author: MR. PRESIDING JUSTICE BURKE

text:
    William Scott, Plaintiff-Appellee, v. Instant Parking, Inc., Defendant-Appellant.
    Gen. No. 52,527.
    First District, Second Division.
    October 15, 1968.
    Rehearing denied November 8,1968.

      Sydney W. Hollander, Donald J. Seeley, and Branko M. Steiner, of Chicago (Branko M. Steiner, of counsel), for appellant.
    Peter Fitzpatrick and George Kaye, of Chicago (Jesmer & Harris, and Fitzpatrick & Kaye, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This was an action to recover for personal injuries sustained by plaintiff when he was struck in the head by a descending elevator operated by an employee of the defendant. The jury returned a verdict in favor of plaintiff and assessed damages in the amount of $21,000 and judgment was entered thereon. The jury also answered, all in the affirmative, special interrogatories questioning whether defendant was guilty of ordinary negligence, whether defendant was guilty of wilful and wanton misconduct, and whether plaintiff was guilty of contributory negligence.

Defendant prosecutes this appeal, maintaining that the jury’s verdict is against the manifest weight of the evidence ; that plaintiff was guilty of contributory wilful and wanton misconduct; that the trial court committed error by allowing evidence of other accidents involving the elevators in defendant’s building to be presented to the jury without requiring the plaintiff to establish the conditions under which they occurred; and that the trial court erred with respect to the giving of certain instructions to the jury. Defendant raises no question as to the amount of damages awarded by the jury.

The mishap occurred on June 16, 1960, on premises occupied and employed by defendant as an automobile parking garage in Chicago. The evidence shows that the garage building is a multiple-story structure serviced by three large elevators for the movement of automobiles between floors. The elevators were manually operated by employees of the defendant. Plaintiff’s employer, the Checker Taxi Company, stored a number of its inoperable taxicabs on several of the upper floors of the building, and on the date in question plaintiff and a crew of five other men were dispatched to the garage to get two cabs out of storage. The procedure to be followed by plaintiff in securing the cabs was to have been the same as that employed in the past, namely, plaintiff and his crew would be carried to the desired floor of the garage in one of the building’s elevators operated by defendant’s employee. The elevator operator would drop the men off at the floor where they would secure the cabs desired and ready them for removal from the building. When the cabs were in position to be lowered to the ground floor, plaintiff was to shout down the elevator shaft to summon the elevator; no other call system was provided for this purpose. The plaintiff, his crew and the taxicabs were then to be lowered to the ground floor.

There is evidence that, when the elevator containing plaintiff and his crew reached the desired floor, the elevator shaft doors to the floor were partially open and the elevator operator opened them the rest of the way to let plaintiff and his crew out of the elevator. The shaft doors operate in a vertical manner, half of the door moving upward and the other half moving downward. There is also evidence that after plaintiff and his crew alighted from the elevator, the elevator operator closed the shaft doors but that they rebounded partially open again.

The floor on which the cabs were stored was poorly lighted and flashlights were used to secure the desired cabs, which were then brought to the elevator shaft for removal to the ground level. The shaft doors were partially open, as previously noted, and, in accordance with the prior instructions of the elevator operator, plaintiff shouted into the shaft to summon the elevator to the floor. The evidence is conflicting as to the noise level in the building, the elevator operator testifying that it was quiet whereas other witnesses testified that there was a great deal of noise from automobile horns, automobile and equipment motors, slamming and banging doors, and the like. Several minutes passed and plaintiff called into the shaft a second time. After waiting approximately 20 minutes from the time he first called, plaintiff observed a light descend in the darkened elevator shaft and approached the shaft to call a third time. As he leaned forward to call, the back of plaintiff’s head was struck by the descending elevator, forcing his forehead against the lower portion of the shaft doors. Plaintiff’s body was flipped into the elevator cage and he sustained substantial and severe injuries requiring extended hospitalization and medical attention. During the entire period from the time his head came into contact with the elevator until he was hospitalized, plaintiff did not lose consciousness.

The evidence is uncontradicted that the construction of the three elevators is such that the elevator is inoperable when the elevator shaft doors are open. Each elevator, however, is equipped with a “by-pass” device which, if activated, permits the elevator to function when the shaft doors are open. A City of Chicago ordinance restricts the use of the “by-pass” button solely to emergency operations.

The elevator operator denied having employed the “bypass” device on the date of plaintiff’s injury. He testified that the elevator did not stop automatically when plaintiff was struck, but that it was brought to a halt by the operator’s affirmative action. Plaintiff testified that the operator stated immediately after plaintiff’s body had been flipped into the elevator cage, “They told us to run with these doors open.” The elevator operator denied making that statement and testified that he at that time stated to plaintiff that he previously told him to keep his head out of the elevator shaft.

A City of Chicago Building Department elevator inspector testified that effecting a continuous use of the “by-pass” device was a simple, five-minute operation. It consisted of removing four screws and a faceplate covering the button, wedging the button with a piece of cardboard or the like, a process called “plugging,” and replacing the faceplate and screws. Records of the City of Chicago Building Department and other evidence show that the “by-pass” buttons on the elevators in defendant’s building were found, upon investigation, to have been plugged or otherwise tampered with on numerous occasions : a fatality in December 1957; a nonfatal accident in April 1958; a fatality in April 1959; a report on progress in May 1959; a repair order in December 1960; several instances in January 1961; and a warning directly from defendant’s own engineer in charge of servicing the elevators concerning the tampering with the “by-pass” devices.

Defendant first maintains that the jury’s verdict is against the manifest weight of the evidence. The evidence in the record clearly supports the special finding made by the jury that defendant was guilty of wilful and wanton misconduct. In tampering with the “by-pass” devices on the elevators, in absence of the existence of emergency conditions, defendant acted in violation of the Municipal Code and the evidence shows defendant persisted in this activity despite warnings to desist from persons in authority and from its own elevator service engineer. The evidence further shows defendant failed to provide a safe method of summoning elevators in the building, necessitating a party desirous of elevator transportation to shout into the elevator shaft through the shaft doors which were open as a result of the tampering with the “by-pass” devices; in fact, this was the method of summoning the elevators suggested by defendant. The evidence also shows a high noise level in the building, which could be a reason why plaintiff was required to call into the shaft three times and wait some twenty minutes before the elevator arrived. Under all the circumstances we are unable to say that the jury’s verdict is against the manifest weight of the evidence.

As to whether the court should have found plaintiff guilty of contributory wilful and wanton misconduct as a matter of law, the evidence adduced at trial raised a question of fact for the jury to determine in this regard. See Ziraldo v. W. J. Lynch Co., 365 Ill 197, 6 NE2d 125; Mueller v. Phelps, 252 Ill 630, 97 NE2d 228. The doors to the elevator shaft were partially open on the floor where plaintiff and his crew were securing the taxicabs; plaintiff was instructed by defendant to shout into the shaft in order to summon the elevator; the area was noisy and poorly lighted; plaintiff was in the process of making his third call into the shaft when he was struck by the descending elevator, some twenty minutes after the first call, and only after he observed a light descend in the darkened shaft, which, he testified, led him to believe the elevator had passed his floor without stopping. We are of the opinion that the trial court did not commit error in failing to take the case from the jury under these circumstances. Cf. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504.

It should be noted that, while a special interrogatory was given to the jury with respect to the question of plaintiff’s contributory negligence, no interrogatory was submitted with respect to the question of his contributory wilful and wanton misconduct, although an interrogatory was submitted with respect to the question of defendant’s wilful and wanton misconduct. It should further be pointed out that ordinary negligence is no defense in an action predicated upon wilful and wanton misconduct. Yelinich v. Capalongo, 38 Ill App2d 199, 205-206, 186 NE 2d 115.

Defendant’s third point is that the trial court should not have permitted plaintiff to present evidence concerning the fatalities which occurred on defendant’s premises in December 1957 and April 1959 without first requiring plaintiff to show how they occurred and what connection they had with the circumstances of this case. As to the fatality of April 1959, the report in evidence clearly shows the accident occurred under circumstances paralleling those in the case at bar. The decedent placed his head into the elevator shaft to summon a fellow employee working on a lower floor when a descending elevator crushed his head; the report further shows that the “by-pass” button had been disconnected, allowing the elevator to operate with the doors open at practically all floors.

