author: RYAN, J.

text:
    John Franks and Genevieve Franks, Plaintiffs-Appellants, v. North Shore Farms, Inc., and Howard A. McKee, Defendants-Appellees.
    Gen. No. 52,993.
    First District.
    September 22, 1969.

      Jurco, Damisch & Sinson, of Chicago (James R. Mitchell and John W. Damisch, of counsel), for appellants.
    Marvin J. Glink, Ronald M. Glink, and Crowley, Spreeher, Barrett & Karaba, of Chicago (Robert A. Sprecher and Frank A. Karaba, of counsel), for appellees.
   RYAN, J.

The plaintiffs entered into a contract to purchase certain real estate from the defendant-seller, North Shore Farms, Inc. (North Shore). Fifteen Thousand Dollars as earnest money was deposited with the defendant, Howard A. McKee (McKee). The plaintiffs’ Complaint was filed December 5,1962, and prayed judgment against defendant, North Shore, and defendant, McKee, in the amount of the earnest money, plus interest and costs. On April 30,1963, defendant, McKee, filed a Counterclaim for Interpleader in which he alleged that he was holding the earnest money for the benefit of both parties to the real estate contract and that both the plaintiffs and the defendant, North Shore, had claimed the earnest money. He also alleged that George H. Carlson and Happ Realty, Inc. were real estate agents who likewise claimed to be entitled to a commission payable out of the earnest money. McKee then asked that he be permitted to pay the money into court and that he be discharged from any and all claims with regard to the earnest money. The court, pursuant to this prayer on November 4, 1963, ordered defendant, McKee, to deposit the earnest money less costs of $18.30 with the Clerk of the Court, subject to further order of the court and dismissed defendant, McKee, from the case. Thereafter, with leave of court, plaintiffs filed an Amended Complaint and still later a Second Amended Complaint, which contained four counts. Count I charged the defendant, North Shore, with the failure to perform under the contract and prayed for a judgment against North Shore in the amount of the earnest money, plus interest and costs. Count II alleged a conspiracy between the defendant, North Shore, and the defendant, McKee, and asked for a judgment against both defendants in the amount of the earnest money, plus interest and costs. Count III charged the defendant, McKee, with the violation of his fiduciary duties and a refusal to return the earnest money, and prayed for judgment against McKee in the amount of the earnest money, plus interest and costs, and for punitive damages. Count IV charged North Shore and McKee with conspiracy and prayed for punitive damages against both defendants. On motion of McKee, the court dismissed him from the case. The court also granted North Shore’s motion to strike Counts II and IV and granted leave to the plaintiffs to file a Third Amended Complaint as to North Shore. The Third Amended Complaint was never filed. The case went to trial before a jury on Count I of the plaintiffs’ complaint which prayed for judgment against North Shore in the amount of earnest money, plus interest and costs. The jury returned a verdict in favor of the plaintiff and against North Shore. At the close of all the evidence, North Shore filed a motion for a directed verdict. The court reserved its ruling on this motion. After the verdict, defendant, North Shore, filed its Post-Trial Motion asking: (1) for a judgment for the defendant, notwithstanding the verdict of the jury, “in accordance with defendant’s motion for a directed verdict,” and (2) in the alternative for a new trial. The trial court granted the defendant’s motion for judgment notwithstanding the verdict and entered judgment for the defendant, but did not rule on the defendant’s motion for a new trial, though requested to do so at the hearing thereon.

The plaintiffs have appealed from the order of the court granting defendant, North Shore’s motion for a judgment notwithstanding the verdict and also from the order of the court dismissing the case against defendant, McKee, under Counts II and III.

We shall first consider the correctness of the court’s dismissal of the case against defendant, McKee, under Counts II and III of the Second Amended Complaint.

Money deposited to be held until the performance of a condition has been treated as a deposit in escrow, although this concept is contrary to the generally accepted or common-law meaning of the term. 30A CJS, 971. In this case, McKee was a stakeholder, depositary, or escrowee having custody of funds belonging to the plaintiffs. Title of the plaintiff to these funds would be divested upon defendant, North Shore, performing under the terms of the contract. McKee held the money for the mutual benefit of both parties. Upon the failure of defendant, North Shore, to perform, plaintiffs had the right to the return of the money. Should the escrowee, McKee, fail to return the same, he became a necessary party to any action by the plaintiffs to recover the deposit. Had there been no conflicting claims to the money deposited, then McKee would have been the only necessary party-defendant. However, where there are conflicting claims to the deposited fund by the parties to the contract, in an action by one party against the escrowee for the recovery of the deposited fund, the other party to the contract is a necessary party to the litigation. Hilyard v. Krisolofsky, 337 Ill 584, 169 NE 765.

The original Complaint sought only the recovery of the earnest money and named both North Shore and McKee party-defendants. The defendant, McKee, then filed a Counterclaim for Interpleader pursuant to the provisions of section 26.2 of the Civil Practice Act, alleging the conflicting claims of the plaintiffs and the defendant, North Shore. On November 4, 1963, the court, acting on this motion, authorized the defendant, McKee, to deposit the fund he held with the Clerk of the court and dismissed him from the case. McKee by the counterclaim admitted he had no claim to the fund. He, therefore, should be permitted to bring the money into court and go free, leaving the rival claimants to settle their contest in a proceeding wherein a final judgment will be a termination of the controversy between all parties. Platte Valley State Bank v. National Live Stock Bank, 155 Ill 250, 40 NE 621. The order of November 4, 1963, disposed of the defendant, McKee, as to any claim by the plaintiffs for the return of the earnest money and he was properly dismissed from the case.

When there are conflicting claims to the deposited fund, the escrowee is not required to act upon his own responsibility in making a determination as to the rights of the rival claimants. Stark v. Chicago Title & Trust Co., 316 Ill App 353, 45 NE2d 81. If the escrowee were to prefer one claimant over the other without the protection of a court order, he would be acting at his peril. Nathan v. Rehkopf, 57 Ill App 212.

Count II of the Second Amended Complaint, although containing general allegations of conspiracy and wrongdoing by both McKee and North Shore, nonetheless, seeks to recover only the earnest money that had been deposited with McKee. The order on the counterlcaim for interpleader which had previously been entered disposed of that issue as to the defendant, McKee, and the court accordingly properly dismissed Count II as to McKee.

Count III of the Second Amended Complaint appears to be an attempt to allege a cause of action sounding in tort based on McKee’s willful and malicious violations of his duties as escrowee and seeks to recover judgment against McKee (and North Shore) in the amount of the earnest money and also seeks to recover punitive damages from McKee. Count III was properly dismissed for two reasons: First, it again seeks to recover from McKee the $15,000 he had previously deposited with the court pursuant to the order of November 4, 1963, and second, this count though sounding in tort, fails to allege any damage to the plaintiffs which resulted from the alleged wrongful acts of the defendant, McKee. A legal injury is a wrongful act resulting in damages. As a general rule, to constitute a valid cause of action, there must be both injury and damages. An action cannot be maintained for an injury without damage.

Injuria absque damno does not constitute a cause of action, 1 Am Jur2d, 597, 598; Kane v. Nomad Mobile Homes, Inc., 84 Ill App2d 17, 228 NE2d 207. Accordingly, the court properly dismissed Counts II and III of the Second Amended Complaint as to the defendant, McKee.

In considering the propriety of the order of the court entering judgment for the defendant, North Shore, on defendant’s post-trial motion notwithstanding the verdict for the plaintiffs, we must examine the evidence.

Under the terms of the contract which was entered into July 26, 1962, the plaintiffs agreed to buy and the defendant, North Shore, agreed to sell approximately 10 acres of real estate located in the Northwest portion of Cook County, Illinois. The property was to be used by the plaintiffs as a riding academy. The contract provided:

“Within sixty days from the date hereof seller shall deliver to purchaser or his agent (which delivery may be made at the office of the Buyers’ attorney) a title insurance policy of the Chicago Title and Trust Company in the amount of the purchase price covering the date hereof, or its customary preliminary report on title, showing title in seller (or grantor), subject only to the matters to which this sale is subject by the terms hereof, and to the usual objections contained in owners’ policies issued by said Company. . . .
“It is agreed and understood that the buyer is purchasing the subject property for use as a private riding club and stable for training and boarding horses. Seller represents that the present zoning on said property is agricultural even though said property has been used for some 20 years for commercial purposes by seller. This contract is subject to seller obtaining zoning for buyer that would be suitable for buyer’s use as outlined above. Time being of the essence, it is agreed by the Parties that rezoning order necessary for the buyer’s business must be obtained on or before October 15, 1962. Failure by the Seller so to do shall render the contract null and void and the earnest money deposit shall be returned to the Buyer.”

