author: MORAN, P. J. GOLDENHERSH, J.,

text:
    Mid-West Emery Freight System, Inc., a Corporation, and Aid Association for Lutherans, Appleton, Wisconsin, Plaintiffs-Appellees, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 51,823.
    First District.
    January 23, 1970.
    Rehearing denied March 19, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellant.
    Haskins, Maguire & Haskins, of Chicago (Robert E. Haskins and C. W. Eckert, of counsel), for Mid-West Emery Freight System, Inc., plaintiff-appellee.
   MORAN, P. J.

Plaintiffs filed a declaratory judgment action to change the zoning classification of plaintiffs’ property from its present Ml-1 Restricted Manufacturing classification to a C4 Motor Freight Terminal District, so as to permit the building of a refrigerated storage plant with loading docks. Fifty-four adjacent single-family residential owners were granted leave to intervene. The trial court entered judgment for the plaintiffs, finding that the existing zoning classification unreasonably restricted plaintiffs in the use of their property and was, therefore, void and unenforceable insofar as it prohibited plaintiffs from proceeding with their plans. The city appeals.

The subject property, an irregularly shaped area of approximately fourteen and. one-half acres, is located at the southwest corner of 70th Street and Pulaski Road. On the north it extends west along 70th Street, which ends one block west of Pulaski, then further due west to a point 725 feet west of Pulaski. Including some unimproved land at the west end of the lot, the depth of the lot at its deepest is 936 feet from Pulaski. On its eastern boundary it extends two blocks north and south along the west side of Pulaski Road, past 70th Place, which ends on the east side of Pulaski, to a point opposite 71st Street which also ends on the east side of Pulaski. From this point, the southern boundary runs west to the easterly right-of-way of the Belt Line Railroad, and then along the right-of-way, in a northwesterly direction through unimproved land to the northwest corner of the property described above.

The eastern portion of the property is improved with a one-story brick office and garage-type building, approximately 125 X 200 feet. The western portion is raw land and is the area sought to be improved. All but the extreme western portion is enclosed with a six-foot high cyclone fence.

Immediately to the north of the subject property is an area zoned R2 Single-Family Residence, but the frontage along Pulaski is zoned Cl-1 Restricted Commercial. This is a well-developed residential area and extends from Mid-West Emery’s plant to 63rd Street on the north and from Pulaski on the east to Cicero on the west. The south boundary of this residential development is irregular due to the northwesterly curve in the Belt Line Railroad, and the industry located along its right-of-way. The most immediately affected residences are located in a three-block area between 69th and 70th Streets and from the alley west of Pulaski, across Komensky and Karlov, to Kedvale, three blocks to the west. These are lightly traveled residential streets; however, Pulaski is a heavily traveled, four-lane through street. One twelve-hour traffic count exceeded 22,000 vehicles. This area was first subdivided in 1916, but failed to develop until after World War II. Until 1941 there were only five frame houses in the area. At that time the area was rezoned from manufacturing to residential and has since developed completely with single-family brick houses ranging in value from $18,000 to $20,000. The business properties along this area on the west side of Pulaski, 70th Street to 69th Street, include a parking lot and two-story office building, both owned by Mid-West Emery, a single home and an automobile body shop.

On the east side of Pulaski, beginning at 69th Street and going south to 70th Street, there is a drive-in restaurant, gas station, vacant lot and office building. Continuing from 70th Street to 70th Place, there are three buildings now owned and used by Mid-West. These buildings on the east side of Pulaski are in a B4-2 Restricted Service District, while those on the west side are in Cl-1 Restricted Commercial District. South of 70th Place the frontage along Pulaski is vacant to the overpass which is just beyond 71st Street. Across the overpass is J. L. Trucking warehouse facility and Robinson Steel Company, but these uses cannot be seen from Mid-West Emery’s location. The area to the east of the frontage just described is zoned R2 and R3 from 63rd Street on the north to 71st Street on the south and is a homogeneous residential community built around Marquette Park.

Immediately south of the subject property, contiguous with Pulaski and the Belt Line right-of-way, is a catalyst plant of the Nalco Chemical Company. This is a heavy industrial use which is zoned M2-2 General Manufacturing District.

West and southwest of the subject property and Nalco, across the Belt Line tracks and freight yards is the expansive Ford City Development which extends to 77th Street on the south and from Pulaski to Cicero on the west. Ford City encompasses a shopping center, industrial park and freight terminal uses, zoned B5-2, Ml-1, M2-2 and C4, respectively. The area zoned C4 for motor freight terminals has been expanded periodically so that the east edge of that C4 district is only several hundred feet across the tracks from the west edge of Mid-West Emery’s plant. The entrances to these operations are a mile apart, however.

Abutting plaintiff’s property on the west, there is an alkali plant with track spur and trucking facilities in an Ml-1 district which is apparently in compliance with that classification. It is a lighter manufacturing use than the Nalco Chemical plant to the south of the subject property and is adjacent to the residential area first described.

Mid-West Emery is an interstate motor freight carrier operating between Denver and the east coast. It maintains several terminals throughout this area, and has four facilities in the Chicago area, including the subject property. It owns about 325 tractors and 650 trailers, and its net income for 1964 was approximately $4,000,-000. Sixty percent of its operation is carrying meat.

At present Mid-West Emery employs approximately 190 drivers and 50 mechanics at the Pulaski location. Sixty to seventy tractors and trailers enter or leave the facility each day. Approximately 150 trailers and 100 tractors are parked there over the weekend, as well as the junk equipment stacked behind the garage. In addition, about 100 cars belonging to employees are parked on the premises each day. The garage is open 24 hours a day, and 20% to 25% of the traffic in and out is after 6:00 p. m.

The. operation is primarily involved with service and maintenance of equipment, including painting. There are no docking facilities or storage areas on the premises, only the office building and garage. Each trailer hauling perishable goods has a separate refrigeration unit. No transfer of freight 1 is made there unless it is necessary to make repairs. The trailers are loaded elsewhere and come into the plant to receive billing, manifesting and paper work. The open area is also used for parking the equipment. The operation has been essentially the same since Mid-West Emery came there in 1952. Apparently, the property has been put to similar use since before 1947 when the garage was built, except that the intensity of use has increased since that time.

In 1923 the entire area from 79th Street to 67th Street was zoned manufacturing. At that time the subject property was vacant, as it was until 1942 when a small trucking operation began. At the same time, the property was rezoned residential except for 125 feet of frontage which was zoned for business. In 1945 the property was rezoned to manufacturing. Plaintiffs’ complaint states that a motor freight terminal was a permitted use under that classification, but there is no evidence in the record to that effect.

However, in 1953 and 1955 attempts were unsuccessfully made to have the property rezoned from family residence and business to a motor freight terminal district. The reason for the discrepancy could not be discovered. Nevertheless, as of 1957, the entire property was placed in an Ml-1 Restricted Manufacturing District. A C4 motor freight terminal is not a permitted use in this classification.

The tentative proposal of Mid-West Emery is to construct a dock area and freezing room at the southwest corner of the property, approximately 82 feet by 100 feet and 20 to 25 feet high, at a cost of $300,000 to $400,000. Offices are planned for the upper level. It is projected that if the plan is carried out, the intensity of use of the property will increase significantly. The total business of Mid-West Emery is not expected to increase, but this plan will permit consolidation of the other three Chicago area facilities into a single operation.

Clearly, whether Mid-West Emery’s operation is or is not now a motor freight terminal within the meaning of the C4 zoning classification, the proposed improvement, if allowed, would place, it squarely within that classification.

Mid-West Emery applied to the City. Council of Chicago for an amendment of the present Ml-1 zoning classification to a C4 Motor Freight Terminal District, which would permit construction of the proposed facility. The Commissioner of City Planning recommended rezoning the property to C4, but with reduced boundaries, so the C4 district would not be contiguous with the R2 residential area lying to the north of the property along 70th Street. A hearing was held at which sixteen witnesses appeared in opposition and 200 objectors filed petitions. The City Council deferred final determination on the matter which both parties treat as a denial.

The trial court decreed that the present Ml-1 restriction deprived plaintiffs of their property without due process of law in violation of both the United States and Illinois Constitutions and, therefore, was null and void and unenforceable. It based its decision on its findings that Mid-West Emery is and has been operating a motor freight terminal facility continuously for approximately twenty years either in its present or corporate predecessor structure; that prior to 1957, this use was a lawful use; that the 1957 comprehensive amendments which zoned the subject property Ml-1 Restricted Manufacturing prohibits motor freight terminal uses; that, consequently, the existing use of the property is a legal nontonforming use which cannot be enlarged or expanded ; that plaintiffs’ proposed expansion would be permitted under the terms of a C4 classification; that the highest and best use of plaintiffs’ property is for a motor freight terminal facility; that plaintiffs will suffer irreparable injury if prevented by the zoning ordinance from expanding the present use to its full extent; that such expansion would not adversely affect the residential property in the area; that the present restriction bears no relation to the public health, safety, morals, convenience and general welfare of the people; and, that plaintiffs have exhausted all available administrative remedies for relief.

