would be wholly compatible with, and would not have an adverse economic effect upon, the surrounding properties or the general neighborhood.

In arriving at our conclusion here, we have followed the rationale espoused in Graifman v. Village of Skokie (1st Dist. 1966), 70 Ill.App.2d 159, 217 N.E.2d 495, where we stated at page 172: “In sum, and at the most, the evidence here demonstrates a difference in opinion as to the highest and best use of the subject property, and in that case the legislative judgment of the City Council must be conclusive.” See also Whittingham v. Village of Downers Grove (2nd Dist. 1968), 101 Ill.App.2d 166, 173-174, 242 N.E.2d 460; and First National Bank v. County of Lake, supra, at page 226.

There is fittle doubt that the value of the subject property would be enhanced somewhat if the proposed uses, rather than those presently permitted, were allowed. However, that fact alone “would not be enough to warrant a court in finding the ordinance unconstitutional * * *. At best, the matter of lessened value brought about by application of the zoning restrictions is only one element to be considered.” (First National Bank v. County of Lake, supra, at page 227.) The evidence here is that, having paid $3,900 for the subject property, the plaintiff has not established any real economic hardship as the result of the existing R-2 classification.

Accordingly, absent a showing by clear and convincing evidence that the R-2 classification was unreasonable or arbitrary, the resolution of this issue rests with the ViUage, not the judiciary.

For these reasons, then, the judgment order and injunction writ of the circuit court of Cook County must be reversed.

Reversed.

HAYES, P. J., and LEIGHTON, J., concur,


author: Mr. JUSTICE BARRETT

text:
    Toro Petroleum Corporation, Plaintiff-Appellant, v. Harry B. Newell, Defendant—(Chicago Title and Trust Company, Defendant-Appellee.)
    (No. 57601;
    First District (5th Division)
    August 23, 1974.

      Rehearing denied September 23, 1974.

      Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellant.
    Concannon, Dillon, Snook & Morton, of Chicago (John B. Dillon, of counsel), for appellee.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

Plaintiff appeals from judgment entered against defendant Chicago Title and Trust Company (Chicago Title), alleging that the damages assessed by the trial court in the amount of $1,500 are patently inadequate. Chicago Title has cross-appealed, seeking reversal of the judgment and entry of judgment in its favor.

The case was tried on plaintiff’s four-count amended complaint. The first two counts were against Harry B. Newell, individually and doing business as Inland Credit Company. Plaintiff sought to void an escrow agreement on the grounds that Newell committed fraud in the execution of the agreement and had a pre-contract intent not to abide by his agreements with plaintiff. The other two counts were against defendant Chicago Title for breach of an escrowee’s fiduciary duty. Count III sought the return of the $20,000 escrow deposit. Count IV alleged wilful and wanton misconduct and sought recovery of attorney’s fees, court costs and additional damages based on inconvenience and embarrassments, travel and litigation expenses.

After further pleadings, motions, and trial, the court entered judgment in favor of plaintiff against Newell individually and doing business as Inland Credit Company. Compensatory damages were assessed at $20,000 plus interest and costs; exemplary damages were assessed at $10,000. Four days later the court found in favor of plaintiff and against Chicago Title on Count III assessing damages at $1,500 plus costs and found in favor of Chicago Title and against the plaintiff on Count IV.

Newell filed notices of appeal and Chicago Title cross-appealed, but Newell died while his appeal was pending. This court has dismissed Newell’s appeal.

I.

Before we reach the issue of damages raised by plaintiff, we must first decide the question raised on cross-appeal: whether the trial judge erred in finding that Chicago Title breached its fiduciary duty.

The issue centers around the use of a strict joint order escrow instructions form that Newell and a Mr. Strauss obtained from Chicago Title. The form is a single page; but, the upper portion of the form can be detached from the lower portion along a perforated line. The upper-portion of the form contains blank spaces for the escrow number, the person or office to which the matter is referred, and the date. The form states, in relevant part:

“The accompanying [Dollars and/or documents] are deposited with the Chicago Title and Trust Company to be delivered by it only upon the joint order of the undersigned or their respective legal representatives or assigns.
# # #
In no case shall the above mentioned deposits be surrendered except on an order signed by the parties hereto, their respective legal representatives or assigns, or in obedience of the process or order of a court as aforesaid.”

At the bottom of the upper portion, below the lines for signatures and addresses of the parties, there is printed “(Please see reverse side for suggestions with respect to the use of this form.).”

The lower or disbursement portion of the form has blank spaces for the escrow number and the date. It is addressed to Chicago Title and states, “You are hereby authorized and directed to dispose of the items deposited into the above numbered Escrow in the following manner: * * » ” There follow words and spaces designed to direct the payment of money or delivery of documents to designated persons. At the bottom of the lower part are two signature lines.

