text:
    Edwin W. La Sanska, Plaintiff, v. The University of Chicago, a Not-For-Profit Corporation, Joseph J. Duffy Co., an Illinois Corporation, McDoniel Iron Works, Inc., an Illinois Corporation, Roeth & Cutler, Inc., an Illinois Corporation, and Abell-Howe Company, an Illinois Corporation, Defendants. Joseph J. Duffy Co., an Illinois Corporation, Third-Party Plaintiff-Appellant, v. Gerson Electric Construction Company, Third-Party Defendant-Appellee.
    Gen. No. 54,049.
    First District, First Division.
    September 18, 1970.

      Peterson, Lowry, Rail, Barber & Ross, of Chicago (Irving G. Swenson, Thomas K. Peterson, and Charles W. Herf, of counsel), for appellant.

      Tom L. Yates, of Chicago (Carl Abrahamson and Frederic L. Goff, of counsel), for appellee.
   TRAPP, J.

The trial court entered summary judgment for defendant on two counts of a complaint seeking recovery of indemnity by reason of a contract. Plaintiff appeals.

Duffy Construction Co., third-party plaintiff, herein called Duffy, was the general contractor for construction work at the Argonne National Laboratory. Essentially, the United States was the builder. Duffy’s contractual obligations included indemnification of the United States for all injuries and demands arising out of the performance of such contract, including performance by Duffy’s subcontractors.

The third-party defendant, Gerson Electric Construction Company, herein called Gerson, was the electrical subcontractor. Article II of the subcontract stated that Gerson certified that he examined all plans and specifications of the entire contract and, amongst other things agreed that as to any federal project, Gerson bound himself to Duffy and to such government agency to fully comply with:

“. . . all the undertakings and obligations of the Contractor, insofar as they shall apply to the Subcontractor’s work, as set forth in the principal contract between the Contractor and such government or agency. . . .”

The subcontract also provided that Gerson indemnify Duffy in the following language:

“Art. VIII. The Subcontractor hereby agrees to indemnify and keep harmless the Contractor against all liability, claims, judgments or demands for damages arising from accidents to persons or property occasioned by the Subcontractor, his agents or employes, and against all claims or demands for damages arising from accidents to the Subcontractor, his agents or employes, whether occasioned by said Subcontractor or his employes or by the Contractor or his employes, or any other person or persons; and the said Subcontractor will defend any and all suits that may be brought against the Contractor on account of any such accidents and will reimburse the Contractor for any expenditures that said Contractor may make by reason of such accidents.” (Emphasis supplied.)

One La Sanska, an employe of defendant, Gerson, was injured on the construction job and brought this action against Duffy and others alleging a cause of action under the provisions of the Structural Work Act, chapter 48, § 60 et seq., Ill Rev Stats 1959. Duffy thereupon brought a third-party action against Gerson seeking indemnification by reasons of the indemnity provisions of the subcontract just noted. At this point such La Sanska complaint and Counts I and II of the third-party complaint depart our ken and are not of concern.

Count III of Duffy’s complaint alleged that La Sanska had commenced an action for the injuries against the United States, No. 62 C 1094, in the United States District Court, and that Gerson refused to honor demands to defend such action against the United States. It further appears that the United States made demand upon Duffy to defend the La Sanska action and brought a third-party action against Duffy for the contractual indemnity. La Sanska’s action was dismissed without prejudice on his own motion. Count III prayed damages for attorney’s fees, costs, and expenses necessarily incurred expended in the defense of such action against the United States.

Count IV alleges that La Sanska thereafter brought an action for such injuries against the United States, No. 63 C 1456, in the Federal District Court. It appears that the United States thereupon filed a third-party action against the defendant, Gerson, by reason of his indemnity contract. It was held that such complaint stated a cause of action for indemnity. La Sanska v. United States v. Gerson Elec. Const. Co., 346 F2d 333 (1965). It appears that this cause of action was dismissed with prejudice by agreement of the parties. Count IV alleges that Gerson refused to meet its contractual obligations to defend such action and that Duffy was obligated and did incur attorney’s fees, costs and other expenses. The count prays judgment for such of the expenses as were reasonably necessary in such behalf.

Gerson’s answer asserted as an affirmative defense that the judgment of dismissal with prejudice entered in Federal District Court, cause No. 63 C 1456, here barred Duffy’s action on both counts under the doctrine of res judicata. The motion for summary judgment asserts that there is no genuine issue of fact to be determined for the reason that the judgment of the Federal District Court in cause No. 63 C 1456 is res judicata of all claims by Duffy. In support of such motion there is an affidavit by an attorney associated in Gerson’s defense which refers to the indemnity action of the United States against defendant, Gerson, upon his contractual liability to indemnify, which among other things states:

“. . . that he is informed and believes and, therefore, charges the fact to be that the Third Party Plaintiff herein, Duffy Construction Company, was the real party in interest as Third Party Plaintiff in the Third-Party Complaint filed by the United States against Gerson in Case No. 63 C 1456 in the United States District Court.”

Such affidavit features utter failure to comply with the contents of an affidavit in support of summary judgment. Chapter 110, § 57 (4), Ill Rev Stats 1967, provides that the content of such affidavit shall be according to rule. Supreme Court Rule 191(a), Ill Rev Stats 1967, provides that an affidavit in support of summary judgment shall be upon personal knowledge of the affiant, shall state facts admissible in evidence which are relevant to the issue and without conclusions of the affiant. Moreover, such affiant must set out affirmatively that if affiant be sworn as a witness, he is competent to testify as a witness to such facts. An affidavit stating conclusions reached from asserted information and belief is both valueless and meaningless in support of a motion for summary judgment.

Upon the motion for summary judgment there was certain testimony by a former member of the law firm representing the plaintiff, Duffy, as a third-party defendant in the first case No. 62 C 1094, in the Federal District Court. He testified that in the subsequent case, No. 63 C 1456 in the Federal District Court, by La Sanska against the United States, he expressed a requested opinion that on such action the plaintiff, Duffy, would be liable to the United States under the indemnity provisions of its contract. He was, thereafter, designated a eocounsel by the United States Attorney and was instructed in behalf of Duffy and its insurance company to participate as cocounsel, and that he did join actively in the proceedings including the trial of the La Sanska case. He stated that he was present when the case was dismissed with prejudice. He further testified that in such proceedings the United States had a claim adverse to that of the plaintiff, Duffy; that he was in no sense representing the latter in the proceedings but only the United States, but that he did not participate in the negotiations which led to the settlement between La Sanska and the United States and the resulting dismissal with prejudice.

The fact that the United States’ Attorney employed the services as cocounsel of an attorney who had represented Duffy as a third party defendant in the Federal District Court, cause No. 62 C 1094, does not establish that Duffy controlled or directed the defense of the United States in Federal District Court, cause No. 63 C 1456. This is particularly true in the light of such attorney’s testimony that he represented the United States at that time, and did not participate in any settlement negotiations, and that by virtue of his then representation could not object to the order of dismissal.

Upon this state of facts, the argument here essentially is whether Duffy’s action for indemnity is barred by some form of the doctrine of res judicata. Such principle has been frequently discussed. As stated in Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill App2d 30, 205 NE2d 786:

“If a former judgment is raised as a complete bar against a second action, both as to those matters actually adjudicated in the first action and as to those matters which could have been raised therein, there must be, as between the actions, identity of parties, of subject matter and of cause of action.”

Gerson argues that Duffy was the real party in interest in La Sanska v. United States, No. 63 C 1456, and that following the dismissal of such action with prejudice, the doctrine of res judicata operates to bar the indemnity proceedings. Such argument seeks to establish an incorrect application of the law.

Duffy was not made a party to this action, either as a defendant, as a third-party defendant, or otherwise. No authority has been cited that Duffy’s contractual liability to the United States in La Sanska’s cause No. 63 C 1456, made it privy to the interest of the United States. It seems apparent that a right of action in the United States to contractual indemnity from any or all of several parties does not make one of such parties privy to the interests of the United States. The rights of the United States and Duffy are neither mutual nor successive upon the issue of Gerson’s liability to indemnify Duffy. Sweeting v. Campbell, 2 Ill2d 491, 119 NE2d 237 and Cohen v. Schlossberg, 17 Ill App2d 320, 150 NE2d 218.

Gerson argues that the evidence shows that Duffy, while not a party, did, in fact, direct and control the action of the United States and hence must be bound by the judgment entered. As noted in Schlossberg, the factors of direction and control of a cause may be applied for purposes of estoppel only upon precisely noted facts.

That opinion points out that certain language concerning direction and control of the cause of action was used in Easton v. Hall, 323 Ill 397, 154 NE 216, but that the party referred to actually held an interest as successor and hence was informal privy.

