author: MR. JUSTICE STAMOS

text:
    Jerome B. Bluhm, Plaintiff-Appellant, v. City of Chicago, et al., Defendants-Appellees.
    Gen. No. 52,410.
    First District, Fourth Division.
    May 7, 1969.

      Cohon and Raizes, of Chicago (Jack A. Cohon and Maurice P. Raizes, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and RocLyne E. LaPorte, Assistant Corporation Counsel, of counsel), and Benjamin C. Duster, of Chicago, for appellees.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff, Jerome B. Bluhm, sought a declaratory judgment declaring the Chicago Zoning Ordinance as applied to the subject property to be void and unconstitutional. Plaintiff appeals from an adverse judgment entered by the trial court.

The property involved in this matter is a vacant parcel of land located on the south side of 90th Place between South Indiana Avenue and South Prairie Avenue, Chicago, Rlinois. It is triangular in shape; bound on the south by the Belt Railway railroad tracks. The size is approximately 132.96 feet along South Prairie Avenue, approximately 355 feet along 9th Place, and runs northwesterly approximately 378 feet 7% inches along the Belt Railway tracks and consists of approximately 24,000 square feet. The Belt Railway tracks are elevated approximately fifteen feet in the rear of the property. The railroad embankment runs diagonally through the neighborhood with the industrial uses being located in an almost continuous band parallel to the embankment.

The area directly north and east of the subject property is improved with single family residences, and zoned R-2. South of and on the other side of the railway embankment the area is zoned R-3 and R-2. Southeasterly of the subject property and adjoining the north railroad embankment there is a group of factories. These include a paint factory, a truck terminal for storage of vehicles, a stone yard and other small factories. Various industries are clustered to the northwest directly across the street (Indiana Avenue) from the subject property.

The subject property has been zoned for manufacturing since the first Chicago Zoning Ordinances in 1923 and in 1947 it was classified to the present Ml-1 zoning. Article 10, section 10-3 of the Chicago Zoning Ordinance, 1967, lists over twenty-six permitted uses in the Ml-1 classification, such as drugstores, food stores, medical-dental clinics, contractor or construction offices, shops and yards, greenhouses, private clubs or lodges, etc.

Plaintiff is a developer of real estate property who took title to the property from the Belt Railway Company on April 13, 1962. Plaintiff on February 14, 1962, appeared before the Committee on Zoning of the Chicago City Council and requested a change in zoning from Ml-1 to R-4, which relief was denied March 1, 1962, after a full hearing in which the intervening petitioners, being owners of the single-family residences in the area of the subject property, appeared.

Plaintiff proposed to build a three-story building containing six, two-bedroom units and twenty-one, one-bedroom units on the property. Plaintiff contends that the highest and best use of the land is for a multiple-dwelling unit under the R-4 classification rather than the present zoning classification which plaintiff charges is unconstitutional. The City of Chicago and intervening Petitioners contend that the ordinance takes into consideration the location of the property, its relationship to the other property in the area, the suitability of the property for the uses allowed, and that said classification is a reasonable, valid exercise of the governmental power of the city to provide for the public health, safety, comfort, morals and welfare of its citizens.

Plaintiff argues that the property has remained vacant, although efforts had been made to sell the property, but because of its present zoning classification the property is unsaleable. A witness from the Belt Railway testified on behalf of the plaintiff that the railroad embankment makes it difficult for the railroad to service the subject property; the railroad was unable to sell the property, because it was attempting to find a purchaser which it could track-serve. The railroad did not make any effort to sell but merely “put out word that it was available” for sale.

Plaintiff’s two expert witnesses testified that the highest and best use of the property would be the proposed R-4 use. Defendants’ expert witness testified that the highest and best use would be for single-family residences, and that the property could be used as it is zoned (Ml-1) and the present zoning would not have - a deleterious effect on the neighborhood, and that the ;f proposed R-4 use would have a definite detrimental; effect on the neighborhood. Eighteen witnesses testified Í on behalf of the intervening petitioners, Chatham Village Association, that as adjacent property owners they were opposed to the proposed R-4 zoning. These witnesses testified to the detrimental effects the proposed zoning would have upon the neighborhood: overcrowding of the schools and neighborhood, increased traffic and depreciation of property values. The president of the Chatham Village Association testified that presently the three public schools in the area were overcrowded and that one of the three was the most overcrowded in the city.

Plaintiff’s two expert witnesses testified that the value of the subject property as presently zoned was $12,500 and this was the price plaintiff paid for it. Plaintiff adduced evidence that an R-4 zoning classification would increase the value of the property to $25,000-$30,000 and would be the best and highest use of the land. Defendants’ expert testified the best use would be five or six single-family residences on the property, but that it could be used as zoned (Ml-1) and that the present zoning does not have a deleterious effect on the single-family homes directly across the street. On cross-examination defendants’ expert testified a multiple-family use of the property would impair surrounding property.

The case of Village of Glenview v. Van Dyke, 98 Ill App2d 118, 123, 240 NE2d 354 (1968) discusses the guidelines to be applied in the determination of the reasonableness of a zoning ordinance:

“The question of whether a zoning ordinance is arbitrary, unreasonable or capricious in its application to a given parcel of land, or whether it is reasonable and bears a substantial relation to the public welfare, is subject to review by the courts. Running through the multitude of zoning cases appearing in nearly every volume of the recent reports are general rules for deciding this question which are consistent in their restatement and unvarying in their application. Briefly, these rules are as follows: There is a presumption of validity in favor of a zoning ordinance adopted pursuant to a legislative grant; a person assailing such a validity has the burden of proving by clear and affirmative evidence that the ordinance is arbitrary, unreasonable or capricious, or bears no substantial relation to the public welfare; if it appears from all the facts that there is a difference of opinion concerning the reasonableness of the classification, the legislative judgment is conclusive; among the particular facts and circumstances to be taken into consideration in determining whether a zoning ordinance is so unreasonable and confiscatory as to constitute an unlawful invasion of private rights are the character of the neighborhood, the zoning classification and use of nearby properties; the extent to which property values are diminished by the particular zoning restriction involved, and the gain to the public compared to the hardship on the individual property owner.” (Citing cases.)

A zoning classification is presumed valid and the party challenging the validity of the zoning classification has the burden of proving by clear and affirmative evidence that the zoning classification is arbitrary or unreasonable. Hartung v. Village of Skokie, 22 Ill2d 485, 177 NE2d 328 (1962). The proof must establish that the zoning classification is arbitrary or unreasonable, not merely that the property could be reasonably zoned under a different classification, or that the court, if it sat as a zoning body, would classify it differently. Menolascino v. Village of Franklin Park, 106 Ill App2d 472, 246 NE2d 122.

In order to meet this burden of proof plaintiff argues that the present zoning classification is inconsistent with the uses and zoning of the surrounding property; the value of the subject property is diminished by the present zoning classification; the destruction of plaintiff’s property value does not promote the health, safety, morals or general welfare; there is no gain to the public as compared to the hardship imposed on the plaintiff; the highest and best use of the subject property is the apartment building which plaintiff proposes to construct; and the property has been vacant since prior to 1923 when it was first zoned for manufacturing.

The basic inquiry in cases involving assertions that a zoning classification is invalid as applied to the subject property is whether such property is zoned in conformity with surrounding and existing uses. American Oil Co. v. County of DuPage, 58 Ill App2d 48, 206 NE2d 510 (1965). A particular piece of property may acquire the characteristics of the surrounding property and thereby invalidate the zoning classification of the particular property. People ex rel. Chicago Title & Trust Co. v. Reiter, 25 Ill2d 41, 182 NE2d 680 (1962). Plaintiff argues that the subject property takes its characteristic from the residential properties surrounding the subject property. We do not agree. Nearly all of the property on the north side of the railroad embankment and forming an almost continuous band parallel to the embankment is zoned for manufacturing uses. The subject property acquires its characteristics from the railroad embankment rather than from the surrounding residential properties.

Plaintiff contends that the zoning classification is arbitrary and unreasonable in that the subject property would have a greater value if the zoning classification was different. The fact that plaintiff’s property would be worth more if it was classified as plaintiff contends it should be classified is true in nearly all cases in which a zoning classification is challenged. The mere fact that the property would have a greater value is insufficient in itself to invalidate an otherwise valid zoning classification. River Forest State Bank & Trust Co. v. Village of Maywood, 23 Ill2d 560, 179 NE2d 671 (1962); Reskin v. City of Northlake, 55 Ill App2d 184, 204 NE2d 600 (1965).

Plaintiff contends that unless a zoning classification promotes the general welfare, destruction of property values make such classification void. We agree. LaSalle Nat. Bank v. County of Cook, supra. Plaintiff, in his brief, continues his argument “in this case no evidence was introduced to show the existing zoning classification of Ml-1 promotes the general public welfare. . . .” The record reveals that little evidence was introduced to show that the zoning classification promotes the general welfare, but even if no evidence was introduced to show how the zoning classification promotes the general welfare this factor has no bearing on this appeal. A zoning classification is presumed valid, that is, it is presumed to be designed to promote the general welfare. Bullock v. City of Evanston, 5 Ill2d 22, 123 NE2d 840 (1954). The evidence which a party must produce to overcome the presumption of the validity of a zoning classification is set forth in McQuillin, Municipal Corporations, Vol 8A § 25.294, p 345:

“The evidence must relate the unreasonableness, discriminatory character, or other invalidity of the zoning ordinance to the complainant’s property; in other words, the proofs must establish that there is no basis in public welfare requiring the restriction and that there is a resulting loss to the property owner.”

