author: MR. JUSTICE EOVALDI

text:
    Donald C. Allensworth, Plaintiff-Appellant, v. First Galesburg National Bank and Trust Company; Victor Casket Hardware Company; Galesburg Glass Company; Thomas H. DuJardin and Walter E. Brown, Defendants-Appellees.
    Gen. No. 10,827.
    Second District.
    July 29, 1955.
    Rehearing denied September 13, 1955.
    Released for publication September 14, 1955.

      Don C. Allensworth, of Galesburg, pro se, appellant.
    Barash & Stoerzbach, and Stuart, Neagle & West, all of Galesburg, for appellees.
   MR. JUSTICE EOVALDI

delivered the opinion of the court.

Plaintiff, Donald C. Allensworth filed a forcible entry and detainer suit in the circuit court of Knox county against First Galesburg National Bank and Trust Company, Victor Casket Hardware Company, Gales-burg Glass Company, Thomas H. Du Jar din and Walter E. Brown. All of the defendants with, the exception of Galesburg Glass Company expressly disclaimed any right, title or interest in the property which was the subject matter of the suit. The defendants, First Gales-burg National Bank and Trust Company and the Gales-burg Glass Company, filed a counterclaim in said action which sought to obtain a permanent injunction against plaintiff restraining him from claiming or attempting to claim any right, title or interest in said real estate and also seeking a decree quieting the title to the above said property. The issues were referred to the Master in Chancery who reported to the court his conclusion that counterclaimants were entitled to the relief prayed for. The court overruled objections to the Master’s report and entered a decree enjoining plaintiff from bringing any further actions affecting the title to said real estate and quieted the title to said real estate in Galesburg Glass Company. Plaintiff has appealed from this decree.

The record before us on this appeal does not contain all of the pleadings nor does it contain any of the evidence heard by the Master. However, from the record and from the records of this court in prior appeals by the same plaintiff, we are able to glean a sufficient knowledge of the nature of the action. It appears that in 1944 the real estate in question was the subject matter of the partition suit in the circuit court of Knox county. Plaintiff was a party to that suit. As a result of a decree entered in said cause, the real estate in question was sold to the Victor Casket Hardware Company. Thereafter by mesne conveyances, the title became vested in Galesburg Glass Company. Plaintiff appealed from that decree to this court and we affirmed the decree of the trial court. The Supreme Court denied leave to appeal. Following that action, plaintiff instituted or caused to be instituted various other legal proceedings in said circuit court and in each of said suits sought to relitigate the question of the ownership or right to possession of said real estate. In each case the trial court denied relief and in several cases the judgment of the trial court was appealed to this court where plaintiff was again denied relief. Plaintiff has also filed various lis pendens notices in the office of the Recorder of Deeds of Knox county and has threatened to file other litigation concerning the ownership and possession of said real estate. In each of the many actions and notices, plaintiff has sought to claim title or right to possession of said property in spite of the adverse decree of the trial court and this court. Any instrument or proceedings in writing which appears of record and casts doubt upon the validity of the record title constitutes a cloud on the title (Krile v. Swiney, 413 Ill. 350; Shults v. Shults, 159 Ill. 654). It is, therefore, clear that the actions and notices brought or filed by plaintiff constitute clouds on the title of Galesburg Glass Company, the owner thereof, and that equity has jurisdiction to quiet the title, remove said clouds, and enjoin the further prosecution of any actions by plaintiff. It is also quite clear that equity has jurisdiction to enjoin the prosecution of a forcible entry and detainer suit even though the defendant may have an adequate remedy at law by reason of a defense to the forcible entry and detainer action (Bartelstein v. Goodman, 340 Ill. App. 51).

The only question of any consequence in this case is whether such equitable relief can be permitted by counterclaim in an action of forcible entry and detainer or whether it must be obtained in an independent action. We are of the opinion that the relief may he obtained by way of counterclaim. The Forcible Entry and Detainer Act provides that the provisions of the Civil Practice Act apply to proceedings under the Act except as otherwise provided. (Ill. Rev. Stat. 1953, Ch. 57, Sec. 11 [Jones Ill. Stats. Ann. 109.271].)

The Civil Practice Act expressly permits counterclaims in equity (Ill. Rev. Stat. 1953, Ch. 110, Sec. 168 [Jones Ill. Stats. Ann. 104.044]). The only limitation found in the Forcible Entry and Detainer Act is that contained in Section 5 of the Act which provides that no matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise (Ill. Rev. Stat. 1953, Ch. 57, Sec. 5 [Jones Ill. Stats. Ann. 109.267]).

In Melburg v. Dakin, 337 Ill. App. 204, this court held that an equitable defense was available in an action of forcible entry and detainer. In our opinion a counterclaim in a forcible entry and detainer suit is germane to the purpose of the action, when it seeks to enjoin plaintiff from filing any further action or claiming any right to the real estate.

We are of the opinion that the trial court properly allowed the relief prayed for in the counterclaim and the decree of the trial court is affirmed.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Lyle T. Manley, Plaintiff-Appellant, v. Karl O. Geng et al., Defendants-Appellees.
    Gen. No. 10,836.
    Second District.
    July 29, 1955.
    Rehearing denied September 13, 1955.
    Released for publication September 14, 1955.

      William Lathrop, of Rockford, and MacLeish, Spray, Price & Underwood, of Chicago, for plaintiff-appellant; William Lathrop, of Rockford, and Joseph A. Dubbs, and Wendell J. Brown, both of Chicago, of counsel.
    Miller, Thomas, Hickey & Collins, of Rockford, for defendants-appellees; L. C. Miller, and William E. Collins, both of Rockford, of counsel.
   MR. JUSTICE EOVALDI

Plaintiff-appellant brought suit in equity seeking injunctive relief against the continuing use of the name “Manley Sand Company” by the defendants, and seeking damages.

The trial court found that there was no fraudulent conduct or wrongful acts by any of the defendants in the use of the name “Manley Sand Company” or “Manley Sand Corporation” and ordered and decreed that the complaint be dismissed for want of equity, plaintiff to pay costs.

The case is the outgrowth of a contract of sale between plaintiff and his brother, Dwight E. Manley, who wap,a defendant in the original suit, and on the suggestion of his death, the case was continued against the executor, Lois E. Manley. In the contract, dated October 13, 1952, plaintiff sold to his brother, Dwight E. Manley, the plaintiff’s interest in a partnership business operated by plaintiff, his brother and assignee, Dwight E. Manley, and his mother, May B. Manley.

Lois E. Manley, as executor of the will of Dwight E. Manley, assignee of the interest of plaintiff in the partnership, was dismissed from the case at the end of the hearing. That left in the case the following: May B. Manley, the only person who was a partner at the time the plaintiff sold his interest; her associates in a new partnership formed after the plaintiff sold his interest; and the employees of such new partnership.

Plaintiff’s theory is that he had a proprietary one-half interest, as one of the partners in Manley Sand Company, in the partnership property of the Manley Sand Company and that a part of such partnership property at the time he sold out in October 1952, was its good will, which included its name “Manley Sand Company” which he reserved when he sold the sales business, and which he never relinquished. He further claims that under Hlinois statutory law neither he nor his ex-partners could use the partnership name “Manley Sand Company” after the sale in October 1952, without each other’s consent. Also such partnership property right of use of the name “Manley Sand Company” could not be appropriated by anyone without adequate redress in equity inasmuch as plaintiff had no adequate remedy at law.

The name “Manley Sand Company” has been used by various partnerships for many years. On February 1, 1926 plaintiff and his father, Edward B. Manley, who died about a year later, formed a partnership under the above name, each having a one-half interest in the business. After the father died, his interest in the partnership became vested in his widow, the defendant, May B. Manley. Under date of January 1, 1944, the mother, May B. Manley, sold to the son, Dwight E. Manley, one-half of her interest in the partnership business.

Under date of August 7,1945, plaintiff with his mother and said brother, Dwight E. Manley, entered into a new partnership agreement, with interests as follows: 50 per cent to plaintiff; 25 per cent to May B. Manley and 25 per cent to Dwight E. Manley. This agreement recognized the above name by providing: “Whereas May B. Manley, Lyle T. Manley and Dwight E. Manley have been doing business as co-partners under the name and style of Manley Sand Company of Bock-ton, Illinois, for the past several years.” It further recited that it had become necessary and desirable to enter into a written agreement fixing the rights of the partners in the event of dissolution, either voluntary or by death; that said partnership should continue in effect for a period of ten years or as much longer as the partners may desire and can mutually agree upon. The agreement further provided that the management of the partnership business “shall continue in Lyle T. Manley and Dwight E. Manley as heretofore, but this contract shall replace and be substituted for any and all previous contracts made and entered into by and between the parties hereto, either oral or written.” Under its terms plaintiff and Dwight E. Manley were entitled to a salary of 30 per cent each of the net profits of the partnership with the balance of profits divided one-half to plaintiff and one-fourth each to said May B. Manley and Dwight E. Manley.

The agreement further recited that as of January 1, 1944, the capital account of the partnership had been contributed as follows: “Lyle T. Manley, $30,000.00; May B. Manley, $15,000.00 and Dwight E. Manley, $15,000.00,” which was changed at a later date to $60,000.00, $30,000.00 and $30,000.00 respectively.

In said 1945 agreement it was provided:

“For the purpose of this agreement in any transfer of partnership interests, either between the partners or after the death of a partner, the good will of this partnership is established at the sum of Twenty Thousand Dollars ($20,000.00), which, in the judgment of the partners, is the fair and reasonable worth of such partnership in addition to the present book value which does not include any good will.

