author: JUSTICE TRAPP

text:
    WILLIAM PAGEL, Plaintiff-Appellee, v. DON YATES, d/b/a Reed Yates Farm, Defendant and Third-Party Plaintiff-Appellant (Dean Koeber, Third-Party Defendant).
    Fourth District
    Nos. 4—83—0843, 4—84—0010 cons.
    Opinion filed November 21, 1984.

      Paul D. Giamanco, of Giamanco & Wexstten, of Mt. Vernon, and Leonard J. Wojtecki, of Truemper, Ward, Hollingsworth & Wojtecki, of Aurora, for William Pagel.
    Costigan & Wollrab, of Bloomington, for Don Yates.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff William Pagel sued defendant Don Yates for returning the wrong broodmare to plaintiff. The jury returned verdicts in plaintiff’s favor on both a negligent and a conversion count, but the trial court held plaintiff was entitled to satisfy judgment on only one count. Defendant appeals, contending: (1) plaintiff failed to prove that he received the wrong horse or that defendant was negligent; (2) the court erred in refusing to allow him to present extrinsic evidence for impeachment purposes; (3) the admission of testimony concerning his net worth denied him a fair trial; (4) the court abused its discretion in excluding evidence of his attempts to return the horse; (5) the evidence did not support the jury’s award on the conversion count; and (6) the court improperly instructed the jury on damages under the negligence count. Plaintiff cross-appeals, asserting the trial court erred in limiting him to satisfaction on only one count.

This dispute began in February 1977, when Jerry Coleman brought two mares to Reed Yates Farm, defendant’s horse-breeding farm. Coleman owned one of the mares, a trotting bred horse named Phyllis Filter. Lawrence Harvey owned the other mare, Surprise Package. Coleman signed a contract with defendant to have Phyllis Filter bred to defendant’s trotting stallion, Mr. Magoo. Surprise Package was to be bred to Winter Time, a pacing bred horse.

Coleman testified he identified each mare to a boy who worked on the farm. The boy led the horses away, and Coleman went into the barn to sign the breeding contracts with Bill Scott, defendant’s farm manager. Scott, however, testified he saw Coleman unload the horses. After Coleman identified the horses, Scott placed a piece of tape on the halter of each horse for identification. Later, he branded a number on the hoof of each mare. Scott testified the mare Coleman identified as Phyllis Filter was bred to Mr. Magoo, and the one identified as Surprise Package was bred to Winter Time.

On April 26, Coleman sold Phyllis Filter to Pagel. Pagel testified he was more interested in the mare’s pedigree than her appearance. Thus, he bought the horse although Coleman had only pointed her out from 20 yards away. The mare was in defendant’s field along with 35 to 40 other horses. That same day, Pagel told Scott he still wanted Phyllis Filter bred to Mr. Magoo. On June 18, Pagel returned to the farm to pick up his horse. Scott gave him the horse branded with Phyllis Filter’s number on the hoof. Pagel thought it was the same horse Coleman had shown him. The mare, which was in foal, turned out to be Surprise Package.

Harvey failed to pay his service and board bills on Surprise Package. The mare, which defendant believed was Surprise Package, and its weanling colt were sold to defendant at a sheriff’s sale on November 2, 1978. The next day, defendant applied to the United States Trotting Association (USTA) for registration certificates on the horses. The USTA registers horses by means of a number tattooed onto the horse’s inner lip, but the tattoos are difficult to read. The application stated the mare’s tattoo number was 8066J. On November 4, defendant sold the mare to third-party defendant Dean Koeber for $450. Defendant also sold the colt, named Winter Mite, to Chester Hunt, for $1,000.

The USTA informed defendant that neither the mare nor the colt could be registered because the number on the application was registered to a horse named Ex Creed. Without a registration certificate, a horse cannot enter races. The USTA unsuccessfully attempted to contact Ex Creed’s owners. Defendant contacted Koeber several times about the problem. Koeber told defendant the mare’s tattoo number was 80663. He later told the USTA that it was 30663. On April 26, 1979, defendant offered to refund Koeber’s money and repay any incidental expenses for the return of the horse. Although the parties negotiated, the mare was never returned to defendant. According to defendant, Koeber originally agreed to the offer, but in July, Koeber discovered he had Phyllis Filter and refused to return her. Koeber contended defendant never tendered the settlement money, so no exchange occurred. On August 2, a USTA tattoo technician read the number on Koeber’s mare as 306AJ. The USTA identified the mare as Phyllis Filter.

Meanwhile, Pagel had been breeding Surprise Package. The mare had a second colt in 1979 and a third born in 1980. In August 1979, defendant informed Mr. Pagel that her husband had the wrong horse. Koeber and Pagel were in contact after this time, but they never discussed straightening out the matter. In 1981, Phyllis Filter fell into a well and drowned. Pagel also contacted Hunt. Pagel agreed to transfer Winter Mite to Hunt after Hunt agreed to pay Pagel 25% of the colt’s winnings.

On April 28, 1980, Pagel filed suit against defendant. Defendant filed a third-party complaint against Koeber, alleging Koeber negligently caused plaintiff’s damages. On October 17, 1983, the jury returned verdicts in favor of plaintiff on both a negligence and a conversion count. The jury assessed damages at $20,000 for each count. The jury also found in favor of Koeber on the third-party complaint. The . trial court decided plaintiff could enforce judgment on only one of the counts.

Defendant first contends plaintiff failed to prove he received the wrong horse. Defendant maintains the only evidence proving the switch did in fact occur was plaintiff’s hearsay testimony. Plaintiff testified defendant gave him the wrong mare and Koeber got Phyllis Filter. Plaintiff, however, admitted he knew only what his wife had told him after she had talked to defendant and the USTA. Defendant concludes the judgment must be reversed due to the admission of hearsay evidence.

Error in the admission of evidence does not require reversal when there has been no prejudice or if the evidence does not materially affect the outcome. (Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 392, 445 N.E.2d 485, 491.) The evidence at trial overwhelmingly proved plaintiff received the wrong horse. Both Mrs. Pagel and Koeber testified defendant told them the horses had been switched. Even if defendant merely relied on the USTA when he made these statements, they were admissible because it is presumed a person has made an adequate investigation when he speaks against his own interests. (Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 588, 434 N.E.2d 511, 522.) Moreover, defendant himself testified he was satisfied the mare sold to Koeber was Phyllis Filter. Scott also testified the horses had been switched. Finally, defendant presented an evidence deposition of a USTA official who described the mix-up and attempts to resolve it.

Defendant next asserts plaintiff failed to prove defendant rather than Coleman was negligent. Coleman and Scott gave conflicting testimony on the cause of the switch. The credibility of the witnesses and the weight to be given their testimony are matters for the jury to consider. Mizowek v. De Franco (1976), 64 Ill. 2d 303, 309-10, 356 N.E.2d 32, 35.

Defendant, however, contends the trial court erred in not permitting him to impeach Coleman. Coleman testified he never made a mistake when identifying horses in the past. Defendant offered the testimony of two witnesses who alleged Coleman had misidentified horses on a previous occasion. The trial court did not let the witnesses testify. Defendant asserts this evidence was crucial to his case because he premised his defense on Coleman’s being responsible for the switch.

A witness may not be impeached as to collateral, irrelevant, or immaterial matters. If a party elicits such matters on cross-examination, he may not impeach the witness’ answer. (Herget National Bank v. Johnson (1974), 21 Ill. App. 3d 1024, 1028, 316 N.E.2d 191, 194.) The test for noncollateralness is whether the facts are relevant to a material issue in the case or whether the facts are independently admissible to discredit the witness by showing bias, interest, or motive. People v. Watkins (1974), 23 Ill. App. 3d 1054, 1060, 320 N.E.2d 59, 65.

The trial court properly excluded the evidence. It did not demonstrate any bias, interest, or motive on Coleman’s part. Nor was it relevant to a substantive issue in the case. Evidence of a person’s conduct on one occasion is irrelevant to prove the person is likely to have committed the same conduct on the occasion in issue. Papageorgiuo v. F.W. Woolworth Co. (1978), 66 Ill. App. 3d 873, 881, 383 N.E.2d 1346, 1353.

Defendant argues he was denied a fair hearing because the court allowed plaintiff to inquire into defendant’s net worth. Defendant objected when plaintiff asked about the farm’s net worth, but plaintiff maintained he was entitled to punitive damages under his conversion theory. The court overruled the objection, and the defendant testified his farm’s net worth was $75,000 in both 1979 and 1980. At the instructions conference, plaintiff asserted proof of malice was not required to recover punitive damages for conversion. The court refused the punitive damages instruction when plaintiff could not cite any authority. The court later instructed the jury to disregard the evidence.

When only compensatory damages are recoverable, the financial conditions of the parties are irrelevant and often prejudicial. (Hedge v. Midwest Contractors Equipment Co. (1964), 53 Ill. App. 2d 365, 376-77, 202 N.E.2d 869, 874.) Such evidence appeals to the prejudice of the jury, for presumably the jury will favor those least able to bear the loss. (DiPaolo v. Johnson (1973), 15 Ill. App. 3d 735, 739, 305 N.E.2d 194, 197.) If undue emphasis is placed on the irrelevant evidence, or if the jury’s verdict is affected by it, then reversal is required. McKasson v. Zimmer Manufacturing Co. (1973), 12 Ill. App. 3d 429, 439, 299 N.E.2d 38, 45.

