author: EBERSPACHER, P. J.

text:
    Greg Fustin, Plaintiff-Appellant, v. Board of Education of Community Unit District No. 2, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 68-45.
    Fifth District.
    November 20, 1968.
    Elmer Jenkins, of Benton, for appellant.
    J. C. Mitchell and W. A. Armstrong, of Marion, for appellee.
   EBERSPACHER, P. J.

Plaintiff filed his complaint for damages alleging that the defendant Board of Education possessed, controlled, and managed a high school at Marion, and provided, managed, and controlled a basketball gymnasium for basketball games; that plaintiff was a member and player on the Benton Consolidated High School varsity basketball team and was participating in a basketball game between Marion and Benton, at Marion at the invitation of defendant, when a Marion player without provocation struck plaintiff in the face with his fist, causing plaintiff’s injuries. The complaint further alleged that plaintiff was in the exercise of due care; that the game was controlled, managed, and supervised by defendant through its agents and charged the defendant with numerous acts or omissions of negligence in supervision of its offending player and the game, including failure to properly control and supervise such player with knowledge that such player did without provocation lose his temper and strike members of the opposing team, and that such person was a person likely to lose his temper and strike opposing participants, and failed to keep such player under control. The complaint also charged that defendant through its agents failed to maintain discipline of the players participating in an activity in violation of section 24-24 of the School Code (c 122, Ill Rev Stats 1965), the pertinent part of which is:

“Teachers and other certificated educational employees shall maintain discipline in the schools. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.
“Nothing in this Section affects the power of the board to establish rules with respect to discipline.
“The board may make and enforce reasonable rules of conduct and sportsmanship for athletic and extracurricular school events ...

Defendant filed its motion to dismiss the complaint or in the alternative to strike the subparagraphs of the complaint which alleged the purported negligent acts and omissions of defendant. The motion was based on the 1965, Local Governmental Act (c 85, § 1-101 et seq., Ill Rev Stats 1965) and particularly section 3-108 of the Act, the pertinent part of which is:

“Except as otherwise provided by this Act . . . neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.”

In addition to contending that the complaint was substantially insufficient as a matter of law to allege a cause of action against the Defendant District 2, the motion contended that defendant was not liable under the doctrine of respondeat superior for the conduct of the offending player, and could not be charged with knowledge that he would commit any alleged crime or acts done without provocation or advance notice. The motion also contended that under section 2-201 those persons responsible for the supervision of the game, alleged to be defendant’s employees or agents, are not liable to plaintiff. That section provides:

“Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.”

And defendant contended that thus, defendant was not liable, as a matter of law by virtue of section 2-109 of the Act, which provides:

“A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.”

The alternative motion was likewise based on sections 3-108, 2-201, and 2-109 of the Act, and the fact that the offending player was not the servant of defendant, and that defendant was not chargeable, nor as a matter of law, bound by duty to assume that any person would commit unprovoked acts of violence.

At the hearing on the motion, plaintiff took leave to amend his complaint by insertion of the following paragraph :

“la. That the defendant has contracted for liability insurance to the extent prayed for in the prayer of plaintiff’s complaint.”

Leave to amend the complaint in that manner was granted, and the parties stipulated that defendant’s motion should stand as the motion to dismiss and strike plaintiff’s complaint as amended; thus for purposes of the motion the allegations of paragraph la of the complaint were admitted.

After hearing the motion the court ordered the complaint as amended dismissed and ordered judgment for defendant, from which order plaintiff has appealed.

In a recent decision of this Court, Woodman v. Litchfield Community School Dist. No. 12, — Ill App2d —, — NE2d —, we held that a complaint alleging injuries to a second grade student in the classroom resulting from improper supervision and enforcement of discipline by the teacher, was properly dismissed on motion, by reason of the provisions of the School Code, supra, and the Local Governmental Employees Tort Immunity Act, supra. The language of that opinion is here applicable in so far as the original complaint in this case is concerned. In the Woodman complaint there was no allegation of liability insurance on behalf of the District.

Plaintiff here contends that by the allegation of paragraph la, to the effect that the District had liability insurance to cover the occurrence, the defenses provided the District by the Tort Immunity Act were not available to defendant by virtue of section 9-103 of that Act which provides in part:

“(a). A local public entity may contract for insurance against any loss or liability which may be imposed upon it under this Act. . . .”
(b). Every policy for insurance coverage issued to a local public entity shall provide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the limits of said policy by reason of the non-liability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act.”

We note first, that section 9-103 provides authority for a public entity to contract for insurance against “liability which may be imposed upon it under this Act.” Here plaintiff has not alleged liability under the Tort Immunity Act but bases his alleged cause of action on common-law negligence and a violation of section 24-24 of the School Code. Neither does plaintiff’s paragraph la allege that the insurance contracted for was contracted for pursuant to the authority of section 9-103(a). Previous to the enactment of the Tort Immunity Act (approved Aug. 13, 1965), School Districts had, and still have authority to insure against liability of the board or its employees, resulting from negligent acts or omissions, and to protect individual members of the board and its employees from liability by insurance from occurrences resulting in bodily injury while the individual was acting within the course or scope of his duties. Such provisions as are found in section 34-18, par 12, and section 34-18.1 of the School Code, supra, do not require, as does section 9-103 of the Tort Immunity Act, any waiver of defenses or immunity from suit. Furthermore 34r-18, par 12, and 34-18.1 of the School Code are not limited to insurance against liability arising under any statutory provision or particular Act as the insurance authorized by section 9-103 is limited to insurance against liability imposed by the Tort Immunity Act. That Act deals only with immunities and does not purport to impose liability on School Districts where no liability otherwise exists. Section 2-111 of that Act specifically preserves defenses “heretofore existing and not described herein.”

Plaintiff urges that since Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill2d 11, 163 NE2d 89 (1959) there is no longer any question but that school districts are responsible for the negligence of their agents and employees acting in the course of their employment. Plaintiff here charges negligence of defendant and defendant’s employees, its coaching staff and other employees engaged in physical education matters, for permitting a player to participate in an athletic contest, when such employees knew or had reason to know that the temperament of such player was such that he was apt to become angry and commit an assault in the course of an athletic contest. This Court is aware of the general nature of high school basketball, as played between the various districts, a competitive and highly organized activity. Boards of Education have expert, well trained physical education instructors who have coaching experience and ability with reference to the training of students in these competitive endeavors. These employees associated with the basketball activity of the defendant, are required to decide the propriety of doing various acts such as selecting the participants and the manner in which the contests are conducted, within the broad rules, guidelines and regulations prescribed by voluntary associations of which the various schools are members. In the exercise of their duties of selecting participants they exercise their own judgment and knowledge.

In Molitor, liability was predicated on a simple factual situation — negligence of the employee in driving a bus resulting in the injury of the student. The question of liability resulting from the discretionary exercise of judgment by professional school personnel relating to participation of a particular student was not involved. There our Supreme Court cited as persuasive authority, in determining whether school districts should retain their immunity from tort liability, an article by Dean Harno, “Tort Immunity of Municipal Corporations," 4 Ill Law Q 28, in which at page 30 the author stated, “The municipality should not be held responsible for errors of judgment of its officers." That principle had been recognized as applying to both a school board and a teacher in McCormick v. Burt, 95 Ill 262, long before Molitor; it has been referred to as the quasi-judicial or discretionary exception to liability which may be imposed upon employees of local public entities in the performance of their duties. In People ex rel. Munson v. Bartels, 138 Ill 322, 27 NE 1091, at page 328, our Supreme Court had stated:

“When the officer has the authority to hear and determine . . . the propriety of doing an act, he is vested with judicial power. An officer will be regarded as clothed with judicial or quasi-judicial functions when the powers confided in him are so far discretionary that he can exercise or withhold them according to his own judgment as to what is necessary and proper.”

In the recent case of Kelly v. Ogilvie, 64 Ill App2d 144, 212 NE2d 279, (1965), the Court pointed out that the doctrine of quasi-judicial immunity rests on the principle that the public decision maker should be shielded from personal liability or other factors extraneous to a judgment based on his best perception of public need and that choices or decisions should be made without fear of personal liability or the second guessing of courts and juries. In that case the Sheriff together with his employees and the party committing the assault, were party defendants, while the public entity, the County, was not. Dismissal of the complaint for failure to state a cause of action was affirmed in the Appellate Court and in the Supreme Court at 35 Ill2d 297, 220 NE2d 174.

The McCormick and Kelly decisions appropriately show that a public employee of a local public entity is not liable in tort for injuries arising out of the exercise of powers or authority vested in them in good faith if the powers are discretionary as opposed to ministerial in nature, except where such acts are performed wantonly or maliciously by the employee. In Woodman v. Litchfield Community School Dist. No. 12, supra, we pointed out that section 24-24 of the School Code, supra, protected a teacher from liability for mere negligence in supervision. Being insufficient as a matter of law against the employees of defendant, plaintiff’s complaint does not state a cause of action against the defendant under a respondeat superior theory, because the employer cannot be held liable where the agent or employee is free of responsibility. Kessler v. Lepiane, 69 Ill App2d 1, 216 NE2d 241.