“The ownership of such good will shall be the same as in the net property of the partnership. . . .”

Plaintiff and Dwight E. Manley, with their mother, as partners, operated the industrial sand sales business under the said name of “Manley Sand Company” under the August 7, 1945, agreement until October 1952, when plaintiff sold out to Dwight E. Manley under an agreement to sell dated October 13, 1952, and a supplementary sales agreement dated October 27,1952, in each of which he reserved his rights in the good will of the business.

At the time of the contract of sale by plaintiff to his brother, Dwight E. Manley, on or about the date it bears of October 13, 1952, Dwight E. Manley was ill in Arizona and the contract was executed there.

The October 13, 1952, agreement provided:

“That, Whereas, the Manley Sand Company, is a partnership, . . .

“The seller, for and in consideration of the covenants and agreements on the part of the buyer hereinafter contained, agrees to sell and convey unto the buyer and the buyer agrees to buy from the seller his interest in the Manley Sand Company, a partnership,

“The buyer agrees to pay the seller, in cash, the book value of his interest in the Manley Sand Company, a partnership . . .

“It is further agreed by and between the parties hereto that the seller is not selling his good will in the above partnership, which has been set up at a book value figure of Twenty Thousand Dollars ($20,000.00) nor is he selling his personal right to engage in the industrial sand business in all its aspects but he is specifically reserving to himself this right. However, the seller agrees not to solicit the employment of any of the employees of the Manley Sand Company, a partnership, if he should engage in this business, either personally or as a partner or a corporation, provided, however, that he may hire such employees, if they seek employment from him.

“It is further agreed by and between the parties hereto that the sale of the above interest in the partnership will be consummated on or before thirty (30) days after the date hereof, and at the same time that the seller disposes of his stock in the Portage-Manley Sand Company, an Illinois corporation.”

Under the supplemental agreement dated October 27, 1952, plaintiff sold, assigned and transferred to Dwight E. Manley all of his interest in “said Manley Sand Company except his interest in the good-will . . .” and “The party of the second part (Lyle T. Manley) specifically recites that he is not selling his interest in the good-will of the partnership.” It is interesting to note that in this latter agreement, the name of “Manley Sand Company” is also used four times.

In Decatur Lumber & Manufacturing Co. v. Crail, 350 Ill. 319, our Supreme Court holds that the object of construction of contracts is to ascertain the intention of the parties. In Domeyer v. O’Connell, 364 Ill. 467, at page 470, the court states:

“That intention is to be determined from the language used in the instrument and not from any surmises that the parties intended certain conditions which they failed to express.”

Plaintiff contends that because he reserved his interest in the good will of the partnership, this carried with it the right to prevent others from using the name of Manley Sand Company. This does not necessarily follow. The name is not the only element which goes into the making up of the species of property known as good will. The good will of a business may be defined to be the advantage which it has from its establishment or from the patronage of its customers, over and above the mere value of its property and capital. 40 Am. Jur. (Partnership), Sec. 109, page 203. It is admitted by plaintiff in his brief that name is a “part” of good will.

There is nothing in the contracts of sale prohibiting the use of the name by the continuing partners. A reading of same indicates that the continued use of the name by the remaining partners was intended, for the contracts each specifically mentioned the name four times; and, why would plaintiff agree that he would not solicit the employment of any of the employees of the “Manley Sand Company, a partnership, if he should engage in this business” ? This definitely was looking to the future. And, why would all the parties agree that plaintiff might hire such employees, if they sought employment from him? As stated in the Domeyer case, supra, at page 470:

“An implied intention is one necessarily arising from language used or a situation created by such language. If such intention does not necessarily arise it cannot be implied. On the other hand, absence of a provision from a contract is evidence of an intention to exclude such provision. Certainly, the fact of such absence cannot, of itself, give rise to an implied intention to include it.”

A partner cannot be deprived of his interest in the good will of his partnership without his consent. Ch. 106½, Ill. Rev. Stats. (1953), Par. 9 (3b) and Par. 18 (h) [Jones Ill. Stats. Ann. 97.09, subd. (3) (b), 97.18, subd. (h) ]. By his sale plaintiff disposed of his interest and right to manage and control the partnership, his right to sign checks, borrow money or otherwise handle the financial affairs of the partnership, and the buyer, Dwight E. Manley, agreed to assume immediately the handling of all the financial affairs of the partnership. The remaining partners were free to use their interest in the Manley Sand Company in any manner in which it might serve their purpose, so long as they did not violate any provisions of the contracts.

There is another significant factor respecting the intent of the parties as expressed in the 1952 contracts which cannot be ignored. These contracts were entered into by two of the three partners operating under the name Manley Sand Company by virtue of the 1945 contract. The third partner, May B. Manley, mother of the other two, did not enter into the 1952 contracts and, of course, they are not binding against her. Yet her interest cannot be ignored. Without her consent, how could plaintiff and the other partner enter into an agreement the intent of which was to prevent the further use of the name Manley Sand Company?

We may gain another insight of the intent of the parties to the 1952 contracts, wherein plaintiff withdrew from the partnership, by referring to the withdrawal provisions set out in the then existing 1945 partnership agreement. Paragraph 7 of that agreement provides as follows:

“Inasmuch as the partners desire that this business be continued until there be only one surviving member of the present partnership, the partners do hereby mutually agree . . .

“In the event either Lyle T. Manley or Dwight E. Manley desire to retire from said partnership he shall notify the other in writing of such desire and the other shall have an option for a period of thirty (30) days after such written notice to purchase said partnership interest of such retiring partner at a figure which shall equal the book worth of the interest of the retiring partner’s interest and good will as hereinafter established.

“In the event a partner retire, the remaining partners hereby agree to continue the said partnership and to save and keep harmless the retiring partner from any and all liability on account of such partnership.”

In conformity with the provisions of the above-quoted paragraph, Dwight Manley contracted in the 1952 agreements to release the plaintiff from all partnership liabilities, hereinbefore or hereinafter disclosed, to indemnify plaintiff from any loss or liability whatsoever growing out of said partnership, and in general, to hold him harmless from all partnership obligations. These were valuable considerations furnished by one of the remaining partners to the selling partner, the plaintiff. Had the parties intended to deviate from the terms of the 1945 agreement, such deviation should have been expressly spelled out and certainly cannot be read into the 1952 contracts by implication.

It was for the trial court to pass upon the credibility or weight of the testimony of the witnesses. There was evidence in the record which justified the trial court’s finding and judgment. The general rule in equity cases is that great weight should be attached to the findings of the chancellor, and that they will not be reversed unless clearly against the weight of the evidence. Sohio Corp. v. Gudder, 375 Ill. 622; Flynn v. Troesch, 373 Ill. 275; Dalbey v. Hayes, 267 Ill. 521; Zimmerman v. Zimmerman, 242 Ill. 552; Beall v. Dingman, 227 Ill. 294; Glasser v. Essaness Theatres Corp., 346 Ill. App. 72.

From a careful consideration of the whole record, we are of the opinion that the evidence amply justifies the decree of the circuit court, and it is, accordingly, affirmed.

Decree affirmed.

DOVE, J., concurs.


author: PRESIDING JUSTICE BURKE.

text:
    Dewey Hyman et al., Copartners, Doing Business as H. Hyman and Co., Plaintiffs-Appellants, v. 230 So. Franklin Corporation; Arthur Rubloff & Co.; American National Bank and Trust Company, Individually and as Trustee Under Trust No. 7515; Samuel R. Ballis et al., Individually and as Co-partners, Doing Business as Jackson-Franklin Building, Defendants-Appellees.
    Gen. No. 46,537. (Abstract of Decision.)
    First District, First Division.
    June 13, 1955.
    Released for publication September 15, 1955.
    Hinshaw, Culbertson, Moelmann & Hoban, for plaintiffs-appellants;
    John L. Kirkland, of counsel; Immenhausen, Banovitz So Balin, for defendants-appellees;
    Meyer C. Balin, of counsel; Schuyler, Richert So Stough, for defendant-appellee Arthur Rubloff So Co.;
    Jay Stough, and Joseph R. Julin, of counsel.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


text:
    Christine De Salvo, Appellee, v. Thomas De Salvo, Appellant. Christine De Salvo, Defendant in Error, v. Thomas De Salvo, Plaintiff in Error.
    Gen. Nos. 46,565, 46,601. (Abstract of Decision.)
    First District, First Division.
    June 13, 1955.
    Rehearing denied September 12, 1955.
    Released for publication September 15, 1955.
    Herbert M. Wetzel, and Arthur Frankel, for appellant and plaintiff in error;
    Demetri M. Spiro, of counsel;
    Nathan M. Gomberg, for appellee and defendant in error;
    Sidney D. Missner, of counsel.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


author: JUSTICE FRIEND.

text:
    Charles Baratta, Appellee, v. Chicago, Rock Island & Pacific Railroad Company, Appellant.
    Gen. No. 46,445. (Abstract of Decision.)
    First District, First Division.
    June 13, 1955.
    Released for publication September 15, 1955.
    Milton V. Thompson, Thomas I. Megan, and Erwin W. Roemer, for defendant-appellant;
    Erwin W. Roemer, and Joseph P. Carr, of counsel;
    Irving Zazove, for appellee;
    William C. Wines, of counsel.
   Opinion by

JUSTICE FRIEND.

