author: Mr. JUSTICE DRUCKER

text:
    The Littlestone Company et al., Plaintiffs-Appellees, v. The County of Cook, Defendant-Appellant.
    (No. 57892;
    First District (5th Division)
    April 11, 1974.

      Bernard Carey, States Attorney, of Chicago (Michael H. Saken, Assistant State’s Attorney, of counsel), for appellant.
    John M. Daley and Jack M. Siegel, both of Chicago, for appellees.
    Zachary D. Ford, of Glenview (Frederic O. Floberg, Edward F. Ryan, and William Thomas Braithwaite, of counsel), for intervenor-defendantappellant Village of Glenview.
    Boodell, Sears, Sugrue, Giambalvo & Crowley, of Chicago, for intervenors-defendants-appellants George W. Drymalski and Cecil J. Drymalski.
    Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago, for intervenor-defendant-appellant Village of Northbrook.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

The plaintiffs, Littlestone Company, Julius Ostrom and Estelle H. Ostrom, commenced this suit against defendant, County of Cook, for a declaratory judgment to declare the Cook County zoning ordinance unconstitutional as it applied to their property and as it prevented their proposed special use for a planned development and for other relief as prayed. Julius and Estelle Ostrom were the owners of the subject property and Littlestone Company was the contract purchaser. The County answered the complaint, and after being granted leave to intervene, the Villages of Northbrook and Glenview, Allstate Insurance Company, Paul Walsh, Benjamin Harris, George W. Drymalski and Cecil J. Drymalski also answered. The circuit court after a bench trial declared the zoning ordinance to be unconstitutional as applied to the subject property insofar as it prevented the use of the plaintiffs’ property as prayed. The County was enjoined from enforcing its zoning ordinance and directed to issue necessary permits. The County,. Villages of Northbrook and Glen-view and George and Cecil Drymalski (collectively referred to as defendants) appeal.

Defendants contend: (I) the trial court erred in striking the valuation testimony of the County’s real estate appraiser; (2) the plaintiffs failed to sustain their burden of proving that the County acted arbitrarily and unreasonably in refusing to rezone the subject property to permit the plaintiffs’ proposed use; and (3) the trial court erred in refusing to permit counsel for the intervenor-defendants to cross-examine plaintiffs’ witnesses.

The subject property is a certain tract of land located on the northwest corner of the intersection of Landwehr Road and Willow Road in the unincorporated area of Northfield Township in Cook County. The property is L-shaped and consists of approximately 17.9 acres. It has frontage of 1,144 feet on the north side of Willow Road and frontage of 255 feet on the west side of Landwehr Road. On the corner of the subject property, at the intersection of Willow and Landwehr Roads, is a single-family residence owned by the plaintiffs, Julius and Estelle Ostrom. The remainder of the parcel is vacant.

The subject property lies along the north side of Willow Road and the west side of Landwehr Road, 500 feet east of the Tri-State Tollway. There is one vacant tract of land (Bernstein’s property) of approximately 38 acres on the west side of the subject property, which separates the subject property from the Tri-State Tollway. Bernstein’s property does not have access to Willow Road.

Immediately to the north of the eastern extremity of the subject property is an 11-acre tract owned by the intervenors Drymalski which is improved with one single-family home. To the immediate north of and touching the western portion of the subject property is the Landwehr Estates development which is a single-family residential development on half-acre lots. To the northwest is a single-family community known as Citation Lake Estates which has been in the process of development for the past 8 or 9 years. To the east and south of the subject property are a number of other single-family developments including the Stone-hedge subdivision, located west of Pfingsten Road on Willow, and the Willows East and Willows West single-family developments located southeast of the subject property. There are various single family homes directly east of the subject property on Landwehr Road. To the south of the subject property on the south side of Willow Road there are three single-family homes. The above described property is either zoned R-3 (minimum lot size of 20,000 square feet) or R-4 (single-family residential with a minimum lot size of 10,000 square feet).

The area to the west of the tollway on both sides of Willow Road has been zoned and developed primarily for office and research purposes. Included in this area is the Allstate Insurance Company and the A. C. Nielson office complex which have been classified for B-3 (General Business) purposes and he south of Willow Road between Sanders Road on the west and the tollway on the east. Fronting on the north side of Willow Road is the Culligan Water Softener Company on a substantial tract zoned for M-l (Restricted Manufacturing) purposes and abutting the tollway. North of CuIIigan is the headquarters of the Illinois Bell Telephone Company on a tract classified for B-4 purposes, also abutting the tollway. East of Sanders Road and adjacent to Illinois Bell Telephone Company are the Coach House Stables zoned for B-5 (General Commercial) and the Sunset View Farm which is a commercial nursery.

Willow Road is a major east-west arterial with a 50 m.p.h. speed limit. It is a four-lane divided facility with a volume of approximately 24,000 cars a day. The intersection of Willow and the Tri-State Tollway has been characterized as a half-clover-leaf: cars going north may exit east and west on Willow, but cars going south have no exits onto Willow, and cars traveling on Willow may enter the tollway going south but cannot enter the tollway going north. Landwehr Road is a north-south two-lane collector road with an average daily volume of 4,000 cars. The intersection of Willow and Landwehr Roads has recently been improved to provide operating channelized left-turn lanes for all four legs, and the intersection is signalized.

The Ostroms have entered into a contract to sell the tract to the Littlestone Company for a total purchase price of $220,000. The Ostroms purchased the subject property in February 1959 from the intervenordefendants, George and Cecil Drymalski, for $59,000. The subject property is classified in the R-3 single-family zoning district of Cook County in which the minimum lot size is 20,000 square feet.

The plaintiffs propose to improve the subject property with what is designated as a general service planned development, consisting of three five-story office buildings, a six-story motel, and a lake. Each of the office buildings will contain approximately 80,000 square feet. The hotel-motel will contain 201 rooms, parking for 1400 cars, and the lake will be slightly less than 2 acres. The office buildings are 62 feet high and the motel is approximately 59 feet high.

Between the subject property and the single family property to the north there is proposed to be erected a 20-foot berm 5 feet high. On top of the berm will be a 6-foot-high fence, and along the berm will be planted 6-inch trees. Two entrances will be provided to the development on Willow Road and one entrance on Landwehr Road. There will be lighting in the parking area of approximately 3 foot-candles per acre, which is typical of a shopping area. After 10 P.M. lighting in the parking area will be curtailed and consist only of security lighting.

The plaintiffs applied for a rezoning to B-4 general service district, with a special use for a planned development, to permit the construction of the proposed use as hereinabove described. While office uses are permitted under the B-3 classification, the hotel or motel would be permitted only under the B-4 classification. After public hearings, the Zoning Board of Appeals of the County recommended that the request be denied, and the Board of Commissioners concurred.

The testimony presented at trial was voluminous, and the experts conflicted on a number of points. The following is a summary of the testimony of the various witnesses.

Richard Barancik, an architect and an investor in the proposed development, testified as a witness for plaintiffs as follows: He characterized the natural boundaries of the area as Landwehr Road on the east and Sanders Road on the west. He believed the proposed development is a needed use because of the character of the neighbors to the west, across the tollway. The motel and office buildings will complement each other; the motel will be open all night. The character of the land to the east, north and south is strictly single-family residential. There is single-family building construction going on in Citation Lakes Estates with the value of these homes being approximately $60,000 and up. He admitted that the architectural design of the proposed development is not residential in character. The project would have no adverse effect upon the surrounding single-family residences, and yet he noted that Drymalski’s property will depreciate somewhat. The people to the north would see very little of the buildings.

Rolf C. Campbell, a city planning and zoning consultant, testified as a witness for plaintiffs as follows: The Tri-State tollway and its interchange with Willow Road establish the character for the four quadrants, all carrying office research characteristics. The single-family developments to the north, east and south have minimal effect on the character of the subject property, although the trend of development within a 1-mile radius east of the tollway is primarily residential, and most of the building in Citation Lakes Estates has occurred in the last 5 years.

He felt the highest and best use of the subject property would be for office research with supporting facilities, i.e., a motel. This would give the school district a substantial base and would give the owners the highest return on their investment. He believed there is a need for the office buildings and motel although he personally made no studies of this. R-3 and R-4 zoning as not suitable because orderly single-family development is not possible although single-family homes can be physically built on the site. R-5, R-6 and B-l are suitable uses for the property but are not the highest and best use. A B-2 zoning classification is bad because of access problems; B-3 is logical, but he felt R-4 is the highest and best use since a motel is not allowed under a B-3 classification.

There are many situations where office research is located next to, adjacent or across the street from single-family homes. The proposed project will have no adverse effect on orderly development. There will be some minimal adverse effect on the homes to the north. There will be no effect on properties east of Landwehr Road. There will be a nominal effect on Drymalski’s property. Bernstein’s property should be rezoned and so should property to the south of Willow Road.

Major arteries like the tollway. are not good zoning dividers. They are means that provide the service to a place where you get on and off an interchange. It does not divide properties on either side of them but ties them together as a service facility.

F. Gregory Opelka, a professional appraiser of real property, testified as a witness for plaintiffs: The area is characterized as very dynamic and rapidly growing. The subject property gets its character from uses west of the tollway. The proposed development represents the highest and best use for the subject property due to the general activity of the area, road traffic, noise, an increase in traffic from the tollway, the intersection with its accompanying stop lights and the redevelopment of single-family homes in the area suggesting a need for jobs and shopping. The present classification as well as the intervening classifications are unsuitable for the subject property. The R-3, R-4, R-5 and R-6 classifications are undesirable because of traffic and car pollution, and the B-l and B-2 classifications are unsuitable. The motel is a complementing use with the modern office facilities.

He valued the property under R-3 as being worth $225,000 under R-4, at approximately $10,000 to $20,000 per acre, and with the development as being worth $40,000 per acre. He valued the homes in Citation Lakes Estates between $75,000 and $125,000 and the homes in Landwehr Estates from $55,000 to $70,000. The project would be compatible with Drymalski’s property and Citation Lakes Estates. He found that there would be very little or no effect on any of the single-family homes in the surrounding area. Traffic from the development would not be introduced into the surrounding housing developments. He did admit that the detrimental effects from traffic would be less under R-4 than under a B-4 classification.

