author: RYAN, J.

text:
    Geza Lakatos, Lajos Gsonka and Andrew Horvath, Assignees of George Garda, Plaintiffs-Appellants, v. Prudence Mutual Casualty Company, a Mutual Insurance Company, Defendant-Appellee.
    Gen. No. 52,189.
    First District.
    August 1, 1969.

      Jerome H. Torshen, of Chicago (Benjamin H. Cohen, of counsel), for appellants.
    George F. Barrett, of Chicago (Donald Joyce, Sidney Z. Karasik, and Ellis B. Rosenzweig, of counsel), for appellee.
   RYAN, J.

The plaintiffs were passengers in an automobile owned and driven by George Garda. An accident occurred in Pennsylvania and each plaintiff suffered personal injuries. Also damaged in the accident were certain items of personal property belonging to the plaintiffs which consisted primarily of musical instruments. These items were in the Garda vehicle. The plaintiffs instituted suits in Pennsylvania and recovered judgments against Garda for their personal injuries and for damage to their property. The defendant, Prudence Mutual Casualty Company, had issued an automobile liability insurance policy to Garda which covered the automobile involved in the accident and which insured Garda against liability for personal injuries and property damage. Prudence satisfied plaintiffs’ judgments against Garda for personal injuries but refused to pay to the plaintiffs the amount of any judgments relating to property damages. Garda assigned his right of action against Prudence to the plaintiffs who instituted this action against Prudence in the Circuit Court of Cook County, Illinois seeking to recover the amount of the Pennsylvania judgments for damage to their property.

Defendant, Prudence, filed a motion to dismiss the Complaint alleging that the amount the plaintiffs were seeking to recover was for property damage which was sustained while the plaintiffs’ property was being transported by the defendant’s insured, George Garda. The motion alleged that the policy of insurance in question specifically excluded from property damage any injury to or destruction of property transported by the insured. A copy of the policy was attached to the motion. Coverage B of the policy related to property damage. The exclusions portion of the policy provides that: “This policy does not apply. . . .” The policy then lists the various exclusions. Exclusion (f) provides:

“under coverage B, to injury or destruction of property owned or transported by the insured, or property rented to or in charge of the insured other than a residence or private garage injured or destroyed by a private passenger automobile covered by this policy.”

Following a hearing on the defendant’s motion to dismiss the court entered the following order:

“This cause coming to be heard on Motion of Defendant to Dismiss and the court being advised in the premises:
“It is hereby ordered that the Motion to Dismiss plaintiffs’ Complaint is granted. Complaint dismissed.”

The plaintiffs have appealed from this order.

The briefs filed in this court dealt exclusively with the interpretation and the application of Exclusion (f) quoted above. However, for the purpose of oral argument in this court the defendant engaged additional counsel. About ten days before oral argument the new counsel for the defendant filed a Motion to Dismiss Appeal alleging that the order appealed from was not a final and appeal-able order. This court has taken this motion with the appeal and of course, must consider the same before proceeding further.

We feel that the order was final and appealable. The Motion to Dismiss filed in the trial court by the defendant did not address itself to any defects in the allegations or to deficiencies that could have been cured by amendment. It clearly stated that the plaintiffs’ claim was for damage to property which was occasioned while the property was being transported in the Garda automobile and that the policy of insurance excluded such coverage. The motion then prayed “that the plaintiffs’ suit be dismissed at plaintiffs’ cost.” Plainly the motion to dismiss was a motion to dismiss plaintiffs’ suit. It was treated as such by both parties in the trial court and in this court until about 10 days before oral argument. The fact that the handwritten order prepared by counsel for the defendant following the court’s oral ruling on defendant’s motion referred to the motion as a Motion to Dismiss the Complaint and recited “Complaint dismissed,” does not negate the finality of the order.

The defendant contends that the order on its face must provide that the defendant go hence without day or that the plaintiffs’ cause be dismissed. We do not consider such words of art necessary to make an order final if it is, in fact, a final order. The test of finality of the order lies in the substance and not the form. Peach v. Peach, 73 Ill App2d 72, 218 NE2d 504. To be final and appealable the order must terminate the litigation between the parties on the merits of the cause. It need not dispose of all of the issues presented by the pleadings. It must be final in the sense that it disposes of the rights of the parties either upon the entire controversy or upon some definite and separate part thereof. Village of Niles v. Szczesny, 13 Ill2d 45, 147 NE2d 371.

The order of a trial court dismissing or striking a complaint which if affirmed might result in the filing by the plaintiff of a new suit or an amended complaint involving the same cause of action is not final and appealable because the order has not terminated the litigation between the parties. Schoen v. Caterpillar Tractor Co., 77 Ill App2d 315, 222 NE2d 332.

If the order is based upon a technical legal deficiency in the pleadings (Pratt v. Baker, 79 Ill App2d 479, 223 NE2d 865), or upon a matter that can be cured by an amended pleading (Martin v. Masini, 90 Ill App2d 348, 232 NE2d 770) then the order is not final and appealable.

We hold that the order in the present case was a final adjudication of the rights of the respective parties involved. It did not rest upon a technical legal deficiency in the pleadings nor upon a matter that could be cured by an amended complaint. It was entered in response to the prayer to dismiss the plaintiffs’ suit contained in the Motion to Dismiss. A dismissal of the suit and adjudication of the rights of the parties is what was sought and accomplished.

As to the merits of the controversy, we hold that the provisions of Exclusion (f) above quoted applied to the property of the plaintiffs and' that they cannot recover from the defendant.

The plaintiffs insist that the property was not being transported by the insured but was, in fact, being transported by the plaintiffs. They reason that since they were in Garda’s automobile the property was in their possession and was being transported by them and not by Garda. We do not consider the nature of the plaintiffs’ possession or right to possession of the property involved important. They may well have had certain aspects of possession with regard to the property. The fact remains, however, that these items of property were in the insured’s automobile which was being operated by the insured. The insured controlled the movements of the automobile and likewise the movements of the plaintiffs’ property therein. When the insured caused the automobile to move, the plaintiffs’ property likewise moved. When he caused it to stop, the plaintiffs’ property likewise stopped. The insured controlled the speed at which the property was moved from one place to another and the manner in which this was done; that is, either negligently, willfully or wantonly, or with due care. According to the allegations in plaintiffs’ Pennsylvania cases, it was the manner in which these functions were performed by the insured that brought about the damage to the property. Under the terms of the exclusion, we find that the property was being transported by the insured.

The nature of the musical instruments involved (a bass viol, a cello, and a violin) make it unnecessary for us to decide whether a small item of personal property of substantial value which is carried in a pocket or on the person of a passenger comes within the provisions of Exclusion (f). This decision is not to be construed as implying that the same is applicable to such a factual situation.

This case appears to be one of first impression in Illinois. The plaintiffs urge that the term “transported by the insured” is ambiguous; that the ambiguity must be resolved in favor of the insured and that the court should construe this term to apply only to the same types of property referred to in the other classifications listed in this exclusion; that is, property in which the insured has an interest.

We do not consider the language of the Exclusion (f) to be ambiguous. We agree that if the language of a contract of insurance is ambiguous, the construction will be adopted which favors the insured. This principle does not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. O’Daniell v. Missouri Life Ins. Co., 24 Ill App2d 10, 164 NE2d 78. The language of Exclusion (f) lists property owned or transported by the insured or property rented to or in charge of the insured. We can see no reason why each of these classifications of property must be interpreted in a manner consistent with the others. The use of the disjunctive conjunction “or” clearly indicates that each listing is a separate and distinct class of property included in the exclusion. If the disjunctive conjunction “or” is used, the various members of the sentence are to be taken separately. Central Standard Life Ins. Co. v. Davis, 10 Ill App2d 245, 134 NE2d 653.

We consider the language of the exclusion clear and we must give the words thereof their ordinary meaning. If we were to exclude passengers’ property in the insured vehicle from the provisions of the exclusion, we would under the guise of construction be making a new contract of insurance by writing therein a specific exception through construction. This, we cannot do. Yadro v. U. S. Fidelity & Guaranty Co., 4 Ill App2d 477, 124 NE2d 370. The language of Exclusion (f) in the past was interpreted to include within the meaning of property, as that term was used in the exclusion, a residence or private garage owned by or rented to the insured. In order to eliminate this type of property from the exclusion a separate provision was incorporated in the standard exclusion clause which specifically exempts a residence or private garage owned by or rented to the insured. Appleman Insurance Law and Practice, Vol 7, § 4328. If a similar exception is to be made as to the property of passengers which is being transported by the insured this exception should likewise be written into the policy and not placed thereby in interpretation of language which is clear and unambiguous.