Plaintiff has failed to overcome the presumption that the zoning classification is valid and designed to promote the general welfare. The mere fact that the highest and best use of the property may be different from that which it is presently classified combined with the fact that the property would have a greater value if it was classified differently is not sufficient to invalidate a zoning classification. Kellett v. County of DuPage, 89 Ill App2d 437, 231 NE2d 706 (1967). When plaintiff purchased the property it was classified Ml-1 and it is reasonable to presume that the price that plaintiff paid for the subject property was commensurate with the zoning classification. Since the property was purchased in light of the preexisting zoning classification, it cannot be said that the zoning classification diminished the value of the subject property. American Nat. Bank & Trust Co. v. City of Chicago, 30 Ill2d 251, 195 NE2d 627 (1964).

Nearly all of plaintiff’s arguments are concerned with the economics of the subject property. When the plaintiff purchased the property it was classified Ml-1 and therefore the plaintiff must be charged with knowledge of the zoning classification. Gammon Co. v. Standard Trust & Savings Bank, 327 Ill 489, 158 NE 810 (1927). While a party who purchases property in the face of the existing zoning classification is not precluded from challenging the validity of the zoning classification, his purchase in the face of the existing zoning classification is one factor to be considered. American Nat. Bank & Trust Co. v. City of Chicago, supra.

Plaintiff argues that the property is unsaleable as it is presently classified and that the property has remained vacant since prior to the first Chicago Zoning Ordinance in 1923. The fact that land has remained vacant is a factor to be considered in determining the validity of a zoning classification. Miller Lumber Co. v. City of Chicago, 414 Ill 162, Ill NE2d 149 (1953). However, plaintiff has failed to prove that the property is unsaleable or has remained vacant because of the present zoning classification. Plaintiff testified that he attempted to sell the property, but no evidence of what efforts were employed to accomplish a sale was introduced. Plaintiff testified as to negotiations with Can-field Beverage Company; his testimony reveals that the land was not sold because this property was too small for Canfield’s purposes. The land was indeed vacant since 1923, but there was no showing in the trial court that the property remained vacant because of the zoning classification. Testimony of plaintiff’s witness from the railroad, plaintiff’s predecessor in title, is of little benefit to the plaintiff. The witness from the railroad did not testify as to any concerted endeavor on the part of the railroad to develop or sell the subject property. He further related that the railroad did not advertise the property was for sale but rather merely “put the word out that it was available.” The only effort the railroad made to develop or sell the subject property was to find someone that they could track-serve.

The trial court found that the zoning classification bears a reasonable relationship to the public health, safety, comfort, morals and welfare, and that the ordinance is constitutional in its application to plaintiff’s property. Upon examination of the record we are satisfied that this finding is supported by the evidence. The judgment is affirmed.

Judgment affirmed.

DRUCKER, P. J. and McNAMARA, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DRUCKER

license: Public Domain

text:
    Andrew J. Dupay, Plaintiff-Appellee, v. The New York Central Railroad Company, a Corporation, Defendant-Appellant.
    Gen. No. 52,655.
    First District, Fourth Division.
    May 7, 1969.

      Richard O. Olson, Alvin E. Domash, and James L. Daubach, of Chicago, for appellant.
    James E. Harrington and John J. Naughton, of Chicago (Henslee, Monek & Henslee, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

The New York Central Railroad appeals from a judgment of $85,000 after a jury trial on plaintiff’s claim for personal injuries under Title 45 USCA §§ 51-60, the Federal Employers’ Liability Act. Plaintiff sued for injuries sustained while in defendant’s Ashtabula, Ohio, Railroad Yard.

Defendant urges the following contentions in its appeal from the judgment: (1) the trial judge should not have instructed the jury that the plaintiff was in the course of his employment when the accident occurred because there was evidence in the record that plaintiff was intoxicated at the time; (2) evidence of plaintiff’s past reputation for sobriety should have been excluded; (3) plaintiff’s attorney improperly badgered, embarrassed and harassed defendant’s witness Dr. McCarthy; (4) the plaintiff’s attorney improperly commented upon the financial condition of defendant in his closing argument; and (5) the trial court committed numerous other errors that cumulated to deprive defendant of a fair trial. Defendant raises no question as to the amount of, the judgment.

EVIDENCE

Testimony of Andrew J. Dupay, plaintiff:

He is 62 years old. Prior to the injury he was a yard brakeman (switching cars) for The New York Central Railroad Company (defendant), working in Ashtabula, Ohio. He started working with defendant in 1924 and received no training then. His duties as brakeman consisted of working with a crew cutting cars, throwing switches, classifying cars and diverting them to different tracks.

On May 3, 1961, he reported for duty at 2:45 for the 3:00 to 11:00 shift. His job that day was a highball assignment. He would have to climb a tower 20 to 22 feet off the ground and pass signals to the engineer as the crew passed the signals to him. He reported for duty by making out a time slip and then left the office and walked toward the highball stand which is south of the office. When he reached the top of the stand there were three or four cars yet to go past the switch, and Mr. Massey, who was working the left side, gave a swing down. The cars cleared Massey and stopped; Massey then gave a back away and the cars started moving toward the plaintiff.

As the cars were moving he developed a cramp. He then came down from the tower slowly. He could see that the train was operating in a straight line so he started toward the yard office to pick up his finger mitt which he had left there. He had not intended to take any particular path to the yard office; there are many paths that can be used. He works in that area every day, and it is customary to come off the stand after signalling. As he crossed over to go north his legs gave out all of a sudden and he pitched forward toward the cars. He grabbed the sill steps of two different cars, and was dragged until he lost consciousness. His legs gave way because he stepped on some debris, pellet ore, fusee butts, limestone and other objects.

Pellet ore falls off cars in the yard. It comes in round pieces, like marbles, an inch or two inches in diameter. Fusee butts accumulate along the tracks when they are discarded after being used for signalling. The debris was there for a year or more before the accident. He had complained about it to the yardmaster and maintenance section foreman, probably two or three times in the six months prior to the accident. There were no changes in the area after the complaints.

When he regained consciousness he was in the Ashtabula General Hospital. He had been taken to the hospital by ambulance after the accident (which happened at 3:30 or 3:45). He was admitted and placed under the care of Dr. McCarthy.

When he arrived at the hospital he was sick from loss of blood and he had swallowed his snuff; he was chewing snuff at the time of the accident. He vomited in the emergency room of the hospital. The snuff was flavored with sherry and may have given off an alcoholic odor.

Testimony of Joseph R Garvey, called by plaintiff as an adverse witness under section 60 of the Civil Practice Act, Ill Rev Stats 1967, c 110:

He is assistant general yardmaster, west yard tower. On May 3,1961, he was general yardmaster at Ashtabula, in charge of all yards. He was working in his office in the east end of the west yard when he was informed by telephone of plaintiff’s accident. Plaintiff did not appear to be drunk; he did not observe any evidence of drinking on plaintiff’s part. Plaintiff was quite a drinker when he first came to the railroad but he does not know of plaintiff having taken a drink in the past ten years. He did not observe any evidence of alcohol on plaintiff’s breath in the emergency room.

The distance from the highball stand to the yard office is about 300 feet. There is no pathway between the two points. He does not recall finding any pellet ore in his examination of the area. He did not examine the highball stand at the time of the accident. He would expect to find some fusees under the highball stand. The fusees in the area of the tower are thrown to the ground by the highball man; he uses them to pass signals to crews switching from north to south.

There is an occasional maintenance program if there is an accumulation of fusees on the spot. Normally they are used all over the railroad and are discarded on the ground where they become part of the ground. He does not know what the maintenance program was on the day of the accident; he had just passed complaints along to the supervisor of track to take care of. There was a maintenance crew of a foreman and four men to take care of 40 miles of track. It was his obligation to see that conditions on the track were corrected. He did not receive any complaints about the track in the area of the accident in the year before it happened.

It was the custom and practice for signal men returning to the yard office to either walk or ride the engine; it was divided about half and half.

Prior to May 3, 1961, he saw crews cleaning up the yard from time to time. They would take a handcar along the leads and clean up debris, or they would take one operating track and just go up the track and clean it. He inspected the yards personally prior to May 3, 1961. He would go to various places during the course of his everyday duties; if there was a bad condition, he would make a specific note and have it taken care of. He also makes a specific inspection tour every week.

Testimony of Donald Corlett, called by plaintiff:

He has been employed by defendant for 29 years. On May 3, 1961, he was working as yard conductor in the Harbor Yards on the second shift. When he reported for work that day, plaintiff was sitting outside the shanty. Plaintiff seemed normal. He did not observe any alcoholic beverages on plaintiff’s breath. He was no more than three feet from plaintiff when they spoke.

There were a lot of fusee butts lying around where plaintiff was injured; there was also quite a lot of limestone lying around. The debris extended clear down to the yard office. That is representative of the ground conditions on May 3, 1961. There was pellet ore on the ground on the day of the accident.

He has occasionally worked as highball man and he has fallen a couple of times. He had made at least a half dozen complaints to the yardmaster about the debris prior to May 3, 1961; this was over a year and a half period. He noticed no change in the condition of the ground after those complaints. He cannot remember any major cleanup in the area of the highball stand and yard office prior to May 3,1961.

He has never known plaintiff to take a drink for the last 20 or 25 years. He does not believe that plaintiff would work with someone “who had alcoholic beverages on his breath.”

It is normal custom and practice for highball men to go back to the yard office when there is nothing to do. Sometimes they would ride the engine back. If they walked they would walk north or northeast.