The element of direction and control of the proceedings to establish estoppel was argued in Schlossberg. There, in mandamus proceedings the issuance of a certificate of stock in a closely held corporation was ordered. Subsequently, the controlling corporate owners brought an action to try title to Schlossberg’s stock. There may be estoppel where the interest is, in fact, presented in the pleadings and determined in the litigation. Lightcap v. Bradley, 186 Ill 510, 58 NE 221; Dishinger v. Bon Air Catering, Inc., 336 Ill App 557, 84 NE2d 562. Schlossberg contended that the action to try title to the stock was barred by the judgment in mandamus. The court pointed out that the issue of title to this stock was not present in the mandamus proceeding and title to the shares was not determined. Cf. Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill App2d 30, 205 NE2d 786; Newark Electronics Corp. v. City of Chicago, — Ill App2d —, — NE2d —; Gerson cites Cole v. Favorite, 69 Ill 457. That opinion is consistent with the proposition stated. In that case plaintiff had stored merchandise with the defendant warehouseman, who agreed to insure. The goods were destroyed by fire. By written agreement with the plaintiff, the warehouseman undertook to recover upon the insurance policy for such goods. Plaintiff participated and testified at the trial. In that action it was determined that there was no right of insurance recovery for plaintiff’s loss. Plaintiff then sued the warehouseman. Recovery was denied for the reason that plaintiff’s right to recover under the insurance policy had been determined and litigated in the former action. Gerson also cited Doherty v. Universal, 107 F 2d 548. We find, again, that the issue of the right of the plaintiff in the subsequent suit had been litigated and determined in a prior action. Hence, the subsequent suit was barred.

The third-party complaint of the United States against Gerson in the Federal District Court action, No. 63 C 1456, is confined to the liability of the latter to the former and patently does not raise or determine the issue of Gerson’s liability to Duffy under the provisions of the relevant subcontract. The prayer for indemnity and “all expenses incurred” by the United States does not raise an issue concerning expenses which may have been incurred by Duffy. We doubt that there is any basis upon which Duffy could have intervened to raise such issue, but in any event, there was no duty to intervene. Crockett v. Harrison, 26 v App2d 9, 167 NE2d 428 and Sweeting v. Campbell, 2 Ill2d 491, 119 NE 2d 237.

There being a question of fact upon the issue as to whether Duffy was a real party in interest in cause No. 63 C 1456 in the Federal District Court, it was error to enter summary judgment for the defendant, Gerson.

The cause is reversed and remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

CRAVEN, P. J. and SMITH, J., concur.


source: Caselaw Access Project

author: STOUDER, J. RYAN, P. J.

license: Public Domain

text:
    Daisy E. Drehle, Administratrix of the Estate of Carl W. Drehle, Deceased, Plaintiff-Appellant, v. Frances E. Fleming, Administrator of the Estate of Michael Fleming, Deceased, Defendant-Appellee.
    Gen. No. 69-12.
    Third District.
    September 18, 1970.
    Rehearing denied November 12, 1970.

      RYAN, P. J., dissenting.
    Robson, Masters, Ryan, Brumund & Belom, and O’Brien, Faulkner & Garrison, of Joliet, and Sidney Z. Karsasik, of Chicago, for appellant.
    Dunn, Stefanich, McGarry & Kennedy, of Joliet, for appellee.
   STOUDER, J.

Daisy Drehle, Administratrix of the estate of Carl Drehle, deceased, brought this action in the Circuit Court of Will County for wrongful death against Frances Fleming, Administrator of the estate of Michael Fleming, deceased. The jury found the issues in favor of defendant, the court entered judgment thereon, denied plaintiff’s post-trial motion, and this appeal follows.

On July 17, 1965, at about 6:30 a. m. a four-car collision occurred in Will County on 1-55 south of the Des Plaines river bridge. Seven persons died in the collision, including plaintiff’s decedent, Carl Drehle, and defendant’s decedent, Michael Fleming.

The collision occurred in the southbound lanes of 1-55 and it is undisputed that the collision resulted from a car being driven the “wrong way” or north on the southbound lanes. According to plaintiff’s complaint and theory of the case, the northbound vehicle was driven by Michael Fleming. It was defendant’s contention that it was not Fleming who was driving north, but rather Carl Drehle, plaintiff’s decedent.

Carl Drehle, aged 50, resided in New Lennox, Illinois. He was a construction worker employed on a pipe line at the Greer School in the Coal City area. He left for work on July 17, 1965, at about 6 a. m. alone in his car, a 1958 Ford, white over gray.

According to the testimony of William Fleming, a resident of Chicago, his son Michael was home on furlough from the Navy. Between 8 and 8:30 p. m. on July 16, 1965, Michael requested and was granted permission to use his father’s car, a 1958 gray Buick. The son informed his father that he might go to a party with friends. He drove off in the car alone, did not return home again that night, and was not again seen alive by his father.

When the bodies of the deceased persons were removed from the crash scene, it appeared that Drehle was alone in his car but that in addition to Fleming, there were three other passengers in his car who were also killed in the crash.

Five witnesses testified for plaintiff and four witnesses testified for defendant concerning events occurring just prior to the collision, tending to support the opposing view of each party. Two of plaintiff’s witnesses, husband and wife, were the driver and passenger in the fourth car involved in the collision. They were headed south and their testimony tended to indicate that it was Drehle in his Ford who passed them just prior to the crash in which both their car and the Drehle car were involved.

The other three witnesses for plaintiff and the four witnesses for defendant testified to meeting and avoiding a northbound car traveling in the southbound lanes. The three witnesses for plaintiff indicated that the northbound car was the Fleming Buick and the four for defendant that it was the Drehle Ford. The testimony of these witnesses is irreconcilable and while such testimony has a tendency to prove which vehicle was northbound, it is subject to the frailties incident to casual observation.

James Stannard Baker, an accident reconstruction expert, testified on behalf of plaintiff and offered the opinion based on the facts he observed, that the Drehle car was southbound and the Fleming car northbound at the time of the collision.

After judgment was entered on the jury’s verdict of not guilty, plaintiff moved for a new trial, arguing initially among other reasons, that the trial court erred in refusing certain of plaintiff’s instructions. Thereafter, plaintiff’s post-trial motion for a new trial was amended to include as reasons therefor that material evidence had been withheld by defendant or alternatively, that the plaintiff had discovered new evidence requiring a new trial.

According to the amended post-trial motion and affidavits in support of and in opposition thereto, it appears that a companion action had been filed by other parties injured in the collision. In such action which was pending and undisposed of at the time of the trial in the case at bar, the estates of Drehle and Fleming were each named defendant. On April 30, 1968, some three months after the verdict in the instant case was returned, interrogatories in the companion case resulted in the production of a statement of one Pepole, dated July 28, 1965. The substance of Pepole’s statement was that he had been with Michael Fleming and the other occupants of the Fleming car at a party in a Chicago motel. The party which lasted from approximately 12:30 to 4:30 a. m. on the morning of July 17, 1965, was for the purpose of celebrating the departure of two friends into service. According to Pepole, he saw Fleming and his companions leave the Chicago motel in the Fleming car, and, at the time, (4:30 in the morning) Fleming was driving.

Defendant’s insurance carrier employed separate and independent law firms to defend each of the cases. The Pepole statement was originally produced by Frank Pause, Attorney for the Fleming estate in the companion action, and it is this statement, together with the accompanying circumstances which plaintiff claims in its amended motion for a new trial, requires the granting of such a new trial.

In November, 1967, plaintiff served Monier type interrogatories on defendant’s counsel which were made reciprocal by the court. Reciprocal supplemental interrogatories were served in January, 1968, just before the trial commenced. On December 15,1967, counsel for each of the parties met, exchanged statements and other information. The Pepole statement was not given to plaintiff’s counsel. Neither Pepole’s existence nor the fact of his statement was referred to by defendant’s counsel.

In her amended post-trial motion, plaintiff asserted that Pepole was known to and his statement was in the possession of defendant or his agents. In his affidavit, opposing plaintiff’s new trial motion, defendant’s counsel states, “9. That the list of statements in the foregoing paragraph were the only statements of persons who had knowledge of the matters alleged in plaintiff’s Complaint that were in your affiant’s file at the time that the conference between Attorney Belom and your affiant was held. Your affiant did not have a copy of the statement of Frank F. Pepole until it was given to me by Attorney George M. O’Brien on May 15,1968.”

Plaintiff argues that contrary to the trial court’s conclusion, the nonproduction of the Pepole statement was deliberate and, therefore, a new trial ought to have been granted.

Culminating with Monier v. Chamberlain, 35 Ill2d 351, 221 NE2d 410, the principle is now well established that the purposes of litigation are best served when each party knows as much about the controversy as is reasonably practicable. It is the purpose of pretrial discovery procedures to enhance the truth seeking process, and good faith compliance with such procedures is both desirable and necessary. Courts have ample authority to secure compliance with pretrial discovery proceedings, including the award of a new trial, where the noncompliance is substantial and not in good faith. Battershell v. Bowman Dairy Co., 37 Ill App2d 193, 185 NE2d 340.

In the case at bar, we find it unnecessary to determine whether the trial court abused its discretion in failing to award a new trial solely because of defendant’s failure to comply with the interrogatory procedure. In our view, a new trial is required by the application of rules relating to newly discovered evidence and the trial court’s conclusion to the contrary is unsupported by the evidence. The reciprocal interrogatories which formed the basis for the mutual disclosure sought were sufficiently broad to require production of the information regarding Pepole. Frozen Food Express v. Modern Truck Lines, Inc., 79 Ill App2d 84, 223 NE2d 275. Although defendant’s counsel makes some reference to inadequacies in the interrogatories, we find no merit to such contention, particularly when counsel’s own affidavit as quoted above, clearly indicates that the nonproduction of the statement was unrelated to the form of the interrogatories. Considering the affidavit of defendant’s counsel in its aspect most favorable to him, such affidavit is wholly inadequate to support the conclusion that the noncompliance with the interrogatories was in good faith. Not only does the affidavit fail to deny that Pepole and his statement were known to defendant or his agents, it also offers no explanation or excuse for such nondisclosure consistent with the purpose and spirit of the discovery rules.