The plaintiffs insist that the insurance companies understand that the exclusion is not intended to apply to property of the insured’s passengers being transported in the insured’s automobile. In the plaintiffs’ opinion this explains the absence of judicial authority interpreting the term “transported by the insured.” The plaintiffs cite numerous articles in insurance publications which they claim indicate this understanding. We have read the articles cited and cannot agree with the plaintiffs’ conclusion. In fact, we have concluded from these articles that the understanding of the insurance companies as to this exclusion is contrary to the plaintiffs’ contention. The plaintiffs also quote from Cooke, Care, Custody or Control Exclusions, 1959, Insurance Law Journal, page 9, as follows:

“The Automobile Casualty Manual states that this exclusion does not apply to liability for property of passengers carried in an automobile insured at public automobile rates.” (Emphasis added.)

Plaintiffs also quote from an article entitled “The Care, Custody or Control Exclusion Is No Problem,” 12 Annals 179 (1960), as follows:

“It should be noted, however, that this exclusion does not usually apply to property of passengers carried in an automobile at public automobile rates.” (Emphasis added.)

These two quotations on the first reading would seem to support plaintiffs’ position. The key words, however, in both quotations are “public automobile.” In a publication entitled “Gee, Agents Automobile Guide, 8th Edition, 1961, page 125 (an earlier edition of this same publication was cited by the plaintiffs on another point) under the heading of “Public Automobiles,” a public automobile is defined as one used for carrying passengers for a charge. This same publication under sections 6.4 and 6.7 thereof goes on to explain that in case of public automobiles the standard automobile policy is to be endorsed to cover such conditions as may be desired; that there is a different method of classifying and rating public automobiles and that the property damage rate for public automobiles includes coverage for liability to passengers for damage to their property carried in the insured automobile.

The quotations above referred to do not support the plaintiffs’ position but relate to automobiles used to carry passengers for a charge. The plaintiffs’ complaint does not indicate that they were being carried in Garda’s automobile for a charge. A copy of the insurance policy was attached to the defendant’s motion to dismiss. This policy contains no endorsement which would indicate that an additional premium had been paid to remove the provisions of Exclusion (f) from applying to damage to passenger’s property transported by the insured.

We find that the language of Exclusion (f) is clear and unambiguous and requires no interpretation. The provisions of Exclusion (f) includes the plaintiffs’ property. Accordingly, the plaintiffs are barred from recovery thereby for damage to their property which was being transported by the insured.

Affirmed.

STOUDEB, P. J. and ALLOY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Dorocke and Marie Dorocke, Plaintiffs-Appellants, v. Harvey Farrington, et al., etc., Defendants-Appellees.
    Gen. No. 52,380. (Abstract of Decision.)
    First District.
    August 1, 1969.
    Nat M. Kahn, of Chicago, for appellants; Yowell and Cessna, of Chicago (John J. Yowell, G. Kent Yowell and William R. Yowell, of counsel), for appellees.
   Opinion by JUSTICE SMITH. Not to be published in full.


author: GOLDENHERSH, P. J.

text:
    Lee Fields, Plaintiff, v. Lawter Chemicals, Inc., a Foreign Corporation, Defendant and CounterplaintiffAppellant, and C. A. Tharnstrom & Co., Counterdefendant-Appellee.
    Gen. No. 52,452.
    First District.
    August 1, 1969.

      Wildman, Harrold, Allen & Dixon, of Chicago (Bernard E. Harrold and Jon R. Waltz, of counsel), for appellant.
    Howard, French and Healy, of Chicago (Richard G. French and Russell V. Guilford, of counsel), for appellee.
    Vogel & Vogel of Chicago (David F. Holland of counsel) , for counter-defendant appellee.
   GOLDENHERSH, P. J.

Counterplaintiff, Lawter Chemicals, Inc., hereafter called Lawter, appeals from the judgment of the Circuit Court of Cook County, entered upon allowance of the motion for judgment of counterdefendant, C. A. Tharnstrom & Co., hereafter called Tharnstrom, and Tharnstrom appeals from the order dismissing its third-party complaint against Erland H. Peterson, hereafter called Peterson.

This litigation arises from an occurrence in which Lee Fields, while employed by Peterson, was injured on Lawter’s premises. Tharnstrom, as general contractor, was erecting an addition to Lawter’s building, and Peterson was a subcontractor engaged to do some masonry work. Fields sued Lawter, charging negligence, and Lawter filed its counterclaim against Tharnstrom for contractual indemnity. Tharnstrom filed a third-party complaint against Peterson, demanding judgment against Peterson “for any judgment or recovery” to Lawter against Tharnstrom.

Fields recovered against Lawter, the trial court entered judgment in favor of Tharnstrom on Lawter’s counterclaim, dismissed Tharnstrom’s third-party complaint against Peterson, and these appeals followed.

Lawter and Tharnstrom had entered into a building contract which is not in evidence, but the parties are in agreement that it contained a provision requiring Tharnstrom to provide:

“ (o) Contractor’s Public Liability Insurance and Contractor’s Contingent Liability Insurance, protecting and holding harmless the Contractor, the Owner, and the Architect and Engineer, and/or their agents, servants, and employees, against all claims, demands, loss, cost, damage, or expense, in connection with injury to or death of person, or damage to property, occasioned by or arising out of any act, fault or neglect of Contractor’s employees, agents, servants, subcontractors, or material-men, in and about performance hereunder, with limits of not less than $250,000.00 for injury to or death of one person, and not less than $500,000.00 for injury to or death of more than one person in any one accident.”

In its complaint Lawter alleged, and in its answer Tharnstrom admitted that Insurance Company of North America issued a document headed “Certificate of Insurance” certifying that certain liability policies had been issued to Tharnstrom providing liability coverage “Anywhere in U. S. A.” and “specifically” the plant site where Fields was injured. It also contained the following:

“ (d) Contractual coverage including Hold Harmless Agreement between C. A. Tharnstrom & Co., Lawter Chemicals, Inc. (Owner), W. Fred Dolke (Architect & Engineer) and/or their agents, servants and employees.”

It is Lawter’s contention that the provision of the building contract above quoted is an indemnity agreement, and assuming any ambiguity, the certificate of insurance constitutes a binding admission that there was a “Hold Harmless Agreement.”

Much of the argument in Lawter’s brief is predicated upon certain findings allegedly made by the trial court which do not appear in the Findings of Fact and Conclusions of Law upon which the court based its judgment. It also devotes a considerable portion of its argument to the proposition that the trial court erroneously failed to consider the Certificate of Insurance on the ground that it was “Written hearsay.”

Fields’ complaint alleges negligence solely on the part of Lawter, and the issue therefore becomes whether the contractual provision can be construed to indemnify Lawter against liability arising out of its own negligence.

In Westinghouse Elec. Elevator Co. v. LaSalle Monroe Bldg. Corp., 395 Ill 429, 70 NE2d 604, the Supreme Court held that an indemnity contract will not be construed as indemnifying one against his own negligence unless such a construction is required by clear and explicit language of the contract, or such intention is expressed in unequivocal terms.

The parties have cited and discussed Marshall Field & Co. v. J. B. Noelle Co., 81 Ill App2d 409, 226 NE2d 454; De Tienne v. S. N. Nielsen Co., 45 Ill App2d 231, 195 NE2d 240; Meeks v. George A. Fuller Co., 40 Ill App2d 172, 189 NE2d 387; and Halperin v. Darling & Co., 80 Ill App2d 353, 225 NE2d 92. The language of the agreements in those cases varies so greatly that any further discussion thereof is of no value.

In our opinion the insurance required under the contract was such as would hold harmless the contractor, owner, the architect, the engineer and their respective agents, servants, and employees against claims occasioned by or arising out of any act of the contractor’s employees, agents, servants, subcontractors or materialmen in and about the performance of the contract. This cannot be construed as indemnifying Lawter against liability arising out of its own negligence.

Assuming, arguendo, that the trial court should have considered the certificate as being in evidence, it could only be construed to provide coverage to the extent of Tharnstrom’s contractual liability, which did not require it to indemnify Lawter against liabilities arising out of its own negligence. Skezas v. Safway Steel Products, Inc., 85 Ill App2d 295, 229 NE2d 781.

