author: MR. JUSTICE ABRAHAMSON

text:
    Robert Seith and Margaret Seith, Plaintiffs-Appellants, v. City of Wheaton, a Municipal Corporation, Defendant-Appellee.
    Gen. Nos. 66-129, 67-13. (Consolidated.)
    Second District.
    December 12, 1967.

      Leonard Bosgraf, of Chicago, for appellants.
    Peregrine, Stime and Henninger, of Wheaton, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from judgments of the Circuit Court of DuPage County. Plaintiffs commenced this action seeking a declaratory judgment that the zoning ordinance of the City of Wheaton, classifying plaintiffs’ property to a Class A, single-family residence district, was unconstitutional and invalid. Plaintiffs seek the right to improve their property with an automobile service station.

After trial before the court, a judgment was entered finding the zoning ordinance as applied to plaintiffs’ property valid, and further, that the proposed use as an automobile service station would violate certain ordinances of the City forbidding the storage of flammable materials within 200 feet of a high school grounds. From this decree, entered on August 2, 1966, plaintiffs filed a notice of appeal on August 31, 1966. On November 29, 1966, plaintiffs filed a petition under section 72 of the Civil Practice Act (Ill Rev Stats, c 110, § 72) to vacate the decree on the grounds that the ordinance concerning the storage of flammable liquids was invalid, in that it had not been published.

The trial court denied this petition on the basis that it had lost jurisdiction with the filing of notice of appeal from the first decree upholding the validity of the zoning ordinance and the storage of flammable liquids ordinance. Both appeals were consolidated for hearing in this court.

The subject property is situated in the City of Wheaton on the northeast corner of Roosevelt Road, which runs east and west, and Naperville Street, which runs north and south. It has frontage of 216 feet on Roosevelt Road and 200 feet on Naperville Street. The site is improved with a 16-room frame residence. Although zoned single-family residential, this residence has been divided in recent years into five apartments. Naperville Street is a two-lane thoroughfare carrying approximately 4,450 vehicles per day north of Roosevelt Road and approximately 5,000 vehicles per day south of Roosevelt Road. Roosevelt Road, also known as Route 30, is a major four-lane state highway carrying approximately 15,000 vehicles per day past this intersection. The intersection is protected by traffic signals that operate throughout the day and night. The predominate use within a quarter mile or more of the subject property is residential; to the north and south properties are residential with the exception of the residence of Dr. Moss which also contains his dental office; west to the city limits it is residential with the exception of:

(a) Wheaton Central High School, located immediately west of the subject property, which school has an enrollment of 1710 students;
(b) A park at the west end of the high school grounds;
(c) A small YMCA building west of the park;
(d) A small retail business area five blocks west of the subject property at the northwest corner of Roosevelt Road and Sunnyside Avenue; and
(e) Two gas stations, six blocks away at the northwest and southwest corners of Roosevelt Road and Delles Road;

To the east it is residential for more than a quarter of a mile with the exception of a chiropractic home occupation use and a church building, both on the south side of Roosevelt Road.

Numerous witnesses were presented by both parties. The plaintiffs presented evidence that, subject to rezoning, Texaco, Inc. had entered into an agreement to purchase the property for the sum of $118,000; that under the single-family residence zoning the appraised valuation would not exceed $26,000 and that a fair market value for a nonconforming use would be approximately $32,000. All of the witnesses for plaintiff agreed that in recent years there had been a marked increase in the volume of traffic along Roosevelt Road. One real estate appraiser for plaintiff testified in his opinion that the use of the property for an automobile service station would not cause any adverse effect on the adjoining property in the immediate neighborhood. An appraiser for the City testified that in his opinion the proposed gas station would depreciate the residences to the north of the subject property by between 15% and 20% and to the east by 10%. Depreciation would be less as the properties were more remote from the subject site. Several experts testifying on behalf of the City agreed that the highest and best use of the subject property is for multifamily and not single-family residences as it is presently zoned. The City also presented evidence that there was no need either from an economic standpoint or from a community convenience standpoint for a gas station in the immediate area of the subject property.

A decision in this case as to the validity of the zoning ordinance presents no novel legal problems. It requires only the application of well settled rules of zoning law to the facts. So well established are the general rules applicable to zoning cases and so often have they been reiterated that we will not again state them. This court has long considered of paramount importance the question of whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform as established. Zoning lines must begin and end somewhere and, if the most that can be said as to whether the property should be characterized as residential or commercial is a fairly debatable question, then the question should be determined by the legislative authority of the Village and not by the courts. LaSalle Nat. Bank v. City of Chicago, 6 Ill2d 22, 31, 126 NE2d 643. In LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, 46, 145 NE2d 65 the court ruled:

“It is well established that it is primarily the province of the municipal body to determine the use and purpose to which property may be devoted, and it is neither the province nor the duty of the courts to interfere with the discretion with which such bodies are vested unless the legislative action of the municipality is shown to be arbitrary, capricious or unrelated to the public health, safety and morals.”

The subject property is admittedly situated on a busy intersection, and there is little doubt that the heavy traffic affects its desirability for residential use, at the same time enhancing its value for commercial purposes. The high volume of traffic does not of itself impart a commercial character to the subject property. Liberty Nat. Bank of Chicago v. City of Chicago, 10 Ill2d 137, 145, 139 NE2d 235; LaSalle Nat. Bank v. Village of Lombard, 64 Ill App2d 211, 216, 212 NE2d 321. There can be little doubt here that the surrounding area is predominantly residential in character and that this has been a long established classification of use and that the subject property is not inappropriate for such use. The fact that plaintiffs’ property might be worth more if more intensive use were permitted is true in most every case when use of private property is restricted by zoning ordinances. This is not of itself sufficient to invalidate the ordinance. First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 227, 130 NE2d 267. Although the highest and best use of the property may be for either duplex and less density multiple use or the fact that the property would be worth substantially more to the owner if the restriction were removed is not in our opinion sufficient to overcome the presumption of the validity of the Wheaton zoning ordinance, so as to permit a commercial use in this area. Meister v. City of Wheaton, 68 Ill App2d 133, 214 NE2d 909 (abst.). To overcome the presumption of validity, however, plaintiffs must establish by clear and convincing evidence that the ordinance is unreasonable and unrelated to public health, safety or welfare. Padgett v. City of Oakbrook Terrace, 89 Ill App2d 244, 231 NE2d 466.

For these reasons we believe the judgment of the trial court in sustaining the ordinance should be affirmed.

Relative to the petition under section 72 of the Civil Practice Act, plaintiffs argue before this court that the failure of the City of Wheaton to publish Ordinance No. E-839 regulating the location of tanks for storage of flammable liquids, rendered the ordinance invalid. The City contends that the failure to perform the ministerial act of publishing the ordinance does not affect its validity, and that since the ordinance does not set forth any penalty for its violation, it need not, as a matter of law be published. The question of the publication of the storage ordinance was not raised in the trial court until after the notice of appeal had been filed.

The refusal of the trial court to consider the section 72 petition to vacate the decree of August 2, 1966, was in error. The trial court had not lost jurisdiction. Johnson v. Thomas, 75 Ill App2d 407, 411, 221 NE2d 44.

Because we are affirming the trial court relative to the zoning ordinance issue we conclude that there is no necessity to remand the section 72 petition for further action by the trial court.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    Patricia Packenham, Plaintiff-Respondent, v. Colin Miltimore, Defendant-Petitioner.
    Gen. No. 67-23.
    Second District.
    December 12, 1967.