Defendant alleges plaintiff’s repeated references to the irrelevant evidence during closing argument prejudiced him. Defendant, however, never objected during the argument; therefore, he waived any possible prejudicial effects. (Eckley v. St. Therese Hospital (1978), 62 Ill. App. 3d 299, 379 N.E.2d 306.) Furthermore, we disagree with defendant’s contention that plaintiff unduly emphasized the irrelevant evidence. Defendant objects to plaintiff’s description of him as “a big horse breeder.” Yet, defendant’s own witnesses described his farm as a “large operation” and a “large breeding farm.” Moreover, plaintiff was merely contending the mix-up was more likely the fault of defendant’s large farm rather than his own. Defendant objects to plaintiff’s reference to the “sport of kings,” but plaintiff was referring to horse racing, not horse breeding. The comment was directed toward the cost of raising racehorses rather than defendant’s financial condition. The same is true of counsel’s statement that his clients were not “gentlemen racers, and very very rich.” Although the comment alluded to plaintiff’s financial condition, defendant did the same, stating “$1,000 may be just a drop in the bucket to him [plaintiff], but it is worth quite a bit to, I would say, most of us.”

Defendant argues plaintiff misled the court by asserting that he had authority for his position. We note, however, the evidence had been admitted before plaintiff ever claimed to have authority. Thus, the error had already been committed. In light of the fact that the evidence was not repeated and the court’s instruction to disregard it, we conclude defendant suffered no prejudice as a result of the testimony concerning his net worth.

Defendant argues the trial court erred in excluding evidence from the USTA files on the case. The evidence concerned the identification of Koeber’s mare as Ex Creed and attempts to locate Ex Creed’s owners. Defendant contends the evidence was relevant to show the USTA helped create some of the confusion and to demonstrate his efforts to remedy the situation. The trial court stated the issue in the suit was who was responsible for the switch. The court held any after-the-fact identification was both irrelevant and confusing to the issue. We agree. Not only was the evidence collateral, but it was also cumulative because both Koeber and defendant testified about the misidentification of the mare.

Defendant also contends the court erred in excluding a letter from Koeber’s attorney detailing expenses incurred after Koeber bought the mare. The court, however, properly excluded the letter as evidence of settlement negotiations. (Hill v. Hiles (1941), 309 Ill. App. 321, 32 N.E.2d 933.) Again, both Koeber and defendant were allowed to testify as to the negotiations between them.

Defendant next maintains the evidence was insufficient to support the award of $20,000 on the conversion count. In a conversion suit, plaintiff bears the burden of proving damages to a reasonable degree of certainty. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 419 N.E.2d 578.) The evidence must afford a reasonable basis for ascertaining value. “At a minimum, it must rise to the dignity of proof, and supply such elements or standards for measuring value to enable the trier of fact to exercise its judgment.” Long v. Arthur Rubloff & Co. (1975), 27 Ill. App. 3d 1013, 1026, 327 N.E.2d 346, 355.

The trial court properly instructed the jury to assess the damages at the fair market value of Phyllis Filter in foal at the time of the conversion. Plaintiff presented little evidence of this value. He testified he bought the mare for $1,500, and another of his witnesses testified Phyllis Filter was worth $2,000 to $3,500 when plaintiff bought her. Defense witnesses placed Phyllis Filter’s value in 1977 between $300 and $2,000. Only one witness testified as to the mare’s value in foal, and that value was $1,000 to $1,500.

On the other hand, plaintiff presented much evidence as to the value of Winter Mite as a three-year-old. Plaintiff’s evidence placed the value between $15,000 and $30,000. We conclude this evidence was both irrelevant and prejudicial. Winter Mite’s value four years after the conversion did not supply a standard for measuring Phyllis Filter’s value at the time of conversion. At the time of conversion, it was assumed Phyllis Filter had been bred to Mr. Magoo. The foal would have been a trotter, not a pacer like Winter Mite. Additionally, one of plaintiff’s witnesses testified the sire of Phyllis Filter also sired a racehorse named Goose Filter who won over $300,000. This evidence was also not probative of Phyllis Filter’s value at the time of conversion.

The highest amount that anyone placed on Phyllis Filter’s 1977 value was $3,500. Thus, we conclude the evidence was insufficient to support the jury’s award of $20,000 under the conversion count.

Defendant further argues the trial court improperly instructed the jury on damages under the negligence count. The court instructed the jury to include:

“1. The reasonable expense incurred by plaintiff in caring for the horse Surprise Package;
2. The reasonable expense incurred by plaintiff in caring for the colts of the horse Surprise Package;
3. The fair market value of the horse Phyllis Filter, in foal, at the time of the occurrence; and
4. The monetary loss sustained by reason of plaintiff not having possession of the colt Winter Mite.”

Although Phyllis Filter’s value at the time of the occurrence was properly included, as previously discussed, plaintiff’s evidence did not provide a sufficient basis for the jury to assess this value.

The instruction improperly allowed recovery for Winter Mite’s value. Generally, damages for unborn animals are not recoverable. While the mother’s value may be enhanced because she is pregnant, the young have no separate market value of their own. (Nationwide Horse Carriers, Inc. v. Johnston (Tex. Civ. App. 1974), 519 S.W.2d 163; Ruden v. Hansen (Iowa 1973), 206 N.W.2d 713.) It would be too speculative or uncertain to allow recovery for unborn animals. (Texas Pipe Line Co. v. Sheffield (Tex. Civ. App. 1936), 99 S.W.2d 684.) Furthermore, allowing recovery for the value of the unborn animal and its mother at the time of the injury would permit a double recovery. Melton v. South Shore U-Drive, Inc. (1969), 32 App. Div. 2d 950, 303 N.Y.S.2d 751; Texas Pipeline Co. v. Sheffield (Tex. Civ. App. 1936), 99 S.W.2d 684.

The instruction clearly permitted a double recovery. The value of Phyllis Filter in foal would include an amount to reflect the possible future value of her colt. Any monetary losses sustained because plaintiff did not have Winter Mite were not separately recoverable.

Defendant’s negligence caused plaintiff to care for horses he did not own or want. Plaintiff, however, cannot recover his expenses for the entire six-year period prior to trial. Defendant gave plaintiff the wrong mare on June 18, 1977, and plaintiff cared for that horse and her colts believing they were his until August 1979. At that time, plaintiff learned of the switch. He could not then stand by and allow the injury to continue to increase without making reasonable efforts to avoid further loss. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 929, 419 N.E.2d 578, 591.) While plaintiff was in contact with Koeber after August 1979, he made no effort to resolve the problem. Nor did he attempt to return the horses to defendant.

In his cross-appeal, plaintiff contends his negligence count and his conversion count sought compensation for separate injuries. He asserts the first injury occurred when defendant negligently bred plaintiff’s mare to the wrong stallion and then returned the wrong mare. The second injury was a conversion which occurred at the sheriff’s sale. Plaintiff concludes the trial court erred in limiting him to satisfaction on only one of his counts.

At trial, plaintiff proceeded under the theory that the negligence and the conversion occurred at the same time. A party may not abandon in the appellate court a position he took in the trial court. (Kenny v. Thompson (1949), 338 Ill. App. 403, 87 N.E.2d 229.) More importantly, the instructions on both counts included the fair market value of Phyllis Filter in foal. Plaintiff cannot recover compensation for this value more than once, regardless of the time he claims he suffered the loss.

Finally, plaintiff asserts the jury intended to assess his total damages at $40,000 instead of $20,000. Because of our disposition of the case, we need not address this issue.

For the foregoing reasons, that portion of the judgment finding defendant liable is affirmed. The damage awards, however, are reversed and the cause is remanded for a new trial on the issue of damages not inconsistent with the views expressed in this opinion.

Affirmed in part, reversed in part, and remanded.

MILLER and WEBBER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McGLOON

license: Public Domain

text:
    ZULFIQUAR EBRAHIM, Plaintiff-Appellant, v. CHECKER TAXI COMPANY et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—2447
    Opinion filed November 19, 1984.
    Schneider & Morrison, Ltd., of Chicago (Earl F. Schneider, R. Stephens Morrison, and Margaret Kinnally, of counsel), for appellant.
    Jesmer & Harris, of Chicago (Chester L. Harris and Charles E. Tannen, of counsel), for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, Zulfiquar Ebrahim, appeals from the dismissal of his complaint against defendant Checker Taxi Co. and Calumet Insurance Co. On appeal, plaintiff argues the trial court erred in holding defendant was not required to provide plaintiff with uninsured motorist coverage.

We affirm.

According to plaintiff’s complaint, plaintiff leased a taxi from defendant. The following language was included in the leasing agreement:

“Lessor, although not responsible for Lessee’s operation of the Taxicab or damages or injuries resulting therefrom, provides public liability and property damage insurance (or equivalent indemnity) covering Lessor and Lessee, in the limits and of the types prescribed by ordinances of the City of Chicago and laws of the State of Illinois.”

Furthermore, plaintiff’s complaint alleges that on September 20, 1982, he was involved in an accident with the driver of a “hit and run” vehicle. Plaintiff submitted a claim with Calumet Insurance Co., which denied coverage. Defendant filed an affidavit stating it has a surety bond for $50,000 on file with the city of Chicago.

The Insurance Code of Illinois provides in pertinent part:

“Sec. 143a. (1) On or after July 1, 1963, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, *** persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles ***.” (Ill. Rev. Stat. 1983, ch. 73, par. 755a(l).)

The Illinois Motor Vehicle Code provides that a common carrier provide “proof of financial responsibility” as an alternative to a policy of insurance. (Ill. Rev. Stat. 1983, ch. 95^2, par. 8—101.) The filing of a surety bond satisfies the required proof of financial responsibility. (Chicago Municipal Code sec. 28—12 (1983).) The issuance of the bond as specified in defendant’s affidavit satisfies the statutory requirement for a bond. Ill. Rev. Stat. 1983, ch. 95½, par. 8—104—1.