Testimony of John D. Riddell, called by plaintiff:

He is now a security agent for Motor Fiber Company, but he was employed by defendant for 40 years. On May 3, 1961, he worked for defendant as a yardmaster on the 2:00 to 10:00 shift. He had two crews and a highball man working under him. The highball man was the plaintiff and he had been working at that job for a couple of months or more.

He was present when plaintiff reported for work and he observed plaintiff from approximately three feet. He thought plaintiff was normal. He was not close enough to smell plaintiff’s breath but he did see plaintiff go about performing his duties.

He had worked in the yard a long time and was familiar with ground conditions and the area of the highball stand on May 3, 1961. There was stone, ore and fusee butts lying around the ground. He had received complaints about the ground conditions from employees prior to May 3, 1961. Some of these complaints were shortly before the accident. He would pass these complaints on to the general yardmaster. He did not notice any change in ground conditions. There was no specific maintenance program.

Testimony of Dr. William J. McCarthy, called by defendant :

He is an M.D. and was the doctor who first saw plaintiff in the emergency room of Ashtabula General Hospital. He was not then and never had been an employee of defendant.

An initial survey of plaintiff revealed a long laceration of the left groin; there was considerable venous bleeding. It did not appear that the bleeding was femoral or arterial. He then evaluated the plaintiff. He called the police to take a balloon test of plaintiff because of plaintiff’s demeanor but he refused to take the test.

He thought plaintiff was intoxicated because of the way in which plaintiff acted; he wanted to be left alone; he had a foul odor on his breath; his eyes revealed a small pupil which reacted to light and accommodation; and he wanted to turn on his side and go to sleep.

There were X rays taken of the skull which revealed a possible fracture of the skull. The patient was in shock when he was admitted to the hospital but the doctor did not mistake shock symptoms for those of intoxication. There was a foul odor on plaintiff’s breath that was not halitosis. He could not identify the odor as to beer, wine or whiskey; and he did know that plaintiff chewed snuff.

OPINION

Under the Federal Employers’ Liability Act (Title 45 USCA § 51) every common carrier by railroad while engaging in interstate commerce “shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce.” Defendant first argues that plaintiff was not in the course of his employment when injured and that the trial judge improperly instructed the jury that “[a]t the time of this occurrence the Plaintiff was in the course of his employment.” It is not disputed that plaintiff had performed the tasks required of him including walking to the highball stand, climbing the 20 feet to the top of the stand, passing signals to the switching crew, climbing down the 20 feet, and that he was properly, in accordance with custom and practice, returning to the yard office. The entire thrust of defendant’s argument is that plaintiff was drunk and therefore was not within the scope of his employment at the time of the accident. Defendant argues that the alleged drunkenness at least creates a jury question as to whether plaintiff was within the scope and course of his employment.

The defendant offers no citation in support of this novel proposition, and we hold that the judge properly instructed the jury that plaintiff was in the course of his employment. The Federal Employers’ Liability Act allows reduction of damages through proof of contributory negligence on the part of the employee. Certainly intoxication would bear on any issue of contributory negligence and thus affect the amount of damages, and defendant could have elected to pursue that course; however, defendant chose to seek a complete defense to the action and in its reply brief specifically waived the issue of contributory negligence. We find no error in the giving of the instruction to the jury.

Since we have decided that plaintiff’s alleged intoxication has no bearing on whether he was in the course of his employment, and since defendant has waived any contributory negligence which might have reduced damages, there is no issue upon which the evidence of intoxication or sobriety can any longer be relevant; thus we will not consider any contentions on appeal concerning such evidence.

Defendant next argues that the trial judge improperly overruled defendant’s objection to a statement in the closing argument of plaintiff’s counsel to the effect that defendant corporation “can afford and does afford very capable attorneys . . . .” It is well established that counsel should refrain from comment on the financial circumstances of the parties to any litigation and certainly should not emphasize the wealth of any litigant even though that wealth is common knowledge. Wellner v. New York Life Ins. Co., 331 Ill App 360, 366, 73 NE2d 156; Chicago Traction Union v. Lauth, 216 Ill 176, 74 NE 738; Panelle v. Chicago Transit Authority, 31 Ill2d 560, 202 NE2d 484. However, the comment complained of in the instant case is only a very brief allusion to the wealth of the defendant, and one of defendant’s own witnesses, Dr. McCarthy, also mentioned defendant’s large size. We cannot find that defendant was prejudiced by the improper comment.

Defendant has cited Wellner v. New York Life Ins. Co., supra, to support his contention that the comment alluding to defendant’s wealth requires a new trial. However, close examination of Wellner reveals that the case was remanded on other grounds and that the discussion of closing argument was for the guidance of the judge who would conduct the new trial.

Finally defendant argues that the trial court committed numerous other errors which cumulate to deprive defendant of its right to a fair trial. Defendant alleges nine such errors. Having examined the nine instances of alleged error we find that we cannot consider three of them due to the failure of defense counsel to object at trial. In the six remaining instances we find no prejudicial errors, individually or cumulatively.

Defendant’s sole witness, Dr. McCarthy, was questioned only about the physical condition of plaintiff; there was no testimony by defendant to rebut plaintiff’s evidence as to the debris in the yard and no issue is raised as to the amount of the judgment. We believe defendant had a fair trial.

The judgment of the Circuit Court is affirmed.

Affirmed.

McNAMARA and STAMOS, JJ., concur.


text:
    Sarah Penn Winkfield, Plaintiff-Appellee, v. American Continental Insurance Company, Defendant-Appellant.
    Gen. No. 52,869.
    First District, Fourth Division.
    May 7, 1969.
    Edward A. Berman and Francis J. Valentine, of Chicago, for appellant.
    Fischer, Guy, Jacobson & Pauker, of Chicago (Charles V. Hogren, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from a $2,400 judgment, after a bench trial, in favor of plaintiff, the beneficiary of life insurance and accident insurance policies. Each policy was for $1,000 and the court added $300 for attorneys’ fees for unreasonable refusal to pay and $100 for interest. Defendant raises two points on appeal: (1) the failure of plaintiff to comply with the terms and conditions of each of the two insurance policies precludes recovery at this late date; and (2) the trial court erred in assessing attorneys’ fees against defendant for its refusal to pay plaintiff.

EVIDENCE

On November 2, 1961, Clarence Penn, husband of the plaintiff, disappeared while on a hunting trip near Rockford, Illinois. On November 9, 1961, attorney Clinton O. Sims, a friend of plaintiff, wrote a letter to defendant in the following language:

Please be advised that your insured Clarence Penn of 6920 South Harvard was lost in the Pecatonica River on or about the 2nd day of November, 1961, at about 3:52 a. m. Mr. Penn fell in the river while traversing its banks with three companions who witnessed his death. To date his body has not been recovered.
You will note that we are enclosing the premiums for payment of the insurance policies.
It is suggested that this office be contacted as to your requirements for payment under the policies for the benefits. Please let me hear from you regarding this matter at your earliest convenience.

On January 2, 1962, defendant sent Sims claim and proof of loss (death) forms as prescribed by the two policies covering the decedent. Plaintiff testified that pursuant to Mr. Sims’ advice she sent the sheriff’s statement to defendant. She sent it with a short letter on November 3 or 4, 1961, by registered mail. She also testified that she did not give Sims permission to write to the defendant nor did she give him any money to pay premiums. Some time later Sims called her and told her that he had a statement of claim; and she went over and picked it up. It was a blank from defendant to be filled out by her. About eight months or a year later she saw Attorney Altieri and gave him the forms but he told her that there was nothing he could do. Robert Johns, secretary-treasurer of defendant, testified that the letter from Sims dated November 9, 1961, was acknowledged by defendant on January 2,1962; that no other communication was had with plaintiff until June 14, 1963, when Attorney Campbell contacted the defendant and detailed some of the facts of decedent’s death. A subsequent letter dated September 19, 1963, from Campbell was received by defendant. It enclosed a newspaper story of the accident and a photocopy of a report by Deputy White to the Sheriff of Winnebago County. The report described the drowning and fixed the place as “near Trask Bridge.” Attached to it were the statements of three witnesses. There was no explanation of the delay in making the claim nor any reference to any prior notice. The secretary-treasurer of defendant further testified that a determination was made two years after the date of death that defendant would not pay the claim.

OPINION

Defendant first argues that plaintiff’s failure to comply with the terms and conditions of each of the insurance policies precludes recovery at the present time. There are two policies involved in this case, an accident policy and a life policy; we shall consider the questions raised by each separately.

(1) The Accident Policy. The relevant provisions of the accident policy are as follows:

NOTICE OF CLAIM: Written notice of claim must be given to the Company within twenty days after the occurrence or commencement of any loss covered by the policy, or as soon thereafter as is reasonably possible. Notice given by or on behalf of the Insured or the beneficiary to the Company at its General Office in Chicago, Illinois, or to any authorized agent of the Company, with information sufficient to identify the Insured, shall be deemed notice to the Company.

CLAIM FORMS: The Company, upon receipt of a notice of claim, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not furnished within fifteen days after giving of such notice the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting, within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, the character and the extent of the loss for which claim is made.

