author: MR. JUSTICE DAVIS

text:
    Lloyd W. Broberg, Plaintiff-Appellee, v. Charles H. Mann, Defendant-Appellant.
    Gen. No. 65-54.
    Second District.
    December 28, 1965.

      William L. Lamey and Charles R. Purcell, Jr., both of Chicago, for appellant.
    North and North, of Rockford, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Charles H. Mann, prosecutes this appeal from a judgment entered by the trial court at a bench trial, in favor of the plaintiff, Lloyd W; Broberg, in the sum of $6,000. The genesis of this litigation was the plaintiff’s purchase of certain land from defendant which plaintiff believed to contain approximately 26 acres, and which, in fact, contained only 18 acres.

The complaint alleged that the defendant represented to the plaintiff that the land in question contained approximately 26 acres, and that the defendant “well knew that the land described in the said deed of conveyance to the plaintiff and his wife was not in quantity the twenty-six acres of land as bargained for and paid for by plaintiff, and that the defendant by trick and device of substituting a new description by metes and bounds on the day that the deal was closed, in the office of defendant’s attorney and by fraudulently and falsely secreting and failing to inform the plaintiff or his attorney of the fact that the land described in the substituted description was not in fact and did not describe land in quantity of approximately twenty-six acres.” It ¿sserted that the plaintiff had been “damaged to the value of the shortage of eight acres unconveyed to him by defendant.”

The defendant contends that the gravamen of plaintiff’s complaint is an action for fraud and deceit; that the elements necessary to establish fraud and deceit have not been proven; and that the plaintiff may not in this court assert a right to recovery based upon mutual mistake. The plaintiff concedes in his brief that this is an action for fraud but states that whether he proved actual or active fraud, or mutual mistake, makes no difference in that under the circumstances of this case mutual mistake constitutes legal fraud warranting relief.

The plaintiff’s case must stand or fall upon the fraud and deceit charged. The issues in this litigation, as in all cases, are determined from the pleadings and evidence; and an issue cannot be sustained by evidence, absent a corresponding pleading, or by a pleading, without supporting evidence. Burke v. Burke, 12 Ill2d 483, 487, 147 NE2d 373 (1958); Consoer, Townsend & Associates v. Addis, 37 Ill App2d 105, 110, 185 NE2d 97 (1st Dist 1962). In Seaburg v. Williams, 23 Ill App2d 25, 161 NE2d 576 (2nd Dist 1959), at page 30, the Court stated:

“In Fornoff v. Smith, 281 Ill App 232, it was said, ‘It is a fundamental rule, with no exceptions, that a party must recover, if at all, on and according to the case he has made for himself by his pleadings. He cannot make one case by his averments, and have judgment on another and different ground, even though the latter is established by the proof. Feder v. Midland Casualty Co., 316 Ill 552; Moss v. Johnson, 22 Ill 633; Lake St. El. R. Co. v. Shaw, 203 Ill 39.’ ”

Likewise, a party may not try a case upon one theory and then present to the court on appeal, for the first time, another and different theory. Benson v. Isaacs, 22 Ill2d 606, 610, 177 NE2d 209 (1961); Consoer Townsend & Associates v. Addis, supra, 109; Continental Ill. Nat. Bank & Trust Co. of Chicago v. National Casket Co., 27 Ill App2d 447, 450, 169 NE2d 853 (1st Dist 1960). The reasons for prohibiting upon review, a change of the theory upon which a case has been tried, are apparent. The proof presented is determined largely by the pleadings, the issues, and the theories there made. To permit a recovery upon a theory which was neither pleaded nor presented below, would preclude the adverse party from presenting evidence in rebuttal thereof and from offering other further or attendant theories predicated thereon. Such procedure would violate the concept of fundamental fairness embraced in our Civil Practice Act, wherein the Legislature sought to liberalize the framework within which disputes are presented to the end that they may be determined on their merits upon a specification of the real issues involved. Fleshner v. Copeland, 13 Ill2d 72, 77, 147 NE2d 329 (1958).

In this regard, section 46 of the Civil Practice Act (Ill Rev Stats 1965, c 110, Par 46) contains liberal provisions relative to the amendment of pleadings. So long as no prejudice will result to the adverse party, pleadings may éven be amended in this court. App Ct Rule 26 (Ill Rev Stats 1965, c 110, Par 201.26). No amendment was here sought. Obviously, in this case a change in theory at this state of the litigation would prejudice the adverse party. Consequently, this action must be considered in this court as an action charging fraudulent misrepresentations by defendant wherein damages are sought by plaintiff.

Comprehensively stated, a misrepresentation to be the basis of a charge of fraud, either in a suit at law or in equity, must contain the following elements:

(1) It must be a statement of material fact, as opposed to opinion;
(2) it must be untrue;
(3) the party making, the statement must know or believe it to be untrue;
(4) the person to whom the statement is made must believe and rely on it, and have a right to do so;
(5) it must have been made for the purpose of inducing the other party to act; and

(6) the reliance by the person to whom the statement is made must lead to his injury.

Bennett v. Hodge, 374 Ill 326, 332, 29 NE2d 524 (1940); Jones v. Foster, 175 Ill 459, 468, 469, 51 NE 862 (1898); 3700 S. Kedzie Bldg. Corp. v. Chicago Steel Foundry Co., 20 Ill App2d 483, 487, 488, 156 NE2d 618 (1st Dist 1959); 37 CJS, Fraud, § 3, p 215.

It is essential to the establishment of fraud that the person charged must either have knowledge of the falsity of his statement and, hence, an intent to deceive the other party (Jones v. Foster, supra; Lickus v. O’Donnell, 321 Ill App 144, 148, 52 NE2d 271 (2nd Dist 1943); 19 ILP, Fraud, §§ 4, 10) or must make the false representations in culpable ignorance of their truth or falsity. Brennan v. Persselli, 353 Ill 630, 635, 187 NE 820 (1933). The state of mind and intent of the party charged with fraud is fraudulent if it “includes anything calculated to deceive.” Majewski v. Gallina, 17 Ill 2d 92, 99 160 NE2d 783 (1959); People v. Gilmore, 345 Ill 28, 46, 177 NE 710 (1931); People ex rel. Karr v. Weihe, 30 Ill App2d 361, 372, 174 NE2d 897 (2nd Dist 1961). The presence or absence of the requisite knowledge and intent to establish fraud may be determined from the evidence and the circumstances surrounding the transaction. Tate v. Jackson, 22 Ill App2d 471, 476, 161 NE2d 156 (4th Dist 1959).

The requisite knowledge and intent may also be imputed to a person if the circumstances otherwise warrant a presumption of fraud. See Wadhams v. Swan, 109 Ill 46, 56, 57, incl. (1884). Such a “presumption” is no more than an inference however, which may be explained away. In Barrett v. Shanks, 382 Ill 434, 47 NE2d 481 (1943), at page 440, the court, in speaking of fraud and the general rule that it will not be established by presumptions stated: “It may be proved by circumstances but it is not thereby established unless the circumstances proved are so strong as to produce a conviction that the charge of fraud is true.”

In Bundesen v. Lewis, 368 Ill 623, 15 NE2d 520 (1938), the court, in announcing the general rule as to presumptions in a case charging fraud, stated at 632:

“Rules governing transactions of this character have frequently been announced by this court. In Weininger v. Metropolitan Fire Ins. Co. 359 Ill 584, it was said: ‘The presumption very properly is that all men are honest. Where fraud is charged it must affirmatively be proved by clear and convincing testimony. It cannot be established upon mere suspicion.5 The burden is upon the one alleging fraud to prove it by ‘such clear and convincing evidence that the mind is well satisfied that the charge is true.5 This is the rule announced in Jaworski v. Sujewicz, 334 Ill 19; also Schiavone v. Ashton, 332 id. 484; Mosbarger v. Brown, 313 id. 238; Carter v. Carter, 283 id. 324.”

As a general rule, a person who is guilty of fraudulent misrepresentation cannot interpose a defense that the person defrauded was negligent in failing to discover the truth. This rule is subject to the qualification, however, that the person asserting that he acted to his detriment in reliance upon a fraudulent misrepresentation must establish his right to rely thereon. He may not enter into a transaction, closing his eyes to available information, and then charge that he has been deceived by the words or conduct of the other party.

The right of a person to rely upon the representations made to him depends upon all the circumstances surrounding the transaction. If, by the exercise of ordinary prudence, he had ample opportunity to determine the truth of the representations before acting, but failed to so do, he is charged with knowledge and may not then be heard to say that his loss was due to the deceit of another. It is only where the parties do not have equal knowledge, or means of knowledge of the facts represented, .or there are other peculiar circumstances inducing the one to whom the representations are made, to rely solely thereon, that a person may justifiably rely upon the representations of another. Schmidt v. Landfield, 20 Ill2d 89, 94, 169 NE2d 229 (1960); Bundesen v. Lewis, supra, 633; Morel v. Masalski, 333 Ill 41, 47, 164 NE 205 (1928); Jones v. Foster, 175 Ill 459, 467, 468, 51 NE 862 (1898).

