author: Mr. JUSTICE GOLDBERG

text:
    Oak Park National Bank, a National Banking Association, et al., Plaintiffs-Appellees, v. The City of Chicago, Defendant-Appellant.
    (No. 55176;
    First District (1st Division)
    February 20, 1973.

      Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Marsile J. Hughes, Assistant Corporation Counsel, of counsel,) for appellant.
    Maurice J. Nathanson and Ernest G. Lambesis, both of Chicago, (Ronald S. Cope, of counsel,) for appellees.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

In this declaratory judgment proceeding, the trial court invalidated a zoning ordinance of the City of Chicago as regards its application to property owned by Oak Park National Bank, as Trustee, La Salle National Bank, as Successor Trustee, and the beneficiaries of the trust (plaintiffs). The City of Chicago, sole defendant, appeals.

We will first consider contentions raised by the City with reference to proceedings before the master in chancery to whom the cause was referred and then the zoning issue on its merits. This may be one of the last opinions of this court pertaining to practice before masters in chancery because of the abolition of that ancient office in the State of Illinois. (See Ill. Const. 1870, art. VI, sec. 8, effective January 1, 1964 and par. 8 of schedule to said article.) On April 1, 1964, the trial court referred the cause to the late Sydney Wolfe, a master in chancery. On December 1, 1964, the court entered an order reciting that “justice requires” the master to conclude the cause and directing the master to complete the services required of him by the order of reference. (See Ill. Const. 1870, par. 8 of schedule.) The master heard all of the evidence in the case and closed proofs by agreement of the parties on July 14, 1965. The master died on April 6, 1969, without completing his report.

However, the master wrote out in longhand a statement of the case, comprising 15 pages, and a summary and analysis of the evidence consisting of 69 pages. His report was never placed into final form and filed. On July 25, 1969, the executor of the master’s estate presented the matter to the court and requested allowance of reasonable compensation to the estate as well as other relief. On August 4, 1969, the court entered an order “on the basis of the agreement of all parties before the court.” This order directed Harry L. Rudnick, an attorney at law and surviving law partner of the master, to conclude the master’s report and to present the same to the court. In accordance with this order, the report was put in final form by Mr. Rudnick and duly filed. The first 84 pages of this report were typed from the handwritten manuscript of the master. Three additional pages were added by Mr. Rudnick. He certified that he had reviewed the entire record and that he agreed fully with the findings made by tire master. He concluded that the zoning ordinance in question was invalid in its application to the property of plaintiffs.

Upon notice duly served by Harry L. Rudnick, the City filed objections to the master’s report in which it set forth that the court was without authority to appoint a successor to the master under the then applicable provisions of the judicial article of the Constitution of Illinois, above cited. These objections also pointed out that the master had stated his conclusions only with respect to parcel 2 of the subject property (which will be later described) but that the successor had stated conclusions as to parcel 1 without having seen the witnesses.

The trial court entered its decree March 16, 1970, overruling the objections taken by the City and granting the relief prayed by plaintiffs. In the decree, the court found that the order which designated Harry L. Rudnick to complete the master’s report had been entered by agreement of all of the parties. The order of December 1, 1964 directing the original master to complete his services was expressly approved by counsel for the City. The notice sent by Rudnick to all attorneys of record on September 25, 1969 described his appointment by the court for completion of the master’s report as being with the agreement and approval of the parties. In addition, said appointment of Rudnick is described in an order entered by the court on January 12, 1970, directing the filing of his report, as being “by agreement of the parties.” At no point does the City take issue with the facts regarding existence of this agreement. The decree appealed from fixes and allows fees of the deceased master payable to his estate in the sum of $3500 and fees for services rendered by Rudnick in the amount of $900 with the direction that the total of these fees be assessed one-half, or $2200, against plaintiffs and the remaining half against the City.

The City makes no objection to the amount of the fees but urges strongly that the designation of the successor to the master, Harry L. Rudnick, was unauthorized so that the City has been denied a full hearing and thus denied due process of law. The City contends that the trial court had no authority to appoint a successor to the master with or without agreement of the parties.

The City cites and relies upon three Illinois authorities: Trzebiatowski v. Jerome, 24 Ill.2d 24, 179 N.E.2d 622, and People ex rel. Reiter v. Lupe, 405 Ill. 66, 89 N.E.2d 824 which in turn cites People ex rel. Brignall v. Lewe, 383 Ill. 549, 50 N.E.2d 577. These decisions are not applicable here because the case at bar presents one decisive element which is absent from all of them. In each and all of these cited cases, one of the parties made an objection to the attempted procedure. Entirely to the contrary, in the case at bar, the appointment of Harry L. Rudnick and the completion and filing by him of the report of the deceased master was all done by agreement of the parties. Under these circumstances, any questions of due process of law or constitutional adequacies have been effectively waived by the City.

Generally speaking, constitutional rights, precisely like other rights, may be waived. (People v. Orr, 10 Ill.2d 95, 100, 139 N.E.2d 212, and additional cases therein cited.) In addition, in the case at bar, the originally and properly appointed master heard all of the evidence and prepared virtually all of the report. When the parties agreed that Harry L. Rudnick could complete the report itself, all of them were bound by their agreement. None of them should be heard to enter into such an agreement and then attempt to abandon it after the decision became known.

As counsel for plaintiffs correctly points out, the situation here is no different than where parties agree to present a case to the court upon a stipulation of fact. Even in criminal cases it has frequently been held that “* * * the use of a stipulation to waive necessity of proof is an accepted and established, as well as an essential, method of expediting the trial * * See People v. Morris, 6 Ill.App.3d 136, 140, 285 N.E.2d 247, and cases therein cited.

Furthermore, and finally, although the findings of a master, approved by the trial court are entitled to due weight on review the master’s report is advisory only. After filing of the report, the facts remain open for consideration by the trial court and by the reviewing court. This court will make its own determination as to whether “* * * the decree rendered by the court [was] a proper one under the law and the evidence * * *” without regard to the finding of the master upon any particular question of fact. (See Babray v. Carlino, 2 Ill.App.3d 241, 244, 276 N.E.2d 435, leave to appeal denied March 29, 1972.) The record shows no prejudice to the City in this regard. We find this aspect of the City’s argument lacking in validity.

We turn now to consideration of the merits of the zoning controversy. In this phase of the matter, the City urges that the decree appealed from unreasonably permits conversion of non-conforming residential buildings to business uses; plaintiffs have failed to overcome the presumptive validity of the zoning ordinance; plaintiffs have not sustained unusual hardship because of the present zoning and the change of the zoning boundaries did not constitute “spot zoning.” In response, plaintiffs urge that the rezoning of the subject property by the City was arbitrary and unreasonable; there is no reasonable basis in public welfare which requires the zoning restriction and resulting loss to the property owners and plaintiffs had the right to rely upon the zoning classification," when they purchased the property, remaining unchanged without a reason based upon public welfare.

The subject property presents an anomalous situation. It is located in the vicinity of the northeast corner of Division and State Streets in Chicago. Hie corner parcel itself, not part of the subject property, has a frontage of 27 feet on State Street and 102 feet on Division Street and is a regular rectangle. One portion of the subject property (referred to as parcel 1) is immediately to the north of the corner parcel, fronts 40 feet on State Street and extends back to the east for 102 feet. Its street address is 1203-1205 North State Street. At the eastern boundary of this portion of the subject property and of the corner parcel, there is a ten foot vacant strip extending in a north and south direction. The second portion of the subject property (parcel 2) has a frontage of 48 feet on Division Street and extends back to the north for 67 feet. There is an alley immediately to the east of this parcel. It is commonly known as 12-14 East Division Street. Thus it appears that the subject property is in effect similar in shape to the letter “L” in an upside down position resting upon, or completely surrounding, the corner parcel.

Parcel 1 (fronting on State Street) is improved with a basement and four-story building. Parcel 2 is improved with basement and three-story building. All of tírese improvements on both parcels were erected about 1890. The actual uses upon these parcels will later be described.

The zoning history of the subject property shows that it was zoned for commercial uses under the City ordinance enacted in 1923. This classification was continued by the subsequent ordinance in 1942 which classified both parcels for business uses. Quite similar uses were permitted under both of these classifications. The beneficial owners of the property purchased it in 1946 when it was entirely classified for business uses.

In 1957, the City adopted a comprehensive zoning ordinance which changed the status of the subject property. Parcel 1 (fronting on State Street) was rezoned to residential uses under an R-7 classification. This R-7 zoning was continued to the east across the north 40 feet of parcel 2 and until the alley which forms the east boundary of parcel 2. However, the entire comer parcel fronting 27 feet on State Street and 102 feet on East Division Street was zoned for business purposes under the B4-5 classification. This zoning was continued in an easterly direction to the alley; so that the south 27 feet of parcel 2, fronting on Division Street, is also classified as B4-5. Consequently, parcel 2 is improved with one structure but the north 40 feet of that parcel is zoned R-7 and the south 27 feet thereof is R4-5.

In 1946, when plaintiffs acquired the subject property, parcel 1 contained business uses and some apartments. It had a shoe repair shop, an art store, a gift shop, a real estate office, a hair removal emporium and also apartments used for living purposes. At that time, on parcel 2, there were two apartments on the first floor, one used for living quarters and the other as a fur shop. There were apartments on the second floor, one of which was devoted to the sale of paintings and objects of art. At present, the actual uses of the subject property are similar to the activities carried on there in 1946. Similarly, present land uses in the immediate area of the subject property hardly differ from the situation as it existed in 1946.

At the present time, the area northeast of the intersection of State and Division Streets is generally zoned R-7 with the exception of the narrow 27 foot strip on the north of Division Street extending west from State Street to the alley, a distance of 150 feet. On the east side of State Street, south of Division, the property is zoned under a R4-5 category.