As observed in Bezark v. Kostner Manor, Inc., 29 Ill App 106, 172 NE2d 424, “Applications for a new trial on the grounds of newly discovered evidence are not looked on with favor by the courts and are subject to close scrutiny. 28 ILP, New Trial, § 41. Where there is diligence, and the newly discovered evidence is not cumulative and is such as to strengthen the conviction that justice has not been done, a new trial should be granted. The courts should not hesitate to grant a new trial where it is likely that the newly discovered evidence will change the result on a new trial.” See, also, Henderson v. Shives, 10 Ill App2d 475, 135 NE2d 186, Stocker v. Scherer, 1 Ill2d 405, 115 NE2d 614, and Powers v. Browning, 2 Ill App2d 479,119 NE2d 795.

Where a party has resorted to pretrial discovery procedures and the opposing party fails to comply in good faith therewith, such procedure constitutes the exercise of appropriate diligence. The noncomplying party cannot complain when its own neglect caused the nondiscovery of significant evidence.

In determining the materiality of newly discovered evidence, the principal criteria is whether such evidence has a strong likelihood of changing the result. The evidence of Pepole is not merely cumulative, but relates to facts and circumstances supporting plaintiff’s theory of the case with respect to which other evidence is absent.

The principal issue in the case was the identification of the northbound car and its driver. The jury deliberated for nearly seven hours before reaching its verdict. As noted above, the occurrence testimony represented perceptual impressions which were, at best, incomplete and difficult to assess. This is particularly true with respect to the identity of the driver of the Fleming car. We believe Pepole’s testimony would have a strong likelihood of changing the result.

Our view in this regard is supported by another aspect of this case. Plaintiff tendered three alternative instructions which in varying language, sought to instruct the jury on the “continuous fact doctrine,” the court rejected the instructions, first, because they were abstract in nature and, second, because not supported by the evidence. The court concluded that the fact Fleming was seen driving the car at 8:30 p. m. did not warrant an instruction suggesting that he was, therefore, driving the car at 6:30 a. m. on the following morning. In view of our decision, we find it unnecessary to determine the propriety of the instructions and we mention them only to point out that both parties believed that the time when Fleming was last seen driving his car was of substantial importance.

For the foregoing reasons, the judgment of the Circuit Court of Will County is reversed and remanded with directions that plaintiff be granted a new trial.

Judgment reversed and remanded with directions.

ALLOY, J., concurs.

RYAN, P. J., dissents.

DISSENTING OPINION

RYAN, P. J.

I cannot concur with the opinion of the majority of this court which holds that a new trial is required by the application of the rules relating to newly discovered evidence.

The determination of a motion for a new trial on the grounds of newly discovered evidence is largely discretionary with the trial court. 28 ILP, New Trials, § 98. The exercise of the court’s discretion will not be disturbed on review except in case of manifest abuse. Stocker v. Scherer, 1 Ill2d 405, 115 NE2d 614; Leonard v. Jacobs, 42 Ill App2d 261, 192 NE2d 304; Henderson v. Shives, 10 Ill App2d 475,135 NE2d 186.

To justify a new trial on the grounds of newly discovered evidence, it must be of such conclusive character that it will probably change the results if a new trial is granted. Leonard v. Jacobs, supra; Henderson v. Shives, supra.

As noted in the memorandum filed by the trial court, one of the principal questions presented by the evidence in this case was the question of which of the two automobiles, the Fleming Buick or the Drehle Ford was traveling northward in the southbound lanes of the interstate highway. The trial court reviewed the conflicting evidence which related not to the question of who was driving the Fleming Buick, but whether it was the Fleming Buick or the Drehle Ford which was traveling in the wrong direction on the one-way highway. The trial court correctly concluded that it was within the province of the jury to weigh this conflicting testimony. Citing Henderson v. Shives, supra, the trial court held that the burden is on the applicant for a new trial to rebut the presumption that the verdict of the jury is correct.

The memorandum of the trial court in concluding stated:

“Frank F. Pepole was not an occurrence witness. It does not appear to the Court from the statement of Mr. Pepole, which the plaintiff attached as an exhibit to the amendment to her post-trial motion, that the testimony which Mr. Pepole might give would be of such conclusive character that it would probably change the result if the new trial was granted.”

I cannot conclude that this determination by the trial court was an abuse of its discretion. The newly discovered evidence was that of a person who was not an occurrence witness. It related to the question of who was driving the Fleming automobile two hours before the accident and many miles away from the scene thereof. Whether Fleming or someone else was driving his automobile was not material. The question was whether the Fleming automobile was going north or south in the southbound lane of the highway. I agree with the conclusion of the trial court that it does not appear that the testimony of Mr. Pepole would be of such conclusive character that it would probably change the result if a new trial were granted.

Applying the well-established rules of law stated above, I am of the opinion that the applicant for a new trial did not rebut the presumption that the verdict of the jury was correct; that it does not appear that the newly discovered evidence is of such conclusive character that a changed result is probable if a new trial is granted and that the court in exercising its discretion in passing upon the motion for a new trial did not therefore manifestly abuse its discretion in denying the same.

Accordingly, I am of the opinion that the decision of the trial court should be affirmed.


author: RYAN, P. J.

text:
    Lucille B. Scott, Plaintiff-Appellant, v. Charles E. Scott, Defendant-Appellee.
    Gen. No. 69-103.
    Third District.
    September 23, 1970.

      Franklin S. Wallace, of Rock Island, for appellant.
    Stuart R. Lef stein, of Rock Island, for appellee.
   RYAN, P. J.

This is an appeal by the plaintiff (wife) from that portion of a separate maintenance decree fixing the amount awarded to her for her support and for the support of the minor children. Plaintiff contends that the amount of the award is inadequate.

The plaintiff and defendant were married in 1945. Three children were born to the marriage, twin daughters who are now 17 years old and a son now 15 years old. The defendant left the marital home in March, 1965, and has not lived with his family since.

The plaintiff has an income from substitute teaching of about $1,500 per year. The defendant and his brother are the sole stockholders in a corporation, each owning 50% of the stock. The defendant is employed by the corporation as the sales manager and he is also president of the corporation. His sole source of income is from the corporation. In 1966, his gross income was $31,887.67 and his net income was about $26,500. In 1967, his gross earnings were about $37,900 and in 1968, his gross earnings were $38,703.95. No net income figures after taxes were given for the last two years mentioned.

The parties own a home, and payments on the mortgage and taxes and insurance thereon total $2,254.10 per year. Certain obligations were incurred by the wife during the separation which were adjusted by the terms of the decree, the defendant being ordered to pay a sum therefor equal to the difference between the payment which he had made to and for the benefit of the plaintiff during the separation and the amounts which the court ordered the defendant to pay to the plaintiff as alimony and child support under the provisions of the decree. Said differential was computed in the decree to amount to $2,480.

The decree awarded custody of the children to the plaintiff and ordered the defendant to pay the plaintiff the sum of $250 per month for her own support and the sum of $250 per month for the support of the three children, making a total of $500 per month cash payments to the plaintiff. The. decree also awarded to the plaintiff the use of the family home and directed that the defendant pay the house mortgage payments, house insurance, and real and personal property taxes and that the defendant make such repairs as may be necessary to remedy such defects in the premises as may be occasioned by the usual wear and tear thereon. The decree also directs the defendant to pay certain outstanding medical bills and all present and future orthodontist bills and all extraordinary medical and dental expenses for the three minor children. The decree directed the defendant to pay $3,882.50 as plaintiff’s attorney’s fees and expenses. Plaintiff has appealed from that portion of the decree which ordered the defendant to pay to her $250 per month for her own support and $250 per month for the support of the three minor children. The plaintiff also complains about the provision of the decree relating to the adjustment of the outstanding bills incurred by her during the separation.

The statute provides that in determining the amount to be allowed for support in a separate maintenance decree the court shall have reference to the condition in life of the parties at the place of residence of the wife and the circumstances of the respective cases and authorizes the court to make provisions for the education and maintenance of the children of the parties. Ill Rev Stats 1967, c 68, § 22. The wife is entitled to be maintained and supported in the manner consistent with her station in life and the husband’s ability to pay if such amount required therefor be not more than a just and equitable proportion of the joint income of the wife and the husband. Richheimer v. Richheimer, 59 Ill App 2d 354, 208 NE2d 346.

The amount of alimony and child support to be awarded in a separate maintenance action rests within the sound legal discretion of the trial court and is only subject to correction by a reviewing court where the discretion of the trial court has been improperly exercised. Canady v. Canady, 30 Ill2d 440, 197 NE2d 42; Wagner v. Wagner, 68 Ill App2d 112, 215 NE2d 474; Katauskas v. Katauskas, 67 Ill App2d 33, 213 NE2d 420.

During the course of the testimony, the plaintiff gave various estimates as to the amount of money which she needed in cash exclusive of any payments on the mortgage, taxes and insurance on the house and exclusive of extraordinary medical expenses. The plaintiff was not consistent in the testimony concerning these amounts. The lowest figure which she gave was $200 per week.

