author: MR. PRESIDING JUSTICE MURPHY

text:
    M. A. Lipschultz, Plaintiff-Appellee, v. So-Jess Management Corp., an Illinois Corporation, Defendant-Appellant.
    Gen. Nos. M-51,780, 52,061, 52,062.
    First District, First Division.
    November 27, 1967.

      Affirmed.
    George B. Collins, of Chicago, for appellant.
    Weinstein, Myer and New, of Chicago (M. J. Myer and Arthur Berlin, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff confessed judgment on a lease for rent which accrued after defendant had vacated the leased premises. The trial court opened the judgment to permit the defendant to assert its defense of constructive eviction and, after a non jury trial, confirmed the judgment. Defendant appeals. Appeals Nos. 52,061 and 52,062, which involved judgments for subsequent rent accruals, have been consolidated with the instant appeal for disposition.

On appeal, defendant contends (1) the plaintiff was guilty of the first breach of contract of lease, and cannot, therefore, enforce the provisions of the contract which he first breached; (2) the trial court erred in admitting settlement correspondence and in considering the motives of defendant in terminating the tenancy; and (3) there was a complete failure of proof because the lease was not introduced into evidence and the amount due thereon was not proved, and this requires a new trial.

Plaintiff contends (1) the defendant failed to prove acts or circumstances constituting a constructive eviction ; (2) the defendant did not vacate the premises with diligence and failed to establish a causal connection between the conditions alleged and the abandonment; and (3) plaintiff was not compelled to prove either the lease or the rent claimed.

The lease, dated December 7, 1962, covered the entire third floor of a building at 178 West Randolph Street, Chicago. It was for a term of two and one-half years, commencing February 1, 1963, and ending July 31, 1965. The use specified in the lease was “offices in connection with the insurance business of the Lessee.”

A rider attached to and made a part of the lease included :

“22. Lessor will level and install asphalt tile floors of a color to be selected by Lessee.”

and

“26. Lessor will install the necessary duct work and a package heating and air conditioning unit with thermostatic control on the premises of the Lessee. This unit will be connected to the electrical system of the Lessee, and all maintenance and repairs to this system will be borne by the Lessee.”

Defendant vacated the premises on November 30, 1964, and the instant judgment by confession was entered on January 6, 1965. The complaint shows that it was for rent for the months of December 1964 and January 1965.

The motion of defendant to open the judgment and defend was supported by an affidavit of Sheldon Strongin, its president. In part, the affidavit stated that notice was given to plaintiff on February 27, 1964, and April 2, 1964, that “the asphalt tile floorings” were in need of repair; that on August 13, 1964, September 24, 1964, and October 12, 1964, letters were written informing plaintiff “of the necessity to vacate the premises because of inadequate heating and air conditioning and continuing unsafe and hazardous condition of the flooring which plaintiff had heretofore assured defendant was repaired”; and that on December 3,1964, “defendant again wrote to plaintiff’s agent and indicated that because of the heretofore named unsafe flooring and heating problems, it had vacated the premises which are the subject matter of this lease on December 1,1964.”

At the trial on the merits, the court properly ruled that the burden of proof was on the defendant. The witnesses for the defendant consisted of its president and a general contractor who visited the premises during the period in question. The witnesses for plaintiff consisted of the building manager and the general contractor who had subcontracted the work for the installation of the tile floor and the ventilating system.

The testimony showed that an asphalt material called “underlayment” was poured over the uneven oak floor to provide a level base, on top of which the tile was laid, and that lessor installed a self-contained ventilating system for circulating warm or cool air.

As to the floor, defendant’s president testified that after a few months’ occupancy, the tile disintegrated over large areas, and defendant put up obstacles so that people wouldn’t trip over broken tile. Defendant’s contractor testified that the floor installation was faulty, and the floor was falling apart.

Plaintiff’s building manager testified that about a year after defendant moved in, a hole in the floor, one inch deep and three-quarters of an inch around, was repaired. He stated, “The other tiles on the floor were in pretty sad shape; there seemed to be ridges in the tile.”

Plaintiff’s contractor testified that early in 1964 he saw two areas in which the tile was broken, with pieces missing. The larger area could not have exceeded three square feet, and the smaller was less. The balance of the floor showed ridges and ordinary wear and tear. While on the premises of defendant, he saw filing cabinets with casters or small steel wheels being moved about the office. He stated this would cause deterioration of the asphalt tile.

As to the heating and air conditioning, plaintiff’s manager admitted receiving complaints from defendant about heating but not about the air conditioning. In the winter of 1963, he visited the premises and saw the rheostat read 68°. He turned it up to 75° and left. He did not recall receiving oral complaints after that.

Defendant’s contractor testified that there was a 5-ton Fedders air conditioning unit on the third floor, and the blower on the unit was too small to adequately distribute the flow of warm or cold air. Plaintiff’s contractor testified, “In my opinion, based upon my experience, the unit’s capacity, distribution system, input, fresh air intake, was and is sufficient for the size and type of premises in question. I had occasion to visit the premises after the unit was installed.”

A series of letters were admitted into evidence as plaintiff’s exhibits 1 through 6. Defendant objected to exhibits 3, 4 and 6. Exhibit 1, dated August 13, 1964, was a letter from defendant to plaintiff, which states: “A situation has arisen which necessitates the surrendering of our space in the above caption quarters. Although our lease runs until June 30, 1964 [July 31, 1965], we will probably vacate on or about October 30, 1964. Therefore, I wish to know as to your attitude on the possibility of subleasing on your part of said space and or a settlement of our existing lease with you on a compromise basis.”

Exhibit 2, a letter from plaintiff to defendant, dated August 18, 1964, acknowledges exhibit 1 and states plaintiff had no objection to subletting the premises to a qualified tenant, and that although plaintiff had other unrented space, plaintiff would list defendant’s space with other brokers and show the space to prospective tenants.

Exhibit 3, a letter from defendant to plaintiff, dated September 24, 1964, states: “Since we will no longer have need for the third floor space at 178 W. Randolph after November 1, it would be desirable for us to try to work out a settlement on the balance of our lease and release said space to you for re-rental. Kindly let me know as to a settlement figure which would be reasonable within your own gracious perspective.”

Exhibit 4, a letter dated October 8, 1964, from plaintiff to defendant, acknowledges receipt of exhibit 3 and states: “[I]f we could find a prospective tenant we would be glad to work out some arrangement with you.”

Exhibit 5, a letter from defendant to plaintiff, dated October 12, 1964, states: “In answer to your letter of October 8, 1964, I have a suggestion that we settle the lease we have on your third floor at 178 West Randolph for the amount equal to $3,500. I feel that upon said settlement, we shall release said space to you for releasing. Any rent should be profitable to you on the overall picture and yet reduce our obligation on space which we have no further need for whatsoever. . . . The decision to surrender this space has come about because of inadequate heating and air conditioning sufficient to keep full crew functioning in 100% of space for business purposes, and further, the continuous unsafe and hazardous condition of the floor which has caused personnel of our company personal injury even after frequent requests by this company informing you of the condition of said floor and demands that you put it in safe condition.”

Exhibit 6, a letter dated October 28, 1964, from plaintiff to defendant, in answer to exhibit 5, states: “. . . your offer of $3,500.00 for settlement of the lease would not be adequate.” Also, “If you have a valid complaint it will be fully taken care of at this time, just as it has always been taken care of in the past. Never once during the term of this lease has there been a single question raised concerning inadequate heat or air conditioning. It is true that you have complained several times about the floor covering, and it has been pointed out to you, and we have agreed to bring in a building inspector as originally suggested by you, to unquestionably prove the fact that the floor covering is simply being worn out by hard usage and should be replaced by you, the tenant.” Initially, we find no merit in defendant’s contention that there was a complete failure of proof because the lease was not introduced into evidence, and the amount alleged to be due thereon was not proved.

The record shows a copy of the lease and its riders was attached to the complaint. In the complaint it was alleged that the lease was executed by the defendant, and that the rent accruing on the lease for the months of December 1964 and January 1965, amounting to $1,620, was due and unpaid. Defendant, in its motion and affidavit to vacate the judgment, did not deny the lease or the accrued rent and used provisions of the lease as the basis for an affirmative defense.

No offer or proof of the lease or accrued rent was necessary. Section 36 of the Civil Practice Act provides that when a written instrument on which a claim or defense is founded is attached to a pleading as an exhibit, “the exhibit constitutes a part of the pleadings for all purposes. No profert is necessary.” Also, in Peters v. Peters, 376 Ill 237, 33 NE2d 425 (1941), it is said (p 240):

“It is unnecessary to introduce evidence to prove facts admitted by the pleadings. ... In this case, the complaint having alleged in general terms the contents of the will, and so described it as to afford positive identification, alleged its probate, and attached a copy thereof to the complaint, all of which allegations were admitted by the answer, it was not necessary to make proof of the instrument by offering it in evidence.”

Considered next is defendant’s contention that the trial court “erred in admitting settlement correspondence, and in considering the motives of defendant in terminating the tenancy.” This contention refers to exhibits 3, 4 and 6, which were admitted over defendant’s objection. Authorities cited in support include Hill v. Hiles, 309 Ill App 321, 32 NE2d 933 (1941), where it is said (p 331):

“The Illinois courts have consistently refused to permit evidence of mere offers and negotiations for settlement to reach the jury on the ground that public policy favors the settlement of claims outside of court.”

Plaintiff argues that exhibits 1 through 6, read as a series, eompellingly illustrate that the condition of the premises was not the motivating factor in the defendant’s decision to abandon them.

We agree with the basic premise that evidence of offers and negotiations for settlement are ordinarily inadmissible. Nevertheless, we believe these exhibits come within the rule set forth in Nelson v. Union Wire Rope Co., 31 Ill2d 69, 199 NE2d 769 (1964), where the court said (p 115):

“As a general rule any statement, written or not, made by a party or in his behalf which is inconsistent with his present position may be introduced in evidence against him.”