With respect to the fatality of December 1957, while the report does not show how the victim came to his death, it does show that the elevator shaft doors were open and the “by-pass” button plugged. Defendant first objected at trial to the admission of the report as evidence on the ground that the accident was too remote in time from the occurrence in the instant case to be relevant. The court allowed trial counsel to read the report to the jury, on the ground that the accident was the result of the “same agency” as in the instant case. After the report was read and in response to defendant’s second and later objection that the report did not state the manner in which the victim met his death, the court commented that the sole reason the report was being allowed into evidence was to show “a pattern, like unto the establishment of a motive or intent or procedure.” There was no error in the trial court’s ruling in this regard. In any event, the evidence in the record of defendant’s wilful and wanton misconduct was so overwhelming that this single matter could not have had any substantial effect on the jury’s verdict.

Defendant finally maintains the trial court improperly instructed the jury in giving plaintiff’s instructions 16 and 17 dealing with the standard of care to be exercised by the operator of an elevator with respect to its passengers. As to instruction 16, the basis of the objection raised on appeal differs from that raised in defendant’s post-trial motion and for that reason the objection is waived. Ill Rev Stats 1967, c 110, par 68.1(2). With respect to instruction 17, the instruction correctly states the law applicable to the circumstances in the case at bar. Plaintiff had been accepted as a passenger in defendant’s elevator prior to his injury, a situation which parallels the circumstances in the case of Lake St. El. R. Co. v. Burgess, 200 Ill 628, 66 NE 215. See also Davis v. South Side El. R. Co., 292 Ill 378, 127 NE 66, and Kaminsky v. Arthur Rubloff & Co., 72 Ill App2d 68, 218 NE2d 860, both of which are distinguishable on their facts from the instant case. The contention raised by defendant, that the trial court erred in refusing to give to the jury defendant’s instructions 9, 10 and 11, is groundless inasmuch as the subject matter of those instructions was covered by other instructions given to the jury.

For these reasons the judgment is affirmed.

Judgment affirmed.

McNAMARA and LYONS, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE MCNAMARA BURKE, P. J., dissenting:

license: Public Domain

text:
    St. James Temple of the A. O. H. Church of God, Inc., a Religious Corporation, James Johnson, as Its Minister, Willie Watson, and Willie B. Carter, Plaintiffs-Appellants, v. The Board of Appeals of the City of Chicago, B. Emmet Hartnett, Earl J. McMahon, Hubert F. Messe, Karl M. Vitzthum, and John P. Kringas, as Its Members, the Department of Buildings, City of Chicago, Sidney Smith, Commissioner of Buildings of the City of Chicago, the Bureau of Zoning of the City of Chicago, John P. Maloney, Zoning Administrator of the City of Chicago, and the City of Chicago, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 52,220.
    First District, Second Division.
    October 15, 1968.
    Rehearing denied November 8,1968.

      BURKE, J., dissenting.
    Morgan, Halligan, Lanoff & Cook, of Chicago (Samuel M. Lanoff and Philip L. Bransky, of counsel), for appellants.
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen, Assistant Corporation Counsel, and Harry H. Pollack, Special Assistant Corporation Counsel, of counsel), for appellees.
   MR. JUSTICE MCNAMARA

delivered the opinion of the court.

This is an appeal by plaintiff from an order of the trial court affirming the decision of the Board of Appeals of the City of Chicago denying a special use permit for a church at 856 West 79th Street, Chicago. The case originally was appealed directly to the Supreme Court which transferred it to this court. The transfer order of the Supreme Court stated in part: “Although plaintiff claims that there is a question of freedom of religion presented, we find no substantial question of that nature in the record. The case involves only the usual factors present in every zoning case and we have no jurisdiction on direct appeal.”

The church appeals, contending (1) that the denial of its application for a special use was arbitrary, capricious and bore no substantial relation to the public health, safety and welfare and (2) that the judgment should be reversed because the order of the Board of Appeals contained insufficient finding of facts.

The plaintiff St. James Temple of the A. O. H. Church of God, Inc. is a religious corporation organized in 1945 under the laws of Illinois and a member of a national organization. The church had been located at 3028 South Michigan Avenue and 3158 South Wentworth Avenue, Chicago. The church then located at 508-510 East 67th Street, Chicago, where it operated under a permit granted by the Board of Appeals. In February, 1965, the church purchased the premises at 856 West 79th Street for $20,000 because the 67th Street property had been acquired by Hull House of the Parkway Community Center.

The property at 856 West 79th Street consists of a two-story brick building. The main floor had been a store and is now used as a church, while the upper floor contained living quarters. The property is bounded on the south by 79th Street, on the north by an alley, on the west by Peoria Street and on the east by a store. Leo High School is located across the street from the subject property.

The neighborhood in which the property lies is used for residential and business purposes. The site in question is zoned B4-2. B4-2 is a classification under the Chicago Zoning Ordinance for a Restricted Service District. A Restricted Service District is designed to furnish areas served by Restricted Retail Districts with a wide variety of necessary services not permitted within Restricted Retail District zoning.

Under the ordinance, a church is a permitted use in certain residential districts, R-l to R-8. However, a church is not a permitted use in either B-2 or B-4 business districts, but is designated as a special use which may be allowed only pursuant to certain variation provisions of Article 11 of the ordinance. (Municipal Code of Chicago 1965, c 194A, Chicago Zoning Ordinance.)

Article 11 provides in part as follows:

§ 11.10-4 Standards. No special use shall be granted by the Zoning Board of Appeals unless the special use:
(1) a. Is necessary for the public convenience at that location;
b. Is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; and
(2) Will not cause substantial injury to the value of other property in the neighborhood in which it is located; and
(4) Such special use shall conform to the applicable regulations of the district in which it is to be located.

Article 8.11-1 (4) of the ordinance requires one off-street parking space for every twelve seats in the church.

On March 16, 1965, while the property already was being used for church services, plaintiff filed an application with the office of the Zoning Administrator of Chicago for a permit to use the premises as a church. The application was denied. On April 15, 1965, plaintiff filed an application with the Zoning Board of Appeals of the City of Chicago for a special use permit pursuant to section 8.4-4 of the Chicago Zoning Ordinance. The application specified that the property was zoned B4-2, that the owners acquired the property for use as a church, that the congregation was small, respectable and seeking a permanent home, that the special use permit was necessary for the public use and would be designed and operated so as not to interfere with or harm the public health, safety and welfare of the community, that the use did not cause injury to the adjacent property, that the applicants would keep the property in good condition, making it a credit to the neighborhood and that because of the small size of the congregation, there would be adequate off-street parking. Pursuant to the zoning ordinance Articles 11.4-1 and 11.10-2, this application was referred to the Commissioner of City Planning. On May 5,1965 he recommended that the Board of Appeals deny the application to establish the church as not being compatible with existing uses and structures in the area. He stated that both sides of 79th Street from Peoria to Halsted Streets were business uses, that to the west of the property was Leo High School extending from Peoria to Sangamon Streets with a combination parking lot and play yard on the north side of the street, that the Department of City Planning both from a land use and city planning standpoint was opposed to storefront churches and that no parking provisions were intended. The Board of Appeals served notice of a hearing upon all property owners within the vicinity of the subject property. In response to that notice, written objections were received from individual property owners and two civic organizations. These written objections referred to insufficient parking space, devaluation of adjacent property and disapproval of storefront churches.

A hearing was conducted by the Board of Appeals on June 8, 1965. At that hearing, William Richardson, 1049 East 72nd Street, Chicago, assistant pastor of the church, testified that religious services were conducted on Sunday from 11:15 a. m. to 2:00 p. m. and on Monday at 1:00 p. m. Regular meetings were held on Tuesday and Friday evenings. Willie Watson, 14 East Englewood, Chicago, secretary-treasurer and business manager of the church, testified that there were 60 seats in the church but that the congregation consisted of about 35 people and there had never been more than 45 persons in attendance at Sunday services. He also stated that the weekday meetings were attended by about two persons. He further testified that there were parking facilities for approximately 4 or 5 cars behind the church. When one of the members of the Board of Appeals stated that they had received many objections to the location of a storefront church in a business district because it would devalue the adjoining property, Watson stated that the church did not intend to devalue the neighborhood.

For the objectors, Allen Streeter, representing the Auburn Park Improvement Association, testified that the neighbors, merchants and his organization objected to a church being located in this business district because the parking facilities were inadequate and because storefront churches were detrimental to the community. Streeter also testified that there were many churches in the community but not in the vicinity of this property. Joe Jackson, who lived directly behind the church, testified that not more than two cars could park behind the building. Hezkiah Reed and Henry Dungy, who lived on the same block, both testified that parking facilities were crowded during Sunday services.

James Norris testified that he was a staff member of the Organization of Southwest Community and that this organization represented 150 affiliated groups in the community. He stated that on the day the church moved into the premises he inquired of the workers if they had permission from the city to use the premises as a church and was told that they had.' After checking, he discovered that they did not have a permit and he then filed a complaint with the city building department. Norris also testified that his organization was opposed to churches in this business area because 79th Street was a traffic controlled street and the merchants in the busy shopping area near Halsted Street were already having much difficulty with parking facilities. He further testified that only two cars could be parked in the rear of the church.

