author: MR. JUSTICE SULLIVAN

text:
    Otis Gilpin, Plaintiff-Appellant, v. Harry Lev and Mid-City Uniform Cap Company, a Corporation, Defendants-Appellees.
    Gen. Nos. 49,242, 49,243.
    First District, Third Division.
    April 21, 1966.

      James A. Dooley, of Chicago, for appellant.
    Peterson, Lowry, Rail, Barber & Ross, of Chicago (Robert G. Schloerb, Herbert C. Loth, Jr., and Richard J. Kissel, of counsel), for Mid-City Uniform Cap Company, appellee.
   Opinion on Rehearing.

MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Otis Gilpin, the plaintiff, brought this suit to recover for personal injuries he sustained on April 1, 1952, when an auto in which he was a passenger overturned. The auto was owned by Mid-City Uniform Cap Company and was driven by the comptroller of the company, Eugene Manno. Plaintiff originally sued Manno, Harry Lev and Mid-City; however, only Lev and Mid-City were served with process and the matter was tried only as to those defendants by judge and jury.

At the close of all of the evidence the trial court directed a verdict in favor of defendant Mid-City, and the jury returned a verdict in favor of the plaintiff and against defendant Lev in the amount of $30,000. Lev filed a post-trial motion for a judgment notwithstanding the verdict which was granted by the trial court. The plaintiff appeals both from the directed verdict in favor of Mid-City and the judgment notwithstanding the verdict in favor of Lev.

The defendant Lev was the president of Mid-City, a corporation engaged in the manufacture of uniform caps. He and his wife each owned 50% of the stock of the corporation. Eugene Manno, the driver of the auto owned by Mid-City and involved in the accident, was the comptroller of the corporation during the year 1952. Though Manno testified that at the time of the accident he was no longer employed by Mid-City, the payroll records of Mid-City and the testimony of Lev show otherwise.

On March 1, 1952, a partnership agreement was entered into between Manno and Lev embracing the sale and production of oil. The name under which the business was to be conducted was “The Paramount Oil Company.”

The plaintiff, in the early part of 1952, was employed by an oil company, of which he was part owner. In February of that year he was approached by Manno at his home in Benton, Illinois. Manno said that plaintiff was recommended to him by a friend and that he wanted to invest some money in oil. After several meetings, and a trip to Kentucky to look at oil wells, Manno got an option to purchase an oil lease and put down $10,000 to bind the option.

Plaintiff and Manno then went to Chicago where they met Lev. At some prior time Manno gave plaintiff a business card which showed Manno was employed by Mid-City. In Chicago, the purchase of the oil lease was discussed, and Lev told the plaintiff that he was president of Mid-City and that they were going to buy the property. They then went to a bank where Lev withdrew $100,000, gave it to Manno, and Manno and plaintiff then drove back to Kentucky in the auto owned by Mid-City. Lev gave Manno permission to use the auto for the purposes of the oil business, and also for coming back to Chicago to check on Mid-City business, since Manno was comptroller of that company. Manno purchased the oil lease in Kentucky, and plaintiff and Manno then took up lodging in Celina, Tennessee, six miles from the lease.

After they arrived in Kentucky an employment contract was entered into between plaintiff, individually, and Manno and Lev d/b/a Paramount Oil Company, under which plaintiff was to supervise and operate drilling operations, negotiate for the purchase of leases, and be responsible for the prudent management and operation of all leases belonging to the said Paramount Oil Company. The contract was to be effective as of the 1st day of March, 1952.

Manno testified that Paramount had from 3 to 5 employees on April 1, 1952, all of whom were working in Kentucky. Plaintiff, however, testified that Paramount had but one employee, a pump man named Truman Britt.

On April 1, 1952, plaintiff and Manno left on a trip from Celina, Tennessee, to Bowling Green, Kentucky, a distance of approximately 85 miles. Plaintiff testified that he had no personal reason to go to Bowling Green that night and that he had no business there in connection with his duties to the oil business. Plaintiff said that he did not know the purpose of the trip, and that Manno had asked him to go along. Manno, by a deposition read into evidence at the trial, stated that the trip had nothing to do with the business of Mid-City; the purpose of the trip was to see a lawyer named Milliken about some easement and egress contracts for Paramount Oil. Further, Manno said that he had never asked plaintiff to go along on the trip, because they always went places together.

Lev testified that he had no prior knowledge of the trip. He stated that early in 1952 he was interested in setting up a raincoat factory in Bowling Green, and that Manno, on behalf of Mid-City, had consulted an attorney named Milliken concerning the purchase of a plant.

On the trip to Bowling Green the auto overturned, allegedly through the negligence of Manno. As a result of this accident plaintiff sustained numerous injuries for which he seeks to recover damages in this action.

At the trial the defendant Lev made an offer of proof that the plaintiff had made an application for benefits under the Kentucky Workmen’s Compensation Act, and that pursuant to such application the plaintiff had been paid amounts of $720 and $999.05 by the insurance carrier of Manno and Lev. This application was sworn to and signed by the plaintiff and recited that the injuries of the plaintiff had resulted “by reason of an accident arising out of the course of his employment” by the defendants. This document was excluded from evidence.

However, plaintiff on cross-examination admitted that under oath he had sworn that the injuries he sustained arose out of the course of his employment by Paramount Oil. He testified that the sworn statements were true, that he had made them, and that the signature thereon was his own.

This opinion will be divided into two parts — the first dealing with the directed verdict in favor of Mid-City, and the second with the judgment notwithstanding the verdict in favor of Lev.

The trial court was correct in directing a verdict for Mid-City. Plaintiff cites the case of Rawlings v. Clay Motor Co., 287 Ky 604, 154 SW2d 711, to sustain his position that the question of whether or not the trip to Bowling Green was for the purposes of Mid-City was properly a question for the jury. In that case the court said that a presumption arises that an employee is on his employer’s business if he is operating a motor vehicle belonging to his employer. The court added, however, that: “But, such presumption is overcome when it is met by uncontradicted and unimpeached evidence which disproves the presumption and which evidence is in harmony with the facts upon which the presumption is based. Home Laundry Co. v. Cook, 277 Ky 8, 125 SW2d 763.”

Plaintiff argues that the ownership of the auto by Mid-City, and the fact that the driver, Manno, was an employee of Mid-City, created the presumption that Manno was acting as the agent of Mid-City at the time of the accident. However, this presumption is rebutted by “uncontradicted and unimpeached evidence which disproves the presumption.” (Rawlings v. Clay Motor Co., supra.) Plaintiff testified that he did not know the purpose of the trip, while Manno stated in his deposition that the trip was on the business of Paramount Oil. There is no testimony by the plaintiff to disprove that Manno was acting as the agent of Paramount at the time of the accident. Further, upon cross-examination, the plaintiff admitted orally that at the time of the accident he was traveling pursuant to his employment as supervisor of oil well operations for the Paramount Oil Corporation, and that the auto was operated by his employer, Eugene Manno, a partner of Paramount Oil.

This statement by the plaintiff is an admission against interest insofar as his action against Mid-City is concerned. It is admissible against the plaintiff not merely for impeachment purposes; it constitutes competent evidence from which to prove or disprove a material fact. Casey v. Burns, 7 Ill App2d 316, 129 NE2d 440; Chambers v. Appel, 392 Ill 294, 64 NE2d 511. This admission, together with the testimony of plaintiff and Manno as to the purpose of the trip to Bowling Green, rebuts the presumption which arose that the trip was for the business of Mid-City.

Further, while plaintiff argued that the jury should have been allowed to pass upon the question of whether Manno was an agent of Mid-City at the time of the accident, he stated in another portion of his brief, in support of his contention that the judgment notwithstanding the verdict in favor of Lev should be reversed, that there can be no serious question but that Manno was acting as the agent of Lev at the time of the accident. With this last statement we are in agreement.

Therefore, we affirm the action of the lower court in directing a verdict for the defendant, Mid-City Uniform Cap Company.

The jury returned a verdict in favor of the plaintiff and against the defendant Lev in the amount of $30,000. The trial court granted the motion of Lev for judgment notwithstanding the verdict. This was error by the court.

The jury did not have an opportunity to decide whether the plaintiff was barred from recovery in a common-law action by virtue of the Kentucky Workmen’s Compensation Act. On direct examination the plaintiff testified that he did not know the purpose of the trip and he had no business in Bowling Green in connection with Paramount’s business. However, on cross-examination plaintiff stated that he was an employee of Paramount, and that his injuries arose out of the course of his employment by Paramount. The trial court correctly held that plaintiff’s unexplained testimony that his injuries were sustained in the course of his employment by Paramount, constituted an admission against interest. However, the court erred when it held that plaintiff was therefore confined to his remedies under the Workmen’s Compensation Act, since a question of fact arose as to whether the act applied to the plaintiff’s employer, Paramount. The case that went to the jury did not cover this question, when actually it was a proper question for jury determination.