These letters, as a series, were relevant to the subject matter of the suit and, although they discussed settlement of the unexpired portion of the lease, they contained statements of defendant which were inconsistent with its claim of constructive eviction. We find no error here.

Finally, we consider defendant’s basic and determinative contention that “the plaintiff was guilty of the first breach of the contract of lease, and cannot, therefore, enforce the provisions of the contract which he first breached.”

In support of its contention that plaintiff cannot “enforce the provisions of the contract which he first breached,” defendant cites Rice v. Fidelity & Deposit Co., 103 F 427 (1900), in which the court said (p 433):

“He who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for a subsequent failure to perform.”

Also, Norrington v. Wright, 115 US 188 (1885), is cited to show that “a party in breach of the first portion of a divisible contract could not enforce performance of the portions of the contract as to which there had been no breach, even if the first breaching party performed properly after the first breach.”

Defendant argues, “Although these cases are not lease cases, they do involve bilateral contracts, and ‘an ordinary lease is a partly bilateral contract.’ Williston, Contracts, 3rd Ed, Section 890, p 580.”

Defendant also cites a number of “lease cases” to show that “the modern cases have construed the doctrine of ‘constructive eviction’ so that it amounts to an application of the ordinary contract rule that a party cannot have the right both to breach and to enforce at the same time. This landlord did not comply with the terms of his complex printed lease with its complex riders, and should not have been permitted to enforce, selectively, one of the promises of the lease without fulfilling the other promises of the same lease. The evidence is not in any substantial conflict on the two basic breaches of the lease by the landlord, and the result could only have come from an erroneous view of the law on the part of the trial magistrate.”

As we view this record, a discussion of defendant’s authorities on the effect of the first breach in a contract is unnecessary. The Illinois decisions involving “constructive eviction” adequately encompass the effect of a first breach and its waiver. The “constructive eviction” guidelines set forth in Automobile Supply Co. v. Scene-in-Action Corp., 340 Ill 196, 172 NE 35 (1930), apply here. There it is said (p 201):

“. . . any act of the landlord which renders the lease unavailing to the tenant or deprives him of the beneficial enjoyment of the premises constitues a constructive eviction of the tenant, which exonerates him from the terms and conditions of the lease and he may abandon it. . . .
“Not every act of a landlord in violation of his covenants or of the tenant’s enjoyment of the premises under the lease will amount to a constructive eviction. ... To constitute an eviction there must be something of a grave and permanent character done by the landlord clearly indicating the intention of the landlord to deprive the tenant of the longer beneficial enjoyment of the premises in accordance with the terms of the lease. . . . The failure of a landlord to furnish heat for the demised premises in accordance with the terms of his covenant in the lease justifies the tenant in removing from the premises, and if he does so he is discharged from the payment of rent thereafter. . . . Whether the acts of the landlord amount to a constructive eviction is ordinarily a question of fact for the decision of a jury, depending upon the circumstances of the particular case.”

Also, in Gibbons v. Hoefeld, 299 Ill 455, 132 NE 425 (1921), it is said (p 464):

“We do not understand the law to be that an omission of duty by the landlord which has the effect of depriving the tenant of the enjoyment of the demised premises must be shown to have been with the intent that such should be the effect of the omission. Whether the landlord intended that result could not, it seems, in reason be a determining factor if he willfully refused to fulfill his promise or so negligently performed it that what he did was of no benefit in protecting plaintiff in error in the enjoyment of the demised premises.”

The issue of whether plaintiff breached the lease by installing a defective floor and an inadequate ventilating system was a question of fact for the decision of the trial court and depended largely upon contradictory evidence. This court is bound by the rule that where the trial court has seen and heard the witnesses and the testimony is contradictory, the reviewing court will not substitute its judgment as to the credibility of witnesses for that of the trial court and will not disturb the findings unless they are manifestly against the weight of the evidence. (Ezydorski v. Krozka, 31 Ill App2d 79, 175 NE2d 668 (1961).) In order for a decision of the trial court to be contrary to the manifest weight of the evidence, where the evidence is conflicting, an opposite conclusion must be clearly apparent. Olin Industries, Inc. v. Wuellner, 1 Ill App2d 267, 271,117 NE2d 565 (1954).

After examining the evidence offered by both sides, we believe the agreement of the plaintiff to install the asphalt floor and ventilating system carried with it the obligation to make such installations in a manner reasonably suited for defendant’s purposes — the maintenance of an insurance office. Conceivably, the failure to install and maintain a floor, which deprived defendant of the beneficial enjoyment of the premises, could be considered “something of a grave and permanent character.” However, if defendant’s use of the floor was unreasonable and materially caused its deterioration, it could not be fairly found that plaintiff substantially breached the lease in that respect.

Defendant’s evidence that the air conditioning system was inadequate does not appear to be conclusive. Also, the lease provided that the “maintenance and repairs to this system will be borne by the Lessee.”

We conclude that on the record before us, an opposite conclusion to that of the trial court is not clearly evident; therefore, the judgment should be affirmed.

For the reasons given, the instant judgment and the judgments in Appeals Nos. 52,061 and 52,062 are affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Carroll E. Swan and Christine P. Swan, Plaintiffs-Appellees, v. Allstate Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 51,970.
    First District, First Division.
    November 27, 1967.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (John J. Moelmann, Karl M. Tippet, and John J. Kirkland, of counsel), for appellant.
    Erwin M. Pearl, of Chicago, for appellees.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

After a non jury trial, the court ordered the reformation of an automobile insurance policy issued by defendant, so as to include in plaintiffs’ coverage “bodily injury benefit insurance,” also known as “Uninsured Motorist Coverage.” Defendant Allstate appeals on the theory that plaintiffs “totally failed to prove any mutual mistake of fact by any evidence.”

The policy in question was issued by Allstate to plaintiff Carroll E. Swan for the period from September 11, 1962, to September 11, 1963. On July 27, 1963, plaintiffs were involved in an automobile collision with an alleged uninsured motorist. Plaintiff Swan called Allstate to make a claim and was told that he did not have uninsured motorist coverage.

The complaint alleges that the policy was issued on September 11, 1962, and “plaintiffs were informed by the defendant, through its agents and servants, that he and his insured relatives were insured for injuries incurred in a collision with an uninsured automobile up to $10,000.00 for one person and $20,000.00 for more than one person. That plaintiff had such coverage in policies previously issued to him by defendant, requested the same coverage when the policy Exhibit ‘A’ was ordered and was assured by the agent and servant of defendant that such policy would be issued containing such coverage. That when plaintiff received the policy Exhibit ‘A’ he observed that such coverage was provided for in the policy and thereafter operated his automobile believing that he had such coverage.”

In its answer, defendant admits the issuance of the policy but denies that the policy contained “Uninsured Motorist Coverage” and further “denies that the plaintiffs were informed by the defendant, through its agents and servants, that the plaintiff and his insured relatives were insured for injuries incurred in a collision with an uninsured automobile . . . .”

Defendant also admits in answers to interrogatories that previous to the ordering of the instant policy, plaintiffs were insured by defendant from May 30, 1960, to June 30,1961, and that the policy included uninsured motorist coverage. The interrogatory answers further show that defendant had a record of the contents of the 1960 policy, and that when plaintiff executed the “Request for Service” form (an application form) on September 11, 1962, an employee of defendant examined its records “as to any automobile insurance policies previously in effect with defendant on said plaintiff’s automobiles,” but that prior to or after the issuance of the instant policy, no one on behalf of defendant informed plaintiff Swan that he did not have uninsured motorist coverage under the instant policy.

At the trial, plaintiff testified that on September 11, 1962, he applied for insurance at an Allstate desk in a shopping center and talked with a “Mr. Hilgenberg.” “I told him I wanted insurance on my automobile, and I told him I had insurance with Allstate previous, and I wanted him to check back and give me the same thing, that I had complete coverage including uninsured automobile coverage.” Hilgenberg replied, “You will be taken care of. You will be completely covered,” and proceeded to fill out the form. “He put all the writing on the form, putting in the information that I gave in response to the questions. ... I got the policy through the mail a week or two later. ... I looked at the premium and I looked through the policy booklet and seen the rider attached with the Non-insured automobile coverage. I just assumed that I had it, and I paid the premium. When I say the rider with the Non-insured motorist coverage I am referring to the amendatory endorsement which speaks of uninsured automobiles. I looked at it and thought I had the coverage because it was countersigned by the agent, Hilgenberg.”

Defendant’s witness, John D. Hilgenberg, an insurance agent for Allstate Insurance Company for a number of years, testified that the “Request for Service” was in his handwriting, and the document did not refresh his memory as to any conversation he had at that time. He followed a routine practice in filling out the application made in triplicate — “One goes to our Skokie underwriting office. Two, is the insured’s copy, and three is our audit copy. We would receipt at the bottom of the application any money that the transaction would bring about. We would tear the second copy out. Here again, it would be turned around, placed on the counter, and each individual coverage is gone over, with the total annual premium for the coverage at the bottom of the application. ... In taking applications over the counter in 1962, I did not vary from the customer practice that I just described. The customer gets a copy of this application. I go over each coverage with him. In September, 1962, uninsured motorist coverage was offered to the public by Allstate. It was offered to anyone who wanted to apply it in the liability and property damage. Plaintiffs’ Exhibit 5 [the application] truly and correctly demonstrates the coverage applied for by Mr. Swan.”

On cross-examination, Hilgenberg stated he did not remember plaintiff Swan, and that “we would have had to ask Mr. Swan what kind of coverage he wants. I don’t know whether I asked Mr. Swan what type of coverage he wanted. Plaintiffs’ Exhibit 5 has a list of all the coverages. There is no place on Plaintiffs’ Exhibit 5 where the words ‘uninsured motorist coverage’ are printed. The words ‘uninsured motorist coverage’ do not appear on this form. The average person would not know if he had uninsured motorist coverage the way it is worded. He would have to ask me to explain it. I don’t remember whether I explained it to Mr. Swan. I don’t remember if I called the Allstate office and asked for any information on his history.”

