author: MR. JUSTICE BRYANT

text:
    People of the State of Illinois ex rel. John F. Bolton, Jr., Director of Insurance of the State of Illinois, Plaintiff-Appellee, v. Progressive General Insurance Company, an Illinois Corporation, Defendant-Appellant.
    Gen. No. 52,267.
    First District, Second Division.
    July 21, 1967.
    Thomas P. Sullivan, Robert E. Pfaff, Hugh M. King and George B. Collins, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.
    William G. Clark, Attorney General, of Springfield and Lee A. Freeman and Jerome H. Torshen, Special Assistant Attorneys General, of Chicago (Law Offices of Jerome H. Torshen, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an interlocutory appeal from an order of the Circuit Court of Cook County directing the rehabilitation of the defendant Progressive General Insurance Company (hereafter referred to as Progressive). This order was entered first on the 19th day of May 1967 and was reentered as an amended order on the 22nd day of May 1967. The findings upon which they were based are identical in both the original and the amended order. The Director of Insurance was ordered to take possession of the property, business and affairs of Progressive, to proceed to conduct the business of Progressive and to remove the causes which necessitated the proceedings. The basic issue on this appeal is whether the chancellor was justified, on the basis of the record before him, in taking over the business and assets of Progressive, and vesting them in the Director of Insurance.

The present action began in October, 1965. Extensive hearings were held before the master in chancery and the trial court. It was found that Progressive and its president, Charles Hoffman, Jr. had committed several serious violations of the Illinois Insurance Code. Some of the more serious violations are as follows: (1) Loans in the aggregate amount of $812,000 were made to Hoffman, personally in violation of Insurance Code, section 124.2; (2) Immediately prior to the issuance of quarterly reports by Progressive, Hoffman secured bank loans, which aggregated close to $1,000,000 executed by Progressive Agency and secured by all of the uncollected premiums due to Progressive on policies outstanding, in violation of section 505 of the Insurance Code; (3) Premiums were transmitted in bulk instead of being identified to individual policies in violation of Rule 9.08 of the Department of Insurance; and (4) The defendant operated under an exclusive agency agreement without ever submitting the agreement to the Director of Insurance for approval as required by section 141 of the Insurance Code, all as shown in the findings in the original and the amended order.

During the pendency of these proceedings, Charles Hoffman, Jr., Progressive’s president, was indicted, tried and convicted in the United States District Court on charges arising out of his association with the present defendant and the Mutual Insurance Exchange over which he had complete control. Upon the conviction of Hoffman, the Director of Insurance moved for the appointment of a rehabilitator and for other relief. Following the taking of evidence the chancellor found that the defendant was operating without a surety bond as required by Rule 9.04, supra; that each of the newly elected officers and directors were long-standing associates of Charles Hoffman, Jr. and that Charles Hoffman, Jr. retained ownership and control over Progressive. Based on these findings the chancellor issued the order which is the subject of this appeal.

The insurance industry is one which affects a great many people. For this reason the courts have held that the insurance business is one which effects the public interest and is subject to the supervision and control of the state. People ex rel. Benefit Ass’n v. Miner, 387 Ill 393, 56 NE2d 353; People ex rel. American Bankers Ins. Co. v. Palmer, 363 Ill 499, 2 NE2d 728. The sections of the Insurance Code under which the Director proceeded in this case reflect the concern of the State of Hlinois in this area. Chapter 73, section 800 is as follows:

“Sec. 800. Grounds for rehabilitation and liquidation of domestic company
“Whenever any domestic company
“(a) is insolvent; or
“(b) has refused to submit its books, papers, accounts, records or affairs to the reasonable inspection or examination of the Director or his actuaries, supervisors, deputies, or examiners; or
“(c) has neglected or refused to observe an order of the Director to make good within the time prescribed by law any deficiency, whenever its capital, if a stock company, or its required surplus, if a company other than stock, shall have become impaired ; or
“(d) has, by articles of consolidation, contract of reinsurance or otherwise, transferred or attempted to transfer its entire property or business not in conformity with this Code, or entered into any transaction the effect of which is to merge substantially its entire property or business in any other company without having first obtained the written approval of the Director pursuant to the provisions of this Code;or
“ (e) is found to be in such condition that its further transaction of business would be hazardous to its policyholders, or to its creditors, or to the public; or
“(f) has violated its charter or any law of this State or has exceeded or is exceeding its corporate powers; or
“ (g) has an officer who has refused upon reasonable demand to be examined under oath touching its affairs; or
“ (h) is found to be in such condition that it could not meet the requirements for organization and authorization as required by law, except as to the amount of the surplus required of a stock company in section 13 (Section 625 of this chapter), and except as to the amount of the surplus required of a mutual company in excess of the minimum surplus required by this Code to be maintained; or
“ (i) has ceased for the period of one year to transact insurance business; or
“(j) has commenced, or has attempted to commence, any voluntary liquidation or dissolution proceeding, or any proceeding to procure the appointment of a receiver, liquidator, rehabilitator, sequestrator, or a similar officer for itself; or
“(k) is a party, whether plaintiff or defendant in any proceeding in which an application is made for the appointment of a receiver, custodian, liquidator, rehabilitator, sequestrator, or similar officer for such company or its property, or a receiver, custodian, liquidator, rehabilitator, sequestrator or similar officer, for such company or its property is appointed by any court, or such appointment is imminent; or “(1) consents by a majority of its directors, stockholders or members; or
“ (m) has not organized and obtained a certificate authorizing it to commence the transaction of its business within the period of time prescribed by the sections of this Code under which it is or proposes to be organized; or
“ (n) has refused or neglected to pay any valid final judgment within 30 days after the rendition thereof, then the Director shall report any such case to the Attorney General of this State whose duty it shall be to apply forthwith by complaint on relation of the Director in the name of the People of the State of Illinois, as plaintiff, to the Circuit Court or Superior Court of the county in which such company has, or last had its principal office, for an order to rehabilitate or liquidate the defendant company as provided in this article, and for such other relief as the nature of the case and the interests of its policyholders, creditors, members, stockholders or the public may require. In lieu of the county where such company has or last had its principal office, such application may be made to the Circuit Court of Cook County or the Circuit Court of Sangamon County in case where the complaint is based on the facts set forth in one or more of subsections (i), (1) or (m) of this section. 1937, June 29, Laws 1937, p 696, Sec 188; 1959, July 17, Laws 1959, p 1422, Sec 1; 1963, May 13, Laws 1963, p 932, Sec 1.”

For present purposes the relevant sections are (e), (f) and (h). It should be noted that defendant’s contention that rehabilitation is appropriate only in situations where there is financial irregularity is not supported by any reading of the above provisions.

The Director of Insurance also relies on chapter 73, section 767.4(1), which is as follows:

“(1) The Director shall not approve any declaration of organization or articles of incorporation or issue a certificate of authority to any company until he has found that (a) the company has submitted a sound plan of operation, and (b) the general character and experience of the incorporators, directors and proposed officers is such as to assure reasonable promise of a successful operation, based on the fact that such persons are of known good character and that there is no good reason to believe that they are affiliated, directly or indirectly, through ownership, control, management, reinsurance transactions or other insurance or business relations with any person or persons known to have been involved in the improper manipulation of assets, accounts or reinsurance.”

It is the contention of the defendant that the chancellor erred in issuing his order for the reason that the order reverses the status quo and is not required or supported by the evidence. We disagree.

The status quo to which the defendant would have the court allow it to return is that of an outrageous and continuing history of callous disregard for the rules and regulations of the Department of Insurance. We have already noted that rehabilitation is not limited to instances of financial irregularities. It is also clear that chapter 73, section 767.4 provides a basis for the action of the chancellor. The defendant argues that the standards therein apply only to officers elected at the time of organization. Sound public policy and the clear legislative intention to carry out that policy do not support the defendant’s position. To so limit the meaning of this section would place a restriction on the section which the general assembly did not intend. In short, the legislative mandate is extremely clear.