As regards actual land uses in the vicinity of the subject property when plaintiffs acquired it, on the north side of Division Street, west of State Street, which is directly across from the subject property, a person walking west would pass a restaurant, a rooming house, and then various stores, offices and apartments to Dearborn Street, the first street to the west. On the south side of Division Street, proceeding from the corner diagonally across from the subject property and walking west from State Street, one would encounter a drug store, tavern, beauty shop, tailor shop, restaurant, several establishments euphemistically referred to as cocktail lounges, a dress shop, a gift shop and then a restaurant.

On the east side of State Street, proceeding in a southerly direction from Division Street, there were: a restaurant including a bar, a grocery shop, beauty shop, barber shop and flower store. In the same area on the west side of State Street, south of Division Street, there were: a large drug store, a candy store and an apartment building with doctors’ offices on the lower floors. On the west side of State Street going in a northerly direction from Division Street, there were: a restaurant on the corner, then a cocktail lounge, a cleaning shop, a supermarket and then a tall structure known as the Canterbury Hotel. There was a cocktail lounge within this building.

There is testimony that these uses were generally constant in their nature from the time that plaintiffs acquired their property in 1946 until 1957. Some changes were made from that time until the present. A parking lot was installed on the east side of State Street, north of parcel 1. A small tavern was established shortly west of parcel 2 on the north side of Division Street. On the north side of Division Street, west of State Street, a one-story building was erected and was occupied by a dress shop, barber shop and book store.

As regards the subject property itself, it was partly damaged by fire in 1960 and the owners remodeled it. This was virtually a restoration of the building as it previously existed excepting only elimination of basement stores. The corner parcel on the northeast corner of State and Division Streets which, as we have noted, is surrounded on two sides by both parcels of the subject property, is occupied by a large restaurant and also by a small tavern immediately to the east of the restaurant. There are apartment uses immediately above the restaurant.

Plaintiffs do not seek approval from the court of any specific proposed use for the subject property. One of the plaintiffs testified that present zoning restrictions obliged him to reject proposed uses for the property including a theater, cocktail lounge, book publisher, caterer, travel agency and a restaurant with live entertainment. Plaintiffs substantiated this contention with additional evidence. One witness testified that he was interested in leasing the entire second floor of parcel 1 of the subject property for a catering service. Another testified that he would rent the entire first floor of parcel 1 for a launderette operation. The owner of the comer restaurant testified that he would rent the store on the first floor of parcel 1 for a cocktail lounge. When the cause was heard, parcel 1 had two shops occupied on the first floor and all of the upper floors were vacant.

Plaintiffs called as their witness an experienced realtor who handled real estate in the area. He described the land uses in the vicinity. He testified that in his opinion the highest and best use of the entire subject property was within those categories authorized under the City zoning of B4-5. In his opinion, parcel 1 as presently zoned has a value of $65,000 and parcel 2 of $75,000; a total of $140,000. If the entire property were rezoned to B4-5, parcel 1 would have a market value of $115,000 and parcel 2 would be valued at $100,000; a total of $215,000. It was, therefore, his opinion that the existing zoning reduces the market value of the subject property by $75,000.

The City called in opposition a licensed realtor of long experience in the Near North area. After describing the zoning and land uses in the area, he testified that the subject property could best be developed for apartment use. He stated his opinion that “the highest and best use” of parcel 1 was under R-7 zoning. He also testified that some of the uses which had been proposed to plaintiffs by prospective tenants “would have a deleterious effect on the neighborhood.” He further testified that the present uses on the subject property do not have such effect and that other existing uses in the area similarly would not have such effect excepting only one cocktail lounge advertised by an outdoor sign. He did not regard the supermarket on the west side of State Street in the first block north of Division as having a deleterious effect This witness stated no opinion regarding tire market value of the subject property.

The City also called a real estate appraiser, broker and planner who was familiar with the area for many years. He stated the opinion that the highest and best use of parcel 1 would be for a multifamily dwelling containing efficiency and one bedroom apartments on the upper floors with tenant parking on the ground floor. He based this opinion upon the need for such type of apartments in the Near North area because of convenient fast transportation to downtown. He expressed the opinion that combining a retail store with an apartment structure on parcel 1 would adversely affect surrounding property. He expressed the same opinion for the same reasons with reference to parcel 2.

The City also called the Executive Director of a business association operating in the area. Although apparently unqualified in planning or real estate matters, he expressed the opinion that the highest and best use of parcel 1 would be under R-7 or B-2 zoning. In his opinion, parcel 2 should also be devoted to B-2 uses but B-4 uses on parcel 2 would not. be as objectionable as the same uses on parcel R

In addition, the City called three witnesses who own residential property in the vicinity of the subject property. All three of them reside on Scott Street, which is tire next street north of Division, in the first block east of State Street. One of these witnesses resides on the north side of Scott Street and two reside on the south side. All of them were in favor of the present zoning and opposed to any change. Their testimony must be considered in the light of the accepted principle “* * # that the use of property cannot be restricted or limited merely because neighboring property owners so desire, or because they think it might protect the value of their residence.” Regner v. County of McHenry, 9 Ill.2d 577, 582, 138 N.E.2d 545.

In considering the validity of the zoning restriction, we should commence upon the basis of the well known and widely cited decision of the Supreme Court in La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65. In the City’s reply brief, an attempt is made to differentiate this decision for factual reasons. This may be partially correct but, as virtually conceded by the City, the basic theories expressed by the Supreme Court in La Salle Nat. Bank constitute, and still remain, the accepted principles which should be applied to the decision of virtually every zoning case. As the Supreme Court there expressly recognized, each zoning problem is different and they are all sui generis in that the validity of the zoning ordinance must be determined by the individual facts and circumstances of each separate case. (See 12 Ill.2d 40, 46.) This does not mean that the prime elements set forth by the Supreme Court may be disregarded. These principles have been repeatedly stated by the courts of Illinois. See 12 Ill.2d 40 at pages 46, 47; also, La Salle Nat. Bk. v. City of Chicago, 4 Ill.App.3d 266, 271, 280 N.E. 2d 739.

It is correct, as the City urges, that every zoning ordinance, including that here involved, is presumptively valid. As held in La Salle Nat. Bank v. County of Cook, this presumption of validity may be overcome only by clear and convincing evidence and the burden of proof rests upon plaintiffs. See 12 Ill.2d 40, at page 46.

Proceeding to apply the established basic principles to the evidence at bar, the first determination is concerned with existing uses and zoning of nearby property. The fact here preponderate greatly in favor of the position taken by plaintiffs. The remaining three corners of the intersection of State and Division Streets are devoted to business uses by the existing City ordinance for frontages greater than the corner in question. Furthermore, the first alley, 150 feet east of State Street on the north side of Division Street, is recognized by the City as a natural zoning boundary. Property to the west of the alley is zoned B4-5 and that to the east is zoned R-7. It would seem only logical, therefore, that the B4-5 zoning should be extended north on State Street in order to encompass parcel 1 and the north 40 feet of parcel 2. This would allow business frontage on the east side of State Street north of Division for a total of only 67 feet; less than that permitted on each of the other three corners of the intersection.

It must be remembered that reviewing courts of Illinois have often applied the principle that in determining these zoning questions we must regard “* * * of paramount importance the question of whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established.” (Jacobson v. City of Evanston, 10 Ill.2d 61, 70, 139 N.E.2d 205.) The business and commercial uses upon the subject property were in conformity with actual existing similar uses for many years and so remain to this day. These surrounding uses are uniform and established for many years.

Considering next the extent to which property values are diminished by the existing ordinance, the evidence is completely one-sided. As shown, plaintiffs proved by competent evidence that the subject property would increase in value approximately $75,000 if rezoned to the B-4 classification. In other words, the present zoning prevents plaintiffs from having a 50% increase in the value of their property and its imposition destroyed the value of their property to the extent of $75,000. However, this factor standing alone is not sufficient. We must pursue the inquiry further and we must consider whether this diminution of the value of plaintiffs’ property will promote the health, safety, morals or general welfare of tire public. We must also balance the relative gain to the public as compared to the hardship imposed upon plaintiffs by the zoning restriction. La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40, 47.

Evaluation of the evidence in the light of these factors leads inevitably to the result that the value of plaintiffs’ property has been partly destroyed by existing zoning without any correlative gain to the public health, safety, morals or general welfare. This record shows that since 1923 the entire subject property has been zoned by the City for business or commercial uses. Such uses are prevalent to the extent that they dominate the surrounding area insofar as frontage upon both State and Division Streets is concerned. The City recognized this in enactment of the zoning ordinance in 1923 and reaffirmed the wisdom of this classification by enactment of the subsequent ordinance in 1942. There is no evidence of any change in the surrounding area or any change in actual land uses in the vicinity of the State-Division intersection which can be used as a justifiable basis for the zoning change of the subject property instituted by the comprehensive ordinance of 1957.

The record is clear that uses in the area did not change substantially from 1946, when plaintiffs acquired their property, until 1957 when the zoning ordinance was changed. Additional uses in the area during the 11 year period conformed to the general character of the intersecting streets in this vicinity which was business or commercial.

One of the City’s chief arguments is based upon residential uses in the area. It is correct that there are residential uses along the north and south sides of Scott Street and also on the west side of Astor Street. However, these established residential uses have no relevancy in consideration of the type of use which should be permitted virtually at the northeast corner of State and Division Streets. As shown, parcel 1 has a frontage of only 40 feet on State Street and it is immediately north of the corner parcel which has a frontage of only 27 feet on the same street. The entire subject property takes its character from established inter-sectional business uses upon all four corners of State and Division Streets; not from any residential uses in the general area. See Petropoulos v. City of Chicago, 5 Ill.2d 270, 125 N.E.2d 522.

