author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Nelson and Robert E. Jackson, Defendants-Appellants.
    Gen. Nos. 53,336, 53,412.
    First District, Fourth Division.
    May 13, 1970.
    Rehearing denied July 1, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard E. Zulkey, Assistant State’s Attorneys, and Robert Kelty, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

By a joint indictment, defendants were charged with burglary. A jury convicted them and the court sentenced each to serve five to fifteen years. In this appeal, defendants contend that (1) evidence in the record did not prove existence of the corporation named in the indictment as the owner of the burglarized premises; (2) defendants’ constitutional rights were violated by admission in evidence of testimony concerning a statement allegedly made to a police officer by a co-defendant who was not on trial and who did not testify; and (8) the final argument of the prosecutor was prejudicial.

In the evening of December 29, 1967, Robert Schmidt, dressed in a police uniform, was on duty as a security officer for “ [S] ears and Roebuck . . .” at its warehouse, 2065 George Street, Melrose Park, Illinois. Part of the warehouse was a receiving dock with overhead doors numbered 1 to 26. Sometime that evening, Schmidt checked all the doors and found them locked. At about 7:30 p. m., Schmidt saw a hat and a gray coat inside the building. He touched them; they were cold. Then, looking toward Door No. 4, Schmidt saw a man carry a sewing machine to a white 1960 Ford four-door sedan that was parked near the receiving dock. The lighting condition of the area was “very good”; there were six poles of mercury vapor lamps. Schmidt saw the man put the sewing machine on the ground and open the door of the car. Schmidt went to the man “ [o] n Sears’ property . . .” and asked him what he was doing. The man replied: “I ain’t doing nothing, man.” As Schmidt went around the car to get nearer, the man bolted and ran. As Schmidt pursued him, he jumped a fence and got away. At the trial Schmidt testified that man was Robert E. Jackson, one of the defendants.

Schmidt went back to the car, recovered the sewing machine and “ [1] ooked in the car for other Sears’ property .. . .” In the glove compartment he found papers showing that the car belonged to a James Nelson. Schmidt then took the car’s rotor so that it could not be operated. He took the sewing machine, the papers and the rotor to the security office and called his supervisor. On advice of the latter, Schmidt sat in an automobile in the rear of the parking lot with the white 1960 Ford and the warehouse under surveillance. Forty minutes or so later, Schmidt saw two men come out of Door No. 24 and walk to the Ford. One sat behind the wheel and tried to start the car. Schmidt went to them and asked what they were doing. They did not answer. He then asked the two men to accompany him into the warehouse. One of the men showed Schmidt a draft card with the name James Nelson on it. According to Schmidt, the man had on the gray coat he saw in the building earlier. In his testimony, Schmidt identified defendant James Nelson as the man who showed the draft card and the codefendant who was not on trial, Ronald Dudly Hardman, as the man with Nelson. Hardman went into the warehouse with Schmidt; Nelson did not. After taking Hardman into the security office, Schmidt made an inspection of the area near Door 24 from which the two men emerged. There he saw four color and three black and white television sets on a dolly inside an empty truck.

The police were called and at about 10:09 p. m. Officers Belle and Diaferra came “ [t] o the Sear’s Distribution Center. . . .” Schmidt showed Officer Belle Door 24, the television sets in the empty truck nearby and a bluish-gray carton with “ [t] he name Sears on it ... a sewing machine that is sold by that company . . . .” Hard-man was taken to the Melrose Park police station. At about 1:00 a. m. in the police station, Schmidt was shown two groups of photographs. From these he selected pictures of defendants Nelson and Jackson. Schmidt testified that no employee of Sears “[o]r anybody else from Sears ever gave either of these two defendants permission to enter the premises. . . .” Then he was asked, “Did you or anybody else who is involved with the Sears Corporation ever give either of these defendants to the best of your knowledge permission to take any property from the Sears’ warehouse at that address ?” Schmidt answered, “No.” Thereafter, a complaint and warrant were prepared for the arrest of Nelson and Jackson. Nelson was arrested in his home; and Jackson was arrested on the morning of January 1, 1968 as he and his family were about to board a Greyhound Bus that was leaving Chicago for Montgomery, Alabama.

Both defendants testified. Jackson claimed an alibi. After saying that he was then on probation for indecent liberties with a child, he testified that on December 29 he arrived home “[a]bout maybe 4:30, 5:00, I should say.” When asked, “ [W] ere you at the Sears’ warehouse in Melrose Park on December 29, 1967?”, Jackson answered, “No.” He and his family were packing to leave Chicago. He did not leave the house anytime that evening. His wife, Mrs. Gayle Jackson, supported this testimony. She added that she called the Adult Probation Office and spoke with a probation officer who gave Jackson authority to leave the jurisdiction. In rebuttal, the prosecution called Michael Pines, a probation officer who told the jury that authority to leave the State was not given probationers by telephone; rather, such authority was obtained by a court order. Jackson was recalled and he testified that “[a]round October 29 or the 1st of November . . . ,” he appeared before the judge who admitted him to probation and obtained authority to leave Illinois and go to Alabama.

Nelson testified that in 1954 he was convicted of burglary. He had known Jackson “ [m] aybe three or four years.” In the evening of December 29, he loaned Ronald Hardman his 1960 Ford. According to Nelson, Hardman called him to come and pick up the car. He borrowed a 1967 Ranch Wagon from his aunt, met Hard-man at a bowling alley and then went to “ [t]he parking lot by the Sears’ warehouse in Melrose Park . . . .” There he saw Schmidt who asked what he was doing there. Nelson said he told Schmidt that Hardman borrowed the Ford earlier and had called him to come and get it. He showed Schmidt the draft card which Schmidt mentioned in his testimony. Nelson testified that when Schmidt asked him to go into the warehouse security office, he refused, sat in his own car and waited for the police to come. After waiting for awhile he left, leaving the car “[i]n the Sears parking lot . . .” since it could not be moved. After hearing the evidence of the parties, the jury found both defendants guilty of burglary.

First, defendants contend that neither the corporate existence of Sears, Roebuck and Co. nor its ownership or possession of the burglarized premises was proved. They argue that reference by witnesses (including defendant Nelson) to “Sears,” “Sears and Roebuck,” “Sears Corporation,” “Sears warehouse,” “Sear Distribution Center at 2065 George Street in Melrose Park,” “Sears’ property,” did not prove existence of Sears and Roebuck as a corporation nor its ownership and possession of the place that was burglarized. Defendants cite two cases which they say support their contention.

These cases, however, were instances in which no evidence was introduced to prove corporate existence or the ownership of the burglarized premises. In the one before us, on the other hand, two prosecution witnesses, without objection, named the injured party and gave the address of the injured property. “The purpose served by alleging the name of the person or property injured is to enable the accused to plead either a formal acquittal or conviction under the indictment in the event of a second prosecution for the same offense.” People v. Walker, 7 Ill2d 158 at 161, 130 NE2d 182; People v. Knox, 98 Ill App2d 270, 240 NE2d 426. It is true, as defendants contend, that where ownership of burglarized premises is alleged to be in a corporation, the legal existence of that corporation is a material fact which must be proved; but proof of corporate existence may be shown by oral testimony if no objection is made to that method of proof. People v. Gordon, 5 Ill 2d 91, 125 NE2d 73.

In People v. McGuire, 35 Ill2d 219, at 231-232, 220 NE2d 447, the court said:

We believe that the time has come to re-evaluate the standards of proof established by earlier decisions. In other States, the ordinary rule is that the existence of a corporation may be shown by direct parol evidence. . . . This court’s rulings to the contrary have sometimes given criminal trials, in which no corporation was a party, the appearance of a quo warranto proceeding against the victimized corporation. (See Sykes v. People, 132 Ill 32, 49-53 (Mr. Justice Magruder, dissenting).) We believe that these rulings are inconsistent “with the spirit that has substituted, in criminal procedure as well as in civil, an interest in the significant rights of the litigants for a ritualistic concern with empty formalities.” (People v. Hill, 17 Ill2d 112, 119.) We therefore hold that in the absence of evidence to the contrary, the existence of a corporation may be shown by the direct oral testimony of a person with knowledge of that fact.

It follows that formal and better proof would have been made if a witness who knew the facts were asked whether Sears, Roebuck and Co. was a corporation and whether it owned the warehouse as alleged in the indictment. However, absence of this kind of precise interrogation is not important because if there was evidence that the injured party was a corporation, and that it owned or possessed the burglarized premises, it is of no moment that a direct question about these facts was not put to a witness. This view is supported by the language in McGuire (35 Ill2d 219, 220 NE2d 447, at 231):

In 1889, the General Assembly provided, “In all criminal prosecutions involving proof of the legal existence of a corporation, user shall be prima facie evidence of such existence.” . . . (Now Ill Rev Stats 1967, ch 38, sec 160-1.) This statute foreclosed any holding that the introduction of a corporate charter was the “best evidence” of the corporation’s existence and was therefore required. (Compare State v. Merchant, 48 Wash 69, 92 Pac 890, 892.) The statute apparently liberalized the law of evidence at the time of its passage, and it should not, in our opinion, preclude proof of the existence of a corporation by means other than those it specifies.