Both the plaintiff and the defendant lived in Chicago, but the plaintiff had a farm background. The land sold was located in Boone County. It was a part of a 248.54-acre farm which the defendant, in December of 1958, acquired from his brother-in-law, who was then in financial trouble. Between December of 1958 and the fall of 1959, the defendant visited the property about once a month. He leased the farm, and in September of 1959 he decided to sell it.

The farm was made up of two parcels, one on the north side of State Highway No. 20 and the other on the south side thereof. The parcel south of the highway was the larger of the parcels, being made up of two tracts containing 130.73 acres and 96.85 acres, respectively. The parcel north of the highway was purchased by the plaintiff. A railroad, running parallel with the highway, bisects this parcel.

When the defendant decided to sell the farm, he placed a sign on the north parcel describing it as containing 26 acres, plus or minus. The defendant had obtained this acreage from computations from a survey of the property made by Homer Yaw in 1914. At the time he purchased the property, he received an abstract which contained this survey. He obtained a photostat of the survey and made a sketch of the property by tracing over the photostat. He stated that the acreage figures on the photostat for the area north of the highway were indistinct and, therefore, he computed that acreage by subtracting the amount of land located south of the highway from the entire acreage of 248.54 acres. In doing so, however, he misread the south 96.85-acre tract as 90.85. Thus, he overstated the land to the north of the highway, as shown by the survey, and understated the amount of land south of the highway by six acres.

It is conceded by defendant that the sign he placed upon the premises stated that the parcel contained 26 acres, plus or minus; that he told the plaintiff that there were approximately 26 acres in the tract; and that the sales contract described the land as “. . . consisting of approximately 26 acres, according to survey of Homer Yaw, made February 26, 1914.”

The plaintiff first saw the land in the fall of 1959, and frequently thereafter until March 13, 1960, when he signed the sales contract in the sum of $18,500. He inspected the property on several occasions. The defendant pointed out the fence lines on the east and west boundaries to the plaintiff, who thus knew that a gasoline station and garage was located immediately west of the west line of the tract north of the highway and south of the railroad.

The sketch furnished by the defendant to the plaintiff indicated that the parcel of land north of the highway contained 26.18 acres. However, prior to the closing of the sale and the delivery of deed, the photostat of the survey was furnished to plaintiff’s attorney, who examined it and forwarded it to the plaintiff. This photostat of the Homer Yaw survey showed four tracts of land north of the highway. Two of these appear to be a part of the 248.54-acre farm—consisting of a tract of land north of the railroad approximately 1330 feet in length, containing 8.44 acres, and a tract of land south of the railroad and north of the highway approximately 864 feet in length, containing 12.52 acres. These tracts total 20.96 acres. The other two tracts also south of the railroad and north of the highway, consist of 4 acres and 1.22 acres, respectively. The name “Theron M. Sears” appears on the 4-acre tract and that of “H. 0. Sears” on the 1.22-acre tract. These four parcels total 26.18 acres.

The attorney for the plaintiff testified that he did not discover the discrepancy in acreage in that he assumed that all four tracts were to be conveyed to the plaintiff. However, the defendant at no time owned the latter two tracts mentioned, which were separated from his property by a fence and were improved with a gasoline station and garage. It is significant that defendant’s attorney forwarded to plaintiff’s attorney, prior to the closing, the title company preliminary report of title, together with the photostat of the survey and a letter of transmittal reciting the enclosure of such instruments “which will enable you to confirm the legal description.” The deed, which was ultimately given, conveyed the property in gross, and neither the preliminary report of title nor the deed contained any reference to acreage—approximate or otherwise. However, even a cursory examination of the legal descriptions in the preliminary report and deed, along with reference to the survey, would indicate that only the two tracts were to be conveyed, totalling 20.96 acres according to the Yaw survey—not the four tracts, totalling 26.18 acres.

Under the circumstances outlined above, we find that the plaintiff has failed to establish either that he had a right to rely upon defendant’s representations as to acreage, or that the defendant had knowledge of the falsity of his representations or intended to deceive the plaintiff.

The defendant’s explanations of the manner in which he arrived at the acreage computations are credible, and constitute evidence that he neither had knowledge of the falsity of his representations as to acreage, nor were his statements made in culpable ignorance of the truth. His representations were inaccurate, but not fraudulent. His actions were not “calculated” to deceive the plaintiff. The defendant possessed no superior knowledge of the acreage involved. He furnished to the plaintiff and his attorney, a survey, which, if examined along with the preliminary report of title and the proposed deed, would have clearly indicated that plaintiff was not receiving 26.18 acres.

In Douglass v. Littler, et al., 58 Ill 342 (1871), a case wherein fraud was charged, the court quoted from Kent’s Commentaries on this subject, as follows:

“The common law affords, to every one, reasonable protection against fraud in dealing, but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of information.” (Vol 2, 646, 11th Ed.)

The plaintiff, either careless or indifferent to the facts pertaining to acreage as shown by a photostatic copy of the survey as attached to the abstract, accepted the deed without ascertaining the acreage from these sources which were available to him. In Bundesen v. Lewis, supra, at page 633, the court aptly stated:

“A person in possession of his mental faculties is not justified in relying upon representations made when he has ample opportunity to ascertain the truth of the representations before he acts. When he is offered the opportunity of knowing the truth of the representations he is chargeable with knowledge. If he does not avail himself of the means of knowledge open to him he cannot be heard to say he was deceived by the misrepresentations.”

Also see Morel v. Masalski, 333 Ill 41, 46, 47, 164 NE 205 (1928).

Under the circumstances of this case, we cannot hold that the evidence of fraud was clear' and convincing and that the conduct of the defendant amounted to fraud. Therefore, the decision of the trial court was against the manifest weight of the evidence and the law. Accordingly, the judgment is reversed and judgment is entered here for the defendant.

Judgment reversed.

ABRAHAMSON, P. J. and MORAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Gust G. Larson & Sons, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Radio and Television Broadcast Engineers Local Union No. 1220 of the International Brotherhood of Electrical Workers, Marvin W. Balousek, et al., Officers and Business Representatives of Local 1220, Floyd Linneman, et al., Pickets for the Union, Defendants-Appellants.
    Gen. No. 65-97.
    Second District.
    December 28, 1965.

      Tuite, Shaw, Barden & Morrissey, of Rockford, for appellants.
    Miller, Thomas, Hickey & Collins, of Rockford, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from an interlocutory order granting to plaintiff a temporary injunction which restrained the defendant union and individual defendants from maintaining pickets at a site at which the plaintiff was constructing a building to house a television station and from interfering in any way with plaintiff’s employees or the employees of any of plaintiff’s subcontractors.

The plaintiff, a general contractor, was hired by Rock River Television Corp., herein called WCEE-TV, to construct a building to house its broadcasting facilities. At the time in question, the building was not yet completed and WCEE-TV had not commenced televising. All of plaintiff’s employees, as well as the employees of its subcontractors, were members of The Rockford Building Trades Union. WCEE-TV, which was not a party to this action, had in its employ two nonunion technical engineers. These engineers were engaged in the -installation of technical electronic equipment within the building under construction. The installation of this equipment was not a part of the general construction contract.

The defendants are the Radio and Television Broadcast Engineers Local Union No. 1220, its officers and business representatives, and certain of its members who were picketing at the site. The pickets were all employees of WTVO, a competing television station. It is conceded that the defendants had no dispute with the plaintiff or any of its subcontractors.

The defendants commenced picketing the construction site on August 6, 1965, and continued to do so until August 17. During this period, employees of plaintiff and its subcontractors refused to cross the picket line and no work was done at the site. On the 17th of August the picketing temporarily ceased and there was no picketing until the 23rd of August. During this interval, the construction was resumed. On the 23rd of August the picketing once more began and certain of the employees of the plaintiff and its subcontractors once again refused to cross the picket line, causing a discontinuance of the work. At some time after the picketing began, WCEE-TV removed its nonunion technical engineers from the site during the day while the construction employees were at work, and caused these engineers to work on the installation of the electronic equipment at the site, during the night.

The signs carried by the pickets read as follows:

“Notice to Public
WCEE-TV Does Not Meet Prevailing Wages and Working Conditions In Area We Are Not Asking Other Employees of Other Employers To Cease Work. Local 1220—International Brotherhood of Elect. Workers. AFL-CIO”

WCEE-TV had contracted to commence televising on September 12, 1965. The complaint alleged that if the picketing were to continue, this commitment could not be met. The contract between WCEE-TV and the plaintiff for the construction of the television building provided that if the contractor should fail to supply enough properly skilled workmen, the owner, upon certificate of the architect, could give to the contractor, seven days notice of termination of employment.

On August 11, 1965, WCEE-TV, pursuant to the provisions of the contract, sent notice to the plaintiff that it had failed to proceed diligently with the construction; that the pickets at the construction site did not provide a valid excuse for the failure; that WCEE-TV had to honor its commitments to be on the air September 12; and that it was thus giving the seven days’ notice of intention to terminate the contract. The notice was certified by the architect.

