author: TRAPP, J.

text:
    Ernest Anderson, Plaintiff-Appellant, v. William LeBeau and Helen LeBeau, Defendants-Appellees.
    Gen. No. 10,954.
    Fourth District.
    July 9, 1968.
    Rehearing denied August 22,1968.

      Ferguson & Ferguson, of Decatur, for appellant.
    Whitley & Suter, of Decatur, for appellees.
   TRAPP, J.

Plaintiff appeals from an order denying summary judgment and from a decree entered upon his amended complaint to cancel an agreement for sale of real estate and to recover back as earnest money payment, $2,000 with interest. The parties have elected to treat the contract as rescinded, and the sole issue is the recovery of the down payment. This appeal was filed in the Supreme Court, which ordered transfer here.

The amended complaint joined the defendants, LeBeau, husband and wife, hereinafter designated LeBeau, and one Doss, an attorney. As to the latter, the trial court, upon motion, entered judgment on the pleadings on August 23, 1962. No finding was made within the terms and provisions of chapter 110, § 50(2), Ill Rev Stats 1961, (now Supreme Court Rule 304, chapter 110A, § 304, Ill Rev Stats 1967). No appeal has been taken from the judgment order as to Doss.

While the action purports to be founded upon a written contract for the sale of real estate, the allegations of the pleadings concerned acts and arrangements not set out in such agreement. It is alleged that the contract was drawn under the direction and supervision of Doss. By its terms LeBeau acknowledged the receipt of the down payment of $2,000.

The complaint alleged that plaintiff made his check payable to Doss individually, but as agent of LeBeau until certain conditions affecting the closing of the sale had been met and Doss was notified to cash the check, i. e., the check was expressly subject to reaching an agreement for the sale of certain furniture, and there are allegations that there was a condition that Doss negotiate a loan for the benefit of LeBeau for the purpose of removing the lien of an existing mortgage. The complaint alleges failure to meet the conditions and that plaintiff never notified Doss to cash the check. As an exhibit, the check, dated September 12, 1959, shows that it was endorsed by Doss in his own name on September 22, 1959. The complaint at issue alleges the cashing of the check and in the alternative, appropriation of the proceeds by either Doss or LeBeau, or both of them.

In answer to certain interrogatories submitted by Doss, the plaintiff said:

“The $2,000.00 was paid conditionally by a check made payable to Attorney Dwight H. Doss, expressly made ‘subject to agreement on furniture,’ and delivered to Dwight H. Doss to be held by him until the agreement on the furniture was worked out and agreed to by plaintiff and the sellers and a loan to the LeBeaus or some financial arrangement to enable them to clear up a mortgage on the said property was made by Doss.”

Thereafter, the trial court, on Doss’ motion, dismissed the complaint as to him and ordered that the plaintiff take nothing by his suit, and that Doss go hence without day.

LeBeau filed answer setting forth as affirmative defense to the complaint that Doss was acting as agent or attorney for all parties to the contract, and that more particularly he was acting in a fiduciary capacity as escrow agent for the parties, that Doss cashed the check without the authority of any contract party, and that LeBeau did not receive any part of the proceeds. Plaintiff made no reply to such answer.

While plaintiff argues that Doss was the attorney for LeBeau in drawing the agreement, such was not, in fact, alleged. It is alleged that he supervised the drafting. It is argued that the answer of LeBeau admitted that Doss received the check as agent of the sellers. The allegation of agency deemed admitted is not supported by anything in the written agreement and is asserted as a conclusion of the pleader rather than as matters of fact sufficient to create an agency. The amended complaint itself alleges conditions to the contract that were not in the written agreement and the absence of authority given by plaintiff to cash the check. We have noted the answer of plaintiff to the interrogatory and that there was no reply to the affirmative defense alleging the status of Doss as fiduciary or agent for plaintiff.

Plaintiff urges that a reply to the affirmative defense was not required because the amended complaint alleged, albeit in the form of a conclusion, that Doss was agent for LeBeau. There was no motion by plaintiff to strike the claim of defense made affirmatively.

Since the written agreement made no reference to Doss as agent of LeBeau, the affirmative defense was not simply an argumentative denial of the terms of a written agreement, but introduced new matter. Handel v. Jordan, 57 Ill App2d 276, 207 NE2d 12; Allwood v. Cahill, 382 Ill 511, 47 NE2d 698.

The granting or the denial of plaintiff’s motion for summary judgment depends upon whether or not the pleadings, interrogatories and affidavits disclose the existence of an issue of material fact. The right to summary judgment should be free from doubt. Harp v. Gulf, H. & O. R. Co., 66 Ill App2d 33, 213 NE2d 632; RCA Service Co. v. A B Fireproofing Co., 84 Ill App2d 82, 228 NE2d 151. The affidavit in support of plaintiff’s motion for summary judgment is made by his attorney and essentially recites the allegations of the complaint rather than facts which would be admissible as evidence. The amended complaint at issue alleges delivery of the check payable to Doss personally upon conditions to be controlled by the plaintiff. Plaintiff’s answer to interrogatories, as well as the affirmative defense alleged and the affidavit of defendant, William LeBeau, assert essentially the same circumstances. It was not error for the trial court to determine that there was an issue of material fact under the allegations of the agency of Doss to be resolved.

Plaintiff argues that the court’s order denying summary judgment was error, relying upon a theory of res judicata, arising from asserted findings on the judgment on the pleadings as to Doss, that Doss was an agent of LeBeau. This position cannot be given serious consideration for two reasons. First, that judgment was entered upon Doss’ motion asserting failure to allege facts stating a cause of action, but only conclusions of law, and asserting that he could not, as an agent, be sued where the complaint showed that his agency for LeBeau was disclosed to plaintiff. Without a discussion of the scope and nature of such doctrine, we note briefly the statement appearing in 23 Illinois Law and Practice, § 381, p 419:

“If it appears that several distinct issues may have been before the court in the first action, and there is no clear indication on which of them judgment was rendered, the estoppel will not be applied, for the reason that the court may have decided on one of the other issues.”

Secondly, the asserted findings were not made by the court at the time of the order dismissing Doss, entered on May 31, 1962. Although file stamped as of the latter date, the record discloses that the decree with such finding was filed in June, 1967, and dated back. Plaintiff’s attorney makes affidavit that following determination to make this appeal the trial judge was requested to prepare a memorandum of his reasons for the decision on the Doss motion, that at the latter’s suggestion plaintiff’s attorney, together with the attorney for Doss, prepared the form of decree making the finding and entering judgment, . . in favor of said Dwight H. Doss in bar of action.” Such form of decree was filed without notice to defendants. Upon the latter’s motion to correct the record, the trial judge entered an order finding that said decree dismissing suit as to Doss was entered after the trial court had lost jurisdiction to enter the same, that the findings were without memorandum or docket entries to support them, and should not have been entered without notice to defendant. The court granted the motion of LeBeau to correct the record, ordering that the decree was deemed not properly entered as part of the official record in the case.

Issues arising from the argument upon res judicata are not properly present in this appeal. There was no amendment of the record within the provisions of Supreme Court Rule 329, chapter 110A, § 329, Ill Rev Stats 1967. That rule provides that omissions may be corrected by stipulation of the parties, or that the trial court may determine what the record actually discloses. The affidavit of plaintiff’s attorney shows that neither method was followed. The addition of the purported decree to the record cannot be made under the statutory authority of chapter 7, § 2, § 6 and § 7, Ill Rev Stats 1967, for the finding in question had the effect of “. . . altering the issue between the parties or the trial” and was not simply a matter of form. Fox v. Department of Revenue, 34 Ill2d 358, 215 NE2d 271.

Following the court’s ruling upon plaintiff’s motion for summary judgment, the cause was referred to a Master in Chancery for taking evidence upon the issue of LeBeau’s obligation to pay $2,000. The only testimony presented was that of plaintiff. The Master made findings that Doss was acting in behalf of the plaintiff as well as the defendants, and was an escrow agent or fiduciary with regard to the check given by plaintiff to him, and that the defendants were not legally obligated to pay to plaintiff the sum of $2,000. Plaintiff’s testimony, as well as the pleadings, makes it clear that he expected to control the cashing of the check in the hands of Doss, through conditions which plaintiff specified but which were not fulfilled. The record sustains a conclusion that Doss was an agent of the plaintiff, or a fiduciary, in the disposition of the check. The Master recommended dismissal of the complaint as to LeBeau. Objections to the Master’s report were overruled and a decree entered by the court dismissing the complaint with a finding that the plaintiff had made no reply to the affirmative defense and had failed to prove the material allegations of his complaint. The scope and substance of the evidence before the Master in Chancery have heretofore been discussed and the findings and the decree are not contrary to the weight of the evidence.