The defendant gave estimates as to the amount of money which he needed for his own support and testified as to the amount which it cost him to support his family during the last year that he lived with them.

Under the terms of the decree, the total cash payments to be made to the plaintiff for the support of herself and the minor children equal $6,000 per year. The amount of money which the defendant must pay for mortgage payments, taxes and insurance on the house equals $2,254.10 per year or a total cash payment per year, exclusive of extraordinary medical expenses and house repairs, of $8,254.10 per year; while his gross earnings in 1968 were in excess of $38,000 per year, and although we do not have evidence of the net earnings after taxes for the year 1968, the same should have been in excess of $30,000.

Although the award of the trial court for support of the wife and maintenance of the children seems quite modest in light of the earning capacity of the defendant, this court would not ordinarily be disposed to substitute its judgment for that of the trial court. However, in this case on direct examination and again on cross-examination, the defendant stated that in his opinion his wife would need the amount of $175 per week, excluding payment for extraordinary medical expenses and excluding payments on the mortgage on the house, in order to maintain herself and the three children in the standard to which they have become accustomed while they lived together as a family unit. On cross-examination, the defendant reiterated his belief that the wife would require the amount of $175 per week. An allowance of $175 per week would total $9,100 per year. The award of the court only totals $6,000 per year, which by the defendant’s own testimony would not be adequate to maintain his wife and children in their accustomed status. This would be true even if the court were considering the wife’s ability to earn approximately $1,500 per year as a substitute teacher. We feel that the award of a sum less than the amount the defendant, himself, estimated to be required was not a proper exercise of the discretion of the trial court and accordingly, the decree of the court will be reversed.

In addition to the inadequacy of the amount of cash payments, this court likewise is of the opinion that that portion of the decree pertaining to the adjustment of the outstanding bills should be likewise modified to take into consideration the difference between the amount which the defendant had paid to the plaintiff during their separation and the amount of $175 per week which the defendant testified was needed by the plaintiff.

It should be noted that the twin daughters are approaching the age of 18 and upon rehearing, the court should take into consideration any possible change in status of the defendant in relation to these daughters that may have taken place since the original decree or which may be in the immediate offing.

Accordingly, the decree of the trial court will be reversed and the cause remanded with directions to proceed pursuant to the provisions of this opinion.

Reversed and remanded.

STOUDER and ALLOY, JJ., concur.


text:
    Schlicksup Drug Company, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Harold F. Schlicksup, Jr., John F. Schlicksup and Schlick, Inc., an Illinois Corporation, Defendants-Appellants.
    Gen. No. 69-115.
    Third District.
    September 23, 1970.

      Vonachen, Cation, Lawless, Trager & Slevin, of Peoria, for appellants.
    Cassidy, Cassidy, Quinn & Lindholm, of Peoria, for appellee.
   RYAN, P. J.

The plaintiff, Schlicksup Drug Company, Inc., an Illinois Corporation, brought an action in two Counts against the defendants, Harold F. Schlicksup Jr., John F. Schlicksup and Schlick, Inc., an Illinois Corporation. Count I was an action for damages and Count II sought a permanent injunction against the defendants. The Complaint was filed March 10, 1969. A motion to dismiss both Counts I and Count II was filed. Before the motion was heard the plaintiff filed an application for a preliminary injunction on September 25, 1969, more than 6 months after the original complaint was filed. The defendants then filed an answer to Count II of the Complaint. Without hearing evidence the court granted the application for the preliminary injunction on the pleadings only. The defendants have taken an interlocutory appeal from the order of the court granting the preliminary injunction.

The injunctive relief prayed under Count II of the complaint and under the application for the preliminary injunction are both sought under the provisions of Elinois Revised Statutes, Chapter 121%, Sec 313 which provides:

“A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it in accordance with the principles of equity and upon terms that the court considers reasonable. Proof of monetary damage, loss of profits or intent to deceive is not required. . . .
“The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.”

Count II of the complaint alleges that the plaintiff, Schlicksup Drug Company, Inc. was incorporated in 1951 and has since conducted a wholesale drug business in Peoria, Illinois; that Harold Schlicksup Sr. was the founder of the company; that Schlick, Inc. was incorporated in 1966 and is engaged in the wholesale drug business in Peoria, Illinois; that from the date of its incorporation in 1951 until July, 1967, the defendant, Harold F. Schlicksup, Jr. was an officer and employee of the plaintiff corporation; that the defendant, John F. Schlicksup was an employee of the plaintiff corporation between 1963 and February 1967; that the defendants, Harold F. Schlicksup, Jr. and John F. Schlicksup are the sons of Harold F. Schlicksup Sr., one of the founders of the plaintiff corporation and the holder of a majority of the stock therein; that the two sons attempted to force their father from the control of the plaintiff corporation and to secure control thereof for themselves; that when it became apparent to said defendants that they would be unsuccessful in their endeavor, in order to damage and commercially destroy the plaintiff, the defendant, Harold, Jr. secured a corporate charter under the name of Schlick, Inc. to manufacture and merchandise drugs; that 60 days after the incorporation of the new company, the defendant, John F. Schlicksup, resigned his position with the plaintiff corporation and became owner of 50% of the stock of the new corporation. The complaint then alleges certain specific acts of alleged wrongdoing on the part of the defendant, such as circularizing the plaintiff’s customers by letters, enticing and attempting to entice certain employees of the plaintiff to leave the plaintiff’s employment and work for the defendants, instructing defendants’ salesmen to take orders for merchandise under the names of products of the plaintiffs and then to substitute upon delivery products of the defendants and contriving commercial names for products of Schlick, Inc. which would be similar to the names of plaintiff’s products and thus deceptive.

The Answer to Count II admitted the formation of the new corporation and defendants, Harold Jr. and John’s former association with the plaintiff corporation, but specifically denied the motives alleged by the plaintiff for the forming of the new corporation. The defendants specifically denied their intention to pirate the plaintiff’s employees and customers and to confront the plaintiff with unfair competition and denied the wrongful substitution of products and any misrepresentations. The application for preliminary injunction alleged that the deceptive trade practices alleged in Count II have continued and increased and the defendants threaten a continuation and enlargement of those practices against the plaintiff so that the practices “have and will continue to cause irreparable injury to the plaintiff.” The application then prayed for a preliminary injunction restraining each defendant from: “maintaining, publicizing or disseminating or in any manner using the corporate name, Schlick, Inc. to continue to mislead and confuse prospective purchasers and any other parties in interest with the name of the plaintiff, Schlicksup Drug Company, Inc.”

The application for the preliminary injunction also sought other injunctive relief which was denied and which is not pertinent to this opinion.

The injunctive order restrained the defendants “from in any manner using or presenting the term, name or words ‘Schlick, Inc.’ ”

Although not wishing to base our decision on this point, we note in passing that the injunctive relief granted is much more restrictive than the relief prayed in the application for the preliminary injunction. The general rule is that the injunctive order should not be broader in its scope than the relief that is sought in the pleadings. O’Brien v. Eustice, 298 Ill App2d 510, 19 NE2d 137; 43 CJS Injunctions, § 206(D); 21 ILP Injunctions, § 131.

The granting of an interlocutory injunction rests in the sound discretion of the chancellor. It is however a judicial discretion which is subject to review. Cassidy v. Triebel, 337 Ill App 117, 85 NE2d 461. The purpose of the rule permitting interlocutory appeals as of right (Supreme Court Rule 307), is to permit a review of the chancellor’s exercise of this discretion. Unless we find that the chancellor has abused the exercise of this discretion, the interlocutory order will not be set aside. People ex rel. Bolton v. Progressive General Ins. Co., 84 Ill App2d 109, 228 NE2d 146; Seay & Thomas, Inc. v. Kerr’s Inc., 58 Ill App2d 391, 208 NE2d 22; O’Brien v. Matual, 14 Ill App2d 173,144 NE2d 446.

For the reasons herein set forth, we are of the opinion that the chancellor did abuse the exercise of his discretion in the issuance of the preliminary injunction.

As a prerequisite to the issuance of the preliminary injunction, the plaintiff was required to establish the probability of the ultimate success on the merits of the case, as well as the immediate need for the injunction to preserve the status quo and to prevent irreparable injury to its rights or property. Where no answer has been filed, the injunction may be issued based solely on the sufficiency of the complaint, but where an answer has been filed, both the answer and the complaint, must be considered. If the answer contains denials of material allegations of the complaint, a hearing on those matters must be had before the injunction may issue. Centennial Laundry Co. v. West Side Organization, 55 Ill App2d 406, 204 NE2d 589; Professional Business Management, Inc. v. Clark, 83 Ill App2d 236, 227 NE2d 371; Bardwick Agency, Inc. v. Hale, 32 Ill App2d 75, 176 NE2d 656.

The status quo to be preserved by the preliminary injunction is the last actual, peaceable, uncontested status which preceded the controversy. The allegations of the complaint and the answer indicate that Schlick, Inc. was organized in 1966 and had been engaged in business in the manner complained of in the complaint for more than 2 years prior to the filing thereof and more than 2% years prior to the application for the preliminary injunction. Although the plaintiff contends in its brief that the defendants’ status during this period was not peaceable and uncontested, there is nothing in the pleadings to indicate to the contrary. No evidence having been offered in the trial court, the pleadings must carry the burden of sustaining the order issuing the injunction. There was no necessity for the issuance of the preliminary injunction to preserve the status quo that had existed for 2% years prior to the filing of the application for the preliminary injunction, that status quo being the existence of the corporation, Schlick, Inc. and doing business in the manner alleged in the complaint. The preliminary injunction issued by the chancellor did not preserve this status quo, but on the contrary, destroyed it.