The applicable zoning principles are well settled that there is a presumption in favor of the validity of a municipal zoning ordinance, and the burden is upon the party attacking the validity of the ordinance to prove by clear and affirmative evidence that it is unreasonable and capricious and bears no reasonable relation to the public health, morals, safety and welfare. Martin v. City of Rockford, 27 Ill2d 373, 374, 189 NE2d 280 (1963) , Trendel v. County of Cook, 27 Ill2d 155, 161, 188 NE2d 668 (1963). Where the most that can be said is that the reasonableness of the ordinance is fairly debatable, the decision of the municipal authorities must be upheld and the trial court is not justified in substituting its judgment for that of the municipal authorities. Cosmopolitan Nat. Bank of Chicago v. City of Chicago, 22 Ill2d 367, 372, 176 NE2d 795 (1961).

Plaintiff contends that the present Ml-1 zoning classification is not in conformity with existing uses in the area, and defendant asserts that it is. Illinois courts have consistently stated that the question whether or not a zoning classification is in conformity with surrounding existing uses and the zoning classification of nearby property is of paramount importance. Chicago Title & Trust Co. v. City of Harvey, 30 Ill2d 237, 195 NE2d 727 (1964) , River Forest State Bank & Trust Co. v. Village of Maywood, 23 Ill2d 560, 179 NE2d 671 (1962), LaSalle Nat. Bank v. City of Chicago, 6 Ill2d 22, 126 NE2d 643 (1956).

Plaintiff asserts that the character of the subject property is established by the Nalco Chemical plant on the south, zoned M2-2 General Manufacturing, the network of railroad tracks and freight yards to the southwest, across which is Ford City containing areas zoned B5-2, Ml-1, M2-2 and C4, the small alkali plant to the northwest zoned Ml-1, the heavily trafficked Pulaski Road to the east and the plaintiffs’ own use zoned Ml-1 which it claims is a motor freight terminal.

Defendant, on the other hand, points to the three-block, single-family residential area north of the subject property zoned R2 and the residential development zoned R2 and R3 located on the east side of Pulaski beyond the business uses which front on Pulaski. All of the above uses were existing when the 1957 ordinance was enacted. Plaintiffs’ contention that the residential area to the north is only a small pocket of homes is contrary to fact. Map 16-K of the Chicago Zoning Ordinance shows that this residential area extends as far as 63rd Street on the north, but the area is narrowed on the south by the irregular north boundary of the subject property and of the Ml-1 and M2-2 area to the west which, as it runs west, bends around first to 69th Street and, as it approaches Cicero Avenue, extends as far north as Marquette Road (6700 south).

The subject property is thus located between two large, diverse uses, so that it is difficult, if not impossible as a practical matter, to say that any zoning classification would be in conformity with the entire surrounding area.

Plaintiffs’ expert witness, William S. Lawrence, a city planning and zoning consultant for eighteen years, testified that the existing and proposed use is compatible with the surrounding area, including the residential area to the north. He stated that the highest and best use of the subject property is for “the continuation of a truck terminal as permitted under the C4 classification of the Chicago Zoning Ordinance,” indicating that he believed the present use qualified as a motor freight terminal. He further testified that a motor freight terminal, in his opinion, was no more heavy a use than those uses now permitted under the present Ml-1 classification. Such uses include auto laundries, garages and parking lots, and storage, warehousing and wholesale establishments, provided they are within the performance standards for that classification.

On the other hand, the City’s expert zoning witness and city planner, Richard McKinnon, testified that, in his opinion, the expansion of plaintiffs’ present use to a motor freight terminal would be an incompatible use of land adjacent to a residential area, but that the unimproved land would be ideal for light manufacturing for which it is now zoned. “So, therefore, you have a single-family residential area to the north of the subject property; south, you have the manufacturing, restricted manufacturing (referring to Mid-West Emery’s property). This is proper zoning. South of the Ml you have the M2, General Manufacturing District. Again, this is proper zoning. You have a degree of zoning districts set up which fall under the principles of land use and zoning. A C4 would not be — would be completely incompatible with this grading of land uses.” It was also his opinion that, after five or six field trips to the property, the plaintiffs’ present operation was not a motor freight terminal facility because that classification requires the storage and/or assemblage of goods for routing in commerce, and implicitly requires the loading and unloading of goods at docking areas. On his inspections of the property, he testified he saw only the parking and repair of trucking equipment which does not qualify as a motor freight terminal. But he admitted on cross-examination that his opinion was based only on his observations to that date and that further study would be necessary to determine whether it fell outside the classification.

Consequently, the evidence shows that the subject property lies between two diverse uses, and it cannot be said that the subject property derives its character entirely from either of them. As stated in Jans v. City of Evanston, 52 Ill App2d 61, 68, 201 NE2d 663 (1964), “(a) party challenging the validity of a zoning ordinance has the burden of showing by evidence that is clear and convincing that the city has abused its legislative discretion in classifying property in a certain manner. Such proof must establish not merely that the property could reasonably be classified otherwise, nor indeed that the court would classify it otherwise; rather it must show that the legislative decision as to the property is clearly unreasonable.” Plaintiffs have not met this burden where the subject property is bordered partly by a residential area and partly by a manufacturing area, and the property has been shown to be properly suited for its present Ml-1 classification.

Plaintiffs next contend that denial of their application to rezone the subject property to a C4 classification was unreasonable, arbitrary and discriminatory. To support their charge of discrimination, plaintiffs point to the C4 motor freight terminal area located to the west of their property, across the large network of Belt Line railroad tracks and freight yards and a strip of land zoned M2-2, which has been periodically expanded by amendment within the Ford City development. Due to this expansion, the west edge of plaintiffs’ property is several hundred feet from the east edge of the Ford City C4 district. But the entrance to the latter is on Cicero Avenue, a mile west of the entrance to Mid-West Emery on Pulaski. In addition, the Ford City motor freight terminal area is separated from the residential area by the same railroad tracks and an area zoned Ml-1. This development is separated on the south from a residential area at 77th Street by an M2-2 and a B5-2 and borders on the city limits on the west.

The thrust of this contention is plaintiffs’ allegation that they were operating a motor freight terminal, within the meaning of a C4 classification, prior to the enactment of the present ordinance, and periodic enlargement of Ford City’s C4 area caused the City Council’s denial of their request for expansion to be discriminatory.

According to the testimony of Mr. McKinnon, there are presently four large areas in the City of Chicago designated as motor freight terminals. The zoning ordinance contemplated that 75 to 100 individual truck terminals would be located at each of these locations, which In turn, were located adjacent to major city thoroughfares. The purpose of this planning was to prevent traffic congestion and accidents and to regulate noise, air pollution and heavy use of the streets in the city.

In view of this policy of the Chicago Zoning Ordinance and the unique characteristics of a motor freight terminal district, the cases cited by plaintiffs (Marquette Nat. Bank v. Village of Oak Lawn, 57 Ill App2d 31, 206 NE2d 531; Colvin v. Village of Skokie, 54 Ill App2d 22, 203 NE2d 457; Polivka v. County of Cook, 68 Ill App2d 377, 216 NE2d 221), are distinguishable from the present case. In each of those cases, the plaintiff applied for an amendment to permit a use commonly found in a commercial district, such as a gas station or drive-in restaurant, and the application was denied even though similar uses were located nearby. Those courts correctly held that such selective zoning was discriminatory. In this case, however, the Chicago City Council has determined that, due to the nature of a motor freight terminal, all such facilities should be consolidated into four strategic locations within the city. Plaintiffs have adduced no evidence to show that this determination is unreasonable. Consequently, it is presumed to be valid.

Furthermore, plaintiffs have failed to prove discrimination in the present case. As stated in Mundelein Estates v. Village of Mundelein, 409 Ill 291, 294, 99 NE2d 144 (1951), a case analogous to this one, “(t)he mere presence of buildings or areas being put to use to which the person attacking the validity of a zoning ordinance seeks to put his property, is a wholly insufficient circumstance to show that the ordinance was invalid or discriminatory as to the property of the one assailing the ordinance. (Citing cases.) The fixing of boundary lines is a matter of legislative discretion and necessarily results in a different classification on either side of the boundary line. This does not render limitations on the use of property near the boundary line in a more restricted district unreasonable or invalid. . . . Appellant’s contention that it is unreasonable to allow a commercial classification to a neighbor, and deny the same classification to their property, would lead to a conclusion that an entire residential area could be progressively rezoned until the whole area was commercialized.”

The Ford City C4 area is separated from the residential area by a wide area of railroad tracks and á strip of land zoned M2-2, thus providing a buffer area, while Mid-West Emery’s land is immediately adjacent to that area. In addition, Mr. McKinnon testified that further enlargement of the Ford City C4 district would be permissible from a planned use point of view so long as it remains south of the Belt Line tracks. Furthermore, the traffic hazards created by these motor freight terminals would be centered around the entrance to each district, which entrances are located at least one mile from each other, and this traffic hazard is one of the major factors for creating the C4 district.

Plaintiffs next contend that the particular facts in this case require a finding that the present restriction is invalid. Plaintiffs correctly state the principle that each zoning case must be decided on its own facts. Marquette Nat. Bank v. Cook County, 24 Ill2d 497, 501, 182 NE2d 147 (1962). The particular facts asserted by plaintiffs which require such a finding include the nature of the surrounding area, notably the moderately heavy-trafficked Pulaski Road, the Nalco Chemical plant, the Belt Line Railroad and Ford City development, the testimony of Mr. Lawrence that the highest and best use of the property is for a motor freight terminal, that the Planning Commission recommended a reclassification of the property to C4, and that the tax base would be increased by $300,000 to $400,000 so additional revenues would be realized, and plaintiffs’ allegation that they are operating a motor freight terminal now as well as when the homes to the north were built.