PROOFS OF LOSS: Written proof of loss must be furnished to the Company at its said office in case of claim for loss for which this policy provides any periodic payment contingent upon continuing loss within ninety days after the termination of the period for which the Company is liable and in case of claim for any other loss within ninety days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event, except in the absence of legal capacity, later than one year from the time proof is otherwise required. Since the defendant did not provide proof of loss forms within fifteen days after it received notice of loss, it was only necessary that plaintiff file within ninety days “written proof covering the occurrence, the character and the extent of the loss for which the claim is made.” According to the policy this proof could be made within a year “if it was not reasonably possible” to give it within ninety days. Plaintiff claims that her testimony that she mailed the sheriff’s report shortly after her husband’s death satisfies the requirements of the policy.

It is generally established that the mailing of a properly stamped and properly addressed letter raises a presumption that the letter was received by the addressee. If the addressee denies the receipt of the letter then the presumption is rebutted and receipt becomes a question to be resolved by the trier of fact. Wigmore on Evidence, 3rd ed, Vol IX, § 2519; Keogh v. Peck, 316 Ill 318, 323, 147 NE 266; Alger v. Community Amusements Corp., 320 Ill App 184, 190, 50 NE2d 594; Talmage v. Union Central Life Ins. Co., 315 Ill App 623, 639, 43 NE2d 575. In the instant case there is testimony of the plaintiff that she mailed a letter containing the sheriff’s report and there is evidence that the letter was not received by defendant. However, there is a question of whether there was sufficient proof of mailing to raise a presumption of receipt.

Plaintiff testified only that she sent a letter with a copy of the sheriff’s statement to the defendant by registered mail. She did not describe the contents of the letter or of the sheriff’s statement. She is not sure of the date on which it was mailed; she did not testify that the letter was properly stamped nor that it was properly addressed. Further, no receipt for the registry of the letter was introduced into evidence. We hold that there was not sufficient proof of mailing to raise the presumption of receipt by the defendant.

It is also argued that since plaintiff did not have to file the proof of loss forms provided by defendant, the letter from Sims was a sufficient written statement covering the occurrence to fulfill the insurance policy requirements. In Zorger v. Prudential Ins. Co. of America, 282 Ill App 444, the court quoted the following from Jarvis v. Northwestern Mut. Relief Ass’n, 102 Wis 546:

The term “due proof” did not require any particular form of proof which the assurer might arbitrarily demand, but such a statement of facts, reasonably verified, as, if established in court, would prima facie require payment of the claim.

Since the Sims letter did not describe the precise location of the occurrence nor give the names or statements of the three witnesses, we must find that the letter did not comply with the standard set out in Zorger nor did it satisfy the proof of loss requirements of the policy, e. g., “written proof covering the occurrence.” The proof of loss in the letters of Attorney Campbell were filed seven months after the expiration of the one year limitation of the accident policy. We cannot find that plaintiff proved compliance with the terms of the accident policy.

(2) The Life Policy. The relevant provision of the life policy is contained in the preamble of that document:

[The Company] AGREES TO PAY to the Beneficiary at the Home Office of the Company in Chicago, Illinois, the Amount of Insurance Specified in the Schedule of Contract Information, immediately upon receipt on the Company’s prescribed forms of due proof of the death of the Insured during the continuance of this contract, before the Maturity date, and while no premium is in default.

The sole question concerning the life policy is whether the required forms of due proof of death of the insured were filed with the defendant. In order to recover under this policy the claimant must file with the defendant the defendant’s “prescribed forms of due proof of the death of the Insured during the continuance of this contract . . . and while no premium is in default.” It is admitted in the instant case that the plaintiff obtained the necessary forms from Sims to whom they had been forwarded by the defendant. There is, however, no evidence that plaintiff returned the completed forms to the defendant. Plaintiff claims, however, that “due proof” did not require any particular form of proof (Zorger v. Prudential Ins. Co. of America, 282 Ill App 444) and that proof was made either by plaintiff’s mailing of the sheriff’s statement or by Sims’ letter. We have held that Sims’ letter was insufficient to satisfy proof of loss requirements and that the testimony of plaintiff was insufficient to establish proof of mailing. There was no evidence that the life policy was in effect in June of 1963 when the sheriff’s report was received by the defendant. Therefore plaintiff cannot recover under this policy.

Defendant’s final contention on appeal is that the trial court erred in assessing attorneys’ fees against it for its refusal to pay plaintiff. Since we have ruled that defendant is not liable to plaintiff under the two insurance policies in question we do not pass upon this point.

The judgment of the Circuit Court is reversed.

Reversed.

McNAMARA and STAMOS, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Joshua Barksdale, Defendant-Appellee.
    Gen. No. 53,495.
    First District, Fourth Division.
    May 7, 1969.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, and James B. Zagel, Assistant State’s Attorney, for appellant.
    No brief for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

This is an interlocutory appeal by the State from an order of the circuit court of Cook County dismissing the indictment against the defendant for want of prosecution. Concurrent with its appeal to this court from that order, the State also filed a mandamus petition in the Supreme Court. That petition was denied. People ex rel. Stamos v. McMillen, Gen No. 41,535, — NE2d — (1968).

On December 6, 1963, defendant was indicted for the offense of arson. On December 13, 1963, counsel was appointed for defendant and requested that defendant be examined by the court behavior clinic. After several continuances allowed on defendant’s motion, on January 30, 1964, a jury returned a verdict that defendant was presently incompetent to stand trial. Defendant was ordered committed to the Illinois Security Hospital until he became competent, and the pending criminal charge was stricken with leave to reinstate. On July 30, 1966, defendant was transferred to the Manteno State Hospital, and on November 18, 1966, he received an absolute discharge from that institution.

On December 8, 1966, the arson charge was reinstated and the State requested a re-examination of defendant by the behavior clinic. After several continuances granted by agreement or on motion of defendant, another competency hearing was requested by defense counsel, and on March 16, 1967, a jury found the defendant competent to stand trial. The cause was redocketed, defendant was arraigned, bond was set, defendant demanded an immediate trial and the cause was continued until April 11. On that date defendant requested and received a substitution of judges, and the case was continued by agreement to April 20. On that date the cause was continued on the State’s motion until April 27. Thereafter it was continued by agreement and on motion of defendant to May 25, on which date the court denied defendant’s motion for a discharge under the so-called Four Term Act. (Ill Rev Stats 1963, c 38, § 103-5.) The cause was continued after that several times on defendant’s motion and once by agreement to August 23. On that date defense counsel requested re-examination of defendant by the behavior clinic, and thereafter the cause was continued several times on motion of defendant until December 21. Defendant requested and received another competency hearing and on December 22, a jury again found the defendant competent to stand trial, and the cause was continued by agreement to February 23, 1968. On that date, although the State announced ready for trial with its witnesses present in court, the cause was continued to June 10, then to June 12 and finally to June 14, all at defendant’s request. On June 14 the State requested a continuance in order to file an amended list of witnesses and over the State’s objection, the trial court granted defendant’s motion for a dismissal for want of prosecution after suggesting that defendant make such a motion. On July 2,1968, the trial court denied the State’s motion to vacate the order of dismissal, and this appeal follows.

The trial court has power to dismiss an indictment prior to trial only for the grounds set forth in section 114-1 of the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, § 114-1). People v. Shick, 101 Ill App 2d 377, 243 NE2d 285 (1968).

The only ground set forth in that section upon which the trial court could have predicated its order dismissing the indictment in this case was that defendant had not been placed on trial in compliance with section 103-5 (a) of the Code which provides as follows:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.”

While each accused is guaranteed the right to receive a speedy trial, continuances granted at the request of the accused, including those made on his behalf to determine his competency operate to toll the running of the 120-day-statute. People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, affirmed 34 Ill2d 179, 214 NE2d 765 (1966); People v. Jenkins, 101 Ill App 2d 414, 243 NE2d 259 (1968).

The record reveals that defendant’s right to a speedy trial has not been violated. Prior to his commitment to the hospital all continuances had been granted at the request of defendant. Subsequent to his release from the hospital the operation of the statute was interrupted by repeated continuances entered by agreement or on motion of defendant and by two additional competency hearings, both requested by defendant. In seeking only its second continuance in the entire proceedings, it is evident that the State was not trying to deny defendant his right to a speedy trial.

We find that the trial court erred in dismissing the indictment. The order of the trial court is reversed; the indictment is ordered to be reinstated; and the cause is remanded for further proceedings pursuant to law.

Order reversed and cause remanded with directions.

DRUCKER, P. J. and ENGLISH, J., concur.


author: PRESIDING JUSTICE SULLIVAN.

text:
    Agatha Nugent, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 52,709. (Abstract of Decision.)
    First District, Third Division.
    May 8, 1969.
    Thomas William Burke, of Chicago, for appellant;
    Raymond P. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Stuart Sikevitz, Assistant Corporation Counsel, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE SULLIVAN.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Quillie Horne, Defendant-Appellant.
    Gen. No. 52,918.
    First District, Third Division.
    May 8, 1969.

      Cecil A. Partee, of Chicago (William H. Hall, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Howard Levine and James Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a jury trial the defendant was found guilty of attempt to commit murder, aggravated battery and robbery. He was sentenced to serve concurrent terms in the penitentiary of thirteen to eighteen years for attempt to commit murder, five to eight years for aggravated battery and thirteen to eighteen years for robbery. He makes the following points on appeal: (1) that the manner of identification was improper and invalid, (2) that inflammatory evidence was introduced which was both immaterial and without proper foundation, (3) that the court erred in admitting rebuttal testimony of a witness who remained in the courtroom while defense witnesses were testifying, despite an order excluding witnesses, (4) that the indictment did not aver an essential element of the offense of attempt, to wit: an act constituting a substantial step toward commission of the offense, and (5) that concurrent sentences for attempt to commit murder and aggravated battery were improper. The facts follow.

