author: MR. JUSTICE STAMOS

text:
    Thaddeus Bontkowski, Plaintiff-Appellant, v. Chicago Sun-Times and Field Enterprises, Inc., Defendants-Appellees.
    Gen. No. 53,027.
    First District, Fourth Division.
    September 17, 1969.

      Will Gieraeh, William R. Dunn, and Frank J. Kopecky, Jr., of Oak Lawn, for appellant.
    A. Daniel Feldman and Peter C. John, of Chicago (Isham, Lincoln & Beale, of Chicago, of counsel), for appellees.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff, Thaddeus Bontkowski, an attorney, brought a libel per se action against defendants Chicago Sun-Times and Marshall Field Enterprises, Inc. The defendants’ motion to dismiss the complaint for failure to state a cause of action was sustained, and plaintiff appeals.

The complaint alleged that plaintiff is a person of good name, fame, and repute, held in high esteem by and among his acquaintances and the general public; that plaintiff is a duly licensed attorney in the State of Illinois and is so engaged in the pursuit of his profession; that on or about August 14, 1966, in the city of Chicago, defendants maliciously and wrongfully composed and published a certain letter and accompanying editor’s note in the “TV Prevue” section of the Chicago Sun-Times newspaper, “Voice of the Viewer’s Column,” to wit:

“MASON LOSES A CLIENT
“I’m sure happy to hear that Perry (Raymond Burr) Mason won’t be back in court next season.
“I’m an attorney myself and realize the show was intended to be dramatic, but I can’t help laughing every time Mason wins a case.
“T. BONTKOWSKI
“(Editor’s note) Sounds like you haven’t been winning too many cases lately.”

It was further alleged that both the letter and editor’s note were written by an employee of defendants, one Dennis Smith, in pursuance of his duties compiling and editing “TV Prevue” of said newspaper; and that by reason of the foregoing, plaintiff was injured in his good name, reputation, employment and his professional competency as an attorney. Plaintiff complained that his sound judgment was impugned, and that he has been exposed to, and in fact suffered public contempt, ridicule, embarrassment and financial injury. Plaintiff denied writing the letter and alleged it was written by Smith, and further, that the editor’s note was false and defendants knew, or by exercise of reasonable care, could and would have known the statements concerning plaintiff were false, but that defendants failed to exercise reasonable care to ascertain the truth or falsity of the statements by making inquiry of plaintiff or otherwise, and by the composition, writing, and publishing of the letter and editor’s note, defendants demonstrated actual malice, spite and ill will toward plaintiff. The complaint further alleged that the letter and editor’s note were wholly false and libelous per se, and that plaintiff was greatly injured to his professional and personal reputation to plaintiff’s damage in the sum of $500,000.

By their motion to dismiss, defendants have admitted (for the purpose of the motion) the truth of all the material allegations properly pleaded in the complaint.

Since the complaint did not allege any special or actual damages, the issue before the court is whether the publication complained of imputes to plaintiff a want of the requisite qualifications to practice law and is thereby actionable as a libel per se.

In Whitby v. Associates Discount Corp., 59 Ill App 2d 337, 207 NE2d 482 (1965), the court stated that those classes of words held actionable per se in Illinois, i. e., without the showing of special damages, fall into the following categories:

“1. those imputing the commission of a criminal offense;
“2. those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society;
“3. those imputing inability to perform or want of integrity in the discharge of duties of office or employment ;
“4. those prejudicing a particular party in his profession or trade.”

These categories have been reiterated by Tunnell v. Edwardsville Intelligencer, Inc., 99 Ill App2d 1, 241 NE2d 28 (1968), revd on other grounds, 43 Ill2d 239, 252 NE2d 538; and Coursey v. Greater Niles Tp. Pub. Corp., 82 Ill App2d 76, 227 NE2d 164 (1967); and affirmed by the Illinois Supreme Court in 40 Ill2d 257, 239 NE2d 837 (1968).

Plaintiff contends that the case at bar is well within the fourth category, i. e., injury to the person in his business, trade or profession and cites Colmar-O’Meara v. Greater Niles Tp. Pub. Co., 13 Ill App2d 267, 141 NE2d 652 (1957), at page 270:

“Any statement published of an attorney at law with respect to his profession is actionable if it tends to injure or disgrace him as a member of his profession. Oral or written words which impute to him a want of the requisite qualifications to practice law or which charge him with dishonest or improper practices in the performance of his duties as an attorney are actionable per se.”

Plaintiff contends that the fact an attorney writes a letter to a column for television viewers, in itself, is sufficient to hold the attorney up to public ridicule, scorn, and contempt, because attorneys being persons of sound judgment, dignified, discerning, reasonable, logical and mature would not do such a thing. Plaintiff also argues that his reputation as a competent and fit attorney has been completely annihilated by the mere appearance in defendants’ newspaper of the letter bearing plaintiff’s name. Plaintiff complains that he is made to appear to the reader to be incompetent and unfit as an attorney because of his lack of judgment and discretion, his lack of maturity, his naivete, his silliness, his apparent jealousy of Perry Mason and his passion for viewing television. The editor’s comment, plaintiff contends, further speeified plaintiff’s lack of competency to win cases, and the bogus “letter set up plaintiff’s character and personality as one who deserved a big fall, and the editor’s comment created the big fall.”

Plaintiff also argues that the poor grammar, sentence construction, word usage and contractions found in the letter present plaintiff as a person devoid of any command of the language and project him as an incompetent attorney, thus embodying the very nature and essence of the libel per se alleged in the complaint.

In John v. Tribune Co., 24 Ill2d 437, 181 NE2d 105 (1962), at page 442 the court held:

“We further believe the language in defendant’s articles is not libelous of plaintiff when the innocent construction rule is consulted. That rule holds that the article is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared non-actionable as a matter of law.”

In Billing v. Illinois Publishing & Printing Co., 340 Ill App 303, 91 NE2d 635 (1950), the court at page 306 said:

“The meaning of the words alleged to be libelous cannot be by innuendo extended beyond a reasonable construction. Innuendoes are not available to impute libel to an article which in itself is otherwise innocent.”

Plaintiff, however, erroneously contends that the foregoing “innocent construction” rule is only applicable and available to protect news media in the responsible reporting of news, as is the rule that holds that innuendo must be disregarded in determining whether printed material is libelous per se as an adjunct to protecting the freedom of the press. Plaintiff concludes by arguing that the bogus letter and editor’s comment at bar should not be afforded the protection of either rule.

In the following cases the “innocent construction” and “innuendo” rules were applied: Zeinfeld v. Hayes Freight Lines, Inc., 41 Ill2d 345, 243 NE2d 217 (1969) (a letter from one employer to another); Whitby v. Associates Discount Corp., 59 Ill App2d 337, 340-341, 207 NE2d 482 (1965) (a written notice to a credit bureau); and Judge v. Rockford Memorial Hospital, 17 Ill App2d 365, 150 NE2d 202 (1958) (a letter to the Nurses’ Professional Registry).

The courts of Hlinois have formulated a general definition of libel per se, and the decisions in the particular cases delineate the essence of the concept: words so obviously and naturally hurtful to the person aggrieved that proof of their injurious character can be, and is, dispensed with. Reed v. Albanese, 78 Ill App2d 53, 58, 223 NE2d 419 (1966); Cowper v. Vannier, 20 Ill App2d 499, 501, 156 NE2d 761 (1959).

The letter appropriately observes that the Perry Mason show is not realistic, and the editor’s comment is obviously a humorous reply and not an appraisal of plaintiff’s reputation or professional ability. Plaintiff concedes that the publication was intended as a joke, but argues that an “attack” upon a lawyer’s reputation, “even though done in a jocular manner, is extremely serious.”

We do not find that the publication was an “attack” upon plaintiff’s reputation, either professional or personal, nor an appraisal of the same. The publication may generate some amusement for plaintiff’s friends and associates, but we cannot perceive where plaintiff’s professional or personal reputation would be impaired or diminished. The publication does not, in our opinion, meet the requisite definition of libel per se as enunciated in the authorities cited herein.

The judgment is therefore affirmed.

Judgment affirmed.

ENGLISH and MCNAMARA, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Jerome M. Keefe, Plaintiff-Appellee, v. Organization for a Better Austin, Justin M. McCarthy, William Holmes, and Kathy Metropoulos, Defendants-Appellants.
    Gen. No. 53,057.
    First District, First Division.
    September 29, 1969.
    Rehearing denied and opinion modified October 30, 1969.
    David C. Long and William A. Pomerantz, of Chicago, for appellants.

      Thomas W. McNamara, Raymond, Mayer, Jenner & Block, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendants appeal from an interlocutory order "which found that their activities in Westchester, Illinois, a suburb of Chicago where plaintiff, a real estate broker, resided, “invaded plaintiff’s right of privacy.” The order temporarily restrained defendants from passing out literature and from picketing “anywhere in the City of Westchester,” but denied injunctive relief as to plaintiff’s place of business in the Austin neighborhood of Chicago. Defendants’ direct appeal to the Illinois Supreme Court was transferred to this court on the ground that it had no jurisdiction on direct appeal in this case.