The thrust of plaintiff’s contention is that the amended complaint states a cause of action because the defendant has seen fit to insure against liability. As was pointed out in Molitor, supra, the question of insurance in no way affects the liability, and that to determine liability by a determination whether a defendant is insured would allow the alleged wrongdoer to determine its own liability. In Kelly v. Ogilvie, supra, the plaintiff argued that statutory indemnification and insurance protection for the defendant sheriff against liability for torts abrogated any vestige of the judicial act doctrine. The Appellate Court answered that contention by saying:

“While the purpose of quasi-judicial immunity admittedly is to insulate decision making from extraneous factors, personal financial liability is only one of these factors. Equally important are public liability and an officer’s legitimate fear of defending his many policy choses in Court. These are not rendered obsolete by indemnification in insurance and reason for quasi-judicial immunity remains.” 64 Ill App2d 148, 212 NE2d 281.

From the foregoing we conclude that plaintiff’s amended complaint does not state a cause of action and was properly dismissed. The judgment of the Circuit Court of Williamson County is affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.

       Woodman v. Litchfield Community School District No. 12, — Ill App2d —, was pending in this Court at the time the briefs in the present case were filed.

       Section 34H8 of the School Code provided: “The Board . . . shall have power:
      «
      “12. To insure against any loss or liability of the board or of any officer, agent or employee thereof, resulting from the wrongful or negligent act or omission of any such person whether occurring within or without the school premises, provided the officer, agent or employee was, at the time of the wrongful act or omission, acting within the scope of his employment or under direction of the board. . . .
      “The specifications of the powers herein granted are not to be construed as exclusive, but the board shall also exercise- all other powers that may be requisite or proper for the maintenance and the development of a public school system, not inconsistent with the provisions of this Code which apply to all school districts. As amended by act approved July 15, 1965.”

       Section 34-18.1 provided: “The board of education shall insure any member of the board or any agent, employee, teacher, officer or member of the supervisory staff of the school district against financial loss and expense, including reasonable legal fees and costs arising out of any claim, demand, suit, or judgment by reason of alleged negligence or alleged wrongful act resulting in death or bodily injury to any person or accidental damage to or destruction of property, within or without the school premises, provided such board members, agent, employee, teacher, officer or member of the supervisory staff, at the time of the occurrence resulting in such death, bodily injury, or damage to or destruction of property was acting under the direction of the board within the course or scope of his duties. Added by act approved Aug. 27, 1963.”


source: Caselaw Access Project

author: STOUDER, J. ALLOY, P. J., SCHEINEMAN, J., dissenting.

license: Public Domain

text:
    Thomas J. Vlahovich, Plaintiff-Appellant, v. Betts Machine Co., a Foreign Corporation, Defendant-Appellee.
    Gen. No. 66-108.
    Third District.
    October 7, 1968.
    Rehearing denied December 9, 1968.

      SCHEINEMAN, J., dissenting.
    James L. Hafele and Smith, Whitney & Church, of Peoria, for appellant.
    Cassidy, Cassidy, Lindholm & Quinn, of Peoria, for appellee.
   STOUDER, J.

This cause is before us on appeal from a judgment of the Circuit Court of Peoria County in favor of defendant, Betts Machine Co., following a verdict of the jury in favor of said defendant.

Plaintiff-Appellant, Thomas Vlahovich, was employed as a truck driver by F. S. Services. On January 11, 1962, he delivered a cargo to the Knox County Oil Company in Galesburg, Illinois. While checking the clearance lights on the trailer which he was driving, he noticed that the mid-clearance light on the right-hand side had a burned out bulb. He secured a ladder and climbed up to reach and change the light bulb. The temperature at that time was ten or twelve degrees below zero. He climbed up the ladder to a point where the light assembly was at eye level with him. He then inserted a screwdriver in the indentation provided therefore, pried and possibly twisted the screwdriver to remove the plastic lens. The lens shattered and a piece of the lens cut plaintiff’s eye. Plaintiff testified that he had changed the lens “lots of times” and that they had broken in the process about six times previously. He further testified that in the shop where the trucks were serviced, they often applied a soap-type mixture on the ring around the lens to make it easier to remove, such mixture being one which the mechanics used to clean their hands. He also stated that he had never applied any soap or lubricant while out on the road. Plaintiff also stated that he did not read the instructions supplied by defendant, Betts Machine Co.

A professor of civil engineering testified as an expert witness for the plaintiff. He had examined the lens which cracked. In testifying as to the tensile strength of the lens, he stated that, in his opinion, without any resistance to removal, the tensile strain created from the use of the screwdriver could cause a fracture of the lens. On cross-examination this expert testified, that assuming there was no violation of the instructions on removal “the lack of grease or difficulty in unseating the lens” was a contributing cause of the fracture. He also stated that the lens would more likely fracture at lower temperatures. He found no grease on the “o” ring around the lens.

Another truck driver testified without objection that he had experienced breakage of this type of lens almost every time he changed one of the lenses and, also, that on occasion a portion of the lens struck him in the face. A Mr. Cochran who was called as an additional witness for the plaintiff began to testify that he had removed lenses which broke and hit him in the face, but, after defendant’s objection to such testimony, the court refused to allow the witness to testify further.

In seeking to reverse the judgment of the trial court the plaintiff argues the court committed prejudicial and reversible error in instructing the jury and in excluding Cochran’s testimony.

The action in this cause was instituted by plaintiff under the theory of liability established by Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182. In that case, the court indicated that plaintiff must prove that (1) the injury or damage resulted from a condition of the product, (2) that the condition was an unreasonably dangerous one, and (3) that the condition existed at the time it left the manufacturer’s control.

The principal issue in this case is the application of the Suvada rule. It appears that there are few well defined paths through the thicket of “absolute liability in tort.” In predicating the liability of the manufacturer of a product upon condition and result the Suvada rule has made causation a pivotal issue of increased importance. Even before Suvada the subject of causation was not free from controversy.

Plaintiff’s instruction number eleven, which is the complete IPI 15.01 (defining proximate cause), was, over his objection, modified by the trial court. The instruction was modified by excluding the following part of the instruction “It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.” By excluding such part of the instruction the plaintiff argues the court committed prejudicial error.

The propriety of the instruction tendered and modified depends upon considerations relating to multiple causation. Our present theory of legal causation is embodied in IPI 15.01. Although the pattern instruction was not adopted for specific use in products liability cases or with such cases in mind it does represent generally the present standard of legal causation.

The evidence is sufficient to support four theories of causation, A, unreasonably dangerous condition of lens, B, failure to follow directions, C, maintenance of “o” ring and D, pressure exerted in removing lens. Under the Suvada rule cause A must be found to exist but it need not be the sole and only cause.

Both parties concede and the trial court agreed that negligence of the defendant was not the basis of defendant’s liability and hence negligence of the plaintiff (contributory negligence) was likewise not an issue. It follows accordingly to defendant, that possible causes B, C and D, the only other possible concurring causes, relate to contributory negligence and such not being a proper issue, the portion of the instruction relating to concurring causes was properly excluded. Although it might be said that cause C (improper maintenance of “o” ring) does not necessarily relate to the conduct of the plaintiff (contributory negligence) such distinction is of no particular significance in the broader context of the basic error in the instruction as given.

In the comments to IPI 15.01 the use of the full instruction is proscribed where only the conduct of the parties is involved because such use would prejudice the defense of contributory negligence. If defendant’s view be accepted, the use of the full instruction should be proscribed because of the opposite reason namely, absence of contributory negligence as an issue. Such paradox demonstrates the fallacy of defendant’s argument and underscores the essential weakness of the instruction as given. That plaintiff’s conduct, whether negligent or not, may be causally related to the injury is obvious. Indeed this was defendant’s principal contention at the trial. The evidence is sufficient to warrant the conclusion that the injury could have been caused by any of the possible causes A, B, C or D. Such conclusion ignores the equally valid conclusion that the injury could have been the result of possible cause A, acting concurrently and in combination with possible causes B, C and D or any one of them. The jury however was not instructed in this regard. It was not advised as to the effect of evidence of other possible causes or how such evidence should be considered in relation to the principal basis of liability, possible cause A. Under such circumstances the jury was prevented from considering a significant basis of liability and therefore the modification of the instruction constitutes prejudicial and reversible error.

We also believe the trial court erred in excluding the testimony of witness Cochran. One of the issues in this case was the unreasonably dangerous condition of defendant’s product, namely, the likelihood that the lens would shatter in the course of removal in order to replace a bulb. Evidence of similar occurrences or the lack thereof involving like instrumentalities or agencies under similar conditions is relevant and admissible in the determination of such issue. Bloomington v. Legg, 151 Ill 9, 37 NE 696.

Both plaintiff and Nevendorf, another truck driver, testified without objection, to the breakage of the Betts’ lenses on other occasions under similar conditions. In opposition to such testimony the defendant presented the testimony of witness Ryan, a Service Manager for the Fruehauf Trailer Company. He testified he was familiar with the Betts’ clearance lights, had never had any complaints with respect thereto and had never heard of any injuries resulting from lens breakage. Under such circumstances we find no basis in the record to support the trial court’s conclusion that Cochran’s testimony was immaterial.

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

Judgment reversed and remanded with directions.

ALLOY, J., concurs in separate opinion.

SCHEINEMAN, J., dissents in separate opinion.

ALLOY, P. J.,

concurring specially.

I concur in the conclusion reached in the foregoing opinion. On the basis of what is stated in the foregoing opinion and in the dissent (that the court failed to submit the issue of contributory negligence to the jury) I believe that remandment is required in this case.