The defendant claims that a fidelity bond has been issued, thus making the issue whether the action of the chancellor was appropriate by reason of the criminal conviction of Charles Hoffman, Jr. There was evidence, however, that the fidelity bond was issued four days after the order of rehabilitation was entered and that it was directly connected with the future operation of the company under the Director of Insurance and the chancellor. The bond was only issued after the bonding company was of the opinion that the defendant would be operated under the direction and supervision of the Department of Insurance. Whether the bond was issued before or after the chancellor’s order is of no consequence.

The long series of violations which we have set out elsewhere, the conviction of the president of the defendant of crimes related to his business, and the appointment of officers who were more than associates but who had entered into all the activities complained of and who were named as directors with full accord and belief in their wisdom and integrity, provides more than ample basis for the chancellor’s action in this case.

The chancellor found that “sufficient cause exists as of this date (May 19, 1967) for the rehabilitation of Progressive General Insurance Company” after hearing evidence and extensive arguments, and we agree. We are also satisfied that the procedure set forth in section 155.-04 was followed. It provides that “(1) The Director shall not approve any declaration of organization . . . until he has found that . . . the general character and experience of the incorporators, directors and proposed officers is such as to assure reasonable promise of a successful operation, based on the fact that such persons are of known good character and that there is no good reason to believe that they are affiliated, directly or indirectly, through ownership, ... or other insurance or business relations with any person or persons known to have been involved in the improper manipulation of assets, accounts or reinsurance.”

Progressive also argues that Hoffman has offered to place all of the stock of the company into a voting trust to be administered by an independent corporate trustee. This action was taken only after the chancellor had declared that a voting trust would be unsatisfactory and the chancellor rejected this offer. We find no abuse.

For the above reasons the order of the Circuit Court entered May 19, 1967, and reentered as an amended order of May 22, 1967, is affirmed. This order of course is only interlocutory and operative only pending the final hearing on the merits.

Order affirmed.

LYONS, P. J. and BURMAN, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE ABRAHAMSON

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earl Kraft, Defendant-Appellant.
    Gen. No. 67-6.
    Second District.
    July 21, 1967.
    Knight, Ingrassia and Schirger, of Rockford, for appellant.
    Dexter A. Knowlton, State’s Attorney of Stephenson County, of Freeport, and Woodruff A. Burt, Assistant State’s Attorney, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant appeals from a judgment of the Circuit Court of Stephenson County, based on a jury verdict, which found him guilty of a violation of the Illinois Rabies Control Act and imposed a fine in the sum of $100, the maximum penalty provided by the Act.

Section 5 of the Rabies Control Act (Ill Rev Stats, 1965, c 8, § 23 (i)) provides in part as follows:

“Each calendar year, or at such intervals as may hereafter be promulgated by the Department, every owner of a dog, 4 months or more of age not confined at all times to an enclosed area, shall cause such dog to be inoculated against rabies by the Rabies Inspector, or by his deputy, or by any licensed veterinarian . .

Section 13 provides that a fine for the violation of the Act shall be not less than $25 nor more than $100.

Although several points are raised as possible grounds for reversal, we shall concern ourselves only with that portion of the Act that we have quoted.

Three witnesses testified for the State. A deputy from the County Rabies Inspector’s office stated that he visited the defendant’s farm on June 9, 1965, to inquire if their dog had been inoculated. He talked to a teenage daughter of the defendant at the farm house and learned that their dog had never been inoculated although it was over six years old. While he was speaking with the girl he heard a dog barking but did not see a dog or the defendant. He gave the girl a ticket that provided that the dog would have to be inoculated within 10 days.

The County Rabies Inspector and Veterinarian testified that he also visited the defendant’s farm around the 7th of July as a routine procedure when the defendant failed to comply with the ticket. He also talked with the daughter and during his conversation he heard a dog barking but did not see it. The sounds of the barking, he stated, came from “outside the house in the yard towards the barn.”

Mareine Kraft, the daughter of the defendant, testified that it was her dog and had never been inoculated. She further stated that the dog was kept in an old woodshed adjoining the barn behind the house. The shed had no door and could only be entered through a window about two to two and a half feet above the ground. The dog was tied by a chain to a wall in the back of the shed and, according to the girl, had never in its entire life been off the chain or out of the shed. The dog was fed by members of her family through the window which had no glass or other covering.

At the conclusion of this testimony, the defendant moved for a directed verdict. The motion was denied and when no defense was offered the jury returned a verdict of guilty and judgment was entered from which this appeal is prosecuted.

The defendant urges that the evidence thus adduced shows that his dog was “confined at all times to an enclosed area” and was therefore not subject to annual inoculation. The State, on the other hand, takes a position that the shed, as described by the girl, was not an “enclosure” as that term is used in the Rabies Control Act since the window had no covering and afforded access to the shed for all who chose to enter. The County Veterinarian testified that rabies was transmitted by numerous small animals that presumably could have entered the shed and passed the disease to the dog chained to the wall.

The term “enclosed area” as used in this Act has not previously been subject to judicial review. An “enclosure” has been defined as “something that encompasses, surrounds, shuts or fences in . . .” as it applies to an act relating to the prohibition of gambling devices. People v. McDonald, 26 Ill2d 325, 330, 186 NE2d 303. The State urges that the title of the Rabies Control Act, “An act in relation to the control and prevention of rabies . . .” indicates a legislative intent that only those dogs that are entirely isolated from all possible outside contact are relieved of the necessity of annual inoculation. We cannot agree with such a severe interpretation.

A shed, with four walls, a floor and a roof, is obviously an "enclosed area” in any ordinary definition of that term. That the dog was confined to the shed is beyond argument since the only evidence on that point was that it was permanently chained to the wall. To accept the argument of the State would require that all dogs be annually inoculated unless they were permanently isolated from all possible contact.

If the Legislature had intended such a narrow exception to the requirement of inoculation it clearly would not have employed a term as broad as "enclosed area.” Ordinarily, words or terms used in statutes must be given their ordinary and plain meaning unless such construction will obviously defeat the intention of the Legislature. Droste v. Kerner, 34 U12d 495, 503, 217 NE2d 73; Nelson v. Union Wire Rope Corp., 31 I112d 69, 100, 199 NE2d 769. We are unable to construe the term “enclosed area” to mean, for all practical purposes, a permanent quarantine.

We therefore conclude that the only evidence before the trial court indicated that the defendant’s dog was “confined at all times to an enclosed area” and was not subject to annual inoculation. The motion for a directed verdict at the close of the State’s case was improperly denied.

Reversed.

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


author: MR. PRESIDING JUSTICE MORAN

text:
    Minnie Maki, Administrator of the Estate of Charles Raymond Maki, Deceased, Plaintiff-Appellant, v. Calvin Frelk, Defendant-Appellee.
    Gen. No. 66-16.
    Second District.
    July 26, 1967.
    Rehearing denied September 18, 1967.
    Steinberg, Polacek and Steinberg, of Chicago, for appellant.
    O’Brien, Burnell, Puckett & Barnett, of Aurora, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

On October 16, 1964, plaintiff’s decedent was killed in an intersection collision at Route 47 and Plato Road in Kane County. Plaintiff, as Administrator of the Estate of Charles Raymond Maki, Deceased, filed a three-count complaint, basing her cause of action upon the Wrongful Death Act. (Ill Rev Stats 1965, c 70 §§ 1 and 2.) Count three of her complaint did not allege that the plaintiff’s decedent was in the exercise of ordinary care for his own safety at the time of the collision in question, but did allege “that at times relevant hereto if there was any negligence on the part of the plaintiff or the plaintiff’s decedent it was less than the negligence of the defendant, Calvin Frelk, when compared.”

The defendant moved to dismiss count three for failure to state a cause of action because the plaintiff failed to allege due care on behalf of plaintiff’s decedent. This motion was allowed and the plaintiff appealed directly to the Supreme Court on the theory that the Illinois rule of contributory negligence was against the Fourteenth Amendment of the United States Constitution and article II, sections 2 and 19 of the Illinois Constitution. Our Supreme Court entered, in part, the following order.