The “Suggestions With Respect To The Use Of This Escrow Form And The Routine For Processing The Escrow,” found on the reverse side of the form, contain the following:

“(4) The upper portion of the form should be detached and mailed or delivered to Chicago Title and Trust Company together with the check(s) and any document(s) described in the Escrow Instructions. The lower portion of the form should be retained by the parties to the Escrow.
(5) Upon receipt of the Escrow Instruction, * * * [t]he number assigned to the Escrow will also be given [to the parties]. The number should then be entered in the lower portion of the form retained by the parties to the Escrow.
(6) When the parties are ready to disburse the Escrow, they should fill in and sign the lower portion of the form and mail or deliver it to the office of Chicago Title and Trust Company to which the Escrow was referred.”

The parties in the instant case did not follow these directions. The undisputed evidence in the case is essentially as follows:

On August 13, 1970, Kevin O’Connor, plaintiff’s treasurer, and Charles Finnerty, plaintiff’s representative, came to Chicago from their office in Houston, Texas, to meet with Newell for the purpose of securing a commitment for a loan to plaintiff of $1,000,000. At the meeting an application for a loan of that amount was signed by O’Connor for plaintiff and by Newell doing business as Inland Credit Company. After examining the Chicago Title strict joint order escrow instructions forms and directing the language to be inserted on some of the blank lines, O’Connor signed on behalf of plaintiff both the lower and upper portions of the form. The escrow deposit was described as “TWX#910-881-2712 for $20,000.00 to the Chicago Title and Trust Company — by TORO PETROLEUM CORPORATION.” O’Connor testified that before signing he questioned the advisability of signing the lower portion before it had been completed. He was advised by Newell, however, that it was customary to sign both portions of the form, and that by signing the form at that time, O’Connor would avoid future travel to Chicago from Texas. Finnerty and O’Connor then returned to Texas.

On August 19, 1970, Finnerty, plaintiff’s representative, flew from Texas to Chicago to meet with Newell. He took with him an amendment to the loan application that plaintiff’s lawyers had prepared and a cashier’s check of the Bank of Texas payable to the order of Chicago Title in the amount of $20,000. The $20,000 was a “good faith” deposit toward the full commission that would be due Newell if he secured an appropriate loan for plaintiff. At the top of the check was typed, “Escrow deposit for Toro Petroleum Corp. & Inland Credit Co. per attached 8-10-70 amendment & supplement to application for loan.”

While in Chicago, Finnerty secured Newell’s signature on both the original and a copy of the amendment to the loan application and delivered to Newell the signed original of the amendment and the cashier’s check.

On August 20, 1970, Newell opened Strict Joint Order Escrow No. 328640 with Chicago Title by delivering the escrow instructions previously executed by the parties to it and depositing the cashier’s check for $20,000 with Chicago Title. Sherry Crumbaugh, an escrow clerk at Chicago Title, typed in the escrow number on both the upper and lower portions of the escrow instructions, the addresses of plaintiff and Newell under their signatures on the upper portion of the form and her name. Pursuant to Newell’s verbal directions she completed line 1 of the lower portion of the escrow instructions to read “Pay $20,000.00 to Inland Credit Company,” and added a signature line above which she typed “Inland Credit Company,” and below which she typed “By: A. B. Newell.” Shortly thereafter, while Newell was still in the office, she closed the escrow by issuing Chicago Title’s check in the amount of $20,000 payable to the order of Inland Credit Company and delivering it to Newell. She secured Newell’s signature, acknowledging receipt of the check, on the carbon copy of the check to Inland Credit Company.

Jerome Arendt, an escrow officer of Chicago Title, testified that he routinely approved payment of the $20,000 check, but had he been aware that the disbursement (lower) portion was typed in by Mrs. Crumbaugh, he probably would not have authorized the payout as he did.

Both parties agree, and the trial court found, that Newell defrauded plaintiff; i.e., he was not entitled to the $20,000 since he did not secure the loan as he had agreed to do.

Plaintiff claims that Chicago Title breached its fiduciary duty by opening and closing the escrow in the manner described above. According to plaintiff, defendant had warning of impropriety in connection with the escrow by many facts. These facts include that a bank check, rather than the Telex funds called for by the escrow instructions, was deposited and disbursed; that the payout instruction by Newell was oral and directed payment to the Inland Credit Co.; that Chicago Title neither saw nor inquired about the documents referred to in the legend on the check that was deposited; and that the escrow was opened and closed in less than 1 hour.

Chicago Title looks at the issue from a contractual point of view. It claims that the contract between itself and plaintiff was contained entirely in the upper portion of the escrow instructions, and that its sole obligation under that contract was to deliver the escrow deposit only "upon the joint order of the undersigned or their legal representatives and assigns.” Claiming that it had secured the signatures of Newell and plaintiff, it denies liability. However, the record is clear that the signature of Newell had not been secured on the authorization.

The relationship of escrowee to depositor has been characterized in various ways. The escrowee has been described as a “trustee” of both the party making the deposit and the party for whose benefit it is made. (Stark v. Chicago Title & Trust Co., 316 Ill.App. 353, 45 N.E.2d 81.) The escrow instructions in the instant case are analogous to the trust agreement. Like a trustee, the escrowee owes a fiduciary duty to act only according to the terms of the escrow instructions. The instructions, prepared and distributed for public use by Chicago Title, by their explicit terms permitted the escrowee to act only upon the joint written direction of Newell and plaintiff. Newell’s signature does not appear on the disbursement portion of the escrow instructions. Rather it was secured on the carbon copy of Chicago Title’s check for $20,000 under the words “RECEIVED ORIGINAL OF THIS FOR DELIVERY TO THE PAYEE.” The check also bore the statement “payment in full as directed.” Since the order directing the disbursement of the funds was never signed by Newell, the Chicago Title’s disbursement of plaintiff’s $20,000 was a breach of its fiduciary duty.