Defendant contends that before a written agreement can be reformed, there must be a mutual mistake of fact based upon clear and convincing evidence. Defendant cites Christ v. Rake, 287 Ill 619, 122 NE 854 (1919), where it is said (p 622):

“Where contracting parties have reduced their agreement to writing it is presumed to express their mutual intention, and that presumption does not yield to any claim of a different intention unless the evidence of a mutual mistake is of a strong and convincing character. A written instrument will not be reformed on the ground of mistake unless the evidence that it does not express the intention of the parties is such as will strike all minds alike as being unquestionable and free from reasonable doubt. The remedy of reformation on account of an alleged mistake is never granted upon a probability nor upon a mere preponderance of the evidence but only upon evidence amounting to a certainty.”

Defendant also cites Hyman-Michaels Co. v. Massachusetts Bonding & Insurance Co., 9 Ill App2d 13, 132 NE2d 347 (1956), where the court said (p 20):

“In analyzing the evidence we have in mind that in a suit to reform a written contract, a plaintiff is not merely seeking to rescind or avoid the contract but is seeking to enforce a contract different from that which he has signed. He must therefore be able to point to the contract he intended to make. Moreover, he must prove a like intention on the part of the defendant. In other words, both defendant and plaintiff must have had the intention to make the same contract, but failed to do so by each making the same mistake.”

And at page 26:

“In cases where reformation has been allowed there has been a clear showing of what the plaintiff intended to procure and of the defendant’s knowledge of that intention, either by express directions from the insured or by knowledge of circumstances wholly inconsistent with the provisions of the policy.”

Defendant argues that there is no showing of a mistake on the part of Allstate, and there is no evidence whatever that Hilgenberg was under a misapprehension as to what coverage was being purchased, and he followed his usual custom in filling out the application. Defendant asserts that plaintiff was the only person mistaken, and no premium was paid for the uninsured motorist coverage, and by accepting the policy plaintiff became bound by its terms and cannot plead ignorance of its contents. Defendant notes that plaintiffs had possession of the policy for ten months before they discovered that they did not have uninsured motorist coverage, during which period of time plaintiff Swan came into the store and cancelled coverage on one of the two cars covered by the policy. In support, defendant cites Pollock v. Connecticut Fire Ins. Co., 362 Ill 313, 199 NE 816 (1936), where the court said (p 320):

“Unless he has been misled by some act of the insurer, it is generally held that a person who accepts and retains the possession of an insurance policy is bound to know its contents.”

Plaintiffs contend, “Where through the mistake of an authorized agent of the insurance company an insurance policy fails to include coverage bargained for by the insured, a Court of Chancery has the power and duty to order reformation of the policy.” Plaintiffs argue that the evidence is uncontradicted that plaintiff requested Hilgenberg to have the policy include “uninsured motorist coverage,” and to check previous policies issued to plaintiff which had that coverage. Plaintiffs assert that Hilgenberg neglected to check back as requested, and defendant’s employee who examined the file for previous policies also neglected to inform Hilgenberg or plaintiff that the policy contained that coverage and, therefore, defendant is estopped to deny the coverage.

Plaintiffs’ authorities include Beddow v. Hicks, 303 Ill App 247, 25 NE2d 93 (1940), where the court said (P 257):

“Where an agent is authorized to act, and through his mistake or fraud, the policy fails to express the real contract between the parties, or, if by inadvertence, negligence or mistake of the agent, provisions other than those intended are inserted, or stipulated provisions are omitted, there is no doubt as to the power of the court of equity to grant relief by reformation of the contract.”

Plaintiffs also contend that “parol evidence is admissible to show the real intention of the parties when the original written contract does not accurately express the intention of the parties. Uncontroverted testimony of plaintiff indicates he did not receive the coverage for which he bargained.” On this point, plaintiffs’ authorities include Brosam v. Employer’s Mut. Cas. Co., 61 Ill App2d 183, 209 NE2d 350 (1965), where the court said (p 189) :

“There is no doubt that parol evidence is admissible to show the real agreement between parties when a mistake has been made in the written contract and the evidence is for the purpose of making the contract conform to the original intent of the parties.”

Plaintiffs also argue that “where a person accepts and retains an insurance policy he is not bound by its terms in a case where reformation of the policy is proper.” Cited in support is Stoltz v. National Indemnity Co., 345 Ill App 495, 104 NE2d 320 (1952), where the court said (p 501):

“Defendant further contends that a person who accepts and retains possession of an insurance policy is bound to know its contents and cites in support thereof the cases of Pollock v. Connecticut Fire Ins. Co., 362 Ill 313; and Capps v. National Union Fire Ins. Co., 318 Ill 350. In each instance the cases cited by defendant were actions at law on a policy to collect for a loss sustained and involved the construction of the insurance policy. This rule does not apply to an equitable proceeding for reformation and the insured’s mistake in failing to discover the terms of the policy is not negligence as a matter of law.”

See, also, Hyman-Michaels Co. v. Massachusetts Bonding & Insurance Co., 9 Ill App2d 13, 132 NE2d 347, where the court said (p 24):

“It is true that courts . . . have held that failure to read a policy does not bar a suit to reform.”

After examining this record in the light of the foregoing authorities, we believe plaintiff Swan’s testimony reflects a clear showing of what the plaintiff intended to procure and of defendant’s knowledge of that intention, manifested by the express directions of the insured. It is admitted that agent Hilgenberg was authorized by defendant to prepare and accept plaintiff’s application for automobile insurance. In the absence of his recollection of his conversation with plaintiff in connection with the preparation of the application, plaintiff’s testimony that he stated he wanted “complete coverage including uninsured motorist coverage,” and Hilgenberg’s reply, “You will be taken care of. You will be completely covered,” stands unrefuted. In corroboration of plaintiff’s testimony, it is admitted that plaintiff had a previous policy issued to him by defendant, which did include “Uninsured Motorist Coverage.”

We also note that at the conclusion of the evidence, and in announcing his finding, the trial judge said: “The testimony by the Plaintiff is that he told the agent he wanted the same coverage that he had before. The agent didn’t refute it. He says, T don’t remember what the conversation was.’ He had a right to believe that he would get the same coverage. Consequently, the finding is for the Plaintiff.”

We believe this case comes within the rule that “a reviewing court will not substitute its judgment as to the credibility of witnesses for that of the trial court, unless the findings are manifestly against the weight of the evidence. Where a cause is heard by a chancellor without a jury, his conclusions on facts are entitled to the same weight as a jury verdict.” (Brown v. Zimmerman, 18 Ill2d 94, 102, 163 NE2d 518 (1959).) As we cannot say, as we must in order to reverse this order of reformation, that an opposite conclusion is clearly evident, the order of the trial court is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    Ann Arden, Plaintiff-Appellee, v. Chicago Transit Authority, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,053.
    First District, First Division.
    November 27, 1967.

      George J. Schaller, O. R. Hamlink, Jerome F. Dixon, and Chester A. Wynne, of Chicago, for appellant.
    Perry M. Berke, Earl Deutsch, and R. C. Sommers, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Ann Arden, plaintiff, brought this action against the Chicago Transit Authority to recover damages for personal injuries sustained by her when she fell while descending one of defendant’s stairways leading to one of the platforms of defendant’s elevated railway. She alleged generally that the fall resulted from the negligence of defendant in connection with the maintenance, operation and control of the stairway which was owned and maintained by the defendant. The jury returned a verdict for plaintiff in the amount of $30,000 upon which the trial judge entered judgment from which this appeal is taken. No questions are raised on the pleadings.

The issues raised on appeal are whether a verdict should have been directed in favor of defendant by the trial court at the close of all the evidence (ruling upon which was reserved by the court), and whether defendant’s motion for judgment non obstante veredicto should have been granted upon the grounds that the evidence disclosed that defendant was not guilty of negligence as a matter of law and, if it cannot prevail on this theory, the defendant contends that a new trial should be granted to it because the verdict was against the manifest weight of the evidence.

The Wabash-Madison station of the Chicago Transit Authority, where the accident in question occurred, had a mezzanine level where people would pay their fares on the way up to the train platforms. There are stairways leading from the mezzanine level to the platform level. There are two sets of tracks and platforms at this station, one on the east side and one on the west side. The Ravens-wood train stops at this station. The time of day determines whether the Ravenswood train leaves from the east or west platform; only northbound trains stop at either platform. Before 6:00 p. m. or 6:15 p. m. the Ravenswood train is boarded on the east platform. After that time, passengers can only board the train on the west platform. At the time of the accident a sign had been posted by the C. T. A. pointing to the stairs leading to the east platform which said: “Ravenswood”; however, there was no indication on this sign as to the times at which the Ravens-wood train could be boarded at the designated platform. When the time came for the Ravenswood train to switch from the east tracks to those on the west side of the station a gate or chain would be put up that would block the entrance to the stairs leading to the east platform.

Plaintiff testified that she would use the elevated train at Wabash and Madison about two or three times a month. On August 3, 1959, she arrived at the elevated station at around 6:00 p. m. She walked up the stairway of defendant’s premises to the cashier’s window on the mezzanine floor, paid her fare, and then walked up the stairs leading to the east platform in accordance with the Ravenswood “L” sign which pointed to the east platform. Plaintiff testified further that after waiting about ten minutes she noticed a Ravenswood “L” going north stopping on the west platform to take on passengers. She stated: “I was kind of surprised and stood there for a moment and didn’t know what to do. When I thought I’d go down and ask the cashier whether or not the els are running on the West side of the street ... I decided to go down the stairs. As I turned toward the stairway, I was taking a step down and reaching for the rail on the left side to hold on, and I stepped on something that moved my foot.” She testified that the object she slipped on was “soft” and “wet” it was like “part of a newspaper.” Plaintiff further testified that as she walked up the same stairs earlier she had noticed debris on the stairs, but had paid no attention to it. She described the debris as consisting of stubs, cigarette butts, and paper. The lighting of the stairs she described as being dim and dark. The plaintiff did not remember if she was carrying a package at the time of the fall.

