author: Mr. JUSTICE BURKE

text:
    349 West Ontario Building Corporation et al., Plaintiffs-Appellants, v. Palmer Truck Leasing Co. et al., Defendants-Appellees.
    (No. 57702;
    First District (1st Division)
    September 3, 1974.

      Charles N. Salzman and Victor G. Savikas, both of Chicago, for appellants.
    Solomon Gutstein and Ronald S. Cope, both of Chicago, for appellees.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

Plaintiffs, the owner and the sublessor of improved real estate at 3636 North Taiman Avenue, Chicago, brought an action against the defendants, guarantors on the sublease, for breaches by the subtenants (not parties to this action) of the covenants to pay rent and tax deposits and to repair and restore the premises. The court, sitting without a jury, entered judgment for the defendants. The plaintiffs appeal.

Plaintiff 349 West Ontario Building Corporation (hereinafter called “owner”) entered into a written lease of its property, located at 3600 North Taiman Avenue and 3636 North Taiman Avenue, with plaintiff Donald Bruce & Co. (formerly Medicated Products Company and hereinafter called “Bruce”). The lease is dated November 15, 1956, and describes a lease term from January 1, 1957, to December 31, 1969. On or about November 25, 1959, plaintiff Bruce entered a sublease with Health-A-Teria, Inc., and Sherwin-Gail Company for the property at 3636 North Taiman. Plaintiff owner acknowledged and agreed to the sublease, but absolved the subtenants of any liability to it for a breach by plaintiff Bruce. The sublease was for 10 years, beginning January 1, 1960, and ending December 31, 1969. The defendants, Palmer Truck Leasing Co., Eugene Sorinsky (the president and principal shareholder of Health-ATeria, Inc. and Sherwin-Gail Co.), Irving Epstein, Arthur B. Shellist, Manuel Shellist and living Shellist, guaranteed the performance of the terms, conditions and covenants of the sublease.

At the time the sublease was signed, the premises were occupied by a tenant named Empire Amerex. The sublease notes the possession of this tenant and indicates the intention of Empire Amerex to vacate by December 31, 1959. The sublease then specifically absolves the plaintiffs of any responsibility for insuring the exit of Empire Amerex. Although the date set for the subtenants’ possession was January 1, 1960, the sublease, provides that the obligation to pay rent would not commence until possession if possession were delivered after January 1, I960. ■ •

Late in 1967 the two subtenants experienced financial difficulty. Sherwin-Gail was involuntarily dissolved on November 14, 1967, and Health-A-Teria was adjudicated a bankrupt on March 21,1969. Plaintiffs allege in their complaint that Sherwin-Gail Co. vacated and abandoned the subleased premises on or before the date on which it was involuntarily dissolved. The complaint also alleges that Health-A-Teria, Inc., remained in possession of the premises until May 15, 1968, when it vacated and abandoned the premises. The plaintiffs contracted to sell the property on or about September 1, 1968, to Austin-Continental Corporation, which is not a party to these proceedings.

The subtenants paid rent and tax deposits through March, 1968, and paid $1500 toward the rent due for April, 1968. In Count I of the complaint, plaintiff Bruce seeks rental payments and tax deposits for the period April 1, 1968, through October 8, 1968 (with credit for the $1500 paid towards April’s rent), in the amount of $26,987.24. Plaintiff Brace also seeks the sum of $98,103.98, as the reasonable cost of necessary repairs to restore the subleased premises, plus attorneys’ fees and costs. In Count II of the complaint, plaintiff owner makes substantially the same claims as plaintiff Bruce. At trial, however, the defendants had stricken the part of Count II claiming unpaid rentals by plaintiff owner, since plaintiff Brace satisfied all rent payments under the prime lease.

In the course of the trial the defendants argued that the subtenants were not put in possession of the leased premises until May, 1960, 5 months after the date mentioned in the sublease for delivery of possession. They contend that, since the subtenants paid rent for the 5 months during which they did not have possession, they should be given credit for those payments against any rentals claimed for the months at the end of the term. Similarly, they argued that the deposits for taxes which were, under the terms of the sublease, to be applied toward any taxes due and payable during the term of the sublease, were adequate to cover any taxes the subtenants owed. The plaintiffs had computed the taxes owed as damages by including a ratable portion of the taxes for 1968, the bill for which would not arrive until 1969. The trial judge decided in favor of the defendants on these arguments. When the amounts of rent and tax deposits were computed, the defendants owed nothing.

Regarding the covenant to repair and restore the premises, Mr. Louis Solomon, the president and principal shareholder of both plaintiffs, testified as to the condition of the subleased premises as of November, 1969, when the sublease was signed, and as of the time the defendants vacated the building. The cost of repairs was testified to by representatives of the buyer of the building, who presented evidence of expenditures they incurred. The plaintiffs also offered a witness qualified to value real estate in the area. The court refused to allow him to testify, whereupon the plaintiffs made an offer of proof, consisting of the witness’ opinion that due to the deteriorated condition of the building, it sold for $60,000 less than it would if rehabilitated. The court found for the defendants and against the plaintiffs on this issue as well as on the issue of breach of the covenant to pay rent and tax deposits. Its decision was embodied in a judgment order dated March 28, 1972, in which the plaintiffs’ complaint was ordered dismissed.

The plaintiffs claim that the court erred in finding no damages for breach of the covenant to pay rent on the sublease from April 1, 1968, to October 8, 1968, the date on which the sale of the premises was closed. The court determined after hearing evidence that the sublessees did not have complete possession of the leased premises until May, 1960, for the reason that the prior tenant, Empire Amerex, occupied at least part of the premises until then. During the period January 1, 1960, through May, 1960, the sublessees paid rent in the amounts required by their agreement with the plaintiffs. The court concluded that these payments were advance rentals and offset the rent that was due but unpaid during 1968 against the 1960 advances. Since the advances exceeded the unpaid rent, the court concluded that no damages were due as rent on the sublease.

. The plaintiffs argue that the court’s finding that the sublessees did not have possession for the first 5 months of the sublease is against the manifest weight of the evidence. They cite evidence that even if, as claimed by the sublessees, there was another tenant in possession of the premises, the other tenant’s possession was not complete. Hence, they urge, the sublessees were not deprived of possession of the rented property.

We first dispose of the plaintiffs’ contention that the subtenants’ voluntary payment of rent for the first 5 months of 1960 establishes that they had possession of the leased premises. The sublease provides with respect to possession and the payment of rent:

“The term of this lease shall be for a period of ten (10) years, commencing January 1, 1960, and expiring December 31, 1969, to be occupied and used by Lessee for warehousing, packaging, and distributing, buying and selling of drugs, cosmetics, notions, toys, sundries, paper products, housewares, records, cigarettes, cigars, candies, gums, stationery, school supplies, wearing apparel, and kindred items. Lessee understands that there is presently a tenant in possession of the subject premises who has indicated that it will vacate on or before December 31, 1959; but Lessor does not guarantee the actions of the present tenant in possession, nor does it guarantee delivery of possession on any particular day to the Lessee herein. In the event that Lessor shall not deliver possession of the subject premises to the Lessee on or [before] February 1, 1960, then either Lessor or Lessee, at their option, by the service of written notice upon the other party, shall have' the right to cancel this lease and in which event any advance rental payments or deposits shall be returned and the parties returned to the status quo. In the event of such cancellation, the Lessor and the Lessee do hereby waive and relinquish any right or claim for damage from the other for the failure to deliver possession of the subject premises. If Lessor shall deliver possession to Lessee prior to January 1, 1960, it shall first notify Lessee of its intention so to do upon five (5) days’ prior written notice and rent shall commence on a pro rata daily basis from the effective date and stated in said notice. If Lessor shall deliver possession to Lessee subsequent to January 1, 1960, rent shall not commence until the date of delivery of possession.”

The plaintiffs cite a number of cases which support the rule that payment of rent is conclusive proof of the landlord-tenant relationship. (See Mackin v. Haven, 187 Ill. 480, 58 N.E. 448; Voigt v. Resor, 80 Ill. 331; Bellows v. Ziv, 38 Ill.App.2d 342, 187 N.E.2d 265.) No case extends this rule to that urged by the plaintiffs: that payment of rent is conclusive proof of possession of the rented premises. We see no reason for such an extension. It is common practice to require rental payments on the first day of a month. At that point it is certainly not proof of possession for the full month. A tenant may without justification fail to take possession of the rented premises, in which case the obligation to pay rent continues. On the other hand, the tenant may be denied access to the rented premises by the lessor, in which case the obligation to pay rent ceases. Cottrell v. Gerson, 371 Ill. 174, 20 N.E.2d 74.