Alternatively, we may view the escrow instructions as a contract making Chicago Title, the escrowee, a special agent of plaintiff. As such, its powers are limited to the conditions of the deposit. (Ortman v. Kane, 389 Ill. 613, 60 N.E.2d 93.) Chicago Title maintains, and we assume arguendo, that the only condition needed to authorize disbursement of the deposit was the joint written direction of Newell and plaintiff. Since this condition was not met, Chicago Title exceeded its power under the escrow instructions.

Thus, under either theory the trial court was correct in holding Chicago Title liable for wrongfully disbursing the $20,000, In view of this, Chicago Title cannot be considered an “innocent third party,” as it would have us hold. The arguments in its brief that rely on law relating to determining which of two innocent parties must bear the loss occasioned by the wrongful acts of a third party are thus inapposite.

II.

Plaintiff’s appeal is concerned with the damages awarded by the trial court. It seeks a judgment of the entire amount of the escrow ($20,000), plus costs and attorney’s fees. In finding for plaintiff, but limiting recovery to $1,500, the trial court stated that a greater recovery “would offend the conscience of this Court.” Citing the broad powers that equity courts have historically held, the trial court balanced the breach of duty by Chicago Title against the “colossal negligence and stupidity” of plaintiff and reached the figure of $1,500.

Chicago Title seeks to justify the trial court’s decision by quoting the maxim, “Courts of Equity can and should shape remedies to achieve justice under particular facts and circumstances.” (In re Estate of Brown, 130 Ill.App.2d 514, 523, 264 N.E.2d 287.) This doctrine has been applied to authorize a court of equity to grant relief not sought in the pleadings where the specific relief sought could not be permitted but the evidence supported equitable relief in a manner that was faff to the parties. (In re Estate of Brown, 130 Ill.App.2d 514; Pope v. Speiser, 7 Ill.2d 231, 130 N.E.2d 507.) These circumstances are not present here. Furthermore, we need not cite authority for the proposition that although a court of equity is vested with great flexibility, its exercise of discretion is subject to review by this court.

There is no doubt that plaintiff was at best exceedingly careless in signing the disbursement portion of the escrow instructions in blank. Nevertheless, as we have concluded above, Chicago Title was bound to act according to the conditions stated in the upper portion. This it did not do. Its breach of fiduciary duty to plaintiff was not merely the failure to exercise great care and infer the possibility of Newell’s wrongdoing from the circumstances surrounding the opening and closing of the escrow. Rather, Chicago Title failed properly to fulfill its duty to plaintiff. Its act exceeded the agency granted to it and may also be considered a breach of trust. In either case, the wrongdoer is hable for the entire amount of the loss occasioned by his act. (Spalding v. Heideman, 96 Ill. App. 405; Piff v. Berresheim, 405 Ill. 617, 92 N.E.2d 113.) Thus, even though this matter was pleaded as a breach of an escrowee’s fiduciary duty, we believe the analogies to a breach of trust and breach of agency contract are so strong that under the circumstances the trial court should have allowed recovery of the entire $20,000 wrongfuUy disbursed by Chicago Title.

In addition to court costs, which were awarded by the trial court and which award we affirm, plaintiff also seeks in Count IV on allegation of wilful and wanton misconduct, the recovery of attorney’s fees, damages and expenses of bringing suit. Although we have held above that Chicago Title acted carelessly we cannot hold that it was guilty of wilful and wanton misconduct so as to warrant the assessment of what would be in the nature of punitive damages.

In addition, in the absence of statute or agreement, attorney’s fees and the ordinary expenses and burdens of litigation are not allowable. (House of Vision, Inc. v. Hiyane, 42 Ill.2d 45, 245 N.E.2d 468.) Plaintiff has failed to present to the court’s attention any statute authorizing attorney’s fees and litigation expenses in circumstances such as those in the instant case, and certainly there was no agreement.

Accordingly, we affirm the trial court as to Count IV of the amended complaint and reverse the court as to Count III and remand the cause to the trial corut with directions to enter judgment in favor of the plaintiff and against Chicago Title in the sum of $20,000 plus costs and interest at 6% per annum from February 22, 1972.

Affirmed in part; reversed and remanded in part with directions.

DRUCKER and LORENZ, JJ., concur.


text:
    Julius Mato, Plaintiff-Appellant, v. Donald Dann et al., Defendants-Appellees.
    (No. 58056;
    First District (5th Division)
    August 23, 1974.

      Modified upon denial of rehearing and supplemental opinion filed September 27, 1974.

      Burton I. Weinstein, of Chicago, for appellant.
    Tom L. Yates and Delbert T. Been, both of Chicago, for appellees.