We conclude that the record of these proceedings contains proof of the essential facts; and the judgments based on them will enable each defendant to plead former conviction in the event of another prosecution for the offense charged in the indictment in this case. Compare People v. Collins and Jones, 123 Ill App2d 138, — NE 2d — .

Second, defendants contend that their constitutional right to confront a witness was violated by the testimony of Officer Belle who was asked:

Q. “What did you do after that?”
A. “After the conversation with Mr. Hardman, we obtained some pictures pertaining to the names that were given to us by Hardman.”

Defendants objected and moved to strike this testimony. The trial court sustained the objection, granted the motion to strike and instructed the jury to disregard it. Defendants argue that despite the court’s ruling in their favor, Belle’s testimony told the jury that Hardman named Nelson and Jackson as his accomplices in the burglary. In support of this argument defendants rely on Bruton v. United States, 391 US 123, 20 L Ed2d 476, 88 S Ct 1620 (1968) and on a number of Illinois cases which hold that a confession or admission made outside the presence of a defendant is not admissible.

These cases do not support defendants’ contention. Belle did not testify to a confession, admission or statement of Hardman’s that implicated defendants in any crime. Belle’s response to which defendants objected was in part an improper answer to a proper question. People v. Nakutin, 364 Ill 563, 5 NE2d 78; People v. Carson, 341 Ill 11, 173 NE 97. Defendants by their objection and motion obtained the rulings they wanted. The trial judge went further and instructed the jury to disregard Belle’s answer. In his instructions the trial judge told the jury they were to disregard any evidence that was stricken. Ordinarily, an instruction to disregard evidence cures error in its admission. People v. Maciejewski, 294 Ill 390, 128 NE 489; and see People v. Garafola, 369 Ill 232, 16 NE2d 741.

Third, defendants contend that the prosecuting attorney’s argument to the jury was so prejudicial that it denied them a fair trial. In support of this contention defendants point to two statements made by the prosecutor during closing argument: first, he referred to the automobile owned by the defendant Nelson as “the outfit’s car”; and second, he accused Nelson of having told a lie to the Secretary of State in connection with the registration of his 1960 Ford.

The first statement was innocuous. The second was not capable of the prejudicial effect defendants attach to it. Furthermore, improper remarks of counsel during closing argument do not constitute reversible error unless they result in substantial prejudice to the accused. People v. Nilsson, 44 Ill2d 244, 255 NE2d 432. Considered in the light of the evidence of guilt presented by the prosecution, it cannot be said that the statements of the prosecuting attorney, complained of by defendants, were a factor in their convictions and that the verdicts against them would have been different had the statements not been made. People v. Nicholls, 42 Ill2d 91, 100, 245 NE2d 771; People v. Harkey, 123 Ill App2d 256, — NE2d —, and the cases cited. Judgment is affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.

       Sykes v. People, 132 Ill 32, 23 NE 391; People v. Pernalsky, 334 Ill 38, 165 NE 190.

       People v. Patris, 360 Ill 596, 196 NE 806; People v. Barbaro, 395 Ill 264, 69 NE2d 692; People v. Hodson, 406 Ill 328, 94 NE 2d 166; People v. Clark, 17 Ill2d 486, 162 NE2d 413; People v. Hal, 25 Ill2d 577, 185 NE2d 680; People v. Miller, 40 Ill2d 154, 238 NE2d 407; People v. Armstrong (Sumlin), 41 Ill2d 390, 243 NE2d 825.


source: Caselaw Access Project

author: MR. JUSTICE DRUCKER

license: Public Domain

text:
    Frank E. Lindgren, et al., Plaintiffs-Appellees, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 53,731.
    First District, Fourth Division.
    May 13, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago, of Chicago (Marvin E. Aspen and Stuart Sikevitz, Assistant Corporation Counsel, of counsel), for appellant.
    John J. O’Toole, of Chicago, for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant, City of Chicago, appeals from a judgment which declared its zoning ordinance invalid and unenforceable as applied to plaintiffs’ property and which ordered defendant to issue the necessary permits for the construction of a six-unit apartment building.

In their complaint plaintiffs allege that they are the owners of two lots located on the northeast corner of 3633-35 North Narragansett. The subject property has a depth of 125 feet and a frontage of 48 feet, with a total lot area of 6,000 square feet. The property is currently zoned R2, single-family residence district. The complaint further alleges that plaintiffs have been deprived of their property without due process of law and without just compensation and that the highest and best use of the subject property is for the development of a six-unit apartment building which would comply with all of the requirements of an R4, general residence district classification.

Defendant’s answer denied that the highest and best use of the subject property was for a six-unit apartment building under an R4 classification and prayed that the present R2 classification be held constitutional as it pertained to the subject property.

At trial, Frank Lindgren, one of the plaintiffs, testified that he was familiar with the area surrounding the subject property. Starting with Addison Street, one block south of the subject property, and going north on Narragansett on the east side of the street there are four stores. These stores are located in a B2-1, restricted retail district zone. Immediately next to the last store at 3617 Narragansett there is a building with two apartments, then at 3619 a building with one apartment, at 3621 a building with two apartments, and finally on the southeast corner of Narragansett and Patterson at 3625 there is a building with three apartments. The property on which these four buildings are located is zoned R2.

Directly north of the subject property, on the east side of Narragansett, there are two Georgian homes and then three single-family dwellings going up to Waveland Avenue. Beginning on the northeast corner of Waveland and Narragansett, at 3701 Narragansett, there is a single-family dwelling, 3707 is two apartments, 3711 is two apartments, 3715 is two apartments, 3721 is a single-family dwelling, and 3725 is a single-family dwelling. At 3735 Narragansett, on the northeast corner of Narragansett and Warwick, there is a Greek Church, then a single-family residence at 3739, a single-family residence with a store at 3743, at 3749 there is a two-apartment building, 3751 is a single-family dwelling, and the building at 3755 contains three apartments.

On the northeast corner of Grace and Narragansett, going north on Narragansett to Bernice, there is a single-family dwelling at 3801, two apartments at 3803, two apartments at 3807, a single-family residence at 3811, two apartments at 3813, two apartments at 3817, and a store at 3825. At 3835 and 3839 Narragansett there are six-flat apartment buildings and at 3857 Narragansett there is an eight-flat apartment building. However, these three multiple-unit buildings are located in a Cl-1, restricted commercial district zone which permits the construction of dwelling units.

At Addison Street, going north, on the west side of Narragansett to Dakin Street there are two cemeteries.

On the southeast corner of Addison and Narragansett there is a nine-flat apartment building and one block further south, at Narragansett and Eddy, there is a six-flat apartment building. These buildings are located in an R4, general residence district zone.

East of the subject property on Patterson there are several properties with more than one family. The buildings at 6303, 6304, 6316, 6323, 6337 and 6343 all have two apartments each.

Mr. Lindgren further testified that he never had a conversation with any of the people living at any of the alleged multiple-dwelling apartments. He determined that these buildings were multiple dwellings by the listing of names on the polling lists and in the directory and because they had two electric meters and more than one mailbox. He never checked the building permits for any of these buildings. He did not know if any of the people living in these buildings were related.

Mr. Lindgren further testified that he and his partners purchased the subject property in October 1966 for $19,-500. At that time he knew that it was zoned R2, single-family.

Ralph Burnke testified for the plaintiffs. He is a licensed real estate broker. The subject property was listed with him for sale, but he was unable to sell the property. In his opinion the value of the property under the present R2 zoning is $12,500. If the property were developed as a six-flat building the value would be $25,000. Furthermore, in his opinion, anyone who paid $19,500 in 1966 for the subject property paid too much.

John McNamara also testified for the plaintiffs. He is a real estate broker and appraiser and has been in the real estate business for 42 years. He is familiar with the subject property and the area surrounding it. Just to the north of the subject property are two Georgian single-family dwellings that had dormers built upstairs. The same was also true for several homes between Waveland and Warwick on Narragansett and on Patterson east to Mobile. At the southeast corner of Patterson and Narragansett and going south there are several single-family homes topped off with dormers. The homes with dormers had two electric fuse boxes in the back. He did not check the doorbells nor the interiors of any of these homes.

Narragansett is a heavily travelled street with a bus line and most recent development on arterial streets has been away from single-family construction. In his opinion the construction of a six-flat building would not have a deleterious effect on the surrounding property.

In his travels around the vicinity of the subject property the only new developments in the area were for multiple-family use. In his opinion the value of the subject property under the present R2 zoning is $10,000. If the property were developed as R4 under the proposed development, the value would be $20,000 to $22,000. The highest and best use of the subject property would be to develop it under an R4, general residence district zone.

Edward Lake testified for the defendant. He lives at 3641 North Narragansett, directly north of the subject property. When he purchased his property he relied upon the R2 single-family classification. All of the buildings on the block are single-family residences.

Richard McKinnon also testified for the defendant. He is a city planner and has been employed by the City of Chicago as a city planner for twelve years. He described the buildings in the area as follows: Immediately north of the subject property there are two single-family Georgians, followed by three single-family bungalow homes. Going south from the subject property on the east side of Narragansett there are two-family homes at 3625 and 3621 and then two single-family homes at 3619 and 3617. The zoning then changes from R2 to B2-1, restricted retail district. The building at 3625 was converted to a two-family home. However, this conversion had to be illegal.