The City seeks also to analyze the case at bar as though plaintiffs were attempting the conversion of nonconforming residential buildings to business uses. In this regard, the City relies strongly upon Mercer Lumber Co. v. Vil. of Glencoe, 390 Ill. 138, 60 N.E.2d 913. However, that case has no factual relevancy here. It is concerned only with a question of expansion of a nonconforming use. In fact, Mercer has been cited in subsequent decisions in connection with that very question of the attempted expansion of a nonconforming use. (See People v. City of Highland Park, 122 Ill.App.2d 117, 257 N.E.2d 798, and Kelley-Williamson Co. v. City of Rockford, 61 Ill.App.2d 482, 487, 209 N.E.2d 681.) The case at bar involves no such question. The property of plaintiffs had a commercial or business classification for 11 years after plaintiffs acquired it. It was only the intervention of the 1957 zoning ordinance which so radically changed the classification of all of parcel 1 and one-half of parcel 2 that the uses in question became classified as nonconforming uses. Plaintiffs seek here to invalidate that classification in its entirety.

Consideration of the suitability of the purpose for which the subject property is presently zoned and the length of time that it has remained vacant, in connection with land development in the vicinity, La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40 at page 47, leads us to the same result. It is correct that plaintiffs encountered difficulty at one time in renting their property or portions of the subject property for business or commercial uses. However, the uncontradicted evidence adduced by plaintiffs shows good possibility of putting the property to productive economic use were it not for the present zoning restriction. The only evidence in the record regarding possible development of parcel 1 and part of parcel 2 for apartment or residential use is an assertion of opinion regarding the possibility of building an apartment dwelling consisting of efficiencies and one bedroom apartments combined with garage space on the first floor. No evidence was offered regarding the economic feasibility of this type of proposed development.

In the case at bar, we cannot help but conclude that the present zoning ordinance causes a substantial decrease in the value of the property owned by plaintiffs without any accompanying benefit to tire public welfare. On the contrary, it would appear that public welfare would far better be served by devotion of the subject property to business or commercial uses than it would by the intrusion into this immediate area of potentially low grade housing consisting of efficiency and one bedroom apartments combined with garage facilities on the ground floor. “The law does not require that the subject property be totally unsuitable for the purpose classified but it is sufficient that a substantial decrease in value results from a classification bearing no substantial relation to the public welfare.” (La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40, 48, 145 N.E.2d 65.) This test also has frequently been applied by reviewing courts of Illinois. La Salle Nat. Bk. v. Vil. of Harwood Heights, 2 Ill.App.3d 1040, 1047, 278 N.E.2d 114.

In addition, there is one factor of crucial importance which requires us to affirm the decree. After plaintiffs invested their money and purchased their property, the zoning classification remained unaltered for 11 years. Plaintiffs had a right to rely upon the zoning classification then in effect and to assume that it would “* * * not be changed except for the public good.” (Langguth v. Village of Mount Prospect, 5 Ill.2d 49, 52, 124 N.E.2d 879.) The Supreme Court of Illinois has used even stronger language in establishing the right of every property owner to rely upon the rule of law that the zoning classification of his property will only be changed if required for the public good. The Supreme Court has referred to this principle as “* * * both a liberty and a property right.” Northern Tr. Co. v. City of Chicago, 4 Ill.2d 432, 437, 123 N.E.2d 330.

In the case at bar, one of the beneficial owners testified that he was aware of and relied upon the business zoning classification when he purchased the property. The City now is desirous of changing this classification by an ordinance which in effect cuts a portion of plaintiffs’ property in half without, at the same time, achieving any improvement in the public good or welfare. In fact, quite to the contrary, the evidence would indicate that the present zoning classification of the subject property might well result in detriment to the immediate area.

Conversely, it appears that the change in zoning classification sought by plaintiffs would have no detrimental effect upon the public welfare. Although defendant offered evidence to the contrary, analysis shows that the testimony of defendant’s witnesses has elements of inconsistency each with the other. The realtor who testified for the City expressed the opinion that certain of the uses tendered to plaintiffs by prospective tenants would have a bad effect upon the neighborhood. However, he did not think that a public parking lot, a dry cleaning establishment or a grocery store had any deleterious effect. He also testified that present commercial uses in the subject property have not affected the neighborhood.

The planner who testified for the City was in favor of efficiency apartments and a parking garage for one portion of the subject property and expressed the opinion that this would not have any deleterious effect. This witness also felt that certain proposed uses would “lower the prestige of the neighborhood.” Yet, contrary to the opinion of the preceding expert, he did not feel that outside signs in the immediate area advertising a restaurant and a saloon would have any such effect.

The business association director called by defendant would be opposed to any tavern or restaurant on the subject property on the ground that it would have an adverse effect to the area. This is in conflict with the testimony of the first two witnesses who took the position that taverns and restaurants, even in one case with outside signs, would have no adverse effect. Also, this last witness would approve a B-2 zoning classification for parcel 1 and stated that even a B-4 use on parcel 2 would not be as objectionable as B-4 uses on parcel 1. In view of this evidence, the conclusion is well justified that B-4 uses upon the entire subject property would have no adverse effect upon tire surrounding area.

The City urges that plaintiffs should have presented a proposed use of tire subject property for consideration by the trial court. In our opinion, there is no such mandatory requirement in zoning cases. The trial court had authority to approve a proposed specific use but it was not compelled to do so. Sinclair Pipe Line v. Richton Park, 19 Ill.2d 370, 167 N.E.2d 406.

The wisdom of this conclusion is made evident by the facts in the case at bar. Were it not for the imposition of the 1957 zoning ordinance upon their property, plaintiffs apparently would have had no difficulty in obtaining tenants for various uses. However, because of the ordinance, plaintiffs could not have entered into a binding lease for any of these proposed uses. In addition, plaintiffs’ complaint was filed August 20, 1963 and this litigation still continues. This illustrates forcefully the impossibility of entering into any lease for any of the available uses subject to completion of zoning litigation. In addition, in October of 1962, plaintiffs themselves filed with tire City Council a proposed amendment which would have changed the zoning of the entire subject property to B4-5. This proposed amendment had been approved by the Commissioner of City Planning, by the City Zoning Administrator and by a Committee of the Chicago City Council. The Council itself permitted more than six months to elapse without action on the proposed amendment; thus compelling plaintiffs to institute the within litigation.

Two additional comments are necessary. Plaintiffs urge that the master’s report as filed recommended invalidation of the ordinance on the ground that the R.-7 classification of plaintiffs’ property constituted spot zoning. We find it unnecessary for us to rule upon this completely theoretical issue. Its determination would have no effect upon the merits of the situation as above set forth.

The final contention of the City is an argument of variance. The complaint alleged that plaintiff, Ernest G. Lambesis, was the beneficial owner of the property. The proof showed that the equitable owners of the property are the original plaintiff and his wife, Tasia E. Lambesis. After this court heard oral argument, the original plaintiff filed a motion to amend the proceedings by making Tasia E. Lambesis an additional party plaintiff. Over objection by the City, we have granted this motion. See Supreme Court Rule 366(a)(2), 50 Ill.2d Rule 366(a)(2).

Upon full consideration we find no reversible error in this record. The decree appealed from is accordingly affirmed.

Decree affirmed.

BURKE, P. J„ and EGAN, J„ concur.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    Paul Coumoulas, Plaintiff-Appellant, v. Service Gas, Incorporated, Defendant-Appellee.
    (No. 71-358;
    Second District
    February 27, 1973.

      Tyler & Peskind, of Aurora, for appellant.
    Robert J. Bourelle, of Wheaton, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff, Paul Coumoulas, filed an action against Service Gas Incorporated, the defendant, in 1971. He alleged that he incurred damages in 1966 from a fire caused by defendant’s negligent installation of a gas broiler in 1959. Defendant filed a motion to dismiss on the ground that the action was not instituted within 5 years after the cause of action accrued as required by Ill. Rev. Stat. 1971, ch. 83, sec. 16. Plaintiff appeals from the order which granted defendant’s motion and dismissed the cause.

Plaintiff has argued solely that the cause of action did not accrue within the terms of the limitation statute until the fire. He contends that the statute of limitations does not begin to rim on a cause of action for negligence until the claimant suffers damage proximately caused by negligence. Defendant contends that plaintiff sustained a legal injury when the broiler was improperly installed even though the full extent of the injury or damages sustained was not then ascertainable.

In ruling on the motion to dismiss, the truth of the allegations made in the complaint are admitted. Essentially the complaint alleged that plaintiff employed the defendant to install the broiler, that defendant was negligent in that he failed to use proper methods of installation customary in the trade and failed to install proper insulation between the broiler and the wall behind it, and that defendant’s negligence caused the later fire.

A cause of action based on negligence may be said to accrue when all the elements of the action are present, including a legal duty, the breach of that duty, and injury resulting from such failure. (McClure v. Hoopeston Gas Co. (1922), 303 Ill. 89, 96.) An action in tort has been held to “accrue” as that term is used in limitation statutes, at the time of wrongful invasion of personal or property rights, even though the nature and full extent of the injury or damages is not then determined. (Sabath v. Morris Handler Co. (1969), 102 Ill.App.2d 218, 229; Austin v. House of Vision, Inc. (1968), 101 Ill.App.2d 251, 256-257.) Here, an injury occurred at the time of the negligent installation, and plaintiff at that time would have been entitled to sue to recover damages to remedy the defective installation. His cause of action was therefore complete, with the necessary elements of duty, breach, and injury. The later fire was an event which increased the damage but did not give rise to plaintiff’s cause of action.