The evidence adduced by defendant shows that there is a substantial residential area which will be affected by this improvement, that there is a conflict as to the highest and best use of the property, that the Planning Commission recommendation was for a reduced area within the subject property and was rejected by the City Council, and that traffic hazards would be increased if the improvement were allowed. The fact that the tax base would be increased is true in every zoning case where the use of property is restricted, and this factor is not entitled to substantial weight. In addition, the evidence does not support plaintiffs’ allegation that the residential area developed while the subject property was being used for its present operations.

Mr. Eubenstein, Secretary and Vice President of Mid-West Emery and manager of the subject premises, testified that the present operation is substantially the same as when he came there in 1952. However, the only evidence of the property’s use prior to that time is testimony that the office and garage facility was built in 1947 and that some trucking business began there in 1942, but there is no evidence of the nature of that use. One of the neighbors testified that she thought the building was going to be a grocery store when it was first built, and another testified that the operation was so small in 1950 that they did not pay much attention to it. On the other hand, the evidence shows that intense residential development took place immediately after World War II when the use of the subject property was not offensive to a residential area. Obviously, these single-family residences were not built while the subject property was being used for its present operations, and the most that has been shown is that the two adjacent areas developed simultaneously.

Consequently, there are no particular facts which require a finding that the present restriction is unreasonable. The most that has been shown by plaintiffs is that the reasonableness of the restriction is fairly debatable, and in such a case, the decision of the municipal authorities must be upheld and the trial court is not justified in substituting its judgment for that of the City Council. Cosmopolitan Nat. Bank of Chicago v. City of Chicago, 22 Ill2d 367, 372, 176 NE2d 795 (1961).

Plaintiffs next contend that the present Ml-1 zoning restriction prohibiting them from expanding their present use imposes an economic hardship. But plaintiffs have shown no actual financial loss. Their own valuation expert testified that the land is worth approximately $1,000,000 for both the present and proposed uses and that any increase in value of the property would be equal to the cost of the proposed improvement. Nevertheless, they claim that their inability to economically develop all of their property and consolidate their four Chicago locations constitutes a hardship. It has been recognized that “(h)ardship of zoning upon an owner is not confined solely to difference in value because of a restrictive classification, but it may be caused by inability to economically develop by reason of the restriction.” LaSalle Nat. Bank v. County of Cook, 28 Ill2d 497, 500, 192 NE2d 909.

Defendant argues that no such hardship has been shown because there is no evidence that consolidation of plaintiffs’ operations is prevented by the present zoning. This argument presumes that plaintiffs are not now operating a motor freight terminal which cannot be expanded under the Chicago Zoning Ordinance.

Despite defendant’s argument, the fact that plaintiffs’ proposed improvement would place it squarely within the definition of a C4 Motor Freight Terminal District and is thus prohibited by the present Ml-1 classification, is sufficient to give plaintiffs a basis for challenging the validity of the ordinance as applied to their property. The critical question is not the degree to which plaintiff is restricted, and thus injured in the use of its property, but whether that restriction, regardless of the hardship which it imposes, is justified by a benefit to the public health, safety and welfare.

As stated in Stemwedel v. Village of Kenilworth, 14 Ill2d 470, 474, 153 NE2d 79 (1958):

“To sustain the burden of proving the invalidity of the restriction it is not enough to show that it works a hardship on the owner, or that a desired variation would not substantially impair the public health, safety, comfort, morals or general welfare. One who assails the constitutionality as applied to a particular property must prove by clear and affirmative evidence that it constitutes arbitrary, discriminatory, or unreasonable municipal action, and that it will not promote the safety and general welfare of the public.”

Plaintiffs next contend that the public derives no benefit from the present restriction.

There is conflicting evidence as to the depreciatory effects of the proposed improvement on the immediately affected residential area. Plaintiffs’ valuation expert, John McNamara, a real estate broker, appraiser and developer, testified that a change in classification to C4 would have no deleterious effect on the new homes immediately adjacent and abutting the area. He stated that any deleterious effect that there would have been on those homes had already been taken, due to the fact that this use was there before their construction, and, therefore, any deleterious effect would already have been absorbed by plaintiffs’ use. William Lawrence, plaintiffs’ city planning and zoning consultant, also testified that in his opinion the proposed expansion would not adversely affect the neighborhood or traffic patterns in the area. Harold Rubenstein testified that the proposed loading dock area is to be located in the southwest corner of their property where, plaintiffs argue, it will have the least adverse effect, if any.

Defendant also produced two real estate experts. John Williams, a realtor for thirty-five years in the Chicago area, testified that the expansion of Mid-West Emery’s operation would cause a further depreciation of 5% to 10% in the value of the homes. Intervener’s witness, Louis Travis, a real estate broker for ten years, who has arranged sales in this area, testified that the minimum depreciation would be 10%. He testified to the effect that it is not the location of the proposed docking area which determines the depreciatory effect, but rather the increased commercial activity or intensification of the use which further depreciates the property, and that further depreciation will occur with increased activity.

The trial court considered that the critical testimony on this point was that of Robert McKinnon, defendant’s city planning expert, who stated, when asked whether the proposed use would further depreciate buildings in the surrounding area, “I think the damage is done.”

Defendant argues, however, that Mr. McKinnon is an expert on city planning, not on real estate valuation, and that his testimony was based on his education and experience in the field of planning. Defendant also argues that plaintiffs have admitted that their use has a depreciatory effect on the adjacent residential area, and the conclusion is unavoidable that expansion and intensification of plaintiffs’ present use will further damage and depreciate the residential district. We agree with defendant’s argument “that there is a distinction between bad and worse.”

Plaintiffs next argue that the proposed expansion would not adversely affect traffic in the area since the increase of 50 to 100 vehicles per day is not a significant increase over the present traffic level of Pulaski Road which was shown to be more than 22,000 vehicles during a twelve-hour period. There was evidence to show that no traffic accidents had occurred at plaintiffs’ main driveway midway between 70th and 71st Streets, or involving any of Mid-West Emery’s trucks in that area for several years.

Defendant city argues that its main concern is not merely the increase in number of vehicles, but the increase in traffic congestion and hazards caused by these additional 50 to 100 trucks turning on and off Pulaski Road. Defendant demonstrated by use of a template, showing the minimum turning radius of trailer trucks like Mid-West Emery’s, laid over a scale drawing of plaintiffs’ existing driveways, that trucks approaching from the north could not make the turn into the driveway at 71st Street, which is now closed, but would be opened if the proposed use were allowed, unless they turn from the left-hand side of the roadway. One of defendant’s traffic experts testified that due to this condition, the city would not grant a permit to use that driveway and that trucks turning from the lefthand lane definitely would increase the accident potential. Consequently, plaintiff contends it will continue to use the larger 66-foot driveway at the center of the lot which purportedly is large enough to accommodate trucks turning from the right-hand turn lane when approaching from the north.

However, Lincoln Griffith, a traffic engineer, testified that he had observed a trailer truck leaving that driveway and turning south, that had to pull over to the median strip to make the right turn. He testified that this condition would be very hazardous in the evening rush hour traffic and would introduce potential right-angle collisions.

In addition, several owners of homes in the affected area who were interveners in this action testified that Mid-West Emery’s truck drivers ignore the five-ton load limit on their residential streets, drive the wrong way on 70th Street, which is one-way east from Kedvale to Komensky, and drive over the curbs and sidewalks near 70th Street. Other testimony by these neighbors consisted primarily of complaints that the trucks were a hazard to school children in the area, that the loud noises of the trucks and repair shop continue all night, that plaintiffs store junk trailers in the rear which are an eyesore, that Mid-West Emery’s parking lot is higher than 70th Street so that in rainstorms the water drains into the street, flooding the sewers and basements of the residences, that Mid-West Emery drains fuel oil into the street which runs into the sewers and causes a gas smell in the basements, that the Fire Department has had to flush the street and sewer twice and the basement of one of the homes, that the trucks sometimes block 70th Street making it difficult for the residents to get through or park their cars, that the drivers use profane language to the women if they are questioned, that a refrigeration plant would bring additional smells and odors, that Mid-West burned old crates and trash in the open, causing offensive smoke and odor, that they object to intensification and expansion of the present use because each of these complaints will increase and the value of their homes will be further depreciated.

Plaintiffs offered no evidence to the contrary, but Mr. Rubenstein testified that he was not aware of these complaints.

Plaintiffs also assert that these nuisance complaints are irrelevant in a zoning case and are, in-

stead, matters for local enforcement officers, relying on Herman v. Village of Hillside, 15 Ill2d 396, 155 NE2d 47 (1959). In that case, plaintiffs sought to expand their quarrying operation which was a nonconforming use. Residents testified as to the annoyance and discomfort caused by plaintiffs’ blasting operations, causing noise, vibration and dust. Defendants argued that limitation on expansion was proper when the operation is a nuisance in fact. The court replied after an examination of the nuisance evidence: “In any event, this is not a nuisance case, and we must view it from the principles applicable to zoning.” It is unquestionably correct that nuisance and zoning cases are not determined on precisely the same principles. In fact, the restricted use need not constitute a nuisance to authorize enactment of a zoning ordinance. 58 Am Jur 941, § 3, Zoning.