Beginning at 3701 Narragansett, which is the northeast corner of Narragansett and Waveland, there is a single-family home followed by a three-family home at 3707, two two-family homes and then two single-family homes. The three-family home at 3707 is a legal nonconforming use, as are the two two-family homes at 3711 and 3715.

Two six-flat apartment buildings have been constructed at 3835 and 3837 North Narragansett and an eight-flat was permitted to be erected at 3857 North Narragansett within the last five years. However, these buildings, located between Bernice and Byron Streets, are in a Cl-1, restricted commercial district zone. They are approximately two and one-half blocks from the subject property.

Going north from Eddy on Narragansett, two blocks south of the subject property, there has been one single-family home built within the last five years. Otherwise there are only multiple-apartment buildings between Eddy and Addison. However, this area is zoned R4, general residence district.

Mr. McKinnon further testified that in his opinion the highest and best use of the subject property would be the continuation of the present R2 single-family zone district ; that plaintiffs’ proposed use would affect the character of the neighborhood by opening a wedge into the predominantly single-family neighborhood for apartment construction and that where there is a predominantly single-family area, the higher density of a six-unit apartment building would be incompatible with the existing single-family density.

Opinion

Defendant contends that the plaintiffs failed to overcome the presumptive validity of its zoning ordinance. There is a presumption in favor of the validity of a zoning ordinance and the one challenging its validity has the burden of overcoming this presumption with clear and convincing proof. Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 194 NE2d 201; Menolascino v. Village of Franklin Park, 106 Ill App2d 472, 246 NE2d 122; and Duryea v. City of Rolling Meadows, 119 Ill App2d 445, 256 NE2d 32. To meet this burden plaintiffs attempted to show the variation in the value of the subject property under different zoning classifications, the existing uses and recent development of the surrounding property, and the highest and best use of the subject property. Plaintiffs claim that the combination of these factors establishes the invalidity of defendant’s present R2 single-family zone as applied to its property.

Plaintiffs’ evidence shows that the subject property would have a greater value if its proposed R4 zone use were allowed. While the value of the property is a factor to be considered in determining the reasonableness of defendant’s zoning ordinance, it is not of itself sufficient to invalidate the present single-family ordinance. River Forest State Bank & Trust Co. v. Village of Maywood, 23 Ill2d 560, 179 NE2d 671 and Bluhm v. City of Chicago, 110 Ill App2d 136, 249 NE2d 108.

Plaintiffs also contend that the actual utilization and recent development of the surrounding property is not in conformity with the restrictive single-family use imposed upon its property. In determining the validity of a zoning ordinance the question of whether or not the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established is considered highly important. River Forest State Bank & Trust Co. v. Village of Maywood, supra, and Wehrmeister v. County of DuPage, 10 Ill2d 604, 141 NE2d 26. The subject property is currently zoned R2, single-family residence district. The R2 zone begins at 3617 North Narragansett and extends north to midway between Grace and Bernice Streets at approximately 3838 North Narragansett. The zone runs east from Narragansett to Central Avenue. Directly west of the subject property, running from Addison, north to Byron are two cemeteries which are zoned R2. Therefore, the entire area immediately contiguous to the subject property is zoned R2.

Defendant argues that plaintiffs failed to prove by clear and convincing evidence that the uses in the area are not single-family and that plaintiffs’ proposed six-flat building would be inconsistent with the character of the uses in the surrounding area.

Plaintiffs’ evidence shows that thirteen buildings on Narragansett, beginning at Addison, are single-family dwellings, as well as several buildings on Patterson immediately east of the subject property. As to the remaining structures on Narragansett and Patterson, within the R2 zone, plaintiffs have attempted to show that they are two-family or multiple-use buildings. They based their findings on several factors: (1) people with different last names live in these buildings; (2) most of the buildings have had dormers built on them; and (3) the buildings have more than one electric meter or mailbox. However, at trial plaintiffs’ witnesses admitted that they had no knowledge as to the relationship between any of the people living in these alleged multiple dwellings, nor had they spoken to any of these people or ever been inside any of the buildings within the R2 zone. The Chicago Zoning Ordinance (Municipal Code of Chicago, 1969, c 194A, § 3.2) defines “family” as:

A “family” consists of one or more persons each related to the other by blood (or adoption), together with such blood relatives’ respective spouses, who are living together in a single dwelling and maintaining a common household. A “family” includes any domestic servants and not more than one gratuitous guest residing with said “family.”

A “family” can include blood relatives, their spouses, domestic servants and a gratuitous guest, in addition to the principal residents who are related to each other by blood or adoption. Neither different last names nor more than one electric meter or mailbox are clear and convincing evidence of a use as multiple-family residences. Therefore, there is no adequate proof that many of the alleged two-family uses were not actually single-family homes under the ordinance.

According to defendant’s evidence some of the alleged multiple-family buildings referred to by plaintiffs were legal nonconforming uses. In Jacobson v. Village of Wilmette, 403 Ill 250, 256, 85 NE2d 753, the court defined a nonconforming use:

A “nonconforming use” is defined by the ordinances to be a building or premises occupied by use that does not conform to the regulations of the use district in which it is situated. The ordinances provide, however, that the lawful use of a building or premises existing at the time of the adoption of the ordinance may be continued, although such use does not conform to the provisions thereof, and such use may be extended throughout the building or premises.

Arden H. Rathkopf in his work, the Law of Zoning and Planning, Volume 2 (3 ed 1966) at 62-1 states that the spirit and intent of zoning is to restrict and eventually eliminate nonconforming uses.

Nonconforming uses and structures are, by definition, alien to the homogeneity of a district created under a zoning ordinance enacted in accordance with a comprehensive plan. They were originally tolerated and protected to the extent of their scope and existence at the time of passage of the zoning ordinance because it was considered necessary so to preserve them in order to render the ordinance constitutional, the powers of the municipality in relation to zoning then being only partially realized. Moreover, from the beginning of zoning it was assumed that:
“the ultimate ends of zoning would be accomplished as the nonconforming uses terminated in time,”
by obsolescence, destruction or similar factors and that thereby the objectives of the zoning ordinance classification would be achieved.
Because nonconforming uses and structures, so long as they exist, prevent the full realization of the zoning plan, the spirit of zoning is, and has been, to restrict, rather than increase, such nonconformities and to eliminate such uses as speedily as possible.

Defendant’s expert witness also stated that the building at 3625 North Narragansett, directly south of the subject property, was illegally converted to a two-family home. In County of DuPage v. Henderson, 402 Ill 179, 188, 83 NE2d 720, the court found that:

The fact the ordinance permitted a large number of uses within the district, which the appellants deemed more detrimental to the people and their property, can neither diminish nor enlarge their defense, for those other uses are not theirs. The fact that non-permissive uses are carried on by others contrary to the ordinance neither fortifies nor weakens the case of appellants, but each alleged violation of the ordinance is a complete case within itself and must stand or fall upon the facts and circumstances of that case alone. . . . The presumption of the validity of that classification must be overcome by proof made by defendants which is clear and convincing. (City of Springfield v. Vancil, 398 Ill 575.) The defendants have not supplied the proof required.

See also Exchange Nat. Bank of Chicago v. Village of Skokie, 86 Ill App2d 408, 229 NE2d 913.

In our opinion neither the several legal nonconforming uses nor the illegal conversion should be used as a wedge by plaintiffs for declaring defendant’s present R2 zoning ordinance arbitrary and void. The defendant has not purposefully allowed any intrusion into the solid R2 zone immediately surrounding the subject property. While there are multiple dwellings located on Narragansett from Addison south to Eddy, these buildings are in an R4, general residence district zone. Furthermore, the three recently constructed multiple-dwelling units at 3857, 3839 and 3835 North Narragansett are in a Cl-1, restricted commercial district zone.

Finally, plaintiffs contend that the highest and best use of the subject property would be for a six-unit apartment building while defendant argues that a continuation of the present R2 zoning is the highest and best use. As this court stated in Manger v. City of Chicago, 121 Ill App2d 358, 257 NE2d 473:

The determination of a zoning classification is a legislative rather than a judicial function, and where there is a legitimate difference of opinion concerning the reasonableness of the classification, or where the question of reasonableness is fairly debatable, the courts will not and cannot interfere with legislative judgment, nor carve out and rezone a portion of a tract of land. Bredberg v. City of Wheaton, 24 Ill2d 612, 182 NE2d 742 (1962).

The judgment is reversed.

Reversed.

STAMOS, P. J. and ENGLISH, J., concur.


author: MR. PRESIDING JUSTICE STAMOS

text:
    City of Des Plaines, a Municipal Corporation, PlaintiffAppellee, v. Metropolitan Sanitary District of Greater Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 54,029.
    First District, Fourth Division.
    May 13, 1970.
    Rehearing denied June 22, 1970.

      Allen S. Lavin, of Chicago (Vincent P. Flood and Fred F. Herzog, of counsel), for appellant.
    Robert J. Di Leonardi, of Des Plaines, for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Defendant, Metropolitan Sanitary District of Greater Chicago, appeals from the judgment entered in favor of plaintiff, City of Des Plaines, declaring the zoning ordinance of the city to be applicable to defendant’s property and enjoining defendant from constructing a water reclamation plant (sewage treatment) on said property in violation of the city’s zoning ordinance.