The plaintiffs’ Second Amended Complaint alleged as breaches of the contract North Shore’s failure to procure the title insurance policy and the failure to procure the change in zoning within the time limits prescribed in the contract. Defendant, North Shore, in its answer alleged facts constituting a waiver of the performance of the two requirements within the time limits. Plaintiffs filed no reply denying the affirmative allegations of the answer. The defendant, North Shore, now contends that the affirmative allegations of waiver stand admitted by virtue of sections 32 and 40 (2) of the Civil Practice Act. Without holding that the affirmative allegations involved required a denial, we are of the opinion that the defendant, North Shore, is not in a position to rely upon plaintiffs’ failure to reply to these allegations. The theory upon which North Shore defended the action was waiver by the plaintiffs of the contract requirements. North Shore introduced considerable evidence to prove waiver. It offered instructions on waiver and it argued waiver to the jury. The defendant thereby abandoned its position that the affirmative allegations of the answer stand admitted by the plaintiffs’ failure to deny the same. Laegeler v. Bartlett, 10 Ill2d 478, 140 NE2d 702; Sottiaux v. Bean, 408 Ill 25, 95 NE2d 899.

The defendant, in an attempt to prove waiver of the contract provisions relating to the furnishing of a title insurance policy, relied upon the acts, words, and conduct of the plaintiffs and their attorney. The defendant contends that the plaintiff treated the contract as still being in effect even after the expiration of the 60-day period and led the defendant to believe that this requirement would not be insisted upon. The defendant contends that the plaintiffs thereby waived performance of this part of the contract. The conduct relied upon by the defendant is the same conduct which it claims constituted waiver of the contract requirement to procure a change in zoning of the property within the time specified. The discussion hereinafter contained concerning the waiver of that contract provision relates to the waiver of the contract provision now under consideration and what is hereinafter said on the subject of waiver relates to both of these contractual provisions.

It stands admitted that a change in the zoning ordinance of the property was not obtained by October 15, 1962, but was obtained in March of 1963. Although the contract recited that the seller represented that the property was zoned agricultural, it was actually zoned R-3 (residential). In any event, the zoning was such as would not permit an operation such as the plaintiffs proposed to pursue on the property except as a nonconforming use.

The defendant, North Shore, contends that the failure to obtain the change in zoning by October 15, 1962, did not constitute a breach, of contract. It insists that the contract does not spell out that the property had to be rezoned to any particular classification. It insists that what the parties intended was that the zoning be consistent with the buyer’s proposed use of the property. North Shore had for many years operated stables, boarded horses, and given riding instructions on the property in question and had been permitted to do so under the existing zoning (R-3) as a nonconforming use. North Shore procured an opinion from the Cook County zoning administrator subsequent to the execution of the contract to the effect that such an operation could continue on the property, even though there was a change in ownership. North Shore therefore concludes that the existing zoning was consistent with the plaintiffs’ proposed operation; that rezoning was not necessary and that the defendants’ failure to procure a change in zoning by October 15, 1962, did not constitute a breach of contract. The plaintiff, John Franks, testified that at the time he negotiated for the purchase of this property, he was already operating a riding stable at another location under a nonconforming use. He did not want to continue to operate under a nonconforming use because of the restrictions he would be under concerning erection of buildings and making improvements. He told this to the defendant’s representative with whom he was negotiating before the contract was executed. He also told him he would not take the property as a nonconforming user, but he wanted it rezoned. The letter of opinion from the Cook County Zoning Administrator, in addition to stating that the present nonconforming use could continue on the property even though there was a change in ownership, also stated that approval for structural changes or enlargement of existing buildings may not be given until the requested change of zone has been approved by the County Board.

Where the language used in a contract leaves the true intent of the parties in doubt and it is necessary to receive extrinsic evidence of facts and circumstances to determine the intent of the parties and if such extrinsic facts and circumstances are controverted, then the jury must determine the question of fact. Schneider v. Neubert, 308 Ill 40, 139 NE 84. In the case now before the court, the jury heard the evidence with regard to the intention of the parties and obviously rejected defendant’s contention that it was not necessary to procure a rezoning of the property and that the existing zoning complied with the contract requirements.

In the alternative, North Shore argues that if completion of the zoning proceeding by October 15, 1962, was material, then the plaintiffs by their words and conduct had waived the contract requirement and the subsequent notification on October 17 that plaintiffs considered the contract terminated constituted an anticipatory breach. The defendants were thereby entitled to retain the earnest money as liquidated damages. Since by this plea defendant, North Shore, is relying upon the defense of waiver to excuse its noncompliance with the terms of the contract, the burden of establishing the waiver is upon the defendant. Voris v. McIver, 339 Ill 340, 171 NE 263; Selman v. Geary, 334 Ill 642, 166 NE 455; Rockwood Sprinkler Co. v. Phillips Co., 265 Ill App 267; 12 Ill Law and Practice, Contracts, § 459; 18 Ill Law and Practice, Estoppel, § 36.

Much of the evidence bearing on the question of waiver is essentially uncontroverted. After the contract was signed in July there were several conversations between plaintiff, John Franks, and Schmidt, an agent for defendant. Schmidt urged Franks to move his horses onto the property, but Franks refused to do so until the zoning proceedings had been completed. Franks left for Canada on October 5. Before he left, he instructed his attorney, Jurco, to prepare a letter cancelling the contract and demanding his money back and if they did not receive the rezoning by October 15, then he should mail the letter. On September 19 the zoning Board sent out notice of the hearing on the application for rezoning. The hearing date was set for October 17,1962, two days after the time specified in the contract for the completion of the rezoning proceedings. Murphy, attorney for defendant, North Shore, told Jurco, attorney for Franks, that the rezoning could not be accomplished by October 15. Murphy asked Jurco to ask Franks to take possession of the property without waiting for the rezoning. Jurco refused. Murphy then suggested that the parties enter into a lease with an option to purchase. Again Jurco refused. On October 10 the two attorneys again discussed, the rezoning hearing date and Jurco told Murphy that the contract called for October 15, 1962, and whatever Murphy wanted to do was purely a matter that he, himself, would be responsible for. On October 15,1962, Jurco addressed a letter to McKee, the escrowee, stating that his client, Franks, would be willing to extend the time provision of the contract to December 5, 1962. No reply to this letter was received.

The hearing was held on October 17, 1962. Neither Franks nor Jurco appeared at the hearing, but Mrs. Franks attended the hearing but did not testify. At the hearing Murphy explained to Mrs. Franks that the objections had been withdrawn to the application and Mrs. Franks was apparently quite happy about it.

There was conflict in some of the evidence presented by the parties on the question of waiver. Attorney Jurco testified that he first received notice of the October 17 hearing on October 12, however, Attorney Murphy testified that he had received notice of the hearing date about September 18 and had immediately informed Jurco of the hearing date. There was also a dispute as to the substance of several telephone conversations between the two attorneys.

This conflicting evidence plus the various inferences that may be drawn from the evidence not in dispute created questions of fact for the determination of the jury on the issue of breach of contract and on the defense of waiver. The jury was instructed as to the burden of proof of each of these issues and as to the law pertaining thereto. By its verdict it obviously found from the evidence and under the instructions that there had been a breach of the contract and that there had not been a waiver of the performance of the conditions thereof. We think there is substantial evidence to support the verdict on these issues as well as on the question of whether the contract required the property to be rezoned as above discussed. It cannot be said that the evidence when viewed in its aspect most favorable to the plaintiffs so overwhelmingly favored the defendant that a contrary verdict on that evidence cannot stand. Consequently, the order of the trial court setting aside the verdict for the plaintiffs and entering judgment for defendant was improper. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504.

Following the oral argument on the defendant’s post-trial motion the court made the following statement:

“I think the verdict was against the manifest weight of the evidence. Coupled with the remarks which you have made, it can’t stand. The motion, therefore, made for a directed verdict at the close of all the evidence will be allowed. There will be no judgment against the defendant for the plaintiff.”

The remarks the court referred to were remarks which counsel for the plaintiff made in his closing arguments and which the judge viewed as inflammatory.

The reason stated by the court does not support its order. Our Supreme Court in the Pedrick case, supra, at page 513 stated:

“We have rather carefully preserved the distinction between the evidentiary situation which will require a new trial, verdict against the manifest weight of the evidence . . . , and that justifying direction of a verdict or judgment n. o. v. There is, in our judgment, excellent reason for so differentiating to be found in the radically different results of allowance of the two motions, and we believe a more nearly conclusive evidentiary situation ought to be required before a verdict is directed than is necessary to justify a new trial. It is not our intention by this opinion to alter this concept.”

It appears, therefore, that the reasons stated by the trial court, inflammatory remarks by counsel and the verdict against the manifest weight of the evidence, were reasons which if present would conceivably support the granting of a new trial but would not support the directing of a verdict or the granting of a judgment notwithstanding the verdict.

The defendant’s post-trial motion in addition to asking for the relief granted, in the alternative asked for a new trial. The trial court refused to pass on the motion for a new trial although specifically requested to do so by the defendant. Defendant, North Shore, now requests this court to grant it a new trial in the event we set aside the trial court’s order which entered judgment in its favor. The question arises as to this court’s authority to consider the defendant’s alternative motion for a new trial in view of the fact that it had not been passed upon by the trial court.

In an attempt to eliminate successive appeals on the questions presented by post-trial motions, the Civil Practice Act of 1933, § 68, subsections 3(b) and 3(c) authorized the reviewing court after reversing the trial court’s ruling on a Motion for Judgment Notwithstanding the Verdict to grant a new trial if one was warranted, even though the motion for a new trial was not passed upon by the trial court. In Goodrich v. Sprague, 376 Ill 80, 32 NE2d 897, the Supreme Court held that section 68, paragraph 3(c) of the Civil Practice Act was an unconstitutional attempt to confer original jurisdiction on the Appellate Court. The only jurisdiction the General Assembly could confer on an Appellate Court under section 11 of Article VI of the Illinois Constitution 1870 as it then existed was appellate jurisdiction. Since the trial court had not passed on the alternative motion for a new trial, the Appellate Court in passing on the same, was exercising original jurisdiction which under the Judicial Article of the constitution then in existence it had no authority to do.