On appeal, the determinative issue is whether the temporary injunction enjoining the picketing and distribution of leaflets in the area of the plaintiff’s home denied defendants’ freedom of speech and press under the First and Fourteenth Amendments to the United States Constitution and Article II, section 4 of the Illinois Constitution.

Plaintiff is a real estate broker operating in the Austin area of the City of Chicago. From time to time he solicits listings from property owners by door-to-door distribution of his business card. The card contains the name “Jerry’s Real Estate” and gives his business address and telephone number. It bears the legend, “We invite your listings. We have prospective buyers for income property and residential property in the Austin area.”

The Austin area is undergoing racial change, and the defendant Organization for a Better Austin (OBA), an integrated community organization, has been working to keep white residents in the community. In its efforts to stabilize the community and to deal rationally with integration, the OBA is attempting to stop “panic peddling” by those brokers who exploit residents of racially changing areas by fomenting panic among them. Among its committees is the Real Estate Practices Committee, which deals with “panic peddlers.” The OBA objects to any form of solicitation of real estate listings, and it has obtained written agreements from a number of local real estate brokers covering selling practices, which agreement plaintiff refused to sign.

In order to induce plaintiff to stop these solicitations of real estate listings, defendant OBA initiated a program of picketing and leaflet distribution in the areas of his home and his place of business. The purpose of these activities admittedly was to make plaintiff agree to stop soliciting business. The Westchester leaflets gave plaintiff’s home address and telephone number and urged Westchester residents to call plaintiff and tell him to sign the agreement. The leaflet contained the statement: “When he signs the Agreement we stop coming to Westchester.”

At the trial, defendant William A. Holmes, when cross-examined about the primary motive for passing out “pluggers” in Westchester, said:

A. “All right, I’ll answer that by saying that my primary motive was to ask Mr. Keefe to make a public act of faith in the community where he is making his living, and because he failed to do this — in fact he said that we don’t want a thing to do with you, and we don’t care about your community — so we went out and decided to let his, let his neighbors know what he was doing to us.”
Q. “And, by doing this, you had hoped that he would finally sign this agreement that you submitted, is that right?”
A. “Yes, Sir.”
Q. “All right.”

On October 4, 1967, plaintiff commenced the instant action for injunctive relief. In plaintiff’s amended complaint it is alleged that the defendants were displeased with the manner in which plaintiff conducted his real estate business and accused him of being “a blockbuster (selling real estate to one Negro family and then frightening the other property owners in the neighborhood whereby they became panicky and began to offer their property for sale through plaintiff’s real estate office), which course of conduct on the part of defendants commenced on or about August 15, 1967, and continued through October 1, 1967, and still continues without any justifiable cause, reason or excuse.”

Plaintiff alleged that members of the OBA picketed his place of business and distributed literature through the community “criticizing him and impugning his reputation as an honest and law-abiding operator of a real estate business,” and attacked the business tactics employed by the plaintiff. The relief prayed for was an injunction restraining defendants from picketing his place of business and his home and from distributing derogatory pamphlets.

Defendants answered and admitted picketing and the distribution of circulars, and stated “that the activities that they engaged in were an exercise of the rights of freedom of speech and assembly guaranteed to them by the Constitution of the United States and of the State of Illinois.” Defendants denied that plaintiff was entitled to any injunctive relief against them.

After a hearing, in which both sides introduced the testimony of witnesses and exhibits, the trial court entered an order on December 20, 1967, which included the following findings:

4. That on September 9, 16, and 30, 1967, and October 22, 1967, some members of the Organization went to Westchester, Illinois, a suburb of Chicago, where the plaintiff resides, and distributed leaflets consisting of mimeographed sheets containing critical descriptions of the manner in which plaintiff was conducting his real estate business in the Austin neighborhood;

5. That said leaflets were distributed in several locations at various times on the said dates: to residents of some homes in the neighborhood of plaintiff’s place of residence, to some people in a shopping center in Westchester, and to some parishioners on their way to or from Mass at the Divine Infant Church in Westchester;

6. That the said distribution of leaflets was on all occasions conducted in a peaceful and orderly manner, did not cause any disruption of pedestrian or vehicular traffic, and did not precipitate any fights, disturbances or other breaches of the peace;

7. That the defendants have a right to engage in a peaceful picketing of the plaintiff’s place of business;

8. That defendants have no right to distribute the said leaflets in Westchester, the suburb in which plaintiff resides;

9. That defendants’ activities in Westchester have invaded plaintiff’s right of privacy, causing irreparable harm, and that plaintiff has no adequate remedy at law.

The order granted plaintiff injunctive relief as to his home and denied it as to his place of business. This is the order from which defendants appeal.

As to the distribution of leaflets, defendants assert that a number of cases cited by the United States and Illinois Supreme Courts have clearly established that the distribution of noncommercial pamphlets, leaflets and literature is fully protected under the State and Federal constitutional free speech and press clauses against prior restraint. On this point defendants’ authorities include: Lovell v. Griffin, 303 US 444 (1938), and Schneider v. Town of Irvington, 308 US 147 (1939).

In Lovell v. Griffin, supra, a State ordinance prohibited the distribution of literature of any kind within the limits of the City of Griffin without the permission of a city official. The Supreme Court found this provision to be an unconstitutional restraint on freedom of speech and the press and stated (p 452):

“The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. . . .
“The ordinance cannot be saved because it relates to distribution and not to publication. ‘Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.’ Ex parte Jackson, 96 US 727, 733.”

In Schneider v. Town of Irvington, supra, State ordinances prohibited the distribution of literature without a license from the chief of police. There the Supreme Court held the licensing made impossible the free and unhampered distribution of pamphlets and said (p 164) :

“As said in Lovell v. City of Griffin, supra, pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.”

Defendants also cite the following cases where the Supreme Court of Illinois held that ordinances which licensed the distribution of pamphlets and circulars violated section 4 of Article II of the Constitution of Illinois: Village of South Holland v. Stein, 373 Ill 472, 26 NE2d 868 (1940), and City of Blue Island v. Kozul, 379 Ill 511, 41 NE2d 515 (1942).

In Village of South Holland v. Stein, supra, a village ordinance made it unlawful for anyone to go to a private residence for the purpose of soliciting without a license. There the court cited Lovell v. City of Griffin and Schneider v. Town of Irvington, and said (p 479):

“The constitution of Illinois is even more far-reaching than that of the constitution of the United States in providing that every person may speak freely, write and publish on all subjects, being responsible for the abuse of that liberty. Webster’s International Dictionary defines the word ‘publish’ as meaning ‘to bring before the public as for sale or distribution.’ ”

In City of Blue Island v. Kozul, supra, an ordinance provided that all “peddlers” have a license. Defendant, a member of Jehovah’s Witnesses, walked up and down the streets with a 15-year-old boy, carrying a sign and offering to sell a publication for five cents. In reversing the conviction the court held the ordinance unconstitutional. There the court said (p 514) :

“Section 4 of article 2 of the constitution of Illinois provides: ‘Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.’ The first amendment to the constitution of the United States provides: ‘Congress shall make no law . . . abridging the freedom of speech, or of the press.’ It has been frequently held that the freedom of speech and of the press secured by the first amendment against abridgement by the United States is similarly secured to all persons by the fourteenth amendment against abridgement by a State.”

And at page 515:

“Recent pronouncements of the Supreme Court of the United States make it obvious that the ordinance here in question, as applied to the sale and distribution of the magazines and leaflets by the defendant is unconstitutional and a violation of the right of freedom of speech and of the press. Lovell v. City of Griffin, supra; Schneider v. Town of Irving-ton, supra.”

Defendants further argue that injunctions restraining the distribution of literature are as much prohibited as the ordinances found unconstitutional by the Illinois and United States Supreme Courts. (Near v. Minnesota, 283 US 697 (1931); Montgomery Ward & Co. v. United Employees, 400 Ill 38, 79 NE2d 46 (1948).) Defendants further cite Martin v. Struthers, 319 US 141 (1943), where the United States Supreme Court held that Jehovah’s Witnesses had a constitutional right to distribute their information from door to door. The right to distribute was recognized even though the Witnesses rang doorbells at a time of the day when many residents were accustomed to be sleeping. Despite this disturbance, the right to distribute information was upheld. Defendants note that in the instant case no such disturbance was created and the leaflets were merely placed in or near the doors of the homes and no doorbells were rung and none of the residents complained. In Martin v. Struthers, supra, the court said (p 145):

“While door-to-door distributors of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion. The widespread use of this method of communication by many groups espousing various causes attests its major importance.”

And at page 146:

“Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.”