It appearing that the decree was entered following a determination of the cause upon its merits, plaintiff’s arguments with regard to the finding that there was an adequate remedy at law as against Doss may be treated as surplusage. There is no issue of whether equitable relief is appropriate as to such defendant absent an appeal from that judgment entered as to Doss.

The decree of the circuit court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MORAN, J.

license: Public Domain

text:
    Paul S. Knight, Plaintiff-Appellee, v. Q. B. Mitchell, Defendant-Appellant, and Fred C. Newman, Trustee, Account Q. B. Mitchell, Old National Bank, Ashland Oil & Refining Company, Defendants.
    Gen. No. 67-81.
    Fifth District.
    May 20, 1968.
    Craig & Craig, of Mt. Vernon (A. Ben Mitchell, of counsel), for appellant.

      Gosnell & Benecki, of Lawrenceville (Maurice E. Gosnell, of counsel), for appellee.
   MORAN, J.

This action was brought by Paul S. Knight, as coowner and operator of a certain oil and gas leasehold, against Q. B. Mitchell, as a coowner of this leasehold, to recover a pro rata share of certain costs expended for the operation and development of the oil wells located thereon. The defendant appeals from a decree entered allowing recovery for amounts expended for development of the leasehold, contending such expenditures were unauthorized, did not enhance the value of the lease, and were not necessary to preserve the leasehold. The defendant further appeals from the allowance of pro rata recovery for certain operating expenses which resulted from the unauthorized development procedure on the lease. The case was tried without a jury and there is no question raised on the pleadings.

The parties to this suit each owned a fractional interest in an oil and gas lease, comprising a sixty-three-acre tract referred to as the Mobley lease. Knight, who was the operator of the lease, held an %s interest while Mitchell controlled a 1%8 interest. Three other persons controlled the remaining shares. This lease arrangement began in 1955 and although the parties never entered into a written operator’s agreement, Mitchell testified that he agreed that Knight could operate the lease so long as it was operated satisfactorily. Knight recalled that the agreement was merely that he was to operate the lease.

Five wells were drilled on this property. In accordance with the oral agreement, Knight operated the lease and sent monthly statements to the various coowners based upon a pro rata sharing of the operating expenses. By July, 1965, the yield from the lease was minimal. Knight then engaged the services of a petroleum engineer to consider the possibility of attempting to produce from the Tar Springs formation in the No. 4 well by a method called “fracking.” The engineer’s opinion was that although there was a definite possibility that the process would result in a yield of water rather than oil, that such a risk was justifiable. He estimated that this “frack” would cost approximately $3,000 and under no circumstances should it cost more than $6,000.

On November 1, 1965, Knight sent Mitchell a copy of the engineer’s recommendation and asked if Mitchell would approve of the procedure. Mitchell did not approve and Knight, after receiving the approval of the other owners, had the No. 4 well tracked. The procedure proved unsuccessful and at the time of the trial the well was yielding water. The total cost of this procedure was $2,952.69.

Prior to the unsuccessful venture, natural gas was used to operate the engines which pumped the wells. In cold weather there frequently would not be enough natural gas to operate the pumps. Under such circumstances, Knight would wait until it warmed up each morning when the gas would come up in sufficient quantities to run the pumps. At the time of the unsuccessful venture, the natural gas supply became insufficient and thus required the purchase of butane gas,

Mitchell refused to pay his pro rata share ($922.72) of the frack and of the butane charges ($139.45) on the ground that he, as a coowner, did not agree to the expenditure for the fracking and that this unsuccessful process caused the termination of the natural gas production.

The court entered a judgment for Knight in the amount of $2,638.01 as Mitchell’s proportionate share of operating expenses and awarded a lien against Mitchell’s interest in this amount. This appeal is limited to the amount for fracking ($922.72) and the butane charge ($139.45).

The appellant contends that a cotenant who expends funds for development without the consent of his co-tenants cannot demand contribution from the coowners except from the profits realized from that specific venture. It is undisputed that Knight proceeded without Mitchell’s consent and therefore, the appellant concludes, the expense should be borne by Knight. The appellant agrees that under the arrangement he was liable for his share of the ordinary operating expenses, but contends that the unsuccessful development charges and the butane expenses resulting therefrom are not ordinary operating expenses.

The appellee contends that the relationship between the parties was not that of cotenancy, but rather that a mining partnership existed and that under such a relationship the partnership property is subject to a lien in favor of the operating partner for his share of the costs, that the majority holders of the mining partnership have the power to control the management of the partnership and that all of the partners, Mitchell excepted, agreed to the fracking.

The term “mining partnership” made its first appearance in this action in appellee’s brief. There was no mention of a mining partnership in the complaint nor at any time during the trial. Appellee contends that the trial court did in fact find a mining partnership existed, although the precise term was not used. The theory upon which a case is tried in the lower court cannot be changed on review. An issue not presented to or considered by the trial court cannot be raised for the first time on review. Woman’s Athletic Club of Chicago v. Hulman, 31 Ill2d 449, 202 NE2d 528. Accordingly, we will not consider the contention that a mining partnership existed.

Knight further contends that even if no mining partnership existed, that a coowner is nevertheless liable for a proportionate share of development expenses to which he did not consent. This proportionate share would be realized from Mitchell’s share of profits derived from the lease. Appellee points out that if the lease is to continue and oil is derived from No. 4, Mitchell should not be allowed to retain his interest in this well and yet not pay his share of expenses involved in attempting to produce it.

In Young v. McKittrick, 267 Ill App 267, the plaintiff sought a judgment against a cotenant for a proportionate share of the cost of drilling a well without consent of the cotenant. The court held:

“A cotenant, who develops a mine without the consent of his cotenants, cannot demand from such co-tenants contribution or remuneration for expenses incurred in prospecting or developing the common property. He must get contribution, if at all, from the profits realized from the property. . . . While a cotenant of a mining claim, who without the consent of his cotenants, incurs expense in prospecting, cannot demand contribution from them, yet he may, when called upon to account for profits, set off the costs of the improvements which were necessary and enhanced the value of the common property.” Id. at 269.

However, there is no showing that the fracking improved or enhanced the value of the property. In fact, it was admitted that no significant quantity of oil has been pumped from the Number 4 well since the fracking. The Young case does not say that the party can be reimbursed from profits realized from other unrelated wells on the same lease property. Therefore, Knight should not, be reimbursed from the profits derived from the other wells.

We believe that there was sufficient evidence to support a conclusion that the insufficient quantity of natural gas was caused by conditions other than the fracking and therefore this expenditure was a necessary operating expense to be shared proportionately by Mitchell.

Accordingly, we reverse the judgment relating to the cost of the fracking ($922.72) and affirm the lien for the cost of the butane ($139.45).

Affirmed in part, and reversed in part.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Darrell D. Yets, Defendant-Appellant.
    Gen. No. 10,909.
    Fourth District.
    August 26, 1968.
    Robert T. Trimpe, of Champaign, for appellant.
    John J. Bresee, State’s Attorney of Champaign County, of Urbana, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The defendant was charged with the offense of deceptive practices, specifically the charge being that on September 11, 1966, in Champaign County, the defendant issued a certain bank check, drawn on the Sidney Community Bank, in the amount of $20, payable to a named payee, with intent to defraud payee. A copy of the instrument described in the complaint was attached thereto. Ultimately, after considerable preliminary procedures not now relevant, the defendant waived his right to a trial by jury, entered a plea of guilty, and filed a motion for probation which was denied. The defendant was then sentenced to six months at the Illinois State Penal Farm. This appeal is from the conviction and sentence.

It was originally urged in the briefs filed in this court that the defendant did not knowingly and voluntarily enter a plea of guilty but that the plea was induced by representation that the defendant would be admitted to probation. This alleged error is not substantiated by the record presented to us for review, and on oral argument this error has been waived by the appellant.

The sentence in this case was pronounced on the 25th day of January, 1967. Thereafter, and before mittimus issued, a motion was filed by the defendant asserting that there had been no hearing in aggravation or mitigation and requesting the court to grant such a hearing. So far as appears from the record on appeal, there was no ruling in the magistrate’s court on the request for hearing in aggravation and mitigation.