Following this decision and others to the same effect, the Supreme Court amended former Supreme Court Rule 22. Under the amendment the party moving for a judgment notwithstanding verdict was required to move at the same time and in the alternative for the new trial. The trial court was also required to pass on the alternative motion for a new trial even though it granted the Motion for Judgment notwithstanding the verdict. The conditional ruling then served as a basis for the exercise by a reviewing court of its appellate jurisdiction in the event it determined that the judgment notwithstanding the verdict should not have been granted. The provisions of this amendment to former Supreme Court Rule 22 have been incorporated in subsection (6) of section 68.1 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 68.1 (6)).

Under the new judicial article of our constitution effective January 1, 1964, the Appellate Court is no longer prohibited from exercising original jurisdiction. Section 7 thereof provides:

“The Appellate Court may exercise such original jurisdiction as may be necessary to the complete determination of any cause on review.” (SHA Const Art VI §7.)

A similar provision is incorporated in Ill Rev Stats 1967, c 37, § 32.1.

In view of the trial court’s superior position of observation, the better practice is for a trial court to pass upon all motions presented in the post-trial motion and to preserve the reviewing court’s role as one of review of such decisions. Rigid adherence to this belief would compel us to remand this case to the trial court to pass upon the motion for a new trial. The decision of the trial court then would be the potential subject of another appeal. The history of our present section 68.1 of the Civil Practice Act discloses a studied attempt by the legislature and by the Supreme Court to prevent the necessity of multiple appeals on motions pertaining to post-trial relief. In accord with this endeavor, we deem it advisable for an Appellate Court, pursuant to the authority granted by the constitutional provision and statute above cited, to exercise original jurisdiction and pass upon the defendant’s motion for a new trial even though the trial court failed to do so.

Three propositions are urged by the defendant in this court in support of its alternative motion for a new trial:

1. The jury’s verdict was against the manifest weight of evidence;

2. The verdict of the jury was a result of bias and prejudice occasioned by: (a) the argument of plaintiff’s counsel to the jury, (b) the improper statements and actions of plaintiff’s counsel in moving for the production of the defendant’s president in open court before the jury; and

3. The assignment judge at the trial court erred in denying the motion for a continuance because of the absence of William J. Schmidt, president of defendant.

We have heretofore referred to much of the evidence relating to the disputed questions of fact. We stated above that we felt there was substantial evidence to support the jury’s verdict when tested in light of the rule of the Pedrick case relating to motions for judgment notwithstanding the verdict. We also feel that there is substantial evidence on disputed questions of fact to support the jury’s verdict when tested by the rules relating to a motion for a new trial. A reviewing court will not disturb a verdict where the evidence is conflicting unless the verdict is clearly wrong or unless the court is satisfied that the verdict is against a manifest weight of evidence and that an opposite conclusion is clearly evident. A verdict will not be set aside merely because the jury could have found differently or because judges feel that other conclusions would be more reasonable. Cardona v. Toczydlowski, 35 Ill App2d 11, 180 NE2d 709.

The alleged improper remark of counsel in his closing arguments was not objected to by the defendant. The general rule is that objections must be made to the prejudicial argument in the trial court and a ruling obtained thereon before the alleged prejudicial argument can be assigned as error in a court of review. Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249.

The Belfield case also announced an exception to the general rule as follows at page 313:

“If prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review this court may consider such assignments of error even though no objection was made and no ruling made or preserved thereon.”

At the hearing on the defendant’s post-trial motion, the trial judge criticized plaintiff’s counsel for making certain derogatory statements concerning the defendant in the closing argument. The trial judge did not have the benefit of a transcript of the arguments when he made his remarks. We have read the transcript of the closing arguments. The derogatory language which the trial court attributed to plaintiffs’ counsel is not contained therein. We also do not find language in these arguments from which such derogatory language could be reasonably inferred. While there may have been portions of the argument to which the trial court could have sustained objections, the argument was not prejudicial within the exception to the general rule announced in Belfield, supra.

Plaintiff had served a notice on defendant’s counsel pursuant to the provisions of Supreme Court Rule 237 to compel the presence of the president of defendant, North Shore Farms, Inc., William J. Schmidt. Prior to the commencement of the trial the defendant presented a motion for continuance alleging that Schmidt was in Florida and could not be present until a later date. The motion was denied. Thereupon, plaintiff called as its first witness the president of defendant, North Shore Farms, Inc., William J. Schmidt, pursuant to notice served under Supreme Court Rule 237. The defendant claims that the plaintiff’s conduct in this regard was prejudicial but has cited no authority for its position. We can see nothing prejudicial to the defendant in the conduct of the plaintiff.

As to the refusal of the assignment judge and the trial court to grant the defendant’s motion for a continuance because of the absence of this witness, we do not think that this refusal was an abuse of judicial discretion. Supreme Court Rule 231(a) provides in part:

“If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it . . . .”

The affidavit filed in support of the motion for a continuance recites that Schmidt is engaged in a farming operation in Florida and due to manpower shortage he will not be able to attend the trial of the case until after May 1, 1968. The affidavit was signed by Schmidt and was dated December 11, 1967. It was filed along with a motion for continuance on January 3, 1968. The case was called for trial February 1, 1968. The affidavit had been made more than seven weeks before the case was called for trial. It is hard to understand why the defendant could not have made arrangements during this seven-week period to leave his farming operation in Florida for two or three days while he attended court in Chicago. Furthermore, no reason is shown in the motion why the evidence deposition of this witness was not taken during this seven-week period. The case was six years old when called for trial. The motion for a continuance and affidavit do not show that due diligence was used to obtain the testimony of this witness or the wanting of time to obtain it. We feel that the assignment judge and the trial court both properly refused the motion for a continuance.

Accordingly, the motion of the defendant, North Shore, for a new trial is denied.

The judgment of the trial court is reversed and the cause is remanded with directions to enter judgment in favor of the plaintiffs, John Franks and Genevieve Franks, and against the defendant, North Shore Farms, Inc., in the amount of the verdict returned by the jury and for interest thereon and costs.

Reversed and remanded with directions.

STOUDER, P. J. and ALLOY, J., concur.


source: Caselaw Access Project

author: ALLOY, J. STOUDER, P. J.

license: Public Domain

text:
    Forest Preserve District of Cook County, a Municipal Corporation of the State of Illinois, Petitioner-Appellant, v. Clarence F. Yelk, et al., Defendants-Appellees.
    Gen. No. 53,236.
    First District.
    September 22, 1969.

      STOUDER, P. J., dissenting.
    Alan S. Ganz and Samuel H. Young, of Chicago, for appellant.

      Sherman, Schachtman and Stein, of Chicago, for appellees.
   ALLOY, J.

This case involves a condemnation proceeding filed by Forest Preserve District of Cook County, Illinois, on June 22, 1966. The tract involved was owned by defendant, Clarence Yelk, and consisted of approximately 19% acres located in the southwest part of Cook County. This tract was basically a farm tract with a set of buildings consisting of a partial one- and two-story single-family residence, a 250-foot well with pump, a pump house, a garage, a pony barn, an outhouse, and two chicken sheds. The record indicates that the residence was in good condition for its age, but that the other buildings showed visible evidence of their age. The property was zoned R-3, a classification which allowed one-family residences with a minimum lot size of 40,000 square feet and with a minimum width of 100 feet. The jury returned a verdict of just compensation at $62,000. Forest Preserve District appeals from a judgment in such amount.

Two appraisal witnesses testified for the District. One of them, a Mr. Purcell, who was a qualified and licensed appraiser, testified that he made a visual inspection of the house and an analysis of its condition; that he checked the general makeup of the surrounding area as to uses to which it was being put. He also made some investigation as to sales transactions and gave consideration to the proximity of schools, proximity of the highway, and the extent of industrial development in the area. He concluded that the highest and best use of the property on June 22, 1966, was for residential use in conformity with its present zoning. His opinion of the fair cash market value of the property as of such date was $44,125. The testimony of this appraiser was that he was employed by the District to make this appraisal and, also, that he had made appraisals for individuals as well as public bodies.

Another appraiser, a Mr. Waldman, also a licensed qualified appraiser, testified for the District and, likewise, agreed that the highest and best use of the property was in keeping with the residential zoning. His opinion of the fair cash market value of the property as of June 22, 1966, was $40,500. He also testified that directly across the road from the subject property was a 10-acre tract of unimproved land which had similar topography and contour as the subject property.