Neil Kennig, a traffic engineer, testified as a witness for plaintiffs: He made an analysis of the traffic impact of the development. The present thoroughfares adjacent to the subject site would be adequate for the traffic that would be generated by the proposed development. He found a more-than-adequate number of gaps for cars turning into and out of the complex. Also, there would be no adverse effect on Willow or Landwehr Roads.

George F. Heck, a water engineer, testified as a witness for plaintiffs: The wells proposed are quite adequate to serve the project’s needs. Further, the recommendations he has made to supply water for the sanitary sewer.and storm water retention facilities together with the fire-fighting design are adequate and capable of servicing this development.

Cecil Drymalski, an intervenor-defendant, testified as a witness for defendants: With her husband, they originally owned the subject property which they sold to the Ostroms in 1959 for $59,000. She objects to the project because of the noise and traffic which will be introduced into the area. When they bought their property, also in 1959, the tollway was not built, Willow Road was narrower, as was Landwehr Road, and the traffic signals had not been put in.

Leo J. Wilkie, a transportation engineer, testified as a witness for defendants: He also made a study of tire traffic impact of the proposed development, including volume and gap counts. He found that Willow Road at the farthest westerly entrance to the subject site has a mountable median, thus allowing left-turn movements out of and into the site, where only right-turn movements are proposed. From this gap study he concluded there would not be enough gaps to accommodate out-going and in-coming traffic. Thus, traffic on Willow Road will be dangerous with backups leading beyond the exits and entrances to the tollway. The effect of insufficient gaps will be to have more cars exit from Landwehr Road, which in turn will hold up Willow Road traffic. He found plaintiffs’ experts’ traffic estimates and figures to be about 20% low. He noted a similar backup occurrence now exists on Sanders Road, west of the tollway. If the entrances were signalized, a beneficial change could be effected.

Thompson A. Dyke, a city planning consultant, testified as a witness for defendants: The subject property takes its character from the land uses immediately adjacent to it. For the most part these are single-family uses. The trend of development is reflected in the Citation Lakes Estates, Landwehr Estates, Willows East and Willows West and the subdivisions east of the subject property. He found an R-4 classification as the highest and best use for the subject property and that a subdivision similar to these other subdivisions could be developed on the site.

The proposed development is not suitable for the subject property. It would cut off the residential pattern that has been established in this area bounded by Willow Road, Landwehr Road, the Tri-State Toll way, and Techny Road, on the north. The development would also cut off local street patterns. In terms of intensity of use, the development is drastically different from existing uses which are already adjacent to the subject property. Finally, the development will radically affect the character of the vacant land in the surrounding area, including Bernstein’s property.

In a study of the area he found no need for the proposed uses at this location. The tollway forms a natural barrier between land uses; a study of similar half-clover-leaf interchanges shows development patterns with a separation of land uses. He did note that if a full interchange existed, the proposed development would be a sensible use of the subject property.

Ralph Martin, a real estate appraiser, testified as a witness for defendants: He made a study of the value of homes in the surrounding area and found the homes in Landwehr Estates range between $70,000 and $90,000; the homes in Citation Lakes Estates range between $80,000 and $110,000; the homes north of Drymalski’s property are approximately $75,000; the homes east of Landwehr Road range between $50,000 and $75,000; and in the Willows developments between $50,000 and $75,000. He, also valued Drymalski’s property at about $250,000. The value of the subject property under R-3 would be $450,000, under R-4 would be $480,000 and under B-4 would be $690,000.

The subject property is suitable for the purpose for which it is now zoned. It takes its character from the residential developments to the north, east and southeast. Planning indicates continued subdivision development. Landwehr Estates is immediately north of the subject property and could be extended into the subject property. This would be the highest and best use, especially because of the predominance of single-family residences being built in the area, the continuous subdividing of vacant parcels which are east of the tollway, and the demand for single-family homes in the area. The subject property does not take its character from the commercial development to the west.

The proposed development would be detrimental to the surrounding residential use. The depreciation that would result from the development to the surrounding areas would be: 10% to the properties in Landwehr Estates that abut the subject property; 20% to Drymalski’s property; as high as 10% to the homes south of Willow Road; as high as 20% on residences directly east of Landwehr Road; and as high as 10% to homes in Citation Lakes Estates. Some factors that account for this depreciatory effect are the desire of people to live in areas that are strictly residential, the height of the proposed buildings, the intensity of the proposed use, the development not being compatible with residential development, and the office buildings not being screened so that people in these buildings can look down on the surrounding property. He estimated this total depreciatory effect at about $500,000. With this development the character of the surrounding area will be substantially changed.

Although the trend of development has been in the R-3 or R-4 classifications, there are no new homes “fronting,” or facing, Willow Road. Willow Road is not an ideal single-family street. He would have the back of the homes face Willow Road.

During direct and cross-examination of Martin it was brought out that he has been in business for 15 years and has an office in Des Plaines just 3 miles west of the subject property. He has made half-a-dozen appraisals within a %-mile radius of this area, including homes in Citation Lakes Estates. He has actively participated in a sale of property one mile to the west on Willow Road. Furthermore, plaintiffs stipulated as to Martin’s qualifications, his familiarity with the subject property and with the surrounding area.

During redirect examination of Martin the following colloquy took place:

“Q: Mr. Martin, have you made any appraisals of property in this area?
A: Yes, I have.
Q: How many?
A: Half-a-dozen appraisals within a half mile radius of this area.
Q: Is it essential to go in every home Mr. Martin before you give a range of the values of the homes?
A: I usually call in the brokers in the Evanston or Northshore area.
MR. DALEY: I move his entire testimony be stricken, as to values be stricken because its hearsay.”

The trial court subsequently struck the witness’ valuation testimony as hearsay.

Thomas J. Buckley, a city planning and zoning consultant, testified as a witness for defendants: The trend of development is twofold: (a) east of the tollway is entirely single-family within a 1-mile radius, and (b) west of the tollway are large sites and office development characterized as mixed residential and commercial. The subject property is located in a very fine residential neighborhood and derives its character principally from the residential areas which abut directly to the north, east and south. The subject property does not take its character from the commercial property to the west which is separated completely by the tollway. A tollway is a proper and adequate buffer or divider for land use.

The highest and best use for the subject property is an R-4 classification due to the topography because the residential street could be extended south into the property, the compatibility with property to the north, the minimal effect on Willow Road traffic and the general trend of development. R-3 is not the highest and best use.

The proposed development is completely incompatible with the existing type of development in the area. The proposed uses are too intensive. It will have a serious detrimental effect on the residential properties. The commercial activity, lighting, intensity of use, excessive traffic generation, physical appearance of the facility and large paved asphalt area would completely disrupt and be out of harmony with the immediately abutting residential properties. The proposed development would change the character of the surrounding property. The surrounding area would have to be developed with commercial or multiple family uses. The different character would also affect the homes to the northeast and southeast of the Landwehr Road, Willow Road intersection. The development would also slow down traffic on a major artery, i.e., Willow Road.

Paul C. Box, a consulting traffic engineer, testified as a witness for plaintiffs in rebuttal: The day before he testified he made a study of the traffic impact of the development. The road network is capable, with proper site improvements, of handling the estimated volume of traffic. He found that at the present time, without any changes, there are sufficient gaps to take care of the right turn exits on Willow Road, but there are inadequate gaps during the evening rush hour across the two-way traffic flow of Willow Road to accommodate the number of cars that would be estimated to exit by left turn at the east access point. He personally made no traffic count. Also, a barrier median is needed for the west exit on to Willow Road, to make it right turn only, but no such plans exist to change the present mountable median.

OPINION

Defendants argue that the trial court erred in striking the valuation testimony of Ralph Martin, defendants’ real estate appraiser and sole valuation witness. They contend that Martin’s testimony regarding conversations with other brokers referred only to his usual practice; and not what he did in this particular case. Defendants aver that plaintiffs had already stipulated to Martin’s qualifications as an expert witness, to his familiarity with the subject property and to his familiarity with the surrounding area. They refer this court to Martin’s testimony that he personally made half-a-dozen appraisals in the surrounding area and had actively participated in a sale of property one mile to the west on Willow Road.

Plaintiffs argue that since his testimony was based on hearsay, Trustees of Schools v. Kirane, 5 Ill.2d 64, 124 N.E.2d 886, controls, and this testimony was properly excluded.

In Forest Preserve District v. Harris Trust & Savings Bank, 108 Ill.App.2d 65, 72-73, 247 N.E.2d 188, the court, when discussing this same issue, enunciated reasoning which we feel controls the instant case. The court stated:

‘We believe that the court erred in excluding the valuation opinions of these witnesses. It seems apparent to us from the extensive recitation of their background and qualifications and of the numerous factors stated by them to have been examined and considered in arriving at their opinions, that these witnesses were rendering an opinion based upon their background and qualifications, upon the physical characteristics of the subject property and surrounding areas, upon the use being made of surrounding properties, upon other factors affecting value, such as availability of utilities and zoning and upon the market in the area for the highest and best use determined by them. We cannot agree that these witnesses sought to give an opinion as to value based solely upon sales of which they had only hearsay knowledge.
* * *
Further, the fact that the witnesses were aware of sales in the area in which they did not participate, and that they based their opinions, in part, on this knowledge, does not render their opinions inadmissible. The trial court stated that it is proper for a witness to render an opinion of value if a witness has hearsay knowledge of other sales as a part of his background knowledge, but that it is improper to render an opinion if a witness has hearsay knowledge upon which he bases his opinion. Under this statement of the law, we conclude that the most that can be said with reference to the testimony of Collins and Fitts is that they may have included in their basis for an evaluation opinion, hearsay knowledge of other sales. The evidence certainly does not indicate that hearsay knowledge was the basis of such opinions.
An expert valuation witness bases his opinion, in part, upon his knowledge of the market situation in the area in question. To say that his opinion, in part, is not based on this knowledge or information because it merely is a part of his general background and experience, is an exercise of pettifoggery. Even though a witness may have all of the other knowledge essential to his expertise — in that he is well trained and experienced in the factors which are important in arriving at a fair cash market value — he must base his opinion, in part, upon knowledge of the market conditions of the particular area in question. Without the latter knowledge, all of the other knowledge requisite to his expertise would still leave the witness deficient in his worth to a party, to the court, and to the jury.”