It is clear in the Herman case that the court considered these nuisance complaints as a factor in its decision, but that countervailing factors, such as — that the quarry had been in existence for many years prior to the residential area, that the plaintiffs would suffer severe financial loss, that the quarry was distinctly beneficial to the community and that the residential owners could show no material effect on their property, warranted the finding that the restriction against expansion was invalid.

Indeed, though legal enforcement may be available to the interveners to force compliance with the applicable performance standards, this fact should not deprive these persons of the protection against intensification of offensive uses intended to be provided by the Chicago Zoning Ordinance which prohibits expansion of nonconforming uses. The nuisance testimony of the residents is relevant to show the present use to which plaintiffs are putting their property, and to tend to show the effect which the intensification of this use will have on their residential property.

As defendant points out, there is a close relationship between zoning and laws prohibiting nuisances. In Euclid v. Ambler Realty Co., 277 US 365, 387 (1926), where the constitutionality of zoning was upheld, the United States Supreme Court noted:

“There is no serious difference of opinion with respect to the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open, in order to minimize the danger of fire or collapse, the evils of overcrowding, and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances. (Emphasis added.)

Plaintiffs next contend that the conflicting testimony as to the highest and best use of the property, the nature of the present use of the property, the potential depreciatory effect on the residential area, the potential traffic hazards and the complaints of plaintiffs’ failure to comply with applicable performance standards, does not make the validity of the ordinance debatable. The rule has been stated that “(m)ere conflict of testimony as to the highest and best use of property, the impact of the proposed use on the areas involved or its effect upon property values, does not make irrebuttable the presumption that an ordinance is valid. Where the evidence shows a destruction of property value by application of an ordinance, the legislation may be justified only if it substantially promotes the public health, morals, or general welfare.” Illinois Nat. Bank & Trust Co. of Rockford v. County of Winnebago, 19 Ill2d 487, 167 NE2d 401; Bauske v. City of Des Plaines, 13 Ill2d 169, 148 NE2d 584.

However, the rule has also been stated:

“Before a court will intervene it must be established by clear and convincing evidence that the ordinance, as applied to plaintiffs, is arbitrary and unreasonable and has no substantial relation to the public health, safety or welfare. These rules are based upon a recognition that zoning is primarily a legislative function, subject to court review only for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare. (Citing cases.) Where it appears, from all the facts, that room exists for a difference of opinion concerning the reasonableness of a classification, the legislative judgment must be conclusive. (Citing cases.)” Exchange Nat. Bank of Chicago v. County of Cook, 25 Ill2d 434, 440, 185 NE2d 250. (Emphasis added.)

The case of Franz v. Village of Morton Grove, 28 Ill2d 246, 190 NE2d 790 is not dispositive of this issue as plaintiffs contend. In that case there was a substantial financial loss to plaintiff due to the residential zoning restriction, and the affected residential area was insulated from the subject property by vacant land, athletic fields and parking lots. In the present case plaintiffs have not proved an irreparable injury since they may build their docking area in the Ford City C4 district and their unimproved land has been shown to be suitable for light manufacturing which is now a permitted use at no financial loss to plaintiffs. In addition, there is no buffer area between the residential area and subject property in this case. Other cases cited by plaintiffs are similarly distinguishable, and in a zoning case where each case must be decided on its particular facts, a review of each of these cases is unnecessary. We believe that the testimony in the present case demonstrates, at the least, a difference of opinion as to the reasonableness of the present classification.

Finally, the plaintiffs contend that the findings of the trial court cannot be disturbed unless contrary to the manifest weight of the evidence. Bauske v. City of Des Plaines, 13 Ill2d 169, 148 NE2d 584. The rule is as correct as plaintiffs assert and as stated in Atkins v. County of Cook, 18 Ill2d 287, 297, 163 NE2d 826 (1960): “In all cases of this nature there is a conflict of opinion testimony. The credibility of witnesses is of great importance. In a trial without a jury the findings of the trial court will not be disturbed unless manifestly against the weight of the evidence.”

The trial court placed great significance on (1) the recommendation of the Planning Commission that the property be rezoned C4, although it was rejected by the City Council, (2) its finding that most of the people in the immediately affected residential area bought or built their homes after the trucking facility came into existence, and (3) the testimony of Robert J. McKinnon, a city planner of twelve years experience, who, in response to a question whether the proposed improvement would damage the surrounding property, stated that in his opinion the damage had already been done.

First, it seems patent that the recommendation of the Planning Commission is not entitled to great weight since it was not subject to cross-examination, the basis of the recommendation is not apparent, the report was not based on an adversary hearing, it recommended a change only as to a portion of the property, and the City Council, after an adversary hearing, rejected the recommendation. Surely, an administrative report is not entitled to more weight than the decisions of the rule-making body itself.

Secondly, the record does not support the court’s finding that the residents bought or built their homes after the trucking facility came into existence. Five homes were in this area prior to 1942. Further development occurred consistently after World War II at about the same time that the present office and garage were built. There is no evidence to show that the operation was a motor freight terminal at any time prior to 1952. The fact that some small trucking facility was in operation on the subject property does not warrant the conclusion that they should have anticipated the development of a full scale motor freight terminal. They, too, were entitled to rely on the residential classification of their property and the protection which it purports to provide.

Finally, if the trial court relied so heavily on the testimony of Mr. McKinnon that in his opinion “the damage was done,” it must also have considered his testimony that the highest and best use of plaintiffs’ property is for light manufacturing, that a restriction to Ml-1 constitutes a good grading of uses, that a motor freight terminal is incompatible with a residential area and that, in his opinion at that time, plaintiffs were not operating a motor freight terminal, but a truck repair and parking facility.

Consequently, plaintiffs have failed to show by clear, convincing and affirmative evidence that the ordinance, as applied to the subject property, its arbitrary and unreasonable. The evidence in this case, viewed most favorably to the plaintiffs, fails to overcome the presumption of validity of the ordinance. At best, the evidence discloses a legitimate difference of opinion concerning the reasonableness of the challenged zoning classification in its application to the subject property. In such a case, legislative judgment of the municipal authorities must be respected. Bolger v. Village of Mount Prospect, 10 Ill2d 596, 141 NE2d 22 (1957).

The judgment of the Circuit Court of Cook County is reversed.

Judgment reversed.

EBERSPACHER, J., concurs.

GOLDENHERSH, J.,

dissenting:

I respectfully dissent from the majority opinion and would affirm the judgment. I agree with the circuit court that subjecting plaintiffs’ property to the restrictions of an Ml-1 classification bears no relation to the public health, safety, morals, convenience, or general welfare. In my opinion denial of the application to rezone plaintiffs’ property to a C-4 classification is unreasonable and arbitrary.

A detailed traffic volume study prepared by the Chicago Bureau of Street Traffic shows a count of 27,484 vehicles passing the intersection of 71st Street and Pulaski Road in a 12-hour period, as of May 25, 1965. Of this number 22,669 were traveling north or south on Pulaski Road. In keeping with the trend of increase in vehicular traffic, it may safely be assumed that in the intervening 4% years the volume has been substantially increased.

It is difficult to perceive in what manner the operation of a truck terminal west of Pulaski Road could generate noises distinguishable east of Pulaski Road from the roar of 22,669 vehicles. Nor does the record reflect what the operation of a truck terminal could possibly create which could be as odious as the smoke shown billowing out of Nalco’s plant in plaintiffs’ exhibit number 5.

With respect to the area lying north of West 70th Street, Map 16-K attached to the Zoning Ordinance shows that only two streets, Karlov and Komensky, extend south as far as West 70th Street. South Kedvale Avenue ends at West 70th Place, at least 100 feet north of West 70th Street and the other streets terminate at West 69th Street. The homes of the residents of Kolmar, Kilbourn, Kenneth and Kostner Streets lie considerably closer to the Chicago Belt Railway than to plaintiffs’ property, and again it is difficult to perceive what noises could be created in a truck terminal which can be distinguished from those resulting from the adjacent railroad operations.

Section 9.8-4 of the ordinance provides that no building, structure, ok other obstruction, nor any off-street loading operation shall be located within 100 feet of the boundary of a residence district, nor within 50 feet of the boundary of a business district. The proposed improvement is to be located in the westerly portion of the plaintiffs’ parcel, well away from Pulaski Road or West 70th Street. It will occupy approximately 10,000 square feet in a parcel of land comprising approximately 560,000 square feet.

Assuming an additional 100 trucks per day will be routed into plaintiffs’ yard, they are unlikely to be noticed in a traffic flow in excess of 22,000. Further, the evidence shows there have been no traffic accidents at the entrance to plaintiffs’ property for a period of several years.

The complaints that 70th Street was blocked at times, that Mid-West burned crates and trash in the open or that drivers used profane language are not material to the issue presented. These involve violations of ordinances which have no connection with the proper zoning of land. It should be further noted that it would require quite a sizeable trash fire to create smoke. equal in volume to that shown pouring out of Nalco’s stacks in plaintiffs’ exhibits 3, 5, 7 and 9.

With heavily traveled Pulaski Road as a buffer, it is apparent that the residents of the area east of Pulaski are not affected by the change of classification from Ml-1 to C-4. The ordinance provision for a 100-foot buffer is adequate protection for the residents of the area north of West 70th Street. Reversal of the judgment results in substantial injury to the plaintiffs without perceptible benefit to the public, and I would, therefore, affirm.