There are a number of cases from foreign jurisdictions which have held to the contrary on apparently similar facts. (E.g., White v. Schnoebelen (N.H. 1941), 18 A.2d 185, 187; Theurer v. Condon (Wash. 1949), 209 P.2d 311, 314-315; Essex Kitchener Wire Corp. v. M. H. Hilt Co. (7th C.A. 1959), 263 F.2d 599, 602.) But in other jurisdictions results similar to ours have been reached. (E.g., Wellston Co. v. Sam N. Hodges, Jr., & Co. (Ga. 1966), 151 S.E.2d 481, 482-483; Kennedy v. Local 38, United Brewery F., C., S., D. & D.W. (Mich. 1966), 143 N.W.2d 596, 598; Metal Structures Corp. v. Plains Textiles, Inc. (Tex. 1971), 470 S.W.2d 93, 98.) Recent Illinois cases which have ruled on complaints for property damage against which the statute of limitations has been interposed as a defense have either held or assumed that the cause of action accrued when a breach of duty occurred, with injury in the sense of an invasion of a legal right, even though the full nature and extent of the damages from the injury were not then known. Sabath v. Morris Handler Co. (1969), 102 Ill.App.2d 218; Austin v. House of Vision, Inc. (1968), 101 Ill.App.2d 251; Simoniz Co. v. J. Emil Anderson & Sons, Inc. (1967), 81 Ill.App.2d 428; Wilson v. White Motor Corp. (1969), 118 Ill.App.2d 436; Board of Ed. C.H.S.D. No. 88 v. Perkins & Will Partnership (1970), 119 Ill.App.2d 196.

Plaintiff contends that these cases have not decided whether a cause of action accrued at the time of the negligent act, and have been concerned with whether the statute commenced running at the time of the discovery of the existence of that cause of action rather than upon its accrual. However, implicit in the cases is the conclusion that there was an injury which completed the cause of action at the time of the negligent act. The question before the court then became one of policy: whether, to avoid injustice, the applicable limitations statute should begin to run when the plaintiff had in fact discovered that he had suffered the injury or by the exercise of reasonable care should have discovered it.

The “discovery” rule, which has been applied in Illinois in carefully circumscribed cases (See Rozny v. Marnul (1969), 43 Ill.2d 54; Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32; Wigginton v. Reichold Chemicals, Inc. (1971), 133 Ill.App.2d 776, 274 N.E.2d 118; McDonald v. Reichold Chemicals, Inc. (1971), 133 Ill.App.2d 780, 274 N.E.2d 121), does not appear to have been extended to include the recovery of property damage due to negligence under circumstances similar to those before us. However, we are not faced with this question, as it has not been placed in issue here by the plaintiff. The complaint does not allege that plaintiff did not discover the negligence prior to the fire, nor has he argued that we should apply the “known or should have known” rule here.

We therefore rule solely upon the issue presented to us and find that cause of action accrued in 1959 at the time of the defective installation and was therefore barred in 1971 when the complaint was filed.

We affirm the judgment below which dismissed the action.

Affirmed.

T. MORAN and GUILD, JJ., concur.

       “* * * actions * * * to recover damages for an injury done to property, real or personal, * * * shall be commenced within 5 years next after the cause of action accrued.”


author: Mr. PRESIDING JUSTICE ALLOY Mr. JUSTICE DIXON

text:
    Vernon Ray, Admr. of the Estate of Kimberly Maria Ray, Deceased, et al., Plaintiffs-Appellants, v. Cock Robin, Inc. et al., Defendants-Appellees.
    (No. 71-278;
    Second District
    February 23, 1973.

      Rehearing denied March 29, 1973.

      DIXON, J., concurring in part and dissenting in part.
    Fred Lambruschi, of Chicago, for appellants.
    Pretzel, Stouffer, Nolan & Rooney, and Hubbard, Hubbard, O’Brien & Hall, both of Chicago, (Joseph B. Lederleitner, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This action was brought in the Circuit Court of DuPage County by the administrator of the estate of Kimberly Maria Ray, deceased, and three minor children by their mothers and next friends, as against Cock Robin, Inc., Edward Zawacki, d/b/a North Grace Super Sinclair Service, and Edwin and Delores Cholewa individually. The action was instituted by reason of the fact that the automobile driven by Edwin Cholewa entered upon the business premises of Cock Robin, Inc., and struck a wooden bench on which the deceased minor, Kimberly, and three other minor plaintiffs were seated. The cause was tried before a jury. On appeal the plaintiffs-appellants principally assigned erroneous rulings on evidence which they assert prevented them from presenting their case fairly, and also complained that counsel for one of the appellees made an improper argument. There is also error claimed in the direction of the verdict on liability as to defendant Cholewa.

On June 3, 1968, Cock Robin, Inc., owned and operated a drive-in ice cream establishment at the southwest corner of a T-intersection of River Road and Cherry Street in River Grove, Illinois. River Road is a north-south main artery of travel with four traffic lanes, two in each direction. Cherry Street is an eastbound one-way street ending at River Road.

Cock Robin’s building faced River Road and, judging from a pictorial exhibit in the record, sat back about a distance of 20 feet from a sidewalk running parallel with River Road. Between the sidewalk and the road was a grass parkway about four feet in width, except at a point about even with the south side of the building where there was a driveway into a parking area. Tire north side of the building was within a few feet of a sidewalk running east and west, parallel with Cherry Street. There was no curbing along Cherry Street and the parkway between the sidewalk and the street had been blacktopped, as had been the area in the front and to the south of the building. In the open area between the building proper and the sidewalk along River Road, which area appears to be about 20x30 feet, Cock Robin had placed a bicycle rack and three wooden picnic tables. At the south edge of this area there were concrete vertical bumper blocks, of the kind commonly used in parking lots, to separate the picnic area from the parking area to the south. On the Cherry Street side of the picnic area there were no blocks or barriers of any nature to close off the area or to impede the progress of a vehicle.

About four months prior to the occurrence, Edwin Cholewa purchased a 1959 automobile for $200, and about a week before the occurrence took it to a service station owned by Edward Zawacki for a tire repair and a brake adjustment. According to evidence given at the trial, both the brakes and the tires were in extremely defective condition. It appears also that the vehicle was equipped with power steering. On the afternoon of June 3, 1968, at about 4:00 o’clock, Cholewa was driving the car south on River Road. As he approached the Cherry Street intersection, the car veered off the road diagonally to the right and continued on a path which took it across Cherry Street, across the blacktopped parkway and the sidewalk along Cherry Street and into the picnic area in front of the Cock Robin building. In the picnic area it struck the bicycle rack and one of the picnic tables, hit a pole supporting a canopy in front of the building and continued on into the parking lot south of the building where it struck another car. Seated at the picnic table which was struck, eating ice cream just purchased at the drive-in, were Victoria Nicoletti, age 9, Tina Nicolleti, age 1%, Janet Spain, age 7, Kimberly Ray, age 4%, and Denise Ray, age 9. Denise Ray escaped injury, but Kimberly Ray received injuries from which she died about a week after the accident. The other three girls were seriously injured.

At the trial Cholewa testified that he was traveling about 35 miles an hour on the inner southbound lane of River Road, when, at a point about Vs of a block from Cherry Street, he noticed trafile congestion ahead, and that he put his foot on the brake pedal and found he had no brakes. He said he first tried to steer the car into a forest preserve along the east side of the road but could not do so because of northbound traffic; that he then noticed Cherry Street and turned sharply to the right intending to turn into Cherry Street; that as he did so he “had no wheel and couldn’t turn” sharply enough; that if he could have turned more he would have made it down Cherry Street. The car then continued into the picnic area. He conceded on cross-examination that he had not shut off his engine and that he had not attempted to use his emergency brake.

A suit was brought on behalf of the deceased child and the injured children in which the defendants were Cholewa, Cock Robin, Inc. and Zawacki. At the conclusion of all the evidence, the trial comí: directed a verdict against Cholewa on the issue of liability, and the jury thereafter returned a verdict, upon which judgment was subsequently entered, finding in favor of Cock Robin and Zawacki and assessing damages against Cholewa in favor of the following: Janet Spain — $76,500; the administrator of the estate of Kimberly Ray — $12,000; Victoria Nicoletti— $6500; and Tina Nicoletti — $4400.

As previously noted, it is the plaintiffs who have prosecuted this appeal. It is their first contention that the trial court erred when, on the motion of Cock Robin, it refused to permit the testimony of Sheldon Schaumacher, an expert witness tendered by plaintiffs. On the offer of proof, to the extent relied upon by the brief of plaintiffs, it was stated that the witness, a traffic engineer with extensive experience in the traffic aspects of drive-in businesses, would express opinions that any area within 30 feet of a roadway is considered most dangerous; that the placement of the picnic tables in the present case created an inherently dangerous condition; that the effect of guard rails, or barricades or blocks along the northern or Cherry Street side of the picnic area would have been to slow down or deflect a vehicle entering the premises from that side; and that the Cock Robin premises as they existed on June 3, 1968 constituted a dangerous and hazardous condition and did not comply with safety rules or engineering safety standards. The rules and standards referred to were not further identified, nor do they appear in the record.

The matter of expert testimony has been frequently considered by courts of review in this jurisdiction and, as stated by the court in Miller v. Pillsbury, 33 Ill.2d 514, 516, “* * * the trend is to permit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation.” As stated by the court in Abrahamson v. Levinson, 112 Ill.App.2d 42.50: “There must be a need apparent from tire record in the case for scientific knowledge, expertise and experience, which wiH aid the jury to a correct and a just result.” The trial court here ruled there was nothing complicated or difficult to comprehend with regard to the conditions caused by the location of the picnic area, and in this day of the drive-in and the automobüe, as well as frequent traffic mishaps, we are inclined to agree.

Photographic evidence in the record portrayed quite clearly and accurately the location of the picnic area in relation to the nearby streets, and in our opinion the average person could know and comprehend, without the assistance of expert testimony, that the location of the area could in some instances expose the picnic area to the dangers of traffic proceeding along River Road and Cherry Streets, and that guard raüs, barriers or blocks along or in front of the north line of the picnic area would have the effect of slowing, stopping or deflecting a vehicle coming onto the premises from that direction. The decisions relied upon by plaintiffs are not pertinent. In Miller v. Pillsbury, 33 Ill.2d 514, there were no eyewitnesses qualified to testify to an accident in which the drivers of the colliding vehicles both perished, and under the circumstances expert testimony reconstructing the accident was deemed to be permissible; in Merchants Bank of Aurora v. Elgin, Joliet & Eastern Ry. Co., 121 Ill.App.2d 445, where a train-truck collision at a crossing in an industrial area was involved, it was held that the interaction of lighting conditions, retroflection, traffic and weather factors, relative speeds of trains and vehicles, and distraction elements were of sufficient difficulty of comprehension and explanation to justify the assistance of expert testimony; and, finally, in Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313, involving a mammoth strip mining shovel, this court held that an expert should have been permitted to testify to design alternatives which could and should have been installed at the time of the manufacture of the machine. Comparable circumstances, complexities and matters were not involved in the present case, and we thus find no error in the ruling of the trial court on this issue.