Having reached the conclusion that the trial court reached the proper result, there is no occasion to consider Tharnstrom’s appeal.

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

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MORAN, J.

text:
    Orlando Cicale, Plaintiff-Appellant, v. Karen S. Aronson, Defendant-Appellee.
    Gen. No. 52,492.
    First District.
    August 1, 1969.

      Piacenti, Cifelli & Creswell, of Chicago Heights (Conrad W. Sanders, of counsel), for appellant.
    Caryl P. Bonotto, John W. Kearns, Jr., and Kirkland, Ellis, Hodson, Chaffetz and Masters, of Chicago, for appellee.
   MORAN, J.

Plaintiff appeals from a judgment of the Circuit Court of Cook County wherein the jury returned a verdict in favor of the defendant.

This case involves an accident in which the defendant’s car struck the plaintiff while he was working on a highway repair crew. The plaintiff, a cement laborer, at the time of the occurrence in question was working as a member of a crew which was making repairs to the southbound lanes of pavement on the Eden’s Expressway in Chicago, which, at this point consists of three southbound lanes. At some point north of the scene of the accident there was a series of traffic cones and barricades which funnelled the southbound traffic into the most easterly southbound lane while repairs were being made to the other two lanes.

The plaintiff testified that the crew was doing patchwork, i. e., removing sections of bad concrete and replacing them, in the middle of the southbound lane. On the day in question he had been working with an air hammer in breaking up the old concrete and after the large pieces were removed, he used an air hose to blow out the remaining debris prior to the pouring. The size of the patch area was the width of the lane and perhaps five feet in length, and that to the north of him there was a continuous string of barricades for at least two hundred feet. From the point where the traffic funnelled into one lane, the barricades were on the west edge of that lane and extended up to the patch area and into one easterly lane of traffic.

The plaintiff testified that when he was struck, he was inside the line of barricades, facing North, bent over using the air hose, standing with one foot in the hole and one foot on the pavement, and that although he heard several cars pass, he did not actually see the defendant’s car before it struck him.

The defendant testified that she was sixteen years of age and had received her driver’s license approximately six weeks before the accident. She had been driving fifty-five miles per hour and when she reached the construction area she reduced her speed to fifteen to twenty miles per hour and although she saw workmen in the area, she did not see plaintiff until after the impact.

Charles Inglimo, a civil engineer, who was working as an engineer for the State of Illinois on the Eden’s Expressway, was the only remaining witness. He testified on behalf of the defendant that the patch area was approximately twelve feet by twelve feet and that the barricades extended one or two feet into the traffic lane. Just before the accident, he was standing north of the patch, in the center of the center lane. The plaintiff was standing in line with the barricades on the pavement and was facing the patch with his back to the traffic when he ran out of slack in the air hose. He then jerked the hose and this threw him out of the line of barricades and into the path of the defendant’s car. He estimated that the defendant was going ten miles per hour and then admitted that in a statement given shortly after the accident he had stated that she was proceeding at twenty-five to thirty-five miles per hour. He also admitted that the right side of her car might have been as close as six inches from the base of the barricades.

The jury returned a verdict in favor of the defendant and against the plaintiff. The court entered judgment on the verdict and the plaintiff appeals.

Plaintiff first contends that the trial court erred in not granting his motion for a directed verdict upon the issues of defendant’s negligence and plaintiff’s freedom from contributory negligence. He argues that although the defendant had a lane of traffic eleven and one-half feet wide in which to drive her car, which was only six and one-half feet wide, she drove her car through the lane with the right side having only approximately six inches clearance from the construction work. He also argues that she knew men were working there and that she struck the plaintiff without ever seeing him.

In support of this contention the plaintiff cites the case of Leoni v. McMillan, 287 Ill App 579, 5 NE2d 742, wherein the court stated that drivers of vehicles must take notice of men working on the highway and exercise care not to injure them, and a workman has a right to assume that this will be done. Id. at 590. In Leoni the plaintiff was working on a road repair crew and as the defendant approached the area in his vehicle, he saw the plaintiff crossing the street carrying a piece of pipe and deliver it to the other side. The plaintiff then turned to re-cross the road, and was struck. The Appellate Court held that the defendant should have known that after turning around, the plaintiff would be at the very edge of the road and in spite of this, the defendant continued to hug the right edge of the road with his right wheels within one foot of the edge, even though the road was eighteen to twenty feet wide and entirely free of other traffic. The court held that the work of the plaintiff gave him not only the right, but compelled him to be where he was at the time he was struck.

We do not believe that the factual situation in Leoni is the same as in the instant case. The whole question seems to be whether the plaintiff was in the area where he should have been, i. e., behind the barricades, or whether he stepped or stumbled out into the line of traffic where he had no right to be, and would the defendant have had any duty to anticipate his presence there. In Pedrick v. Peoria & E. R Co., 37 Ill2d 494, 229 NE2d 504, the Supreme Court said:

“. . . In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Id. at 510.

This court said in Hitt v. Langel, 93 Ill App2d 386, 236 NE2d 118:

“. . . The general rule is that negligence and contributory negligence are questions of fact for the jury, and so long as a question remains whether either party has performed his legal duty or has observed that degree of care imposed upon him by the law, and the determination of that question involves weighing and the consideration of the evidence, the question must be submitted as one of fact. (Cases cited.) Even where the facts are admitted or undisputed but where a difference of opinion as to the inference that may legitimately be drawn from them exist, the questions of negligence and contributory negligence ought to be submitted to the jury.” Id. at 396.

Applying these rules to the evidence presented, we believe that the trial court properly submitted these issues to the jury.

In the alternative, the plaintiff contends that a new trial should be granted. Several contentions are stated as a basis for a new trial. We shall first consider three of them together, since they are connected. The plaintiff asserts that (1) it was error to permit the defendant’s attorney to read or comment on the plaintiff’s answers to interrogatories, (2) the court erred in giving the defendant’s instruction No. 2 (IPI No. 5.01) pertaining to the failure to call witnesses and (3) that the defendant’s attorney made a prejudicial argument to the jury on the application of that instruction.

The plaintiff was called as an adverse witness under section 60 of the Civil Practice Act and defense counsel then requested that the reporter mark defendant’s interrogatories and the plaintiff’s answers to them as Defendant’s Exhibits. The defendant’s attorney made reference to questions numbers one and two and then read: “Q. What is the identity and present or last known address ... ?” Plaintiff’s attorney objected and the defendant’s attorney stated that he would not go into it any further. He then asked: “Q. Who was Guido Camelli?” Plaintiff’s attorney again objected and the court asked for the grounds. There was no answer and the questioning continued. The plaintiff was asked if Camelli was a fellow employee on the day of the occurrence and he replied, “Yes.” He then was asked who James B. Kelly was. The plaintiff’s attorney objected as being irrelevant and the defendant’s attorney replied that they were answers to interrogatories.

A discussion was held outside the presence of the jury and the plaintiff’s attorney stated that defense counsel was reading from the plaintiff’s answers to interrogatories and that this is improper. His reasoning was:

“I say that the law does not give him any right to disclose the names or addresses of persons whom we have listed in our interrogatories, so that the jury can jump to the conclusion that we are required to call them in.”

The court then asked for a case supporting the point. None was furnished and the objection was overruled.

In the presence of the jury the plaintiff then stated that he signed the answers to interrogatories and that he listed Robert Inglimo as a witness.

In Bunton v. Illinois Cent. R. Co., 15 Ill App2d 311, 146 NE2d 205, the defendant contended that the trial court erred in refusing to allow defendant’s counsel to read into the record the answer to an interrogatory that the plaintiff had crossed certain railroad tracks twice daily for 21 years. The trial court held that the answer was not impeaching and refused to allow it to be read because it was not impeaching but really corroborative of his familiarity with the area. The Appellate Court held that this was not reversible error.

In Bunton the defendant also objected to the court’s refusal to allow it to read an answer of the plaintiff which gave the names and addresses of all the witnesses to the accident in his possession or under his control. The answer listed four names, and only three were called to testify. The plaintiff’s attorney objected because the witness was no more under plaintiff’s control than defendant’s, and both could have subpoenaed the witness. The plaintiff’s attorney said: “I don’t think the fact that we are required to list the people we know that have some knowledge of the occurrence . . . should . . . put the plaintiff in the position that he has . . . an obligation to call them.” The Appellate Court said: “We are of the opinion that the court properly sustained plaintiff’s objection in this regard.” Id. at 327.