      Snyder, Clarke, Dalziel, Holmquist and Johnson, and Walwyn M. Trezise, of Waukegan, for appellant.
    Hall, Meyer, Fisher, Holmberg, Snook and May, of Waukegan, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

We granted defendant’s application for leave to appeal from an interlocutory order by permission of the trial court áfter a denial by the trial court of defendant’s motion for summary judgment.

On March 20, 1966, plaintiff was riding as a guest passenger in an automobile operated by her fiance, the defendant. An automobile accident occurred in which plaintiff was injured. On May 17,1966, plaintiff filed suit against the defendant alleging wilful and wanton misconduct on the part of the defendant in the operation of the automobile and, on May 28, 1966, eleven days later, that plaintiff and the defendant were married.

Defendant filed a motion for summary judgment charging that the plaintiff could no longer maintain a cause of action for personal injuries based upon a premarital tort.

While the case was pending on appeal, plaintiff filed a motion to dismiss the appeal on the grounds that the proceeding has become moot in that the parties were divorced on August 28, 1967. This motion and objections thereto were taken with the case.

In 1952 the Supreme Court decided the case of Brandt v. Keller, 413 Ill 503, 109 NE2d 729. There, an estranged husband and wife met to consider plans for divorce and were involved in an automobile collision while the husband was driving. Subsequent to the divorce, the wife brought suit as a guest passenger, charging wilful and wanton misconduct. The Supreme Court reversed an Appellate Court’s decision sustaining the trial court’s order of dismissal and ruled that, under the Married Women’s Act of 1874, a wife was permitted to sue her husband for wilful and wanton misconduct committed by him during the marriage. The court stated at page 513:

“The Married Women’s Act of 1874 is an enabling act, and, although it is in derogation of the common law, it is the settled policy of this court that it must be given a liberal construction to effectuate the manifest intention of the legislature. (Citations omitted.)
“Under our interpretation, the provision in question reflects a legislative intent to establish the separate identity of a married woman in all litigation, and to remove all her common-law disability with reference to suing and being sued, so that she will be placed in the same status ‘as if she were unmarried.’ It is our province to effectuate this purpose by construing the phrase ‘in all cases’ literally, so as to include all actions against all persons, including her husband, rather than to interject exceptions or give a restrictive interpretation to the statutory provision which would merely perpetuate a vestigial concept based upon the abrogated common-law rule that a married woman’s rights and property belong to her husband.
“In our view, any other interpretation would constitute judicial legislation, and construe away changes made by a remedial statute. (Dissenting opinion delivered by Justice Harlan, and concurred in by Justices Holmes and Hughes in Thompson v. Thompson, 218 US 611.)
“This court is cognizant of the problems with reference to the items of damage in a married woman’s tort action against her husband. It will be the province of the court in such cases to properly instruct the jury so that items of expense for which the husband is already liable may not be computed as further damages.”

The following year the Illinois legislature, apparently in an effort to overcome the effect of the rule in the Brandt case, amended the Married Women’s Act to read as follows:

“A married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried; provided, that neither husband nor wife may sue the other for a tort to the person committed during coverture.” (Ill Rev Stats 1965, c 68, § 1.)

The statute specifically prohibits action by either spouse for civil torts to the person committed during coverture. It makes no reference to premarital torts and under the Brandt decision it is clear that an action could be maintained therefor.

Defendant contends that, under the law prior to the Brandt decision, the Illinois courts followed a common-law rule prohibiting tort suits between spouses and that, since the obvious intent of the 1953 amendment to the Married Women’s Act was to totally nullify the Brandt decision, the law should now be in the same state that it was prior to Brandt.

We cannot agree with this contention. The 1953 amendment to the statute makes no reference to premarital torts and we do not feel that its meaning can be extended beyond the clear wording of the amendment itself.

The premarital tort situation is to be distinguished from that presented in Heckendorn v. First Nat. Bank of Ottawa, 19 Ill2d 190,166 NE2d 571 (1960) and Wartell v. Formusa, 34 Ill2d 57, 213 NE2d 544 (1966).

Heckendorn presented the issue of whether, under the Married Women’s Act, the widow had a right to sue the husband’s estate for a tort committed during coverture. The court held that the statute barred the cause of action from coming into being and, since the cause of action never existed, it could not survive the husband’s death. This case was followed by the Wartell case where the husband and wife were involved in an accident which resulted in the husband’s death and it was there held that the wife could not maintain a tort action against her husband’s estate.

Historically, two major policy arguments have been advanced to deny interspousal tort suits; first, that the denial of such actions is justified on the basis that they disrupt marital unity and, second, that the denial avoids the danger of collusion in tort actions between spouses. Defendant contends that these reasons justify a judicial reinstatement of the common-law prohibition against interspousal suits. These reasons were considered and rejected in the Brandt decision. In the Heckendorn case, the Supreme Court held that the purpose of the 1953 statutory provision was to prevent the cause of action from coming into being. The court did not use these old arguments to sustain its position or to distinguish between situations where the marriage remains in existence at the time of the suit or has terminated by death or divorce prior thereto.

In this case, the cause of action existed prior to the marriage. Under the Brandt decision the cause of action could have been maintained prior to the marriage, during the marriage and subsequent to the marriage, and we do not believe that the 1953 amendment to the Married Women’s Act alters this situation under the factual circumstances in the case at bar.

Because of our reasoning it is unnecessary for us to rule upon the motion to dismiss predicated on the divorce between the parties hereto.

Judgment affirmed.

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


text:
    Hugh Locker, et al., Plaintiffs-Appellees, v. The City of McHenry, a Municipal Corporation of Illinois, Defendant-Appellant.
    Gen. No. 67-36.
    Second District.
    December 12, 1967.

      Jack M. Siegel, and Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago, for appellant.
    Panter, Nelson and Bernfield, of Chicago, and Kell and Conerty, of Woodstock, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, the City of McHenry, appeals from an order of the Circuit Court of McHenry County that held that the Amending Zoning Ordinance of the city was void as applied to the plaintiff’s property and further declaring that the property could lawfully be used for an automobile service station.

The property in question is a single parcel of approximately 28,000 square feet located on the southwest corner of Elm and Third Streets in the business section of the City of McHenry. The plaintiffs, Lockers, entered into a lease with the then owners of the property, the Scholles, in 1956 with an option to purchase. The Lockers exercised that option in 1961 and signed a contract to purchase the property from the Scholles for the price of $45,000 to be paid on an installment basis with the Scholles to retain legal title to the property as security until at least $22,500 had been paid.

The property is improved with a retail nursery shop and adjoining greenhouse, potting shed and garage. There is also a residence occupied since 1956 by the Lockers who also operate the florist shop. In 1963, the Humble Oil Company signed an option to purchase approximately 16,000 square feet of the property from the Lockers for the price of $48,500 subject to the condition that Humble Oil would be able to construct and operate an automobile service station on it. That portion optioned to Humble has a frontage on Elm Street and it would be possible for the Lockers to relocate the buildings and continue their nursery business on the rear portion of the lot.

In 1951, the City of McHenry enacted a Zoning Ordinance that classified most of the Elm Street area, including the Locker property, as “B” for business use. Under a “B” classification, the property could be used for a wide variety of business uses including service stations and florist shops. In 1960, a Comprehensive Plan Report was prepared for the City by the consulting firm of Stanton and Rockwell that recommended that the area be reclassified as “B-l,” a classification that would also permit service stations. In 1962, the City enacted its Amended Zoning Ordinance that did reclassify the area as “B-l” but omitted service stations as a permitted use under that categorization. The Lockers in 1963 petitioned the City for a reclassification of their property to “B-2” or “B-3” to permit the service station or, in the alternative, to interpret the “B-l” classification to include such a use. After appropriate public hearings and administrative action, that petition was denied by the City and the plaintiffs instituted this action in the lower court requesting that the court declare the ordinance invalid as applied to their property and a further finding that the property could be used for a service station.