In Hill v. Catholic Charities (1983), 118 Ill. App. 3d 488, 492, 455 N.E.2d 183, we held the statutory requirement to offer uninsured motorist coverage applied only to insurance companies issuing policies and not to organizations acting as self-insurers. In the case at bar, defendant is not an insurance company issuing policies. Therefore, there is no statutory requirement that defendant offer its lessees uninsured motorist coverage. Furthermore, we conclude that defendant did not assume the responsibility of uninsured motorist coverage in its lease with plaintiff.

The contract between the parties specifies that defendant is not “responsible for Lessee’s operation of the Taxicab or damages or injuries resulting therefrom ***.” Therefore, defendant is disclaiming the role of plaintiff’s insurer. Rather, defendant assumes coverage only “in the limits and of the types prescribed by ordinances of the City of Chicago and the laws of the State of Illinois.”

In interpreting a contract, the court will seek a reasonable interpretation based on the language of the contract. (Tatar v. Maxon Con struction Co. (1973), 54 Ill. 2d 64, 294 N.E.2d 272.) There is a strong presumption against provisions which could have been easily included in the instrument. Iser Electric Co. v. Ingran Construction Co. (1976), 44 Ill. App. 3d 640, 358 N.E.2d 667.

In the case at bar, we conclude that the language of the contract indicates defendant was trying to limit its liability to the least acceptable under the applicable provisions of the laws of Illinois and the code of Chicago. We also believe it is reasonable to assume defendant was limiting its liability to that required of a common carrier and not to the liability required of an insurance company. Furthermore, if the parties had intended to include uninsured motorist coverage in the lease, that provision could have been easily included in the contract.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE LORENZ

text:
    NORWOOD BUILDERS et al., Plaintiffs-Appellants and Cross-Appellees, v. THE CITY OF DES PLAINES, Defendant-Appellee and Cross-Appellant.
    First District (5th Division)
    No. 83—0785
    Opinion filed November 21, 1984.

      Jack M. Siegel, of Chicago, for appellants.
    Klein, Thorpe & Jenkins, Ltd., of Chicago (Arthur C. Thorpe and Patrick A. Lucansky, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs appeal and defendant cross-appeals from an order declaring defendant’s zoning ordinance unconstitutional as applied to plaintiffs’ property and denying plaintiffs’ proposed uses as being unreasonable. They seek reversal of the trial court’s order.

For the reasons that follow, we affirm in part and reverse in part.

Pertinent to our consideration are the following.

Plaintiffs applied to the defendant’s zoning board of appeals for rezoning of their 38-acre tract of land to permit 2.2 acres for commercial use, 16.1 acres for multifamily residential use and 19.7 for light industrial and office use. Although the zoning board recommended approval of plaintiffs’ application, the defendant’s city council rejected the recommendation, whereupon plaintiffs filed their complaint seeking declarations that the present zoning, as applied to their property, was arbitrary and unreasonable and that their proposed uses for their property were reasonable.

At trial, plaintiff and proposed developer Raymond Adreani testified that he acquired the subject property from the Archdiocese of Chicago over a four-year span ending March 1981; that he had an estimated $2.2 million invested in the property; and that if successful in this action for declaratory relief, he would develop the site according to a plan prepared for him by Rolf Campbell, which would consist of office, research, industrial, commercial and multifamily residential uses.

William McCann, a realtor and appraiser, described the 38-acre subject property as located at the southeast corner of the intersection of Central and Wolf roads. There is a three-quarter acre parcel zoned as C-2 (commercial) containing an abandoned building at the corner. The balance of the property is zoned R-2 (residential) and currently vacant. The site has approximately 1,310 feet of frontage along Central Road, about 860 feet of frontage on Wolf Road extending south and about 1,200 feet along its eastern boundary. Adjoining the eastern boundary of the property in question are a city-owned parcel containing an aboveground water tank, Commonwealth Edison high-tension wires and Soo Line railroad tracks; the southern boundary adjoins land developed as M-2 (general manufacturing) and R-4 (multifamily residential). The southwestern border of the property abuts 13 single-family residences located on Polynesian Drive.

Rolf Campbell, an expert in city planning and zoning, testified that his plan consists of a commercially developed northwest corner (2.2 acres) to be developed as compatible with the three corners surrounding it which are all zoned C-2 (commercial) and which would not exceed 30,000 sq. ft. of gross leasable area. Three three-story condominium buildings totaling 90 units will back up to this commercial area and will also be adjacent to a retention lake to be created. A series of 15, eight-unit, two-story coach manor homes will be placed throughout the remaining multi-family residential property. Seven one-story buildings, which will together not exceed 300,000 sq. ft. of office/industrial space, are proposed for the site’s 19.7 acres of office/ light industrial uses, three on the east side of an extended Third Avenue and four on the west side. The exact size and number of these buildings will ultimately be determined by the actual users, but the height of these buildings will not exceed 35 ft. It was Campbell’s opinion that the plan itself followed the multi-use land use patterns and trends already established in the area; the plan could be laid out in accordance with all of the defendant’s standards. Further, it was Campbell’s opinion that the subject property’s corner was correctly zoned as C-2 (commercial), but that the R-2 (single-family) classification on the remainder of the site was incorrect.

Additionally, Campbell, Ralph Martin and William McCann, plaintiffs’ planning and real estate appraisal experts, testified that a mixed-use development is the highest and best use of the subject site due to the surrounding industrial, municipal, public utility, railroad, multiresidential, single-family and commercial uses which greatly affect the character of the site. They further opined that no adverse effect would occur on the property surrounding the site should plaintiffs’ plan be developed; that the land between commercial and light industrial development should not be developed as single-family residential, but rather as multifamily residential; and that adequate berming will be used to separate the on-site multifamily dwellings from the on-site office/light industrial uses. Regarding the M-2 and R-4 areas to the south of the site, they opined that although this area might have been a planning mistake, the plan’s proposed extension of Third Avenue north to Central Avenue would lead to the enhancement of this area. With regard to any traffic concerns, Gerald Lindgren, plaintiffs’ traffic expert, testified that the Illinois Department of Transportation planned to improve both Wolf and Central roads; that the proposed development will not have a deleterious effect on adjacent roadways; that the extension of Third Avenue is needed to further disperse traffic in the area, whether the site is developed as proposed or not; and that the extension of Third Avenue will also give the industry located to the south of the site direct access to Central Road.

Defendant’s experts, Gerald Estes, an architect and land planner and John Hoppe, a real estate appraiser, testified that the single-family homes in the area surrounding the subject site were uniform and well established; that single-family residential was the predominate land use of the surrounding area; and that plaintiffs’ plan of development was not only a clear departure from the existing single-family residential land use, but that it would have a deleterious effect on this “established” use. They opined that the subject site, as presently zoned, was in conformity with the predominate land uses and zoning of the area; that plaintiffs’ proposed uses were not compatible with the surrounding area from a planning viewpoint; and that the present single-family residential zoning represented the highest and best use of the property (with the exception of the small commercially zoned parcel) from a zoning/planning standpoint. In addition, the multifamily units located on the subject site’s southeast border which lie directly across from an industrial area act as a buffer between the industry and the single-family homes located to the west of these multifamily units.

Defendant’s traffic expert, Richard Beebe, testified that although he agreed with plans to extend Third Avenue, this extension would force fire trucks from the proposed fire station to drive through residential areas so as to service the industrial area located on the site’s southeast border; that the traffic generated by the proposed site would be deleterious to the surrounding areas; and that plaintiff’s plan for a private drive would in no way conform to the requirements for public streets, but that the city has the right to approve any proposed street plan. Further, he admitted that in doing his field work, he did not take into consideration construction work being done which could very well have substantially effected traffic backups which he testified had occurred at the intersection of Wolf and Central roads during rush hours.

Defendant’s other witnesses testified that the city does lease some land under high tension wires from Commonwealth Edison for community gardens and plots; that any perceived problems between the proposed plan and the city’s fire department’s access to the subject site could be solved if the road south of Central Road was linked up to a road on the southern portion of the subject site; and that the existence of light industrial property to the immediate south of the subject site might possibly be a detriment to any single-family homes developed on the site.

Following closing arguments on September 16, 1982, the trial court rendered an oral opinion from the bench. Thereafter, on October 18, 1982, the trial court entered a written order, to which it appended its prior oral opinion. This order specifically held that the zoning ordinance of the city of Des Plaines, as applied to the subject property insofar as it classified the subject property under the R-2 single-family residential classification, bore no reasonable relationship to the public health, safety, morals and welfare and was arbitrary, capricious, unreasonable and void; that the denial by the city of Des Plaines of the developer’s request for 2.2 acres of commercial use on the northwest corner of the subject site was also arbitrary, capricious and unreasonable, and directed the city to issue any and all permits subject to the strict requirements of the applicable ordinances to permit commercial construction containing at least 30,000 square feet under roof as proposed and testified to; and that the denial by the city of the multifamily residential and light manufacturing plans as proposed was proper. The court further directed the parties to confer on an appropriate use for the remaining unzoned property, using its oral opinion rendered on September 16, 1982, as a guide. The court retained jurisdiction for the purpose of reviewing the submission of the parties in accordance with the directions of the court, and to render such further orders in the premises as needed.

Following the trial court’s rendition of its order, additional evidence was heard from by both sides. Plaintiffs presented a revised plan for the subject site which retained the original plan’s commercial area of 2.2 acres (30,000 square feet of gross leasable space), but reduced the original 19.7 acres of office/research/light industrial space to 19.2 acres. The major change occurred in the multifamily residential area. In an attempt to alleviate the city’s concern with the original plan where the site’s manor homes abutted the 13 single-family Polynesian Drive homes on the site’s southern border, the revised plan increased the original three condominium buildings to four, for a total of 120 condominium units, while at the same time decreased the number of manor homes to 10 and added 13 single-family homes which will abut the Polynesian Drive homes. In addition, 30-foot landscape berms were added to buffer the proposed offiee/industrial area.