“In our opinion such a claim (which referred to plaintiff’s theory and reasoning) does not give rise to a constitutional question of such a nature as to give this Court jurisdiction on direct appeal. There remains for consideration the question of whether, as a matter of justice and public policy, the rule should be chcmged. On the Court’s own motion the cause is transferred to the Appellate Court for the Second District.” (Emphasis added.)

The doctrine of contributory negligence as a complete bar to recovery has had a long and varied history. It has been stated in detail by Dean Leon Green in “Illinois Negligence Law,” 39 Ill L Rev 36, 116, 197 and 40 Ill L Rev 1. Another review was prepared by Ernest A. Turk, 28 Chi-Kent L Rev 189 and 304.

The doctrine originated in England in 1809 in the case of Butterfield v. Forrester, 11 East 60, 103 Eng Rep 926, wherein the defendant, who was repairing his house, had left a pole projecting across part of the highway and the plaintiff, while riding home at dusk, did not see the pole, rode into it and was thrown from his horse and thereby injured. The court, speaking through Lord Ellen-borough, held that:

“A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered to be the wrong side of the road, that would not authorise another purposely to ride up against them. One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.”

There has been much speculation as to why the rule found such ready acceptance in later decisions both in England and in the United States. The fact of the matter is that it was during the rise of the Industrial Revolution that the doctrine of contributory negligence developed. There is reason to believe that the courts found in this defense, along with the concepts of duty and proximate cause, a convenient instrument of control by which the liabilities of the rapidly growing industries were curbed and kept within bounds. However, today the great majority of these cases are now heard by an Industrial Commission and negligence of the plaintiff is not an issue. Ill Rev Stats 1965, c 48, §§ 138.1-138.28; Decatur Railway & Light Co. v. Industrial Board of Illinois, 276 Ill 472, 477, 114 NE 915 (1917) ; Imperial Brass Mfg. Co. v. Industrial Commission, 306 Ill 11, 14, 137 NE 411 (1922).

The history of contributory negligence in Illinois is found through a review of Illinois case law. The Illinois Supreme Court in Aurora Branch R. Co. v. Grimes, 13 HI 585, 587 (1852) followed the Butterfield case and added the requirement that the burden of proof is upon the plaintiff to show not only negligence on the part of the defendant, but also that he exercised proper care and circumspection; or, in other words, that he was not guilty of negligence. In the next few years the decisions involving last clear chance, Moore v. Moss, 14 Ill 106, 110 (1852), degrees of negligence, Chicago & Mississippi R. Co. v. Patchin, 16 Ill 198, 203 (1854), and proximate cause, Joliet & N. I. R. Co. v. Jones, 20 Ill 221, 227 (1858), created a confusing background. In Galena & C. U. R. Co. v. Jacobs, 20 Ill 478 (1858), Justice Breese reviewed these decisions in a case involving a four and one-half-year-old boy who was run over by a railroad locomotive. The court disagreed with the Butter-field case, and adopted a comparative negligence theory in its place. At pages 490-491 the court began with the following fundamental premise:

“This, and all the cases subsequent, to which we have referred, have one common basis, and that is found in the old law maxim that ‘no man shall take advantage of his own wrong or negligence’ in his prosecution or defense against another.”

The court concluded that liability does not depend absolutely on the absence of all negligence on the part of the plaintiff but upon the relative degrees of care or want of care as manifested by both parties and went on to say at pages 496-497:

“. . . for all care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negligence, slight as it may be. The true doctrine, therefore, we think is, that in proportion to the negligence of the defendant, should be measured the degree of care required of the plaintiff — that is to say, the more gross the negligence manifested by the defendant, the less degree of care will be required of the plaintiff to enable him to recover. Although these cases do not distinctly avow this doctrine in terms, there is a vein of it very perceptible, running through very many of them, as, where there are faults on both sides, the plaintiff shall recover, his fault being to be measured by the defendant’s negligence, the plaintiff need not be wholly without fault. (Citations omitted.) We say, then, that in this, as in all like cases, the degrees of negligence must be measured and considered, and whereever it shall appear that the plaintiff’s negligence is comparatively slight, and that of the defendant gross, he shall not be deprived of his action.”

Thus, in 1858, Illinois became a state which followed the doctrine of comparative negligence. In 1870, in the case of Illinois Cent. R. Co. v. Baches, 55 Ill 379, 389-390, the court held:

“The seventh of appellee’s instructions is not accurate, as it nowhere limits or defines the duty of deceased. Under this instruction, the jury were required to find for the plaintiff, although deceased might have been guilty of negligence equal to that of appellants. Such has never been recognized as the rule of law in this class of cases. This court refused to follow those authorities which hold, that if a plaintiff is guilty of any negligence which contributes to the injury, he could not recover, but announced the rule, that although he might be guilty of negligence, still, if the defendant was guilty of a higher degree of negligence, which, when compared with that of the plaintiff, that of the latter was greatly disproportioned or slight, he still might recover. But we are not inclined to extend the rule, as there is no warrant in the common law for allowing the plaintiff any greater latitude. He should use prudence and care, but failing to do so, and is guilty of negligence, he can not recover, unless the negligence of the defendant clearly and largely exceeds his. This instruction should have been refused, or modified so as to announce the rule of comparative negligence before it was given.”

In 1874, in the case of Illinois Cent. R. Co. v. Hammer, 72 Ill 347, 351, the court, in defining comparative negligence, stated:

“The rule on this subject, it may be, has not at all times been accurately stated by this court. By inadvertence, it has been loosely and indefinitely stated in some of the cases, but what the court has held, and still holds, is, that a plaintiff free from all negligence may recover from a defendant who has failed to use such care as ordinarily prudent men generally employ; or, a plaintiff who is even guilty of slight negligence may recover of a defendant who has been grossly negligent, or whose conduct has been wanton or wilful. Hence the doctrine of comparative negligence.”

In 1878, in the case of Indianapolis & St. L. R. Co. v. Evans, 88 Ill 63, 65, the court passed on the following:

“It is the duty of a railroad company to take all reasonable precaution for the protection of life and limb from injuries by their cars; and if such precautions are not taken, a person injured in consequence thereof . . . has a just cause of complaint, and is entitled to recover damages for any injury sustained by reason of the omission of the company to adopt all reasonable guards against liability to injury, unless such injury is caused by the negligence of the party injured equal to or greater than that of the party committing the injury.”

and then held:

“This seventh instruction, in substance, says, that plaintiff’s action can not be defeated by his own negligence, unless such negligence be at least equal to that of defendant. This is not the law. The true rule on this subject is laid down in Illinois Central Railroad Co. v. Baches, Admr., 55 Ill 379, and need not be further discussed here.”

From the principles above set forth developed the doctrine that the negligence of the plaintiff would not bar his recovery if it was “slight,” in the sense of a “degree of negligence less than a failure to exercise ordinary care,” while the negligence of the defendant was “gross” in comparison, Wabash, St. L. & P. R. Co. v. Moran, 13 Ill App 72, 76 (1883). No attempt was made to divide the damages under this “comparative negligence” rule and, where it was applied, the effect was full recovery by the plaintiff. The injured person was required to show not only that his negligence was slight and that the defendant’s negligence was gross, but also that they were so when compared with each other since the element of comparison was the essence of the doctrine, Chicago, M. & St. P. R. Co. v. Mason, 27 Ill App 450, 453, 454 (1888).