The alderman of the ward within which the church property is located, James C. Murray, testified that he appeared in response to a large number of objections from residents in the neighborhood. While the neighbors were not opposed to churches, they were opposed to locating a church in a district composed of small businesses, near a furniture store and department stores already having parking problems. Based upon the objections of the property owners and community organizations, and based upon the fact that the church had failed to make a proper showing before the Board of Appeals, Alderman Murray requested that the application for a special use be denied. The Board of Appeals denied the application for the special use permit. This finding was affirmed by the Circuit Court on administrative review.

On administrative review, the court’s function is limited to ascertaining if the findings and decision of the administrative agency are against the manifest weight of evidence. DeGrazio v. Civil Service Commission of City of Chicago, 31 Ill2d 482, 202 NE2d 522 (1964). A reviewing court may examine the findings to determine if they are supported by the evidence. If there is competent evidence to support the findings, the decision will be affirmed. Monroe v. Civil Service Commission of City of Waukegan, 55 Ill App2d 354, 204 NE2d 486 (1965). The validity of a special use ordinance is well settled and the burden is on the plaintiff to satisfy the standard it imposes. Audino v. Board of Appeals of Chicago, 75 Ill App2d 347, 221 NE2d 34 (1966).

We find that the decision of the Board of Appeals is amply supported by the evidence and that the congregation failed to establish that it was entitled to a special use under the zoning ordinance of the City of Chicago.

Plaintiff offered no evidence whatsoever as to the first requirement of the ordinance that “the special use is necessary for the public convenience at that location.” While we recognize that the presence of a church brings benefits to any neighborhood, plaintiff failed completely to show that the church was necessary for the public convenience at its proposed site. There was no showing that this area had been assigned to the congregation for its ministry or that any members of the congregation even lived within the vicinity of the church. In fact, both of the church officers who testified for the congregation, lived in areas far from the proposed location of the church. Further, under the zoning ordinance, churches are permitted uses in certain districts, but plaintiff adduced no evidence of any effort having been made to locate the church in a permitted district rather than in a district where a special use was required. Plaintiff argues that the proposed premises are suited to the needs of the congregation, and that it is the convenience of the applicant to satisfy its needs which determines what is necessary for the public convenience. This argument not only overlooks that part of the ordinance which states “at that location,” but also urges that public convenience means convenience of the applicant. This is not the law. Illinois Bell Tel. Co. v. Fox, 402 Ill 617, 85 NE 2d 43 (1949); Rosenfeld v. Zoning Board of Appeals of Chicago, 19 Ill App2d 447,154 NE2d 323 (1958).

As to the requirement of the ordinance that the special use must be “so designed, located and proposed to be operated that the public health, safety and welfare will be protected,” the testimony of all the objectors was that the church caused traffic congestion and additional parking problems to a business district already plagued by inadequate parking facilities. We realize that traffic congestion during church services is always present no matter where a church might be located, but a municipality must consider traffic and parking as important factors in determining whether the public safety and welfare are protected through the grant of a special use.

Plaintiff failed to offer any evidence that the special use would not cause substantial injury to the value of other property in the neighborhood. When asked by one of the members of the Board about the concern of objectors that storefront churches located in business districts devalue property in the adjoining neighborhood, the secretary-treasurer of the church testified that the congregation did not intend to degrade the neighborhood. However, this statement of intent was not sufficient to meet the burden of proof required of an applicant in obtaining a special use. In view of the church’s failure to present any such evidence and in view of the objections received, the Board was justified in finding that the grant of a special use would in fact cause substantial injury to the value of other property in the neighborhood.

The zoning ordinance also requires that the special use conform to the applicable regulations of the district. One such regulation was that the church must have one parking space for every 12 seats in the church. The evidence disclosed that the church had 60 seats and that average attendance at Sunday services was 35 persons. The witness for the congregation testified that there was parking space for 4 or 5 cars while two objectors testified that there was space for only two cars. Even if it could be argued that only 3 parking spaces were necessary because the congregation consisted of 35 persons, there was still a conflict in testimony as to the amount of parking available. Under such circumstances, the Board would have been justified in finding that the special use did not conform to the applicable regulations of the district.

Plaintiff congregation relies on Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals of City of Chicago, 25 Ill2d 65, 182 NE2d 722 (1962) wherein the Supreme Court reversed the decision of the Board of Appeals of Chicago and granted a special use to a congregation of Jehovah’s Witnesses for a church in an area which was zoned B4-2. While there are many factual similarities, the Columbus case is distinguishable from the instant case in several important respects. There the congregation purchased the premises, then applied immediately for a special use prior to using the premises as a church. The Supreme Court found that it was improper to deny a special use upon speculative fears of traffic congestion, cautioning that the right of freedom of religion rises above property rights, inconvenience, annoyance or unrest. However, in the case at bar, immediately after purchase of the property, the congregation commenced using the premises as a church without seeking permission from the city. While we do not agree with the city’s argument that such illegal use of the premises by the congregation of itself would have entitled the Board of Appeals to deny the permit, we do find that the testimony of the objectors regarding traffic congestion was not speculative. These witnesses were neighbors who were testifying as to what they had observed since the church had begun its operation. Further, in the Columbus case, the congregation was assigned that particular area in Chicago for its ministry and had been directed to serve the members living in the area in which they sought to establish their church. In the instant case, no evidence was presented of even minimal contact between the church and the neighborhood. The area was not assigned to the congregation, nor had the church ever been identified with the neighborhood. No evidence was presented that any of the congregation lived in the neighborhood. In the Columbus case, the congregation also had attempted to purchase other property in the same general area, but were unable to do so. In the case at bar, no evidence was presented that the congregation had attempted to acquire any other premises in that part of the neighborhood where a special use would not be necessary.

Similarly, in Wolbach v. Zoning Board of Appeals of Chicago, 82 Ill App2d 288, 226 NE2d 679 (1967) this court affirmed a special use grant for the construction of a synagogue in a district zoned BA-2. In that case the synagogue had been identified with the area for several years and in fact was located down the street from the proposed site. The synagogue was intended to serve its members living in that vicinity, and it was shown that the congregation had been unsuccessful in trying to find other suitable locations.

Plaintiff also contends that the decision should be reversed because the Board of Appeals failed to make a sufficient finding of fact in its order denying the application for a special use.

Plaintiff failed to raise this point in the trial court, and first raised it in this court in its reply brief. This court will consider only such questions as were raised and preserved in the trial court, and this principle likewise applies to a review of an administrative determination. Leffler v. Browning, 14 Ill2d 225, 151 NE2d 342 (1958); Des Plaines Currency Exchange, Inc. v. Knight, 29 Ill2d 244, 194 NE2d 89 (1963). Since the issue was not raised in the trial court, we do not consider it a proper subject for review.

Although mindful of the constitutional guarantee of freedom of religion and of the importance of houses of worship to any community, it is our opinion that the congregation failed to establish its right to a special use at the proposed location. Accordingly, the judgment of the Circuit Court is affirmed,

Judgment affirmed.

LYONS, J., concurs.

BURKE, P. J., dissenting:

The holding in Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals of City of Chicago, 25 Ill2d 65, 182 NE2d 722 (1962), strongly supports the position of the plaintiffs in the case at bar. The undisputed testimony of Willie Watson and William Richardson, called by the plaintiffs, established the efforts of the congregation to find a suitable and convenient location and building for use as a church. The church purchased the property in February 1965 at a cost of $20,000 and thereupon commenced operation as a church. The building and grounds are suited to the needs of the congregation. There is ample room for the 35 members with room for expansion. The parking facilities meet the requirements of the ordinance. The Congregation of St. James Temple was founded in Chicago in 1945 and is a part of the parent church which has a national membership of 75,000 persons. The general health, safety and welfare of the community are not impaired by this church or its congregation. The community in fact benefits from its existence and location in the area.

The defendants, the Board of Appeals, and the trial court fail to recognize the applicability of the decision in Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals of City of Chicago, 25 Ill2d 65, 182 NE2d 722 (1962), to the factual situation of the instant case. In Columbus Park Congregation the court said, page 72:

“It is apparent that churches in any location will add to traffic and parking congestion during hours of worship. However, there is no evidence in the record before us to show any danger of a traffic or parking problem that would justify this particular use of the police power to limit the fundamental right of freedom of worship. (Diocese of Rochester v. Planning Board, 1 NY2d 508, 136 NE2d 827; Board of Zoning Appeals of Decatur v. Jehovah’s Witnesses, 233 Ind 83, 117 NE2d 115, 120.) We, therefore, hold that to deny plaintiffs the right of worship at this location, upon the speculative fears of traffic congestion, bears no reasonable relation to the general health, safety and welfare.”