A zoning ordinance, like all other legislation, is presumed to be valid and the party who attacks it must overcome that presumption of validity by clear and convincing evidence that, as applied to him, the ordinance is arbitrary and unreasonable and is without substantial relation to the public health, morals, safety and welfare. Trendel v. County of Cook, 27 Ill2d 155, 161, 188 NE2d 668; Bennett v. City of Chicago, 24 Ill2d 270, 273, 181 NE2d 96.

The courts of this State have utilized a number of factors, frequently reiterated in the reported cases, to consider in the determination of the validity of zoning ordinances. These factors include the existing uses and zoning of nearby property; the extent property values are affected by the particular classification; the promotion of the public welfare; the relative gain to the public as compared to the hardship upon the property owner; and the suitability of the property for the purpose zoned. Garner v. City of Carmi, 28 Ill2d 560, 564, 192 NE2d 816; LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, 46, 47, 145 NE2d 65. To those often repeated factors, the courts later added more intangible items for consideration such as the care with which the legislative body planned its land use development and the community need for the use proposed by the property owner. Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill2d 370, 378, 167 NE2d 406; Hoffmann v. City of Waukegan, 51 Ill App2d 241, 244, 201 NE2d 177.

It is the contention of the City that it must be concluded that the presumptive validity of the zoning ordinances was not overcome when these criteria are applied to the circumstances of this case. The City also contends that the evidence presented to the trial court demonstrated that the zoning ordinance was in fact a reasonable and proper use of the legislative power and that the trial court committed reversible error by its refusal to consider certain relevant, competent evidence offered to it. To evaluate these contentions, it is necessary to briefly relate the evidence presented.

The Locker property is located on the southwest corner of Elm and Third in an expanding business section of McHenry. From Third Street to the next block west, Front Street, the lots on the south side of Elm are used for a drapery shop, an upholstery shop, a music shop, a new Ace Hardware store, a funeral home and two service stations. On the north side of Elm, from Front back to Third Street, there is a tavern, a department store, a newspaper publisher, a cleaning shop, a drugstore, a Jewel Food store, an A & P food store and another cleaners. Across Third to the east, on the south side of Elm, there is a new National Tea, an American Legion hall and further east, across Boone Creek, a savings and loan association, a repair garage and a service station at the intersection of Richmond Road with Elm Street. On the north side of Elm from Richmond back to Third Street to the west is a service station, a fire station, a marina on Boone Creek, and across the creek, another service station and a toy store on the north east corner of Elm and Third.

Most of this area was rezoned from “B” to “B-l” under the 1962 Amended Zoning Ordinance. As a result, 4 of the 5 service stations enumerated were rendered nonconforming uses. Elm Street is a four-lane highway, with two additional parking lanes. At this location it is also State Routes 120 and 31. There was evidence that in 1965 an average of 13,900 automobiles a day used Elm Street in this vicinity.

Herbert Harrison, a real estate appraiser, testified for the plaintiffs as an expert witness. It was his opinion that the portion of the Locker property under option to Humble Oil had a market value of $49,000 in 1962 if it could be used as a service station and a market value of $24,900 for the uses permitted under the “B-l” zoning and that both values had probably increased “about 10 %” since that time. It was also his opinion that a service station on the site would not affect the property values of neighboring property. Rolf Campbell, a professional city planner, testified for the plaintiffs and stated that because of the nature of the area, a service station would be a logical and compatible use for the Locker property and that it would have a favorable effect on nearby businesses.

The main thrust of the evidence presented by the City was to demonstrate the care and logic used in the creation of the Amended Zoning Ordinance. Numerous witnesses testified that it was necessary to preserve a pattern of compatible businesses to insure the continued growth and vitality of its business core. The Elm and Third Street area was characterized as a “pedestrian shopping district” that encompassed multiple “compatible” uses where prospective shoppers could walk from store to store and consequently add to the economic health of all. A service station, in their opinion, would inevitably disrupt this flow of pedestrian traffic and frustrate the designs of the city planners. The owners of three nearby retail businesses testified that a service station at this location would reduce the number of customers that would visit their stores in the course of their shopping activities.

The trial court considered the evidence, thus presented, and filed a Memorandum Opinion to support its decision. The court found that the area was in fact dominated by automobile, not pedestrian, traffic; that the Lockers suffered a financial hardship as a result of the restrictions imposed on their property; that there was no evidence that another service station in the area would have a deleterious effect on surrounding property values; that there was no demonstrated public good to be realized by the restrictions; and that, therefore, the ordinance as applied to the subject property, was “arbitrary, capricious, unreasonable and bears no substantial relation to the public health, comfort, safety and welfare, and accordingly is void.”

The findings of the trial court on these matters should not be disturbed unless they are contrary to the manifest weight of the evidence. Scott v. City of Springfield, 83 Ill App2d 31, 33, 226 NE2d 57; LaSalle Nat. Bank of Chicago v. Village of Skokie, 62 Ill App2d 82, 89, 210 NE2d 578. From our examination of the record, we are in accord with the finding of the trial court. There is no dispute that the area under consideration is zoned for and dominated by business uses. An aerial photograph that appears in the record lends persuasive support to the conclusion of the trial court that the area is oriented to the uses of the automobile despite the intentions of the city planners to create a pedestrian shopping district. The presence of five other service stations on both sides of Elm Street within a 4- or 5-block area, the sizable parking lots used in conjunction with the 3 retail grocery stores, the width of Elm Street and the large number of automobiles that appear on it, all indicate that the designs of the City were, at least to this property, unrealistic.

We would agree with the City that the community need for another service station is debatable. However, no one factor is itself controlling in the determination of the reasonableness of zoning restrictions. Chicago Title & Trust Co. v. Wilmette, 66 Ill App2d 326, 337, 338, 214 NE2d 336. It is rather the function of the court to apply all of the factors to the particular case in that determination. When, as here, it appears that zoning restrictions have no real, substantial relation to the public health, safety, welfare or morals and the owner has demonstrated hardship as a result of their imposition, the restrictions should not be upheld.

Although the trial court originally indicated that it would not consider any evidence pertaining to the question of the need of the community for the use proposed or recent development in the area, it is clear from the record that evidence on those questions was later admitted and considered by the court. We find no error in the record that is sufficient to reverse the determination of the lower court and it will be accordingly affirmed.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Pearl Byrne, a/k/a Pearl Boghosian, Plaintiff-Appellant, v. Mutual National Bank of Chicago, Executor of the Estate of Mateos Boghosian, Deceased, as Trustee Under Trust No. 1973, Elizabeth Sparks, Paul Boghosian, Betty Sparks Winfield, and Helen Sparks McHale, Individually and as Trustees, and Thomas Sparks, Defendants-Appellees.
    Gen. No. 51,235.
    First District, Third Division.
    December 7, 1967.