I agree with my colleagues that the issues relating to proximate causation and the question of possible negligent conduct on the part of the plaintiff, require careful analysis, and, in certain areas, require clarity and guidance from the Court as to the basis for liability in a products liability case. We are reluctant to reverse and remand a judgment based on a jury verdict, unless the circumstances are such as to justify the conclusion that error in instructing the jury was sufficiently misleading to require reversal.

I believe we are all in agreement that a jury in a products liability case of the type before us should be instructed specifically that the dangerous condition of the product, if found to exist, must have been a proximate cause of the injuries complained of. The dangerous condition need not be the sole or only cause but it must in fact be a proximate cause of the injuries. This should be clearly indicated to a jury in such manner as to be readily understood by a jury.

Since this case has been before us for consideration, similar issues arising in this State have been considered by other courts (Williams v. Brown Mfg. Co., 93 Ill App2d 334, 236 NE2d 125; Dazenko v. James Hunter Mach. Co., 393 F2d 287; Sweeney v. Matthews, 94 Ill App2d 6, 236 NE2d 439). In Williams v. Brown Mfg. Co., supra, the court had occasion to analyze at length the case of Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182. The Appellate Court points out, I believe correctly (236 NE2d, at Page 132) that the Supreme Court in the Suvada case had stated that the view of the Supreme Court coincided with the position taken in § 402A of the American Law Institute’s Revised Restatement of the Law of Torts approved in May 1964. In the Institute analysis, it is pointed out that contributory negligence of plaintiff would not be a defense unless plaintiff, as a user or consumer, discovers the defect and is aware of the danger and, nevertheless, proceeds unreasonably to make use of the product and is thereby injured by it. The court concludes, in Williams v. Brown Mfg. Co., 93 Ill App2d 334, 236 NE2d 125, at 133, that contributory negligence in a case based upon strict liability in tort would be an affirmative defense. It is there pointed out, that in determining the issue of contributory negligence, the conduct of the plaintiff is not to be measured against the objective standard of conduct of a reasonably careful person, but is to be determined by the test of whether the particular plaintiff has proceeded unreasonably to use the product after he has discovered the defect or has become aware of the danger or has voluntarily or unreasonably proceeded to encounter a known danger. This obviously would not exhaust the possibility of negligence on part of plaintiff; for example, a continued use by plaintiff of a product, knowing of a defective condition and the probability of injury, or a clearly abnormal and unforeseeable use by plaintiff.

In Williams v. Brown Mfg. Co., 93 Ill App2d 334, 236 NE2d 125, at 133, the court analyzes the reason for imposing the burden of proof of plaintiff’s contributory negligence on defendant as follows:

“A manufacturer is held to the degree of knowledge of experts. ‘. . . the duty contemplated by the court in Suvada is one of making the chattel safe for the use for which it is supplied,’ Dunham v. Vaughan & Bushnell Mfg. Co., 86 Ill App2d 315, 229 NE2d 684. The question of what is ordinary or foreseeable use is one of fact, Hardman v. Helene Curtis Industries, Inc., 48 Ill App2d 42, 198 NE2d 681, 12 ALR3d 1033. Charged with the duty of making the product safe for the foreseeable use to which it might be put, and armed with expert knowledge, the manufacturer should bear the burden of proving that improper, abnormal or unforeseeable use of the product contributed to cause the injury. It appears unjust and incongruous to place the burden of proof of freedom from contributory fault upon a user, entitled to rely upon the product’s being fit for its intended use, and not charged with expert knowledge. In our opinion the same reasoning which justifies the doctrine of strict liability compels the adoption of the rule that when a plaintiff proves that his injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the ' time it left the manufacturer’s control (Suvada) the manufacturer must bear the burden of proof that the injury resulted from conduct of the plaintiff which contributed to cause his injury.”

That this is a proper rule is manifest from the very nature of the conclusion of the Supreme Court in the Suvada case. To conclude otherwise would completely emasculate the doctrine that proof of the dangerous condition of the product and further proof that such dangerous condition caused the injury, would (in absence of affirmative proof of plaintiff’s negligence) justify a recovery. To assert, as a basic principle in such case, that affirmative proof of freedom from any contributory negligence on part of plaintiff is requisite to a recovery, might require direction of verdict for defendant, even in face of proof of a dangerous condition of a product proximately causing the injury during its normal use, if no specific proof of freedom from contributory negligence is alleged or presented by plaintiff. To invoke such doctrine and to instruct the jury on such basis would, in effect, nullify the products liability doctrine announced in the Suvada case. The question of plaintiff’s contributory negligence, even where the burden of showing the same is placed upon defendant, is necessarily a question of fact for the jury. Whether instructions treating such question of contributory negligence would, in any particular case, constitute reversible error, must necessarily depend upon the facts of each particular case.

For reasons stated in this special concurrence, therefore, I have concurred in the conclusion that this cause should be reversed and remanded.

SCHEINEMAN, J., dissenting.

I am obliged to note my dissent in this case with apologies to my colleagues.

Differences of opinion exist in the interpretation of Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182. There are some who contend that the doctrine of contributory negligence has been abolished so far as cases involve the question of products liability.

The theory has been asserted that there can be no contributory negligence in a case that does not involve negligence of the defendant.

Some may base this notion on the fact that, prior to Suvada, all cases involving contributory negligence of the plaintiff also involved an issue of defendant’s negligence, therefore, if a case does not involve an issue of defendant’s negligence, it cannot involve contributory negligence. Surely this obvious violation of the basic principles of Logic cannot justify the theory.

Nor is there anything to justify the theory in the Suvada opinion. It is possible that plaintiff’s attorney in that case, seeking to blaze a new trail in the law, and wishing to avoid having some side issue divert attention from the objective, may have included in the count on products liability, the usual allegation that plaintiff was using due care. Certainly there was no argument on this point, since the opinion makes no reference to it.

In the subsequent case of People ex rel. General Motors Corp. v. Bua, 37 Ill2d 180, 226 NE2d 6, the court found that the case involved the question of liability for a defective product, and recited the requirements of such a case as specified in Suvada, adding, “However, under both counts it is necessary to prove that the plaintiff was in the exercise of due care for his own safety.” The Federal Court has followed this ruling. In Dazenco v. James Hunter Mach. Co., 393 F2d 287 (7th Cir) a plaintiff’s verdict was reversed for failure of the trial court to instruct that plaintiff must prove he was in the exercise of due care of his own safety.

Reference has been made to the Restatement 2d Torts, section 402-A, on the subject of products liability. Therein it is stated that contributory negligence of the plaintiff is not a defense when it consists merely in a failure to discover the defect. It further describes conduct of a plaintiff which would be a bar to his claim. The sentence which makes this assertion begins: “On the other hand the form of contributory negligence which consists in . . . ,” etc. So, by this authority, when the plaintiff’s conduct was such that his claim would be barred, it is properly called “contributory negligence” in products liability cases.

That the foregoing note states one fact which does not bar a claim, presents no novel idea. In any negligence case the question may arise whether the plaintiff’s own conduct amounted to contributory negligence. If the court holds it does not, this would not be a precedent that the principle of contributory negligence is abolished.

The indications are already plainly to be seen, that adoption of this theory leads to confusion and difficulty of explanation, without accomplishing any basic change in the law. Negligence of the plaintiff may still bar his claim even though it is called by some other name. Apparently a substantial segment of the legal profession sees no significance in the poetic suggestion that “a rose, called by any other name, will smell as sweet.”

As examples of the difficulty caused by the theory see Sweeney v. Matthews, 94 Ill App2d 6, 236 NE2d 439. Also Williams v. Brown Mfg. Co., 93 Ill App2d 334, 236 NE2d 125. These cases involved products liability. In both the court arrived at the conclusion that the evidence did not justify a decision of the case as a matter of law, but that there was presented a question for the jury whether the plaintiff’s acts amounted to negligence barring his claim. An effort was made to state this result without using the word “negligence.” It was suggested there might be reference to the doctrine of assumed risk which presented other problems. The effort to avoid the use of the plain English word “negligence” fully understood by the bench and bar required great length. As a result, reading time for either opinion is about one hour.

The case at bar is an example of the confusion and detrimental effect of the theory upon jury instructions. The attorneys on both sides accepted the theory that contributory negligence should not be mentioned in a products liability case, hence, the jury was not instructed on what effect it would have. However, plaintiff tendered a version of IPI No. 12.05, Revised, which, in effect, tells the jury that if the alleged wrong of the defendant (issuing defective product) was proved to be a proximate cause of plaintiff’s injury, it was not a defense that there was some other concurring cause.

There was evidence of lack of due care on the part of the plaintiff, including violation of the manufacturer’s warnings. Therefore, the instruction would be misleading since the negligence of the plaintiff might be a “concurring cause.” This was the reason the trial judge modified the instruction.

It is my opinion the theory that plaintiff’s negligence cannot be mentioned in a products liability case should be summarily rejected by the court as a nuisance to orderly processes of the law, without any logical basis or authoritative backing.

In my opinion the supposed ban of any mention of contributory negligence, left the jury without guidance as to its effect, and made it necessary to modify the tendered instruction. I think the modification should be approved under the stated conditions and should not be a basis for reversal.

The remaining ground for reversal, the exclusion of certain testimony, is not of sufficient importance, by itself, to justify reversal. Therefore, I would affirm the judgment.


author: MR. PRESIDING JUSTICE SMITH

text:
    Cecil John Arthur Howard, et al., Plaintiffs-Appellants, v. Ralph Chapman, Neil B. Dawes and Newton C. Farr, as Trustees Under the Will of Levi Z. Leiter, Deceased, et al., Defendants-Appellees.
    Gen. No. 51,721.
    First District.
    October 16, 1968.