During the next 27 years the rule stated by Justice Breese was followed and then later abandoned by the decisions of our Supreme Court in Calumet Iron & Steel Co. v. Martin, 115 Ill 358, 368-369, 3 NE 456 (1885) and City of Lanark v. Dougherty, 153 Ill 163, 165-166, 38 NE 892 (1894), where it unequivocally made any contributory negligence on the part of the plaintiff a complete bar to recovery. Dean Green summarized the reasons for abandonment as being first, the formula was not complete in that the “degrees of negligence” did not mitigate the damages which the plaintiff could recover; second, the “degrees of negligence” resulted in doctrinal conflict and confusion and third, the Jacobs case had not overruled the Grimes case so that during the lifetime of the Jacobs decision courts of appeal could still rely upon the failure of the plaintiff to prove that he had exercised ordinary care in his own behalf before allowing recovery on a comparative negligence basis.

It is again to be noted that during the 1880’s there was a substantial increase in the number of master and servant negligence cases which would have forced a heavier burden on employers if the comparative doctrine remained in effect. It is to be further noted that today, in the latter part of the 20th century, we have a new revolution; a transportation revolution. Injury cases resulting from transportation mishaps clog our court dockets. Negligence is no longer considered in the same category as a crime; anyone can have an accident.

It has also been suggested that, at the time of the adoption of the contributory negligence rule, the Illinois court felt itself somewhat out of step with the prevailing decisions of other states and the views expressed by legal authors of the time.

Following the death and burial of the comparative doctrine of the Jacobs case and the general application of the concept of “degrees of negligence,” except in certain instances, the doctrinal concepts of negligence remained static for some time. However, with the industrial, economic and social growth of this state, instance after instance was presented to the courts of appeal and to the legislature where the doctrines of negligence did not satisfy the problems of the changing times. New rules were found by the courts and legislature to avoid the drastic effects of contributory negligence doctrine: witness, the Railway Employers’ Liability Act, (Ill Rev Stats 1965, c 114, § 152), Workmen’s Compensation Act, (Ill Rev Stats 1965, c 48, § 138.1 et seq.), Workmen’s Occupational Diseases Act, (Ill Rev Stats 1965, c 48, § 172.36 et seq.), the Scaffold Act, (Ill Rev Stats 1965, c 48, § 60 et seq.), the development of the willful and wanton misconduct concept and the attractive nuisance doctrine. Similarly, the federal legislation of the Federal Employers’ Liability Act, (45 USCA, § 53), and the Merchant Marine Act, (46 USCA, § 688) have made substantial inroads on the comparative negligence doctrine. More recently, because of the controversial rule prohibiting contribution between joint tort-feasors, we have witnessed the development of the concept of indemnification of a “passive” tort-feasor by the “active” tort-feasor.

In the case before us, plaintiff-appellant urges that the public policy of this state should be that plaintiffs who may be “secondarily” or “passively” at fault should be entitled to recover for their own damages just as they are permitted under the active and passive indemnity concept to recover for their liabilities to third parties. The appellant urges that the only equitable and just single rule to be applied to both categories of plaintiffs would be a common-law rule of comparative negligence and damage apportionment.

Defendant-Appellee, on the other hand, urges that there are differences inherent in the circumstances surrounding the respective losses of an indemnity type plaintiff from a contributorily negligent plaintiff so as to justify separate classification for each. Further, that any change from the present rule of contributory negligence to one of comparative negligence should be made by the General Assembly and not by the court. Appellee relies upon Reynolds v. Illinois Bell Telephone Co., 51 Ill App 2d 334, 339, 201 NE2d 322 (1964) in arguing that neither indemnity nor contribution requires the liability to be apportioned according to fault as in comparative negligence and that the right to indemnity does not rest on comparative negligence.

Since the Calumet and Dougherty cases have been decided, there has been considerable erosion in application of the contributory negligence rule in common-law jurisdictions. The United States is virtually the last stronghold of contributory negligence. The last vestige of the complete defense has disappeared from all continental Europe which divides the damages, Great Britain, all of the Canadian Provinces, New Zealand, and Western Australia. See 51 Ill BJ 194 (1962). In the United States in 1953 there were some 40 statutes on the books dealing with various phases of comparative negligence law. One prime example is the Federal Employers’ Liability Act, (45 USCA, § 53) which contains the following:

“In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. . . .”

Most States of the Union which continue to recognize contributory negligence have placed the burden of pleading and proving contributory negligence on the defendant. In seven states a form of comparative negligence has been adopted.

Generally speaking, the currently favorite forms of comparative negligence are the “pure” form represented by the Federal Employers’ Liability Act and the Merchant Marine Act, supra, whereby damages are diminished in proportion to the amount of negligence attributable to the employee. The other is the “modified” approach which has been represented by our sister state of Wisconsin where, by statute, contributory negligence does not bar recovery if such negligence was not as great as the negligence of the defendant but damages allowed shall be diminished in the proportions to the amount of negligence attributable to the person recovering. Theoretically, under the “pure” form, a defendant guilty of 1% of the total negligence is liable for 1% of plaintiff’s total damages while under the "modified” form, a plaintiff guilty of 49 % of the negligence, as compared with defendant’s 51% of the negligence may recover 51% of his damages while, if he were guilty of 50% of the negligence he could recover nothing.

Mississippi and the Canal Zone follow the “pure” comparative negligence approach, whereas Georgia and Arkansas follow the “modified” or “Wisconsin” approach, and various other types of comparative negligence are to be found in Nebraska, South Dakota and Tennessee.

The pros and cons of comparative negligence have been summarized in the report of the committee studying comparative negligence of the Illinois Judicial Conference, 1960. See 51 Ill BJ 194,197-198 (1962).

The arguments in favor of adopting the comparative negligence rule are first, that the contributory negligence doctrine was historically adopted into the common law to protect the essential growth of the industries, particularly the railroads, and this need is no longer a valid justification for the retention of the defense; second, the doctrine of comparative negligence produces a more just and socially desirable distribution of loss than that achieved by the application of contributory negligence and third, comparative negligence encourages pretrial settlements and jury waivers and will tend to eliminate the need for trial specialists and docket delays.

The argument against comparative negligence can be summarized as follows: first, any harshness of contributory negligence is overcome by compromised verdicts of juries; second, comparative negligence does not encourage settlements because the plaintiff is more likely to recovery something even in doubtful cases and the cost of insurance and defense will thereby increase; third, the art of the trial specialists will be as much in demand under comparative as contributory negligence; and finally, that cases now considered to be of highly questionable liability are more likely to be filed and tried under comparative negligence, thereby creating further congestion in the courts.

In determining the public policy in this state we are not impressed by the arguments pertaining to administrative and procedural problems. Substantive rights are involved in our determination and even, were the more desirable rule to result in increased administrative complications, expense or delay, we would feel it should be adopted and that suitable steps be taken to resolve the resulting procedural problems. Similarly, we are not impressed with the argument that the contributory negligence rule is not as bad as it seems to be because juries have the good sense not to follow it implicitly.

We do feel, however, that our stewardship of the law compels us to reach the conclusion that the party most guilty for the loss suffered should be the one to bear the greater portion of the burden therefor and that the harsh rule of contributory negligence, simple though it may be, should now give way in principle as well as in practice to the more liberal doctrine of recovery in proportion to freedom from fault. This basic concept was recognized a century ago by Justice Breese and has been recognized most recently in the “active” and “passive” indemnification cases.

We recognize that the old view of comparative negligence based upon the quantitative “degrees of negligence” and without apportionment of damages in accordance with the fault does not meet the needs of our present society so we cannot return simply to the common law of Illinois of a century ago, rather, we must adopt a position which meets present day concepts of equality, justice and sensibility. In our judgment, the "modified” doctrine of comparative negligence followed in Wisconsin seems closest to our needs. We believe that the experience in Wisconsin has been largely satisfactory and that the procedural corollaries, particularly the special verdict generally in use in that state, could easily be adopted here.

We, accordingly, find that it is and should be the public policy of Illinois that, commencing with the date upon which this decision becomes final, and in this case, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or an injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. Properly applied, we feel that this rule will eliminate the need for continued adherence to the fictions of “active-passive” or “primary-secondary” negligence, for actions for contribution or indemnification will fall under the same rule as original actions for the recovery of damage. It will no longer be necessary to justify the difference between “active” and “passive” negligence as “qualitative differences” or “differences in character or kind of wrongs.” See Reynolds v. Illinois Bell Telephone Co., supra.

