author: JUSTICE ALLOY

text:
    BOUGHTON TRUCKING AND MATERIALS, INC., et al., Plaintiffs-Appellees, v. THE COUNTY OF WILL, Defendant-Appellant.—(The Bank of Naperville, Trustee, et al., First Intervening Defendants-Appellants; William Clow et al., Second Intervening Defendants-Appellants.)
    Third District
    No. 82—200
    Opinion filed January 11, 1983.

      Edward Petka, State’s Attorney, of Joliet (Randal Miller, Assistant State’s Attorney, of counsel), for appellant County of Will.
    Timothy J. Reuland, of Lindner, Speers & Reuland, P.C., of Aurora, for other appellants.
    Thomas R. Wilson and Raymond E. Meader, both of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendants, County of Will and certain individual and corporate interveners, appeal from the decision of the circuit court of Will County, sitting in review over a denial by the county board of a request for a special use permit by plaintiffs Boughton Trucking and Materials, Inc., and Lloyd Boughton, Roy Brossman, Leona Boughton and IAA Trust Company (hereinafter Boughton). The circuit court found that the county zoning ordinance, and the denial of a special use permit to Boughton thereunder, bore no substantial relationship to the public health, safety and welfare, and that, as applied to Boughton’s application, it was arbitrary, capricious and void. It ordered that Boughton be permitted to use the subject property for the purpose of mining and quarrying sand, gravel and limestone. From the court’s decision, overturning the county’s action in denying a special use permit, the defendants now appeal. They contend that Boughton failed to meet its burden of establishing that the board’s action was arbitrary, capricious and bore no substantial relationship to the public health, safety and welfare; (2) that the trial judge’s findings of fact were contrary to the manifest weight of the evidence; and (3) that the trial judge improperly substituted his judgment for the legislative judgment made by the county board.

The record reveals that the plaintiffs are the owners and would-be developers of a 201-acre parcel of property located in Wheatland Township, Will County. Plaintiff Walter Boughton entered into an option to buy the site in 1979, and at that time it was zoned A — 1 Agricultural, being used as a farm. Thereafter, Boughton filed an application with the county requesting a special use permit, under the existing A — 1 zoning district, for the mining and quarrying, with blasting, of the deposits of sand, gravel and limestone underlying the subject property. Approximately 100 acres of the property would be mined and quarried, with the remaining acreage either farmed or acting as a buffer zone. Plaintiff Boughton Trucking and Materials, Inc., is engaged in the business of mining and quarrying sand, gravel and limestone at a site approximately three-quarters of a mile south of the subject property. Both the zoning board of appeals and the county board of Will County voted to deny the requested special use permit to Boughton. Thereafter, Boughton filed the instant action in circuit court seeking review over, and reversal of the county board’s denial of the special use permit for mining and quarrying. In the trial court, various contiguous and nearby property owners intervened as defendants, seeking affirmance of the county board’s action.

The applicable rules concerning challenges to zoning actions by a legislative body are well established and not disputed herein. As set forth by the Illinois Supreme Court in La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 307-08, 388 N.E.2d 388:

“*** Because zoning is mainly a legislative function [citation], it is primarily within the province of the local municipal body to determine the uses of property and to establish zoning classifications [citations]. As this court has previously asserted:
‘It is clear from many holdings of this court that a zoning ordinance will be upheld if it bears any substantial relationship to the public health, safety, comfort or welfare. An ordinance will be presumed to be valid, and the one attacking an ordinance bears the burden of demonstrating its invalidity. The challenging party must establish by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare. [Citations.]’ [Citation.]
The relevant factors that the trial court may consider in determining the validity of a zoning decision were enunciated by this court in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47. In the special use context, these factors have been summarized as follows: ‘the uses and zoning of nearby properties, the extent to which existing zoning diminishes the property’s value and the proposed zoning enhances it, the suitability of the property for the purposes permitted under the existing zoning, and the relative gain to the public as compared to the hardship imposed upon the property owner by the existing and the proposed zoning uses.’ [Citation.] No one factor is controlling. [Citation.]” (See also La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40; Meyer Material Co. v. County of Will (1977), 51 Ill. App. 3d 821, 366 N.E.2d 1149.)

It is also firmly established that the trial court, sitting without a jury in such actions, is to weigh the conflicting testimony, and its findings will not be disturbed unless contrary to the manifest weight of the evidence. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 48.) As the court in La Salle National Bank also noted, the validity of each zoning ordinance and action must be determined on the facts and circumstances involved, set within the general considerations set forth above. With these rules in mind, we turn then to consideration of the relevant factors, within the factual context of this case.

There is no dispute that the subject property, at the time of the court hearing and for many years previous, had been used essentially for agricultural purposes as a corn and bean farm. The property is not within IV2 miles of any municipality and is situate in an unincorporated area of Will County. Zoning is A — 1 Agricultural, allowing certain agricultural uses, and permitting mining and quarrying only when specifically authorized by the county board as a special use. It was a special use permit, under A — 1 zoning, that Boughton sought from the county in order to operate a mine and quarry operation. The existing uses and zoning of nearby property were accurately stated by the trial court in its findings:

“8. The nearby land to the North, East and West of the subject land is used and zoned A — 1 for agricultural purposes for grain farming as is the East half of the land adjoining to the South, while the West half of the land adjoining on the South across 111th Street has been used and zoned for a number of years as a quarry with blasting operated by Avery Gravel Company together with a concrete plant operation, the Avery property consisting of approximately 140 acres having been rezoned by Will County in 1980 for general industrial use with a special use for quarring and mining with blasting and the operation of a concrete plant. To the West of the property approximately one-quarter (1/4) mile West of the DuPage River is a church and to the Northwest of the property from three-quarters (3/4) to one mile Northwest of the river is a residential subdivision of approximately 160 acres in area. There is a scattering of farm houses and agricultural buildings in all directions from the subject land. One-half (1/2) mile South of the Avery quarry [bordering the proposed property on the southwest] is a quarry on the North side of 119th Street operated by the Plaintiff, Boughton Trucking and Materials, Inc. Immediately South of the Boughton quarry on the South side of 119th Street is a quarry operated by E and E Hauling Company. Approximately one mile Southeast of the latter quarry is a quarry operated by Elmhurst-Chicago Stone Company. All of these quarries mine limestone with blasting.”

While agricultural use dominates most of the adjacent land, it is evident from the record that considerable mining and quarrying is done on adjacent and nearby property to the south. There is no dispute that valuable deposits of limestone, sand, and gravel underlie the subject property.

The evidence concerning the economic implications of the proposed special use, on the property itself and on adjoining and nearby properties, was somewhat contradictory. Boughton’s evidence indicated that the highest and best use of the property was for the proposed mining and quarrying, with a subsequent return to open space, pursuant to applicable requirements for reclamation under the county zoning ordinance. The experts’ testimony indicated that the property’s farm value was $3,000 to $4,000 per acre, while its value as a mine and quarry was double that, or $8,000 to $8,500 per acre. The defense expert testimony focused upon the economic effect of the proposed use upon nearby property. That evidence indicated that the property of the Clows, the intervening defendants, lying contiguous and immediately north, had a market value between $2,900 and $3,400. It was the expert’s opinion that if the Boughton property were quarried, values on the Clow land would fall on the low side of that range, or $2,900. This finding was disputed by plaintiff’s expert, who concluded that there would be no adverse affect upon the surrounding farm property from the addition of another quarry on the proposed property. As noted, there is an existing mining and quarry operation, with blasting, on nearby property to the south.

Conflicting evidence was also before the court respecting various effects of the mining operations upon nearby properties. An explosives expert, who had done extensive blasting in the Will County quarries for a number of years, testified to the relatively limited number of complaints about blasting and as to the limited effects of blasting. Plaintiff Walter Boughton, who utilizes blasting at his nearby quarry, testified to the minimal damage accompanying such operations. Boughton could not deny that the blasting causes perceptible vibration, and one intervening defendant, a nearby resident, testified that the blasting from the existing quarries causes windows to shake in her house and the contents of the house to rattle. The evidence also indicated Boughton’s plans and intentions to comply with applicable regulatory provisions of the county zoning ordinance which prescribes procedures for the handling of explosives and the blasting, and establishes hours for such work.