Blanche Vaun testified that she had seen the plaintiff on the platform before the occurrence. She heard a scream and saw the plaintiff at the bottom of the stairs lying on her back. She went down the stairs, which she said were dimly lighted, and offered to aid the plaintiff. On cross-examination she said that the plaintiff was carrying a purse. She did not recall that plaintiff had been carrying a package at the time of the accident.

Ernest Herring, a porter at the Madison-Wabash station, testified that his duties at the station were to clean stairs, sweep floors and platforms, and generally keep the station clean. He worked from 7:00 a. m. to 3:30 p. m., and another porter would not arrive at the station until about 8:30 p. m. He testified that no one attempted to clean the stairs and platform during the rush hour because there were “. . . too many people on the platform at that time. . . .” The type of debris which he generally found on the stairs of the station consisted of cigarette butts, gum wrappers and things of that kind. Herring testified that he would on occasion find newspapers on the stairs, but as far as he could recall there were no newspapers on the stairs the last time he examined them at around 3:30 p. m. on the day of the accident.

An electrical engineer at Chicago Transit Authority testified that in August of 1959 the lights on the stairway in question were 36 watts. In August of 1960 a change was made from the 36-watt lamps to 56-watt lamps. The engineer testified that the purpose of the change was to provide more illumination on the stairs. William Mahoney, a retired ticket agent for the C. T. A., who was on duty as an agent at the time of the accident, testified that he went to the aid of the plaintiff after her fall. He stated that at the time of the accident the lights on the stairway were functioning, that they weren’t “extra bright,” but they were bright enough so that one could see the stairway. He further testified that he didn’t see any debris on the stairs.

James Rogers, who was fourteen years old at the time of the occurrence, testified that as he was walking up the stairway to the ticket office on the mezzanine floor he saw the plaintiff descending the stairs from the east platform. “She had a package in her hand and as she got I’d say about a quarter of the way down the stairs, she dropped this package and she reached for it and lost her balance and fell.” He further testified that he didn’t see any litter on the stairs. Rogers testified that after the plaintiff fell he purchased a ticket and took a Ravenswood train northbound from the east platform of the station. He stated that the sound of the package hitting the steps was the first thing that called his attention to the presence of plaintiff.

The defendant claims that no “evidence was introduced at trial by the plaintiff whereby liability could be imposed upon it as a matter of law”; and, therefore, the court erred in not directing a verdict at the close of all of the evidence, ruling upon which was reserved. “The court also erred in not granting defendant’s motion for judgment notwithstanding the verdict.” A trial judge applies the same standards in determining whether to grant a directed verdict as he does in deciding whether to grant a motion for judgment notwithstanding the verdict. Nutwood Drainage and Levee Dist. v. Mamer, 10 Ill2d 101, 112, 139 NE2d 247. “. . . verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & E. R Co., 37 Ill2d 494, 229 NE2d 504.

Specifically, defendant contends that the failure of defendant to bar access to the east platform was not the proximate cause of plaintiff’s injury; and, in order for the plaintiff to recover, she must show that the defendant’s negligence proximately caused or contributed to the injuries sustained in the fall. It argues that its role in the misdirection of the plaintiff to the east platform at the most created a condition that provided an opportunity for other causal agencies to act, and that it cannot be responsible for injury caused by the negligent acts of third parties. The defendant contends that as a matter of law insufficient evidence was introduced by the plaintiff to show that its misdirection of plaintiff was the proximate cause of the injuries sustained in the fall.

In her complaint the plaintiff alleged that she was injured as a direct and proximate result of one or more of the following wrongful acts of the defendant; (1) that the defendant negligently maintained, operated and controlled its station and stairway; (2) the defendant permitted and allowed the stairway to be littered with debris; (3) the defendant failed to provide the stairway with sufficient lighting under the circumstances so that the plaintiff could use the stairway with reasonable safety; (4) the defendant failed to give to the plaintiff reasonable warning that the east platform was closed for the northbound Ravenswood train and that all northbound trains would have to be boarded from the west platform; and (5) that the defendant failed to block access of passengers to the east platform by the use of gates after the hour when the northbound elevated trains switched to the west track.

It was not necessary for the plaintiff to prove each of the aforementioned charges in her complaint in order for her to hold the defendant liable for damages. Arado v. Epstein, 323 Ill App 194, 55 NE2d 561. We express no opinion as to the sufficiency of the evidence adduced by plaintiff to prove the charge that defendant’s misdirecting her was the proximate cause of her injuries; this issue is not dispositive of our decision on this appeal. We point out, however, that this evidence was properly considered by the jury. Swift & Co. v. O’Brien, 127 Ill App 26. It was but a link in a connected chain of events and considered alone was not the determinative evidence on the question of proximate cause.

The determinative issue on this appeal is raised by defendant’s contention that as a matter of law it was not liable for the presence of any debris on the stairs that might have accounted for the fall of the plaintiff. Defendant relies primarily upon the case of Davis v. South Side R. Co., 292 Ill 378, 127 NE 66. In that case plaintiff had disembarked from defendant’s elevated railway train and while descending defendant’s stairs within the station slipped on a banana peel, fell, and was injured. The Illinois Supreme Court reversed and remanded a judgment entered for plaintiff. The court held in Davis that the railroad could only be held liable for injuries brought about by refuse dropped by third parties when the railroad had actual notice or constructive notice of the presence of the debris prior to the accident. The court stated that if evidence had been introduced to show that the railroad company had actual or constructive notice of the presence of the banana peel a verdict against the company might have been justified, but evidence bearing on the issue of notice was not present in the record before it.

It is our conclusion that the record presented to us for review in the instant case is dissimilar from the one presented to the Supreme Court in Davis, and, therefore, the decision of the court in that case is not controlling here. The evidence most favorable to plaintiff shows that plaintiff was misdirected by defendants to the east platform and forced to retrace her steps down defendant’s stairway where the accident occurred. Plaintiff testified that she noticed debris on the stairs as she ascended them, and that her fall was brought about by her slipping on debris at the top of the stairs. She testified that the stairs were poorly lighted. This testimony was corroborated by that of Blanche Vaun. It was also corroborated by the testimony of the engineer that following the time of the accident lamps of higher wattage were installed in the stairwell to provide more illumination on the stairs.

The testimony of the porter at the station revealed that the stairway had not been cleaned since 3:30 p. m., almost three hours before the time of the accident, and that it was the standard procedure of the C. T. A. not to clean them again until approximately 8:30 p. m. The porter also testified that debris would accumulate on the station’s platform and stairs, and that the debris sometimes included newspapers; a reasonable inference could be drawn from the foregoing facts that a considerable amount of debris would accumulate during the rush hour.

Unlike the situation in Davis where no facts were presented to the jury dealing with the question of defendant’s notice, the jury in the instant case might reasonably have found from the facts introduced into evidence that the defendant had knowledge of the presence of debris on its east platform and stairs. The evidence most favorable to plaintiff and the inferences to be drawn therefrom does not so overwhelmingly favor defendant so as to compel us to overrule the decision of the trial court not to grant defendant’s motions for a directed verdict and judgment “n. o. v.”

The question as to whether the debris on the platform and stairway was the proximate cause of the injury suffered by plaintiff was properly left to the jury for its consideration. The question of proximate cause is generally one of fact for the jury and is to be determined from all of the circumstances attendant upon the alleged negligent act. Merlo v. Public Service Co., 381 Ill 300, 318, 45 NE2d 665. Proximate cause only becomes a question of law when the facts are undisputed, and there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. Philabaum v. Lake Erie & Western R Co., 315 Ill 181, 145 NE 806.

The defendant next contends that if this court does not hold that its motion for a directed verdict and judgment “n. o. v.” should have been granted by the trial judge then the cause should be reversed and remanded because the verdict was against the manifest weight of the evidence. The defendant argues that the jury had before it the positive testimony of Rogers that plaintiff’s fall was brought about when she reached for a package she was carrying. Defendant argues that the testimony of Rogers was uncontradicted and unimpeached bringing the instant case within the rule stated in Urban v. Industrial Commission, 34 Ill2d 159, 214 NE2d 737, in which case the court held that positive testimony in the record which is uncontradicted and unimpeached cannot be disregarded by the trier of facts.

We cannot agree that the instant case falls within the rule announced by the court in Urban. The record does not disclose that the testimony of Rogers was uncontradicted and unimpeached. It is true that when the plaintiff was asked whether she was carrying a package at the time of her fall she answered that she didn’t remember; and it is also true that she didn’t take the stand to rebut the testimony of Rogers that she fell because she had dropped a package she was carrying. However, Blanche Vaun testified that as far as she could recall the plaintiff was not carrying a package.

Rogers testified that after he witnessed the plaintiff’s fall he purchased a ticket and took a Ravenswood train northbound from the east platform of the station. The record shows that the plaintiff’s fall occurred after all northbound trains could only be boarded at the west platform. Rogers, on direct examination, testified that he saw the plaintiff descending the stairs before she dropped the package she was carrying; on cross-examination, he testified that his attention was first called to the presence of the plaintiff when he heard the package hit the steps. Rogers testified that the plaintiff fell when she reached for a package she was carrying; plaintiff testified that she fell when she slipped on something “wet” and “soft.” Rogers testified that the plaintiff slipped when she was a quarter of the way down the stairs; the plaintiff testified that she slipped on the top stair. Rogers testified that as far as he could see there was no litter on the stairs; this testimony was directly contradicted by the testimony of plaintiff. The state of the evidence in the instant case presents a far different situation from the uncontradicted positive facts that were present in Urban.