During a pretrial conference, the attorney for defendant Yelk, the property owner, indicated that he felt other appraisers who had appraised the tract for the District were not going to testify including a Mr. McNamara. The trial judge advised Yelk’s attorney that if he wished to present evidence about a possible “other appraisal” he should bring in Mr. McNamara as his witness. The attorney for Yelk did not do this, but, on cross-examination of the District’s appraiser, asked, “Mr. Waldman, how many other appraisers were there in appraising this property aside from yourself?” He also asked if Mr. Waldman was the first to appraise the property. Both questions were objected to by the District and the objections were sustained. The attorney for Yelk also asked his client, Yelk, how many appraisers had come to his house. Again, an objection was sustained and the attorney for Yelk was instructed by the trial judge in his chambers to refrain from such questioning.

Only one appraiser testified for the property owner, a Mr. Schlieske, who was also licensed and qualified as an appraiser. He testified as to the possible use of the land and explained that if a central water system were installed, the lot size could be reduced to 20,000 square feet per lot. He agreed that the highest and best use of the property was as single-family residential subdivision property in accordance with its existing zoning. On cross-examination of Mr. Schlieske, the District’s attorney asked when Schlieske first examined the property, to which he replied, “In the summertime or sometime in July or August of 1967.” When the property owner, Mr. Yelk, testified, he was asked if his attorney had employed the appraiser and he stated that he did. Yelk also testified thereafter that he had employed the attorney about the first part of November 1967. He also stated that it was after the attorney was hired that he first had any contact with Mr. Schlieske, the appraiser. The attorney for the Forest Preserve District then used this line of questioning for the purpose of impeaching the testimony of the property owner’s appraiser, Mr. Schlieske, since Schlieske had testified that he saw the property in July or August and, if he was not hired until November, he could not have seen the property at such time. During closing argument, the attorney for the District was pointing out this inconsistency in the testimony of Schlieske when the following was shown of record:

“. . . And Mr. Schlieske could not have made any appraisal in August of 1966 which he testified to because he wasn’t contacted until after Mr. Friedman was employed.”
Mr. Friedman: “Objection, your Honor.”
The Court: “What is the objection?”
Mr. Friedman: “My objection is he is misstating the evidence of my appearance filed in the case. I was on the case long before that.”
The Court: “This is argumentative. Overruled.”

In the course of the trial, the attorney for the property owner also attempted to introduce evidence to show that the property owner could only afford to hire one appraiser and, in his closing argument, he likewise attempted to insert a reference to the fact that this property constituted the life savings of the property owner and that civilization was moving him out.

The District attempted to introduce evidence of the sale of a 10-acre tract across the road which was sold in May of 1966, just a month prior to the petition for condemnation. That 10-acre tract was not an improved tract, and the trial judge sustained an objection to any further evidence in regard to such 10-acre tract. It is contended by the District that evidence of such sale of the 10-acre tract should have been admitted.

The District also asserts that the trial court committed reversible error in refusing a new trial because of the remark made by the attorney for the property owner during the closing argument that he had been in the case a long time before November 1967, and, thus, reduced the effect of the District’s argument relating to impeachment of the testimony of the property owner’s appraiser. The District also contends that reversible error was committed by reason of the property owner’s attorney attempting to create an inference that other appraisers had appraised the property who were not brought in as witnesses and, likewise, that it was prejudicial misconduct for defendant’s counsel to deliberately interject in his questioning and argument, appeals for sympathy from the jury with respect to his client.

The first issue for consideration is whether there was reversible error in the refusal of the trial court to allow evidence of the sale of the 10-acre unimproved tract across the road from the tract condemned. As heretofore indicated, this tract was sold in 1966 just a month prior to the filing of the petition for condemnation. An attempt was made to introduce such evidence of the purchase of such tract for the sum of $15,000. An objection was made to the offer of such evidence and the objection was thereupon sustained by the trial court. The District then made an offer of the contract showing such sale and the closing statement of the sale of the 10-acre tract. No further offer of proof was made by the District. On appeal in this Court, the District contends that the refusal to admit evidence of the sale of such tract was improper. The testimony in the record was general in nature as to the character of the 10-acre tract which was unimproved and used for farming purposes. There was no specific showing by the District of any evidence, nor was an offer of proof made to show a similarity or comparability both in character and locality of the 10-acre tract, although some elements of such comparability could have been deduced from other evidence. The offer of proof, which followed the sustaining of objection to the descriptive testimony of the 10-acre tract, simply covered elements relating to the purchase price of such 10-acre tract.

In City of Evanston v. Piotrowicz, 20 Ill2d 512, 170 NE 2d 569, at 522, the Supreme Court indicated that there is no fixed or general rule which has or could be laid down which governs the degree of similarity which must exist between properties sold and that condemned to make evidence of the sale or sales admissible. The court went on to state (at page 522):

“. . . rather, the admissibility of such evidence must in each instance be determined by the trial judge within the proper limits of his discretion. (City of Chicago v. Vaccarro, 408 Ill 587; Forest Preserve Dist. v. Kercher, 394 Ill 11.) This court, moreover, has recognized that ‘similar’ does not mean ‘identical,’ but means having a resemblance, and that property may be similar for purposes of fruitful comparison, though each possesses various points of difference. (City of Chicago v. Vaccarro, 408 Ill 587, and Forest Preserve Dist. v. Lehmann Estate, Inc., 388 Ill 416.) Wherever there is a reasonable basis for comparison between the property sold and that being condemned, evidence of the sale is not incompetent, and the dissimilarities between the properties, which are declared to the jury, affect the weight and value of the testimony rather than its competency. Forest Preserve Dist. v. Folta, 377 Ill 158; City of Chicago v. Vaccarro, 408 Ill 587.”

No simple rule, therefore, could be enunciated with respect to evidence of sales of improved and unimproved property for comparison purposes in condemnation proceedings. The District, on appeal in this Court, contends that the rule relating to admission of such evidence should be whether both parcels (improved and unimproved) are adaptable to the same use. While this is substantially what some Elinois courts have been doing, the allowance of such evidence rests, finally, within the sound discretion of the trial judge (City of Chicago v. Vaccarro, 408 Ill 587, 97 NE2d 766, at pages 600-601; Chicago, North Shore & M. R. Co. v. Chicago Title & Trust Co., 328 Ill 610, 620, 160 NE 226).

Near proximity alone to the premises sought to be condemned, is not enough. In Forest Preserve Dist. of Cook County v. The Alton R. Co., 391 Ill 230, 62 NE2d 701, the court stated, at pages 233-4:

“Under the circumstances of this case, there was such dissimilarity between the two tracts that the sale price of the Skavich property should not have been admitted. Having been erroneously admitted, appellants could not establish a similarity by deducting from the sale price estimated values of those things which caused the dissimilarity. If the value of the buildings was deductible in this way, then estimates of values of other items could be shown and such procedure would lead the jury to an investigation of numerous collateral issues. Even though the sale price of the Skavich property was admissible and appellants’ theory of deduction of value of improvements approved, the evidence offered would not be admissible for the reason there is nothing to show that the buildings on the Skavich property added anything to the value or furnished a consideration for any part of the sale price.”

It is clear that the allowance of such evidence rests within the discretion of the trial court and that such determination by the trial court, as to the admissibility of such evidence, will not be the basis for reversal unless there is a clear abuse of discretion. As emphasized by both appellant and appellee in this case, the ultimate test of the admissibility of sales of property in the vicinity is whether the final result would be to assist the jury with useful evidence, or confuse the jury with collateral issues. As stated in Kankakee Park Dist. v. Heidenreich, 328 Ill 198, 159 NE 289, at page 204:

“It is incumbent on the party offering proof of sales of other lands to show, as a foundation for its admissibility, that the lands sold were similar in locality, quality, character and usefulness to the lands in question .... The question whether the evidence should be admitted is one involving the discretion of the trial court, and the decision of the court on the preliminary question will not be disturbed unless it is manifestly against the weight of the evidence.”

In the cause before us, the trial court could have concluded (as did the court in Forest Preserve Dist. of Cook County v. The Alton R. Co., supra) that the introduction of such evidence would possibly confuse the jury by requiring them to add or deduct the value of improvements. It is notable, also, that the District did not introduce evidence showing similarity or comparability of the 10-acre tract to the tract being condemned. While we do not cite this as the sole basis for our conclusion, we believe that, upon consideration of the record, the action of the trial judge in refusing to allow evidence of the sale of the vacant 10-acre tract, did not constitute an abuse of judicial discretion.

With respect to the question as to whether error was committed in the refusal to grant a new trial because of the remark made by the property owner’s attorney during closing argument (to which we have referred in this opinion) it does not appear that this should be a basis for reversal. A reading of the record of the testimony as to when defendant Yelk first met his appraiser shows that there was some question as to whether Mr. Schlieske was actually hired in July or later in November. While there was no evidence in the record as to exactly when the attorney entered the case, it does not appear that his statement could have any significant detrimental effect in the case as to the District’s contentions. The attempted impeachment was based upon a minor detail, being a question of when the appraiser first went to appraise the property. Since the property was to be appraised as of the date the petition for condemnation was filed, it was not significant as to when the appraiser first viewed the property. We do not believe that the cases of Vujovich v. Chicago Transit Authority, 6 Ill App2d 115, 126 NE2d 731, and Ryan v. Monson, 33 Ill App2d 406, 179 NE2d 449, are applicable as precedents. In such cases the remarks and conduct of counsel were clearly prejudicial.