Shortly after midnight on August 1,1965, the complaining witness left her job in the Loop (the central business district of Chicago) and went to a restaurant with a fellow employee. An hour later she entered the Dearborn Street Subway at Monroe Street. Shortly after she reached the platform a train pulled in and every one on the platform except herself and one man boarded it. The man approached her, slapped her face, demanded money and threatened to kill her if she did not comply. After she gave him her purse, she heard another train coming and tried to escape, but her assailant shoved her down on a bench. She did not remember anything that happened after that until she awoke in a hospital bed the following morning.

Eugene McFerren testified that he was a policeman and that in response to a radio call, he went to the Monroe Street Subway platform at about 2:00 a. m. on the day in question. When he arrived, he found the victim on a bench and described her condition as follows:

“She had a badly swollen right eye, her right jaw was swollen, she was bleeding from the nose and mouth, there was blood on her leg, her right blouse was torn, her breast was partially exposed. . . . There was clothing on the platform floor. . . . Female undergarments: a blouse, a brassiere, I should say, and panties, slip, a half slip.”

Dr. Walter Daltsch, the treating physician at Cook County Hospital, examined the victim and found her to be in a condition of “semi-shock.” He testified that he observed considerable swelling, bruising and bleeding on the nose and mouth, lacerations and tears of the lips and floor of the mouth, loss of teeth and bone in the lower jaw and some bruising of the neck. The nipple of one of her breasts had been bitten and was hanging by a shred of tissue. There were bruises and lacerations around the vagina and the posterior wall of the vagina. He also testified that X rays revealed other serious injuries.

Later the same morning investigating officers discovered defendant’s wallet in the same subway station wedged between a soft drink machine and a pillar. It contained a ten-year-old identification card with defendant’s picture. The photograph was shown to the victim in the hospital and she identified it as that of her assailant. The police subsequently located and arrested defendant. He was taken to the victim’s hospital room where she identified him.

Defendant testified that he had been involved in a daylong drinking bout with friends and relatives. Several of them corroborated that part of his story, but they also testified that they last saw him at the Douglas Park Elevated Station at about 8:00 p. m., or five hours prior to the crime. Defendant further testified that he boarded an elevated train and rode and slept on trains until 2:00 a. m. He admitted that the wallet found on the subway platform was his. He explained that he had fallen asleep in the Jackson Street Subway Station and that when he awoke the wallet was missing. Officer Henry Kaminski testified in rebuttal that defendant told him he did not discover that his wallet was missing until he was on the Logan Square Elevated.

With respect to point (1), defendant contends that at the time the victim first identified him, she was in a state of shock and that the procedure of bringing him alone to her hospital room was suggestive. He further contends that her in-court identification was made nine months after the crime and was therefore unreliable.

There is no inflexible requirement that an identification to be admissible must be made out of an arranged lineup, although that is the preferred method when it is practical. People v. Boney, 28 Ill2d 505, 192 NE2d 920; People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599. The means of identification is relevant in that it bears on the weight to be given such evidence. People v. Boney, supra; People v. Mikka, 7 Ill2d 454, 131 NE2d 79.

The validity of the type of hospital room identification used in the instant case was upheld in Stovall v. Denno, 388 US 293 (1966) and People v. Speck, 41 Ill2d 177, 242 NE2d 208. In Stovall the court said (p 302):

“Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police station lineup, which Stovall now argues he should have had, was out of the question.”

The court concluded that the fairness of an identification in such cases depends on the totality of the circumstances surrounding it.

The victim in the instant case spent two weeks in the hospital recovering from her injuries and was in no condition to attend a lineup. She had ample opportunity to observe her attacker in the well-lighted subway station and she was positive in her identification, both in the hospital and at the trial. She testified on cross-examination that she was sure it was the defendant “because I couldn’t forget it. It’s just something that sticks. I don’t know, it’s something about the face that, as soon as you see it, you know right away.” It undoubtedly was a terrifying and vivid experience for the victim and the jury could well believe her testimony that she could not forget the face of the man who attacked her. The totality of the circumstances surrounding the identification was adequate to establish the identity of the assailant beyond a reasonable doubt.

Defendant’s second point is that the court erred in admitting into evidence five female undergarments. The State introduced them after Police Officer McFerren testified that they were on the subway platform near where he found the victim. Defendant contends that this evidence was not relevant to the case and served only to inflame the minds of the jury.

Evidence which has a tendency to establish facts in controversy should be admitted and truly competent evidence should not be excluded merely because it might arouse feelings of horror or indignation. People v. Jenko, 410 Ill 478, 102 NE2d 783; People v. Conway, 85 Ill App 2d 165, 228 NE2d 548. The question for determination is whether the evidence was relevant.

Defendant contends that the evidence was probative only of issues relevant to sex crimes and that a sex offense was not charged in the instant case. A recent Illinois Supreme Court case is dispositive of that contention. In People v. Bey, 42 Ill2d 139, 246 NE2d 287 (1969), the defendant was charged with burglary and the State introduced evidence that he also sexually attacked the burglary victim. The court held that this evidence was inextricably interwoven with the burglary charge and therefore admissible. In the instant case the torn underclothing found beside the victim was likewise inextricably interwoven with charges against defendant. The evidence was probative of the nature of the attack made on the victim and consequently was relevant to the issues in the case.

Defendant also contends that the undergarments were improperly admitted in evidence because the victim never identified them as belonging to her. Police Officer Mc-Ferrin’s testimony was that he found the undergarments on the subway platform near the half-naked victim. The logical inference to be drawn is that they belonged to her. Any question with respect thereto was properly one for the jury to consider.

Defendant’s third point is that the court erred in admitting rebuttal testimony of a witness who after testifying remained in the courtroom during part of the trial despite an order excluding witnesses. The opinion of this court in Bumblauskas v. South Suburban Safeway Lines, Inc., 110 Ill App2d 52, — NE2d —, filed April 24, 1969, reviews the law with respect to the exclusionary rule and the discretion of the court with regard to its enforcement. It is not uncommon for witnesses to stay in the courtroom unless one party or the other objects. It is inconvenient to let them leave and then require their return. The law is well settled that after the trial court has granted an order excluding witnesses, it is within the sound discretion of the court to permit a witness to testify in rebuttal, even though that witness was present in the courtroom. People v. Miller, 30 Ill2d 110, 195 NE 2d 694; People v. Chennault, 24 Ill2d 185, 181 NE2d 74; People v. Snell, 74 Ill App2d 12, 219 NE2d 554. In the instant case defense counsel informed the jury in his opening statement that defendant’s testimony at the trial would be the same story he told the police when he was arrested. In view of that statement, the State properly assumed there would be no occasion to call the arresting officer to the stand again. Defendant however did not tell the same story on the witness stand and the State called the arresting officer to testify in rebuttal. The court allowed him to testify, but confined his testimony to the rebuttal of such statements made to him by defendant which varied from defendant’s testimony. The court did not abuse its discretion in allowing the officer to so testify.

Defendant’s fourth point is that the indictment failed to allege an essential element of the crime of attempt. The Criminal Code provides that one of the essential elements of attempt is that the accused perform an “act which constitutes a substantial step toward the commission” of the attempted offense. Ill Rev Stats, c 38, § 8-4 (1967). The defendant contends that this element was missing in the indictment against him. The indictment in question reads as follows:

“. . . Quillie Horne committed the offense of attempt in that he, intentionally and knowingly beat with his fists and kicked with feet and attempted to kill [the victim], without lawful justification . . .

It is difficult to imagine how the instant indictment could be more specific. Certainly the allegation that defendant beat the victim with his fists and kicked her with his feet is sufficient to satisfy the statutory requirement that there be a “substantial step” toward the commission of the offense. It is old law that beating with fists and kicking can result in and constitute murder. People v. Swiontek, 391 Ill 618, 63 NE2d 741. The indictment in the instant case is of sufficient particularity to enable the defendant to understand the nature of the charge against him, to enable him to properly prepare his defense and to stand as a prior judgment in the event of a subsequent prosecution for the same offense. People v. Martin, 62 Ill App2d 97, 210 NE2d 587.

Defendant’s final point is that concurrent sentences for aggravated battery and attempt to commit murder were improper. Convictions for crimes arising out of the same conduct are improper even though concurrent sentences are imposed and the conviction of the lesser crime must be reversed. People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299; People v. Schlenger, 13 Ill2d 63, 147 NE2d 316. In People v. Peery, 81 Ill App2d 372, 225 NE2d 730, the court held that convictions for attempt to commit murder and aggravated battery arose from the same conduct and reversed the latter conviction. In the instant case the same acts constituted the elements of both crimes and we therefore reverse defendant’s conviction for aggravated battery.

We find no other reversible error in the record and defendant’s conviction of attempt to commit murder and robbery are accordingly affirmed.

Judgment affirmed in part and reversed in part.

SULLIVAN, P. J. and DEMPSEY, J., concur.


text:
    Lee Shell Company, Inc., Plaintiff-Appellee, v. Model Food Center, Inc., Theodore Weigley, et al., Defendants-Appellants.
    Gen. No. 51,869.
    First District, Fourth Division.
    May 14, 1969.