We are not unmindful that the Wisconsin rule has been criticized as being absurd in that a plaintiff almost as negligent as a defendant may recover a substantial portion of his damage but may not recover a cent if both parties are equally negligent.

It is urged by appellee that the abandonment of the contributory negligence doctrine should be left to the legislature. We are aware of certain decisions supporting this proposition such as Haeg v. Sprague, Warner & Co., 202 Minn 425, 281 NW 261, 263 (1938); Kotler v. Lalley, 112 Conn 86, 151 A 433 (1930). However, the doctrine of contributory negligence was a creature of the courts and having found the doctrine to be unsound and unjust under present conditions the courts have, not only the right, but the duty to abolish the defense. Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill2d 11, 163 NE2d 89 (1959), where the court states at page 25:

“The doctrine of school district immunity was created by this Court alone. Having found that doctrine to be unsound and unjust under present conditions, we consider that we have not only the power, but the duty, to abolish that immunity. ‘We closed our courtroom doors without legislative help, and we can likewise open them.’ ”

The doctrine of contributory negligence was created by the courts, not by the legislature. If we have created it, and if it does not meet the needs of present day life, then we are duty bound to abolish it.

In light of present day conditions, we respectfully suggest that, as a matter of justice and public policy, the contributory negligence rule should be changed, and that such rule as established by the cases of Calumet Iron & Steel Co. v. Martin, supra, and City of Lanark v. Dougherty, supra, should be overruled. We likewise suggest that the decision of the Supreme Court in the case of Indianapolis St. L. R. Co. v. Evans, supra, should be reexamined and overruled; and that in lieu of the doctrine of comparative negligence as set forth herein, that the following concept of comparative negligence should be adopted:

“The plaintiff’s action can not be defeated by his own negligence, unless such negligence be at least equal to that of defendant; however, plaintiff’s damages shall be diminished by the jury in proportion to the amount of negligence attributable to him.”

It is not within the province of this court to overrule decisions of the Supreme Court and the foregoing suggestions are made by this court in conformity with its order of transfer directing us to consider, as a matter of justice and public policy, whether the contributory negligence rule should be changed.

We, therefore, conclude that justice requires us to hold that, except as to the plaintiff in this case, the rule herein established shall apply only to cases arising out of future occurrences commencing with the date upon which this decision becomes final. For the reasons stated by the Supreme Court in the Molitor case, the rule shall apply to the plaintiff in the case at bar.

The judgment of the Circuit Court dismissing Count III of the complaint is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

ABRAHAMSON and DAVIS, JJ., concur.


author: MR. JUSTICE O’SULLIVAN

text:
    Jerome P. Drobnick and Joseph J. Drobnick, Appellants, v. Duse Rollery, Appellee.
    Gen. No. 66-120.
    Second District.
    July 26, 1967.
    Mark Drobnick, of Waukegan, for appellant.
    John E. Schultz, of Waukegan, for appellee.
   MR. JUSTICE O’SULLIVAN

delivered the opinion of the court.

This is an appeal from the Circuit Court of Lake County, wherein the appellants filed a Complaint for specific performance of an oral contract for the purchase of real estate. The defendant filed a Motion to Dismiss the Complaint under section 48, chapter 110, Illinois Revised Statutes, stating that the claim and demand, asserted in the Complaint, was unenforceable under the Statute of Frauds, and supported the Motion by Affidavits. The plaintiffs filed Counteraffidavits. The court granted the Motion to Dismiss the Complaint and ordered the Complaint dismissed with prejudice. From this Order the plaintiffs filed this appeal.

The Complaint in this case, filed February 1, 1966, by plaintiffs, Jerome P. Drobnick and Joseph J. Drobnick, against defendant, Duse Rollery, also known as Dusolina Rollery, alleges that on April 27, 1964, defendant orally agreed to sell to plaintiffs two vacant, unimproved lots for the sum of Six Thousand Dollars; that this oral contract was reaffirmed on May 4, 1964, at the home of and in the presence of the daughter of defendant; that as a result of this on the next day, May 5, 1964, plaintiffs mailed to defendant a written Real Estate Contract, a check in the amount of One Thousand Dollars as earnest money, and a cover letter; that defendant failed to advise plaintiffs that she had changed her mind, and plaintiffs proceeded to move onto other adjoining lots a drive-in restaurant building, formerly located in Waukegan, Illinois, with the intention of using the two lots in question for parking; that as plaintiffs took possession, they also ordered a title report from Chicago Title and Trust Company and advised defendant of such fact; that plaintiffs on reliance of defendant’s statement that she would sell to them the two lots in question for the sum of Six Thousand Dollars, which said two lots with four other similar lots on the north adjoining therefrom would constitute a desirable site, onto which to move a building and remodel and add thereto, did expend large sums of money in preparing the lots for a drive-in restaurant; that on May 6, 1964, plaintiffs mailed a letter to defendant, inquiring whether she had yet in her possession the old Title Policy, and advising her of their placement of a title order of the lots in question and the other four lots; that again, on May 11,1964, plaintiffs mailed to defendant a letter, inquiring whether she had any surveys in her possession, and advising her of the problems of missing lot corners, which the engineering and survey firm had encountered; that after receipt of the title report plaintiffs advised defendant that they were ready to pay her off in full and close this transaction; that subsequently because of a need to obtain finances a Deed was needed from defendant, and after first ascertaining that the One Thousand Dollar earnest money check had not already cleared through plaintiffs’ joint account on June 8, 1964, plaintiffs obtained Six Thousand Dollars in cash for the express purpose of paying defendant for her two lots, which total sum of Six Thousand Dollars was then so tendered to defendant at her daughter’s home; that plaintiffs made repeated demands on defendant to complete the agreement and give plaintiffs a signed Deed; that defendant has not performed the terms and conditions of said agreement and has failed to do so; and that plaintiffs bring this suit and ask that a Decree of the Court order defendant to specifically perform the agreement as set forth in the Complaint.

To the Complaint defendant filed a Motion to Dismiss, supported by Affidavits of defendant and her daughter. Defendant avers in her Affidavit that she never entered into or made an oral contract with plaintiffs on any date or at any time and place, whereby she agreed to sell the property in question for the price of Six Thousand Dollars or at any price or on any terms or conditions whatsoever; that plaintiffs had on many occasions telephoned her, wrote letters to her, and personally called upon her at the home of her daughter, where she, defendant, resides, in attempts to persuade her to sell said property; that plaintiffs mailed contracts and Deeds to her, asking that she sign said documents, but she always refused to do so and still refuses; that they mailed a One Thousand Dollar check to her, which was returned to them by her daughter at her direction; that they also offered her Six Thousand Dollars in cash for the purchase of the property, but she never was willing to accept this amount from these people or any other amount for the sale of the property; that she never consented nor allowed plaintiffs to take possession of her property, and if they had taken possession, it was against her wishes, and she wanted them to get off the property immediately; and that at no time had she ever consented to plaintiffs doing any of the things alleged in their Complaint.

The Affidavit of Mrs. Eugene Cubbage, defendant’s daughter, restates all the facts, set forth in the Affidavit of defendant, and it further states that plaintiffs on numerous occasions by mail, telephone, and personally had unduly harassed defendant, thereby trying to induce defendant to sell; that as a result of said harassment defendant hired an attorney, who advised plaintiffs by letter that the property was not for sale; and that defendant never consented to plaintiffs taking possession of the property, ordering a title report, moving a building onto the property, or allowing commencement of construction on the property.

Plaintiffs then filed Counteraffidavits. At no place in the Counteraffidavits of either plaintiff do they state that they entered upon the property of defendant with her knowledge or consent.

The plaintiffs urged certain grounds for the reversal of the judgment of the trial court.