The court also heard evidence upon the effect of the proposed mining and quarrying upon the area’s water supply. A geologist who had done limited field testing testified for the plaintiffs that the proposed quarry would have no effect upon shallow water wells 1,000 feet or more from the quarry site and little effect on those closer. He testified that there would be no effect upon properties to the west and north of Du Page River, where the intervening defendants’ properties are located. Deep water wells, according to plaintiffs’ experts, would not be affected. The defense expert, while admitting he had not made field tests, testified that the operations could adversely affect wells, and he questioned the sufficiency of the testing done by plaintiff’s geologist.

With respect to these factors, the court made the following findings of fact, which we find supported in the evidence:

“9. There is blasting two to three times per week at the Avery quarry [adjacent to proposed quarry on the southwest] and the Boughton quarry and there have been several complaints regarding noise and vibration, but not damage to any structures or wells and no injuries to persons resulting from the quarry operations.
10. The mining and quarry of the subject land as proposed by plaintiffs will not substantially adversely affect the wells, structures and improvements on or the use and enjoyment of nearby properties. Plaintiffs’ proposed use of the subject land will not be injurious to the use and enjoyment of other property in the immediate vicinity or impair property values within the immediate area. All of the evidence of the defendants as to damages from the Plaintiffs’ proposed quarrying operations was conjectural and speculative and due to the fear of the general public of mining operations involving blasting. These fears can be alleviated by the strict regulations of the various governmental bodies having jurisdiction over such operations.
* * *
12. A permit has been issued to the Plaintiff, Boughton Trucking and Materials, Inc., by the Illinois Environmental Protection Agency for its initial gravel mining operation on the subject land and it will have to secure a further permit for its operation of the proposed quarry.
13. Boughton Materials will use water sprayers to prevent dust air pollution and a system of sediment ponds to prevent water impurities and sedimentation from being discharged into the Du Page River. Plaintiffs’ proposed use will not cause air or water pollution. Adequate provisions for drainage are also provided in Plaintiff’s proposed use.”

With respect to the findings as to damage to nearby properties, both physical and economic, the defendants point to their experts’ testimony in urging that the court’s findings are contrary to the manifest weight of the evidence. As noted, previously, however, the plaintiffs’ evidence was based upon past effects of previous mining and quarrying and upon tests at the present site. We find that an issue was presented which required an assessment of credibility and a determination as to the weight of the evidence, which matters are for the trial court. We will not disturb its findings. Neither do we find the court’s conclusions with respect to the highest and best use of the property contrary to the manifest weight of the evidence.

“14. The Will County Land Use Plan for the subject property is for multiple family, commercial and open space uses which are not its highest and best use. The Land Use Plan was not followed by Will County in 1980 when the Avery parcel adjoining to the South was zoned for general industrial uses together with quarrying with blasting and concrete special uses, it having also been planned for multiple family and open space uses. The quarrying of the adjoining Avery parcel and the concrete plant operation thereon and the corridor of quarries South along the Du Page River are the dominant uses in the area of the subject land other than agriculture. There is no probable prospect for development of the subject land or the lands adjoining for residential purposes in the foreseeable future.”

The defendants, especially the county, assert that the evidence before the trial court established that there would be considerable adverse effect upon county roads in the area, if the proposed quarry operations were permitted. The county superintendent of highways testified that the existing heavy use of two principal roadways in the area by currently operating quarries is causing considerable damage, resulting in large scale road failure in the area. He testified that neither 111th Street nor Plainfield-Naperville Road were designed to handle the truck traffic presently on them. He testified that 111th Street, at the time of trial, had only one year’s useful life left, and that it would need widening and resurfacing. The defense expert agreed that 111th Street was under severe structural stress and in need of repair. The county’s man also testified that the Plainfield-Naperville Road could be expected to last for another 10 to 12 good years, although it would eventually succumb to damage from the use by quarry trucks. It was his testimony that the expected life use of the road would be cut in half, if the proposed quarry operation were permitted. The defense expert did not quarrel with condition of the road, or its current useful life projection, but his testimony was that the additional traffic generated from the proposed quarry would have only a negligible impact on Plainfield-Naperville Road, given the existing heavy use from other quarries in the area. The trial court found:

“Although Plaintiffs’ proposed use of the subject land will generate a daily average of one hundred quarry trucks on 111th Street and Plainfield-Naperville Road, adequate access roads exist in that the same roads are used by quarry trucks from the Avery, Elmhurst-Chicago, E & E Hauling, Material Service and the present Boughton Materials quarries. Both Naperville Road and the 111th Street are presently and will remain burdened by truck traffic serving these other quarries and in any event will require maintenance and repair to sustain such traffic. The increase in traffic will not by itself substantially damage or shorten the life of these roads; that, in any event, Will County will in the future have to resurface 111th Street and rebuild Plainfield-Naperville Road. The Plaintiffs’ operating plan provides adequate measures for ingress and egress so as to minimize traffic congestion in the area.”

The county, on this appeal, asserts that its evidence as to road damage demonstrates the considerable detriment to the public welfare, in terms of costs of repair, if the proposed operation is permitted. We find, however, that the evidence was conflicting on this question and that the trial court’s determination thereon is not contrary to the manifest weight of the evidence. We find the court correctly concluded that the county would experience problems with both roads in the future, regardless of the additional traffic from the proposed quarry. These are roads which already carry the quarry traffic from five other nearby quarries, and they were not designed for such heavy use. The evidence was that continuing damage was being done, requiring resurfacing of 111th Street in the immediate future, regardless of any increased traffic. As concerns Plainfield-Naperville, it is difficult to believe, and the trial court did not, that the addition of trucks from the proposed quarry, by itself, would result in shortening the useful life of that road by five to six years.

The county also objected to the planned earthen berm at the edge of the rights-of-way on 111th Street and the Plainfield-Naperville Road. It asserted that such berms will result in extra hazards for motorists, decreasing visibility and increasing the problem of snow removal. However, as the plaintiffs point out, the county zoning ordinance requires the six-foot-high earthen berm, with a chain link fence, and specifies that it shall be on the borders of the property. The highway superintendent testified that a setback of 30 feet for the berms would solve the hazards he anticipated.

To summarize thus far, the facts, as found by the trial court and as supported in the record, indicate the proposed use is consistent and compatible with adjoining current uses; is not disruptive to long-range planning, as stated and as actually developing; and does not significantly diminish property values of adjoining properties or otherwise adversely affect them. Under these circumstances, the county’s argument that the property’s current agricultural use is profitable and beneficial loses some of its impact. No one denied that the farm use was profitable, but the evidence was clear that its highest and best use was a quarry, and that such use would result in a doubling of the value of the property. Certainly, that is not determinative, as plaintiffs’ took an obvious business risk when obtaining the option with its current zoning. (Meyer Material Co. v. County of Will (1977), 51 Ill. App. 3d 821, 828, 366 N.E.2d 1149.) On the other hand, the property need not be unsuitable for its classified use, and “it is sufficient that a substantial decrease in value results from a classification bearing no substantial relation to the public welfare.” (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 48, 145 N.E.2d 65.) The question of the suitability of the property for its present use must be viewed in conjunction with the overall issue of benefit and harm to the public and the landowner. Here, under the facts as found below, denial of the proposed permit would work an economic hardship on the plaintiffs, while permitting the operation would have little adverse impact upon the public or surrounding landowners. The defendants’ general assertion that the property has contributed to the public good as a farm may well be true, but even the county acknowledges the valuable natural resources underlying the property and their benefit, in the way of commerce, for the county and the area. The fact that the property is suitable as a farm is not determinative or conclusive as to whether the county’s action in denying the special use permit is to be upheld. The evidence, as determined by the trial court, whose findings are supported in the record, establishes that there would be substantial hardship upon the landowner, with little corresponding public benefit, if the action of the county board is upheld. In addition, the evidence does not establish any significant harm to the public if the property is developed as a mining and quarrying operation. The trial court expressly found that the proposed use would not be detrimental to the public health, safety, or welfare. The public welfare was found not to have a substantial relationship with the denial of the special use permit to plaintiffs. We agree with the trial court’s findings. Plaintiffs met their burden of proof and the court’s findings on the evidence were not against the manifest weight.

One other finding of the court is pertinent, as it bears upon a central argument of the defendants on appeal. The court found:

“The limestone, sand and gravel on the subject site are valuable natural resources needed for the general welfare of the public and as such, should be preserved for mining purposes. There is no doubt that a quarry is a useful enterprise.”