The defendant contends that there were only two questions asked by the defendant’s attorney in which he stated that he was referring to the answers to interrogatories and that the plaintiff’s attorney failed to object to them and therefore waived the point. As stated previously, out of the presence of the jury, the plaintiff’s attorney did object to the referrals to the interrogatories. We believe that counsel’s objection was properly stated and that, having been overruled, it was not necessary that the objections be repeated.

The defendant further contends that even if he had read the plaintiff’s answers to interrogatories into evidence, there is no rule prohibiting such action. Reference is made to Illinois Supreme Court Rule 213(f) which provides that answers to interrogatories may be used to the same extent as a discovery deposition and that Rule 212(a) states that a discovery deposition may be used, among other things, as an admission made by a party. The defendant’s attorney states that his purpose was to obtain the admission from the plaintiff that he knew of witnesses to the accident.

In Tolman v. Weiboldt Stores, Inc., 38 Ill2d 519, 233 NE2d 33, the Supreme Court considered the issue of when answers to interrogatories are admissible. In that case the interrogatory asked whether there was any injury on the escalator during the five-year period when it was operated by the defendant or its assignor. The defendant answered that it had no actual knowledge of any injury but had heard that there had been injuries when it was operated by the assignor. In the succeeding answers the defendant then listed the names of the people that had been injured, according to information it had received. At the trial these answers were admitted into evidence and the plaintiff received a verdict. On appeal, the Supreme Court said that answers to interrogatories may be used only for impeachment or as an admission, or, if otherwise admissible, as an exception to the hearsay rule. The court held that the answers were not admissions of the prior injuries since the answers had denied any knowledge of prior accidents and thus were not admissions that it had knowledge of a dangerous condition. The court then said that it was error for the trial court to admit the answers.

An admission, to be admissible, must be relevant to the issues. Gillson v. Gulf, M. & O. R. Co., 94 Ill App2d 170, 236 NE2d 113. Although, in the present action the plaintiff admitted in the answers that there were witnesses, this fact is of no relevancy unless it is shown that they were under the plaintiff’s control. See Bunton, supra. Accordingly, we hold that the plaintiff’s answers to interrogatories did not constitute an admission which was relevant and therefore should not have been admitted into evidence.

Plaintiff also contends that the giving of defendant’s instruction No. 2 greatly compounded the trial court’s error in allowing the answers to plaintiff’s interrogatories to be admitted into evidence. The instruction was IPI No. 5.01 and reads:

“If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
“1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
“2. The witness was not equally available to an adverse party.
“3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him.
“4. No reasonable excuse for the failure has been shown.”

In his closing argument to the jury, defendant’s counsel said, “Now you will hear a juror’s instruction that states that if you start mumbling about a witness and you don’t bring that witness in, it’s fair to presume that if you did, that witness would testify against you.”

In our opinion the error the trial court committed in allowing the persons listed in plaintiff’s answers to interrogatories to be read into evidence was compounded by the giving of the foregoing instruction and by defense counsel’s argument, for the jury might well have inferred that since the plaintiff did not bring in these persons he was suppressing evidence.

Plaintiff also claims error in the giving of the instruction when coupled with defense counsel’s argument that he had a duty to produce a person who had taken a statement from the defendant. When IPI Instruction No. 5.01 was offered, defense counsel argued that one of the reasons the instruction should be given was that when plaintiff had produced what was purported to be a statement from the defendant, the defendant said, “I don’t remember giving a statement. I believe that was my signature on the second page, but I don’t believe that I ever gave a statement.” Plaintiff’s attorney answered that he had no obligation to produce the person who took the statement from defendant because defendant admitted making the statement.

In his closing argument, defense counsel said:

“MR. BONNOTTO: . . . And secondly, he said to Karen look at this statement here that you signed sometime back when you were about sixteen years old. She looked at it and said that looks like my signature on the second page. There were two pages of the two loosely (sic) pages. I don’t remember giving this statement. It looks like my signature but I don’t remember giving it. Well, that is easy to clear up. Bring in your mystery writer, bring in the one that wrote this mysterious statement. We will stick him on the witness stand and ask him questions and we will find out how and when this mysterious statement came into existence.
“MR. SANDERS: Object.
“THE COURT: Overruled.
“MR. BONNOTTO: I didn’t see the mystery writer, nor did we know any more about the statement than the day you did when he confronted her with it. Again you will hear the instruction from the Court to bring in your witness because it is presumed that they will testify against you if you don’t.”

There was no duty on plaintiff to produce the person who took the statement from defendant, because defendant admitted that she stated in the statement that “I was nearing the end of the work area when I heard a thump, looked up and saw a workman at the side, right front fender of my car with his back to me.” Since this was the only portion of the statement that defendant was asked about, and since she admitted making that statement, it is difficult to see why there would be any reason to call the person who took the statement. Therefore, it was error to instruct and argue on the absence of this supposed witness.

We do not think it necessary to consider other contentions of error made by plaintiff.

For the foregoing reasons, this case is reversed and remanded for a new trial.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: TRAPP, P. J. CRAVEN, J.,

text:
    Village of Mount Prospect, a Municipal Corporation, Plaintiff-Appellant, v. County of Cook, a Body Corporate and Politic, Herbert C. Wenske, Building Commissioner of Cook County, Bernard J. O’Brien, Zoning Administrator of Cook County, Western National Bank of Cicero, as Trustee Under Trust No. 2168, J. M. Brickman Mid-West Corp., a Corporation, and Sidney R. Olsen, Recorder of Deeds of Cook County, Defendants-Appellees.
    Gen. No. 52,858.
    First District.
    August 1, 1969.
    CRAVEN, J., dissenting.
    Ross, Hardies, O’Keefe, Babcock, McDugald «fe Parsons, of Chicago (R. Marlin Smith and Robert W. Bartlett, of counsel), for appellant.

      John J. Stamos, State’s Attorney of Cook County, and Bloch, Birndorf & Silverman, of Chicago (Edward J. Hladis, Chief of Civil Division, Ronald Butler and Charles A. Berke, Assistant State’s Attorneys, and Allan R. Bloch, of counsel), for appellees.
   TRAPP, P. J.

The trial court dismissed with prejudice the complaint of plaintiff for a declaratory judgment that the rezoning of certain property by the defendant county was void, and for relief against the Cook County Building Commissioner and Cook County Zoning Administrator enjoining the issuing of building permits or zoning certificates, and against the owners of certain parcels of property from using such pursuant to the zone classification, and certain other injunctive relief.

The three parcels referred to as “subject property” are located within the unincorporated area of Cook County and described as being contiguous to and within one and one-half miles of the corporate limits of plaintiff. The parcels at issue appear to be separated from plaintiff Village by a street designated Foundry Road, which lies partly within and partly outside the corporate limits of the plaintiff Village.

In 1960 the area had been zoned under County Ordinances as general residence. In 1966 the owners filed a petition for reclassification of the area. Following the publication of notice Mt. Prospect officials filed “resolutions of objection.” Hearing was held on March 11, 1966, and thereafter the county’s Zoning Board of Appeals recommended the proposed reclassification to a general service district. On April 10, 1966, the County Board of Commissioners adopted an ordinance for such rezoning. By this action the subject parcels may be used for an office building, a motel and a combined office and apartment building. As of such date, Mt. Prospect had no effective comprehensive plan for the contiguous area concerned.

The complaint alleges that in 1943 the Village adopted a certain plan establishing subdivision regulations which were applicable to land within one and one-half miles of its boundary, and that in 1965 the Village began the study of a comprehensive plan which was finally adopted in 1967. Such plan is said to have designated the subject property as suitable for annexation, and recommended that upon annexation it be zoned as multiple-family residence.

Defendant’s motion to dismiss raised the issue that plaintiff, as a municipal corporation, lacked the standing to challenge the express statutory power of the County to zone or amend its zoning as to the parcels concerned, relying upon the authority of Village of Bensenville v. County of DuPage, 30 Ill App2d 324, 174 NE2d 403. Bensenville sought a declaratory judgment that the act of the county was void in the rezoning and granting of a special use as to a parcel in unincorporated territory and appealed from the order of the trial court sustaining a motion to dismiss the complaint. The issue stated was whether the village possessed the “power to attack” the zoning action of the county. The village contended that it possessed such standing through or by reason of certain statutes conferring certain extraterritorial powers upon a municipality. These powers did not include any provision relating to zoning beyond the village limits. The court noted that municipal powers are strictly construed and that the express statutory power of the county to zone was paramount against the authority of the village implied from other nonzoning extraterritorial powers.