The first point was that the court erred in granting the Motion to Dismiss, because there are disputed questions of fact involved, which require an Answer to be filed and a full hearing and trial on the facts as well as the law. Section 48 of the Civil Practice Act, chapter 110, Illinois Revised Statutes, specifically provides that the defendant may file a Motion to Dismiss the action on the ground that the claim or demand asserted is unenforceable under the provisions of the Statute of Frauds and support the Motion by Affidavits. Paragraph 3 thereof provides that if upon hearing of the Motion the opposite party presents Affidavits, denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the Motion. The same paragraph further provides that if a material and genuine disputed question of fact is raised, the court may decide the Motion upon the Affidavits and evidence, offered by the parties. It is therefor perfectly clear that the court did not err in granting the defendant’s Motion to Dismiss, because there are genuine disputed questions of fact involved and raised by the Complaint, Affidavits, and Counteraffidavits. The cases, cited by plaintiffs in their argument, apply to summary judgments and do not apply to this case.

The second point, raised by plaintiffs, is that part performance, possession, and estoppel takes this case outside of the Statute of Frauds. The plaintiffs rely on part performance and possession to establish their alleged oral contract and to remove it from the operation of the Statute of Frauds. The Affidavits, supporting defendant’s Motion to Dismiss, state that defendant never consented to, allowed, or had knowledge that plaintiffs had taken possession of her property. Furthermore, the Affidavits state that at no time did defendant consent to plaintiffs doing any acts of part performance, on which they rely. The Counteraffidavits of plaintiffs do not deny, contradict, allege, or state that defendant had such knowledge, or that she gave consent. The Supreme Court in the case of Pocius v. Fleck, 13 Ill 2d 420, at page 426, 150 NE2d 106, stated as follows:

“If performance and possession are relied upon to establish the contract and remove it from the application of the Statute of Frauds, the proof must be clear and convincing that the promisee went into possession under the contract and made valuable improvements upon the property with his own means and upon the faith of the promise and with the knowledge of the promisor.”

The plaintiffs failed to state or allege any terms of the oral contract, other than the price of Six Thousand Dollars. There were no oral terms or agreements as to possession. There were no oral terms or agreements, which allowed plaintiffs to make any improvements on the two lots, or whereby the property should be surveyed by plaintiffs. The Supreme Court in the case of Weir v. Weir, 287 Ill 495, at pages 501 and 502, 122 NE 868, stated as follows:

“A verbal contract for the conveyance of land, to be capable of enforcement, must possess all the elements and features necessary to the specific performance of any agreement, except the written memorandum required by the Statute. (4 Pomeroy’s Eq Jur — 3d ed — sec 1409, note 1.) Such a contract to be in force must be certain and must be concluded, — that is, the parties must have ‘agreed on the same terms and mutually signified their assent to them. If what passed between them was but treaty or negotiation, or an expectation of a contract, or an arrangement between them of an honorary nature, no specific performance can be had.’ (Tryce v. Dittus, 199 Ill 189.) The rule is settled in this State that a parol contract for the conveyance of real estate will not be specifically enforced in a court of equity, unless it appears to be certain, definite, and unequivocal in its terms; that to take it out of the Statute of Frauds on account of part performance all acts performed thereunder must be clear and definite and referable exclusively to the contract; that the proof, upon which the conveyance is asked, must be established so convincingly as to leave ‘no reasonable doubt in the mind of the Court.’ (Lonergan v. Daily, 266 Ill 189, and cases there cited.)”

The plaintiffs also raise the question of estoppel. Neither the Complaint nor the Counteraffidavits of plaintiffs set forth or allege any words or conduct by defendant, amounting to a wilful misrepresentation or concealment of a material fact. Thus, the doctrine of equitable estoppel does not apply in this case.

In view of the fact that plaintiffs are attempting to obtain specific performance of an oral contract for the purchase of real estate, and in view of the fact that possession of the property was obtained without knowledge or consent of defendant, we are of the opinion that the judgment of the Circuit Court of Lake County is correct, and that the court did not err in dismissing the Complaint.' Therefore, the judgment below is hereby affirmed.

Judgment affirmed.

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


text:
    Exchange National Bank of Chicago, as Trustee, Appellee, v. City of Waukegan, a Body Politic and Corporate, et al., Appellants.
    Gen. No. 66-138.
    Second District.
    July 26, 1967.
    Rehearing denied September 28, 1967.
    Murray R. Conzelman, and Donald T. Morrison, of Waukegan, for appellants.
    Frank M. Daly, of Waukegan, for appellee.
   MR. JUSTICE O’SULLIVAN

delivered the opinion of the court.

This is a declaratory judgment action to test the validity of R-2 Single-Family Zoning of a tract of approximately five acres of land in the City of Waukegan in Lake County. Plaintiff desires to build apartments on the property. The Trial Court found the single-family zoning invalid as to the “East Portion” of the subject property but valid as to the “West Portion.”

Plaintiff is the owner of an L-shaped, unsubdivided tract, comprising fifteen acres on the north side of the City of Waukegan in Lake County. The entire tract is zoned R-2 single-family residential. Plaintiff originally petitioned the Zoning Board of Appeals of the City to rezone the entire tract for apartment use. The Zoning Board approved the Petition, but the City Council denied relief. Plaintiff then petitioned for a rezoning of the easterly five acres for apartment use. Both the Zoning Board and the City Council denied plaintiff’s Petition. This suit was then filed, concerning only the zoning of the easterly five acres.

The intervenors-appellants are property owners, who reside in single-family homes adjacent to the subject property on its south boundary in the Marycrest Subdivision.

The property in question is approximately five acres in size and vacant. It measures 780 feet from east to west and 328 feet from north to south. The property on the east is zoned for commercial purposes and is developed with the Topps and Bells Discount Stores. The property on the south is zoned R-3 for single-family residential purposes and is completely developed with single-family homes in the Marycrest Subdivision. Slightly south and east of the subject property is a small tract, zoned R-5 for apartment purposes. The only improvement on that property is one single-family home. The property to the west is vacant, zoned R-2 single-family, and owned by plaintiff. Southwest of the subject property is the Berry’s Fair Oaks Subdivision, zoned R-2 and developed with single-family homes. Directly north of the subject property is the Clearview Apartments, zoned R-5 and developed with apartment buildings. West of the Clear-view Apartments are a public school, an Army Reserve Training Center, and public housing units. All of these uses are zoned R-5.

The property in question is unsubdivided. Berwick Avenue dead-ends at both the north and south side of the property approximately 120 feet east of the west edge of the subject property.

The court entered a Judgment Order in the matter, finding among other things: That Berwick Avenue terminates at both the north and south boundaries of the subject property and if continued through, a straight connecting course would bisect the subject land, and said subject land is for the purpose of this Order divided into two parts — one called the “East Portion,” being that part east of a line drawn straight between the easterly side of the termini of Berwick Avenue, both north and south of the subject property, and the balance of the subject land being herein called the “West Portion”; and that said property is zoned R-2 District, single-family residence district, under the Zoning Ordinance of the City of Waukegan, Illinois, as amended April 24,1961.

In said Order the court found (1) that the “East Portion” of the subject land is adversely affected, by the commercial development along Lewis Avenue and abutting it on the east, for uses permitted under R-2 Residence District Classification, and (2) that its highest and best use is for multiple-family dwellings; that said Ordinance, as it purports to restrict the “East Portion” to R-2 single-family residence use, is unreasonable and accordingly invalid; that the refusal to grant the change of classification, requested by plaintiff, as to the “East Portion” is unreasonable; and that as to the “West Portion” and its removal from the Lewis Avenue uses, and its being the gateway to the ten acres to the west with the single-family uses to the south, the application of the present authorized uses is in keeping with the uses, surrounding it, and that such application is not unreasonable or invalid.