The defense does not deny the usefulness of the property for mining and quarrying, nor the valuableness of the property as a mine and quarry. Rather, the county takes the position that it had the power to deny the special use request, based upon the factors already mentioned and upon their desire and decision to preserve the natural resources for future development. Pointing to evidence in the record of a slackening demand and an adequate supply of sand, gravel and limestone, the county asserts that it is a considerable public benefit to have this land set aside for future development, as a mine and quarry, rather than for current development. Initially, the argument has a superficial attraction, for no one disputed that supply is ample and demand decreasing. However, upon reflection, the argument is not sound. The county, acting as conservator of the county’s resources, broadly asserts the public benefit in keeping these resources untapped, so as not to deplete the future reserves available for use and development. However, the specific benefits to the county and the public in preventing current development are not put forth. Just how the public will benefit from preventing Boughton from operating a mine and quarry is not shown by the defense. There is no showing for a community need for these resources that will be adversely affected unless the permit is denied. Nor is it shown -how the county’s revenues, employment, or situation would benefit by denying the permit at this time, while permitting development in the future. The fact is that the resources are on private land, owned by private individuals. Saving the resources for the future would have a potential benefit to some future developer who could obtain the property for a lesser value as a farm. No specific and direct benefit to the public in saving the resources was established. The land and the resources thereon are not the public’s, but the owners’ property. In the instant case, not permitting development causes a significant percent decrease in the value of the property to him. If we were to conclude that the county may decide which privately owned resources are to be developed, and which are to be left for future development, the effect would be to give the county the power and authority to decide which private developer can profit from his investment and which cannot. There is some demand for sand, gravel and limestone, albeit a decreasing one at this time, but such circumstance does not allow the county, in effect, to determine who is permitted to compete for that limited demand, all under the guise of saving resources on private property for some future, vague, and undefined public good. (See Swain v. County of Winnebago (1969), 111 Ill. App. 2d 458, 467-68, 250 N.E.2d 439.) Furthermore, we question the county’s conclusion that the resources of Will County would be saved. The net amount of resources available will be the same regardless of whether this quarry is opened or not. The difference is that the distribution of available resources will vary among property owners. If the present permit is denied, the plaintiffs will pay the price of “reserving resources for future use.” If plaintiffs are permitted to operate the mine and quarry, then the burden of possessing future resources will fall upon all of the quarry operations, depending, of course, upon the effects of the market.

The county did not sufficiently establish a public need for the preservation of these resources until some future date. The plaintiffs did meet their burden of showing that the denial of the permit bore no substantial relationship to the public health, safety and welfare. The trial court decision and judgment is affirmed.

Affirmed.

HEIPLE and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    MALIA DAWN STROMQUIST, Plaintiff-Appellee, v. BURLINGTON NORTHERN, INC., Defendant-Appellant.
    Third District
    No. 82—47
    Opinion filed January 6, 1983.

      Kenneth J. Wysoglad, Thomas J. Knapp, and Michael L. Sazdanoff, all of Chicago, for appellant.
    Jerome Mirza, of Jerome Mirza and Associates, Ltd., of Bloomington, and Braud, Warner, Neppl & Westensee, Ltd., of Rock Island, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

A car-train collision at a railroad crossing in Orion, Illinois, on January 29, 1977, gave rise to the instant lawsuit. The plaintiff, Malia Stromquist, the driver and sole occupant of the car, brought suit against the defendant railroad seeking recovery for injuries she incurred in the collision. Her complaint alleged two legal theories for recovery, one ordinary negligence and the other wilful and wanton conduct. A Henry County jury returned a verdict for the plaintiff under both theories, awarding $425,000 for compensatory damages and $100,000 for punitive damages. The railroad appeals from the verdict of the Henry County Circuit Court alleging numerous errors.

It appears from the record that the crossing in question, the 12th Avenue crossing, had been a source of concern in the Orion community for some time prior to January 29, 1977. During the 10-year period immediately preceding the collision in question, five other mishaps had occurred at the same crossing. The crossing was equipped with cross buck signs as warning devices, and train speeds in Orion were limited to 30 miles per hour and the speed limit on 12th Avenue as 25 miles per hour. Nonetheless, the peculiar nature of visual obstructions at the 12th Avenue crossing, as noted on a visibility survey conducted in September of 1976, resulted in the sight distance existing in each quadrant of the crossing being less than the desired distance under the defendant’s guideline. For this reason and others, village officials in Orion approached the railroad in the early 1970’s seeking to have improved warning devices installed at the crossing. Specifically, the village sought to have the 12th Avenue crossing “signalized,” with flashing lights and bell. According to the testimony of the village clerk, this request was agreed to by the railroad conditioned on the village’s agreement not to oppose the removal of the 13th Avenue grade separation and the closing of the 10th Avenue crossing.

Again in 1975, in response to a fatal mishap at the subject crossing, village officials met with representatives of the railroad and the Illinois Commerce Commission. Again, the subject of the meetings was the signalization of the 12th Avenue crossing. And again, according to the village clerk, the railroad’s position was that if the village pressed to have the 12th Avenue crossing signalized, then the railroad would seek to close the 10th Avenue crossing.

The same fatal collision generated other appeals to the railroad to take steps to improve the 12th Avenue crossing. A coroner’s jury inquiring into the death recommended signalization of the railroad crossing. The president of the P.T.A. in the Orion school district wrote the railroad requesting flasher signals at 12th Avenue. After a period of no response, the P.T.A. orchestrated a letter writing effort to State legislator Clarence Neff, who contacted both the railroad and the Illinois Commerce Commission.

Finally, in August 1976, the village of Orion petitioned the Illinois Commerce Commission to signalize 12th Avenue. After the village’s petition was filed, the railroad filed its counterpetition suggesting that 12th Avenue should be signalized and 10th Avenue should be closed. Hearings on the petitions began in November 1976 and were concluded on January 25, 1977, just four days before the collision involving the plaintiff.

January 29, 1977, was a cold day in Orion, Illinois, with temperatures hovering around zero. A few days before snow had fallen on the village and the oil and chip surface of 12th Avenue was still snow packed. At approximately 4:40 p.m., the plaintiff was westbound on 12th Avenue, en route to a roller skating rink to pick up her sister and a cousin. While dusk was overtaking daylight, it was not snowing and visibility was good.

As the southbound train approached Orion with three engines followed by 66 freight cars and a caboose, the engineer began to sound the engine’s whistle and activated the automatic engine bell which rang continuously. As the train moved through Orion, the head brakeman was keeping a lookout for vehicles that would be approaching the track from the east, which was to his left as he faced the front of the engine, and the engineer was keeping a lookout toward the west, which was to his right as he faced the front of the engine. The brakeman first saw the plaintiff’s car when it was 100 feet east of the crossing and the engine was 190 feet from the same point. The brakeman estimated the car’s speed at 15 miles per hour, a speed it maintained without reduction as it approached the crossing. Realizing that the car was not stopping, the brakemen shouted to the engineer, who applied the train’s emergency brakes. It was too late to avoid the impact.

The engine pushed the 1976 Dodge Colt to the south for a short distance, and then the auto came off the track, slid to the west and rolled into a ditch on the west side of the track. The plaintiff was thrown from the auto, receiving a severe blow to the head. When the engine came to a stop approximately 500 feet south of 12th Avenue, the head brakeman immediately headed back to the scene of the collision. As he approached plaintiff’s car, he heard loud music coming from the speakers from the radio and tape player.

The plaintiff was unconscious at the scene, and after being taken to the hospital by ambulance, she remained there continuously for just over eight months. For the first two months, she was incapable of any voluntary movement except to follow individuals with her eyes. Fortunately, however, after extensive therapy and rehospitalization for orthopedic surgery, the plaintiff was able to leave the hospital ambulatory and independent in her activities of daily living, though not without some degree of permanent impairment.

Presented this account of the collision and the events which preceded it, the Henry County Circuit Court jury returned a verdict for the plaintiff itemized as follows:

Nature extent and duration of the injuries $238,000

Disability 38,000

Past pain and suffering 30,000

Future pain and suffering 8,000

Medical expenses 54,000

Loss of earnings 7,000

Future loss of earnings 50,000

The jury also returned a general verdict for $100,000 in punitive damages against the defendant.