Defendants further argue, “This Court and the United States Supreme Court, in the above decisions, have held unconstitutional restraints on the free and unfettered distribution of circulars, pamphlets and other forms of expression; those restraints have ranged from licensing provisions to across the board prohibitions on such distribution by way of injunction. All were struck down by the courts. In the instant case defendants are faced with an injunction prohibiting their distribution of any literature, anywhere in a village of over 18,000 people. Such a restraint clearly violates both the United States and Illinois constitutions.”

Plaintiff contends that the right to free speech is not unqualified, and that defamatory attacks upon plaintiff personally, with the purpose of having plaintiff abandon his lawful business practices and forcing him to sign the “No solicitation” agreement, are properly the subject of prior restraint. Cases cited include Austin Congress Corp. v. Mannina, 46 Ill App2d 192, 196 NE2d 33 (1964), where this court affirmed an injunction that had been issued against defendants restraining them from picketing plaintiff’s nursing home and publicly stating, among other things, that plaintiff was in violation of the Building Code. Defendants contended that there was an absolute right to picket, provided that such picketing was peaceful, truthful and informational, and the court said (p 203):

“That picketing for the purpose of harassment and to cause economic ruination even under the cloak of publicizing the truth of a purported building code violation is violative of the public policy of the State of Hlinois is well settled. In Carpenters’ Union v. Citizens’ Committee to Enforce Landis Award, 333 Ill 225, 246, 164 NE 393, our Supreme Court stated:
“‘No persons, individually or by combination, have the right to directly or indirectly interfere with or disturb another in his lawful business or occupation or for the sake of compelling him to do some act which in his own judgment his own interest does not require. Losses wilfully caused by another from motives of malice to one who seeks to exercise and enjoy the fruits and advantages of his own enterprise, industry, skill or credit will sustain an action.’

“And at 247:

“ ‘Coercion is as easily accomplished without threats of violence as with them, and fear of loss of or injury to business unless one submits to demands is as effective as fear of violence to his person. No person has a right to make war on another and to compel others to break off business relations with him to his injury. If an evil motive does not make a lawful act unlawful, it is equally true that what may be regarded as a good motive will not make an unlawful act lawful.’ ”

Plaintiff further cites Carpenters’ Union v. Citizens Commission, 333 Ill 225, 164 NE 393 (1928), where the Carpenters’ Union sought an injunction against the Citizens Committee to Enforce the Landis Award, a not-for-profit corporation, and certain individuals to restrain the defendants from, inter alia, interfering with plaintiff’s business and “from attempting to interfere with or disturb or prevent employment of complainants by newspaper advertisements, telephone messages, letters, circulars, notices, personal conversations, economic pressure or any other means.” There the court said (p 238):

“No person or combination of persons has the right, directly or indirectly, to interfere with or disturb another in his lawful business or occupation or for the sake of compelling him to do some act which in his own judgment he does not approve. Losses caused by willful interference, without legal cause or justification, with the relations of employer and employee or with their freedom to contract are maliciously caused and will sustain an action at law, or, in a proper case, an injunction may be obtained to restrain the wrongful interference.”

On the basic issue of picketing and distribution of literature, and after examining the injunctive order, its findings and relief granted, we think it is obvious that the trial court accepted the guidelines and principles set forth in defendants’ authorities by its denial of injunctive relief as to plaintiff’s place of business, but subordinate to plaintiff’s “right of privacy” in the area of his residence and church. Therefore, no discussion is required here as to the basic issue of defendants’ right to picket and to distribute literature, as set forth herein.

On the issue as to plaintiff’s “right of privacy” in Westchester in the area of his residence, defendants argue that they have in no way criticized or even discussed plaintiff’s private life or private conduct. The only references made by the defendants about the plaintiff concern his sales techniques and gave defendants’ opinion as to the effect of such sales techniques on defendants’ community. Defendants argue that the sales techniques and practices of real estate brokers, including those of the plaintiff, are the subject of great public interest and concern, particularly the problem created by real estate sales techniques which may be characterized as “panic peddling.” Defendants assert that “groups such as the Organization for a Better Austin, which are attempting to create a stably integrated community are thwarted by .the fear and panic created as a result of real estate brokers’ active solicitation by phone call, business card and personal visit to homes in blocks adjoining segregated areas. A stable integrated community is one where people of all races reside in all parts of the community and not one where the periphery of the Negro ghetto is integrated only between the time the first Negro moves in and last white moves out. There are few domestic social issues more pressing than the one with which the defendants are attempting to deal,” and that “real estate sales techniques should be a matter of personal privacy would be a surprising result in the light of the growing public concern and interest in the effect of real estate practices on one of America’s most pressing social problems — race relations.”

Defendants’ authorities on this point include Time, Inc. v. Hill, 385 US 374 (1967). In that case a magazine was alleged to have falsely reported that a new play portrayed an experience suffered by plaintiff and his family when held hostage in plaintiff’s home. Plaintiff sued for damages under the New York right of privacy statute. There the Supreme Court held the article involved to be constitutionally protected, and the court said (p 388):

“The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine and comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. ‘Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ ”

Defendants further argue that “the significance of Time v. Hill is magnified by the fact that it articulated constitutional protections for speech and press in the context of subsequent punishment or subsequent compensation for alleged speech and press excesses, while here the constitutional issues are posed in the context of prior restraint — an injunction. The constitutional protections against prior restraint on speech and the press have traditionally been and are to this day greater than those applicable to ‘subsequent punishment’ for the exercise of speech and press freedoms. It is clear that defendants’ constitutionally protected right to distribute leaflets cannot be enjoined on the basis of what is here a nonexistent right of privacy.”

Plaintiff argues that the importance of privacy has been recognized and supported by the United States Supreme Court. Authorities include Breard v. Alexandria, 341 US 622 (1951), where the Supreme Court sustained an ordinance prohibiting door-to-door salesmen and said (pp 625-6):

“All declare for liberty and proceed to disagree among themselves as to its true meaning. There is equal unanimity that opportunists, for private gain, cannot be permitted to arm themselves with an acceptable principle, such as ... a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose.”

Plaintiff further contends that injunctive relief is the proper remedy where privacy has been wrongfully invaded. Authorities cited include Pipe Mach. Co. v. De More, 76 NE2d 725 (1947), (appeal dismissed 149 Ohio St 582, 79 NE2d 910 (1948)), and Hebrew Home & Hospital for Chronic Sick, Inc. v. Davis, 38 Misc2d 173, 235 NYS2d 318 (1962). In Pipe Mach. Co., supra, striking employees went to the residences of eight working employees of plaintiff, carrying placards naming each employee, describing him as a “scab” and bearing legends such as “How can you stand to live so near him?” The court held that the purpose of the picketing in the vicinity of the employees’ residences was not to give the public information as to the merits of the strike but to intimidate or persuade them to join the strikers. The court held that an injunction restraining the defendants from picketing and circulating placards at or near the employees’ residences did not infringe the rights of free speech, stating (p 727):

“We are not dealing here with a limitation upon the right of free speech. It is obvious that picketing in this case was not for the purpose of disseminating any information as to the strike. Picketing interfered with the quiet and peaceful environment of the homes and thereby established conditions making more difficult the raising of a family and the maintenance of a home.”

Also, in Hebrew Home & Hospital for Chronic Sick, Inc. v. Davis, supra, the court said (p 324):

“There is not a scintilla of justification shown for this conduct. Truly it is shocking, reprehensible and outrageous, deserving the unhesitating and scathing rebuke of the court. Conducted at a considerable distance from the hospital, in an exclusively residential area, it was apparently aimed to cause unspeakable embarrassment, humiliation and mortification to the named jurist and his family. It represents a form of direct and unmitigated coercion and terrorism that should be roundly denounced and sternly condemned. Not within any conceivable limit of the right to free speech and the right to inform, it represents a mean, foul and sinister blow, one to which decent unionism would not stoop.”

Plaintiff further cites an article on residential picketing written by Professor Alfred Kamin, of the Loyola University School of Law, in which it is said (pp 201-202, Northwestern University Law Review, Yol 61):

“In every reported American case, residential picketing has been either declared illegal under criminal statutes and municipal regulations, banned by injunction, or proscribed by administrative cease and desist orders.”

Plaintiff asserts that “defendants’ activities in Westchester share the same vice condemned in the residential picketing cases. The OBA activities in Westchester are coercive, not informative. They disrupt family life and interfere with the right of privacy. They are not entitled to protection under the guise of free speech.”

Finally, defendants contend that the injunction here is overly broad and that the trial court erred in enjoining defendants from picketing anywhere in the Village of Westchester. Defendants assert that the trial court issued an injunction against picketing by defendants anywhere in the Village of Westchester, “absent any allegation or evidence by the plaintiff or finding by the court that defendants had engaged in any picketing in the village of Westchester.” Defendants further state that if there had been any evidence of defendants’ picketing in Westchester, the injunction entered here, prohibiting picketing anywhere in this village of over 18,000 people, would be the kind of “blanket prohibition” on picketing which was condemned as violating the First Amendment. Cited is Centennial Laundry Co. v. West Side Organization, 34 Ill2d 257, 215 NE2d 443 (1966), where it is said (p 266):

“These blanket prohibitions are unrelated to the purpose for which the picketing, distribution of literature or demonstrating might be conducted, and they are so sweeping and imprecise as to offend constitutional guarantees of freedom of speech, press and assembly.”