Furthermore, Village of Westchester v. Williamson, 61 Ill.App.2d 25, 35, 208 N.E.2d 879, adequately distinguished Kirane when the court stated:

“We believe that Kirane is limited to those cases in which the testimony is based exclusively on information obtained from conversations with others and in which the witness specifically denies any personal knowledge of real estate values in the involved or similarly situated cities. Where, as in the instant case, there is evidence that the witnesses had extensive experience in the valuation of benefits conferred by local improvements or that the witnesses had experience in the value of real estate in other nearby similarly situated villages, their testimony is competent and should be admitted.”

It was error for the trial judge to strike Martin’s valuation testimony. Since this testimony was already in the record at the time of the court’s ruling, we shall proceed with this opinion as if the testimony were properly allowed in as evidence.

Defendants contend that the plaintiffs failed to sustain their burden of proving that the County acted arbitrarily and unreasonably in refusing to rezone the subject property to permit the plaintiffs’ proposed use. Defendants further argue that the Mai court exceeded its jurisdiction by declaring that the County’s zoning classifications (R-3, R-4, R-5, R-6, B-l, B-2 and B-3) would all be unreasonable, arbitrary, confiscatory, unconstitutional and void as applied to plaintiffs’ property.

The instant case is strikingly similar in its procedural posture to the recent Illinois Supreme Court case of Schultz v. Village of Lisle, 53 Ill.2d 39, 42, 289 N.E.2d 614. There plaintiffs filed a declaratory judgment action praying that the Village’s zoning ordinance be declared void and ineffective to prevent plaintiffs from developing their property for an automobile service station, after this relief was denied by the Village Board. Between the zoning classification that applied to plaintiffs’ property and the classification plaintiffs sought were several intervening classifications, as is also true of the instant case. In Schultz the witnesses for the Village admitted that the proper classification of the property was not for single-family residences, but that the property should retain a residential classification. So too in the instant case defendants in their brief admit that their “experts agree that the R-3 classification is too restrictive and are uniform in their opinions that R-4 single family residential would be the highest and best use of the property.” The court in Schultz then went on to state the issue before it and the standard to be applied as:

“In this case we need not reach the question of the validity of the zoning ordinance generally as it relates to plaintiffs’ property. The declaratory relief sought is that the ordinance is void insofar as it prohibits the proposed use of the property for a gasoline service station. This court has held that it is appropriate to frame the decree with reference to the record before it, and the zoning ordinance may be set aside only to the extent necessary to permit the specific use proposed. [Citations.]
Although the undisputed testimony may indicate that the proper classification of plaintiffs’ property is either ‘B’ Residence or ‘C’ Residence rather than ‘A’ Residence, we need not decide whether the zoning ordinance as it relates to plaintiffs’ property is for this reason invalid because none of these three classifications permit the use of property for a gasoline service station. The question which was presented to the trial court and which is before this court is the reasonableness of permitting the requested use of plaintiffs’ property. In testing the validity of the zoning ordinance in this case we are only concerned with the validity of the ordinance insofar as it prohibits this proposed use. The general rules, of course, apply, in that the person attacking the ordinance must prove by clear and convincing evidence that the zoning ordinance is, as to him, arbitrary and unreasonable and without substantial relation to public health, safety, morals, or welfare. [Citations.]” (Emphasis supplied.)

In the instant case none of the intervening classifications permits the proposed use. Plaintiffs therefore have the same burden of overcoming the presumption of validity by clear and convincing evidence as did the plaintiffs in Schultz.

The general factors which a court looks to in determining the validity of a zoning ordinance have been stated time and again (see La Salle National Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65; Hoffman v. City of Waukegan, 51 Ill.App.2d 241, 201 N.E.2d 177) and we shall make reference to them in our discussion only as they relate to the record before us.

The evidence stands undisputed that within at least a 1-mile arc from north of the subject property, east and then south, the surrounding lands are either being used for residential purposes or are vacant and that all of this land is within a single-family residential zoning classification. Of paramount importance in determining the validity or invalidity of the given classification is the question of whether it is in conformity with existing uses and the zoning classification of nearby property. (Liberty National Bank v. City of Chicago, 10 Ill.2d 137, 144, 139 N.E.2d 235.) There was much dispute among the expert witnesses as to whether the property received its character from these surrounding residential uses or from the commercial uses found west of the tollway. This question is not to be limited by the experts’ opinions alone. (Mangel & Co. v. Village of Wilmette, 115 Ill.App.2d 383, 392-393, 253 N.E.2d 9.) The fact of newly constructed single-family residences in the Citation Lakes Estates development in addition to the large number of such dwelling units already in existence, some of which abut the subject property, reflect a trend of development conforming to the existing uses and thus are strong evidence in support of the suitability of the existing zoning and a determination of the character of the area. (Gedmin v. City of Chicago, 88 Ill.App.2d 294, 300, 232 N.E.2d 573.) In our opinion these contiguous and nearby uses are determinative of the character of the subject property rather than the use and zoning for commercial purposes west of the tollway. Elmhurst National Bank v. City of Chicago, 22 Ill.2d 396, 405, 176 N.E.2d 771.

There is present in the surrounding area some acreage of vacant land. If plaintiffs were allowed to build their proposed development, one can infer from the evidence that every vacant lot in the vicinity of the commercial development would become a potential threat to owners of the surrounding residential property. (Elmhurst National Bank at 406.) Plaintiffs’ expert proposed that with the development both Bernstein’s property and the land south of Willow Road should be rezoned. It has been stated, both by this court and the Illinois Supreme Court, “that the single-family residential character of property will not be upset because of some commercial use near or even adjoining such property.” (Jans v. City of Evanston, 52 Ill.App.2d 61, 72, 201 N.E.2d 663.) Nor should this court upset the County’s legislative determination of zoning this R-3 so that a future orderly residential development of this area would follow. Camboni's, Inc. v. County of DuPage, 26 Ill.2d 427, 187 N.E.2d 212.

“The regulation of density, as related to land use, is a legitimate object of police power.” (Exchange National Bank v. County of Cook, 25 Ill.2d 434, 441, 185 N.E.2d 250.) Such regulations prevent congestion of population, secure quiet residence districts, expedite local transportation and facilitate the suppression of disorder, the extinguishment of fires and the enforcement of traffic and sanitary regulations, all of which have a direct bearing upon, and substantial relation. to, the public health, safety, morals or general welfare of the community. (Reskin v. City of Northlake, 55 Ill.App.2d 184, 204 N.E.2d 600; Wesemann v. Village of La Grange Park, 407 Ill. 81, 94 N.E.2d 904.) It is undisputed that this development will bring into the area a large number of people. The testimony of the traffic experts varied, but defendants’ expert stated that traffic congestion, at the very least, would be increased. Even Box, plaintiffs’ rebuttal witness, stated there were insufficient gaps to accommodate the number of cars attempting to turn left out of the site during the evening rush hour. He also stated that a barrier median on Willow Road was needed to guarantee the proposed right turn only at the west exit, and no such plans exist to change the now-existing mountable median.

The homes located in this immediate area, even using plaintiffs’ experts’ values, are of substantial worth. The owners of these homes have every right to rely upon the rule of law that the existing zoning regulations will not be changed unless the change is required for the public good. Nor does the fact that some of these homes were built a number of years ago deprive these owners of their right to rely on the above rule. (Kennedy v. City of Chicago, 11 Ill.2d 302, 142 N.E.2d 697; Urann v. Village of Hinsdale, 30 Ill.2d 170, 195 N.E.2d 643.) Yet the testimony of the expert valuation witnesses suggests the possibility of some depreciation to nearby residential properties. Barancik testified that Drymalski’s house would depreciate somewhat. Campbell testified there will be some minimal adverse effect on the homes to the north. Martin, defendants’ expert, felt that a substantial depreciation totalling approximately one-half million dollars would be inflicted upon these homes. This possible depreciation would be the consequence of a development on which the experts disagreed as to the need, a consideration which may have motivated the legislative body to deny the proposed rezoning in the first instance. Hoffmann v. City of Waukegan, 51 Ill.App.2d 241, 201 N.E.2d 177.

Plaintiffs have argued that the subject property’s proximity to the tollway and the commercial uses to the west of the tollway, as well as its proximity to Willow Road, a conceded major traffic artery, makes the property unsuitable for residential development. It is undisputed that single-family houses can be physically built on the site. There is evidence that the residential pattern to the north could be extended south into the subject site with homes erected so that they “back up” to Willow Road. In Koplos v. City of Rockford, 62 Ill.App.2d 268, 272-273, 210 N.E.2d 629, this same argument, that a nearby highway interchange makes the property unsuitable for single dwelling homes, was advanced and was answered by the court when it quoted from La Salle National Bank v. Village of Western Springs, 30 Ill.2d 340, 196 N.E.2d 680 (1964), stating:

“ ‘Many homes have been constructed adjoining tollways in metropolitan Cook County, thereby indicating that adjacent tollways with their wide rights of ways do not preclude residential development.’ ”

Admittedly there is heavy traffic on Willow Road. This in itself does not impart a commercial character to the subject property (Seith v. City of Wheaton, 89 Ill.App.2d 446, 232 N.E.2d 173), and although it is a factor militating against residential use, it cannot be considered conclusive. (Elmhurst National Bank v. City of Chicago, 22 Ill.2d 396, 176 N.E.2d 771.) Nor can the commercial uses to the west of the tollway be such as to render the zoning classification arbitrary and unreasonable. It is fundamental that zoning must begin and end somewhere, and just because property is near a boundary line would not justify rezoning. Likewise it has been held that streets may form an appropriate boundary for zoning districts. Bennett v. City of Chicago, 24 Ill.2d 270, 181 N.E.2d 96.