For our assistance in this appeal we have neither a report of proceedings nor proceedings by recollection settled by the trial court as contemplated by Supreme Court Rule 323(c) and made applicable to criminal appeals by Supreme Court Rule 612(c) (Ill Rev Stats 1967, c 110A, sec 612(c)). It is appropriate at this point to note this deficiency and the additional deficiencies with reference to the timely filing of documents required to be filed in this court. After several extensive extensions of time, the appellant’s brief was filed subsequent to the expiration of the last extension. Excerpts were not filed as contemplated by rule. We have taken with the case a motion to dismiss the appeal. This motion asserts that the appeal should be dismissed and assigns as a reason therefor the effort to supplement the record by matters not part of the record on appeal and not certified as such, and as a further reason enumerates the late filings herein specified.

It is further urged that the record on appeal, containing no report of proceedings, is insufficient to establish the errors relied upon. The motion to dismiss and the brief of the People purport to make a distinction between the common-law record and the report of proceedings and cite cases in support thereof, all antedating Supreme Court Rule 608(a) (Ill Rev Stats 1967, c 110A, sec 608 (a)), which provides, inter alia, “There is no distinction between the common-law record and the report of proceedings, for the purpose of determining what is properly before the reviewing court.”

The motion to dismiss the appeal is denied. By the denial of this motion we do not wish to be understood as condoning the disregard of the rules setting forth a time schedule for filing briefs, abstracts or excerpts from the record. It is clear that a time schedule applicable to all must be adhered to if there are to be expeditious and inexpensive appeals. The responsibility for compliance is that of counsel.

We agree with the position taken by the People that this record on appeal is insufficient to substantiate some of the errors relied upon for reversal. In view of that state of the record on appeal, those errors are not considered.

The sole issue presented by this record on appeal is the defendant’s right to hearing in aggravation and mitigation. It is clear here that the defendant made a specific request for such a hearing, however inartfully presented. A hearing in mitigation and aggravation is not only desirable but required absent a waiver thereof by the defendant. See People v. Evrard, 55 Ill App2d 270, 204 NE2d 777 (5th Dist 1965); People v. Harris, 66 Ill App2d 46, 213 NE2d 588 (5th Dist 1966); People v. Spaulding, 75 Ill App2d 278, 220 NE2d 331 (4th Dist 1966); People v. Smice, 79 Ill App2d 348, 223 NE2d 548 (2nd Dist 1967); People v. Smith, 62 Ill App2d 73, 210 NE2d 574 (1st Dist 1965); and People v. Harden, 78 Ill App2d 431, 222 NE2d 693 (4th Dist 1967), affd, 38 Ill2d 559, 232 NE2d 725 (1968).

The judgment of conviction is affirmed. The sentence is vacated. This cause is remanded to the circuit court of Champaign County, magistrate division, to conduct a hearing in aggravation and mitigation, and then for imposition of an appropriate sentence subsequent to that hearing.

Conviction affirmed; sentence vacated and cause remanded.

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


author: MR. JUSTICE McCORMICK

text:
    Evelyn M. Drewick, Plaintiff, v. Republic Steel Corporation, et al., Defendants. Interstate Terminals, Inc., Third Party Plaintiff, v. Republic Steel Corporation, Third Party Defendant.
    Gen. No. 50,661.
    First District, Fourth Division.
    November 3, 1967.

      Van Duzer, Gershon & Jordan, of Chicago (Louis Gershon and Horace W. Jordan, of counsel), for appellant.
    Asher, Greenfield, Gubbins and Segall, of Chicago (Irving M. Greenfield and Irving D. Levin, of counsel), and Stevenson, Conaghan, Hackbert, Rooks and Pitts, of Chicago (Harlan L. Hackbert, of counsel), for appellees.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from an action originally brought by Evelyn M. Drewick, plaintiff, against Interstate Terminals, Inc., Republic Steel Corporation, and Henry Pfutzenreuter & Sons, defendants. The action was brought to recover damages for personal injuries alleged to have resulted when the plaintiff, on April 18, 1955, was struck by a window which fell or was blown from the building occupied by her employer, Interstate Dispatch, Inc. Interstate Terminals, Inc. filed a third-party action for indemnity against Republic Steel Corporation and Henry Pfutzenreuter & Sons. The actions were tried simultaneously.

At the close of plaintiff’s case the trial court directed a verdict in favor of Henry Pfutzenreuter & Sons. Interstate Terminals, Inc. then dismissed its third-party complaint against that concern. The jury returned a verdict for the plaintiff against Interstate Terminals, Inc., in the amount of $105,500, and found in favor of Republic Steel Corporation on the original third-party complaint. This appeal is taken by Interstate Terminals, Inc. from the judgments on these verdicts. The evidence discloses the following facts:

On the night of April 18, 1955, the plaintiff finished her work as a billing clerk at about 9 p. m., and left the building occupied by her employer, Interstate Dispatch, Inc., at 3636 South Western Avenue, Chicago. She was walking towards her car which was parked against the north wall of the building, and as she passed under a row of windows on the north wall, a steel ventilator window sash fell and struck her on the head and shoulders, causing the injuries complained of. After being struck by the window she was dazed but did not lose consciousness; she was helped back into the office and the police were called. She was then taken to the office of Dr. Mirmelli, at which time she was bleeding profusely from cuts on the face and left shoulder which had been cut to the bone. The doctor applied first-aid treatment and she was then taken to the Mother Cabrini Hospital where she remained under the care of Dr. Mirmelli until May 7, 1955. He continued to see her up to September 8,1955, by which time the wounds had healed but elevated scars were left, and he advised plastic surgery. Plastic surgery was performed by Dr. Paul Greely. She later had treatments from Dr. Piersynski, who found permanent injuries in her body. Dr. Mirmelli examined the plaintiff on April 12, 1961, and found two scars on the cheek which were of a permanent nature, and other permanent scars on her body.

Interstate Dispatch, Inc. was an interstate carrier of freight by motor vehicle. About 1947, Interstate Terminals, Inc. was incorporated, and Interstate Dispatch, Inc. became the owner of the entire corporate stock of Interstate Terminals, Inc. Interstate Terminals was organized originally to buy land and construct a building in Chicago for use as a general office and Chicago terminal for Interstate Dispatch. Interstate Terminals then purchased a parcel of vacant land at 3636 South Western Avenue, and engaged the firm of Belli and Belli to prepare plans and specifications for the building. The contract for construction was awarded to Henry Pf utzenreuter & Sons. The building was completed by Pfutzenreuter and approved by the architects, then turned over to Interstate Terminals. The entire land and building were then leased by Interstate Terminals to Interstate Dispatch under a written long-term lease dated July 1, 1948, which lease was still in effect at the time of the accident on April 18, 1955, and Interstate Dispatch was occupying the premises, pursuant to the lease. By its terms the lease obligated Interstate Dispatch, as lessee, to maintain and keep the premises in repair. The window involved in this suit was located in the area used by Interstate Dispatch for dispatching and billing.

From the time it was incorporated to the date of the accident some of the officers of Interstate Terminals were also officers of Interstate Dispatch; thus at the time of the accident, the president of both corporations was M. E. Holt, and the secretary of both companies was Russell E. Berry, an attorney. Mr. Holt’s office, as president of Interstate Dispatch, was in the general office section of building, where he kept necessary records of Interstate Terminals.

The window in question was a commercial projected steel sash window, ordered by Pfutzenreuter from Truscon Steel Company, which is now a division of Republic Steel. The windows were fabricated, sold and delivered to the job by Truscon, then installed by Harry Pasco, pursuant to a subcontract with Truscon. The window involved in this suit was one of the original windows installed at the time the building was constructed. The top and bottom sections of glass in the unit are fixed and stationary. The middle section can be opened by pushing it out with a handle at the bottom of the section, and is called a ventilator. On each side of the ventilator is a steel arm, one end of which is fastened to the ventilator frame by rivets. The other end is fastened to a friction shoe which slides up and down in a channel at the side of the frame. This friction shoe serves to hold the window open at the desired position. This middle ventilator section is the part of the window which fell out at the time of the accident.

The ventilator section was inspected on the morning after the accident by A. C. Hrubes, director of safety for Insterstate Dispatch. Mr. Hrubes observed that the rivets were broken or sheared off on both arms at the point where the arms were fixed to the ventilator section. He noticed that at the point where the rivets were sheared the metal was very shiny; there were no rust marks or discoloration, and the metal was porous.

The theory of defendant-appellant, Interstate Terminals, is as follows:

1. The premises were leased by Interstate Terminals to Interstate Dispatch, and by the lease that company was obligated to repair and maintain the premises; therefore, as a matter of law, Interstate Terminals was not liable for the injury.