We conclude that the trial court was correct in finding: “9. That defendants’ activities in Westchester have invaded plaintiff’s right of privacy, causing irreparable harm, and the plaintiff has no adequate remedy at law,” and in granting injunctive relief in Westchester, the area of plaintiff’s home. The purpose of the defendants was not to inform the public of a matter of public interest, but the sole purpose was to force plaintiff to sign a “No solicitation” agreement. There was no evidence to show that plaintiff was engaged in “panic peddling” in Westchester or that he intended to do business in Westchester. Coercion, not speech, was the purpose and object of defendants’ activities. As said in Pipe Mach. Co. v. DeMore, supra (p 727):

“The allowable area of economic conflict should not be extended to an invasion of the privacy of the home. . . .
“The common law has always treated the home of a person with great respect. The home is referred to as a man’s ‘castle’ or as his ‘sanctuary.’ Picketing homes and the use of language referring to the head of the house as a ‘scab’ would not aid in establishing the proper environment for a home.”

As said in Hebrew Home & Hospital for Chronic Sick, Inc. v. Davis, supra, the situation here “represents a form of direct and unmitigated coercion and terrorism” that should not be permitted.

We find no merit here in defendants’ charge that the injunction was overly broad. The area of defendants’ activities in Westchester, a city of 18,000, was broad, and no prejudice to defendants is apparent or demonstrated by the inclusion of the entire Village as the restraint area. We believe the public policy of this state strongly favors protection of the privacy of home and family from encroachments of the nature of defendants’ activities, and defendants’ right of “free speech” is not involved here.

Therefore, for the reasons given, the order of the Circuit Court of Cook County is affirmed.

Affirmed.

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


text:
    Cedric Thompson, a Minor, by His Mother and Next Friend, Addie Thompson, Plaintiff-Appellee, v. Mack Earl Glover and Jack Dollar and Ewell Haynes, Individually and Doing Business as Haynes Motor Company, Defendants, United States Fidelity and Guaranty Company, a Corporation, Garnishee Defendant-Appellant, State Farm Mutual Automobile Insurance Company, Mack Earl Glover, Intervening Petitioners.
    Gen. No. 53,088.
    First District, First Division.
    September 29, 1969.
    Rehearing denied and opinion modified October 28, 1969.

      Epton, McCarthy, Bohling & Druth, of Chicago (Edward A. McCarthy, Alan R. Miller, and James V. Creen, of counsel), for appellants.
    Alan D. Katz and Querrey, Harrow, Gulanick & Kennedy, of Chicago (Edward J. Gulanick, Alan D. Katz, and Joseph Harrow, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a garnishment proceeding based upon plaintiff’s judgment for personal injuries received when struck by an automobile driven in Chicago by nonowner defendant, Mack Earl Glover, a resident of Alabama. The defendant owners of the automobile, doing business in Alabama as Haynes Motor Company, a partnership, were covered by an automobile insurance policy issued to them by the defendant garnishee, United States Fidelity and Guaranty Company (USF&G). This policy also covered any person using, with the permission of the named insured, an automobile to which the insurance applied.

The garnishment proceedings were conducted without a jury and consisted primarily of exhibits, evidence depositions and the testimony of defendant Glover. The trial court entered a judgment in favor of plaintiff and against the garnishee for $20,000 and costs, from which the garnishee appeals.

On appeal, and after an examination of the record, we conclude the determinative issue is whether the nonowner and nonresident driver, defendant Glover, had the permission of the nonresident defendant owners to drive the car at the time of the occurrence in which plaintiff received his injuries.

In sum, the record shows that plaintiff, a minor, was injured on August 29, 1959, by an automobile owned by Haynes Motor Company and driven by Mack Earl Glover. At the time of the occurrence Glover was insured by State Farm Mutual Insurance Company in the amount of $10,000 for an accident to one person. Haynes Motor Company was insured by USF&G in the amount of $20,000 for an accident to one person.

Plaintiff’s suit for personal injuries was filed on August 20, 1960, and personal service of summons was made on defendant, Mack Earl Glover, on September 3, 1960, who answered the complaint on September 19, 1961, and the amended complaint on March 31, 1964. Service of summons on the defendant car owners was made under the provisions of section 9-301, chapter 95%, B1 Rev Stats. The defendant car owners did not defend the suit. At the trial an order was entered on April 17, 1964, “that the defendants, Jack Dollar and Ewell Haynes, individually, and d/b/a Haynes Motor Company, be and are hereby declared to be in default. It appearing service was had on said parties and that no appearance or answer has been filed in their behalf.” On April 20, 1964, a jury verdict was returned in favor of plaintiff for $22,500 against the defendants, “Jack Dollar and Ewell Haynes, Individually and d/b/a Haynes Motor Company and Mack Earl Glover.” Judgment was entered on the verdict and against the foregoing defendants on May 20,1964.

The instant garnishment proceedings against the garnishee, USF&G, were commenced on June 8,1964. USF&G denied indebtedness to any of the defendant-judgment debtors and also filed affirmative defenses to the action. Mack Earl Glover and State Farm Mutual Automobile Insurance Company were granted leave to intervene in the garnishment proceedings. At the conclusion of the garnishment trial the court found that defendant Glover was driving at the time of the accident with permission; that USF&G was the primary carrier with a limit of liability of $20,000 and State Farm was the excess carrier with a limit of liability of $10,000. The court found in favor of plaintiff, the judgment creditor, and entered an order that USF&G pay $20,000 plus interest and costs on the judgment, and that State Farm pay $2,500 plus interest and costs on the same judgment.

Defendant Mack Earl Glover testified for the plaintiff in the garnishment action. He lived in Cullman, Alabama. Ewell Haynes, U. V. Haynes and Jack Dollar also lived in Cullman and operated a business known as Haynes Motor Company. Glover had attended high school with Dollar, and he had known the Hayneses for a number of years. They were all in the used car business in Cullman. They would purchase used cars in Chicago and sell the cars to used car dealers in Alabama.

On August 29,1959, Glover was in Chicago, as was Jack Dollar, hunting for used cars. Dollar purchased a used car on behalf of Haynes Motor Company. Dollar left the keys in the station wagon and asked Glover if he wanted to use the car. Glover said he would like to use the car. He put his license plates on the car and drove off. He further testified: “In the afternoon of August 29, 1959,1 was involved with that car in an automobile occurrence with Cedric Thompson, the plaintiff in the suit. The day after the occurrence I saw U. V. Haynes at O’Connor Service Station and told him exactly what had happened as far as the accident was concerned. He said, ‘well, forget it.’ Neither Jack Dollar, Ewell Haynes or Red Haynes ever accused me of taking that car without their permission.”

After Glover was personally served with a summons he talked with G. C. Henslee, an insurance agent in Cull-man who represented USF&G. Glover stated: “About two or three weeks after August 29, 1959, he [Henslee] called, me to his office and he had a statement typed up for me to sign. The statement said in an around about way that I stole the automobile. I did not sign it. He said he was bringing that document for my signature on behalf of Haynes Motors.” On cross-examination, it was shown that Glover was served with summons on September 3,1960.

The defendant partners in their garnishment evidence depositions stated that Glover was neither their agent nor servant, and they never gave him permission to use the vehicle in question.

G. C. Henslee in an evidence deposition stated: “As agent for United States Fidelity and Guaranty Company, I had a policy of insurance issued to the Haynes Motor Company. It was a garage liability policy. I was not aware of an accident in Chicago on August 29,1959, until May, 1961.” In response to a letter from Mr. L. B. Nicholson, the casualty supervisor for USF&G in Birmingham, dated June 23, 1961, he talked with the Haynes brothers and Jack Dollar. He said: “At that time, we found out through the conversations that Mack Glover was driving an automobile, and, if I remember correctly, it had Culpepper Motors’ tag or dealer’s license on the car, and they claimed that the car belonged to Haynes Motors, and then I started to try to find out if, by any chance, Glover could have had any permission from the Haynes boys, or anybody else, or their employees to drive that car that belonged to Haynes Motors, and I went to see Glover, or either he came by the office, and told me that he had Jack Dollar’s permission to drive the car, but then I talked to Haynes and Jack about it, and they stated that Mack Glover did not have permission to drive any of their vehicles from Jack Dollar at that time. It seems as though Haynes Motors’ car had been left at O’Con-nor’s Service Station. They had left the keys there, which they do so the cars can be moved on the lot. . . . Jack Dollar then told me that after he placed the keys there, he just left and came back on to Cullman. All of us were trying to find out what happened, really, and we wanted to know what happened because if it was a claim of ours, we wanted to get on it. . . . No papers were ever turned over by Haynes Motor Company with respect to this claim. We never received any summons and complaint from anybody in this case.” He further testified he had a conversation with Mack Earl Glover before July 5, 1961, and “he told me that he did have permission from Jack Dollar.”