While the defendant raises numerous alleged errors with this appeal, several concern the award of punitive damages, whether that award was supported by the. evidence, and whether certain evidence was properly admitted in support of that award. We note that our laws provide that irrespective of the orders or proceedings of the Illinois Commerce Commission, a railroad has a common law duty to provide adequate warning devices at its railroad crossings. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1970), 121 Ill. App. 2d 445, 257 N.E.2d 216, aff'd (1971), 49 Ill. 2d 118, 273 N.E.2d 809; Applegate v. Chicago & North Western Ry. Co. (1948), 334 Ill. App. 141, 78 N.E.2d 793.) Further, where that duty is breached wilfully and in conscious disregard of the public safety, an award of punitive damages will lie. (Reiss v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1979), 77 Ill. App. 3d 124, 395 N.E.2d 981.) Finally, where conscious and wilful conduct is asserted, despite earlier authority to the contrary, recent decisions allow into evidence various incidents which show notice to the railroad that crossing protection was inadequate. (First National Bank v. Illinois Central Gulf R.R. Co. (1978), 62 Ill. App. 3d 36, 378 N.E.2d 1329.) With these points of law in mind, we consider the defendant’s allegations of error.

Admitted into evidence was the testimony of the village clerk, the P.T.A president, State legislator Neff, and the county coroner. The railroad urges that the testimony of each of these witnesses amounted to hearsay, nonexpert opinion as to the adequacy of the warning devices at the 12th Avenue crossing. We believe the defendant incorrectly states the limited purpose for which this testimony was admitted. We understand that evidence of prior complaints and prior accidents is probative of the railroad’s actual knowledge, and such evidence would be relevant in the jury’s consideration of the wilful and conscious nature of the defendant’s conduct. (Mathis v. Burlington Northern, Inc. (1978), 67 Ill. App. 3d 1009, 385 N.E.2d 780; First National Bank v. Illinois Central Gulf R.R. Co.) For this purpose and under these circumstances, we believe the circuit court correctly applied the recent case law in admitting testimony. We likewise find no error in admitting the coroner’s testimony about his jury’s recommendation; the proviso which limits admission of the coroner’s verdict into civil proceedings (Ill. Rev. Stat. 1981, ch. 31, par. 19) applies only to “said civil suit or proceeding” arising by reason of the death examined in the coroner’s verdict.

Having determined that the testimony objected to was properly admitted, we now conclude that the jury’s award of punitive damages was adequately supported by the evidence. The record reveals that the railroad made a conscious, studied decision over a period of years not to upgrade the safety devices at the 12th Avenue crossing. This decision was reached in spite of repeated notice, in one form or another, that reason existed to doubt the sufficiency of the cross-buck warning devices. Indeed, there was evidence from which the jury could have concluded that the railroad callously chose to jeopardize the public safety at the 12th Avenue crossing unless and until it was permitted to close 10th Avenue. To deliberately hold the public safety hostage and to demand a ransom before performing a duty imposed by law are acts which illustrate the particularly reprehensible want of care which will sustain an award of punitive damages.

The railroad urges that the itemized verdict of the jury does not appear to be discounted for the comparative negligence of the plaintiff. The itemized verdict listed seven items of damage. Two of those items, medical expenses and loss of future earnings, were awarded in the maximum amount requested by the plaintiff. The other items were all discounted from the amount sought by the plaintiff. Assuming but not deciding that the plaintiff was guilty of contributory negligence as a matter of law, it is nevertheless apparent that the jury found plaintiff negligent and so reduced their verdict. Since the jury was instructed only to discount the total verdict by the percentage of the plaintiff’s negligence, and since discounting the total verdict amount appears to have occurred, it cannot be said that the jury failed to properly follow their instructions. The bench and bar should note, however, that jury instructions which require a pro-rata discount of each item of damages would better serve the legislative purposes of section 65.1 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 65.1). See also Doering v. Janssen (1979), 76 Ill. App. 3d 62, 394 N.E.2d 721.

Prior to trial, the plaintiff hired two traffic engineers to study the railroad crossing in question for the purpose of reaching an opinion as to the safety of the crossing. One such expert was not called to testify. The defendant railroad was not permitted to comment on the absence of this witness, a ruling that it believes was erroneous. The railroad contends that the rule established by Santiemmo v. Days Transfer, Inc. (1956), 9 Ill. App. 2d 487, 133 N.E.2d 539, makes the absent witness a proper subject of comment. In Santiemmo, the findings of the expert witness, a physician engaged for the purpose of litigation, were referred to in testimony and in argument. The court found it proper comment on the absence of the expert witness. In the instant case, no reference to the absent witness was made before the jury. Thus, no testimony by implication, without opportunity for cross-examination, occurred. Also, no witness was excluded from the courtroom because of being under a litigant’s exclusive control. In Department of Transportation v. Gonterman (1976), 41 Ill. App. 3d 62, 354 N.E.2d 76, it was determined that where an expert witness is not called for trial, and the expert is for hire and available to either party, it is error to permit any comment on the absence of that witness. It would appear that the Gonterman decision more closely resembles the facts of this case, arid that rule should apply here.

During the course of pretrial discovery, the defendant railroad requested by interrogatory a list of the plaintiff’s witnesses. Omitted from the list provided in response was State legislator Neff. Nevertheless, Mr. Neff was called to testify. The circuit court did recess the trial to permit the defendant to interview witness Neff before proceeding. The defendant now contends that this corrective measure was inadequate and Mr. Neff was erroneously permitted to testify. The sanction of barring a witness from testifying is within the discretion of the trial court. (Brzezinski v. Gajda (1972), 5 Ill. App. 3d 977, 284 N.E.2d 383; Kujala v. Jackson (1970), 123 Ill. App. 2d 11, 259 N.E.2d 648.) In exercising its discretion, the court must consider whether the omission of the witness’ name was intentional or inadvertent, the opportunity of opposing counsel to interview, and the importance of the witness’ testimony in the proceeding. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 419 N.E.2d 578.) Here, Mr. Neff’s testimony was essentially cumulative in terms of establishing notice, his name was only brought to the attention of plaintiff’s counsel the week of trial, and an opportunity to interview was provided. In light of these factors, it would not appear that the circuit court abused its discretion in permitting Mr. Neff to testify.

Three jury instructions, either given or refused, have been made the subject of our consideration by this appeal. The first was given by the trial court and charged the jury as follows:

“If you decide that the defendant was negligent and that its negligence was a proximate cause of the injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.”
“When I use the expression ‘proximate cause’, I mean a cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor that last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.”

The railroad believes this instruction was incorrectly given. It alleges no evidence to support a theory of intervening cause exists in the record. We disagree. While acknowledging that instructions should not be given unless supported by facts in the records (Graves v. Wornson (1978), 56 Ill. App. 3d 873, 371 N.E.2d 692), in the instant case the jury did hear evidence that the pavement on the village streets was snowpacked. Since such a condition could be construed as a contributing cause, and since the trial court has broad discretion to determine what issues have been raised by the evidence (Burge v. Morton (1981), 99 Ill. App. 3d 266, 425 N.E.2d 539), we find no error in the instruction as given. Similarly we find no error in the circuit court’s refusal to instruct the jury that the railroad had no responsibility for maintaining the 12th Avenue approach to the railroad crossing. Our review of the record discloses that this issue was not raised by the evidence, and therefore it was not error to refuse the instruction. Burge v. Morton.

Finally, the circuit court refused a special verdict form tendered by the defendant and instead chose to give a general verdict form to the jury. We note that in its landmark decision, Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the supreme court advises that the use of special verdicts and special interrogatories will serve as a guide to assist the jury in its deliberations. Thus, while endorsing the use of special verdicts where helpful, Alvis does not prohibit the use of the general verdict form where it adequately charges the jury. Further, the special verdict form refused by the circuit court was defective in that it failed to provide for a potential award of punitive damages based on a finding of wilful and wanton conduct. It would not be error for the trial judge to refuse a special verdict form where that form itself is defective.