Plaintiffs argue that their property would be worth more if zoned as prayed, and they are suffering a financial hardship due to the present zoning classification. They also place great emphasis on the fact that the subject property, excluding the single-family residence of the Ostroms, has been vacant for some length of time. It is uncontested that plaintiffs’ property would be worth more if a less restrictive zoning classification were applied to it. This fact alone cannot be conclusive for it exists in nearly every case where the intensity with which property may be used is restricted by zoning classifications. (Liberty National Bank v. City of Chicago, 10 Ill.2d 137, 139 N.E.2d 235.) The length of time property lies vacant under a given zoning classification certainly is a factor to be considered (Lakeland Bluff, Inc. v. County of Will, 114 Ill. App.2d 267, 252 N.E.2d 765), but under the record before us where no evidence was presented on whether any attempts were made to sell this property for residential purposes, we find little merit to plaintiffs’ argument. La Salle National Bank v. City of Chicago, 4 Ill.App.3d 266, 280 N.E.2d 739.

Finally, plaintiffs contend that the recent case of Hutson v. County of Cook, 17 Ill.App.3d 195, controls the decision in the instant case. This case involved a tract of land located on Willow Road about 1 mile east of the property in the instant case. In Hutson the court affirmed the trial court in holding the zoning ordinance void and allowing plaintiffs to erect single-family residences within an R-4 zoning classification on part of the land, and to build a development including a food store, restaurant and local shops on the other part of their land. It needs no citation of authority to state the common rule that zoning cases must be decided on their own facts and circumstances. A court must make its decision on the basis of the record before it. Aside from this general rule, we believe that there are certain differences which distinguish the cases. In Hutson there was evidence that a commercial nursery was operating at the same intersection as the subject property. The height of the building in Hutson was to be three stories, whereas the motel in the instant cause would be six stories. Further, the R-4 single-family homes would act as a buffer to that development. Only the 5-foot-high bem was to be a buffer for the property involved in the instant case. We therefore conclude that this case cannot be deemed controlling of our instant decision.

We have carefully reviewed the record in the instant case and find that at best there is created a legitimate difference of opinion on the reasonableness of prohibiting the proposed use. Under such circumstances the presumption of validity has not been overcome. (Avenue State Bank v. Village of Oak Park, 99 Ill.App.2d 329, 241 N.E.2d 630.) In view of this finding we need not consider defendants’ other contention. Shaping the order of the court to the facts of the particular case (Schultz v. Village of Lisle, 53 Ill.2d 39, 289 N.E.2d 614; Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill.2d 370, 167 N.E.2d 406), we hold that prohibiting plaintiffs’ proposed development is reasonably related to the public health, safety, morals and welfare of the community. The judgment is reversed.

Reversed.

SULLIVAN, P. J., and LORENZ, J., concur.

       Littlestone’s obligation to purchase the property was subject to a successful application for rezoning.

       The final judgment order, in pertinent part, recites:
      “That the highest and best use of the subject property is for the general service planned development of the type and character proposed to be erected by the plaintiffs as hereinabove described.
      That the Zoning Ordinance of the County of Cook as applied to the subject property, insofar as it prevents the use of the subject property for a general service planned development, is unreasonable, arbitrary, confiscatory, unconstitutional and void and bears no reasonable relationship to the public health, safety, morals and welfare.
      That the proposed use of a general service planned development, providing for three (3) office buildings and a motel with a swimming pool and restaurant facilities, as indicated on the plans submitted to this court, is a reasonable use of the subject property and may be permitted.
      That the application of the provisions of the Cook County Zoning Ordinance contained in the R-3, R-4, R-5, R-6 and B-l, B-2 and B-3 Districts would be unreasonable, arbitrary, confiscatory, unconstitutional and void.”


source: Caselaw Access Project

author: Mr. JUSTICE LEIGHTON

license: Public Domain

text:
    Morris Weiner, Ex’r of the Estate of Ada Weiner, Deceased, et al., Plaintiffs-Appellants, v. Joseph A Trasatti, d/b/a New Elms Restaurant, et al., Defendants-Appellees.
    (No. 57608;
    First District (2nd Division)
    April 16, 1974.

      Kamin Stanley & Balkin, of Chicago (Frank C. Stanley, of counsel), for appellants.
    Heineke, Schrader & Cuncannan, of Chicago (Paul H. Heineke, of counsel), for appellees.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This is an appeal from a judgment entered after a verdict directed in favor of defendants. Morris Weiner, executor of the estate of Ada Weiner, deceased, for his benefit and for the benefit of Stewart Weiner, a minor; Fred Weiner, the adult son of Ada and Morris Weiner, filed a suit under the dram shop act against Joseph Trasatti, owner of a restaurant in Northbrook, Illinois; Ben Weber and Vera Weber, owners of the building where the restaurant was located, to recover for loss of support which plaintiffs allegedly incurred when Ada Weiner was struck and killed by an automobile driven by one Richard Buckman who, it was alleged, became intoxicated, in whole or in part, by beer he. purchased and consumed in the restaurant. Defendants appeared, demanded a jury, answered the complaint and denied its material allegations. Thereafter the case went to trial, and plaintiffs called as their witnesses Robert Buckman, Thomas Cunningham, Buckman s passenger when Ada Weiner was killed, and Morris Weiner. At the close of plaintiff's case, defendants moved for a directed verdict. The trial court granted the motion. The principal issue in this appeal is whether grant of this motion was error. Its resolution requires us to determine whether all of the evidence, when viewed in its aspect most favorable to the plaintiffs, so overwhelmingly favored defendants that no contrary verdict could ever stand. (Neubauer v. Coca Cola Bottling Co., 96 Ill.App.2d 18, 238 N.E.2d 437.) To make this determination, we look at the evidence as it appears most favorably to the plaintiffs, together with all reasonable inferences construed most strongly in their favor, rejecting all contrary or explanatory circumstances. (See In re Estate of Milligan, 4 Ill.App.3d 38, 280 N.E.2d 244.) From this view, it appears that the following are the facts.

I.

At about 12:15 A.M. on April 2, 1967, Richard Buckman and Thomas Cunningham entered the New Elms Restaurant in Northbrook, Illinois. They remained there until 1:15 or 1:39 A.M., and during that time each purchased and consumed two 12-ounce bottles of beer. When they left, Buckman drove his automobile with Cunningham on the passenger side of the front seat. It was Buckman’s intention to take Cunningham to his home at 7422 North Oakley Avenue in Chicago. About 15 minutes after they started the drive, Cunningham fell asleep. However, before doing so, he saw nothing unusual in Buckman’s behavior nor in the way he was driving. Cunningham was of the opinion that Buckman was sober.

Buckman was a meat cutter who worked for a large Chicagoland food store. He was a young man about 5 feet 9 inches tall and weighed 150 pounds. He was in good health, and on the day in question had not taken any medication. From the New Elms Restaurant, he drove approximately 11 miles to the intersection of McCormick Boulevard and Howard, the street that is the northern boundary of the city of Chicago and separates that municipality from the city of Evanston. In driving that distance, Buckman, without incident, passed 16 to 17 stoplights. In his opinion, he was sober. However, while driving to McCormick Boulevard and Howard, he began feeling tired. Concerning this feeling, Buckman testified that he did not believe it was caused by the "two beers” he consumed in the restaurant. Nonetheless, from McCormick Boulevard, Buckman continued driving east on Howard; and for 1 mile, he had no recollection of what occurred. He recalled crossing a sewerage canal as he proceeded east, but could recall nothing else.

One mile from McCormick Boulevard (it was then about 2:02 A.M. on April 2) at 2841 W. Howard, Ada Weiner was standing near the rear of a truck properly parked on the south side of the street, facing east. Buckman drove his automobile into the parked truck striking and killing her. She was then 46 years of age, in good health; the wife of Morris Weiner and the mother of Stewart and Fred Weiner. For 4 years prior to her death, she was employed by the American Photocopy Company, and in addition worked with her husband in furthering the business of Ada’s Fishery and Delicatessen, a corporation whose stock was owned by them. She was thus engaged when she was killed.

II.

In their suit under the dram shop act for injury to their means of support by Richard Buckman, an intoxicated person, plaintiffs, to present a jury question, had the burden of producing evidence which would prove that (1) they were injured in their means of support (2) by Buckman, an intoxicated person who (3) was given or sold intoxicating liquor by the defendants, which gift or sale caused, in whole or in part, the intoxication. (See Baker v. Sauber, 62 Ill.App.2d 66, 210 N.E.2d 223; Kiriluk v. Cohn, 16 Ill.App.2d 385, 148 N.E.2d 607; Ill. Rev. Stat. 1965, ch. 43, par. 135; I.P.I.2d 150.05.) Whether Buckman was intoxicated when he drove his automobile into Ada Weiner, was a question of fact for the jury; but what constituted intoxication was a question of law to be defined by the court. (Grant v. Paluch, 61 Ill.App.2d 247, 254, 210 N.E. 2d 35; People v. Schneider, 362 Ill. 478, 200 N.E. 321.) In formulating the applicable definition of intoxication, the trial court was bound to tell the jury that “[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.” Navarro v. Leman, 48 Ill.App.2d 27, 31, 198 N.E. 2d 159, citing I.P.I. 2d 150.15; Bass v. Rothschild Liquor Stores, Inc., 88 Ill.App.2d 411, 232 N.E.2d 19.