The garnishment proceedings further show that under date of June 20,1961, State Farm sent a letter to USF&G confirming a telephone conversation that had been had several weeks earlier. The letter stated that an accident occurred on August 29,1959, in Chicago, Illinois, and that “the vehicle was operated by our insured, Mack Glover, who stated that the vehicle was owned by the Haynes Motor Company and that he was using the vehicle with the permission of the owners.” The letter further stated: “A lawsuit has been filed in the Superior Court of Cook County, No. 60S14686, by Cedric Thompson, a minor, against our insured, Haynes Motor Company and Culpepper Motors. We cannot identify Culpepper Motors, unless it might be another business name for the Haynes Motor Company.” The letter further stated that their investigation revealed that the vehicle was owned by Haynes Motor Company and Glover was operating the vehicle with the permission of the owners, and if USF&G had a policy covering the Haynes Motor Company, they would be the primary insurer.

Under date of July 24, 1961, USF&G sent a letter to State Farm, stating that they did insure the Haynes Motor Company. The letter further said: “No permission whatsoever was ever given to Mack Glover to drive the particular vehicle involved in the accident or any other vehicles belonging to Haynes Motor Company, either at the time of this accident or at any time previous. Our vehicle was on the premises of O’Connor’s Sinclair Service Station in Chicago and our investigation leaves no doubt whatsoever that Glover merely put tags on that vehicle and drove it out and, subsequently, had the accident. Glover has never worked for Haynes Motor Company.”

Initially we consider the contention of the garnishee, USF&G, that the original judgment entered on May 20, 1964, was void because the court had no jurisdiction over the non-resident car owners due to a failure to strictly comply with the nonresident motorist statute, and therefore the judgment was also void against defendant Mack Earl Glover. Authorities cited in support of this contention include Skiras v. Magenis, 324 Ill App 250, 58 NE2d 322 (1944), where it is said (p 253):

“[I]f a judgment entered as a unit against two or more defendants is so defective as to necessitate its vacation as to one defendant, it must be set aside as to all.”

The garnishee has made no attempt to show that the original judgment against Glover was improperly entered and no special factors are asserted which show that it would be prejudicial and inequitable to leave the judgment against Glover standing. In this case we think that the judgment against Glover, based on personal service, was sufficient to maintain the instant garnishment proceeding irrespective of the question of proper service of summons on the defendant assureds. Therefore, it is unnecessary for this court to examine the issue of jurisdiction over the defendant car owners in the original action.

We are of the opinion that the original judgment, entered jointly against all of the defendants, comes within the guidelines of Chmielewski v. Marich, 2 Ill2d 568, 119 NE2d 247 (1954), where it is said (p 576) :

“[W]hen a judgment or decree against two or more defendants is vacated as to one of them, it need not for that reason alone be vacated as to any of the others, and should not be vacated as to any of the others unless it appears that because of an interdependence of the rights of the defendants or because of other special factors it would be prejudicial and inequitable to leave the judgment standing against them.”

The garnishee further contends that its assured breached the contract of insurance by failing to comply with the terms of the policy regarding notice and forwarding of process, which was sufficient to bar any re-co very by the plaintiff-judgment creditor from the garnishee, based on the insurance policy.

In this case the garnishee was repeatedly informed of the pending action by State Farm and its attorneys. We think that the instant situation comes within the statements made by this court in Allstate Ins. Co. v. Gleason, 50 Ill App2d 207, 200 NE2d 383 (1964), at pages 213-14:

“It is well settled that where the cause of action is within the coverage provided by the policy, it is the insurer’s duty to defend. . . . ‘An insurer’s obligation to defend an action is determined by the allegations of the pleadings in the case.’ ... In the case at bar the allegations of the complaint, as previously set out, are such as would cast a duty of indemnification upon Ford’s insurer if such allegations were supported by the evidence. While it is possible that in the injury action a jury may find that Gleason was not an agent and servant of Ford, such a future possibility does not, in any way, alter the obligation of Indemnity to defend Gleason. As the cases have consistently held, the obligation to defend does not depend upon the ultimate outcome of the suit.”

In view of the foregoing pronouncements, we hold that in this case it was the duty of the defendant-garnishee to defend its assured in the original action. The record indicates that the refusal of the garnishee to defend its assured was a calculated risk on the premise that plaintiff would be unable to prove that Glover drove the owner defendants’ car with their permission. However, the trial court specifically found in the original action, as a matter of law, that “Mack Earl Glover had permission and authority to operate and drive the said automobile from the said owners.”

We conclude that the original complaint, and as amended, alleged sufficient facts to show that the instant situation came within the coverage of the garnishee’s policy, and if the garnishee refused to defend its insured in the original action, it was estopped in the garnishment proceedings to raise issues which were determined in the original action. Sims v. Illinois Nat. Gas. Co., 43 Ill App2d 184, 193 NE2d 123 (1963); Gould v. Country Mut. Cas. Co., 37 Ill App2d 265, 185 NE2d 603 (1962); Palmer v. Sunberg, 71 Ill App2d 22, 217 NE2d 463 (1966). See, also, Karas v. Snell, 11 Ill2d 233, 246, 142 NE2d 46 (1957).

Basically the garnishee here denied liability on the ground that Glover did not have the permission of the car owners to drive the car. Although a garnishment proceeding is not a distinct and separate suit but an additional step in the original action for judgment (Zimek v. Hlinois Nat. Cas. Co., 370 Ill 572, 574, 19 NE2d 620 (1939)), the defendant garnishee was permitted to relitigate the issue of permission in the garnishment proceedings, and the garnishment court found on January 8,1968, that “defendant Mack Earl Glover was driving at the time of the accident with permission.”

We find, for the reasons given, that the garnishment order against the garnishee was correct, and we hereby affirm it.

Affirmed.

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


author: MR. PRESIDING JUSTICE ADESKO

text:
    933-935 N. State Corporation, Ira Gruenberg, President, Licensee, Plaintiff-Appellant, v. Richard J. Daley, Mayor and Local Liquor Control Commissioner of the City of Chicago, and License Appeal Commission of the City of Chicago, Defendants-Appellees.
    Gen. No. 53,220.
    First District, First Division.
    September 29, 1969.
    Marovitz, Powell & Pizer, of Chicago (Edward A. Berman, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and RocLyne E. La Porte, Assistant Corporation Counsel, of counsel), for appellees.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Cook County sustaining the rulings of the License Appeal Commission of Chicago and of the Local Control Commissioner of the City of Chicago which revoked the retail liquor license issued to 933-935 N. State Corp. The license revocation order was based on the findings that Ira Gruenberg. the President of the licensee corporation and Thomas Burke, bartender on the licensed premises, permitted one Misty Dawn, an entertainer to perform lewd and indecent dancing and permitted Misty Dawn and one Bob Curtis to perform lewd and indecent acts while dancing, in violation of the ordinances of the City of Chicago and the statutes of the State of Illinois.

On appeal plaintiff contends that the above findings and decision are against the manifest weight of the evidence in that the evidence introduced by the City of Chicago is unworthy of belief and that the evidence introduced does not prove conduct in violation of the ordinances of the City of Chicago and the statutes of the State of Illinois.

The evidence presented in behalf of the City at the hearing before the Local Liquor Control Commissioner consisted solely of the testimony of John McCormick, a Chicago Police Officer assigned to the prostitution and obscene matter section of the liquor control enforcement unit. He testified that he entered the premises at 12:45 a. m., and ordered some drinks at the bar. An entertainer known as Misty Dawn appeared, stripped her clothing down to her bra and G string, lifted the latter, exposing her pubic hair, turned her back and lowered the back half of the G string exposing her buttocks; that he left the premises after this performance about 2:35 a. m. and returned about 3:00 a. m., when the next show was in progress in which Misty Dawn and a male entertainer, Bob Curtis, danced during which Curtis touched her buttocks and her breasts. McCormick testified further that he again left the premises and reappeared shortly with Sergeant Kane. The officers then arrested Gruenberg, Burke, Misty Dawn, Bob Curtis and four other persons who worked on the premises charging them with keeping a disorderly house, public indecency and being inmates of a disorderly house, all of which charges were subsequently dismissed in the Criminal Division of the Circuit Court.