       Motor freight terminal is defined by the 1957 Chicago Zoning . Ordinance as:
      “A ‘motor freight terminal’ is a building or area in which freight brought by motor truck is assembled and/or stored for routing in intrastate and interstate shipment by motor truck.”
      Such motor freight terminals are placed by the 1957 Zoning Ordinance in a separate, distinct classification, denominated C4 Motor Freight Terminal District, as stated by the Ordinance:
      “The C4 Motor Freight Terminal District is designed to accommodate large-scale trucking terminal operations involving interstate and intrastate motor carriers, which activities are incompatible with the great majority of other land uses and so are more suitably placed in a special zoning district mapped in strategic locations for efficient coordination with the city’s planned street and thoroughfare system.”


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Mae Bebb, Plaintiff-Appellee, v. Yellow Cab Company, Defendant-Counterplaintiff-Counterdefendant-Appellant, and John DeVries, Defendant-Counterdefendant-Counterplaintiff-Appellee. Minnie Dykstra and Anna DeVries, Plaintiffs-Appellees, v. Yellow Cab Company, Defendant-Appellant.
    Gen. No. 53,143.
    First District, First Division.
    February 2, 1970.

      Peter Fitzpatrick and George Kaye, of Chicago (Fitzpatrick & Kaye and Jesmer & Harris, of Chicago, of counsel), for appellant.
    Fred Lambruschi, of Chicago (Herbert P. Veldenz and Vera Cuthbert, of counsel), Delbert T. Been, O’Brien, Hanrahan, Wolfe and Been, and Thomas M. Monahan, of Chicago, for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury and property damage action arising out of a collision between a Yellow Cab and a Chrysler automobile, in which two suits were consolidated for trial before a jury. In the first case, Mae Bebb, the passenger in the taxicab, sued the Yellow Cab Company and John DeVries, driver of the Chrysler, for personal injuries, and John DeVries and Yellow Cab Company both counterclaimed against each other for property damage to their respective vehicles. In the second case, Minnie Dykstra and Anna DeVries, passengers in the automobile driven by John DeVries, sued the Yellow Cab Company for personal injuries. Defendant Yellow Cab Company appeals from judgments entered on the following verdicts:

1. For Mae Bebb against Yellow Cab Company in the sum of $20,000.00 and against Mae Bebb and for John DeVries.
2. For John DeVries against Yellow Cab Company in the sum of $364.94, and against Yellow Cab Company on its counterclaim.
3. For Minnie Dykstra against Yellow Cab Company in the sum of $4,500.00, and for Anna De Vries against Yellow Cab Company in the sum of $250.00.

On appeal defendant Yellow Cab Company contends (1) that the trial court’s refusal to direct a verdict for defendant on the counterclaim of John DeVries was prejudicial error; (2) certain comments, admonitions and rulings of the trial judge so influenced the determination of the jury that the Cab Company was denied a fair and impartial trial; (3) that the jury was improperly instructed on the speed statute; and (4) the verdicts exonerating DeVries and against the Cab Company were contrary to the manifest weight of the evidence.

John DeVries testified that on June 7, 1963, around 9:00 a. m., he left his home in Holland, Michigan, with his wife and Mr. and Mrs. Dykstra, to visit relatives in Chicago. At about 2:43 p. m., he was driving his Chrysler Imperial north on Harlem Avenue at about the posted speed limit of 40 miles per hour. The weather was perfect, and his car was in “A-l condition.” He was driving in the center lane, and when he first saw the cab he was about 35 feét from the intersection of Harlem and 71st Street and about 80 feet from the cab. The cab was going south between 10 and 15 miles per hour in the center lane. When the DeVries car approached 71st Street, the cab, without any warning, made a sudden left turn in front of him. DeVries applied his brakes and skidded about 75 or 80 feet before he struck the cab. DeVries did not see any directional signals or indicator lights on the cab. DeVries swung to the left and hit the cab’s rear bumper and spun it around. After the impact the DeVries car was facing north and the cab was facing west. There had been no traffic ahead of DeVries, and his last previous stop was at a traffic light at 75th Street. At the moment of impact DeVries was going about 10 or 15 miles an hour.

Plaintiff, Mae Bebb, the passenger in the cab, testified she didn’t see anything because she was asleep.

Plaintiff, Minnie Dykstra, a passenger in the Chrysler, was sitting in the rear seat behind her husband. She did not see what happened, and when the car collided “it was such a shock that I pushed out my hand, and with that I saw there was a cab in front of us.”

Plaintiff, Anna DeVries, was sitting in the back seat behind her husband with Mrs. Dykstra. She saw the cab before the collision but would make no comment on where the front of her car was with relation to 71st Street at that time. She couldn’t say how many lanes were on Harlem or whether the cab was already at 71st Street or north of 71st Street when she saw it. She would make no comment on how many miles per hour the cab was going.

Onzo Hoosmon, driver of the Yellow Cab, testified that he picked up Mae Bebb at the Englewood station at 63rd and State. He turned south onto Harlem from 63rd Street. Harlem was a four-lane road and has curves south of 63rd Street — the last one being about a block away from 71st Street. When they came out of the last curve, Mae Bebb told him to turn left at 71st Street. He put on his left-turn signal that blinked yellow lights in the front and rear, and got over into the left lane as close as possible in order to turn. When he came up to 71st Street he was going 10 to 15 miles per hour and turned into the south half of 71st Street at that speed so another car could come out if it wanted to. The cab was hit over the right rear wheel and the impact pushed the cab completely around to face west.

James Lhotak testified that he was an eyewitness to the collision. He was driving his car to work and was giving a lift to Skip Marsten. At the time of the collision he was facing east on 71st Street, stopped at a stop sign waiting to turn right to go south on Harlem. He saw the cab before the collision heading south on Harlem about 50 or 60 feet away from the intersection. The cab’s left-turn signal was on as it approached 71st and was going about 5 or 10 miles per hour. It slowed and made a normal, not a sudden, left turn into 71st Street. The sound of screeching brakes and skidding called his attention to the northbound Chrysler. It was going about 50 miles per hour in the northbound lane near the yellow line in the center of Harlem and was about 90 feet from 71st Street. The speed limit there was 40 miles per hour. The Chrysler swung over to the right-hand lane and hit the Yellow Cab in the right rear with the right front of the Chrysler. At the time of impact the rear of the cab was in the northbound lane closest to the curb and traveling about 10 to 15 miles per hour. The impact swung it around to make it face west. After the collision he waited for the police. He gave his name and left for work, but Skip stayed at the scene.

Glen Marsten (Skip) substantially corroborated the testimony of James Lhotak. Before the collision he saw the cab on the southbound side of Harlem next to the double yellow line, about two car lengths or 40 feet from the intersection. The cab’s left-turn signal was flashing and the cab was going 5 to 10 miles per hour. The cab made a slow, normal left-hand turn into the eastbound lane of 71st Street. Screeching brakes called his attention to the northbound Chrysler. It was 100 feet away from 71st Street, in the northbound lane next to the double yellow line, going approximately 50 miles per hour. The Chrysler went into the curb lane where the impact occurred. The cab was going about 15 miles per hour then. The right rear quarter of the cab was struck and four feet of the cab protruded into the curb lane of Harlem. The rest of the cab was off of Harlem on 71st Street. The impact swung the rear end of the cab around and headed the front of the cab west toward Harlem. After the collision he helped Officer Stanton measure the skid marks from the Chrysler. They came from the lane next to the double yellow line and swerved to the lane next to the curb, ending at the place of impact.

Officer Harry Stanton of the Bridgeview Police Department testified that he investigated an accident at 71st and Harlem on June 7, 1963, at 2:43 p. m. He arrived at 2:45 p. m., and “a Yellow Cab was on the northeast corner, more on 71st St. than on Harlem, and a black Chrysler was on Harlem facing north.” The cab was hit in the right rear fender, “just behind the double door,” and the Chrysler was damaged in the right front. John DeVries stated to him: “I was traveling north on Harlem about 40 or a little more miles per hour. At the intersection of 71st St. I saw a taxicab making a left turn into 71st east, and applied my brakes and skidded about 60 feet. Unable to stop in time my vehicle struck vehicle number 1 in the right rear fender.”

Officer Stanton further testified that the posted speed limit on Harlem was 40 miles per hour. Also, with the aid of a man called “Skip,” he measured the skid marks laid down by the Chrysler to be 80 feet, the point of impact being in the northbound lane, six or eight feet from the east edge of Harlem. The police report diagram showed the point of impact to be in the outer lane of traffic, closest to the east curb. He knew where the point of impact was from the debris on the ground. The taxicab left-turn signal lights worked and were still on when he arrived at the scene of the collision.

Defendant Yellow Cab Company’s first contention is that the trial court erred in refusing to direct a verdict against John DeVries on his counterclaim. It asserts that “John DeVries was negligent as a matter of law. The Court’s refusal to direct a verdict against John De Vries was reversible error not only because it left a false issue in the case but also because it influenced the jury to decide against the cab company on the other claims.” Defendant notes that DeVries’s negligence was evidenced by his admission that he was traveling “about 40 or a little more miles per hour,” his skidding 80 feet, his, testimony that the weather was perfect and there was no traffic ahead of him, his admission on cross-examinatian that he did not see any turning signal, and the testimony of two eyewitnesses that he was traveling 50 miles per hour. Furthermore, the cabdriver’s testimony that the cab’s left-turn signal was flashing was corroborated by the two eyewitnesses and Officer Stanton, who found it working. According to defendant, all this evidence tends to show DeVries negligent as a matter of law, and “no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967).) Authorities include Ill Rev Stats, c 95 1/2, ¶ 166, and Pertolanitz v. Chicago Transit Authority, 44 Ill App2d 256, 194 NE2d 501 (1963). Chapter 95 1/2, Ill Rev Stats, provides:

“166. § 69. Vehicle turning left. The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close as to constitute an immediate hazard, but said driver, having so yielded may proceed at such time as a safe interval occurs.”