Two errors were detailed in defendant’s brief which, although supported by the record, would appear harmless. Plaintiff was permitted to elicit from Deborah DeCrane certain hearsay testimony concerning plaintiff’s post-recovery employment. Since this inadmissible testimony was essentially cumulative, it should not provide the basis for reversible error. Also, the plaintiff was permitted to ask a single question of defendant’s public works engineer which called for conjecture and speculation. While the question dealt with the railroad’s position toward signalization of the 12th Avenue crossing if the village’s petition had not been filed before the Illinois Commerce Commission, we find the record so replete with admissible evidence regarding the railroad’s actual actions and statements as to render this single question and answer inconsequential to the verdict rendered. Perfect trials exist only in fiction, and we are not called upon to insure that the record is totally free of error. Rather, we have as our object to determine whether any error occurred which operated to the prejudice of the defendant or unduly affected the outcome below. (Needy v. Sparks (1977), 51 Ill. App. 3d 350, 366 N.E.2d 327.) No such error occurred here.

For the reasons set forth, and in reliance on the authorities cited, the verdict rendered by the circuit court of Henry County is affirmed.

Affirmed.

BARRY, P.J., and ALLOY, J., concur.


author: JUSTICE STOUDER

text:
    CENTURY 21 ALLEN REALTY, INC., et al., d/b/a CENTURY 21 GOLD KEY REALTY, Plaintiffs-Appellants, v. RAYMOND W. BODINUS et al., Defendants-Appellees.
    Third District
    No. 82—309
    Opinion filed January 11, 1983.
    James S. Dixon, of Peoria, for appellants.
    Bruce P. Fehrenbacher, of Whitney & Potts, Ltd., of Elmwood, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This action was brought by the plaintiff, Century 21 Gold Key Realty, in order to recover a commission claimed due from the defendants, Raymond, Mildred, Lloyd and Florence Bodinus, pursuant to the terms of a listing agreement which gave the plaintiff the exclusive right to sell certain farmland owned by the defendants. The trial court granted the defendants’ motion for summary judgment.

On September 17, 1980, the defendants entered into an exclusive listing contract with the plaintiff whereby the plaintiff agreed to procure a purchaser for the subject farmland on the terms set forth in the listing agreement in return for the defendants’ promise to pay the plaintiff a sales commission, calculated as five percent of the actual sale price or the amount by which the actual sales price exceeded the selling price of $972,000, whichever sum was less.

On November 11, 1980, the plaintiff presented to the defendants the purchase offer of Lloyd Fehr. Fehr offered to purchase the defendants’ property by agreement for warranty deed for the total price of $990,000 payable as follows: (1), a down payment of $10,000 paid on November 11, 1980; (2), a payment of $89,000 due December 1, 1980; (3), a payment of $198,000 due March 1, 1981, and (4), the balance of $693,000 due in 10 equal annual installments of principal and interest, at the rate of 88k% per annum, each installment being in the amount of $104,282. The offer was further subject to Fehr obtaining the right to assign his interest in the contract for warranty deed under the same terms and conditions to an equally qualified buyer.

Fehr’s offer was never accepted by the defendants. The defendants later counteroffered by submitting to Fehr a draft of a conditional acceptance of contract to purchase real estate, which incorporated by reference a proposed agreement for warranty deed. The proposed agreement contained a payment clause identical to the method of payment offered by Fehr except for one difference, the 10 annual installments of principal and interest were in the amount of $106,798 each and not $104, 282 as Fehr had offered.

In addition, the proposed contract prohibited the assignment of the purchaser’s interest in the realty without first obtaining the prior written consent of the defendants, except for an assignment to a member of the purchaser’s family for the purpose of consummating a trade in exchange of real estate, said assignment not to relieve the purchaser of any personal liability on the contract unless agreed to in writing by the defendants. The parties never agreed to the terms of this proposed contract, and several other counterproposals were made by the defendants, none of which were accepted by Fehr.

Thereafter, Fehr insisted that the defendants agree to release him from any liability on the proposed contract upon the assignment of his interest to his brother-in-law, Jack Knoblack, in exchange for a farm owned by Knoblack. Negotiations broke down because of Fehr’s insistance upon a release from liability and the sale of the defendants’ property was never consummated with Fehr or with any other party at the time the listing contract expired on November 15,1980.

The plaintiff later filed suit against the defendants claiming that the plaintiff had earned a sales commission by the production of Lloyd Fehr’s offer. The defendants filed a motion for summary judgment arguing that the plaintiff never produced an offer which conformed to the terms set forth in the listing contract. Specifically, the payment terms offered by Fehr were not in conformity with the listing agreement and Fehr’s proposed release of liability upon assignment, a subject not covered in the listing contract, was not a term acceptable to the defendants.

On April 1, 1982, the trial court entered an order allowing the defendants’ motion for summary judgment, stating that there was no question of material fact, the payment amounts set forth in Fehr’s offer not meeting the requirements set forth in the listing contract and Fehr’s offer failing because of his insistance upon release from personal liability in the event of assignment.

The plaintiff requests we review whether the trial court erred in granting the defendants’ motion for summary judgment because an issue of material fact existed as to whether Fehr’s payment terms in his offer met the payment terms required in the listing contract and as to whether Fehr’s offer failed due to his insistance upon a release from liability on assignment.

A motion for summary judgment is proper only when the pleadings and affidavits show that the movant is entitled to it as a matter of law, such right being clear and free from doubt, and no genuine issue as to a material fact exists. Yakupcin v. Baker (1980), 83 Ill. App. 3d 624, 404 N.E.2d 869.

If the trial court’s decision had been based solely on the inconformity of Fehr’s offered payment terms with those contained in the listing contract, summary judgment would have been inappropriate because we believe a genuine issue of material fact existed as to the meaning of the listing contract in this respect; however, because it is clear that the parties never came to terms on the release from personal liability issue, summary judgment on that basis was proper.

The payment terms clause in the listing contract stated that the balance due after the initial down payments was to be paid in “Ten (10) equal principal installments including interest from March 1, 1981, at the rate of Eight and Three Fourths (8 3k%) Percent per annum ***.” Fehr’s initial offer interpreted this statement to mean all installments of principal and interest were to be in equal amounts, but the defendants claimed that the statement meant only principal payments were to be in equal amounts, interest being calculated on the balance due from time to time. Therefore, each payment of principal and interest would decline in amount until the balance due was fully paid.

Alternatively, the defendants argue that even if Fehr’s interpretation of the installment payment terms was correct, he miscalculated the annual payment amount of principal and interest. The payment terms of the defendants’ proposed agreement for warranty deed included 10 equal installments of principal and interest in an amount the defendants deemed to be the correct calculation, thus, accepting Fehr’s initial interpretation of the listing contract, although not his calculations.

It is apparent that the true construction of the listing contract’s payment terms was a disputed issue of fact, not one to be decided as a matter of law in a summary judgment procedure. The language used in the listing contract as to the installment payments was ambiguous, and the intent of the parties was unclear as evidenced by their subsequent negotiations.

On the other hand, there was never a question that Fehr would not contract without an agreement from the defendants that he be released from personal liability upon assignment of his interests in the contract. This is admitted in the plaintiff’s reply to motion for summary judgment, by the affidavit of the sales agent involved in the transaction. It has never been denied that the defendants did not accept Fehr’s original offer and that Fehr did not accept any of the counter offers made by the defendants.

His final insistance on the liability release represented an offer which was never accepted by the defendants. Such a term was not mentioned in the listing contract and, therefore, had to be agreed to by the parties before a contract could result. Because no agreement existed, Fehr was not an acceptable purchaser pursuant to the terms of the listing contract, and the plaintiff was not entitled to a sales commission. Because no genuine issue of material fact exists as to this failure to contract and the pleadings and affidavits show the defendants are entitled to a summary judgment as a matter of law, the trial court’s order of summary judgment in favor of the defendants was not in error.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE JONES

text:
    ESTHER POTTS, Indiv. and as Adm’x of the Estate of Alvin A. Potts, deceased, et al., Plaintiffs-Appellees, v. MADISON COUNTY MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    Fifth District
    No. 81—346
    Opinion filed January 6, 1983.
    Rehearing denied February 4, 1983.
    Joseph R. Davidson, Jane E. Wolf, and Don A. Shaffer, all of Bernard, Davidson & Kaseberg, of Granite City, for appellant.
    Philip B. Alfeld and David L. Blunt, both of Paul L. Pratt, P.C., of East Alton, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

Three plaintiffs, Esther Potts, individually and as administratrix of the estate of her deceased husband, Alvin A. Potts, Georgia Potts, individually and as administratrix of the estate of her deceased husband, Arley Potts, and Deborah Icke, individually and as administratrix of the estate of her deceased husband, David Icke, brought this action for a declaratory judgment permitting plaintiffs to aggregate or “stack” benefits potentially payable pursuant to certain provisions under the uninsured automobile coverage of seven insurance policies issued by defendant, Madison County Automobile Insurance Company. After a hearing the circuit court ruled that the seven policies could be “stacked.” Defendant appeals from that order.