Eleven witnesses, including patrons and employees, testified in behalf of the licensee. McCormick’s testimony was contradicted. Some of the witnesses denied that McCormick was present at the 2:30 a. m. show and that Misty Dawn had exposed her pubic hair. Their description of the clothes Misty Dawn wore during her dance contradicted McCormick’s description. McCormick did not recall how many acts there were or the number of performers other than Misty Dawn and Bob Curtis. He did not notice whether Misty Dawn wore ballet hose as claimed by her and other witnesses and did not recall whether Gruenberg and Burke watched Misty Dawn’s performance. McCormick appeared on the premises alone, although he was accompanied by Sergeant Kane, who remained in the vicinity of the premises from 12:30 a. m. until 3:45 a. m., the time of the arrest. Officer McCormick was personally known by both Gruenberg and his bartender. It appears unbelievable that a performance such as McCormick described would occur in his presence when he was known to be a police officer. McCormick did not recall seeing Mr. & Mrs. Sherman and Mr. Miller on the premises. They testified they were there during the time of the allegedly offensive acts of Misty Dawn and Bob Curtis.

The record does not reveal the specific paragraphs of the ordinances and statutes involved. The Local Liquor Commissioner made no finding of violations of specific ordinances and statutes.

We are mindful of the Illinois Statutes and the judicial decisions which give the Local Liquor Control Commissioner wide discretionary power to determine what constitutes cause for revocation of a liquor license. We are mindful that his decision should not be disturbed unless there is a clear abuse of discretion by him. The issue here is whether the findings of the Local Liquor Control Commissioner, in support of his order, of revocation, are supported by substantial evidence. It is primarily a question of credibility of the witnesses. We have said recently in Legones v. License Appeal Commission, 100 Ill App2d 394, 241 NE2d 499 (1968):

“Under the Administrative Review Act, the findings and conclusions of the local commissioner on questions of fact are held to be prima facie true and correct. (Ill Rev Stats 1965, c 110, § 274.) The reviewing court is limited to a consideration of the record to determine if the findings and orders of the local commissioner are against the manifest weight of the evidence. Nechi v. Daley, 40 Ill App2d 326, 336, 188 NE2d 243 (1963).”

We conclude that the evidence presented in behalf of the appellant compels us to conclude that the findings and order of the Local Liquor Commissioner and the Circuit Court of Cook County are against the manifest weight of the evidence. The order of the trial court sustaining the order of the Local Liquor Control Commissioner and the License Appeal Commission is reversed.

Reversed.

MURPHY and BURMAN, JJ., concur.


author: MR. JUSTICE BURKE

text:
    Forest Preserve District of Cook County, a Municipal Corporation of the State of Illinois, Petitioner-Appellant, v. Adrian Tabin, et al., Defendant-Appellee.
    Gen. No. 53,404.
    First District, Second Division.
    September 30, 1969.

      Alan S. Ganz and Samuel H. Young, of Chicago (Samuel H. Young and John D. Cummins, of counsel), for appellant.
    Adrian Tabin, by Foran & Wiss, of Chicago (Robert E. Wiss and Thomas T. Burke, of counsel), appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

The Forest Preserve District filed a petition on October 24, 1963, to condemn an unplatted parcel of farmland located in the northwest portion of Cook County which was owned by the defendant, Adrian Tabin. The main question presented to the jury was the fair cash market value of the parcel as of the date the petition was filed. Judgment was entered on the jury’s verdict in the amount of $987,000, from which the Forest Preserve District prosecutes this appeal.

The property in question, hereinafter referred to as the “Tabin property,” is an irregular, somewhat T-shaped parcel consisting of approximately 235.7 acres, 26 acres of which are situated in the Village of South Barrington and the balance of which is situated in the Village of Hoffman Estates. The property fronts to the north on Algonquin Road, and to the west on Freeman Road. Topographically, the Tabin property is rolling land, having both high and low areas. A creek intersects the property in a south-to-southwesterly direction, and the creek has tributaries which run into the low sections of the property. Improvements on the property consist of four dwellings, only one of which is modern, as well as sheds and barns employed in farming.

The Forest Preserve District conceded at trial, which was held in April 1968, that the highest and best use of the Tabin property was as a residential subdivision, but contended that the soil and drainage conditions of the property seriously affected its value for use as a subdivision. The jury was also permitted to view the property during the trial of the cause.

The Forest Preserve District called Adrian Tabin as its first witness, pursuant to section 60 of the Civil Practice Act. Tabin testified that he had owned the Tabin property since 1940 and that it was in essentially the same condition at the time of trial as it was in October 1963, when approximately 200 acres thereof were employed in farming by tenant farmers. The witness identified 24 pictorial exhibits as accurately representing the condition, of the property and the buildings thereon; the exhibits were admitted into evidence. Ta-bin also testified that he had never had soil tests made of the property prior to March 1968.

Ben Fenger, a registered land surveyor, was called as a witness by the Forest Preserve District. He identified two exhibits, both later entered into evidence, one of which was a survey of the Tabin property and the other an aerial photograph of the property taken in December 1968.

Robert Cipriani, a soil technician (called by plaintiff) testified that he made 112 bore samples of the property to determine the soil composition and makeup, and the depths of the various soils on the property. The record of the borings was admitted into evidence, as was a chart of the property on which was plotted the location of the various borings taken.

Lee Schlesinger, a civil structural engineer (called by plaintiff) testified extensively concerning the soil conditions of the Tabin property. He categorized the soil as inorganic, consisting mainly of peat, and also of organic silts. In the opinion of the witness, peat is wholly incapable of supporting heavy loads, and while organic silt is stronger than peat, it also is not suitable for supporting loads. The witness reviewed the 112 test borings made by witness Cipriani and also made several trips to the Tabin property for a visual inspection of the premises. Based on his professional experience in working with soils, the witness gave an opinion that the soil conditions of the Tabin property were the same at the time of trial as they were in October 1963. The witness also related the flooding and drainage conditions of the Tabin property to several flood charts and maps which were later admitted into evidence. In the opinion of the witness, an area of 62 to 65 acres of the Tabin property would have to be filled by a “clean organic fill,” other than the type of soil then existing on the property, and he estimated that from 375,000 to 450,000 cubic yards of fill would be needed in order for that area to stay above water.

During the testimony of Schlesinger, the Forest Prer serve District sought to introduce its Exhibits 5 and 5-A into evidence. The exhibits showed the depth and location of the soil makeup and conditions on the Tabin property. The two exhibits were identical in every respect, except that Exhibit 5 depicted the soil depths and makeup by means of varying shades of color. Exhibit 5 was objected to and was not admitted into evidence; Exhibit 5-A was not objected to and was admitted into evidence.

Schlesinger testified on cross-examination that the flood maps admitted into evidence did not purport to show the length of time flood water would remain on the property. He further stated that the maps appeared to show flooding in areas which were then developed towns, that the maps were based on undeveloped property, and that development of land does alter water runoff considerably. Schlesinger further testified on cross-examination that many buildings are built on soils containing peat, including portions of Hoffman Estates. He also stated that he was not a land developer, but that he would simply make his findings as to soil conditions and give his data to a developer for his consideration.

Alan Waldman was called as a witness by the Forest Preserve District. The witness testified that he was a real estate appraiser and consultant, and that he also was a licensed real estate broker in Illinois. After testifying extensively as to his qualifications as an expert witness, Mr. Waldman stated that in his opinion the highest and best use of the Tabin property in October 1963 was for subdivision purposes and that its value at that time, based on the soil and drainage conditions of the property, was $365,000.

On cross-examination, the witness was questioned concerning his association with a real estate firm located in downtown Chicago which did business in Chicago’s Lawndale area, and which association the witness did not mention on direct examination in relating his qualifications as an expert witness. The witness also testified on cross-examination that he had not purchased, sold, built or developed any property within the past ten years within ten miles of the Tabin property, that he considered the availability of land in the area of subject property in arriving at his valuation of the property, and that one-acre lots on the Tabin property would be in keeping with the zoning of the property existing in October 1963, but that it was also possible to secure a change in the zoning.

Herman Walther was called as a witness by the Forest Preserve District and testified that he was a real estate broker, a land appraiser and a consultant. In the opinion of the witness, the highest and best use of the Ta-bin property in October 1963 was for subdivision purposes. It was the witness’ further opinion that the value of the Tabin property at that time was $350,000.

On cross-examination Mr. Walther testified that a large portion of the Tabin property could be built upon, provided the builder was willing to spend about 35% more in development costs than would normally be the case in development of land. He further testified that he had never built homes, and that he never bought or sold homes within ten to fifteen miles of the Tabin property.

James Willett, an engineer (called by plaintiff) testified that in October 1963 the closest water supply system from the Tabin property was three miles away, as was the nearest Sanitary District sewer main.

The final witness for the Forest Preserve District was Edward Look, a licensed real estate broker in Barring-ton, Illinois, who testified that the highest and best use of the Tabin property in October 1963 was residential subdivision, and that its value at that time was $350,000. The witness testified on cross-examination that he did not consider the availability of surrounding land in arriving at his opinion of the value of the Tabin property, that he considered the “market” in arriving at his valuation, and that he did not know whether the subdivision across the road from the Tabin property was in existence in 1963.