With regard to this revised plan, plaintiffs’ experts testified that it would have no material or adverse effect on the surrounding area; that the revised plan was the highest and best use of the subject site; that it was not deleterious to surrounding property value; and that it was a reasonable use. They further testified that all of their opinions regarding the original plan also applied to the revised plan.

The opinions of defendant’s experts regarding the incompatibility of the original plan with the surrounding area, the highest and best use of the subject site as being single-family residential, as well as the deleterious effect that this plan would have on the character of the surrounding area, were all echoed by its experts with reference to the revised plan introduced by Rolf Campbell.

Thereafter, following closing arguments, the trial court noted that it had previously struck down the single-family zoning on the site and approved the proposed expansion of the already existing commercial use on the southeast corner of Wolf and Central roads to 2.2 acres; and that the reopening of the proof in the case represented to the court an attempt to get the parties to engage in sensible innovative planning, but that it did not appear that this had taken place. Adopting and relying on its prior decision, the trial court found the revised plan’s changes insufficient to justify a change in its original position that the residential and light industrial purposes were unreasonable. On March 1, 1982, the trial court issued its final judgment order. It incorporated by reference the findings it made on October 6, 1982, except as modified, and reiterated its original holding that plaintiffs’ proposed use of 2.2 acres of the subject property for commercial purposes was reasonable, and that its original decision regarding the unreasonableness of the residential and light industrial uses remained unchanged, as any differences in plaintiffs’ original and revised plans were insignificant. Finally, the trial court reiterated its finding that the R-2 single-family designation for the subject property was arbitrary, capricious, unreasonable and invalid.

Plaintiffs appeal that portion of the court’s decision which found its proposed residential and light industrial use unreasonable. The city cross-appeals that portion of the court’s order which declared the R-2 zoning designation of the subject property invalid.

OPINION

The law in Illinois governing judicial review of zoning ordinances is well established. Zoning is primarily a legislative function, subject to judicial review only to determine “whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare.” (Exchange National Bank v. County of Cook (1962), 25 Ill. 2d 434, 440, 185 N.E.2d 250.) A zoning ordinance is presumptively valid, and the burden of proving its invalidity falls on the one who attacks the ordinance. (La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428, 312 N.E.2d 625.) To overcome this presumption of validity, the challenging party must establish by clear and convincing evidence that the ordinance, as applied to their subject property, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare. (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 111, 324 N.E.2d 406.) The validity of a zoning ordinance is tested pursuant to the reality of the application of the specific proposed use to the property in question. (Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 53, 426 N.E.2d 1276.) After showing that an existing zoning ordinance is invalid as to the property in question, the challenger must then show that the specific proposed use is reasonable. Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 379-80, 167 N.E.2d 406; Mangel & Co. v. Village of Wilmette (1969), 115 Ill. App. 2d 383, 394, 253 N.E.2d 9.

Where it appears, from all the facts, that room exists for a difference of opinion concerning the reasonableness of a classification, the legislative judgment must be conclusive. (Krom v. City of Elmhurst (1956), 8 Ill. 2d 104, 107, 133 N.E.2d 1.) “However, the fact that there is a difference of opinion among the witnesses — lay and expert — , does not mean that the court must find that the reasonableness of the ordinance is debatable and, hence, uphold the ordinance. In cases of this nature, a court must expect differences of opinion. It is for the court to determine from all of the facts whether the differences of opinion are reasonable and justifiable.” (Fiore v. City of Highland Park (1966), 76 Ill. App. 2d 62, 71, 221 N.E.2d 323.) In a trial without a jury where the testimony is contradictory, the weight to be given to that testimony is a matter for the trial court, and its findings will not be disturbed unless manifestly against the weight of the evidence. Aurora National Bank v. City of Aurora (1976), 41 Ill. App. 3d 239, 244, 353 N.E.2d 61.

Plaintiffs initially contend that the trial court erred in holding that the residential and office/light industrial uses proposed for the subject property were unreasonable. They further posit that this decision was inconsistent with the findings made by the trial court that the residential classification of the site was invalid.

Conversely, defendant contends that the trial court was correct in its decision that the proposed plan was unreasonable. It is defendant’s position that plaintiffs have failed to set forth a specific proposed use of the subject property that is reasonable.

As we stated earlier, courts do not possess the power to zone or rezone property since that function properly belongs to a legislative, and not a judicial, body. (Treadway v. City of Rockford (1962), 24 Ill. 2d 488, 493, 182 N.E.2d 219.) Since the practical effect of declaring an existing zoning ordinance invalid with respect to a particular piece of property is to leave that piece of property unzoned, the trial court should frame its order with reference to a specific proposal before it if it finds that the contemplated use is reasonable. (Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 379-380, 167 N.E.2d 406; La Salle National Bank v. City of Chicago (1970), 130 Ill. App. 2d 457, 460, 264 N.E.2d 799.) However, where the record fails to show any evidence of the use proposed, the trial court cannot frame its decree with reference to the record before it, and a declaration of invalidity will, in effect, leave the property unzoned. Reeve v. Village of Glenview (1963), 29 Ill. 2d 611, 616, 195 N.E.2d 188; Dolton v. Village of Mundelein (1967), 86 Ill. App. 2d 245, 249-50, 229 N.E.2d 681.

Before we address the reasonableness of plaintiffs’ revised plan, we must first consider whether the record presents us with a proposed use specific enough to enable the trial court to frame its order. Defendant argues that plaintiffs, through their pleadings and the testimony of their witnesses, never committed themselves to any specific use for the office/light industrial portion of the subject property. It further argues that plaintiffs’ witnesses testified the uses proposed would be those permitted under the city’s M-2 and C-2 zoning districts and that this constitutes a request to rezone the premises according to the respective classifications, a power clearly not within the realm of the trial court.

Plaintiffs heavily rely upon Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 167 N.E.2d 406, and its companion cases, Franklin v. Village of Franklin Park (1960), 19 Ill. 2d 381, 167 N.E.2d 195, and Nelson v. City of Rockford (1960), 19 Ill. 2d 410, 167 N.E.2d 219, where our supreme court considered the undesirable consequences of leaving property unzoned by declaring the existing ordinance invalid, and empowered the trial court to avoid such consequences by framing its judgment with reference to the record before it. Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 378-79, 167 N.E.2d 406.

In Franklin v. Village of Franklin Park, the supreme court affirmed a lower court’s decree which invalidated the village ordinance as to any zoning which prohibited commercial or light industrial use. The court rejected Franklin Park’s argument that a declaration of invalidity necessarily returned the matter to the legislative body for rezoning. Citing Sinclair Pipe Line, the Franklin court held that where the evidence that was offered in the case concerned the compatibility of commercial and light industrial uses with uses on the surrounding property, “[t]he court may frame its judgment to effectuate its findings as to the rights of the parties.” Franklin v. Village of Franklin Park (1960), 19 Ill. 2d 381, 385.) This resolution avoids two problem situations: where the land is left unzoned and the plaintiff is free to use his land for uses not contemplated at trial, and where the village rezones to another classification that would still exclude most commercial and industrial uses.

In Nelson v. City of Rockford, plaintiffs’ complaint stated their desire to utilize the subject property for such uses as were permitted in “local business districts,” but also alleged their purpose to “ ‘construct a drive-in restaurant which would include one building for the preparation and service of food and articles incidental thereto.’ ” (Nelson v. City of Rockford (1960), 19 Ill. 2d 410, 413.) The lower court’s judgment allowed plaintiffs to erect a drive-in in substantial conformity with the plaintiffs’ exhibits, and restrained plaintiffs from using or building any structures not in substantial conformity with the exhibits. (Nelson v. City of Rockford (1960), 19 Ill. 2d 410, 413-14.) The supreme court in Nelson also cited the Sinclair Pipe Line case and stated:

«*** the plaintiffs’ proof with respect to the fitness of the property for uses other than those permitted under the existing ordinance centered entirely upon the specific use with which the judgment concerned itself. Having induced the entry of a judgment upon that basis, the plaintiffs can not object to a judgment framed to meet the proof adduced at the trial.” (Emphasis added.) Nelson v. City of Rockford (1960), 19 Ill. 2d 410, 414.

Plaintiffs at bar counter with their position that they do not seek rezoning of the subject property to the defendant’s M-2 classification. They strenuously argue that, through their declaratory judgment action, they seek to invalidate the ordinance in question only insofar as it prohibits the development of a 16.7-acre multifamily residential area composed of 13 single-family homes, 10 eight-unit manor home buildings and four 30-unit condominium buildings, a 2.2-acre commercial retail area in a single one-story building to include a maximum of 30,000 sq. ft. of gross leasable space and approximately 19 acres of light industrial/office and research uses in one-story buildings (maximum height 35 feet) having a maximum total floor area of 300,000 square feet, which would meet the requirements of the C-2 and M-2 classifications of the Des Plaines zoning ordinance. Further, it is plaintiffs’ position that nothing in the Sinclair Pipe Line case, or the cases following it, required that a “plan” as opposed to a “use” must be presented in order that a decree could be framed with reference to the record before it. We agree.

We have carefully considered those cases cited by defendant and find that they do nothing to bolster its position that plaintiffs have not presented a specific use contemplated for the subject property. Although the cases relied upon by the city, Reeve v. Village of Glenview (1963), 29 Ill. 2d 611, 195 N.E. 188, Harshman v. City of DeKalb (1965), 64 Ill. App. 2d 347, 212 N.E.2d 146, and Dolton v. Village of Mundelein (1967), 86 Ill. App. 2d 245, 229 N.E.2d 681, correctly restate the Sinclair Pipe Line holding regarding the court’s ability to frame its decree according to the record before it, the focus of these cases is the failure to present any substantial evidence of a specific proposed use.