Under the Kentucky Revised Statutes, section 342.015 provides that where both employer and employee have elected to furnish and accept compensation under the Workmen’s Compensation Act, the employer shall be relieved of all other liability. This statute makes the act the exclusive remedy for injuries sustained by employees during the course of their employment. As previously stated, however, in the instant case a question of fact arose as to whether the act applied to plaintiff’s employer. The Kentucky Revised Statutes, section 342.005(1) defines an employer under the act as “all employers having three or more employees. . . .” There was a disputed question of fact as to whether Paramount met this requirement of three employees. Manno testified that the oil company had from three to five employees on April 1, 1952, all working in Kentucky. He stated that a check of the payroll records of Paramount would substantiate this. Plaintiff, however, testified that there was only one employee at this time, a pumper named Truman Britt. The payroll records were not introduced into evidence and no determination was made as to the number of persons employed by Paramount. Further, plaintiff contends that Paramount did not file the written notice of election to operate under the act, as required by the Kentucky statutes. These factual determinations as to the number of employees and whether Paramount filed according to Kentucky law are properly questions for the jury. It was error by the court to not submit these questions to the jury.

Where an injured employee is not by law entitled to workmen’s compensation under the act, the act cannot be used to deprive him of preexisting or other common-law or statutory rights. In this case the compensation act should not as a matter of law be interpreted to take away the common-law rights of the plaintiff. (Horowitz, on Workmen’s Compensation, 1944, pp 321, 322; Black Star Coal Co. v. Garland, 235 Ky 204, 30 SW2d 900.)

Further, the mere fact that plaintiff signed a claim and was paid some money does not work an estoppel on the plaintiff. In Conder v. Hayden, 335 SW2d 909, the court of appeals of Kentucky held that the acceptance of benefits under the workmen’s compensation proceedings does not estop the plaintiff from denying in a common-law action that his injuries were compensable under the act.

If the compensation act does not apply, plaintiff is entitled to maintain a common-law action against Lev. Lev and Manno were partners in Paramount Oil Company, and under both the common-law and Uniform Partnership Act, adopted both by Kentucky and Illinois, each partner is an agent of the other and of the partnership. Kentucky Revised Statutes, sections 362.150 through 362.360; Ill Rev Stats, 1963, c 106%, par 9(1).

“The liability of members of a partnership for a tort committed in the course of its business is joint and several. On the principle of mutual agency, the partnership, or every member of a partnership, is liable for torts committed by one of the members acting in the scope of firm business, although they do not participate in, notify or have knowledge of such torts. . . .

“The principles governing the liability of one partner for the torts of his copartners apply to torts based on the negligence of such partner.” 40 Am Jur, Partnership, sec 191.

Since Manno admitted that the trip was for the business purposes of Paramount Oil, Lev is liable for the negligence of his partner acting within the scope of the partnership business.

The plaintiff has not asked for a new trial as to the defendant Lev; Lev has failed to appear or file a brief on appeal. Since we have concluded that the trial court was in error in allowing Lev’s motion for judgment notwithstanding the verdict, because there was a question of fact as to whether the plaintiff’s claim was barred by the Kentucky Workmen’s Compensation Act and this question was not properly presented to the jury, we cannot direct the entry of judgment on the verdict of the jury in favor of the plaintiff and against Lev.

Thus, the judgment notwithstanding the verdict is reversed.

The decision of the trial court directing a verdict for the defendant Mid-City Uniform Cap Company is affirmed. The judgment for defendant Lev notwithstanding the verdict is reversed and the cause against Lev is remanded for new trial.

Affirmed in part and reversed and remanded in part.

SCHWAETZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: ME. PEESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    Novella Herron and Patricia Herron, a Minor, by Her Mother and Next Friend, Novella Herron, Plaintiffs-Appellees, v. Yellow Cab Company, a Corporation, Defendant-Appellant.
    Gen. No. 50,197.
    First District, Third Division.
    April 21, 1966.

      Jesmer and Harris, of Chicago (Eobert Jesmer and Henry W. McGee, Jr., of counsel), for appellant.
    Gomberg & Missner, of Chicago (Sidney D. Missner and John M. Murtaugh, of counsel), for appellees.
   ME. PEESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant appeals from judgments in favor of plaintiffs for personal injuries sustained when they fell off the rear seat of defendant’s taxicab as the taxicab came to a sudden stop in order to avoid striking a boy riding a bicycle.

Defendant contends that plaintiffs’ evidence, together with all reasonable inferences to be drawn therefrom in its aspect most favorable to plaintiffs, fails to establish that the defendant was negligent, and that plaintiffs’ evidence of injury was palpably false and should have been disregarded.

Plaintiffs, Novella Herron and Patricia Herron, a minor, on April 26, 1961, were passengers in a taxicab owned and operated by the defendant, a common carrier of passengers for hire.

Plaintiffs’ evidence showed that Novella Herron and her daughter, Patricia Herron, entered a Yellow Cab on Harrison Street and the cab proceeded west on Harrison Street in the city of Chicago. Her daughter had obtained “a shot” at the Cook County Hospital. The daughter had been suffering from pneumonia. Novella Herron was seated in the right rear of the taxicab and her daughter was seated beside her. The daughter, Patricia, was three years old at the time of the accident. There are stop and go lights on the corner of Harrison and Ogden. At the corner of Ogden the cab suddenly stopped while it was still at the intersection of Ogden and Harrison. The plaintiff, Novella Herron, testified that “immediately after the stop, I and my little girl were on the floor of the cab. My little girl was laying on the left hand side of the taxicab and I went down on my knees to the floor of the cab.”

The cabdriver testified that he had picked up the plaintiffs at the County Hospital at a taxicab stand. The mother told him to go to Grenshaw and he proceeded west on Harrison. As he approached Ogden Avenue he noticed the light was green for westbound traffic on Harrison Street. He pulled into the center of the intersection and stopped, waiting for traffic to pass in order to make a left hand turn at Ogden to go southwest. A boy with a bicycle started across Ogden from the center of the intersection just as the cabdriver stepped on the gas. The cabdriver testified that he proceeded two or three inches before he stopped. He also testified that he could not have been going over a couple of miles, or no faster than five miles, an hour. When he first saw the boy he was close to the intersection. There is a safety island at this intersection. There is a pole in the middle and one must go around the pole to make the turn on Ogden. The boy was facing west. He did not come into contact with the boy. A couple of feet separated the taxicab and the boy when the cabdriver stopped. He testified that when he stopped the cab, the child slipped off the seat and that he took her with one arm and put her back on the seat. He also testified that the mother was sitting in the cab and that he did not see the mother on the floor. When the cabdriver first saw the boy on the bicycle he was in the crosswalk going west and was near the post in the middle of Ogden Avenue at the south curb line of Harrison. Just as the cab started to make a left turn the driver looked to the left. He was watching eastbound traffic and when it cleared he turned to the left and saw the boy on the bike. The cabdriver testified that it seemed as if the boy had been waiting. He mounted the bike and the cabdriver saw his feet getting on in the center of the intersection. The wheels of the bicycle and the wheels of the taxicab were moving when the cabdriver first saw the boy. The cabdriver said that when he saw the boy he stopped and that the boy was near the post when he first saw him. The cabdriver moved his cab two feet and then applied his brakes. He testified that he could not have been going more than five miles an hour. He did not get out of the cab and he did not speak with the boy. The boy had the green light. He was going west on Harrison. The cabdriver also testified that “after I hit the brake the car traveled two or three inches.” He did not warn his passengers that he was putting on his brakes.

Plaintiff Novella Herron in her testimony stated that she told the cabdriver that Patricia, her daughter, was hurt and that the driver had asked the boy if he was hurt and then got back into the cab and asked about Patricia, her daughter.

The defendant cites the case of Dixon v. Hart, 344 Ill App 432, 101 NE2d 282, in support of the argument that the word “sudden” used in conjunction with stop does not describe the movement of defendant’s vehicle in such a way as to permit the trier of fact to conclude that the defendant was negligent. In the Dixon case, supra, action was brought for injuries sustained by a housewife who entered defendant’s store where her left foot slipped and she fell, and the plaintiff was assisted to a chair 25 to 30 feet from where she fell at which spot she rubbed her hand over the floor and found it “slick.” The court in that case discussed the question as to whether testimony that a floor was “polished” or “slick” without more, established that the defendant was negligent in his choice or application of a floor dressing, or that the floor was dangerous for use by the public. The court concluded in that case that the plaintiff had not met the burden required of her because what is “slippery” to one person might not be “slippery” to others, and what is “slick” to a person wearing one type of shoe might not seem “slick” to him if wearing another kind of shoe. The court held the evidence in that case standing alone would not require the store owner’s liability to be weighed by a jury, especially in view of the fact that the condition of the defendant’s floor as being “slippery” and “slick” was based upon a part of the floor 25 or 30 feet away from the accident.

