author: MR. JUSTICE SEIDENFELD ABRAHAMSON, P. J.,

text:
    Phyllis Manders and Frank Manders, Plaintiffs-Appellants, v. Peter Pulice, Defendant-Appellee.
    Gen. No. 68-15.
    Second Judicial District.
    November 27, 1968.
    Rehearing denied January 9, 1969.

      ABRAHAMSON, P. J., dissenting.

      Miller, Gorham, Wescott and Adams, of Chicago (Marvin F. Metge, of counsel), for appellants.
    Corrigan, Mackay, Quetsch and O’Reilly, of Wheaton (John R. Mackay, of counsel), for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiffs appeal from judgments entered on jury verdicts in a suit claiming injury to Phyllis Manders and damages to Frank Manders for loss of his wife’s consortium arising out of the same collision. Judgment in the amount of $6,000 was entered on the guilty verdict against the defendant Peter Pulice for the wife; judgment of “0” damages was entered on the guilty verdict against the defendant, for the husband. Plaintiffs’ motion for a new trial on damages alone, or in the alternative, for a new trial, was denied.

Plaintiffs, in support of their appeal for the same alternative relief here, urge the inadequacy of the damages awarded, the inconsistency of the verdicts, and errors in rulings on instructions.

Defendant counters that the evidence does not support more favorable verdicts; that the trial court correctly ruled, in effect, that the “0” was a “not guilty” verdict and proper under the facts; and that the alleged errors in rulings on instructions have not been preserved for review.

The accident took place on August 25, 1965, when the car in which Mrs. Manders was riding was struck head-on by a car driven by defendant. The car in which plaintiff was traveling was moving slowly while passing the scene of an earlier accident. Defendant’s car was estimated by an eyewitness to be traveling at between 30 and 40 miles per hour when it crossed the center line and struck the car in which plaintiff was riding.

In the collision, Phyllis Handers was thrown from the rear seat up against the front windshield, and removed from the scene to a hospital where she remained for six days.

The deposition of her attending physician, Dr. Glen Asselmeier, evidenced that Mrs. Handers had received a compound comminuted fracture of the tibia, and a fracture of the fibula of her right leg; cerebral concussion; severe laceration of the lateral aspect of her nose; a dislocation of her right ankle; and multiple abrasions and bruises. During her stay in the hospital she made no complaint of headaches or radiating pain in her legs. When she was discharged from the hospital, her condition was good. She had a long leg cast on and walked on non-weight bearing crutches. When he next saw her on September 7, 1965, she was still in the long leg cast and had some pain in her leg, but not enough to require medication. She complained of back problems which he associated with her altered gait, and diagnosed as low back strain. When he next saw her on September 21, 1965, his findings were the same except he was not satisfied with the cosmetic aspect of her nose which had been sutured. After a number of further examinations and a resection of the scar on her nose resulting in a “plastic fine line scar,” he discharged her after March of 1966. At that time her leg had healed well and was weight bearing. Throughout, she had complained of “vague” dizziness and “vague” back problems, and of pain in her leg. On discharge he advised her to return if she had further complaints, but she did not do so. In his opinion all of her injuries were from the accident.

Dr. Orren D. Baab, an orthopedic surgeon, testified that he examined Phyllis Handers on June 13, 1967. She walked well with a “temporary” limp when she got up from the chair. The scar on her nose was visible but “not cosmetically undesirable.” There were small visible scars under the right and left eyebrow, a bony prominence over the right eyebrow, and a thick scar behind her shoulder. He found that the right calf measured 13% inches, the left calf 14 inches. The right ankle was a little smaller than the left. The right leg was %6ths of an inch shorter than the left leg, but this would not produce a limp nor any subsequent disability in the knee or hip. There was “an early arthritis” of the ankle joint, with a limitation of motion in the foot. It was his opinion that if she restricted herself to decreased activity she would experience only some ache, stiffness and discomfort, which she could handle herself with aspirin; but that if she assumed a normal life she would in the future require more definitive care and stronger medication. While both the limitation of motion in the ankle, and the shortening of the right leg were permanent conditions, the difference between circumferences of the calves would improve with exercise.

The medical and hospital expenses were $1,282.37. Mrs. Handers’ lost wages for the twenty-nine or thirty weeks she was absent amounted to about $3,300.

The evidence on the claim for loss of consortium as testified to by Frank Handers consisted of the following: Prior to August 25, 1965, Mrs. Handers was in good health and she and her husband did a great deal of dancing, bowling, ice skating and roller skating. She did the housework, cooking, laundry and other chores in taking care of the family. Her mother-in-law stayed with her for the first two weeks following the hospitalization and was paid $75. Thereafter her husband did most of the chores around the house, with assistance from their two daughters, as she was in a wheel chair for most of the time during the months following the accident. Mrs. Handers resumed her full household duties about two months before the trial, in June, 1967.

Following the hospitalization, Phyllis Handers was short-tempered, very irritable and could not remember anything that was told to her. Her gait was still very labored and awkward. She could not “communicate” with her husband after the accident. There was a change in her sleeping habits. At least one night a week Hr. Handers would wake up in the middle of the night and find Mrs. Handers sitting in the front room. Mrs. Handers still limps on occasions. He testified he lost $500 in wages for unreimbursed time he took off from work to take his wife to the Doctors. (Dr. Asselmeier’s testimony, however, accounted for ten to eleven visits of which he had made records, while both plaintiffs testified to between twenty and twenty-five visits.)

We first approach the question of the adequacy of the judgment secured by Phyllis Handers. Considered separately from the “0” judgment in the husband’s claim, we would not overturn it. We cannot say, from this record, that it is so grossly or palpably inadequate as to be against the manifest weight of the evidence. While her testimony of her suffering and complaints at the trial and the number of her visits to the doctor were of greater magnitude than the Doctors accounted for in their testimony, this raised a question of credibility, peculiarly within the discretion of the jury, in a trial, as here, free from prejudicial trial error on this issue. Borries v. Z. Frank, Inc., 73 Ill App2d 128, 136, 219 NE2d 737 (1966); Johanneson v. Ring, 82 Ill App2d 340, 346-348, 226 NE2d 291 (1967); Haleem v. Onate, 71 Ill App2d 457, 460-461, 219 NE2d 94 (1966).

If we then consider the “0” verdict and judgment on Frank Handers’ claim for loss of consortium, apart from the judgment for his wife’s injuries, we must conclude from the record that, irrespective of whether it is construed as a “not guilty” finding or as “0” damages, it is against the manifest weight of the evidence. Cases cited by defendant for the rule that where no damages have been proved, there is no requirement that the jury return damages even after a guilty verdict, are not in point. (E. g., Johanneson v. Ring, supra, 346; Haleem v. Onate, supra, 462-464.)

For here the testimony of both Dr. Asselmeier and Frank Handers, unrefuted, established that Phyllis Handers was physically incapable of performing normal household chores for a period of at least five months. As a result of her injuries she was changed from an active normal wife to one with a short temper, changed sleeping habits, and uncommunicative with her husband. In addition, there was proof of loss of work by the husband in attending to his wife and family representing an out-of-pocket loss of approximately $500.

Rlinois recognizes a separate cause of action in the husband’s name where, by reason of injuries to his wife, the husband has been deprived of her services as his wife, and has suffered and sustained a loss of her consortium, or has been put to expense which was not recovered in the suit by the wife. Barbour v. Great Atlantic & Pacific Tea Co., 143 F Supp 506, 507 (1956); Price v. H. B. Green Transp. Line, 287 F2d 363 (1961). Consortium in Illinois is comprised of not only material services, but also the elements of companionship, felicity and sexual intercourse, all welded into a conceptualistic unity. Dini v. Naiditch, 20 Ill2d 406, 427, 170 NE2d 881 (1960). Consortium has also been described as including a person’s affections, society, and aid. Betser v. Betser, 186 Ill 537, 539-540, 58 NE 249 (1900). A declaration which charges in apt words that the wife of the plaintiff was injured through the negligence of the defendant, and that by reason of such injuries he has been deprived of her services and society and put to expense, shows a good cause of action. Chicago & Milwaukee Elec. R. Co. v. Krempel, 116 Ill App 253, 255-256 (1904).

If, as defendant suggests, although the trial judge did not so expressly state, he construed the “0” verdict as a “not guilty” verdict, we reach the same result. Chapin v. Foege, 296 Ill App 96, 100-104, 15 NE2d 943 (1938), cited by defendant, does not sustain his position, in that in Chapin the court expressly and consistently construed the verdict to avoid the inartificiality of the verdict forms in order to give effect to the intention of the jury. The jury had, the court felt, decided that plaintiff was contributorily negligent and that therefore neither plaintiff nor defendant was entitled to damages. Here, however, the trial court made no express ruling and could not do so because, since Frank Handers was not involved in the accident, it would be inconsistent to find defendant guilty in one action and “not guilty” in the other.