Defendants contend that the zoning classification of the subject property is presumed valid; and that where a fair difference of opinion exists, the court has no power to rezone the property. They also contend that the Trial Court erred in dividing the property for zoning purposes. The Trial Court in effect cut Berwick Avenue through, held the single-family zoning on that part of the subject property east of Berwick to be invalid and held such classification valid on that part of the property west of Berwick. In Fiore v. City of Highland Park, 76 Ill App2d 62, at page 67, 221 NE2d 323, the court said:

“It would serve no useful purpose to reiterate here the oft-repeated factors to be considered in determining whether a given zoning ordinance is invalid as applied to particular property. See: Myers v. City of Elmhurst, 12 Ill2d 537, 543, 544, 147 NE 2d 300 (1958); La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 46, 47, 145 NE2d 65 (1957); Hoffmann v. City of Waukegan, 51 Ill App 2d 241, 244, 201 NE2d 177 (1964). Such factors will be referred to herein insofar as they are relevant to the determination of this case.”

Such procedure will be followed in this opinion.

The Trial Court has no authority to divide the property. As the Supreme Court said in the case of Bredberg v. City of Wheaton, 24 Ill2d 612, at page 624, 182 NE2d 742:

“We may say at once that nothing in our decisions in Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill2d 370, and Illinois Nat. Bank & Trust Co. v. County of Winnebago, 19 Ill2d 487, was intended to permit a Trial Court to constitute itself as a zoning authority by carving out and rezoning a portion of the land in litigation.”

A similar situation arose in the case of Treadway v. City of Rockford, 24 Ill2d 488, 182 NE2d 219, where the Trial Judge established conditions upon the use of the property over and above the conditions, set forth in the Zoning Ordinance. The Supreme Court said at pages 493 and 494:

“The entire record is permeated by the Trial Court’s misapprehension of its function in a zoning case. It is apparent that the trial judge conceived that he bore the ultimate responsibility for determining in minute detail what zoning regulations should govern the property in question. This is, of course, completely at variance with the fundamental principles, governing zoning cases, which have been reiterated many times. Zoning lies primarily within the province of the municipality, and it is neither the province or the duty of courts to interfere with the discretion with which the municipal authorities are vested, unless the action of the municipal authorities is shown to be unrelated to the public health, safety, and morals. (Citations.) Nothing in our decision in Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill2d 370, nor in any of the similar cases detracts from this fundamental principle.”

It appears that the Trial Judge divided the property for zoning purposes, and plaintiff has not appealed his decision regarding the so-called “West Portion” of the subject property. Therefore, the only matter before this court is the decision of the Trial Court with reference to the so-called “East Portion.” That is, less than the whole, and any decision regarding the “East Portion” would constitute a division of the property in violation of the principles announced in the foregoing cases.

Defendants further contend that the Trial Court erred in rezoning the property. The extent of the court’s jurisdiction is to determine the validity of the present zoning, and if he determines it to be invalid, then he can determine the reasonableness of the plaintiff’s proposed use, if indeed plaintiff has submitted a proposed use.

As the court said recently in the case of Fiore v. City of Highland Park, supra, at pages 75 and 76:

. . the further part of the decree, which provided that ‘The defendant is hereby ordered to permit the said portions of plaintiff’s property to be used for multiple-family dwellings under the classifications “F” of the Highland Park Zoning Ordinance . . . ,’ is likewise improper and void, in that it is too broad. Thereby the court assumed the legislative function of determining the ultimate zoning classification of the property in question. (Citations.) The most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find that the specific use contemplated by the owner is reasonable and may be permitted.”

In the present case the Trial Court did not admit evidence of plaintiff’s proposed use. There was some evidence offered, but it was not of such a nature that it could reasonably and specifically state the use to which the property was to be put. However, in view of our conclusions herein it is unnecessary to go further into this phase of the case.

The court found that the “East Portion” of the property in question should be zoned as R-5; it then ordered the property divided for zoning purposes. Such order usurped the powers of the legislative governmental body, and the order was contrary to the principles of law established by the foregoing authorities. Because the court divided the property for zoning purposes, the proper administrative agencies of the defendant city were never called upon to consider the question of changing the zoning of that particular property as is required by law. See: Bright v. City of Evanston, 10 Ill2d 178, 139 NE2d 270.

For the reasons herein set forth, we are of the opinion that the court erred in its judgment, ordering the “East Portion” of the property to be zoned as R-5, the apartment building classification. It is therefore ordered that the judgment of the Circuit Court of Lake County be reversed.

Judgment reversed.

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


author: MORAN, P. J.

text:
    Samuel O. Ragsdale, by Robert Reed, His Next Friend, and Robert Reed, as Conservator of the Estate of Olias Ragsdale, an Incompetent, Plaintiffs-Appellants, v. The Superior Oil Company, a Corporation, Myrna E. Ragsdale, Individually, and Myrna E. Ragsdale, as Administrator of the Estate of Robert Ragsdale, Deceased, Georgia Ragsdale, et al., Defendants-Appellees.
    Gen. No. 66-126.
    Fifth District.
    July 27, 1967.
    Rehearing denied September 12, 1967.

      Jay B. Stringer, of Mount Vernon, for appellants.
    Wham & Wham, of Centralia, for appellee Superior Oil Company, and Craig & Craig, of Mt. Vernon, for appellee Myrna E. Ragsdale, individually and as administrator of the Estate of Robert Ragsdale, deceased, et al.
   MORAN, P. J.

This is an appeal from a judgment of the Circuit Court of Jefferson County, Illinois, dismissing plaintiffs’ complaint for damages.

The complaint sought to recover damages from the Superior Oil Company for wrongfully and willfully entering upon, drilling wells, and extracting oil from land claimed to be owned by Samuel 0. Ragsdale.

The Superior Oil Company filed a motion to dismiss the complaint for failure to join necessary parties. The motion alleged that the land in question was deeded by the Sheriff of Jefferson County to Robert Ragsdale, subsequent to a judgment against Samuel 0. Ragsdale and the issuance of execution; that the land was subject to specified oil and gas leases and was included within the oil producing area commonly known as the “Boyd Field Unit”; and that thereby “all parties owning and participating in the oil being so produced or owning any oil or gas royalty or leasehold interest in said communitized area are necessary and indispensable parties to this action and the Court’s jurisdiction herein.”

The plaintiffs filed an answer to the defendant’s motion admitting all of the allegations contained in the motion, but answering that “the legal proceedings and the judgment which resulted in the Sheriff’s Deed were absolutely void for the reason that Samuel O. Ragsdale was an incompetent, was not a resident of Jefferson County, Illinois, and the note on which the judgment was based was not executed in Jefferson County, Elinois, and that Robert Ragsdale had actual knowledge of these facts, and that all deeds in the chain of title subsequent to the said Sheriff’s Deed are void.”

After hearing arguments, the court sustained the defendant’s motion and, when the plaintiffs refused to name the omitted parties as defendants, dismissed the complaint and entered a final judgment, from which this appeal is taken.

The defendant contends that all persons in the chain of title to the land in question, all parties to the oil and gas leases, and all persons who own shares of or interests in the “Boyd Field Unit” are necessary and indispensable parties to the present litigation, since a “setting aside or voidance of the Sheriff’s Deed will materially effect (their) titles and rights . . . .” It argues that “all having interests in an oil producing unit are necessary and indispensable parties in an action to dispute or establish title to any part thereof.”

The present case, however, does not involve an action to dispute or establish title and does not involve the setting aside of the Sheriff’s Deed, all subsequent deeds, or the unitization agreement. Rather, the complaint alleged an action for damages for the wrongful extraction of oil. This action, based upon a trespassory taking, does not seek to establish title, but to recover damages. An action of trespass is not an action in rem, but an action in personam, G. W. Bull & Co., Inc. v. Boston & M. Railroad, 344 Ill 11, 175 NE 837. Since the plaintiff seeks damages only against Superior Oil Company, the recovery of them should be of no interest to anyone other than the plaintiff and Superior Oil Company. Stumpf v. Fidelity Gas Co., 294 F2d 886 (9th Cir 1961).