Defendant also relies upon the case of Rarus v. J. C. Penney Co., 39 Ill App2d 42, 187 NE2d 529. This case also involved injury from a fall on a floor that was described as being “slippery and shiny.” The court in that case held that it was not negligence to apply wax to a floor unless there is some evidence that it was improperly done and that waxing of floors is too common a practice to constitute negligence in the absence of evidence tending to show some positive negligent act or omission. We are of the opinion that those cases are not controlling here.

In the case of Lazarus v. Friel, 331 Ill App 552, 73 NE2d 647, plaintiff was standing one step above the platform where the motorman stands on a streetcar. The streetcar was slowing down and was coming to a stop when it jerked three or four times and plaintiff was thrown off balance and slipped down on the platform near the motorman. The plaintiff also testified that the floor of the platform was wet. The defendants in that case contended that no negligence on their part was proved. The court in that case, relying on the authority of Kaldunski v. Chicago City Ry. Co., 250 Ill App 475, held that it is settled in this state that where there is an unusual or extraordinary lurch or jerk of the car upon which a person is riding as a passenger and, by reason thereof, a person is thrown down, it becomes a question of fact for the jury as to whether or not the accident was caused by the negligent operation of the car or train.

In Heineke v. Chicago Rys. Co., 279 Ill 210, 116 NE 761, the court said at page 213:

“The jerk or sudden stop and lurch of the car is shown by the evidence in the record to have been the controlling and proximate cause of defendant in error’s injury. The operation of the car was entirely within the control of plaintiff in error’s servants, and a sudden jerk or lurch of the character disclosed by the evidence, being a cause within the control of the carrier, causes to arise a presumption of negligence on the part of the carrier and was sufficient upon which to submit to the jury the question of negligence.”

In Hirshberg v. Cummings, 324 Ill App 62, 57 NE2d 284, the plaintiff entered at the front of the car, walked back to the middle where she paid the conductor her fare and before she had time to be seated, the car suddenly stopped, causing her to be thrown to the floor and severely injured. The defendant there contended that the court should have directed a verdict in their favor. The evidence in that case further showed that the motorman was driving at a speed of about 25 miles an hour and a truck backed out of the alley on the north side of the street; that he sounded his gong, threw on the brakes and stopped the streetcar as quickly as possible; that the lady fell as the motorman stopped the streetcar. The court on page 67 said:

“Upon a careful consideration of all the evidence we are of opinion that all reasonable minds would not reach the conclusion that there was no negligence on the part of the motorman and in such a situation the question of negligence is one of fact for the jury. Louthan v. Chicago City Ry. Co., 198 Ill App 329; Bale v. Chicago Junction Ry. Co., 259 Ill 476; Kelly v. Chicago City Ry. Co., 283 Ill 640. The jury had a right to weigh the testimony of the motorman and of the other witnesses.”

Likewise, in the case before us, after considering all of the evidence as to liability, we cannot say that all reasonable minds would reach the conclusion that there was no negligence on the part of the defendant, and that the question of negligence in such a situation was one of fact for the trier of the facts, who in this case was the trial judge. If the driver of the cab was as close to the boy on the bicycle as he testified to, he should have been able to see him before starting the cab. The boy on the bicycle was crossing the street at the crosswalk and had the green light. The cabdriver was turning left off of Harrison to go southwest on Ogden. The trier of the fact in this case could well have concluded that the defendant’s driver was negligent in. failing to look back to the left before making his turn to see if anyone was crossing Ogden in the crosswalk with the light, as was the boy on the bicycle. The trial judge also could have concluded that the driver was negligent in stopping his cab within two or three inches after he applied the brakes without warning to the passengers while the cab was traveling five miles per hour.

It has been repeatedly held that the determination of the probative value of the evidence and the conclusions to be drawn from it lie within the province of the trier of the fact, and that an appellate court will not substitute its .judgment for that of the trier of the fact unless the evidence is clearly insufficient to support that finding.

The defendant next contends that the plaintiffs’ evidence of injury was palpably false and should have been disregarded. A judgment was entered in the trial court in the amount of $800 in favor of plaintiff, Patricia Herron, a minor, and in the amount of $700 in favor of Novella Herron, the mother. Under this point the defendant attacks the testimony of the doctor. The doctor had testified that on the day Patricia Herron, a minor, was admitted to the hospital he examined her and found a slight hematoma of the skull, ecchymosis of the chest and back, diffused rales of the lungs, weakness, dizziness, nausea, vomiting, a cough and a temperature. In addition she was suffering from bronchial pneumonia. He further testified that a par enzyme injection was given to absorb the blood clots, hematomas and the ecchymosis.

The defendant, in cross-examination of the doctor, referred to the doctor’s deposition taken on May 8, 1963. There were many inconsistencies between the answers given at the deposition hearing and the testimony of the doctor at the trial of the case. The doctor explained this by stating that he had brought the wrong records to the deposition. However, at the deposition the doctor stated that Patricia had been in a Yellow Cab that stopped suddenly and that was how she sustained the injuries.

Again, with respect to the plaintiff, Novella Herron, the doctor testified that her main complaints were pains in the lower back, aggravated by active or passive motion. The x-rays were all negative. All that he noted was a slight tenderness in the lower back and the subjective complaints of the patient. The facts, however, showed that Patricia Herron was in the hospital for eight days with a hospital bill of $256.50 and a doctor bill of $160. Novella Herron testified to twenty visits to the doctor, the rubbing of her arm with a liquid furnished by the doctor; her inability to do her housework completely for three weeks, and partly for some time thereafter. Her doctor bill was $131.

The trial judge observed the witnesses while testifying, their demeanor and their candor or lack of candor, and was in a far better position to determine the credibility of the witnesses than is an appellate court, and for that reason the appellate court will not attempt to take over the function of the trier of the facts in determining the credibility of the witnesses. The trial court after hearing the witnesses for the plaintiffs concluded that their testimony was credible and such finding will not be disturbed by us.

As to the question of damages, it cannot be said that they are excessive in this case. Furthermore, the question of damages is purely one of fact for the jury or other trier of the facts. Lazarus v. Friel, 331 Ill App 552, 73 NE2d 647. And where it is not claimed or shown that the amount of the verdict or judgment clearly indicates it was the result of prejudice or passion on the part of the trier of the facts, the award should not be disturbed upon review. Ford v. Friel, 330 Ill App 136, 70 NE2d 626.

Judgments affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Marge Caliendo, Plaintiff-Appellant, v. Public Taxi Service, Inc., an Illinois Corporation, Defendant-Appellee.
    Gen. No. 50,425.
    First District, Third Division.
    April 21, 1966.
    Charles C. Porcelli and James J. Jorgensen, of Chicago, for appellant.
    Irvin Tischer and Joseph B. Lederleitner, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff’s suit was dismissed for her failure to exercise reasonable diligence in obtaining the service of summons on defendant, as required by Supreme Court Rule 4(2), Ill Rev Stats ch 110, § 101.4(2) (1965). She appeals from the order of dismissal.

Plaintiff filed her complaint on April 24, 1962 to recover damages for personal injuries allegedly sustained because of the defendant’s negligence, and on that day summons was issued and given to the sheriff for service. He was directed to serve the defendant at 33 South Clark Street, Chicago, Illinois, but neither the floor of the building nor the number of the room was specified. The summons was returned by the sheriff on May 25, 1962 with the notation that defendant was not found within the county.

On September 17, 1964, more than two years after the original summons was returned “Not served,” plaintiff took out an alias summons which was served on the defendant on September 30, 1964. Defendant moved to dismiss the complaint on the basis of Supreme Court Rule 4(2), which provides: “If the plaintiff fails to show reasonable diligence to obtain service, the action as a whole or as to any unserved defendant may be dismissed on the application of any defendant or on the court’s own motion.”

Plaintiff filed an unverified answer to the motion to dismiss, asserting that the defendant should be made to appear and to defend on the merits, on the theory that defendant, in fact, had notice of the suit. The trial court asked that the parties submit their versions of the facts under oath. Defendant filed an affidavit averring that for each of the years in question, its correct address was ascertainable from various sources in which it was publicly registered; that the address in the original summons was incomplete; that defendant had never discussed settlement of plaintiff’s claim; and that it had no notice of such action. Plaintiff filed no affidavits in opposition, and the court granted defendant’s motion to dismiss the complaint.

Plaintiff contends that defendant waived objection to the service of process by filing a general, rather than a special, appearance. In support of her position, she cites Section 20(1) of the Civil Practice Act, which outlines the procedure to be followed when a party wishes to contest the court’s jurisdiction. The plaintiff’s reliance on Section 20(1) is not well based, as no such issue is raised with respect to the court’s jurisdiction. The defendant did not assert that the court lacked jurisdiction, but on the contrary, invoked the court’s jurisdiction by asking it to exercise its power to dismiss an action as provided in Rule 4(2).