Defendant’s further argument that the case of Kimmel v. Hefner, 36 Ill App2d 137, 183 NE2d 13 (1962), cited by both parties, sustains the trial court is finally considered. The jury there returned a verdict for $13,000 for the wife, but, as to the husband’s claim for consortium, first returned no verdict, and then being instructed by the court to return and render a verdict, found in his favor but assessed “no” damages. The wife did not appeal. The husband was the driver, with his wife as a passenger. The court sustained the verdict, stating on pages 142-143:

“The Illinois cases on the judge’s authority to interpret, and the holding that common sense should prevail over legalistic forms, furnished some basis to support the judgment. The jury may have intended a not guilty verdict on the theory that this plaintiff was not free from contributory negligence. We hesitate to dispose of the case on this ground alone, since there appears to us the possibility the jury intended to disregard the instructions of the court, and deliberately return inconsistent verdicts. If this latter were the fact, then it is our opinion both verdicts should have been disregarded and a new trial ordered as to both claims. Gray v. Brooklyn Heights R. Co., 175 NY 448, 67 NE 899; Keith v. Appelberg, 77 NYS2d 349.
“The jury may have considered the award to the wife as adequate to the family, and denied a separate recovery to the husband for that reason, hence, the failure on the first time to return any verdict on his claim. But if that were the fact, then it would be manifestly unfair to reverse and order a new trial as to the husband’s claim alone, without the possibility of adjusting the other verdict to fit.
“Considering the two verdicts together we cannot say that damages clearly proven have been overlooked, they may have been considered and the single verdict regarded as covering both claims. Since this court cannot disturb the verdict as to the wife, the judgment on the separate claim of the husband is affirmed.”

Here, both claimants have appealed and the entire record is before the court. Unless we are to speculate that the verdict as to the wife was intended to be adequate as to the family, it appears that damages on the husband’s consortium claim have been overlooked and it appears highly possible that the jury intended to disregard the instructions and deliberately returned inconsistent verdicts. Since both verdicts are before us on this appeal, no unfairness will result because on a retrial the jury can properly evaluate both the claim of the wife for her injuries and the claim of the husband for his loss of consortium.

In this view, we do not reach the question of the rulings on instructions.

We, therefore, reverse and remand for a new trial consistent with this opinion.

Reversed and remanded for a new trial.

MORAN, J., concurs.

ABRAHAMSON, P. J.,

dissenting:

The majority of the Court has determined that the award to Phyllis Manders is adequate. It appears to me to award her a new trial solely on the grounds that an “0” verdict was returned for her husband for loss of consortium is inconsistent.

It is my conclusion that the pronouncements in Kimmel v. Hefner, 36 Ill App2d 137, 183 NE2d 13 (1962) would sustain the trial court.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE ABRAHAMSON

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Junior Savage, Defendant-Appellant.
    Gen. No. 68-37.
    Second District.
    November 27, 1968.

      John T. Beynon, Public Defender, of Rockford, John F. McNamara and Vern L. Davitt, Assistant Public Defenders, for appellant.
    William R. Nash, State’s Attorney of Winnebago County, of Rockford, and Daniel D. Doyle, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, Junior Savage, was tried on a murder charge before the court without a jury. This appeal is from the defendant’s conviction for murder by the Circuit Court of Winnebago County. Defendant has been sentenced by the court to serve a term of not less than thirty nor more than fifty years in the Illinois State Penitentiary.

The evidence discloses that at approximately 12:30 a. m. on October 27, 1966, defendant, a fifty-year-old man, voluntarily walked into the Headquarters of the Winnebago County Sheriff with his hands raised above his head and without question or comment by anyone stated, “I done it; I done it; arrest me; arrest me.” One of the Deputy Sheriffs asked him what he had done. He replied, “I killed my wife.” The Deputy asked, “What did you kill her with?” He answered, “With an axe, that’s all I had.” Without further questioning, several Deputy Sheriffs took him to his home where they conducted an on-the-scene investigation not involving interrogation of the defendant.

Upon entering, they found the body of a woman, severely lacerated about the head and neck lying on the living room floor. There was an axe lying near the body and also a broken kitchen knife.

The testimony of one of the deputies present was that he thereupon informed defendant that he had the right to remain silent, that anything he said could be used against him and that he need not make a statement without a lawyer present. One of the other deputies present stated that defendant had also been informed that counsel would be appointed if he was indigent. No questioning took place at this time. The Sheriff’s deputies and the defendant returned to the Sheriff’s office. Defendant was then and there fully advised as to his constitutional rights and was given the name and telephone number of the Public Defender and advised that he had the right to call the Public Defender and have him present. Defendant then made an oral statement admitting that as a result of an argument with his wife, he had hit her with the axe, killing her; that he then went to the kitchen, secured a kitchen knife and tried to take his own life by falling on the knife; that the knife broke, and he then went to the Sheriff’s office.

Prior to being tried for murder, defendant had a sanity hearing before a jury and was found sane.

At the trial for murder which began on May 1, 1967, a defense psychiatrist testified that he had examined the defendant on February 15, 1967, and found him to be suffering from a long-term brain damage, which prevented him, at the time of the offense, from understanding the nature of his act. In rebuttal, the People called a psychiatrist who testified he had examined and tested the defendant in the County Jail on seven separate occasions between February 23 and March 17, 1967, and found no evidence that defendant was mentally defective, mentally ill, had brain damage nor was suffering from brain damage at the time of the offense; and in his opinion, defendant understood the nature of his acts.

Prior to trial defendant had served the People with a subpoena duces tecum calling for the production of statements of the defendant and also statements taken from any witnesses who were going to testify. The trial judge granted the State’s motion to quash the subpoena, with the qualification that if any of the State’s witnesses were to testify from records, those records would first be made available to defendant.

On this appeal defendant contends: (a) he was not adequately advised of his constitutional rights; (b) that the court erred in granting the motion to quash his subpoena and (c) that finding defendant guilty of murder in view of the psychiatric testimony was against the manifest weight of the evidence.

Defendant contends that the statement made by him when he walked voluntarily into the Sheriff’s office was inadmissible because he was not first informed of the warnings required in some circumstances by Miranda v. Arizona, 384 US 436, 16 L Ed2d 694, 86 S Ct 1602. The statement made by the defendant is a classic illustration of what has been termed a “threshold confession.” Defendant came voluntarily into the Sheriff’s office and before the Sheriff’s police were even aware a crime had been committed, he made his statement that he had killed his wife with an axe. In the Miranda case the court stated (16 L Ed2d 694, 726):

“. . . Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”

The testimony as to the statement was in our opinion properly admitted.

After this voluntary statement was made at the Sheriff’s office, the Sheriff’s deputies took the defendant to his home, the scene of the crime. There they investigated but did not subject defendant to any questioning. He was advised of his rights at that time, although the evidence is unclear as to whether he was then advised that if he was indigent an attorney would be appointed to defend him. Again, before any questioning or interrogation was started, he was returned to the Sheriff’s office where he was fully advised of his rights and was, in fact, given the name of the Public Defender. At this point, he stated that he wished to tell his story and to get it off his chest and made a detailed statement of the occurrence and the events leading up to it. Having been fully advised of his rights prior to making this statement, it was proper to admit it into evidence.

The second contention of the defendant is that the court erred in quashing his subpoena duces tecum, which purported to require the production of police reports in advance of trial. The People’s motion to quash this subpoena was granted by the court with the provision that defendant would have access during the trial to reports bearing upon testimony of any prosecution witness prior to cross-examination. This ruling is squarely in line with Illinois cases which consistently hold that the defense is entitled to examine police reports only for impeachment purposes after the pertinent witness has actually testified at the trial. People v. Ostrand, 35 Ill 2d 520, 531, 221 NE2d 499; People v. Turner, 29 Ill2d 379, 383, 194 NE2d 349; People v. Wolff, 19 Ill2d 318, 323, 167 NE2d 197; People v. Hall, 83 Ill App2d 402, 410, 227 NE2d 773.

Defendant’s final contention is that the defense raised at trial the question of the mental capacity of the defendant to control his impulses or to understand the nature of the act he had committed. Defendant claims that this defense was not rebutted by the State, and, that the only evidence was the testimony of Dr. J. G. Graybill. The defendant in this argument ignores the fact that the State called Dr. Carl Hamann as a rebuttal witness and that he testified that the defendant, Junior Savage, was sane at the time of committing the offense. Defendant also ignores the fact that prior to trial there was a full sanity hearing.

The factual situation before us is similar to one that existed in People v. Lemay, 35 Ill2d 208, 220 NE2d 184. In that case Dr. Graybill had testified that defendant did not know what he was doing at the instant of the shooting. A psychiatrist called by the People in rebuttal testified that the defendant was sane and had no symptoms of brain damage and understood the nature of his act. The Court said at p 211:

“Defendant argues that once evidence of insanity is introduced the ordinary presumption of sanity does not prevail and the burden devolves on the State to prove that at the time of committing the act, the accused was legally sane. (Citation omitted.) We agree with this concept of the burden of proof. However, we feel that the present record raises a factual question for the jury on the issue of defendant’s sanity at the time of the occurrence,
“Dr. Graybill’s hypothesis of momentary insanity was based on many factors including an assumption of brain damage, a borderline normal electroencephalogram, and an inflammatory statement allegedly made by the deceased. Dr. Stephan, while he did not affirmatively state that defendant was sane at the time of the occurrence, raised a question of fact as to the validity of Dr. Graybill’s opinion, and defendant’s prior claim of an accidental shooting effectively rebuts the assumption of the deceased’s alleged inflammatory remark. In addition the jury could consider the physical facts relating to the shooting. We believe the jury was justified in determining that the State had satisfied the burden of proof on the issue of sanity.”

In the case at bar, we believe that the State satisfied the burden of proof on the sanity issue.