      Emanuel Morris, Heller & Morris, and Jerome H. Torshen, of Chicago (Emanuel Morris and Jerome H. Torshen, of counsel), for appellant.
    Murphy and Kinnerk, of Chicago, for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Complaint was filed in the Circuit Court of Cook County by plaintiff, Count I of which sought specific performance of an alleged oral agreement made by Mateos Boghosian during his lifetime to will all of his property to plaintiff, and to reach property in possession of Mutual National Bank of Chicago, as Trustee under Trust No. 1973, an inter vivos trust created by Mateos Boghosian, and the proceeds of certain alleged joint bank accounts maintained by Mateos Boghosian with his daughter or granddaughter. By Count I of the complaint the plaintiff sought to recover the property in the inter vivos trust, the bank accounts and proceeds therefrom withdrawn by the individual defendants, beneficiaries or recipients of said property. Counts II and III of the complaint were actions at law. The court ordered that Count I of the complaint be tried separately and referred Count I to a master in chancery.

The corporate defendant (trustee) filed its answer in which it stated that it had no knowledge as to whether or not the deceased, Mateos Boghosian, had or had not made an oral promise to will his property to the plaintiff in exchange for her services in maintaining his household and performing other services for him.

The individual defendants in their answer denied that Mateos Boghosian during his lifetime had made an oral promise or had entered into an oral agreement with the plaintiff to make her the beneficiary of his property by will. These defendants also answered by stating that such alleged contract would violate the Statute of Frauds and set forth the reasons therefor.

A short summary of the facts necessary to an understanding of. this case, follows:

On June 24, 1944, Mateos Boghosian, the deceased, married Pearl Byrne, also known as Pearl Boghosian, the plaintiff. On February 20, 1956, the plaintiff obtained a divorce in Dixon, Illinois. From the time of the divorce until March of 1958 Mateos Boghosian was required to pay the plaintiff $80 per month. The master found that in April 1958, the plaintiff took up residence at the home of Mateos Boghosian, at his repeated requests, for the purpose of taking care of him, by acting as his housekeeper, nurse and companion, and for the further purpose of assisting him in the care and management of his several properties. There is a dispute at this point as to whether, as claimed by the plaintiff, when she moved into the new bungalow of Mateos Boghosian in the summer of 1958, she was to take care of him and in exchange for her services was to receive money, room and board, or whether he promised her he would will his property to her. When the plaintiff moved into the bungalow she brought certain furniture with her and lived with Mateos Boghosian until his death on February 28, 1964, except for two short periods of time. While living with Mateos Boghosian she took care of him as well as his property from time to time and in exchange for these services received room, board and various sums of money. At the outset she received $10 per week. She also collected $100 per month from the boarder at 7654 South Lowe during the years 1961, 1962, 1963 and 1964, and $60 per month from a one-room furnished apartment at 7656 South Lowe in 1962, and $15 per week from another apartment at 7656 South Lowe in 1962 and 1963. At the time Mr. Boghosian owned two apartment buildings, one bungalow and a vacant lot.

The defendants’ testimony indicated that the major part of the maintenance work was performed by the son and grandson of the deceased, as well as by one James McHale. The evidence offered on behalf of the defendants tended to show that during much of the time the plaintiff lived with the deceased and was supposed to care for his needs she was engaged in outside employment; that the granddaughters Betty Winfield and Helen McHale cared for a good bit of his personal needs.

All of the real estate owned by the deceased was in a land trust created prior to the time the plaintiff began living with him in 1958. He reserved a life estate in himself and the beneficiaries of the trust were his relatives, Paul Boghosian and Elizabeth Sparks. Plaintiff at no time had any interest in the land trust. Mateos Boghosian also had certain bank accounts before and during the time the plaintiff lived with him. These accounts were held in joint tenancy with himself and his granddaughter, Helen McHale. One account contained the name of a daughter, Elizabeth Sparks, as joint tenant with himself and his granddaughter. Plaintiff had no interest in any of Mr. Boghosian’s bank accounts.

On November 19, 1951, while plaintiff was living with Mateos Boghosian, he executed a will which made no provision for the plaintiff. Witnesses for defendants testified that many times during the period that plaintiff was living with Mateos Boghosian, Mr. Boghosian made statements to the effect that plaintiff was not to share in his estate after his death. The plaintiff offered testimony to the effect that her ex-husband had promised her that he would will his property to her in consideration of her taking care of him and his property as long as he lived.

After a complete hearing before the master, the master prepared his report. Objections to the report were filed by both plaintiff and individual defendants. The master’s report found, in part, the following:

“8: That the Plaintiff had rendered valuable service to the deceased, Mateos Boghosian, from the date of April, 1958 to the date of his death, February 28, 1964, as alleged in her said Amended Complaint and with respect to compensation for such services, she has an adequate remedy at law.
“9: That Plaintiff has not proven, through her testimony, or that of her witnesses, that she has suffered a fraud by the failure of the deceased to make a Will in her behalf. . . .”

After discussing the law of specific performance, the master concluded and recommended that a decree be entered denying the plaintiff equitable relief for specific performance, and that the plaintiff, having rendered valuable services, had an adequate remedy at law.

The plaintiff argues that the master found that there was an oral contract to make a will, and having so found, he should have recommended the entry of a decree for specific performance. We do not agree that any such specific finding was made by the master. The finding of the master is ambiguous.

In the objections filed by the plaintiff to the master’s report she did not call this ambiguity to the master’s attention. The objections were overruled by the master and by order of court were permitted to stand as exceptions. Of course, this ambiguity was not called to the attention of the judge and the court approved the report of the master and dismissed Count I of the complaint for want of equity.

The plaintiff argues that since the findings of the master in paragraph 8 of his report showed that the plaintiff had rendered valuable services to the deceased “as alleged in her said Amended Complaint” that that is sufficient to show that there was an oral promise to make a will. However, the plaintiff could have rendered valuable services, as alleged in her amended complaint, without having proven to the satisfaction of the court than an oral promise was made by the deceased to will his property to her. Furthermore, the statement “as alleged in her said Amended Complaint,” in our opinion, referred only to her allegations as to services performed by her and did not refer to a promise allegedly made by the deceased.

The master further found that the plaintiff had not proven through her testimony or that of her witnesses that she had suffered a fraud by the failure of the deceased to make a will in her behalf. That finding cannot be construed to support the plaintiff’s theory that there was an oral contract.

The courts have repeatedly held that where an objection is not made before the master, nor preserved by way of exceptions before the court, the master’s report is conclusive on the parties. See Velde v. Schrock, 253 Ill App 274; A. A. Erickson Bros., Inc. v. Jenkins, 41 Ill App2d 180, 190 NE2d 383; Fischer v. Slayton & Co., Inc., 10 Ill App2d 167,134 NE2d 673.

Since the court has approved the report of the master and no objection was made or exception preserved by the plaintiff to the master’s failure to make a definite finding as to whether or not there was an oral promise made by the deceased to the plaintiff, to the effect that the deceased would will his property to the plaintiff in consideration of services to be rendered by the plaintiff, the master’s report is conclusive on the parties.

Since the master failed to find that there was an oral promise and since the master’s report was approved by the court in its decree, the decree must be affirmed.

Decree affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Isabelle E. Leszinske, Administrator of the Estate of Lyle R. Leszinske, a Minor, Deceased, Plaintiff-Appellee, v. Kate Grebner, Administrator of the Estate of Otto F. Grebner, Deceased, Defendant-Appellant.
    Gen. No. 67-42.
    Second District.
    December 12, 1967.
    Rehearing denied January 8, 1968.

      Gunner and Keller, of Dixon, for appellant.
    Fearer and Nye, of Oregon, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

Plaintiff brought this action as Administrator of the Estate of Lyle R. Leszinske, to recover for his alleged wrongful death. The defendant is the Administrator of the Estate of Otto F. Grebner, the driver of the auto in which Lyle R. Leszinske (herein called Leszinske) was riding at the time he received the injuries which presumably caused his death. The jury returned a verdict for the plaintiff in the sum of $10,000 and the defendant appealed from the judgment entered thereon.