Plaintiff argues that the rule of Bensenville is made obsolete by reason of the provisions of the Municipal Code of 1961 granting statutory powers to a municipality to adopt a comprehensive land-use plan for contiguous territory within one and one-half miles of its boundaries, and to implement such plans by ordinance. C 24, Art 11, Div 12, Ill Rev Stats 1965. It is expressly stated in argument that there is no claim by the Village under the powers to zone unincorporated territory within one and one-half miles of the village boundaries as provided in c 24, Art 11, Div 13, Ill Rev Stats.

We review the legislative action with respect to land use planning and zoning to ascertain any apparent change of legislative intent since the Bensenville opinion. The problem of adjusting the conflicting interests between cities and villages and the counties in matters of zoning was analyzed and discussed prior to the adoption of the Municipal Code of 1961. See The Proposed Improvements to Community Planning and Zoning Powers in Illinois, 48 Ill Bar Jour 670 at 681, June 1960.

Plaintiff alleges that a village plan was adopted in 1943. Chapter 24, § 53-2, Ill Rev Stats 1943, sets forth certain powers which authorized a municipal plan commission to establish reasonable requirements with reference to streets, alleys and public grounds in “unsubdivided land” situated within the corporate limits or any contiguous territory not more than one and one-half miles beyond the corporate limits but not included in any municipality.

The Municipal Code of 1961, c 24, § 11-12-5, Ill Rev Stats, expands such concept creating authority to establish reasonable standards of design for subdivisions of unimproved land in somewhat greater detail. Such section is primarily significant in the additional provision:

“. . . and (c) may designate land suitable for annexation to the municipality and the recommended zoning classification for such land upon annexation.”

Plaintiff agrees that there is no authority for the exercise of zoning powers prior to annexation.

It appears that the Legislature did contemplate that there would be conflicts between the plans of different municipal authorities in the provisions that where unincorporated land is within one and one-half miles of the boundaries of two or more corporate authorities they may agree upon the jurisdictional boundary line between them, and that in the absence of such agreement the jurisdiction of each should extend to a median line equidistant from the respective boundaries of such municipalities. In another aspect, the Legislature foresaw potential conflict between the several municipalities and made provision that if any municipality adopted a comprehensive plan pursuant to c 24, § 11-12-4 et seq., concerning contiguous territory not more than one and one-half miles beyond its corporate limits and not included within any municipality, then no other municipality should adopt a plan concerning the territory so covered. C 24, § 11-12-9, Ill Rev Stats 1967.

In another division, the Municipal Code of 1961 granted the power to zone contiguous territory not more than one and one-half miles beyond the corporate limits of a municipality which was not included within any other municipality. Such power seems to be coextensive with the power to zone within the corporate limits. C 24, § 11-13-1, Ill Rev Stats 1967. The area of potential conflict was again considered in the provisions of § 11-13-1, that if any part of the area outside the corporate limits of a municipality had been zoned, upon annexation by a second or different municipality the annexing unit shall thereafter exercise the zoning powers provided.

In the area of delimiting municipal powers, such section specifically provided:

“. . . No municipality shall exercise any power set forth in this Division 13 outside the corporate limits thereof, if the county in which such municipality is situated has adopted ‘An Act in relation to county zoning,’ approved June 12, 1935, as amended.”

The correlative statutory provisions relating to county zoning, c 34, § 3151, Ill Rev Stats, as adopted in 1935 and as amended in 1965, provided for comprehensive county zoning outside the limits of cities, villages and incorporated towns which had municipal zoning ordinances in effect. This provision included the language:

“Any zoning ordinance enacted by a city, village or incorporated town shall supersede, with respect to territory within the corporate limits of the municipality, any county zoning plan otherwise applicable.”

Section 3158 expressly provides that county zoning regulations imposed and zoning districts created under the authority of the Act may be amended from time to time by ordinance or resolution. As to potential conflicts between municipalities and the county zoning provision, the Legislature provided that if a municipality having a zoning ordinance desired to protest proposed county zoning of the area within one and one-half miles of its corporate limits, it should appear at a hearing and submit specific written proposals for zoning such territory, and that if such proposals were not incorporated in the county zoning, the county board was required to establish such zoning which had been objected to by a three-fourths vote of all members of such board. C 34, § 3152. A similar provision was made for written objection by municipalities in those instances where the county proposed to amend the regulation or alter the districts carried under the County Zoning Act.

The complaint described the parcels at issue as lots and portions of lots within described subdivisions theretofore classified by the county as general residence with provisions for educational, cultural institutions and recreational facilities. There is no pleading which permits inference that the area is unimproved land without streets, utilities and the divers items prescribed by standards for the subdivision of unimproved land. It cannot be correctly said that the comprehensive planning of all contiguous land within one and one-half miles of the limits of Mt. Prospect is to be done under the authority of c 24, § 11-12-4, et seq.

It is argued that Mt. Prospect has adopted a recommended zoning classification which upon future annexation includes the parcels at issue, and that the amendment of the county zoning regulation as made impairs and renders useless the Mt. Prospect plan. It is contended that Mt. Prospect as a corporate entity suffers special damages in terms of depreciation of tax values of property within the village, traffic congestion, injuries to its health and welfare program, including possible damage through flood and drainage problems. These matters are the subject of zoning under c 24, § 11-13-1, et seq., Ill Rev Stats. There is, however, a reasonable inference from the pleadings describing the property that such matters were given consideration in the county zoning requirements for the subdivisions existing and zoned by the County at the time of the adoption of the Mt. Prospect plan.

As argued by plaintiff, upon the adoption of a comprehensive plan by Mt. Prospect, existing county zoning would pass from the control of the county and await annexation of the contiguous property by the village. As suggested in LaSalle Nat. Bank v. Village of Palatine, 92 Ill App2d 327, 236 NE2d 1 (1968), Mt. Prospect might not succeed in annexing the contiguous property, and it would then be unable to apply its proposed zoning recommendation. The proposition argued by plaintiff would permit Mt. Prospect to effectively control the zoning in, if not zone, the area theretofore zoned by the county without ever being called upon to attempt annexation.

Examination of the several statutes discloses nothing which suggests that the adoption of a comprehensive plan by Mt. Prospect was a condition precedent to annexation of the concerned contiguous area as it was then zoned. By annexation the village zoning would then supersede that of the county. C 34, § 3152, Ill Rev Stats 1967. As of the time of the amendment of the county zoning ordinance at issue, it was speculative whether Mt. Prospect would have the comprehensive plan which it now claims to be controlling, and the nature and contents of such plan were equally speculative.

So far as the record discloses statutory notice and hearing were had upon the proposal to amend the County Zoning classification of the parcels at issue. Mt. Prospect did appear and file “resolutions of objection,” but the Zoning Board of Appeals of Cook County recommended the reclassification of the property, and the Cook County Board of Commissioners did amend the ordinance by the statutory vote of at least three-fourths of its members. In view of the language of the several statutes considered, it is the duty of this Court to make all provisions of the statute effective, if it is possible so to do. In ascertaining legislative intent we must consider the provisions of relevant statutes in addition to the one which plaintiff pleads. Petterson v. City of Naperville, 9 Ill2d 233, 137 NE2d 371. We conclude that the legislative intent as to the resolution of conflicting interests between municipalities and the county has been met in the vote of at least three-fourths of the County Commissioners following the consideration of the written protests of plaintiff.

In Dato v. Village of Vernon Hills, 62 Ill App2d 274, 210 NE2d 626 (1965), a school district sought to intervene in proceedings to rezone in the defendant Village. By amendment to the statute in 1963, the school district was authorized to appear and present evidence as to its interest in matters of zoning. It was argued by the district that such statutory authority to appear and present evidence implied authority to litigate the zoning dispute. The school district alleged a form of special damage, i. e., that the rezoning would increase the school population without increasing the tax support for the school. It was held that the school district had no inherent powers, that the statute only authorized the school district to appear and present its views, and that the Legislature would have clearly stated a power to litigate the zoning action if such was the legislative intention.