We cannot hold that the verdict of the jury is contrary to the manifest weight of the evidence. We are of the opinion that the judgment of the court below should be affirmed.

Judgment affirmed.

MORAN and DAVIS, JJ., concur.


author: PRESIDING JUSTICE SMITH.

text:
    Sam Sorkin, et al., Plaintiffs-Appellees, v. Maurice J. Lazarus (Bernice Lazarus, Deceased), et al., Defendants-Appellants.
    Gen. No. 51,714.
    First District.
    December 2, 1968.
    Elmer Gertz, of Chicago (Elmer Gertz and Wayne B. Giampietro, of counsel), for appellants; Bernard H. Sokol, of Chicago (Sokol, Schwab & Agran, of counsel), for appellees.
   Opinion by

PRESIDING JUSTICE SMITH.

Not to be published in full.


author: MR. JUSTICE DAVIS

text:
    Lombard Park District, a Municipal Corporation, Plaintiff-Appellant, v. Chicago Title and Trust Company, Not Individually but as Trustee Under Trust Agreement Known as Trust No. 36988, Maywood-Proviso State Bank, Not Individually but as Trustee Under Trust Agreement Known as Trust No. 1604, Elmhurst National Bank, Not Individually but as Trustee Under Trust Agreements Known as Trusts Numbered 634, 1983, 1985 and 100, Lawrence A. Britton, et al., Unknown Beneficiaries of Chicago Title and Trust Company, Trust Number 36988, Unknown Beneficiaries of Maywood-Proviso State Bank, Trust No. 1604, Unknown Beneficiaries of Elmhurst National Bank, Trust No. 634, Trust No. 1983, Trust No. 1985, Trust No. 1900, and Unknown Owners, Defendants-Appellees.
    Gen. No. 68-58.
    Second Judicial District.
    November 27, 1968.

      Thomas A. Matthews and Donald Kreger, of Chicago, for appellant.
    Paul S. Schmid, of Wheaton, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This eminent domain proceeding was brought by the plaintiff, Lombard Park District, to condemn six parcels of real estate, including the two involved in this appeal. During the course of the trial, the court excluded the testimony of three of the defendants’ expert valuation witnesses because their conclusions were based upon a supposed highest and best use not consistent with the zoning regulations, and not based upon any use permitted by any reasonably probable rezoning. Thereafter, the trial court granted the defendants’ motion for a new trial on the ground that it had erred in rejecting this testimony. We granted the plaintiff’s petition for leave to appeal.

The sole issue before this court is the extent to which an expert valuation witness may base his opinion on the highest and best use not permitted by existing zoning regulations.

The compensation to which a landowner is entitled in the event of the condemnation of his land is its fair cash market value for its highest and best use at the time the condemnation petition is filed. Department of Public Works and Buildings v. Rogers, 39 Ill2d 109, 113, 233 NE2d 409 (1968); City of Chicago v. Giedraitis, 14 Ill2d 45, 49, 150 NE2d 577 (1958). The highest and best use is that to which the property is presently adapted, even though it is not at the time being applied to such use. Housing Authority of City of East St. Louis v. Kosydor, 17 Ill2d 602, 606, 162 NE2d 357 (1959).

Just compensation to which the landowner is entitled under section 13 of article 2 of the State Constitution and under section 1 of the Eminent Domain Act (Ill Rev Stats 1967, c 47, par 1) 'has been defined as the amount of money necessary to put him in as good condition financially as he was with the ownership of the property and as a sum of money that is equivalent to the value of the property. (Housing Authority v. Kosydor, supra 605.)

Market value is the price which the property would bring if it were offered by a willing seller to a willing buyer. (Housing Authority v. Kosydor, supra 606.) The market value to which he is entitled is for the most profitable use for which the land is available, including any present capacity for future use which may be anticipated with reasonable certainty and made the basis of an intelligent estimate of value. Super-Power Co. of Illinois v. Sommers, 352 Ill 610, 618, 186 NE 476 (1933); Illinois Light & Power Co. v. Bedard, 343 Ill 618, 626, 627, 175 NE 851 (1931). As pointed out by the court in Bedard, the most common example is found in farmland situated in the direction of growth of nearby municipalities. Long before subdivision and development become an actuality, the land may have a value substantially greater than its present value for agricultural purposes, and such value is existent and very real for informed sellers and buyers.

Until recently, our courts, while recognizing the principles set forth above, had not announced whether the highest and best use determined in arriving at market value might include a use which would not be permitted under existing zoning restrictions. In Park Dist. of Highland Park v. Becker, 60 Ill App2d 463, 468, 208 NE2d 621 (1965) we held that it is proper that the “reasonable probability” of rezoning in the near future be taken into consideration in a determination of just compensation. The Supreme Court, in Department of Public Works and Buildings v. Rogers, supra, 112, 113, specifically approved the reasoning of the Becker case and stated that the reasonable probability of rezoning is a proper factor to consider in establishing value.

The questions remain: what type of evidence, and under what circumstances may evidence of probable rezoning be admitted ? Possible rezoning is relevant only if it reflects some value in the land because of a present capacity for future use which may be anticipated with reasonable certainty and which may be made the basis of an intelligent estimate of value. Stated differently, if the possibility of rezoning is too speculative, it should not be considered in determining the value of the condemned property.

In Becker, this court held that the trial court did not abuse its discretion in refusing to permit an attorney to testify as a “zoning expert” with reference to his opinion that there was a strong possibility of obtaining rezoning of the property in question. This court observed that real estate appraisers had already testified as to the probability of rezoning and to the highest and best use of the property—that which would be permitted if such rezoning were obtained.

Subsequently, in Department of Public Works and Buildings v. Rogers, 78 Ill App2d 141, 223 NE2d 177 (1967), (affd 39 Ill2d 109, 233 NE2d 409 (1968)), this court again held that the trial court did not abuse its discretion in excluding the opinion testimony of a lawyer, who had extensive background in zoning, eminent domain and real estate matters, as to the probability of a particular rezoning. We there held that it was not error to exclude purported expert opinion testimony of what a particular legislative body is going to do.

We also held in Rogers that the trial court erred in refusing to admit into evidence testimony relating to both the rezoning of a nearby tract of land along the same thoroughfare shortly prior to the time in question, and the ordinance of rezoning, even though the rezoning was of a substantially larger tract and for a different purpose. We held that such evidence was admissible as tending to show the flexibility of the particular zoning ordinance and, thus, was relevant as to the reasonable probability of rezoning the tract in question.

The substance of these decisions is that it is proper to base value upon the highest and best use permitted—not only under existing zoning limitations but also under other zoning limitations—where there is a reasonable probability of the granting of such zoning in the near future. It is not proper, however, to present a witness as an expert solely to testify to the probability of a particular rezoning. Such “expertise” is not recognized by our courts.

Valuation witnesses, however, must of necessity, relate their testimony to a reasonable probability of rezoning if the use upon which they base the market value is not permitted under the existing zoning restrictions. In most instances, it will be necessary for them to state that they based their valuation opinion upon a reasonable probability of rezoning. Whether or not their opinion as to valuation will be permitted to stand will depend on whether there is sufficient evidence of factors which would permit a jury to conclude that there is a reasonable probability of rezoning.

Without purporting to set forth all of such factors, some of the significant factors may be the rezoning of nearby property, growth patterns, change of use patterns and character of neighborhood, demand within the area for certain types of land use, sales of related or similar properties at prices reflecting anticipated rezoning, physical characteristics of the subject and of nearby properties and, under proper circumstances, the age of the zoning ordinance. 9 ALR3d 291 et seq., Eminent Domain—Damages—Zoning; 53 Ill Bar Jour 956; Limerick, The Effect of Zoning on Valuation in Eminent Domain.

Without opening wide the floodgates for such testimony, courts have usually taken the view that a prospective purchaser, on the open market, on a proper showing that a change in zoning was reasonably probable in the reasonably near future, would consider the probability of such change in valuing the property, and that courts in condemnation proceedings should also receive such evidence. United States v. Meadow Brook Club, 259 F2d 41, 45 (1958 CA 2nd NY) cert den 358 US 921; In re Mackie’s Petition, 362 Mich 697, 108 NW2d 755, 756 (1961); Genessee Valley Union Trust Co. v. State, 9 NY2d 795, 215 NYS2d 508, 175 NE2d 166, (1961).

It normally has been held that the burden of proof of the reasonable probability of a change of zoning is on the landowner, at least where such change would enhance the value of the property. 9 ALR3d 291, 323. As to the rest of the expert witnesses’ testimony: it is for the court to make the preliminary determination of whether there is sufficient evidence of a reasonable probability of rezoning to permit them to testify to market value based on such a probability. If so, it is for the jury to determine the weight to be given such expert’s conclusions as to value based upon the reasonable probability of such rezoning. If the court determines that the evidence falls short, as a matter of law, of showing any reasonable probability of rezoning within the reasonably near future, it must then exclude all such evidence and opinions of value based upon a use permitted only by the rezoning.

This was the procedure followed by the trial court below. The trial court, out of the presence of the jury, chose to hear the expert witnesses’ basis for valuing the property under a use not permitted under the existing zoning. It determined that there was not adequate evidence of a probability of rezoning to permit them to testify before the jury as to a valuation based upon a use permitted only by such rezoning. This procedure did not in any way deny the defendants the right to have compensation determined by a jury. This right contemplates that the jury will be presented only competent evidence. If a court correctly determines that the evidence is not competent, there is no right to have such evidence heard by a jury.