On the issue of whether the property owner’s attorney was guilty of prejudicial misconduct in creating an inference before the jury that plaintiff was suppressing adverse evidence, it is noted that the attorney for the property owner was warned not to mention the name of one McNamara. The attorney did not mention that name but he did refer several times in his cross-examination to the possibility of other appraisers. It is difficult to conclude that these references on cross-examination are a justifiable cause for reversal in this case. It was shown that one of the District’s appraisers consulted with other appraisers to help him, and thus, the question of other appraisers may have been an appropriate inquiry on cross-examination. The case of Forest Preserve Dist. of Cook County v. The Alton R. Co., 391 Ill 230, 62 NE2d 701, cited by the District, involved a much more serious attempt to interject a question of suppression of evidence. We do not feel that the conduct of the attorney for defendant in the case before us constituted such a flagrant violation as to be the basis for reversal of the cause in this respect.

The final question is whether reversible error was committed by the attorney for the property owner in interjecting appeals for sympathy for his client. There was an attempt to ask Mr. Yelk a question as to his opinion of the value of the property without laying any foundation, thus giving the impression that the court would not let the property owner testify about his own property. There was also reference by the property owner to his children and the fact that Mr. Yelk’s life savings were tied up in this property. Finally, there was an argument by the property owner’s attorney that the property owner could only afford to hire one appraiser. All these matters were objected to by the District, however. On the basis of the action of the jury, we do not believe that these items aroused such sympathy in the minds of the jury as to justify a reversal of the case.

It is contended by the District that each of the instances of misconduct of the property owner’s attorney standing alone would probably not be grounds for reversal but that their cumulative effect should require such reversal. We do not believe, however, that, considering all the instances referred to in the case before us, we would be justified in reversing this cause. As stated by the court in Forest Preserve Dist. of Cook County v. Kercher, 394 Ill 11, 66 NE2d 873, at page 25:

“The jury, however, viewed the property and had the full benefit of such view in considering the evidence and arguments. It is the rule in this State that where damages are awarded by a jury in a proceeding in which the evidence is conflicting, and the jury views the premises and fixes the amount of compensation within the range of the evidence, its verdict will not be disturbed unless there has been a clear and palpable mistake or the verdict was the result of passion and prejudice.”

In the case before us, the finding for the property owner of $62,000 was well within the range of testimony of the expert witnesses. The property owner’s appraiser set the value at $73,500, while the District appraisers set the figures at $40,500 and $44,125, respectively. Nothing in the cause would justify a conclusion that the verdict was the result of passion or prejudice. The judgment of the Circuit Court of Cook County, therefore, will be affirmed.

Judgment affirmed.

EYAN, J., concurs.

DISSENTING OPINION

STOUDER, P. J.

I do not agree with the majority of the court. My disagreement concerns that aspect of the opinion which approves the exclusion of evidence relating to the similar sale. In my opinion, such exclusion constitutes reversible error.

The majority opinion concludes that the trial court properly excluded evidence of the other sale because it was the exercise of appropriate judicial discretion. The trial court excluded the comparison sale because the eomparison tract was “vacant,” apparently meaning unimproved or without buildings. If this was not a proper reason for excluding evidence of the other sale it does not appear to me that appropriate judicial discretion was exercised.

Appellee’s major argument in justification of the trial court’s action is stated as follows in his brief. “Thus, the basic rule in Illinois has been that improved and unimproved properties are not similar or comparable. Chicago, North Shore & M. R. Co. v. Chicago Title & Trust Co., 328 Ill 610, 160 NE 226 (1928); Sanitary Dist. of Chicago v. Boening, 267 Ill 118, 107 NE 810 (1915); Chicago & St. L. R. Co. v. Kline, 220 Ill 334, 77 NE 229 (1906).” An examination of the three cases cited does not support the contention that there is any such basic or general rule. Rather these cases are illustrative of the general rule that the nature and extent of improvements is a criteria to be considered in determining the similarity of two tracts of real estate. As applied to real estate, improved and unimproved are not terms of opposition but rather terms of degree. Improvements to real estate generally refer to conditions or structures which have been the result of artificial or man-made alterations of the premises. For example fences, ditches, wells or roadways would be considered improvements and yet the presence or absence of such items in tracts to be compared would not prevent the tracts from being considered similar.

Forest Preserve Dist. of Cook County v. Draper, 387 Ill 149, 56 NE2d 410, Department of Public Works and Buildings v. Diggins, 374 Ill 11, 27 NE2d 826, Forest Preserve Dist. of Cook County v. Kercher, 394 Ill 11, 66 NE2d 873 and Forest Preserve Dist. of Cook County v. The Alton R. Co., 391 Ill 230, 62 NE2d 701, are all cases involving comparisons where one tract had buildings and the other did not. Such cases emphasize that where real estate is adaptable for similar uses, comparison sales may be appropriate for determining value, but such cases do not go so far as to say that adaptability for use is the only criteria for determining similarity. Thus, if the nature of the improvements is such that the properties are substantially dissimilar it would appear that their adaptability for the same use would not be such a consideration as to make the tracts similar for the purpose of comparison. If the unit valuation rule is to be continued it would appear to me to be of little aid in utilizing comparison sales where the value of buildings had to be deducted either from the comparison tract or the tract to be taken in order to arrive at some appropriate comparison. I, therefore, would reject the contention of the appellant that it is appropriate to use a vacant tract as a comparison by deducting the value of buildings on the tract taken.

The question remains in the instant case, whether the presence of buildings on the tract taken, constituted such an element of dissimilarity that the sale of the tract without the buildings was an improper comparison sale.

After the testimony of its first appraisal witness, appellant made an offer of proof outside the presence of the jury by way of the testimony of one Nederost. He testified that he purchased the 10-acre tract across the road from the subject property in May, 1966, for $15,000. He further testified that the tract was located on the same intersection as the subject property, indicating frontage on each of the roads, that the tract was gently rolling and was used for farming (as was the subject property). This evidence, together with the contract of sale and closing statement offered in support thereof, was refused by the court. This offer of proof must be considered in light of other evidence in the case particularly that introduced by appellee by way of cross-examination of appellant’s valuation witnesses. Appellee’s counsel attempted to elicit from such witnesses details concerning subdividing the subject property, including number of lots, the size thereof and the location of roads. It is true that neither the questions nor the testimony indicated that the present buildings on the subject property would be razed. It is clear, however, from the questions that the potential subdividing was not limited to the area unoccupied by buildings but concerned the tract as a whole. Accordingly, I believe that it is a reasonable inference from the evidence, that the highest and best use or greatest potential value in fact attached little value to the existing buildings. Furthermore, the buildings occupied only a small portion of the tract taken and accordingly the sale price of the tract across the highway was, in my opinion, a relevant factor in determining value of the tract taken since it included a substantial portion of similar property. This would not mean that the value of the tract taken would be fragmented or divided.

The majority opinion also suggests that the trial court might have considered that confusion would have occurred by the interjection of collateral issues into the case. This appears to me to be speculation, unsupported by the record and not an appropriate conclusion to be drawn from the record. This was the only sale of other real estate sought to be introduced. The number of appraisers was relatively few. In my opinion, rejection of the proffered evidence prevented the jury from considering facts which could have been highly beneficial in its determination of value. Consequently the exclusion thereof was prejudicial to appellant.


author: MR. PRESIDING JUSTICE LYONS

text:
    William E. Davern, Jr., v. Civil Service Commission of the City of Chicago, and Orlando W. Wilson, Superintendent of Police of the City of Chicago, Defendants-Appellants.
    Gen. No. 52,147.
    First District, Second Division.
    September 23, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Ronald S. Cope, Assistant Corporation Counsel, of counsel), for appellants.
    Richard F. McPartlin, of Chicago, for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

The plaintiff, William E. Davern, Jr., an applicant for the position of patrolman in the Chicago Police Department, commenced this action by filing his complaint under the Administrative Review Act (Ill Rev Stats 1965, e 110, §§ 264-279 inclusive), seeking to reverse an order of the Civil Service Commission of the City of Chicago (hereinafter referred to as the Commission), which had disapproved his certification to the position of patrolman and had struck his name from the eligible list and Civil Service Register. After remanding the cause to the Commission for the taking of additional evidence pursuant to c 110, § 275(1) (g) and receiving a supplemental record in which the Commission affirmed its original decision of decertification, the trial court reversed the order of the Commission, holding it to be contrary to the manifest weight of the evidence, and ruled that the plaintiff was entitled to have his name immediately restored to the eligible list and register for the position of patrolman and was entitled to be certified and appointed to the position, to perform the duties thereof, and to receive the salary appropriated therefor, until removed as provided by law. The defendants appeal from this judgment and seek to reverse it.

The plaintiff passed an examination given by the Commission for the position of patrolman. On September 27, 1965, the Commission certified him for appointment to that position. Shortly thereafter, the plaintiff received a letter, dated October 19,1965, from the Chief Examiner and Secretary of the Commission which directed him to appear before the Commission on October 27, 1965, “to show cause why your certification to the position of Patrolman should not be disapproved.” The plaintiff appeared as directed. He was without counsel and no witnesses testified against him. At this time, no attorney represented the Police Department. The plaintiff merely answered the questions asked of him by the Commission. These proceedings were informal and brief.