2. Under the terms of the lease and under the facts, Interstate Terminals did not have control and management of the premises where the accident occurred, and consequently the doctrine of res ipsa loquitur did not apply against it, and the court erred in submitting the case against Interstate Terminals to the jury on that doctrine and giving the jury an instruction thereon.

3. The court failed to recognize Interstate Terminals as a corporate entity separate and distinct from Interstate Dispatch.

4. The defendant, Interstate Terminals, was deprived of a fair and proper trial.

5. The verdict and judgment in favor of the plaintiff is grossly excessive.

The plaintiff’s theory is that:

1. Defendant, Interstate Terminals, never actually gave up possession and control of the building from which the window fell and struck plaintiff.

2. The window and appurtenances thereto were defective at the time of the construction of the building.

3. This defendant was charged with knowledge of such defects.

4. There was conclusive evidence of defendant’s ownership, possession and control of the building out of and from which the window fell, and that these were all questions of fact which were properly submitted to the jury.

5. The doctrine of res ipsa loquitur was properly applied in this case in that the defendant, Interstate Terminals, had within its knowledge and control evidence which the plaintiff did not possess and could not conveniently obtain, and that the occurrence was certainly one which does not happen in the ordinary course of events; therefore, there was a strong presumption or inference of negligence properly submitted to the jury. This presumption or inference was not rebutted by defendant.

6. The purported lease — even if there was one— providing for the maintenance and repair of the premises by Interstate Dispatch, did not absolve owner, Interstate Terminals, from liability for the injury to plaintiff for a defect existing at the time of leasing.

7. The defendant’s position that it is absolved from liability by virtue of the purported lease to Interstate Dispatch is not tenable in that the lease expressly provides that the lessor shall repair immediately any damage to the demised premises occasioned by its own acts, and that the incorporation in this building of a defective window and defective rivets was the defendant’s own act.

We will first consider the case of Drewick v. Republic Steel Corporation. By an amended complaint Republic Steel was made a party to the original suit. It answered the amended complaint, and at the close of all the evidence a motion by Republic Steel for a directed verdict in its favor and against the plaintiff, was denied. The jury returned a verdict in favor of Republic Steel and against the plaintiff, Drewick.

Before us Republic Steel argues that in its notice of appeal Interstate Terminals did not appeal from the judgment in favor of Republic Steel in the original complaint. In its reply brief, defendant Interstate Terminals agrees with Republic Steel and says that the verdict and judgment in favor of Republic Steel was not challenged either in its post-trial motion or on this appeal. Consequently, the matter is not before this court.

The next question to be considered is the appeal of Interstate Terminals from the judgment against it. In this court defendant argues that the fact that Interstate Dispatch owned all of the Interstate Terminals stock and that many officers of both corporations were the same, is immaterial and that the two corporations are and must be considered as separate entities. In other words, there can be no piercing of the corporate veil. Citing 18 Am Jur2d, page 564, § 17; and Dregne v. Five Cent Cab Co., 381 Ill 594, 602, 46 NE2d 386, where the court said:

“A corporation is an entity separate and distinct from its shareholders and, generally, from other corporations with which it may have relations. Indeed, the fact that the shareholders of two corporations are identical does not, necessarily, mean that the two corporations are to be considered as a single entity.”

Also see Superior Coal Co. v. Department of Finance, 377 Ill 282, 36 NE2d 354, where the court made the same finding.

If it were held that this court should ignore the separate corporate theories of Interstate Terminals and Interstate Dispatch the plaintiff still could not recover since she was injured in an accident arising out of and in the course of her employment with Interstate Dispatch. She proceeded against Interstate Dispatch under the Workmen’s Compensation Act and received a lump-sum settlement. Under those circumstances she would be barred from any common-law action for damages against Interstate Dispatch. If Interstate Dispatch and Interstate Terminals were considered as one corporation, the common-law action would then also be barred as against Interstate Terminals.

The defendant, Interstate Terminals, argues that by the terms of the lease Interstate Dispatch had the sole obligation to repair and maintain the premises. The lease does not appear in the abstract; consequently, it was necessary for this court to determine its terms by going to the record. Section 9 of the lease reads as follows:

“Lessee covenants and agrees during the term created hereby to keep in good order and repair, inside and out, all buildings, roofs and structures on or appurtenant to said demised premises, and all equipment thereof, including but not being limited to, all engines, boilers, pipes, plumbing, wiring, gas and steam and electrical fittings and all other equipment thereof, and Lessor covenants and agrees to repair immediately any damage to the demised premises occasioned by its own acts.”

It has been repeatedly held that the tenant or occupant of leased premises, and not the owner, is responsible for injuries resulting from the defective condition of the demised premises. Jackson v. 919 Corp., 344 Ill App 519, 101 NE2d 594; Carson v. Weston Hotel Corp., 351 Ill App 523, 115 NE2d 800; and Soibel v. Oconto Co., 299 Ill App 518, 20 NE2d 309. In the latter case the law is stated to be that where premises are leased and the lessee takes possession, in the absence of concealment or fraud by the landlord as to some defect known to him and unknown to the tenant, the tenant assumes the risk of personal injury from defects.

In the case before us, under the rule as laid down, there is no evidence that there was any concealment or fraud on the part of Interstate Terminals as to any defect in the window, if such there was. We find that the lease between the parties was controlling.

The plaintiff argues that under the terms of the lease the defendant, Interstate Terminals, would be liable because of the provision that it, the lessor, would repair immediately any damage to the demised premises occasioned by its own act. However, there is nothing in the record to show that the defect in the screws on the window, if there was such defect, was caused by Interstate Terminals. Plaintiff further argues that the covenant by lessee, Interstate Dispatch, to keep the premises in good order of repair related only to any state of disrepair that was occasioned or resulted after the date of the execution of this purported lease and not for any defect that existed at the time of the leasing of the premises; therefore, if the defect — provided there was a defect — had been existing at the time the premises were leased, the duty was upon the defendant, Interstate Terminals, to make the repairs. However, there is no testimony in the record that the window was in a state of disrepair at the time it fell. The only evidence offered in support of this theory is that the window fell and the rivets had broken.

Plaintiff also relies on the theory that, assuming there was a valid lease under which Interstate Terminals “actually gave up all control and all right to possession of the premises, and in fact was not actually in possession of any portion thereof and did not conduct any of its business therefrom, . . . the defendant nevertheless would be liable to the plaintiff for the defective window ... in light of the provisions of paragraph 9 of said lease . . .” In support of that argument plaintiff cites Klonowski v. Crescent Paper Box Mfg. Co., 217 Ill App 150. However, in that case the court held that there was sufficient evidence to show that certain steel beams were of insufficient strength. That is not true in the case before us.

Plaintiff argues that Interstate Terminals was in control of the building at the time of the accident. Considering the fact that the president of Interstate Terminals was the same person who was president of Interstate Dispatch; the fact that he had an office in the portion of the building from which the window fell; and that he had in his desk certain papers pertaining to the business of Interstate Terminals, are not sufficient to establish control on the part of the latter.

The plaintiff also proceeds on the theory that the doctrine of res ipsa loquitur is applicable. The defendant,

Interstate Terminals, challenges that theory on the grounds that it did not have sole and exclusive control or possession of the premises, and that there was no evidence in the record from which the jury could find that to be a fact.

The defendant argues that the doctrine of res ipsa loquitur was improperly applied and that the instruction given by the court on that question was prejudicial and constituted reversible error. In Metz v. Central Illinois Electric & Gas Co., 32 Ill2d 446, 448, 207 NE2d 305, the court stated:

“When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. [Citing cases.] This in essence is the doctrine of res ipsa loquitur, and its purpose is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.”

The court further stated:

“Whether the doctrine applies in a given case is a question of law which must be decided by the court, but once this has been answered in the affirmative, it is for the trier of fact to weigh the evidence and determine whether the circumstantial evidence of negligence has been overcome by defendant’s proof.”

In Jackson v. 919 Corp., 344 Ill App 519, 101 NE2d 594, the court held that the doctrine of res ipsa loquitur is not applicable where two or more persons exercise joint control. The court also held that the doctrine may be invoked only upon general charges of negligence, and where the plaintiff alleges and seeks to prove specific acts of negligence there is no room for the doctrine. In the instant case the plaintiff did make specific allegations of negligence in Count I against the defendant, Interstate Terminals, and these were submitted to the jury. The jury was instructed on them in the instruction on the issues.