In Pertolanitz v. Chicago Transit Authority, the court found the defendant bus driver’s negligence was established by evidence that showed that the bus continued at an increased speed into the intersection despite the bus driver’s having seen from 400 feet that a southwest-bound automobile was stopped near the center line waiting to make a left turn. The court held this to be a violation of chapter 95%, 1i 166.

Defendant Yellow Cab Company further asserts that it was prejudiced by the erroneous denial of its motion for a directed verdict against John DeVries since it left a false issue in the case as to his negligence and “pervades all the issues and requires a new trial.” It points out that “in particular, the court’s submission to the jury of the DeVries counterclaim against the cab company certainly prejudiced the cab company’s counterclaim against DeVries and for practical purposes destroyed the cab company’s defense that the sole cause of the collision was the negligence of John DeVries.” Authorities include Pedrick v. Peoria & Eastern R. Co.; Scerrino v. Dunlap, 14 Ill App2d 355, 144 NE2d 859 (1957); Galatzer v. Schwartz, 26 Ill App2d 398, 168 NE2d 451 (1960) (Abst); and Moore v. Atchison, T. & S. F. Ry. Co., 28 Ill App2d 340, 171 NE2d 393 (1960).

In Scerrino v. Dunlap, the court overruled plaintiff’s motion to withdraw from the consideration of the jury the defense that plaintiffs were guilty of contributory wilful and wanton misconduct and submitted to the jury special interrogatories asking whether the plaintiffs were guilty of wilful and wanton misconduct which proximately caused the accident. The reviewing court held this to be reversible error and stated (p 365):

“The submission of the issue of wilful and wanton conduct of plaintiffs here may, on first consideration, seem harmless, inasmuch as the jury found plaintiffs not guilty thereof in their answer to the interrogatories; nevertheless, since the question of negligence on the part of plaintiffs was also submitted to the jurors by special interrogatory, the jury may well have been led to conclude that plaintiffs were at least guilty of contributory negligence. We find no evidence in the record to support the special finding that plaintiffs were guilty of wilful and wanton conduct, and it was prejudicial error to submit this false issue to the jury.”

In Galatzer v. Schwartz, plaintiff’s motion for a directed verdict on the issues of contributory negligence and of defendant’s negligence at the close of all the evidence was denied. On appeal this denial was held to be improper because the submission to the jury of the issues of negligence and contributory negligence prejudiced the proper resolution of the damage issue.

In Moore v. Atchison, T. & S. F. Ry. Co., the court held (p 355):

“There was no evidence on which Adair could be found guilty of negligence and it was error to submit an issue as to his negligence.”

Plaintiffs contend that the evidence on the issue of DeVries’s negligence was controverted by the parties and the witnesses to the occurrence. Plaintiffs assert that any evaluation by the judge of the total evidence produced “required an evaluation of the facts established and the credible weight to be applied to all testimony,” and the jury was free to find that either both defendants were guilty of negligence jointly, or that one defendant or the other was the sole proximate cause of the accident.

Plaintiffs assert that the Pedrick case has no application here “since in this case there was more than ‘any evidence’ of negligence on the part of the Yellow Cab and its agent, Onzo Hoosmon. Mr. Hoosmon’s testimony was that when he was at 71st and Harlem, he made a left-hand turn, and that at the time of his turn, the defendant, DeVries, was one block to the south of him,” and when Hoosmon was asked if he was looking at the northbound car that was coming, he said, “No. Why should I be looking where they are going?” They note that “if the trial court accepted on face value this testimony of the taxicab driver, it certainly would be a breach of common sense and all physical laws of probability,” and “it is quite obvious that when the taxicab made its left turn, the DeVries car could not have been a block away from the taxicab. The left turn was made suddenly without warning in front of the DeVries vehicle.”

We conclude that the trial court properly denied defendant’s motion for a directed verdict on the counterclaim of defendant John DeVries. The test for a directed verdict, as laid down in Pedrick v. Peoria & Eastern R. Co., is as follows (p 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 aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

We find that all of the evidence, when taken in the light most favorable to John DeVries does not so overwhelmingly show his negligence that no contrary verdict could ever stand. We find no prejudice to defendant Yellow Cab Company in submitting the issue of DeVries’s negligence to the jury. This did not tend to affect the jury’s findings toward both defendants in the suit by Mae Bebb. Both Yellow Cab Company and John DeVries were sued as joint tort-feasors in the Bebb case and either might be liable to Mae Bebb regardless of the counterclaim involved.

Defendant Yellow Cab Company next contends that it was denied a fair trial because the jury may have been influenced by certain comments, admonitions and rulings of the trial judge. Yellow Cab asserts “that the judge may have acted innocently, without intent to harm one party, or to help the other party, is not controlling because every litigant is entitled to an actual fair trial without regard to the subjective intent of the judge to give him one.” The specific instances of which defendant complains occurred during the cross-examination of the cabdriver, Onzo Hoosmon. There was confusion over a question concerning the distance of the taxicab from the Chrysler when the cabdriver first saw the Chrysler. The judge attempted several times to clarify pending questions and at one point said with regard to a question pertaining to the cab’s speed:

“You see, we are having the same trouble with all of the witnesses. They do not pay attention to the question. They answer another question from the one that is asked. I am not criticizing this man particularly. They all do it. Now, you didn’t pay attention to the question. Answer that question and nothing else. Now, as I see it, counsel didn’t ask you what lane you were in at all. He asked you merely about your speed, so you answered another questian. Now, he wants to know in that travel, the distance between, the time you first saw the DeVries car to the time you got to 71st Street, was your speed constant at ten to fifteen, or was it changed?”

Among the authorities cited are McDonald v. Fort Dearborn Nat. Bank, 72 Ill App 17 (1897); People v. Kelly, 347 Ill 221, 179 NE 898 (1931), and Dunn v. The People, 172 Ill 582, 50 NE 137 (1898). In substance, these cases affirm the rule that “it is beyond the province of a trial judge to express his opinion on the weight of the evidence or comment on the facts.”

Plaintiffs argue that it was obvious that the witness was not answering the questions being put to him, and the trial judge intervened in order to move the trial along and clarify the testimony. They note that the law is well settled that the trial judge has the discretion to attempt to clarify any testimony that is confusing during the course of the trial. Cited as authority are Fisher v. Illinois Terminal R. Co., 350 Ill App 555, 113 NE2d 344 (1953); Hill v. Montgomery, 184 Ill 220, 56 NE 320 (1900); and Reed v. Sands, 11 Ill App2d 355, 137 NE2d 553 (1956). In Reed v. Sands, the trial judge said to a witness: “The court doesn’t like to reprimand the witness for interjecting matters into the subject matter here, but I am warning you now not to make speeches to the jury or add anything to your answer here that are not called for by the question. The same may be stricken.” There the court said (p 357) :

“Plaintiff’s contention that the Trial Court’s remarks warrant a reversal cannot be sustained unless it appears that the same were of such a nature as would ordinarily create prejudice in the minds of the jury.
“The record indicates clearly that the answers of the witness to which the Court referred not only exceeded the scope of the questions propounded to him but also contained argumentative assertions unrelated to the subject of the examiner’s inquiry. It is also apparent that if the witness was permitted to continue such practice, the same might well have resulted in prejudice to the defendant’s rights. In admonishing the witness against interjecting extraneous matters into his answers, the Court appears to have properly refrained from expressing an opinion concerning the credibility of the witness or the weight to be accorded his competent testimony.”

We conclude after examining the record that the dialogue between the court, counsel and witness fails to disclose any conduct or comment that could be construed as prejudicial to the defendant Cab Company. The comments of the trial judge did not constitute an opinion on any of the evidence. Occasional questioning without expression of opinion on any controverted question of fact is within the discretion of the trial court, and “in absence of a manifest abuse of such procedure would not constitute reversible error.” (Northern Illinois Gas Co. v. Wienrank, 66 Ill App2d 60, 76, 213 NE2d 411 (1965).) Here we think it was obvious that the trial judge was trying to clarify the testimony of the witness, and we find there was no prejudicial error in so doing.

Defendant Yellow Cab next contends that the jury was improperly instructed. It argues that plaintiff Bebb’s instruction No. 5 (IPI instruction No. 60.01) should have been limited to DeVries or not given. It provided:

“There was in force in the State of Illinois, County of Cook, at the time of the occurrence in question, a certain statute which provided that:

“ ‘No person shall drive any vehicle upon any public highway of this State at a speed which (1) is greater than reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property; (2) is greater than the applicable maximum speed limit. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection or when special hazard exists with respect to other traffic or by reason of weather or highway conditions; and speed shall be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.’ ”

Defendant Cab Company asserts that the instruction should have been limited to DeVries so that the jury would not consider the statute in relation to the Cab Company when, on the evidence, it was inapplicable to the Cab Company. On this point defendant Cab Company’s authorities include Harris v. Minardi, 74 Ill App2d 262, 220 NE2d 39 (1966), where the court stated that the giving of a similar instruction constituted reversible error because there was no evidence that defendant was speeding and said (p 265):

“The only evidence of speed in the case was on the part of the plaintiff’s driver. There is no evidence that the defendant was speeding. The speeding instruction tended to contradict the instruction on imputing negligence and the jury could have easily been confused by giving the foregoing instruction. Since the only evidence of speed was on the part of the plaintiff’s driver the jury could have concluded that they were to use this evidence against the plaintiff as well as his driver. Under such misapprehension, the jury could have reached a compromise verdict.”