Otto F. Grebner (herein called Grebner) was engaged in the business of painting houses and buildings. On September 8, 1965, Leszinske, 18 years of age, was employed by Grebner on a full-time basis as a painter. His work included the loading and unloading of Grebner’s station wagon, as well as other general duties. At approximately 6:30 p. m., on that date, Grebner was driving his station wagon in a northerly direction on U. S. Highway No. 51, just south of Rochelle, where both Grebner and Leszinske lived. Leszinske was riding in the front seat next to Grebner.

The highway at this point was a straight two-lane concrete road. The weather was clear, the pavement dry and visibility was good. Grebner was driving consistently at a speed of 35 to 40 miles per hour, and at this given point his car went off the road slightly so that the two right tires were on the shoulder. The car continued northerly in this manner for approximately one- or two-car lengths when it suddenly swerved back onto and across the northbound traffic lane of the highway, into the southbound traffic lane thereof, and into the path of another car.

Both Grebner and Leszinske were dead when their respective bodies were removed from the car. Grebner had a heart attack in 1959, and there was evidence tending to indicate that his heart was no longer beating at the time he received the injuries from the accident.

The defendant’s principal contention is that plaintiff’s remedy was under the Workmen’s Compensation Act (Ill Rev Stats 1965, c 48, par 138 et seq.), and that therefore the plaintiff could not recover under any common law or other statutory right, including the Wrongful Death Act (Ill Rev Stats 1965, c 70, par 1, et seq.).

Section 5 (a) of the Workmen’s Compensation Act (Ill Rev Stats 1965, c 48, par 138.5 (a)) provides, in part, as follows:

“No common law or statutory right to recover damages from the employer or his employees for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.”

The plaintiff did not have the right to maintain this action under the Wrongful Death Act if Leszinske’s employment was covered by the Workmen’s Compensation Act, and if the injuries and death arose out of and in the course of such employment. There are two issues which must be met: (1) was the employment under the Act; and (2) if so, then did the injuries and death arise out of and in the course of the employment.

Nothing in the complaint suggested that the employment was extrahazardous or that there had been an election to come under the Workmen’s Compensation Act. Thus, as to the issues of coverage under the Act and the source of injuries, the burden of proof was upon the defendant and she was required to assert the application of the Act as an affirmative defense. Christian v. Chicago & I. M. Ey. Co., 412 Ill 171, 174, 105 NE2d 741 (1952); Victor v. Dehmlow, 405 Ill 249, 252, 253, 90 NE2d 724 (1950); Mueller v. Elm Pk. Hotel Co., 391 Ill 391, 397-398 incl., 63 NE2d 365 (1945); Ill Rev Stats 1965, c 48, par 138.5 (a) and c 110, par 43 (4).

Section 3 of the Workmen’s Compensation Act (Ill Rev Stats 1965, c 48, par 138.3) specifies those occupations in which there is automatic application of the Act, and, consequently, coverage thereunder. It states in part, as follows:

“The provisions of this Act hereinafter following shall apply automatically and without election to . . . all employers and all their employees, engaged in any department of the following enterprises or businesses which are declared to be extra hazardous, namely:
“1. The erection, maintaining, removing, remodeling, altering or demolishing of any structure, except as provided in sub-paragraph 15 of this Section.
“ “

It is undisputed that Leszinske was working for Grebner as a painter and was doing painting work on the day in question. Thus, as to the issue of coverage of the employment under the Act, the defendant clearly sustained her burden. The business of painting buildings is obviously an enterprise engaged in maintaining structures. Any other interpretation would require us to take unwarranted liberties in defining the words and language of the statute. As to this particular issue, at this posture of the case, there was no discretionary determination for the jury under the proof in this case. As a matter of law, it could properly reach but one conclusion.

Grebner’s business was subject to the automatic coverage of the Workmen’s Compensation Act unless excepted therefrom under subparagraph 15 of section 3, supra, which exempted from coverage, among other things, work done on a farm. Walsh v. Industrial Commission, 345 Ill 366, 369, 178 NE2d 82 (1931); Storrs v. Industrial Commission, 285 Ill 595, 597, 121 NE 267 (1918). Coverage under the Act is determined by the business or enterprise of the employer and not the particular kind of work or the specific thing which the employee may have been doing at the time of the injury. Figgins v. Industrial Commission, 379 Ill 75, 77, 78, 39 NE 2d 353 (1942). As to the issue of whether any exception to the automatic coverage was applicable, the burden of proof was upon the plaintiff and she must plead any exception to the automatic coverage. No such exception was pleaded or put in issue.

The second issue pertaining to the applicability of the Workmen’s Compensation Act is whether the injuries and death arose out of and in the course of Leszinske’s employment. With reference to this, plaintiff alleged in her complaint, as follows:

“That on or about September 8, 1965, at or about the hour of 6:30 p. m. DST, the said Lyle R. Leszinske was an employee of Otto F. Grebner, deceased, and a passenger in a 1964 Ford Falcon station wagon owned by the said Otto F. Grebner in the capacity of an employee in that Lyle R. Leszinske, as a part of his employment, would accompany the said Otto F. Grebner, back to the workshop at Otto F. Grebner’s request and assist Otto F. Grebner in unloading work equipment.”

The plaintiff argues that this allegation was to show that “plaintiff’s intestate was on his way back to the defendant’s (sic) intestate’s workshop to assist in unloading work equipment”; and that the obvious reason for such allegation was to remove the case from the provisions of the Guest Act and thereby the plaintiff would be required to prove only ordinary negligence rather than wilful and wanton conduct. However, such allegation was sufficient not only to remove the case from the provisions of the Guest Act but also to bring it under the terms of the Workmen’s Compensation Act.

It is generally held that accidents which occur while an employee is going to and from his place of employment do not arise out of and in the course of employment. Urban v. Industrial Commission, 34 Ill2d 159, 161, 214 NE2d 737 (1966); Christian v. Chicago & I. M. Ry. Co., supra, 175. This general rule, however, is not applicable where the employee’s trip is determined by the demands of his employment or where his duties as employee take him to the place of his injury. Urban v. Industrial Commission, supra, 161, 163; Benjamin H. San-born Co. v. Industrial Commission, 405 Ill 50, 54, 89 NE 2d 804 (1950); Scott v. Industrial Commission, 374 Ill 225, 228, 29 NE2d 93 (1940).

In the case at bar, the general “going to and coming from work” rule obviously cannot be applied. Leszinske’s employment for the day had not ended if he was going to Grebner’s workshop to help unload the station wagon. To fulfill this obligation of his employment, Leszinske was riding with his employer, Grebner, at a time when and at a place where he might reasonably be expected to be. Leszinske was “in the course of his employment.”

Under these facts there can be no question of the requisite causal connection between the employment and the accident. If Leszinske was returning to Grebner’s workshop, his death occurred in the course of his employment and arose out of such employment. Christian v. Chicago & I. M. Ry. Co., supra, 174, 175; McField v. Lincoln Hotel, 35 Ill App2d 340, 344, 345, 182 NE2d 905 (1962). Under these circumstances, we would hold as a matter of law that the death arose out of and in the course of Leszinske’s employment.

The general rule that the injury or death did not arise out of or in the course of the employment, would not necessarily apply even if Leszinske and Grebner were merely returning to the former’s home after doing painting work out of town. If the nature of the employment— the painting — were such that Leszinske was compelled to travel to various places to paint, and the demands and duties of the employment necessitated this travel, the death could be attributed to the employment.