The Legislature has generally granted to municipalities the statutory power to zone contiguous land within one and one-half miles of their boundaries, but has expressly withheld such authority as to land included within a county zoning system. C 24, § 11-13-1, Ill Rev Stats (1965). We cannot say that such expression of legislative intent is overcome by plaintiff’s argument that it may challenge the County Zoning Board upon the basis of a “unique and special interest by reason of its statutory authority” to adopt a less sophisticated comprehensive plan for subdivision standards.

Cases from foreign jurisdiction cited by plaintiff do not deal with the issue presented and discussed here, i. e., a unique interest created by statutuory authority to plan. Such cases do not concern the standing of a municipality to sue to set aside the zoning ordinance of a contiguous municipality. Despite the quoted language of certain intermediate courts cited, the Supreme Court of New Jersey in Borough of Cresskill v. Borough of Dumont, 15 NJ 238, 104 A2d 441 (1954), expressly held that it did not decide the standing of an adjacent municipality to sue. It, in fact, disposed of the case upon the interests of other parties.

Plaintiff also cites certain authorities from other States which describe municipalities as “aggrieved parties” for purposes of appeal in zoning matters. In Village of Bronxville v. Francis, 206 Misc 339, 134 NYS2d 59 (1954) and City of Glen Cove v. Buxenbaum, 233 NYS2d 141, 17 App Div2d 828 (1962), the respective municipal zoning Boards of Appeals had granted variances. It was held that under the statute a municipality was sufficiently aggrieved to seek review of the action of its own Zoning Board of Appeals within its own city limits. See also Innet v. Liberman, 155 NYS2d 383 (1956) and Town of Milford v. Commissioner of Motor Vehicles, 139 Conn 677, 96 A2d 806 (1953). In City of Greenbelt v. Jaeger, 237 Md 456, 206 A2d 694 (1965), it appears that the municipality was included within a planning district. The zoning board of such district recommended rezoning to permit apartments outside of the city limits. Greenbelt contended that such rezoning was incompatible with its city uses and sought to appeal the action of the court which held that denial of the rezoning was arbitrary. Upon review it was held that as to property outside the city limits, Greenbelt was not an aggrieved party for purposes of the appeal. Such cases are not persuasive authority that the plaintiff municipality may bring declaratory judgment to hold void the zoning actions of Cook County acting pursuant to the powers delegated by the Legislature.

The judgment below is affirmed.

Affirmed.

SMITH, J., concurs.

CRAVEN, J., dissents.

CRAVEN, J.,

dissenting:

Three parcels of property in the unincorporated area of Cook County contiguous to the Village of Mount Prospect were zoned by the county as R-5 General Residential District. The plaintiff-village, acting pursuant to section 11-12-4, et seq., of the Illinois Municipal Code (Ill Rev Stats 1965, c 24, par 11-12-4), prepared and adopted a comprehensive land-use plan for the village. Acting pursuant to the statutory authority, this plan designated the subject property as suitable for annexation and recommended that upon annexation it be developed or zoned as R-4 Multiple-Family Residence District of the village zoning ordinance.

The owner of the propery petitioned for and received a reclassification from R-5 General Residence to B-4 General Service District under the county zoning ordinance. The owner proposes to construct a six-story office building, a three-building motel complex consisting of a one-, four-, and six-story building, and a five-story structure containing retail stores on the ground floor and multiple-family dwellings on the upper floors. The village objected to the reclassification. Notwithstanding this objection, the county did reclassify the property to permit of the proposed use.

This proceeding was instituted by the village to challenge the validity of the county rezoning reclassification. The sole issue here is the authority of the village to maintain this action in its corporate capacity relating to territory not within the corporate limits but contiguous thereto.

My colleagues hold that the village has no such authority and in so doing follow the opinion of the Appellate Court, Second District, in Village of Bensenville v. County of Du Page, 30 Ill App2d 324, 174 NE2d 403 (2nd Dist 1961).

I do not agree that the Village of Mount Prospect is lacking in authority to challenge the county zoning ordinance amendment as it relates to these three parcels of ground.

It is clear that there is no statutory provision that either expressly authorizes the village to challenge a county zoning ordinance or prohibits such challenge. It is equally clear that a municipality has only such power or authority as is expressly or by necessary implication given to it by the General Assembly, and it is further clear that the general rules of strictly construing statutes as they relate to grants of power to municipalities would reach the result of the majority here.

Municipalities, of course, have a general capacity to sue and be sued if some corporate purpose of the municipality is served by such litigation. In this case the amended complaint alleged and, for purposes of this proceeding, the motion to dismiss admitted that the village has exercised the authority conferred by statute to adopt a comprehensive land-use plan and that the rezoning ordinance adopted by the County of Cook permits a use of the subject property in a manner substantially contrary to the comprehensive plan. Mount Prospect further alleges the existence of a subdivision control ordinance and regulation, again pursuant to statute, purporting to govern and regulate subdivision development. Finally, the complaint alleges that the proposed development would create traffic hazards and congestion on highways — ■ highways, incidentally, located both within and without the corporate limits of the village — and that such use would adversely affect the ability of the village to provide police and fire protection to the residents of the village. It further alleges that there would be an overburden of sewer and storm drainage facilities located within the village, and that the proposed development would strain the capacities of the utility company which would serve the proposed development and serves a portion of the Village of Mount Prospect. All these areas of special damages that are alleged are areas of municipal concern and areas in which the municipality is authorized to function by statute. How can it be said that the only remedy in protecting its interests is to file a protest with the County Board and if after receipt of the protest the County Board votes by a three-fourths vote to approve the rezoning, then the village is without further remedy ?

In the Bensenville case the court held that the village had no standing to challenge the validity of the county zoning ordinance. A careful reading of that opinion, however, indicates that the court was in substantial measure concerned with a determination of whether the village or the county had the power to zone the property. The majority here seems to me to speak of the control of the zoning of the area by the village through the comprehensive plan device. The question is not the power of the municipality to zone the area. It is clear and the plaintiff concedes that the authority to enact zoning ordinances applicable to the property rests in the county. The issue is the standing of the village to challenge in a judicial forum the validity of the county zoning ordinance.

Aside from the Bensenville decision, in Chicago Title & Trust Co. v. County of Cook, 68 Ill App2d 487, 216 NE2d 216 (1st Dist 1966), the Villages of Mount Prospect and Arlington Heights were permitted to appear as intervenor defendants although not the principal parties litigant. In Village of Bannockburn v. County of Lake, 17 Ill2d 155, 160 NE2d 773 (1959), the village participated as a party-plaintiff although the specific issue of its authority to do so seems not to have been in issue. In Society of the Divine Word v. County of Cook, 107 Ill App2d 363, 247 NE2d 21 (1st Dist 1969), where issues other than zoning were involved, but zoning was involved, affected villages were permitted to intervene and appear as plaintiffs and as defendants. Finally, in Village of Riverwoods v. County of Lake, 94 Ill App2d 320, 237 NE2d 547 (1968), the village was a proper party as plaintiff to challenge the validity of a county zoning ordinance enacted without compliance with specified notice requirements.

Realistically, today’s complex urban problems do not behave according to the geography of municipal boundaries. Clearly, in this case, the county had jurisdiction of the subject property for purposes of zoning. Equally clear, however, is the fact that Mount Prospect had authority to concern itself with a comprehensive plan for the development of the area including the subject property. There is not necessarily a conflict between these two governmental functions. When they do conflict the jurisdiction to zone rests in the county. It seems to me, however, that implicit in the authority to make a comprehensive plan is capacity to challenge the validity of the county action under usual zoning standards.

The items of special damages or of unique impact on the village may or may not be established at a hearing on the merits. It may be that the county zoning reclassification is perfectly valid under any test of legality. Those are matters which, in my judgment, should be determined at a hearing on the merits of this controversy. It was error for the circuit court to dismiss the complaint for want of capacity of the village to sue. Accordingly, I dissent.


text:
    Richard A. Martin and Hawthorne Cleaners, Inc., an Illinois Corporation, Plaintiffs-Appellees, v. Donald O. Van Ness, Defendant-Appellant.
    Gen. No. 52,835. (Abstract of Decision.)
    First District.
    August 1, 1969.

      Bentley, Campbell, DuCanto & Silvestri, of Chicago (R. Douglas Campbell, of counsel), for appellant; Phillip E. Freed, of Chicago, for appellees.
   Opinion by JUSTICE EBER-SPACHER, Not to be published in full.


author: MR. JUSTICE SMITH

text:
    Bertha Malman, et al., Plaintiffs-Appellees, v. Village of Lincolnwood, a Municipal Corporation, Defendant-Appellant, Michael Bespalko and Harold Weinstein, Interveners.
    Gen. No. 53,064.
    First District.
    August 1, 1969.