The same court in addressing itself to the problem of detrimental effect of a church in a solid business block stated, page 73:

“Such testimony ignores the fact that such business continuity would likewise be interrupted by a dance hall, crematory, mausoleum or trade school, all uses permitted in this B4 district. We are unable to see how the use as a church is more harmful to adjacent stores than the aforementioned permitted uses.
“The arguments advanced by defendants, if followed, would be sufficient to bar all religious worship from the commercial areas of Chicago. Such arbitrary prohibition is not consonant with the constitutional guarantees of freedom of religion, nor do we believe it is consistent with the intent of the ordinance.”

See also Wolbach v. Zoning Board of Appeals of Chicago, 82 Ill App2d 288, 226 NE2d 679.

The litigation herein involves a changing neighborhood. The plaintiff church is a religious organization of excellent reputation and has been at this site for more than two years with a resulting salutary effect. It is an asset to the community and no one can say that it has been or is a detriment to the public health, safety and welfare of the community. The judgment should be reversed and the cause remanded with directions commanding the defendants to issue the special use permit allowing the plaintiffs to operate a church.


text:
    Fred Kanter, Plaintiff-Appellee, v. William Trueheart, Defendant, Prudence Mutual Casualty Company, Garnishee-Appellant.
    Gen. No. 51,967.
    First District, Second Division.
    October 15, 1968.
    George F. Barrett, of Chicago (Edward Wolfe and John J. Reidy, of counsel), for appellant.
    Gordon & Brustin, of Chicago (Robert E. Gordon, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Fred Kanter instituted this action to recover damages for injuries allegedly sustained as a result of a collision between automobiles operated by Kanter and by William Trueheart. Trueheart defaulted and judgment was entered against him in the amount of $2,000. Kanter then caused a writ of summons in garnishment to issue against Prudence Mutual Casualty Company, as Trueheart’s automobile liability insurance carrier, to which Prudence Mutual answered “no funds.” After a trial of the issues raised in connection with the garnishment summons, judgment was entered for Kanter in the amount of $2,000 and costs, from which Prudence Mutual prosecutes this appeal.

Prudence Mutual maintains that the policy of insurance which it had issued to Truehart had been canceled several days prior to the accident; that Truehart failed to cooperate with Prudence Mutual in the defense of the lawsuit as required by the terms of the insurance contract; and that the findings of the trial court are against the manifest weight of the evidence.

The record shows that during the latter part of November 1964, William Trueheart applied for, and was sold, an automobile liability insurance policy through Budget Insurance Agency of Chicago, written with the Prudence Mutual Casualty Company. It is disputed whether Budget Insurance was or was not an agent of Prudence Mutual. The policy period was to run from December 1, 1964, to December 1, 1965. Budget Insurance accepted a $20 down payment on the policy premium and arranged to finance the balance thereof through a finance company, the Premium Assistance and Finance Corporation, apparently officing in the same office as Budget Insurance; also involved was a second insurance firm, S. M. Simon & Company, which was allegedly the broker of the policy in question.

Truehart executed a contract with Premium Assistance and Finance Corporation, denominated the Premium Assistance Plan, requiring him to retire the amount due thereunder in six monthly installments, the first of which was due December 15, 1964. The agreement provided in part that the “payee” named in the agreement was appointed attorney-in-fact for Trueheart to cancel the underlying policy of insurance, without notice to Trueheart, upon default in the payment of the installments. The policy of insurance provided that the policy could be canceled by the insured either by surrendering the policy to Prudence Mutual or any of its agents, or by mailing written notice to Prudence Mutual “when thereafter the cancelation shall be effective.”

William Trueheart testified that he failed to make the installment payment which was due on December 15, 1964. He further testified that his automobile was involved in a collision with the Kanter automobile on December 21, 1964, and that on the same day he telephoned Prudence Mutual and informed the person to whom he spoke of the accident. He stated that he later received an accident report form through the mail which he took to Simon & Company where the form was completed and retained by Simon & Company. Some time later, Truehart testified, he received the complaint and summons in this action through the mail and again turned over the documents to Simon & Company. Truehart stated that on the day following the accident he went to Simon & Company and paid $20 toward his premium. He also stated that he received no notice of the cancelation of his insurance coverage until sometime in 1965.

Joseph Semper, claims manager for Prudence Mutual, testified that Trueheart’s policy of insurance was “canceled flat” on December 22, 1964, pursuant to a notice received from Simon & Company, dated December 21, 1964, instructing Prudence Mutual to cancel the policy and bearing the notation “nonpayment of premium.” Semper also stated that, although there was no formal report of the December 21st accident in the Trueheart file, there was correspondence from Prudence Mutual to Ranter’s attorney returning a medical report and a doctor bill which had been sent to Prudence Mutual in connection with the accident.

Lee J. Snitoff, a practicing attorney, testified that he was Trueheart’s employer and that Trueheart was a “partner and works in my office as an assistant office manager.” Snitoff stated that early in 1965 Trueheart came to him with the summons and complaint received in connection with this action and that he, Snitoff, telephoned Prudence Mutual concerning the matter and was told by Joseph Semper to forward the papers to Prudence Mutual. The witness stated he instructed his secretary to make three photostat copies of both papers, one set for Prudence Mutual, one for Trueheart and one for office use. Snitoff testified that he observed his secretary mail the photostat copies to Prudence Mutual in a properly addressed and stamped envelope. Snitoff also testified that he declined to represent Trueheart in this action, inasmuch as Trueheart had insurance coverage and would be represented by the insurance company’s attorneys. Snitoff’s secretary corroborated his testimony with respect to the photostating and mailing of the copies of the summons and complaint to Prudence Mutual; she further stated that the envelope in which the copies had been mailed were never returned to Snitoff’s office by the post office.

Arnold Simon, an employee of Budget Insurance, testified that Trueheart applied for automobile liability insurance coverage through Budget Insurance Agency on November 27, 1964. The witness stated that, in order to finance the policy premium, Trueheart executed a Premium Assistance Plan form requiring him to make six monthly installment payments of $16.49, the first of which was due on December 15, 1964. A Premium Assistance ledger card entered into evidence, representing True-heart’s account, reflects that no payment was made on December 15th; that the policy was “reinstated” on December 22nd; and that a payment of $20 was made on December 22nd. The ledger card further reflects that the policy was “flat canceled” in February 1965, and an appropriate premium credit noted thereon. Simon stated that Trueheart was sent a notice of the December 18th cancelation, although he was unable to locate any memorandum in the Trueheart file that such notice had been sent.

Simon further stated that when Trueheart made the $20 payment on December 22nd, he also informed Simon of the December 21st accident. An accident report was filled out in duplicate, one copy of which was retained by Simon and the other sent to the Bureau of Traffic in Springfield, Illinois. The witness further testified that the December 22nd written request made by Simon & Company to Prudence Mutual for reinstatement of the policy bore the notation that the policy had been originally “canceled in error.” Simon also testified that, although it was the usual practice of the clients of Simon & Company to forward to the agency all legal notices, correspondence from attorneys, and the like, which they received, the agency never received a copy of the summons and complaint in this action.

Trueheart, in rebuttal, testified that the Premium Assistance Plan form which he signed when he initially applied for insurance coverage bore no inserted writing whatsoever, but only printed matters and blank spaces. Semper also testified in rebuttal and stated he did not recall having a telephone conversation with Snitoff concerning the lawsuit.

The trial court found that Trueheart’s policy of insurance was in force and effect on the date of the accident, and that Prudence Mutual received notice of the accident and of the lawsuit through Snitoff.

The first contention raised by Prudence Mutual is that the policy of insurance issued by it to Trueheart had been canceled for nonpayment of premium three days prior to the accident through the action of Trueheart’s agent, Simon & Company, pursuant to the terms of the Premium Assistance Plan. We disagree.

Assuming, without deciding, that an insured may empower a third party to cancel a policy of insurance without notice to the insured, it is clear from the record that no cancelation of the policy was effected prior to the accident of December 21, 1964. The Premium Assistance Plan signed by Trueheart was an agreement solely between Premium Assistance and Finance Corporation and Trueheart. Prudence Mutual was in no way involved and the terms of the insurance policy remained intact insofar as cancelation of the policy was concerned. If Premium Assistance, Budget Insurance or Simon & Company were empowered to cancel the policy, it was incumbent upon them to act in accordance with the terms of the policy in that respect. The record is devoid of evidence showing that the policy was canceled prior to the date of the Kanter-Trueheart accident.