We distinguish Reeve, Harshman and Dolton from the instant case. In the case at bar, we are presented with a record which clearly indicates a specific proposed use. The record is replete with testimony of plaintiffs’ witnesses that they propose specific commercial (retail), residential (single-family/multi-family), and light industrial and office/research uses for the subject property, as well as with testimony regarding the compatibility of these proposed uses with those of the surrounding properties. (See Franklin v. Village of Franklin Park (1960), 19 Ill. 2d 381, 167 N.E.2d 195.) Plaintiff developer Andreani testified that he would develop the site in accordance with plaintiffs’ exhibits 5, 16 and A, all admitted into evidence. In addition to these three plans, photographs representing the manner in which plaintiffs intended to develop the condominium and light industrial office research areas were introduced, although the trial court admitted only those photographs relating to the proposed condominium units. Our careful examination of the record leads us to conclude that the trial court misjudged the admissibility of plaintiffs’ photographs depicting the Kensington Office Development, and should have allowed these photographs into evidence as they were relevant to the specific uses proposed for this area of development. Further, plaintiff Adreani’s testimony that the proposed development would comply with the city’s regulations of C-2 and M-2 zoning districts is in addition to the other evidence contained within the record, and can be interpreted more specifically to refer to setbacks, lot sizes and parking regulations for each classification.

In conclusion, we do not perceive this as a situation whereby the court would usurp the zoning/rezoning power inherent within the legislative branch; if this was the case, the record would speak only in terms of particular zoning classifications: C-2, R-4 or M-2. We conclude that the trial court’s oral finding that no fixed “plan” exists for this proposal was against the manifest weight of the evidence, as we find this record to contain proposed uses specific enough to have enabled the trial court to frame its decree with reference to it.

We now turn to consider the reasonableness to these specific proposed uses. Both parties agree that to do so requires that we review the record in light of the well-established factors enunciated by the supreme court in LaSalle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, which are: “(1) [t]he existing use and zoning of nearby property [citations], (2) the extent to which property values are diminished by the particular zoning restrictions [citations], (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public [citations], (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner [citation], (5) the suitability of the subject property for the zoned purposes *** [citations] and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. [Citations.]” Two additional factors to be considered are: (1) the care with which the community has undertaken to plan its land use development, and (2) the evidence or lack of evidence of community need for the proposed use. Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 378, 167 N.E.2d 406.

Although no single standard is determinative (Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 54, 426 N.E.2d 1276), of paramount importance is the factor relating to the existing use and zoning of nearby properties. (Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 381, 402 N.E.2d 719.) In this context, plaintiffs argue that the subject property takes its character from the multiple uses surrounding it, and that the proposed development is really an extension of the already existing zoning. In addition to the uses proposed for the site which abut similar external uses already established, it is plaintiffs’ position that the subject site’s manor homes will act as an internal buffer between the site’s 13 single-family homes and four condominium buildings. Conversely, defendant argues that the subject site should remain predominately single-family residential because most of the four quadrants surrounding the site have single-family uses.

We believe that the evidence presented in the instant case with respect to surrounding uses supports the trial court’s findings that: (1) the subject site draws at least some of its character from the already existing industrial, multifamily and commercial uses in close proximity to the site; (2) at least a portion, if not all, of the north-south leg of this site should be used as a logical continuation and ending of the industrial and multi-uses directly to the south and west of the north-south leg of the site; (3) the north-south leg of the site takes its character from the light industrial uses to its south, the multifamily use to its west, the high tension wire and railroad easement uses to its east and the sewage treatment uses to its north; (4) that it is logical to extend the industrial and multifamily uses north either to defendant-owned parcel or Central Avenue; and (5) that the site should not remain entirely residential by reason of the fact that there are already industrial, multifamily and commercial uses in close proximity to the property.

Defendant argues that plaintiff’s development would encourage a similar type of development on the vacant land located across Central Avenue to the north of the subject site. In the present case, the trial court found Central Avenue to be an obvious zoning transition line between the subject site and all property north of Central Avenue. We agree with the trial court’s finding on this point. Heavily travelled roads have often been used to make transitions between zoning uses. See Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 381, 402 N.E.2d 719.

Although each zoning case must be decided upon its own facts (Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 54, 426 N.E.2d 1276), defendant relies heavily upon Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899, and Chicago & North Western Ry. Co. v. City of Des Plaines (1968), 97 Ill. App. 2d 201, 240 N.E.2d 280. We find both cases easily distinguishable from the instant case.

In Tomasek, the property in question was surrounded by single-family homes, campgrounds, forest preserve, a public works garage and land which was zoned M-2 (manufacturing). The Tomasek court found the surrounding properties residential in character, and that the plaintiffs’ proposed uses would severely alter if not destroy the predominately residential quality of the neighborhood. (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 181.) In the present case, however, we are presented with established multifamily and light industrial uses which abut the subject site and greatly contribute to the site’s mixed use characteristic.

In Chicago & North Western Ry. Co., plaintiff sought an industrial use adjacent to the west of its railroad tracks. The appellate court noted that the tracks were on an embankment 6 to 10 feet higher than the property in question, and that the embankment acted as a buffer between existing industrial uses to the east and the property in question to the west. The court characterized the westerly property as residential, and concluded that industrial use would be incompatible. (Chicago & North Western Ry. Co. v. City of Des Plaines (1968), 97 Ill. App. 2d 201, 207-09.) However, in the present case, we were presented with testimony that only 14 single-family building permits had been issued by defendant since 1980; that substantially all of the single-family development surrounding the subject site had been built at least 10 years prior, and that overhead power lines and railroad tracks, like those located directly to the east of the site, are more often than not considered “industrial” in nature. Further, no testimony was given by defendant’s witnesses pertaining to any planned use of this power line easement area for recreational purposes. In addition, defendant’s planning expert testified that, in terms of area, less than 50% of the area bound by Central, Wolf, Rand roads and the railroad tracks was single-family residential, and admitted that a heavily travelled road can form a logical division between zoned areas.

In the present case, the trial court’s findings regarding the surrounding uses of the subject site indicate that plaintiffs’ proposed uses were reasonable, yet after considering all factors, the trial court found these uses were unreasonable. Therefore, we must now turn to the remaining factors so as to determine whether the trial court’s conclusion as to the unreasonableness of plaintiffs’ proposed uses is borne out by the application of these additional factors.

The next factor is the extent to which the value of the subject property is diminished by the zoning ordinance. Plaintiffs’ expert testified that the site itself is worth approximately $1.3 million more under the revised plan. The finding by the trial court that there was no question that the present zoning restriction reduces the value of the subject site is fully supported by the record. Furthermore, in most instances in which the validity of a zoning ordinance is challenged, the property is worth more if the ordinance is not in effect. See Grobman v. City of Des Plaines (1975), 59 Ill. 2d 588, 595-96, 322 N.E.2d 443.

Defendant argues that plaintiffs’ loss is self-imposed because Adreani, a skilled and knowledgeable developer, was aware of the residential zoning of the property when he purchased the land. Although it is true that a purchase in the face of a pre-existing zoning restriction is a factor to be considered (American National Bank & Trust Co. v. City Chicago (1964), 30 Ill. 2d 251, 195 N.E.2d 627), it is also true that a purchaser is not precluded from challenging a restriction for this reason alone. (Bolger v. Village of Mount Prospect (1957), 10 Ill. 2d 596, 602, 141 N.E.2d 22.) It is not merely the diminution in value that we must consider, but whether this diminution will promote the health; safety, morals or general welfare of the public. We must also balance the relative gain to the public as compared to the hardship imposed upon plaintiffs by the zoning restriction. We will consider these points together.

Plaintiffs argue that no public good is promoted by their inability to construct the proposed development. Defendant posits that the neighbors of the site have a right to rely on its current zoning; that the traffic volumes will be detrimental; and that the density on the site will pose a problem for the adjoining community.

In the case at bar, several homeowners from the Polynesian Drive and Craig Manor subdivisions testified that they had purchased their single-family homes in reliance upon the single-family zoning of the subject site; they felt their own property values would diminish should the original proposed development be completed. These homeowners did not testify as to the revised plan; however, it is evident from their testimony concerning the original proposal that they were not sure what plaintiffs proposed to erect on the site. Although we can consider and respect the opinions of the surrounding homeowners, property use cannot be limited merely because neighbors so desire to because it is their belief that it might protect the value of their homes. See Regner v. County of McHenry (1956), 9 Ill. 2d 577, 582, 138 N.E.2d 545, and Oak Lawn Trust & Savings Bank v. City of Palos Heights (1983), 115 Ill. App. 3d 887, 893, 450 N.E.2d 788.

Plaintiffs’ experts testified that no detriment to the value of the surrounding homes would occur, as the uses proposed by plaintiffs were already in existence in close proximity to the subject site. In contrast, defendant’s experts testified that the revised proposal would lead to a detriment in the value of the surrounding properties. Specifically, its real estate expert testified that the proposed site would have a depreciating effect on the single-family homes located on the north side of Polynesian Drive, but gave no percentages of depreciation in conjunction with his opinion. Yet, these homes would back up to the site’s 13 single-family homes, a plan favored by defendant’s own planning expert. Further, this real estate expert opined that the existing multifamily units located across from the north-south leg of the proposed site would experience a 5-6% depreciation, a decrease from his original estimate resulting from additional berms proposed by plaintiffs which would be placed between the multifamily units and the proposed site. These estimates of depreciation were made without the benefit of appraisals.