Also entered into evidence during the Forest Preserve District’s case were three zoning ordinance exhibits. The South Barrington zoning affecting the Tabin property in October 1963 was A-3 residential, minimum one-acre lots. The Hoffman Estates zoning affecting the property at that time was also residential, minimum one-acre lots, with a lineal width of 150 feet.

Defendant called Roy Jenkins as a witness, who testified that he served on the Board of Trustees of the Village of Hoffman Estates from 1959 to 1965. The Board had occasion to consider applications for changes in zoning presented to it by the Village Planning and Zoning Committee. He testified that any lands annexed to the Village in October 1963 would have received an R-2 zoning, 10,000 minimum square feet, unless otherwise desired by the owner of the tract. He also testified that since 1959, some ten or twelve applications came before the Board for a change in the zoning and none had ever been denied. He also stated that approximately 5,000 acres have been rezoned in the Village where water and sewer facilities were not available.

George Holt testified for defendant that he is a civil engineer and also the Village Engineer for Hoffman Estates. He testified that peat and other compressible soils were not uncommon in the northwest portion of the county, especially in the location of Hoffman Estates. He further testified that there were six units of Hoffman Estates where storm retention lakes were built on low ground, usually peat areas. He testified that he would recommend that the portion of the Tabin property requiring clean fill, as testified to by Mr. Schlesinger and as shown on the exhibits, be employed as storm retention lakes, rather than be filled in. He further testified that such lakes are normally landscaped to not only add to the beauty of the subdivision, but for use as a recreational area. Holt testified that general excavation and filling procedures would be required in developing any subdivision, and that it was not uncommon for a developer who was building on land in excess of 200 acres to bring in water and sewer services from as far as two miles.

John Cordwell testified for defendant that he is an architect and a land planner. He stated that peat was a very common problem in his professional experience in Cook County, but that the problem could be remedied by the construction of buildings with basements and, in those sections of the subdivision where the peat problem is more severe, by filling those areas with a clean, suitable soil. He stated that since peat is usually concentrated in the lower portions of the land, surface water is coincidental, and design and development of the subdivision usually involves water retention lakes.

Mr. Cordwell testified that he viewed and made a study of the Tabin property and also studied the engineering data and the Forest Preserve District’s reports compiled with respect to the property. The witness prepared Defendant’s Exhibits 1 and 2 which were admitted into evidence over objection.

Defendant’s Exhibit 1 is a multicolored plat of subdivision of the Tabin property, dividing the parcel into 151 minimum one-acre lots. The lots, set out over a yellow background, are situated around four lakes which roughly cover lower, peat areas of the Tabin property and which are colored in blue. Each lot contains an outlined figure which represents a building, and on those portions of the Tabin property where extra support would be reqired because of the more severe soil conditions, the outlined figure is shaded. Also depicted on the exhibit are streets and cul-de-sacs, which are in white, and a riding stable and a picnic area, which are colored in green. Exhibit 1 corresponds to the zoning of the Tabin property as it existed in October 1963, minimum one-acre lots in both Villages.

Defendant’s Exhibit 2 is in the same nature as Exhibit 1, but is geared to the minimum one-acre lot requirement of South Barrington and a potential 10,000 minimum square foot lot zoning change in the Hoffman Estates area; the Exhibit contains 501 lots in all. Although Exhibit 2 shows five storm retention lakes, streets, cul-desacs, and green shaded areas, it does not depict a riding stable or a picnic area as does Exhibit 1.

On cross-examination, Mr. Cordwell testified extensively as to the various steps and requirements which would have been needed to bring the subdivisions contemplated by the two exhibits into reality. He further stated that he was not familiar with the condition of the Tabin property in October, 1963.

Richard Manke, a real estate broker, appraiser, builder and land developer doing business in Arlington Heights, was called as a witness for the defendant. He testified that the highest and best use of the Tabin property in October 1963 was résidential subdivision, and that in his further opinion the property in October 1963 was worth $1,200,000, based upon a 10,000 minimum square foot lot zoning change by Hoffman Estates. He also testified that there had been no significant increase-in the value of property in the vicinity of the Tabin property from October 1963 to March 1965. The witness further stated that he was familiar with the peat problem in the northwest portion of the county and testified of his own knowledge as to building construction on such soil throughout that area.

On cross-examination, Mr. Manke testified extensively concerning soil and drainage conditions of the Tabin property, the location of sewers in the area of the Tabin property, the costs of subdividing a parcel of real estate, and the like.

William Alter, a real estate broker and builder (called by defendant) testified that the highest and best use of the Tabin property in October 1963 was a residential subdivision and that, based on his professional experience, his opinion of the value of the property at that time was $1,038,000, based upon a minimum one-acre lot zoning. He testified that the costs of developing a parcel of property is considered in arriving at the value of the property.

On cross-examination, the witness further testified as to his qualifications as an expert witness, and also testified as to the general conditions of the Tabin property, the sewer and water facilities in the area of the property, the costs of filling and excavating, and the like.

The final witness who testified for the defendant was a member of the firm of attorneys who represented defendant at the trial below. The witness testified that he made a search of the county land tract books to determine the ownership of the land in the immediate area of the Tabin property, and that in November 1963, approximately 90% of that land had been either acquired by the Forest Preserve District or was then in a pending eminent domain action. In rebuttal, George Wight testified that he is a consulting civil engineer in Barrington. He testified extensively as to the cost which would have been incurred in connection with the development of the Tabin property in accordance with the designs set forth in Defendant’s Exhibits 1 and 2, the witness relating an itemized account thereof. On cross-examination, Mr. Wight admitted that there were “contingency amounts” added to the cost of development figures to which he had testified, “for unknown portions of it.”

The Forest Preserve District first contends that the trial court erred in allowing the introduction of certain evidence. It is first argued that on the cross-examination of Alan Waldman the defendant was permitted to elicit answers with respect to the witness’ association with the real estate firm doing business in the Lawndale area of Chicago, and that that evidence was incompetent and confused the issue of the valuation of the Tabin property.

Mr. Waldman testified extensively on direct examination as to his experience and qualification as an expert witness in the field of land valuation and appraisal. His association with the real estate firm in question was not related by him during his direct examination, and he was asked on cross-examination whether or not a great deal of his business activity during the previous ten years was devoted to the Lawndale area, which he answered in the negative. The qualifications of the witness were brought out during direct examination and the defendant was properly allowed to question into the additional matter of his association with the real- estate firm, as having a bearing on those qualifications. The question is one of credibility, and not competency, and the jury had a right to know the extent of the witness’ expert knowledge and experience as to the subject matter of his testimony. Eldorado, M. & S. W. R. Co. v. Everett, 225 Ill 529, 532, 80 NE 281; see also Spohr v. City of Chicago, 206 Ill 441, 444-445, 69 NE 515. When the questioning on cross-examination turned to the physical condition of the buildings in the Lawndale area and the general blighted nature of the area, an objection to the questioning was sustained and the jury was instructed to disregard the question.

It is next argued that the trial court erred in permitting defendant to elicit evidence as to the availability of property in the immediate area around the Tabin property, in that the surrounding property was either owned by or under condemnation proceedings instituted by the Forest Preserve District. The matter of the availability of land in the area of the Tabin property was first brought out by the Forest Preserve District’s own witness, Alan Waldman, when on cross-examination he volunteered the evidence that there was a great deal of land available in the area. Defendant then went into the question of who owned the land in the area of the Tabin property and also of its real availability on the open market. It was then brought out that the Forest Preserve District either owned or had filed condemnation proceedings against a substantial portion of the surrounding property.

We feel that the interest of the Forest Preserve District in the land surrounding the Tabin property and the effect which that interest had on the true availability of that land on the open market were elements properly brought before the jury for its consideration in arriving at a valuation of the Tabin property. Pullman Co. v. City of Chicago, 224 Ill 248, 253, 79 NE 572. It should be noted that during the cross-examination of defendant’s witness Manke, the Forest Preserve District went into the question of the vacant acreage in the area of the Tabin property. Defendant had a right to place before the jury evidence as to whether the land surrounding the Tabin property, although vacant, was available on the open market.

It is next argued that the trial court erred in permitting defendant’s witness Holt to testify as to his experience in working with peat in the northwestern portion of the county, without being required to relate that experience to the date of the filing of the condemnation petition in October 1963.

In light of the extensive testimony of the other witnesses, both on direct examination and cross-examination, concerning the construction problems incurred in areas where peat conditions exist, without their having been required to relate that testimony to October 1963, we are of the opinion that the impact on the jury of the Holt testimony on this subject was insignificant. On the contrary, defendant’s witness Manke was cross-examined concerning construction of buildings on soil conditions in the area of the Tabin property, without relation to the October 1963 date.