      Abrams, Linn, Mix & Carey, of Chicago (B. John Mix, Jr., of counsel), Hodgson, Patke & Stitt, of Chicago (Dom J. Rizzi, of counsel), for appellants.
    Arvey, Hodes & Mantynband, of Chicago (Sidney R. Zatz, Howard Arvey, and Irwin I. Zatz, of counsel), for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff’s complaint alleged an oral contract whereby all defendants agreed to purchase $326,000 worth of store fixtures and equipment in exchange for plaintiff’s promise to supply store fixtures and equipment and draw a layout for the equipment. Plaintiff alleged breach of the oral contract and claimed loss of profits in the amount of $85,000. In the alternative to the loss of profits, the plaintiff alleged in Count II that in reliance upon the assertion of all five defendants to purchase the said equipment, plaintiff did not accept business which it otherwise would have accepted and suffered $85,000 in damages for lost business. (This presumably was abandoned as the jury was not instructed on this count.) In Count III of the Complaint, plaintiff alleged that the five defendants “wrongfully appropriated” layout plans owned by plaintiff and sought damages in the sum of $25,000 for the value of the plans. This Count was not pleaded as an alternative to any other count. In Count IV, plaintiff alleged that it expended services in the preparation of the layout plans and asked damages in the value of $30,000. Count IV was not pleaded in the alternative to any other Count. Defendants’ answer denied substantially all the material allegations in plaintiff’s complaint. Defendants did admit however, that they requested plaintiff to furnish plumbing and electrical plans to defendants’ architect for the purpose of completing the architectural plans. Instructions to the jury covered breach of express contract, implied contract, and “wrongful appropriation.” The jury returned two verdicts in favor of plaintiff, each giving plaintiff full recovery under all 3 Counts, one verdict in the sum of $140,000 against the four specifically named individual defendants, and one verdict awarding the plaintiff $140,000 in damages against all defendants. The court entered judgment in favor of plaintiff with respect to only one of the jury’s verdicts, the one awarding plaintiff $140,000 against all of defendants.

Although defendants urge a myriad of issues for review, not all of them need be discussed in resolving this appeal. A principal issue, is whether the record supports the existence of an oral agreement as alleged by plaintiff.

Plaintiff was a corporation engaged in the business of manufacturing and distributing counters, shelving and refrigerated display cases for the merchandising requirements of supermarkets, shopping centers, drugstores, restaurants, liquor stores and other retail establishments. In the furtherance of its business, plaintiff also provided design and planning services for its customers and employed engineers and experts.

Defendant, Model Food Center, Inc., had as its principal and controlling directors, officers and shareholders, the individual defendants in this litigation.

I. W. SHELL, for the plaintiff, testified as follows:

He was president of plaintiff. He first met the defendants in 1950. In November, 1957, Weigley telephoned him and related that his family purchased a tremendous piece of land and were contemplating building a large supermarket to capture all the retail business in the neighborhood. Pursuant to this telephone conversation Weigley, Marshall and the Nemeths arrived the next morning at plaintiff’s place of business and met with Shell. Weigley said he wanted to put in a diversity of departments so that he could do a $6,000,000 volume of business a year. Shell said, “This is fine, I would love it, but I can’t do this kind of work for you, I can’t — it will take months to develop a dream of this nature, and I would be very much interested provided, of course, that you will agree to buy the equipment, that is my business, and when I get through with the plans, if you accept my plans subject to normal revisions, why, you will buy the equipment.” Mr. Weigley and Mr. and Mrs. Nemeth said “of course.” After this conversation the defendants and Shell visited various floors of the warehouse, factory and showrooms and viewed plaintiff’s products. They discussed in detail many subjects relating to the problems, methods and vicissitudes of operating the type of venture proposed by the defendants.

Two days later the same parties met again and Shell told them he had calculated that the cost of installing the fixtures and equipment for a store of 44,000 square feet, they wanted to build, would be approximately $480,000. Weigley told Shell to start work as soon as possible, because defendants decided Shell’s proposition would be acceptable and he also said that if the defendants accepted plaintiff’s plans there would be no question about who was going to install the equipment.

Shell drew a plan for various departments (e. g. liquor, meat, bakery, jewelry, dry goods, restaurant, etc.) and in January, 1958, these plans were substantially completed. He and Weigley met and examined the plan, which was a layout of the store showing the various departments, locations, fixtures and equipment. Weigley “wanted to know what the price was then.” The following then ensued:

Shell: “By the time I had actual figures, and I gave him (Weigley) the figure of--I gave him a proposal of $326,000.00, this was the final figure, which he accepted.”
Defendant’s counsel: “I object to that, ‘he accepted.’ ”
Plaintiff’s counsel: “What did he say?”
The Court: “What did he say, he accepted what?”
Shell: “He accepted the blueprints.”
Plaintiff’s counsel: “No, what did he say?”
Shell: “He said that the blueprints are now satisfactory, ‘and now I will sign the contract, make it ready.’” . . .

Shell subsequently prepared a contract and a week later went to see Weigley.

Plaintiff’s counsel asked Shell:

Q. “You prepared an agreement as well ?”
A. “Yes.”
Q. “Did you send that to him ?”
A. “Yes.”

At this point in the trial, plaintiff placed in evidence an artist’s renderings of the delicatessen, frozen food department, snack shop, dry goods, drugstore, jewelry, grocery, etc., and Shell testified to the function and description of the fixtures and equipment to the court and jury. After this phase of the trial, the following ensued:

Plaintiff’s counsel: “All right. Did you give this plan to Mr. Weigley?”
Shell: “To Mr. Weigley, yes, sir.”
Plaintiff’s counsel: “He received it from you?”
Shell: “He received it from me, yes, sir.”
Plaintiff’s counsel: “What did he say about this plan?”
Shell: “He said it was terrific, just the way he wanted the store, that is the day I asked for the order, and he said he hadn’t got his financing.”
(Emphasis supplied.)

After this meeting in January he gave the final plan, after all revisions, to Weigley in March, 1958. In March, 1958, Weigley asked Shell to make up some electrical and plumbing plans. After these plans were delivered Shell again asked for the order and Weigley said he hadn’t made arrangements for financing the store. Shell testified that Weigley told him:

“Well, if you come around in a week or so, I will probably have this all cleaned up, and I will give you the order, and you can get going.”

A week later Shell met Weigley again. Weigley said that he still was not ready to sign, that Shell would have to wait a week since the financing didn’t come through. A week later Shell again met Weigley and he said to Weigley:

“The order isn’t in yet, and you are already getting ready to construct the building, and he (Weigley) said, ‘Well, what is the use of arguing with you, Mrs. Nemeth doesn’t like your plan, she doesn’t like your fixtures’ ”, . . .

Shell related his inability to find Mrs. Nemeth either in person or by telephone. The record is devoid of evidence regarding Marshall or Mr. Nemeth’s attitude. Cross-examination of Shell was as follows:

Defendant’s counsel: “. . . I understand you said you had an oral agreement with these defendants, is that right?”
Shell: “Well, it was a contract subject to their acceptance of my plans, and they couldn’t sign a contract at the moment, because I couldn’t tell them exactly what the cost was until I finished —
(Emphasis supplied.)
Defendant’s counsel: “Well, did you enter into any type of oral agreement with these defendants?”
Shell: “Yes.”
Defendant’s counsel: “. . . what was the date of that agreement?”
Shell: “The date of the completion of my plans and their acceptance of my plans subject to several
Defendant’s counsel: “. . . Tell us the date . . .
Shell: “Well, the latter part of January is one date I asked for an order. I was supposed to get it and didn’t get it.”

The first time he discussed price was at the second meeting in November, 1957, when he gave defendants a figure of approximately $380,000. He said the next time he discussed price was in the latter part of January, 1958, when the plans were finished except for minor revisions, at which time the final price was given to the defendants “in writing in the usual form.” (This document was never produced at the trial.) Shell said there was no place for a signature on the document and he called it a prospectus or proposal showing each item of equipment that was going into the store. Shell said the proposal was furnished to defendants so they could analyze carefully and make sure every item on the proposal was desirable. The crux of the existence or non-existence of an oral agreement is illuminated by the following colloquy:

Defendant’s counsel: “Now, this amount of $326,-000.00--”
Shell: “Yes.”
Defendant’s counsel: “. . . when were you supposed to get that?”
The Court: “$326,111.00; let’s be exact.”
Shell: “That is correct, they were supposed to sign my contract when they accepted my plan, and when they were supposed to accept my plan they put me off a week, then another week, then another . . . .” (Emphasis supplied.)

OPINION

Defendants argue that plaintiff failed to prove the existence of a valid contract because (1) there was no acceptance of a contract; and (2) the material terms and conditions were too indefinite to create an enforceable contract.

The only testimony concerning an acceptance was Shell’s testimony of his meetings with Weigley. The strongest of the testimony concerning the alleged acceptance was as follows:

Shell: “. . . this was the final figure, which he (Weigley) accepted. “He (Weigley) accepted the blueprints. « “(Weigley) said the blueprints are now satisfactory, and now I will sign the contract, make it ready . . . .”

The most that can be said for this testimony is that it was an acceptance of the blueprints, but surely not an acceptance of a contract.

The record does not support a theory that Weigley had authority to bind the other defendants. In fact, Shell’s testimony reveals that Mrs. Nemeth expressed an utter disdain for the plan and a refusal to accept the plan. The record is silent as to manifestations of Marshall and Mr. Nemeth regarding their attitude as to an acceptance.

In order to create an enforceable contract, acceptance must be unequivocal. Milani v. Proesel, 15 Ill2d 423, 155 NE2d 38 (1959). The alleged acceptance or approval of the blueprints by Weigley cannot be said to be tantamount to the acceptance of an offer to sell equipment. Since there was no acceptance on the part of Weigley and since none of the other individual defendants accepted neither can there be an acceptance by the corporation, Model Food Center, Inc.