With regard to defendant’s concern about traffic problems, we believe there was sufficient evidence to support the trial court’s finding that there were adequate gaps along the highways and sufficient highway capacity to permit the use of Central and Wolf roads, two major arterial highways, if this property was developed as proposed. Further, there is no question that the extension of Third Avenue will provide adequate access to the proposed office/light industrial area. In addition, plaintiffs’ traffic expert testified that none of the site’s commercial or industrial traffic would infiltrate the existing residential areas.

Finally, with respect to defendant’s density concerns, it argues that the regulation of density is a legitimate object of the police power. While we agree with defendant’s restatement of this legal theory, our review of the record reveals that plaintiffs’ planning expert testified that in the event that density requirements were not met by the proposed plan, the number of proposed units would be reduced. Further, Adreani testified that he would build the streets of the development to conform with defendant’s ordinances, and would be willing to build a smaller number of units in order to comply with defendant’s regulations on street construction. We therefore find defendant’s concerns regarding a density problem unwarranted.

We next consider the fourth LaSalle factor, which is relative gain to the public as compared to the financial hardship which present zoning imposes upon plaintiffs. As we discussed above, very little gain if any to the general public appears from the present R-2 zoning of the subject site; rather, it would appear that the public interest would be better served by the completion of this proposed development due to the increased tax base it will bring to concerned taxing districts, which will, in turn, assist these districts in spreading their costs over a much higher-valued area. In addition, the extension of Third Avenue will help promote greater traffic flow in the area. In the present case, plaintiffs have experienced a loss in the value of their property, along with an obligation to pay taxes on the site. Without a correlative public gain in the promotion of public health, safety, morals or general welfare, plaintiffs’ loss in value becomes significant. La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 309, 388 N.E.2d 388.

The trial court found that the raw land itself was equally suitable for residential development as well as plaintiff’s proposed development. However, we must also consider the evidence in this area in light of the experts’ testimony pertaining to the costs involved in the preparation of this land for single-family dwellings. Plaintiffs’ experts found the property unsuitable for single-family residential development due to the industrial development to its immediate south, the proposed extension of Third Avenue, and the municipal ownership of the water tank and proposed fire station at the corner of Central Road and Third Avenue. They testified that because uses of the area immediately surrounding the subject site are mixed, the site itself should also be developed with mixed uses. In addition, they stated that the market for single-family homes was nonexistent and that even if the market was more favorable, the R-2 zoning of the site was still not the highest and best use; that land use conditions were not conducive to the development of 37 years of single-family dwellings; that Des Plaines was a multi-purpose community; and that it would cost the instant developer $22,000 to improve a raw lot on this site.

Defendant’s experts testified that the proposed plan would have a deleterious effect on the established single-family use of the area; that the existence of light industry to the immediate south of the site might possibly be a detriment to any development of single-family homes; and that a single-family home on an improved lot within this site would have to be marketed at a cost of $152,000. Defendant’s real estate expert was not familiar with any homes which had been sold in the city for that price in the last two years, and further did not believe a single-family home on this site and in this price range could sell. In addition, testimony by defendant’s director of municipal development that single-family residential was the best use of this property was admittedly based on defendant’s comprehensive plan, which, if proved wrong, could also negate the director’s opinion. Defendant’s experts’ opinions as to the suitability of the site for single-family residential is contradicted by its own real estate expert’s testimony that single-family homes on this site, priced at $152,000, would not sell.

We next turn to consider the length of time the subject site has been vacant as zoned, considered in the context of land development in the area in the vicinity of the subject site. The record reveals that the Archdiocese purchased the site in 1955, but had never attempted to develop it as single-family residential. Although the Church never advertised the property for sale, the director of Catholic Cemeteries testified that it was “general knowledge” in the area that the property was available, and Mr. Adreani’s offer was the only offer received by the Church. Further, Adreani himself advertised the site for sale “as zoned” in July and August 1980, but received no offers. He did not hold legal title to the property until 1981, and since that time, he has not listed the property with a broker. However, defendant’s own real estate expert admitted his doubts as to the ability of a developer to sell any single-family homes on this site for the requisite $152,000 needed to attain some margin of profit. In addition, defendant’s witnesses testified as to the low number of single-family building permits issued by defendant in the intervening years since Adreani had acquired title. We believe the record indicates that plaintiffs have established that the property remained vacant and undeveloped because of its R-2 zoning classification.

Finally, we will consider the community need for the use proposed and the care with which the community has undertaken to plan its land use development. Regarding the first of these, plaintiffs’ experts, as well as defendant’s real estate expert, testified that there was at best a limited need for single-family residential homes in Des Plaines. It has also been established that there has been very little activity in the building of single-family homes in the area. Plaintiffs’ witnesses have also provided testimony that the proposed residences will be both marketable and affordable. Defendant presented testimony as to the leasable industrial space available within its boundaries. We note, however, that lack of community need alone, even if demonstrated, will not sustain a restriction against a proposed use. (See Locker v. City of McHenry (1967), 89 Ill. App. 2d 457, 463, 231 N.E.2d 685.) Regarding the second, although it is true that defendant had a comprehensive plan which was adopted in 1977, its director of planning and zoning testified that 90% of all single-family homes located in the four quadrants surrounding the subject site were already in existence in 1977, and opined that the “River’s Edge” manor home development was a “good use” even though it was developed after the comprehensive plan was adopted on land designated on the plan as “open space.” Further, the record reveals that both plaintiffs’ land planner and defendant’s director of planning and zoning had proposed plans in which the site was to be developed into areas with uses similar to those proposed by plaintiffs.

Based on our consideration of all of the above factors, in conjunction with our determination that the trial court erred in its finding that plaintiffs’ proposed uses were not specific enough to enable the trial court to frame its decree in light of these uses, we find that plaintiffs have proven by clear and convincing evidence that the proposed uses were reasonable. We conclude that the trial court’s finding that plaintiffs’ proposed plan of residential and office/light industrial development would not be compatible and reasonable in its application to the subject site was against the manifest weight of the evidence, and we reverse the trial court on this point. In addition, we find that the trial court erred in approving 2.2 acres for commercial use and rejecting the remainder, because a court may only frame its decree upon plaintiffs’ plan as a whole. (See Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 167 N.E.2d 406.) We therefore find plaintiffs’ entire proposed use is both specific and reasonable.

Further, in its cross-appeal, defendant contends that on this record, the present C-2 and R-2 zoning classification should be upheld as to the whole of the subject premises. We do not agree. Affirmance of the trial court’s finding as to the invalidity of defendant’s R-2 classification on plaintiffs’ property is warranted in light of our above application of the La Salle factors.

For the reasons above, we (1) affirm the trial court’s finding as to the invalidity of defendant’s R-2 classification as applied to the subject property, (2) reverse the trial court’s finding that only the commercial portion of plaintiffs’ plan was reasonable, and (3) conclude that plaintiffs’ entire proposed use is both specific and reasonable.

Affirmed in part and reversed in part.

SULLIVAN and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE LINN

text:
    MARTIN L. DE FOOR, Plaintiff-Appellee, v. NORTHBROOK EXCESS & SURPLUS INSURANCE COMPANY, Defendant-Appellant.
    First District (4th Division)
    No. 83—2901
    Opinion filed November 21, 1984.

      Ronald A. Strohm, of Leahy & Eisenberg, Ltd., of Chicago, for appellant.
    Warren Lupel, of Lupel & Amari, of Chicago (Anthony Giglio, of counsel), for appellee.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Plaintiff, property vendee, pursuant to a sales agreement that required him to insure the subject property for the benefit of the vendors, purchased a fire insurance policy from defendant insurer, listing as named insureds himself and the vendors. The policy contained an “Other Insurance” clause, limiting defendant’s liability to a pro rata share in the event the named insured procured other insurance. Unbeknownst to plaintiff, the property vendors purchased insurance on the subject property from two other insurance companies, whereon plaintiff was not a named insured.

Following a fire, plaintiff and the property vendors filed a claim under the policy issued by defendant. The property vendors also made claim under their other policies. Defendant, claiming that the separate policies held by the property vendors constituted “Other Insurance” as to plaintiff, made only a prorated payment of loss, collectively, to the three named insureds.

Plaintiff brought an action to recover the difference between the entire agreed-on building damage and the prorated payment, claiming that the other policies held by the vendors did not constitute “Other Insurance” as to him.

The trial court granted plaintiff’s motion for summary judgment, and defendant appeals.

We affirm the decision of the trial court.

Background

Plaintiff, Martin L. DeFoor, contracted with Ladislav and Beverly Vyskocil to purchase a building. The purchase agreement required plaintiff to insure the subject premises for the benefit of the vendors. Accordingly, plaintiff purchased a fire insurance policy from defendant, Northbrook Excess & Surplus Insurance Company (Northbrook), listing as named insureds himself and the Vyskocils. The Northbrook policy contained an “Other Insurance” provision, limiting Northbrook’s liability to a pro rata share in the event other insurance was written “in the name of the insured.”

Without plaintiff’s knowledge or consent, the Vyskocils purchased two separate policies on the subject property, one from St. Paul Surplus Lines Insurance, and the other from underwriters at Lloyds. These policies listed only the Vyskocils as named insureds.

Subsequently, a fire broke out on the subject property, resulting in loss and damage in the amount of $48,608. Plaintiff and the Vyskocils both made claims under the Northbrook policy. The Vyskocils also made claim under their two separate policies of insurance. Defendant, claiming that the two separate policies held by the Vyskocils constituted “other insurance” as to plaintiff, as well as to the Vyskocils, refused to pay plaintiff the full amount of the fire loss. Asserting that all three named insureds were entitled only to a prorated portion of the entire loss due to the triggering of the “Other Insurance” clause, Northbrook paid plaintiff and Vyskocils, collectively, the proportionate sum of $28,481.25..