Not to be published in full.


author: JUSTICE NIEMEYER.

text:
    Robert Leider and Edith Leider, Plaintiffs-Appellees, v. Donald Campbell, Defendant-Appellee, and William Hadeler, Defendant-Appellant. Donald W. Campbell, Plaintiff and Counterdefendant-Appellee, and Dorothy G. Campbell, Plaintiff-Appellee, v. William Hadeler, Defendant and Counterclaimant-Appellant.
    Gen. No. 46,427. (Abstract of Decision.)
    First District, First Division.
    June 13, 1955.
    Released for publication September 15, 1955.
    Wyatt Jacobs, and Robert 0. Rooney, for defendant-appellant;
    Joseph B. Lederleitner, of counsel;
    C. Jerome Bishop, for plaintiffsappellees and cross-appellants;
    Charles D. Snewind, of counsel;
    McNamara, Voight, Greene & Nordstrand, and Albert M. Howard, and Winston, Strawn, Black & Towner, for Donald and Dorothy Campbell, appellees;
    Oswell G. Treadway, Douglas C. Moir, and Edward J. Wendrow, of counsel.
   Opinion by

JUSTICE NIEMEYER.

Not to be published in full.


text:
    Michael F. Mulcahy, Late Sheriff of Cook County, for Use of Tillie Ulrich, Appellee, v. Charles J. Ulrich and Raymond Klingbeil. Raymond Klingbeil, Appellant.
    Gen. No. 46,611. (Abstract of Decision.)
    First District, First Division.
    June 13, 1955.
    Released for publication September 15, 1955.
    Joseph Lust-field, for appellant;
    John H. Ehardt, and Arthur A. Lieberman, for appellee.
   Opinion by

JUSTICE NIEMEYER.

Not to be published in full.


author: PRESIDING JUSTICE MCCORMICK.

text:
    Joseph Kopald, and E. Kopald, Doing Business as NuWay Siding and Construction Co., Appellants, v. Alexander J. O’Gradney et al., Appellees.
    Gen. No. 46,535. (Abstract of Decision.)
    First District, Second Division.
    June 28, 1955.
    Rehearing denied August 2, 1955.
    Released for publication September 13, 1955.

      Harry E. Kopald, for appellants;
    Morris K. Levinson, of counsel;
    Bryant, Colwell & Wells, for appellees;
    Christopher E. Jones, of counsel.
   Opinion by

PRESIDING JUSTICE MCCORMICK.

Not to be published in full.


author: PRESIDING JUSTICE McCORMICK.

text:
    Ernest Stocco, Appellee, v. William J. Buttenbender, Appellant.
    Gen. No. 46,548. (Abstract of Decision.)
    First District, Second Division.
    June 28, 1955.
    Released for publication September 13, 1955.
    Crowe, Yates, Abrahamson & Fisk, for appellant;
    Burt A. Crowe, of counsel;
    Joseph Barbera, for appellee.
   Opinion by

PRESIDING JUSTICE McCORMICK.

Not to be published in full.


author: JUSTICE DOVE.

text:
    Helene V. Turchi, Plaintiff-Appellant, v. Roman L. Turchi, Defendant-Appellee.
    Gen. No. 10,851. (Abstract of Decision.)
    Second District.
    August 24, 1955.
    Rehearing denied September 13, 1955.
    Released for publication September 14, 1955.
    Singer & Singer, for appellant;
    Diver, Diver & Ridge, for appellee.
   Opinion by

JUSTICE DOVE.

Not to be published in full.


author: MB. JUSTICE BOBSON

text:
    Vera Sims, Appellee, v. Chicago Transit Authority, Appellant.
    Gen. No. 45,820.
    First District, Second Division.
    June 28, 1955.
    Rehearing denied October 11, 1955.
    Released for publication October 11, 1955.

      Thomas C. Strachan, Jr., James 0. Dwight, Marion J. Hannigan, Arthur J. Donovan, and John W. Freels, all of Chicago, for appellant.
    Bruce Parkhill, of Chicago, for appellee.
   MB. JUSTICE BOBSON

delivered the opinion of the court.

The Supreme Court has reversed this court’s decision in Sims v. Chicago Transit Authority, 351 Ill. App. 314, and has remanded the case to this court with directions to decide the issues relating to defendant’s motion for new trial. We are, therefore, called upon to decide two questions: 1. Was the verdict contrary to the manifest weight of the evidence? 2. Was it reversible error to allow the issue of the carrier and passenger relation to go to the jury?

As to the first point, the evidence as set forth in our previous opinion is that shortly before the accident plaintiff got off defendant’s car in the middle of the block. Cars were lined up ahead of the streetcar from which she alighted as far as the intersection. She had the choice of going to the west curb which was closest to her, then to the street intersection where the crosswalks were blocked and where pedestrians were crossing, or of going through the narrow passage between two cars and picking her way across the southbound tracks and then to the curb on the opposite side of the street. In choosing this latter course, her vision of any car which might be approaching was necessarily obscured. A car was approaching from the opposite direction and as plaintiff approached the northbound track she was injured [the theory of plaintiff was that she threw up her hands and was then so close to the northbound track that her hand was struck by the louver (a ventilating lid projecting a few inches from the car) and she was thrown to the ground].

In our previous opinion we had concluded that she was guilty of contributory negligence as a matter of law. That question has been resolved by the Supreme Court, and as the facts upon which that conclusion was reached do not differ materially from those set out in our previous opinion we conclude there is no evidence for us to weigh on that point. We proceed therefore to a discussion of the question of the manifest weight of the evidence.

There was a sharp conflict in the evidence as to the rate of speed the streetcar was going just prior to the time of the accident and before it struck the plaintiff. The estimates of the witnesses as to speed varied from six to twenty miles an hour. There was a sharp conflict as to whether or not a gong was sounded. There was a sharp conflict as to whether or not plaintiff rushed between the cars or proceeded slowly. The testimony of plaintiff’s witnesses in each instance supported one set of facts and defendant’s witnesses, who were greater in number, supported another. The trial judge who heard and saw the witnesses approved the verdict by his denial of defendant’s motion for new trial. When the testimony is contradictory this court will not substitute its judgment as to the weight to be given the testimony and as to the credibility of the witnesses for that of the trial court which heard and saw them. Bellm v. Henry, 336 Ill. App. 525, 532; Olin Industries, Inc. v. Wuellner, 1 Ill.App.2d 267, 271.

In the light of the analysis of the record and the law as set forth in the opinion of the Supreme Court pertaining to the question of due care and in view of the conflicting statements of the witnesses as to the speed of defendant’s streetcar, the sounding of the gong and the manner in which plaintiff proceeded between the streetcars, we cannot now say that the verdict was against the manifest weight of the evidence.

As to the question of the submission to the jury of the issue of carrier and passenger relationship and its effect upon the verdict in this case, in our previous opinion we reached the conclusion that plaintiff had ceased to be a passenger prior to the accident. The Supreme Court in its opinion said (pp. 65-66): “. . . the place where plaintiff was discharged was as reasonably safe as the circumstances permitted. Therefore, it can properly be found that plaintiff ceased to be a passenger, and that defendant owed her only the duty of ordinary care. (West Chicago Street Railway Co. v. Buckley, 102 Ill. App. 314.)” We understand this as confirming our finding that the relationship of passenger and carrier had ceased.

It was therefore error for the court to have submitted the issue of carrier and passenger relationship to the jury. The question is whether that constituted reversible error. This is not an error in the form of the instruction but a substantial error which has to do with the standard to be applied by the jury in measuring the duty owed by the defendant. Moreover, it is not only a difference in the measure of duty, but a broader aspect which we must consider. The difference is between the application of “highest degree of care consistent with practical operation” owed by defendant to plaintiff as a passenger and the ordinary care owed to a pedestrian. But the practical effect of applying the carrier-passenger doctrine is often tantamount to saying' that defendant was an insurer of plaintiff’s safety. To reach a conclusion on this point there are certain matters that we must take into, consideration. The record reveals that when defendant made its motion for directed verdict at the close of all the evidence the question of the carrier-passenger relation was raised by it and argued by the parties before the court outside the presence of the jury. The court overruled defendant’s motion. At the same time the court granted plaintiff leave to amend the charges of negligence in her complaint by inserting the following language: “In failing’ to afford plaintiff, as a passenger on the said southbound streetcar, a safe place to alight,” in lieu of the following language which was in the complaint: “In causing the plaintiff as a passenger on the said southbound streetcar to alight therefrom at a point that was in the middle of a block and not at a street intersection.”

Among the instructions given for plaintiff was one which reads as follows:

“You are further instructed that the relation of carrier and passenger does not terminate until the passenger has alighted from the streetcar and left the place where passengers are discharged and the duty of the carrier to its passenger continues until the passenger has had a reasonable time in which to leave the alighting place. If you find from the evidence and under the instructions of the court that the plaintiff before the occurrence in question was a passenger on a streetcar operated by the defendant and thereafter alighted from that streetcar, and if you further find that before being injured she had a reasonable time in which to leave the alighting place, then you are instructed that as a matter of law she was not a passenger of the defendant at the time of her injury, if any.” In addition to this, plaintiff’s instruction No. 1 was a summary of the allegations of the complaint and included in it was this language: “In failing to afford plaintiff, as a passenger on the said southbound streetcar, a safe place to alight.” Instructions Nos. 23 and 28, one of which was peremptory, referred to the allegations of the complaint. Instruction No. 26 informed the jury of the responsibility of a common carrier to its passengers riding upon or alighting from its trains.