Plaintiff also contends that the court abused its discretion by dismissing her complaint. She would limit the application of the sanction provided in Rule 4(2) to cases where the complainant intentionally postpones service of summons for an indefinite time after the statutory period has run. Although prevention of intentional delay was one of the primary reasons for the passage of Rule 4(2), the subjective test of intent is not required by the rule; rather, the criterion is one of reasonable diligence. Kohlhaas v. Morse, 36 Ill App2d 158, 183 NE2d 16, cited by plaintiff, lends no support to the proposition that the defendant must prove that the plaintiff intentionally delayed service. In upholding the dismissal of certain defendants the court said: “The unexplained failure to obtain service on a party until months after the statute had run could hardly be ‘reasonable diligence to obtain service, The court went on to say that the holding was not to be understood as requiring that service be obtained within the time that suit must be filed, but that needless delay occurring after the time to file suit had expired would be a factor to be considered in ruling on the issue of due diligence.

In the instant case, the plaintiff filed her complaint ten months before the period for bringing her action would have expired. Service was not made, however, until nearly twenty months after the statutory period had elapsed. The trial court properly dismissed the suit for want of reasonable diligence.

Judgment affirmed.

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


author: MR. JUSTICE BURMAN

text:
    Anna L. Phelps, as Special Administratrix of the Estate of Paul A. Phelps, Deceased, Plaintiff-Appellee, v. Elgin, Joliet and Eastern Railway Company, a Corporation, et al., Defendants. William O. Arnold, et al., Respondents-Appellants.
    Gen. No. 49,993.
    First District, First Division.
    April 25, 1966.
    Rehearing denied May 9,1966.

      L. Louis Karton, of Chicago, for appellants.
    William H. DeParcq, of Minneapolis, Minnesota, and Robert J. Martineau, of Chicago (Charles Alan Wright, of Austin, Texas, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This appeal concerns a petition filed under the Illinois Attorney’s Lien Act (Ill Rev Stats, c 13, § 14, 1963) by Anna L. Phelps to adjudicate the claim of respondents for a lien upon one-third of the proceeds of a settlement and judgment in her favor in the amount of $100,000. The respondents’ claim arises from a contingent fee contract for their services signed by petitioner. The case is here on appeal for the second time; on the prior appeal (see 37 Ill App2d 46, 184 NE2d 799), we reversed a judgment rendered against respondents on the pleadings, and remanded the cause with directions to take evidence concerning the services rendered by each set of attorneys and allocate the fee accordingly. Our Supreme Court originally granted respondents’ petition for leave to appeal this court’s order, but later dismissed the petition for leave to appeal. 28 Ill2d 275, 191 NE2d 241. Pursuant to the remandment, the trial court sitting without a jury took evidence in the case, and entered judgment against the respondents. This appeal followed.

The antecedent cause of action arose from the death of petitioner’s husband, Paul A. Phelps, on Saturday December 13,1958, in the railroad yards in Gary, Indiana, where he was employed. Mrs. Anna L. Phelps, his widow, had been in bed under a doctor’s care for two weeks prior to the accident, suffering from double pneumonia. Upon learning of her husband’s death, she became hysterical, and then fainted and was put to bed. She was under prescribed medication on Saturday, and all day Sunday.

Clayton Potter had long been a close friend of Mr. and Mrs. Phelps. At Potter’s wedding, Paul Phelps had been the best man and Mrs. Phelps had been a bridesmaid; and the couples had gone on vacations together. Potter, who is a truck driver, also worked part time for the law firm of Arnold, Peterson, Bogucki, and Bickley, signing up personal injury case clients on printed contract forms supplied him by Arnold from time to time, and also doing investigatory work for the firm. He testified that on Saturday, upon learning of Phelps’ death, he went from his own home in Chicago to the Phelps’ home in Gary, and there saw Mrs. Phelps, her brother-in-law Don Engel, and others. He further testified that Mrs. Phelps told him he was Paul’s best friend, that Phelps had told her many times that if anything ever happened she should get hold of him (Potter) and of Arnold’s office and they would take care of it. Both Potter and Arnold testified that Potter called Arnold at his home to apprise him of the death of Phelps and of Mrs. Phelps’ desire to have Arnold’s office handle the case. Mrs. Phelps, however, testified that she did not see Potter either on Saturday or on Sunday, and that the first time she saw him after the accident was on Monday, December 15th.

On Sunday, Potter went to Arnold’s home and obtained a blank printed form for a contingent fee contract. Mrs. Phelps and Engel testified that on Monday, they met with Potter in the Phelps’ home and elicited his assurance that in view of Mrs. Phelps’ condition she would not be asked to sign anything. Shortly thereafter, however, Mrs. Phelps signed the contingent fee contract which Potter had received from Arnold. She testified that Potter had presented it to her for her signature when she was preparing to leave for the mortuary on Tuesday, December 16th; that the paper, when she signed it, was blank except for some very fine print which she could not and did not read; and that Potter told her it merely empowered Arnold’s office to represent her at the inquest a few days later. Potter, however, testified that Mrs. Phelps asked him if she could sign the contract, and that he thereupon filled out the blanks and read the contract to Mrs. Phelps before she signed it; and that this took place on Monday, December 15th. Engel testified that on Monday Mrs. Phelps was still highly nervous and upset, and was in no condition to transact business. Potter, however, testified that while Mrs. Phelps was upset at the time, she was fairly calm and not hysterical in any way.

Arnold and a court reporter employed by his firm went to the funeral home on Monday evening, where they met Mrs. Phelps, Potter, and Engel. Arnold and the reporter testified that they took a statement from Engel at the funeral home, but Engel denied any conversation with Arnold other than the acknowledgment of an introduction. Engel testified that he asked Potter that evening about the document signed by Mrs. Phelps and was informed that it related to representation only at the inquest, and that “. . . any time Ann wants it back, this piece of paper back, she can have it,” but Engel testified that when he asked Potter to return the document to Mrs. Phelps, or to show it to him, Potter refused.

On Tuesday, several persons were dispatched from Arnold’s office to Gary to investigate the case. Mrs. Phelps gave them several small booklets containing primarily the work rules of the railroad. But when they contacted Engel, he was entirely uncooperative, as were the persons they interviewed who were employed in the railroad yards where the accident had occurred.

On Thursday, Arnold prepared and served upon the railroad a notice of an attorney’s lien upon Mrs. Phelps’ claim against the railroad. Mrs. Phelps and Engel were visiting the railroad offices that day in relation to insurance policies, and while there she was asked whether she was in fact represented by Arnold’s firm. She told the railroad official that she had not hired Arnold. Later, with the assistance of Engel, she drafted a letter to Arnold in which she informed him that she retracted the signed agreement, requested the return of all papers in Arnold’s possession because she then had no intention of hiring an attorney, and stating that if she could not settle the case she would contact him. The letter was sent by registered mail, return receipt requested, but was not accepted at Arnold’s office when delivery was attempted on December 20th. Attempts at delivery also failed on December 29th, on January 14th, and again on January 19th. Arnold testified that when registered letters arrive at his office addressed to an individual, that person must sign for the letter himself, or it is refused. He explained that he thought he was out of town or out of the office when the letters arrived. He also said that anyone in the office can sign for a registered letter addressed to the firm. He testified, however, that he did receive in January a letter from a friend of Mrs. Phelps, who stated that she was writing on behalf of Mrs. Phelps who did not want Arnold to represent her.

A partner in Arnold’s firm, Richard F. Peterson, testified that his office continued to investigate the case for months; but admitted that the file indicated the last work performed by them on the case was on December 20th, 1958, seven days after the accident. They did not attend the inquest, or have Mrs. Phelps appointed administratrix of her husband’s estate, or file suit, or enter into any negotiation for settlement of the case. Arnold explained that this was, “. . . because Mrs. Phelps never made up her mind whether she was going to have us handle the case, have someone else handle the case, or settle the case herself.”

On January 27, 1959, Mrs. Phelps contacted a representative of the law firm of William H. DeParcq, and thereafter employed his office by signing a contingent fee contract for one-third of the proceeds. DeParcq served the railroad with his notice of an attorney’s lien, and then had Mrs. Phelps appointed administratrix. On March 7, 1959, DeParcq filed a complaint on her behalf. He took depositions, made an extensive investigation, and served a large number of interrogatories on the railroad. When the case was reached for trial there were preliminary trial conferences and he filed a brief on the question of whether the case was under the Safety Appliance Act or solely under the negligence provisions of the Federal Employers Liability Act. After lengthy negotiation the case was settled for $100,000 and subsequently a judgment was entered against the railroad for that sum and the proceeds deposited with the Clerk of the Court. By agreement of the parties the sum of $33,333.33 was retained by the Clerk of the Court.