The trial court, however, determined after the decision of the Supreme Court in Department of Public Works and Buildings v. Rogers, supra, that it had erred in not permitting these witnesses to testify; and in not permitting the jury to determine the factual question of the reasonable probability of rezoning and its attendant effect upon the fair market value of the property sought to be condemned.

The land in question was zoned R-l Single-Family Residence. The defendants’ expert witnesses sought to give their opinion of value based upon the highest and best use as a planned unit development, containing multiple family dwellings; and the court refused to allow such evidence. The qualifications of the three experts offered by the defendants were not questioned.

The first two witnesses testified, in chambers, to the various factors upon which they relied to support their belief that there was a reasonable probability of the rezoning of the property to permit its use as a planned unit development, which in their opinion was the highest and best use for the property. The factors included the subsoil condition; the demand for such property in the area, including the existing vacancy rate; the surrounding area and comparability therewith; the effect of such rezoning as a buffer between the adjacent railroad tracts and single-family zoning; the trend of zoning in the area; and other factors. The last witness did not testify to the factors suggesting the reasonable probability of rezoning, since at that time the trial court had clearly indicated that it would not permit a valuation opinion based upon the highest and best use other than that permitted under the existing zoning—single-family use.

We believe that the trial court, on reconsideration of its action upon hearing the post-trial motion, correctly determined that it should have permitted the defendants’ witnesses to testify before the jury and the jury to determine whether, under such testimony, there was a reasonable probability of rezoning, and if so, its effect on the fair market value of the premises in question.

The trial court is granted discretion in determining whether it should grant a new trial and its determination, particularly in granting a new trial, will not be disturbed unless it is clearly shown that there was an abuse of such discretion. Klatt v. Commonwealth Edison Co., 33 Ill2d 481, 494, 211 NE2d 720 (1965); Hollis v. Mateika, 66 Ill App2d 267, 269, 213 NE2d 409 (1966). Greater latitude is allowed a trial court in granting a new trial than in denying one. Magnani v. Trogi, 70 Ill App2d 216, 220, 218 NE2d 21 (1966); Hollis v. Mateika, supra, 269.

It should be clear from the foregoing that while permitted in some jurisdictions, a witness in this State may not be offered solely to render an expert opinion as to whether or not a legislative body will in fact grant a rezoning. This applies, as well, to a member of that legislative body. A witness offered, however, as an expert valuation witness, may in the course of explaining the basis for his determination, testify to a reasonable probability of rezoning if such is a factor in arriving at his valuation and if warranted by the matters in evidence suggesting a basis for such rezoning.

Some of the questions asked of and answers given by the witnesses in chambers may thus have been improper. We agree, however, with the trial court that the expert witnesses for the defendants stated sufficient relevant factors to support their belief concerning a reasonable probability of rezoning the property to qualify the admission of such testimony in evidence. Thus, the defendants could present to the jury their theory of the highest and best use of the property and its valuation thereunder.

The judgment of the trial court in granting a new trial as to the two parcels of real estate which are subject to this appeal is affirmed, and the cause remanded for further proceedings not inconsistent herewith.

Affirmed and remanded.

MORAN and SEIDENFELD, JJ., concur.


text:
    William Augsburger, Plaintiff-Appellant, v. Lou Singer, Also Known as Louis Singer and Supreme Divers, Ltd., a Corporation of Ontario, Canada, Defendants-Appellees.
    Gen. No. 68-60.
    Second Judicial District.
    November 27, 1968.

      Paul B. Youle, of Chicago, for appellant.
    Corrigan, Mackay, Quetsch and O’Reilly, of Wheaton, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, William Augsburger, sought to recover for damages which he alleged he suffered by reason of the defendants’ failure to exercise reasonable care. At the time of the injury, he was helping the defendants dismantle their carnival display. At the close of the plaintiff’s case, the defendants presented a motion for directed verdict, based upon the ground that the plaintiff was a volunteer, as opposed to an invitee, and that the defendants owed to him only the duty to refrain from wilfully and wantonly injuring him. The trial court agreed and, accordingly, directed a verdict for the defendants. The plaintiff appealed.

The sole issue before this court is whether the trial court was correct in directing a verdict for the defendants upon the ground that the plaintiff’s status was that of a volunteer, and that the only duty which the defendants owed to the plaintiff was that of refraining from wilfully and wantonly injuring him.

The facts relevant to this issue are that the defendants owned and displayed a “Captured Russian Zis Car” in connection with the carnival operation. The car was mounted upon a trailer and the defendant, Singer, operated the display. On the date in question, the display was being closed to move to another town. It was about 9:30 p. m., when the plaintiff and his wife went to the carnival grounds to pick up their son, who was working on the merry-go-round. While the plaintiff was waiting for his son to finish his work, he saw the defendant, Singer, dismantling his display, and he asked him if he would like some help. Singer answered, “I sure would” adding, “I would be glad to pay you. The plaintiff stated that he answered, “No need to pay me. I’m not interested in pay. I have a job. I have to wait for my son.” He testified that Singer then said, “I’ll be glad to have you.”

The parties agree that if the plaintiff was a “volunteer” as that term is used in the field of tort law, then the defendants are not liable for any injury received by the plaintiff unless they were guilty of gross negligence, wilfulness, or wantonness. If, however, the plaintiff was an “invitee”—as that term is used with reference to negligence actions—then the defendants may be liable to the plaintiff if he has suffered injury by reason of the defendants’ ordinary negligence.

The plaintiff contends that the fact that the conversation was initiated by him and that he sought no pay for his services, did not necessarily make him a volunteer, as opposed to an invitee. Broadly speaking, an invitee is one who enters upon the premises of another, either at the express or implied invitation of the latter, for a purpose connected with the latter’s business or activity carried on upon the premises, or for some purpose serving a mutually beneficial interest. Chicago & Illinois Midland R. Co. v. Pillsbury Mills, Inc., 47 Ill App 2d 373, 377-380 incl., 198 NE2d 126 (1964); Drews v. Mason, 29 Ill App2d 269, 279, 172 NE2d 383 (1961); 65 CJS, Negligence, §63(41), pp 715-719; 28 ILP, Negligence, § 52, pp 39-43.

It is sometimes said that to obtain the status of an invitee upon entering the premises of another, there must be a mutuality of benefit or purpose; however, if one enters the premises of another for reasons directly related to the business or activities of the latter, the purpose of the entry is sufficient to render him an invitee.

Thus, in the Drews case, the court held that the jury properly determined that the plaintiff was an invitee in that she had gone to her daughter’s (the defendant) house, to help the latter clean up and repair the house after it was damaged by fire. There was no offer or promise of payment to the plaintiff, and the only benefit which she could have received from going to the defendant’s house would have been the satisfaction which she derived from assisting and helping her daughter. Likewise, there was no direct invitation or request to the plaintiff to work at her daughter’s house. The plaintiff had taken this obligation upon herself. The court held that the status of the plaintiff was properly a question of fact for the jury to determine.

In Bogovich v. Schermer, 16 Ill App2d 197, 147 NE2d 711 (1958), the defendants’ building had caught fire and one of the defendants went across the street to seek help to remove the cash registers from the burning building. The plaintiff, who answered this request, which was without benefit to him, was injured, instituted suit against the defendants and therein obtained judgment against them. On review, the court held that the plaintiff was to be accorded the duty owed to an invitee, and affirmed the judgment of the trial court.

In Cain v. Friend, 171 Cal App2d 806, 341 P2d 753 (1959), the defendants, who had known the plaintiff, a carpenter, for some time, were building an addition to their home. They requested him to come and see them, which he did, and he volunteered to build part of the addition, without pay. The defendants accepted his gratuitous offer, and the plaintiff was injured while doing this work. The trial court granted a motion for a directed verdict for the defendants upon the ground that the plaintiff was a licensee and not an invitee. The reviewing court observed that whether one is an invitee or licensee is normally a question of fact; that it is the purpose for which one enters upon the premises of another that renders him either an invitee or a licensee; that if the purpose is one of common interest or mutual advantage, the person is an invitee; and that the status of a licensee is inferred where the purpose is the mere pleasure or benefit of the visitor. The court then pointed out, on pages 754 and 755, that where the services are for the benefit of the occupant of the premises, the fact that they were performed gratuitously does not negative the performer’s status as an invitee; and that even where the benefit to the occupant is intangible, the one rendering services may rely upon them to establish his status as an invitee.

The court concluded that there was evidence from which the jury could find that the plaintiff was either expressly or impliedly invited to visit the defendants’ premises to perform services beneficial to them, and that he was injured while so doing. It held that the issue whether or not he was an invitee, should have been determined by the jury.

Likewise, in Murdock v. Petersen, 74 Nev 363, 332 P2d 649 (1958), the court held that where the plaintiff answered the request of another for assistance, the plaintiff would not be denied the status of an invitee merely because she was performing the services gratuitously. The court stated that the existence of a business relationship could no longer be held essential to the status of an invitee; and that it would be grossly unjust to place a plaintiff in an inferior position because she was willing, out of the goodness of her heart, to respond to the defendant’s call for assistance and to render needed services for the defendant, without demanding compensation.