The parties to this sublease agreed that, should possession be delivered after January 1, 1960, the date of possession would trigger the obligation to pay rent. The question thus becomes, when was possession delivered? To answer this question we must examine what is meant by the term “possession” as used in the sublease. The sublease recites:

“* * * Lessee understands that there is presently a tenant in possession of the subject premises who has indicated that it will vacate on or before December 31, 1959, but Lessor does not guarantee the actions of the present tenant in possession, nor does it guarantee delivery of possession on any particular day to the Lessee herein. In the event that Lessor shall not deliver possession of the subject premises to the Lessee on or [before] February 1,. 1960, then either Lessor or Léssee, at their option, by the service of written notice upon the other party, shall have the right to- cancel, this lease and in which event any advance rental payments or deposits shall be returned and the parties returned to the status quo.”

Essentially, these terms were the contracting parties’ attempts to protect themselves against any actions of Empire Amerex.

It is not clear from the document itself what is meant by the term possession, with respect to either the subtenants or Empire Amerex. What is clear is that the sublease made no specific provision for partial possession or partial payment for partial possession. If we then regard the term “possession” as unambiguously referring to total possession, it is clear that the plaintiffs in the instant case have no claim, since the record establishes that Empire Amerex was not totally out of possession until May, 1960.

If, on the other hand, we regard the term “possession” as ambiguous, we must interpret its meaning in favor of the subtenants and against the plaintiffs who drafted the sublease. (In re Estate of Corbin o. McKey & Poague, Inc., 105 Ill.App.2d 120, 245 N.E.2d 117.) This results in a finding that complete possession in the subtenants was required under the terms of the sublease before the subtenants were obligated to pay rent. Thus, the trial court’s decision on this issue in favor of the defendants was not against the manifest weight of the evidence, and since the 1960 prepaid rents exceeded the 1968 unpaid rents, the plaintiffs can recover nothing.

The plaintiffs argue that the subtenants’ failure to object to late possession and their continued payment of rent bars by waiver any breach on the part of the plaintiffs. Hence, they contend there should be no offset against rents due in 1968. The plaintiffs misinterpret the reason for applying the advance rentals, those paid for months not in possession, against the rents due under the contract for the last months of the sublease. The offset was not based on a breach by the plaintiffs. The sublease provided a specific term which the court simply enforced by applying amounts paid against amounts due. The rental payments during the first 5 months of 1960 were not due as a result of the specific terms of the sublease. The plaintiffs drew the contract with the knowledge that the present tenant was holding over. They provided for rental payments to begin when possession was delivered if possession were delivered after January 1, 1960, and if the subtenants (or the plaintiffs) did not elect to rescind the sublease contract before February, 1960. The court’s decision followed from these provisions.

The plaintiffs’ next claim is for unpaid taxes based on a clause in the sublease:

“(a) Lessee further agrees to pay as additional rent for the demised premises all general real estate taxes and water rates and all other impositions, ordinary and extraordinary, of every kind and nature whatsoever, which may be levied, assessed or imposed upon said premises or any part thereof or upon any building or improvements at any time situated thereon or levied or assessed upon the interest of the Lessor in or under this lease, now due or accruing and becoming due and payable during the term of this leásé, commencing with the general real estate taxes for the year-1960, all of which said water rates, taxes, assessments and other impositions' shall be paid by the Lessee before they shall respectively become delinquent and in any case within apt time to prevent any sale or forfeiture of said demised premises therefor, or for any part thereof.
(aa) In addition to and simultaneously with the payment of the monthly installments of rent hereunder, the Lessee agrees to make monthly deposits with Lessor of amounts equal to one-twelfth (%2th) of the annual taxes as may be levied against said real estate, based upon the amount of the most recent ascertainable tax, and the Lessor agrees to cause such sums so deposited with it to be paid to the County Treasurer on behalf of the Lessee in payment of such taxes. In the event the amounts se deposited by the Lessee on account of taxes shall not be sufficient to pay the installment of taxes falling due from time to time, then Lessee shall pay such sums as may be necessary to pay said taxes in full upon five (5) days’ notice from Lessor. Once each year when bills are issued by the County Collector an áccounting shall be had between the parties in connection therewith. If any surplus funds remain to the credit of the Lessee, then such surplus shall be credited to the tax reserve for the next tax to become due and payable.”

The subtenants’ obligation to pay taxes is solely a result of this clause. They did not make tax deposits after April,-1968. ■

The plaintiffs argue that the subtenants were liable for the 1968 taxes, based on the terms of the sublease. They cite a number of cases involving the nature of the real property tax lien in Illinois. They argue that since the taxes were imposed before the- end of- the sublease, they were the responsibility of the subtenants. We do not agree.

As with the rent issue, thé issue of tax deposits requires an interpretation of the terms of the sublease. This means an analysis of the obligation to make monthly deposits' equal to one-twelfth of the most recent real estate tax bill in order to pay the real estate taxes “which may be levied, assessed or imposed * now due or -accruing and becoming due and payable during the term of this lease # ° The plaintiffs argue that the subtenants (hence the defendants) owe tax deposits to pay the 1967 and a ratable share of the 1968 taxes. The defendants argue that the status of the 1967 tax obligation is different from that of the 1968 tax obligation. They contend that the subtenants were required by the sublease to pay the 1967 taxes because they became due and payable during the term of the sublease. Since the 1968 taxes became due and payable upon receipt of the 1968 bill in 1969, those taxes were not due and payable during the term of the sublease and the subtenants were not required to pay them. The tax escrow was sufficient to pay the 1967 taxes. The defendants contend and the trial court agreed that the subtenants were not liable for the 1968 taxes and the plaintiffs may not recover additional tax deposits from them or the defendants.

• We conclude that the subtenants were liable for real estate taxes “levied, etc.” during the term of the sublease, only if such taxes became due and payable during the term of the sublease. No case is directly in point in interpreting the language used by the parties here. There is, however, an Illinois case involving a similar situation; i.e., where the contractual language bases a tax obligation on both the time of imposition and the time of payment. (Thornton v. Helmick, 201 Ill.App. 592.) The parties there exchanged real estate “subject to taxes and special assessments levied and payable after tire year A.D. 1911.” This court determined that the critical term was “payable.” It held that the purchaser was liable for special assessments which had become liens on the property prior to 1911 if they were payable after 1911. It is axiomatic that the same result would apply to taxes which were a lien before 1911 and payable after 1911.

This decision, coupled with the applicable rules of interpretation (in favor of the party who did not draft the ambiguous term) requires the conclusion that the subtenants were not obligated to pay taxes until due and payable. There is no evidence in this record of any bill for 1968 taxes. The plaintiffs would have us accept the tax proration established at the sale of the premises as fulfilling the “due and payable” requirement. This result does not follow. The proration established the owner’s tax obligation. We sustain the trial court’s determination of this point.

The plaintiffs contend that the clear intent of the parties as manifested in the sublease was that the obligation to make tax deposits was to be coterminous with the obligation to pay rent. In light of our determination that the first five months’ rents were advances, thus offsetting the subtenants’ obligation to pay further 1968 rents, this argument must fall.

The plaintiffs maintain that they established the breach of the covenant to repair and restore the premises and the resulting damages, and that the court should not have decided in favor of the defendants on this issue. The first part of the plaintiffs’ argument is directed at the proof of the subtenants’ liability; i.e., breach of the covenant. The sublease provides:

“Lessee’s taking possession shall be conclusive evidence as against Lessee that the premises were in good order and satisfactory condition when Lessee took possession. No promise of Lessor to alter, remodel or improve the premises or the building and no representation respecting the condition of the premises or the building have been made by Lessor to Lessee, unless the same is contained herein, or made a part hereof. This lease does not grant any rights to light or air over property, except over public streets kept open by public authority. At the termination of this lease by lapse of time or otherwise, Lessee shall return the premises in as good condition as when Lessee took possession, ordinary wear and loss by fire or other casualty covered by insurance hereunder excepted, failing which Lessor may restore the premises to such condition and Lessee shall pay the cost thereof. Lessee may remove any floor covering laid by Lessee, provided that (1) Lessee also removes all nails, tacks, paper, glue, bases and other vestiges of the floor covering, and restores the floor surface to the condition existing before such floor covering was laid, or (2) Lessee pays to Lessor, upon request, the cost of restoring the floor surface to such condition.” (Emphasis ours)

Mr. Louis Solomon, the president of both plaintiffs, testified that he was familiar with the subleased premises and that he had inspected them in November, 1959. He described specific areas of the building that were in good order at that time and that, upon inspection when the subtenants vacated the premises, were in a damaged condition in May, 1968. Our decision that full possession was not delivered to the subtenants until May, 1960, coupled with testimony by an employee of the subtenants which contradicted Mr. Solomon’s testimony as to the condition of the premises in November, 1959, weighs against the plaintiffs’ claim of a breach by the subtenants. We will disturb a lower court’s determination on an issue of fact only when the judgment is against the manifest weight of the evidence. Such is not the case here.