In entering judgment against the respondents, the trial judge made a number of specific findings, which as set forth in its order were basically as follows:

1. The contingent fee contract was void because it was obtained by fraud in the inducement and in the execution.
2. The contract was also void because it was obtained by solicitation by Potter, respondents’ agent.
3. The notice of attorney’s lien served by respondents upon the railroad was void because it falsely stated that petitioner was the special administratrix of the Estate of Paul Phelps, when in fact she had not been so appointed.
4. Even if the respondents had a contract of employment they were properly discharged for good cause by petitioner.
5. “That even if respondents had a contract of employment, they abandoned it on or about December 20, 1958, by reason of their failure to do any work, file suit, or anything else toward furthering their alleged employment.”
6. “That the settlement of this case from which the impounded sum resulted was brought about solely by the work, efforts and talents of William H. DeParcq; that respondents rendered no services which were of any value whatsoever and did nothing to the successful result obtained.”

Respondents challenge as contrary to the manifest weight of the evidence the trial judge’s findings as to fraud, solicitation, abandonment, and discharge for cause. It is their position that, “the employment agreement was fairly entered into and they were at all times ready, willing and able to perform their agreement to represent Plaintiff, until they were prevented from doing so by Plaintiff’s own misconduct.”

After a careful examination of the record, we conclude that the finding of the trial judge that, “even if the respondents had a contract of employment they were properly discharged for good cause by the petitioner,” is not contrary to the manifest weight of the evidence. In the recent case of Miller v. Solomon, 49 Ill App2d 156, 199 NE2d 660, this court held, “. . . whether or not valid cause for the discharge of the attorney exists must be determined under the circumstances of each case,” (49 Ill App2d at 167). The record here supports the finding made by the trial judge that, “. . . the plaintiff, at, and before affixing her signature to the contract, was receiving medication, was distraught, and emotionally disturbed, as might be expected of a woman recovering from pneumonia and learning that her husband, father of her children, five minors, was killed.” Her signature on the contract was apparently procured as she was preparing to leave for her husband’s funeral; and her testimony was to the effect that she thought she was thereby appointing respondents to represent her only at the inquest. In light of these factors, we will not disturb the trial judge’s finding that respondents were discharged for good cause. This finding makes it unnecessary to review the trial judge’s determinations as to fraud, solicitation, and abandonment.

Any fees to which respondents might be entitled must necessarily rest upon a theory of quantum meruit. Respondents, however, have rejected that theory as not applicable to this case, and have rested their claim to the full one-third fee upon the contract, without regard for whatever may have been the reasonable value of the services which they actually rendered. In support of this argument, they cite Goldberg v. Perlmutter, 308 Ill App 84, 31 NE2d 333. But that case is inapplicable here, because there the court found that the attorney seeking to enforce his lien had been discharged without good cause. Respondents not only rejected the quantum meruit theory as inapplicable, but also failed to offer any evidence in the trial court which would support a quantum meruit award, despite the fact that we remanded this case with directions to hear evidence as to the services rendered by the two sets of attorneys and to allocate the fee accordingly. As in Bremer v. Lake Erie & Western R. Co., 317 Ill 580, 584, 148 NE 241, the evidence is clear that the respondents did not contribute one iota to the recovery of the money paid. Nothing of value has been recovered by reason of any act done or suit brought by the respondents. On the basis of this record, we must conclude, as did the trial judge, that the respondents are not entitled to recover any fees.

The judgment must be affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


author: MR. JUSTICE MURPHY

text:
    Van J. Paulus, Plaintiff-Appellee, v. Sidney D. Smith, Acting Commissioner of Buildings of the City of Chicago, William P. Hogan, Chief Electrical Inspector of the Bureau of Electrical Inspection of the City of Chicago, Edward J. Boyle, Assistant Chief Electrical Inspector of the City of Chicago, City of Chicago, a Municipal Corporation, Rite-Lite Neon Sign Co., an Illinois Corporation, and George Aloisio, Defendants, Sidney D. Smith, William P. Hogan, Edward J. Boyle and City of Chicago, a Municipal Corporation, Certain Defendants-Appellants.
    Gen. No. 50,008.
    First District, First Division.
    April 25, 1966.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin, Richard J. Elrod and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellants.
    Raymond I. Suekoff, of Chicago (Stuart C. Katz, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

The defendants, City of Chicago and its employees, appeal from a permanent injunction which restrains defendants from (1) revoking a sign permit issued to plaintiff, and (2) from interfering with or preventing plaintiff from proceeding with the completion of the sign erected under the permit. The trial court found the suit to be “an appropriate case for the application of the doctrine of equitable estoppel.”

The Municipal Ordinances of the City of Chicago involved in this appeal are section 86.1-15.1 of the Illuminated Signs and Signboards Ordinance and section 10.14 (4) of Chapter 194A of the Zoning Ordinances as they were in effect in June of 1963. The two sections were identical and then read as follows:

“86.1-15.1. No advertising sign shall be permitted within 400 feet of specified public parks, or the main roadway (exclusive of access drives), of a specified major route if the face thereof is visible therefrom, and advertising signs located at a greater distance than 400 feet from such public park or the main roadway (exclusive of access drives) of such major route and visible therefrom shall not exceed in gross area in square feet %oo times the square of the distance of such advertising sign from said park, or main roadway of said major route.
“The designated 400 feet shall be measured from the center lines of the streets bounding public parks or the boundary lines of such public parks, whichever applies. As it applies to major routes, the measurement shall be taken from the center lines of such routes. For the purposes of this section . . . major routes shall include the following:
“ (b) All expressways . . . .”

Plaintiff, Van J. Paulus, is in the outdoor advertising business. He acquires sites, erects signs and rents them to advertisers.

On June 4, 1963, plaintiff submitted to the Department of Buildings of Chicago two applications for permits for the construction of an advertising sign to be located on property owned by the Chicago, Milwaukee & St. Paul Bailroad Company. The first application was for a “Signboard Permit”; the second was for an “Electric Sign” permit. The “Signboard” application stated that the location of the signboard would be 4809-4811 W. Wilson; that plaintiff was the owner; that the area of the signboard would be “H. 20 L. 60 Height above ground 80,” and that the signboard would be illuminated; and that drawings were attached. The application date was left blank, and under “Remarks” the words “Railroad Property” were written. The application was certified by plaintiff as owner and by Rite-Lite Neon Sign Co. by George S. Aloisio as sign erector. It contains the following certification above the signatures: “The undersigned certify that the statements in this application are true and correct and that all work done under the proposed permit will conform to the requirements of the Chicago Municipal Code.” All this appeared on the application when submitted.

The “Electric Sign” application shows the same address for the location, the same dimensions for the sign, and Rite-Lite Neon Sign Co. as the “electrical contractor” and “sign erector.” George Aloisio’s name also appears under the certification that the statements “are true and correct and that all work done under the proposed permit will conform to the requirements of the Chicago Municipal Code.”

We note here that on July 2, 1963, plaintiff also submitted to the City two applications for permits to construct a second signboard, an electric sign, on the railroad’s right-of-way. These applications were made out substantially the same as those for the first signboard and sign, and on the same day that applications were approved and permits issued. Sign No. 2 is not involved in these proceedings because no work had been commenced on it.

Although it affirmatively appears on the application for “Signboard Permit” No. 1 that drawings were attached, it was approved on June 4, 1963, without any drawings. The first drawing was for the sign support structure, and it is dated June 15, 1963. All drawings were prepared on orders from John J. Tolash, d/b/a John’s Iron Works and Welding Company. Notwithstanding the applications for sign No. 1 were signed by Rite-Lite Neon Sign Co., a registered electrical contractor and a bonded sign erector, Tolash erected the structural steel framework and placed the order for its prefabrication. The record indicates the erection of the structural steel framework was completed August 7,1963.

Plaintiff testified that he always intended to have the sign built by Tolash, but that he did not inform anyone in the Building Department as to who was going to build the structure. He asked Tolash to sign the application, and “Tolash said he wasn’t bonded or insured .... I was not trying to conceal from the City who was actually going to build this sign structure.”

On August 17, 1963, the Chicago Sign Erecting Company, Inc., a licensed sign contractor, applied facings consisting of thick plywood prepainted sections to the framework. On August 20,1963, City Inspector O’Donnell reported to Assistant Chief Electrical Inspector Boyle that the plaintiff’s sign (No. 1) had been erected in violation of the Chicago Zoning Ordinance. Boyle commenced an inquiry and requested a report from the Zoning Bureau. This report was submitted on the same day and concluded that the sign did violate the ordinance in that “the sign was less than the required 400 feet from an expressway.” After further investigation and on August 21, 1963, Boyle telephoned Rite-Lite Neon Sign Co. and spoke to Aloisio. “I told him that the electrical permits were going to be cancelled. He said that his firm was not going to do the electrical work and he did not know who was going to do it. He further said that they had not installed the structure and he did not know who had installed it. He stated that he had applied for the permits as an accommodation for the plaintiff. All he knew about the plaintiff, he said, was the plaintiff was in advertising. He sounded a bit perturbed or disgusted over the phone. He said he wished he had not taken the permit out, that it was an accommodation permit.”