The plaintiff explained to the Commission that he resigned from the Chicago Police Department on May 10, 1960, at a time when he was assigned to the Summer-dale Police District and was a patrolman having detective duties. At the time of his resignation he had been a member of the police force for approximately five years. He and his brother, also a patrolman and assigned to the same shift at the Summerdale Station as the plaintiff, resigned from the Police Department on the same date in deference to the wishes of their father, a physician, who thought it best that his sons leave the force due to the constant adverse publicity regarding the Police Department which he was receiving from his patients. Both the plaintiff and his brother then entered private industry until the plaintiff took the patrolman examination, apparently in 1965, and was certified for the position in that year.

During the questioning of the plaintiff by members of the Commission, it became apparent that the Commission had been advised by the Chicago Police Department that it recommended that the Commission disapprove the plaintiff’s certification. At this first hearing before the Commission, its members referred to a Police Department report concerning the plaintiff which was not shown to him at this time and which indicated, according to the conclusions of an unnamed lie detector examiner, that the plaintiff had lied when he answered “No” to the following questions put to him in 1960 during a polygraph examination given to him with his consent: “Did you ever receive any burglary proceeds since you were a policeman; did your detective partner at the Summerdale Police Station ever tell you that he actually knew Richard Morrison was working with policemen?”

The Commission also was advised by the Police Department that the plaintiff always denied being involved in any police wrongdoing and was never accused of any criminal offense as a result of the police investigation into the activities at the Summerdale Police District. At the conclusion of this informal hearing, the plaintiff was told that the Commission wished to take the matter under consideration and would advise him of its decision. Approximately a week later, the plaintiff was told by letter that, after investigation, the Commission had entered an order disapproving his certification to the position of patrolman and had struck his name from the eligible list and register. He did not receive a copy of this order; no reasons were given in the letter for this action of the Commission; and the investigation which it had conducted was not specified.

The plaintiff then filed his timely complaint in the Circuit Court of Cook County, pursuant to the Administrative Review Act, alleging the foregoing facts as well as stating that after receiving the letter of disapproval from the Commission, he had employed an attorney to ascertain the reasons for its action. He was informed that the Commission’s files contained a letter which was signed by the Director of Personnel of the Chicago Police Department in his official capacity and was addressed to the President of the Commission. The complaint went on to allege that this letter contained information which formed the basis of the Commission’s questions to the plaintiff concerning the alleged results of a lie detector test which he had taken. The letter concluded with the recommendation of the Police Department that the certification of the plaintiff be withdrawn.

Continuing, the complaint alleged that at the time of his resignation in May, 1960, the plaintiff was assigned to the Summerdale Police District and, along with numerous other police officers, was subjected to intensive investigation; that the plaintiff cooperated fully in said internal investigation, submitted to a polygraph test, and testified before the County Grand Jury on two occasions; that the plaintiff resigned because of unfavorable publicity reflecting upon all personnel attached to the District and their families; and that there was no authority under Rule II, section 6 (Disqualifications from Civil Service) of the Commission nor was any competent, relevant evidence introduced against him at the hearing before the Commission which warranted its disapproval of his certification. In conclusion, the complaint prayed that, upon review of the transcript of the evidence supporting the order, the court would reverse the Commission.

The Commission filed an answer to this complaint and a transcript of the proceedings conducted before it. In its answer, it admitted most of the allegations contained in the plaintiff’s complaint. It did deny, however, that it had no authority under its Rule II, section 6, to disapprove the plaintiff’s certification and stated that the manifest weight of the evidence supported its order. Pursuant to order of court, a second hearing was held before the Commission on November 2, 1966, for the taking of such additional evidence as the parties wished to present. At this more formal hearing, both the Police Department and the plaintiff were represented by counsel. One witness testified for each side; direct and cross-examination were conducted by the attorneys; and documents were admitted into evidence. A transcript of these proceedings is also included in the record before us. The Police Department did not pursue the original line of inquiry as to whether or not the plaintiff had lied while taking a lie detector examination in 1960, but rather now attempted to demonstrate, over objection of plaintiff’s counsel, that the plaintiff carelessly, even deliberately, mishandled evidence, a Polaroid camera, in 1959 which aided Richard Morrison in that it halted any further criminal prosecution of him for the burglary of this camera.

The only witness for the Police Department was Marcus McGill, a sergeant in the Department, who testified that the plaintiff’s name was mentioned as a result of the police investigation into the statements and allegations made by Richard Morrison. The plaintiff was a detective on April 14, 1959, the night that Morrison and Jerry Bossuyt were arrested in the Summerdale Police District. The arresting officers were Handley and Gil-martin. The detectives involved as investigating officers were the plaintiff, Kann, and Norcott. The following property was found in Morrison’s car: a Polaroid camera; bottles of liquor; cigarettes; and approximately $475 in coins. The arresting officers and the detectives escorted Morrison, Bossuyt, and the seized property to the Summerdale Police Station where the evidence was inventoried. Through police channels, it was learned that the items matched a description of merchandise taken in the burglary of Carmen Sakol Motors, which was located in another Police District. Morrison and Bossuyt were then detained on a burglary warrant. Continuing, McGill stated that although the property seized should have been taken at the earliest possible time from the Summerdale Station to the Custodian’s Office located in Central Police Headquarters, the merchandise remained at Summerdale for six days before it was sent to the proper place. In addition, the Polaroid camera was entered on Summerdale’s Recovered Property Inventory Sheet without its serial number being listed. No detective placed his private marking on the camera either. Police records showed that at the end of May, 1959, the plaintiff removed the camera from the Custodian’s Office and kept it out for five or six days.

A document was then admitted into evidence over the objection of the plaintiff. It was a written report dated February 16, 1960, and sent from the Custodian’s Office, Lost and Stolen Property Section, to the Deputy Commissioner of Police for Staff Services. This official police report indicated that a patrolman assigned to the Custodian’s Office, noticing that the Summerdale Police Station’s Recovered Property Inventory Sheet did not contain a serial number for the Polaroid, camera, also could not locate it when the camera was turned in by the Summerdale District. He sought help from another patrolman assigned to the Custodian’s Office who found the serial number by lifting a metal flap on the front of the camera and noticing the serial number, P120-459, stamped on the inside of this flap. This number was then entered on the appropriate police documents. The records in the Custodian’s Office showed that the camera was removed on four occasions. These documents indicated which officer removed the evidence and when it was returned but apparently not who returned it. Officer Handley removed the camera on April 21, 1959, and it was returned the same day. Detective Glenn Cherry removed it on May 6, 1959, and it was returned the next day. The plaintiff took it out on May 27, 1959. The camera was returned on June 2, 1959. Finally, Officer Handley again removed it on September 24, 1959, and it was returned the same day.

On cross-examination, McGill testified that the plaintiff removed the camera from the Custodian’s Office on May 27, 1959, so that it could be used in the court proceedings of that day. The witness went on to say that it was not normal procedure for a policeman to retain any evidence for five or six days after he had checked it out for use in court as the plaintiff had apparently done in this case. In conclusion, McGill stated that one of the plaintiff’s partners at the Summerdale District in 1959-60, Detective Kann, was still in the Police Department and had been promoted to sergeant.

The Police Department then introduced another document into evidence without objection from the plaintiff. This was a written statement taken from and signed by the plaintiff on March 22, 1960, in Central Police Headquarters and given to two investigating sergeants detailed from the Police Commissioner’s Office. In his written statement, the plaintiff denied ever working with a burglar, knowing of any Chicago Police Officer who did work with one, receiving anything from a burglar to conceal a crime, knowing of Morrison’s activities with police officers before January, 1960, or being told by his partner, Kann, that Kann knew Morrison was working with policemen.

The plaintiff also declared in his statement that sometime after May 7, 1959, he had a conversation with his two detective partners, Norcott and Kann, in Kann’s hospital room. There the plaintiff told the other two men that on May 7, 1959, he had appeared at a preliminary hearing in the Cook County Criminal Courts Building concerning the burglary of Sakol Motors for which Morrison and Bossuyt had been arrested. Also present were Officer Handley, who was one of the arresting officers; William Sakol, who was the complaining witness; and Barsy, the attorney for Morrison. This lawyer contended that his client had a receipt for the Polaroid camera taken from his car by the police in April, 1959, which would show that this camera was Morrison’s personal property and not that of Sakol Motors. Morrison produced a receipt from Imperial Jewelers which also contained a serial number. This number was compared with the number on the camera. They were identical. The prosecution’s complaining witness, Sakol, then stated that he had no receipt or bill of sale for the camera which would contain its serial number, but if the court would open the back of the camera, it would find there a positive of a picture taken by Sakol on Christmas, 1958. This was done. Upon examination, the court remarked that the photograph was hazy but it looked like Morrison’s picture. Officer Handley, in response to the court’s directive, sent the camera to the Police Crime laboratory for confirmation. The case was continued to May 27, 1959.