Count II of the original complaint which sought injunctive relief did not ask for a preliminary injunction. It was not until 614 months after the filing of the complaint that the plaintiff filed an application for a preliminary injunction. This delay of itself raises a question as to the need for the preliminary injunction. Centennial Laundry Co. v. West Side Organization, supra.

The application for the preliminary injunction was based on the allegations of Count II of alleged deceptive trade practices which were denied by the defendant’s answer with the further allegations contained in the application for the preliminary injunction that said acts and practices “have, are and will continue to cause irreparable injury to the plaintiff for which plaintiff has no adequate remedy at law.” Such an allegation is a conclusion and is not an allegation of fact necessary to support the issuance of a preliminary injunction. Triangle Sign Co. v. Randolph & State Property, Inc., 16 Ill App2d 21,147 NE2d 451.

“The failure to allege facts constituting irreparable injury is of itself justification for denying a temporary injunction. A temporary injunction will not be issued on allegations in a complaint which are mere conclusions.” 21ILP Injunctions, § 126.

Chapter 121%, § 313, Ill Rev Stats, quoted above, authorizes that injunctive relief may be granted to a person likely to be damaged by a “deceptive trade practice” of another. Section 312 of chapter 121% sets forth 12 different types of conduct which constitute “deceptive trade practices.” Paragraph 8 of Count II of the complaint alleges particular deceptive trade practices which the plaintiff charges the defendants with committing. The answer to Count II denies each of these allegations, thereby creating issues of fact as to whether the conduct of the defendants as alleged in the complaint constitutes deceptive trade practices under section 312, chapter 121%. In paragraph 9 of Count II, plaintiff alleges that as a result of the acts of the defendants they have “caused likelihood of confusion or misunderstanding” and engaged in other conduct “creating a likelihood of confusion and misunderstanding.” The answer to Count II denies the allegations of paragraph 9. Thus, the question of whether the alleged conduct of the defendants caused or created a “likelihood of confusion and misunderstanding” became a disputed question of fact. Two of the types of conduct listed in section 312 as constituting deceptive trade practices, are (2) “causes likelihood of confusion or misunderstanding. . . .” and (12) “engages in any other conduct which similarly creates a likelihood of confusion or misunderstanding.” It is the conduct described in section 312 as constituting deceptive trade practices upon which the plaintiff relies for the issuance of the injunctive relief under section 313. All of the allegations relating to these deceptive trade practices are denied in the answer. Under such circumstances, it was improper for the chancellor to issue a preliminary injunction without conducting a hearing on the controverted issues. Professional Business Management v. Clark, supra; Centennial Laundry Co. v. West Side Organization, supra; Bardwick Agency v. Hale, supra; McFetridge v. First Commercial Bank, 28 Ill App 2d 512,171 NE2d 791.

Plaintiff contends that this is a special statutory remedy which it is pursuing and that the usual rules with regard to the issuance of preliminary injunctions do not apply. Plaintiff contends that if the chancellor believed that the conduct of the plaintiffs alleged in the complaint created a likelihood of misunderstanding and confusion, he was warranted in issuing the preliminary injunction. We do not agree with this contention. Since the question of creating a likelihood of misunderstanding and confusion under the pleadings has become a question of fact, the chancellor had no authority to grant a preliminary injunction without a hearing on these disputed fact questions. Section 313 does not specifically authorize the issuance of a preliminary injunction but provides that the injunctive relief afforded thereunder may be granted “in accordance with the principles of equity.” We hold that the principles of equity require that the customary rules governing the issuance of preliminary or temporary injunctions set forth above must be followed in the issuance of a preliminary injunction under section 313, chapter 121%, Ill Rev Stats.

For the above reasons, we hold that the issuance of the preliminary injunction by the chancellor under these circumstances constituted an abuse of discretion and requires that his order be reversed and the preliminary injunction dissolved.

Reversed and remanded.

STOUDER and ALLOY, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Elmhurst-Chicago Stone Co., a Foreign Corporation, Plaintiff-Appellee, v. The County of Kane, a Municipal Corporation of the State of Illinois, Defendant-Appellant, and Genevieve Seraphin, et al., Intervenors-Defendants-Appellants.
    Gen. No. 69-156.
    Second District.
    September 23, 1970.

      William R Ketcham, State’s Attorney of Kane County, of Elgin, Benn E. G. Eilert, Assistant State’s Attorney, of Geneva, and Smith and McCracken, of Geneva, for appellants.
    Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The defendant County and defendant property owners, as intervenors, appeal from the granting of a judgment which declared that plaintiff may use its property for the mining of gravel, sand and stone, including the erection, installation and use of necessary structures and equipment in that connection. The court found that the refusal of the County to issue a special permit for the use sought, and the pertinent zoning ordinance as applied to plaintiff’s property, were invalid. The County was also ordered to issue the special-use permit.

Defendants attack the judgment order on the basis that it is not sustained by the manifest weight of the evidence. Plaintiff urges the sufficiency of the evidence to support the judgment, and additionally argues that the denial of the special-use permit was an unconstitutional deprivation of plaintiff’s rights which the court properly recognized in ordering the issuance of the permit.

The Elmhurst-Chicago Stone Co. purchased approximately 400 acres of land in Kaneville Township in southwestern Kane County in the years 1963 and 1964. The original contract to purchase the property was contingent upon the owners being able to obtain a special-use permit from the County of Kane so that the purchasers could mine sand and gravel on the premises. This application was denied by the Zoning Board of Appeals of Kane County and by the Board of Supervisors of the County. Subsequently, the plaintiff company purchased the property, zoned in the “F-Farming” classification, paying $600 per acre for one parcel and $700 per acre for a second.

The property is located on both sides of the concrete county road, known as Main Street Road, which lies in a direct easterly-westerly direction, with Kaneville, Illinois, an unincorporated village on the west, and Batavia, Illinois, on the east. Main Street Road is the only road leading in an easterly direction from Kaneville, about two miles, to Illinois State Route 47, and Route 47 runs northerly-southerly seven to ten miles west of the main cities in the county, namely, Batavia, Geneva, St. Charles, Aurora and Elgin.

On January 21, 1966, the Company filed a petition with the County for a special-use permit under the “F-Farming” zoning classification to mine sand and gravel on the entire tract. The Zoning Board of Appeals recommended denial of the request and the County Board of Supervisors accepted the recommendation and denied the request for the special-use permit. This Declaratory Judgment suit followed.

Kaneville Township is a rural township. The soil on the subject property is characterized as upland prairie soil with a base of sand and gravel.

Plaintiff’s position that the court properly ordered the issuance of the special-use permit, must first be considered. Plaintiff suggests in its brief that “the instant case is not one of a question of classification. The subject property is in a zoning classification which permits gravel mining”; that the county’s right to exercise the special-use technique must be carefully circumscribed, and that in the absence of standards in the ordinance, the ad hoc determination by the legislative body presents an issue of “spot zoning.”

To resolve the issues in this case, a review of the direction taken in the cases in Illinois which have considered the special-use technique in terms of judicial review is in order.

Kotrich v. The County of DuPage, 19 I112d 181, 166 NE2d 601 (1960) involved the validity of a special use (a private country club in a single-family residential area) and such provisions were upheld. The court noted that the technique is a method for encompassing infrequent types of land use, potentially incompatible with uses usually allowed within customary categories, which may be desirable in a given case. The court stated, on page 185:

“It is true that the procedural restrictions prescribed for amendments and variations, as well as the standards prescribed for variations, evidence a legislative plan to guarantee property owners some protection from piecemeal changes in the general zoning scheme by ad hoc determinations with respect to particular pieces of property. And since granting a special use permit involves an ad hoc judgment which may affect surrounding property owners in the same way as a variation or an amendment, unlimited application of the special use technique to land uses that can readily be accommodated within the customary categories would undermine the protection contemplated by the statute. But unlimited application of the special use technique is not required to meet the problem it was designed to solve. Only those infrequent uses which are beneficial, but potentially inconsistent with normal uses in the various zones, need be included.”

In Hartung v. Village of Skokie, 22 Ill2d 485, 177 NE2d 328 (1961), the special-use technique was further defined. The trial court declaratory judgment was upheld. The decree declared the village zoning ordinance unconstitutional, as applied to the proposed motel in a commercial area, and directed that the property owner had the right to use the property for the requested purpose. The court stated, at page 498:

“. . . our approval of the special use technique does not mean that a determination to permit or to deny a special use is beyond judicial review.
“Where, as here, the application for a special use has been rejected, plaintiffs have the right to challenge the constitutionality of the underlying zoning classification.”

This principle was followed in Ward v. Village of Skokie, 26 Ill2d 415,186 NE2d 529 (1962).

The application of basic rules governing the underlying zoning was also the approach taken in Camboni’s, Inc. v. DuPage County, 26 Ill2d 427, 187 NE2d 212 (1962), to affirm the action of the zoning board in its denial of a permit for a trailer park in a commercial district in which the ordinance permitted such use only as a special use.