Plaintiffs also contend that the court erred in refusing an offer of proof by Thomas Lambert, a non-expert, who would have testified that he had, in the fall of 1968, noted the location of the picnic area and the heavy traffic on River Road, and that he had told the man in charge of the drive-in that the condition was dangerous and that a guard rail should be put up to protect people at the tables. This contention, however, has not been pursued by argument or the citation of pertinent authority and will be deemed to have been abandoned. Quinn v. Larson, 77 Ill.App.2d 240; Flynn v. Vancil, 41 Ill.2d 236.

The law is well settled that evidence of prior accidents, occurring at the same place or with the same instrumentality, is competent, not for the purpose of showing independent acts of negligence, but for the limited purposes of showing that the common cause of such accidents was the unsafe condition or thing, and that the frequency of such accidents tends to show knowledge of such condition. (E.g., Moore v. Bloomington, Decatur and Champaign R.R. Co., 295 Ill. 63, 67; Smith v. City of Rock Island, 22 Ill.App.2d 389, 399; Lineen v. City of Chicago, 310 Ill.App. 274, 283; Shepard v. City of Aurora, 5 Ill.App.2d 12, 26.) Eased upon this rule it is plaintiffs’ next contention that the trial court erred in refusing to admit the testimony of their witness, John Reinert.

On an offer of proof, Reinert testified that in the early part of May, 1968, as he was buying ice cream at the drive-in, he observed a southbound auto make a sharp right turn off River Road into Cherry Street, the eastbound one-way street, after which the auto veered to the left and came into the picnic area where it struck the bicycle rack and pushed it into a bench in the picnic area. According to the witness, who also testified that the condition of the premises was the same at the time of both occurrences, he spoke to the driver and was told that when the latter began his turn into Cherry Street he .discovered that it was a one-way street and tiled to correct his mistake. FoUowing the incident, Reinert said he spoke to the person on duty at the drive-in about the dangerous location of the picnic benches, and was advised that such person was aware of the dangerous condition and had spoken to the property owners about it. In refusing to permit the testimony of Reinert to be given to the jury, the trial court, confining itself to a consideration. of the instrumentalities or things involved, reasoned that there was no common cause because the brakes had failed on the car involved in the present accident, whereas the prior accident had occurred because the driver had been confused about the one-way street.

On the record we conclude that the trial court’s analysis was not justified. The vehicles involved in both occurrences attempted right turns from River Road onto Cherry Street and, regardless of the cause, the fact remains that both drivers were unable to control their vehicles on the turn and ended up in the picnic area. Moreover, apart from the instruments involved, a common cause of the end results of both occurrences, viz., the striking of the bicycle rack and a table in the picnic area, was the condition of the drive-in premises which permitted the unimpeded passage of vehicles into the picnic area. In our opinion, tire testimony of Reinert was admissible to show both the dangerous and unsafe condition of the defendant Cock Robin’s premises and the latter’s knowledge of such condition.

Cock Robin argues, however, that the testimony of the prior occurrence was properly excluded for the reason that its negligence in failing to erect barriers, if any, was not a proximate cause of the death and injuries for which recovery is sought. This is so, it is said, because the time, place and circumstances under which vehicles go out of control are unforeseeable, and because the lack of a barrier or other device did nothing more than to create a condition which made injury possible by the subsequent, independent act of a third person. It may be agreed that one of the tests of proximate cause is the defendant’s duty to reasonably foresee or anticipate the consequences of his own negligence, and that a negligent omission or act is not the proximate cause of an injury or damage so as to impose liability, unless such injury or damage is one which could have been foreseen or fairly and reasonably anticipated and guarded against as a probable result thereof. (Cohn v. Petroleum Heat & Power Co., 44 Ill.App.2d 23; Ostergard v. Frisch, 333 Ill.App. 359; Ney v. Yellow Cab Co., 2 Ill.2d 74.) Further, it cannot be denied that if the negligence of a defendant only furnishes a condition and that condition causes an injury by the subsequent act of a third person, the creation of the condition is not the proximate cause of an injury; however, it is the rule that the subsequent act, in order to break the causal connection, must be one, the intervention of which was not probable or foreseeable by the first wrongdoer. (Ill. Central R.R. Co. v. Oswald, 338 Ill. 270; Merlo v. Public Service Co., 381 Ill. 300.) Thus, it may be conceded that defendant Cock Robin’s arguments spring from a sound basis in the law, and that the determinative factor in deciding whether the testimony of Reinert was relevant or irrelevant to prove proximate cause, is whether Cock Robin, or any prudent person, could have foreseen or reasonably anticipated that an automobile out of control could enter into the picnic area from its unprotected north side and cause injury and damage.

To support its position as to “unforeseeability” and “the condition of premises,” Cock Robin places its reliance upon principles expressed by a Texas Court in Watkins v. Davis (1958), 308 S.W.2d 906. In that case a truck which had been parked outside a grocery store with its motor running suddenly lunged forward and crashed into the store where it pinned the plaintiff, a customer, against a wall. Litigation ensued and one of the theories pursued by the plaintiff was that the failure of the store owner to have a curb was negligence and a proximate cause of plaintiff’s injuries. In rejecting this theory and reversing a judgment for the plaintiff, the reviewing court, after referring to authorities relating to proximate cause and the element of foreseeability, stated in the course of its opinion at page 909:

it it while j[n City of Dallas v. MaxweH, supra, the negligence charged was lack of a barrier to prevent an unmanageable automobile from plunging into a ravine adjacent to the street, the same principle of nonforeseeability is controlling in the situation at hand; the court holding a Maxwell’s case that: ‘The breaking of the steering gear, and not the failure to erect a barrier, was the proximate cause of the injuries sued for, in our opinion. In fact, we think the lack of a barrier was, in legal contemplation, not a cause at all, but merely a fortuitious condition.’
it a it
The weight of authority, which to our mind is in accord with sound principles, is to the effect that, where the injury to the traveler results from loss of entire control and direction from an animal or machine, the occurrence falls within the domain of the unusual and extraordinary, and therefore, in contemplation of law, of the unforeseeable.”

While we believe, as the Texas court specifically noted, that the “facts” and “circumstances” of the particular case controlled and justified the application of the stated principles, we are not persuaded by defendant Cock Robin’s posture of an inflexible rule that injury by an out-of-control vehicle is never foreseeable, and its apparent conclusion that the failure to erect a barrier is, in all cases, a condition rather than a concurrent cause. As stated by the court in James v. Rank of Highland Park, 82 Ill.App.2d 118 (Abst. Op.):

“The question of proximate cause and foreseeability is not a matter subject to broad applicable rules of law. Rather, it raises a unique question in each specific case because of the attendant circumstances which may or may not have occasioned the injury.”

Appropriate, also, is the observation of the court in Ney v. Yellow Cab Co., 2 Ill.2d 74, 81, where the prevalence and usage of the automobile was a factor in the decision to the effect that rules and general principles of law must “adapt themselves to the gradual changes of trade, commerce, arts, inventions and the exigencies and uses of the country.”

Ordinarily, the question of proximate cause and its element of foreseeabihty are matters to be determined by the jury. (Kinsch v. DiVito Construction Co., 54 Ill.App.2d 149; Admiral Oasis Hotel Corp. v. Home Gas Industries, Inc., 68 Ill.App.2d 297.) It is well established also that where it could have been reasonably foreseen that some injury might result from the negligent act or omission complained of, it is not essential that the precise consequences which actuaUy resulted therefrom should have been foreseen, nor is it necessary that the exact particulars of the accident which actuaHy occurred should have been foreseen. (Blue v. St. Clair Country Club, 7 Ill.2d 359; 28 I.L.P., Negligence, § 105, p. 95, and cases there cited.) Applying these principles to the facts and circumstances peculiar to the instant case, it is our opinion that Reinert’s testimony relating to the prior occurrence was relevant and should have been submitted to the jury, and the issues of proximate cause and foreseeability determined under proper instructions. Traffic accidents are a commonplace thing in our present day society, and it is neither rare nor unusual for vehicles to go out of control due to mechanical failures within them. Given the precarious position of the picnic area at an intersection, it cannot be said that aH prudent men would agree that Cock Robin could not reasonably foresee the consequences of its omission to erect a barrier, and could not reasonably foresee or anticipate that an out-of-control vehicle could enter into the picnic area.

Plaintiffs next complain that counsel for Cock Robin improperly told the jury to put itself in the position of such defendant, that he also referred to matters outside the record in objecting to an exhibit and that counsel for Zawacki improperly questioned Cholewa about a prior incident involving the brakes on his automobffe, the cumulative effect of which was to prejudice plaintiffs and entitle them to a new trial. Although we have thoroughly examined plaintiffs’ arguments and authorities, we see little purpose to be served by extending this opinion to discuss these contentions in detail. Since it is our view that the cause must be tried anew as to Cock Robin it is probable that the isolated statements of counsel complained about wHI not recur and, in our opinion, it is reasonably clear in the context of the record that the question put to Cholewa could not have prejudiced the plaintiffs.

Equally without merit is the contention of plaintiffs that error occurred when the trial court refused to permit them to impeach Zawacki on the basis of inconsistent statements, a situation which arose when he testified he did not know a man named Packer, although the name of the latter was given as an expert witness in interrogatories answered and signed by Zawacki during discovery procedures. Whether or not Zawacki knew the witness was immaterial to the issues being tried, and it is well settled that it is only as to matters relative to the issues that a witness can be contradicted for purpose of impeachment. Esderts v. Chicago, Rock Island & Pacific R.R. Co., 76 Ill.App.2d 210; Country Life Insurance Co. v. Goffinet, 117 Ill.App.2d 338.