On July 29, 1966, defendant enacted an ordinance authorizing negotiation for the purchase of 103 acres of real estate located in the City of Des Plaines for the purpose of construction of a water reclamation plant. The real estate, as situated, was and continues to be zoned M-l Restricted Manufacturing District under the City of Des Plaines Zoning Ordinance of 1960, as amended, in which zoning classification the proposed use is not included.

On or prior to September 27, 1966, the date of defendant’s purchase of the property, plaintiff notified defendant of the zoning classification of the property and its restriction as to defendant’s proposed use. Defendant, however, in reply, declared its intention to proceed with the proposed use without application to the City of Des Plaines for a variation. The purchase of the property was then consummated and a design report prepared for construction of a water reclamation plant.

Plaintiff then filed a complaint in the Circuit Court on November 4, 1966, for declaratory judgment as to the applicability of the city’s zoning ordinance to defendant’s property and for an injunction against violation of the ordinance. The trial court granted judgment for plaintiff and issued the injunction. Defendant appeals.

OPINION

Defendant contends that the zoning ordinances of a municipality are not applicable against another municipality exercising its governmental function and that therefore, the trial court erred in granting judgment for plaintiff. Defendant’s argument in this regard is based primarily on the decisions in Decatur Park Dist. v. Becker, 368 Ill 442, 14 NE2d 490 (1938) and Village of Schiller Park v. City of Chicago, 26 Ill2d 278, 186 NE 2d 343 (1962).

In the Decatur case the park district sought condemnation of certain property for park purposes. The trial court denied the landowners’ motion to dismiss and they appealed contending the proposed park was not a permitted use under the zoning ordinance which classified the property “A” residence property. The court stated at page 447:

“No authority is cited to support this (the landowners) contention, and on principle it cannot be sustained. If appellants’ contention is correct, it would be necessary for the appellee to locate its city parks and playgrounds in commercial and industrial zones exclusively. The appellee is given authority to locate parks, and the city is given authority to adopt a zoning ordinance. The legislature did not empower cities to exclude parks from residence districts. The two statutes should, be construed so that the ordi nance of the park district and the zoning ordinance of the city will be given effect in their respective fields of operation. Regardless of the fact that this property was zoned “A” residence property, the park district could condemn and use it for park purposes.” (Emphasis supplied.)

In the Schiller Park case the Village of Schiller Park brought suit to enjoin the City of Chicago from condemning property located within the limits of the village for airport purposes (O’Hare). After dismissal of the suit, the village on appeal contended that since the statute authorizing the acquisition of property for public airports failed to provide for certain consequences of condemnation of property in incorporated areas, such as violation of zoning restrictions, an intention was evinced by the legislature to limit the exercise of the power to non-incorporated areas. The court answered this contention by stating at page 281:

“The argument as to interference with zoning restrictions would be applicable as well to county zoning, and it is undisputed that the power in question may be exercised in unincorporated territory outside the municipality. The possibility of conflict with local zoning.regulations does not indicate a legislative intent to withhold the power.”

In Heft v. Zoning Board of Appeals of Peoria County, 31 Ill2d 266, 201 NE2d 364 (1964) the Supreme Court of Illinois was again confronted with the effect of zoning restrictions upon land acquired by another municipality. The Greater Chillocothe Sanitary District petitioned the zoning department of Peoria County to obtain a building permit for a sewage disposal plant. After being denied the permit, the Sanitary District appealed to the Zoning Board of Appeals for a variation which was allowed. The appellants (adjacent landowners) then filed an administrative review action in the Circuit Court which affirmed the action of the Zoning Board of Appeals. On appeal the Sanitary District contended:

“. . . the statute under which it is organized authorized it to establish a needed disposal system and that no other governmental unit can interfere with the exercise of that authority so that it need not comply with zoning regulations.”

As to this contention, the court stated at page 271:

“We have never so held. This would result in an impossible as well as an undesirable situation. As we said in Decatur Park District v. Becker, 368 Ill 442, in discussing a similar contention with reference to establishment of a park in a residentially zoned area: ‘The two statutes should be construed so that the ordinance of the park district and the zoning ordinance of the city will be given effect in their respective fields of operation.’ While we there held that the park district might condemn the area for park purposes, the city zoning ordinance’s effectiveness was recognized. We are of the opinion that the Sanitary District was required to comply with the provisions of the zoning ordinance and follow its procedures in varying the use of the property from its zoned classification. This the district did. It ought not be permitted to contend that its action never was necessary in justifying the use of the area it now seeks. The zoning statutes applied even to the Sanitary District’s proposed use. (Emphasis supplied.)

Defendant contends that the language of the Heft case is dicta stating, “Once the Supreme Court had decided to affirm the lower court and the Zoning Board of Appeals in an administrative review case, any other statement or decision by the court was superfluous.” Defendant also points out that Greater Chillocothe Sanitary District had already voluntarily submitted itself to the jurisdiction of the Zoning Board of Appeals and had not contested its power to act until review by the Supreme Court.

In Larson v. Johnson, 1 Ill App2d 36, 116 NE2d 187 (1953) the court stated at page 40:

“When a court has before it various grounds urged for reversal and it decides that a certain number are valid, it does not follow that because the first ground would have been sufficient for reversal, the other grounds do not deserve equal recognition as the basis for the court’s judgment. Whether a legal proposition stated in an opinion is obiter dictum is to be determined from a reading of the entire opinion. If the opinion expressed on a legal question is one casually reached by the court on an issue unrelated to the essence of the controversy or based on hypothetical facts, then it is obiter dictum. If, however, the question involved is one of a number of legal issues presented by the facts of that particular case, the court’s decision on that question is not dictum even though it be the last ground of many decided by the court, all in support of its final conclusion. (Goodhart, 40 YLJ 161, 180). It is often stated that all except that which is necessary to the decision of a case is obiter dictum. This is misleading, for nothing but the bare finding of the court is absolutely necessary to its decision as between the parties. For the purpose of legal precedent, we must look to all the issues presented by the facts of the case and to the legal principles applied by the court in the final determination of those issues. Our Supreme Court has made a distinction between judicial dictum and obiter dictum, meaning that a legal principle deliberately passed upon by a court establishes a precedent. Scovill Mfg. Co. v. Cassidy, 275 Ill 462, 470.”

The language in the Heft case, supra, can hardly be referred to as being either casually reached or based on a hypothetical set of facts. The central controversy in the case was the authority and propriety of the action of the Zoning Board of Appeals in granting a variation. The applicability of the zoning ordinance to the property of the Greater Chillocothe Sanitary District was a valid legal issue directly related to the controversy and was so deemed by the Supreme Court when it deliberately passed upon it.

Once the Supreme Court rules on an issue based upon the facts of the case, it is not the province of the Appellate Court to ignore the Supreme Court’s decision. Therefore, the language of the Heft case pertaining to the applicability of the municipality’s zoning ordinance, being based upon the facts presented in the case, is binding legal precedent.

Defendant next contends that as a matter of statutory construction, the City of Des Plaines lacks the requisite power to regulate the property of another municipality. Defendant relies on the City of Des Plaines v. Trottner, 34 Ill2d 432, 216 NE2d 116 (1966) wherein the court held that general grant of zoning power to the City of Des Plaines did not authorize it to define “family” where to do so penetrates deeply into the internal composition of the household. The defendant maintains that the case is applicable since the general statutory grant of zoning power also precludes regulation of another municipality’s property absent a specific grant of that power.

However, the Supreme Court of Illinois has ruled in both the Decatur and Heft cases, supra, that the zoning ordinance should be construed along with that of the other municipality to give effect to both in their respective fields of operation. Since the Des Plaines Zoning Ordinance provides for special uses and variation, the defendant cannot contend that the two grants of power are hopelessly in direct conflict.

Plaintiff points out that if the proposed construction is, as it is represented to be in the deposition of its Superintendent, in its pleadings, oral arguments, written motions and briefs, the defendant should have no difficulty in meeting the standards set forth in that defendant need only show sufficient evidence that reasonable minimum standards will be met to obtain a permit. The plaintiff also states that it is the City’s duty to enforce the standards of the ordinance where the use is unique, and it is the fulfillment of this duty which prompted the City to file this cause and it did not do so for purposes of harassment.

Therefore, we see no reason why the two grants of power cannot be implemented within the dictates of Decatur and Heft, supra.

The Circuit Court was correct in entering judgment for plaintiff and therefore, the judgment is affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.

       Sections 9K (Special Uses) and 9E (Variations) of the ordinance appear to authorize departure from basic zoning when the proposed use is affected with the public interest or constitutes a proper “governmental use.”


text:
    Key Credit Corporation, Plaintiff-Appellee, v. Kendall W. Young, Defendant-Appellant.
    Gen. No. 54,208.
    First District, Fourth Division.
    May 13, 1970.
    Rehearing denied and opinion modified June 24, 1970.

      Hubbard, Hubbard, O’Brien & Hall, of Chicago, for appellant.
    Kenneth Baker and Edward M. Solomon, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is a suit on a promissory note brought by plaintiff against the accommodation maker of the note, Kendall W. Young. At the close of all the evidence the court directed the jury to find in favor of plaintiff in the sum of $3,545.-57 and judgment was entered thereon. Defendant appeals from the judgment and from an order denying his motions for judgment notwithstanding the verdict and for a new trial.