On April 29, 1979, David Icke, Alvin Potts and his father, Arley Potts, were traveling in a Toyota automobile, owned by Arley Potts, when an uninsured vehicle owned and operated by Ted Vance Williams collided with the Toyota. The three occupants of the Toyota were killed. At the time of the collision Alvin Potts was insured under three policies written by the defendant for three separate vehicles owned by him. Likewise, at the time of the collision David Icke was insured under two policies written by defendant for two separate vehicles owned by Icke, and Arley Potts was insured under two policies written by defendant for two separate vehicles owned by him, one of which was the Toyota involved in the collision. The limits of uninsured automobile coverage provided in each policy are $10,000 for each person and $20,000 for each accident. The three insureds lived in households separate from one another.

Before we examine the pertinent provisions of the policies and the case law with respect to them, we must address our attention to serious omissions in the record. At the hearing only two of the seven policies in dispute were introduced into evidence. Thus, five of the seven policies in dispute are absent from the record without explanation. Furthermore, the record does not indicate with certainty which decedent was issued either of the two policies that were entered into evidence. Unfortunately, these two policies differ in one important respect within one of the two paragraphs of the “Other Insurance” provision contained in each policy with the result that, in order to determine whether the policies may be stacked, the ownership of them must first be determined. However, the ownership of the policies cannot be established with certainty from this record.

Of the two policies entered into evidence one bears the words, “EFFECTIVE DATE: 4-1-79.” The other policy indicates no effective date. An examination of plaintiffs’ exhibits, which include, among other things, a declarations page for each of the seven vehicles involved, suggests that only one of the seven vehicles was purchased on or after April 1, 1979, a 1974 Mazda purchased in “4/79” by Arley Potts, according to the declarations page admitted as part of Plaintiffs’ Exhibit Group 4. This page is dated April 18, 1979, and provides for a policy period of six months from “4-18-79 [t]o 10-18-79.” The other six vehicles appear from the evidence to have been purchased and insured by defendant prior to April 1, 1979. By inference, then, the policy bearing no effective date applies to one of those six vehicles. Because six of the seven vehicles are similar in apparently having been purchased and insured prior to April 1, 1979, and because plaintiffs entered but two of the seven policies into evidence, we infer that the policy bearing no effective date, and apparently covering one of the six vehicles so purchased, is representative of the five policies unaccounted for in the record. The record, such as it is, suggests that the policy effective April 1, 1979, was issued to Arley Potts, that the other six policies in dispute were issued before that date and that those six policies were alike. If that is, in fact, the case, three of those six policies were issued to Alvin Potts, two such policies were issued to David Icke and one such policy was issued to Arley Potts. The inference that six of the policies were alike accords with statements made by defendant in its brief indicating that six of the policies were alike while one differed from them.

However, defendant in its brief indicates that the policy bearing the effective date of April 1, 1979, was issued to Alvin Potts. Thus, not only is the record woefully incomplete, but statements of defendant in its brief seem inconsistent with such evidence as is actually included in the record. Any doubts arising from the incompleteness of a record will be resolvéd against the appellant. (Tomlen Group, Ltd. v. Goldfarb (1981), 101 Ill. App. 3d 154, 427 N.E.2d 1047; Reed v. Hoffman (1977), 48 Ill. App. 3d 815, 363 N.E.2d 140.) Despite the difficulties posed by the omissions in this record, we consider the substantive issues presented. We note that the defendant-appellant, who bears the burden of providing this court with an adequate record for review, though not entirely blameless in the matter, was not primarily responsible for the creation of this deplorable record. To effect a just result, pursuant to our power under Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)), we remand the cause to the circuit court for a determination of precisely which vehicle each of the seven policies, either admitted into evidence or represented by such policy admitted into evidence, actually covered and to whom among the decedents each such policy was actually issued. Having made that determination, the circuit court shall then apply the law as stated in the remainder of this opinion.

Defendant contends initially that the policy issued to Arley Potts for the Toyota, in which the accident occurred, precludes stacking of Arley Potts’ other policy by means of a “Limits of Liability” provision, which appears in both of the policies introduced into evidence. That paragraph provides as follows:

“The limit of liability stated in the schedule as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the schedule as applicable to ‘each accident’ is the total limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.”

Defendant relies upon Sharples v. General Casualty Co. (1980), 85 Ill. App. 3d 899, 407 N.E.2d 674. That reliance, however, is misplaced. In Sharpies the court considered a “Limits of Liability” provision containing language virtually identical to that just quoted from the policies issued by defendant. However, that language in Sharpies was prefaced by the following, which is absent from the provision in the policies disputed in the case at bar:

“Regardless of the number of (1) persons or organizations who are insureds under this policy, (2) persons or organizations who sustain bodily injury or property damage, (3) claims made or suits brought on account of bodily injury or property damage, or (4) automobiles or trailers to which this policy applies ***.” (85 Ill. App. 3d 899-900, 407 N.E.2d 674, 675.)

In Sharpies the plaintiff sought to stack the uninsured motorist coverage for two vehicles insured under a single policy. Concluding that the language of the provision was clear and unambiguous, the court held that the plaintiff could not stack the uninsured motorist coverage.

We think that the language of the policies before us does serve to limit the defendant’s liability under any one of a number of insurance policies owned by an insured to the limits of that policy but that this language does not prohibit the stacking of benefits potentially recoverable under two or more policies. This construction is one that the language of the policy plainly permits. In view of this construction of the provision vis-a-vis .that of the defendant, the provision in the policies is ambiguous and capable of more than one construetion. If a clause is unambiguous, the clause may be applied as written unless it contravenes public policy. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539.) If the clause is ambiguous, however, it must be construed in favor of the insured. {Menke.) Here the clause is ambiguous and must be construed in favor of the insured. Thus, contrary to defendant’s contention, the provision is ineffective to prohibit stacking of benefits potentially recoverable under more than one policy.

We turn now to the “Other Insurance” provision of the policy entered into evidence that bears no effective date, which states as follows:

“With respect to bodily injury to an insured while occupying an automobile not owned by the principal named insured, the insurance under this coverage shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of such other insurance.
Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”

The first paragraph of this provision, known as an “excess-escape” clause (Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71, 289 N.E.2d 97), is applicable only to David Icke and Alvin Potts because each of these two men died of injuries received while in a car he did not own. The combination of the “excess” and “escape” aspects of the paragraph work so that the insured’s company pays compensation in addition to that available from another source up to the limits of the policy, but only to the extent this “other insurance” of the policy exceeds the policy limits of that other source. Winkler v. State Farm Mutual Automobile Insurance Co. (1976), 35 Ill. App. 3d 493, 341 N.E.2d 379.

Defendant maintains that the language of this clause precludes stacking of the coverage of each policy owned by David Icke and Alvin Potts because the “similar insurance” available to David Icke and Alvin Potts refers to the coverage afforded to Arley Potts’ policy on the Toyota involved in the accident. Plaintiffs argue that because the paragraph “makes no mention of other insurance with Madison County Mutual” the paragraph does not prohibit stacking of such coverage. The paragraph in dispute states that “the insurance under this coverage shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance ***.” (Emphasis added.) The paragraph makes plain that the “other insurance” must be both “available” and “applicable *** as primary insurance” and contemplates the situation in which a policyholder is injured in an insured vehicle owned by another person whose insurance coverage is primary. In view of the requirement that the other insurance be “primary,” it makes no sense to say that the “other insurance” referred to in the paragraph embraces other insurance of the insured under the policy in dispute to prohibit stacking because such insurance could not be “primary.” Although neither party cites Winkler where the court held that another, but significantly different, “other insurance” provision unambiguously restricted stacking of two policies issued by the defendant to the decedent therein for separate vehicles, we find it helpful for purposes of comparison. In the policies in Winkler the provision specified that the insurance thereunder applied only as excess insurance over any other similar insurance available to an injured occupant of a motor vehicle not owned by a named insured without the additional requirement, as appears in the provision before us, that the other similar insurance also be primary insurance.