For purposes not entirely clear, and although the ruling was favorable to them and granted the precise relief prayed in their complaint, plaintiffs contend that it was error for the trial court to direct a verdict against Cholewa on the issue of liability. The .court instructed the jury that the verdict was only directed as to Cholewa on the issue of liability and that the quéstion of damages was still to be considered. The attorney for plaintiffs approved the instruction which was given by the court in conjunction with the direction of verdict. The issue of liability was, however, submitted as to tire remaining defendants under instructions specifying the basis for assigning liability as to them. Cholewa filed no answer and made no appearance. Cholewa does not object to the entry of judgment nor does any other party to the case other than plaintiffs in whose favor the judgment was entered. What plaintiffs are saying, in substance, is that recovery of judgment against Cholewa which plaintiffs prayed in their pleadings, is not now desired by plaintiffs, who are asking the court to set aside such judgment and have the whole question of liability of Cholewa again litigated. In our view, the evidence against Cholewa was such that the action of the trial court was in conformity with the rule set forth in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, and the bare assertion in plaintiffs’ brief that they were “prejudiced” thereby presents no basis for us to either inquire into or to overturn the directed verdict.

For the reasons stated, the judgment of the circuit court of DuPage County is affirmed insofar as the defendants Cholewa and Zawacki are concerned, but is reversed as to the defendant Cock Robin, Inc., and the cause is remanded with directions that plaintiffs be accorded a new trial as to such defendant.

Affirmed in part; reversed in part and remanded.

STOUDER, J., concurs.

Mr. JUSTICE DIXON

concurring in part and dissenting in part:

While I am in accord with the reasoning and result of the majority regarding a new trial as to Cock Robin I must dissent from the view that fails to give a new trial as to all defendants.

Shortly after the accident the defendants, Cock Robin and Zawacki, got possession of the 1959 Cadillac involved and had it delivered to Packer Engineering for a complete inspection. The expert testified:

“It was immediately apparent on examining the automobile that the reason for the brake failure was a falling out of the brake adjuster * # *.

The rear brakes were in fair condition.
By removing the left front wheel we found that the adjusting unit fell out loose on the ground.
The wheel cylinders, mastercylinders, booster unit and all hoses and fittings, all were found to be in working order and the oil level in the reservoir was satisfactory to operate all four wheel cylinders.”

About a week before the occurrence the defendant Zawacki had worked on the adjuster which fell out.

At the trial the court denied counsel the right to cross-examine Zawacki as to answers made on his interrogatories. On cross the test is not whether the answer sought will elucidate any of the main issues but whether it will to a useful extent aid the jury in appraising the credibility of the witness and thereby assessing the probative value of the direct testimony. A wide latitude to test recollection has always been permitted. In general any permissible kind of impeaching matter may be developed on cross since it has for one of its purposes the testing of the credibility of witnesses. Cleary, Illinois Evidence, 2d Ed. Sec. 9.2. Marut v. Costello, 34 Ill.2d 125.

The rule, cited by the majority, barring contradiction of a witness as to collateral matters merely prohibits the calling of other witnesses or offering of extrinsic evidence to contradict and does not bar further examination of the witness himself on the chance that he may change his testimony.

I further believe that in the instant case the matter was not collateral. Matters directly concerning the credibility of a party witness are not collateral. (Cleary, page 140) Facts admissible to discredit a witness as to bias, corruption, or the like are not collateral. (98 C.J.S. Witnesses, Sec. 633; McCormick on Evidence Sec. 47.) Whether a party knows a witness is certainly material.

As to the direction of a verdict against Cholewa, I cannot agree with the majority that this was a Pedrick situation. First, there was strong evidence that the cause of the brake failure was a falling out of a brake adjuster, a sudden mechanical failure, and not absence of lining. (Cholewa testified that neither Zawacki or his mechanic told him that he needed new lining on his brakes. They adjusted the brakes and when he drove out he had a full pedal and continued to have a full pedal until the accident when he had none at all.) Second, I believe that a plaintiff ought to be allowed to try his own case. The motion for directed verdict was made by Mr. Sorensen, the attorney for Cock Robin. Plaintiff’s attorney did object and he further objected to the instruction directing the verdict. (Abstract pages 185 and 186. Record pages 1233 and 1234.)

The record shows that Cholewa was never defaulted and was present throughout the trial. The first pleading of Cholewa was an appearance pro se filed Jan. 4, 1971. He also filed a motion for leave to file an appearance and answer. The defendant Cock Robin then moved for a default against Cholewa. No default was ever taken. The court simply said, “We will proceed on the basis of the record.” Plaintiff’s attorney never asked for, did not want, objected to and waived a default if there ever was one to be implied. The default of a party may be waived by the party entitled to judgment and that waiver may be implied. 47 Am.Jur.2d, Judgments Sec. 1161.

The majority seem to feel that plaintiffs were not prejudiced since they got a judgment against Cholewa (who was not insured and has not 5 cents to his name). If there was no prejudice to plaintiffs why did Cock Robin seek the directed verdict? The prejudice is obvious.

These children did not have a fair trial and can not have a fair new trial against Cock Robin unless Zawacki and Cholewa are parties.


author: Mr. JUSTICE SCOTT

text:
    John W. Walden et al., Plaintiffs-Appellants, v. Robert Bourn, Defendant-Appellee. Robert Bourn, Defendant and Counterplaintiff-Appellee, v. John W. Walden et al., Plaintiffs and Counterdefendants-Appellants—(Edwin L. Stegmaier, Defendant-Appellant.)
    (No. 72-195;
    Third District
    March 6, 1973.

      John F. Sloan, of Mathis, Sloan and Littler, of Peoria, for appellants.
    Theodore Korb, of Peoria, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

John W. Walden and Bertie J. Walden, hereinafter referred to as the Waldens, as owners of Lot 39 in LaRue Heights, Tazewell County, brought action to enjoin Robert Bourn, hereinafter referred to as Bourn, from traveling across the back portion of their lot and to further recover damages from him for allegedly damaging their yard with his vehicles. Bourn filed a counterclaim against the Waldens and an Edwin L. Stegmaier, who sold them Lot 39. In his counterclaim it was the contention of Bourn that a public roadway existed across the lot in question for more than 15 years, that pursuant to Chapter 121, Section 2 — 2—2, Illinois Revised Statutes, a de facto dedication has occurred whereby the roadway had become a public highway and that the Waldens and Stegmaier should be enjoined from interfering with his use of the same. After hearing the trial court of Tazewell County denied the Waldens’ prayer for an injunction but granted injunctive relief against them in that they were ordered perpetually enjoined from denying Bourn and the general public from the use of a strip of land fifteen (15) feet in width across the easterly end of lot 39.

A more detailed recital of the factual situation discloses that in 1937 Bourn acquired a tract of land lying east of a 40 acre tract belonging to the Stegmaier estate. Access to Bourn’s land in 1937 was over a narrow country lane, wide enough for just one automobile and known as Moushon Lane. Immediately north of the Stegmaier tract was the Moushon farm upon which was a farmhouse which had been in existence for approximately 100 years. Hie only ingress and egress to the Moushon farm was over the lane which crossed the Stegmaier tract in a northerly and southerly direction. Early in the 1940’s two more homes were constructed along Moushon Lane, which were south of the farmhouse, but north of the Stegmaier land. The access to all of these homes by owners, suppliers and the general public was by using Moushon Lane. The lane was open and used by the public for more than 40 years until it was closed by the Waldens when they erected a barricade in 1989.

The title to the Stegmaier property ultimately vested in Edwin L. Stegmaier, who in 1961 platted LaRue Heights Subdivision No. 3. The subdivision plat made no provision for the road known as Moushon Lane but does provide for an eight (8) foot utility easement along the east side of the subdivision. Access to lots in LaRue Heights Subdivision No. 3 is by Willow Lane, which starts along the west border of the subdivision until it reaches lot 47 when it then turns east 140 feet to the center of the subdivision and then proceeds in a northerly direction to a cul-desac, the most northerly point of which is 15 feet south of tire north line of the 40 acre tract. The plat further indicates a right of way or easement from the north end of the cul-de-sac in an easterly direction along the north line of the subdivision to its eastern boundary and thereby provides access to the remainder of Moushon Lane, which serves the old Moushon farmhouse and two other more recently erected buildings.

Testimony adduced during the course of the trial established that a portion of lot 38 had been dedicated as a right-of-way from Willow Court at the point it turns north, to the easterly edge of the subdivision, and has been called Munter Place. Bourn gives his address as 109 Munter Place. Both Munter Place and the right-of-way at the northerly end of the subdivision end at the westerly boundary line of the Bourn property. Further evidence disclosed that the improvements on the Bourn property are east of lot 40 of the subdivision, this lot being owned by a family who is not a party to this proceeding.

For purposes of clarity and understanding the trial court prepared a map setting forth the location of the properties, easements, right-of-way, court and gulleys as they were established by the recorded plat and evidence. The accuracy of this map as prepared was not questioned by any of the parties to this cause and we hereby incorporate it in this opinion as an aid to a better and more complete understanding as to the factual situation which gave rise to this appeal.

There is testimony in the record which supports a finding that until 1969, approximately eight years after the subdivision was platted and partially developed, the public gained access to the Bourn property and other properties north of the subdivision by traveling over Moushon Lane, which was a strip of land fifteen feet in width and which ran in a north and south direction over the easterly end of the lots on the east side of the subdivision. The route followed to reach the Bourn residence was to proceed east on Munster Place, then north on Moushon Lane across lot 39 and a part of lot 40 to a driveway which went through a line fence to the Bourn property.