On October 7, 1960, Robert Leray, defendant’s brother-in-law, desired to secure a loan from plaintiff. Leray was indebted to defendant in the sum of $50 and asked defendant to go to plaintiff’s office, located in Salt Lake City, Utah, where he was arranging for the loan. Leray promised to pay defendant the $50 from the proceeds of the loan. Ray Phillips, president of Key Credit (plaintiff) presented to defendant a note and chattel mortgage for defendant’s signature. Defendant told Phillips that he was in no position to sign as security for anybody. However, Phillips told defendant that if he would sign the documents they would only serve as credit references for Leray. Phillips assured defendant he would never have to pay the note as plaintiff held in its possession sufficient collateral of Leray’s to cover the note. Relying upon these promises defendant signed the note and chattel mortgage. Leray also signed both documents. The note was for $6,262.40, payable in 36 monthly installments of $173.95 each, commencing November 7, 1960.

Defendant’s evidence shows that the collateral held by plaintiff consisted of 4,000 imported French dolls each worth between $3 to $25 according to the size and costume of the particular doll. Defendant’s evidence further shows that in a letter dated December 7, 1962, to Bruce Jenkins, an attorney for plaintiff, Phillips stated:

“During the past year, I have spoken to you about this account. In August, Mr. Le Ray came to Salt Lake City and picked [sic] most all of his collerateral [sic]. The collateral was approximately 4,000 dolls. He told me that he had a sale for some of them for $1,000.00. Upon receiving this he would apply this to his and Mr. Young’s account.
“He has never done this and today a $74,00 check he made in October bounced for the fourth time. In trying to determine the status of this account I tried to call Mr. Le Ray. His phone is disconnected.
“In the past I have written him many letters and placed numerous telephone calls to him in Los Angeles. All my efforts have failed. Mr. Young, Mission President, Taiti Mission, should be returning to Utah November 1963.
“Their complete file is enclosed in this letter. If we do not hear from them by December 20th, we hereby request that you bring immediate legal proceeding against Mr. Le Ray in Los Angeles and place the church on notice of your pending suit against President Young.”

In a note to defendant, a copy of which Phillips had sent with the December 7, 1962, letter, Phillips also writes:

“President Young:
“I am sorry that this mess has to be discussed again. This time the balance due is $3,400 and 7 months delinquent.
“Today a $100.00 check he gave in November was returned the 3rd time.
“His wife told me that he was in San Francisco last week. Now the phone is disconnected.
“Whatever help you could give us in collecting the $1,200.00 he received on the sale of the dolls he took from our office, would be appreciated.”

Therefore it is evident that in August 1962, when the collateral was released, the note had been in default for three months.

At the time of the signing of the note and chattel mortgage all parties concerned were residents of the Staté of Utah and the transaction took place in Utah. The parties agree on the applicability of Utah law.

Prior to the adoption of the Uniform Negotiable Instruments Law (hereinafter referred to as the “NIL”) the release of collateral security held by the creditor operated to discharge an accommodation maker. See 11 Am Jur2d, § 957, and 2 ALR2d 261. The NIL contains no express provision dealing with the release of security. Therefore, as the NIL was adopted by the various states, there developed in the courts a difference of opinion as to whether or not an accommodation maker was discharged by a release of collateral security. 11 Am Jur2d, § 957. No Utah case directly on this point has been cited by either party.

Plaintiff argues that the defense of release of security is not applicable to defendant since defendant is primarily liable on the note. Plaintiff cites Wolstenholme v. Smith, 34 Utah 300, 97 P 329, in which suit was brought by plaintiff against an accommodation maker on a promissory note. The defense was that plaintiff extended the time of payment on the note without defendant’s knowledge or consent and thereby discharged defendant. The court found that defendant was primarily liable on the note and therefore could not come within the specific statutory protection afforded by section 44-1-122 of the Utah Code Annotated, Vol 5, Title 44, which discharges only those secondarily liable on a note. Section 44-1-122(6) provides:

“When persons secondarily liable on, discharged. —A person secondarily liable on the instrument is discharged:
"
“(6) By any agreement binding upon the holder to extend the time of payment, or to postpone the holder’s right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly waived.”

Defendant argues, however, that this decision is not conclusive of his contention that the release of security collateral by plaintiff without defendant’s knowledge or consent discharges him as accommodation maker on the note to the extent of the value of the collateral. Defendant cites Southern Nat. Life Realty Corp. v. People’s Bank of Bardstown, 178 Ky 80, 198 SW 543, where the court discussed both an extension of time as a discharge of an accommodation maker and the release of security collateral effecting a discharge of an accommodation maker. In Southern the plaintiff, People’s Bank, sued defendants, Southern National, M. K. Allen and John W. Ray, to enforce the collection of a note. Southern filed a separate answer which alleged its name was signed as surety and that it was not liable on the note. Defendants Allen and Ray in their separate answer alleged in the first paragraph that they were sureties on the note and that subsequent to the execution of the note the plaintiff, without their knowledge or consent, surrendered to the principal debtor on the note collateral securities which had been deposited with the bank to secure the note’s payment.

The court found that although defendants Allen and Ray were primarily liable on the note, the defense of discharge from liability by reason of the release of the security was proper.

In its opinion the court discussed the Kentucky Negotiable Instruments Act, § 58, (Laws 1904, c 102), which is the same as section 44-1-59 of the Utah Code Annotated, Vol 5, Title 44. The court at page 86 states:

Unquestionably the Negotiable Instruments Act “covers the entire subject of negotiable instruments, and must be treated as a complete body of law upon that subject and controlling in all cases to which it is applicable,” as said in the second Elsey opinion, but its provision in section 58 that “in the hands of any holder, other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were nonnegotiable,” is as much a part, and as potent, as any of its other provisions, except as modified by other provisions of the act itself. One such modification, sustained by the great weight of authority, is that an extension of time to the principal does not release a surety primarily liable, but does release one secondarily liable, allowed upon the ground that, the act having treated of releases for extensions of time, presumably all releases for that reason not specifically allowed were excluded; and this rule was approved and applied in First State Bank of Nortonville v. Williams, supra. But the act does not treat at all of collateral securities or of releases of sureties primarily liable by surrender of collateral securities, unless in section 58; and, as such release in nonnegotiable instruments was uniformly recognized when the statute was enacted, there can be no doubt it was the intention to preserve that defense among the original parties by section 58.
The act does not lay down any new rule with reference to the effect, upon the liability of sureties to the original payee, of his surrender of collateral securities to the principal maker, or treat of collateral securities at all, but, upon the other hand, does specify that in the hands of a holder, such as we have seen plaintiff here was, a negotiable instrument shall be subject to the same defenses as if nonnegotiable.
We therefore conclude the Negotiable Instruments Act has not changed or affected the defense set up in the first paragraph of the answer of defendants Allen and Ray.

See also Lawrence v. Hammond, 208 Ill App 31.

We, too, are of the opinion that by releasing the chattel mortgage property after default without the consent or knowledge of defendant, as accommodation maker, the plaintiff discharged the obligations of defendant under the note. We realize that some cases have interpreted the NIL differently. However, our holding is in conformity with both the common law existing prior to the adoption of the NIL and today’s Uniform Commercial Code, which Utah adopted in 1966. (See Utah Code Annotated, 1953, Replacement, Vol 7B, Title 70A, § 3-606.)

Plaintiff further argues that defendant consented, in effect, to Leray’s possession of the collateral by executing a mortgage which stated that the mortgagors could retain possession of the mortgaged property. However, it is undisputed that plaintiff, the mortgagee, had possession when the mortgage was signed and retained possession thereafter until it voluntarily released the collateral to Leray after the mortgage was in default. We also note that the mortgage provided that in case of default the mortgagee would have the right to take possession of the collateral and sell it to satisfy the debt. Therefore, it is clear from a reading of both provisions that defendant’s signature to the mortgage did not contemplate nor constitute consent to the release of the collateral after default.

Although we have found that the release of collateral after default discharged defendant, such discharge is not necessarily complete; it is effective only to the extent that the accommodation maker has been injured. State Nat. Bank of Frankfort v. Thompson, 277 Ky 527, 126 SW2d 412 and 2 ALR2d 269, § 3. In the instant case defendant testified that plaintiff held approximately 4,000 imported French dolls at the time he signed as accommodation maker in 1960. Defendant further testified that he had seen similar dolls in the Utah area priced from $3 to $25 each, according to the size and costume of the particular doll. Defendant’s testimony as to the value of the dolls was uncontradicted and unimpeached. Therefore, we can only conclude from the evidence that defendant should be discharged in full from any obligation on the promissory note.

The judgment is reversed and remanded with directions to enter judgment for defendant.

Reversed and remanded with directions.

STAMOS, P. J. and ENGLISH, J., concur.

       Utah Code Annotated, 1953, Vol 5, Title 44, § 44-1-30:
      Liability of accommodation party.- — -An accommodation party is one who has signed the instrument as maker, drawer, acceptor or indorser without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.

       “In the hands of any holder other than a holder in due course a negotiable instrument is subject to the same defenses as if it were nonnegotiable.”