In its motion for a new trial defendant set forth as one of the grounds that “There was error in instructing the jury concerning the termination of the relation of passenger and carrier.” Defendant also referred to this in its brief. It has properly preserved the question of whether it was error to submit the case to the jury together with plaintiff’s given instructions pertaining to the issue of the carrier and passenger relationship. Borrowdale v. Sugarman, 347 Ill. App. 390; and cf. Goldschmidt v. Chicago Transit Authority, 335 Ill. App. 461.

Generally, presumptions upon review favor judgment, and the burden is upon the appellant to point out the errors, if any, calling for its reversal. 222 East Chestnut St. Corp. v. Murphy, 325 Ill. App. 392, 399. There is a presumption that a general verdict under several counts or issues, some of which are good and some bad or unsupported by any evidence, is based on the evidence supporting the good counts or issues. Scott v. Parlin & Orendorff Co., 245 Ill. 460, 466-8, and cases there cited. See also Chicago, B. & Q. R. Co. v. Warner, 108 Ill. 538, 548-9. This presumption obtains apparently even when an instruction on the unsupported counts or issues is submitted to the jury. See Chicago City Ry. Co. v. Foster, 226 Ill. 288, 290; and cf. Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154, 162.

A court of review assumes, as it must, at least one important proposition when it invokes this presumption. It assumes that the intelligence of the jurors enabled them to discriminate between those counts or issues proved and those unproved (Scott v. Parlin & Orendorff Co., supra, at 466), and that the error below was not of such a character as could have reasonably affected their ability to discriminate intelligently (Challiner v. Smith, 396 Ill. 106, 112).

In determining whether to invoke the presumption, the reviewing court should consider whether the evidence is close on the facts or sharply conflicting, and whether the error of submitting the unsupported issues to the jury was such as could reasonably have affected its verdict. Where the error charged has to do with the character of the proof required, there is a strong tendency toward reversal. Thus, it is generally considered reversible error, where the jury is erroneously instructed with respect to a presumption of negligence, or where there is an unsupported charge of undue influence in a will contest case, or where a charge of willful and wanton negligence is erroneously submitted. Chicago City Ry. Co. v. Rood, 163 Ill. 477; Barnes v. Danville St. Ry. & Light Co., 235 Ill. 566; Challiner v. Smith, supra; DeMarco v. McGill, 402 Ill. 46; Greene v. Noonan, 372 Ill. 286; and cf. Crisler v. Chicago City Ry. Co., 204 Ill. App. 491, 492. The rule fairly deducible from these cases is that unless the reviewing court can say that on retrial the result could not be otherwise, the cause must be remanded toward the end that the party bringing error may secure substantial justice. Where the reviewing court can see the case has been fairly tried, and that the judgment is clearly right upon the facts, and that consequently another trial must necessarily result the same way, it will not reverse on the ground that an erroneous issue has been submitted to the jury. Quite a different rule prevails where the case is a close one on the facts. In such a case where the evidence is about evenly balanced, the reviewing court will reverse for any substantial error in the trial court on a material question that may have turned the scale in favor of the successful party. Chicago, B. & Q. R. Co. v. Warner, 108 Ill. 538, 554-5; and cf. Toledo, W. & W. R. Co. v. Jones, 76 Ill. 311, 314.

It is elementary that every party has the right to have the law applicable to his case stated fairly, clearly, distinctly and conveyed to the jury with substantial accuracy so that it may not be misled to the prejudice of the party. Chicago, B. & Q. R. Co. v. Payne, 49 Ill. 499; Illinois Cent. R. Co. v. Maffit, 67 Ill. 431, 435; Chicago & A. R. Co. v. Robinson, 106 Ill. 142, 144-5; Lyons v. Joseph T. Ryerson & Son, 242 Ill. 409, 416; Chicago City Ry. Co. v. Canevin, 72 Ill. App. 81, 83; West Chicago St. R. Co. v. Schenker, 78 Ill. App. 592, 593; Gibbons v. Southern Illinois Ry. & Power Co., 199 Ill. App. 154, 161; Seley v. Eckhardt, 233 Ill. App. 584; Elmore v. Cummings, 321 Ill. App. 234; and cf. Townsend v. Chicago Transit Authority, 1 Ill.App.2d 77, 83. He has the right to have the jury instructed upon his theories of recovery or defense. Chicago, B. & Q. R. Co. v. Warner, supra; Chicago Union Traction Co. v. Mee, 218 Ill. 9; Chicago & E. I. R. Co. v. Jennings, 190 Ill. 478; Young v. Illinois Cent. R. Co., 319 Ill. App. 311, 323; Elmore v. Cummings, supra. Failure to give a party these rights which are tantamount to a fair and just trial, whenever the case is close upon its facts or the evidence conflicting, and the failure is material, requires that the verdict be set aside, the judgment reversed and the cause remanded for new trial.

The complaint in the instant case contained five allegations of negligence. Under four of these defendant was required to exercise only ordinary care, but under the fifth the carrier-passenger relation was alleged and defendant was charged with the highest degree of care. Plaintiff did not sustain the allegation as to the relation of carrier and passenger. The court, however, denied defendant’s motion at the close of all the evidence on the question and allowed the issue to go to the jury. If the court had allowed defendant’s motion, the jury would have considered and applied only the standard of ordinary care, but instead the jury had to consider whether the passenger-carrier relationship existed and, if so, apply the higher standard of the high degree of care owed by defendant to plaintiff as a passenger. As a result plaintiff was allowed to give five instructions to the jury that emphasized the carrier-passenger relation. Under these circumstances it cannot be said that the law as it applied to the defendant was conveyed fairly, clearly and with substantial accuracy to the jury so that it was not prejudiced.

Applying the law heretofore stated to the facts of the instant case, it is apparent that the error was of such a character as could reasonably affect the ability of the jurors to discriminate intelligently between the counts or issues proved and those not proved. Further, we cannot say that remanding this case for a new trial must once again result in a verdict and judgment for the plaintiff. We therefore conclude that the erroneous submission to the jury of the carrier-passenger issue and the instructions pertaining to it under the circumstances could have misled or unduly influenced the jury in arriving at its verdict.

The judgment of the trial court is reversed and the cause remanded for new trial.

Judgment reversed and cause remanded.

McCORMICK, P. J. and SCHWARTZ, J., concur


author: MR. JUSTICE CROW

text:
    People of State of Illinois ex rel. Clarence L. Anderson et al., Plaintiffs-Appellants, v. Community Unit School District No. 201 of Mercer County, Illinois, and Board of Education of Community Unit School District No. 201 of Mercer County, Illinois, Defendants-Appellees.
    Gen. No. 10,850.
    Second District.
    July 22, 1955.
    Rehearing denied October 7, 1955.
    Released for publication October 10, 1955.

      James C. Alien, State’s Attorney of Mercer county, of Aledo, and Love & Beal, of Monmouth, for plaintiffs-appellants.
    Hebei, Ives & Davis, of Aledo, for defendantsappellees; George 0. Hebei, of Monmouth, of counsel.
   MR. JUSTICE CROW

delivered the opinion of the court.

On August 5, 1953, the State’s Attorney of Mercer County, on the relation of Clarence L. Anderson, Ira B. Smith and John T. Simpson, filed a complaint in the nature of quo warranto, in the Circuit Court of Mercer County, against Community Unit School District No. 201 of Mercer County, and the Board of Education of Community Unit School District No. 201 of Mercer County,' charging defendants unlawfully hold and exercise jurisdiction without warrant over a territory of about 27 square miles, which had been annexed by defendant, Community Unit School District No. 2.01, and disconnected from the adjacent Unit District No. 400. Defendants answered and seek to justify by setting forth certain facts incident to the election which brought about the annexation, the furnishing of facilities in District No. 201 for the education of pupils, and transportation by bus to schools therein furnishing education facilities. They further answered by alleging that the territory involved by annexation was contiguous and adjacent to Unit School District No. 201 prior to annexation; that two petitions were filed July 11, 1952, with the County Superintendent of Schools who called an election for August 7,1952, and published notice thereof in three newspapers and posted 10 notices in different districts and 10 notices in the territory to be annexed, designated voting precincts, polling places, appointed election officials and prepared and delivered ballots, canvassed the vote after the election was held, found the proposition carried and made a certificate of his said acts and doings, and filed the same, with a map of the territory annexed, with the County Clerk of Mercer County. As an affirmative defense, defendants allege that they assumed jurisdiction over the territory, rearranged its transportation schedules, its classroom facilities and its personnel to take care of the additional pupil load in the area, and that the plaintiffs are guilty of laches and should be barred from this action. Defendants set forth nine exhibits in their answer.

Plaintiffs replied to the answer averring that the petition pleaded by defendants as two petitions, were, in fact, three petitions; that each petition was separately circulated and separately bound and so remained; that no two of the three petitions were alike and that “a petition” such as is required by statute was never filed with the County Superintendent of Schools; that the descriptions in the petitions were conflicting, indefinite and ambiguous; that the disputed territory is not contiguous and adjacent to the annexing district; that the boundaries of the disputed territory split specified farming units and buildings of seven named persons, including relators and others, so as to eliminate and gerrymander their residences from the disputed territory, — all to deprive the relators and similarly situated persons of their property without due process of law and contrary to the constitution. A motion to strike plaintiff’s reply was denied. The defendants’ rejoinder denied every “material allegation” set forth in the reply. The plaintiff’s motion to strike the defendants’ rejoinder was denied.