To recover under the terms of the sublease the plaintiffs were required to show that the condition in which the premises were returned to plaintiff Bruce was different from the condition when the subtenants took possession and that the difference amounted to a compensable injury to the plaintiffs or either of them. We first examine the defendants’' argument that the subtenants were absolved of any claim by plaintiff owner for a breach of the prime lease by plaintiff Brace. The sublease specifically states:

“The undersigned hereby for itself, its successors and assigns, executes this agreement as Owner of the demised premises for the following express purposes:
ft ft ft
(d) To acknowledge that said Health-A-Teria, Inc. and Sherwin-Gail Co. shall have no liability with respect to or responsibility for any of Lessee’s promises, covenants, representations or obligations under said lease between Medicated Products Co. and the undersigned.”

The threshold question is whether plaintiff owner has a cause of action against the subtenants, hence, the defendants, for breach of the covenant to repair and restore the premises. The defendants argue that the above-quoted portion of the sublease precludes plaintiff owner from recovering from the subtenants or themselves on this covenant. The plaintiffs respond, and we agree, that this covenant is one which runs with the land. (Batavia Manufacturing Co. v. Newton Wagon Co., 91 Ill. 230.) Hence, the breach is actionable by the owner. It is clear from the sublease that the parties contemplated that the subtenants be relieved of liability for a breach of contract by plaintiff Bruce, not that the subtenants receive a general covenant not to sue from the plaintiff owner.

Having determined that the subtenants’ liability was established and that both plaintiffs have a cause of action for breach of the covenant to repair and restore the premises, we proceed to the issue of damages. This court recently reaffirmed the general rale in Illinois that damages due to a breach of contract are limited to actual losses arising from the breach. (St. Joseph’s Hospital v. Corbetta Construction Co., 21 Ill.App.3d 925, 316 N.E.2d 51, modified on rehearing August 19, 1974.) This issue involves the application of that principle to the instant case in which the plaintiffs have presented alternative theories of recovery.

The plaintiffs’ first theory is premised upon their assertion that the sale of the subleased premises had no effect on their claim for damages due to the subtenants’ breach. The plaintiffs argue that the cost of repairs performed by the purchaser, Austin-Continental, establishes the dollar amount that would have been due them had they elected to make the repairs themselves. No Illinois case has treated this question, but the Federal Court has done so, in a case involving interpretation of Illinois law. (Bowes v. Saks & Co. (7th Cir. 1968), 397 F.2d 113.) In that case, the lessee was obligated to restore the premises, made major alterations and failed to comply with the restoration requirement. The building was sold and the former owner and landlord sued the lessee. The court determined that the lessors had suffered no compensable loss. The case differs from ours in that the purchaser did not intend to have the premises restored. The record in the instant case establishes that the purchaser did in fact make the repairs for which the plaintiffs seek reimbursement.

Though recovery is thus theoretically possible under the Bowes rules, the plaintiffs here cannot recover for another reason. Assuming that the purchaser reduced the purchase price by the amount it would have to expend to rehabihtate the premises, the plaintiffs’ evidence does not establish their damages because the damaged areas described by Mr. Solomon were not isolated in the evidence of repairs presented by the purchaser. A review of the record reveals no instance where the specific element of damage caused by the subtenants was specifically quantified in repair biHs. On this theory, therefore, the plaintiffs cannot recover. Moreover, the plaintiffs’ claim that the purchaser considered the building’s condition when it made the purchase offer is not enough to establish that the damage done by the subtenants reduced the sale price by a specific dollar amount.

The plaintiffs’ second theory of damages is that the sale price of the premises was $60,000 less than it should have been, as a direct result of the subtenants’ breach. To prove this claim, the plaintiffs presented the testimony of a real estate broker familiar with real estate values in the area. The trial judge refused to allow him to testify, whereupon the plaintiffs made an offer of proof. The witness would have testified that due to the condition of the building it was worth $60,000 less than it would have been in good repair. The plaintiffs ignore a critical point. Even if this testimony were admitted, it would only describe a general condition, not the diminution in value which resulted from the subtenants’ breach. On that basis the plaintiffs could certainly not recover damages. Moreover, there is nothing in this record which shows any damage to plaintiff Bruce; there is no indication that plaintiff owner made any demand for damages or that plaintiff Bruce paid any.

We concur in the reasoning of the Bowes decision and propound the rule that sale of leased premises does not automatically bar any action for breach of the covenant to repair and restore the premises. The overriding rule of restitution remains that the injured party be made whole, but that he not receive a windfall. If the plaintiffs here had finked the specific damages done by the subtenants with the specific cost of repair and established that the purchaser paid that much less for the building because of the subtenants’ breach, or if they could have shown that specific damaged conditions which were caused by the subtenants caused corresponding specific reductions in the market value, they could have recovered. The plaintiffs failed to establish that the subtenants caused damage which resulted in a compensable loss to them.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

EGAN, P. J., and GOLDBERG, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Marian G. Anagnostopoulos, Plaintiff-Counterdefendant-Appellant, v. Lampis D. Anagnostopoulos, Defendant-Counterplaintiff-Appellee.
    (No. 58739;
    First District (1st Division)
    September 3, 1974.

      Stuart Litwin, of Chicago, for appellant.
    Herbert A. Glieberman, of Chicago (Harry G. Fins, of counsel), for appellee.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

This case arose from a divorce action brought by Marian Anagnostopoulos, the plaintiff-counter defendant (hereinafter plaintiff) against Lampis Anagnostopoulos, the defendant-counter plaintiff (hereinafter defendant), who filed a counter-complaint for divorce. Both parties alleged mental cruelty as the grounds for their respective actions. On January 17, 1973, a decree was entered granting a divorce to the defendant and awarding custody of the parties’ minor child to him. The order further provided that the plaintiff be awarded $3000 of $21,000 which had at one time been held in joint tenancy with the defendant. Finally, the order directed the defendant to pay to the plaintiff”s attorney $3000 in fees.

The plaintiff appeals on the grounds: (1) that the court’s decision with respect to child custody was contrary to the manifest weight of the evidence and constituted an abuse of the court’s discretion; and (2) that she should have been awarded one-half of the amount once held in joint tenancy. The defendant cross-appeals on the grounds that a $3000 award for the plaintiff’s attorney’s fees is not supported by the record. No appeal is taken from that part of the order granting the divorce to the defendant.

The parties were married in Chicago in July, 1962. One child, a daughter, was bom of that union, and at the time of the entry of the decree was 10 years old. On December 30, 1971, the plaintiff filed suit for divorce, alleging as her grounds mental cruelty. The defendant filed a counter-complaint for divorce on January 26, 1972, alleging the same grounds. Both parties sought custody of the child.

Hearings commenced on July 20, 1972, at the conclusion of which the court granted a divorce to the defendant and awarded him custody of the child. In her brief the plaintiff states:

“The trial court based its determination upon the following allusions:
1. that the plaintiff drove a motorcycle;
2. that she had on three past occasions used marijuana;
3. that she had continued her educational pursuits after the child was bom;
4. that she did not hold religion in high favor;
5. that she occasionally employed words characterized by the court as obscene;
6. that she possibly had friends who were homosexuals and may have been one herself;
7. that she had made derogatory remarks to a woman who devoted the majority of her time to the maintenance of her home;
8. that once she achieved her Ph.D. in psychology she would probably pursue a career;
9. that the child had at one time been malnourished; and,
10. that the mother desired the child to be independent (R. 783-790).
In summary, the lower court stated that tire child custody issue revolved around the contentions that the father devoted too much time to his profession while 'the mother is one of the members of the current avant-garde.’ ”

The court also determined the division of the parties’ property. The defendant testified that as of October, 1971, a joint savings account held in the names of himself and the plaintiff contained about $21,000. The defendant closed the account in that month, two months before the complaint was filed by the plaintiff, and placed the funds in an account in his own name. He subsequently withdrew approximately $13,000 for the purchase of medical equipment used in his practice.