       70A-3-606. Impairment of recourse or of collateral. — (1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
      (b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.


author: TRAPP, J.

text:
    Nicholas Kappatos, Plaintiff-Appellee, v. Gray Company, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 52,601.
    First District.
    May 15, 1970.
    Rehearing denied June 24, 1970.

      Querrey, Harrow, Gulanick & Kennedy, of Chicago (John T. Kennedy, of counsel), for appellant.
    Michael H. Postilion, of Chicago (Peter Ritsos and Ritsos & Ritsos, of counsel), for appellee.
   TRAPP, J.

The defendant, Gray Company, Inc., appeals from a judgment in the sum of $45,000 entered upon a jury verdict in favor of plaintiff.

Plaintiff’s injury resulted from paint emitted from a minute hole in a plastic spray painting hose being forced into his left thumb, with the consequent loss of the thumb to a point above his wrist. Defendant manufactured the hose.

Defendant contends that since the injury resulted from a hose which was alleged to be defective, it was incumbent upon plaintiff to establish that the hose was in the same condition at the time of the accident as it was when it was supplied by defendant, and that the record is devoid of such proof. Defendant also complains of errors in the trial in allowing amendment of pleadings, admission of evidence and instructions.

The hose in question was a plastic hose covered with wire braid. All plastic hose used by plaintiff’s employer was obtained from Gray Company, Inc., it appearing that the earliest purchase was about two and one-half years prior to the accident, and the latest purchase thirteen months before the accident. The Alt Company, plaintiff’s employer, stored its hose in a room usually at a 65° temperature in coils tied by a rope, or in boxes. In the course of spray painting, a certain amount of paint will accumulate on the hose. However, it was the custom of plaintiff’s employer to clean the hose with caustic, and after such cleaning it would be clean and shiny to the extent that it was not readily distinguishable from new hose. The superintendent, who examined this hose after the accident, was able to say only that it was shiny and not whether it was new or newly cleaned. He testified that the company always tested reused hose before putting it on a job, but did not always test new hose if it was ordered out on the job. From the dates of purchase it would appear that the particular hose had been stored and was not newly ordered for this job. The hose was in lengths of about 25 feet, and in this case several sections were coupled to obtain 75 feet of hose. The hose delivered paint from a drum and compressor to a scaffold elevated some 25 feet for the purpose of painting ceiling girders. In this case the paint and air go through the same hose from the paint drum. They are not mixed at the gun.

The superintendent of plaintiff’s employer testified that he examined the hose after the accident and could find absolutely no sign of damage to the outside of the hose, that there was no kink or dent or cut or hole in it. He had seen paint spurt from the body of the hose just after the accident and prior to the time he shut off the compressor. It was a very thin stream. He could not find the pinhole from which the paint was emitted when he examined the hose. The hose was disposed of some time after the accident, and has not been available for examination since the superintendent examined it.

The testimony of the plaintiff and the superintendent of plaintiff’s employer as to the manner of occurrence of the accident differs widely. Plaintiff states that he put the paint gun on the end of the hose and took it up a ladder to the scaffold and got ready to paint. He is right-handed. He held the spray gun in his right hand and the hose in his left hand at a point three or four feet from the gun. The practice of holding the hose with the left hand is to give better control. The superintendent told him when he was ready to spray. He spray painted for about 15 minutes with no incident, when all of a sudden something hit him in the left thumb. The paint passed through his glove and hit the thumb. He left the gun on the scaffold and took 5 to 7 minutes to descend. A nurse gave him two shots for pain because his whole left arm was sore. He was taken to Michael Reese Hospital where he underwent four operations. He never used the gun after the first pain when the paint hit his thumb.

The superintendent states that he connected the hoses, saw plaintiff go up the scaffold and start to spray. The superintendent turned and walked away to set up other compressors. He had gone about 15 steps when he heard plaintiff yell, “It leak,” “It leak.” The thin stream of paint was coming from a point about 10 feet from the gun. He testified plaintiff went over and put his hand over the leak to keep the paint from spraying on the light fixture, and moved 4 or 5 feet to do so. The superintendent said he removed the end length, put in a different section, charged it and sent plaintiff back to work again. He said plaintiff worked for half an hour, and then called out and said his hand stung. Plaintiff denies that he ever went back up to work again, and denies that he put his hand over the leak.

Dr. Richard M. Bendix treated plaintiff in Michael Reese Hospital. He described the injury as very unusual. “The thumb, at the time I saw it, was bluish and black, bluish streaked and black streaked at least, one could see in the thumb paint within the thumb itself. It was swollen, extremely painful, as painful an injury as I have been acquainted with in my practice.” He incised the thumb laterally, and attempted to force the paint out under pressure. The thumb was full of black paint. He could not drain it all out. There was destruction of some of the soft tissues of the thumb. The paint had entered such a fine hole that he could not determine the point of entry of the thumb. Parts of the hand and wrist became infected, and an attempt was made to drain them. The thumb became gangrenous. In his opinion, the tremendous pressure shut off the blood supply to the thumb. In a third operation, the thumb was amputated just above where it joins the wrist. In a fourth operation, a skin graft from the thigh was placed over the open area of amputation. It is not possible to graft from the palm of the hand or the sole of the foot. The skin that was grafted cannot stand the normal pressure of everyday living and working. It cracks and peels. The lack of feeling on the outside of the index finger is probably due to an injury to the radial nerve which cannot be corrected.

Robert V. Peterson was called as an expert witness by plaintiff. He received a B.S. degree in chemical engineering in 1936 from Armour Institute of Technology now Illinois Institute of Technology, was a chemical engineer in safety for Liberty Mutual Ins. Co., from 1937 to 1942, spent 3 years as physicist and electrical engineer duty officer in the Navy, and as safety officer for the Ninth Naval District. Subsequently, he was in the Navy Bureau of Ordnance in control of accidents in the preparation and distribution of explosives. Since July, 1946, and for 19 years, he taught at Illinois Institute of Technology in industrial safety, traffic safety and special hazards. He is a member of the American Society of Safety Engineers. He has been consulted on causes of many industrial accidents.

Mr. Peterson, in answer to a hypothetical question, gave his opinion that the accident was caused by an inherent failure inside the hose caused by a defect in manufacturing. He substantiated this opinion by saying that if there was a kink or break or rupture, the minute the operator pushed the release there would have been a spouting out or big rupture. He stated that if there had been mechanical damage, such as being run over by a truck or by bending it, there would be a break in the armor part of the hose. His opinion was based chiefly upon the statement that there was no evidence of mechanical damage. He was of the opinion that there could not be damage to the inside of the hose caused by exterior force which would not show up in the damage to the armor cable. On being asked whether there were other causes than manufacturing defects that would give this fine point spray in this type of hose, he stated that he did not know of any in a plastic hose. He felt that mechanical damage to the hose would appear on the surface.

We think that under the principles set forth in Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 183 at 188, and Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill2d 339, 247 NE2d 401 at 403, there was evidence from from which the jury could find that the plastic hose was in a defective condition which rendered it unreasonably dangerous at the time it left the control of the supplier.

Defendant objects that the complaint was based upon specific charges of negligence, and plaintiff was permitted to rely upon the doctrine of res ipsa loquitur. Count I of the complaint charges in general terms negligent and improper manufacture, and manufacture with material insufficient to withstand normal operating pressure. No instructions were given setting forth the doctrine of res ipsa loquitur. The complaint also charges negligent failure to warn that the hose was likely to develop a pinhole leak.

Count II is based upon the theory of strict liability for harm caused by a product which was defective to the extent that it was unreasonably dangerous to a user who used it in a manner in which it was intended to be used. Complaint is made that plaintiff was allowed to amend at trial to add Count II. Since the charge of defective product was made in the original complaint, no element of unreasonable surprise is involved.

Defendant contends that the trial court improperly refused defendant’s tendered instruction that plaintiff could not recover if plaintiff’s lack of care was the proximate cause of the accident. The jury was, in fact, instructed that lack of care was a defense to Count I but was not a defense to Count II. Under the decision of the Supreme Court of Illinois in Williams v. Brown Mfg. Co., — Ill2d —, — NE2d —, contributory negligence as known in this state is not a bar to recovery in a strict product liability tort action in Illinois, and plaintiff need not plead and prove his exercise of care. While it is true that there is a sharp conflict, there is ample evidence from which the jury could conclude that the injury arose from a sudden failure of the hose while plaintiff was using it in the manner intended.

Defendant complains that the expert Dr. Peterson’s name was not supplied to defendant in answer to interrogatories. The trial court apparently accepted the explanation that Dr. Peterson had not been consulted at the time the inquiry was made. Defendant’s counsel refused the opportunity to explore Dr. Peterson’s testimony to determine whether the testimony would present any element of surprise which would hamper the defense.

Defendant contends that the verdict of $45,000 is excessive. Plaintiff was a 36-year-old laborer at the time of the accident. Dr. Richard Bendix testified that the amputation of the thumb above the wrist joint, together with the skin graft which was susceptible to breaking and cracking and the loss of sensation along the index finger would interfere with normal living and working. Plaintiff will not be able to handle ladders and tools in a normal way. There was some evidence tending to establish a loss of income of $2,000 per year. The doctor expressed an opinion that the injured hand would give pain from time to time, and that there was no way of further alleviating it because the pain comes from the nerve ends in the stump. We are unable to say that the verdict was so large as to exhibit passion and prejudice on the part of the jury.