Plaintiffs and defendant John DeVries argue that it is not fair to presume that the jury was misled. There was evidence of a fast turn by the cab, and the driver himself stated he “shot the gas.” Furthermore, IPI instruction 41.03 was given to the jury, which provided:

“Although there is more than one defendant in this action, it does not follow from that alone that if one is liable, both are liable. Each is entitled to a fair consideration of his own defense and is not to be prejudiced by the fact, if it should become a fact, that you find against the other. The instructions cover the case as to each defendant insofar as they are applicable to him, to the same extent as if he were the only defendant in the action and regardless of whether reference is made to the defendant or defendants in singular or plural form, you will decide each defendant’s case separately as if each were a separate lawsuit.”

We find no prejudicial error in the giving of plaintiff Bebb’s instruction No. 5. The speed of both vehicles was an issue, and the record contains sufficient evidence on this issue so as to place the giving of this instruction within the sound discretion of the court. IPI instruction No. 41.03 negates any inference that the jury might have been misled. We conclude the jury was adequately instructed and find no error here.

The final contention of defendant Yéllow Cab is that the verdicts exonerating defendant DeVries and finding against the Cab Company are contrary to the manifest weight of the evidence. It asserts that the sole cause of the collision was the negligence of John DeVries, and this is evidenced by the testimony of two independent eyewitnesses, uncontradicted, that DeVries was going 50 miles per hour before the collision, coupled with De Vries’s admission that he was driving at 40 miles per hour or better, and reinforced by the 80 feet of skid marks measured by the police officer and a bystander. It further asserts that the same conclusion is corroborated by the location of the impact in the curb lane by the independent eyewitnesses, the debris observed on the ground by the investigating officer, and the point of impact on the two vehicles.

Plaintiffs argue that it was for the jury to believe or disbelieve the testimony of the eyewitnesses and John DeVries, as well as Onzo Hoosmon. They assert that the jury obviously did not believe the complete testimony of the two independent eyewitnesses produced by the Yellow Cab Company and did believe the testimony of John DeVries by finding him not guilty of any negligence.

In sum, we find no prejudicial error that would warrant the granting of a new trial here. The record shows that the proper issues together with adequate instructions were submitted to the jury, and that all parties received a fair trial. Considering the testimony of De Vries and Hoosmon as to the position and speed of each car immediately prior to the impact, we find that this is not a case in which an opposite conclusion to that of the jury is clearly evident, as is required before this court can disturb the verdicts. Griggas v. Clauson, 6 Ill App2d 412, 419, 128 NE2d 363 (1955); Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 72 NE2d 705 (1947).

For the reasons given, the judgments of the Circuit Court of Cook County are affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Juan G. Alvarez, Defendant-Appellant.
    Gen. No. 53,363. (Abstract of Decision.)
    First District, First Division.
    February 2, 1970.
    Goldberg & Gold-
    berg, of Chicago, for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Robert Kelty, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by JUSTICE ADESKO.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Palmer, Defendant-Appellant.
    Gen. No. 53,374.
    First District, First Division.
    February 2, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Zulkey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial, defendant was found guilty of (1) armed robbery, and (2) aggravated battery, and he was sentenced to the penitentiary on each charge for concurrent terms. On appeal defendant contends (1) his pre-trial motion to suppress the identification testimony should have been sustained; (2) the jury was improperly instructed; and (3) the evidence was conflicting and so unsatisfactory as to raise a reasonable doubt of his guilt.

Early in the morning of October 8,1967, at about 1:30, the complaining witness, Donald Smith, left a tavern at Madison and Francisco in Chicago. As he was walking north on Francisco Avenue toward his car, a man, whom Smith later identified as defendant, put his arm around Smith’s neck, stuck something in his back that felt like a gun and said, “This is a stickup. Don’t turn around.” The man reached in Smith’s pocket and took out $13 and Smith’s wallet. Smith then hit the robber and knocked him against a building. Smith lost his balance and fell across the sidewalk. As Smith was lying on his back on the ground, his assailant fired three shots at him, two of which hit Smith in the back. Smith was taken to a hospital, where he told Police Officer Butler that his assailant was a male Negro, 5' 8" tall, about 30 years old, and maybe 190 pounds.

During the trial Smith made an in-court identification and also identified his wallet and its contents that were recovered by the police. He said that when he struck his assailant, and while he was lying on the ground, he had a clear view of his assailant’s face because the streetlights were directly shining on it. Also, the assailant fired the shots at him from a distance of three or four feet, at which time Smith observed his assailant’s face and said, “That’s when I said I’ll never forget it.” He said that during the occurrence he noticed his assailant’s hair was processed and he had a goatee and very unusual blemishes on his face.

The record further shows that on October 12, 1967, at about one o’clock in the afternoon, Officers Reynolds and Chorley observed defendant and another man in an alley. One of the officers saw a bright metal object in defendant’s hand which resembled a gun. When the two men noticed the police they fled up a railroad embankment and separated. After arresting both men, the officers found Smith’s wallet halfway up the embankment in open view. On October 20, 1967, in the Criminal Courts Building, Smith picked out defendant from twenty-four men in a bullpen. Defendant’s hair had become curly, but he still had his goatee.

Defendant testified at the trial and denied the robbery and shooting. He stated he was at home at all times on the day in question. The first time he saw the complaining witness was at the bullpen on October 20,1967.

Initially considered is defendant’s contention that his motion to suppress the identification testimony should have been sustained because (a) defendant should have been provided with an attorney at the confrontation in the bullpen, and (b) the method of identification was improper and unlawful. Defendant notes that he was arrested on October 12,1967; the confrontation at the bullpen was on October 20, 1967; and he was indicted on October 31, 1967. Defendant contends that the confrontation at the bullpen was a critical stage of the proceedings, which required that the assistance of an attorney should have been provided him, even though he had not been indicted.

The testimony for the State at the pretrial hearing of defendant’s motion to suppress the identification testimony shows: On October 15, 1967, Officer Warren Anderson informed Smith the police had a man in custody and they had recovered Smith’s wallet. Officer Anderson showed Smith about six photographs. Smith selected a photograph as that of the defendant. On October 20, 1967, Smith went to the Felony Court with Officer Anderson and Assistant State’s Attorney Neville. They then went to the Felony Court bullpen, in which there were 24 men, of which 18 or 19 were Negroes. The men were not arranged in any particular manner, nor were they wearing any distinctive dress. Smith said, “They told me that the guy was there in the lockup and if I could point him out. ... I pointed at the defendant, John Palmer,” who was standing “in the very back of the lockup.” Smith made the remark, “That is the one.” Officer Anderson called defendant over and asked him his name, and defendant replied, “John Palmer.”

At the pretrial hearing Officer Anderson and Assistant State’s Attorney Neville substantially corroborated Smith’s testimony as to the bullpen confrontation on October 20, 1967. Both testified there were 24 men in the bullpen, and Smith pointed to a man in the back of the bullpen. Anderson also testified that on October 15, and after Smith selected the picture of defendant Palmer, he then told Smith that the picture selected by Smith was of the man found with Smith’s wallet. On October 20, and before the bullpen confrontation, Anderson showed Smith two photographs, and Smith again selected the same picture.

Defendant argues “that at any stage from the time defendant was in custody,” assistance of counsel should have been provided him, and “such assistance was not afforded to the defendant nor was he advised in any manner of his constitutional rights.” Defendant further argues that “a photograph of the accused should never be shown prior to a confrontation”; also, that there never was a lineup and only a “makeshift confrontation.” Defendant also argues that Smith’s statement “that he was looking in defendant’s face while he was being shot is a brazen lie,” because the shots could not have been in his back while Smith was looking at defendant’s face.

Defendant’s authorities on the bullpen identification issue include Stovall v. Denno, 388 US 293; United States v. Wade, 388 US 218; Gilbert v. California, 388 US 263, and Wall’s Eye-Witness Identification in Criminal Cases, pp 8, 68, 70, 74, 75, 76, 77. A review or discussion of these authorities is unnecessary here because we are not persuaded that the identification guidelines stressed in these authorities should be applied here. It is not disputed that this was a preindictment identification, and that defendant did not have counsel at the bullpen confrontation, nor was he informed that he was entitled to the assistance of counsel.

We think the determinative question here is whether the bullpen identification “was so unnecessarily suggestive and conducive to mistaken identification that the defendant was denied due process of law.” People v. Palmer, 41 Ill2d 571, 573, 244 NE2d 173 (1969).

After examining the totality of the circumstances surrounding the bullpen confrontation, we find no unfairness here which deprived defendant of due process of law. Neither the showing of the photographs to Smith prior to the bullpen confrontation nor the bullpen procedure were improper or suggestive. In fact, we think the bullpen confrontation was more fair and less suggestive than a lineup, Also, we believe the testimony shows that Smith had ample opportunity to observe defendant at the time of the occurrence, which provided an adequate independent basis for the in-court identification. People v. Palmer, p 574; People v. Cook, 113 Ill App2d 231, 237, 252 NE2d 29 (1969).