Evidence was taken and witnesses were heard by the trial court over the objections by the plaintiff, and the court, on January 20, 1955, found that the defendants have proper jurisdiction and authority over the territory, found the defendants not guilty, and entered judgment for the defendants. The plaintiffs in their appeal claim that (1) the defendants failed to justify by pleading or proof of an official record of the official acts of the County Superintendent of Schools; (2) no one of the three separate annexing petitions comply with the statute so as to constitute “a petition”; and (3) plaintiff’s special challenges constitute triable issues, established by denial of the defendants’ motion to strike the reply, assuming such challenges are relevant to the issues.

The defendants’ exhibits pleaded by their answer include the following: Exhibit 2 purports to be a petition signed by Charles Barrington et al., and purporting to be signed by a certain number of legal voters residing in Community School District No. 400 and circulated by one Harold C. Smallwood, and a further petition purporting to be signed by one John Keating and other residents and legal voters in the disputed area, and circulated by one John Keating; Exhibit 3 purports to be a petition signed by George 0. Hebei et al. and a certain number of legal voters residing in School District No. 201, circulated by one Walter W. Burton; Exhibit 4 purports to be a certificate of publication by a newspaper on July 23, 1952 of notice of election; Exhibits 5, 6, and 7, purport to be copies of official ballots of election for precincts 1, 2, and 3, respectively; and Exhibit 8 purports to be a certificate, unsworn to, not sealed, and without any file mark, of E. A. Johnson, County Superintendent of Schools of Mercer County, as to his acts and doings with respect to the election, dated August 8,1952, this exhibit when offered in evidence being Exhibit 18 and when so offered it also bore a stamp mark “August 19, 1952— Filed-O. H. Lee, Clerk, Mercer County, Illinois,”— and there is nothing attached to that exhibit.

The defendants’ exhibits as offered in evidence include, among others, substantially the same as those attached to the answer, though not necessarily by exactly the same exhibit number. Exhibit 18 in evidence is the same as Exhibit 8 pleaded by the answer, as stated above.

The County Superintendent of Schools testified, over the objection of plaintiff, that Exhibits 2, 3, and 4, as offered in evidence, being the same as Exhibits 2 and 3, as attached to the answer, were filed in his office July 11, 1952, at 9:50 o’clock a. m.; that he then called an election, which was held August 7, 1952, and posted a notice of election in 20 places, caused notices of election to be published, named the judges and clerks of election, designated precincts in District No. 201, and in the territory to be annexed; designated polling places in each precinct and prepared ballots. On cross-examination he admitted, however, that photostatic copies of and the originals of Exhibits 2 and 3 had no filing mark; and he said that a photostatic copy of Exhibit 4 had no filing mark, although he said that the original of that Exhibit 4 has written thereon “three copies filed in my office July 11, 1952 at 9:50 o’clock a. m., by George Hebei, E. A. Johnson — County Superintendent of Schools,” but, Exhibit 4 as incorporated in the record before us, at p. 320, indicates no such filing mark or any other filing mark thereon. He further testified that the only record he had of his actions with respect to the election is defendants’ Exhibit 18, as offered in evidence; that he did not make or enter any order declaring the result of that election, or make any order disconnecting or annexing the territory in question other than as and that which appears in defendants’ Exhibit 18.

The applicable statute at the time was Ch. 122, Ill. Rev. Stats. 1951, par. 8—14 [Jones Ill. Stats. Ann. 123.857(6)], which, so far as material, read as follows:

“When a petition is filed with the county superintendent of schools under whose direction a community unit school district has been established, signed by at least fifty (50) legal voters or twenty per cent (20%) of the legal voters residing in any territory contiguous and adjacent to said community unit school district and also signed by at least fifty (50) legal voters or twenty per cent (20%) of the legal voters residing in such community unit school district, asking that said territory described in the petition be detached from the school district or school districts of which it is part and annexed to the community unit school district, or in case the territory consists of a whole school district that it be dissolved and the territory annexed to the community unit school district, the county superintendent of schools shall call an election to be held in the manner provided in Article 5A of this Act within thirty (30) days after the filing of the petition, at which the voters of the territory described in the petition and of the community unit school district to which the territory is to be annexed shall vote upon the proposition.

“If a majority of the votes cast at any such election in the territory to be detached and in the community unit school district to which the territory is to be annexed shall each be in favor of the boundary changes, the county superintendent of schools shall within ten (10) days after the election file a map with the clerk or clerks showing the boundaries of the districts as determined by the election, whereupon the county clerk or clerks shall extend taxes against the territory in the school districts in accordance with such determination. . . .”

It is clear from the exhibits attached to the answer, together with the exhibits offered in evidence, that there is no official record of the County Superintendent to the effect that any petition which may have been left with him was “filed” with him, or that any petition so “filed” was “signed” by the required minimum number of “legal voters” residing in the territories concerned, “asking that said territory described in the petition be detached from the school district — and annexed to the community unit school district,” and there is no official record of an order of the County Superintendent of Schools for a “call” of “an election to be held in the manner provided in Article 5A” of the Act concerned. We find no specific statutory warrant or authority in Ch. 122, Ill. Rev. Stats. 1951, par. 8—14 for the type of certificate of the County Superintendent which appears herein as defendants’ Exhibit 18 in the evidence.

It appears that the complaint did not allege any specific facts as to why the exercise of the alleged right by the respondents over the area concerned was without warrant, right, or lawful authority, but the complaint does charge generally that the defendants were acting in the area without warrant, right, or lawful authority. Under this state of the pleadings, it then became incumbent on these defendants to disclaim or justify. In order to justify, they must set out facts and show their lawful authority to exercise the rights claimed. This court, on appeal from a judgment against the plaintiffs, must determine if the defendants have so justified. The case of the respondents depends and must depend upon the official record of the County Superintendent, which he must keep currently in the course of the proceedings, and the validity of the proceedings shown by it. Although the plaintiffs elected not to file a motion for judgment against the answer of the defendants, standing objections and motions to strike, as to parol and other evidence offered by the defendants, were timely made by plaintiffs.

It is essential that the official record to be kept in the course of the proceedings show the existence of every fact necessary to authorize the County Superintendent to act: Southworth v. Board of Education, 238 Ill. 190; Highway Commissioners v. Smith, 217 Ill. 250. He could not act upon the petition until he had made an investigation and determination as to whether the petition complied with the statute: Trustees of Schools et al. v. Hoyt, 311 Ill. 532; People ex rel. Mark v. Hartquist et al., 311 Ill. 127; Bierbaum et al. v. Smith, 317 Ill. 147. Parol evidence cannot be heard to aid or contradict the record,- — the record is the only lawful evidence of action-taken: People ex rel. Pfeiffer v. Morris et al., 365 Ill. 470; People ex rel. Mark v. Hartquist et al., 311 Ill. 127. A recital in the petition itself that its signers are legal voters is no evidence of the fact: McKeown et al. v. Moore, 303 Ill. 448. A petition having no evidentiary value in itself may not be accepted and acted upon as a basis for calling an election, where there is no finding by the County Superintendent of its conformity to the requirements of the statute and the conditions precedent to the right to call an election.

The giving of notice of election is jurisdictional and it must be shown by the official record. In Bierbaum et al. v. Smith, 317 Ill. 147, the court in passing on this question of notice says, p. 148-9:

“. . . The specific objection pointed out is that the record of the proceedings of the board of education fails to show that notices of election as provided by statute were posted.

“The record of the proceedings of the board of education fails to show that the required notices were posted. Appellants contend that a certificate of posting notices made by the secretary of the board and filed by him in his office May 10, 1923, was a sufficient compliance with the law. In this certificate, as secretary, he certifies that on the third day of May, 1923, he posted at least ten notices of election (a copy of the posted notices being attached to the certificate) in at least ten of the most public places within each voting precinct in the district, specifying in the certificate the places where such notices were posted. It has been repeatedly held by this court that the giving of notice of an election such as this is jurisdictional, that without it a hoard of education has no power to act, whatever may be the result of the election, that the acts of a board of education must be manifested by its record, and unless the record shows that notice was given as required by statute the election is void. Southworth v. Board of Education, 238 Ill. 190; Roberts v. Eyman, 304 Ill. 413; People v. Hartquist, 311 Ill. 127, and 315 Ill. 228.”

We have considered People ex rel. Frailey v. McNeely et al., 376 Ill. 64, a case referred to by the defendants, and find nothing in it at variance with our views.

The defendants contend that a delay of one year in filing this complaint constitutes laches which justifies the court in entering judgment for the defendants. Mere lapse of time does not estop the people, and, in any event, no facts appear herein which should estop them: People ex rel. Mark v. Hartquist, 311 Ill. 127.

There are other errors relied upon by the plaintiffs in this appeal but in view of our finding with respect to the lack of an official record of the County Superintendent of Schools with respect to the proceedings involved, we are not called upon to discuss them.

The trial court erred in finding- the defendants were exercising lawful jurisdiction and authority over the area in question, in finding the defendants not guilty, and in entering judgment for the defendants. That judgment will be reversed and the cause remanded, with directions to the trial court to enter a judgment finding the defendants guilty as charged in the complaint, giving judgment of ouster against the defendants as to the area in question, and giving judgment in favor of the relators for the costs of the prosecution.

Reversed and remanded, with directions.

DOVE and EOVALDI, JJ., concur.


author: MB. JUSTICE REYNOLDS

text:
    Bertie Lee Robinson, Administrator of Estate of James Robinson, Deceased, Plaintiff-Appellee, v. William F. Workman, Defendant-Appellant.
    Gen. No. 10,014.
    Third District.
    September 21, 1955.
    Rehearing denied October 7, 1955.
    Released for publication October 7, 1955.