The terms of the policy of insurance regarding the cancelation by the insured provided that the policy either be surrendered to Prudence Mutual or any of its agents, or that the insured mail to the company written notice of when “thereafter the cancelation shall be effective.” The policy further provided that the date designated in the written notice or the point at which the policy is surrendered shall be deemed the end of the policy period.

No evidence was introduced to indicate when the policy was surrendered to the company or when the notice of cancelation was mailed. While the notice of cancelation sent by Budget Insurance to Simon & Company bears the date of December 18, 1964, no copy of this notice was forwarded to Prudence Mutual. Moreover, the notice of cancelation sent by Simon & Company advising Prudence Mutual to cancel the policy was dated December 21, 1964, but there is no evidence of when that notice was mailed nor is there any indication in the notice advising Prudence Mutual as to the effective date of termination. In fact, a space provided on the notice form following the words “effective date” was left blank. The only evidence in the record showing that a cancelation had been effected is the notation on the records of Prudence Mutual that the Trueheart policy had been “canceled” on December 22,1964, one day after the Kanter-Trueheart accident.

The second point raised by Prudence Mutual is that, in any event, it is under no obligation to respond in damages inasmuch as Trueheart failed to cooperate with Prudence Mutual as required by the terms of the insurance contract in that he failed to notify Prudence Mutual of the pendency of this action.

Trueheart testified that he turned over the complaint and summons filed in this action to Simon & Company after having received it through the mail; Attorney Snitoff and his secretary, on the other hand, testified that Trueheart turned over the documents to Snitoff and that copies were made of them and forwarded to Prudence Mutual by mail. Trueheart also testified that he filled out an accident report at Simon & Company several days after the accident, whereas Arnold Simon testified that the report was filled out the day following the accident, the same day Trueheart paid the additional $20 toward his premium. It was the trial court’s opinion that Attorney Snitoff and his secretary were correct in their testimony and that they forwarded copies of the complaint and summons to Prudence Mutual. The matter of weight and credibility of the evidence is for the trier of fact (Estate of Bors, 83 Ill App2d 447, 453, 228 NE2d 127) and the court found that Prudence Mutual received notice of the lawsuit through Snitoff. The fact that Snit-off may have been Trueheart’s attorney in the past goes only to the credibility of Snitoff as a witness, not to his competency.

The final point raised by Prudence Mutual, that the findings of the trial court are against the manifest weight of the evidence, is without foundation. As shown above, it was proven by competent evidence that Prudence Mutual received notice of the pendency of this action ; furthermore, there is no evidence in the record that the Trueheart policy had been canceled prior to the date of the Kanter-Trueheart accident. Under these circumstances we are unable to say the findings of the trial court are against the manifest weight of the evidence.

For these reasons the judgment is affirmed.

Judgment affirmed.

McNAMARA and LYONS, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Anthony Rutzen, Defendant-Appellant.
    Gen. No. 52,731. (Abstract of Decision.)
    First District, Second Division.
    October 15, 1968.


author: CULBERTSON, J. STOUDER, J.

text:
    Robert Draper, Plaintiff-Appellee and Cross-Appellant, v. Minneapolis-Moline, Inc., a Corporation, Defendant-Appellant and Cross-Appellee.
    Gen. No. 68-26.
    Third District.
    October 14, 1968.
    Rehearing denied November 19,1968.

      Peter H. Lousberg, of Rock Island, for appellant.
    Donald E. Blodgett, of Rock Falls, for appellee.
   CULBERTSON, J.

This appeal presents questions concerning the Uniform Commercial Code, (Ill Rev Stats 1965, c 26, pars 1-101 thru 10-104) and stems from a judgment for $2,396.70 entered in favor of the plaintiff, Robert Draper, against the defendant, Minneapolis-Moline, Inc., after a bench trial in the Circuit Court of Whiteside County.

On December 30, 1966, plaintiff entered into a written contract with Larry Meiners, a farm equipment dealer who handled defendant’s products, for the purchase of a new Minneapolis-Moline tractor and a new six-bottom plow for use on plaintiff’s farm. By the terms of the contract various extras, including a cab and radio, were to be installed on the tractor by the dealer; plaintiff was to trade in an old tractor and an old plow; and delivery was to be “by” April 1, 1967. The net purchase price of $5,300 was to be paid on delivery. Subsequently, on a date not entirely clear from the record, the old and the new plows were exchanged but nothing was paid on the contract.

At the time the contract was entered into, the dealer did not have the required tractor in stock, but received one from defendant on or about January 26, 1967. This machine was delivered under a trust receipt and a trust receipt financing agreement, both of which gave Meiners the right to sell the tractor at retail in the ordinary course of business, and provided that to the extent permitted by law, the security interest would attach to the proceeds of sale. In this regard, it is undisputed that defendant retained and perfected a valid security interest. By one of the provisions of the trust receipt, it was provided that the machine could be repossessed if the dealer defaulted in the terms for payment.

Shortly after the dealer received the machine, plaintiff came to the store and was shown the tractor and was told that it was his. At the trial plaintiff recalled that the last three digits of the serial number on the tractor shown to him were “804,” and this coincided with the number shown on the purchase agreement between the dealer and defendant. The dealer had not as yet received the cab called for by the contract and this appears to have delayed delivery of the tractor to the plaintiff. On one occasion, apparently in February, 1967, the dealer offered to let plaintiff take the tractor without the cab but plaintiff refused the offer.

During the last week of February, 1967, the completion of a routine audit disclosed the dealer to be greatly in arrears for substantial sums of money owed to defendant. When it became apparent that he was not financially able to correct or alleviate the situation, defendant repossessed all of its products on the store premises for which it had not been paid, including the tractor plaintiff had been told would be delivered to him under his contract. At the time plaintiff had neither turned in his old tractor nor had he paid anything to the dealer. Plaintiff then negotiated directly with defendant to complete the deal, but the negotiations fell through because defendant, as a manufacturer, was in no position to accept a trade-in or to provide and install the contract extras. It is undisputed that plaintiff thereafter did his spring plowing with his old tractor, and that he incurred expenses of $396.70 he would not have had if the new tractor had been available to him. This action against defendant for damages soon followed.

The authority for plaintiff’s action is found in section 2-722 of article 2 of the Uniform Commercial Code (hereinafter referred to as the Code), which, in substance, gives to one having a special property interest in goods a right of action against a third party who “so deals with goods which have been identified to a contract for sale as to cause actionable injury to a party to that contract.” (Ill Rev Stats 1965, c 26, par 2-722.) The quoted language, we believe, intends that a third party would be liable for conversion, physical damage to the goods, or interference with the rights of a buyer in the goods. Section 2-103(1) (a) of article 2 states that in such article: “ ‘Buyer’ means a person who buys or contracts to buy goods,” (Ill Rev Stats 1965, c 26, par 2-103 (1) (a); emphasis added), and it is thereafter provided in section 2-501 (1) in pertinent part:

“The buyer obtains a special property and an insurable interest in goods by identification of existing goods as goods to which the contract refers even though the goods so identified are non-conforming and he has an option to return or reject them. Such identification can be made at any time and in any manner explicitly agreed to by the parties. In the absence of explicit agreement identification occurs “(a) ...
“ (b) if the contract is for the sale of future goods . . . , when goods are shipped, marked or otherwise designated by the seller as goods to which the contract refers;
“(c)----”
Ill Rev Stats 1965, c 26, par 2-501(1); emphasis added.

While defendant makes a mild argument that the tractor did not conform to the contract because the extras had not been installed when it was pointed out by the dealer, we think it manifest from the evidence that there was a complete and sufficient identification of the tractor to the contract within the purview of section 2-501(1). It is apparent, too, that defendant’s conduct made it impossible for the dealer to deliver the tractor to plaintiff, and that defendant so dealt with the goods as to interfere with plaintiff’s special property interest. And, without more, it could be said that plaintiff has standing to maintain an action for damages as authorized by section 2-722. However, there next arises the question of whether plaintiff obtained his special property interest, and its attendant rights, free and clear of defendant’s security interest.

Section 9-307(1) of article 9 of the Code provides in pertinent part: “A buyer in ordinary course of business (subsection (9) of Section 1-201) . . . takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.” (Ill Rev Stats 1965, c 26, par 9-307(1).) The trial court here found that plaintiff was a buyer in ordinary course of business within the definition of subsection 9 of section 1-201, and that he therefore, under authority of section 9-307(1), took his special property interest in the tractor free of defendant’s security interest. And while the trial court reached the correct result, it is our opinion that his reliance upon section 9-307 (1) was misplaced. In the “Official Comment” by those who drafted the Uniform Commercial Code, it is said of section 9-307:

“The limitations which this Section imposes on the persons who may take free of a security interest apply of course only to unauthorized sales by the debtor. If the secured party has authorized the sale in the security agreement or otherwise, the buyer takes free without regard to the limitations of this Section. Section 9-306 states the right of a secured party to the proceeds of a sale, authorized or unauthorized.” West, ULA, Uniform Commercial Code, Master ed, Yol 3, § 9-307, p 185.