In Lazarus v. Village of Northbrook, 31 Ill2d 146, 199 NE2d 797 (1964), the Supreme Court upheld the judgment of the trial court which had declared invalid the denial of a special use permit to build a hospital in a particular area. The court noted that although hospitals were provided for only as special uses in a separate provision of the Northbrook Zoning Ordinance, rather than being categorized in any zoning classification, (pages 151-152)

“Nevertheless, the denial of a special-use permit must bear a ‘real and substantial relation to the public health, safety, morals or general welfare.’ (Columbus Park Cong. v. Board of Appeals of Chicago, 25 Ill2d 65, 71.)”

See also Pioneer Trust & Savings Bank v. McHenry County, 41 Ill2d 77, 241 NE2d 454 (1968).

It is to be noted that in the Kotrich, Ward, Camboni and Lazarus cases there were specially concurring or dissenting opinions which urged that the special-use technique was invalid in the absence of an ordinance which set forth facts and conditions, i. e., standards for the granting or refusal of a special-use permit. (In addition, these opinions also challenged the enabling power to enact special-use ordinances, which challenge now appears to have been settled and has not been urged here.)

From an analysis of the above authorities, we conclude that no particular standards in the exercise of its powers by the legislative body (as here) are required to validate a special-use ordinance. As explained in Kotrich v. The County of DuPage, 19 Ill2d 181, 187, 166 NE 2d 601 it is contemplated that the legislative body will “weigh the desirability of the proposed use against its potential adverse impact,” and that with reference to the action of a legislative body “precise standards to govern its determination are not required.”

Whether the ordinance includes a special type of use as contemplated in a particular zoning classification or sets up a special category for such use does not appear to be a material factor. (Cf. Kotrich, supra, and Lazarus, supra.)

In this view, the intended purpose of the argument stated in plaintiff’s brief is not entirely clear:

“The Plaintiff has not sought a change of classification. The property is in the right category — F-District Farming. One of the recognized uses in that category, of which the Plaintiff was aware when he purchased the property, was the right to mine gravel, subject to the issuance of a special use permit. The Plaintiff had the right to expect that a permit would not be unreasonably or unlawfully withheld. If that has been done, the Plaintiff should not be estopped from seeking judicial relief.”

In a declaratory judgment proceeding of this nature, as opposed to administrative review, plaintiff may not purely seek judicial review from an adverse legislative determination which denies a special use permit, without directly attacking the constitutionality of the underlying zoning classification as applied to his property. See Klein v. Village of LaGrange, 93 Ill App2d 318, 325, 236 NE2d 351 (1968). Judicial review of-the denial of the special use permit is available in this action only by a challenge to the constitutionality of the underlying zoning classification. Hartung v. Village of Skokie, 22 Ill2d 485, 498, 177 NE2d 328; Pioneer Trust & Savings Bank v. McHenry County, supra, at page 84.

However, from a review of the pleadings and the evidence, we believe that the plaintiff has essentially challenged the underlying zoning. We, therefore, approach the record from this standpoint and apply the traditional tests which govern review of zoning ordinances. These have been often stated. See Pioneer Trust & Savings Bank v. McHenry County, supra, at page 85; Hedrich v. Kane County, 117 Ill App2d 169, 174, 253 NE2d 566 (1969); Whittingham v. Village of Downers Grove, 101 Ill App2d 166, 172, 173, 242 NE2d 460 (1968); Schiffer v. Village of Wilmette, 105 Ill App2d 80, 245 NE2d 143 (1969).

The evidence as to the character of the surrounding neighborhood included testimony on behalf of the plaintiff that there were at least five gravel pits in the vicinity of the subject property. Most of them were small operations. They have been operating for many years (with the exception of the Kane County pit), and are in various stages of depletion. There has been no attempt at reclamation of the land upon which these pits are located after mining. They are in a hilly area rather than flat, as is the subject property.

The general area is characterized as agriculture with F-Farming zoning classification. There are a few scattered residences or farm homes over a few miles to the east. Gravel mining and farm operations are to the north and south. To the west a distance of a quarter of a mile is the easterly limits of the unincorporated village of Kaneville with a population of 250-300 people.

Of the intervenors who testified, the distance from their residences to the nearest point of the subject property were:

Robert Landis % of a mile

John Bjornson 1300 feet to the east

John Steven % of a mile

Robert Temple % of a mile

No one lived any closer.

There is little industry in the area, but the defendants’ witness, James P. McMahon, an industrial realtor for 21 years, said that the next jumping step for industry in the Chicago area will be the Fox River Valley. He testified that the lake or lakes created would increase the value of the surrounding property for industrial use and provide good recreational facilities.

Charles Hammersmith, an officer of the plaintiff corporation, testified that no dynamite or blasting would be employed as it is never needed in the mining of sand and gravel — only in limestone quarries.

Robert Hammersmith, Secretary and Treasurer of the company, testified that he was in charge of operation, and that, if granted the special use, they would follow the new and modern “placer” method of mining. He said in that operation the top soil is stripped off and the sand and gravel dug out, and lakes are created. The top soil is then replaced, leveled off and used for farming. He estimated that within six months to a year the land that has been mined would be returned to farming. The defendants’ expert witness told the trial judge that this type of mining was an improvement over the method used in the surrounding operations. The plaintiff introduced into evidence photographs showing the reclamation to farming land following the employment of the new placer method of mining.

There was a difference of opinion as to the extent, if any, to which the value of the surrounding properties would be diminished by the proposed use. The defendants’ witness, a real estate appraiser, testified that there could be a depreciation to the residences to the east of the subject property lying along Main Street Road and Merrill because of the proposed mining operation of from 10% to 20%. He qualified these percentages as being dependent upon the number of trucks that would be brought to the area, and whether there would be any dirt, dust or noise in the area.

As to the property to the west, he felt that the percentages subject to the same possibilities, would be about one-half, and he saw very little disturbance, if any, to the area to the north and south.

The only testimony about dust, or noise, in a mining operation, such as is contemplated here, was from the Superintendent of the plaintiff’s Warrenville plant. He said one person had complained of dust from trucks, and that this was corrected by oiling the road. He testified that he has never had a complaint about noise. The defendants did not refute this testimony, even though they had the plant under surveillance by two interveners for more than nine consecutive hours on a busy business day. These witnesses testified but did not mention dust or noise.

The defendants’ witness also testified that the proposed method of mining was a decided improvement over the method employed at the Michels and Larson pits.

Lyle Lawson, Chairman of the Kane County Planning and Zoning Committee of the Board of Supervisors since 1949, and the owner of 200 acres of land in the immediate area, told the court that gravel pits — five of which he can see from his own farm home, have not hindered the increase in value of his land. He felt that there would be a definite trend and population growth away from Du Page County and Chicago to this area, both residential and industrial.

As to the value of this operation to the plaintiff, there is no dispute but that it would be highly profitable.

It is the plaintiff’s position that early reclamation of mined out areas and its return to agriculture or other permitted uses is assured in the dictate of economy. In addition, such reclamation is required by chapter 93, par 180.1, Ill Rev Stats 1969, “The Surface-Mined Land Reclamation Act.”

Just as no one of the factors involved controls the right or wrong of zoning, neither do the various personal interests determine the result. Serious consideration must be given the public generally. The plaintiff contends that there is a great shortage of sand and gravel in northern Illinois, including this area. It is agreed that there is no substitute for sand and gravel in the making of concrete — an integral and necessary part of most all construction. Unlike crops in the field, these minerals do not replace themselves.

Testimony from both plaintiff and defendants relate to this point. The testimony is predominantly that there is either now, or will be in the future, need to have this sand and gravel removed for construction needs of the public. Defendants’ witness, Leon Larson, who is in the sand and gravel business, told the court that it would be bad planning for the community to allow an area with substantial deposits of sand and gravel to be permitted to be used for a subdivision or for industrial use, and make the sand and gravel inaccessible.

While these tests are as applicable here as they are to any rezoning issue, each case stands on its own facts and circumstances. An important uniqueness is found in this case that is rarely present in others. Generally, the denial of a reclassification of an area to permit a commercial or other type of operation to be established on the premises does not prevent the same activity at another location in the vicinity. Here, this is not so. It is undisputed that this land contains an abundance of valuable sand and gravel. If its removal is denied, then the aggregate will be lost to both the owner and the public. This uniqueness must be considered in applying the established factors in determining if the ordinance is so clearly arbitrary and unreasonable as to result in confiscation in violation of constitutional rights of the owner.

Thornton K. Ware, the County Planner, gave his opinion that it would be wrong to permit urban growth around this area until the sand and gravel was removed. It was argued by the plaintiff that if, as claimed by the defendants, the present few residences in the immediate area of the subject property would be disturbed by the proposed operation, it is better to do it now than later when the area is more densely populated.

As to many factors, the testimony on both sides was the same, while in some there was a difference of opinion. The fact that experts may differ in their view does not require a finding that the ordinance is debatable. Schiffer v. Village of Wilmette, supra, and Hartung v. Village of Skokie, supra.

The trial judge in his memorandum opinion found that there is now and will be a great need for mineral aggregates, and that the loss of the sand and gravel on the subject property would be detrimental to the common good of the entire area, and that it was the opinion of the county’s own zoning expert that a special use should have been granted here. The trial judge heard and saw the witnesses testify, and concluded that the plaintiff had sustained its burden of proving the Board’s action in denying the special use permit to have been arbitrary and unreasonable.