After this turn of events, Davern, Sakol, and Officer Handley engaged in a conversation outside the courtroom. The plaintiff asked Handley if he, as the arresting officer, had picked up the camera and brought it to court. Handley said no. Detective Glenn Cherry had volunteered to pick it up from the Custodian’s Office on May 6, 1959, saying he would be down at Central Police Headquarters anyway on that date and would save Handley a trip downtown. Cherry brought the camera to Handley’s home on May 6, 1959, and Handley brought it to court for the preliminary hearing on the following day. Following this conversation, the plaintiff and Norcott, one of his detective partners, went to Imperial Jewelers where the proprietor told them that he had sold a camera to Morrison in September, 1958, but he had no record of the sale nor of the camera’s serial number. The proprietor also pointed out to Davern where the serial number could be found on a Polaroid camera. The camera’s manufacturer also was contacted but it too kept no such serial number data.

In conclusion, the plaintiff mentioned in his written statement that he had no way of knowing if the Polaroid camera had been switched by someone. He saw no serial number on the camera when Morrison was arrested in April, 1959. He did not know of any serial number until May, 1959, at the preliminary hearing. The plaintiff took the Polaroid camera from the Custodian’s Office to court on May 27, 1959, for the second hearing in this matter. Since he had to attend another trial concurrently with the Morrison hearings, the plaintiff was required to divide his time between two courtrooms in the Criminal Courts Building. He left the camera in the possession of two men: Mr. Sakol, the complaining witness; and a detective, not from the Summerdale Station, who was with Sakol that day and whom the plaintiff did not know. After making five or six trips between courtrooms, the plaintiff was advised by Sakol that Bossuyt had been discharged. The court had stated that the camera should be returned to Morrison although he was held over to the County Grand Jury apparently for the burglary of the liquor, cigarettes, and coins. Morrison was no longer present.

The plaintiff then took the camera to the Summerdale Police Station. He did not return it to the Custodian’s Office on May 27, 1959, since, due to the lateness of the hour, the Custodian’s Office might have been closed by the time he arrived at the Central Police Headquarters. Once back at the Summerdale Station, the plaintiff placed the camera behind a desk so that it could be taken to the Custodian’s Office by the pickup wagon. The plaintiff did this on the Thursday before the Memorial Day weekend. If the pickup wagon failed to deliver the camera to the Custodian’s Office on that Friday, it would be quite possible that the Custodian’s Office would not receive it until the following Tuesday due to the intervening Memorial Day weekend. The plaintiff also stated that he was on a medical leave of absence on May 27, 1959, due to a physical ailment, and he might have personally returned the camera to the Custodian’s Office on June 2, 1959, when he received his medical release. The plaintiff did not see the camera again until his next court appearance in September, 1959.

After this document was introduced into evidence, the Police Department rested its case. The only witness for the plaintiff was the plaintiff himself. He stated that during the five-year period that he was a member of the Police Department before his resignation in May, 1960, he was never suspended nor were any criminal charges placed against him. He did earn two creditable mentions and thwarted an armed robbery during this period. Detective Kann, one of his partners at the Summerdale Station, received a twenty-nine day suspension for his activities in the Morrison case. Kann was now a sergeant. The plaintiff went on to say that another detective, Glenn Cherry, had been convicted of switching evidence in the Morrison case. The plaintiff only took the camera from the Custodian’s Office on May 27, 1959. In conclusion, he stated that the Police Department did not delay his furlough, but they did delay the furloughs of some of the other officers from the Summerdale Station who were later discharged from the force.

This concluded the additional evidence which was presented to the Commission. The Commission made no findings of fact but filed its supplemental record with the Circuit Court for the latter’s consideration. The court thereafter reversed the prior order of the Commission.

On appeal, the appellants contend that the Commission was correct in concluding that the plaintiff lacked the requisite character for appointment to the Chicago Police Department. It is therefore urged that the trial court erred in substituting its judgment for that of the Commission. In its brief the Commission discloses, for the first time, its reason for decertifying the plaintiff. It contends that the record in this case demonstrates that the plaintiff is of “bad character” within the meaning of Rule II, section 6 of its Rules which, although not defining the term, provides as follows:

“Disqualifications. Proof ... of bad character . . . shall be grounds for . . . omission or removal from an eligible register. . . .”

Specifically, the appellants contend that the plaintiff is of “bad character” because: (1) he did not place the Polaroid camera’s serial number on Summerdale’s inventory sheet; (2) he was one of the recovering officers and did not place his mark on the camera; (3) he removed the camera from the Custodian’s Office on May 27, 1959, and it was not returned until June 2, 1959; (4) he was not the arresting officer and hence violated the rules of the Chicago Police Department by removing the camera on May 27, 1959; (5) he resigned while under investigation; (6) the records of the Police Department indicate that he lied in making certain answers to questions posed to him in a polygraph examination.

Although “bad character” is not defined in Rule II, section 6, it should be stated at the outset that the Commission must have the power to decide what is bad character in a particular case justifying the decertification of an applicant for a Civil Service appointment. In the statute controlling the discharge, in certain municipalities, of Civil Service policemen and firemen for “cause” (Ill Rev Stats (1965), c 24, § 10-2.1-17), “cause” is not defined by the Legislature. In interpreting this statute, reviewing courts have held that the administrative agency is to decide what conduct justifies cause for removal. When the Administrative Review Act is invoked and the courts are asked to review a final decision of an administrative agency, the judiciary will not reweigh the evidence but will only determine if the order of discharge is not arbitrary but is just and reasonable in light of the evidence presented to the agency. Fantozzi v. Board of Fire and Police Com’rs, 35 Ill App2d 248, 256, 182 NE2d 577, 580 (1962); affirmed 27 Ill2d 357, 189 NE2d 275 (1963). It is the duty of this court, as it was of the trial court, to examine the evidence presented before the Commission and to determine if its order is supported by the manifest weight of that evidence. Drezner v. Civil Service Commission, 398 Ill 219, 226-27, 75 NE2d 303, 307 (1947).

The appellants first contend that the plaintiff’s bad character is demonstrated by his failure to record the camera’s serial number on Summerdale’s inventory sheet. In this regard, it should be noted that the record fails to reveal why this duty should fall solely on the plaintiff. There were two arresting officers present at the scene of Morrison’s arrest and two detectives participating in the investigation in addition to the plaintiff. Bad character is alleged only against the plaintiff although no one of these other four police officers thought to record the serial number either. Apparently, they are still on the police force. One of the detectives, Kann, has been promoted to sergeant.

In addition, it is undisputed in this record that the plaintiff did not discover the location of the serial number on a Polaroid camera until he himself interviewed the owner of Imperial Jewelers after May 7, 1959. Up until that time he only knew the identity of the camera found in Morrison’s car as Model #110A. One of the police officers assigned to the Custodian’s Office at Central Police Headquarters could not find the serial number when the camera was turned in on April 20, 1959. He had to seek help from another patrolman who discovered the number, somewhat hidden, inside the camera’s flap, which first had to be lifted. The serial number was certainly not in plain view. It appears that a rather thorough and detailed examination was required to find it if one was unfamiliar with the camera. The record is silent as to why the duty to conduct such an examination should rest solely with the plaintiff. It would be arbitrary and unreasonable to place this duty solely on him in the absence of evidence showing that the plaintiff was the dominant figure among the detectives and arresting officers when Morrison was apprehended on April 14, 1959. No such evidence is found in this record.

Moreover, the record does not contain the serial number which was read in court on May 7, 1959, and which was compared with Morrison’s receipt and found to be identical. We do know that a certain serial number was found to be identical, but we do not know the identity of that serial number. If it was P120-459, then the camera was switched at the Summerdale Station during the six-day period from April 14 to April 20, 1959, since P120459 was the serial number of the camera turned in to the Custodian’s Office on April 20, 1959. Consequently, Detective Cherry would not have switched the camera sometime between May 6 and May 7, 1959. Yet, it is undisputed that Cherry was convicted of switching evidence in the Morrison case and that he volunteered to pick up the camera for Officer Handley, the arresting officer, on May 6, 1959. The switch was discovered the next day. It is somewhat apparent that the switch was not made until after the camera had reached the Custodian’s Office on April 20, 1959. It is, therefore, immaterial that the camera was kept at the Summerdale Station from April 14 to April 20,1959.

After learning on May 7, 1959, at the preliminary hearing, of the apparent switch in the evidence, the plaintiff did not remain idle but rather attempted to discover the serial number of the camera sold to Morrison. It is undisputed that he interviewed the owner of Imperial Jewelers in an unsuccessful attempt to gain this information. The manufacturer of the camera was also contacted, but to no avail. This was diligent police work. On the basis of the totality of these factors, we find that the manifest weight of the evidence does not support the contention that the plaintiff’s bad character is shown by his failure to record the camera’s serial number on Summerdale’s inventory sheet.