Here the sale of the tractor to plaintiff was not unauthorized. Rather, both the trust receipt and the trust receipt financing agreement gave the dealer (seller) the express authority to sell the tractor at retail in the ordinary course of business, and provided that the security interest would attach to the proceeds of sale. The very intent of the commercial papers involved was that the tractor could be sold to a buyer, (see: section 2-103(1) (a)), free and clear of the security interest of the seller’s creditor. Accordingly, we hold that plaintiff obtained his special property interest in the tractor free and clear of defendant’s security interest, and that such security interest is no bar to the action for damages given to plaintiff by section 2-722.

The remaining issue for determination relates to damages which, as previously noted, were awarded to plaintiff in the amount of $2,396.70, of which $396.70 is undisputed and represents expenses incurred by plaintiff because he was denied the use of the new tractor for his 1967 spring plowing. The remaining $2,000, which is disputed, was awarded by the trial court as “cover” under section 2-712 of the Code (Ill Rev Stats 1965, c 26, par 2-712), and was based on plaintiff’s testimony that the contract price was $2,000 less than that quoted to him by another Minneapolis-Moline dealer (his brother-in-law) for the same kind of tractor. Section 2-712, relating to “cover,” provides as follows:

“1. After a breach within the preceding section the buyer may ‘cover’ by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.
“2. The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (Section 2-715), but less expenses saved in consequence of the seller’s breech.
“3. Failure of the buyer to effect cover within this Section does not bar him from any other remedy.”

We are in accord with the contention of defendant that the trial court erred in awarding $2,000 as “cover.” While we think the competency of the proof by which the $2,000 figure was established is suspect (see: Ill Rev Stats 1965, c 26, §§2-713, 2-723 and 2-724; Tully v. Western Union Tel. Co., 141 Ill App 312, 315), it is enough to say that section 2-712 is inapplicable under the facts of this case. That section, in unambiguous terms, has application only where a buyer actually buys goods in substitution for the goods he expected to receive from the seller, and provides as the measure of damages the difference between the cost of cover and the contract price. The plaintiff here did not purchase another tractor as cover, thus the award of $2,000 was a windfall to which he was not entitled.

For the reasons stated the judgment of the circuit court of Whiteside County is affirmed in part and reversed in part, and the cause is remanded to that court with directions to enter judgment for the plaintiff in the amount of $396.70.

Affirmed in part, reversed in part, and remanded with directions.

ALLOY, P. J. concurs.

STOUDER, J., specially concurs.

Special Concurring Opinion

STOUDER, J.

I concur in the result reached by the majority of the court and agree substantially with the reasoning employed in such opinion. Plaintiff-Appellee’s position in this court is at best ambiguous. He attempts to sustain the judgment of the trial court by asserting that the court properly applied damage rules relating to contracts and by cross-appeal asserts the trial court erred in not applying the tort rule of damages applicable to conversion.

In my view of this case plaintiff’s claim was a tort claim based on conversion. Once having concluded as the majority opinion does, that plaintiff has sufficient interest to bring the action against a third-party tortfeasor, I believe it should follow that not only did plaintiff fail to introduce evidence in accord with section 2-712, chapter 26, Ill Rev Stats 1965, but additionally that such section was inapplicable. In my opinion section 2-712, supra, applies only to actions for breach of contract and has no application to damages where the action is based on tort.

I believe that the general rule respecting damages for conversion is applicable namely, the fair cash market value of the property converted at the time and place of conversion. I concur with the result reached by the majority of the court because I believe there is a total failure of evidence in regard to such damage. Although plaintiff argues to the contrary the sales contract cannot be regarded as evidence of such value. As indicated in the majority opinion the contract is a “trade-in” or an exchange contract. It can be characterized essentially as a “cash difference” contract. So long as the same cash difference is maintained, prices and credits may be varied arbitrarily in a variety of ways. No inferences of value can be supported by such allocations.

Accordingly I agree with the majority of the court that there is a failure of evidence on the damage issue.


author: MR. JUSTICE MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas R. Kuzas, Defendant-Appellant.
    Gen. No. 67-174.
    Second District.
    October 15, 1968.
    Anna R. Lavin, of Chicago, for appellant.
    No briefs filed for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The defendant, Thomas R. Kuzas, was charged with violating section 48.1 of the Uniform Act Regulating Traffic (Ill Rev Stats 1965, c 95%, § 145.1) known as drag racing. After being tried without a jury and found guilty of the charge by one magistrate, the defendant moved for probation. Later, a magistrate other than the one who heard the evidence at trial, presided over the probation hearing and denied the defendant’s motion. He was then sentenced to Vandalia for a period of four months. No court reporter was present and consequently we are without the benefit of a report of proceedings.

On this appeal defendant urges error in that (1) the sentence was imposed by a judge other than the one who heard the evidence which led to the conviction and (2) the sentence imposed herein was in excess of that authorized by law.

The State failed to file any briefs in this matter and the case was not orally argued.

In the past, we have stated that where the State fails to file a brief and argument in this Court to support the trial court’s judgment of conviction we will reverse the judgment pro forma. See People v. Spinelli, 83 Ill App2d 391, 393, 227 NE2d 779 (1967) and the reasons therein stated. See also People v. Kenney, 96 Ill App2d 323,238 NE2d 614 (1968).

Judgment reversed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


text:
    T. R. Booth & Co., Inc., a Corporation, Plaintiff-Appellee, v. Alfred J. Loy, d/b/a Arrow Moving & Storage Co., Defendant-Appellant.
    Gen. No. 67-179.
    Second District.
    October 15, 1968.
    Rehearing denied November 14,1968.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellant.

      John F. Grady, of Waukegan, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This is an appeal from a bench trial before a magistrate wherein the plaintiff, T. R. Booth & Co., Inc., recovered a judgment, after setoff, in the sum of $8,199.16 against the defendant, Alfred J. Loy, d/b/a Arrow Moving & Storage Company.

The plaintiff is an importer of overseas merchandise consisting of tape recorders, radios, amplifiers, various electronics and musical instruments. The defendant operated a one-story building as a warehouse. At the time in question, two companies were already tenants of the building, one bagging concrete mix and the other assembling houses. The building was surrounded by a fence with a guard at the gate and was locked other than during regular business hours.

At the end of May, 1965, Gerald Booth, President of the plaintiff corporation and referred to as plaintiff herein, had a conversation with the defendant. In the conversation the plaintiff stated that he needed an area to place merchandise when it arrived from overseas and to prepare such merchandise for shipment to his customers, and occasional help in doing so. The defendant, in this conversation, stated that he could furnish the space needed at the rate of 12¡¿ per square foot, but would charge extra for any labor furnished. This above is the total basis for the alleged oral contract of bailment between the parties as disclosed by the plaintiff in the record.

June 4, 1965, the plaintiff moved in merchandise; however, during the period in question, the great bulk of personalty stored was owned by a corporation other than the plaintiff herein. From this date until December 1, 1966, the plaintiff not only had a key to the premises but had unrestricted access to the building at all times regardless of business hours. From June, 1965, until July, 1966, except for April, 1966, he was on the premises on the average of three to four times a week. While there, he would supervise the packing, unpacking and shipping of materials to his customers; he would bring in additional merchandise by himself as well as having it delivered by commercial carrier; he personally took inventory of his stock from time to time and he would receive customers’ returned merchandise for repairs. The plaintiff prepared all of his own bills of lading and shipped materials in and out of the warehouse as suited his needs. At no time was the defendant given any document by the plaintiff indicating the amount or type of merchandise located on the premises nor was he allowed to examine the contents of any of the boxes. Conversely, the defendant, at no time gave the plaintiff an itemization of the articles stored. It is to be further noted that a partner of the plaintiff was allowed access to the articles when the plaintiff was not present.

On Thursday, December 1, 1966, the plaintiff went to the warehouse and found the entrance door open. There was no guard in attendance nor were any of defendant’s employees present. Upon entering, plaintiff found boxes, in which merchandise had been stored, scattered about and, in most cases, empty. Thereupon, the plaintiff brought a one-count complaint alleging a bailment relationship between the parties. One of the paragraphs of the complaint stated that “the merchandise was either lost or destroyed as a result of the defendant’s negligence in storing the same, or, in the alternative, the defendant has converted the goods to his own use or the use of another.”