After several conferences with Acting Commissioner Smith, Boyle was directed by Smith to cancel the permits. “I then wrote a letter of cancellation to Mr. Aloisio [dated August 21, 1963] and sent a copy of it to the plaintiff. I included all permits in the revocation [signs Nos. 1 and 2].” The letter of cancellation included: “The Rite-Lite Neon Sign Company is hereby directed to remove the signboard structure erected on the premises of 4809-11 W. Wilson Avenue, within ten days. Failure on the part of the Rite-Lite Neon Sign Company to comply with this directive shall result in the necessary action being instituted to enforce compliance.” On August 31, 1963, at the City’s direction and without instruction or permission of the plaintiff, Paulus, Rite-Lite removed the facings from the plaintiff’s sign.

Plaintiff commenced the instant suit on September 5, 1963, seeking a permanent injunction and $30,000 damages. Hearings before a master commenced on September 16, 1963. On September 15, 1963, Boyle with two inspectors and a photographer made more measurements of the visibility of plaintiff’s signboard from the Northwest Expressway. The measurements indicated that the sign was visible within 400 feet of the Northwest Expressway, and that it violated City ordinances.

Pursuant to stipulation, the parties and the master visited the sign site on September 20, 1963, and on Sunday, September 22, 1963, two licensed and registered land surveyors employed by the plaintiff and defendants made separate measurements of the sign in relation to the expressways and took photographs to establish the visibility of the sign from the respective expressways. The surveys were made by Gremley & Biedermann on behalf of the plaintiff and Ralph H. Burke, Inc., on behalf of the defendants. Graphic reports prepared by both surveyors, in evidence, are in substantial agreement.

Both surveys were taken from several points along the expressway. A photograph taken at Point 2 from the center of the northwest-bound lanes of the Northwest Expressway shows that plaintiff’s sign is partially visible from that point. The distance of Point 2 from the sign, as computed by the respective surveyors from their observations, is as follows:

Plaintiff’s Exhibit 18 (Gremley & Biedermann).
Line of sight distance................386.10 feet.
Horizontal distance ..................375.43 feet.
Defendant’s Exhibit 11 (Ralph H. Burke, Inc.)
Line of sight distance................391.12 feet.
Horizontal distance..................375.44 feet.

These are the measurements upon which the City bases its right to revoke the permits as violative of the Municipal Ordinances of Chicago.

After extended hearings, the master made findings in favor of the defendants, but also found that no fraud or deception had been proven against the plaintiff in obtaining the permits. The master recommended a decree for the defendants and against plaintiff. During the hearings before the master, the plaintiff waived his prayer for damages and limited his prayer to the injunctive relief. Therefore, damages are not involved in this appeal, and our determination of the issues here is not dispositive of that question.

In a decree entered June 10, 1964, the trial court disapproved the master’s findings and conclusions, overruled the City’s exceptions to the report, and sustained plaintiff’s exceptions. The court found that the permits issued by the City for both signs were validly issued; that the plaintiff practiced no fraud or deception in obtaining the permits; that the plaintiff had made large expenditures in reliance on the permits; that this is an appropriate case for the application of the doctrine of equitable estoppel and the City and its officers and agents are estopped from revoking said permits or interfering with the construction of the signboards and electric signs in conformity with said permits; and that the issues were with the plaintiff.

The trial court ordered that a permanent injunction issue against all defendants, restraining them (a) from interfering with or preventing the plaintiff from proceeding with the completion of the signs; and (b) from revoking the said permits or any of them for the erection of the signs at 4809-11 W. Wilson Avenue, Chicago. The court further ordered that the master’s fees of $5,062.10 “shall be paid by the defendant, City of Chicago, and that all other costs be taxed against said defendant.” Subsequently, on August 7, 1964, by agreement of the parties, the decree was amended “nunc pro tunc as of June 10, 1964,” and it was ordered that the master’s fees “shall be paid by the plaintiff, Van J. Paulus, and no other costs shall be taxed against any party, all other costs having been heretofore paid.” It was further ordered that the plaintiff construct sign No. 2 “in such a manner that the face of said sign shall never be visible from any point on the Kennedy Expressway (formerly the Northwest Expressway) .”

On appeal, it is the theory of the City that the decree should be reversed because (1) the building permits obtained by the plaintiff from the Acting Commissioner of Buildings were obtained through the fraudulent inducement of the plaintiff; (2) permits S 6221 and S 229933 [sign No. 1] issued by the Acting Commissioner of Buildings purport to authorize the construction of signs which violate the requirements of the ordinances of the City of Chicago; (3) the Commissioner of Buildings had no authority to issue permits for the construction of signboards or electric signs in violation of said city ordinances ; (4) all of the permits issued by the Commissioner of Buildings expressly required the plaintiff to construct signboards and signs pursuant to the provisions of the said city ordinances, and that plaintiff did not construct the signboard or signs in conformity with said ordinances but, on the contrary, constructed the same in violation of said ordinances and contrary to the express limitations of the permits; (5) the Acting Commissioner of Buildings, through his Assistant Chief Electrical Inspector, properly revoked the said permits, for the failure of the plaintiff to construct the said signboard and electric sign in conformity with the said city ordinances and the terms of the said permits; (6) the plaintiff had personal knowledge of the provisions of the city ordinances regulating the distance and size of advertising signs in respect to their distance from Northwest Expressway and Edens Expressway; that, therefore, no estoppel exists to prevent the City of Chicago from enforcing the provisions of its ordinances with respect to the plaintiff’s violations thereof; (7) the plaintiff, in constructing the signboard and sign in violation of the city ordinances, did not rely upon any misrepresentations, concealments or inducements of the City, but relied upon the illegally issued permits to violate the ordinances; (8) the plaintiff, as a violator of the city ordinances and the regulations which he seeks to avoid, has not come into equity with clean hands; (9) the ordinances which regulate the size and distance of advertising signs with respect to Northwest and Edens Expressway have been enacted to promote the safety and welfare of the general public using those expressways for traveling purposes and should be enforced; (10) the complaint does not contain allegations to support that portion of the trial court’s judgment holding the City is estopped to revoke the sign permits or to interfere with the plaintiff’s construction or operation of the advertising signs which he erected in violation of the City’s ordinances; and (11) the plaintiff has no property right in the use of the expressways for advertising purposes.

Plaintiff’s theory is that the permanent injunction should be affirmed because (1) the plaintiff practiced no fraud or deception in obtaining the permits; (2) the master found that no fraud or deception had been proven against the plaintiff and this finding was expressly affirmed by the trial court decree; (3) the sign is not visible from the center line of any expressway within the distances proscribed by the ordinances; (4) the plaintiff, in reliance upon the permits, constructed the sign, obligated himself on a lease and other contracts, and expended substantially in excess of $20,000; (5) the City is equitably estopped from revoking the permits; (6) the City in this case attempted to invoke a section of the ordinances which it has never before enforced and to interpret all of the ordinances in a manner inconsistent with its interpretations as to all other signs; (7) the City arbitrarily attempted to revoke the permits without notice and failed to give the plaintiff an opportunity to correct any alleged violations as required by the ordinances; (8) the agreed amending order rendered the decree a consent decree and consequently not appealable; and (9) the failure of the City to obtain a supersedeas and the consequent completion of the sign pursuant to the decree made the questions raised on this appeal moot.

After considering the merits of the various contentions of both sides, we agree with the City that the regulation of billboards and their restriction is not so much a regulation of private property as it is a regulation of the use of streets and other public thoroughfares and within the police power of the State, and the instant ordinance which prohibits advertising signs within 400 feet of an expressway is a proper use of its police power. See Ghaster Properties, Inc. v. Preston, 176 Ohio 425, 200 NE2d 328; City of Chicago v. Vokes, 28 Ill2d 475, 479, 193 NE2d 40 (1963).

Initially, we consider whether this is a case for the application of the doctrine of equitable estoppel against the City. The doctrine is discussed at length in Cities Service Oil Co. v. City of DesPlaines, 21 Ill2d 157, 171 NE2d 605 (1961), a building ordinance case involving the revocation of a gasoline station permit because it violated an ordinance prohibiting the location of a gasoline station within 300 feet of any school, hospital, church or theater. After three weeks of construction, the police stopped the work and the mayor revoked the permit, stating ordinance violation as the reason. The plaintiff had expended approximately $6,500 for work and restoration of the property. The court said (p 160) :

“The general rule is that a city cannot be estopped by an act of its agent beyond the authority conferred upon him. (Rippinger v. Niederst, 317 Ill 264; Burton Co. v. City of Chicago, 236 Ill 383; Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill 91.) It has been stated that anyone dealing with a governmental body takes the risk of having accurately ascertained that he who purports to act for it stays within the bounds of his authority, and that this is so even though the agent himself may have been unaware of the limitations on his authority. (Federal Crop Ins. Corp. v. Merrill, 332 US 380, 384, 92 L Ed 10, 15.) In matters involving strictly public rights the courts do not interpose to hold the municipality estopped except under special circumstances which would make it highly inequitable or oppressive to enforce such public rights. Melin v. Community Consolidated School Dist., 312 Ill 376.
“The general rule is qualified, however, to enable a party to invoke the doctrine where his action was induced by the conduct of municipal officers, and where in the absence of such relief he would suffer a substantial loss and the municipality would be permitted to stultify itself by retracting what its agents had done.”