In the light of all of the factors to be considered and the interest of the public generally, we are of the opinion that the action of the Board on the petition was arbitrary and unreasonable and that the plaintiff has sustained its burden.

We affirm the trial court’s decision. The ordinance as applied to the proposed use of the subject property is unconstitutional and the court properly ordered the issuance of a special use permit.

Subsequent to oral argument, plaintiff filed a motion for leave to amend the record or in the alternative to remand the cause to the trial court for amendment of the record. Attached to the motion was a certified copy of minutes of the Kane County Zoning Board of Appeals disclosing the granting of a special use permit to Feltes Sand and Gravel Company on May 12, 1970, for an operation substantially similar to plaintiff’s proposed use in this case on a similarly large tract of land in reasonably close proximity to the area here involved. We have taken the motion and objections thereto with the case. In view of the opinion we have reached, we deny the motion without ruling upon its merits.

Affirmed.

ABRAHAMSON and MORAN, JJ., concur.


author: JUSTICE SMITH.

text:
    Victor Hull, Administrator De Bonis Non of the Estate of Daisy F. Lease, Deceased, Plaintiff-Appellant, v. Illinois State Bank of Quincy, as Executor of the Purported Last Will and Testament of Alice C. Lease, Deceased, and Successor Trustee of the Trust Created by the Purported Last Will and Testament of Alice C. Lease, Deceased, Department of Conservation of the State of Illinois, St. Joseph’s Hospital for the Chronically Ill, Holy Redeemer Church, Located in Barry, Illinois, Alva A. Lewton, Ferne S. Hull, Robert E. Lease, Lois Lewton and Daisy F. Lease, an Incompetent.
    Gen. No. 11,173.
    Fourth District.
    September 24, 1970.
    Owen D. Lierman, of Quincy, for appellant;
    Bier and Bier, of Quincy, for appellees.
   Opinion by

JUSTICE SMITH.

Not to be published in full.


author: CRAVEN, P. J.,

text:
    Betty J. Galiher, Plaintiff-Appellant, v. Ralph L. Spates, Defendant, Kenilworth Insurance Company, a Corporation, Defendant-Appellee.
    Gen. No. 11,225.
    Fourth District.
    September 24, 1970.

      Philip C. Zimmerly and James M. Langan, of Champaign, for appellant.
    Hatch, Corazza, Baker & Jensen, of Champaign (Harold L. Jensen, of counsel), for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Champaign County granting a motion for summary judgment by defendant Kenilworth Insurance Company.

Action was to recover damages for negligence of defendant Ralph L. Spates in driving his automobile. Count I of the complaint was against Spates. Count II of the complaint was against defendant Kenilworth Insurance Company, alleging that Spates was an uninsured motorist and that defendant Kenilworth Insurance Company, insurer of plaintiff, Betty J. Galiher, failed to provide plaintiff uninsured motorist coverage as required by statute.

The complaint alleged that plaintiff purchased a policy of automobile insurance from Kenilworth Insurance Company through its agent, Best Insurance Agency, of Decatur, Illinois. After several amendments to the complaint and a motion for summary judgment by plaintiff, a motion for summary judgment by Kenilworth alleging that Best was a broker and, therefore, as a matter of law was the agent of the insured and not of the insurer, was allowed. The trial court found no just cause to delay appeal, and this appeal seeks reversal of the order of summary judgment for defendant Kenilworth Insurance Company.

Plaintiff contends that whether a broker of insurance is acting as agent of the company or of the insured is a question of fact, and that the applicable statute requiring an automobile-liability company to provide uninsured motorist coverage to an applicant unless the applicant rejects it makes the broker an agent of the company. Further, plaintiff contends that an admission by defendant in a superseded answer that Best was its agent is admissible as an admission and prevents a finding, as a matter of law, that Best was an agent of the insured.

An answer filed by defendant Kenilworth Insurance Company, in paragraphs 9 and 10, admitted Best Insurance Agency was its agent in selling the policy. Thereafter, over objection, defendant was permitted to file an amended answer denying the agency. A second amended answer was filed by Kenilworth, amending paragraph 13 of its amended answer to set up as an affirmative defense that Best was a broker and as such a representative of the plaintiff. Plaintiff’s motion to strike this defense was denied.

Plaintiff filed a motion for summary judgment, accompanied by an affidavit of plaintiff and the discovery deposition of plaintiff and of Jack L. Holt, an employee of Best. The affidavit of plaintiff stated that at no time did Jack Holt, or any employee of Best, tell her that the Best Insurance Agency was acting on her behalf, but she understood that Best was an agent for the company with which her insurance was being placed. This motion was denied.

Defendant filed a motion for summary judgment, accompanied by the discovery deposition of Robert A. Best of Best Insurance Agency. Plaintiff filed a reply denying the allegations of the affirmative defense in paragraph 13 of the second amended answer. The trial court allowed defendant’s motion for summary judgment, filing a memorandum in which it found, as a matter of law, that Best Insurance Agency was a broker and as such acted as agent of plaintiff and not of defendant.

An insurance broker is one who procures insurance and acts as middleman between the insured and the insurer, and solicits insurance business from the public under no employment from any special company, but, having secured an order, places the insurance with the company selected by the insured, or, in the absence of any selection by him, with the company selected by such broker. 22 ILP, Insurance, § 71, at 102. Insurance agents have a fixed and permanent relation to the companies they represent and have certain duties and allegiances to such companies. Whether a person is an agent or a broker is determined by his acts or what he does. Tri-City Transp. Co. v. Bituminous Cas. Corp., 311 Ill App 610, 37 NE2d 441 (4th Dist 1941). While generally the question of whether an insurance broker is the agent of. the insured or insurer is one of fact, where the evidence shows clearly he is the agent of the insured, it becomes a matter of law.

The affidavit and depositions in this case show that plaintiff applied to Best Insurance Agency for the automobile-insurance policy; that Best could have applied to several companies for it, although it was an assigned risk coverage. Best held an insurance broker’s license from the State of Elinois. Although Best had an agent’s license for certain companies, it did not have one for Kenilworth Insurance Company. The application was required to be accepted by Kenilworth. Best had no authority to bind Kenilworth as to acceptance of the coverage. These facts wholly failed to show any principal-agency relationship between Kenilworth and Best, but showed Best, as a broker, was acting as agent for plaintiff.

The prior admission of agency in defendant’s answer is not a sufficient factor to create an issue of fact. The prior answer was not verified and, being superseded by an amended answer, does not have the effect of an admission. Macabee v. Miller, 316 Ill App 157, 44 NE2d 341 (1st Dist 1942). The absence of a verification is a factor distinguishing People ex rel. Nelson v. Central Mfg. Dist. Bank, 306 Ill App 15, 28 NE2d 154 (1st Dist 1940).

We find nothing in the language of the Insurance Code of Illinois in the provisions requiring insurance companies writing automobile-liability insurance to include uninsured motorist coverage (Ill Rev Stats 1963, c 73, § 755a) which changes the basic relationship of the insured and insurer, or the usual rules governing the relationship of broker or agent. The fact that the Code permitted the named-insured to reject such coverage on policies delivered, renewed or issued for delivery prior to July 1, 1967 (which applied in the instant case), did not change the basic relationship nor make Best the agent of Kenilworth rather than a broker.

The plaintiff rejected the uninsured motorist coverage and Kenilworth received the application in such form. This action of the plaintiff could not have made Best the agent of Kenilworth. Kenilworth could act only upon the application as it was submitted with plaintiff’s rejection of uninsured motorist coverage being an integral part of the application.

No genuine issue of material fact existed since, as a matter of law, Best Insurance Agency was not an agent of Kenilworth Insurance Company. The trial court correctly entered an order granting summary judgment.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.


author: CRAVEN, PRESIDING JUSTICE,

text:
    Dorothy V. Fox, Plaintiff-Appellant, v. Robert C. Fox, Defendant-Appellee.
    Gen. No. 11,232.
    Fourth District.
    September 24, 1970.

      Greaves and Phipps, of Champaign (John T. Phipps, of counsel), for appellant.
    Rosenberg, Rosenberg, Bickes & Johnson, of Decatur (Wayne L. Bickes, of counsel), for appellee.
   CRAVEN, PRESIDING JUSTICE,

delivered the opinion of the court.

Plaintiff, Dorothy V. Fox, filed a separate maintenance action April 4, 1968. A motion to stay was filed by defendant, Robert C. Fox, based upon a prior action for divorce filed by him in another county. On September 25, 1968, plaintiff filed an amended complaint, defendant filed an answer, and on the same day the court heard a default divorce and entered a decree for divorce, finding defendant guilty of extreme and repeated physical and mental cruelty.

The divorce decree reserved for further determination the questions of alimony, alimony in gross, division of the personal property, and determination of the indebtedness and financial obligations of the parties, suit money, solicitor’s fees and costs.

On the same date (September 25, 1968), a supplemental decree was entered which confirmed an agreement of the parties that the marital residence be sold to a third party for $47,500; that defendant quitclaim his interest therein to the purchasers; that the clerk of the court receive from the purchasers the sum of $5,000 as part payment and hold that sum for further determination by the court of its ownership and distribution; and that the remaining purchase price be paid to plaintiff and her sister, Clora Van Deventer, as they theretofore agreed.