Prior to the time the Waldens purchased lot 39 they lived in the Moushon farmhouse and used Moushon Lane a number of years for purpose of ingress and egress. Other pertinent testimony was adduced to the effect that road equipment and snow plows occasionally worked on Moushon Lane. The municipality of East Peoria provided garbage pick up service for a period of approximately eighteen months and its trucks used the lane. From 1953 to 1969 school buses picked up and discharged children at the Bourn residence and other residences and the school bus run terminated in the farmyard of the Moushon farm. From the testimony of Bourn and the counter-defendant Stegmaier it is apparent that Moushon Lane has been in existence and used by the public without the permission of the owner Stegmaier for a period of time in excess of fifteen years. It should also be noted that a number of photographs were admitted in evidence which tend to bear out the contention of Bourn that gullies and other topographical features present serious difficulties should he attempt to travel to and from his home by a route other than the one which he used up until 1969.

We have entered into a lengthy and detailed recitation of the facts in this case since they to a great extent are determinative of the paramount issue presented for review. That issue is whether or not Moushon Lane is a highway as defined by statute. The applicable statute to which we refer is Chapter 121, Section 2.202, which provides as follows:

“Highway — Any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for fifteen (15) years * *

The trial court by its decision found that Moushon Lane is a highway as defined by the statute which we have set forth and on review this court must determine if the findings of the trial court are palpably against the weight of the evidence. (Van Amburg v. Reynolds, 372 Ill. 317, 23 N.E.2d 694.) In Van Amburg our Supreme Court further stated:

“The test in determining whether a road has become a highway by user is whether or not the public, generally, had the free and unrestricted right in common, to use the road. Where a road has been shown to have been openly and notoriously used as an open public highway in common by all the people for the statutory period, it will be considered a public highway. Phillips v. Leininger, 280 Ill. 132, 117 N.E. 497; Lee v. Dickman, 316 Ill. 529, 147 N.E. 380. In determining whether a strip of ground has become a public highway by user the test is not the number of persons actually using it, but the character of the use, — that is, whether or not the public, generally, had the free and unrestricted right to use the road. Mudge v. Wagoner, supra. Where a roadway is shown to have been used and enjoyed by the public for the time required by statute, a presumption arises that such grant or use was prescriptive, and tire burden is on one denying the existence of a public highway to show that the use was under some license or indulgence inconsistent with the claim of the right by the public. Lee v. Dickman, supra; Thorworth v. Scheets, 269 Ill. 573, 110 N.E. 42; Law v. Neola Elevator Co., 281 Ill. 143, 117 N.E. 435.”

From an examination of the testimony of the various witnesses it can only be concluded that Moushon Lane was used as a public road for a period of time in excess of fifteen (15) years. The defendant Bourn testified that he used the lane from 1938 to 1969. Witness Palmer who lived in the vicinity of the disputed lane for a period of 40 years testified that Bourn used Moushon Lane for purposes of ingress and egress for a period of 20 years prior to 1969. He also testified that the lane was serviced at various times by public authorities during this 20 year period of time. A witness, Lillian McCarrick, testified that she had no recollection that the lane was ever graded or snow removed from it by any road commissioner; however, her testimony was to the effect that she had lived on the lane from 1949 and used it as a way of ingress and egress as a matter of right and without seeking permission from anyone. She'also testified that her daughter, a neighbor who resided on the lane, did likewise. It should be noted that the defendant Bourn and Stegmaier quarreled over Bourns use of the lane to the extent that an arrest for trespassing was made, but no conviction ensued from this charge. Stegmaier in a deposition stated that he never granted Bourn permission to use the road but that he and other people used it anyway.

We make this further recital of the testimony to illustrate that there was evidence to support a finding that the use of the road by the public had been adverse, continuous and without the landowners permission for more than 15 years. (See Taylor v. Wentz, 15 Ill.2d 83, 153 N.E.2d 812.) Hie fact that the road was to some extent maintained by public authorities is a strong indication that it is a public highway. (Taylor v. Wentz, 15 Ill.2d 83, 153 N.E.2d 812; City of Greenville, Bond County v. File, 130 Ill.App.2d 878, 265 N.E.2d 518.) We do not deem the testimony regarding the maintenance of the road so vague as to fall within the category set forth in People v. Waitkus, 30 Ill.2d 335, 196 N.E. 2d 668.

In applying these well settled principles of law to the evidence in the instant case we can only conclude that the trial court’s findings were correct in that there was an open, notorious and uninterrupted use of the tract of land known as Moushon Lane by the public without permission or consent of the owner for more than 15 years. After such proof there is a presumption that the highway has been dedicated and the burden of proof is on the party denying existence of the public highway to show some grant of authority or permissive use of the same if such presumption is to be overcome. See Stevenson v. Meyer, 10 Ill.2d 335, 139 N.E.2d 740.

An effort was made by the plaintiff to have introduced into evidence copies of pages from an abstract of title which purportedly would show an easement agreement between parties residing west of the defendant Bourn’s property but the agreement did not include Bourn or other members of the public who were then using the road. The court rejected this evidence and we believe rightly so. Whether a proper foundation for its introduction was laid or whether it was the best evidence we deem immaterial since we fail to see how the agreement could be binding upon Bourn or the other members of the public who were using the roadway contrary to the wishes of Stegmaier, the one individual who could at one time have conceivably put a halt to such usage.

Lastly the plaintiffs would urge that the trial court should be reversed since Bourn has available an alternate route to and from his premises. We do not so interpret the evidence but our interpretation is immaterial since the existence of an alternate route has no bearing on the question as to whether a public road exists. Lee v. Dickman, 316 Ill. 529, 147 N.E. 381.

For the reasons set forth the judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

STOUDER, P. J., and DIXON, J., concur.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Keeney, Defendant-Appellant.
    (No. 71-3;
    Third District
    March 6, 1973.
    Bruce Stratton, of Defender Project, of Ottawa, (James Geis, of counsel,) for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, (William Dueringer, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by Melvin Keeney who was found guilty of rape at a trial without a jury in the circuit court of Rock Island County on March 3, 1967, and thereafter sentenced to a term of not less than 2 years nor more than 7 years. The sole issue on appeal is whether the State proved beyond a reasonable doubt that Keeney was guilty of rape. Defendant particularly challenges the State’s proof with respect to whether sexual intercourse was by force and against the will of the prosecuting witness. The case is unusual in the sense that Keeney was not the person who allegedly had the unlawful sexual intercourse with the complaining witness. He is implicated as a result of a contention of the complainant that he had aided his companions to have such intercourse with the complainant.

It is shown in the record from the testimony of defendant that he first became acquainted with the complaining witness, Linda Lawver in June of 1966. He testified that he had sexual intercourse with the complainant with her consent on numerous occasions, approximately 3 times a week during the four or five-month period since he had met her. He testified that Linda told him she had been having intercourse with defendant’s acquaintance, Roger Haynes, and that she had been “raped,” sometimes by certain of his acquaintances, including Roger Haynes, on several prior occasions. It was shown at the trial that Melvin Keeney, Linda Lawver, and another girl, Lana Heaton, literally lived together in defendant’s stationwagon from Wednesday, October 26, 1966, until Friday night, October 28, 1966. The activity which led to the prosecution of defendant Keeney occurred on the night of October 28. During the 3-day period from October 26 through October 28, Keeney, Miss Lawver and Lana Heaton spent the daytime driving around the Rock IslandMoline area obtaining and drinking beer, and, at night they slept in the automobile parked in a field. The alleged rape on October 28 took place in the same field.

The prosecuting witness was 19 years of age at the time of the activities which she complained of as being “rape”. Retween 9:30 to 10:00 P.M. of October 28, 1966, she was riding in defendant’s stationwagon when defendant stopped and conversed with 4 boys in another automobile. Linda knew 3 of them. The other automobile followed defendant’s stationwagon into the field. When they reached the field the prosecuting witness talked with the defendant in the stationwagon. She said he removed her jeans and underpants, and that 4 other boys either attempted to have or had intercourse with her, and that defendant burned her with a cigaret on the left arm and the right thigh. It was shown that defendant was intoxicated and that he had cigaret bums on his own body. Linda stated that at one time, defendant held her, but the rest of the time, “he just sat there laughing.” Defendant dressed Linda following the activities with the other boys. Since the other automobile had gone, Roger Haynes, one of the alleged rapists drove the stationwagon to take the other boys home. He returned the stationwagon to the field. Haynes left the stationwagon, and prosecuting witness and defendant were then alone. She then removed the keys from the ignition and went to a nearby house, where, at approximately midnight, she complained that she had been raped.

The record shows that prosecuting witness’s testimony (to the effect that she was unaware of tire location of the homes in the vicinity of the stationwagon; whether lights were on in those homes and people present; and the order in which the alleged rapists had approached her), was impeached by defendant’s use of tire transcript of the testimony of the prosecuting witness at defendant’s preliminary hearing held shortly after the incident. The prosecuting witness admitted that she had made the prior inconsistent statements, including the statement that she had never previously been alone with defendant.

It was shown from the testimony of Mike Nickey and Roger Haynes, two of the alleged rapists, that the stationwagon was parked approximately 50 to 75 feet from a row of houses, that lights were burning in the houses, that Linda never screamed, and that no one ever held her. Lana Heaton also stated that the stationwagon was parked in close proximity to the houses when the incident occurred. An occupant of one of the houses, Amanda Privett, said that Linda came to her house at about midnight of October 28 and said that she had been burned by cigarets and raped by seven or eight boys. Mrs. Privett agreed that the complaining witness was hysterical, but Mrs. Privet said during the month before the incident, the complaining witness had visited her house almost every day and that the behavior of the complaining witness was not unusual because “that’s the state of mind she goes around in half the time.” According to Amanda Privett, the complaining witness had told her on numerous prior occasions that she was going to commit suicide or go to the State Hospital, that she used LSD and heard voices and that she “had a habit of sleeping with them and giving in, the habit of giving in for anyone * *

Lana Heaton testified that Linda Lawyer had said to her that she had sexual intercourse with Roger Haynes and the defendant frequently. Lana Heaton also testified that she was personally present on one occasion when the complaining witness had sexual intercourse with defendant Keeney. Roger Haynes testified that he had sexual intercourse with complainant as recently as 2 or 3 days prior to October 28. Edna Lawyer, complainant’s sister-in-law testified that the complainant had a bad reputation for both veracity and chastity. Another witness corroborated this testimony with respect to complainant’s reputation for chastity.