The plaintiffs first argument is that the award of custody of the parties’ child to tire defendant was against the manifest weight of the evidence. She cites authority for her argument that the mother has a paramount claim to custody of a young child (Hahn v. Hahn, 69 Ill.App. 2d 302, 216 N.E.2d 229) and asserts that the defendant failed to overcome this presumption. While giving custody to the mother may be the usual result of a custody hearing, there is no rale in Illinois that unless she is shown to be unfit, custody should be given to the mother. (Carlson v. Carlson, 80 Ill.App.2d 251, 225 N.E.2d 130.) Furthermore, our 1970 Illinois Constitution provides that equal protection of the law shall not be denied or abridged because of sex. (Ill. Const. (1970), art. I, sec. 18.) In light of this provision the argument advanced by the plaintiff is unacceptable.

The criterion for determining custody of a minor child in a divorce action is the welfare and best interests of the child. (Smith v. Smith, 122 Ill.App.2d 317, 258 N.E.2d 830.) The determination of custody is within the discretion of the trial judge and will not be disturbed on review unless it appears that manifest injustice was done or that the court has abused its discretion. Barbara v. Barbara, 110 Ill.App.2d 189, 249 N.E.2d 269.

The custody of the parties’ child was a bitterly contested issue. There was much conflicting testimony as to the relationships of the parties to each other and each party to the child. The parties accused each other, at least indirectly, of abnormal sexual activities, as well as of numerous failings with respect to the care of their child. It would serve no useful purpose to summarize these allegations here.

It is necessary, however, to examine the plaintiff’s claim that the custody determination was based on conclusions of the trial court which are not supported by the evidence adduced at trial. She proceeds to refute each point noted above, upon which she states the trial court based its erroneous determination.

Conceding without deciding that the plaintiff is correct in her attack on the court’s reasoning, we are not as a consequence required to reverse unless the ultimate decision was contrary to the manifest weight of the evidence. (Hoffman v. Hoffman, 40 Ill.2d 344, 239 N.E.2d 792.) The standard of the child’s best interests is still the overriding concern. Since both parents had equal rights to custody, it was a determination of which parent would best serve the interests of the child that concerned the trial court. The court determined that custody in the defendant would best serve his daughter’s interests. The fact that in so doing the court had to decide that custody in the plaintiff would not serve .the best interests of the child does not mean that the plaintiff may prevail on appeal by showing this latter determination alone to be erroneous..To prevail she must show, as she states in her brief, that the preponderance of the evidence as to the best interests of the child is on her side, rather than on the defendant’s. The trial court was in a better position to observe the parties and their witnesses. We find no reason to disturb his finding that the defendant have custody of the minor child.

The plaintiff also argues that the court’s decision amounts to an abuse of his discretion. She argues that reversal is required because of this abuse. (Akin v. Akin, 109 Ill.App.2d 150, 248 N.E.2d 829.) The plaintiff directs her attack on the manner in which the court reached his decision on custody. She states that the court made a value judgment between her life style and the defendant’s, and that judgment was influenced by extrajudicial sources, namely, his bias against the plaintiff’s way of life.

We disagree. In reaching his decision the court remained cognizant of the overriding rule: that the choice be in the best interests of the child. That the court chose a more traditional background for the child over the plaintiff’s more experimental views does not per se demonstrate an abuse of discretion.

The next issue is whether the court properly divided the property which the parties held in joint tenancy. The court awarded the plaintiff $3000 of the approximately $8000 left in the account after the defendant’s expenditures. The plaintiff argues that she should have received half of the $21,000 originally in the account since, in the absence of contribution to the account by her, a gift of one-half of the contents to her is presumed. She contends that the defendant never overcame this presumption. We cannot agree.

The court had the discretion to work a division of the parties’ jointly held property, assessing the special circumstances, if any, advanced by the plaintiff as to her claim on the property. (Katz v. Katz, 10 Ill.App.3d 39, 293 N.E.2d 904.) We find on the record in this case that the trial court did not err in finding that the defendant overcame the presumption of a gift of one-half of the $21,000 balance in the account and that the account was jointly held for convenience. See Kratzer. v. Kratzer, 130 Ill.App.2d 762, 266 N.E.2d 419, where the court discusses various factors relevant to this determination.

The last argument on this appeal is raised by the defendant. He contends that the court erred in directing that he pay $3000 to the plaintifFs attorney. His first contention on this issue, that the award amounted to sex discrimination against the defendant, is baseless. As the plaintiff points out, the court has the discretion to award attorneys’ fees to either party regardless of which party was awarded the divorce. Ill. Rev. Stat. 1971, ch. 40, par. 16.

The defendant’s next contention on the issue of attorney’s fees is that there is no evidence in the record to support the amount awarded. We agree with the defendant that Illinois law requires a determination of the parties’ relative abilities to meet the expenditure for fees. (Greenbaum v. Greenbaum, 14 Ill.App.3d 217, 302 N.E.2d 165.) The record in the instant case reveals both that the plaintiff, who merely speculated as to her potential earnings upon receipt of her doctorate, was unable to pay her attorney and that the defendant was able to pay the fees.

The defendant also asserts that there is no evidence of how much time the attorney spent on this case. The defendant failed to request an evidentiary hearing on this matter and cannot now complain that one was not held. (Jones v. Jones, 48 Ill.App.2d 232, 198 N.E.2d 195.) Moreover, the court indicated its familiarity with the amount of time expended by the attorneys so that he could reach a decision on fees. (Teich v. Teich, 132 Ill.App.2d 348, 270 N.E.2d 525.) We find no error in the court’s determination.

For the reasons stated the judgment is affirmed.

Judgment affirmed.

GOLDBERG and HALLETT, JJ., concur.


text:
      In re Estate of Benjamin Sugar, Deceased—(C. Jerome Bishop, Claimant-Appellee, v. American National Bank and Trust Company et al., Respondents-Appellants.)
    (No. 59082;
    First District (1st Division)
    September 3, 1974.

      Robert A. Downing and Henry L. Mason, III, both of Chicago (Sidley & Austin, of counsel), for appellants.
    Ira D. Schultz, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

This action involves a claim by attorney C. Jerome Bishop (hereinafter “Bishop”) against the estate of deceased attorney Benjamin Sugar (hereinafter “Sugar”) on a written agreement between Bishop and Sugar. Bishop asks for an accounting of fees allegedly due him in cases pending on the day of attorney Sugars death.

The estate of Sugar filed an answer asserting, as its first separate defense, that the agreement terminated by its express provisions upon Sugar’s death, and that accordingly Bishop had no claim to income received by the estate after the termination of the agreement. On July 12, 1971, the trial court entered an order denying this defense. On June 27, 1972, the trial court found that Bishop was entitled to an accounting and on January 10, 1973, granted Bishop’s claim in the amount of $8,847.27. The estate appeals.

In August, 1968, attorneys Sugar and Bishop entered into a verbal agreement for an association in the practice of handling personal injury cases. On May 30, 1969, they entered into a written agreement providing, in pertinent part, as follows:

“THIS AGREEMENT, made and entered into this 30tih day of May, 1969, by and between BENJAMIN SUGAR * * * and C. JEROME BISHOP * * *
WITNESSETH:
WHEREAS, the parties hereto are attorneys at law, duly licensed to practice law in the State of Illinois, and
WHEREAS, said attorneys have been associated with each other in the practice of law for a number of years last past, and
WHEREAS, the parties hereto desire to set forth herein their arrangements for continuation of that association,
NOW, THEREFORE, it is hereby mutually agreed as follows:
1. The term of this agreement shall commence on June 1, 1969 and continue for a period of two (2) years from that date. If the parties hereto desire to extend the agreement beyond that period it shall be extended for terms of one year each by an instrument in writing signed by both of the parties hereto.
2. Bishop shall continue to perform legal work including- trial work and services for Sugar in the fashion and manner that Bishop has so performed in the past. Trial work shall be performed by Bishop and such attorneys as Bishop shall engage from time to time on Sugar’s behalf.
3. Bishop shall pay Sugar One Hundred ($100.00) Dollars per month as rent for the office Bishop occupies in Sugar’s suite, and all services rendered to Bishop in connection therewith. In addition, Bishop shall pay to Sugar one third (SSVaS) of Bishop’s fees received by Bishop on Bishop’s cases.
4. Sugar shall pay to Bishop thirty (30%) percent of the gross income received by Sugar from Sugar’s cases, but Sugar shall pay to Bishop not less than Twenty-five Thousand ($25,000.00) Dollars per year for each year of the term of this agreement, which shall be paid to Bishop at the rate of Five Hundred ($500.00) Dollars per week, except for two weeks of each year. After the end of each year of the term of this agreement, as soon as the figures and computations can be arrived at, the parties hereto shall arrive at an accounting in accordance with the terms of this agreement.
5. Each of the parties hereto shall be entitled to take the usual and ordinary vacations in accordance with and consistent with the practices followed by them during their association prior to the entry into this agreement.
IN WITNESSES WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written.
M
Benjamin Sugar
N
C. Jerome Bishop
This agreement will terminate upon the death of either party should death of either party occur prior to the two (2) year term set forth in Paragraph one (1) of this agreement.
N
Benjamin Sugar
M
C. Jerome Bishop”

On February 8, 1971, attorney Sugar died. Subsequently, the American National Bank and Trust Company of Chicago and the wife of the decedent, Sylvia Sugar, were appointed executors of his estate.