In Sjostrom v. Sproule, 34 Ill App2d 338, 181 NE2d 379 (1962), cited by plaintiff, where two employees of Armour & Co., both of whom lived in Chicago, were assigned to supervise certain aspects of construction work being carried on by Armour & Co., in Bradley, Illinois, and were requested by the company to ride together in a car furnished by the company, to avoid the duplicate expense otherwise charged by them to the company, the Appellate Court held that the injury to one while riding with the other to work did not arise out of or in the course of employment. It reversed for retrial.

On a second appeal, however, the court reversed itself (49 Ill App2d 451, 200 NE2d 19 (1964)) and stated that its first decision was erroneous. It further stated that Armour & Co. furnished the transportation and directed the two employees to use it; and that the furnishing of transportation by the employer was a well recognized exception to the rule that travel to and from work is ordinarily not within the provisions of the Workmen’s Compensation Act. The Supreme Court affirmed (83 Ill 2d 40, 210 NE2d 209 (1965)) and held that the travel in question was under the Act because the particular trip to work was determined by the demands of the employment, not by personal factors.

The Supreme Court further noted that Bradley was not the regular place of work of either employee; that their assignment at this location was on a temporary basis; that it was not contemplated that they should change their place of residence because of the temporary assignment; and that the travel to Bradley was to accommodate the employer rather than the employees. The court recognized that there is a critical distinction between travel that results from the employee’s decision as to where he wants to live, and travel that is required by the exigencies of the job. This distinction suggests to us the possible application of the Compensation Act to the case at bar even if Grebner and Leszinske were only returning to Grebner’s house.

As we have noted, plaintiff alleged in her complaint that the decedent was an employee of Grebner and at the time of the accident was riding in the latter’s car as a part of his employment; and that his duties required him to accompany Grebner back to his workshop to help unload the equipment. Plaintiff at no time abandoned or withdrew this pleading, but rather, continually reasserted it. In her answer to interrogatories, plaintiff reiterated that it was a part of Leszinske’s duties to help load and unload the station wagon. Plaintiff’s witnesses reaffirmed this. Plaintiff’s instructions were consistent with this allegation in that they referred to the duty of ordinary care imposed upon Grebner, rather than wilful and wanton conduct.

If the allegation in the complaint were accepted as binding upon the court, we would be of the opinion that it is sufficient, as a matter of law, to establish that the death arose out of and in the course of the employment. Such an allegation contained in a complaint would normally be considered a judicial admission and conclusive upon the plaintiff as to the admitted facts. Coss v. Magdziasz, 65 Ill App2d 40, 42, 43, 212 NE2d 717 (1965); Precision Extrusions, Inc. v. Stewart, 36 Ill App2d 30, 50, 51, 183 NE2d 547 (1962); 30 ILP, Pleading, §20. This fact, coupled with our conclusion that on the record before us the employment was automatically covered by the Workmen’s Compensation Act, suggests that the case should be reversed without remandment.

However, the evidence indicated that Leszinske had been doing painting work on a com crib on a nearby farm on the day in question. Such evidence would raise a question as to whether Grebner’s business was thereby excepted from the provisions of the Workmen’s Compensation Act under subparagraph 15 of Section 3 (Ill Rev Stats 1965, c 48, paragraph 138.3(15)) which excepts from coverage, among other things, work done on a farm.

In view of the rather inept procedures before the trial court with reference to both pleadings and proof on the issues relative to coverage under the Workmen’s Compensation Act, we do not believe it would serve the interest of justice to merely reverse and not remand the case. Prior to the trial, the allegation in the complaint to which we have referred was neither admitted nor denied by defendant. Strict proof was demanded. No affirmative defense relative to the Workmen’s Compensation Act was asserted by the defendant, and, consequently, no allegation of an exception under the Act was pleaded by the plaintiff.

Then, after the first day of the two-day trial and at the close of the plaintiff’s case, the defendant sought leave to amend her answer and admit the allegations in the complaint referred to above. This was denied by the court. However, the defendant was granted leave to and did file an additional answer and affirmative defense asserting the applicability of the Workmen’s Compensation Act. This was after the close of plaintiff’s case. Subsequently, the plaintiff filed a reply to the additional and affirmative defense. Such bizarre handling of the pleadings and issues could not but have a telling effect on the proof offered by the plaintiff and the overall fairness of the trial.

As before stated, the defendant had the burden of raising the defense of the applicability of the Workmen’s Compensation Act. It was late in the trial when the defendant first sought and was granted leave to assert this affirmative defense. In view of these circumstances, we believe that this case should be remanded, the parties permitted to plead the issues they wish to raise and the matter thereupon proceed to a new trial based upon the issues formulated prior thereto and consistent with the views expressed herein.

Since the case must be retried, we might observe that an appropriately worded special interrogatory or interrogatories regarding a material question of fact relative to the application of the Workmen’s Compensation Act should be submitted by the court to the jury upon the request of either party litigant.

Reversed and remanded, with directions.

MORAN and ABRAHAMSON, JJ., concur.


text:
    In the Matter of the Incorporation of the Village of Capitol Heights, Petitioners-Appellants, v. City of Rockford, Objector-Appellee.
    Gen. No. 67-55. (Abstract of Decision.)
    Second District.
    December 12, 1967.
    Vem L. Davitt, of Rockford, for appellants; William E. Collins, Corporation Counsel, of Rockford, and William R. Nash, State’s Attorney, of Rockford, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


text:
    Board of Education in and for the School District of the City of Rockford, No. 205, Winnebago County, Illinois, a Municipal Corporation, Plaintiff-Appellee, v. Community High School District Number 211, of Winnebago County, Illinois, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 67-34.
    Second District.
    December 13, 1967.

      Reno, Zahm, Folgate and Skolrood, of Rockford, for appellant.
    Pedderson, Menzimer, Conde and Stoner, of Rockford, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The plaintiff is a special charter school district operating public schools in the City of Rockford offering education in grades 1 through 12. Defendant is a protectorate high school district which does not own or operate any school buildings but uses its funds to pay for the tuition and transportation of its pupils to other school districts. Defendant is apparently the only protectorate district in the State of Illinois.

At the end of each school year, plaintiff submits a claim for tuition to defendant, covering plaintiff’s costs of operating and maintaining its schools in an amount representing the defendant’s share of that cost. The bill for the 1963-1964 school year included interest on bonded indebtedness and depreciation on the same buildings. We held that the interest could not be charged People ex rel. Meyer v. Skinner, 78 Ill App2d 412, 223 NE2d 248 (1966).

The tuition bill for 1964-1965 once again included an item of $9,338.41 for interest on bonded indebtedness. In addition, the bill included an item of $32,496.36 for tuition calculated upon the cost of high school education only. All of the pupils from the defendant District who attend the plaintiff’s schools are at the high school level and none of them attend grade schools operated by the plaintiff.

There are two issues between the parties. First, should the tuition be calculated on the basis of the cost of main-taming just the high schools or the entire cost of maintaining grades 1 through 12 operated by the plaintiff? This issue arises because the cost of high school education is greater than the cost of grade school education. Second, is interest on bonded indebtedness a proper charge?

Based upon our decision in the previous case, the trial judge denied the claim for interest on bonded indebtedness, but allowed the claim for additional tuition calculated on the cost of high school education. The defendant appealed from that decision contending that the entire cost of the system should be used as a calculation and the plaintiff has cross-appealed on the question of the inclusion of interest on the bonded indebtedness.