It is basic contract law that the terms of a contract must be reasonably certain; and when the material terms and conditions are not ascertainable no enforceable contract is created. A. S. & W. Club of Waukegan v. Drobnick, 26 Ill2d 521, 187 NE2d 247 (1963). Plaintiff in its complaint alleged:

... in consideration of Lee Shell Company’s designing the plans for the aforesaid store and engineering the design and development of the store generally, the Lee Shell Company would receive the defendants’ order for the installation of equipment as specified in and needed for those plans. (Emphasis supplied.)

During plaintiff’s presentation of the case it introduced into evidence the plan created by plaintiff and several artist’s renderings projecting what a given area of the store would look like. Plaintiff’s plan was drawn to scale and depicted the general layout of the equipment. The various pieces of equipment indicated in the plan are too numerous to enumerate in toto. The plan indicates that there will be grocery gondolas, automatic checkout counters, frozen food cases, various refrigerators, display cases, various tables, a snack shop counter and various shelving units to name but a few of the various types of the equipment indicated by the plan. The plan, however, does not describe the equipment with any specificity: there is no indication (with exception of one refrigerator display case) of the manufacture, of the quality or the type of material to be used, or the style of the equipment. The plan, although it has dimensions as to length and width of some of the equipment, does not indicate the height of the equipment. No specifications were introduced to show what the defendants were to receive for the $326,111 which the plaintiff claimed as the contract price. The artist’s renderings, like the plaintiff’s plan, do not describe the equipment with any specificity. Plaintiff at no time during the course of the trial introduced evidence of what equipment would be needed to equip defendants’ store “as specified in and needed for” plaintiff’s plan as alleged in the complaint.

Defendants’ contention that the trial court erred in denying their motion for a directed verdict must be reviewed in the context of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967) at page 510:

In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

We hold that the trial court should have granted defendants’ motion for a directed verdict on Count I, the breach of contract claim. All of the evidence viewed most favorably to the plaintiff failed to establish the existence of a valid contract.

As to Count IV the jury was instructed that if they believed that plaintiff performed labor and services for defendants the law implies a promise to pay for such labor and services. (Plaintiff’s Instruction No. 2.) The only evidence at the trial as to the alleged damages suffered by plaintiff was testimony as to the damages on the express contract and on the “wrongful appropriation” counts; no evidence was adduced as to the damages alleged under Count IV, the implied contract count. Besides failing to prove damages under Count IV counsel for plaintiff in his closing argument told the jury that he was asking them to return a guilty verdict for the breach of the contract and for the “wrongful appropriation”; there was no mention of Count IV thereby abandoning it.

Count III of plaintiff’s complaint alleged that the defendants “wrongfully appropriated” plaintiff’s plans and designs. Defendants answer denied that they “wrongfully appropriated” plaintiff’s plan. At the trial I. W. Shell testified that after he was told that he was not going to receive the order he made several trips to the construction site of defendants’ shopping center. On one occasion while he was at the construction site he noticed a copy of the plan that he had drawn on the floor which he picked up and brought back to his office. On cross-examination Shell stated that he picked up the copy of his plan from a counter and that the plan was partially opened; that he did not see any of the workmen using the plan. Shell testified that the shopping center as constructed resembled his plan although there were some changes. Defendants denied that they “wrongfully appropriated” plaintiff’s plan; they contend that the plan for the layout of the shopping center was conceived by Marshall and Weigley. Defendants argue that they acquired the land for the construction of the shopping center some six months before they had their first meeting with plaintiff, that at this first meeting with I. W. Shell, Weigley brought along with him the latest plan that he and Marshall had created, and that Shell’s plan was similar to their plan.

While there may be some evidence to substantiate plaintiff’s allegation that his plan was “wrongfully appropriated” through its use in construction of defendant corporation’s building, there is no evidence that it was “wrongfully appropriated” by the individual defendants. I. W. Shell testified that his first meeting was with all four of the individual defendants, that he had a second meeting with all four defendants two days later, the remainder of Shell’s testimony concerns meetings that he had with Weigley, none of the subsequent meetings testified to by Shell were attended by any of the other defendants. The plan was not however, completed until some time after the second meeting. The verdict of the jury and the judgment entered pursuant thereto found that all the defendants had “wrongfully appropriated” plaintiff’s plan. We therefore reverse as to the individual defendants and remand for a new trial on Count III of plaintiff’s complaint as to the corporate defendant only.

Plaintiff’s complaint alleged that it had suffered $25,000 damages as a result of defendants’ “wrongful appropriation.” At the trial I. W. Shell testified that the plaintiff suffered $55,000 damages as a result of defendants’ “wrongful appropriation.” Defendants made no objection throughout the course of the trial to the variance between the pleading and the proof of damages, after oral argument and submission of this case for decision in this court the plaintiff filed a motion to amend its pleading to conform the allegation of damages to the proof. The filing of the motion was untimely, Supreme Court Rule 362 (e). Ill Rev Stats c 110A § 362(e) (1967).

For the above reasons the judgment entered in the trial court is reversed and the cause is remanded for a new trial on Count III as to the corporate defendant only.

Reversed and remanded.

DRUCKER, P. J. and ENGLISH, J., concur.


text:
    Vito Barbara, Plaintiff-Counterdefendant, Appellant-Cross-Appellee, v. Carmella Barbara, Defendant-Counterplaintiff, Appellee-Cross-Appellant.
    Gen. No. 52,339.
    First District, Fourth Division.
    May 14, 1969.

      Rosenberg and Kosin, of Chicago (Errol Zavett, of counsel), for appellant.
    Irving Goodman and Louis Z. Grant, of Chicago, for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff, Vito Barbara, brought suit against defendant, Carmella Barbara, for divorce alleging physical cruelty and the wife counterclaimed also alleging physical cruelty. The matter was adjudicated without a jury and a judgment was entered in favor of the wife on her counterclaim for divorce with an award of $60 a week permanent alimony, $1,200 for attorney’s fees and an automobile; the husband was awarded custody of their four minor children. Plaintiff appeals, but does not contest the judgment of divorce entered in favor of the wife; defendant cross-appeals.

The husband complains that the trial court erred in awarding the automobile (1963 Cadillac) to the wife; the allowance of attorney’s fees of $1,200 was error or that in the alternative it was excessive; and that the award of $60 a week alimony is excessive.

The wife contends that the allowance of alimony was insufficient and should be increased to $150 a week and that the trial court erred in granting custody of their four minor children to the husband.

The parties were married on November 26, 1950, and at the time of trial the sex and age of their four minor children were as follows: the daughters were 14 and 13 years of age, the sons were 10% and 8 years of age.

By stipulation, a psychiatric examination was conducted of the parties and their four children.

EVIDENCE

Testimony of the Psychiatrist, on behalf of plaintiff:

He testified extensively regarding his examination and evaluation of the parties and their children. The husband displayed a high degree of dependency, but there was no evidence of psychosis or psychoneurosis and he was diagnosed as having a passive-aggressive type of personality disorder. The wife had a history of two episodes of psychiatric hospitalization and the symptoms clearly indicated some disorder of a paranoid variety. At the time of the examination there was no evidence of outright psychosis, but the mechanism of projection was overwhelmingly evident. The witness diagnosed the wife as a paranoid personality with a future paranoid break quite likely and presently she appeared to be quite disturbed emotionally. He found the children reacting negatively to the pressures of their mother’s illness and if this condition continued the children could be pushed into actual clinical disturbances. In his opinion, the husband is the proper parent for the custody of the children and if the children were awarded to the wife it would be detrimental to her and the children. All the children displayed varying degrees of emotional turmoil and anxiety.

Testimony of Carmella Barbara, wife, called by plaintiff under section 60:

She is forty-six years of age and always took good care of her family. She struck the children only in an endeavor to discipline them. When the children visit her (the husband was awarded temporary custody) they do not really communicate with her and she feels they are angry with her and she cannot understand their attitude. When they see her on the street they ignore and pass her up and she does not want to force them to speak to her. Her husband never furnished her with any money but he paid for everything. She was last employed thirteen years ago. She has no assets or insurance and is solely dependent upon her husband for support. She was a patient at Michael Reese Hospital for four weeks in the psychiatric department and six weeks as a patient at the Illinois State Psychiatric Institute.

Testimony of Mary Rose Barbara, on behalf of plaintiff:

She testified she is fourteen years of age and the eldest daughter of the parties and recounted the difficulties and vicissitudes visited upon her and her siblings by her mother. She emphatically expressed her wish to remain in the custody of her father.

Testimony of Vito Barbara, husband testified:

On August 15, 1966, he took the parties’ four children and moved into his sister’s ten room apartment and has lived there with them since that date.

He is a mechanic, body man and truck driver, with a net take home pay averaging $125.00 a week. On direct examination he related he had owned his own trucking firm but he has not “worked them (his trucks)” since 1962, and he went out of business in June, 1966. He had 16 trucks and very few workable, and they are now “lying in” a lot.

In 1965 he earned $1,700 to $1,800, but in 1966 he had a loss of $2,500 in income.

When he lived with his wife he did all the shopping and in addition paid all other bills and furnished her with $100 a week.

The children are regular church members and attend the parochial school. His place of employment is next door to his residence.