      Wilson & McIlvaine, of Chicago (Calvin F. Selfridge and Charles R. Staley, of counsel), for appellants.
    Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago (Sherwood K. Platt, of counsel), for appellees.
   MR. PRESIDING JUSTICE SMITH

delivered the opinion of the court.

Three cases involving the interpretation of the testamentary trusts created in the will of Levi Z. Leiter were consolidated in this court for purpose of appeal. Cases 51,638 and 51,720 have been disposed of and have no bearing on the issue here involved. The trial court held in Case 51,721 that attempted assignments by present income beneficiaries of their rights to receive income from the trust were invalid under the terms of the will. This appeal is from that order.

The last income beneficiary is now dead and the time for a distribution of the estate has arrived. Prior to her death, the last income beneficiary made assignments of her right to the income to members of her family. The trial court held that such assignments were in violation of the following provision of the will:

“AND IT IS MY WILL AND I DIRECT that none of my said children or any person entitled at any time to receive any share of said net income, shall have the right or power to anticipate or encumber in anywise his or her share of the yearly income to be received from said trust estate, or to give orders in advance for the same on the said trustees.”

Appellants assert that where a fee simple is involved, a restraint on alienation, however clearly expressed, is void. Davis v. Hutchinson, 282 Ill 523, 118 NE 721. They recognize, however, an accepted exception to that rule is that a restraint on alienation by a cestui que trust of his interest in the trust estate is valid provided such restraint is clearly expressed in the document. They thus urge that there is no express restriction in the Leiter will against an income beneficiary assigning to other members of his family the right to receive a portion of the income payable to him. They reach this conclusion by stating that such an assignment is not an anticipation of or an encumbrance on nor an order given in advance to the trustees and hence is permissible.

In reaching this conclusion, appellants point out that there is no specific prohibition or restriction on assignment in the clause quoted. In another portion of the will which has no relationship to our problem directly and in dealing with another income beneficiary, the testator provided that the income should be paid “without any power on his part to anticipate or assign the same and without any liability for the same to be taken from him by his creditors, etc.” Thus, if the testator had intended to prevent all of his income beneficiaries from assignment to their respective families of their right to receive the yearly income as well as to prevent them from anticipating, encumbering or giving orders in advance on the yearly income, he could easily have said so and did so in the instance above cited.

Levi Z. Leiter died June 9, 1904, leaving him surviving his widow and four children. His will was admitted to probate in the District of Columbia on June 20, 1904, and in Cook County on July 24, 1905. The widow and three of the children died prior to the institution of this suit. When it was instituted in March 1966, Lady Suffolk was the only living child of Levi and then 86 years old. She has since died and her death triggers the final distribution of the estate as provided by the will. While her death has perhaps solved some of the problems in this estate, it does not solve the precise issue before us as to whether or not purported assignments in this case are valid. This is, however, an issue concerning only the life tenant (now her estate), her descendants and assignees and the trustees and the trial court properly so held.

Immediately preceding the portion of the will first above described is this language:

“I direct my said trustees to pay over in each year during the continuance of the trust hereby created, to each of my said children, or to the issue of any one of them who may have deceased as aforesaid, the share of said net income to which each may be entitled hereunder, upon the sole and separate receipt of the one so entitled. . . .”

Based upon this proviso and upon the provision that a beneficiary should not “give orders in advance for the same on the said trustees,” the trustees refused to accept the validity of the assignments and state that they are obliged to carry out the plain terms of the will. They further point out that the assignments of Lady Suffolk include as recipients or potential recipients of the assigned income the spouses of the assignees, and thus purport to pass the income to persons other than the testator’s descendants and consequently go outside of the objects of testator’s bounty as set forth in the will. In addition, in the assignment of another income beneficiary, the assignment constituted the Bahama Trust Company as a trustee and delegated the selection of the beneficiaries to that trustee. Neither the Bahama Trust nor the assignments include all of the children of the assignors and distribution pursuant to either the trust or any assignment would violate the testator’s numerous provisions providing for his descendants or issue per stirpes. The directions to the trustees were simple and explicit. They had been followed for almost 62 years. They were not complicated. It is conceded that there is no specific authorization for an assignment nor is there a specific prohibition against an assignment. It is urged that the prohibition against anticipation referred only to obtaining the income before it comes due and payable, the prohibition against an encumbrance refers only to mortgaging the future income in order to obtain current funds and the prohibition against orders in advance forecloses the income beneficiary from selling his rights to individuals and corporations who make a business of purchasing the future rights of a beneficiary at a grossly discounted figure. Assuming these assertions to be true, the implication is quite clear that it was the testator’s intention to forbid the income beneficiary from disposing of the income in any manner prior to the time that he or she was entitled to receive it.

Appellants rely heavily on Blair v. Linn, 274 Ill App 23. In that case the will provided that the income should be paid to the testator’s wife and to his son “directly upon their separate order and receipt therefor,” etc. (Emphasis supplied.) In Blair, the court properly stated that the word “order” means a writing requiring the party to whom it is addressed to deliver property of a person making the order to someone therein described. Thus, the language of the Blair will clearly implied permission to do the very thing that was done by the assignments there discussed. In the Leiter will, there is no language supporting any such implication and in fact the clear implication from the words prohibiting “orders in advance” is just the contrary.

It is suggested that in any event the court should permit a deviation from the precise terms. The income beneficiary paid income taxes on income in excess of $200,000, and if the assignments were valid, it is suggested that both the income beneficiary and the assignees would pay a reduced income tax and thus everybody would be benefited and this would meet the approval of the testator were he now living. The difficulty with this argument is that it is doubtful that these assignments would save tax. Commissioner v. Bosch, 387 US 456, 18 L Ed2d 886, 87 S Ct 1776. In addition, the benign and beneficent objective of lawfully avoiding the payment of income taxes furnishes no sound basis for rewriting the will of the testator. The cold blunt fact was that in 1904, the testator had never heard of income taxes — and neither had anyone in this country. This is not a circumstance that warrants a deviation from the administrative provisions of a trust where the deviation would benefit all of the beneficiaries. We have already pointed out that not all of the descendants of the income beneficiaries were benefited by the assignment or the Bahama Trust. Accordingly, the deviation because of income tax consideration is unwarranted. Chicago Title & Trust Co. v. Schwab, 347 Ill App 233, 106 NE2d 857.

Neither is this income tax situation within the terms of an. “emergency” which will justify a court of equity in breaking in upon the terms of the will and ordering a disposition of trust property contrary to its terms. A set of circumstances which has existed for 50 years can hardly be termed an emergency in its 51st year. The case is not within either the facts or the intent of Thorne v. Continental Illinois Nat. Bank & Trust Co. of Chicago, 18 Ill App2d 163, 151 NE2d 398. Accordingly, we hold that the assignments here involved are a nullity and that there are no circumstances which would justify a court of equity permitting a deviation from the terms of the will or from a practice in the administration of the trust which has persisted for more than 60 years. The judgment of the trial court is affirmed.

Affirmed.

CRAVEN and TRAPP, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clarence Carroll (Impleaded), Defendant-Appellant.
    Gen. No. 51,308. (Abstract of Decision.)
    First District, Third Division.
    October 17, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Justine Knipper and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Arnold F. Block, and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE SCHWARTZ. Not to be published in full.


author: CULBERTSON, J.

text:
    Lewis T. Greim, Plaintiff-Appellee, v. Sharpe Motor Lines, a Corporation, Defendant-Appellant.
    Gen. No. 67-86.
    Third Judicial District.
    October 23, 1968.
    Rehearing denied November 20, 1968.

      Coyle, Stengel, Gilman & Keefe, of Rock Island, for appellant.
    Reidy, Katz, McAndrews, Durkee & Telleen, of Rock Island, for appellee.
   CULBERTSON, J.

Defendant, Sharpe Motor Lines, appeals from a verdict and judgment of $23,000 for the plaintiff, Lewis F. Greim, in his action to recover for personal injuries and property damage already sustained on August 6, 1964, in a vehicular collision at a Moline street intersection. Complaint is made of rulings on evidence and of jury instructions, and it is also contended that the verdict was excessive.

Due to the nature of the questions raised here, there is no need to set forth the details of the occurrence other than to say, generally, that the collision happened as defendant’s southbound truck sought to make a left-hand turn across a lane of traffic occupied by plaintiff’s northbound automobile. Plaintiff was hospitalized for sixteen days and treated for various injuries, including one diagnosed as traumatic myositis, or strain, of the muscles of the neck. According to plaintiff’s evidence, the effects of the latter injury have persisted and worsened with baleful consequences to plaintiff, both physical and economic. It is the position of defendant that the neck injury was not proximately caused by the occurrence of August, 1964, but by a prior automobile accident of 1957, and it is broadly stated that rulings on evidence by the trial court prevented defendant from presenting this defense to the jury. No contention is made that the verdict of the jury was against the manifest weight of the evidence.