On August 25, following the resumption of picketing on August 23, the plaintiff filed this action alleging generally what has been set forth above. The complaint also stated that the pickets approached employees of plaintiff and its subcontractors and truckers in order to prevent them from entering the premises to continue construction work and to deliver materials; that the purpose of the picketing was to compel WCEE-TV to enter into a collective bargaining agreement with the defendant union and constituted a secondary boycott; and that the plaintiff would be caused irreparable harm if the picketing were to continue and if WCEE-TV were to cancel its contract.

The defendants entered their special appearance and filed a motion to quash service of summons, which motion was denied. They then filed their motion to dismiss the complaint which, likewise, was denied. Thereafter, a hearing was held after which the court, on August 30, 1965, granted the temporary injunction. The defendants thereupon prosecuted this appeal, and we have heretofore granted the defendants’ motion to stay the temporary injunction order pending a full hearing and final determination by this court.

The defendants’ principal contention throughout has been that the acts complained of would constitute an unfair labor practice under section 8 (b) (4) of the National Labor Relations Act (29 USCA Sec 158 (b) (4)), and that the National Labor Relations Board has jurisdiction over this matter to the exclusion of jurisdiction of our state courts. We agree with this conclusion.

The Labor Management Relations Act leaves much to the states. Congress, however, refrained from indicating how much, and the area in which state action remained permissible has been defined by the slow process of case to case decisions. In Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776, et al., 346 US 485 (1953), at page 488, the court indicated that litigation to date had found state action permissible under one or more of the following circumstances listed in (1) (b), (2) and (3), and in San Diego Bldg. Trades Council v. Garmon, 359 US 236 (1959), at page 246, the court likewise indicated that state action was permissible under the circumstances set forth in (1) (a) and (2), to wit:

(1) where the Board (a) decides that a matter is not within its jurisdiction; or (b) declines to exercise its powers after its jurisdiction has been invoked;
(2) in instances of injurious conduct which the National Labor Relations Board is without express power to prevent, as where the Board has either made a clear determination, or there is compelling precedent that a particular matter would not, for any reason, be subject to the exclusive jurisdiction of the Board; an example of such circumstance being: where the business affected is so far removed from the Board’s minimum jurisdictional requirement that it could not reasonably be assumed that the Board would assert jurisdiction, and a plea of such jurisdiction would, therefore, be considered either frivolous or dilatory;
(3) where violence occurs in a labor controversy due to mass picketing, and public safety and order, or the use of public streets is threatened, or where circumstances give rise to the necessary exercise by the state of its police power.

Before the 1959 amendments to the Labor-Management Relations Act, a series of Supreme Court cases (see San Diego Bldg. Trades Council v. Garmon, 359 US 236 (1959); Guss v. Utah Labor Relations Board, 353 US 1 (1957); Weber v. Anheuser-Busch, Inc., 348 US 468 (1955)) had held that conduct subject to the Act was within the exclusive jurisdiction of the National Labor Relations Board and could not be regulated by the states, even when the Board declined jurisdiction. The 1959 amendment to Section 14 of the Act (29 USCA Sec 164(c)(2)) provides that a state can assert jurisdiction over labor disputes where the Board declines to assert jurisdiction. However, the problem of whether the Board must first rule that it has no jurisdiction in a particular case, before the state courts may step in, has not been fully resolved.

Section 7 of the National Labor Relations Act (29 USCA Sec 157) sets forth certain conduct of employees which is specifically protected, just as Section 8 of the Act defines certain acts which constitute unfair labor practices and are specifically prohibited. In enacting this legislation, “Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.” Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776, et al., supra, 490. Thus, it is apparent that Congress vested in the National Labor Relations Board exclusive primary jurisdiction to pass on the specially protected and prohibited labor practices.

If certain activity is either protected by Section 7 of the National Labor Relations Act or prohibited under Section 8 of the Act, it must be regulated or permitted by the National Labor Relations Board under the procedures there applicable. To allow state boards or courts, or federal courts for that matter, to regulate such conduct involves too great a danger of conflict and potential frustration of national purposes in determinations relative to conduct which is part of industrial relations. San Diego Bldg. Trades Council v. Garmon, supra, 243, 244; Guss v. Utah Labor Relations Board, supra, 3; Weber v. Anheuser-Busch, Inc., supra, 475; Norman v. Local No. 4, International Brotherhood of Electrical Workers, AFL-CIO, 40 Ill App2d 422, 426, 427, 189 NE2d 687 (4th Dist 1963); Jersey County Motor Co. v. Local Union No. 525, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 21 Ill App2d 38, 42-45, 156 NE2d 633 (3rd Dist 1959).

It is not always apparent whether certain conduct is either within the protected boundaries of Section 7 or prohibited activities described in Section 8 of the Act. It is clear, however, that if this initial determination were left to the courts—state or federal—the conflict in adjudications, which Congress sought to avoid, would be ever present. Thus, if it is either clear, or may fairly be assumed, or if it is arguable that an activity is subject to Section 7 or Section 8 of the Act, it is essential that the initial determination of the applicability of said sections be made by the National Labor Relations Board. Liner v. Jafco, 375 US 301, 306, 307 (1964); Local No. 438 v. Curry, 371 US 542, 546, 547 (1963); San Diego Bldg. Trades Council v. Garmon, supra, 244, 245.

Thus, except in those instances above set forth, or unless the Board has ceded jurisdiction to a state agency, pursuant to Section 10 (a) of the Act, a state court may not (with one exception noted later) assume jurisdiction over a labor dispute.

Section 8 (b) (4) (i) (B) provides that it shall be an unfair labor practice for a labor organization to “encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in ... a refusal in the course of his employment . . . to perform any services” where an object thereof is to force or require any other employer to recognize or bargain with a labor organization as the representative of his employees, unless the labor organization has been certified under the provisions of Section 9 of the Act as the representative of the employees, provided that this clause is not to be construed to prohibit any primary strike or primary picketing, where otherwise lawful.

The conduct of the defendants in this case must be conceded to be “arguably” an unfair labor practice proscribed by Section 8 of the Act, if the necessary effect on commerce is present. Indeed, the plaintiff alleges in its complaint that the conduct of the defendants constitutes a secondary boycott. Common-premises picketing often occurs, as here, at construction sites. Generally, it is unlawful secondary conduct if not carried on in conformity with criteria laid down in the Moore Dry Dock Co., 27 LRRM 1108 (1950).

Among other things, the Moore Dry Dock criteria prescribes that the picketing be strictly limited to times when the primary employees are present at the premises; and that it must be conducted in a manner which will minimize its impact on the neutral employers’ employees, insofar as this can be done without substantially impairing its effectiveness in reaching the primary employers’ employees. Tested by these criteria (the picketing in question having been carried on while the primary employees were absent from the premises) it is at least arguable that the conduct complained of in this action constituted secondary recognition activity prohibited by Section 8 (b) (4) (i) (B). See Building and Construction Trades Council of New Orleans, 155 NLRB No. 42, Case No. 15-CC-201 (1965 CCH NLRB Sec 9787); Local Union No. 299, Sheet Metal Workers International Ass’n v. S. M. Kisner & Sons, 48 LRRM 1226 (1961); Local 20, Sheet Metal Workers International Ass’n v. Bergen Drug Co., Inc., 48 LRRM 1307 (1961).

Whether or not the National Labor Relations Board would find that the conduct here complained of is in fact an unfair labor practice is not our concern. Since the conduct complained of is “arguably” an unfair labor practice, it was for the Board, not the court below, to initially determine whether it would assume jurisdiction to decide the effect of the challenged conduct.

The plaintiff suggests that this dispute is not subject to the jurisdiction of the National Labor Relations Board as the necessary effect on interstate commerce is not present. It urges that under the prevailing National Labor Relations Board jurisdictional yardsticks, the Board will not assert jurisdiction over a television company unless its gross annual volume of business is at least $100,000, and that the television company has not yet commenced business.

This contention is without merit for several reasons: The Board has consistently held, that in cases involving alleged secondary boycotts where operations of the primary employer do not meet its jurisdictional standards, it will take into consideration, for jurisdictional purposes, not only the operations of the primary employer, but also the entire operations of the secondary employer at the location affected by the conduct complained of. Electrical Workers Union v. Amoskeag Const. Co., 56 LRRM 1173 (1964); Local No. 107 Teamsters Union v. Paravicini, 54 LRRM 1353 (1963); Electrical Workers, Local No. 4 v. Tri-Cities Broadcasting Co., 51 LRRM 1004 (1962); Jemcon Broadcasting Co. v. Local Union No. 1264, 49 LRRM 1492 (1962).

A building contractor is both a retail and non-retail business in character. Under the prevailing National Labor Relations Board jurisdictional yardsticks, the Board must assert jurisdiction if the relevant business is retail and the employer affected does an annual business of at least $500,000. If the relevant business is nonretail, the Board must assert jurisdiction if the business has a yearly direct or indirect outflow or inflow of goods or services in interstate commerce of at least $50,000.