Sam Pessin, testified for plaintiff:

He was auditor for husband and did the parties’ income tax returns for the previous 15 years and was a family friend. In 1964 the husband reported a gross income from his truck leasing business in the amount of $33,504.45, a net business income of $4,967.30 and a taxable income of $6,572. In 1965 the gross receipts were $22,477.58, a net business income of $1,692.83 and $95 interest from two bank accounts. In 1966 he ascertained a net business loss of $2,611, part of this loss represents depreciation. All of the returns were prepared from whatever receipts and invoices were furnished by the husband. The witness testified further the husband never really went out of business, he discontinued operations in June of 1966. In 1964 the husband took a $20,000 depreciation on the trucks and this actually represented a cash flow to him by decreasing his income. Although the trucks are old they are still carried on the books as an asset.

OTHER EVIDENCE

There was protracted testimony by the parties and other witnesses which portrayed the trivia and deportment of people caught up in a maelstrom of domestic disharmony and discord whose recitation lends nothing to the resolution of the issues before this court.

It was stipulated that the court could interview the children in chambers. The court interviewed each child out of the presence of each other and then advised the parties and counsel that all four children expressed a preference and desire to remain in the custody of their father. The court stated that it considered the interviews in arriving at its conclusion regarding the question of their custody.

OPINION

Plaintiff contends the trial court erred in awarding the automobile to defendant because it was beyond the power of the court or, at least, an abuse of discretion. The husband argues, without citing any authority, that there can be no gift without delivery of the keys and certificate of title to a motor vehicle. The wife in her counterclaim for divorce alleged the parties acquired certain household furniture and a Cadillac automobile, title thereto in the wife and possession in the husband. The husband’s answer merely admitted that the parties had acquired certain furniture and an automobile. The husband thereby admitted title to the vehicle to be in the wife. Ill Rev Stats, c 110, § 40 (1965).

The court made a finding in the judgment of divorce that the vehicle was titled in the wife and ordered the husband to deliver her possession of it as her sole and exclusive property. In Peck v. Peck, 16 Ill2d 268, 157 NE2d 249 (1959) the court said at page 288:

“Where a wife is given title to property purchased in whole or in part from a husband’s funds, there is a presumption of a gift from the husband to the wife, (Stevens v. Stevens, 14 Ill2d 99; Pollard v. Pollard, 12 Ill2d 441,) and the circumstance that the husband paid the purchase price does not, in the absence of anything more, make him the equitable owner of her interest. (Lutticke v. Lutticke, 406 Ill 181.) Property voluntarily conveyed by a husband to his wife, without fraud or coercion, becomes the wife’s separate property and, notwithstanding the husband purchased the property with his own money, the wife may hold the property against him. (McComb v. McComb, 241 Ill 453.)”

The record more than adequately establishes that the funds for the purchase of the vehicle were furnished by the husband, but that title was in the wife and since there was no evidence to overcome the presumption of a gift, the wife holds the property as against the husband.

The husband alleges that he is financially unable to pay his wife’s attorney’s fees for services in the trial court and thus he should be relieved of this burden. He also claims the fee is excessive.

The following cases are submitted in support of his contention regarding attorney’s fees: Hopkins v. Hopkins, 399 Ill 160, 77 NE2d 43 (1948); Young v. Young, 323 Ill 608, 154 NE 405 (1926); and Klekamp v. Klekamp, 275 Ill 98, 113 NE 852 (1916).

In Hopkins the wife had worked continuously and contributed to the family income for many years and at the time litigation was commenced, the husband’s earnings were negligible and he had contracted a disease that left him in an increasingly poor physical condition. On appeal the court found it equitable not to have allowed attorney’s fees to the wife and cited the Young and Klekamp cases, supra, for the proposition that it is error to allow attorney’s fees to the wife when she has a greater ability to pay than her husband. The same rule was applied in Jones v. Jones, 48 Ill App2d 232, 198 NE2d 195 (1964).

In the instant case it was abundantly clear the wife had no income or estate.

Ill Rev Stats, c 40, § 16 (1965), provides that attorney’s fees may be ordered to be paid when it is “just and equitable.” In Canady v. Canady, 30 Ill2d 440, 446, 197 NE2d 42 (1964) the court said:

“The allowance of attorney’s fees in a divorce proceeding ‘rests in the sound discretion of the trial court, and unless such discretion is clearly abused, its exercise will not be interfered with.’ (Ylonen v. Ylonen, 2 Ill2d 111, 121.)”

The court was apprised of the financial condition, circumstances of the parties and the legal services furnished. The wife was compelled to defend against the husband’s complaint, maintain her suit and pursue and defend on motions regarding temporary alimony, attorney’s fees, custody and visitation provisions. The husband never abandoned his complaint but pressed it throughout and necessitated preparation for trial and the resulting contest which ensued between the parties. We find no abuse of discretion in amount and award of attorney’s fees granted to the wife.

The husband contends an award of $60 a week alimony is excessive.

In Byerly v. Byerly, 363 Ill 517, 2 NE2d 898 (1936), the court said at page 525:

“There is no hard and fast rule for the fixing of alimony. Matters which are usually considered by the court in determining alimony are the ages of the parties, their condition of health, the property and income of the husband, separate property and income, if any, of the wife, the station in life of the parties as they have heretofore lived, and whether or not there are any children dependent upon either for support, and also the nature of misconduct of the husband.”

We also have recourse to the statute in the determination of the propriety of the amount of alimony awarded to a party. Ill Rev Stats, c 40, § 19 (1965). Section 19 provides in part “. . . the court may make such order touching the alimony and maintenance of the wife or husband ... as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just.”

The husband concedes that our Supreme Court has accepted half of the man’s income as the upper limit as alimony. Wilson v. Wilson, 102 Ill 297 (1882). The factors and matters related in Byerly as to the determination of the amount were all extensively and thoroughly developed at the trial. A few months prior to leaving his wife, the husband discontinued his truck leasing business, as related by his auditor, Mr. Pessin. The vehicles were placed in repose in a vacant lot leased from the husband’s brother. The trial court we assume took into consideration the existence of these assets in determining the financial circumstance of the husband, along with the wife’s mental health and her inability to support herself.

The wife contends that the award of $60 a week alimony was insufficient. As we have already stated the factors and matters relative to the determination of the amount of alimony were all extensively and thoroughly developed at the trial and we can neither find abuse of discretion in the award of alimony nor justification to award the wife a greater amount than she was allowed by the trial court.

The wife argues that the court erred in awarding custody of the children to the husband.

In reviewing an award of custody of minor children we are governed by the rule in Miezio v. Miezio, 6 Ill2d 469, 129 NE2d 20 (1955), stated at 472:

“In awarding custody of minor children to one parent or the other, the paramount consideration must necessarily be the welfare and best interest of the children. (Nye v. Nye, 411 Ill 408; Buehler v. Buehler, 373 Ill 626.) Although the discretion of the trial court in matters relating to the custody and support of minor children is a judicial one and subject to review, (Nye v. Nye, 411 Ill 408) the determination should not be disturbed upon appeal unless manifest injustice has been done. (Buehler v. Buehler, 373 Ill 626.)”

The wife relies primarily upon Nye v. Nye, 411 Ill 408, 105 NE2d 300 (1952), and contends that only when the most compelling evidence is presented, proving the mother to be an unfit person, should custody of her minor children be denied her. The Nye case was commented upon in words applicable to the instant case in Jenkins v. Jenkins, 81 Ill App2d 67, 225 NE2d 698 (1967), at page 73:

“The decision in Nye is not compelling as authority for petitioner’s argument here, since, as can be seen from recital of the issues involved, that decision, and the many in which it has been followed, did not declare as an immutable rule of law that a child should be awarded to its mother in every case in which she is found to be a fit parent. It held only that it is ‘usual’ in such cases, but that ‘[t]he guiding star is and must be, at all times, the best interest of the child’ . . . .”

Similar language is found in Carlson v. Carlson, 80 Ill App2d 251, 255, 225 NE2d 130 (1967), the court said:

We do not find any authority to support the contention that in Illinois there is an arbitrary rule that unless there is evidence that a mother is unfit, she should have the custody of young children. The Supreme Court, also in Nye, stated that under our divorce statute the court is clothed with large discretion in determining to which parent a child will be given, and then indicated that the primary concern of the courts in cases like this, . . is and must be, at all times the best interest of the child.”

The uncontradicted evidence related by the psychiatrist who by agreement of the parties examined and evaluated the parties and their children, established it would be detrimental and deleterious to the children’s best interest to have their custody awarded to the wife. He testified that he saw no reason to remove them from their father’s environment which was a positive relationship without any evidence of psychological damage to the children. In addition, he found it would be better for the wife’s welfare not to have custody because she would have difficulty and would develop stress.

The court by agreement of the parties privately interviewed the children and their preference for living with the father was strongly manifested to the court. This practice was condoned in Oakes v. Oakes, 45 Ill App 2d 387, 195 NE2d 840 (1964). We are mindful that while the minor child’s preference is not controlling, [Stickler v. Stickler, 57 Ill App2d 286, 289-291, 206 NE2d 720 (1965)], it is a proper factor, however, to be considered by the court in the determination of custody.

It is noted that the husband had actual custody of the children since August 1966 and in September 1966 he was granted temporary custody by a judge other than the one that presided over the trial.

The court also made a specific finding in the judgment of divorce that the husband was a fit and proper person to have the care and custody of the children. We find the trial court’s decision awarding custody of the children to be supported by the record. In the absence of clear and convincing evidence that manifest injustice has been done, or that the trial court has abused its discretion, reviewing courts should not reject the findings and decisions of the trial courts in cases of this character because in so doing we would merely be substituting our own personal judgments for those reached from a far better vantage point. Jenkins v. Jenkins, supra.

Judgment affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.