      George P. Proctor, of Lewistown, for appellant.
    Ezra J. Clark, and James F. Scott, both of Canton, for appellee.
   MB. JUSTICE REYNOLDS

delivered the opinion of the court.

This case grows out of a collision between the automobile in which William F. Workman and James Robinson were riding, and one driven by Karolyn Woodcock, on the evening of November 4th, 1953. The accident occurred on Illinois Highway No. 9, at a point about two miles east of Canton, Illinois. The weather conditions were good and the pavement was dry. The time was about 5:30 p. m. and the lights of cars on the highway were on. In the collision, James Robinson was killed. Other than the people involved, no one saw the actual collision and it was stipulated that the driver of the other car, Karolyn Woodcock, if called as a witness would testify that she remembered nothing about it, immediately prior to or at the time of the accident. There was no direct testimony as to who was driving the defendant’s car. The evidence shows there were only two persons in the defendant’s car, the deceased, James Robinson, and the defendant. The defendant, of course, was not competent to testify as to which one of them was driving. After the accident, the defendant’s car was overturned and witnesses who arrived at the scene of the accident before the people were moved, testified generally, that Robinson was near the front of the car and the defendant was in back of him, that is, to the rear of the car. There was testimony that one shoe was found wedged between the accelerator and the transmission case of the Workman car. It is not clear whether or not this shoe belonged to Workman, but there is some evidence that Workman did not have a shoe on either foot immediately after the accident. Workman was injured about the left heel, was cut just below the chin, had some loosened teeth and was bleeding about the ears. Workman complained of pain in his back, but there were no outward evidences of wounds to the back. Robinson was badly cut about the head and face and one knee was badly scratched. Just what caused Bobinson’s death does not appear in the record. There was no post mortem examination.

The defendant’s wife testified that the glass in front of the driver’s seat was broken out, but that in front of the passenger’s side, the glass was still intact.

It was testified that Bobinson could drive a car and had driven a car in the past. There was some testimony that Bobinson was a man of careful and cautious habits. This was rebutted in part by the testimony of police officers who testified that they had known Bobinson for several years; that he used liquor frequently; had been arrested several times for intoxication; had a reputation for excessive use of intoxicating liquors and was what they called a weekend man. There was no evidence that either Bobinson or the defendant had been drinking or that any liquor was found in the car. There was evidence that the Workman car was weaving from side to side on the road, and the speed of the Workman car was estimated at something over 50 miles per hour, based upon the speed of the car it passed, and one following.

The administrator of the estate of James Bobinson, deceased, brought suit against the defendant William F. Workman, claiming Bobinson was a guest; that his death was the result of alleged wilful and wanton misconduct on the part of the defendant by reason of driving on the wrong side of the road, excessive speed, and by causing his automobile to come into collision with the car driven by Karolyn Woodcock. The cause was tried before a jury and the jury found the defendant guilty and assessed damages at $20,000. From that verdict and the judgment entered thereon, the defendant appeals to this court.

The defendant raises four questions. First, that there is no evidence that the defendant was driving the car in question. Second, that there was no evidence tending to prove that the defendant, if driving, was guilty of any wilful or wanton conduct, or that the deceased was free from wilful and wanton misconduct. Third, that the verdict of the jury was against the manifest weight of the evidence and fourth, that the trial court erred in giving plaintiff’s instructions Nos. 17, 21, 22, 24 and 25.

Taking up the first point raised by the defendant, it must be conceded that there is no direct evidence to show that the defendant was driving the car owned by Workman. So far as the evidence is concerned, Robinson could have been driving and Workman riding alongside. In fact, the evidence would tend to support this theory. When found, Robinson was at the front of the car and Workman to his rear. Workman was cut about the chin and foot but otherwise not marked up, while Robinson was badly cut about the face and head. The windshield in front of the driver was broken out, which could account for the cuts on Robinson’s face. All this however, is purely circumstantial and the fact remains that there is no substantial evidence as to which one of the two was driving. But, the plaintiff contends, the answer of the defendant admits that Workman was driving. Paragraph 6 of the complaint says: “That at said time and place plaintiff’s intestate, the said James Robinson, was riding in said motor vehicle or automobile as a guest of the said defendant.” Paragraph 6 of the answer admits the guest relationship in the following words: “This defendant admits the allegations of paragraph 6 of said complaint.” The guest relationship being admitted, does this by implication admit that the defendant was driving? We do not think so. “Where the circumstances surrounding the parties indicate that the considerations inducing the defendant to extend transportation to the plaintiff were primarily those of hospitality or sociability, it has been held that the mere fact that the plaintiff assisted with the driving, even where such assistance was contemplated from the beginning of the trip, would be insufficient to change the status of the plaintiff from that of a guest to that of a passenger.” American Law Reports, Annotated, 10 A.L.R.2d 1364. Here there was no evidence as to the reason why Robinson was in the car with the defendant. He may have been driving, at his own request, or at the request of the defendant.

The cases cited by the plaintiff do not resolve this question. A guest has been defined as “one who the operator of a motor vehicle invites to ride with him as an incident of hospitality, companionship or the like without financial or other return except such casual benefits as may be extended as a part of ordinary courtesies.” Dirksmeyer v. Barnes, 2 Ill.App.2d 496 at page 502. We understand the use of the word “operator” to be synonymous with “owner.” Here the one person who could testify as to who was driving, namely, the defendant William F. Workman, was by objection on the part of the plaintiff barred from testifying as to what happened. That is the law in Illinois, and neither party can complain. In the case of Ashby v. Irish, 2 Ill.App.2d 9, the defendant had stated that he was the driver of the car. There was other evidence to show that the defendant was the driver, and the court in that case held that there was substantial evidence tending to prove that the defendant was the driver. That substantial evidence is lacking here. In Jacobs v. Illinois Nat. Bank & Trust Co., 345 Ill. App. 30, the court held that the question of who was driving the car was a question of fact and like any other fact might be proved by circumstantial as well as by direct evidence; that a greater or less probability, leading, on the whole, to a satisfactory conclusion is all that is required to establish controverted facts by circumstantial evidence and that only where there is a complete absence of probative facts to support that conclusion reached does a reversible error occur. Here, a careful analysis of the evidence fails to show any probative facts upon which a conclusion that the defendant was driving could be based. We must therefore reach the conclusion that the plaintiff failed to prove that the defendant was driving the Workman car. On that conclusion, it is immaterial whether the issue was contested or not at the trial. However, we are inclined to agree with the defendant, that if it was an issue in the trial, the plaintiff cannot now contend that it was admitted by the pleadings and is of necessity an admitted fact.

We think the conclusion reached by this court that there is no proof that the defendant was driving the car as a practical matter also concludes the question as to wilful and wanton conduct on the part of the defendant, or the lack of wilful and wanton conduct on the part of the plaintiff’s intestate. If the defendant was not driving the car, he could not be guilty of wilful and wanton misconduct in the operation of the car, in the absence of proof that he was directing, controlling or managing the driving. The weaving about on the road and the collision might impute misconduct on the part of the driver, whoever he was. But again, there is a lack of sufficient proof to show that the defendant was guilty of such wilful and wanton misconduct, and a lack of sufficient proof to show that the plaintiff’s intestate was not guilty of such wilful and wanton misconduct. As was said in the case of Jacobs v. Illinois Nat. Bank & Trust Co., 345 Ill. App. 30, “Before this plaintiff is entitled to recover he must prove the material allegations of his complaint. The burden is upon him to prove by a preponderance of the evidence, direct or circumstantial, that his intestate was riding in an automobile driven by Yardley as a guest-passenger, that plaintiff’s intestate had no control over the driver of the car or control over its operation and that the driver of the car in which he was a passenger was guilty of wilful and wanton misconduct and that he, plaintiff’s intestate, was free from wilful and wanton misconduct which proximately contributed to his death.” In that case, as in this case, the answer does not appear in the record. All is speculation and conjecture. There is no substantial evidence in the record of this case to prove who was driving; whether Robinson was a guest passenger or a passenger for hire. There is nothing to prove that plaintiff’s intestate did anything to prevent the accident or that the accident was not in fact due to interference by the plaintiff’s intestate with the driver, if Workman was the driver. The mere facts of the collision and the weaving on the road, are not enough to answer these questions, or to support the allegations in the complaint. Speed or excessive speed is a circumstance which may be taken into consideration bearing upon the presence of wilful and wanton misconduct under certain circumstances. Signa v. Alluri, 351 Ill. App. 11. Here, the evidence fails to show excessive speed under the circumstances. The collision itself, in the absence of other proof is not enough. The weaving about on the road, might be sufficient if there was some evidence as to who was driving and so forth.

Although the courts have had occasion to define wilful and wanton misconduct in many cases, it has always been done in general terms and with no attempt to indicate that any particular type of misconduct may be said to be wilful and wanton under all circumstances. Misconduct which falls within the category designated as being wilful and wanton is generally said to be conduct exhibiting a reckless disregard for the safety of others or conduct under circumstances indicating a conscious indifference to its consequences. Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569; Provenzano v. Illinois Cent. R. Co., 357 Ill. 192; Bartolucci v. Falleti, 382 Ill. 168; Ashby v. Irish, 2 Ill.App.2d 9. But in all the cases, it has been held that the burden of proving that the driver’s conduct was wilful and wanton is one that must be discharged by greater weight or preponderance of evidence and can: not be made to rest upon speculation or conjecture or circumstances from which evidence of freedom from such wilful and wanton misconduct might he equally compatible with that of guilt of such conduct. Tygett v. Penry, 344 Ill. App. 427, citing Pure Torpedo Corp. v. Nation, 327 Ill. App. 28, 39-41.