In a letter dated March 8,1971, the executors notified Bishop to furnish an accounting to them and to continue rendering his services on pending cases only until the end of that month. Thereafter, on March 11,1971, the executors notified Bishop that he was authorized to settle three pending cases if possible and also advised him to handle no other matters in the office as of that date unless specifically requested to do so by the executors or by the clients.

On April 5, 1971, Bishop filed a claim against the estate of Sugar seeking various forms of relief including recovery for services he rendered on the pending cases. On June 27, 1972, the court entered an order finding that Bishop’s agreement with Sugar was “in the nature of a joint venture” and that Bishop was entitled to an accounting. Specifically, tibe court held that Bishop was entitled to an accounting on the basis that:

“2. * * * C. JEROME BISHOP was not an employee of BENJAMIN SUGAR at the time of the death of BENJAMIN SUGAR, and that the Agreement of May 30, 1969, that had been entered into between C. JEROME BISHOP and BENJAMIN SUGAR was in the nature of a joint venture agreement. That the death of BENJAMIN SUGAR did not terminate the right or interest of C. JEROME BISHOP and that, as hereinabove set forth, C. JEROME BISHOP is entitled to an accounting to determine his share in the pending cases that were undisposed of at the date of death of BENJAMIN SUGAR in which the Estate of BENJAMIN SUGAR has received payments or claims a right to receive payments as pending cases are from time to time disposed of.”

On March 1, 1973, the court entered an order providing that Bishop was entitled to thirty percent (30%) of the funds collected by the estate for fees for legal services realized on cases pending on the date of Sugar’s death. After deducting the credits due the estate, the court ruled that Bishop was entitled to $8,847.27 and ordered the executors to file a further accounting on April 1,1973. The executors of the estate appeal.

The executors argue that the agreement between decedent Sugar and Bishop was a contract of employment and not an agreement in the nature of a joint venture. They contend that the contract terminated by its express terms on the death of Sugar and therefore Bishop was not entitled to an accounting of fees received by the estate after Sugar’s death.

A joint venture is an association of two or more persons to undertake an enterprise for profit. (Carroll v. Caldwell, 12 Ill.2d 487, 147 N.E.2d 69; Ramacciotti v. Simpkins, 130 Ill.App.2d 733, 266 N.E.2d 700.) The determination as to whether a joint venture exists depends upon the nature and substance of the enterprise and not exclusively on the form of the agreement. Ditis v. Ahlvin Construction Co., 408 Ill. 416, 97 N.E.2d 244; Reese v. Melahn, 53 Ill.2d 508, 292 N.E.2d 375.

In Carroll v. Caldwell, 12 Ill.2d 487, 496-97, 147 N.E.2d 69, 74, the supreme court summarized the general characteristics of a joint venture:

“It is pointed out in 30 Am. Jur., Joint Adventures, sec. 30, that courts have not laid down an exact definition of what amounts to a joint adventure inasmuch as fire answer depends largely upon the terms of the particular agreement, upon the construction which the parties have given it, and upon the nature of the undertaking as well as other facts. The most that can be done, it is said, is to point out certain general characteristics of the relationship of joint adventurers, and certain elements which are generally regarded as essential thereto. Accordingly, it can be said that a joint adventure contemplates an enterprise jointly undertaken; that it is an association of such joint undertakers to carry out a single project for profit; that there must be a community of interest in the performance of a common purpose, a proprietary interest in the subject matter, a right to direct and govern the policy in connection therewith, and a duty, which may be altered by agreement, to share both in profit and losses. (Hagerman v. Schulte, 349 Ill. 11; Harmon v. Martin, 395 Ill. 595; Harris v. Young, 298 Ill. 319, 23 I.L.P. Joint Adventures, 48 C.J.S., Joint Adventures, 30 Am. Jur., Joint Adventures, 80 A.L.R. 1037; 138 A.L.R. 955).”

We are of the opinion that there is no rigid or mechanical test which can be utilized in order to determine the existence of a joint venture. The determination depends upon the terms of the agreement as well as the nature and substance of the enterprise and the totality of surrounding relevant facts.

In the present case, the agreement between Bishop and Sugar evidences an enterprise undertaken jointly by the parties. The express language of the agreement speaks in terms of the parties being “associated with each other in the practice of law. We are of the opinion that the joint enterprise was the practice of law. The utilization of the term “associated” in the present agreement is not expressive of an intent to create an employer-employee relationship, as the executors contend existed. Moreover, under the terms of the agreement, Bishop was obligated to pay Sugar $100 per month rental and such an agreement is not indicative of an “employer-employee” relationship.

The association was undertaken for profit as evidenced by paragraphs No. 3 and 4 of the agreement and the parties had a community of interest in the continuation of their association. In addition, we believe that the parties each had a proprietary interest in the subject matter.

Paragraph 3 of the agreement provides Bishop with a two-thirds (%) interest, and Sugar with a one-third (Vs) interest in Bishop’s cases. In turn, paragraph 4 provides Sugar with a seventy (70%) percent interest and Bishop with a thirty (30%) percent interest, or at a minimum, an annual $25,000 interest in Sugar’s cases. Although the agreement provided for a guaranteed sum of $25,000 to Bishop in the handling of Sugar’s cases, nowhere does the agreement use the term “salary” or any other description of the compensation involved, which would denote an employer-employee relationship.

In the present case, the trial judge determined that the agreement between Sugar and Bishop was “in the nature of a joint venture” and that Bishop was entitled to an accounting. We are of the opinion that the court was correct in his determination and therefore the judgment of the trial court is affirmed.

Judgment affirmed.

GOLDBERG and HALLETT, JJ., concur.


author: Mr. PRESIDING JUSTICE EGAN

text:
    Chicago Magnesium Casting Company, Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 59111;
    First District (1st Division)
    September 3, 1974.

      Chapman & Cutler, of Chicago (Stephen E. Kitchen and George P. Sullivan, of counsel), for petitioner.
    William J. Scott, Attorney General, of Chicago (Dennis R. Fields, Richard W. Cosby, and Thomas J. Immel, Assistant Attorneys General, of counsel), for respondents.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

Chicago Magnesium Casting Company (“Chicago Magnesium”) appeals from certain portions of an order of the Illinois Pollution Control Board finding that Chicago Magnesium had violated section 9(a) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111%, § 1009 (a)) and imposing a $1000 fine. The case was submitted to the Board on an agreed statement of facts, which are summarized as follows:

Chicago Magnesium owns and operates a facility for the manufacture of castings, primarily of magnesium alloys. Among the manufacturing operations conducted is the pouring of molten magnesium alloys into molds. The manufacture of magnesium alloys often results in air-pollution emission problems during the pouring operations.

The standard operating practice in a sand foundry for magnesium-base alloys was to prepare the molten metal, to use sulphur dioxide gas or a dusting of sulphur powder at the pouring station and finally to protect the molten metal in the mold by sulphur admixed with the sand. These various agents can be a source of atmospheric pollution.

On July 6, 1970, Steven Rosenthal and Maxim Rice, engineers of the Illinois Environmental Protection Agency (“Agency”), investigated a complaint of odors in the vicinity of Chicago Magnesium. At that time Mrs. William Kempfer complained of a “sulphurous, burning and rotten odor that could make one nauseous.” Donald Burnett, president of Chicago Magnesium, claimed that about 1% of sulphur is in the sand used in the molds and that some of the sulphur can escape into the atmosphere during the pouring process. Chicago Magnesium was aware of the odor problem and had been working with the Cook County Air Pollution Control Bureau in an effort to control the sulphuric emissions. Chicago Magnesium had conducted air-sampling studies in the vicinity of the plant and had attempted “odor masking” to abate the odors. Burnett told the engineers he had been cooperating with the owner of a nearby mobile-home trailer court through an agreement to shut down operations when the odors became objectionable at the trailer court.