The facts and circumstances in evidence, in the instant case, may have indicated to the jury that Roger’s testimony was inherently improbable. The jurors and the trial judge had full opportunity to observe the witnesses while they testified and they were in a better position to weigh the testimony than a reviewing court. We cannot say that the judgment is manifestly against the weight of the evidence, and, therefore, the judgment is affirmed.

Affirmed.

MURPHY, P. J. and ADESKO, J., concur.


text:
    Beth Scofield, Plaintiff-Appellant, v. Louis I. Behm, et al., Defendants-Appellees.
    Gen. No. 67-25. (Abstract of Decision.)
    Second District.
    November 29,1967.
    Rehearing denied January 3, 1968.
    Paul E. Hamer, of Northbrook, for appellant; Finn and Geiger, Kaufman, Wasneski and Yastrow, of Waukegan, and Churchill & Baumgartner, of Grays Lake, for appellees.
   Opinion by JUSTICE BAUER. Not to be published in full.


author: MR. PRESIDING JUSTICE CRAVEN

text:
    People of the State of Illinois ex rel. Richard G. Hershey, Director of the Department of Insurance of the State of Illinois, Plaintiff-Appellee, v. Cosmopolitan Insurance Company, Defendant-Appellee. Shirley Diebold, as Trustee Under Trust Agreement Dated October 25, 1960, and Known as Trust #7143, Petitioner-Appellant.
    Gen. No. 51,323.
    First District.
    November 29, 1967.
    Rehearing denied January 5, 1968.

      Milton K. Joseph and Louis D. Schmalzer, of Chicago, for appellant.
    Jules Dashow, of Chicago (Ira J. Friedman, of counsel), for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

The Director of Insurance instituted proceedings for the rehabilitation of an insolvent insurance company. Shirley Diebold, appellant, filed a petition in that rehabilitation proceedings for an order that the court-appointed rehabilitator pay to her a sum of money which the rehabilitator had received from the reinsurer of the insolvent company. This appeal is from an order denying the relief sought by the petition.

In December of 1960, the Cosmopolitan Insurance Company, hereinafter referred to as the “insurer,” entered into a contract, entitled “Pro Rata Reinsurance,” with Hardware Dealers Mutual Fire Insurance Company, hereinafter referred to as the “reinsurer.” By the terms of that contract, it was agreed that the insurer could cede to the reinsurer certain risks over and above a specified figure that was required to be retained by the insurer. This contract of reinsurance contained many provisions as to its operation between the parties — the insurer and reinsurer. Provision was made for the division of premium income in proportion to the amount of risk assumed after the deduction of commissions paid to the insurer for its administrative expenses. Loss investigation expenses were prorated as was salvage income. The contract contained provisions relative to accounting between the parties, underwriting was left to the insurer, and finally the contract contained this provision with reference to the handling of claims in the event of the insolvency of the insurer:

“In the event of the Insurer’s insolvency, any claim under this contract shall be payable without diminution by the Reinsurer to the liquidator, receiver or statutory successor of the Insurer on the basis of the claims allowed against the insolvent Insurer by any court of competent jurisdiction, or any justice or judge thereof, or by any receiver having authority to determine and allow claims. The Insurer’s liquidator, receiver or statutory successor shall give the Reinsurer written notice of the pendency of any claims against the Insurer, involved in the claim under this contract, within a reasonable time after each of such claims is filed in the Insurer’s insolvency proceeding. During the pendency of each of such claims on the insolvent Insurer, the Reinsurer may investigate such claim and interpose, at the Rein-surer’s own expense, in the proceeding where the claim is to be adjudicated any defense which it may deem available to the Insurer or its liquidator, receiver or statutory successor. The expense thus incurred by the Reinsurer shall be chargeable against the insolvent Insurer as part of the expense of liquidation to the extent of a proportionate share of the benefits which may accrue to the Insurer solely as the result of the defense undertaken by the Re-insurer.”

In August of 1961, the insurer issued its fire insurance policy to the appellant on certain premises, the policy being in the principal amount of $65,000. Under the terms of the reinsurance contract, this risk was ceded to the reinsurer.

In January of 1963, a loss occurred as a consequence of a fire. Proof of loss was filed and in February of 1963, the loss was determined to be in the sum of some $62,500. In April of 1963, the petition for rehabilitation was filed in the circuit court and the rehabilitator was appointed in

May. Thereafter, the reinsurer paid to the rehabilitator some $58,000 attributable to the claim of the petitioner.

The petition asserted that the rehabilitator was a mere collecting agent or conduit for the petitioner or in the alternative that the petitioner was a third-party beneficiary and entitled to the proceeds of the reinsurance, it being the contention of the petitioner that the reinsurance contract was in substance not reinsurance but coinsurance.

It is, of course, true that the construction of this agreement is not to be determined by the name or caption of the agreement, but rather from the terms and conditions of the contract. Nomenclature, however, is important. Appleman, in his work on “Insurance,” defines “reinsurance” as follows:

“Reinsurance, to an insurance lawyer, means one thing only — the ceding by one insurance company to another of all or a portion of its risks for a stipulated portion of the premium, in which the liability of the reinsurer is solely to the reinsured, which is the ceding company, and in which contract the ceding company retains all contact with the original insured, and handles all matters prior to and subsequent to loss. The true reinsurer is merely an insurance company or underwriter which deals only with other insurance companies as its policyholders.” 13 Apple-man, Insurance Law and Practice, sec 7681, at 433, et seq.

Although no Illinois case has been suggested which is specifically determinative of the issue here, running through the Illinois cases is language in accord with this definition of “reinsurance.” See Gill v. Peerless Cas. Co., 18 Ill App2d 338, 152 NE2d 210 (2nd List 1958); Weil v. Federal Life Ins. Co., 264 Ill 425, 106 NE 246 (1914).

The petitioner relies heavily on two Missouri opinions, seemingly at odds with the accepted view of reinsurance. In Homan v. Employers Reinsurance Corp., 345 Mo 650, 136 SW2d 289, the court did use some language that seemed to equate coinsurance and reinsurance. In that case, however, there were procedural complications and facts which might have given rise to a form of estoppel as to the reinsurer. The second Missouri case, First Nat. Bank of Kansas City v. Higgins (Mo), 357 SW2d 139 (1962), gives some comfort to the petitioner. That case was by a divided court, and we find ourselves in agreement with the dissenting opinion which not only criticized the holding in the case then under consideration but was equally critical of the Homan opinion. The dissenting opinion made the point that the view of Missouri was at odds with other decisions, and in the dissent it was stated:

“In other jurisdictions a similar article and insolvency clause has been held to mean just what it says, that in the event of insolvency the amount due under the policy shall be paid to the liquidator. Melco Sys. v. Receivers of Trans-America Ins. Co., 268 Ala 152, 105 S2d 46; Stickel v. Excess Ins. Co. of America, 136 Ohio St 49, 23 NE2d 841; Greenman v. General Reinsurance Corp., 237 App Div 648, 262 NYS 570, affd 262 NY 701.”

This contract appears to us to be clear and unambiguous. It needs no construction. It is an agreement whereby an insurance company reinsured risks that it had previously underwritten. The object and purpose in ceding part of these risks was to protect itself. By this contract an insurance company purchased insurance. A loss payable to it in the event of insolvency became payable to the liquidator. The language of the policy on this point could not be more clear nor concise. As we said in Bartulis v. Metropolitan Life Ins. Co., 72 Ill App2d 267, 271, 218 NE2d 225, 226 (4th List 1966):

“. . . construction does not degenerate into a perversion of plain language to create an ambiguity where none exists or to father a contract obligation where none is stated or reasonably implied.”

The insolvency of an insurance company casts burdens upon its insureds, claimants against its insureds and, if a stock company, against its stockholders. The consequences to those injured are severe. This court cannot, however, under the guise of construction, seek to lessen the injury of one or one of a group at the expense of other injured persons by reason of the insolvency, whether as creditors or in some other capacity. Having concluded that the reinsurance contract here involved provided no benefit to the petitioner and that it was a contract providing for the payment, in the event of loss, under the contract to the receiver or rehabilitator in the event of insolvency of the insurer, the circuit court properly determined that the petitioner had no interest in the proceeds paid by the reinsurer. The judgment of the circuit court of Cook County must be and the same is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ora Thurman Brown, Defendant-Appellant.
    Gen. No. 66-125.
    Second District.
    November 29, 1967.
    Rehearing denied December 14, 1967.

      Peterson, Lowry, Rail, Barber and Ross, and William Bomp, of Chicago, and Thomas and Kostantacos, of Rockford, for appellant.
    William R. Nash, State’s Attorney, of Rockford, and William H. Snively, Assistant State’s Attorney, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Winnebago County. A jury found Ora T. Brown, the defendant, guilty of voluntary manslaughter. He was sentenced to the Illinois State Penitentiary for a period of from 7 to 12 years.

On December 21, 1964, at approximately 2 :30 o’clock in the afternoon, the defendant entered the Huddle Inn located at 813 W. State Street in Rockford, Illinois. At the time the defendant was suffering from the effects of a back injury and also had a painful mouth, the result of the removal of some teeth. Between 6:00 and 6:30 o’clock, Russell Bowler, the deceased, entered the Inn. After having a drink, Bowler went to the end of the bar where he struck the defendant and slapped him about the shoulders three or four times. The bartender told Bowler to leave and he went out the rear door to an alley. Four or five seconds later defendant followed Bowler into the alley. Five or ten minutes later defendant returned to the Inn. He went to the washroom, came out, finished a beer and left by the front door. About 7:00 o’clock p. m. another patron of the bar left the tavern by the rear door to go to his car. He returned almost immediately and told the bartender to call the police as he believed a man had been hit by a car. The cause of death was determined to be asphyxiation in that the deceased drowned in his own blood. The doctor who performed the autopsy testified that the decedent had many severe fractures involving the lower jaw and right cheekbone area. His face was covered with bruises which had no particular pattern. A pathologist testified that the severity of the fractures was such as to lead him to believe that they must have been caused by some heavy, blunt object rather than a fist.