Because the paragraph admits of another construction than that urged by defendant, it is ambiguous and, therefore, must be construed in favor of the insured. (Menke.) For this reason any policies owned by David Icke or Alvin Potts containing this language under the “Other Insurance” provision may be stacked.

We turn now to a consideration of the second paragraph of the “Other Insurance” provision quoted above, which applies to Arley Potts, who was at the time of the collision occupying an automobile he owned. The language of this clause, known as a pro rata clause, is identical to that disputed in Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247. In Glidden an insured to whom that paragraph applied sought to stack the uninsured motorist coverage of three policies issued to him by the same insurer for three separate vehicles. All three policies contained the same provision. The court found the paragraph to mean literally that if there is other insurance also providing uninsured motorist coverage, the liability of the insurer is limited to its pro rata share of such coverage. In construing the clause the court stated:

“The apparent purpose of ‘other insurance’ clauses is to make certain that one company does not pay a disproportionate amount of a loss which is to be shared with another company. There is no purpose in proration unless the ‘other insurance’ is written by another company. The clause has no meaningful purpose when applied to coverage issued by one company to one insured. In this situation its meaning is ambiguous, and the clause should be construed in favor of the insured.” (57 Ill. 2d 330, 336, 312 N.E.2d 247, 250.)

Contrary to defendant’s assertions, this paragraph differs markedly from that disputed in Menke. The meaning of the paragraph, for the reason given in Glidden, is in this situation ambiguous and should therefore be construed in favor of the insured. (See Menke and Glidden.) For this reason any policy owned by Arley Potts containing this language under the “Other Insurance” provision may be stacked.

With respect to the policy bearing the effective date of April 1, 1979, the first paragraph of the “Other Insurance” provision of it is identical to the first paragraph of that provision in the policy bearing no effective date. The clause applies to David Icke and Alvin Potts, each of whom received injuries as an occupant of an automobile he did not own. Because the clause is identical to that which we have already considered, what we have said applies equally to this paragraph as well. Thus, if either David Icke or Alvin Potts is found on remand to have owned the policy bearing the effective date of April 1, 1979, the uninsured motorist coverage provided by it may be stacked.

The second paragraph of the “Other Insurance” provision found in the policy bearing the effective date of April 1, 1979, states as follows:

“Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him including other policies issued by this company and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of any one policy of insurance.”

In Menke, where the plaintiff sought to stack the uninsured motorist coverage clause of one policy containing two uninsured motorist provisions covering two vehicles and a second policy covering one vehicle, both of which were issued by the same insurer, the following clause, appearing under the heading of “Other Automobile Insurance in the Company,” was held to be clear and unambiguous:

“ ‘With respect to any occurrence, accident, death or loss to which this and any other automobile insurance policy issued to the Named Insured by the Company also applies, the total limit of the Company’s liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one such policy.’ ” (78 Ill. 2d 420, 423, 410 N.E.2d 539, 541.)

Defendant argues in its brief that this language of the policies in Menke parallels that of the provision for “Limits of Liability,” which we discussed above, but does not suggest that the language parallels or has any application to that of this paragraph. We, however, think it does. Like the clause in Menke, this clause omits mention of proration between policies. Like the language in Menke, this language is clear and unambiguous, from which, as that court said, “it can be readily seen and understood that coverage [is] limited.” (78 Ill. 2d 420, 425, 401 N.E.2d 539, 542.) If a clause is unambiguous it may be applied as written unless it contravenes public policy. (Menke.) In Menke the court found that public policy was not contravened by the application of the unambiguous clause where, as here, a premium was paid for the uninsured motorist coverage provided by each policy. The policyholder here, as could the plaintiff in Menke, can recover under any one of his uninsured motorist coverages. The clause being unambiguous, it may be applied as written. In view of the words, “Except as provided in the foregoing paragraph,” which paragraph applies, as we have said, only to David Icke and Alvin Potts, the second paragraph can apply only to Arley Potts. Thus, if on remand Arley Potts is found to have been the owner of the policy bearing the effective date of April 1, 1979, the uninsured motorist coverage of that particular policy may not be stacked.

In summary, the policy bearing no effective date and those it represents may be stacked whether issued to Alvin Potts, David Icke or Arley Potts. The policy bearing an effective date of April 1, 1979, may be stacked if issued to either Alvin Potts or David Icke but may not be stacked if issued to Arley Potts.

Affirmed in part; reversed in part; remanded with directions.

HARRISON, P.J., and KASSERMAN, J., concur.


text:
    JOHN RENSHAW, Plaintiff, v. GENERAL TELEPHONE COMPANY OF ILLINOIS et al., Defendants.—(The City of Carmi, Third-Party Plaintiff-Appellee, v. Herman Winter et al., Third-Party Defendants-Appellants.)
    Fifth District
    No. 82—486
    Opinion filed January 31, 1983.

      Hanagan & Dousman, of Mt. Vernon, for plaintiff John Renshaw.
    James M. Wexstten, of Giamanco & Wexstten, of Mt. Vernon, for third-party defendants Herman Winter and Ruby Winter.
    Charles R. Jelliffe, of Jelliffe & Ferrell, of Harrisburg, for defendant General Telephone Company of Illinois.
    John E. Jacobsen, of Campbell, Furnall, Moore & Jacobsen, P.C., of Mt. Vernon, for third-party plaintiff City of Carmi.
   JUSTICE JONES

delivered the opinion of the court:

Is an application for leave to appeal to the appellate court pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308) timely filed although the filing was in the wrong judicial district? We hold that it is.

The Rule 308 application in question is by third-party defendants in a personal injury action commenced by a plaintiff against General Telephone Company of Illinois and the city of Carmi. Plaintiff’s complaint, in two counts, charges wilful and wanton misconduct by both General Telephone Company of Illinois and the city of Carmi. Defendant city of Carmi then filed a third-party complaint against the applicants in which it alleged that the applicants were guilty of negligence that contributed to the occurrence causing plaintiff’s injury and prayed for “contribution in an amount sufficient to represent third-party defendants’ pro-rata share of the common liability to the plaintiff based upon the relative culpability of” the applicants. The application seeks leave to appeal from an order of the circuit court of White County that denied a motion of the third-party defendants to dismiss the third-party complaint. The question certified by the trial court is:

“May a Defendant who has been charged with wilful and wanton acts or omissions seek contribution from a Third Party Defendant based upon said Third Party Defendant’s mere negligence?”

The order denying the motion to dismiss the third-party complaint and certifying the question for a Rule 308 appeal was entered on August 4, 1982. Pursuant to Rule 308(b), the application for leave to appeal must be filed within 14 days after entry of the order that contains the question certified by the trial court. The Rule 308 application for leave to appeal in question was filed within the time limitation. However, due to “inadvertence and mistake” in the office of the attorney for the third-party defendants and Rule 308 applicants, the application was mailed for filing to the office of the clerk of the Appellate Court for the Fourth Judicial District in Springfield. Properly, the application should have been mailed for filing to the office of the clerk of the Appellate Court for the Fifth Judicial District in Mt. Vernon. The application was received and filed in Springfield on the 14th day following entry of the order, August 18, 1982. The error in filing was quickly discovered for, on August 19, 1982, one day too late to vest the appellate court with jurisdiction to consider the application under the Rule (see Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 403 N.E.2d 704), applicants filed with the clerk of the Appellate Court for the Fifth Judicial District their “Motion to File Application For Leave to Appeal Pursuant to Supreme Court Rule 308 Instanter.” Copies of the application, the order of August 4, 1982, and the pleadings, all as filed in the Fourth District Appellate Court clerk’s office in Springfield, were attached to the motion.

In view of the foregoing facts, does this court have jurisdiction to consider the application for leave to appeal pursuant to Rule 308? It does only if the State of Illinois has one appellate court divided into five districts rather than five autonomous appellate courts.

Article VI, section 11, of the Illinois Constitution of 1870 authorized the legislature to create “inferior appellate courts *** in districts formed for that purpose.” This constitutional provision was implemented by an act of the legislature entitled “An Act to establish appellate courts,” effective July 1, 1877 (1877 Ill. Laws 69). Section 1 of that act provided: “There are hereby created four appellate courts in this state, to be called the appellate courts in and for the districts hereby created ***.” (See Ill. Rev. Stat. 1880, ch. 37, par. 18 (Hurd).) The four separate appellate courts thus created remained in existence until the revision of the Judicial Article of the Constitution in 1962.