We conclude that there can be no basis in a case, such as the one at bar, for holding that the plaintiff’s status as an invitee must depend in part upon whether he was to obtain an advantage or benefit from the purpose for which he entered the defendants’ premises. So far as the purpose is concerned, it is sufficient if it was in furtherance of the defendants’ business or activity on such premises.

The question, of whether or not the plaintiff was invited by the defendants to come upon the trailer and help in dismantling it, remains. If the plaintiff undertook to help the defendants without either invitation or contractual relationship, he was then a mere volunteer as contended by the defendants. 65 CJS, Negligence, § 63 (148).

The issue of whether there was an invitation is not determined by which party undertakes the initiative. Whether or not the colloquy between the plaintiff and the defendant, Singer, to which we have earlier referred, was sufficient to constitute an invitation, express or implied, should have remained for the jury to determine. This colloquy, the factual situation under which it arose, and the intended benefit to the defendants, are all factors which the jury could have considered in making its determination. We feel that the plaintiff’s status as an invitee or volunteer at this particular time was peculiarly a question of fact for the jury to determine. Drews v. Mason, supra, 278; Lambert v. Paul W. Senne Funeral Home, Inc., 343 Ill App 136, 137, 138, 98 NE2d 519 (1951).

The defendants cite the case of Poulson v. Poulson, 1 Ill App2d 201, 117 NE2d 310 (1954) as authority for the proposition that the plaintiff in the case at bar was a mere volunteer. In Poulson, the plaintiff was the defendant’s father. The plaintiff, and others, apparently, used the defendant’s garage as a loafing place. On the date in question, the defendant had planned to drive a truck to a certain farm to pick up a tractor and plow. The plaintiff learned where his defendant son was going and accompanied him in the truck because he wanted to discuss something with the farmer in question, and not for the purpose of rendering any assistance or service. The plaintiff talked with someone at the farm—apparently the farmer—while the defendant and his helper were loading the tractor on the truck. The plaintiff, unknown to the defendant, jumped on the truck to render some assistance in loading the tractor, and was injured. On page 204, the court pointed out that the plaintiff’s sole purpose in going to the farm was to visit with his friend, the farmer, and that his only participation in the transaction consisted in doing a few incidental things. It is also apparent that the plaintiff introduced himself into a somewhat hazardous situation without any request by the defendant and without his knowledge or consent. While the court held that the plaintiff was a mere volunteer, the case is readily distinguishable on its facts from the case at bar.

In the case at bar, we believe that the purpose for which the plaintiff entered upon the defendants’ trailer was clearly sufficient to render him an invitee. However, the question of whether there was an invitation from the defendants sufficient for this purpose, was a factual question for the jury to determine; and it was improper to direct a verdict at the close of the plaintiff’s case for the defendants. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

The defendants suggest in this court that even if the plaintiff could be considered an invitee, the trial court was warranted in directing a verdict for the defendants in that the evidence showed that the plaintiff wTas guilty of contributory negligence as a matter of law and totally failed to show any negligence on the part of the defendants. We have reviewed the report of proceedings and we do not feel that this point need be belabored. Under the standards set forth in Pedrick, supra, there was sufficient evidence at the close of the plaintiff’s case for a jury determination on the issues of contributory negligence of the plaintiff and ordinary negligence on the part of the defendants.

We note, in passing, that the defendants did not argue the total failure of such evidence when they sought the directed verdict in the trial court. Rather, they contended only that the evidence established the plaintiff’s status as a volunteer, and it is clear that this was the basis of the trial court’s determination.

For the foregoing reasons, the judgment will be reversed and the cause remanded to the trial court for a new trial.

Reversed and remanded.

MORAN and SEIDENFELD, JJ., concur.


author: GOLDENHERSH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Seaton Cash, Defendant-Appellant.
    Gen. No. 68-75.
    Fifth District.
    November 27, 1968.

      Seaton Cash, pro se, of Burnt Prairie, appellant.
    Frank Bonan, State’s Attorney of Hamilton County, of McLeansboro, for appellee.
   GOLDENHERSH, J.

Defendant, Seaton Cash, appeals from the judgment of the Circuit Court of Hamilton County entered upon a finding of guilty of violation of section 49 of the Uniform Act Regulating Traffic on Highways. (C 95%, § 146, Ill Rev Stats 1967.)

This proceeding commenced with the issuance of a traffic ticket and complaint charging defendant with driving 76 miles per hour in a 65 mile per hour zone.

Joe Irvin, an Illinois State Trooper, testified that on December 8, 1967, he was operating electronic radar equipment on Route 460, three miles west of the Enfield Junction in Hamilton County. The radar unit marks the speed of vehicles on a graph. It was checked for accuracy approximately 15 minutes prior to the occurrence in question by driving a car past it at a set speed, and by use of a tuning fork. He had been trained in the use of the unit, and had operated it approximately 60 to 100 days per year for several years.

He testified that a car passed the radar at a speed of 76 miles per hour; he “unhooked” from the radar and proceeded to attempt to apprehend the car. He had the vehicle in sight at all times, caught up to within 100 yards of it within a mile and one-half, followed it with the red light on the police car on for a mile and one-quarter, and was 150 to 200 feet behind when it stopped one-quarter mile west of the Enfield intersection. He called the license number of the vehicle back to Trooper Suddarth.

Trooper Suddarth testified he was working with Irvin; they had tested the unit approximately 10 minutes prior to the occurrence; the license number was called back to him by Irvin and he noted it on the graph.

Defendant testified he passed the radar unit, glanced at his speedometer which showed a speed of 65 miles per hour; he traveled on two or three miles when he saw a trooper’s car parked off the road; he saw the red light flashing and stopped. Later he checked the speedometer and his travel time over the same area and testified he could not have driven at the speed with which he is charged.

Defendant testified that other vehicles passed the area at approximately the same time as his. On cross-examination Trooper Irvin stated that there was no radar sign of any other vehicle in the area at that time.

Defendant was not represented by counsel at the trial, and appears pro se in this court. In lay language, his brief raises the issue of whether the evidence is sufficient to prove him guilty beyond a reasonable doubt.

We have examined People v. Abdallah, 82 Ill App2d 312, 226 NE2d 408, an excellent article which appears at 56 IBJ 296, and the note found at 49 ALR2d 469. We agree with what was said in People v. Abdallah, supra, with respect to there being no necessity for expert testimony as to the usefulness of the method used for determining speed of a moving object, and the proof of accuracy of the particular radar device.

The testimony is sufficient to show both qualification of the operators, and the accuracy of the device. The conflicting testimony as to the presence of other vehicles does not warrant our reversal of a finding of fact by the trial court. The evidence is sufficient to sustain the conviction and the judgment is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    Gunwald Moseid, Individually and in a Representative Capacity Upon Behalf of Each Member of a Class of Persons, Firms or Corporations Consisting of Persons, Firms or Corporations Who Have Since October 1, 1963, Been, or Who May Hereafter Be: (a) Named as a Defendant in a Proceeding in the Circuit and Superior Courts of Cook County, or Any Department or Division Thereof; (b) Required, Individually or Through an Attorney To File an Appearance in Such Proceeding; and (c) Required To Pay a Library Fee Imposed Under an Act in Relation to the Establishment, Maintenance and Operation of County Law Libraries Approved May 5, 1961, Plaintiff-Appellant, v. Joseph J. McDonough, as Clerk of the Circuit Court of Cook County, and Bernard Korzen, as County Treasurer of Cook County, Defendants-Appellees.
    Gen. No. 50,694.
    First District, Fourth Division.
    November 27, 1968.

      Kenart M. Rahn, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, Ronald Butler, Assistant State’s Attorney, of counsel), for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff appeals from an order dismissing his cause of action. Suit had been filed by plaintiff individually and as representative of a class, challenging the validity of the County Law Library Act and the collection of a $1 library fee from each defendant who filed an appearance in civil cases. The cause was submitted for the trial court’s decision on the pleadings and stipulations of fact.

On May 5, 1961, the statute in question was enacted, relating to the establishment, maintenance, and operation of County law libraries. As amended in 1963, it applied to Cook County. Ill Rev Stats (1963), c 81, § 81. Thereafter, the Chairman of the County Board of Cook County duly notified the Clerks of the Circuit and Superior Courts of Cook County that the County Board had acted under the provisions of the statute to establish and maintain a law library. The clerks of the courts of record of Cook County then began to impose a County law library fee.

Beginning on or about October 1, 1963, and until January 1, 1964, the Clerks of the Circuit and Superior Courts of Cook County collected a library fee of $1 upon the filing of appearances by each defendant in all civil proceedings, notwithstanding the fact that a like fee had been paid in each instance by the plaintiff. On January 1, 1964, by amendment of the Judicial Article of the Illinois Constitution, the Circuit Court became the sole trial court in Cook County, and, since that date, all such library fees have been collected by the Clerk of the Circuit Court.

On July 21, 1964, a suit was filed against Gunwald Moseid, plaintiff in the instant case. Upon filing that case, the plaintiff therein paid to the clerk a $1 County library fee. Thereafter, the plaintiff here, Moseid, attempted to file his appearance as defendant in that case. In addition to the usual $5 appearance fee, the clerk demanded of him a $1 County law library fee, which was paid under protest.