Relative to the cross-appeal, the Supreme Court has recently reversed our holding in the Skinner case. People ex rel. Meyer v. Skinner, 38 Ill2d 379, 232 NE2d 297 (1967). Consequently, the judgment of the trial court as to this aspect of the appeal is reversed.

The remaining issue between the parties involves a construction of section 10-20.12a of the School Code which provides as follows:

“Tuition for non-resident pupils. To charge nonresident pupils who attend the schools of the district tuition in an amount equal to the per capita cost of maintaining the schools of the district for the preceding school year.
“Such per capita cost shall be computed by dividing the total cost of conducting and maintaining the schools of the district by the average number of pupils enrolled, including tuition pupils. Depreciation on the buildings and equipment of the schools of the district, and the amount of annual depreciation on such buildings and equipment shall be dependent upon the useful life of such property.
“The tuition charged shall in no case exceed the per capita cost of conducting and maintaining the schools of the district attended. Non-resident pupils attending the schools of the district for less than the school term shall have their tuition apportioned.” (Ill Rev Stats 1963, c 122, § 10-20.12a.)

The question presented is whether the Legislature intended that the tuition be calculated on the basis of the schools actually attended, that is, the high school in this case, or the cost of the whole system provided by the district maintaining the schools attended.

Obviously, if we use the entire system as a standard for computation, the taxpayers in the defendant District will pay less for their children’s education than the taxpayers in the plaintiff District. The constitutional and legislative history of the public school system in Illinois clearly indicates that the schools are to be open to all on an equal basis and that all those who benefit from our system of public schools should share its cost on an equal basis. As the Supreme Court said in the case of People v. Moore, 240 Ill 408, 88 NE 979 (1909) at page 412:

“The constitutional requirement for the provision of a system of free schools is not only a mandate to the legislature, but also a limitation of its power. It can only authorize the establishment of high schools of the character of free schools whereby all the children of the State may receive a good common school education. The high school, as well as the lower grades, must be open to all children in the district of school age free, so that all shall have the right to an equal education therein. If this right is extended to the children of other districts it must be upon the same terms to all similarly situated. It cannot be extended to different individuals at different prices, according to their ability to pay. Within the district it must be free to all. If open to non-residents the terms must be equal to all.”

In People v. Chicago & N. W. Ry. Co., 286 Ill 384,121 NE 731 (1919), the Supreme Court found it to be the legislative intent to secure as even a distribution of cost as it is possible to obtain.

It is a familiar principle of statutory construction that where two or more constructions may be placed upon a statute, the court should select that construction which leads to a logical result and avoids the absurd. If we select the construction urged upon us by the plaintiff, then the taxpayers in the defendant District will pay for a high school education and their children will receive a high school education. If we select that construction urged upon us by the defendant, then the defendant’s taxpayers will be able to purchase a high school education for less than the taxpayers in the plaintiff District. We cannot conceive that the Legislature intended this result. If the system of public education in Illinois is based upon the proposition that each pupil receives an equal education, then each taxpayer should pay an equal amount for value received.

The trial judge was correct in calculating the tuition based upon the cost of high school education only and his judgment, in this respect, is hereby affirmed. That part of the judgment pertaining to the exclusion of interest on the bonded indebtedness is hereby reversed. It therefore becomes necessary to reverse the order with directions to recompute the proper amount to be charged against the defendant in accordance with the views expressed herein.

Reversed in part; affirmed in part; and remanded with directions.

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


author: PRESIDING JUSTICE McCORMICK

text:
    Jack Schiff, a Minor, by Bernard Schiff, his Father and Next Friend, and Bernard Schiff, Appellants, v. Oak Park Cleaners and Dyers, Inc., and Charles J. Murphy, Appellees.
    Gen. No. 46,685.
    First District, Second Division.
    December 6, 1955.
    Released for publication March 6, 1956.

      Arthur S. Gomberg, and Joe Reiff, both of Chicago, for appellants; Samuel Nineberg, of Chicago, of counsel.
    McNamara, Voigt, Greene & Nordstrand, and Albert M. Howard, all of Chicago, for appellee, Charles J. Murphy; Oswell G. Treadway, of Chicago, of counsel; William H. Arpaia, of Chicago, for appellee, Oak Park Cleaners & Dyers, Inc.; William H. Arpaia, and Harry W. Altman, both of Chicago, of counsel.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

An action was brought by a minor and his father to recover damages arising out of an accident in which the minor plaintiff sustained personal injuries allegedly because of the negligence of the defendants in the. operation of their respective vehicles. After the court reserved ruling on motions made on the part of the defendants for directed verdicts at the close of all the testimony, the case was submitted to a jury, which disagreed and was discharged. The trial court then sustained the motions for directed verdicts and entered judgments for the defendants. The plaintiffs made a motion for a new trial, which was overruled. From these orders and judgments of the trial court this appeal is taken.

The occurrence complained of took place March 19, 1949 in the alley running east and west within the block bounded on the north by Washington street, on the west by Lombard avenue, on the south by Madison street, and on the east by Taylor avenue, in the Village of Oak Park, Illinois. The east and west alley cuts through the block from Lombard to Taylor. A second alley within the block extends south from Washington street to the east and west alley where it ends. A truck of the defendant Oak Park Cleaners and Dyers, Inc., was parked on the south side of the east and west alley.

The plaintiffs’ evidence shows that Jack Schiff, eleven years of age, who will hereafter be referred to as plaintiff, was playing with some other children in the alley, and was running south in the north and south alley. When he reached the east and west alley he turned west. He looked east for westbound cars, made the turn and got into the westbound lane when he was hit by defendant Murphy’s car. Defendant Charles J. Murphy, who was traveling east in the east and west alley, because of the position of the parked vehicle had to use the westbound lane, or the north half of the alley, rather than the eastbound lane. At the time of the impact both the plaintiff and Murphy’s car were moving. The plaintiff did not see the car at any time before the impact. The accident occurred between 1:00 and 1:30 p. m. The truck had been parked in the same position from sometime between 11:30 and 12:00, and at the time was not loading or unloading. As a result of the collision the plaintiff went up on the hood of the car, slipped off and hit his head on the concrete when he came down. Murphy’s car was moving slowly at the time and stopped within a foot or two. At the time, Murphy, driving slowly, had seen another boy run in front of his car before the impact with the plaintiff. Murphy did not blow his horn.

The plaintiffs contend that they had proved a prima facie ease and that the court was in error in sustaining the motions of the defendants.

The theory of the defendant Murphy on appeal is that the plaintiffs had failed to make out a prima facie case of negligence against him and that the plaintiff was not exercising due care as a matter of law. The defendant Oak Park Cleaners and Dyers, Inc. contends that no conduct on its part proximately caused or contributed to the plaintiff’s injury; that the plaintiff was not within the class intended to be protected by the Oak Park ordinance; and that the plaintiff was not in the exercise of due care as a matter of law.