In this case, the burden was upon the plaintiff to prove the following matters: 1. That the defendant was driving. 2. That the defendant was guilty of some act of misconduct, showing a reckless disregard for the safety of others. 3. That the plaintiff’s intestate was free from any such misconduct. 4. That the act or acts complained of was the proximate cause of the death of the plaintiff’s intestate. The burden of proving these matters has not been met.

We are impelled to hold that the verdict of the jury was against the manifest weight of the evidence. This being our view, it is unnecessary to pass on the instructions- objected to. If the case is tried again any error therein will no doubt be avoided on a new trial.

We are reluctant to reverse a jury verdict which has been approved by the trial court, but this appears to us to be a case where it is demanded.

Judgment reversed and cause remanded for a new trial.

Reversed and remanded.


author: MB. JUSTICE DOVE

text:
    County of Will, Plaintiff-Appellant, v. Cecil H. Stanfill et al., Defendants-Appellees.
    Gen. No. 10,839.
    Second District.
    September 27, 1955.
    Released for publication October 17, 1955.

      CROW, J., dissenting.
    Frank H. Masters, Jr., and Charles H. Blim, both of Joliet, for appellant.
    Oscar B. Laraway, and Robert E. Higgins, both of Joliet, for appellees.
   MB. JUSTICE DOVE

delivered the opinion of the court.

County of Will filed its complaint in the Circuit Court of Will County against the defendants, Cecil H. Stanfill, Juanita B. Stanfill, Jimmie C. Cutler, Rena S. Bernhardt, Charles A. Lane, Dona A. Lane, and Ralph Sanchez. Subsequently the suit was dismissed as to the defendant Cutler. The prayer of the complaint was that the several defendants be restrained from further violating the provisions of the Will County Zoning Ordinance by the maintenance of a dwelling upon the several parcels of real estate described in the complaint and that the defendants be required to remove said dwellings from the described property.

The complaint consisted of five counts, count one being directed against the defendants, Cecil H. and Juanita B. Stanfill; count two was directed against defendant, Cutler; count three was directed against defendant, Bernhardt; count four was directed against defendants, Charles A. and Dona A. Lane; and count five was directed against the defendant, Ralph Sanchez. The several counts are substantially the same other than the property described therein and the names of the defendants.

Count one set forth the applicable portions of the Will County Zoning Ordinance and alleged that since the enactment thereof, the defendants Stanfill had erected a portable dwelling unit, commonly known as a house trailer, on certain described real estate, and that under the terms and provisions of the Will County Zoning Ordinance this property of the defendants had been classified as an R-2 Residential District and charged that the defendants, in erecting said dwelling on said property, did so in violation of the provisions of the Will County Zoning Ordinance in that the described property contained less than one-sixth of an acre (7,260 square feet), as required by Section 13 of the ordinance. It was then alleged that the maintenance of said dwelling upon this property constitutes a continuing violation by the defendants of the zoning ordinance.

By their answers, the defendants admitted that under the provisions of the Will County Zoning Ordinance defendants’ properties were classified as an R-2 Residential District but denied that they had erected a portable dwelling unit upon the described property and averred that the zoning ordinance was not legally enacted and is invalid because the zoning map referred to in the ordinance does not legally constitute a part of the zoning ordinance, and that said zoning ordinance contains no legal map of the zoning districts or classifications sought to be created therein, and that the classification given to their property was arbitrary, unjust, oppressive, capricious, and unreasonable and, therefore, illegal and void, being repugnant to the due process clauses of the Constitutions of Illinois and of the United States of America.

After a hearing, the chancellor entered a decree dismissing the complaint on the ground that house trailers were not mentioned in the zoning ordinance and that the zoning map was not properly identified as being a part of the Will County Zoning Ordinance. To reverse this decree, plaintiff appeals.

The record discloses that a comprehensive zoning ordinance for Will County was adopted by its Board of Supervisors on September 9, 1949, which was subsequently, on August 28, 1951, revised. Section 1 is entitled “Definitions,” and among the words defined is “erected,” which is defined to mean, “set up, raised, built or moved into place.” Section 4 of that ordinance is entitled “Zoning Districts” and, in part, provides: “(a) CLASSIFICATION: For the purposes of this ordinance, all the land in Will County lying outside the limits of cities, villages and incorporated towns is hereby divided and classified into the following districts, listed in order from the highest, (Residential) ‘Rl,’ to the lowest, (Unrestricted) ‘U.’

“1. R-l District (Residential)

“2. R-2 District (Sparsely Occupied Residential)

“3. R-3 District (Residential Apartments and Multiple Family Residences)

“4. F District (Farming or Agriculture)

“5. B-l District (Business)

“6. B-2 District (Business, Taverns)

“7. B-3 District (Business, Package Liquor Stores and Amusements) ■1

“8. B-4 District (Business, Tourist Camps, Cabins, Trailer Camps)

“9. 1-1 District (Light Industry)

“10. 1-2 District (Heavy Industry)

“11. U District (Unrestricted)

“(b) ZONING MAPS: Such land and the classification thereof shall be as shown on maps designated ‘The Zoning Maps of Will County, Illinois.’ These maps shall be numbered consecutively and there shall be at least one map for each township, each map to be signed and dated by the County Clerk upon adoption. These zoning maps, and all notations, colors, dimensions, references, and symbols shown thereon, pertaining to such districts, shall be as much a part of this ordinance as if fully described herein, and shall be filed as a part of the ordinance with the County Clerk. Such maps, or other maps certified as showing the districts created and approved, shall be available for public reference in the offices of the County Clerk and the County Zoning Enforcing Officer. Later alterations of any of these maps, adopted by amendment as hereafter provided, shall be similarly signed, dated, filed and made available for public reference.

“(c) ADDITIONAL AREAS: Any addition to the area regulated by this ordinance as shown on the zoning maps, resulting from disconnection by municipalities or otherwise, shall be automatically placed in the R-l (Residential) District until otherwise classified by amendment.”

The evidence is that in conjunction with the zoning ordinance there was filed in the office of the County Clerk of Will County twenty-five zoning maps drawn to scale. One of these maps is marked “Page 12, Manhattan Twp. T. 34 N, R. 11 E, 3rd P. M. Will County, Illinois. Filed, Sep. 9, 1947, Joseph H. Hartley, Co. Clerk, Will Co. Ill.” The sections are numbered one to thirty-six inclusive. The C. M. St. P. & P. R R and Wabash R R are indicated as traversing the township; Jackson and Prairie Creeks, the Old Indian Boundary Line and Five Mile, Grove School, Patón, Manhattan Center, Pfundstein, Barr, Mud Creek and Geuther Schools are located; also, the Village of Manhattan, which is marked “Not Subject to County Zoning”; Fairview and Manhattan Terrace Subdivisions are indicated, as well as paved and secondary highways. At the bottom of the map there is a map key, with lines, symbols and rectangular spaces, some shaded under the words “Land Uses,” indicating how the township is zoned, viz.: Residential, R-2; Business I, B-1; Business 2, B-2; Light Industry, L-I; Unrestricted, U; Residential, R-1; Agriculture, F; Forest Preserve; Heavy Industry, 1-2; Joliet Arsenal and Water Features. There also appears at the side of the map the words, “Additional zones created or modified by Ordinance of the County Board, Aug. 28,1951,” and beneath these words are four shaded or solid color rectangles marked “Multiple Residence,” “Tavern,” “Package Store,” and “Trailer Camp,” respectively.

Joseph H. Hartley testified that he was the County Clerk of Will County and that this zoning map of Manhattan Township was brought to his office by Mr. Robinson, a member of the zoning board on September 9th, 1947, and was marked filed by him and is the only zoning map of Manhattan Township, Will County, Hlinois, in his office. This map heretofore referred to has been certified to this court and an examination thereof discloses that the properties of the several defendants were classified therein as Residential, R-2.

Myrtle Montgomery testified that she was the Deputy County Clerk of Will County and, as such, acted as Clerk of the County Board of Supervisors and that she first saw the map in question at the meeting of the County Board of Supervisors on the day the ordinance was adopted, September 9,1947; that this map was one of a series covering all of the townships in Will County; that the maps were on file in the County Clerk’s office and that when people came into the County Clerk’s office to see the zoning maps, one of the maps which would be given to such persons for examination would be the map certified to this court as the zoning map of Manhattan Township.

The evidence is that the defendant, Bernhardt, owns a tract of land 25 feet by 100 feet upon which a house trailer is located which is occupied by the defendant, Sanchez, and his family. The defendants, Charles A. Lane and Dona Lane, own a tract of land 50 feet square upon which a house trailer was moved in July 1953, and Mr. and Mrs. Lane occupy this trailer as their home. The defendants, Cecil H. and Juanita B. Stanfill, own a tract of land 25 feet by 50 feet upon which they moved their house trailer in June 1953, and since that time they have occupied the trailer as their home. These several trailers are on wheels and each is connected with sewer, water and electricity. The several tracts of land, which they occupy, are portions of lots in Fail-view, which is a subdivision adjoining the Village of Manhattan and is along Route 52, as the same runs in a northwesterly direction from the Village of Manhattan. This subdivision is unincorporated and is a sparsely built-up residence subdivision. It contains 83 lots, 5 of which are of irregular shape and the other 78 have a frontage of 50 feet and vary in depth from 125 feet to 165 feet. In addition to these house trailers, there are 15 houses in this subdivision, all but one of which face Route 52. All of the unimproved lots and portions of lots not occupied by house trailers are in asparagus and blue grass or devoted to agricultural purposes.