As of August 31, 1964, the library fund totaled $208,888, representing library fee payments collected by the Clerks of the Superior and Circuit Courts of Cook County from both plaintiffs and defendants. A temporary injunction was issued in this case, pursuant to which the library fees collected from defendants have been segregated from those fees collected from plaintiffs, and defendants in this case were directed to hold the fees collected from defendants subject to further order of court.

On the merits of the case, the trial court, basing its decision on the complaint, answer, and stipulations of fact, found for the defendants and entered an order accordingly, including the dissolution of the temporary injunction. On appeal, plaintiff claims:

(1) The proceeding was properly filed as a class action;
(2) The library fees were collected before a library was established by the County Board within the meaning of the statute;
(3) The statutory authorization of the collection of a library fee from defendants is unconstitutional as requiring the purchase of justice;
(4) The statute does not authorize collection of the library fee from defendants; and, finally,
(5) Litigation defendants, as represented by plaintiff herein, are entitled to refund of the library fees which they have paid.

(1) Turning, first, to the issue of whether this is a proper class action, the test to be applied is the existence of a community of interest in the subject matter and a, community of interest in the remedy among all who make up the purported class. Cohon v. Oscar L. Paris Co., 17 Ill App2d 21, 149 NE2d 472; Johnson v. Halpin, 413 Ill 257, 108 NE2d 429; Harrison Sheet Steel Co. v. Lyons, 15 Ill2d 532, 155 NE2d 595; Smyth v. Kaspar American State Bank, 9 Ill2d 27, 136 NE2d 796; Flanagan v. City of Chicago, 311 Ill App 135, 35 NE2d 545. Factors to be considered in applying this test are: whether the claims of all members of the class share a common question of law and fact, such as the existence of a common fund from which relief can be given (Kimbrough v. Parker, 344 Ill App 483, 486, 101 NE2d 617; Flanagan v. City of Chicago, 311 Ill App 135, 160, 35 NE2d 545); whether the causes of action of the members of the class arise from the same transaction (Peoples Store of Roseland v. McKibbin, 379 Ill 148, 154, 39 NE2d 995; Material Service Corp. v. McKibbin, 380 Ill 226, 236, 43 NE2d 939); whether one party can adequately represent the rights and interests of all other members of the purported class (Newberry Library v. Board of Education, 387 Ill 85, 90, 55 NE2d 147); whether the number of possible class members renders separate litigation impossible or impractical (South East Nat. Bank of Chicago v. Board of Education, 298 Ill App 92, 114, 18 NE2d 584); and whether there exists a purely equitable cause of action (Fetherston v. National Republic Bancorporation, 280 Ill App 151, 160).

Defendants in this suit attack the class action on the basis that there is no common fund, that the transactions were separate, and that there was no community of interest. Citing Peoples Store of Roseland v. McKibbin, 379 Ill 148, 39 NE2d 995, and Material Service Corp. v. McKibbin, 380 Ill 226, 43 NE2d 939, they claim that plaintiff has no community of interest, with others of the purported class, in either a fund or a right of recovery. Those cases, arising under the Illinois Retailers’ Occupation Tax (Ill Rev Stats (1939), c 120, § 440 et seq.), are distinguishable, however, on the basis that none of the purported class members there, with the exception of the plaintiff in each suit, had paid any money under the section relating to payment under protest; so the taxes on which refunds were sought had been turned over to the State Treasurer without restriction and deposited in the general fund of the State of Illinois. Thus, there was no fund in being in those cases, whereas, in the present case, the County Law Library Act establishes a separate “County Law Library Fund.” Further, as mentioned above, the trial court ordered the additional segregation of law library fees collected from litigation defendants. Each member of this plaintiff’s alleged class has an identical interest in this fund on account of having paid in $1 for each appearance as a defendant in a civil suit.

Similarly, defendant cites Newberry Library v. Board of Education, 387 Ill 85, 55 NE2d 147, for the proposition that in the instant case there is not sufficient joint or common interest in the subject matter to constitute a proper class of claimants, since each payment of a library fee by members of the purported class constituted a separate transaction. In the Newberry Library case, supra, suit was brought to recover unpaid interest on refunding bonds. The trial court dismissed the complaint on the defendant’s motion, for the reason that a prior suit (Delevitt v. Board of Education) brought by a single bondholder of the same issue, had been a proper class suit and that the Newberry Library was bound thereby, having been a party to that suit by representation. The Supreme Court reversed, holding that there was no common right of recovery, the claims being based on separate transactions, and there being no common fund out of which recovery could be had. In the present situation, the Newberry Library case is distinguishable, since here there is a common origin of claim, and a fund from which common recovery for the class may be had. Also, the complaint here asks for a declaratory judgment to stop a continuing violation of rights held in common.

Although plaintiff relies heavily on the number of parties making up the class interested in the collection of library fees from defendants (about 150,000) and the impossibility of joining all in one suit, the other requisites for a class action are also present. There is a community of interest in the subject matter since the identical claim of each member of the class, arising from identical circumstances, raises the same issues of law and fact. There is also a community of interest in the remedy since there is an identical claim for refund by each class member against the “special fund known as the county law library fund.” In Johnson v. Halpin, 413 Ill 257, 108 NE2d 429, a class action was brought by plaintiff seeking both a declaratory judgment that the Illinois Cigarette Use Tax Act was unconstitutional and an injunction preventing the enforcement of the act against the plaintiff and his class. The plaintiff had purchased cigarettes from Indiana by placing an order in the mail at Chicago and prepaying the price and the postage. The cigarettes had been received and used without the Illinois cigarette tax stamp having been affixed. The class of individual purchasers of cigarettes for their own use, from out-of-state vendors, were held to have a common interest in the constitutionality of the statute, the result affecting them identically, and all being subject or not subject to the enforcement of the law. The class action was held to have been properly brought. In numerous other cases challenging the validity of statutes and ordinances, or their application to a certain group of people, class actions have been successfully maintained. E. g., Ives v. City of Chicago, 30 Ill2d 582, 198 NE2d 518; Crane Const. Co. v. Symons Clamp & Manufacturing Co., 25 Ill2d 521, 185 NE2d 139, and Harrison Sheet Steel Co. v. Lyons, 15 Ill2d 532, 155 NE2d 595.

(2) Plaintiff contends that the Clerk of the Circuit Court exceeded the power granted to him in the County Law Library Act by collecting law library fees before the library was actually in existence. Although now mooted as to current fee collections by the actual existence of the Cook County Law Library, the question remains as to the funds collected before the library was opened for use by the public. Reference is made to the following language of the act:

The expense of establishing and maintaining such library shall be borne by the county. To defray such expense, in any county having so established such a county law library, the clerks of all trial courts of record located at the county seat of government shall charge and collect a county law library fee of $1.00, .... (Ill Rev Stats (1963), c 81, § 81.)

Plaintiff urges that the county alone must bear the cost of establishing and maintaining the library, and it is authorized to begin collecting fees from litigants only-after the library is a functioning institution. This interpretation requires too narrow and unnatural a meaning for the term, “establish.” While there are numerous dictionary definitions of the word, many of them would substantiate the “establishment” of the library on September 30, 1963, with the enactment of the County ordinance purporting so to do. The execution or implementation of the ordinance occurred somewhat later, but, in our opinion, the library was established by the act of the County Board, not by the acts of its purchasing agent, librarian, etc. “We the People of the United States” did “ordain and establish” the Constitution upon its ratification by the Conventions of nine States, which took place by midyear of 1788, although the election of the first President did not occur until more than a year later. At that time, according to order of the Constitutional Convention, the Congress and the President were to proceed to “execute” the Constitution.

Specifically, the clerks acted in compliance with the act when they began collection of the fees after the notification from the Cook County Board above referred to. The act directs:

Each such clerk shall commence such charges and collections upon receipt of written notice from the chairman of such county board that the board has acted under the provisions of this act to establish and maintain such a law library. Ill Rev Stats (1963), c 81, §81.

(3) Plaintiff next contends that, as to his class, the County Law Library Act is unconstitutional and void, since it requires one to “purchase justice” in violation of article II, section 19, of the Illinois Constitution. In view of our conclusion as to point (4) below, we need not resolve this argument. We state in passing, nevertheless, that we believe the position to be untenable in the light

of Morrison Hotel & Restaurant Co. v. Kirsner, 245 Ill 431, 92 NE 285. Cf. Williams v. Gottschalk, 231 Ill 175, 83 NE 141. In our opinion, Wilson v. McKenna, 52 Ill 43, is distinguishable.

(4) Turning, then, to interpretation of the statutory language, plaintiff contends that the authority of the Clerk of the Circuit Court under the County Law Library Act is limited to the collection of $1 per case, and does not permit the present practice of collecting $1 from each party to the suit, however many that may be. The pertinent language reads as follows:

. . . the clerks of all trial courts of record . . . shall charge and collect a county law library fee of $1.00 in all civil cases, such fee to be paid for at the time of filing the first pleading, paper or other appearance filed in such cases. (Emphasis supplied.) Ill Rev Stats (1963), c 81, § 81.

Defendants, pointing out that the statute does not specify the party from whom the fee is to be collected, contend that all parties can and should be required to pay the library fee. In support of this contention, defendants argue, first, that the legislature contemplated, as a matter of policy, that each litigant would bear an equal burden with all others in meeting the expenses of a County law library. We find no support for this contention in the scheme of the statute. If defendants’ interpretation were correct on this point, then the dollar payment made by each litigant would have to be irretrievable. But it is not, since the act provides that library fees are to be assessed as costs, and the burden of paying for the library is thus borne by losing litigants only. Further as to equality of burden, the unsuccessful litigant in a suit involving two parties would ultimately be required to pay a total of $2, whereas the loser in a multiple-party action could be required to pay much more.