The only witness for the plaintiff was Gerald Booth who testified to the above set of facts. He further testified to two items of damage. The first was his loss in the sum of $6,038.95. The only evidence to substantiate this claim was a copy of a letter that he had sent to his attorney which purported to be a compilation of his inventory as taken from voluminous records which were present in court according to plaintiff’s testimony. The second item of damage in the amount of $2,454.64 consisted of missing merchandise which his customers claimed was returned to the plaintiff for repairs. The only evidence to substantiate the second item of damage was plaintiff’s testimony of what his customers told him they had lost. The customers were not in court and therefore did not testify directly as to their losses.

The magistrate found the relationship of bailor-bailee existed between the parties. He then accepted plaintiff’s evidence on damage and entered judgment for the full amount of both claims less a setoff for rent due to the defendant.

The defendant contends on this appeal (1) that the relationship was not one of bailment and (2) that plaintiff’s evidence as to damages was incompetent.

“Bailment is the delivery of goods for some purpose, upon a contract, express or implied, that after the purpose has been fulfilled they shall be re-delivered to the bailor, or otherwise dealt with according to his directions, or kept till he re-claims them.” Knapp, Stout & Co. v. McCaffrey, 178 Ill 107, 112, 52 NE 898 (1899).

Among the necessary elements of a bailment is that there must be an actual delivery or transfer of possession of the property by the bailor to the bailee, Wall v. Airport Parking Co. of Chicago, 88 Ill App2d 108, 113, 232 NE2d 38 (1967); Maryland Cas. Co. v. Holmsgaard, 10 Ill App2d 1, 9, 133 NE2d 910 (1956) ; North v. City of Rockford, 237 Ill App 305, 307 (1925) ; possession of property by a bailee is essential to a common-law bailment, Marsh v. American Locker Co., 7 NJ Super 81, 72 A2d 343, 344-345 (1950); whether personal property left upon another’s premises from which either a bailment or another relationship might be predicated, the test is whether or not the person leaving the property has made such a delivery as to amount to a relinquishment, for the duration of the relation, of his exclusive possession, control and dominion over the property, so that the person upon whose premises it is left can exclude, within the limits of the agreement, the possession of all others. Zweeres v. Thibault, 112 Vt 264, 23 A2d 529, 532 (1942).

We are of the opinion that the plaintiff failed to prove the necessary elements of his cause of action in that at no time did the corporation transfer the exclusive possession of the articles in question to the defendant, nor did the defendant know, at any time, what the specific articles were that were entrusted to him. As can be seen by the actions of the plaintiff, he retained possession of the articles in order that he might transfer the same to his customers at will as well as receive additional items as needed, all without either the acquiescence or knowledge of the defendant. The fact that the defendant held himself out to be a warehouseman does not alter the situation because the physical structure of the place wherein an article is stored is not determinative of a bailment relationship where there has been no delivery of control from the bailee to the bailor. Taylor v. Philadelphia Parking Authority, 398 Pa 9,156 A2d 525, 527 (1959).

Where there is no delivery and relinquishment of exclusive possession by the bailor, and his control and dominion over the goods is dependent in no degree upon the cooperation of the owner of the premises, and his access thereto is in no way subject to the owners control, it is generally held that he is a tenant or lessee of the space upon the premises where the goods are kept. Zweeres v. Thibault, supra, 532.

We are of the opinion that the relationship between the parties hereto was that of lessor-lessee. The actions of the plaintiff constituted nothing more than the leasing of space at this location in order that he might conduct his business as he desired. Having failed to establish either the delivery and acceptance of exclusive possession in the defendant, or defendant’s specific knowledge of articles entrusted to him, plaintiff has failed to establish the necessary elements of his cause of action. Having reached this conclusion it is unnecessary to pass upon the question of damages.

Further, since the alleged negligence of the defendant is bottomed upon a presumption arising out of a bailment relationship there is no need to consider the negligence allegation. Consequently, the judgment of the trial court must be reversed.

Judgment reversed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


author: MR. JUSTICE DAVIS

text:
    Marion Hanson, Plaintiff-Appellant, v. Calvin Darby, Ronald H. Blomberg, Omar Bakeries, Inc., and John Rauch, Defendants-Appellees.
    Gen. No 68-33.
    Second District.
    October 15, 1968.

      Neuendorf and Nickels, of Sandwich, for appellant.
    Matthews, Jordan, Dean and Suhler, of Aurora, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, Marion Hanson, brought this action against Calvin Darby, Ronald H. Blomberg, Omar Bakeries, Inc., and John Rauch, defendants, to recover for personal injuries which she sustained in an automobile accident on January 29, 1965. The defendant Blomberg was dismissed out of the case at the close of all the evidence. The jury returned verdicts in favor of the defendants, Omar Bakeries, Inc. and John Rauch; itx also returned a verdict in favor of the plaintiff and against the defendant Darby and assessed damages in the sum of $10,000. The trial court subsequently granted a judgment notwithstanding the verdict in favor of the defendant Darby (herein called Darby), and the plaintiff appealed from the judgment notwithstanding the verdict.

Under Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967), a judgment notwithstanding the verdict may be 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. The main question presented for our review is whether the evidence in this case was such, that under the Pedrick rule the trial court could properly enter a judgment for Darby, nothwithstanding the verdict to the contrary.

The plaintiff and Darby are now married: at the time of the injury they were not. On Friday, January 29, 1965, Darby had worked all day — part of the time at his employer’s plant in Plano and the remainder in Chicago. He returned to the plant late in the afternoon, and about 6:30 p. m., he left the plant in Plano and drove to Sandwich where the plaintiff resided. He picked her up at her home shortly after 7:00 p. m. and they stopped at a tavern at the edge of Sandwich. The plaintiff and Darby had a dinner engagement with another couple in Plano.

Both the plaintiff and Darby testified that each of them had two drinks during the period of time while they were at the tavern in Sandwich. They left the tavern about 8:30 p. m., and proceeded east on Route 34 toward Plano. The weather was extremely cold and the night was dark, but the visibility was good and the highway was clear. Snow was on the ground and on the shoulders of the highway, but not on the highway proper.

Darby proceeded east on Route 34 — a two-lane concrete highway, which is fairly level and has wide shoulders. The highway at the point in question has no curves or hills to impair visibility. The accident happened approximately one mile and a half east of Sandwich. The Darby car struck the rear of an Omar Bakeries truck, which was, or had been traveling in the same direction and in the same lane of traffic as the Darby car. The truck, in turn, struck the rear of the Blomberg car, which was also traveling in the same direction and in the same lane of traffic.

Darby testified that he was traveling at about 45 to 55 miles per hour and could see between 60 and 80 feet ahead of him with his lights on dim; that he was alternating his lights between dim and bright because of the oncoming traffic; that at no time had he gone off the highway and onto the shoulder of the road, and that he did not see the Omar Bakeries’ truck until he was about 60 to 80 feet behind it. He stated that the truck was not moving, but was standing on the highway, and that he could not see any lights on the back of it. He speculated that no lights were visible — that they were either off or covered with dirt. He did not recall whether or not he had time to apply his brakes.

Generally, the testimony of the plaintiff confirmed that of Darby. She stated that she believed the truck was stopped on the highway; that she didn’t see any taillights on the back of the truck, although she was able to determine its color; that she didn’t recall that Darby drove off the highway at any time prior to the accident, and that she felt the defendant was driving in his usual manner.

A disinterested witness, who had been proceeding in the opposite direction — westerly—and who was about even with the three vehicles at the moment of impact, stated that he had been traveling at about 55 miles per hour; that he had seen the headlights of the three vehicles which were proceeding in an easterly direction as they approached him, and that, from his observations, the first two vehicles were fairly close. He stated that, as he was watching these approaching cars, the headlights of the third car, at one point, moved out beyond those of the other two vehicles, which indicated that this third car was on the shoulder of the highway. At this time, cars were also about one-eighth of a mile ahead of him — traveling westerly. It was his recollection that the taillights on the truck had been broken when he observed the damage to the truck after the accident.

A state trooper who investigated the accident stated that tracks from the Darby car were visible and could be traced to the ditch where the car stopped; that from these tracks he observed that the car had, prior to the accident, gone off the highway onto the shoulder for about 264 feet, and that these tracks were visible in the snow on the shoulder. He also testified that he was then able to follow the tracks on the pavement in the light frost; that the car, after coming back on the highway, remained on it for approximately 66 feet, then went off the highway and into the ditch on the other side of the highway; that it was within this 66 feet that the accident occurred and the debris was on the highway.

The trooper stated that Darby did not talk to him, but that he saw Darby at the scene of the accident and at the hospital that evening; that based upon his observations, Darby was intoxicated. Darby was examined at the hospital but was not hospitalized.