It is generally said that proof 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. “A jury verdict under such circumstances would be based on pure conjecture since each individual’s capacity for alcoholic intake varies; therefore, a jury question as to intoxication is not made out by merely proving that one had consumed alcohol.” (Felker v. Bartelme, 124 Ill.App.2d 43, 48, 260 N.E. 2d 74.) However, evidence that the alleged intoxicated person consumed alcoholic liquor, together with evidence of unusual behavior or opinion evidence that he was drunk, would entitle a jury, under such circumstances, to conclude that the person was intoxicated. Felker v. Bartelme, 124 Ill.App.2d 43, 47, 260 N.E. 2d 74.

For example, in Matkins v. Fenorsky, 348 Ill.App. 125, 108 N.E. 2d 373, the court had before it a case in which there was evidence that the alleged intoxicated person felt “groggy” after leaving a tavern in which he drank alcoholic liquor; that he moved slowly and felt heavy, conditions he had not experienced before drinking. The court held that the groggy condition which continued up to the time of the accident in question was sufficient to allow the case to go to the jury on the issue of intoxication. In Wilson v. Parker, 132 Ill.App.2d 5, 269 N.E.2d 523, there was proof that an alleged intoxicated person consumed “four or five beers,” and concerning his conduct a fellow passenger had said he was not “really drunk where he did not know what he was doing.” It was held that the evidence created a jury question whether the person was intoxicated. 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 persons ability to act with ordinary care. French v. City of Springfield, 5 Ill.App.3d 368, 376, 283 N.E.2d 18; I.P.I.2d 150.15.

In this case, if both sides had rested when plaintiffs closed their proof, the jury could have found that in the early morning hours of April 2, 1967, Richard Buckman purchased and consumed alcoholic liquor in a restaurant owned by Joseph Trasatti and maintained by him on premises that belonged to the defendants Ben and Vera Weber. Buckman was then in good health; he had not taken any medication that day nor was there anything, other than his consumption of alcoholic liquor, that could have impaired his mental or physical faculties and thus diminish his ability to drive his automobile with ordinary care. The jury could also have found that after Buckman consumed the alcoholic liquor, he drove his automobile a distance of eleven miles through sixteen or seventeen stoplights without incident, to the intersection of McCormick Boulevard and Howard Street in Chicago; that while driving that distance, he began getting tired; that although he could remember what happened up to McCormick Boulevard, Buckman could recall nothing after he crossed a sewerage canal at that point; and that, without explanation for his erratic driving, he went an additional mile and plowed into the rear of a properly parked truck, killing Ada Weiner. This being the evidence, the question which arises is whether, at the close of plaintiffs’ case, the jury could have found that when Buckman struck and killed Ada Weiner with his automobile, he was intoxicated. We believe it could have done so. It was for tire jury to decide whether at the time of the accident Buckman was intoxicated, and that his intoxication was caused by the alcoholic liquor he drank in the New Elms Restaurant. See Suppe v. Sako, 311 Ill.App. 459, 36 N.E.2d 603; compare Hurley v. Phillips, 54 Ill.App.2d 386, 203 N.E.2d 431.

III.

It was also for the jury to determine whether Ada Weiner was a means of support to her husband and whether Buckman’s intoxication was the proximate cause of Morris Weiners loss of that support. (Casey v. Burns, 7 Ill.App.2d 316, 322, 129 N.E.2d 440.) The statute that plaintiffs invoked gave them a cause of action for injuries which an intoxicated person caused to their means of support. It provided for recovery for loss of means of support resulting from the death or injury of any person. (Ill. Rev. Stat. 1965, ch. 43, par. 135.) Loss of means of support includes loss of income which results from termination of voluntary contributions. Lowrey v. Malkowski, 23 Ill.App.2d 371, 163 N.E.2d 528; I.L.P. Liquor §155.

Plaintiffs contend that when they attempted to discharge their burden of proof on the issue of loss of means of support by Morris Weiner, they were unduly restricted by the rulings of the trial court which sustained objections to questions asked by their counsel. We agree with this contention. Without detailing the numerous rulings that sustained defendants’ objections to questions asked, we think it sufficient to say that our rules of procedure envision a greater leniency in permissible questioning than is evidenced in the record of this case. Although regulation of direct examination of witnesses is largely a matter left to the sound discretion of the trial judge, that discretion should not be exercised in a way that will inhibit a party from effectively presenting his cause to the jury. (See Teti v. Firestone Tire and Rubber Co. (6th Cir. 1968), 392 F.2d 294.) It is elementary that evidence of Ada Weiner’s income, the disposition of that income with relation to her husband Morris, what she did with it and whether she supported any of the plaintiffs were relevant to the issue of loss of means of support, an important element in a cause of action under the dram shop act. (Compare Nagle v. Keller, 141 Ill.App. 444; see Hettinger v. Beiler, 54 Ill.App. 320.) Therefore, we conclude that the trial court rulings which excluded much of plaintiffs’ evidence on the issue of loss of support was error.

Despite these exclusions, plaintiffs, in our judgment, introduced evidence from which the jury could find that Morris Weiner suffered loss of means of support when his wife Ada was killed. For example, plaintiffs proved that until her death, Ada Weiner was employed by the American Photocopy Company and worked with her husband in furthering their delicatessen business which they maintained at two addresses. From the testimony that Morris Weiner was permitted to give, it appears that Ada was a wage earner who lived with him and supported him in his business endeavors. Means of support include all those resources from which the necessities and comforts of living are or may be supplied. (Meidel v. Anthis, 71 Ill. 241; McMahon v. Sankey, 133 Ill. 636, 24 N.E. 1027.) The capacity for providing means of support may be shown by proof of earnings and contribution of services or income. (See Robertson v. White, 11 Ill.App.2d 177, 181, 136 N.E.2d 550; 48 C.J.S. Intoxicating Liquors §437; compare Edenburn v. Riggins, 13 Ill.App.3d 830, 836, 301 N.E.2d 132.) The services of a wife to which a husband is entitled include those rendered by the wife in performance of her household and domestic duties, as well as those rendered by her while assisting the husband in his business. (Collier v. Collier (1943), 182 Md. 82, 32 A.2d 469, citing C. J. Husband and Wife §36.) A wife is a source of “* * * services, consortium and means of support.” (Beck v. Groe (1955), 245 Minn. 28, 36, 70 N.W.2d 886; Annot., 4 A.L.R.3d 1332, 1381.) Therefore, the question is whether, on the evidence before the jury when plaintiffs rested their case, would a verdict in their favor ever stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504.) In our judgment it would. For this reason, tire trial court erred when it sustained defendants’ motion for a directed verdict. (Felker v. Bartelme, 124 Ill.App.2d 43, 260 N.E.2d 74.) The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

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

       Ill. Rev. Stat. 1965, ch. 43, par. 135.
      “Every person, who shall be injured, in person or property by any' intoxicated person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving liquors aforesaid, * * *. An action shall he for injuries to means of support, caused by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, resulting as aforesaid.”


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Huggy, Defendant-Appellant.
    (No. 55816;
    First District (2nd Division)
    April 16, 1974.

      Gerald W. Getty, Public Defender, of Chicago (Robert M. Gray and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago (Elmer C. Kissane and Richard Pezzopane, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

Steven Huggy was charged with the murder of Grace Troia, his 45-year old “girlfriend.” Prior to his trial, he served notice that he intended to rely on the affirmative defense of intoxication. He was tried without a jury; and after the court heard evidence in support of this defense, he was convicted.

Huggy and Grace Troia were heavy drinkers of alcoholic liquor. Although not married to each other, they lived together in a house owned by Grace at 5221 South Lawndale in Chicago. It was their custom to spend occasional week-ends drinking in neighborhood taverns, ending with sojourns in a motel they patronized in Schereville, Indiana. Huggy owned a 1963 black Cadillac automobile, and on May 9, 1969, at about 4:55 P.M., he met Grace in order that they could go drinking, with the intention of spending the end of the week in the Indiana motel. At the time, Huggy had about $3100 in cash on his person. A little after 5 P.M., they arrived at a tavern on West 47th Street in Chicago, and there they spent hours drinking whiskey. Matching each other drink for drink, their consumption of intoxicating liquor was five "shots” per hour. Huggy, however, drank more than Grace because when she went to the washroom, or stopped to play a juke box, he ordered an extra drink for himself, thus consuming five or six shots more than she did during the evening. As they drank, Huggy and Grace talked about moving to San Antonio, Texas, where they could get married.

At about 7 P.M., Huggy telephoned the motel and reserved a room, telling the motel keeper that he and Grace would arrive there about 11 P.M. To accomplish this, they left the tavern to go to Grace’s home, and there feed a dog and a bird preparatory for their absence during the week end. They started out in the black Cadillac; however, when they reached West 51st Street and Lawndale Avenue, Grace decided to go to a tavern on West 55th Street for "another drink.” Thus, they detoured to that place and ordered some drinks, but the tavern owner told them to go home because they were both drunk. Huggy got off a bar stool to leave, but his only recollection of the rest of that evening was his “reaching for the door handle, that was all.” He awoke the next morning sometime between 6:30 and 7 A.M., in a Chicago police station.

In the meantime, at about 10:40 P.M. the evening of May 9, James Klarik, a 19-year-old university student who lived across the street from Grace Troia, heard a noise and looked out of the window of his apartment. He saw a black Cadillac back up near 5221 South Lawndale; its engine and lights were then turned off. About 10 or 20 minutes later, sometime near 11 P.M., Klarik’s attention was again called to the Cadillac because its motor started, it was pulling away from the curb without its lights, and it was being driven erratically, northward on Lawndale. A few minutes later, Klarik heard the noise of people carrying on a conversation outside his house. He went out, and by the curb he saw the body of a woman. It was Grace Troia, dead. In her left temple was a bullet wound that exited near her right ear.