Plaintiff brought an action against Northbrook for breach of the insurance contract, praying for $20,126.75, the difference between the full amount of the building loss and damage and the proportionate payment made by Northbrook. Plaintiff moved for summary judgment on the grounds that the other policies held by the Vyskocils did not constitute “Other Insurance” as to him as contemplated by the clause in his policy. The trial court granted plaintiff’s motion and directed Northbrook to pay plaintiff the prayed for amount. It is from this order granting summary judgment that Northbrook now appeals.

Opinion

On, appeal, it is our task to determine if the trial court’s grant of summary judgment was proper. Summary judgment is properly granted when the pleadings, depositions, and admissions, on file, together with any affidavits, establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Lesnik v. Estate of Lesnik (1980), 82 Ill. App. 3d 1102, 403 N.E.2d 683.) This reviewing court must therefore decide whether the trial court correctly found that no genuine issue of material fact has been raised, and if none was raised, that the plaintiff was entitled to judgment in his favor as a matter of law. Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 414 N.E.2d 865.

We need not concern ourselves here with the first level of inquiry in determining the propriety of the trial court’s grant of summary judgment, for the facts of the instant case are undisputed. There is clearly no genuine issue as to any material fact. The only issue before us is legal in nature, namely, whether the two policies of insurance held by the Vyskocils as property vendors constitute “Other Insurance” as to plaintiff, the property vendee, pursuant to the provision in the Northbrook policy. In order to find that the trial court was correct in granting plaintiff’s motion for summary judgment, we must determine, as did the trial court, that the policies held by the Vyskocils did not, as a matter of law, constitute “Other Insurance” as to plaintiff.

We begin our inquiry with an examination of the language in the “Other Insurance” provision contained in the policy of insurance issued to plaintiff and the Vyskocils by Northbrook. That provision reads as follows:

“8. Other Insurance
(a) If at the time of loss there is other insurance written in the name of the insured upon the same plan, terms, conditions and provisions as contained in this policy, herein referred to as Contributing Insurance, the Company shall be liable for no greater proportion of any loss than the limit of liability under this policy bears to the whole amount of insurance covering such loss, (emphasis added)
(b) If at the time of loss there is other insurance other than that as described in (a) above, the Company shall not be liable for any loss hereunder until:
(1) the Liability of such other insurance has been exhausted, and
(2) then for only such amount as may exceed the amount due from such other insurance, whether collectible or not.”
“Other insurance” has been defined by Couch as follows:
“By definition, other or double insurance exists where two or more policies of insurance are effected upon or cover the same interests in the favor of, or for the benefit of, the same person.
As all of these conditions must concur, it follows that if different persons have different interests in the same subject of insurance, each may insure his interest "without effecting other or double insurance.” (9 Couch on Insurance sec. 37:1394 (2d ed. 1962).)

Thus, in order for us to find that the two policies held by the Vyskocils, under which plaintiff was not a named insured, constitute “other insurance,” defendant must be able to show that these policies cover (1) the same interests, in (2) the same property, in favor of (3) the same person as does the Northbrook policy. We find that defendant has failed to make the requisite showing.

As with any contracts, the general rules of contract construction apply to insurance policies. (State Farm Mutual Automobile Insurance Co. v. Salerno (1984), 121 Ill. App. 3d 384, 459 N.E.2d 1075.) That construction of an insurance policy will be adopted which favors the insured and resolves any uncertainty in his favor. (Wahls v. Aetna Life Insurance Co. (1983), 122 Ill. App. 3d 309, 461 N.E.2d 466.) In interpreting insurance contracts, the words in the policy must be given their plain and ordinary meaning; the court should not search for ambiguity where none exists. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 429 N.E.2d 1203.) A policy provision is ambiguous if it is subject to more than one reasonable interpretation. (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 430 N.E.2d 641.) A policy is not ambiguous because a word or phrase is susceptible to one reasonable and one unreasonable interpretation. (Svec v. Allstate Insurance Co. (1977), 53 Ill. App. 3d 1033, 369 N.E.2d 205.) Where the words of an insurance policy are clear and unambiguous, the court should give effect to the obvious impact of those words. Dinges v. Lawyers Title Insurance Corp. (1982), 106 Ill. App. 3d 188, 435 N.E.2d 944.

It is undisputed that the three policies at issue, those of Northbrook, St. Paul, and Lloyds, cover the same property. We therefore need only determine whether the two policies held independently by the Vyskocils cover the same interests in favor of the same person. Because this latter factor may be determined by examining the plain language of the policy itself, we shall address it first.

In order to determine whether these various policies cover the same person, we need only look to the ordinary meaning of the words on the face of the Northbrook policy. Defendant states in its answer that it is paragraph 8(a) of the Northbrook policy, the pro rata clause, upon which it relies to limit its liability to plaintiff. Defendant contends that the two policies of insurance purchased by the Vyskocils from other companies, wherein plaintiff was not a named insured and of which plaintiff had no knowledge, were “other insurance written in the name of the insured” such as to render Northbrook not liable for any portion of the fire loss in excess of its pro rata share. This assertion convinces us that defendant has misinterpreted the plain and unambiguous language of paragraph 8(a).

The plain meaning of paragraph 8(a) is that only another policy written “in the name of the insured,” in other words, in favor of the same person, shall limit the liability Northbrook bears to the whole amount of insurance covering such loss. This phrase is not subject to more than one reasonable interpretation. The reasonable interpretation is that, in order for the additional policies to qualify as other insurance, both those policies and the Northbrook policies must be written for the benefit of or in favor of the same person. It would be unreasonable to interpret that phrase to mean that another insurance policy written in the names of certain insureds could constitute “other insurance” as to all insureds listed on the Northbrook policy, whether or not those other insureds were named on or beneficiaries of the additional policies. A policy written in favor of one person cannot reasonably be interpreted to constitute “other insurance” pursuant to a policy provision contained in a policy written in favor of an entirely different person, neither named nor a beneficiary of the additional policy.

It is undisputed that neither the St. Paul policy nor the Lloyds policy named Martin DeFoor as an insured. These policies were not written in his favor or for his benefit. The only named insureds listed on these policies were the Vyskocils, who contracted for them and paid the premiums. Thus, while these policies may constitute “other insurance written in the name of the insured” with respect to the Vyskocils, they are not other insurance written in favor of the same person in respect to plaintiff.

Having determined that the identity of person is not present under these facts, we turn to the question of identity of interest. In order to complete our analysis, we must determine whether the two policies held by the Vyskocils covered the same interests as the policy issued by Northbrook. Under the doctrine of equitable conversion, we must conclude that the interest covered by the policies purchased separately by the Vyskocils as property vendors was not the same as that covered by the policy purchased from defendant by plaintiff as the property vendee.

Under the doctrine of equitable conversion, once a valid, enforceable contract has been entered into, the vendee becomes the equitable owner of the real estate, and the vendor continues to hold the legal title to the real estate in trust for the vendee, with a lien on the land as security for the purchase money. (Kindred v. Boalbey (1979), 73 Ill. App. 3d 37, 391 N.E.2d 236, cert. denied (1980), 446 U.S. 912, 64 L. Ed. 2d 818, 100 S. Ct. 2933; Shay v. Penrose (1962), 25 Ill. 2d 447, 185 N.E.2d 218.) The interest of the vendor is a legal one, while the interest of the vendee is of an equitable nature. Thus, the interests of the vendor and the vendee are distinct and different, such that insurance by a vendee upon his own interest will not nullify insurance previously taken out by the vendor. 5 Appleman, Insurance Law & Practice sec. 3057 (1970); Vogel v. Northern Assurance Co. (3d Cir. 1955), 219 F.2d 409.

The principle of equitable conversion in the case of insurable interests was addressed in the venerable case Traders’ Insurance Co. v. Pacaud (1894), 150 Ill. 245, 37 N.E. 460, in which plaintiff, a grain transporter, purchased a fire insurance policy on some grain it had stored at a grain elevator company. The grain elevator operators took out policies on the grain in their own name for their “own and sole benefit, and the loss, in case of fire, was payable to them.” (150 Ill. 245, 251.) Fire destroyed the grain. Plaintiff's policy contained an “Other Insurance” provision similar in essence to the one at issue in the instant case. The court, addressing the issue of whether there was “other insurance” on the property within the meaning of the policy, stated as follows:

“We think it plain there was not. We think the provision for apportionment of loss if there should be other insurance, applies only where the insurance covers the same interest. That was not the case here. The plaintiffs insured their interest in the property and [the grain elevator operators] insured their interest. The one was separate and distinct from the other. The case is not different from what it would be if the two parties occupied the relation of mortgagor and mortgagee, where each may insure his own interest, and the insurance obtained by one has no connection with the insurance obtained by the other.
*** We understand the rule to be, that a provision for apportionment of loss if there is other insurance, applies only to cases where the insurance. covers the same interest. [Citations.]” (Traders' Insurance Co. v. Pacaud (1894), 150 Ill. 245, 252, 37 N.E. 460, 462.)

The Traders’ court, finding that the interests of the plaintiff grain owner and that of the grain elevator operators were separate and distinct, held that the insurance purchased by the grain elevator operators in their own name and for their own benefit could not be used to trigger the “other insurance” provision in the grain owner’s policy.