The judgment of the Circuit Court is affirmed.

Affirmed.

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


author: STOUDER, J.

text:
    Carol Wilkinson Louis, Plaintiff-Appellee, v. John Louis, Defendant-Appellant.
    Gen. No. 53,209.
    First District.
    May 15, 1970.
    Rehearing denied July 31, 1970.

      Harry A. Carlson, of Chicago, for appellant.
    Ehrlich, Bendesen & Cohn, of Chicago (Howard W. Broecker, of counsel), for appellee.
   STOUDER, J.

Carol Louis, Plaintiff, Appellee, commenced this action in the Circuit Court of Cook County seeking to annul the purported marriage between herself and John Louis, Defendant, Appellant. The annulment was granted and thereafter within 30 days from the entry of the decree, defendant moved to vacate such decree. This is an appeal from the court’s order declining to vacate the decree.

According to the complaint the parties participated in a marriage ceremony on September 16, 1967, at Lake Forest, Illinois. Prior to the time of the marriage defendant represented to plaintiff that he wanted her to bear his children and further, that he was willing to consummate the marriage with the plaintiff. According to the complaint, such representations were made to induce plaintiff to consent to the marriage. Such representations were false and fraudulent because plaintiff after the marriage ceremony discovered that defendant never intended to consummate the marriage nor intended to permit plaintiff to have children, and neither was ever accomplished. The parties separated about October 15, 1967.

Defendant filed his answer denying the material allegations of the complaint, although in his answer he admitted the marriage had not been consummated but charged that such failure was due to the refusal of plaintiff. Rinella & Rinella, Attorneys at Law, filed their appearance in behalf of defendant, it appearing that James M. Forkins, an associate of the firm, actively represented defendant in the proceedings.

Pursuant to motion of the plaintiff after notice to defendant’s counsel, the case was assigned for hearing as a case at issue on the pleadings where evidence would be introduced in support of only the complaint or counterclaim, Cook County Circuit Court Rule 15. The case was heard on December 22, 1967, at which time Forkins was present on behalf of defendant. At the hearing plaintiff •testified, together with other witnesses, but defendant neither appeared nor testified. The evidence presented was substantially in accord with the allegations of the complaint. Thereafter, the decree of annulment was entered and filed on December 28,1967.

Within 30 days from the entry of the decree defendant filed his motion to vacate the decree of annulment. The motion to vacate set forth two general theories. First, that the decree of annulment was void because the complaint failed to state a cause of action and it was not aided either by evidence or the decree itself. Second, the defendant desired and ought to be entitled to present opposing evidence because he was not notified of the hearing and his attorney had exceeded his authority in appearing for him. Hearing was had on the motion to vacate the decree, at which time the court heard evidence relating thereto. Such evidence consisted principally of the testimony of plaintiff, defendant, and James Forkins, defendant’s original attorney. (Defendant employed new counsel to file the petition to vacate the decree.) Defendant’s motion was denied by the trial court, and at the same time pursuant to plaintiff’s application, the court held that the defendant’s motion was not filed in good faith and as a result thereof, the court assessed plaintiff’s attorneys’ fees in the amount of $500 against defendant.

The first question to be considered is whether as asserted by defendant, the allegations of fraud are insufficient to state a cause of action for annulment of the marriage.

Fraud that will warrant the annulment of a marriage is such fraud that goes to the essence of the marriage contract. It must be such as to vitiate consent that is, it must be shown that although there was an actual consent, there was no reality of consent. Bielby v. Bielby, 333 Ill 478, 165 NE 231. The fraudulent representations for which a marriage may be annulled must be of something essential to the marriage relation, of something making impossible the performance of the duties and obligations of that relation or rendering its assumption and continuance dangerous to health or life. Lyon v. Lyon, 230 Ill 366, 82 NE 850. In Johnson v. Johnson, 257 Ill App 587, the principal case relied upon by defendant, the court discusses and applies the Bielby and Lyon cases, supra, and affirms the judgment of the trial court dismissing a complaint for annulment for want of equity. We believe the Johnson case is distinguishable from the instant case on its facts, and from the reasoning in Johnson as applied to the instant case, the complaint is sufficient to state a cause of action.

In Johnson, the complaint alleged the defendant, pursuant to a preconceived plan, never intended to live with him as his wife and assume her marriage duties. The complaint also alleged that she made false, deceitful and fraudulent statements and promises, upon which he relied that she would fulfill all her marriage obligations. Defendant was defaulted for want of answer or appearance, and the plaintiff introduced evidence in support of his complaint, including a purported letter from the defendant in which she indicated she had never intended to live with plaintiff. The court concluded that the plaintiff had not proved his complaint, and the contents of the dubious letter from the defendant were insufficient to warrant an annulment. Although the complaint refers to false promises and statements, they are at best of a general character only, and not statements of fact. Further, the opinion also discussing misrepresentations does not indicate that any misrepresentations were, in fact, made and the purported intention of the defendant not to live with the plaintiff is not related to any representation of fact. The court in Johnson states, “And it may well be that the chancellor in view of the facts and circumstances entertained doubts, as we do, as to the genuineness of the letter. But, even assuming its genuineness and that defendant had intentions at the time of the marriage as stated in the letter, we do not think that the court would have been justified in granting an annulment of the marriage under decisions in this State and the general current of authority in other jurisdictions.” In effect, the court concluded that there was no fraudulent conduct inducing the marriage which made impossible the performance of marital duties and obligations.

The statement of a matter in the future, if affirmed as a fact, may amount to a fraudulent misrepresentation, but it must amount to an assertion of a fact and not an agreement to do something in the future. Bielby v. Bielby, supra. In our view, the misrepresentations charged relate to a present state of facts. The willingness to consummate the marriage includes the ability to do so both mentally and physically.

In determining the materiality of fraud, the above-cited cases indicate the salutory policy that marriages ought to be protected and promoted. Where, as in the instant case, the fraudulent representations induce consent in form only and performance of marital obligations is rendered impossible, annulment of such a marriage is appropriate. See Stegienko v. Stegienko, 295 Mich 530, 295 NW 252, and Maslow v. Maslow, 117 Cal App 237. The policy of protecting and nurturing the institution of marriage is not fostered by declining to legally declare the nonexistence of such marriages when, in reality, they do not and cannot exist.

Defendant also argues the evidence is insufficent to warrant the decree of annulment. We find no merit to such contention. The evidence generally supports and is in accord with the allegations of the complaint. That the evidence may not be as precise or as explicit as might have been the case had the issues been actively controverted does not support the contention that it is, therefore, insufficient. We feel no need to detail the evidence but believe it is sufficient to say that the decree of the court is based on ample evidence.

Defendant next argues the trial court abused its discretion in declining to vacate the annulment decree in order to permit defendant to introduce evidence in support of his answer. The major thrust of defendant’s argument is that he was prevented from appearing by misconduct of his attorney. Defendant has called our attention to several cases in support of the general principle that an attorney is bound to follow the instructions and act within the authority granted by his client. See Stephens v. Kasten, 383 Ill 127, 48 NE2d 508 and Fessler v. Weiss, 348 Ill App 21, 107 NE2d 795. Such cases do not support defendant’s assertion that his attorney acted contrary to his instructions or without his authority.

Defendant’s argument is based on a letter which he received from his attorney December 5, 1967. “Your wife’s attorney and I have reached an agreement along the lines you and I previously discussed, and a written embodiment of that agreement is to be sent to me for your signature. The hearing on your wife’s annulment suit has been set for December 22,1967, at 9:30 a. m. and it will not be necessary for you to be present if I have the executed agreement to present to the court at that time. Once the decree is entered, then you and I can discuss the steps to be taken to accomplish what you have in mind.” During prior conferences between defendant Louis and Forkins, the details of the property settlement referred to were worked out and related to payment of attorneys’ fees, return of gifts and payment of certain small bills of plaintiff. No written property settlement was ever executed.

On December 17, 1967, defendant Louis wrote plaintiff a letter which commenced as follows, “three months ago yesterday we were married, five days from tonight we will be legally no more.” On December 18, 1967, defendant Louis had a telephone conversation with Forkins during which conversation Louis indicated that he would be out of town for a few days. During this conversation Forkins indicated that the hearing would be postponed unless he was satisfied that the plaintiff would fulfill the property settlement agreement.

The annulment hearing was held on December 22, 1967. On January 3, 1968, in a telephone conversation between Louis and Forkins, the former was advised that the annulment had been entered. On January 22, 1968, defendant Louis, together with Forkins and plaintiff, met in the office of plaintiff’s attorney to conclude the post-judgment details. At the conclusion of this conference, defendant Louis delivered a check to his attorney Fork-ins in the amount of $252.18 to be held in escrow pending return of a ring guard by plaintiff. The $252.18 check represented the total of certain bills of plaintiff which defendant had agreed to pay and the delivery of the ring guard was the only unperformed condition of the agreement.

Two days later defendant Louis engaged new counsel and filed the motion to vacate the annulment decree. The motion so far as it sought leave to vacate the decree in order to permit defendant to present evidence in support of his answer, sought the application of Ill Rev Stats 1967, § 50, c 110. Such section permits the discretionary modification or vacation of decrees where application therefor is made within 30 days from entry of such decrees.