On January 24, 1972, Rosenthal and Timothy Antonoplos of the Agency again visited Chicago Magnesium. Calvin Trock, superintendant of manufacturing operations, told them that sulphurous odors do occur and are emitted during pouring operations. At that time the Agency investigators detected a strong smoky odor approximately 100 yards downwind of Chicago Magnesium. They also observed a haze coming from the west exhaust fan drifting toward the trailer court which was approximately 400 feet to the north. They interviewed several residents of the nearby trailer court who complained of strong odors. Some of them testified by stipulation that they noticed a “rotten choking odor coming from Chicago Magnesium”; that “the odor made them cough and sneeze and their eyes burn when downwind of the company”; that “they noticed acid-like fumes and a choking odor coming from Chicago Magnesium”; that “the odor came when the wind was from the south and hurt their chests”; that “they noticed an awful sickening odor when the wind was from the south”; and that “tire odor made them sick to their stomachs.”

In June, 1972, Burnett attended a seminar which was addressed by Dr. J. B. Hanawalt, professor of metallurgical engineering at the University of Michigan. Hanawalt described his ongoing research into the use of sulphur hexafluoride to replace the use of sulphur as an inhibitor for molten magnesium. The paper he submitted at the seminar described the purpose of his study to be the elimination of the necessity for the sulphur agent in the sand. Later, Burnett personally discussed with Dr. Hanawalt the introduction of sulphur hexafluoride to replace sulphur in the production processes at Chicago Magnesium.

In July, 1972, Chicago Magnesium initiated the use of sulphur hexafluoride and abandoned the use of sulphur as an agent in its processes. In so doing, it became one of the first, if not tire first, foundries in this country to use sulphur hexafluoride rather than sulphur as an agent. Since that date, Chicago Magnesium has not received any complaints from the owner or the residents of the nearby trailer court regarding odorous emissions. To introduce sulphur hexafluoride and replace sulphur as an agent has cost Chicago Magnesium approximately $3500.

Dr. Hanawalt had- published two articles describing his research at the University of Michigan. The steps recommended by Dr. Hanawalt in the articles basically are those which have been implemented by Chicago Magnesium.

On December 1, 1972, the Agency filed a complaint against Chicago Magnesium alleging a violation of section 9(a). On February 6, 1973, Rosenthal again visited the Chicago Magnesium plant. He noted that sulphur emissions had been effectively abated. Upon inquiry, he received no complaints from the residents of the trailer court. In fact, they had no complaints as to the operations of Chicago Magnesium since July, 1972. Chicago Magnesium had begun filing the appropriate applications in order to obtain an operating permit for its facility in Blue Island. Those permit applications were presently being subjected to the Agency review procedures.

Donald Burnett testified by stipulation that before July, 1972, there was no economically reasonable nor technically feasible method for Chicago Magnesium to bring its emissions into compliance; and that prior to July, 1972, Chicago Magnesium had attempted to turn off its overhead exhaust fans in order to avoid spreading odors toward the trailer court when the wind was from a southerly direction.

Steven J. Rosenthal testified by stipulation that he had detected strong odors emanating from Chicago Magnesium during both his previous visits but that on February 6, 1973, the odors had been effectively abated; and that before utilization of sulphur hexafluoride there was no reasonable means for controlling sulphur dioxide emissions from magnesium foundries.

Chicago Magnesium affirmed its intention to continue the use of sulphur hexafluoride rather than sulphur. It stated that it would not abandon the use of sulphur hexafluoride nor reinstitute the use of sulphur as an agent without obtaining an appropriate operating permit from the Agency.

In its principal argument, Chicago Magnesium relies on section 33 of the Act (Ill. Rev. Stat. 1971, ch. llBk, §1033), which provides in part:

“(c) In making its orders and determinations, the Board shall take into consideration all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits involved including, but not limited to:
(i) the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people;
(ii) the social and economic value of the pollution source;
(in) the suitability or unsuitability of the pollution source to the area in which it is located, including the question of priority of location in the area involved; and
(iv) the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source.”

The petitioner interprets section 33 to mean that, if it is not technically practicable or economically reasonable to reduce or eliminate the pollution, there can be no violation. Such an interpretation would mean that a government would be powerless to restrict pollution regardless of its severity, even if it endangered lives, so long as it was economically unreasonable or technically impracticable for an individual to continue to operate without polluting. This is a dangerous principle and manifestly unacceptable. We agree, rather, with the Agency’s position that economic reasonableness and technical practicability are but two factors to be considered by the Board in determining whether or not the Act has been violated.

In support of its argument, Chicago Magnesium points to the decisions of the Board in four previous cases: Environmental Protection Agency v. Commonwealth Edison Co., PCB 70-4; Moody v. Flintkote Co., PCB 70-36, 71-67; Employees of Holmes Bros. v. Merlan, Inc., PCB 71-39; and Environmental Protection Agency v. Incinerator, Inc., PCB 71-69. In the last three cases the Board said in its written opinion that “air contaminant emissions are unreasonable’ within the meaning of the Act when there is proof that there is an interference with life or property and that economically reasonable technology exists to control the contaminant emissions.” (Emphasis added.)

At the outset, we note that in each case the Board found that there was an economically reasonable and technically feasible method available to control the emissions and an interference with life or property. Consequently, it found a violation in each case. But none of the cases is authority for the reverse proposition — if a hardship is shown, ipso facto the polluter is absolved. In each case the Board passed only on the facts before it. We can only conjecture what the Board’s position would have been if the polluters had been able to show economic hardship. The only assumption we can safely make is that the Board might have held in favor of the respondents in those cases.

Moreover, it is a recognized principle of statutory construction that a long-standing interpretation of a statute by the agency principally responsible for its enforcement may be entitled to great weight but the agency’s interpretation is not necessarily binding on the court. (C. O. Baptista Films v. Cummins, 9 Ill.2d 259, 137 N.E.2d 393; Mississippi River Fuel Corp. v. Illinois Commerce Com., 1 Ill.2d 509, 513-514, 116 N.E.2d 394.) Even if the Board’s previous rulings could be considered as precedent for Chicago Magnesium’s argument, and we do not believe they are, we would reject them.

The petitioner also cites City of Monmouth v. Environmental Protection Agency, 10 Ill.App.3d 823, 295 N.E.2d 136. In that case, the Board made a finding that it was technologically practicable to abate the pollution and imposed a fine. The appellate court reversed and remanded the case because the Board based its finding on evidence presented in another case and ignored the evidence presented by the City. Subsequent to oral argument in this case, the supreme court granted petitions for leave to appeal on behalf of both the City and the Agency. The supreme court agreed with the appellate court on the sufficiency of the evidence to support the finding of technological practicability but reversed and remanded the cause on other grounds. (City of Monmouth v. Pollution Control Board, 57 Ill.2d 482.) The court held: “It is plain that air poHution, as defined in the statute, was shown to exist, and the evidence supports the finding that the City was in violation of section 9(a).” (57 Ill.2d at 489.) The court, however, added:

“The provisions of the Act make it plain that the General Assembly intended that the Board be possessed of expertise (ch. 111%, par. 1005(a)) and that it be vested with broad discretionary powers in making its orders and determinations (par. 1033 (c)) and in the imposition of civil penalties (par. 1042). It is equally plain that its orders and determinations are subject to judicial review (par. 1041), and in order to be sustained must find support in the record.
The legislative declaration of the purpose of the Act (par. 1002) indicates that the principal reason for authorizing the imposition of civil penalties (par. 1042) was to provide a method to aid the enforcement of the Act and that the punitive considerations were secondary. On this record, which shows beyond question that neither the Agency nor its predecessor, the Sanitary Water Board, was able to suggest an effective means of eliminating the odors, that the City, at substantial expense, co-operated in the implementation of every proposal, and that through the City’s efforts the problem appears to have been solved, we hold that the Board erred in imposing the fine.” 57 Ill.2d at 490.

We believe the reasoning of the court in that case is applicable here. The evidence does show a violation of the Act even after the investigators had first visited the plant. As pointed out in the City of Monmouth case, once the proof has shown that the respondent has violated the Act, the burden is on the respondent to show that compliance with the Board’s regulations would impose an arbitrary or unreasonable hardship. (Ill. Rev. Stat. 1971, ch. UIV2, par. 1031(c).) Chicago Magnesium made an agreement with the residents of the trailer court to halt pouring operations while the wind was in the south. No evidence was submitted to show that the cessation of pouring operations or turning off the fans while the wind was from the south was economically unreasonable. That being so, the Agency could properly conclude that Chicago Magnesium had not sustained its burden of proof.