In answer the plaintiff cites and quotes from Ryan v. Zweck-Wollenberg Co., 266 Wis 630, 64 NW2d 226, which case quoted from Prosser on Torts, page 298, where it is stated: “All that is necessary is that the defendant have exclusive control of the factors which apparently have caused the accident; ...” We do not believe the evidence in the instant case brings the plaintiff within that rule.

The doctrine of res ipsa loquitur was not applicable to the case before us. Without the application of that doctrine it would be necessary for the plaintiff to prove a physical defect in the window. There is no such proof in the record. Furthermore, there is testimony in the record, from plaintiff’s witnesses, that there were high winds prevailing the night of the injury, and that the window “blew out.”

The plaintiff also apparently argues that without the application of the rule of res ipsa loquitur physical evidence of improper construction — either a defect in the window or the rivets holding it in place — was not necessary since the falling of the window raised a reasonable inference of such defect and negligence. In support plaintiff cites Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847, which case is inapplicable because the suit was brought against a manufacturer of an alleged defective product.

The latest case on that subject is Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182, where at 623 the court said that in such a suit the imposition of strict liability does not make the manufacturer an absolute insurer. The court said: “The plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control. See Tiffin v. Great Atlantic & Pacific Tea Co., 18 Ill2d 48.” We do not think the Lindroth case can be properly applied, nor any cases dealing with the question of defective products in the original case. Even if that could be applied the rule stated in Suvada is controlling, and no evidence was offered in the instant case to show that the condition was an unreasonably dangerous one or that it existed at the time it left manufacturer’s control.

The defendant, Interstate Terminals, also argues that since the court directed a verdict in favor of Pfutzenreuter, it must necessarily be determined as a matter of law that the plaintiff had failed to prove any defect in the window, or that if there was any defective condition it could not have been discovered by any reasonable inspection. In arriving at its verdict in favor of Republic Steel, the jury must necessarily have found that the evidence failed to prove any defect in the window at the time of delivery and installation, or that Republic Steel was not negligent in manufacturing and selling the window, even if it did have a defect. Consequently, defendant argues that the verdict against Interstate Terminals is wholly inconsistent with the directed verdict for Pfutzenreuter and the jury verdict for Republic Steel, and that the court erred in refusing to set aside the verdict in favor of the plaintiff against Interstate Terminals on the post-trial motion.

In support of this contention the case of Martin v. 1600 Hinman Ave. Corp., 339 Ill App 126, 88 NE2d 892, is cited. This was a case where the plaintiff sued the defendant, 1600 Hinman Avenue Corp., and Public Service Company of Northern Illinois. Hinman owned, maintained and operated the apartment building in which plaintiff and her husband were tenants. Hinman had installed in the apartment a new gas stove for cooking. The plaintiff was severely burned by an explosion of gas as she was lighting the oven. Plaintiff brought suit on the theory that she had complained to Hinman concerning the improper adjustment of the gas attachments to the stove and that Public Service, by and through its servants, at the request of Hinman, caused the stove to be improperly adjusted. Each defendant answered, denying the repair or adjustment of the stove. A judgment was entered in behalf of Public Service, and no appeal was taken from that judgment. A judgment was entered on a verdict of guilty against Hinman. In this court Hinman argued that the court should have granted it a new trial inasmuch as its liability, if any, was under the doctrine of respondeat superior for the negligence of Public Service in repairing the plaintiff’s stove, and that the jury having found Public Service not guilty, the verdict against Hinman could not stand. The plaintiff did not contest that rule; however, she attempted to show that Public Service was, for the purpose of repair and adjusting the stove, the servant of Hinman. On that question the court held against her and held that the judgment for Public Service barred action against Hinman, and reversed the judgment against Hinman.

It would appear that that rule should be applied in the instant case. There was no proof that the window was defective at the time it was sold by Republic Steel. The verdict and judgment in favor of Republic Steel, from which no appeal is taken, is controlling.

The plaintiff did not prove a cause of action against Interstate Terminals, and the judgment entered in favor of plaintiff and against Interstate Terminals must be reversed.

Since the judgment against Interstate Terminals is reversed, the judgment in favor of Republic Steel Corporation in the third-party suit brought by Interstate Terminals as third-party plaintiff, must be sustained.

The judgment entered in favor of Evelyn M. Drewick, plaintiff, against Interstate Terminals, Inc., defendant, is reversed, with judgment here in favor of said defendant.

The judgment on the third-party complaint in favor of Republic Steel Corporation, third-party defendant, and against Interstate Terminals, Inc., third-party plaintiff, is affirmed.

Reversed in part, affirmed in part.

ENGLISH, P. J. and DRUCKER, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Chicago and North Western Railway Company, a Wisconsin Corporation, Plaintiff-Appellee, v. City of Des Plaines, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 51,891.
    First District, Third Division.
    April 25, 1968.
    Rehearing denied September 11, 1968.

      Yates, Haider & Burke, of Chicago (John T. Burke, of counsel), for appellant.
    Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago (Richard F. Babcock, R. Marlin Smith, and Beardsley Ruml, II, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is a zoning case. The property in dispute is in the City of Des Plaines and is zoned for single-family residences. It is owned by the plaintiff, the Chicago and North Western Railway Company, which desires to develop it for industrial purposes — with the expectation that the industries to be located there will furnish additional business for its transportation facilities.

After exhausting its administrative remedies the railroad instituted the present action for declaratory judgment. The case was referred to a master in chancery who, after hearing the testimony of 51 witnesses, receiving 120 exhibits in evidence and compiling a record of 3,204 pages, submitted a 302-page report which recommended that a decree be entered declaring the City’s zoning ordinance invalid insofar as it applied to the plaintiff’s property. The chancellor adopted the master’s findings and entered a decree substantially in conformity with his recommendations.

On appeal the City maintains that the presumptive validity of the ordinance was not overcome by clear and convincing evidence. A secondary contention is that the chancellor went beyond his authority in ordering the property rezoned from a residential to an industrial classification without evidence having been heard or a designation having been made as to the particular industrial use to which it would be devoted. Other contentions concern the fee allowed the master and the denial by the court of a petition filed by the City during the trial of the case to disqualify the master.

The property, a vacant area of approximately 25 acres which has been used for farming, is 2,400 feet long (north to south) and 430 feet wide (east to west). The entire 2,400-foot east side is adjacent to the plaintiff’s railroad tracks. The tracks are upon an embankment and are from six to ten feet higher than the property. The tracks are used primarily for switching. The switching operations take place six days a week, mostly in the morning hours, and the number of freight cars involved averages 35 per day. The two sets of track are separated from the property by a 100-foot wide strip of vacant land which likewise belongs to the railroad.

To the east of these tracks are three industries. The northernmost is a light manufacturing plant 250 feet from the tracks. Its land abuts the tracks for 800 feet. Next in line, and occupying 1000 feet along the side of the tracks, but 250 feet east of the property in dispute, is the yard of a coal and material company. This company is a customer of the plaintiff and is served by three private switching tracks. Its principal business is ready-mixed concrete. In preparing orders for delivery, sand and gravel are conveyed from 25-foot high storage piles to an 80-foot high mixing tower. Trucks are pulled beneath the tower and the necessary materials are funneled into them. The trucks depart from an eastern exit and mix the cement on the way to delivery. To the south of this yard, and taking up the rest of the space east of the tracks, is a gasoline and fuel oil storage depot. The depot has nine above-ground tanks ranging up to 28 feet in height and having a combined capacity of 122,000 gallons. The tanks are surrounded by a four to six-foot high concrete wall which is approximately 200 feet away from the eastern edge of the subject property.

Turning to the west boundary of the property, and again proceeding from north to south, there is a 181-home subdivision which takes up 40 percent of the western border. South of the subdivision are towers supporting electric power lines. The easement upon which these towers are erected is 210 feet wide and traverses the property from east to west. Next to this easement, on land which runs 483 feet along the west boundary, there is a school, constructed in 1964. Two hundred and sixty children attend this school from kindergarten through the third grade. The land south of the school, and occupying the balance of the west boundary, is owned by the City of Des Plaines. Located there is a two-story municipal filtration plant situated atop an 18-foot knoll. Part of the City’s land is bounded by a wire fence enclosing two 12 to 16-foot deep lime beds used for the treatment of water.