At about 11:30 P.M. the same night, Steven Huggy, with a nearly-full quart bottle of whiskey in his hand, rang the doorbell of Emil and Margo Wohrle, owners of a building at 5050 South Taiman Street in Chicago. Steven Huggy’s former wife and his two daughters lived in the Wohrle building. Margo Wohrle answered the door. She knew Huggy but had not seen him for about 2 or 3 years. After she let him into the apartment, Huggy told her and her husband to call the police because he had “shot his girlfriend;” that he wanted to transfer the title of his Cadillac, to his older daughter, Diane; and that he had money to give his daughters, for which he wanted a receipt. Then, Huggy took from his pocket a gun wrapped in a towel and gave it to Emil Wohrle. At first, Wohrle refused to accept the gun; but when Huggy gave it to him a second time, he took it, still wrapped in the towel, and put it on top of a table.

In the meantime, Huggy continued to drink from the whiskey bottle he brought with him. A short time later, his former wife and his younger daughter came to the Wohrle apartment. Although Huggy told his wife that he did not want to see her (he wanted to see his daughters), he told her that he had “shot his girlfriend,” and that he wanted to give the title to his Cadillac to Diane and leave some money for his children. He looked in his wallet, fumbled somewhat as he found the title to his Cadillac and executed its transfer to his older daughter. He then gave his former wife $2500 in cash. To her, it appeared that Huggy had been drinking; to the Wohrles, it appeared he had no difficulty understanding them nor did they have any difficulty understanding him. He continued to drink whiskey from the bottle until he fell to the floor, unconscious. A short time later, a police officer came to the Wohrle apartment and arrested Huggy. Another officer went to Huggy’s Cadillac and found it between two automobiles correctly and legally parked. At about 1:30 A.M., two evidence technicians examined the automobile, and on the front floor near the accelerator pedal, they found an expended ,38-caliber bullet. A pathological examination of Grace Troia revealed that “[s]he died of a through and through bullet wound of the head.” A toxicological examination of her showed that the day after she was killed, there were .238 milligrams percent of ethanol in her blood. It was the toxicologist’s opinion that immediately before her death, Grace Troia “* * * was definitely under the influence of alcohol.”

At defendant’s trial, an expert in pathology, testifying in answer to a hypothetical question, gave his opinion that a person who had consumed as much whiskey as Huggy had imbibed the evening he was with Grace Troia would have been so intoxicated that he could not have been able to formulate the mental state required to commit murder. After hearing the evidence, which included proof of Huggy’s propensity for intoxicating liquors and the amount he consumed on the day in question, the trial judge found him guilty of murder. He then conducted a hearing in aggravation and mitigation which revealed that Huggy was a 51-year-old life-long resident of Chicago. Only once before had he been convicted of a crime; it was an aggravated assault for which he was fined $50. He was a decorated army veteran; and at the time of his arrest for Grace Troia’s murder, was gainfully employed. The court sentence Huggy to serve 20 to 40 years.

From these facts, he presents three issues. (I.) Whether the evidence proved, beyond a reasonable doubt, that he committed the acts which caused the death of Grace Troia. (II.) Whether, assuming that he committed the acts which caused the death of Grace Troia, the State proved beyond a reasonable doubt that he was capable of forming the mental state requisite for the crime of murder. (III.) Whether the sentence of 20 to 40 years is excessive.

I.

The evidence on which the State relied to prove that defendant committed the acts which caused the death of Grace Troia was circumstantial. However, it is an established rule of evidence that in a trial for murder, direct testimony is not required to prove the means that caused the death of the victim; the means and manner of death may be inferred from the circumstances proved. (People v. Kinzell, 106 Ill.App. 2d 349, 355, 245 N.E.2d 319.) This rule is refined by the corollary principle that when evidence in a criminal case is circumstantial, guilt must be so thoroughly established that it excludes every reasonable hypothesis of the defendant’s innocence. People v. Hanson, 359 Ill. 266, 281, 194 N.E. 520; People v. Bartell, 386 Ill. 483, 54 N.E.2d 700; compare People v. Richards, 120 Ill.App.2d 313, 256 N.E.2d 475.

In this record there was evidence which proved that after 4:55 P.M. on May 9, 1969, Grace Troia, defendant’s “girlfriend,” was with him; that at about 11 P.M., his automobile was seen erratically being driven away from the place where her dead body was found; that a short time later, defendant told three persons he had shot his “girlfriend,” at the same time surrendering a gun wrapped in a towel; and on the floor of his automobile was found a .38-caliber spent bullet.

At his trial, defendant repudiated his statements and denied he shot Grace Troia, saying that, because of his intoxication, he had no recollection of what occurred after he and Grace started to leave the second tavern they visited. We conclude, however, that the evidence does not include any reasonable hypothesis of someone other than the defendant having committed the crime. Therefore, it is our judgment that, although circumstantial, the evidence proved beyond a reasonable doubt it was the defendant who committed the acts which caused the death of Grace Troia. People v. Shaw, 64 Ill.App.2d 262, 211 N.E.2d 394; People v. Neal, 98 Ill.App.2d 454, 240 N.E.2d 784.

II.

This being so, absent proof of justification, excuse or mitigation, the conclusion would have been inescapable that defendant committed murder. (Compare People v. Clemens, 9 Ill.App.3d 312, 292 N.E.2d 232; see Perkins, Criminal Law 33-37 (2d ed. 1969).) Consequently, he interposed the defense of involuntary intoxication, thus raising the issue whether at the time of his acts he was capable of forming the requisite intent to commit murder. Our criminal law requires the State to prove not only that defendant shot and killed Grace Troia; it must prove beyond a reasonable doubt that he acted with the requisite mental state. (See People v. Calhoun, 4 Ill.App.3d 683, 281 N.E.2d 363.) Therefore, we must look at the evidence to see if it supports the defense of intoxication. See Ill. Rev. Stat. 1967, ch. 38, par. 6 — 3(a).

In doing so, we bear in mind that in this State voluntary drunkenness is no excuse for the perpetration of a criminal act; it may be used to negative intent and malice only where intoxication is so extreme that it entirely suspends the power of reason. (People v. Klemann, 383 Ill. 236, 48 N.E.2d 957; People v. Lion, 10 Ill.2d 208, 139 N.E.2d 757.) Voluntary intoxication is not a defense to conduct which the law regards as criminal unless it makes impossible the existence of the mental state which is an element of the crime. (People v. Walcher, 42 Ill.2d 159, 163, 246 N.E.2d 256; Annot, 8 A.L.R.3d 1236.) The question, then, is not whether, at the time in question, defendant was intoxicated, but whether in the light of all the evidence relating to his intoxication he had the requisite mental state to commit murder. People v. Jones, 107 Ill.App.2d 1, 247 N.E.2d 40.

This record contains evidence which proved that shortly after the dead body of Grace Troia was found, defendant appeared at the home of his former wife’s landlords and with apparent control of his faculties told them he had shot his ’‘girlfriend.” Moments before, he correctly and properly parked his black Cadillac between two automobiles and thereafter took part in a logical and meaningful conversation. It is significant, we think, that neither his former wife nor her landlords, had seen the defendant in 2 or 3 years. Nonetheless, displaying what was a newly-aroused concern for his future, defendant said he wanted to transfer the title of his car to his older daughter, a transaction he accurately completed without assistance. He wanted to leave some money for his children, and he had the presence of mind to ask for a receipt. When his former wife came to her landlord’s apartment, defendant told her he did not want to see her but wanted to see his daughters. His older daughter was not home; and when the younger daughter was brought to him, he recognized her and spent his time crying about his having shot his “girlfriend.” Throughout the evening, defendant had $3100 on his person; and after making the rounds of taverns, he still had $2500 in cash to give his former wife for the care of his children. Knowing the vagaries of urban living, we doubt that a man can have $3100 on his person in a large city while he makes the rounds of taverns, be so intoxicated that he cannot form the intent to murder and yet preserve the amount of cash which defendant was able to deliver to his former wife.

These facts were proved by the testimony of three uncontradicted and unimpeached witnesses. Thus, they were factually contrary to the basic assumptions of the opinion given by the expert pathologist who testified for the defendant. The opinion of an expert has little, if any, weight against factual testimony to the contrary. (See McGehee v. Geo. S. Mepham &. Co., 279 Ill.App. 115; Rich v. Hartford Accident & Indemnity Co., 208 Ill.App. 506; First National Bank v. Rovell, 51 Ill.App. 2d 282, 201 N.E.2d 140; 6 Callaghans Illinois Evidence § 18.26 (1964).) Therefore, we conclude that although defendant was intoxicated when he committed the acts which caused the death of Grace Troia, he was capable of forming the mental state requisite for the crime of murder.

III.

In determining whether defendant’s 20-to-40 year sentence is excessive, we observe that our statute provides that “[a] person convicted of murder shall be punished by death or imprisonment in the penitentiary for any indeterminate term with a minimum of not less than 14 years.” (Ill. Rev. Stat. 1967, ch. 38, par. 9 — 1(b).) The power we have to reduce a sentence is limited for use in those instances where the punishment imposed is at variance with the fundamental spirit of our laws, or is disproportionate to the offense. (People v. Smith, 14 Ill.2d 95, 150 N.E,2d. 815; see Supreme Court Rule 615(b)(4), Ill. Rev. Stat. 1967, ch. 110A, par. 615(b)(4).) In our judgment, the sentence in this case is not excessive. (See People v. Hicks, 35 Ill.2d 390, 220 N.E.2d 461; compare People v. Lahori, 13 Ill.App.3d 572, 300 N.E.2d 761.) The judgment is affirmed.

Affirmed.

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

       It should be noted, however, that subsequent to imposition of sentence in this case, the Supreme Court of the United States held that a defendant cannot, consistent with the federal constitution, be sentenced to death under the same Illinois statute that was invoked in this prosecution. Furman v. Georgia (1972), 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726; People v. Speck (1972), 52 Ill.2d 284, 286, 287 N.E.2d 699; Moore v. Illinois (1972), 408 U.S. 786, 3 L.Ed.2d 706, 92 S.Ct. 2562.


author: Mr. JUSTICE MEJDA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles E. Perry, Defendant-Appellant.
    (No. 57738;
    First District (3rd Division)
    April 18, 1974.