The defendant was arrested at approximately 9:00 p. m. on the evening in question. His right hand bore bruises and was skinned around the knuckles. He testified that this occurred when he went into an alley on leaving the tavern and “7 or 8 guys” took a swing at him knocking him down, stepping on his hands and kicking him. He said they fled when he yelled for help. Upon being brought to the police station the defendant’s shoes were removed and a member of the Rockford Police force testified that an F. B. I. examination of the shoes indicated there was no blood or other substance on them in any way associated with the deceased. The shoes were not offered in evidence. At the trial the State introduced four photographs of the deceased taken before his body was removed from the alley. During the course of cross-examination of the defendant, the State’s Attorney asked the defendant if he had ever been convicted of a felony. An objection to this question was sustained and no answer was received from the defendant.

The defendant on this appeal asserts that the indictment is insufficient in that it does not allege all of the substantial elements of the offense of voluntary manslaughter. The indictment was in two counts. Count I charged defendant with murder. The jury found him not guilty of murder. Count II, which charged the defendant with voluntary manslaughter, read in part as follows:

“That on the 21st day of December, 1964, in the County of Winnebago and State of Illinois, one Ora Thurman Brown committed the offense of Voluntary Manslaughter, in that he, acting under sudden and intense passion, resulting from a serious provocation by Russell E. Bowler, struck, beat, kicked and killed said Russell E. Bowler, without lawful justification, in violation of Paragraph 9-2, Chapter 38, Illinois Revised Statutes.”

Defendant argues that the omission of the words “at the time of the killing” renders the indictment insufficient. An indictment is required to state the offense charged as will enable the defendant to fully prepare his defense, and to plead the judgment in bar of a subsequent prosecution for the same offense. People v. Griffin, 36 Ill2d 430, 432, 223 NE2d 158. It is not necessary that it state the alleged crime in the exact language of the statute. People v. Peters, 10 Ill2d 577, 580, 141 NE2d 9. The language in the indictment here under consideration clearly stated that the beating and the intense passion occurred at the same time and meets the above requirements. The failure to include the statutory words “at the time of the killing” does not, in our opinion, render the indictment insufficient.

The defendant next contends that his constitutional rights were violated in that he was subjected to unnecessary search and seizure when his shoes were removed from him at the police station about an hour and one half after his arrest. The parties agree that search and seizure are permitted when incidental to a lawful arrest. Defendant argues that the lapse of time between the arrest and the seizure violates his rights. We are of the opinion that it is not necessary for us to determine this question as nothing was found as a result of the search. The tests on the shoes were negative. People v. Rose, 22 Ill2d 185, 186, 174 NE2d 673. If we were to hold otherwise, it is our opinion that the removal of the defendant’s shoes for the test did not constitute an illegal search. The shoes were visible. The defendant had them on at the time of his arrest. In the People v. Elmore, 28 Ill2d 263, 265, 192 NE2d 219, the court commented:

“A search implies a prying into hidden places for that which is concealed and it is not a search to observe that which is open to view.”

To the same effect is the People v. Cattaneo, 6 Ill2d 122, 125,126 NE2d 692.

The introduction of the four photographs of the deceased into evidence was objected to by the defendant and on appeal he claims that their admittance into evidence was prejudicial error. The rule as to admissibility of photographs of a deceased in a criminal case is well stated in the People v. Jackson, 9 Ill2d 484, 490, 138 NE2d 528:

“Whether the photograph of a deceased is properly admissible depends upon whether it has probative value, such as aiding a jury in the better understanding of medical testimony or aiding them in determining the manner in which the wound was inflicted. . . . Mindful of the prejudicial emotion that might be aroused by the introduction of a victim’s photograph, the courts have, on the whole, been strict in their requirement that a proper purpose be shown for the introduction of such an exhibit.”

In the People v. Jenko, 410 Ill 478, 482, 102 NE2d 783, the court held:

“The fact and cause of death, the number and location of the wounds, the manner in which they were inflicted, and the wilfulness of the acts in question are all material to the offense charged. The photographs tended to establish these facts and conditions, and under such circumstances their production as evidence is a legitimate mode of proof, (citation omitted) and this is in accord with the majority view. (Citation omitted.) Evidence having a natural tendency to establish the facts in controversy should be admitted. A party cannot have competent evidence excluded merely because it might arouse feelings of horror and indignation in the jury. Any testimony concerning the details of a murder or other violent crime may have such tendencies, but manifestly this could not suffice to render it incompetent.”

The evidence discloses that at the time the deceased was found in the alley, the witnesses and police believed that he may have been the victim of a hit-and-run accident and defendant at the trial attempted to revive that theory and convince the jury that the deceased had, in fact, been the victim of an automobile accident and had not died as a result of any beating inflicted upon him by the defendant. The photographs which were introduced tended to support the medical testimony that the death occurred as the result of severe blows to the face and head of the deceased and that the injuries were not such as would have been incurred had the deceased in fact been struck by an automobile. In our opinion the photographs had probative value and were an aid to the jury in a better understanding of the medical testimony as to the manner in which the wounds of the deceased had been inflicted.

The defendant complains that the State’s Attorney committed reversible error in his closing argument in commenting on defendant’s failure to call witnesses to substantiate his testimony as to his whereabouts on the day in question. The closing argument of counsel is not a part of the record before us and we therefore cannot consider this point. People v. Smice, 79 Ill App2d 348, 354, 223 NE2d 548.

We agree that it is improper for the prosecution to cross-examine a defendant as to conviction for a crime and that the credibility of the defendant can be tested only by showing proof of prior convictions and by introducing evidence of those convictions. People v. Rojas, 68 Ill App2d 171, 174, 215 NE2d 140; People v. Smith, 63 Ill App2d 369, 381, 211 NE2d 456. However, here the trial court promptly sustained an objection to an inquiry made by the State’s Attorney of the defendant inquiring if he had been convicted of a felony. We do not believe he was unreasonably prejudiced by this. It is not every error that constitutes grounds for reversal. People v. Sleezer, 9 Ill2d 57, 62, 136 NE2d 808; People v. Arbuckle, 69 Ill App2d 251, 258, 259, 215 NE2d 825. The question is not whether the record is perfect, but whether the defendant has had a fair trial and has been convicted on evidence establishing his guilt beyond a reasonable doubt. We are of the opinion that the error complained of would not reasonably affect the jury’s verdict.

The defendant tendered an instruction on involuntary manslaughter which the court refused. In his argument for reversal he relies on the People v. Hunter, 365 Ill 618, 7 NE2d 444, and the People v. Mighell, 254 Ill 53, 98 NE 236, as authority. In these cases the court found that death was caused by an injury that would not naturally result from defendant’s acts. Involuntary manslaughter is an offense which happens without the intent to inflict injury and death results from acts performed recklessly. People v. Johnson, 54 Ill App2d 27, 36, 203 NE2d 283. When we consider the injuries inflicted on the deceased, the crushing blows to the facial bone structure, caused by striking or kicking, in view of the evidence that the altercation in the Huddle Inn was broken up without the defendant having fought back, and that the defendant deliberately followed the deceased out of the tavern to an alley where he inflicted a severe beating, we are of the opinion that the trial court properly denied the defendant’s request for an involuntary manslaughter instruction, on the basis that there was no evidence to substantiate it. Where there is no evidence upon which such an instruction can be based, the instruction should not be given. People v. Burnett, 27 Ill2d 510, 511, 190 NE2d 338. We find no error in the refusal to allow the instruction.

Judgment affirmed.

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


text:
    Eva Jane Shearer, Plaintiff-Appellee, v. Ernest Klostermann, Defendant, Gumprecht Trucking Co., a Corporation, John C. Kessler, Defendants-Appellants, and American Mutual Insurance Company, GarnisheeDefendant-Appellant.
    Gen. No. 66-154M.
    Second District.
    November 29, 1967.

      Gates W. Clancy and Croft C. Waddington, of Geneva, for appellants.
    Peregrine, Stime and Henninger, of Wheaton, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of DuPage County wherein the trial court entered a summary judgment on the plaintiff’s motion and denied the defendant’s motion to vacate. The judgment was for $1,850, together with costs.

On or about February 11, 1964, Eva Jane Shearer, while driving an automobile owned by her and insured by Hanover Insurance Co. of New York, was involved in a multiple-vehicle collision with a truck owned by Gumprecht Trucking Co. and operated by its employee, John C. Kessler, and an automobile operated by Ernest Klostermann. On the 21st of December, 1964, the plaintiff filed a complaint in the Circuit Court of McHenry County seeking to recover compensation for her personal injuries. On April 21, 1965, this subrogation action for property damage was filed in DuPage County in the name of the plaintiff. On August 30, 1965, the defendants, John C. Kessler and Gumprecht Trucking Co., presented a motion to consolidate this litigation in DuPage County with the McHenry County litigation on the basis that both suits arose from the same facts and occurrence and the parties to the law suits were identical. This motion was denied. On March 28, 1966, the jury returned a verdict in the amount of $10,000 against Gumprecht Trucking Co., its driver, John Kessler, and a judgment on the verdict was entered in favor of the plaintiff in the Circuit Court of McHenry County. This judgment was satisfied. Subsequently, a motion for summary judgment was filed herein. Attached to the motion as exhibits were the motion to consolidate, which had heretofore been denied; a certified copy of the jury verdict; the judgment entered in McHenry County, and a sworn statement of proof of loss executed by Eva Jane Shearer to the Hanover Insurance Co. of New York, to which was attached a statement of loss showing damage in the amount of $1,900 and a payment of $1,850 signed by the Underwriters Adjusting Co. on behalf of Hanover Insurance Co. To this motion defendant did not file a counteraffidavit.

Defendant on this appeal contends that the trial court committed error in entering summary judgment on the basis of the foregoing documents.