The initial weakness and one which is fatal to defendant’s argument, is the absence of any evidence from which it may be inferred that defendant ever intended to introduce evidence in support of his answer. Absent such intention or desire prior to the entry of the decree, it can hardly be said that defendant could have been deprived of the opportunity to carry out a nonexistent desire or intent. The letter of December 17, 1967, from defendant to plaintiff is completely contrary to the existence of any such intent or desire. It would serve no useful purpose to quote the letter, since it is quite lengthy, but the initial passage quoted above indicates an unconditional expectation that the case would be heard and decided favorably to plaintiff on December 22, 1967. Although the letter indicates a regret concerning the situation as it developed, the letter tends to indicate that the plaintiff’s complaints were justified.

That Forkins, the attorney for defendant, was guilty of any misconduct in permitting the hearing or appearing therein on December 22, 1967, is equally without merit. Although the letter of December 5, 1967, referred to a written property settlement agreement, the conversation of December 18th changed such requirement and the performance of the oral agreement on January 22, 1968, appears to us to conclusively demonstrate that Forkins’ conduct was in accord with defendant’s instructions. Defendant seeks to avoid such conclusion by insisting that the January 22nd payment was not a “final settlement.” We fail to see how such characterization can avoid the conclusion that the agreement entered into by defendant’s attorney and performed by defendant was contrary to the attorney’s authority.

It is also our conclusion that the trial court committed no error in assessing attorneys’ fees in the amount of $500 against the defendant pursuant to Ill Rev Stats 1967, § 41, c 110. We agree with the trial court’s determination that much of defendant’s post-trial motion was false, and rather than being filed in good faith, was filed with the intent to embarrass, inconvenience or injure plaintiff.

Finding no error in the judgment of the Circuit Court of Cook County, judgment is affirmed.

Judgment affirmed.

RYAN, P. J. and ALLOY, J., concur.


author: RYAN, J.

text:
    Continental Illinois National Bank and Trust Company of Chicago, a National Banking Association, and Roger C. Sullivan, II, Not Individually, but as Trustees Under Trusts Known as the Boetius H. Sullivan Trust and the Loretta C. Sullivan Trust, Plaintiffs-Appellants, v. Mary S. Griffin, Helen S. McKinley, Roger C. Sullivan, II, Individually, William J. Griffin, Jr., et al., Defendants-Appellees and Cross-Appellants. Mary S. Griffin, Helen S. McKinley, Roger C. Sullivan, II, Individually, William J. Griffin, Jr., Hollis Griffin, Roger S. Griffin, Roger C. Sullivan, Jr., Cynthia Marie Sullivan, Gail McKinley Donovan, Maryl McKinley, Marcee Sullivan and Marcaline B. Sullivan, Not Individually but as Guardian of the Estates of Boetius H. Sullivan, III, Mark B. Sullivan, Kurt T. Sullivan, Renee L. Sullivan and Ryan C. Sullivan, Minors, Counterplaintiffs and Cross-Appellants, v. Continental Illinois National Bank and Trust Company of Chicago, a National Banking Association, and Roger C. Sullivan, II, Not Individually, but as Trustees Under Trusts Known as the Boetius H. Sullivan Trust and the Loretta C. Sullivan Trust, Counterdefendants and Cross-Appellees.
    Gen. No. 53,445.
    First District.
    May 15, 1970.

      Murphy and Pearson, of Chicago, for appellants.
    Bernard McDevitt, of Chicago, for persons not in being, defendants-appellees and cross-appellants.

      Sidley & Austin, of Chicago (William H. Avery and Larry D. Berning, of counsel), for counterplaintiffs and cross-appellants and adult defendants-appellees.
    Hirsch E. Soble, of Chicago, guardian ad litem for minor defendants-appellees and minor cross-appellants.
   RYAN, J.

This is an appeal from a decree of the Circuit Court of Cook County which construed the language of a trust and allowed a deviation from it. All of the parties have appealed and cross-appealed in this case.

The Loretta C. Sullivan Trust directs the distribution of the trust income equally among the Settlor’s four children and provides that, in the event of the death of any of her children, the “issue or descendants” of such deceased child “shall be entitled, share and share alike, to the distributive share and portion of the income of this trust that would have gone to the deceased child, if still living, subject to the provisions of this indenture as to the distribution of income to minor children.”

The only “provisions of this indenture as to the distribution of income to minor children” are: a “facility of payment” provision for distribution to the father or guardian of a minor child which question is not here involved; and a limitation on the amount to be paid to a minor child, reading as follows:

“. . . in the case of children who have not reached the age of twenty-one (21) years, in the event that the share or portion of the income of such minor child from this trust exceeds in any year the sum of Six Thousand Dollars ($6,000.00), then the excess of income over Six Thousand Dollars ($6,000.00) of such minor child for such year shall be held and accumulated and invested by the Trustees and treated as corpus and principal held for such minor child, and when such minor child reaches the age of twenty-one (21) years, then he or she shall receive the total amount of his share or portion of the income of the trust estate, including the income on the additional corpus or principal accumulated for him or her while under twenty-one (21) years of age, in accordance with this paragraph.”

The Settlor’s son, Boetius H. Sullivan, Jr., died on December 19, 1966, and left six minor children surviving him. At the time of his death, Boetius H. Sullivan, Jr., an adult, was receiving approximately $20,000 annual distributable income from the trust.

The plaintiff trustee filed a complaint for construction of the trust and the trial court ruled that the Six Thousand Dollar annual limit on distribution to a minor child applied collectively to the six children of Boetius H. Sullivan, Jr., so that an effective individual limit of One Thousand Dollars per child was imposed. The trial court further ordered a deviation from the trust as an offsetting factor to the imposed limitation by providing that if the guardian of the estate of any minor or minors, at any time, was of the opinion that a portion or all of the income was necessary for the care and education of such minor or minors, such guardian could make application to the court for an order authorizing the trustees to pay any portion or all of the income or principal of any minor’s or minors’ trusts to the guardian for the use of such minor or minors in such amounts and for such purposes as the court might direct.

Rules of construction of wills are alike applicable to the construction of trust agreements. Storkan v. Ziska, 406 Ill 259, 263, 94 NE2d 185. However, if the intention can be gathered from the language of the instrument without reference to rules of construction, there is no occasion to use them. Wiener v. Severson, 11 Ill2d 347, 143 NE2d 225; Stagg v. Phenix, 401 Ill 134, 81 NE2d 565.

From a reading of the language of the trust which has already been quoted, we are of the opinion that the Settlor’s intention can be determined without reference to rules of construction. The words employed are clear and unambiguous. Taking the language at its face value, the Settlor meant to employ the distribution limitation to each minor child participating in the trust and not to any group of children. The six children of Boetius H. Sullivan, Jr. are entitled to receive all of the income that their father would have received, if living, subject only to an individual limitation of $6,000 per child and not a $1,000 limitation per child as imposed by the trial court. As stated by our Supreme Court in the Wiener case above cited and at page 263 of the Storkan case also cited above:

“. . . when . . . the words used in their ordinary sense are plain and their meaning clear, construction demands the use of the plain intention. . . .”

The question has been raised on this appeal as to the authority of the court to authorize a deviation from the provisions of the trust. In light of our decision concerning the distribution of income under the trust, it is unnecessary for us to decide this question on this appeal under the facts presented to us in this case.

During the trial, an offer of proof was made to show by statements of the Settlor that the Settlor did not intend or desire that trust income be accumulated and that neither did she intend or desire too large an annual distribution but that a distribution of all the income with a $6,000 individual limitation was about right. This offer was rejected by the trial court. We have considered the cited cases, including Continental Illinois Nat. Bank v. Clancy, 18 Ill2d 124, 163 NE2d 523. In general, it may be stated that where the language of a trust instrument is ambiguous, contemporary transactions and facts may be taken into consideration to ascertain what the Settlor meant by the words he used. Continental Illinois Nat. Bank v. Art Institute, 409 Ill 481, 100 NE2d 625; Weir v. Leafgreen, 26 Ill2d 406, 186 NE2d 293. We do not feel that the language in the case at issue was ambiguous so as to permit parol evidence. Furthermore, the evidence offered only tends to substantiate that which we have held to be the clear meaning of the language used which can be ascertained from the instrument itself without the aid of rules of construction and also without the aid of extrinsic evidence.

Finally, the issue has been raised that distribution is being made in a lump sum to a Guardian for the six children who may not be allocating exactly equal sums to each of the children. It has been correctly pointed out that the Guardian has a duty to account to the Probate Division of the Circuit Court of Cook County and that she acts at her peril in making unequal disbursements. However, inasmuch as the matter is before this Court at this time, we would be remiss in our duty if we did not point out that the trust instrument directs that these children “. . . shall be entitled, share and share alike, to the distributive share and portion of the income of this trust. . . .” This means that the children are to be treated equally. It would be improper to spend the income share of one of the children on one of the other children. In order that this division may be more clear to the Guardian and with the hope that future controversies in this respect will be avoided, we believe that it would be both helpful and proper for the Trustee to distribute separate payments to the Guardian for each of the six children rather than a distribution in bulk.

Accordingly, the decree of the Circuit Court of Cook County is reversed and remanded for further proceedings consistent with these views.

Reversed and remanded.

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