Article VI of the Constitution of 1870, the judicial article, was amended by the electors of Illinois at an election held on November 6, 1962, the changes to become effective January 1, 1964. The new judicial article made sweeping changes in the organization of the Illinois judicial system. The appellate court was, of course, retained as an integral part of the court system, but its form and composition were altered drastically from that provided in the 1870 Constitution and the 1877 statute. Several provisions are pertinent for consideration here. Perhaps most pertinent would be article VI, section 1, which provided: “The judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts.” A significant key to the purport attending the use of the singular “an” in creating the appellate court in section 1 is found in paragraph 5(b) of the Schedule for implementation of the new judicial article. It provided,

“All the jurisdiction, functions, powers and duties of the several appellate courts shall be transferred to the Appellate Court provided for in this Article, in the appropriate district.”

Section 3 provided: “The state is divided into five Judicial Districts for the selection of judges of the Supreme and Appellate Courts.” (Emphasis added.) Section 6 of the new judicial article provided that “[t]he Appellate Court shall be organized in the five Judicial Districts.” Section 6 also designated the initial number of judges for each of the appellate districts, authorized the supreme court to assign additional judges to service in the appellate court as its business might require and authorized the supreme court to assign appellate judges to the several divisions of the appellate court, either within or without the district of residence of a judge so assigned.

Effective January 1, 1964, the legislature enacted a statute which implemented the provisions of the new judicial article as it concerned the organization of the appellate court. Ill. Rev. Stat. 1963, ch. 37, par. 25.

Article VI of the Illinois Constitution was again amended when the electors of Illinois adopted a new constitution on December 15, 1970, to be effective on July 1, 1971. Although article VI of the Constitution of 1970 differed from that adopted in 1962, the changes were minor, and no changes were made which would indicate that anything other than one appellate court for the entire State was intended. In the 1970 Constitution, article VI, section 1 again provided that “[tjhe judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts.” Section 2 still divided the State into five judicial districts for the selection of judges of the supreme and appellate court. Section 5 pertained to the organization of the appellate court and continued the authority granted to the supreme court to assign judges to divisions and districts within or without the district of residence of the judge assigned. Section 6 pertained to the jurisdiction of the appellate court.

As noted, section 5 of the Constitution of 1970 directs the supreme court to prescribe by rule the number of divisions of the appellate court in each judicial district and authorizes it to assign judges to divisions. Section 16 of article VI confers general administrative authority over all courts upon the supreme court and authorizes the temporary assignment of any judge to any court. Pursuant to these sections of the Constitution, the supreme court has adopted Rule 22 (87 Ill. 2d R. 22), which pertains to appellate court organization and which, among other things, makes provision for any division of the appellate court, with the approval of the chief justice of the supreme court, to sit at any place in the State; that is, any division of the appellate court may sit in any judicial district of the State. Rule 22 also creates an executive committee for the one appellate court.

This background of constitutional provisions, statutes and supreme court rules furnishes a ready answer to the question whether Illinois now has one appellate court divided into five districts or five appellate courts. Even a cursory examination of the foregoing leads to the inescapable conclusion that there is but one appellate court. The contrast between the Constitution of 1870, together with its implementing statute, and the 1962 amendment to the judicial article, as well as the present constitution and rules referring to this question, serves to remove all doubt. (See Mattis and Yalowitz, Stare Decisis Among [sic] the Appellate Court of Illinois, 28 DePaul L. Rev. 571 (1979), where the authors cogently argue that Illinois, subsequent to the 1962 amendment of the judicial article and the 1970 Constitution, in fact, has one appellate court. They use a measure of satire in their chosen title to point up their argument that the various divisions and districts of the appellate court themselves often fail to give credence to the one-court concept for purposes of stare decisis.)

It could be stated that the practice followed by the supreme court, the Administrative Office of Illinois Courts and the appellate court subsequent to the constitutional changes fortifies the conclusion that there is but one appellate court for Illinois. As an example, in instances where the judges of one district of the appellate court disqualify themselves to participate in the decision of a case before their court, the supreme court, acting through its chief justice and the Administrative Office of Illinois Courts, will assign the case for decision to a panel of three judges of the appellate court in and for another district. The panel of judges in the transferee district may hear oral argument at the place designated for that district to hold court, decide the case, and issue the order or opinion for filing at the office of the clerk of the transferor district as the decision and opinion or order of that district.

Given, then, that there is but one appellate court with five districts, what is the effect of filing an application for leave to appeal pursuant to Rule 308 in the clerk’s office in the wrong district? This question begs another: if there is but one appellate court, may litigants elect the district in which they may file their appeal?

Article VI, section 6, of the Constitution of 1970 provides, in part: “Appeals from final judgments of the Circuit Court are a matter of right to the Appellate Court in the Judicial District in which the Circuit Court is located except in cases appealable directly to the Supreme Court and except that after a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal. *** The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts.” This provision regarding final judgments is the only reference in the Constitution or the supreme court rules to the proper venue for appeals. The rules of the supreme court governing appeals in civil cases (87 Ill. 2d Rules 301 through 374) and in criminal cases (87 Ill. 2d Rules 601 through 663) do not specify that appeals must be taken to the appellate court of the judicial district in which the circuit court from which the appeal is being taken is located. Nevertheless, it would be idle to suggest that an appeal other than one from a final judgment could be filed in an appellate court district other than that of the district from which such appeal emanates. It is the plain purport of the Constitution, the implementing statute and the supreme court rules that all appeals to the appellate court, from final judgments or otherwise, including all petitions and applications for leave to appeal, must initially be taken to and filed with the appellate court for the judicial district in which the circuit court from which the appeal, petition or application emanates is located. This requirement is implicit in the scheme for appellate review in Illinois. Such requirement for filing is, however, in the nature of venue and is not jurisdictional, the term “jurisdiction” being used to refer to the power of a court to hear and decide a particular case. Accordingly, if a case is initially appealed to an improper appellate court district, it should be transferred to the proper one, either on motion of one of the parties or on the court’s own motion.

While not expressly applicable to the filing of an appeal with the wrong district of the appellate court, Rule 365 (87 Ill. 2d R. 365) nevertheless furnishes guidance for the disposition to be made of an appeal to the appellate court which is filed in the wrong judicial district. That rule is concerned with the mistaken filing in the supreme court of a case which should have been filed in the appellate court and, contrariwise, with an appeal filed in the appellate court that should have been filed in the supreme court. In the event of such misfiling, dismissal is not required; rather, the case is simply transferred to the proper court. Rule 365 further provides that when the record and other papers are transferred to the clerk of the proper court, “[t]hat clerk shall file the record and other papers upon receiving them, without charging an additional filing fee, and the case shall then proceed as if it had been appealed to the proper court in the first instance.” Thus, in the instances addressed by Rule 365, the requirements for timely filing are met although the filing may have been in the wrong court. It can be no less true that a filing which is timely filed in the wrong district of the appellate court may be regarded as timely filed in the proper district of that same court, and transfer of the case to the proper district does not affect the time of filing of any required paper or document.

Having found the application for leave to appeal pursuant to Rule 308 timely filed in the appellate court, this court has jurisdiction to consider the application on its merits.

Rule 308(a) provides in pertinent part:

“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved.”

Whether or not an appeal may be taken pursuant to Rule 308 from an interlocutory order not otherwise appealable requires an exercise of discretion by both the trial court and the appellate court. We have considered the application for leave to appeal, the question certified by the trial court and the pleadings filed in the case which were filed as a record in support of the application. It appears that the question certified is unique in that it has not yet been decided, at least in Illinois. And although it may be said that there is a substantial ground for difference of opinion, we do not feel that an immediate appeal from the order denying the motion to dismiss the third-party complaint will materially advance the ultimate termination of the litigation. The principal case is one for damages for personal injury. The parties are few, and the issues are no more complicated than those of an ordinary personal injury case. Trial of the case should be of comparatively short duration, probably no more than two to three days, and the presence of the subject third-party complaint in the case will neither unduly complicate nor unduly delay the final termination of the case. Accordingly, we deny the application for leave to appeal. Cf. Kraus v. Board of County Road Commissioners (6th Cir. 1966), 364 F.2d 919.

Application denied.

HARRISON, P.J., and KARNS, J., concur.