The evidence does show a violation of the Act even after the investigators had first visited the plant. But no complaint was filed against Chicago Magnesium at that time. The record also shows that Chicago Magnesium had been working with the Cook County Air Pollution Control Bureau in an effort to control the emission. There is no gainsaying the fact that before July, 1972, there were no reasonable means for controlling sulphur dioxide emissions from magnesium foundries other than shutting off the fans or stopping the pouring operations. There was a 2Va year delay from the time of the first investigation of Chicago Magnesium until the complaint was filed. When the complaint was filed Chicago Magnesium was in compliance with the Act and had been so for almost 6 months. Under the circumstances, the imposition of a civil penalty will in no way aid the enforcement of the Act. For that reason we hold that the Board erred in imposing the fine. We, therefore, judge that the finding of the Board that Chicago Magnesium had violated section 9(a) is affirmed and that part of the order imposing a fine is vacated.

Order affirmed in part and vacated in part.

BURKE and GOLDBERG, JJ., concur.


text:
    Gust A. Kallas, Plaintiff-Appellant, v. Jeanne R. Lee, Defendant-Appellee.
    (Nos. 59180, 59449 cons.;
    First District (1st Division)
    September 3, 1974.

      Ward, Lussier & Dee, of Chicago (John Munday, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Leonel I. Hatch, Jr., D. Kendall Griffith, and Stanley J. Davidson, of counsel), for appellee.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

Plaintiffs initiated a complaint for alleged injuries and damages sustained- as a result of a motor vehicle mishap. Robert H. Lee was dismissed from the case on plaintiffs’ motion. At the conclusion of the trial, the jury returned a verdict upon which judgment was entered in the amount of $15,000 in favor of plaintiff, Gust A. Kallas, and against defendant, Jeanne R. Lee. Plaintiff Kallas appeals from that judgment.

Defendant Jeanne R. Lee was called as an adverse witness pursuant to section 60 of the Civil Practice Act. (Ill. Rev. Stat., 1973, ch. 110, par. 60.) She testified that at about 8 A.M. on January 29, 1968, she was involved in an automobile mishap at the intersection of Golf Road (Route 58) and Route 83. Defendant testified that the weather was overcast and rainy and the road surface near the site of the occurrence was wet. At the time defendant was traveling northbound on Route 83 which has two lanes northbound and two lanes southbound at the intersection with Route 58. There were traffic control signals located on the four corners of the intersection. As defendant approached approximately one block from the intersection of Routes 58 and 83, she was traveling in the right-hand lane at about 25 miles per hour. Defendant was following the northbound traffic which she stated was continuous, heavy traffic. Defendant did not see or recall the color of the traffic signal at Route 83 at any time prior to entering the intersection. Prior to the occurrence, defendant saw a “big huge yellow object” moving toward her. At the time defendant saw the “object” her vehicle was traveling at between 25 to 30 miles per hour and she had entered the intersection. Defendant testified that the yellow object was traveling in an easterly direction on Route 58 and it collided with her car.

Marion Krawczyk was called as a witness on behalf of plaintiff and testified that on January 29, 1968, he was employed by the State of Illinois. At the time of the accident, he was driving “a ton and half” dump truck owned by the State of Illinois and he had two passengers in the truck, Joseph Levatino, who was seated in the middle, and plaintiff Kallas, who was seated on the passenger side of the truck.. The weather was misty and the pavement wet. Prior to the collision Mr. Krawczyk was driving in an easterly direction on Route 58 at approximately 25 to 30 miles per hour. Prior to and during the time the truck entered the intersection, the traffic signal for east and westbound traffic on Route 58 was “green.” As he was entering the intersection, the witness -saw a car which was traveling northbound on Route 83 at approximately 40 to 50 miles per hour. When he observed this vehicle, Mr. Krawczyk tried to stop and cut his truck wheels “to the right to try to avoid the direct hit.” The vehicles collided in the middle of the intersection. After the collision, Mr. Krawczyk observed the plaintiff lying unconscious on the pavement with his head “split open.”

Plaintiff Kallas testified that on January 29, 1968, he was employed as a laborer by the State of Illinois. Mr. Kallas testified that on the date of the occurrence, he started work at 7:30 or 8 A.M. and that he was riding in a track owned by the State of Illinois. The truck was being driven by Marion Krawczyk. Joseph Levatino was also riding in the vehicle. Plaintiff did not remember the facts and circumstances concerning the occurrence; his first memory was when he awoke in Holy Family Hospital in Des Plaines. Plaintiff testified that when he awoke, he noticed that his head was bandaged and there were cuts on his face. Plaintiff testified that while he was in the hospital, he saw two doctors, Dr. Bederman and Dr. Duffy.

After plaintiff was discharged from the hospital, he experienced numbness in the front and top of his head, dizzy spells, pain in his left shoulder, left knee and back, and had to urinate an excessive number of times during the nights. Plaintiff described in detail the actions he took and the treatment he received in order to alleviate these conditions. Plaintiff testified that after the accident, he did not return to his former employment and that he went to work as a county traffic surveyor.

Wilburt H. Gransen was called as a witness on behalf of plaintiff and testified that on the morning of this occurrence, he was driving in a southerly direction on Route 83. When he arrived at the intersection of Route 83 and Route 58, he stopped because the traffic signal located on the west, comer facing him was “red.” The witness testified that there were four stoplights, one on each comer of the intersection. Mr. Gran-sen’s vehicle was the first car in line at the intersection and at the time the traffic signal for southbound traffic was red, he observed a northbound vehicle enter the intersection. The witness also observed an eastbound State of Illinois track approaching the intersection of Route 58. The track collided with the northbound automobile and at the time of the collision, the traffic signal for southbound traffic was “red.”

On cross-examination, Mr. Gransen testified that he did not observe the traffic signal on the northbound side of Route 83 and did not know whether the signal was functioning.

Plaintiff argues on appeal that the trial court erred in refusing to admit photographs taken by plaintiff’s treating physician depicting a laceration to plaintiff’s head. The photographs which plaintiff refers to are marked as plaintiff’s Exhibits No. 3 and 4 for identification and are color photographs depicting plaintiff’s head and an evulsion flap in the middle portion of plaintiff’s head. Defendant objected to the admission of these exhibits on the basis that they were “too gruesome” and that their admission would be prejudicial. The trial court sustained defendant’s objection and expressed the opinion that admission of the photographs “would inflame and influence the passion and prejudice of the jury.”

As this court stated in Darling v. Charleston Community Memorial Hospital, 50 Ill.App.2d 253, 321, 200 N.E.2d 149, 183:

“If evidence of this type has a reasonable tendency to prove some material fact in issue, such evidence may properly be admitted, and the question is one properly within the discretion of the Trial Court; if a photograph is accurate, properly identified, and relevant, the mere fact it may have a tendency to prejudice the jury is not sufficient to justify its exclusion; it is a matter within the Court’s discretion: Pitrowski etc. v. New York C. & St. L. R. Co. (1955), 6 Ill.App.2d 495, 128 N.E.2d 577. * * * Evidence having a natural tendency to establish the facts in controversy should be admitted; competent evidence may not be excluded merely because it might arouse feelings of horror or indignation in the jury; questions as to the character of the evidence offered, and the manner and extent of its presentation, are largely within the discretion of the Trial Court, and the exercise of that discretion will not be interfered with unless there has been an abuse to the prejudice of the defendant: People v. Jenko (1951), 410 Ill. 478, 102 N.E.2d 783.”

In Darling, this court upheld the propriety of admitting a photograph which depicted plaintiff’s leg prior to amputation, and in so ruling observed:

“A photograph of this type may be proper to give the jury a better understanding of the medical terminology in evidence and the demonstrative evidence which could not be completely expressed by the written or spoken word: People v. Donaldson (1956), 8 Ill.2d 510, 134 N.E.2d 776. And see: People’s Gas Light & Coke Co. v. Amphlett (1900), 93 Ill.App. 194; McNally v. Chauncy Body Corp. (1942), 315 Ill.App. 190, 42 N.E.2d 853.” 50 Ill.App.2d at 321.

In the present case, we have examined the photographs and do not believe that they are of such a nature as to unduly cause prejudice or inflame the jury’s passion. The photographs vividly and accurately depict the injury which plaintiff sustained and were relevant to the issue concerning the nature and severity of plaintiff’s injury and the resultant pain and suffering. Moreover, we are of the opinion that the utilization of demonstrative evidence in cases such as the present case should be encouraged. Plaintiff’s injury was sustained on January 29, 1968, and the case was tried more than 3 years later. During this period of time plaintiff's injury healed considerably and his physical condition was substantially different than at the time he sustained the injury. Under these circumstances, we are of the opinion that it would have been beneficial if the jury had the opportunity to view these photographs.