Thereafter, plaintiff’s attorney withdrew as her counsel and other counsel were substituted. Hearings were held on the reserved matters and a further order was entered on May 20, 1969. This order found that under the circumstances of the parties with reference to plaintiff’s needs and defendant’s ability to pay, and in view of their respective ages, health, assets, incomes, stations in life, conduct and debts, no alimony should be awarded plaintiff. It further found that a deed to the marital residence executed by defendant in 1954 was void; that the $5,000 fund held in escrow by the clerk represented defendant’s share of the sale of the real and personal property of the parties; and that the debts and obligations of the parties incurred during the marriage had been paid out of the proceeds of jointly-owned property of the parties. The order barred plaintiff of alimony, attorneys’ fees, costs and suit money; ordered the clerk to pay defendant the $5,000; ordered defendant to satisfy any federal income tax liability of the parties for 1966; and ordered that plaintiff not be reimbursed by defendánt on account of certain notes totaling $8,900 on which both were obligated but which plaintiff had paid by a new note signed only by her.

Plaintiff appeals from the order of May 20,1969, which passed on the reserved matters, contending the order was in error in (1) barring alimony since the divorce found her without fault, (2) declaring the deed void and declaring that the $5,000 held by the clerk represented defendant’s share of sale of the residence property, and (3) denying plaintiff reimbursement of the former indebtedness paid by plaintiff.

Among other matters, the evidence here shows that at the time of the final hearings, the parties were aged 51 and 50 years, respectively; had been married since 1941; had three adult sons; at the time of separation owned a house sold under the supplemental decree for $47,500, from which were paid mortgages of $20,000; had a large quantity of household furniture; plaintiff owned a farm with improvements, which she had inherited, worth at least $200,000 free of encumbrances; defendant was a commission salesman for a clothing firm, traveling 32 to 35 weeks per year and paid on straight commission with a draw of $1,200 per month; the husband’s gross during 1968 was $19,135, with a net before taxes of $10,587.81 and $8,038.82 after taxes; his 1968 income was higher than any previous year. At the time of the later hearings defendant had remarried and purchased a house in joint tenancy with his second wife for $21,000, all funds for which had been borrowed. Plaintiff and defendant had a contingent liability for 1966 federal income taxes which was in dispute, and defendant owed $3,000 in unpaid 1968 federal income taxes. For the years 1966, 1967, and 1968, plaintiff’s farm grossed her $12,000, $10,000 and $8,700, respectively, with a net of $7,600, $6,200, and $4,800, respectively.

The evidence further shows that at the time of the hearing defendant had approximately $100 in cash; that plaintiff had $8,000 in her checking account after the separation, and that she subsequently received $6,800 from her farm, as well as the $21,000 from sale of the marital residence. After this case was filed and before entry of any order, plaintiff sold the family home furnishings. Some of it she sold to her lawyer. She testified she sold an $8,000 ballroom grand piano for $600, and that she received about $3,000 for the furniture she sold. At the time of the hearing, plaintiff had $14,000 in cash, a new Oldsmobile “98” automobile, free of lien, and a newly furnished apartment. After the separation, she gave a mink stole to her cleaning lady.

In 1954, the parties owned their home in joint tenancy. They had been separated then about nine months. The husband, at that time, signed a quitclaim deed to the home property to a sister of plaintiff. This deed was placed in a file by the plaintiff’s attorney, where it was kept for 14 years. After the suit was started the attorney recorded the deed. Defendant consulted no attorney of his own on this matter but on one occasion when he inquired of plaintiff’s attorney as to the deed he was told by the attorney, “Don’t worry about it. It’s all gone.” After the deed was executed, the parties reconciled. During the next fourteen years they made several mortgages on the property and represented they were joint owners. Real estate taxes were billed to them jointly. They occupied the property for approximately thirteen years after the deed was signed with no claim to the property being made by plaintiff’s sister.

Prior to entry of the divorce decree, the plaintiff tried to sell the house but the purchasers refused to accept title from the sister. The parties thereafter agreed to the plan of sale of the residence set forth in the supplemental decree.

Following sale of the house, plaintiff made a new note, signed by her only, to pay off two earlier notes totaling $8,900, signed by both. There is dispute in the evidence as to what use was made of the moneys received on the original notes. However, it appears this was used to pay joint and family expenses. At the time of giving the new note, the banks holding the original notes had not been pressing for payment.

Plaintiff contends that the order of May 20, 1969, barring her of alimony is erroneous as “ ‘a wife granted a divorce for the misconduct of the husband is entitled to alimony, in the absence of special circumstances, .... (Citing cases.)’ [Savich v. Savich, 12 Ill2d 454, 459, 147 NE2d 85, 88 (1958)],” relying on Doody v. Doody, 28 Ill 2d 191, 194, 190 NE2d 734, 736 (1963) and Savich v. Savich, 12 Ill2d 454, 459, 147 NE2d 85, 88 (1958). In the Doody and Savich cases, the awards did not consider that the property was held in joint tenancy so that the amount ordered paid to the wife was inadequate in failing to consider this fact. The circumstances in the instant case differ from those cases. Plaintiff further asserts that alimony is an absolute right, and that the pleadings fail to allege any special circumstances as a basis for the court to consider barring plaintiff of alimony.

We cannot agree with plaintiff that alimony is mandatory where a wife is granted a divorce for misconduct of the husband. Section 18 of the Divorce Act (Ill Rev Stats 1969, c 40, par 19), provides that a court “. . . may make such order touching the alimony . . . as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just . . . .” It also provides that “The court may order the husband or wife, as the case may be, to pay to the other party such sum of money, or convey to the party such real or personal property, payable or to be conveyed either in gross or by installments as settlement in lieu of alimony, as the court deems equitable. . . .”

The statute clearly contemplates that the circumstances of the parties and the nature of the case shall be considered by the court in determining whether alimony will or will not be awarded, or whether a sum of money or conveyance of property, real or personal, as settlement in lieu of alimony will be ordered. Alimony is not a prize to be awarded the winner of the divorce contest. Rather, the statutory tests are what the court in its discretion determines is “fit, reasonable and just” and “equitable.” These tests are rooted in equitable principals. Nelson, Divorce and Annulment, 2nd ed, § 14.-26; 24 Am Jur2d, Divorce and Separation, § 601. Thus, alimony was denied the successful spouse granted divorce in Decker v. Decker, 279 Ill 300, 116 NE 688 (1917) and Mirza v. Mirza, 318 Ill App 640, 48 NE2d 746 (1st Dist 1943) (Abst).

In the instant case, the court entered orders in accordance with an agreement entered into by the parties whereby the marital residence was sold for $47,500, and $5,000 of the sale proceeds was paid defendant and the net balance paid plaintiff. No special equities of plaintiff in this real property were alleged, proved or determined. While the court reserved the questions regarding the division of personal property and all other questions touching “financial obligations . . . alimony and/or alimony in gross, . . . solicitor’s fees, . . .” the large cash sum ordered to be paid the wife, when considered with the circumstances of the parties, must have been ordered as settlement in lieu of alimony.

Where an award of alimony in gross or property in lieu of alimony is made to the wife, the husband thereby is relieved of all future claim for alimony. Dmitroca v. Dmitroca, 79 Ill App2d 220, 223 NE2d 545 (2nd Dist 1967); Still v. Still, 96 Ill App2d 320, 238 NE2d 613 (4th Dist 1968).

We must regard the substance of the order. While it is better practice when an order of payment of money or of conveyance of property is made as settlement in lieu of alimony to state in the decree that the award is in lieu of alimony, we deem the order here to have been such a settlement, well within the discretion of the trial court.

In its order of May 20, 1969, the court denied alimony based upon the circumstances of the parties as recited in the trial court’s findings. The evidence fully justifies the findings and order. This is more particularly the case with the entry of the order to pay plaintiff the lump net proceeds of sale of the residence.

In awarding defendant the $5,000 fund held by the clerk which arose from sale of the residence, the trial court was determining the respective rights of the parties in the entire real and personal property owned as a part of their marital relation, as well as the sum paid plaintiff as settlement in lieu of alimony. The wife already had converted to her sole use the proceeds of the personal property which she admitted to be $3,000, but which the evidence shows to be of greater value. We find no requirement of passing upon the question of validity of delivery of the deed to the residence property. However, the conduct of the parties with reference to the property, payment of taxes, and mortgaging of the property over a period of some thirteen years after execution of the deed were matters which the trial court properly must have considered in determining the respective rights of the parties. He did not abuse his discretion or commit any error in the light of the circumstances and facts here in evidence.

Any formal defects in pleadings regarding the deed and the conduct of the parties as to the real estate have been waived by plaintiff as she presented evidence in the trial on the matters she now complains were not alleged. Likewise, the defendant presented evidence on these matters without objection by plaintiff that this raised issues outside the scope of the pleadings.

Further, no, error intervened by the trial court’s ordering that defendant not be required to reimburse plaintiff on the note she gave to pay off the earlier notes given for joint obligations. This was a part of the overall settlement of the marital affairs of the parties. Again reverting to the statutory test of what was “fit, reasonable and just” and settlement “as the court deems equitable” in a divorce action, the trial court acted within the exercise of sound discretion. The order is affirmed.

Order affirmed.

SMITH and TRAPP, JJ., concur.