      Julius Lucius Echeles and Carolyn Jaffe, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mariann Twist, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Defendant was convicted, after a jury trial, on two counts of aggravated battery upon Judith Dingillo; first, a battery causing great bodily harm; and second, a battery with a deadly weapon (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4). The court denied probation and sentenced defendant to a term of 18 months to 5 years. On appeal, defendant contends:

(1) the court erred in failing to instruct the jury as requested by defendant on the lesser included offense of reckless conduct;

(2) the court erred in excluding evidence of defendant’s state of mind;

(3) the court erred in allowing testimony of a police officer on rebuttal as to the force required to fire the gun;

(4) the prosecutor’s conduct amounted to reversible error;

(5) defendant was not proved guilty beyond a reasonable doubt; and

(6) the trial court erred in denying probation.

On June 24, 1971, the victim, Judith Dingillo, suffered injuries as a result of a gunshot wound inflicted by the defendant. The facts and circumstances surrounding this incident — which are not disputed on appeal —are as follows:

Earlier on the above date, Frank Melecio slapped defendant’s younger brother in the presence of several youths. Upon defendant’s return from work that evening, he was informed of the incident. He armed himself with a .22-caliber automatic pistol he had purchased from a friend a .week or so earlier, then placed the gun in the waistband of his trousers and “went looking” for the person who hit his brother. About 10:30 that .evening, defendant and three other youths approached the house where the victim and Frank Melecio were sitting on the porch. When he saw the defendant, Melecio ran to the sidewalk and threw a bottle toward him. The gun held by defendant discharged, hitting the girl in the chest. Defendant fled around the corner and the gun again discharged, inflicting a wound in his right leg. He gave the gun to Michael Koons for safekeeping. Koons and the defendant ran away from the scene.

The facts surrounding the first discharge of the gun are greatly disputed. The victim, testifying for the State, said she did not see the bottle strike anyone. She further testified that she saw a man kneeling or crouching on the corner of Lyndale and Kimball Streets, with a gun in his hand. She identified the defendant as that person. She heard the bottle break a couple of seconds before she was shot in the chest.

Michael Koons, testifying for the State, stated that a group of youths accompanied defendant to Lyndale and Kimball. Four persons, including the defendant and Koons, turned the corner toward a building where Melecio was sitting on the porch. Defendant preceded the other three, and someone said, “I want to talk to you.” Then the person came off the porch, picked up a bottle and threw it at the defendant. Koons saw the bottle being thrown and, with the others, turned and ran in the other direction as the bottle broke. He did not see defendant get struck with the bottle. He heard a gunshot. He saw no weapon in defendant’s hands on the street' or while defendant ran around the comer and caught up to him, running west on Lyndale. Koons then heard another gunshot, and he and the defendant kept going. About a half block later, defendant stopped, took his hand out of his pocket and said, “I just shot myself.” Defendant took a gun from his waistband, handed it to Koons and asked him to take it home, which he did. Koons gave the gun to the police the next day. He further testified to a conversation he had with the defendant some 3 months after the shooting, when defendant told him “he took a shot and didn’t know who he hit, or what.” Defendant never told him the gun went off accidentally. On cross-examination, Koons testified concerning that conversation, saying that defendant never said he intentionally fired at anyone.

Defendant testified in his own behalf. When he arrived home from work at about 10:15 P.M., he was told that his brother had been beaten by a man. He went to his garage and took the gun; being left-handed, he placed the gun in the waistband on the right side of his pants. He knew it was loaded, but did not know that there was a shell in the chamber. He did not know if the gun was cocked, and did not cock it. He did not know how to operate the gun and had never fired it before. One of the boys told him that Frank Melecio and Judy were sitting on a porch, and several boys accompanied him to the address. They had not reached the porch when Frank jumped up and threw a bottle at them. Defendant testified that he put up his shoulder to shield himself from the bottle, and as he did, the gun came out of the waistband of his pants and went off. He had the finger of his left hand “by, but not on the trigger.” He did not kneel and take aim with the gun in his hand. He started to run because he saw the victim, Judy, and Frank running toward him. He proceeded a short distance when the gun which he had put back in his waistband began to fall. He pulled it up and it went off again. He continued running until he realized he had shot himself. He then gave the gun to Koons and went home.

Harry Thieben testified for the defense that he informed defendant of the incident involving his brother Patrick’s being hit by Melecio; that defendant told the witness and the other young men present that he wanted to go find out why Melecio had hit his brother. Four boys accompanied defendant to the vicinity of the victim’s home when the witness saw Melecio jump off the porch and throw a bottle. The witness stated that the bottle first struck the defendant, then struck him. He ran toward the street when he heard a shot. He was also present when the defendant shot himself.

Officer Mudry, the arresting officer, testified for the State that the defendant when arrested made a statement that “after he had been struck with a bottle he pointed the gun towards the porch and the gun fired.” The defendant told him the gun had accidentally discharged.

Defendant’s first contention is that the trial court erred in failing to instruct the jury as requested by him upon the lesser included offense of reckless conduct. During the conference on jury instructions, defendant tendered only Defendant’s Instruction 1, defining negligence, and Defendant’s Instruction 2, setting forth the issues on a charge of reckless conduct, both of which were refused. Although each contained the handwritten notation “non-I.P.I.”, they were identical with IPI — Criminal 5.02 and 11.14 respectively. The instruction as to negligence had no basis in the evidence and was properly refused.

Reckless conduct can be a lesser included offense of aggravated battery. (People v. Thomas (1971), 1 Ill.App.3d 139, 275 N.E.2d 253.) The elements of both offenses are substantially similar, with the only element of difference relating to the degree of culpability. To sustain a conviction for aggravated battery it must be proved that the conduct of the defendant was performed “knowingly” or “intentionally.” On the other hand, to sustain a conviction for reckless conduct of the same facts, it must be proved that the defendant’s conduct was “reckless” as defined in the Criminal Code. See Ill. Rev. Stat. 1971, ch. 38, pars. 12 — 4, 12 — 5.

As this court stated in People v. Bembroy (1972), 4 Ill.App.3d 522, at 525, 281 N.E.2d 389,

“It is well settled that where there is evidence in the record which, if believed by the jury, would reduce the crime to a lesser included offense, an instruction defining the lesser offense should be given. (People v. Jones (1943), 384 Ill. 407; People v. Papas (1942), 381 Ill. 90; People v. Harris (1956), 8 Ill.2d 431.) This rule is applicable even though the theory of the defense at trial is inconsistent with the possibility that the defendant is guilty of the lesser offense. (People v. Scalisi (1926), 324 Ill. 131.) It is equally well settled, however, that tire refusal to give an instruction defining the lesser included offense is not error where all the evidence adduced indicates that the jury would only be justified in returning a verdict of guilty or not guilty of tire crime charged. (People v. Price (1939), 371 Ill. 137; People v. DeRosa (1942), 378 Ill. 557; People v. Ruel (1970), 120 Ill.App.2d 374; People v. Dewey (1969), 42 Ill.2d 148.)”

Also see People v. Peery (1973), 11 Ill.App.3d 730, 297 N.E.2d 643.

Thus, fire specific issue for our determination is whether there is evidence in the record upon which the jury could have conceivably based a verdict of guilty of the lesser included offense of reckless conduct. We have heretofore held that a gun is a deadly weapon capable of killing another, and that handling a gun improperly may be reckless conduct. (People v. Thomas (1971), 1 Ill.App.3d 139, 275 N.E.2d 253; People v. Reece (1970), 123 Ill.App.2d 97, 259 N.E.2d 619; and People v. Mitchell (1973), 9 Ill.App.3d 1015, 293 N.E.2d 683.) In People v. Bembroy (1972), 4 Ill.App.3d 522, at 526, 281 N.E.2d 389, we noted that “it has been specifically held that pointing a loaded pistol at another is such a gross deviation from the standard care which a reasonable person would exercise that it constitutes recklessness.” See also People v. Thomas, supra; and People v. Rodgers (1971), 2 Ill.App.3d 507, 276 N.E.2d 504.

In the instant case, even though the evidence was conflicting, the defendant’s trial testimony, if believed by the jury, was sufficient to create an issue of fact as to whether he acted “knowingly” or “intentionally” or “recklessly.”

We conclude that the jury could have determined from the evidence in the record that the defendant’s conduct was such as could constitute a gross deviation from the standard of care which a reasonable person would exercise in the situation. Such conduct is performed with the requisite mental state contemplated by the definition of recklessness. In a jury trial it is the province of the jury, and not the judge, to determine the guilt or innocence of the accused, and also to determine whether the accused is guilty of aggravated battery or the lesser crime of reckless conduct “if there is any evidence which tends to prove the lesser rather than the greater crime.” (People v. Peery, supra, 734.) The trial court erred in the instant case in refusing the tendered instruction of the lesser included offense of reckless conduct.

Since it is necessary to reverse and to remand this cause for a new trial, we will confine our further consideration to those matters which may arise on retrial.

Defendant’s second contention is that he was denied a fair trial by the court’s precluding him from testifying as to his state of mind. He argues that the trial court improperly sustained the prosecutor’s objections to certain questions asked of defendant by his counsel. Defendant attempted to testify that his brother was an epileptic. The court sustained the State’s objection and admonished the jury to disregard the statement. Defense counsel asked defendant why he armed himself with the gun after hearing that his brother had been beaten. The court sustained the State’s objection. Later, in the direct testimony of defendant, counsel asked him why he originally purchased the gun. The State’s objection was again sustained.

As to defendant’s statement that his brother was an epileptic, that fact does not tend to prove or disprove any material fact in the case against defendant. The intent element to support a verdict of aggravated battery is that the act be done intentionally and knowingly. (People v. Norris (1969), 118 Ill.App.2d 406, 254 N.E.2d 304.) The only mental state required is that the accused knowingly and intentionally cause the social harm defined in the statute, no premeditation or malice being necessary. (People v. Allen (1969), 117 Ill.App.2d 20, 27, 254 N.E.2d 103.) SimUarly, the reason why defendant purchased the gun more than a week prior to the shooting of Judith Dingillo is not relevant to any material issue in the instant case. Defendant is not being tried for the offense of unlawful possession of a firearm or any offense other than aggravated battery. Furthermore, the purchase of the gun was not “closely connected” in time to the alleged commission of the offense charged. (See People v. Sessions (1968), 95 Ill.App.2d 17, 238 N.E.2d 94.) The trial court did not err in excluding the foregoing testimony.