Amanda Privett also testified that complainant had told her that Roger Haynes had raped her at knifepoint in the broad daylight 2 days before the incident and that earlier she had been raped by 3 boys, who “went up.” Lana Heaton said that complainant told her that she had been raped 2 years previously and that on July 4, 1966, the defendant had “raped” her and that Roger Haynes had “raped” her the day before the incident and that a boy named Dana had tried to rape her. Defendant Keeney said that the complainant had mentioned to him each of the so-called “rapes” referred to except, however, the one apparently described as having been committed by defendant Keeney on July 4, 1966. Amanda Privett and Lana Heaton each testified that 2 weeks after the incident involved in the cause before us, the complainant told each of them that no one actually had raped her on October 28, 1966.

Following the incident referred to, the complainant was examined by a physician. He testified for the State and said that when he examined her during the early morning hours of October 29,1966, complainant was very upset. His testimony tended to establish that complainant had engaged in sexual intercourse, but he was not able to determine that the intercourse had occurred by force and indicated the same results would be obtained if this was done with her consent. The physician noted lesions on complainant’s shoulder and hip which he said could be compatible with cigaret burns.

It was shown by the record, as we have indicated, that complainant had been having sexual intercourse regularly and willfully with defendant Keeney. Aside from the allegations concerning the burning by cigarets there were no allegations of any threats by defendant of physical violence. There is also no evidence in the record which directly connects defendant in any way with holding her during acts of intercourse with the alleged “rapists.” There is no explanation by the complaining witness how one act of holding her briefly would explain the alleged force which would cause her to remain in defendant’s presence for the entire period of approximately two and a half hours while this activity was going on. It was also shown that complainant was familiar with the field in which the stationwagon was parked since she had slept in the station-wagon for several nights and must have been aware of her surroundings. She had been a frequent visitor at the home of Amanda Privett next to the field. When she left the stationwagon on the night of October 28, she went directly to Mrs. Privett’s home.

A court of review, when an issue of the character now presented to us in a rape case is before it, has a duty to review the evidence to determine whether the State proved beyond all reasonable doubt that defendant was guilty of rape and whether there is an abiding conviction, based on the record, that he is guilty of the crime charged. (People v. Taylor, 48 Ill.2d 91, 268 N.E.2d 865.) In the cause before us, we feel that the record does not clearly show that any intercourse with Linda Lawyer was by force by defendant Keeney. As stated in People v. Rossililli, 24 Ill.2d 341, 181 N.E.2d 114, 117:

“It is a fundamental rule in such cases that in order to prove the charge of forcible rape there must be evidence to show that the act was committed by force and against the will of the female, and if she has the use of her faculties and physical powers the evidence must show such resistance as will demonstrate that the act was against her will. * * # It is also fundamental that voluntary submission by the female, while she has power to resist, no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of rape.”

It appears from the record in the instant case that the prosecution has failed to prove that defendant Keeney was guilty of forcible rape. The picture before us from the entire record is of a young girl, perhaps at times unstable, who engaged frequently and willingly in sexual intercourse with males and almost as frequently has expressed pangs of regret for her prior acts. While the record discloses the occurrence of repulsive and vulgar activities, these activities, as vulgar as they might be, do not establish the crime of rape as to defendant Keeney, nor do we find the complainant’s testimony, as shown in the record, to have been clear and convincing.

On the basis of our review of the record, therefore, we do not believe that it was proven beyond a reasonable doubt that prosecuting witness v/as compelled by actions of defendant Keeney to have sexual intercourse by force and against her will. (People v. Faulisi, 25 Ill.2d 457, 185 N.E.2d 211; People v. DeFrates, 33 Ill.2d 190, 210 N.E.2d 467.) For the reasons stated the conviction of defendant Melvin Keeney of rape is hereby reversed.

Reversed.

STOUDER, P. J„ and SCOTT, J., concur.


author: Mr. PRESIDING JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Fred Cassman, Defendant-Appellant.
    (No. 71-222;
    Second District
    March 6, 1973.
    Edward M. Genson, of Chicago, for appellant.
    William R. Ketcham, State’s Attorney, of Elgin, (W. Ben Morgan and Leo Wotan, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered. the opinion of the court:

The defendant, Fred Cassman, was found guilty of theft of property in excess of $150 in value by a jury and sentenced to 5-10 years in the Illinois State Penitentiary. In seeking reversal he has alleged numerous errors in the trial. We shall consider but one issue in this appeal. The defendant testified in his own behalf and upon cross-examination was queried as to his prior felony conviction or convictions. No proof of such conviction or convictions was offered. We consider this reversible error.

On March 31, 1971, the defendant entered the Eagle Foods in Elgin, Illinois, with another man subsequently identified as George Stiles. The two men went to the record section and Stiles took a box of records, the alleged value of which was in excess of $150. Cassman, in front of the store, told a clerk that he was waiting for his wife. Shortly thereafter, Cassman was apprehended and again told the police he was waiting for his wife and that he had gone inside the store looking for her. He denied knowing Stiles. In the trial, Cassman took the stand and testified in his own behalf stating that he was the owner of a wholesale record distributing company in the greater Chicago area. He further stated that he was in the Elgin area for the purpose of meeting Stiles relative to records but that he had no knowledge of the theft of the records. Upon cross-examination of Cassman the following colloquy took place without objection by defense counsel:

“Q. Have you ever been convicted of a felony?
A. Yes, I have.
Q. In fact, four of ’em, right?
A. One.
Q. Four counts?
A. Just one. Oh, I’m sorry. Yes.”

No proof of this conviction or convictions was offered by the State at any time during the trial.

One of the earliest cases dealing with the credibility of a defendant testifying in his own behalf is found in Bartholomew v. People (1882), 104 Ill. 601. There, the defendant took the stand and upon cross-examination was asked several times if he had not been in the penitentiary. He said he had not. The State then introduced evidence by the receiving clerk at the Joliet penitentiary that he had seen the defendant in the penitentiary under two judgments of conviction. The receiving clerk read to the jury the mittimi under which the defendant had been received at the penitentiary. The court discussed the then statutory provision removing the disqualification of the defendant as a witness, which in 1874 was virtually identical with the present statutory provision found in Ill. Rev. Stat. 1969, Ch. 38, Sec. 155 — 1. The court held that a defendant may only be discredited by proper legal proof of his conviction of an infamous crime.

In People v. Halkens (1944), 386 Ill. 167, 53 N.E.2d 923, the court discussed in great detail the various jurisdictions in the United States which do and which do not permit cross-examination of a defendant to show the conviction of a crime and thus affect his credibility. The common law disqualification of an accused as a witness in a criminal proceeding has been removed by statute in Illinois, presently found in Ill. Rev. Stat. 1971, Ch. 38, Sec. 155 — 1. On the other hand, if the credibility of the testimony of the accused is sought to be impeached by evidence of prior convictions we find that the courts in Illinois, starting with Bartholomew, have imposed two restrictions. First, the defendant’s credibility may not be challenged by cross-examination of prior convictions. Secondly, evidence of prior convictions is limited to infamous crimes as defined in Ill. Rev. Stat., Ch. 38, Sec. 124 — 1 and may only be introduced for that purpose by introduction of the record of conviction and identification of the accused as the party convicted. As the Supreme Court stated in People v. Helm (1968), 40 Ill.2d 39, 45, 237 N.E.2d 433, 436:

“It is undisputed that only convictions of infamous crimes may properly be shown for impeachment of criminal defendants in this State.”

The rule in this regard is well established in the State of Illinois and perhaps is best said in People v. Flynn (1956), 8 Ill.2d 116, 120-121, 133 N.E.2d 257, 259:

“This court has repeatedly held that it is improper to cross-examine a defendant as to his conviction of a crime. [Citing Bartholomew and Halkens.] In People v. Kosearas, 408 Ill. 179, at page 181, the court stated: ‘To repeat what was said in People vs. Decker, 310 Ill. 234, there is no question more damaging to a defendant with a jury than one which suggests or intimates that he is a criminal or has been charged with criminal offenses. Such damage is magnified twofold when it is elicited from a defendant on cross-examination and he is compelled to testify against himself.’ Defendant’s conviction of a prior felony may be shown to affect his credibility by offering the record of his conviction, or an authenticated copy thereof, in evidence (People v. Halkens, 386 Ill. 167), and not otherwise.”

See also People v. Bey (1969), 42 Ill.2d 139, 246 N.E.2d 287.

It is true, counsel for the defendant did not raise any objection to the above questions of the defendant by the State’s Attorney; nor did he raise this issue in his motion for a new trial. Nonetheless, the error is of such magnitude that it constitutes plain error that may be considered by this court.

It is self-evident that the case before us falls squarely within the ruling of the above cited cases. As no evidence of defendant’s previous criminal convictions was presented at all in the trial, the conviction herein must be reversed and remanded for a new trial. In view of the fact that this case must be remanded for a new trial, this court will not consider the other allegations of error raised by defendant in his appeal.

Reversed and remanded.

SEIDENFELD and ABRAHAMSON, JJ., concur.


author: Mr. JUSTICE SEIDENFELD.

text:
    The City of Loves Park, Plaintiff-Appellee, v. Donald Evans, Defendant-Appellant.
    (No. 72-28;
    Second District
    March 6, 1973.
    William L. Balsley, of Smith & Smith, of Loves Park, for appellant.
    No appearance for appellee.
   Opinion by

Mr. JUSTICE SEIDENFELD.