During his direct examination, plaintiff testified that he had been involved in an automobile accident in 1957, wherein he had sustained a whiplash injury to his neck. He stated that there had been no hospitalization other than the taking of x rays; that he had used a traction device at home for a time; and that he had received periodic treatments in the office of Dr. Dasso, an orthopedist. Continuing, plaintiff testified that he had fully recovered from the 1957 injury about one year after his treatment had ceased and that while he had subsequently seen a doctor about other ailments, he had not been treated again for the neck injury in the interval between 1958 and August 6, 1964. On cross-examination, he admitted that he had started a lawsuit as a result of the 1957 accident, and stated that it had been settled out of court. Following this, counsel for the defendant produced a copy of the complaint filed in the prior suit, and, apparently reading from it, inquired of plaintiff if it did not contain allegations indicating permanent injury. An objection to the question was overruled and plaintiff answered that the complaint contained the allegations specified. Thus, we are moved to observe, even if it can be said, as defendant seems to feel, that the part of the prior complaint in question did in fact contradict plaintiff’s direct testimony as to the permanency of the 1957 neck injury, defendant was successful in impeaching the witness before the jury. Immediately thereafter, however, rulings of the trial court stifled efforts of defendant: to inquire whether the prior complaint had not alleged that plaintiff had received severe injuries about his head, neck, spine, back, arms, legs and nerves; to ask whether it had alleged that plaintiff had been compelled to expend large sums for medical and surgical expenses; and to learn the name of the attorney who had represented plaintiff in connection with the 1957 accident. It is now contended that the latter rulings of the court erroneously prevented defendant from impeaching the plaintiff.

The record shows that the prior complaint was not signed by plaintiff, but by an attorney on his behalf, and plaintiff testified that he was unaware what his attorney had filed. Under the circumstances, and bearing in mind that the prior complaint did not relate to the occurrence at issue in the trial, see: Carlson v. New York Life Ins. Co., 76 Ill App2d 187, 222 NE2d 363; McGourty v. Chiapetti, 38 Ill App2d 165, 186 NE2d 102, there is in our mind a serious question as to whether plaintiff could properly be impeached from a document which was the product of the attorney and of which plaintiff had no knowledge as to its contents. (See: Wendzinski v. Madison Coal Corp., 282 Ill 32, 37, 118 NE 435; Taylor v. Alton & E. R. Co., 258 Ill App 293, 299-300; Hobart v. O’Brien, (1st Cir) 243 F2d 735, 744; Jimenez v. Starkey, 85 Arizona 194, 335 P2d 83, 84.) It is enough to say, however, that the evidence excluded by the trial court’s limitation of the cross-examination did not in our opinion serve to impeach the plaintiff. On his direct examination, plaintiff testified that he had received a whiplash injury to his neck and was not asked, and did not say, that it was the only injury received in the 1957 accident. Accordingly, there was no inconsistency with the allegation of the prior complaint that plaintiff had received injuries to his head, neck, back, spine, arms, legs, body and nerves. Similarly, there was no marked inconsistency with the allegations of the complaint that plaintiff had expended large sums for medical and surgical services. While plaintiff was not questioned on direct examination as to the medical expenses incurred, he testified that he had x rays, a traction device and periodic treatments at the office of Dr. Dasso and it must be presumed that such services were not free. Finally, and so far as the jury was concerned, the disclosure of the name of the attorney who had represented plaintiff in the 1957 matter would not have served to impeach anything testified to by plaintiff on direct examination. The record shows that the name of the attorney was on the complaint and had the defendant wished to call him to establish plaintiff’s knowledge of the contents of the prior complaint it was at liberty to do so.

While the defendant was presenting its case, the court refused to receive a copy of the prior complaint into evidence and it is now urged that the exhibit was admissible both for purposes of impeachment and as substantive evidence that plaintiff’s neck injury had been proximately caused by the 1957 accident. What has already been said disposes of the matter of impeachment, and in our opinion the claim that the exhibit should have been received as substantive evidence relating to the issues of the case is equally untenable. The theory that plaintiff’s neck injury was caused by the prior accident was an affirmative defense and defendant had the burden of proof on such point. And as is shown more fully by the extended discussion of the problem in Marut v. Costello, 53 Ill App2d 340, 202 NE2d 853, and Caley v. Manicke, 29 Ill App2d 323, 173 NE2d 209, the allegations of injury contained in the prior complaint could have no relevancy unless, and until, defendant produced competent medical proof that a reasonable connection existed between the 1957 injury and the injury for which recovery was sought in the present action. Defendant failed to produce this connecting proof, and the trial court properly refused to accept the exhibit as substantive evidence.

In like manner, the court did not err in refusing to permit defendant to introduce a 1957 photograph, which portrayed plaintiff using a traction device on his neck. It could not serve to impeach plaintiff, since he testified freely on his direct examination that he used such a device after the 1957 accident, and, on the state of the record, could have no relevancy on the question of whether there was a connection between the neck injuries suffered in 1957 and 1964.

Defendant’s next contention centers around the testimony of Dr. Francis J. Cenedella, who had been plaintiff’s regular physician since 1950. This witness recounted in sequence his treatment of the plaintiff for such things as prostate trouble, nervousness, and internal complaints over the years, and then testified in detail as to the injuries received by plaintiff in the 1964 accident, their treatment, the response to treatment, and as to plaintiff’s physical state when last examined. So far as the 1957 neck injury was concerned, the doctor said he had seen the plaintiff three times in connection therewith, once at the hospital and twice in his office, but did not thereafter treat him, inasmuch as plaintiff went to Dr. Dasso. Immediately after his detailed examination concerning the 1964 neck injury and its effects, the witness expressed the opinion that the injury and condition he had treated weré causally related to the accident, and the further opinion that the “condition of the patient observed (by him)” might or could be permanent. Although we do not find the point was preserved for review by a clear and proper objection, defendant argues here that it was error to permit the doctor to express the latter opinion for the reason that it is impossible to know whether the word “condition” in the phrase quoted above, had reference to plaintiff’s prostate trouble, his internal complaints, his nervousness or his physical condition resulting from the 1964 accident. To our minds this argument is a ponderous exercise in semantics based upon an unwarranted isolation of one phrase of many pages of testimony. When the entire testimony of the witness is read in proper sequence, any person of average intelligence, be he juror, judge or lawyer, would know and understand that the doctor was expressing an opinion as to the permanency of the conditions he observed as a result of the injuries incurred in the 1964 accident.

The first medical witness to testify was Dr. Harold Jersild, an orthopedic surgeon, to whom plaintiff had been referred by Dr. Cenedella. On cross-examination by defendant, he testified without objection that since plaintiff had incurred a neck injury in 1957, it could be possible for the latter to simulate the symptoms of a neck injury at the present time. (See: Levitan v. Chicago City Ry. Co., 207 Ill App 384.) Thereafter, when Dr. Cenedella was being cross-examined by defendant he was asked: “Doctor, do motives of gain or emotional gratification sometimes play a part in a patient’s illness or recovery?” An objection by plaintiff was sustained, and it is now contended that the question did no more than to inquire if a person educated in the symptoms from a previous experience might not simulate an injury, and that the court’s ruling “precluded every possibility” for the jury to infer that plaintiff’s complaints in the present case were simulated. We cannot agree with the construction defendant now puts on the question. Quite obviously it went beyond a mere inquiry into simulation and, we believe, bordered on the irrelevant. Most certainly, in light of Dr. Jersild’s cross-examination and further cross-examination of Dr. Cenedella in a similar vein, there is no merit to the contention that the ruling on this single question precluded the jury from considering the matter of simulation.

When Dr. Cenedella was questioned by plaintiff on redirect examination, he was asked if he had any reason to believe plaintiff was simulating anything in the two and one-half years which had intervened since the 1964 accident. To this question he responded “no,” and added that “I always give the patient the benefit of the doubt.” No motion was made to strike the voluntary statement of the witness and the only objection made to the question was that it was not proper redirect examination. Accordingly, we are not at liberty to consider the objection now made that the statement and question usurped the function of the jury to determine one of the ultimate issues of the case. A specific objection is a waiver of all grounds not specified, and we cannot say an objection that a question is not proper redirect examination raises or preserves the point that the question invaded the province of the jury. (Cf. City of Chicago v. Saldman, 225 Ill 625, 80 NE 349.) Furthermore, it is axiomatic that objections to evidence cannot be made for the first time on review. DeMarco v. McGill, 402 Ill 46, 83 NE2d 313; Sundstrom v. Village of Oak Park, 374 Ill 632, 30 NE2d 58.

Plaintiff’s Instruction No. 6 was an issues instruction and, among other things, advised the jury of plaintiff’s claim that “defendant was negligent in one or more of the following respects : ... (2) Made a left turn into the left side of plaintiff’s automobile from a direct southerly course at a time when plaintiff’s vehicle was proceeding straight northerly across the intersection on a green signal for northbound traffic. . . .” Defendant objected at the conference on instructions that there was no evidence from which the jury could conclude that defendant’s vehicle had struck the left side of plaintiff’s car and, relying upon those decisions which hold it to be erroneous to give an instruction for which there is no support in the evidence, (e. g., Bums v. Stouffer, 344 Ill App 105, 100 NE2d 507; Fraider v. Hannah, 338 Ill App 440, 87 NE2d 795), it renews that objection here. On examination of the record we must agree that the tenor of all the evidence was that defendant’s truck had started its left turn and was struck by plaintiff’s car as the collision occurred, and that there was no evidence that the truck struck the left side of plaintiff’s car as stated in the instruction. It is clear, however, that this deficiency does not warrant a reversal. Since it was an issues instruction, presenting multiple theories, the jury could not have been misled. Moreover, there is little doubt about defendant’s negligence, which is not questioned here, and the jury’s verdict finds support and justification in evidence supporting other instructions to the jury.