However, defendant sought to explain why he armed himself immediately prior to his search for Frank Melecio and the shooting. He argues that he wished to explain his reasons for having taken the gun with him on the night of the offense. No offer of proof as to the reasons has been set forth, but the defendant contends that he did not intend to fire the gun. Where the intention or motive of the accused is in issue, he has the right to testify as to his intentions or motives and to have the circumstances surrounding the act considered in connection with his testimony. (People v. Biella (1940), 374 Ill. 87, 28 N.E.2d 111; People v. Johnson (1969), 108 Ill.App.2d 150, 247 N.E.2d 10.) The trial court erred in denying defendant an opportunity to testify as to his reasons.

Defendants third contention is that the trial court erred in allowing the police officer to testify as to the amount of pressure required on the trigger to discharge the gun. At the trial, Officer Mudry testified that the trigger pull was 4 pounds. Defense counsel objected to the question on the ground that the State had failed to qualify the witness as a ballistics or gun expert. The objection was overruled and defense counsel withdrew the objection. Such withdrawal waived defendant’s right to complain. (Dohroth v. Jensen (1932), 348 Ill. 157, 165, 180 N.E. 785.) However, since this question may again arise on a retrial, we will review the admissibility of such evidence. The witness testified that he knew, of his own personal knowledge, that 4 pounds of pressure on the trigger was required to discharge the weapon. The trial court held that expert testimony is not required to explain the pressure necessary to effect a discharge. The weapon was in court. The witness stated only that he was familiar with this particular type of weapon. No evidence was introduced that the witness examined the particular gun or performed any tests on it. The witness was not qualified to testify as to the precise pressure required to discharge the particular gun, either as an expert or as a layman, without any factual or experimental foundation for such testimony.

For the foregoing reasons, defendant’s conviction and sentence • are reversed, and the cause remanded for a new trial not inconsistent with the views expressed herein.

Reversed and remanded.

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


author: Mr. JUSTICE GOLDBERG

text:
    Hristina Yelkovanoglu, Plaintiff-Appellant, v. George G. Gordon et al., Defendants-Appellees.
    (No. 59488;
    First District (1st Division)
    April 15, 1974.
    Sandman and Levy, of Chicago (Eugene Lieberman and Bernard Moltz, of counsel), for appellant.
    Epton & Druth, of Chicago (Bernard E. Epton and Donald Segal, of counsel), for appellees.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

George G. Gordon, Roselyn Silverman, Seymour Keer and Rose Keer (defendants) filed a motion to dismiss Hristina Yelkovanoglu’s (plaintiff) first amended complaint for personal injury. The suit was dismissed with prejudice and plaintiff appeals.

Plaintiff’s amended complaint alleged that on February 7, 1971, and prior thereto, defendants owned an apartment building which had a public sidewalk in front of it. On February 7, 1971, at about 11:15 A.M., plaintiff, in the exercise of ordinary care, was a pedestrian on that sidewalk. Defendants owed a duty to the public to maintain their premises in a safe condition so that a nuisance and other unsafe developments from their premises did not spread onto the sidewalk to deprive the plaintiff and the public of a safe place to walk. Defendants committed one or more of these negligent acts or omissions: maintained a public nuisance upon said property in violation of Ill. Rev. Stat. 1971, ch. 100%, par. 26(5); maintained their property so that a dangerous condition was caused to spill out onto the public sidewalk and create a nuisance thereon; permitted said sidewalk to become accumulated with large amounts of debris from a fire on their premises which spilled over onto said sidewalk; operated and managed their property to deprive plaintiff of a safe sidewalk; failed to warn plaintiff of the dangerous and unsafe condition of said sidewalk and otherwise caused the sidewalk to become dangerous. Defendants knew or should have known of this defective condition. As a direct and proximate result of the foregoing, plaintiff fell and sustained bodily injury and damages.

The defendants’ motion to dismiss stated that “* * * the plaintiff was injured as a result of a fall on a public sidewalk adjoining plaintiff’s property which contained debris as a result of a fire to which the Chicago Fire Department was called and threw debris on the sidewalk” and that there “is no legal duty on the owners of the adjoining property to, in any way, clean said debris.”

The plaintiff contends that a complaint should not be dismissed without leave to amend unless it appears that plaintiff can prove no set of facts in support of his claim and that land owners who carelessly maintain their property to permit fire, with resultant debris blocking public ways, are liable for damages to persons injured thereby. The defendants argue that failure of the plaintiff to allege a duty on the part of defendants justifies the dismissal of a complaint on a motion to dismiss and that a building owner is not liable for injury resulting from debris on a public sidewalk placed there by municipal firemen.

The only issue before us, then, is whether or not the amended complaint stated a cause of action by sufficient factual allegations of the existence of a legal duty on the part of defendants which they violated. An analysis of the pleadings and the law will clearly reveal that it did not.

Although the Illinois Civil Practice Act requires that “pleadings shall be liberally construed” (Ill. Rev. Stat. 1973, ch. 110, par. 33(3)), this “will not sustain a complaint which wholly fails to state a cause of action.” (Sparling v. Peabody Coal Co., 16 Ill.App.3d 301, 305, 306 N.E.2d 79.) To state a cause of action for negligence there must be proper allegations of a breach by defendant of a duty owed to the plaintiff. (Boyd v. Racine Currency Exchange, Inc., 56 Ill.2d 95, 97, 306 N.E. 2d 39.) The existence of a duty “is a question of law to be determined by the court.” (Barnes v. Washington, 56 Ill.2d 22, 26, 305 N.E.2d 535.) Thus, if no duty was alleged, the complaint was properly dismissed.

In her brief, plaintiff argues that a duty is owing on the part of a landowner to maintain his building so that a nuisance is not created. She asserts, without citing any authority, that “when a fire breaks out, a presumption in law arises of probable negligence in starting of the fire in defendant’s premises, since fires do not start by nature alone and ‘act of God’ is not a feasible defense.” Even were this true, plaintiff has not clearly alleged in her complaint that it was negligent maintenance of the building, leading to the fire, which caused her injury. In her amended complaint, with reference to duty owed by defendants, plaintiff alleges only that defendants “owed the duty * * * to maintain their premises in a safe condition so that a nuisance and other unsafe developments from the Defendants’ premises did not spread onto the public sidewalk * * *."

In her reply brief plaintiff contends that these allegations, together with the alternative allegations of negligent acts or omissions above described, were sufficient to show a duty and negligent breach thereof by the defendants. She then relies on Menth v. Breeze Corp., 4 N.J. 428, 73 A.2d 183, annotated in 18 A.L.R.2d 1071 to show that these allegations were sufficient to state a cause of action.

In Menth, plaintiffs sued for property damage caused by the communication of fire to their property from a shed owned by defendant. Negligence in that case, however, was clearly alleged. As the court stated: “The gravamen of the complaint is that the defendant improperly, carelessly and negligently stored combustible and highly flammable materials on the leased premises without taking proper precautions to prevent their ignition and that such negligence proximately caused the loss of plaintiff’s personal property.” (4 N.J. 428, 434, 73 A.2d 183, 186.) The court also specifically stated: “The cause of a fire is generally unknown, fires commonly occur where due care has been exercised as well as where due care was wanting. Where a fire originates on a defendants’ premises, that alone is not evidence that it was started by the defendant, nor that the fire was caused by any negligence on its part.” 4 N.J. 428, 436, 73 A.2d 183, 186.

In the case before us, plaintiff has failed to allege even that defendant was negligent in allowing the fire to start. There is a complete absence of factual allegations, such as the careless storage of combustibles as in the case relied upon, upon which a charge of negligence or breach of a legal duty could be based. Plaintiff has alleged merely that the defendants owned the apartment building. She does not even allege in her amended complaint when the fire occurred with reference to the date of her injuries. It is not legally sufficient for the amended complaint to allege in so many words that the defendants owed a certain duty to the plaintiff. This is merely a conclusion of the pleader and “plaintiff must allege proper facts to demonstrate the basis upon which his claim was founded.” (Warren v. Meeker, 55 Ill.2d 108, 114, 302 N.E.2d 54.) Compare Van Dekerkhov v. City of Herrin, 51 Ill.2d 374, 282 N.E.2d 723.

We are not aware of any decision which is directly in point here. However, cases in other jurisdictions, upon similar facts, have found no breach of duty. Tiffany v. F. Vorenberg Co., 238 Mass. 183, 130 N.E. 193, 14 A.L.R. 222; Klassette v. Liggett Drug Co., 227 N.C. 353, 42 S.E. 2d 411.

In Tiffany, the dismissal of plaintiff’s complaint was affirmed. There, a fire had occurred in the basement of defendant’s building and glass, broken by the fire department as well as ice, formed by the accumulation of water used to extinguish the fire, were allowed to remain on the public sidewalk. The court stated:

“Inasmuch as the defendant did not cause the accumulation of ice and glass, it was under no obligation to remove it or to guard against injury by reason of its existence.” 238 Mass. 184-185, 130 N.E. 193.

We are, therefore, impelled to conclude that the trial court properly sustained the motion of defendants to dismiss the amended complaint. As regards the statement in plaintiff’s brief regarding her right to amend again, no proposed amendment appears in the record and apparently none was presented to the trial court. Therefore, we must conclude that the amended complaint could not be further amended so as to state a cause of action. Ashe v. Hatfield, 13 Ill.App.3d 214, 218, 300 N.E.2d 545 and additional cases therein cited.

The order of dismissal appealed from is therefore affirmed.

Judgment affirmed.

EGAN, P. J„ and BURKE, J., concur.