The interpretation which we reach on this point is also consistent with the obvious policy of the legislature, elsewhere expressed, that the person who commences litigation should be required to pay, initially, a larger part of the court costs than the person who comes into court involuntarily. See the Fees and Salaries Act (sections 51 and 31.1) which fixes the court costs of defendants in amounts substantially smaller than those of plaintiffs, and in some cases excuses them altogether. Ill Rev Stats (1963), c 53, §§ 51 and 31.1. It is also interesting to note that the Fees and Salaries Act makes it perfectly clear as to what fees are to be paid by what parties, a course which could easily have been followed in the library fee statute if the intention had been to assess the fee in relation to each party rather than in relation to each case.

Next, defendants urge upon us the proposition that if the statute had not been intended to require payment of the library fee by defendants as well as by plaintiffs, then the paragraph of the act which sets forth certain stated exceptions to the fee charge would have specifically excluded all party defendants. We find this reasoning rather circuitous, since the drafters of the statute, had they intended to except all defendants, would have had no need to include defendants among the stated exceptions if defendants had been omitted from coverage in the first place.

On the other hand, it is perhaps unreasonable to expect a logically precise relationship among all parts of a statute, even one contained in a single section of a half-dozen short paragraphs. Thus we do, indeed, find that the paragraph on exceptions lists criminal cases, which could not possibly be construed as included in the basic imposition of a fee “in all civil cases.” The full paragraph of exceptions reads:

Such fees shall not be charged in any criminal or quasi-criminal case, nor in any matter coming to any such clerk on change of venue, nor in any appeal from any other court, nor in any proceeding to review the decision of any administrative officer, agency, or body. Ill Rev Stats (1963), c 81, § 81.

It can readily be seen that none of these exceptions applies to any kinds of parties, but only to various kinds of cases. We conclude that neither the statutory scheme nor the particular wording justifies defendants’ position on this point.

Contrariwise, a close reading of the words used in the statute yields strong support for plaintiff’s contention that only one fee was meant to be collected in each case. The words of authorization are to collect a fee of $1.00 in all civil cases with such fee to be paid at the filing of the first pleading, paper, or other appearance filed in such cases. It seems to us that the use of the singular term, “a fee,” to describe the collection to be made in all cases is significant, absent a clear subsequent direction that it be applied to a responding party as well as to the first pleader. This concept also appears to be fortified by use of the term, “the first” pleading, etc., filed. Again, in their ordinary meaning, the words, “the first” describe only one pleading to be filed in such cases, in the absence of a clear indication to the contrary.

Defendants correctly point out that an “appearance” may be filed by a defendant as well as by a plaintiff, but the doctrine of ejusdem generis goes far to negative the argument which defendants make from that fact. Consideration of the clause, “the first pleading, paper, or other appearance,” requires, we believe, a classical application of that doctrine. Which is to say that “where a statute or document specifically enumerates several classes of persons or things and immediately following, and classed with such enumeration, the clause embraces ‘other’ persons or things, the word ‘other’ will generally be read as ‘other such like,’ so that the persons or things therein comprised may be read as ejusdem generis ‘with,’ and not of a quality superior to or different from, those specifically enumerated.” People v. Capuzi, 20 Ill2d 486, 493,170 NE2d 625.

Applying this principle to the statute at hand, we interpret the clause to mean: the first pleading, the first paper, or the first document of whatever kind may constitute the first appearance filed in civil cases. While a plaintiff’s appearance would ordinarily be accomplished with the filing of a complaint (his first pleading), this is not necessarily so, and thus the term, “other appearance,” need not apply to the appearance of a defendant. Such “other appearance” by a plaintiff is contemplated by section 13 of the Civil Practice Act which declares that actions shall be commenced by the filing of a complaint “unless otherwise expressly provided by statute.” Ill Rev Stats (1963), c 110, § 13. At the time pertinent to this case, both replevin and attachment actions were commenced by the filing of an affidavit and bond, while a divorce action (both then and now) may be commenced by the filing of a praecipe. Ill Rev Stats (1963), c 119, § 4; c 11, § 2; c 40, §§ 7a and 7b. These are examples of “other appearances” by a plaintiff.

In some other states, library fees are collected from all parties. We believe, however, that our decision is bolstered rather than weakened by those situations, since the statutes there involved make explicit reference to the persons who must pay the fee. E. g.: Cal Bus & Prof Code, §§ 6320-6326 (West, 1962); Rev Code Wash Anno, §§ 24.070, 27 (1964).

Bearing in mind the disjunctive form of the clause in question, its application to the first paper filed in the case, and its position in the statute immediately following the authorization to collect “a. county law library fee of $1.00,” we find ourselves unable to agree with the trial court’s conclusion.

(5) Under all the circumstances of this case, the proper remedy is for the trial court to order an accounting of the library fees collected from defendants, and to supervise their refund to the persons entitled thereto. Flanagan v. City of Chicago, 311 Ill App 135, 35 NE2d 545. An appropriate injunction should also be issued.

The judgment of the Circuit Court is reversed and the cause is remanded with directions to proceed in accordance with the views expressed in this opinion.

Reversed and remanded with directions.

MCCORMICK, P. J. and DRUCKER, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    Levi M. Sayles, Plaintiff, v. Chicago, Rock Island and Pacific Railroad Company, et al., Defendants. Chicago, Rock Island and Pacific Railroad Company, a Corporation, Third Party Plaintiff-Appellant, v. The Sherwin-Williams Company, a Corporation, Third Party Defendant-Appellee.
    Gen. No. 50,881.
    First District, Fourth Division.
    November 27, 1968.

      Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Charles M. Rush and John W. Kearns, Jr., of counsel) , for appellant.
    Schiff, Hardin, Waite, Dorschel & Britton, of Chicago (James B. O’Shaughnessy and Peter V. Fazio, Jr., of counsel), for appellee.
   On Rehearing

MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

A suit had been brought by Levi M. Sayles against the Chicago, Rock Island and Pacific Railroad Company (hereafter referred to as the Railroad) and two of its agents. Sayles was an employee of the Sherwin-Williams Paint Company (hereafter referred to as the Industry). His original suit had been settled upon the payment to him of $65,000 by the Railroad. The Railroad had a third-party suit against the Industry, based upon an indemnity contract entered into between the Railroad and the Industry. The trial court found in favor of the Industry, and from that judgment this appeal is taken.

In order to decide the case it is necessary to interpret the indemnity contract. The contract was entered into on December 15, 1950, and it related “to the ownership, maintenance, operation and use” of side tracks at the Industry’s plant on Chicago’s south side. Section 1 of the contract provided the following:

“Said tracks to be owned, maintained and operated hereunder are shown by solid red and yellow lines on the blue print marked Exhibit ‘A’, which is attached hereto and made a part hereof. Said tracks have been designated by numbers and the lengths of those portions colored in red and the lengths of those portions colored in yellow and the total length of each of said tracks is also shown on said Exhibit ‘A’. Said tracks shall, for convenience, be hereinafter referred to as ‘track.’ ” (Emphasis supplied.)

Section 5 in pertinent part is as follows:

“The Industry also agrees to indemnify and hold harmless the Railroad for loss, damage, or injury from any act or omission of the Industry, its employees or agents, to the person or property of the parties hereto and their employees and to the person or property of any other person or corporation, while on or about said track, and if any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto, it shall be borne by them equally.
“The Industry shall not be obligated to indemnify or hold harmless the Railroad for loss or liability caused from the sole negligence of the Kailroad, except fire as set forth above.”

Section 6 of the contract is as follows:

“The Industry shall not erect or allow to be erected, any building, structure or fixture, or place material or obstruction of any kind, or make any excavation without giving a clearance of at least eight (8) feet from the center line of said track and head room of not less than twenty-one (21) feet six (6) inches above the top of the rails. The faces or edges of freight platforms not higher than four (4) feet above the top of the nearest rail of said track shall not exceed five (5) feet eight (8) inches from the center line of said track except when such platforms have horizontal clearances of eight (8) feet from the center line of said track. All windows, doors, or gates shall be of the sliding type, or shall open toward the inside of the building or enclosure when such building or enclosure is so located that the said windows, doors or gates, if opening outward, would, when opened, swing closer than eight (8) feet to the center line of said track. If by statute or order of competent public authority a greater or other clearance shall be required than provided in this section, then the Industry shall immediately comply with such order or statute. The Industry for itself, its successors and assigns assumes all responsibility for and agrees to protect, indemnify and save harmless the Railroad and the successors, lessees and assigns thereof, from and against all loss, damage and expense caused by, or arising out of, or contributed to by the erection or presence of any building structure or fixture, or placing, or presence of material or obstruction of any kind or making, or presence of any excavation at any place prohibited by this section.” (Emphasis supplied.)

Four years after the contract was signed, and while it was in full force, an accident occurred on the side tracks at the Industry’s plant. Sayles was injured and filed a complaint against the Railroad and its agents on April 19, 1956. On May 22, 1956, a third-party complaint was filed by the Railroad against the Industry. The original complaint filed by Sayles against the Railroad was settled for $65,000. Both parties to this appeal have stipulated that the amount of the settlement is reasonable.