In further discussion of when the general rule may be qualified, the court said (p 163) :

“Defendants invoke the rule that every person is presumed to know the extent of a municipal officer’s power; and they argue that unless the citizen is held to the responsibility of informing himself as to the existence of ordinances he would be ‘rewarded for remaining ignorant.’ There is no doubt that if one is aware of the applicable ordinance, or makes no attempt to know of it, the issuance of a permit contrary thereto does not create an estoppel against the city to forbid any further work on the building. (Sinclair Refining Co. v. City of Chicago, 246 Ill App 152.) It is also true that even in the absence of such knowledge, the mere issuance of an unauthorized permit and reliance thereon to one’s injury does not provide grounds for relief.”

Considering the facts of the instant case, we believe the general rule that a City cannot be estopped by an act of its agent beyond the authority conferred upon him should be applied here. Even if the permits for sign No. 1 were issued without fraud or deception on the part of plaintiff, we believe the regulation of billboards and their restriction on public highways is intended for the protection of the public traveling upon highways, and to promote safe driving and eliminate traffic hazards. Under such circumstances, where the hazard to be corrected is a continuing one affecting public safety and general welfare, we believe the doctrine of equitable estoppel should not be applied against a governing body, even though the situation sought to be corrected came about through the acts of an agent of the City, who exceeded his authority and failed to perform his duties in the exact manner prescribed by the ordinance.

Remarks made in Sinclair Refining Co. v. City of Chicago, 246 Ill App 152 (1927), are pertinent here (p 162) :

“To hold that merely the acts of an employee could be the basis for such an estoppel as is claimed in the instant case, would be going in the direction of suspending and repealing ordinances without any action on the part of the city council; in other words, making acts of the employees or agents, though beyond the scope of their authority, and known by the parties to be such, the equivalent of legislation.”

We hold the doctrine of equitable estoppel should not be applied here.

The determinative issue here is whether the instant sign actually violates the foregoing cited City ordinance. This requires the interpretation of the language of the ordinance. On the question of the language of the ordinance, plaintiff argues that there are three ordinance terms in issue which require the use of their “common dictionary meaning.” (Conlon-Moore Corp. v. Cummins, 28 Ill App2d 368, 171 NE2d 676 (1960).) These three terms are “visible,” “expressways,” and “center lines of such routes.”

As to “visible,” plaintiff contends “it must be the line of sight measurement.” We agree. It is obvious that the distraction or confusion of a motorist by billboard advertising must be visual. As to “expressway,” we do not disagree with plaintiffs definition as defined by Webster’s Third New International Dictionary (Unabridged 1961) as “a high speed divided highway for through traffic . . . and that it connotes a highway with divided lanes for vehicles traveling in opposite directions.

As to what is intended by “center lines of such routes,” plaintiff argues that the center line of an expressway should mean the center line of the median strip between the two north and south lanes, and that “the face of the sign is not visible from within 400 feet of the center line of either Kennedy or Edens Expressways.”

The City argues that the advertising sign erected by the plaintiff (sign No. 1) is visible “from Point 2 in the center of the northbound main roadway of Northwest Expressway, 375.43 feet horizontally from the sign site and 386.10 feet on line of sight,” and this is in violation of section 86.1-15.1 of the Municipal Code.

We do not agree that the “median strip” visibility measurement should be used. Median strips in expressways are of various widths and are not intended for use of moving vehicles — hence a visibility measurement from a median strip would be meaningless here. If the ordinance is intended to protect a moving motorist, we believe the “center line” measurement should be a visibility measurement to be taken from an expressway lane approaching a sign. In fact, we think a visibility measurement of this nature should include the center line of any approaching lane. In construing a statute or ordinance, it is proper to consider the motive for making the ordinance and the evil sought to be corrected. (Anderson v. City of Park Ridge, 396 Ill 235, 244, 72 NE2d 210 (1947).) We note here from a careful scrutiny of the exhibits that many of the measurements made do not conform to the foregoing “center line” standards.

We find no merit in plaintiff’s contentions that the “completion of the sign rendered this appeal moot,” or that “no appeal may be maintained from a consent decree.” The completion of sign No. 1 after the entry of the decree and during the pendency of this appeal could not terminate and render ineffective and useless the police power of the City and its duty to protect the public from traffic hazards. As to the contention of a consent decree, we have examined the order incident to the modification of the decree and find nothing which indicates a waiver by the City of its right to appeal from the other portions of the decree. This contention is the subject of a motion to dismiss, which was taken with this appeal, and we now deny the motion.

We conclude that the City of Chicago and its officers and agents were not estopped from revoking the permits for or interfering with the construction of signboard No. 1, if it violated the City ordinance.

Although, for the disposition of the issues on appeal, we have accepted measurements suggested by the City, we think this record does not present sufficient measurement data upon which to decide the question of whether the sign actually violates the statute under the construction here adopted. Moreover, plaintiff contends that “the City arbitrarily attempted to revoke the permits without notice and failed to give the plaintiff an opportunity to correct any alleged violations as required by the ordinances.” Therefore, considering the substantial expenditures of plaintiff made under the circumstances portrayed here, we think it equitable that visibility measurements should be made in accordance with the views expressed in this opinion and properly submitted as evidence to the trial court. If it is then determined that the sign now violates the ordinance, plaintiff should be given a reasonable opportunity to correct the violation.

For the reasons given, the permanent injunction order is reversed and the cause is remanded to the trial court to proceed in accordance with the views expressed herein.

Reversed and remanded.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Hurley Mallett, Defendant-Appellant.
    Gen. No. 50,186.
    First District, First Division.
    April 25, 1966.

      Charles J. McCarthy, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and George Saméis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, Hurley. Mallett, was found guilty in a consolidated bench trial of the crimes of selling and possessing narcotics. He appeals, contending “that (a) the indictments are defective; (b) the state failed to prove that the defendant was not entrapped; and (c) the state failed to prove beyond a reasonable doubt that the defendant was guilty of the crimes charged.”

We find defendant’s primary contention to be without merit. The indictments did state the date when and the county in which the alleged crimes were committed. People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1966) holds such indictments valid and is dispositive of the defendant’s claim of error.

To dispose of the other claims of error, it is necessary to review the evidence adduced. Earl Shelby, an admitted drug addict and police informer, testified that on the day charged he went to the Chicago Central Police Headquarters, was searched and then given three five-dollar bills and five one-dollar bills. He was driven, together with police officers Pates, Paschal and Jamison, to an alley near Albany and Madison Streets. He left the automobile and went to Madison and Albany where he saw the defendant talking to two ladies in front of a tavern near the corner. Shelby said that after defendant got through talking to one of them, “I walks and catches up with him and tells him I knew a couple of friends of mine that used to be in the neighborhood. So he said, ‘Oh yes?’ I said, ‘Yes, I am trying to get me some narcotics, because I am sick.’ He said, ‘What you want to get?’ I said ‘Four bags.’ He said, ‘Well come on, go with me.'” Shelby then followed defendant into a currency exchange, a block down the street where, at defendant’s direction, he exchanged the marked money received from the police for a twenty dollar bill. He said defendant “gets the money” which the currency exchange “gives me back.” They proceeded over to the counter where defendant reached into a cigarette package and gave Shelby four tinfoil packages. They left the currency exchange and he saw defendant go down the street while he (Shelby) proceeded to the police vehicle. He gave Pates the tinfoil packages.

On cross-examination Shelby admitted being an addict for about ten to fifteen years; he took “hypo” injections; he was not “strung out right now”; he had taken heroin about three or four days before, and he acted as a police informer.

Pates testified that he remained in the car after Shelby got out at about 2:30 or 2:40 p. m.; that Jamison and Paschal went out for a “street surveillance”; that the currency exchange was about two blocks away; that Shelby returned to the car about 3:00 p. m. with four tinfoil packages of white powder which he field tested and found “positive”; and that with his two partners he proceeded west on Madison Street looking for the defendant. They saw defendant who was pointed out by Shelby as the man who sold him the narcotics. Pates called out, defendant broke and ran into a grocery store where the officer saw him take a red package and throw it to the floor. It was a Pall Mall cigarette package and contained three tinfoil packages. Defendant was then placed under arrest. It was about 3:15 p. m. The tinfoil packages were sent to the crime laboratory for testing. It was stipulated that the laboratory tests proved all of the packages contained heroin.