Thus, in determining whether its business at the location affected meets the jurisdictional standards, the Board may consider both jurisdictional tests. If the plaintiff and its subcontractors have affected at the site, either a gross yearly volume of business of at least $500,000, or outflow or inflow—direct or indirect-^-of goods or services to, or from, other states in excess of $50,000, then the jurisdictional yardsticks are met. Robert L. Bearrow v. Carpenter Local Union No. 1323, 153 NLRB 136, Case No. AO-86 (1965 CCH Sec 9571).

In the case at bar, there was no direct evidence of the amount of business of plaintiff, or of its purchases—direct or indirect—from without the state. However, we do not deem this of any significant help to plaintiff. The National Labor Relations Act is applicable to labor disputes which affect interstate commerce. The jurisdictional yardsticks to which we have referred are merely guidelines indicating those disputes wherein the Board may consider the effect on commerce so insubstantial that it will not assert the jurisdiction given to it. However, if it is found that interstate commerce is affected by a labor dispute, the Board has power to act, without any consideration of the minimum requirements of the jurisdictional yardsticks.

Thus, if it is shown that interstate commerce is affected by a labor dispute, it cannot be contended that the case is not “arguably” within the jurisdiction of the National Labor Relations Board merely because the minimum yardstick requirements are not shown. If the minimum dollar volume applicable to a particular industry, as indicated by the yardstick, is found to be present, the Board must then assert its jurisdiction; if the minimum standard is not present, the Board may decline to act.

An officer of the plaintiff testified that it was not directly engaged in interstate commerce. However, the secondary boycott provisions are applicable to situations where the secondary person is either engaged in commerce or “in an industry affecting commerce.” The Board has stated in Local Union No. 299, Sheet Metal Workers International Ass’n v. S. M. Kisner & Sons, 48 LRRM 1226 (1961), at 1229: “We take administrative notice of the fact that the building and construction industry causes the flow of large quantities of goods across State lines and that it therefore affects commerce. As the secondary persons herein are engaged in the building and construction industry, we find that they are engaged in an ‘industry affecting commerce’ within the meaning of Section 8 (b) (4).” See also Local 20, Sheet Metal Workers International Ass’n v. Bergen Drug Co., Inc., 48 LRRM 1307 (1961).

Neither Kisner nor Bergen referred to the jurisdictional yardsticks once they asserted that the building and construction industry was an “industry affecting commerce.” Both cases indicated that it was the congressional purpose to give the widest coverage to secondary boycott provisions and that, accordingly, the Board would broadly construe the language “engaged in commerce or in an industry affecting commerce” as used in Section 8(b)(4). We are thus of the opinion that where the challenged conduct may reasonably be asserted to constitute a secondary boycott and it also may reasonably be declared that the secondary employer affected is either “engaged in commerce or in an industry affecting commerce,” giving to these terms their broadest interpretation, the dispute is one which is then “arguably” within the jurisdiction of the National Labor Relations Board.

There is thus preempted to the National Labor Relations Board the initial determination of all issues relating to its jurisdiction, including the effect on commerce, if the case is “arguably” within the limits of the National Labor Relations Act. Marine Engineers Benev. Ass’n v. Interlake S. S. Co., 370 US 173, 182 (1962); Twin City Barge & Towing Co. v. Licensed Tugmen’s & Pilots’ Protective Ass’n of America, 48 Ill App2d 1, 7, 8, 197 NE2d 749 (1st Dist 1964). To facilitate the prevailing principle of federal preemption in the area of protection under Section 7 and the prohibitions under Section 8, the National Labor Relations Board, under secs 102.98, et seq., of its Rules and Regulations, has made adequate provision for parties to a proceeding before a court or agency, or for the agency or court itself, to file petition for an advisory opinion on whether the Board would assert or decline jurisdiction on the basis of its current standards. (National Labor Relations Board— Rules and Regulations, Series 8, As Amended, secs 102.98, et seq.)

While we readily concede the overwhelming Congressional dictate that our national labor policy be entrusted to a single, centralized administrative agency and acknowledge the power of the Board to render an advisory opinion relative to the issue of jurisdiction, and to seek injunctive relief in matters before it pending its final determination, we believe that there may be times when the Board, for diverse reasons, may be unable to act in time to prevent substantial and irreparable injury to a party to, or enmeshed in, a labor dispute. Under such circumstances, it would be unconscionable to categorically deny the availability of any forum to a person so situated. This would be especially true in the case of a neutral party threatened substantial and irreparable injury merely because he is caught in the middle of the field of labor combat. We do not believe the Supreme Court, in stating that “to the extent a private right may conflict with the public one, the former is superseded” (Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776, et al., supra, 501), meant that a person so trapped, must in all eases, in effect surrender his property or rights because of the potential interference with national policy. We believe that in such situation, in addition to those heretofore enumerated, a state court may properly exercise jurisdiction.

It is essential, however, that a person seeking relief through a state court, in such a situation, show by appropriate allegations in the complaint for injunction that he has, in fact, sought the aid of the Board and that the Board has not, or cannot, act in time to prevent substantial and irreparable injury. It is also imperative that a state court, assuming jurisdiction in such a situation, must necessarily exercise judicial self restraint and must be convinced that its refusal to assume jurisdiction would lead to a situation so intolerable that it justifies denying the prevailing principle of federal preemption. (See State ex rel. Tidewater Shaver Barge Lines v. Dobson, 195 Ore 533, 245 P2d 903.)

Absent one or more of the circumstances heretofore enumerated and absent the situation last referred to, a state court is without jurisdiction to hear any cases “arguably” within the specific protection of Section 7 or the prohibitions of Section 8 of the Act. If any of the circumstances exist which permit state action, such appropriate circumstance must be fully alleged in the complaint for injunctive relief in order for the complaint to state a cause of action.

In the case at bar the activity complained of is “arguably” within the prohibitions of Section 8 of the National Labor Relations Act. The plaintiff has neither sought to bring the matter before the National Labor Relations Board, nor has it alleged any circumstance bringing its case within the area of permissive state action. Consequently, the trial court was without jurisdiction to order the issuance of a temporary injunction.

Twin City Barge & Towing Co. v. Licensed Tugmen’s & Pilots’ Protective Ass’n of America, 48 Ill App2d 1, 197 NE2d 749 (1st Dist 1964) and Austin Congress Corp. v. Mannina, 46 Ill App2d 192, 196 NE2d 33 (1st Dist 1964), cited by plaintiff as authority for the proposition that the state court properly enjoined the picketing, are not persuasive, as neither of the cited cases involved a labor dispute.

For the reasons assigned, the order of the trial court granting the temporary injunction is reversed and the cause is remanded with directions to dissolve the injunction and to dismiss the suit.

Reversed and remanded with directions.

ABRAHAMSON, P. J. and MORAN, J., concur.


author: PRESIDING JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John L. Dismuke, Defendant-Appellant.
    Gen. No. 50,246.
    First District, Second Division.
    December 28, 1965.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


author: ALLOY, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William E. Durham, Defendant-Appellant.
    Gen. No. 65-64.
    Third District.
    December 28, 1965.

      Peter M. Soble, of East Moline, for appellant.
    Richard J. Stengel, State’s Attorney, of Rock Island, for appellee.
   ALLOY, P. J.

This cause is before us on transfer from the Illinois Supreme Court.

Defendant, William E. Durham, appeals from a conviction and sentence following an indictment for burglary from the Rock Island County Circuit Court.

Defendant in this cause was indicted along with a Richard Smith for the burglary of a food market located in Rock Island, Illinois. After a plea of not guilty, Defendant was tried separately before a jury and a guilty verdict was returned. A motion for new trial was denied and defendant and the codefendant, who was tried separately and found guilty of the same offense, were sentenced to terms of not less than five years nor more than 30 years in the Illinois State Penitentiary.

It appears from the record that on November 11, 1961, at approximately 10:15 p. m., two police officers who had received a call that a light was out at the southeast door of the food market, went immediately to the store. The store building had been locked at 8:30 p. m.

An officer who approached the door at the east end of the south side of the building found it to be open about two feet and the light above it was not on. The door had been broken open and bore pry marks which appeared to come from a heavy instrument such as a screw driver. This was the door through which defendants had entered the building. After the officers waited outside of the building listening for two to four minutes, one officer entered and checked the storeroom to the rear and east part of the building proceeding the entire distance to the northeast wall. He then went to the west part of the building, that is the store proper, and used the telephone to call for police assistance. The front of the store and the storeroom were fairly well lighted but the office which was about eight feet by ten feet in dimension and situated against the north wall of the building was dark. After the officer had finished telephoning, he heard a noise and went to check the office. He used his flashlight in the office and observed the Defendant William E. Durham crouched behind a safe in the southeast corner of the office and the codefendant hiding behind some boxes stacked along the east wall. He asked the defendants three or four times to stand up and hold their hands up but they did not comply. The officer then broke a window pane in the French door with his pistol and repeated the request. Another officer thereafter came in and assisted the first officer in handcuffing the defendants. Neither defendant explained his presence in the building to the officers.

The only money in the store was in the office safe. A few small drawers had been pulled out of a desk and there were some items from the drawers, such as Christmas Club books, lying around on top of the desk.