Here the court was really passing upon a motion to enter judgment notwithstanding the verdict under section 68 of the Civil Practice Act (Ill. Rev. Stat. chap. 110, par. 192 [Jones Ill. Stats. Ann. 104.068]). This is true in spite of the fact the terms used in the statute refer to a verdict and here there was no verdict. The rules which govern the court’s action upon a motion for a directed verdict are controlling here. The motions are essentially the same. In Hughes v. Bandy, 404 Ill. 74, the court says:

“The question presented by a defendant’s motion for a directed verdict in an action at law is whether there is any evidence fairly tending to prove the cause of action alleged or fact affirmed, and the court does not, on such motion, weigh the evidence or consider its preponderance. (Todd v. S. S. Kresge Co., 384 Ill. 524; Blumb v. Getz, 366 Ill. 273; Peters v. Peters, 376 Ill. 237.) No contradictory evidence, or other evidence of any kind or character, will justify a directed verdict or a judgment for defendant notwithstanding the verdict, except uncontradicted evidence of facts consistent with every fact which the evidence for the plaintiff tends to prove, but showing affirmatively a complete defense. (Merlo v. Public Service Company of Northern Illinois, 381 Ill. 300; Nelson v. Stutz Chicago Factory Branch, Inc., 341 Ill. 387.) The party resisting such a motion is entitled to all the benefit of all the evidence favorable to him. (Tidholm v. Tidholm, 391 Ill. 19.) . . . Neither the trial court, nor a court of review, should weigh the evidence or determine where its preponderance lies. If the evidence adduced by plaintiff makes out a prima facie case sufficient in itself to go to the jury, defendant’s motion should be denied even though, upon the entire record, the evidence may preponderate against the party opposing the motion, so that a verdict in his favor could not stand when tested by a motion for a new trial.” [Citing cases.]

See also Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153.

It is also well settled that the requirement that the plaintiff prove he was exercising ordinary care at the time of the occurrence means that he was acting as a man of ordinary prudence would under like circumstances, and that where the plaintiff is an infant he must exercise that degree of care that one of his age, intelligence, capacity and experience would exercise under the same or similar circumstances.

Both defendants contend that as a matter of law the plaintiff was not exercising due care., .Our courts have been very loathe to take from the jury the question of the determination of the exercise or lack of exercise of due care. No precise rule of action can be laid down, but each case must be determined upon its own facts. Stack v. East St. Louis & Suburban Ry. Co., 245 Ill. 308; Sims v. Chicago Transit Authority, 4 Ill.2d 60.

Defendant Murphy also contends that as a matter of law he was not guilty of negligence.

On a motion for a directed verdict the test to determine whether a defendant was as a matter of law guilty of negligence which could have proximately caused the accident or whether the plaintiff was exercising due care is as to whether or not, from the facts in evidence, reasonable men in the exercise of sound judgment could differ in their conclusions. Shannon v. Nightingale, 321 Ill. 168; Stack v. East St. Louis & Suburban Ry. Co., supra; Sims v. Chicago Transit Authority, supra. The facts in evidence that the defendant Murphy was proceeding in a lane different than his own proper lane of travel; that he was passing a truck; that the impact occurred at-the time the first half of his car had passed the truck; that prior to this he had seen a boy run before his car; that he was approaching an intersecting alley; that, while he was proceeding slowly, he did not blow his horn or give any notice of his .approach; that the plaintiff was playing with other boys in the alley; that he was running through the alley; that he looked to the east for westbound cars and saw nothing; that he was then struck by the car driven by defendant Murphy are facts from which reasonable mén might in the exercise of sound judgment draw conflicting inferences. The issues should have been submitted to and determined by a jury under proper instructions from the court.

It is argued on behalf of defendant Murphy that in passing on his motion'the trial court had a right to consider certain statements made in the plaintiff’s deposition taken before the trial which he alleges are not in accord with some of the statements made by plaintiff at the trial. If the court had considered such statements, it would have necessitated a weighing of the evidence, which is not permitted in passing on a motion for a directed verdict. Blumb v. Getz, 366 Ill. 273; Hughes v. Bandy, supra. We have carefully considered the cases cited in both defendants’ briefs and do not consider them applicable to the facts and circumstances here before us.

The defendant Oak Park Cleaners and Dyers, Inc., hereafter referred to as “Cleaners,” contends that as a matter of law it was not guilty of any negligence which either proximately caused or contributed to the plaintiff’s injury. There was in full force and effect in the Village of Oak Park an ordinance which provided:

“It shall be unlawful for any driver to park a vehicle within an alley in such a manner or under such conditions as to leave available less than eight (8) feet of the width of the roadway for the free movement of vehicular traffic; but there shall be no parking in any alley for a time longer than is necessary to load or unload passengers or materials.”

The evidence was that the truck was parked for a long period of time, in the neighborhood of two hours, and at the time it was not loading or unloading.

It is first contended that the plaintiff was not within the class or in the situation intended to be protected by the provisions of the ordinance, and that the ordinance was intended solely to prevent unreasonable delay in traffic. We cannot agree with such construction. It could properly be considered that the ordinance was not only for the purpose of speeding up vehicular traffic, but also for the purpose of preventing obstructions in the alleyway which might result in injuries to persons or damage to the property of other persons legitimately using the alley.

We agree with the contention of the Cleaners that even if a violation of an ordinance constitutes negligence, recovery cannot be had unless the negligence is the proximate cause of the injury. It is further contended that the parking of the truck in violation of the ordinance merely furnished a condition, and where there was a subsequent independent intervening act of a third person, the existence of the condition is not the proximate cause of the injury. The rule with reference to proximate cause under such circumstances is laid down in Ney v. Yellow Cab Co., 2 Ill.2d 74, where the court said (pp. 78-79) :

“The violation of the statute is prima facie evidence of negligence under the prevailing rule of this State. (Johnson v. Pendergast, 308 Ill. 255; Stewart v. United States, 186 Fed.2d 627.) This in itself creates no liability. The injury must have a direct and proximate connection with the violation of the statute before liability will be held to exist. It is the existence of this cause and effect relationship which makes the negligence of the defendant actionable.

“Where an independent agency intervenes, the solution of the problem becomes aggravated. The rules are without substantial contradiction and are universally applicable, but their practical application yields varying and contradictory results. In Neering v. Illinois Central Railroad Co., 383 Ill. 366, we stated: ‘What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act.’ In Johnston v. City of East Moline, 405 Ill. 460, we declared: ‘An intervening and efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. [Citations.] The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such force was, itself, probable or foreseeable. [Citations.]’ ”

The question of proximate cause is ordinarily a question of fact and should be determined as other questions of fact, and the question as to whether or not the resulting injury here could have been reasonably foreseen by the agent of the defendant Cleaners is one of fact for the jury to determine under proper instructions from the court. It is not a question upon which all reasonable men would agree.

In Ney v. Yellow Cab Co., supra, the court says (p. 84):

“Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the' Magna Charta, our Declaration of Independence and both our State and Federal constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its functions. Bailey v. Central Vermont Railway Co., 319 U. S. 350.”

See also Cloudman v. Beffa, 7 Ill.App.2d 276.

In this case, with the motion for a directed verdict defendant Murphy filed an affidavit of a juror to the effect that the jurors, if they had the necessary forms of verdict before them, would have found defendant Murphy not guilty and would have left undecided a verdict as to defendant Cleaners. The rule in Illinois is well settled that affidavits of jurors as to what transpired while considering their verdict will not be received for the purpose of impeaching such verdict and will only be received to substantiate the verdict when their conduct in the jury room has been otherwise attacked. Kelley v. Call, 324 Ill. App. 143; Loucks v. Pierce, 341 Ill. App. 253; Sanitary District of Chicago v. Cullerton, 147 Ill. 385. Here the affidavit was not submitted either for the purpose of attacking the verdict or supporting it since no verdict had been rendered. It was offered apparently for the purpose of showing that the jurors would not have disagreed if they had before them proper verdicts. The affidavit was totally irrelevant. The court promptly and properly disavowed it, and by such action cured the impropriety of filing it.

The judgments and orders of the Superior Court of Cook County appealed from are reversed and the cause remanded for a new trial.

Judgments and orders reversed and cause remanded for a new trial.

ROBSON and SCHWARTZ, JJ., concur.