The provisions of summary judgment are found in section 57 of the Civil Practice Act, chapter 110, section 57 (Ill Rev Stats 1965). This section provides that either party may move for a summary judgment in his favor as to all or any part of the relief sought. There is no need that the motion be supported by affidavit, but the requirement is simply that if from the record before the court there appears to be no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law, a summary judgment may be entered. Provision is made that if affidavits are filed the form and content shall be provided by rule.

Supreme Court Rule 15 (c 110, Supreme Court Rule 101.15) requires that affidavits in support of motions for summary judgment shall firmly show that the affiant, if sworn as a witness, can testify competently as to the contents.

It is apparent that the proof of loss attached to the plaintiff’s motion for summary judgment executed by the plaintiff to the Hanover Insurance Co. of New York, with a payment authorization of $1,850 signed by the Underwriters Adjusting Co. on behalf of the insurance company, is a far cry from the usual and customary proof required in proving damages to personal property. If the cause were tried on the merits it is obvious that the plaintiff could not competently testify that the insurance company paid her $1,850 as her measure of damages. Assuming this affidavit to be an attempt to comply with the Supreme Court rule, its contents do not meet the requirements of that rule, in that the plaintiff could not competently testify as to the facts therein set forth. In re Estate of Boysen, 73 Ill App2d 197, 200, 218 NE2d 838.

Defendant, in his motion to consolidate the McHenry County case and the DuPage County case, urged as a grounds therefor that the suits arose out of the same set of facts, the parties were identical and the attorneys the same. Defendant contends that since the motion was denied the facts therein contained could not be considered by the trial court in determining if there was any estoppel by verdict. We know of no such rule and we can only conclude that the trial court in considering the original complaint filed in McHenry County, the jury verdict and the motion for consolidation found they met the requirements of the principle of estoppel by verdict. Lynch v. Chicago Transit Authority, 62 Ill App2d 220, 222, 210 NE2d 792; Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill App2d 30, 36, 205 NE2d 786.

It is our opinion that the judgment of the court below should be reversed and the case remanded for the purpose of determining the amount of property damage suffered by the plaintiff.

Reversed and remanded with directions.

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


text:
    William J. Wagner, Plaintiff-Appellant, v. Michael David, David Building Corporation, an Illinois Corporation, and Home Building and Loan Association, an Illinois Corporation, Defendants-Appellees, and William J. Wagner, Plaintiff-Appellant, v. Michael David and David Building Corporation, an Illinois Corporation, Defendants-Appellees. William J. Wagner on Behalf of the David Building Corporation, an Illinois Corporation, Plaintiff-Appellant, v. The David Building Corporation, an Illinois Corporation, Michael David, a/k/a Mike David, Charles H. Atwell, Trustee, Advance Realty Company, an Illinois Corporation, and Laszlo Kajtsa, Defendants-Appellees.
    Gen. Nos. 65-12, 65-133 (Consolidated). (Abstract of Decision.)
    Second District.
    November 29, 1967.
    Rehearing denied December 29, 1967.
    DAVIS, P. J., dissenting.
    Dreyer, Foote & Streit, and Richard C. Hamper, of Aurora, for appellant; Reid, Ochsenschlager, Murphy & Hupp, William H. Wake, and Anthony F. Salerno, of Aurora, for appellees.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Walter C. Padgett and Mildred Padgett, Plaintiffs-Appellants, v. City of Oakbrook Terrace, Defendant-Appellee.
    Gen. No. 67-66.
    Second District.
    November 29, 1967.

      Paul T. Kalinich, of Glen Ellyn, for appellant.
    Thomas F. Pierce, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

Plaintiffs, Walter C. Padgett and Mildred Padgett, brought this declaratory judgment action against the City of Oakbrook Terrace, praying that the City’s zoning ordinance be declared null and void as applied to their property. The trial court entered a judgment in favor of the defendant, from which the plaintiffs have appealed.

The plaintiffs’ land, consisting of six lots totalling approximately 130,000 square feet, is situated on the southeast border of the defendant City. The present zoning applicable to the land is single-family residence, and plaintiffs’ tentative desire is to use the property as a shopping center — consisting of a drugstore, a supermarket, an automotive center and a furniture store.

The defendant City is presently about one square mile in area. It was incorporated in 1957 and the present zoning ordinances were adopted in 1958. Virtually all of the land in the City was zoned for single-family residential use. There have been but few zoning changes: a limited number of commercial uses having been permitted along Roosevelt Road, approximately one-half mile from the subject property.

Plaintiffs’ property is on the west side of Route 83, a limited access heavily-traveled highway. A number of trees along the west side of the highway, and between the edge of the highway and the utility poles, provide somewhat of a barrier or screen between the highway and the remainder of plaintiffs’ property. Across the highway, to the east, is Oakbrook Shopping Center — a large shopping center situated in the Village of Oakbrook. Immediately to the south of plaintiffs’ property is a public park, and both to the west and north are single-family residences.

The plaintiff, Walter C. Padgett, and four witnesses testified on behalf of the plaintiffs. The witnesses, other than Padgett, were representatives of the proposed drugstore, automotive center, supermarket and furniture store. They testified generally as to the nature of their respective operations and their belief that their several business operations would not substantially affect the value of the single-family residences to the north and west.

The plaintiff testified as to the surrounding land use characteristics and the use of the land beyond that immediately surrounding the plaintiffs’ property. He stated that the lots in question were zoned “residential” when purchased by the plaintiffs. He further testified that the present value of this land was about $20,000 and that if rezoned, he “thought” it would be worth $300,000. He based his value conclusion on the premise that he would “expect” that the businesses he proposed to have occupy the land would pay rentals of from $30,000 to $50,000 per year; and that he would capitalize this over 10 years. From the record, it is not clear just how the plaintiff arrived at these various figures. He also stated that he would have to construct two buildings at a cost of $600,000 to $900,000 and provide sewer and water facilities.

The defendant’s zoning ordinance is presumed to be valid, and the plaintiffs assumed the burden of establishing that it was unreasonable and oppressive as applied to their land. Camboni’s, Inc. v. Du Page County, 26 Ill2d 427, 432, 187 NE2d 212 (1963); First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 225, 130 NE2d 267 (1955); Fiore v. City of Highland Park, 76 Ill App2d 62, 71, 221 NE2d 323 (1966). To be valid, a zoning classification must bear a substantial relation to the public health, safety, comfort, morals or general welfare. Marquette Nat. Bank v. County of Cook, 24 Ill2d 497, 501, 502, 182 NE2d 147 (1962); First Nat. Bank v. County of Cook, 15 Ill2d 26, 31, 153 NE2d 545 (1958); Mutz v. Village of Villa Park, 83 Ill App2d 1, 9, 226 NE2d 644 (1967). To overcome the presumption of validity, however, plaintiffs must establish by clear and convincing evidence that the ordinance is unreasonable and unrelated to public health, safety or welfare. Bennett v. City of Chicago, 24 Ill2d 270, 273, 274, 181 NE2d 96 (1962); Hoffmann v. City of Waukegan, 51 Ill App2d 241, 244, 201 NE2d 177 (1964).

Plaintiffs cite the Hoffmann case, supra, as authority for the proposition that the trial court should be reversed. As is often true in zoning cases, the same case is cited by the defendant for the proposition that the trial court must be affirmed. In Hoffmann, at page 244, the court referred to the numerous basic factors to be considered in determining the validity of a zoning ordinance as applied to particular property. No one of the factors is determinative, particularly the fact that plaintiffs’ land might be worth more if rezoned. Hoffmann v. City of Waukegan, supra, 245. The validity of a particular zoning ordinance must be decided in each case on the sum total of the attendant facts of the particular case. Mutz v. Village of Villa Park, supra, 9; DeBruler Homes v. County of Lake, 78 Ill App2d 177, 183, 222 NE2d 689 (1967).

The best that can be said of plaintiffs’ evidence is that it appears that their land would be substantially more valuable if rezoned, and that the absence of commercial zoning within the defendant City might indicate a need for such development within the community. Plaintiffs’ proof as to respective values appears somewhat conjectural. Also, we do not find convincing the supposition by plaintiffs’ witnesses that the development proposed by plaintiffs would have no substantial effect on the surrounding single-family residences. While the absence of commercial development may indicate a need for such use, it also indicates the residential characteristic of the community and the apparent desire of the City and its residents to retain this attribute.

Plaintiffs’ photograph exhibits illustrate that the nearest commercial development is limited to the east side of Route 83, in another community. As we have often noted, and as we have said with reference to the same Route 83 at a different location (Mutz v. Village of Villa Park, supra, 9, 10), zoning must begin and end somewhere. A highway, such as Route 83, may serve as a proper demarcation between residential and business uses. In addition, along the west side of this highway and between it and the adjacent utility lines, is an area in which there are trees. Such screen further tends to serve as a buffer.

The land immediately to the south of plaintiffs’ land is a public park area: to the north and west are single-family residences. While the park apparently has not had sufficient land fill or development for substantial use as a park, such a use would not be incompatible with residential development. The remaining land, west of Route 83, further confirms the residential characteristic of this area.

It does not appear to us that the quantity or quality of plaintiffs’ proof was sufficient to overcome the presumption of the validity of the ordinance. Under the evidence, the trial court was warranted in finding that the ordinance was not unreasonable or oppressive as applied to plaintiffs’ property. Within these limits, the fixing of zoning lines is a matter of legislative discretion.

Plaintiffs referred to other attempts at commercial development within the City. These were unsuccessful, however, and have little bearing on our determination. The trial court apparently felt that such matters should be given little or no weight. The same can be said for the evidence introduced by the defendant indicating that there are private covenants — created some years ago — restricting the use of the land to single-family residences. Such private restrictions, particularly when imposed long prior to the date in question, can have little or no value in the determination called for by the court in a zoning dispute. Even if we were to assume, however, that the admission of such evidence was erroneous, there was sufficient competent evidence to support the judgment. This case was tried before the court without a jury. Consequently, it is presumed that only the competent evidence was considered, and if there was sufficient competent evidence to sustain the judgment, any error in admitting incompetent evidence is regarded as harmless. McFail v. Braden, 19 Ill2d 108, 120, 121, 166 NE2d 46 (1960); Purcell v. Weasel, 12 Ill2d 356, 360, 146 NE2d 580 (1957).