Defendant further attacks the same instruction on the ground that no companion instruction was given to define the words “proximate cause.” While there are several grounds upon which this contention could be rejected, it is sufficient to say that it was not made at the conference on instructions and may not therefore be considered on appeal. Stewart v. DuPlessis, 42 Ill App2d 192, 191 NE2d 622; Saunders v. Schultz, 20 Ill2d 301, 170 NE2d 163.

Defendant next complains of Plaintiff’s Instructions Nos. 9 and 11, both damage instructions, contending there was no evidence: (a) that plaintiff would suffer a future loss of earnings, and (b) that plaintiff would suffer damage due to the aggravation of a preexisting ailment or condition. Both were IPI instructions and were properly given. Although defendant argues to the contrary, there is competent evidence that plaintiff’s neck injury is permanent and that it has affected his earning capacity and will continue to do so. Similarly, over and above any consideration of the 1957 neck injury, there was evidence that prior conditions of nervousness, headaches and fatigue had worsened as the result of the occurrence which provoked the instant trial.

Objection is also made by defendant to the refusal of the trial court to give its tendered Instruction No. 1 which dealt with the presumption in law that the failure of a party to produce testimony or physical evidence within his control creates a presumption that such evidence, if produced, would have been adverse. (Beery v. Breed, 311 Ill App 469, 36 NE2d 591.) Applied here, it is defendant’s argument that because Dr. Dasso was not called to corroborate plaintiff’s testimony that he had fully recovered from the 1957 neck injury, it was entitled to the presumption that the doctor’s testimony would have been adverse. Dr. Dasso, however, was equally as available as a witness for defendant and could have been produced by reasonable diligence. What is more, the burden of proving the defense that plaintiff’s condition resulted from the 1957 accident was on defendant. The court did not err in refusing the instruction.

For its final contention, defendant asserts that the verdict of $23,000 is excessive and not supported by the evidence, particularly in light of the fact that plaintiff’s special damages totalled $2,270.20. Once again, however, defendant’s position assumes there was no evidence of permanent injury, no evidence of lost earnings, and no evidence that plaintiff’s future ability to earn had been impaired. Refutation for each of these assumptions is found in the testimony of plaintiff, his doctors and his employer, and we cannot say, on the record before us, that the award is so excessive as to indicate passion and prejudice on the part of the jury. Unless a court of review can find that a jury was so motivated, its verdict will not be disturbed on review. Lau v. West Towns Bus Co., 16 Ill2d 442, 158 NE2d 63; Lubin v. Goldblatt Bros., Inc., 37 Ill App2d 437, 186 NE2d 64.

We conclude, therefor, that the amount of the verdict was supported by the evidence and since no reversible error occurred at the trial, the judgment appealed from is affirmed.

Judgment affirmed.

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


text:
    Wallace Nursing Home, Inc., a Corporation, Plaintiff-Appellee, v. Mercantile Mortgage Company, a Corporation, Defendant-Appellant.
    Gen. No. 67-131. (Abstract of Decision.)
    Fifth District.
    October 26, 1968.

      Burton C. Bernard, of Granite City, Thompson, Mitchell, Douglas & Neill, and Edwin D. Akers, Jr., of St. Louis, Missouri, for appellant; John J. Hoban, of East St. Louis, for appellee.
   Opinion by JUSTICE GOLDENHERSH. Not to be published in full.


text:
    Carol Jo Mahan, Also Known as Carol Jo Bratton, Plaintiff-Appellee, v. Jerry Mahan, Defendant-Appellant.
    Gen. No. 10,995. (Abstract of Decision.)
    Fourth District.
    November 12, 1968.
    Unger and Stewart, of Danville, for appellant; no appearance made in behalf of appellee.
   Opinion by JUSTICE CRAVEN. Not to be published in full.


text:
    Commercial Products Corporation, an Illinois Corporation, Plaintiff-Appellant, v. Theodore W. Briegel, Sr., Theodore W. Briegel, Jr., All-Steel Equipment, Inc., an Illinois Corporation, and T. W. B. S., a Corporation, Defendants-Appellees.
    Gen. No. 68-10.
    Third Judicial District.
    November 22, 1968.

      Perona & Perona, of Spring Valley, for appellant.
    Black, Black & Borden, of Peoria, and McDermott, Will & Emery, of Chicago, for appellees.
   CULBERTSON, J.

Plaintiff, Commercial Products Corporation, appeals from a summary judgment which, on the basis of pleadings, depositions, affidavits and counteraffidavits, was entered by the Circuit Court of Henry County in favor of defendants named in a five-count complaint that pleaded multiple causes of action.

On or about January 1, 1964, the defendants Theodore W. Briegel, Sr., and Theodore W. Briegel, Jr., were partners in the Briegel Method Tool Company, and were also the principal shareholders in a corporation styled as the B. M. Fitting Corporation, hereinafter referred to as BMFC. At the time, both the partnership and the corporation were indebted to Stephen Tonchen for a judgment of $200,000, and the Briegels seem to have been preoccupied with the discharge of such obligation. Sometime early in the year, Conrad Dyke, president of the plaintiff Commercial Products, discussed with Briegel, Sr., the possibility of obtaining financing with which to satisfy the judgment. Nothing came of the proposal, however, and on May 16, 1964, Tonchen accepted a note for $204,485.56 signed by the BMFC corporation “and others,” which was secured by real and chattel mortgages on corporate property. During August, 1964, the relationship again became critical when Tonchen brought a suit against BMFC for wrongful discharge and lost salary, and exerted a claim for royalties allegedly due him.

Late in August, 1964, the defendant All-Steel Equipment Company, Inc., became interested in the purchase of BMFC and, for a period of two months thereafter, its representatives engaged in discussions and negotiations with the Briegels and their attorneys. On October 20, 1964, a draft of a proposed agreement was prepared, one provision of which was that BMFC would be required to obtain, prior to closing, a release of all of Tonchen’s claims. However, on October 26, 1964, Tonchen filed a suit to foreclose his mortgages and the active negotiations of All-Steel came to a halt. During November, 1964, representatives of All-Steel did make inquiries as to the status of the BMFC matter, being told on one occasion that the Briegels were considering a proposition made by Dyke, and on a second that the deal with Dyke was going to be closed.

About the time negotiations with All-Steel came to a standstill, Dyke had lunch with the Briegels and expressed an interest in purchasing BMFC on the same terms proposed by All-Steel. Thereafter, on November 6, 1964, the parties and their attorneys met to discuss the matter, and as a result an offer by the Briegels to sell all their stock in BMFC to the plaintiff (Commercial Products) was drafted and signed by the Briegels on November 9,1964. The offer contained certain conditions precedent, to be discussed later, one of which required compliance on or before December 1, 1964, and also provided that the closing date was to be on or before December 31, 1964. What occurred on and around December 1, 1964 shall be subsequently set forth. For now, however, it is sufficient to say that those representing the Briegels took the position that the conditions imposed had not been met thus nullifying the offer, while those representing plaintiff believed there had been compliance and continued to make preparations for a December 31,1964, closing.

On December 17, 1964, Duane P. Benson, one of the BMFC attorneys, met with representatives of All-Steel and advised them that the Briegels were no longer obligated under the offer to plaintiff and were free to negotiate with All-Steel. At the same time, Benson sought to negotiate on the basis of a purchase by All-Steel without need of a release from Tonchen, but was informed that All-Steel would not be interested in a purchase until a release was obtained. In an affidavit filed in opposition to the motions of defendants for summary judgment, Dyke’s attorney stated that he and his client had gone to Benson’s office on December 31, 1964, for the purpose of closing but were told the deal between the Briegels and plaintiff was off.

During the next three months Dyke and Benson had several meetings and exchanges of correspondence. On the one hand, Dyke adopted the position that the Briegels’ offer was binding upon them and sought to suggest various ways in which a final closing could be agreed upon and made; Benson, on the other hand, embraced a position that the offer was not binding, but that the Briegels were willing to hear and consider any new proposal Dyke might have. The exchange terminated, and Dyke did not negotiate further, after Benson wrote on March 3, 1965: “If you have any serious proposal to make to the company, I repeat at this time you should have your attorney draw up a definite offer of purchase.”

Late in March, 1965, Benson started direct negotiations with Tonchen to settle the latter’s claims, and when success appeared imminent he contacted All-Steel and was assured that the figures employed in All-Steel’s proposal of October, 1964, were still firm. On March 30, 1965, the Tonchen matters were cleared up to the apparent satisfaction of all concerned. Subsequently, on April 15, 1965, final negotiations were entered into with All-Steel and the latter purchased BMFC about May 15, 1965.

This action was started by Commercial Products on November 8, 1965, and, as has been noted, was culminated in the trial court with the entry of a summary judgment for the defendants. The purpose of summary judgment procedure is not to try facts, but to determine whether a genuine issue exists as to any material fact which would require a trial (Allen v. Meyer, 14 Ill2d 284, 152 NE2d 576; Welsh v. Centa, 75 Ill App2d 305, 221 NE2d 106), and thus the scope of our review is to determine if the trial court correctly decided there were no such factual issues in this case.