Defendant William E. Durham took the stand and testified that he and his partner Smith had been walking near the premises that night and were on their way to a tavern but lost their way. He stated they heard a noise like a door closing and saw a man running from a door in the food store so they went to investigate. He stated that they entered through an open door and their attention was first attracted to the French door that led to the office, and that he and his partner went into the office. Shortly thereafter, he observed a police officer who came into the building and searched it. Although Defendant Durham was acquainted with this officer he said nothing to him until after he and his partner were arrested. They did not explain their presence in the building to the police officers at any time after they were arrested. Defendant stated that he hid behind the safe fearing bodily harm. There was no evidence that any property had in fact been taken from the premises.

After the defendant had taken the stand in his own behalf, the Trial Court permitted the reading into evidence of a prior conviction of defendant over objection of his attorney. The State’s attorney informed the Judge out of the presence of the jury, that the prior conviction was to be read for impeachment purposes only. Neither defendant nor the prosecution tendered an instruction to the jury to the effect that the prior conviction was admitted into evidence for impeachment purposes only.

On appeal in this ' court, defendant contends, first, .that the State did not prove intent beyond a reasonable doubt, and, secondly, that the failure of the Trial Court to inform the jury that the purpose of reading of defendant’s prior conviction of burglary into the record was for impeachment purposes only and that such failure constitutes reversible error even though no such instruction was tendered on behalf of defendant.

On the basis of the record before us, it is apparent that the food market was forcefully entered on the night of the offense and that shortly thereafter, defendant and his partner were found crouched behind the safe and some boxes in the store office. It was argued, and is possible under the state of the evidence, that defendant entered the building without force, but even under such state of facts it would have been possible for the jury to conclude on the basis of the evidence in the record, that defendant had entered willfully with intent to commit a theft. The question of defendant’s intent is a matter which must be resolved from an examination of all of the facts and circumstances surrounding the offense (People v. Johnson, 28 Ill2d 441, 192 NE2d 864). The fact that no property was actually taken would not prevent a finding that the offense was burglary if the building was entered with felonious intent (People v. Clark, 30 Ill2d 216, 195 NE2d 631; People v. Figgers, 23 Ill2d 516, 179 NE2d 626). Criminal intent of the character with which we are concerned, must ordinarily be proven circumstantially, by inferences drawn from the conduct and the facts before a jury. The facts and circumstances which existed in the present case involving the presence of defendant and his partner hiding behind the safe and boxes in the unlighted office, the only place where the money was kept in the store (and remaining silent and refusing to obey the officer) could have justified the jury in concluding that defendants were guilty and that no reasonable person would investigate a burglary in this manner (People v. Woods, 26 Ill2d 557, 188 NE2d 1). The fact that the office desk drawers were on top of the desk with the contents, could have been determined by the jury to be corroborative of the intent on part of Defendants to seek items of value which they could take.

It is apparent that the jury did not believe defendant’s story about seeing a man running out of the rear door of the store and that defendant and his companion simply went to investigate. This court, on review of a conviction in a criminal case of the type before us, is not justified in reversing unless the evidence is palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of defendant’s guilt (People v. Lobb, 17 Ill2d 287, 161 NE2d 325). Under circumstances such as these, the court cannot substitute its judgment for that of the jury.

The other issue before this court is whether or not the admission into evidence of defendant’s prior conviction of burglary without an instruction as to the purpose of such evidence, constituted reversible error under the facts in the record before us. It is obvious that defendant would have been entitled to have an instruction given to the effect that such conviction is to be considered solely for the purpose of impeachment had such an instruction been tendered. Defendant seriously contends that even though he failed to tender or request such an instruction to the jury concerning the limited purpose of the evidence of the prior conviction, it is nevertheless incumbent upon the court on its own motion to give such instruction or even on the prosecution to tender such instruction. In People v. Brand, 415 Ill 329, 114 NE2d 370, the Supreme Court had a similar problem before it. In that case, evidence of prior similar offense had been admitted without a jury instruction as to limited purpose of such evidence. The court in that case stated (at Page 339):

“The admission of such evidence is subject to the limitation that it may be considered by the jury only in determining the intent of the accused. Defendants insist that the court had an affirmative duty to admonish or instruct the jury that consideration of the testimony as to those other offenses should be limited to the question of defendants’ intent, and they also contend that the court should have instructed the jury that the evidence of the Baker and Brunk cases should be disregarded as far as the defendant Brand is concerned. No affirmative duty to admonish or instruct the jury attaches to the court because evidence of such a nature is introduced, and the defendant having failed to invoke the ruling by exception or by request for admonition or instruction cannot now complain.”

To the same effect are People v. Baker, 8 Ill2d 522, 134 NE2d 786, and People v. Wheeler, 57 Ill App2d 452, 206 NE2d 727. It may very well have been the conclusion of counsel for defendant, that to tender an instruction and have the jury instructed that evidence of the prior conviction of burglary was to be considered for impeachment purposes only, would not, in fact, redound to defendant’s advantage, but rather to his disadvantage by emphasizing the conviction or otherwise discrediting defendant’s testimony more effectively than would be the case if no instruction were given. On the basis of the record in this cause, there was no reversible error in the failure of the court on its own motion or the prosecution on its motion, to tender such an instruction to the jury in absence of a request for such instruction or direction to the jury by defendant.

There being no reversible error in the record, the judgment and the sentence of the Circuit Court of Rock Island County will, therefore, be affirmed.

Affirmed.

STOUDER and CORYN, JJ., concur.


author: JUSTICE SMITH.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Cleve Heidleberg, a/k/a Clede Heidelberg, Defendant-Appellant.
    Gen. No. 10,611.
    Fourth District.
    December 29, 1965.

      John B. Crain, of Springfield, for appellant; Raymond L. Terrell, State’s Attorney, of Springfield, for appellee.
   Opinion by

JUSTICE SMITH.

Not to be published in full.


author: STOUDER, J.

text:
    The Department of Public Works and Buildings of the State of Illinois for and on Behalf of the People of the State of Illinois, Petitioner-Appellant, v. Fred A. Bills, a/k/a F. A. Bill, a/k/a Fred A. Bill, a/k/a Frederick A. Bill and Darlene Bills, Defendants-Appellees.
    Gen. No. 64-69.
    Third District.
    December 29, 1965.

      William. G. Clark, Attorney General, of Chicago (Harold G. Andrews, Richard E. Quinn, and Bruno P. Bernabei, Special Assistant Attorneys General, and A. Zola Groves, Assistant Attorney General, of counsel), for appellant.
    McNeilly & Olivero, of Peru (Louis E. Olivero, of counsel) , for appellees.
   STOUDER, J.

This is an appeal from a judgment of the Circuit Court of Bureau County entered pursuant to a jury verdict in an eminent domain proceeding.

Appellant commenced this action on February 4, 1963, to condemn 23.81 acres of the land of Appellee asking that just compensation be determined for the acreage to be acquired and that damage to property not taken be determined. Pursuant to appropriate procedure, title to the property to be acquired was vested in Appellant. The jury found in the amount of $10,900 as just compensation for the land taken and the amount of $10,500 as damage to the remainder. No question is raised on this appeal concerning compensation for land taken nor is any question raised concerning the pleadings.

Prior to February 4, 1963, Appellee owned 396 acres of farmland in Bureau County. A township road known as Illinois State Aid Route 15, running generally north and south, divided the farm into two parcels, 40 acres being on the west side of Route 15 and the remainder being on the east side of Route 15.

The improvement necessitating this action is the construction of Federal Aid Interstate Route 80 together with the widening of Route 15, an overpass for Route 15 over Interstate Route 80, a frontage road and also the extinguishment of certain access rights.

Interstate Route 80 runs generally east and west, crossing Appellee’s land on the southerly portion leaving two small parcels of the remainder of Appellee’s land totaling approximately four and one-half acres without access to a road, or landlocked. Each of the parcels is located south of Interstate 80, one east and the other west of Route -15. The base of the embankment carrying Route 15 over Interstate 80 is approximately 18 to 20 feet from the tenant house located on the east side of Route 15 on the remainder owned by Appellee.

At the hearing an engineer and two appraisers testified in behalf of Appellant. Appellee, Fred Bills, testified in his own behalf, Watson Lawton, testifying as the sole valuation witness, for Appellee. Each of the appraisers testified as to the value of the remainder before and after the improvement. The appraisers for Appellant testified respectively that the remainder was damaged in the amount of $5,600 and $6,400 as a result of the taking and improvement. It was the opinion of the appraiser for Appellee that the damage to the remainder was $13,026.

After Appellee’s appraisal witness had completed his testimony Appellant moved to strike the appraiser’s testimony on grounds that his opinion of value was based on improper elements and hence his testimony was incompetent and inadmissible. This motion was denied.

Appellant filed its post-trial motion for a new trial asserting that the Court had committed prejudicial error in the admission of the testimony of Watson Lawton, Appellee’s appraiser, said testimony being incompetent and inadmissible because his opinion of value was based on improper elements of damage. Upon a denial of the post-trial motion this appeal follows.