      Ancel, Stonesifer & Glink, of Chicago (Louis Ancel, Marvin J. Glink and Howard J. Siegel, of counsel), for appellant.
    Maurice J. Nathanson, of Chicago (Paul Peter Black, of counsel), for appellees.
   MR. JUSTICE SMITH

delivered the opinion of this court.

Plaintiffs filed their action for declaratory judgment seeking to invalidate the R-3 single-family zoning of ten lots located on Touhy Avenue between Tripp and Kildare Avenues in the Village of Lincolnwood. Plaintiffs sought to use the property for a commercial use. Defendant answered the complaint, evidence on behalf of the plaintiffs was heard, and at the close of this evidence the court granted the defendant and an adjoining property owner intervenor’s motion to direct a verdict in their favor. This action of the trial court was reversed on the prior appeal, Malman v. Village of Lincolnwood, 61 Ill App2d 55, 208 NE2d 884, and the cause was remanded to the trial court “with directions to proceed as though the motion (for directed verdict) had been denied by the trial court or waived.” On remand, additional evidence was heard on behalf of the defendant and the trial court then entered its judgment for the plaintiffs declaring that R-3 single-family zoning was arbitrary, unreasonable and confiscatory. From this judgment, the defendant appeals.

The plaintiffs lay great emphasis on the former opinion in this case. That opinion is determinative of none of the issues now present in this case. All that opinion did was to hold that the trial court in the first case erred in directing a verdict for the defendant. On reinstatement in the trial court, the cause then stood as if the motion for a directed verdict had been denied by the trial court. The plaintiffs’ argument that the previous appeal decided that the evidence of the plaintiffs in this case sustained their burden in dissipating the validity of, or any presumption of validity attached to, the zoning ordinance under attack is not well-founded. In fact, it is a semantical eclipse of the effect of the Appellate Court’s first holding in this case. It clearly and unequivocally stated that the evidence of the plaintiffs “in the absence of contrary proof” was prima facie sufficient to overcome the presumption of validity. In that state of the record it was prima facie sufficient and was obviously error for the trial court to direct a verdict in favor of the defendant. However, as pointed out in that decision, the fact that the trial court allowed the motion for directed verdict is not a final adjudication of any issues of fact. Anderson v. Board of Education, 390 Ill 412, 61 NE2d 562; Kovac v. Ducharme, 2 Ill App2d 80, 118 NE2d 629.

Accordingly, we turn now to the factual situation as now shown by the record in the face of the established rule that the zoning classification and the ordinance establishing it are presumably valid. Gans v. City of Chicago, 102 Ill App2d 456, 243 NE2d 400.

The lots in question were originally zoned for single-family purposes in 1927, and this classification was retained in a comprehensive new ordinance of 1962. The village planner recommended that they be classified as commercial prior to the final public hearings and adoption of the 1962 ordinance. He, however, appeared in this case and defended the classification of the village for residential purposes. The plaintiffs suggest that this makes his testimony of very little value. The fact remains that he may very well have changed his mind after listening to the public hearings. Having done so, the plaintiffs now charge him with a bizarre opinion based solely upon a town meeting plebiscite of the people in the area. We do not think that the testimony of this witness is subject to this characterization anymore than would be the testimony after public hearings in any case where zoning is either retained or altered. Particularly is this true where the classification which the village planner now adopts has obtained in the village for some 38 years and was reviewed as late as 1962, without any appreciable change in the attitude of the village fathers and without any appreciable change in the general characteristics of the neighborhood.

Property on the south side of Touhy across from the lots here involved is zoned commercial and also property to the west of a street along the west side of these lots is zoned commercial. On the north side of Touhy Avenue and a block west are vacant lots zoned commercial and undeveloped. The testimony is in direct conflict on the suitability of lots here involved for a given purpose. The plaintiffs’ testimony indicates that they are best adapted for commercial use. The defendant’s testimony is that they are best adapted for residential purposes. The plaintiffs’ witnesses said that these lots took their characteristics from the usage to the west and to the south. The defendant’s witnesses said the lots took their characteristics from the usage to the northeast, east and southeast, and this was residential. There is, therefore, a clear-cut difference of opinion as to which use should determine the proper classification here. Significantly enough, the trial court in the first case did not think that the plaintiffs’ evidence warranted much consideration in overcoming the presumption of the validity of the classification and in fact, directed the verdict in favor of the defendant. The Appellate Court said that this was error and remanded it for additional testimony and after it was taken, the present trial judge concluded that the new testimony did nothing to destroy the prima facie case of plaintiffs, that the presumption of validity was overcome, and the evidence of the plaintiffs was clear and convincing. We cannot agree with this conclusion.

The plaintiffs purchased this property well knowing that it had a residential classification. This fact does not preclude their challenge of the restriction, but that fact must necessarily be considered in the proceedings. Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 194 NE2d 201; Vedovell v. City of Northlake, 22 Ill2d 611, 177 NE2d 124; Kuiken v. County of Cook, 23 Ill2d 388, 178 NE2d 338; Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, 176 NE2d 771. The many variable factors involved in a zoning ordinance case make it more than uncommonly difficult to find a case factually squarely in point. Each case must rest upon its own factual bottom. It is fundamental that a presumption of validity surround a zoning ordinance and that before a court may intervene, it must be established by clear and convincing evidence that the ordinance as applied to the plaintiffs is arbitrary and unreasonable and has no substantial relation to the public health, safety and welfare. La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 145 NE2d 65; Vedovell v. City of Northlake, 22 Ill2d 611, 177 NE2d 124; Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 194 NE2d 201; Reskin v. City of Northlake, 55 Ill App2d 184, 204 NE2d 600. A careful review of the record in this case and the evidence make apropos the following language of the Supreme Court at page 471 of the Illinois Reports in Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465,194 NE2d 201, 204:

“Plaintiff urges that the findings of the trial court cannot be disturbed unless contrary to the manifest weight of the evidence. We agree that this is the rule. It is, however, clear to us that the evidence, when viewed most favorably to plaintiff, falls far short of overcoming the presumptive validity of the ordinance. At best, it accommodates a legitimate difference of opinion as to the reasonableness of the ordinance, and, under such circumstances, the legislative judgment must prevail.”

There is nothing in this record which suggests that the judiciary should intervene and substitute its judgment for that of the legislative body to whom the determination of the basic questions here involved is committed. Accordingly, the judgment of the trial court must be and is hereby reversed.

Reversed.

TRAPP, P. J. and CRAVEN, J., concur.


author: MR. JUSTICE CRAVEN

text:
    In the Matter of the Estate of Oscar J. Breault, Deceased. William Joseph Breault and Bonnie Jo Ellen Kathryn Breault, Petitioners-Appellants, v. Harold L. Feigenholtz, Executor of the Will of Oscar J. Breault, Deceased, Estelle Angela Breault, Kenneth Breault and Wesley Memorial Hospital, a Corporation, and Harold L. Feigenholtz, Individually and as Trustee Under the Last Will and Testament of Oscar J. Breault, Deceased, Respondents-Appellees.
    Gen. No. 53,395.
    First District.
    August 1, 1969.

      John J. Yowell and G. Kent Yowell, of Chicago (Yowell and Yowell, of counsel), for appellants.
    Hirsch E. Soble, of Chicago, for Harold L. Feigenholtz, appellee.
   MR. JUSTICE CRAVEN

delivered the opinion of the court.

This case involves the question of whether section 24 of the Limitations Act (Ill Rev Stats 1967, c 83, par 24a) applies to a proceeding to contest a will under section 90 of the Probate Act (Ill Rev Stats 1965, c 3, par 90) where a petitioner has been nonsuited. On motion of respondent Feigenholtz the circuit court dismissed the action on the ground that section 24 did not apply and the suit was not filed in proper time.

Petitioners, by their mother as next friend and guardian, had commenced an action on July 1, 1960, in the United States District Court for the Northern District of Illinois to contest the purported will of their father, Oscar J. Breault, deceased, which had been admitted to probate in the Probate Court of Cook County on October 14, 1959. The complaint alleged undue influence of respondent, Harold L. Feigenholtz, over decedent; prayed that the instrument purporting to be his will and the probate be declared void, and that his estate be distributed among his heirs according to law.