Count I of the complaint proceeds on the theory that the Briegels’ offer to sell their stock ripened into an enforceable contract by virtue of plaintiff’s compliance with its conditions within the time limited (see: Keller v. Reed, 347 Ill 645, 180 NE 459; Arentsen v. Sherman Towel Service Corp., 352 Ill 327, 185 NE 822), and prays for specific performance. And it is apparent that Counts II and IV of the complaint must stand or fall with Count I, for each is predicated on the existence of the contract. Specifically, Count II seeks to recover $100,000 in damages from the Briegels for damages and expenses allegedly incurred by plaintiff as a result of their failure to perform, while Count IV alleges that plaintiff became the equitable owner of the Briegel stock by virtue of the contract and prays that All-Steel be required to give an accounting or, in the alternative, that the sale to All-Steel be declared a nullity. In entering summary judgment, the trial court necessarily found that an enforceable contract had not come into being, and our first inquiry must be as to whether there existed a genuine issue of fact with respect to such question.

Pertinent background shows that the Briegel offer, or option, of November 9, 1964, provided in part:

“This letter is given as assurance to you that if on or before December 1, 1964, you are able to obtain from one Stephen Tonchen a full release of all his claims and demands against the B. M. Fitting Corporation (herein called BMFC), its officers, directors and stockholders, Briegel Method Tool Company (a partnership) and the latter’s partners, in form satisfactory to our counsel (it being understood, however, that you may take an assignment from Mr. Tonchen of his existing note and mortgages against BMFC), that the undersigned parties will sell to you all of their capital stock in BMFC on the following terms and conditions:
(( • • •
“4. It is agreed and understood that you will notify either the undersigned parties or their attorneys (in either Wyoming or Moline, Illinois) in writing of any settlement on or before December 3, 1964. Failure to effect such notice and deliver attendant settlement papers on or before that date shall release the undersigned from any obligation incident to the fulfillment of this obligation.” (Emphasis added.)

In response to the foregoing conditions, plaintiff, through its president Dyke, entered into an agreement with Tonchen which, among other things, provided: (1) That Tonchen, upon being notified that the Briegels had placed 75% of their stock in the hands of an escrow agent and upon being paid $100,000, would assign his real and chattel mortgages to plaintiff; and (2) that Tonchen would deliver to the escrow agent a release of all his claims against BMFC, its officers, directors and stockholders. Other provisions validated the disputed claims that Tonchen was making for salary and royalties and stated that they would be paid out of the profits of BMFC after its purchase by plaintiff. And although the agreement was dated December 1, 1964, it is patent from the record that it was not finalized and executed until Decernber 2, 1964, one day after the date fixed in the offer. Benson did not receive a copy of the agreement until December 14, 1964, and it appears that the release and assignment referred to in the agreement were not drafted until the latter part of the month and were never executed.

We are of the opinion the trial court correctly found that plaintiff had not complied with the terms of the offer, and, on the basis of the admitted facts before it, properly entered summary judgment for the defendants on these counts. While it would appear to be questionable as to whether an agreement to give an assignment and release in the future met the terms of the offer, we are not limited to such a narrow ground in arriving at our decision. By the terms of the offer a complete and satisfactory disposition of Tonchen’s claims was made to be of primary importance and, construing the offer in the light most favorable to plaintiff, the latter either had to obtain a “full release” running to both the corporation and the partnership, as well as the individuals connected with each, or to procure an assignment of Tonchen’s “note and mortgages.” The agreement with Tonchen failed to accomplish either alternative. It provided only for a release of the corporation and its officers, directors and stockholders, and failed to provide for the release of the partnership, a separate legal and business entity, and the individual partners, as the offer required. Similarly, although the offer necessitated the assignment of both the note and the mortgages securing it, the agreement provided only for an assignment of the mortgages, as did the later draft of the assignment that was never executed. Our courts have long held that a mortgage is deemed a mere incident to the mortgage debt, and that an attempt to assign the mortgage without any transfer of the debt will not pass the mortgagee’s interest to the assignee, but is a nullity. (Delano v. Bennett, 90 Ill 533, 536; Elvin v. Wuchetich, 326 Ill 285, 288, 157 NE 243; Reeve, Illinois Law of Mortgages and Foreclosures, Vol 1, § 256, p 308.) As to these aspects, therefore, where the express language of the offer and the agreement control, there was no disputed issue of material fact and summary judgment was proper.

Count III of the complaint alleged that plaintiff had secured a commitment from Country Life Insurance to finance BMFC with a loan of $200,000, and prayed for the sum of $10,000 in payment for plaintiff’s services in connection therewith. As to this count, we need look no further than the deposition of Dyke to conclude that summary judgment for the defendant was proper. Dyke testified that no fees are due in such transactions until a commitment is made and, completely refuting the allegations of the complaint, admitted that he had not obtained a loan commitment from the insurance company. In the face of such admissions there were, and could be, no genuine factual issues which would require a trial.

The final count of the complaint, Count V, charges that the Briegels and All-Steel “conspired” to “defraud” the plaintiff, that the assets of BMFC were “fraudulently” sold to All-Steel pursuant to such conspiracy, and that plaintiff suffered damages thereby in the amount of $100,000. It has been consistently held in Illinois that the gist of a civil action based upon a conspiracy is not the conspiracy or combination in itself, but rather the overt acts committed in pursuance of the conspiracy. (John Deere Co. v. Metzler Bros., 51 Ill App2d 340, 201 NE2d 478; Ammons v. Jet Credit Sales, Inc., 34 Ill App2d 456, 181 NE2d 601.) In other words, in order to render a conspiracy actionable, the conspiracy must be followed by a wrongful overt act in furtherance thereof. (Kovar v. Bremer, 294 Ill App 225, 13 NE2d 656.) And while, as appellant says, the conspiracy and combination itself must, in most cases, be established by circumstantial evidence and legitimate inferences arising therefrom (e. g. Majewski v. Gallina, 17 Ill2d 92, 99-100, 160 NE2d 783), it is nonetheless incumbent upon a plaintiff to allege and prove wrongful overt acts (or acts which, because of the object of the conspiracy may be deemed wrongful), in furtherance of a conspiracy before a cause of action will lie. As stated in 11 ILP, Conspiracy, § 32, p 110: “The wrongful acts done in pursuance of the objects of the conspiracy, which constitute the gravamen of the action, should be set forth with particularity, . . . .” Count V of the complaint is manifestly inadequate in this regard. It merely alleges in a conclusionary fashion that defendants “did conspire and agree to defraud the plaintiff and sell the assets of BM Fitting Company without the plaintiff’s knowledge and consent,” and that “pursuant to said conspiracy ... a fraudulent sale was effected.” Under the circumstances, it must be held that no wrongful overt acts, or overt acts which could be deemed wrongful, have been pleaded which could possibly lead to an inference of conspiracy on the part of defendants. (Cf. Bertash Market Co. v. Brown, 70 Ill App2d 8, 217 NE2d 362; Lytton v. Cole, 54 Ill App2d 161, 203 NE2d 590.)

Nor does it appear on this record that any such facts could have been alleged and proved. Clearly there could have been no conspiracy to induce a breach of contract, as plaintiff argues, for the contract never came into existence due to plaintiff’s failure to comply with the terms of the offer. And just as clearly, the admitted facts and circumstances do not permit an inference that the Briegels and All-Steel conspired to defraud the plaintiff. Indeed, Dyke admitted in his deposition that he did not believe All-Steel was responsible for the Briegels’ failure to sell their stock to plaintiff under the offer, or option, of November 9, 1964. Furthermore, there are no facts which permit a conclusion that All-Steel was guilty of concealment, misrepresentation or wrongful inducement, all of which elements are necessary in an action for conspiracy to defraud. (See: Cibis v. Hunt, 48 Ill App2d 487, 199 NE2d 246.) To the contrary, the admitted facts show that All-Steel and the Briegels did not even negotiate with each other so long as plaintiff’s option was outstanding. It is true that All-Steel made inquiries as to the status of their own offer and of the deal with plaintiff, but these circumstances alone are insufficient to support an inference of fraud. On the state of the record it was apparent that there was no material issue of fact relative to Count V, and that nothing remained for trial.

The judgment of the circuit court of Henry County was correct and is therefore affirmed.

Judgment affirmed.

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


author: MR. JUSTICE DAVIS

text:
    William F. Whittingham and Marie Whittingham, His Wife, Plaintiffs and Appellees, v. Village of Downers Grove, Defendant and Appellant.
    Gen. No. 68-42.
    Second Judicial District.
    November 21, 1968.

      Raymond S. Osheroff, Schiff, Hardin, Waite, Dorschel and Britton, of Chicago, and Gordon C. Bunge, of Downers Grove, for appellant.
    Hooper, Bowers, Calkins & Carney, of Downers Grove, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiffs brought this suit to have the defendant’s zoning ordinance declared invalid as applied to their property. The trial court, in a bench trial, entered judgment for the plaintiffs, from which the defendant appealed.

In support of their case, the plaintiffs offered two expert witnesses, in addition to the testimony of one of the plaintiffs. The defendant offered no evidence, other than one exhibit which showed the subdivision in question at the time prior to its resubdivision. Instead, it elected to rely upon the evidence presented by the plaintiffs, the presumption favoring the validity of its zoning ordinance, and its contention that the plaintiffs’ proof was not sufficient to overcome this presumption.

The plaintiffs’ proof indicated that they acquired the property in question in 1954, at which time it was zoned for single-family residence use. In 1965, it was rezoned R-5 for two-family residence use. On February 1, 1966, the plaintiffs filed an application requesting that the property be rezoned R-6 for multiple-family use, which was denied.