Here, as in Traders’, separate policies of insurance have been purchased by the vendee, to protect his equitable interest in the insured. property, and by the vendors, to protect their legal interest in the subject properly. These interests are separate and distinct. While both plaintiff and the Vyskocils, as vendee and vendors, have insurable interests in the subject property, the identity of interest requisite to support a finding that the policies held by the Vyskocils constitute “Other Insurance” as to plaintiff is not present under these facts.

Having found that the policy issued by Northbrook and the policies issued by St. Paul and Lloyds of London do not cover the same interest in favor of the same person, we must necessarily conclude that the policies of insurance held separately by the Vyskocils do not constitute “Other Insurance” as to plaintiff such as to limit his loss recovery to a pro rata share.

For the reasons stated above, the trial court was correct in finding that plaintiff was entitled to judgment in his favor as a matter of law and in granting his motion for summary judgment.

Accordingly, we affirm the decision of the trial court.

Affirmed.

JIGANTI and ROMITI, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOEL LEE, Defendant-Appellant.
    Second District
    No. 84—10
    Opinion filed November 26, 1984.

      G. Joseph Weller, Paul J. Glaser, and Jan K. Dargel, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Joel Lee, pleaded guilty to the offense of robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18—1), and the circuit court of Lake County sentenced him to four years’ probation, the first six months to be served in the county jail, and also required that he make certain restitution.

Subsequently, his probation was revoked, and he was sentenced to four years in the Department of Corrections, from which judgment he appeals.

The sole issue presented for review concerns the evidence presented at the hearing at which probation was revoked. The defendant contends that the State failed to prove by a preponderance of the evidence that he violated his probation because the only evidence linking him to certain burglaries came from an alleged accomplice.

At the hearing on the State’s petition to revoke the defendant’s probation, police officers from Zion testified that on November 1, 1983, they executed a search warrant at the defendant’s residence. The warrant was obtained following a conversation with David Chaney, who had lived with the defendant and his girlfriend, Shirley Domalick. Chaney testified that on September 23, 1983, he and the defendant had broken into Kathy Hanna’s house and had taken various items of property and had later left the stolen goods in the defendant’s room at Shirley Domalick’s house. Chaney further testified that on September 30, 1983, he and the defendant burglarized the Kraft residence and also took various items of property. According to Chaney, these items were similarly brought to Domalick’s house, where she watched as the goods were put away. Chaney stated also that the defendant had telephoned him four times and asked that he testify that it was Chaney who stole the items. The defendant denied making the calls.

The defendant was identified by the officers as the man who opened the door to them when they executed the warrant. A pat-down search of his person revealed a watch hooked to a chain. Defendant also removed a wallet, pocket watch, ring and necklace from his pockets. In addition to these articles, other property was found throughout the house and was identified as that taken in the two burglaries. When defendant was subsequently taken to the Zion police station, he denied involvement in the burglaries and said that someone had sold the property to him.

At the hearing, defendant testified that David Chaney had come to his residence in October 1983 and offered to sell him a pillowcase full of property. He stated that at the time he thought the property belonged to Chaney and his family and that Chaney was selling it because he planned to move again. He testified that his girlfriend had given him $50 to buy the property and that he promised he would pay Chaney an additional $25 in two or three weeks. Defendant further stated that when Chaney returned for the money and he did not have it, Chaney threatened to return with his father and break the defendant’s windows.

Shirley Domalick also testified that Chaney had come to her house to sell various items and that she had given the defendant $50 to buy them. She said that because she was drunk on the night the house was searched she did not remember telling one of the officers that Chaney and the defendant left early one morning and returned with a computer and jewelry.

On this evidence, the defendant’s probation was revoked, and he was sentenced to four years’ imprisonment on the original robbery charge.

The defendant argues on appeal that David Chaney was not a credible witness because he was an accomplice who was facing charges in juvenile court at the time of the hearing. He cites People v. Wilson (1977), 66 Ill. 2d 346, in support of his contention. The issue in that case, however, was whether testimony by an accomplice was sufficient to sustain a verdict of guilty beyond a reasonable doubt. It is well settled that a violation of the conditions of probation need be proved only by a preponderance of the evidence. (People v. Crowell (1973), 53 Ill. 2d 447, 451.) Even requirements of due process have been held to be less stringent in probation revocation proceedings than those required in a criminal proceeding. (People v. Palmer (1979), 74 Ill. App. 3d 130.) Additionally, the Wilson court stated that the rule that uncorroborated accomplice testimony is a sufficient ground on which the trier may base a conviction has found almost overwhelming favor in Illinois. (People v. Wilson (1977), 66 Ill. 2d 346, 349.) Whether accomplice testimony, corroborated or uncorroborated, is a satisfactory basis for a conviction goes to the weight of the evidence and is therefore in the province of the jury or court. Determination of the credibility of witnesses is a function of the trier of fact. (People v. Wilson (1977), 66 Ill. 2d 346, 349; In re Lane (1979), 71 Ill. App. 3d 576, 579.) It was only because the reasonable-doubt standard of proof was not met in Wilson that the decision of the lower court was reversed.

The defendant also relies on People v. Phoenix (1981), 96 Ill. App. 3d 557, and People v. Ross (1981), 103 Ill. App. 3d 883, as being analogous to the present case. In both Phoenix and Ross, the evidence supporting the defendants’ convictions of burglary and theft was based upon inferences arising from their possession of property recently taken in the burglaries as well as their attempted explanation for the possession. The courts reversed the burglary convictions, relying on the decision in People v. Housby (1981), 84 Ill. 2d 415, which set forth the proper use of the inference as related to burglary charges. The Housby court explained how an inference of guilt from the exclusive and unexplained possession of recently stolen property may be properly applied without infringement upon due process rights. Applying the Housby principles, the Phoenix court concluded that the reasonable possibility that the property had been taken by others and sold to defendant, with no other supporting evidence, precluded the defendant’s guilt of burglary from being inferred. (People v. Phoenix (1981), 96 Ill. App. 3d 557, 560.) Since the Ross court found the facts to be no stronger than those in Phoenix, it also reversed the trial court. (People v. Ross (1981), 103 Ill. App. 3d 883, 887.) However, it is highly significant that both cases, as in Wilson, dealt with the reasonable-doubt standard. To be noted is that the crime alleged in a petition to revoke probation is a separate offense. (People v. Jones (1980), 81 Ill. App. 3d 367.) Defendant’s cited authority, therefore, would have been more applicable to the trial of the underlying offense in the present case.

The defendant also relies upon the decision in People v. Arroyo (1969), 112 Ill. App. 2d 480, which stated that in a probation revocation hearing, the evidence of a violation must be “clear and convincing.” The Arroyo decision, however, preceded the supreme court’s holding in Crowell. The Crowell court specifically stated that the defendant’s reliance on Arroyo was without merit and clearly held that the quantum of proof required in proving a violation of probation was by a preponderance of the evidence.

In defendant’s reply brief, he cites the recent supreme court decision in People v. Ash (1984), 102 Ill. 2d 485. In Ash, the court was again concerned with the issue of sufficient evidence to support a finding of guilt beyond a reasonable doubt. It stated,

“[I]t is our duty, where a verdict of guilty is returned by a jury *** not only to carefully consider the evidence but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of defendant’s guilt and is not sufficient to create an abiding conviction that he is guilty of the crime charged.” (Emphasis added.) (102 Ill. 2d 485, 492-93, quoting from People v. Bartall (1983), 98 Ill. 2d 294, 305-06.)

For the same reasons stated above, defendant’s reliance on Ash is similarly misplaced.

If the State has introduced sufficient evidence to satisfy the preponderance of the evidence standard, the finding of a violation of defendant’s probation must be affirmed. (People v. Espero (1978), 65 Ill. App. 3d 133.) It has been stated often that the trial judge who hears the evidence is in a better position to weigh the testimony of the witnesses than is the reviewing court, and a court of review will substitute its judgment for that of the trial court only when the testimony is contrary to the manifest weight of the evidence and not where the evidence is merely conflicting. People v. Crowell (1973), 53 Ill. 2d 447, 451-52; People v. Guido (1962), 25 Ill. 2d 204, 208.

A review of the evidence in the present case supports the trial court’s judgment. Certain stolen items were found, not only in the defendant’s possession, but on his person as well. Shirley Domalick testified that she and the defendant were planning to marry and that he had been contributing toward living expenses. She also stated that she was charged with theft arising from possession of stolen property and that she was aware that the State was prosecuting the case against her. On cross-examination, when Domalick was shown her signature indicating that she had been given the Miranda warnings, she claimed that she was drunk when she signed it. Despite her alleged drunkenness, however, her testimony indicated that she remembered significant details of the events in question. The State impeached Domalick’s testimony with statements made by the Zion police department indicating that the defendant and David Chaney had left the apartment early on the morning of the date in question and had come back with jewelry, a camera and a computer. She was also impeached with statements at that time indicating that it was the defendant Lee and David Chaney who had committed the burglaries. Furthermore, one of the burglary victims was a woman for whom Domalick’s daughter baby-sat and for whom Domalick herself had baby-sat on one occasion. Although the defendant attacks Chaney’s accomplice testimony for credibility because Chaney was not yet sentenced himself, all of the above could certainly have influenced Domalick’s credibility in the eyes of the trial court. In probation revocation cases, the trial court has the duty and power to determine credibility of testimony. A trial judge is not obliged to accept the explanation of a defendant. Furthermore, any explanation by a defendant can be judged by its improbabilities. (People v. Wadelton (1980), 82 Ill. App. 3d 684.) Applying these principles, the evidence clearly supported the trial court’s judgment.

For the reasons stated, our review of the record indicates that the trial court’s decision to revoke the defendant’s probation was not against the manifest weight of the evidence, and the judgment of the circuit court of Lake County is affirmed.

Affirmed.

HOPF and NASH, JJ., concur.