Officer Paschal testified that he left the car and followed Shelby, saw him talk to the defendant, and saw both men walk to the currency exchange. After a period of five or six minutes he observed them come out. The defendant walked east on Madison and Shelby returned to the car.

Defendant testified, and after outlining his activities for the day in question, placed himself at the Pekin Cleaners on Madison “later than 1:00 p. m.” He had an argument with some employees there concerning a coat he delivered there previously and which could not be found. He left the cleaner’s about fifteen or twenty minutes to three in the afternoon and proceeded to Harry’s grocery to do some shopping. He was about to pay for the “things he picked up” when he was apprehended by officer Pates. Pates told him he was arrested as a robbery suspect. “At this time he [Pates] gets on the floor and looks up under the man’s counter a few minutes, and I don’t know whether he come up with something or what, but when he did stand up he had something in his hand. He just put it in his pocket and there was no more said, nothing to me because I didn’t know what it was.” Defendant denied selling narcotics to Shelby or ever having narcotics in his possession.

Carrie Slaughter, called by the defendant, said she worked at the Pekin Cleaners and on the day in question saw the defendant there. She couldn’t give the exact time “but it was after 11:30 and before 3:30 p. m.” Defendant stayed for quite a while because they couldn’t locate his coat previously brought in to be cleaned. When asked how long he was in the cleaners she answered: “Fifteen or twenty minutes. Twenty minutes to a half hour, I imagine.” A few minutes after defendant left, a gentleman by the name of “Virgil” who was in the store at the time of the “argument” came back into the cleaners and told her that the gentleman who was there a few minutes ago was picked up.

We now consider defendant’s contention that the proof does not sustain the conviction of selling narcotics. Defendant claims that the testimony of Shelby, an admitted drug addict and police informer, who was the sole witness to the crucial sale, was unreliable and “not so clear, satisfactory and convincing as to remove all reasonable doubt of his guilt.” There was no corroboration of the informer’s version of what occurred within the currency exchange.

Defendant cites People v. Bazemore, 25 Ill2d 74, 182 NE2d 649 (1962) as supporting his argument. In Bazemore the informer, unaccompanied by the officers, who remained in a police car about a block away, walked to the vicinity of a pool hall and later returned with two tinfoil packets which were found to contain a derivative of opium. He said he had purchased them from the defendant with the money previously furnished by the police. The police, upon making a search of the area, found no trace of the defendant. Two months later the informer saw the defendant in the same vicinity and pointed him out to the same police officers whom he found seated in a police vehicle a short distance away. Defendant was apprehended at this time. No narcotics were found on his person, nor was any of the inventoried money ever recovered. The court said (p 77): “The credibility of witnesses and the weight to be afforded their testimony are essentially matters to be determined by the court or jury, as the case may be. And while we are loathe to disturb their findings in such matters, we cannot say after a searching analysis of the record that the entirely uncorroborated testimony of Lenier [the informer] is so clear, satisfactory and convincing as to remove all reasonable doubt of defendant’s guilt. This is not a case where the informer’s accusation receives corroboration from close police surveillance of the transaction, from an immediate arrest, or from the finding of marked money on the accused, but one which developed in such a way that the informer was at liberty to name almost any person he wished to select as the guilty one.” (Emphasis added.)

Defendant further contends that People v. Boyd, 17 Ill2d 321, 161 NE2d 311 (1959) supports this ground for error. In Boyd the state’s two principal witnesses were Andrews and Dantzler, admitted addicts and police informers. After reviewing the authorities regarding the weight to be given the testimony of a narcotic addict who is a police informer and applying the principles expressed therein to the facts in the case, the court reversed the conviction which was based solely upon the testimony of Andrews and Dantzler. In describing their testimony the court found:

Neither of the witnesses claim to have paid money directly to defendant [Boyd] or to have received narcotics directly from him. According to the testimony of both men, the money was paid to Groves [an alleged intermediary] and the narcotics were received from him. The only evidence in the record linking defendant with the sale is the testimony of Andrews that he heard defendant holler that the [marijuana] cigarettes were ready. . . . The whole case must therefore depend upon Andrews’s identification of defendant’s voice. Considering the fact that, even according to him, he had only heard defendant say four words prior to the time he allegedly said the cigarettes were ready, and further considering that his testimony as to hearing defendant speak in his presence conflicts with Dantzler’s testimony and the fact that both Andrews and Dantzler were police informers and narcotics addicts, we are of the opinion that the State’s testimony was insufficient to establish defendant’s guilt beyond a reasonable doubt. Pp 326, 327.

We, therefore, cannot consider either Bazemore or Boyd as dispositive of this issue before us.

In People v. Drumwright, 48 Ill App2d 392, 199 NE2d 282, (1964), the facts were somewhat similar to those in the instant case. The addict informer and defendant were within police surveillance the entire time except when they went up an alley into a hallway of a building where, the informer testified, the defendant took two tinfoil packages out of a cigarette package and gave them to him. This crucial exchange was not witnessed or corroborated by anyone. It was denied by the defendant. Defendant was arrested seventeen days later. After applying the principle that we would not substitute our judgment on the matter of credibility of witnesses and the weight to be given to their testimony unless we could say the proof was so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt, we affirmed the conviction, holding that:

[T]he fact that a witness is a narcotics addict and a police informer has an important bearing upon his credibility and, while his position, is not that of an accomplice, the situation is sufficiently similar to that of an accomplice, to warrant close scrutiny of such a witness, recognizing the fact that habitual users of narcotics become notorious liars and that their testimony is likely to be affected thereby [citing numerous authorities, including Bazemore and Boyd]. However, it does not necessarily follow that the testimony of an addict informer must be disbelieved [citing authorities]. The test, in such cases as this, is not whether an addict informer’s testimony is uncorroborated, but whether his testimony is credible under the surrounding circumstances. Drum-wright, pp 896, 397.

In the case at bar the defendant was identified and associated with the informer except for the five or six minute period while they were in the currency exchange, and he was apprehended almost immediately thereafter in possession of other narcotics. We believe the facts and circumstances to be more incriminating than those in Drumwright and we repeat what we said therein:

It was not necessary that the officer actually see the transfer. Whatever infirmities attend the uncorroborated testimony of an addict informer so as to require it to be subject to close scrutiny and suspicion, the jury [the trier of the facts] here could have properly considered by accepting the fact that Clayton’s [the informer’s] testimony was corroborated by the officers who had close surveillance of him, but for the actual transfer of the narcotics. The circumstances in connection with the said actual transfer were strong and credible and it was for the jury to believe or disbelieve. Pp 397, 398.

For this reason we find that the defendant’s conviction upon the charge of selling narcotics was not erroneous.

Next we consider defendant’s contention that Shelby’s testimony introduced sufficient facts suggesting entrapment, and that therefore there could be no conviction. Although this issue was not raised at the trial level, defendant argues that it need not be specially pleaded or relied upon exclusively because it was clearly suggested in the trial court. Defendant relies upon People v. Strong, 21 Ill2d 320, 172 NE2d 765 (1961). Strong, in disposing of the state’s contention that the defense of entrapment was not raised during the trial and could not therefore be raised on appeal, held this argument not well taken because facts suggesting entrapment were presented in detail at the trial and defense counsel raised the point in his closing argument. Be that as it may, Strong, in discussing this subject held that:

[I] f it appears that officers of the law or their agents incited, induced, instigated or lured the accused into committing an offense which he otherwise would not have committed and had no intention of committing, and if a criminal design or intent to commit the offense originates in the mind of one who seeks to entrap the accused and who lures him into the commission merely for the purpose of arresting and prosecuting him, entrapment is established and no conviction may be had. . . . Entrapment, defined as the “conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer,” is a valid defense [citing authority]. The question then is whether the defendant was induced to perform an unlawful act or whether he was apprehended by lawful artifice in the execution of a criminal act of his own conception. [Emphasis added.] Strong, p 324.

The facts in the cause before us clearly indicate a method or procedure customarily used in the apprehension of those engaged in this nefarious trade. The apprehension of the defendant was by lawful artifice and occurred when the defendant was in the execution of a criminal act of his own conception. We, therefore, find no basis for the claim of entrapment.

Finally, defendant attacks the conviction for possessing narcotics because it rests solely upon the uncorroborated testimony of officer Pates and is denied by him. The trial court accepted the officer’s testimony as credible and convincing. We cannot say that it is improbable, unconvincing or unsatisfactory or that it fails to establish the guilt of the defendant of this offense beyond a reasonable doubt.

We affirm the convictions entered by the trial court.

Affirmed.

MURPHY and BURMAN, JJ., concur.