The Forest Preserve District cites the case of Department of Public Works and Buildings v. Oberlaender, 92 Ill App2d 174, 235 NE2d 3 (affd, 42 Ill2d 410, 247 NE2d 888) as standing for the proposition that specific changes in conditions on the condemned property, after the date the condemnation action was filed, cannot be considered in arriving at the valuation of the land existing at the time the action was filed. This proposition of law has no bearing on the situation presented here inasmuch as the question before us involves the feasibility of subdividing land where peat conditions are present; a prospective purchaser of the Tabin property for subdivision purposes in October 1963 could have taken the peat problem, and the steps required for its rectification, into consideration in the purchase of the property.

The Forest Preserve District further argues that it was error for the trial court to permit defendant to cross-examine its witnesses as to the number of buildable lots on the Tabin property in October 1963. The main thrust of the Forest Preserve District’s case is that the Tabin property value was reduced considerably due to the poor soil and drainage conditions of the property. Under its theory of the case, the value of the Tabin property would be largely controlled by the number of lots which could be used on the property. While it is true that sales of subdivided lots may not be introduced to show the value of unsubdivided property, as the cases cited by the Forest Preserve District hold, this has no bearing on the introduction of evidence as to the number of usable lots on the property to show the value of unsubdivided property.

The Forest Preserve District’s valuation witnesses testified as to the value of the Tabin property. They based their opinions in that regard primarily on the peat and drainage conditions of the property and the problems which would arise in the development of the property due to those conditions. The trial court did not abuse its discretion in allowing defendant to inquire into a more detailed explanation as to the bases of those witnesses’ opinions as far as the effect the peat and drainage conditions were concerned. Spohr v. City of Chicago, 206 Ill 441, 445, 69 NE 515.

In Forest Preserve Dist. of Cook County v. Eckhoff, 372 Ill 391, 24 NE2d 52, cited by the Forest Preserve District in support of its position, the Supreme Court stated that it was not proper, in an action to condemn unplatted property, to show the value the property may have when subdivided into lots. However, the Eckhoff case involved an attempt to introduce photographs of buildings on property which was in fact subdivided and developed, in locations different from the subject property. The Eckhoff decision, further, was based in this regard upon the case of Forest Preserve Dist. of Cook County v. Chilvers, 344 Ill 573, 577, 176 NE 720, which holds that sales of dissimilar property (such as the actual sales of subdivided lots) to show the value of unsubdivided property is improper. This is clearly not the situation before us.

The Forest Preserve District finally argues that the trial court erred in allowing into evidence Defendant’s Exhibits 1 and 2, inasmuch as maps or plats of unsubdivided property cannot be introduced to show the adaptability of the property for such use.

We are of the opinion that the trial court, in its discretion, properly allowed the exhibits into evidence to assist the jury in its determination of the facts, and to aid the jury in understanding the testimony of the witnesses. As stated in the case of Department of Public Works v. Chicago Title & Trust Co., 408 Ill 41, 95 NE2d 903, at page 52:

“Plats, photographs, drawings and diagrams, which illustrate the subject matter of testimony, may be received into evidence for- the purpose of showing .a particular situation, explaining the testimony or enabling the jury to apply the testimony more intelligently to the facts shown. (Smith v. Sanitary Dist. [sic] 260 Ill 453.) All of the data shown by the colored exhibits were matters to be taken into consideration by the jury in a case of this nature. We do not see that they did more than explain testimony of a somewhat technical nature and assist the jury in its determination of the facts. The court did not abuse its discretion in allowing the exhibits into evidence.”

The issue below was the fair cash market value of the Tabin property. The highest and best use of the property was conceded by the Forest Preserve District and consequently was not in issue in this case, as it was in the case of Union Elec. Power Co. v. Sauget, 1 Ill2d 125, cited by the Forest Preserve District. The Court in Sauget states that the recordation of a plat of subdivision of farm property (within a month of the filing of a petition to condemn that property) does not mean that the property must thereafter be referred to as subdivided property, and further cannot alter the value of that property nor alter the character of admissible evidence relating to value. The admissibility of the plat there involved was not in issue. It should be further noted that the cases of Sexton v. Union Stock Yard & Transit Co., 200 Ill 244, 65 NE 638, and Martin v. Chicago & M. Elec. R. Co., 220 Ill 97, 77 NE 86, cited by the Forest Preserve District, have been superseded by the case of Department of Public Works and Buildings v. Chicago Title & Trust Co., supra.

The foregoing is dispositive of the remaining matters raised by the Forest Preserve District with respect to Defendant’s Exhibits 1 and 2. The witnesses testified extensively and in detail as to the matters raised in this regard and the jury heard that testimony.

The Forest Preserve District next contends that the trial court committed reversible error in refusing to allow it to introduce certain evidence and to make comments on that evidence during closing argument.

The Forest Preserve District first argues that the court should have allowed its Exhibit 5 into evidence. As noted above, Exhibit 5 was identical to Exhibit 5-A, except that Exhibit 5 was in various colors which depicted the depths and makeup of the soil conditions on the Ta-bin property. Exhibit 5-A was allowed into evidence, the defendant specifically noting that no objection would be made thereto. However, objection was made to the introduction of Exhibit 5 and the court sustained the objection.

The matters contained on Exhibit 5 were cumulative of that contained on Exhibit 5-A. Further, the trial court questioned witness Schlesinger with regard to the soil condition patterns depicted on the exhibits and the witness responded that the patterns were arrived at by him through “judgment interpolation” or an “educated guess” from the borings taken from the property. Under the circumstances, we are of the opinion that the trial court did not abuse its discretion in refusing to allow Exhibit 5 into evidence. Wood v. Prudential Ins. Co. of America, 271 Ill App 103, 110; ILP, Trial, § 48.

The Forest Preserve District next contends that the trial court erred in refusing to allow testimony relating to the requirement in the Village of Hoffman Estates that a portion of land in each subdivision be dedicated for public use. The trial court based its ruling upon the authority of the case of Pioneer Trust & Savings Bank v. Village of Mt. Prospect, 22 Ill2d 375, 176 NE2d 799, which holds municipal ordinances requiring the dedication of specific portions of subdivided property for public use are void. The evidence sought to be elicited by the Forest Preserve District in this regard was incompetent.

The Forest Preserve District also assigns as error the trial court’s refusal to allow cross-examination of defendant’s witnesses concerning the cost required to develop the Tabin property in accordance with Defendant’s Exhibits 1 and 2. The cases cited by the Forest Preserve District hold that it is permissible to cross-examine valuation witnesses as to the costs connected with a possible development. (See Forest Preserve Dist. of Cook County v. Krol, 12 Ill2d 139, 145 NE2d 599; Forest Preserve Dist. of Cook County v. Galt, 412 Ill 500, 107 NE2d 682; City of Chicago v. Lehmann, 262 Ill 468, 104 NE 829.)

However, two of defendant’s witnesses referred to by the Forest Preserve District were not valuation witnesses. The third, Manke, was a valuation witness and was, in fact, questioned on cross-examination concerning the costs of developing the Tabin property, as was defendant’s valuation witness, Alter.

The Forest Preserve District points to two questions asked of Manke on cross-examination, objections to which were sustained. One related to the witness’ opinion as to the financial interest or return expected on a developer’s investment, and the other related to the cost of selling property. Manke testified that he had 25 years’ experience in the field of subdivision development, and that when he valued property, he considered “all costs” and the “total cost of development.” We find no abuse of discretion in the trial court’s limiting of the Forest Preserve District’s cross-examination in this regard especially in view of the extent to which it had been allowed to cross-examine these witnesses generally. See County of Cook v. Colonial Oil Corp., 15 Ill2d 67, 70, 153 NE2d 844.

The final point raised by the Forest Preserve District is that the cumulative effect of the numerous allegedly erroneous rulings by the trial court deprived it of a fair trial. The Supreme Court has consistently held that in an eminent domain proceeding wherein the evidence as to value is conflicting, where the jury has viewed the property and returned a verdict within the limits of the testimony, that verdict will not be overturned unless it appears that it was the result of clear and palpable error or the result of passion or prejudice on the part of the jury, or unless the court’s rulings were in error and misled the jury. Union Elec. Power Co. v. Sauget, 1 Ill2d 125, 131, 115 NE2d 246. The jury here viewed the Tabin property, considered the numerous exhibits entered into evidence, heard lengthy testimony, observed the witnesses, and fixed the value of the Tabin property within the limits of the testimony. The rulings of the trial court alluded to by the Forest Preserve District were not erroneous, and we cannot say that the verdict was the result of passion or prejudice or clear and palpable error.

For these reasons the judgment is affirmed.

Judgment affirmed.

LYONS, P. J. and McCORMICK, J., concur.


author: PRESIDING JUSTICE LYONS.

text:
    Walter Erikson, Plaintiff-Appellant, v. Samuel Woodall and Vearla M. Woodall, Defendants-Appellees.
    Gen. No. 53,437.
    First District, Second Division.
    September 30, 1969.

      Edward E. Lekan, of Park Ridge, for appellant; no brief for appellees.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.