Petitioners were citizens of Kentucky and respondents citizens of Illinois. The complaint in the district court was based upon the diversity jurisdiction of that court and alleged that the amount in controversy exceeded $10,000 exclusive of interest and costs.

Considerable other litigation has surrounded decedent’s estate, arising largely out of the exercise by decedent in his will of a power of appointment given him by his mother, Kathryn Breault, over her testamentary trust. The result of such other litigation affected the status of solvency or insolvency of the Oscar J. Breault estate in the determination of whether the trust property became an asset of the estate.

On December 19, 1966, the Federal District Court, after having earlier denied a motion to dismiss for want of the jurisdictional amount, while the cause was at issue and awaiting trial, dismissed the cause for want of the jurisdictional amount. This order was affirmed by the United States Court of Appeals for the Seventh Circuit.

Subsequently, on August 17, 1967, the present action was commenced in the Circuit Court, Probate Division, in the Oscar J. Breault estate, which was within one year after the dismissal by the district court. In the instant complaint petitioners alleged the filing and dismissal of the action in the Federal District Court and the bringing of this action within one year of such non-suit, pursuant to c 83, Ill Rev Stats 1967, par 24a, to contest the purported will on the ground of undue influence of Harold L. Feigenholtz.

Respondent Feigenholtz filed motions to dismiss on the grounds: First, that section 24 of chapter 83 was inapplicable to a proceeding to contest a will filed pursuant to section 90 of the Illinois Probate Act; second, that plaintiffs (petitioners) were not “interested persons” under section 90 of the Illinois Probate Act since the estate was insolvent and they were deprived of nothing by the will; and third, that the cause of action filed in the circuit court was not the same action as had been commenced in the Federal District Court. The circuit court sustained the first grounds and denied the others. Plaintiffs appealed and respondent Feigenholtz cross-appealed.

An action to contest the validity of a will is a statutory action and can be exercised only in the manner and within the limitations prescribed by statute. In re Estate of King, 91 Ill App2d 342, 235 NE2d 276 (1st Dist 1968); McQueen v. Connor, 385 Ill 455, 53 NE2d 435 (1944).

At the time the will contest was commenced in the Federal Court on July 1, 1960, section 90 of the Illinois Probate Act read as follows:

“Within nine months after the admission to probate of a domestic or foreign will in the probate court of any county of this State, any interested person may file a complaint in the circuit court of the county in which the will was admitted to probate to contest the validity of the will. . . .” (Ill Rev Stats 1959, c 3, par 242.)

At the time the present action was filed in the circuit court on August 17, 1967, said section 90 read as follows:

“Within 9 months after the admission to probate of a domestic or foreign will in any court of this State, any interested person may file a petition in the proceeding for the administration of the testator’s estate to contest the validity of the will. . . .” (Ill Rev Stats, c 3, par 90).

That the action to contest the will on the ground of undue influence was filed in the Federal District Court within the required statutory period for filing a will contest set forth in section 90 of the Illinois Probate Act, is self-evident. However, at the time of the Federal District Court nonsuit and dismissal the nine months’ period had expired.

The Limitations Act (Ill Rev Stats 1967, c 83, § 1, et seq.) prescribes time limitations within which civil actions may be brought, except those otherwise provided for. Prior to 1959, section 24 of the Limitations Act provided that a plaintiff who had been nonsuited “In any of the actions specified in any of the sections of this act, . . .” could commence a new action within one year after being nonsuited. (Ill Rev Stats 1957, c 83, par 24a.) However, in 1959, this section was amended by the Legislature and since such amendment provides that a plaintiff who has been nonsuited “In any of the actions specified in any of the sections of this act or any other act or in any contract where the time of commencement of any action is limited, . . .” may commence a new action within one year after being non-suited. (Ill Rev Stats 1959, c 83, § 24).

Prior to the 1959 amendment the Second District Appellate Court, in Peacock v. Churchill, 38 Ill App 634 (1890), construing section 7 of the Wills Act of 1872 in the light of the then wording of section 24 of the Limitations Act (Ill Rev Stats, c 83, § 25 at that time), held that the provision of the Limitations Act did not apply so as to permit commencement of a new will-contest action within one year after nonsuit. While that case stated that the statute providing for the contest of a will is a jurisdictional .statute, it also recognized that “If the Legislature had designed any exceptions like the one here contended for, it certainly would have so framed the statute as to provide for them, or have passed some other remedial statute.” (38 Ill App at 638.)

The appellees assert that the recent opinion of the Illinois Supreme Court in Ruffing v. Glissendorf, 41 Ill2d 412, 243 NE2d 236 (1969), virtually disposes of this appeal. We do not agree. In Ruffing (at 419 (243 NE2d at 240)), the Supreme Court did hold:

. . that the time limitation in section 90 of the Probate Act is jurisdictional and is not tolled by fraudulent concealment or by any other fact not expressly provided for by the statute.” . . .

The facts in that case, however, were that no will contest was begun within the time limitation of section 90 of the Probate Act. The review sought in that case under section 72 of the Practice Act (Ill Rev Stats 1965, c 110, par 72), did not involve the issue here of the application of section 24 of the Limitations Act.

In Nupnau v. Hink, 33 Ill2d 285, 211 NE2d 379 (1965), the Supreme Court held that a complaint to contest a will filed within the statutory nine-month period but failing to join all heirs as parties defendant, was sufficient to confer jurisdiction. The court there observed that jurisdiction was invoked when a complaint was filed within the statutory period.

Section 24 is a remedial statute which should be liberally construed. Its purpose and proper construction was clearly shown in Roth v. Northern Assur. Co., 32 Ill2d 40, 203 NE2d 415, 16 ALR3d 442 (1965), where our Supreme Court, at 42 (203 NE2d 416, 16 ALR3d 446) quoted with approval from Sachs v. Ohio Nat. Life Ins. Co., 131 F2d 134, 137 (7th Cir 1942) that, “ ‘The obvious purpose of the statute was to give a plaintiff an opportunity to try the merits and it is illogical to assume that the legislature meant to prevent hardship in the case of a nonsuit, but not in that of dismissal for want of jurisdiction. . . ” No other logical or intelligible meaning can be ascribed to the language added by the 1959 amendment, “or any other act,” than that the Legislature was expanding the benefit of section 24 to all civil actions authorized by any statute “where the time of commencement of any action is limited, . . . .”

In our opinion the plain purpose of section 24, as said in the Roth case, supra at 48 (203 NE2d at 419, 16 ALR3d at 449), “is to facilitate the disposition of litigation upon the merits and to avoid its frustration upon grounds that are unrelated to the merits. . . .” Where the plaintiff has commenced his suit timely, but thereafter is nonsuited, the usual policy of early presentation of claims and timely closing of decedents’ estates does not counterbalance the public policy that every claimant shall in the interest of justice and fair play have his cause determined on its merits. The Legislature, by the amendment, clearly has expressed its choice of policies. It has determined to permit filing actions in the particular circumstances enumerated by the statute.

The cross-appeal from that part of the order denying the motion to dismiss on the ground that plaintiffs are not interested persons and on the ground that this is a different action than the action originally commenced in the United States District Court, is both improper and without merit. Had the circuit court denied the motions to dismiss in toto, defendant (respondent) could not have appealed since there would have been no final order. (Supreme Court Rules 301 and 304 (Ill Rev Stats 1967, c 110A, §§301 and 304).) There is, therefore, no right to defendant of cross-appeal from the parts of the order from which he cross-appeals, as these rulings did not determine the issues on the merits. Hence, the cross-appeal must be dismissed.

Cross-appeal dismissed; cause reversed and remanded with directions to proceed in accordance with this opinion to answer and trial on the merits.

TRAPP, P. J. and SMITH, J., concur.


text:
    Josephine Ercolino and Vincent Ercolino, Plaintiffs-Appellants, v. Harry Jaffe, Administrator of the Estate of Leonard Lieberman, Deceased, Defendant-Appellee.
    Gen. No. 53,382. (Abstract of Decision.)
    First District.
    August 1, 1969.
    Sheldon N. Reibman, Reibman & Hoffman, of Chicago (Sheldon N. Reibman and Burton L. Hoffman, of counsel), for appellants; Querrey, Harrow, Gulanick & Kennedy, of Chicago (John T. Kennedy, of counsel), for appellee.
   Opinion by JUSTICE CRAVEN. Not

to be published in full.