Under the circumstances of this case, the plaintiffs have failed to overcome the presumption of validity of the ordinance and have failed to establish by clear and convincing evidence that it was unreasonable and unrelated to the public, health, safety or welfare. Therefore, the judgment will be affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


text:
    Meadowdale Shopping Center, Inc., an Illinois Corporation, Plaintiff-Appellant, v. Meadowdale Lanes, Inc., an Illinois Corporation, Meadowdale Lanes, an Illinois Limited Partnership, Joseph J. Abbell, Individually and as General Partner of Meadowdale Lanes, an Illinois Limited Partnership, and Leonard Lamensdorf, Individually and as a General Partner of Meadowdale Lanes, an Illinois Limited Partnership, Defendants-Appellees.
    Gen. No. 67-12. (Abstract of Decision.)
    Second District.
    November 29, 1967.
    Harrick, Vette, McNeill and McElroy, Ray W. Fick, Jr., and James Howie, of Chicago, and Brittain, Morgan, Brittain and Ketcham, of Elgin, for appellant; Samuel Morgan, of Chicago, and Carbary, Carbary and Chapski, of Elgin, for appellees.
   Opinion by JUSTICE ABRAHAM-SON. Not to be published in full.


author: MR. JUSTICE MORAN

text:
    L. Dow Nichol, Jr. and Elsie L. Nichol, Plaintiffs-Appellants, v. The Village of Glen Ellyn, a Municipal Corporation, DuPage Trust Company, as Trustee Under a Trust Known as Trust #867, Emil J. Marslek, et al., Defendants-Appellees.
    Gen. No. 67-68.
    Second District.
    November 29, 1967.

      Rathje, Woodward and Dyer, of Wheaton, Tenney, Bentley, Guthrie, Askow and Howell, and Edwin H. Conger, of Chicago, for appellants.
    J. Edgar Kelly, of Glen Ellyn, and Lyle H. Rossiter, of Chicago, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This action was brought to enjoin the defendants from using an easement which the plaintiffs allegedly granted for private use. Essentially, the defendants argue that the easement was granted for the public use, and its benefits are not to be limited exclusively to the owners of the lots in the plaintiffs’ subdivision.

In 1951, plaintiffs purchased the property in question, which was annexed to the defendant Village of Glen Ellyn the following year. Shortly thereafter, plaintiffs submitted a plat of subdivision with the Village which was approved in due course. The plat of subdivision consists of eleven lots surrounding a street known as Elm Park Drive. Elm Park. Drive dead-ends at Lot 3, which is the lot plaintiffs retained for their own residence, and which is the only lot in the subdivision which abuts both Elm Park Drive and the preexisting St. Charles Road. The plat further discloses a “10 Ft. Public Utility Easement” running continuously across the rear of each of the eleven lots in the subdivision. In addition, the plat shows a “10 Ft. Easement for Public Utilities” across Lot 3, which latter easement connects the above described easement with St. Charles Road.

A Village ordinance in effect at the time of the annexation and subdivision of plaintiffs’ subdivision required the installation of sanitary sewer facilities in all new subdivisions. The Village engineer prepared plans and specifications for the extension of Village water and sewer mains throughout the subdivision for service to all of the lots. An eight-inch lateral sewer line was extended from the fifteen-inch trunk line sewer in St. Charles Road across the said “10 Ft. Easement for Public Utilities” of Lot 3 and then down through Elm Park Drive.

The plaintiffs paid the Village for the plans and specifications prepared by the Village engineer, and the Village advertised for bids for construction of the sewer. The construction job was let to the bidder accepted by the plaintiffs and, although the plaintiffs paid the cost of the construction, the job was done pursuant to a contract with the Village.

Until the filing of this suit, the plaintiffs exercised no maintenance or other dominion over the sewer system in question. Fees for connections to the system were paid to the defendant Village by the lot owners in the subdivision. The plaintiffs never requested or received any inspection or connection fees. When stoppage in the system occurred on at least two occasions, the Village sewer department was called and serviced the system.

In 1966 the plaintiffs brought this suit to enjoin the connection to the sewer system in question by the property owners in the subdivision immediately to the south of the plaintiffs’ subdivision. From an order dismissing their complaint, the plaintiffs appeal on the theory that the easement over Lot 3 is for the private use of only the owners of the lots in the plaintiffs’ subdivision. It is further argued that it was error for the court below not to have permitted plaintiffs to testify as to their intention in granting the easement.

We do not believe that the trial court erred in its determination that members of the public acquired a right to the benefit of the easement over plaintiffs’ property. In the face of the plat of subdivision and plaintiffs’ conduct prior to the filing of their complaint, no other conclusion would be possible. The law was stated in Wattles v. Village of McHenry, 305 Ill 189, 192, 137 NE 114 (1922), as follows:

“No law is better settled in this State than that which controls this case. . . . The sale and conveyance of lots according to a published plat implies a grant or covenant to the purchaser that streets, alleys and other public places indicated as such upon the plat shall be forever open to the use of the public, free from all claims of interference of the proprietor inconsistent with such use. (Thompson v. Maloney, 199 Ill 276; Stevenson v. Lewis, 244 id. 147.) ” (Emphasis added.)

To borrow the words of the Court in the Wattles opinion, the easements in question were “public places indicated as such upon the plat.” The plat itself describes the easements as “Easement for Public Utilities” and “Public Utility Easement.” Although plaintiffs now argue that the term “public” modifies the word “utilities,” no authorities are cited for this proposition. On the other hand, the term “public utility” has been defined in 73 CJS 990, § 1, as follows:

“The term ‘public utility’ implies a public use carrying with it the duty to serve the public and treat all persons alike, and it precludes the idea of service which is private in its nature and is not to be obtained by the public.”

Plaintiffs’ theory is not advanced by separating the words “public” and “utility.” Thus, in State Public Utilities Commission v. Monarch Refrigerating Co., 267 Ill 528, 108 NE 716 (1915), in determining whether a certain business was a public utility, the Supreme Court observed the following (id. at 533) :

“As to what is meant by the word ‘public’ when used in this connection, it is very difficult to define or explain it in any simpler language than by the use of the word ‘public’ itself. The Century Dictionary thus defines the word ‘public’: ‘Of or belonging to the people at large; relating to or affecting the whole people of a State, nation or community; . . . not limited or restricted to any particular class of the community.’ The New International Dictionary defines it: ‘Of or pertaining to the people; relating to or affecting a nation, State or community at large.’ In 32 Cyc 748, one of its meanings is given as ‘open to all the people; shared in or to be shared or participated in or enjoyed by the people at large; not limited or restricted to any particular class of the community.’ ”

If the plaintiffs had indeed intended to create an easement for private use by the owners of lots in their subdivision, they could easily have so provided on their plat. People v. Ricketts, 248 Ill 428, 431, 94 NE 71 (1911). But even if the terms “public utility easement” or “easement for public utilities” were ambiguous, which we do not mean to imply, we would be required to construe such ambiguity against the plaintiffs on the strength of City of Chicago v. Hogberg, 217 Ill 180, 183, 75 NE 542 (1905), when it was said:

“In construing the plat, the rule applicable in construing deeds applies, and any conflict appearing on the plat, and all doubts as to the meaning thereof, are to be construed most strongly against the dedicator and most favorably to her grantees. (Ely v. Brown, 183 Ill 575.) In Elliott on Roads and Streets (Sec 119) the author says that in construing maps and plats it is a safe general rule to resolve doubt against the donor, within reasonable limits.”

The granting of the easements in question was not a voluntary gesture of the plaintiffs. Section 1 of the Plat Act (Ill Rev Stats, c 109, § 1) requires subdividers to prepare a plat, . . which plat shall particularly describe and set forth all public streets, alleys, ways for public service facilities. . . .” This statutory requirement was discussed in Bluett v. County of Cook, 19 Ill App2d 172, 175, 158 NE2d 305 (1958), as follows:

“The purpose served in requiring a housing developer to submit a plat of his proposed subdivision is to insure adequate provision for streets, alleys, placement of utilities, parks, playgrounds and other public necessities indispensable in the modem residential community. . . . The effect of submitting a plat is to dedicate those portions of the premises which are marked or noted as donated or granted to the public.” (Emphasis added.)

It can be observed in passing that the logical extension of plaintiffs’ position would be the creation of a complex network of numerous and unconnected private sewer systems in each community. Not only would such a result frustrate the very purpose of the Plat Act, as set forth above, but would obviously be contrary to every concept of proper city planning.

It is finally argued by the plaintiffs that they should have been permitted to testify as to their intentions when creating the easements in question. Although it has been held that the owner of property may be permitted to testify to his intention when dedicating a portion of it (Township of Lovington v. Adkins, 232 Ill 510, 517, 83 NE 1043 (1908); Miller v. Weingart, 317 Ill 179, 182, 147 NE 804 (1925)), it has similarly been consistently held that “the intent to dedicate will not be permitted to prevail against the unequivocal acts and conduct of the owner inconsistent with such intent.” Township of Lovington v. Adkins, supra. In the case before us the plaintiffs submitted a plat which gave no indication whatsoever that anything other than a public easement was intended. The Village was paid for the plans of the sewer system prepared by the Village engineer, and the Village let the contract and supervised the installation of the sewer. In addition, plaintiffs acquiesced in the continuous inspection and maintenance of the sewer system, and the charging of connection fees, by the Village. That plaintiffs paid the cost of installing the sewer system is of no contrary significance, inasmuch as it is normal and customary for subdividers to pay for all of the public improvements in the subdivided property. Indeed, this is required by ordinance in the instant case. Accordingly, we hold that the refusal of the trial court to permit plaintiffs to testify as to their intention in granting the easements was not reversible error.

Affirmed.

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