The property contains approximately 277 feet fronting on Lindley Street and is approximately 240 feet deep throughout most of the area. It was resubdivided into three lots fronting on Lindley Street in 1965 and at that time it was given a two-family residence zoning classification.

Presently, there is only one frame residence on said three lots. It is located on the middle lot and is used as a two-family residence. The plaintiffs seek to rezone only Lot 3, that being the southernmost lot, nearest Ogden Avenue. Lot 3 has a frontage of 95 feet on Lindley Street. The plaintiffs intend to build a twelve-family apartment building on this lot.

Immediately south of the property sought to be rezoned is an alley. A service station, with a large illuminated sign, is located south of the alley and on the corner of Lindley Street and Ogden Avenue. It fronts on Ogden Avenue — a main thoroughfare — which is developed commercially. To the east of the service station, in the same block and fronting on Ogden Avenue, is a florist shop; to the west, and across Lindley Street, is a pizza parlor. As indicated earlier, the two lots, immediately north of the one in question, are zoned two-family. The balance of the property to the north — on Lindley Street — is zoned single-family. The record is not clear as to whether the service station and the large illuminated sign were both in existence when the plaintiffs purchased the property; however, the other business uses were. The blocks to the east and to the west of Lindley Street are built up with single-family residences.

The plaintiffs’ witnesses testified that the land in question, as presently zoned, had a value of approximately $7,500. They were of the opinion that if zoned for multipie-family use, it would then be worth up to $30,000. Both witnesses were of the opinion that the zoning sought by the plaintiffs would have no depreciating effect on the surrounding property. They testified that the single-family dwellings on Lindley Street were modest and well-maintained; that the street itself was asphalt with no curbs or walks; and that the homes in the immediate vicinity suffer a depreciating effect from the commercial developments along Ogden Avenue. It was their opinion that the multiple-family zoning — adjoining the two-family zoning immediately to the north — would provide a buffer from the commercial development along Ogden Avenue.

Both expert witnesses testified that the highest and best use of the premises was for multiple-family use. One of the experts stated that in reaching this conclusion, he regarded the highest and best use as that calculated to give the greatest net return to the owner, keeping in mind that such use must be compatible with the existing uses in the area and that no undue depreciation accrues to the adjoining owners. These witnesses also testified that there were multiple-family developments adjoining commercial properties elsewhere along Ogden Avenue; and that there was a need for apartment units in the Village.

The various legal principles and factors relevant to the determination of the validity of a zoning ordinance as applied to particular property are well known, have often been repeated, and need not be set forth in detail here. See: Exchange Nat. Bank of Chicago v. Cook County, 25 Ill2d 434, 440, 185 NE2d 250 (1962); First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 224-227 incl., 130 NE2d 267 (1955).

The defendant stresses that the plaintiffs must prove by “clear and convincing evidence” that the zoning ordinance as applied to plaintiffs’ property is arbitrary and unreasonable and has no substantial relation to the public health, safety or welfare. Stemwedel v. Village of Kenilworth, 14 Ill2d 470, 474, 153 NE2d 79 (1958). The plaintiffs concede that this is their burden and assert that their undisputed evidence is sufficient for this purpose.

Whether the plaintiffs’ evidence is sufficient to sustain their burden does not rest on any one particular factor. It is the totality of the facts in each particular case that determines its outcome and the existing uses and zoning classifications of nearby property are the factors of paramount importance. Ryan v. City of Elmhurst, 28 Ill2d 196, 198, 190 NE2d 737 (1963); First Nat. Bank & Trust Co. of Evanston v. County of Cook, 15 Ill2d 26, 31, 153 NE2d 545 (1958); Kellett v. County of DuPage, 89 Ill App2d 437, 442, 443, 231 NE2d 706 (1967).

The plaintiffs’ evidence was undisputed. Their witnesses stated that the requested zoning would have no deleterious or depreciating effect on the nearby properties; that the value of such properties as single-family residences had already been depreciated to the maximum because of the commercial uses in the area; and that the proposed use would have no adverse effect on the commercial uses to the south, to the east and to the west, or on the two-family use, immediately to the north.

The plaintiffs offered evidence to show that the denied rezoning would be beneficial to them and not harmful to the public, and, the defendant did not controvert the plaintiffs’ evidence that the present zoning does impose a substantial hardship on the plaintiffs. In proper cases, our courts have held that undisputed evidence of a substantial hardship upon a landowner resulting from a zoning classification, without a gain of some significance resulting to the public therefrom, warrants a court to declare the zoning restriction unconstitutional. Chicago Title & Trust Co. v. Village of Wilmette, 27 Ill2d 116, 125, 126, 188 NE2d 33 (1963); Weitling v. County of DuPage, 26 Ill2d 196, 199, 186 NE2d 291 (1962); Kovack v. Village of La Grange Park, 18 Ill2d 233, 236, 237, 163 NE2d 451 (1960). These cases hold that it is not the owner’s loss of value alone that is significant, but the fact that the public welfare does not require the restrictions and the resulting loss. The rule does not relieve the plaintiff of proving that the zoning classification in question constituted an arbitrary, discriminatory or unreasonable municipal action.

In Stemwedel v. Village of Kenilworth, supra, at page 474, the court stated:

“It is undisputed that the plaintiff sought appropriate relief both before the board of appeals and from the village authorities. Having applied in the first instance for administrative relief he is entitled to maintain the present suit. . . . But to sustain the burden of proving invalidity of the restriction it is not enough to show that it works a hardship on the owner, or that a desired variation would not substantially impair the public health, safety, comfort, morals, or general welfare. One who assails its constitutionality as applied to a particular property must prove by clear and affirmative evidence that it constitutes arbitrary, discriminatory, or unreasonable municipal action, and that it will not promote the safety and general welfare of the public. (Rams-Head Co. v. City of Des Plaines, 9 Ill2d 326; First National Bank v. County of Lake, 7 Ill2d 213.) A presumption favoring validity always obtains where the proper authorities adopt a zoning ordinance pursuant to a legislative grant, and the burden is on the property owner to overcome it. Reitman v. Village of River Forest, 9 Ill2d 448.”

However, the plaintiffs’ testimony also conclusively established that the plaintiffs’ property is located in an area which is single-family residential and abuts a commercial strip fronting on Ogden Avenue; that Lindley Street, with the exception of a vacant lot and plaintiffs’ two-family residence, is completely built up with single-family residences; and that the block to the east and to the west of Lindley Street are completely single-family.

While the trial court found that the plaintiffs’ evidence was clear and convincing as to the invalidity of the zoning ordinance as applied to their property, we do not believe that it gave due weight to the presumption of the validity of the ordinance. On the record we cannot say that the R-5, two-family zoning, as applied to the plaintiffs’ property, has no reasonable relationship to the purposes of the police power. It cannot be denied that the two-family classification would serve as a buffer between the business uses on Ogden Avenue and the single-family uses on Lindley Street, and on the block to the east and to the west.

It is the primary province of a municipal body to draw the demarcation line for zoning uses; and where there is room for a legitimate difference of opinion concerning the reasonableness of an ordinance governing the use of private property or where the question of reasonableness is fairly debatable, the courts will not interfere with the legislative judgment. Stemwedel v. Village of Kenilworth, supra 475, 476.

In Kellett v. County of DuPage, supra, at page 442, we stated:

“A presumption exists in favor of the validity of the existing zoning ordinance, and to overcome this presumption the plaintiffs must establish by clear and convincing evidence that, as applied to their property, the ordinance is arbitrary and unreasonable and without substantial relation to the public health, safety, comfort, morals or general welfare. Bennett v. City of Chicago, 24 Ill2d 270, 273, 274, 181 NE2d 96 (1962); Padgett v. City of Oakbrook Terrace, 89 Ill App2d 244, 231 NE2d 466 (1967); Mutz v. Village of Villa Park, 83 Ill App2d 1, 8, 9, 226 NE2d 644 (1967). Within these limits, the fixing of zoning lines is a matter of legislative discretion. Thus, the party challenging the validity of the ordinance has the burden of proving by clear and convincing evidence that the City has abused its legislative discretion in classifying the subject property in a given manner. Such proof must establish not merely that the property could reasonably be classified as plaintiffs wish, nor indeed that the court would classify it otherwise. The plaintiffs must establish that the legislative decision as to the property is ‘clearly unreasonable’ in order to show an abuse of discretion. Jans v. City of Evanston, 52 Ill App2d 61, 68, 201 NE2d 663 (1964).”

This statement is applicable to the case at bar.

Since each zoning case must be determined upon its own unique factual circumstances, a municipality takes a substantial risk when it relies solely upon the facts established by the plaintiffs’ evidence and the presumption of an ordinance’s validity to sustain it. However, in the case at bar we do not believe that the evidence is clear and convincing that the zoning ordinance as applied to plaintiffs’ property is unreasonable and arbitrary and bears no reasonable relation to the public health, safety and welfare. There is room for a legitimate difference of opinion concerning the reasonableness of the ordinance, and this being the case, the legislative judgment is conclusive. Mutz v. Village of Villa Park, 83 Ill App2d 1, 11, 226 NE2d 644 (1967); Koplos v. City of Rockford, 62 Ill App2d 268, 273, 210 NE2d 629 (1965).

Consequently, the judgment of the trial court is reversed.

Judgment reversed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.