We conclude that although we believe the bullpen identification was at “a critical stage of the proceedings,” which might have entitled defendant to the presence of counsel, even though he had not then been indicted, the “totality of the circumstances” surrounding the clear and convincing identification by Smith, including the photographs and bullpen confrontation, was not fundamentally unfair or prejudicial to defendant and did not deprive defendant of due process. We find the motion to suppress was properly denied.

Next considered is defendant’s contention that the jury was improperly instructed. This contention is based on the premise that it was error for the court to refuse defendant’s instructions Nos. 12 and 15. We have examined the instructions given to the jury and find that considered as a whole, the given instructions fully and fairly announce the law applicable to the theories of the case, and that the jury was adequately instructed. We find that the court did not abuse its discretion in refusing to give defendant’s instructions Nos. 12 and 15. People v. Turner, 82 Ill App2d 10, 27, 226 NE2d 667 (1967).

Finally considered is defendant’s contention that the evidence was so conflicting and so unsatisfactory as to raise a reasonable doubt of his guilt. We have examined the evidence in the light of defendant’s contentions and authorities and conclude the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt. The victim Smith had ample opportunity to observe his assailant, and his in-court identification was positive and consistent throughout and sufficient to convict, even though the testimony was contradicted by the accused. (People v. Miller, 30 Ill2d 110, 113, 195 NE2d 694 (1964).) Also, the finding of Smith’s wallet within the vicinity of defendant’s arrest was substantial corroboration of Smith’s identification of defendant as his assailant. (People v. Bryan, 27 Ill2d 191, 194, 188 NE2d 692 (1963).) The conflicts in the evidence of the State were not such as to raise reasonable doubt as to defendant’s identity or guilt.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE BURMAN

text:
    Vincent Radice, Administrator With Will Annexed of the Estate of Chancey Radice, Deceased, Plaintiff-Appellant, v. Gabriele Antonacci, Defendant-Appellee.
    Gen. No. 54,005.
    First District, First Division.
    February 2, 1970.
    Rehearing denied February 26, 1970.
    Leonard Karlin, of Chicago, for appellant.
    Rafael A. Del Campo, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This case comes to us on appeal from a final order dismissing plaintiff’s complaint with prejudice.

On August 27, 1968, a complaint was filed by Vincent Radice, as Administrator with Will annexed of Chancey Radice, deceased, in the Chancery Division of the Circuit Court of Cook County, seeking a determination that property inherited by Gabriele Antonacci from his spouse, Jessie Antonacci, is subject to a constructive trust in favor of the creditors and legatees of Chancey Radice. It was therein averred that at the time of the death of Jessie Antonacci, on June 7, 1968, there was pending in the Circuit Court of DuPage County, a certain claim consisting of a suit entitled “Vincent Radice, Administrator with Will Annexed of the Estate of Chancey Radice, Deceased, plaintiff v. Jessie Antonacci, defendant” bearing the number 66-1657G. In that complaint it was alleged that Chancey Radice, in 1958, one year after her marriage to Vincent Radice, executed a will providing for the distribution of her estate in four equal parts to three sisters and the children of a deceased brother. It was averred that this was an illegal attempt to disinherit a surviving spouse and that Vincent Radice had renounced the will. Plaintiff further alleged, that in order to effect such illegal purpose Chancey Radice diverted all of her assets by means of a joint tenancy with Jessie Antonacci, her sister, that would be effective upon her death for the purpose of leaving her estate worthless and exclude her husband from any distribution. The complaint then listed real and personal property that was diverted to Jessie Antonacci, “as trustee for distribution under the terms of the will.” It was stated that Jessie Antonacci instead claims these properties as her own. Plaintiff prayed in the suit in DuPage County that the defendant be directed to convey all such assets to the estate of Chancey Radice and that the cause be assigned to the Probate Division of the .Circuit Court. In the complaint, in the Circuit Court of Cook County, plaintiff asked the court to determine such a constructive trust in the property of Gabriele Antonacci and to order such property to be conveyed to the plaintiff administrator.

The defendant, Gabriele Antonacci, filed a special and limited appearance on October 3,1968, to question whether the Circuit Court of Cook County had jurisdiction to hear the matter. The defendant filed a verified affidavit in which he alleged that the res in this case, as in the DuPage County case, consisted of property that Jessie Antonacci held in joint tenancy with Chancey Radice, deceased, who resided at the time of her death in DuPage County and that Vincent Radice, plaintiff in this action, was the plaintiff in the DuPage case. The case in DuPage County commenced after a citation proceeding was held in the estate of Chancey Radice. The Probate Judge determined that all the property alleged to belong to the estate of Chancey Radice (64P135 Du Page County) was properly the property of Jessie Antonacci and dismissed the complaint. It was further alleged that plaintiff then filed an appeal and the order was reversed by the Appellate Court for the Second District on the ground that the Probate Division did not have power to make a final determination of property in a citation proceeding. Upon remand, the defendant filed her motion for summary judgment. Jessie Antonacci died on June 7, 1968. A suggestion of death was filed and a special administrator was appointed. After arguments were heard, the court found on June 14, 1968, that all the property alleged to belong to the estate of Chancey Radice, was the property of the defendant. Vincent Radice moved to vacate the summary judgment on the ground that the defendant’s death abated the action. This motion was denied, and no appeal was taken therefrom.

On October 25, 1968, plaintiff moved to hold the defendant’s special appearance in the Cook County case as a general appearance. In support of this motion, he alleged that he placed all his money in joint tenancy with his wife, Chancey Radice, who unbeknownst to him diverted their money into a joint tenancy with her sister, Jessie Antonacci. Plaintiff did not discover this until after his wife’s death in 1963. As the surviving spouse and as administrator he brought citation proceedings in DuPage County Probate Court to recover property on the doctrine of a constructive or resulting trust. After the Appellate Court for the Second District rendered its decision and remanded the case, the defendant filed an answer which presented no new material and moved to dismiss on the pleadings. While this motion was pending, on June 7, 1968, the defendant, Jessie Antonacci, died. It was further alleged that on June 14, 1968, without informing counsel for the administrator of the death, (although filing a suggestion of death with the court) counsel for the deceased, Jessie Antonacci, prevailed upon the court in DuPage County to rule favorably upon his motion. “The notice of motion recited that the purpose of his motion was to have the matter set for argument, and his opposing counsel had called to tell him he was engaged in trial and could not be present that morning.” The present suit was brought in Cook County because it is the county of residence of the defendant against whom the administrator is entitled to proceed since the DuPage County action abated upon the death of the holder of the legal title to the trust property and no orders entered thereafter were of any force and effect.

On February 10, 1969, the matter was heard on the motion, the complaint, special and limited appearance and affidavit of the defendant questioning the jurisdictian of the court, and the plea of res judicata by reason of the final order of the Circuit Court of DuPage County sustaining a motion for summary judgment for the defendant in that case. After a hearing, the court ordered the complaint to be dismissed with prejudice for want of equity. This appeal by plaintiff followed.

Plaintiff argues that when Jessie Antonacci died, the Circuit Court of DuPage County lost jurisdiction of the matter because it had jurisdiction of her property and person only until the time of her death. Since Gabriele Antonacci was not substituted as a party, as required by Ill Rev Stats 1967, c 110, §54(2), he never subjected himself to the jurisdiction of the DuPage court and could be sued individually when personally served in the jurisdiction of the Cook County Circuit Court.

The record clearly establishes that the plaintiff administrator commenced an action in DuPage County, prior to the death of Jessie Antonacci, asserting the same claim against her that is made in the instant complaint — that she was holding property subject to a constructive or resulting trust for the benefit of the heirs and legatees of the late Chancey Radice. A suggestion of the death of Jessie Antonacci was made in the Du Page County case after June 7,1968. On June 14,1968, a summary judgment was entered in that case holding the property in question to belong to Jessie Antonacci. A motion by the administrator to vacate this judgment was denied and no appeal was taken from that judgment. The complaint in the case at bar was filed in the Circuit Court of Cook County on August 27, 1968, and dismissed on February 10,1969.

It will thus be seen that the identical issues were commenced by the administrator in both DuPage and Cook Counties. It is a principle universally accepted that the same issue cannot be litigated to a final conclusion between the same parties two or more times where the first judgment is final, unappealed from and unreversed. People ex rel. McAllister v. East, 409 Ill 379, 383, 100 NE2d 746, 747. The Supreme Court reminded us in the McAllister case that:

... in all cases where the second suit is upon the same cause of action and between the same parties or their privies as the former action, the bar thereof exists not only to the questions actually litigated and decided, but to all other grounds of recovery or defense which might have been presented.
. . . [W]hatever may be adjudged between the parties in the exercise of a proper jurisdiction, no error in the exercise of that jurisdiction, however gross, can be urged in a collateral proceeding, and . . . however erroneous the decision may be, it is binding upon all parties until it is reversed or set aside in a direct proceeding for that purpose. In other words, the court having jurisdiction has jurisdiction to decide erroneously as well as correctly. 409 Ill at 383, 100 NE2d at 747.

The present proceedings present a clear case where the doctrine of res judicata applies and bars an attempt to relitigate the former suit. The judgment dismissing plaintiff’s complaint is therefore affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.