We now turn to the north and south sides of the property. A creek (which sometimes overflows its banks and causes sewage problems) runs along the north side. It is about 15 feet wide, of varying depths, and winds its way for seven miles through several communities before emptying into the Des Plaines River. On the north bank of the creek, and opposite the property, there is a municipal park. To the north of the park there is a 150-home subdivision. Thirty-four of these homes abut both sides of the railroad tracks. There is a two-lane street on the south side of the property and south of the street is a subdivision comprised of 89 homes. A few of the homes are adjacent to the railroad tracks and one of these is a combined residence and grocery store — a zoning variation granted by the City.

The principles of zoning law which are applicable to the present case include the following: There is a presumption of validity in favor of zoning ordinances and the party attacking them has the burden of overcoming the presumption by clear and convincing evidence. The proof must establish not merely that the property in dispute could reasonably be zoned otherwise than it is, but that the legislative classification is arbitrary and unreasonable and without substantial relation to the public health, safety, morals and welfare. Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96 (1962). There must be considered the character of the neighborhood; the use and zoning of nearby property; the suitability of the property for the zoned purpose; the public gain as compared with the hardship, if any, imposed on the property owner; the effect of the present zoning on the value of the property and the effect of the proposed zoning on the value of surrounding property; and the length of time the property has remained unimproved as zoned, considered in relation to the land development in the area. LaSalle Nat. Bank v. County of Cook, 60 Ill App2d 39, 208 NE2d 430 (1965). The validity of each zoning ordinance must be determined from the facts and circumstances pertinent to the particular case and if there is room for a reasonable difference of opinion the judgment of the legislative body that enacted the ordinance must be upheld. People ex rel. Selvaggio v. Village of River Grove, 68 Ill App2d 383, 216 NE2d 218 (1966).

The railroad argues that the combination of its tracks, the industries east of the tracks, the power lines, the water filtration plant, and creek and the grocery store compel an industrial zoning. It particularly stresses its own switching operation and that of its customer, the coal and material company, as being incompatible with residential zoning. It describes its own operation as having the nuisance characteristics of noise, odor, dust and danger to the safety of adults and children. It describes the operation of the material company, to which it delivers carloads of material, as offensive, dusty, noisy and as being totally repugnant to residential environment. It emphasizes that none of the homes presently alongside of its tracks have the same impact from its switching operation as would homes built on the subject property and that these homes also would have to bear the full brunt of the noisome operation of the material company.

The evidentiary factors comprising the plaintiff’s case, while formidable when viewed parochially, are not, when the whole community is considered, sufficient to overcome the presumptive validity of the residential zoning. Over 425 single-family residences are in the immediate vicinity of the property. The trend of development in the nearby area is residential. Since 1957 there has been a tremendous boom in housing construction to the west of the property. The subdivision on its west border was started and completed after the commencement of the present litigation. Immediately to the west of this subdivision there is another one, started in 1959, comprised of 300 homes. To the west of this, 2,500 residences have been constructed since 1957.

All of these developments have homes abutting the same power line easement which bisects the subject property. The towers and the power lines have not arrested residential development nor, for that matter, have the plaintiff’s railroad tracks. The same is true of the creek which flows along the north side of the property and the filtration plant at its southwest corner. The plant is not unpleasing in appearance and a witness for the plaintiff referred to it as noiseless. The same witness described the fence-enclosed lime beds as odorless and dustless.

In light of the recent residential development in the area, the fact that the plaintiff’s property has remained in an unimproved state for so many years cannot be accorded great weight. The plaintiff’s property was not the only land which was vacant; almost the entire area to the west was in a like state.

The railroad purchased the property in 1914, at a price of approximately $500 an acre. Conflicting estimates of its value for the different uses were elicited at the hearing and the master found the value to be $3,000 an acre for residential use and $8,000 an acre if used industrially. Of significant note, however, was the testimony of the contractor who developed the subdivision on the west side of the property. He stated that he would be willing to pay $8,500 an acre for it under the present zoning.

There is no evidence that the plaintiff has made any attempt to use or sell the property for residential purposes or contemplates doing so. The vice-president of the railroad’s real estate department testified that, if the zoning were changed, the property would be leased for light industrial purposes which would provide freight for the railroad, or would be sold in sections to purchasers who would be likely to need shipping services. From this it appears that it was neither a difference in the market value of the land between the present and proposed zoning (if one does in fact exist) nor the realty’s lack of suitability for residential development, but rather a desire for a long-term source of freight revenue that was the motivating factor in the plaintiff’s decision to seek a zoning change.

The railroad tracks act as a buffer between the industries to the east and the homes and school to the west. Permitting industry to come west of the tracks would bring it close to the existing homes and to the edge of the land on which the elementary school is located. Homeowners have a right to rely on the zoning that existed at the time they purchased their property and to depend on the zoning not being changed except for the public good. The impact upon the school and upon the well-being and safety of the small children attending it are important considerations. The traffic pattern of the neighborhood would change. Trucks would be using the streets. The heaviest truck traffic would be most likely in the morning hours when children would be going to school and would reoccur in the afternoon when children would be returning home or at play. If homes are constructed on the 25-acre tract as the village and school authorities contemplate, the school will be more in the center of the community it is intended to serve and will draw pupils from all directions.

Railroad tracks may constitute a line of demarcation between industrial and residential uses. Urann v. Village of Hinsdale, 30 Ill2d 170, 195 NE2d 643 (1964); Maywood Proviso State Bank v. Village of Berkeley, 55 Ill App2d 84, 204 NE2d 144 (1965); Gedmin v. City of Chicago, 88 Ill App2d 294, 232 NE2d 573 (1967). In Urann the elevated tracks of the main line of a railroad ran along one side of the rectangular-shaped property. An area across the tracks was zoned for commercial and industrial use. The property was zoned for single-family residences and its owner sought a classification which would permit multiple-family dwellings. In sustaining the zoning, the reviewing court rejected the contention that the tracks and the commercial and industrial area made the property unsuitable for single-family residential purposes.

The plaintiff points out, however, that there is a difference between main line tracks and the switching tracks of a freight line. This is so, but zoning must begin and end somewhere, and under the total facts of this case the plaintiff’s elevated tracks are a suitable dividing line between the industrial and residential areas. While residential lots near the tracks may be less desirable than those farther removed, the switching operations which begin around 9:30 a. m. and end in the early afternoon do not cause the zoning to be unreasonable. Nor do the industries east of the tracks. Among the many expert witnesses who gave their opinions in this case was an accoustical consultant who had measured the effect of the sounds coming from the material yard. He testified that the western edge of the yard was relatively quiet; that the major source of noise emanated from the mixing tower which was some 400 feet from the eastern boundary of the subject property. It was his opinion that the sounds from the yard approximated the upper level of daytime activity in a residential neighborhood and would, therefore, have no depreciating effect upon the property if it were developed residentially.

The conflicting factual considerations in the present case have generated diverse opinions as to the highest and best use of the property. The Des Plaines Board of Zoning Appeals recommended that the zoning ordinance be amended. The City Council of Des Plaines refused to change its ordinance. The master found and the chancellor held that the ordinance was invalid. We hold it valid. Where the reasonableness of a zoning classification is debatable, as these different views of the evidence indicate the present one to be, the legislative judgment of the City Council must control.

In view of our decision it is unnecessary to discuss the defendant’s contentions relating to the form of the decree and the disqualification of the master. There remains, however, its contention that the master’s fee was excessive.

The court taxed three-fourths of the master’s fee, charges and costs against the defendant and one-fourth against the plaintiff. The defendant objected to the amount of the fee, contending that the hourly rate charged by the master was excessive and that an abstract prepared by him — which made up 236 pages of his 302-page report — was unauthorized by the order of reference. The plaintiff made no objection and took no exception to the amount of the fee or the apportionment of the fee, charges and costs. In this court the plaintiff maintains that, because of the complexity of the factual issues and the large amount of time required, the master’s fee is reasonable.

There is no reason why any portion of the fee should be borne by the defendant. The defendant’s ordinance was presumed valid when this litigation was commenced and its validity has been upheld. The expense of the litigation did not accrue due to initial action on the defendant’s part and the defense of its ordinance was justifiable and proper. The unsuccessful plaintiff should not be relieved of the burden of the fee, charges and costs. Cf.: McFail v. Braden, 19 Ill2d 108, 166 NE2d 46 (1960). Inasmuch as the plaintiff who will have to pay the fee believes it to be reasonable there is no need to further consider the defendant’s contention that it is excessive.

The decree of the Circuit Court is reversed and the cause is remanded with directions to enter a decree in favor of the City of Bes Plaines and to retax the expenses of the litigation in accordance with the view expressed in this opinion.