The zoning ordinance which forms the basis of this action was adopted by the Board of Supervisors of Will County pursuant to the provisions of the County Zoning Act of 1935 (Ill. Rev. Stats. 1953, ch. 34, sec. 152i et seq. [Jones Ill. Stats. Ann. 33.190(1) et seq.]). Section 152o of that Act [Ill. Rev. Stats. 1953, ch. 34, § 152o; Jones Ill. Stats. Ann. 33.190(7)] provides that in case any building or structure is erected or maintained or used in violation of any County Zoning Ordinance, the proper authorities of the county may institute any appropriate proceeding in equity to prevent such unlawful use, and to restrain, correct or abate such violation.

Subparagraph (b) of section 4 of the Zoning Ordinance as above set forth provides, among other things, that the classification of the land of the defendants shall be shown on a map designated as a zoning map of Will County, which map shall be signed and dated by the County Clerk upon the adoption of the ordinance. It is the contention of counsel for appellees that the zoning map of Manhattan Township offered and admitted in evidence upon the hearing is not legally ae part of the Zoning Ordinance because (1) it was not designated as a zoning map of Will County; (2) it was not signed by the County Clerk and (3) it bore no designation identifying it as one of the zoning maps of the county. There is no merit in this contention. The evidence is that this Zoning Ordinance was adopted by the Board of Supervisors on September 9, 1947, after a survey committee, appointed by the board, together with R. R. Robinson, an employee of the county, had spent the summers of 1945, 1946 and 1947 driving over the county and mapping the location of every house, business place and other data, and among the places visited and meetings held was the Town Hall at the Village of Manhattan. At the time the ordinance was adopted, there were no trailers located on the premises involved in this proceeding.

This map of Manhattan Township does not bear a legend designating it as a zoning map of Manhattan Township, as the ordinance provides, but an examination of it shows that the words “Manhattan Twp. T. 34 N, R. 11 E, 3rd P. M. Will County, Illinois” appear thereon as does also the words “Land Uses.” It was filed by the County Clerk and his name and file mark appear thereon. The Deputy County Clerk, who served as Clerk of the Board of Supervisors at the time this ordinance was adopted, testified she first saw this map on September 9, 1947, at the meeting of the Board of Supervisors that day; that it is one of a series of maps of the several townships of the county which were filed in the clerk’s office in conjunction with the Zoning Ordinance of Will County; that these maps have remained in the County Clerk’s Office ever since, are known as the Will County zoning maps and were filed with the Zoning Ordinance. On cross-examination, the Deputy Clerk testified that the ordinance referred to certain maps and that the maps she was testifying about and identified were the maps referred to- in the ordinance and that she knows this to be true “because they are the only maps we have. They are kept up to date showing the changes. They are on a shelf in the County Clerk’s office where they can be examined by anyone who is interested.” A casual examination of this map discloses that it is a zoning map of Manhattan Township, Will County, Illinois. It bears words and markings so indicating. It bears the file marking of the County Clerk with his name and date. It came into the office of the County Clerk by the hands of the Deputy County Clerk, who received it in her capacity as Clerk of the Board of Supervisors -at the same time and in conjunction with the Zoning Ordinance.

From a consideration of the map itself and the testimony as found in this record, the only reasonable conclusion to be drawn therefrom is that this map of Manhattan Township is a part of the Will County-Zoning Ordinance. The facts in County of Winnebago v. Niman, 397 Ill. 37, cited and relied upon by counsel for appellees, are so different from the facts in the instant case that it is of little help to a correct decision of this suit. In the Miman case, the court found there was no map in existence which portrayed the territory where the defendants’ property lay; that the evidence was in irreconcilable conflict as to whether the map which was offered as allegedly covering the defendants’ property had ever been present at the meeting of the Board of County Supervisors at the time the Zoning Ordinance was adopted and that there was no substantial evidence in that case that the map had ever been filed in the office of the County Clerk of Winnebago County. In the instant case defendants’ properties are located in Manhattan Township and the map of Manhattan Township, which we hold was a zoning map of that township and a part of the County Zoning Ordinance, shows that defendants’ properties were classified as being in a Besidential, B-2, District.

In McQuillin’s Municipal Corporations (3rd Ed.), Vol. 8, pages 472-473, the general rule in respect to defects and irregularities in the enactment or amendment of zoning ordinances is stated as follows: “Generally, methods set out in zoning statutes must be substantially, if not strictly, followed in the enactment or amendment of zoning ordinances or resolutions. Furthermore, a municipal legislative body must substantially follow the regulations it has itself established relative to zoning. It cannot deviate from existing regulations or make exceptions therefrom on behalf of individuals. However, certain procedural irregularities, such as failure of filing or the like, not clouding the legislative intention, do not affect the validity of a zoning ordinance or regulation.” In De Lano v. City of Tulsa, 26 F.2d 640, 645, it was held that the failure to file a zoning ordinance with the proper officer was a procedural irregularity which would not affect the validity of the ordinance.

The Zoning Ordinance in the instant case required the zoning maps to be signed and dated by the County Clerk upon the adoption of the Zoning Ordinance and required that the zoning maps be filed as part of the ordinance by the County Clerk. The evidence discloses that the maps were received by the clerk as a part of the Zoning Ordinance when he received the Zoning Ordinance. He thereupon placed or caused to be placed thereon these words and figures; viz.: “Filed, Sep. 9, 1947, Joseph H. Hartley, Co. Clerk, Will County, Illinois.” This was a substantial compliance with the provisions of the ordinance, and it clearly appears from the land use map of Manhattan Township, which was offered and admitted in evidence, and forms the basis of this action, that the property of defendants involved in this proceeding was classified therein as “R-2 (Sparsely Occupied Residential).” This legislative intention is not clouded by the absence of the personal signature or words of designation omitted by the County Clerk.

By Section 4 of the Will County Zoning Ordinance, an R-1 District is described as being residential and an R-2 District as being sparsely occupied residential, and trailer camps are confined to a B-4 or some lesser district. The word “erected” as used in Section 13 of the Zoning Ordinance is defined in Section 1 thereof as follows: “Erected: Set-up, raised, built or moved into place.” This definition would clearly bring a trailer within the meaning of “erected.”

It is next insisted by counsel for appellees that the application of the provisions of the Zoning Ordinance to the premises of appellees, classifying them as Residential R-2, is not conclusive; that such classification is an arbitrary, capricious and unreasonable one and that this court should so find. In support of this contention, counsel cite Johnson v. Village of Villa Park, 370 Ill. 272. In that case the owners of certain property in the Village of Villa Park sought an injunction restraining the Village from enforcing certain provisions of a Zoning Ordinance which prohibited the owners from operating an undertaking establishment on the premises in question located at the northwest corner of a block 377 feet long, 127 feet of which was zoned for business uses and 250 feet for “Class B. Residential” purposes. The ordinance set forth the uses to which property in this classification could be put to. In commenting on this, the court said that the ordinance attempted to define what it called a “Class B. Residential” district, but in fact designated something quite different and held that the attempted classification was purely capricious and bore no relationship to the public welfare. The facts in the instant case are in no sense analogous to those in the Villa Park case and there is nothing held in that case that is determinative of the issues presented by this record.

In County of Du Page v. Henderson, 402 Ill. 179, the Supreme Court said (p. 188): “The appellants charge in this court that the classification of their property as nonindustrial in the ordinance amounts to a capricious invasion and an unreasonable invasion of their property rights. The presumption of the validity of that classification must be overcome by proof made by defendants which is clear and convincing. (City of Springfield v. Vancil, 398 Ill. 575.) The defendants have not supplied the proof required. The uses permitted and forbidden in the ‘F’ district were the result of the considered judgment of the zoning commission and the board of supervisors, all based upon a survey and analysis of the area involved by competent persons. The fact such judgment may lead to an honest difference of opinion, which leaves the subject open for debate, does not warrant this court intruding in the role of a zoning commission. All questions concerning the wisdom or desirability of particular restrictions in a zoning ordinance must be addressed to the legislative body specifically charged with determining them. Evanston Best & Co. v. Goodman, 369 Ill. 207.”

Counsel further argue that, under Section 6 of the Zoning Ordinance, which provides that until duly reclassified by the Zoning Authorities, R-2 Districts may continue to be used for all agricultural purposes except that horses, mules, cattle, sheep, goats, swine, poultry or other animals, such as commercial kennels for dogs or foxes, may not be housed, stabled or kenneled closer than fifty feet from any residence other than that of the owner or user of the property, the lands of the defendants could be used for farming with its domestic animals, including cows, sheep, pigs and horses, with its attendant unsanitary condition, but could not be used as a family dwelling, and insist that this shows the classification of their property to be arbitrary and unreasonable. Defendants overlook that the use of such land for farming purposes could only be made until the lands were reclassified by the Zoning Authorities, which, of course, might be done at any time. We do not believe that Section 6 results in an arbitrary and unreasonable classification of defendants’ property.

The decree of the Circuit Court of Will County is reversed, and this case is remanded to that court with directions to grant plaintiff the relief prayed.

Reversed and remanded with directions.

EOVALDI, J., concurs.

CROW, J., dissents.