The errors upon which Appellant relies, concern only the testimony of Appellee’s appraiser as to his opinion of the value of the land after, and as a result of the taking and the improvement, and, consequently, the damage to the remainder.

Both parties concede that if the appraiser’s testimony was competent and admissible then the judgment of the Court below is proper and if said testimony was incompetent and inadmissible then the judgment of the Court below is erroneous. The sole question before us is whether or not Appellee’s appraiser considered only proper elements or factors of damage in arriving at his opinion of the value of the remainder after the taking and improvement.

Appellant contends that the improper elements of damage considered by Appellee’s appraiser were the surface drainage; the increased traffic on Route 15 and the greater risk of transporting grain and machinery across Route 15.

Damage to land not taken depends on the existence of a direct, physical disturbance of a right, either public or private, which the owner enjoys in connection with his property. This right must give the property an additional value and its disturbance create special damage in excess of that sustained by the public generally. (Illinois Power & Light Corp. v. Peterson, 322 Ill 342, 153 NE 577.) Such damage must be direct and proximate and not such as is merely possible or may be conceived by the imagination. (Trunkline Gas Co. v. O’Bryan, 21 Ill2d 95, 171 NE2d 45.)

We have examined the record before us for any evidence from which it can reasonably be inferred that the remainder sustained depreciation in value resulting from interference with surface drainage. The only evidence in the record concerning drainage is the testimony of the engineer for Appellant. He testified that a 24-inch culvert would be installed under Interstate Route 80 and a 12-inch culvert under the frontage road. He further testified that the culverts were adequate to take care of a 3-inch rainfall occurring within a period of 60 minutes. There is nothing in the testimony of the engineer from which it can be inferred that the improvement including the culverts, or the taking, had any effect on the remainder either adversely or beneficially. In considering the testimony of Mr. Bills, the owner of the land, we find that drainage is not even mentioned. Lawton, the valuation witness for Appellee, mentioned surface drainage in response to a question put to him on cross-examination as to whether he considered any other elements in arriving at his opinion of value. His mention of surface drainage in this connection was without amplification, explanation or foundation either in his own testimony or that of others.

Although counsel for Appellee has, in his brief and argument, strenuously urged the existence of serious surface drainage problems, nevertheless he has wholly failed to point to any evidence in the record nor do we find any such evidence from which it can reasonably be inferred or implied that the improvement or the taking in any way affected or interfered with the surface drainage. On this state of the record, Lawton’s consideration of surface drainage was without foundation or basis in the evidence. We can only conclude that under these circumstances any consideration of surface drainage would be remote, speculative and conjectural. Thus we find that in this respect Lawton’s opinion was based on an improper element of damage.

We next consider Appellant’s contention that appraiser Lawton, in arriving at his opinion of the depreciated value of the remainder, improperly considered increased traffic on township road 15 and the fact that it would be more difficult and riskier to transport machinery and grain across said road. Lawton testified that he considered increased traffic on Township Route 15 because the construction of Interstate Route 80, a freeway, necessitated the termination of several north-south township roads at Interstate 80. The through traffic on these township roads, lying east and west of Route 15, would be thereby diverted to Route 15.

Appellant argues that landowners have no property right in the flow of traffic abutting their property; that the regulation of traffic, including the increase or decrease thereof, is an exercise of the general police power of the State, not resulting in compensable damage to the lands of abutting property owners; and that based on the evidence in the record any consideration of increased traffic or difficulty or risk therefrom is remote and speculative.

This Court has frequently had occasion to consider the actions of the State in its control and management of our public highway system in such cases as, Ryan v. Rosenstone, 20 Ill2d 79, 169 NE2d 360, and cases cited therein. The installation of medial dividers and the regulation of traffic generally, have been upheld as being an appropriate exercise of the police powers of the State. The exercise by the State of its power and -authority to provide for the public safety, convenience and necessity does not give rise to compensable damage under Section 13 of article 2 of our Constitution, SHA.

In Department of Public Works and Buildings v. Mabee, 22 Ill2d 202, 174 NE2d 801, the Court recognized that land on which a business was located, such as a gasoline filling station, could be seriously affected by the diminution of traffic in front of the land and business. In that case it appeared that the installation of insurmountable medial barriers might reduce traffic as much as one-half of its usual flow. Nevertheless the Court concluded that the installation of medial barriers and the consequent diversion of traffic flow was an appropriate exercise of the State’s police powers and even though actual damage might occur such damage was not compensable within the terms of the constitutional mandate. Although in this case the change in the flow of traffic, resulting from the-improvement, was a decrease of traffic, nevertheless we are unable to find any distinction between an improvement which results in a decrease and one which results in an increase in traffic. In either case the improvement results in a modification of the traffic flow.

Since an abutting landowner has no property right in the flow of traffic past his premises, it follows that a modification of such flow of traffic by an increase thereof is a valid exercise of police power and does not result in compensable damage to the abutting land. Accordingly increased traffic is an improper element to be considered in determining the depreciated value of land not taken.

In Department of Public Works and Buildings v. Caldwell, 301 Ill 242, 133 NE 642 and Department of Public Works and Buildings v. Griffin, 305 Ill 585, 137 NE 523, our Supreme Court considered the depreciation in value of land not taken where the abutting landowners either owned land or pursued their business activities on both sides of the proposed highway. In each case the Court rejected the abutting landowners’ contentions that the danger and inconvenience of crossing the highway were proper elements to be considered in determining the depreciated value of the remainder. The Court concluded in these cases that the dangers of crossing a public highway were too remote or speculative and that such dangers were merely possible and not reasonably probable.

We believe that the principle announced in the aforementioned cases is applicable to the instant case and that it was improper for appraiser Lawton to speculate concerning the supposed consequences of crossing the township road.

It is settled that where opinions of witnesses in condemnation cases are based in part upon elements of damage which cannot legally be taken into consideration as well as upon elements which could properly be taken into consideration, these opinions do not form a proper basis for a verdict (Illinois Power & Light Corp. v. Cooper, 322 Ill 11, 152 NE 491). Since the Appellee’s sole valuation witness included improper elements of damage in his opinion of the depreciated value of the remainder, his testimony was incompetent and the trial court should have granted Appellant’s motion to strike his testimony. The verdict of the jury being in excess of the range of the competent testimony on the issue of damage to land not taken is therefore erroneous. The errors urged in this appeal are directed solely to that part of the judgment and verdict dealing with damages to land not taken. No error has been urged nor do we find any error in that part of the judgment and verdict awarding just compensation for land taken.

We therefore affirm that part of the judgment of the Circuit Court of Bureau County awarding just compensation for the land taken and reverse that part of the judgment awarding damages for land not taken and remand the cause for a new trial limited to the determination of damage to land not taken.

Affirmed in part, reversed in part and remanded.

ALLOY, P. J. and CORYN, J., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie J. Mingo et al., Defendants-Appellants.
    Gen. No. 50,573.
    First District, Third Division.
    December 30, 1965.
    Marshall Patner, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: CORYN, J.

text:
    Verle Miller, Administrator de bonis non with the Will Annexed of the Estate of Burt B. Miller, Deceased, Mary Brown and George S. Skinner, as Substitute Trustees, Plaintiffs-Appellees, v. Marjorie Knowles Swanson and J. Walter Swanson, Defendants-Appellants.
    Gen. No. 65-15.
    Third District.
    December 30, 1965.

      Peterson, Johnson & Martin, of Princeton (Joseph R. Peterson and Watts C. Johnson, of counsel), for appellants.
    George S. Skinner, of Princeton, and Walter Durley Boyle, of Hennepin, for appellees.
   CORYN, J.

This is an appeal from an adjudication made after a hearing before the Chancellor on a verified complaint for foreclosure of a trust deed allegedly made by defendants, Marjorie Knowles Swanson and J. Walter Swanson, on August 6, 1958, and given by them to secure the payment of four promissory notes of even date, made by defendant, Marjorie Knowles Swanson, and aggregating $20,000. Plaintiffs, Verle Miller, now Verle Bass, as Administrator de bonis non with the Will annexed of the Estate of Burt B. Miller, deceased, and Mary Brown, are alleged to be holders of the four notes. Each owns one note for $7,500, and Mary Brown is alleged also to hold two other notes of $2,500 each. Plaintiff, George S. Skinner, is the substitute trustee by the exercise of a power given the holders of the notes by the terms of the trust deed, and joined in the complaint on behalf of said holders. Defendants, by unsworn answer, denied all the material allegations of the complaint and alleged for special defenses against any right of foreclosure in plaintiffs that there was a failure of consideration for the notes and trust deed in issue, fraud in their procurement, and various forgeries and fraudulent material alterations thereto. By reply, plaintiffs denied the averments of these defenses.

On October 26,’ 1964, the Chancellor entered judgment in favor of both the Administrator of the Estate of Burt Miller and Mary Brown, and against the defendant, Marjorie Knowles Swanson, on the claims arising from each of the two notes in the face amount of $7,500, and after allowing interest thereon, assessed the damages of each owner at $9,778.08. As to the two notes for $2,500 each, held by Mary Brown, the trial court entered judgment in favor of the defendants. Plaintiffs’ prayer for foreclosure of the trust deed and for attorney’s fees was denied. Defendant, Marjorie Knowles Swanson, and plaintiffs have all appealed from this determination.