Reversed and remanded with directions.

SCHWARTZ and SULLIVAN, JJ., concur.


author: MR. JUSTICE SCHWARTZ William Harmon,

text:
    Vernon Anundson, et al., Plaintiffs-Appellees, v. City of Chicago, a Municipal Corporation, Defendant-Appellee, Raymond P. Kaepplinger, Petitioner-Appellant.
    Gen. No. 52,100.
    First District, Third Division.
    April 25, 1968.
    Rehearing denied and supplemental opinion July 9, 1968.

      Richard M. Calkins, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Henry N. Novoselsky, Assistant Corporation Counsel, of counsel), for appellee.
    Harry G. Fins, of Chicago, for William Harmon.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

On August 7, 1962, a decree was entered declaring certain provisions of the Chicago Zoning Ordinance unconstitutional as applied to the property at 5655 West Fullerton Avenue, Chicago, then owned by Vernon Anundson and his wife Selma. The decree provided that the minimum area regulations of the ordinance were null and void as applied and that plaintiffs had the legal right to construct a building containing eleven stores and offices, six single bedroom apartments and six efficiency or one-room apartments. The court further ordered the City of Chicago to receive and examine any application for a permit to erect such a building and reserved jurisdiction for the purpose of enforcing the decree.

The building has since been completed and contains stores, offices and apartments as allowed by the decree, but in addition and not allowed by the decree, it also contains an auditorium capable of holding 600 persons and a roof garden capable of holding 250 persons. So far as appears, the parking facilities required by the ordinance have not been provided.

On May 4, 1966, Raymond P. Kaepplinger, owner of the property immediately adjacent to the subject premises, filed a petition alleging that the building did not conform to the declaratory judgment decree in that it contained the roof garden and meeting hall, and that no parking facilities were planned on the premises, wherefore he prayed that the court vacate the decree and enjoin further construction. The petition was denied and this appeal was taken.

Petitioner-appellant contends that the notice required by law to be served on the neighboring landowners did not accurately describe the building which the plaintiffs sought to construct and that the parking facilities required by the zoning ordinance have not been provided. The Anundsons, who were the plaintiffs below, do not appear in this appeal. The contractor William Harmon intervened and contested the petition. He appears before this court as the only contesting appellee and apparently the only person interested in the property. He raises no defense on the merits, but makes technical objections which we will later consider.

The property is located in a district designated for zoning purposes as a restricted service district or B4-1 zone, with respect to which the applicable ordinance requires 2,500 feet of lot space per dwelling unit. Plaintiffs sought the declaratory judgment in order to avoid this density regulation and thus obtain permission to construct a building with more dwelling units than would be ordinarily permissible. Only the density regulation was challenged and only the density regulation was invalidated by the subsequent decree.

In a zoning suit for a declaratory judgment, plaintiffs are required to serve written notice on all persons owning property within 250 feet of the premises, setting forth the date when the declaratory judgment action is to be filed and “a brief statement of the nature of the requested variation.” Illinois Municipal Code, Ill Rev Stats, ch 24, § 11-13-8 (1967). In accordance with this provision, the following notice was served on the neighboring landowners :

. . please be informed that the undersigned will file a Declaratory Judgment in the Circuit Court of Cook County, within thirty (30) days of the date of this letter, to erect a three-story office and apartment building, containing approximately eleven (11) offices and eight (8) apartments, with adequate parking facilities, on the property located at 5655 West Fullerton Avenue, Chicago, Illinois.”

¡None of the adjoining landowners receiving the above notice filed an appearance in the action.

While the case was pending, plaintiffs amended their pleadings without further notice to the neighboring landowners. Both the court and counsel for the City observed at that time that the neighbors were entitled to notice of any substantial change in the pleadings and that plaintiffs were assuming whatever risk was created by the failure to serve amended notices on the adjoining landowners. Nevertheless a decree was entered nullifying the density regulation of the ordinance as applied to the property and declaring that plaintiffs had the legal right to construct a building containing eleven stores and offices, six single bedroom apartments and six efficiency or one-room apartments.

The zoning ordinance requires that a building containing dwelling units of the number and kind described in the decree must have parking facilities on the premises for a minimum of seven cars and that the necessary parking spaces may not be situated beyond the premises “except as provided for as a Special Use.” Chicago Zoning Ordinance, Chicago, Ill Municipal Code, ch 194A, § 8.11-2(3) (1957, as amended to and including January 1,1967).

The landowners were assured by the notice of the declaratory judgment suit that “adequate parking facilities” would be provided, and the court was given similar assurances prior to the entry of the decree. At that time the contractor Harmon testified:

“Q. Now, Mr. Harmon, on behalf of the owners of the property, have you arranged for parking facilities for the subject property?

“A. Yes, sir, we have on the premises eight parking facilities under roof and we arranged for 20 additional.”

The building as now completed contains twelve apartments, eleven stores and offices, the meeting hall and the fourth floor roof garden. Eight of the rooms designated as offices contain bathtubs which, petitioner-appellant contends, is a clear indication that those offices will be used as additional apartments notwithstanding the provisions of the decree. There is no provision whatever for on-premise parking and, due to the addition of the meeting hall and roof garden, a total of 92 parking spaces would now be required to satisfy the zoning ordinance. Chicago Zoning Ordinance, supra, ch 194A, § 8.11-1 (6), (19).

It is clear from the foregoing that the notice to the adjoining landowners failed to describe accurately the proposed building, that the building does not correspond to the plans submitted to the trial court and that neither the court nor the neighboring property owners were advised of the intentions of the plaintiffs and their contractor to deviate from the purported plans. These facts were presented to the court when Kaepplinger filed his petition asking the court to vacate the declaratory judgment, enjoin further construction and grant other relief deemed equitable. The court at that time stated that it had never contemplated that plaintiffs were going to operate a dance hall on the property.

While the petition was designated as an action pursuant to Section 72 of the Civil Practice Act, it was in reality an intervening petition by an interested party bringing to the attention of the court the misrepresentations made both to the court and to adjoining landowners with respect to the character of the building being or about to be constructed. Relief is sought on the basis of the reservation of jurisdiction by the court.

As before noted, appellee Harmon makes no defense on the merits of the case. Instead, he contends (1) that the appeal must be dismissed because the petitioner-appellant did not include the parties in interest in the notice of appeal; (2) that only the City may prosecute an action for an ordinance violation; and (3) that the petition to vacate was not filed within the two year limit provided by Section 72 of the Civil Practice Act.

As to Point I, Supreme Court Rule 303, Ill Rev Stats, ch 110A, § 303 (1967) provides that the notice of appeal shall bear the title of the case, naming and designating the parties in the same manner as in the Circuit Court. The rule further provides that no later than seven days after the filing of the notice of appeal, the party filing it shall serve a copy on every other party and on any other person or officer entitled by law to notice of appeal. The original parties to the declaratory judgment action, Vernon and Selma Anundson and the City of Chicago, were named in the petition. When the petition was denied and the petitioner-appellant instituted this appeal, he designated all parties to the Circuit Court action in his notice of appeal, as required by court rule. The notice was timely filed and the proper parties were designated therein. Hence the only question is whether copies were served on those entitled thereto under Rule 303, supra. Copies of the notice of appeal were served on William Harmon and the City. During the interim between the declaratory judgment and the filing of the petition to vacate, the property had been conveyed to Reuben A. and Eve Sonshine. When the instant appeal was taken the Anundsons therefore no longer held an interest in the property and accordingly were not served with notice of appeal.

An appeal will not be dismissed for failure to serve notice of appeal on parties who cannot be adversely affected by the reversal or modification of the order appealed from. Hofing v. Willis, 31 Ill2d 365, 201 NE2d 852; Weaver v. Hodge, 406 Ill 537, 94 NE2d 297; See, also, Fins, Illinois Court Practice Under the New Judicial Article, p 112 (1967).

People v. Wright, 75 Ill App2d 290, 221 NE2d 159 (Abst.) cited by the appellee is not in point. In Wright the City of Chicago had been a party plaintiff in a quasi-criminal prosecution and we held that the City had a continuing interest in the determination of the appeal and hence service of notice of appeal on the City was required.