However, in the present case we cannot say that the trial court’s refusal to admit the photographs constituted an abuse of discretion resulting in prejudice to plaintiff. The nature and extent of plaintiff’s laceration was graphically described to the jury by the plaintiff’s treating physician, Dr. Stuart S. Bederman, who stitched the wound in plaintiff’s head and attended plaintiff until the wound healed. Dr. Bederman described in detail the injuries which the photographs portrayed and stated that when he examined plaintiff, he determined that plaintiff had an extensive (large) laceration of the scalp; that the laceration was a very large cut across the very top of the scalp, through the hairline, through the complete thickness of scalp, down to the bone; that the laceration was approximately 9 inches in length and 3 or 4 inches in width; that the edges of the laceration were separated; that when the edges separate there is a certain elasticity to the skin and muscles which will separate and make the wound gape. Dr. Bederman further testified that the scalp had lifted off from the skull and formed a flap; that he was able to observe the skull underneath the flap; that he was able to recognize on the skull beneath the flap a fracture of the outer table of the skull, which was “depressed.” The witness explained how he cleansed the wound with sterile salt solutions, washed it so as to get all the debris and dead tissue out and then sutured the wound. Dr. Bederman also testified that he noticed a subarachnoid hemorrhage which means that portions of the film around the brain were filled with blood. In addition, during the closing argument plaintiff’s counsel utilized the testimony of the doctor and vividly described plaintiff’s injury.

The jury thereafter found in behalf of plaintiff and rendered a verdict in the amount of $15,000. From our examination of the record, we believe that the jury, based upon Dr. Bederman’s detailed description and plaintiff counsel’s thorough recapitulation of plaintiff’s injury, appreciated the nature and extent of the laceration and the pain and suffering associated with this injury.

Plaintiff argues that the trial court erred in not directing a verdict in favor of plaintiff and against defendant on the issue of liability. In support of his argument, plaintiff relies upon the rule enunicated by the Illinois Supreme Court in Pedrick v. Peoria & Eastern Ry. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14, wherein the court stated:

“[Vjerdicts ought to be directed * * * only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

The evidence in the instant case, viewed in its aspect most favorable to the defendant, indicates that the weather was overcast and rainy on the day of the collision; that the traffic on Route 83 upon which defendant was driving was continuously heavy; that defendant’s speed was under the posted limits; that prior to entering the intersection defendant did not see or recall the color of the traffic signal for northbound traffic on Route 83; and that she did not observe the truck in which plaintiff was riding until her vehicle was already into the intersection. Additionally, there was no direct testimony that the precise traffic signal which defendant would have observed was “red” at the time of the accident.

If the traffic signal directing defendant was “red” and despite this fact defendant proceeded into the intersection, she would have been in violation of section 11 — 306(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95%, par. 11 — 306(c)). However, even if defendant was guilty of a violation of this statute, it does not follow that she was ipso facto guilty of negligence as a matter of law. The violation of a section of the Motor Vehicle Act is only prima facie evidence of negligence. (Wegener v. Anna, 11 Ill.App.3d 316, 296 N.E.2d 589.) The violation is a factor in considering the actions of the motor vehicle operator. (Savage v. Blancett, 47 Ill.App.2d 355, 198 N.E.2d 120.) Generally, the question of whether the violation coupled with other factors constitutes negligence is a matter for determination by the trier of fact. (Wegener v. Anna, 11 Ill.App.3d 316, 296 N.E.2d 589.) It was the function of the jury to determine whether the violation, if any, constituted negligence in view of the other relevant facts. Under these circumstances the trial court did not err in refusing to grant plaintiff’s motion for a directed verdict on the issue of liability.

Plaintiff argues that counsel for defendant committed reversible error by his remarks made during his closing argument. In the course of plaintiff’s closing argument, his counsel asked the jury to return a verdict in the amount of $75,000 plus compensation for the time plaintiff lost from work.

Thereafter, during defendant’s closing argument, the following transpired:

Defendant’s Counsel: “Counsel has asked you for astronomical sums here for injuries which really don’t exist anymore. He asked you for $3,500 on one count, and he tells you all about those things that the man suffered while he was in the hospital for some sixteen days, and the disability that he has, and he asked for some more sums after that, and instead of getting $6,500 like they add up to, he comes up with a total of $75,000. Then he wants to add the out-of-pocket expenses to that so I suggest that you have been subjected to a grossly exaggerated amount and request here. If a fair comment has any place in your consideration, I would suggest that he asked for 40 or 50 times what he really expects you to award this plaintiff — ”
Plaintiff’s Counsel: "Objection, and I ask that those remarks be stricken.”
The Court: “That’s an opinion which he has, and he can state anything which can be inferred from the evidence.”
Defendant’s Counsel: “The fact is, ladies and gentlemen, that his actual expenses in this case as I have calculated — and I think I have been fair about this — are $6,508, and if you’re going to find against my client, I think no more than twice that amount would fairly compensate for his pain and suffering, for his disability, and for any other things that he’s had.”

(The italicized portions of the above colloquy are the specific designations of error alleged by plaintiff.)

Plaintiff maintains that defense counsel’s comment had no basis in the evidence, that there was no foundation or support in the record indicating what amount of money plaintiff’s attorney expected to receive in damages and the comment did prejudice the jury against plaintiff and his attorney.

As this court stated with respect to closing arguments in Maguire v. Waukegan Park District, 4 Ill.App.3d 800, 805, 282 N.E.2d 6, 9-10:

“Counsel cannot state matters not in evidence, but can urge all reasonable inferences and conclusions which may be properly drawn from the evidence and wide latitude should be allowed. (Mattice v. Klawans (1924), 312 Ill. 299, 309; Anderson v. Universal Delta (1967), 90 Ill.App.2d 105, 111; Turkey v. Callos (1969), 112 Ill.App.2d 213, 219; Forslund v. Chicago Transit Authority (1956), 9 Ill.App.2d 290, 305.)”

During closing argument, counsel can state the amount of compensation he deems proved and warranted under the evidence. Turner v. Wallace, 71 Ill.App.2d 160, 217 N.E.2d 11; Coley v. Manicke, 24 Ill.2d 390, 182 N.E.2d 206.

We are of the opinion that it was permissible for defense counsel to state his conclusion that plaintiff’s claim was for a “grossly exaggerated amount.” Such a holding we believe is in consonance with the rule that wide latitude should be afforded counsel in urging reasonable inferences and conclusions during closing argument. However, we are of the opinion that defense counsel’s statement that “he [plaintiffs counsel] asked for 40 or 50 times what he really expects you to award this plaintiff” was improper argument and the trial court should have sustained plaintiff’s objection thereto. There is no evidence in this record indicating what amount plaintiffs counsel “really expected the jury to award, plaintiff” and therefore defense counsel’s statement constituted an impermissible conclusion.

This error was harmless. It is significant that during the closing argument defense counsel conceded that if the jury found against his client, a verdict not in excess of $13,016 would fairly, in his opinion, compensate plaintiff. As we have previously observed, the jury ultimately decided in favor of plaintiff and awarded damages in the amount of $15,000. Under these circumstances there was no prejudice to plaintiff.

Plaintiff also argues that the trial court committed reversible error in overruling plaintiff’s objection to defense counsel’s closing argument. We have indicated that the court should have sustained the objection relating to the argument as to the amount of money plaintiff’s counsel expected the jury to award. We do not believe that the manner in which the court overruled plaintiff’s objection lent support to defendant’s improper argument. We do not perceive any resultant prejudice to plaintiff.

Plaintiff also argues that the verdict was so grossly inadequate so as to require a new trial on the issue of damages.

The compensation to be awarded for personal injuries is a question of fact for the jury and if the jury has been correctly instructed as to the elements measuring damages and if there is no showing that the size of the verdict is the result of either passion or prejudice or the result of the jury having overlooked an element of damages, then the amount awarded will not be disturbed on review. Maguire v. Waukegan Park District, 4 Ill.App.3d 800, 282 N.E.2d 6; Lazzaro v. Garrett, 100 Ill.App.2d 452, 242 N.E.2d 59; Wisnawski v. Hungerford, 132 Ill.App.2d 96, 267 N.E.2d 507.

In the present case, the jury was properly instructed as to the elements of damage and there is no showing that any element was overlooked by the jury. There is no indication that the size of the verdict is the result of either passion or prejudice. The verdict of $15,000 is not so palpably inadequate as to justify interference by this court.

For these reasons, the judgment is affirmed.

Judgment affirmed.

EGAN, P. J., and HALLETT, J., concur.