The appellants contend that the plaintiff’s bad character is also shown by his failure to place a mark on the camera. Rule 339 of the Chicago Police Department provides, in relevant part, that “all property coming into police hands which may be used as evidence in a criminal case shall be properly marked by the recovering officer . . . The term “recovering officer” is not defined in the rule. Obviously, the recovering officer could be the arresting officer. In the instant case, two arresting officers and three detectives accompanied Morrison, Bossuyt, and the evidence to the Summerdale Police Station. The record is silent as to who was the recovering officer. It is clear that no officer or detective marked the camera found in Morrison’s car, although this would have aided in the detection of any subsequent switching of the camera. Again, the appellants seem to contend that the plaintiff alone had the duty to mark this evidence. There were four other officers present, including two other detectives. The record is silent as to which of the detectives, if any, was the recovering officer and hence had the duty to mark the evidence. Neither of the other detectives, Kann nor Norcott was called as witnesses by the Police Department to explain who was the recovering officer on April 14, 1959. Officers Handley and Gilmartin, the arresting officers, also were not called as witnesses. If these men were unwilling to testify, the Commission could have used its subpoena power under HI Rev Stats (1965), c 24, § 10-1-18 to compel attendance. Apparently, all four officers are still on the police force. Kann has been promoted to sergeant. The police officer who did testify before the Commission, Sergeant McGill, offered no evidence on the point of who was the recovering officer on the night of Morrison’s arrest. He merely testified that no detective placed his private marking on the camera. The evidence in this record does not support the conclusion that the plaintiff was the recovering officer and hence he had the duty to mark the camera. Thus, this contention is without merit.

It is also urged that the plaintiff’s bad character was again shown when he removed the camera from the Custodian’s Office on May 27, 1959, and did not return it until June 2, 1959. It is undisputed in this record that the plaintiff went to court on May 27,1959, although on a medical leave of absence. He offered a reasonable explanation for the failure of the camera to reach the Custodian’s Office until June 2, 1959, which explanation stands uncontradicted in this record. It was his testimony that he either returned the camera himself on June 2 after returning from sick leave or the pickup wagon failed to obtain the camera from the Summer-dale Station on May 28, 1959, and this failure, coupled with the intervening Memorial Day weekend, resulted in the camera not reaching the Custodian’s Office until June 2, 1959. Furthermore, the switch in the camera had been discovered on May 7,1959, so that the plaintiff’s later actions would not be relevantly connected to the alleged earlier mishandling of this camera by police officers which enabled the switch to occur.

The appellants also contend that the plaintiff’s bad character is reflected by the fact that he removed the camera from the Custodian’s Office on May 27, 1959, in violation of Police Department Rule 338 since he was not the arresting officer. Rule 338 provides, in relevant part, that when property held as' evidence is needed in court, the arresting officer may obtain it from the Police Custodian upon leaving the proper receipt and when the evidence is not disposed of in court, the arresting officer shall return the evidence to the Police Custodian. It is undisputed in this record that the plaintiff removed the camera from the Custodian’s Office on May 27, 1959, although he was not the arresting officer. However, it is apparent from the record that the plaintiff did this because the arresting officers, Handley and Gilmartin, were not going to be present in court on that date for some undisclosed reason. The record reveals that the only parties present for the prosecution on May 27, 1959, were the complaining witness, Sakol, and the plaintiff. In light of this reasonable explanation for the plaintiff’s action on May 27, 1959, it cannot be said that his alleged bad character was shown by the fact that he checked out the camera on that date although he was not the arresting officer.

Also urged, as an example of the plaintiff’s alleged bad character, is the fact that he resigned from the Police Department while under investigation. It is implied that he resigned as an alternative to charges being placed against him. There is no evidence of this in the record, however. Sergeant McGill, the police department’s sole witness, offered no testimony in explanation of the plaintiff’s resignation. The documents offered into evidence are also silent as to this matter. Any witnesses or documents that the police department needed to prove its case against the plaintiff on this point could have been subpoenaed by the Commission pursuant to its power under Ill Rev Stats (1965), c 24, § 10-1-18.

On the other hand, the plaintiff offered a reasonable explanation for his resignation — unfavorable publicity affecting the police assigned to the Summerdale Station and their families — which stands uncontradicted in this record. It is undisputed that the plaintiff cooperated fully with the police officers investigating the Summer-dale scandal and that he was never suspended from the force nor were any criminal charges ever placed against him. His detective partner, Kann, now a sergeant, did receive a twenty-nine day suspension for his activities in the Morrison case. The plaintiff always denied being involved in any of the Summerdale wrongdoing and received his furlough before resigning, although the furloughs of other police officers from the Summerdale Station, who were later discharged from the force, were delayed. Since there is no evidence in this record to support the contention that the plaintiff resigned while under investigation so as to escape charges being placed against him, this contention is without merit.

Finally, the appellants urge that the plaintiff’s bad character is shown by the fact that the records of the Chicago Police Department indicate that he had received burglary proceeds and that he knew that his partner, Kann, was aware of police officers who were working with burglars. The basis of this contention is the letter sent to the Commission by the Director of Personnel of the Police Department containing the alleged conclusions of an unnamed polygraph operator that the plaintiff had lied in response to two questions asked of him during a lie detector examination. Since the letter was offered to prove the truth of the matters asserted therein but the unnamed polygraph operator, the out-of-court declarant, was not called upon to testify, this court is faced with a hearsay situation arising in an administrative agency proceeding. The Police Department never tendered the results of the lie detector test to the Commission as additional documentary evidence. Such action would have raised the issue of whether such results are competent evidence in an administrative agency proceeding to show the bad character of a police officer. In Seneca v. Board of Fire and Police Com’rs, 71 Ill App2d 219, 229, 217 NE2d 320, 325 (1966), it was held that even if such results were competent evidence before an administrative agency, it would still be necessary to prove the qualifications of the person who administered the polygraph test. Such a foundation was not presented in the case at bar. However, because of the way in which the evidence was presented in this case, we are not called upon to decide this issue. Only the hearsay point is before this court.

In Novicki v. Department of Finance, 373 Ill 342, 344, 26 NE2d 130, 131 (1940), a suit by the Department of Finance for the assessment of a deficiency tax under the Retailers’ Occupation Tax Act, it was held that hearsay is incompetent evidence in administrative agency proceedings. Involved in that case was a section of the Retailers’ Occupation Tax Act which provided: “In the conduct of any investigation, or hearing, neither the Department (of Finance) nor any officer or employee thereof shall be bound by the technical rules of evidence. . . .” In its decision that the Legislature by this section did not intend to abrogate the fundamental rules of evidence, the court held that the rule against hearsay is a basic and not a technical rule of evidence and is based on the necessity of an opportunity to cross-examine the out-of-court declarant. Fantozzi v. Board of Fire and Police Com’rs, 35 Ill App2d 248, 256, 182 NE2d 577, 580 (1962); affirmed, 27 Ill2d 357,189 NE2d 275 (1963), a proceeding before an administrative agency to discharge a police officer for “cause” also held that hearsay is incompetent evidence and is inadmissible before an administrative agency. It is apparent from the cited cases that hearsay is not competent evidence in administrative agency proceedings. The trial court apparently came to the same conclusion and remanded the cause to the Commission for the taking of additional evidence. The appellants urge that the plaintiff waived any error by his failure to object to the admission of this hearsay evidence. Such a contention overlooks the fact that the plaintiff was not represented by counsel at this first hearing before the Commission and, more importantly, did not know that the alleged conclusions of the unnamed polygraph operator were contained in a letter from the Director of Personnel of the Chicago Police Department meaning that such purported conclusions were hearsay evidence and inadmissible.

The cases relied upon by the appellants are distinguishable from the instant case. The evidence in People ex rel. Jones v. Civil Service Commission, 17 Ill App2d 36, 149 NE2d 487 (1958); in Nolting v. Civil Service Commission, 7 Ill App2d 147, 129 NE2d 236 (1955); and in DeGrazio v. Civil Service Commission, 31 Ill2d 482, 202 NE2d 522 (1964), was far more convincing than the evidence in the instant case. In Rose v. Civil Service Commission, 14 Ill App2d 337, 144 NE2d 768 (1957), the reviewing court held that a probationary patrolman was not statutorily entitled to a hearing before the Commission if, during his period of probation, he was discharged from the Police Department with the consent of the Commission after it had received in writing from the head of the department, the reasons for such a discharge. So too in the instant case, the plaintiff will become a probationary patrolman for a period of time not to exceed six months (Ill Rev Stats (1965), c 24, § 10-1-14), during which time he could be discharged, with the Commission’s consent, if the head of his department follows the procedure authorized in the Rose case. In Coursey v. Board of Fire and Police Com’rs of Skokie, 90 Ill App2d 31, 41, 234 NE 2d 339, 344 (1967), the court held that a chief of police has the inherent authority as well as the implied authority derived from a Police Department Rule in that case to order a patrolman, accused of wrongdoing, to submit to a polygraph examination in a case in which a citizen’s accusations were denied by the police officer. Since the patrolman disobeyed this order of his superior officer, it was held that the administrative agency was correct in discharging him for insubordination. The case at bar does not involve a refusal to take a polygraph examination but rather hearsay as related to the taking of such an examination.

The appellants briefly contend that the plaintiff, an applicant for appointment to the position of patrolman, is not entitled to the procedural safeguards of a patrolman enjoying Civil Service status guaranteed him by III Rev Stats (1965), c 24, § 10-1-18. Such a contention tends to overlook the fact that the plaintiff did voluntarily receive a hearing before the Commission and was given an opportunity to be heard in his own defense. Furthermore, the appellants do not dispute the fact that the plaintiff has properly invoked the Administrative Review Act. In light of these circumstances, we find no merit in this contention.

We have reviewed all questions of law and fact presented by the record before us. It is our opinion that the trial court was correct in holding that the order of the Commission was against the manifest weight of the evidence. The judgment is affirmed.

Judgment affirmed.

BURKE and McCORMICK, JJ., concur.