It is Mrs. Swanson’s contention that findings allowing plaintiffs recovery on the two notes for $7,500 are contrary to the manifest weight of the evidence, and to principles of law and equity; that in any event, the computation of interest owing thereon is incorrect, and that those portions of the order entering judgment against her on these two notes are palpably erroneous. She argues that having found no right of foreclosure in plaintiffs, the Chancellor was required to dismiss the in rem proceedings for want of equity, and had no power to enter a judgment at law against her, in personam. She also claims that by entering the judgments against her in this equity proceeding, where foreclosure does not lie, she has been effectively deprived of her constitutionally protected right of trial by jury. Plaintiffs contend that the findings disallowing attorney’s fees, foreclosure of the trust deed and recovery on the two notes for $2,500 each, and those portions of the order entering judgment for defendants as to these claims, are contrary to the manifest weight of the evidence and to law and equity.

The four notes in question were received in evidence as plaintiffs’ exhibits 7, 8, 10 and 11. Each is an identical printed form of real estate note upon which blanks have been filled to supply the date, the payee, the principal debt, the interest rate, and other relevant information. Each note contains a security recitation that it is one in a series of the same date and tenor, “aggregating the total principal sum of Twenty Thousand ($20,000) Dollars and secured by a Trust Deed of even date made by Marjorie Knowles Swanson to L. D. Spaulding, Jr., Trustee, [sic] as Trustee, on 320 acres of land in Putnam County, Illinois.” (The words emphasized are those that were filled in on the printed note forms.) On plaintiffs’ exhibits 7 and 8, all blanks are completed by handwriting, the date of each purports to be August 6, 1958, each is in the principal amount of $7,500 at five per cent interest, and both are payable to “Bearer.” On plaintiffs’ exhibits 10 and 11, the blanks are completed by machine typewriting under the purported date of August 6, 1958. These notes are each in the principal sum of $2,500 at five per cent interest and are also payable to “Bearer.” All four notes are payable at the First State Bank of Princeton, Illinois, and the signature of defendant, Marjorie Knowles Swanson, as sole maker, is genuine.

The trust deed under which plaintiffs claim a right of foreclosure was admitted in evidence as plaintiffs’ exhibit 1. This document also bears the genuine signature of the defendant, Marjorie Knowles Swanson, and that of her husband, the defendant, J. Walter Swanson. It purports on its face to have been executed on August 6, 1958, and to have been acknowledged on that same date before one Joseph Stefko, Jr., an Illinois notary. This document is also a printed form made by the publishers of the Bureau County Republican, to which data has been supplied to blanks by typewriting. It recites a consideration. of $20,000, and a purpose of securing four notes aggregating that sum.

L. D. Spaulding, Jr., the designated trustee in the aforementioned notes and trust deed, practiced as an attorney in Princeton, Illinois, until about 1961, when, according to the record, he was expelled from practice and convicted and sentenced as a felon. Subsequently, the holders of the notes elected George S. Skinner, an attorney, as substitute trustee, and this suit for foreclosure was thereafter commenced. By sworn answer to a demand for admissions of fact, that interest accruing August 6, 1961, or thereafter, has not been paid, defendants have stated that they have made no payments of principal and interest on the notes.

The foregoing facts are not disputed. The rights of the parties are governed by the law in effect prior to July 1, 1962, which is the effective date of the Uniform Commercial Code (Ill Rev Stats 1963, c 26).

The possession by the plaintiffs of the notes and trust deed, and their admission in evidence as plaintiffs’ exhibits 1, 7, 8, 10 and 11, together with proof of default in the performance of their terms, established in plaintiffs a prima facie right of recovery and of foreclosure. Schmoldt v. Chicago Stone Setting Co., 309 Ill App 377, 33 NE2d 182; Henderson v. Davisson, 157 Ill 379, 41 NE 560. Where the signature to the notes is genuine, as is admittedly the case here, the law presumes that the holders are holders in due course, which involves also a presumption of proper delivery for a sufficient consideration. Ill Rev Stats 1961, c 98, §§ 44, 79; see also Ill Rev Stats 1961, c 98, § 48. The certificate of acknowledgment to the trust deed in question, being in regular form, is prima facie proof of the matters therein certified, i. e., that the parties thereto executed and delivered the same to secure the payment of a series of four notes aggregating the principal sum of $20,000. Krueger v. Dorr, 22 Ill App2d 513, 161 NE2d 433. Whether these presumptions were overcome by defendants through proof of fraud in obtaining the execution of the instruments, which is a complete bar (Ill Rev Stats 1961, c 98, § 11), or by proof of material alterations so noticeable to plaintiffs as to make failure of consideration a good defense (Ill Rev Stats 1961, c 98, §§ 48, 76, 79), and the ultimate question of where, after all the proof, the evidence preponderates, were issues to be weighed and determined by the Chancellor. Krueger v. Dorr, 22 Ill App2d 513, 161 NE2d 433. Our jurisdiction on review is limited to the determination of whether the findings of the Chancellor, on the foregoing questions of fact, and in view of the applicable law, find support in the record, or whether they aré manifestly in error. Krueger v. Dorr, supra.

To support her contention that the four notes sued upon were obtained by fraud and circumvention, Mrs. Swanson testified that to refinance a previous debt to one Arthur Norberg, as to which the balance was then $10,000, she went to Spaulding, who was her attorney, and who also procured loans, in October of 1958, for the purpose of borrowing $10,000 only. She stated that he produced four notes, with the amounts in blank, for her to execute, giving the explanation that lenders preferred four instead of one note. When she protested about signing with the amounts in blank, she states that Spaulding left the room where they were secreted from his employees, to type the amounts into the notes himself. He thereafter returned and placed the four notes before her in a stack. Mrs. Swanson testified that Spaulding was then back and forth between offices, and on the phone, and that she examined the top two notes onto which he had correctly typed the figure $2,500 as the principal debt, and that supposing each of the four to be typed for exactly the same amount, as per her directive, she signed all four, although on the bottom two she saw only the signature lines.

With respect to the defense that unauthorized alterations were made to the instruments in question, Mrs. Swanson stated that at the time she signed the four notes, the designated payee in the top two, which are plaintiffs’ exhibits 10 and 11, and which she read, was “myself” and not “bearer,” as they now read. It is obvious that this word “bearer” in these two exhibits has been typed over the erasure of another word, of which enough remains to indicate that it was “myself.” This fact is corroborated by the testimony of Linton Godown, an expert witness called by defendants, although he did not give an opinion as to when the alteration occurred in relation to the time of execution. Mrs. Swanson testified that she did not ever endorse any of the four notes described in the complaint, and that their delivery was accordingly unauthorized. Although all of these notes contain a recitation of being secured by a trust deed of even date, Mrs. Swanson asserted that neither she nor her husband executed a trust deed at the time of signing the notes because she wanted evidence before endorsing the notes or executing a trust deed, that the Norberg note had been paid. As to plaintiffs’ exhibit 1, which is the trust deed containing the genuine signatures of defendants, and upon which plaintiffs claim a right of foreclosure, Mrs. Swanson stated numerous times that the only trust deed in the amount of $20,000 ever signed by her and her husband was in 1953 in connection with another loan initiated through Spaulding, but never consummated. Evidence was offered on her behalf that as originally drawn, this trust deed recited that it was given to secure five notes, three being in the amount of $5,000 and two in the amount of $2,500. Mrs. Swanson stated that no such notes were ever signed by her because she decided at that time not to borrow that amount. She remembered that this transaction occurred in 1953, because she did not ever sign more than one trust deed in the amount of $20,000.

To rebut the foregoing evidence of Mrs. Swanson, plaintiffs offered the testimony of Lucy Welch, former Circuit Clerk of Bureau County, and Mary Potter Bailey, publisher of the Bureau County Republican, printers, that the form of trust deed used in making plaintiffs’ exhibit 1, was first authorized and printed in March, 1956.