The defendant Blomberg was driving immediately ahead of the Omar Bakeries’ truck. He and Rauch (the driver of the truck) were returning the truck to its garage. Blomberg testified that at the time in question, both his car and the truck were traveling approximately 40 miles per hour. Blomberg and Rauch both testified that the truck had three lights — one low and near the rear fender, and one on each side of the back of the truck. Rauch stated that he was driving the truck about 50 to 80 feet behind the Blomberg car; that he first observed the headlights of the Darby car in his rearview mirror when they were approximately a half mile to a mile behind him; that after the accident the right upper taillight of the truck was still burning, and that there was no dirt on the back of the truck.

Another witness, who at the time of the accident was the garage foreman for Omar Bakeries but at the time of the trial was no longer employed by it, testified that the truck in question had been rebuilt just prior to the accident; that the engine, brakes and lights had been repaired; that it had been repainted and decals placed on the truck. He further testified that the color of the truck was red and white — the basic color being red; that three taillights were on the rear on the truck, and that he knew that this particular truck was clean when it went out on its route the morning in question.

Several areas of dispute are readily apparent from the brief summary of the testimony elicited at the trial. While Darby denied that the car he was driving went off the highway at any time prior to the accident, he asserted that the truck had no taillights that were visible to him and that it was not moving at the time of the collision. Other witnesses, some of whom were totally disinterested, testified that the Darby car did in fact go off the highway prior to the accident; that the truck was moving at the time of the impact, and that the truck had taillights that were operable and burning.

In reference to these matters, item by item, we first consider the testimony on the issue of whether the car driven by Darby went off the highway prior to the accident. His denial of this is supported by the testimony of the plaintiff. However, her testimony when viewed in its entirety, indicates that she was not particularly concerned about observing the manner in which the car was being driven. She was or had been, changing from shoes to boots, and at the time, she and Darby were busy talking. She said that she did not recall that the car went off the highway, but she did not positively state that it did not, in fact, do so.

Contradictory of this testimony was that of two disinterested witnesses — the trooper and the driver of the car proceeding in the westerly direction — both of whom testified that Darby’s car did go off the highway and onto the shoulder. The approaching driver testified that the headlights on the Darby car moved off to the right to the extent that the car would have been on the shoulder. The trooper testified that he could follow the tire marks, which indicated that the car had been on the shoulder. While other cars apparently had passed this spot on the highway between the time of the accident and the time the trooper arrived, and presumably would have caused tire marks in the frost on the highway, the trooper still testified that he could follow the tire marks from the point where the car was on the shoulder, then crossed the highway, and to the place where the Darby car ended in the ditch.

We will next examine the evidence relative to the lights on the rear of the truck: Neither the plaintiff nor Darby saw any taillights on the truck; the plaintiff likewise did not see any headlights from cars which were approaching from the east, and yet the car of the disinterested witness was immediately opposite the truck at approximately the time when it was struck by the Darby car.

Darby suggested that perhaps the truck taillights were not visible because of dirt. However, a prior employee of Omar Bakeries testified that the truck was clean when it left the garage that morning, and the driver of the truck testified that it was clean at the time of the accident. The plaintiff testified that it was sufficiently clean so that she could see the lettering on the back of the truck. The testimony of the Omar Bakeries’ garage foreman indicated that the truck was in first-class condition; that it had recently been rebuilt, and that the taillights were functioning properly. The driver of the truck testified that one light was still burning after the accident.

As to whether or not fche truck had been stopped on the highway, Darby’s testimony was contradicted by that of both the truck driver and the driver of the car immediately preceding the truck. The driver of the car which was approaching from the other direction, could not tell whether the car and the truck were moving, or standing still, as he approached the place of the collision.

Darby’s version of the accident was that he struck a standing and unlighted truck on the highway. If we are to consider all of the evidence, in its aspect most unfavorable to Darby, with the inferences that may reasonably be drawn therefrom (Larson v. Harris, 38 Ill2d 436, 440, 231 NE2d 421 (1967)), the truck that Darby hit was moving at approximately 40 miles per hour; it had three taillights which should have been visible to him had he been keeping a proper lookout; the back of the truck was reasonably clean; Darby’s car went off of the road prior to hitting the truck although the visibility was good and the road relatively straight and level at this particular point, and he saw the truck only a moment before the impact and too late to avoid colliding with it.

The jury might reasonably have inferred from the totality of these facts that Darby was not alert or aware of the condition of the road ahead of him — perhaps because of his conversation with the plaintiff or perhaps because of his previous alcoholic intake. Whatever the reason, the jury could reasonably have inferred that with road and atmospheric conditions as they were, Darby was guilty of wilful and wanton misconduct in not seeing (by his own admission) the truck until it was too late to avoid hitting it.

The trial court stated, and correctly so, that whether or not a judgment notwithstanding the verdict should be granted in this case is a determination that cannot be made without difficulty. However, we cannot agree that all of the evidence, particularly when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors Darby that no contrary verdict based on that evidence could ever stand. There was much conflicting testimony — more than we have referred to in this opinion — and there is nothing inherently improbable in the testimony which contradicts Darby’s version of the occurrence.

This appears to be a case where the jury, which heard and saw the witnesses, should have weighed the testimony, given credence where it believed it to be due, and made its determination as to whether or not the defendant failed to maintain a proper lookout, and if not, whether this constituted an utter indifference to, or conscious disregard for the safety of others. Moss v. Wagner, 27 Ill2d 551, 555, 556, 190 NE2d 305 (1963) ; Payne v. Kingsley, 59 Ill App2d 245, 250, 207 NE2d 177 (1965) ; Turner v. Schaeffer, 30 Ill App2d 376, 388 174 NE2d 690 (1961).

Darby contends that the trial court properly set aside the verdict based upon the plaintiff’s admissions on the witness stand. We do not agree! Her testimony was inconclusive. She didn’t notice anything unusual about Darby’s driving; as far as she knew, he went straight down the road; she didn’t recall that his car went off the road prior to the accident. She testified, positively, that she didn’t see any taillights on the truck — off or on. She testified, also, that she saw no headlights from cars approaching from the east at the time of the accident. Clearly, however, the car approaching from the east was about even with the Darby car at the moment of the impact. She also stated that she did not see the truck until virtually the moment of impact.

The sum and substance of her testimony indicates that she was not paying close attention to the road conditions or to Darby’s driving. Whether it was due to the conversation, because she was changing her shoes, or for some other reason, it seems clear that her attention was not directed to the road.

If a party testifies deliberately to a concrete fact, as opposed to a matter of inference, opinion, estimate, or uncertain memory, his adversary is entitled to hold him to this fact as an informal admission. Huber v. Black & White Cab Co., 18 Ill App2d 186, 190, 151 NE2d 641 (1958). However, even this rule has limitations. A party may not be absolutely concluded by his admissions as to physical facts. If his testimony with reference to physical facts is doubtful or inconclusive, or if other testimony or evidence is contradictory and persuasive, the effect of the party’s testimony may be for the jury in arriving at the true facts of the occurrence. McCormack v. Haan, 20 Ill2d 75, 78, 169 NE2d 239 (1960); Higgins v. Atchison, T. & S. F. Ry. Co., 57 Ill App2d 254, 260, 205 NE2d 648 (1965). We are satisfied that the plaintiff’s testimony was not such that it should bar her action.

Darby asks that if we do not affirm the judgment of the trial court, we then remand the cause for a disposition of his motion for a directed verdict and his motion for a new trial. The disposition of the judgment notwithstanding the verdict is determinative of his motion for directed verdict. Darby filed a posttrial motion, which prayed that the trial court enter a judgment in his favor notwithstanding the verdict for the plaintiff, or, in the alternative, that the trial court grant him a new trial. The defendant did not, however, ask or obtain from the court a conditional ruling on the alternative portion of his motion in the event the judgment notwithstanding the verdict was reversed. The mere filing of such alternative request is not sufficient. It was incumbent upon the defendant to obtain a conditional ruling upon his request for a new trial, and failing to do so, he is deemed to have waived this request. Ill Rev Stats 1967, c 110, par 68.1(5), (6); Fulford v. O’Connor, 3 Ill2d 490, 501, 502, 121 NE2d 767 (1954) ; McCottrell v. Benson, 32 Ill App2d 367, 371, 178 NE2d 144 (1961); Drews v. Mason, 29 Ill App2d 269, 280, 172 NE2d 383 (1961).

The judgment of the trial court is therefore reversed and the cause remanded with directions to the trial court to enter judgment on the verdict of the jury in favor of the plaintiff and against the defendant Darby.

Reversed and remanded with directions.

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