In the third-party complaint as amended, the Railroad alleges that the Industry placed or caused to be present a tank car which was less than eight feet from the center line of the track upon which a train was operating, and that the Industry by so doing obstructed the track upon which the train was operating, in violation of Section 6 of the indemnity contract, and so caused the tank car to come into collision with the Railroad’s train, thereby causing the injuries to the plaintiff. Both the track on which the tank car was placed and the track on which the Railroad was operating its train were owned and maintained by the Industry.

The Railroad relied on the indemnity contract of December 15, 1950, and prayed that the Railroad shall have judgment against the Industry for any sum which may be recovered by Sayles against the Railroad. The Railroad also prayed that it be allowed costs.

The third-party complaint of the Railroad was answered by the Industry, in which answer the Industry denied that Section 6 of the indemnity contract is applicable, but alleged that Section 5 of the agreement is applicable. The answer denies that a tank car on the track constitutes an obstruction under proper construction of all the pertinent portions of the indemnity agreement, and alleges that the collision resulted from the positive acts of negligence or wilful and wanton misconduct of the Railroad by its agents and servants.

The trial court heard the case on stipulation filed on June 1, 1965, between the Railroad and the Industry pursuant to court order. The stipulation provided in part:

“2. On January 28, 1955, Levy [sic] Sayles, the Plaintiff in the original case, was injured and lost a leg in an accident occurring on the premises of his employer, the Industry. At the time of the accident he was engaged in cleaning a tank car, which was one of two tank cars on the tank car cleaning track. These cars originally had been delivered by the Railroad to the car cleaning track. After they were delivered they were under the control of the Industry. All of the trackage relevant to the issues in this case was owned by the Industry. Earlier that day the Industry had requested the Railroad to move two railway cars loaded with coal from its warehouse to its boiler room. To effect this move it was necessary for the Railroad to push these cars along tracks 22 and 23 into the boiler room, which movement was being effected at the time of the accident. Previous to the accident, Sayles desiring to move the two tank cars in a southerly direction got a co-employee with a caterpillar tractor to shove these cars to the south. Sayles directed the movement personally and gave the stop signal. He stopped the cars far enough to the south so that the southeast corner of the southernmost tank car fouled track 23 and the accident was caused when the northwest corner of the leading coal car struck the corner of the tank car that was so protruding. The moving train was under the sole control of the Railroad, and the switch was lined for track 23 when the train entered the Industry premises.”

On June 17, 1965, the court entered an order in which it stated that the primary issue presented for adjudication was an interpretation of Section 6 of the indemnity agreement. The court found that a car on the track cannot be an obstruction within the language and meaning of Section 6 of the agreement, and that the tank car on track 22 was not an obstruction of track 23 within the language and meaning of Section 6. In its order of July 6, 1965, the court reiterated its finding that a car on the track is not an obstruction within the meaning of Section 6 of the indemnity agreement, and the court included in its order the following statement:

“ (a) In the event this Court’s finding that a car on track is not an obstruction is reversed on review that the railroad third party plaintiff herein is totally exonerated of liability to the plaintiff and the third party defendant reimburse the third party plaintiff for such sums as may have been paid to the plaintiff and or the intervener herein by the third party plaintiff plus the third party plaintiff’s expenses incurred by the event.
“(b) In the event this Court’s finding that a car on track is not an obstruction is affirmed on review that Section 5 of the aforesaid sidetrack agreement controls the responsibility of the parties and liability to the plaintiff.”

In contingency (b), just quoted, the trial court further found that the Railroad and the Industry were “jointly and concurrently negligent in the occurrence and accordingly jointly and concurrently liable to the plaintiff [Sayles] within Section 5 of the sidetrack agreement”; that the Industry should reimburse the Railroad for one-half the sum paid to Sayles by the Railroad; and that the Railroad is not entitled to reimbursement for its expense incurred. The court further found that the Railroad’s expenses were in the sum of $5,000. The two agents of the Railroad joined as defendants were dismissed.

On July 21, 1965, by leave of court, the Railroad filed an amendment to the third-party complaint in which it asked in the alternative for a finding under Section 5 of the indemnity agreement. The Industry filed an answer to the amendment. On July 21 the trial court entered judgment in favor of the Sherwin-Williams Company and against Chicago, Rock Island and Pacific Railroad Company on the third-party complaint. From this judgment the Railroad takes an appeal to this court.

In interpreting the contract between the parties it is first necessary to determine whether Section 6 is controlling. It must be borne in mind that according to Section 1 of the contract, the system of tracks on the Industry’s property is to be designated by the single word “track.” Section 6 provides that the Industry shall not “place material or obstruction of any kind, . . . without giving a clearance of at least eight (8) feet from the center line of said track . . . .” Defining the agreement, “said track” must have included the track on which the tank car in question was standing, as well as the track on which the train was moving.

The Industry points out in its petition for rehearing that the agreement contemplated that rolling stock would be moved from point to point on “said track.” Obviously, rolling stock, wherever located on “said track,” would be less than eight feet from the center line. Consequently, it could not have been the intent to apply the obstruction limitation to a car on any part of “said track.” Furthermore, attention might be called to the fact that in none of the cases cited by the Railroad was it found that a piece of rolling stock constituted an obstruction. In Ohio & M. R. Co. v. Weber, 96 Ill 443, it is said at page 448:

“ ‘Rolling stock’ embraces the movable property belonging to the corporation, and is declared personal property, for the purposes of taxation. By movable property is plainly meant such property as in its ordinary use is taken from one part of the line to another, such as cars, locomotives and their attachments and usual accompaniments.”

None of the cases cited concerned a railroad car standing on a railroad track.

Under Section 6 of the agreement in the instant case the contributory negligence of the Railroad is immaterial, as is that of the Industry. Applying that section, the obligation of the Industry would be absolute as distinguished from its liability under Section 5, which is predicated on a negligence theory. This court must hold that the tank car is not an “obstruction.” Section 5, rather than Section 6, is applicable.

If we held that Section 6 was applicable it would follow that every railroad car left on any of the spur tracks would necessarily constitute an obstruction and that such a construction would negate the very purpose of the contract, since both parties entered into the contract for the intended purpose of moving rolling stock over the spur system.

We hold that Section 5 of the contract is the one under which this case must be decided. Under Section 5 there would be no liability of the Industry to the Railroad unless the Industry was in some way negligent in causing the injury, and then it would be jointly and concurrently liable only if the Railroad was also found to be negligent. Under the contract the Industry had a right to use all of the tracks in question.

In the stipulation between the parties it was set out that plaintiff, Sayles, in the original case was injured in an accident occurring while he was engaged in cleaning a tank car, one of two cars on the cleaning track. Prior to the accident, Sayles, desiring to move the two cars in a southerly direction, got a coemployee with a Caterpillar tractor to shove the cars to the south. He stopped the cars far enough to the south so that the southeast comer of the southernmost tank car fouled track 23. Earlier that day the Industry had requested the Railroad to move two railway cars loaded with coal from its warehouse to its boiler room. To effect this move it was necessary for the Railroad to push these cars along tracks 22 and 23 into the boiler room, which movement was being effected at the time of the accident.

The engineer employed by the Railroad to handle the engine moving the coal-filled cars testified that the engine was shoving the cars ahead of it and that the steam was blowing all over the place from the cleaning track between the cars being shoved and the tank car; that as he got nearer to the tank cars it became impossible for him to see anything ahead. He testified that one of the men did not walk ahead of the cars, nor did he believe it was customary that one should.

In a deposition given by Arthur Van Gañeron, a fireman on the engine pushing the coal cars, he testified that at the time the wind was blowing the steam, he could see that there was a tank car, but could not see whether it was in the clear. He testified that there is always steam blowing at that place, but at this time it was blowing more than usual because the wind was strong, and the steam was blowing towards the coal cars; that in spite of that fact, he gave the sign to go ahead. He stated that when he proceeded he could not see whether the tank cleaning track was clear. On cross-examination he testified that after the impact he knew there were tank cars there but did not know it before then because he could not see on account of the steam, which first obstructed his vision when he was 50 feet away from the switch.

We agree with the trial court’s conditional finding that both the Industry and the Railroad were negligent. We would say that the Industry’s placing of the tank cars on the cleaning track in such a position as to foul or obstruct the free passage of a train on track 23 was definitely negligent. Furthermore, the Industry, in the process of cleaning the cars, generated the steam which obstructed the vision of the Railroad’s train crew handling the coal cars. The Railroad, plunging into the cloud of steam at a time when the crew could not see what was ahead of them and could not know whether or not the track on which they were proceeding was obstructed, was also negligent. Many precautions could have been taken; they could have sent a man ahead to investigate, but they did not.

As we have pointed out, the trial court found conditionally that if Section 5 were to control, then the Railroad and the Industry were “jointly and concurrently negligent in the occurrence and accordingly jointly and concurrently liable to the plaintiff within Section 5 of the sidetrack agreement; that the third party defendant reimburse the third party plaintiff for one-half the sum paid to the plaintiff by the third party plaintiff; that the third party plaintiff is not entitled to reimbursement for its expenses incurred in the event.”

We reverse the judgment and approve this finding of the trial court, remanding the cause for entry of an appropriate judgment.

Reversed and remanded with directions.

DRUCKER and ENGLISH, JJ., concur.