The foregoing evidence, particularly in view of admissions made here, does not sustain the contention that fraud or circumvention were used to obtain defendants’ execution or delivery of the four notes (plaintiffs’ exhibits 7, 8, 10 and 11), or of the trust deed (plaintiffs’ exhibit 1), nor does it sustain the contention that alterations appearing on the face of these instruments were made subsequent to execution, or without authority, or that delivery was unauthorized. In her briefs filed with this court, Mrs. Swanson has admitted error in her testimony before the trial court to the effect that the trust deed (i. e., plaintiffs’ exhibit 1) was executed in 1953. In view of the rebuttal evidence of Lucy Welch and Mary Potter Bailey, Mrs. Swanson has said here that she was obviously mistaken in her testimony, and that “in all probability . . . [that] . . . trust deed [i. e., plaintiffs’ exhibit 1] was executed and signed by her and by her husband at the same time that the four notes were signed . . . ,” which she believes to have been October 18, 1958, and not August 6, 1958. (Emphasis added.) This admission and Mrs. Swanson’s other testimony indicates that she has always been aware of having signed a trust deed that recited a purpose of securing notes aggregating $20,000, although she previously had thought it to have been executed in 1953, when no notes were signed, rather than in 1958, when four were signed. The notes themselves, in unaltered parts, each contain a recitation that it is one in a series aggregating $20,000, and the trust deed also recites, in unaltered parts, that it is given in consideration of $20,000 to secure notes aggregating that amount. There is no evidence that these recitations were absent when Mrs. Swanson executed these instruments. In view of this and of her admission that the trust deed was signed at the same time as the four notes, it is clear that the record does not support the validity of Mrs. Swanson’s assertion that she supposed that she was, in 1958, signing four notes aggregating only $10,000. Furthermore, her insistence throughout the trial that she signed only four notes, and that five notes aggregating $20,000 were never signed at the time the trust deed was executed, tends to explain the circumstance that the trust deed itself was altered from its original recitations to conform with what the evidence shows was actually done. As originally typed, it secured five notes aggregating $20,000, three being for $5,000 each and two for $2,500 each. As altered, to conform with what the evidence indicates actually transpired, the trust deed secures four notes, two for $7,500 each and two for $2,500 each. The notes were also then apparently completed by a different typewriter than was used in other recitations to show each as being one in a series of “4,” according to the testimony of Linton Godown. So far as fraud or circumvention are concerned, there is no evidence that any of the documents signed were executed from coercion, nor is there any evidence that Spaulding or anyone else told Mrs. Swanson or her husband that any of these documents recited differently than they do, or made any false statements to them about the content of the notes in the trust deed. See Connolly v. Dammann, 232 Ill 175, 83 NE 531. Again, the fact that Mrs. Swanson was aware of having executed a trust deed to secure notes aggregating $20,000, and now admits that it was executed in 1958, rather than in 1953, along with the execution of four notes, rather than five, indicates that she was not misled. The trust deed itself is dated August 6, 1958, and under the same date bears the acknowledgment of Joseph Stefko, Jr., an Illinois notary, that it was executed and delivered at the time stated, by the purported makers, for the uses recited which is in consideration of $20,000 to secure the payment of four notes of even date, aggregating that sum. This deed was recorded in its present form in 1958, shortly after its issuance. The certificate of acknowledgment it bears is prima facie proof of the truth of the matters certified, and may not be overcome except by clear, convincing, and satisfactory proof of disinterested witnesses. Krueger v. Dorr, 22 Ill App2d 513, 161 NE2d 433. Only the testimony of Marjorie Knowles Swanson has attempted to impeach any of the recitations of this certificate, and her evidence for this purpose is plainly insufficient. It was her burden to establish that the alterations complained of occurred after she signed the instruments. Central Trust Co. of Illinois v. Kendall, 202 Ill App 294. We think the unsupported testimony of Mrs. Swanson alone, on this issue, is also legally insufficient, especially where she herself admits of confusion about the facts.

Our attention has been directed to the fact of a variance between the recitals of the trust deed as to the payee and place of payment of the notes secured and the actual fact as shown by the notes themselves. The notes, i. e., the two typed ones, while formerly payable to “myself,” are now payable to “bearer,” as are the two in handwriting, and all are payable at the First State Bank of Princeton, Illinois. The trust deed, however, describes notes payable at the Citizen’s First National Bank of Princeton, Illinois, to the order of “herself [i. e., the maker] and by her duly endorsed.” In all other details, the descriptions of the notes in the trust deed conforms accurately with the recitals of the notes, and the notes correctly describe the trust deed. It being undisputed that the trust deed and notes were executed at the same time, and the evidence being that no other notes were issued at the time of the issuance of the trust deed, there could be no basis for finding that these misrecitals were other than mere clerical errors in failing to alter the trust deed recitations to conform in this detail with the fact. Such errors do not defeat the intention of the parties. Metropolitan Life Ins. Co. v. Kobbeman, 260 Ill App 508. So far as the dispute here is concerned, there is no practical difference in legal effect between a note payable to the makers, and by them duly endorsed in blank, and one payable to bearer. The recitations of the trust deed shows an intent to secure bearer notes, and being acknowledged, those recitations cannot be overcome by the unsupported testimony of Mrs. Swanson that she made no bearer notes. Krueger v. Dorr, supra. We conclude that the evidence here supports only a finding that the notes produced in evidence, that is, plaintiff’s exhibits 7, 8, 10 and 11, are the notes described in the trust deed (plaintiff’s exhibit 1). See Metropolitan Life Ins. Co. v. Kobbeman, supra.

The Chancellor found that the evidence failed to establish forgeries or failure of consideration as asserted by Mrs. Swanson, and in our judgment this conclusion is fully supported by the record. Mary Brown testified that the consideration given by her and Burt Miller, decedent, for the four notes and trust deed upon which this proceeding is based, was a cash payment of $10,000 and the surrender and cancellation of plaintiffs’ exhibits 4 and 2, both of which were admitted in evidence. Plaintiffs’ exhibit 4 is a promissory note under date of August 6, 1955, in the principal amount of $10,000, payable to Marjorie Knowles Swanson and J. Walter Swanson, or order, purportedly executed and endorsed by defendants. Plaintiffs’ exhibit 2 is a trust deed under date of August 6, 1955, securing the aforementioned note, and bearing the purported signature and acknowledgment of defendants before one Zelda Nieman, a notary. The defendants admit that the signature of Marjorie Knowles Swanson to the note and deed, and her endorsement to the note, is genuine, but Mrs. Swanson testified that the signature purporting to be her husband’s is not his handwriting. In this respect her testimony was corroborated by Joseph Stefko, Jr. She testified that her husband never signed the note and trust deed of 1955, and that although she signed and endorsed them to refinance the Norberg loan, she changed her mind and so advised Spaulding, and that their delivéry by Spaulding was accordingly unauthorized. To substantiate her contention that there was a failure of consideration for the notes sued upon, Mrs. Swanson produced defendants’ exhibit 8, which is a forged note under date of August 6, 1953, to which is attached by staple a memorandum signed by both Mary Brown and Burt Miller, stating, under date of August, 1957, “the within and attached note, balance of which is now Ten Thousand ($10,000) Dollars, is now owned as follows: $2,500 by Burt B. Miller, $7,500 by Mary Ellen Brown.” Mrs. Swanson also produced copies of letters from Spaulding’s file suggesting that plaintiffs were mailed a certified copy of a trust deed dated 1953 (defendants’ exhibit 3) which defendants infer must have been for the sole purpose of securing the forged note. Thus, Mrs. Swanson claims that it was the forged note and the certified trust deed of 1953 which were purchased by plaintiffs in 1957 and thereafter exchanged by plaintiffs for the four notes in question, and not the note and trust deed of 1955. There was no evidence, however, as to when, or by whom, or how the memorandum attached to exhibit 8 became affixed, and there was no evidence that the forged note was ever held by plaintiffs. Mary Brown denied ever having seen it. On the other hand, although the signature of J. Walter Swanson to the note and deed of 1955 appears not to have been his handwriting, that fact does not establish forgery. A person may sign an instrument by another and adopt the signature as his own. Tunison v. Chamblin, 88 Ill 378, at 389; Witt v. Panek, 408 Ill 328, 97 NE2d 283. The certificate of acknowledgment to the trust deed of 1955, taken by Zelda Nieman, is again prima facie proof that J. Walter Swanson appeared and adopted the signature to the instrument as his. Witt v. Panek, supra; Koepke v. Schumacher, 406 Ill 93, 92 NE2d 152. The truth of the facts certified thereto, and that it was executed and delivered for the purposes recited therein, can be overcome only by proof which is of the clearest, strictest, and most convincing character, and must come from disinterested witnesses. Witt v. Panek, supra. Neither J. Walter Swanson, whose signature is alleged to be forged, nor Zelda Nieman, who took the acknowledgment, nor L. D. Spaulding, Jr., to whom the instrument was admittedly delivered as designated trustee, all of whom the record suggests to have been available at the time of trial to testify, were called as witnesses.

We conclude that the trial court erred in denying plaintiffs recovery on the two notes in the face amount of $2,500 each, and in denying .attorney fees and foreclosure, under the trust deed. We also conclude that in computing the interest due plaintiffs on the notes, the same should be computed from August 6, 1960, as prayed in the complaint, and as per the endorsements of interest payments which appear on the reverse side thereof, and not from August 6, 1958, the date of issue. In view of this determination, there is no occasion for deciding the other issues raised by defendant. The judgment of the trial court is accordingly reversed, and the cause is remanded with directions to proceed with the accounting in accordance with the views herein expressed, and to enter judgment against the defendant, Marjorie Knowles Swanson, and in favor of the plaintiffs in the amounts demanded by the prayer of the complaint, and to proceed with foreclosure against the rights of the defendants, in the subject premises, according to the terms of the trust deed.

Reversed and remanded with directions.

ALLOY, P. J. and STOUDER, J., concur.