The appellee argues that Reuben A. and Eve Sonshine should have been designated as parties to this appeal and served with notice of appeal. The intervening petition filed in this case is part of a continuing action which commenced with the declaratory judgment, and petitioner-appellant was therefore required to serve notice on the attorney of record for the original plaintiffs. This he did. Neither Reuben nor Eve Sonshine have ever been parties to this suit. At no time did they appear or show any interest .therein. Yet it is incredible that they, as purchasers, did not have notice of the action or that Harmon, as their contractor, had not advised them of the filing of the petition. Petitioner-appellant contends that Harmon is the party actually in control of the property and suggests this as the reason for the Sonshines’ failure to appear. Harmon’s testimony, particularly his statements to the effect that the use of Ms property was being impeded, evidences a proprietary interest on his part and gives credence to petitioner-appellant’s contention. As successors to the Anundsons, the Sonshines must assume they had notice of the litigation and of the reservation in the decree and should have applied to the court for leave to become parties thereto. The appeal is not subject to dismissal because of failure to serve notice of appeal on the Sonshines. Chicago Title & Trust Co. v. Central Republic Trust Co., 289 Ill App 21, 6 NE2d 515; Toman v. Tufts, 323 Ill App 516, 56 NE2d 135.

In Point II, appellee contends that only the City may bring an action to prohibit an ordinance violation. Adjoining landowners may bring an action against a zoning violator after proper notice to the municipal authorities. Ill Rev Stats, ch 24, § 11-13-15 (1967). The trial court was not asked by the petitioner-appellant to prohibit the violation of an ordinance, but was asked to prohibit the violation of the terms of a decree which it had entered with a reservation for that purpose. The fact that the building over the construction of which the court maintained jurisdiction was in violation of the zoning ordinance as well as of the court’s decree is not a defense by the party who committed the violation.

Appellee’s final contention is that since petitioner-appellant filed his petition to vacate the decree more than three and one-half years after its entry, the trial court properly dismissed the petition in accordance with Section 72 of the Civil Practice Act. While the petition was framed as a petition to vacate, petitioner-appellant did not contest the provisions of the decree nor did he ask for re-adjudication of the plaintiffs’ rights. He asks the court to compel compliance with the provisions of the decree in accordance with the reservation of jurisdiction to grant such relief. The petitioner-appellant could not have filed his petition before the violation became evident.

The ordinance requires parking spaces equal in number to 75 percent of the total number of dwelling units (ex-elusive of efficiency units) and 50 percent of the total number of efficiency units. In the instant case this would amount to seven parking spaces. With reference to the meeting hall and roof garden, the ordinance requires parking spaces equal in number to 10 percent of the capacity provided. The meeting hall, as set forth in the construction plans, provides for a maximum of 600 persons and the roof garden for 250 persons. Hence parking must be provided for an additional 85 cars. The total number of parking spaces required therefore is 92. Chicago Zoning Ordinance, Chicago, Ill Municipal Code, ch 194A, §§ 8.11-2(3), 8.11-1(6), 8.11-1(19). The ordinance further provides that:

“All parking spaces required to serve buildings or uses shall be located on the same zoning lot as the building or use served, except as provided for as a Special Use; in which case, buildings or uses may be served by parking facilities located on land other than the zoning lot on which the building or use served is located, provided such facilities are within 500 feet walking distance of a main entrance to the use served.”

The building constructed varies from the ordinance in that it does not have adequate parking facilities nor can the necessary parking be provided on other premises without a Certificate of Special Use from the Zoning Board of Appeals. From the notice served on them the property owners could not have anticipated this variance nor could the trial court have anticipated it from the pleadings at the time the decree was entered.

The order is reversed and the cause is remanded with directions to enjoin further construction or use of the property in question until it conforms to the requirements of the applicable ordinance, and for such other and further relief as is not inconsistent with the views herein expressed.

Order reversed and cause remanded with directions.

DEMPSEY, P. J. and SULLIVAN, J., concur.

Supplemental Opinion on Petition for Rehearing.

William Harmon,

the sole contesting appellee in this case, has substituted attorneys and obtained leave of this court to file an amended petition for rehearing. The petition amounts to a complete reargument of the case, raising issues not heretofore considered and reiterating arguments considered unsound in our opinion. Although Rule 367 (b) clearly states that reargument of an appeal shall not be made by means of a petition for rehearing (111 Rev Stats, c 110A, § 367 (b) (1967)), we shall consider certain of the points raised.

The appellee now contends that the property was transferred to Reuben and Eve Sonshine on April 5, 1965, and hence they were necessary parties and should have been named in Kaepplinger’s petition. He cites section 54 of the Civil Practice Act which provides that when a change of interest occurs following commencement of a cause of action and it becomes necessary to bring another person before the court, “the action does not abate, but on motion an order may be entered that the proper parties be substituted or added. . . .” He contends that this provision of the statute applies to the instant case, that Kaepplinger knew the property had been transferred to the Sonshines and failed to join them. This point is based on a misconception of the nature of these proceedings. Kaepplinger’s petition was filed in the same proceeding in which the decree was entered and bore the caption of the original case. It is not a suit between Kaepplinger and the owners of the property nor is it a suit on behalf of Kaepplinger. It is a proceeding in which Kaepplinger has brought to the attention of the court the fact that the building being erected on the property adjoining his was being constructed in violation of the zoning laws and the provisions of a decree entered by the court, in which decree the court had reserved jurisdiction for the purpose of enforcing provisions of the decree. The decree provided that the plaintiffs Vernon and Selma Anundson “and all persons claiming by, through or under them” had the right to erect a three-story building containing 11 stores or offices, 6 single-bedroom apartments and 6 efficiency-apartment units. The property was thereby exempted from the provision in the ordinance fixing a ratio between the number of dwelling units and the lot size. The remaining provisions of the ordinance remained in full force and effect. The City of Chicago was directed to receive and examine any application for a permit to erect such building in accordance with the spirit and intent of the decree, and the court reserved jurisdiction for the purpose of enforcing its provisions.

In 1966 Kaepplinger filed his intervening petition and charged that the decree was being violated in the following respects:

(a) The building under construction contained a fourth floor roof garden capable of accommodating 250 people;

(b) It contained an auditorium capable of accommodating 600 people;

(c) Notwithstanding the assurances of counsel to the court, there were no parking facilities on the property; and

(d) The plans submitted to the Building Department of the City of Chicago were not in conformity with the plans presented to the court.

It further appeared that eight of the rooms described as offices contain bathtubs so that, as counsel for the appellant has argued, they may be easily and surreptitiously converted into dwelling units. As before noted, no parking facilities were provided although the building as now constructed, with a dance hall and auditorium, would under the ordinance require a total of 92 parking spaces on the premises. The building thus violates both the ordinance and the declaratory judgment decree.

It is clear that the contractor Harmon was violating the decree by erecting a nonconforming structure on the property. His actions were contrary to the decree whether he was operating on his own behalf (as may be inferred from his testimony) or on behalf of the legal owners. He appeared and contested the petition and he is undoubtedly subject to the jurisdiction of the court. As to the Sonshines, they succeeded to whatever rights the Anundsons acquired through the decree and are bound by the same conditions imposed on the Anundsons. They cannot be allowed to violate the decree either by their own action or through the agency of their general contractor. The court having maintained continuing jurisdiction had ample power to enforce its original order and should have ordered Harmon to conform or have prohibited further construction or usage of the property.

The developers of this property deliberately chose to risk violating the decree in 1962 when they amended their complaint for the declaratory judgment without giving additional notice to the neighboring property owners. The trial court at the hearing admonished them as follows:

“You can go ahead and finish your case. I won’t interrupt your trial. If it goes to the Supreme Court I would be reversed on it.”

When Kaepplinger brought the violations to the attention of the court in 1966, the building was well on the way to completion and the trial court was obviously loathe to intervene, presumably since the damage had already been done. The court however recognized that the owners were violating the terms of the decree and said:

“There is no question about it that the decree contemplated off-street parking and the decree also contemplated that the existing ordinances applicable to the building would be adhered to.
“Now, what the ordinance requires is that off-street parking be provided, and if they don’t want to utilize this space for their seven or eight automobiles they will have to go and apply for a special use.”

Plaintiffs’ counsel argued that there was no violation of the ordinance because the building had not been completed and the court responded:

“Certainly there has been a violation. You have now admitted it. You have no provision for off-street parking.
“You can’t comply unless you get a certificate of special use, and you are not complying.”

The court further said:

“I wouldn’t have entered the decree if I had known about the parking. They told me they had complied with the parking requirements.”

The parties apparently believed that a completed building would save them from further legal regulation. It is our opinion that the integrity of the law and the orders of a court are at stake and are of prime importance.

The petition for rehearing is denied.