For the foregoing reasons, the judgment of the lower court is reversed and the cause is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. PRESIDING JUSTICE LYONS

text:
    Max Weinstein and Jack D. Goldberg d/b/a Delaware Drug Co., Plaintiffs-Appellees, v. Honorable Richard J. Daley, Local Liquor Control Commissioner, Honorable John J. Cashin, Hearing Officer Local Liquor Control Commissioner, Defendants-Appellants, Honorable A. L. Cronin, Howard S. Cartwright and William McGuffage, Commissioners: License Appeal Commission of the City of Chicago, Illinois, Defendants.
    Gen. No. 51,190.
    First District, Second Division.
    July 28, 1967.
    Rehearing denied September 12, 1967.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellants.
    Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago (George J. O’Grady, of counsel), for appellees.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by the def endants-appellants, the Honorable Richard J. Daley, Mayor of Chicago as Local Liquor Control Commissioner, and the Honorable John J. Cashin, Hearing Officer for the Local Liquor Control Commissioner. The appeal is taken from the entry of a judgment on November 15, 1965, by the Circuit Court of Cook County, which judgment reversed, vacated, and set aside said Local Commissioner’s order of revocation of the retail liquor license of the instant plaintiffs, Max Weinstein and Jack Goldberg, d/b/a Delaware Drug Company, entered some nine months prior thereto. The judgment ordered that the license (No. 5870) issued to the plaintiffs be reinstated accordingly. The order of the Commissioner had been theretofore appealed by plaintiffs to the License Appeal Commission pursuant to the provisions of the Administrative Review Act (Ill Rev Stats 1963, c 110, pars 264-279) which tribunal sustained the order of revocation on July 21,1965.

The license revocation which gave rise to this cause was based upon the alleged unlawful sale of certain barbiturates, amphetamines, and hypodermic needles from the licensed premises contrary to the statutes of the State of Illinois and the ordinances of the City of Chicago. The sale was alleged to have been made by one of the principals to this action, plaintiff Weinstein, by and through his agent Albert Gumer, both of whom were licensed pharmacists. The drug company was operated by the colicensees as a joint pharmacy and liquor store enterprise with miscellaneous sundries similarly available for purchase therein.

At approximately 9:15 p. m. on July 9, 1964, Police Officer John Rosanne, Detective Donald Dura, and a Sergeant Gill, all being attached to the Narcotics Unit, travelled to the instant premises then under surveillance in an attempt to conduct a controlled unlawful sale of certain dangerous drugs. The three men had with them a “special employee” or “informer” through whom they had hoped to make the purchase. This informer was later identified at the hearing as William Gato. The customary initial precautions were taken, Gato being first completely searched and then supplied with a quantity of preinventoried currency of varying denominations with which to make the eventual purchase.

Gato entered the questioned establishment empty handed and emerged some 10 to 12 minutes subsequent carrying a brown paper bag. None of the policemen witnessed the actual sale although they had all been stationed in proximity to the premises. Rosanne examined the contents of the bag finding two bottles labeled “Amphetamine,” twenty-one red capsules containing a white powder, and three hypodermic needles. Gato gave the officer a description of the man with whom the sale had been consummated, which description corresponded to Albert Gumer.

The officers thereafter entered the store and arrested Weinstein and Gumer for unlawful sale of dangerous drugs. A search of the premises discovered the prerecorded currency in a can under the counter. Rosanne testified that Sergeant Gill examined the day’s prescription blanks and could find no prescription bearing the name of the informer. Gato, himself, was then under arrest for his prior possession of dangerous drugs.

Charles Vondrak, a graduate registered pharmacist and 17 year employee of the Chicago Police Crime Laboratory, testified that his random testing of the red capsules discovered the presence of a barbitural derivative. He stated that he had similarly tested two tablets from the bottles and concluded they contained amphetamine hydrochloride, considered a dangerous drug. Plaintiffs attempted to cross-examine Vondrak relative to the laboratory procedures employed by him, but it was prohibited by the Hearing Officer.

Gumer, called on behalf of the colicensees, admitted to knowing the purchaser as William Gato. The witness explained that Gato had handed him a piece of paper bearing a prescription number which number corresponded to a prescription already on file in the pharmacy. He stated that that prescription bore the letters “PRN,” a Latin abbreviation for “refill as needed.” Gumer was unable to produce the alleged piece of paper, offering the explanation that he had thrown it away. As a consequence, the Hearing Officer ruled that Weinstein could not introduce his prescription records into evidence nor could Gumer testify as to those portions of the transaction to which they purportedly related.

Gumer continued by describing the prescription on file as calling for ampules to be injected intravenously. The witness claimed to have thereafter substituted the same drug in tablet form, but only after he had made an unsuccessful attempt to reach the prescribing doctor by telephone. Gumer contended that the reddish colored capsules he had sold to Gato were Nytime, a nonprescriptive sleep inducing product. Gumer admitted to having sold to Gato, three hypodermic needles without a prescription upon the purchaser’s representation that he might have some ampules remaining from a previous prescription for which the needles would be needed. The witness claimed that an oral prescription for those needles had been tendered by a Doctor Esposito in behalf of Gato several years prior when the latter had first become a customer.

On cross-examination, Gumer acknowledged that he had recognized all of the merchandise which the arresting officers displayed to him as the same drugs he had sold to Gato some thirty minutes earlier. Neither Sergeant Gill, Detective Dura, nor William Gato testified before the Hearing Officer. This was the extent of the testimony adduced at the Commission hearing.

It is the defendants’ theory of the case (1) that the Commissioner acted within his statutory powers; (2) that the evidence overwhelmingly supported his conclusion that an unlawful sale had, in fact, been made; and (3) that the Circuit Court erred in reweighing the evidence and in considering matters not of record.

It is the plaintiffs’ theory of the case (1) that the Commissioner acted outside the scope of the powers available to him; (2) that the evidence offered fails to sustain his finding that an unlawful sale had been made, hence the lower court properly reversed the order of revocation; and (3) that the Hearing Officer erred in barring the introduction of the prescription records and those portions of Gumer’s testimony which related thereto.

Under the Administrative Review Act, a Circuit Court’s consideration of an appeal of a license revocation brought before it from the License Appeal Commission is limited to matters of record. The court, in that capacity, can consider but two questions; to wit, (1) whether the local commission had acted arbitrarily or in clear abuse of its discretion, and (2) whether the order entered by that commission was contrary to the manifest weight of the evidence. Nechi v. Daley, 40 Ill App2d 326,188 NE2d 243 (1963). Moreover, in this conjunction, the licensee’s conviction of the crime to which his alleged misconduct related is neither necessary to sustain the order of revocation nor material. Nechi v. Daley, supra; Hornstein v. Liquor Control Commission, 412 Ill 365, 106 NE2d 354 (1952); Paoli v. Mason, 325 Ill App 197, 59 NE2d 499 (1945).

Under that statute, the findings and conclusions of the administrative agency on questions of fact are deemed prima facie true and correct until the contrary is shown. (Ill Rev Stats 1963, c 110, par 274.) Furthermore, public officials are presumed to have properly performed the duties of their office. El Patio, Inc. v. Illinois Liquor Control Commission, 20 Ill App2d 259, 156 NE2d 9 (1959).

The language of the Uniform Drug, Device and Cosmetic Act (Ill Rev Stats 1963, c 111%, par 402-15) is very clear in placing both barbitural and amphetamine compounds, mixtures, or derivatives thereof in the category of a “dangerous drug.” That same statute further pro. vides:

“A dangerous drug shall be dispensed or sold at retail only (1) upon a written prescription of a practitioner, or (2) upon an oral prescription of such practitioner which is promptly reduced to writing and filed by the pharmacist, or (3) by refilling any such written or oral prescription, if such refilling is authorized by the practitioner either in the original prescription or by an oral order which is reduced promptly to writing and filed by the pharmacist. . . .
“A drug dispensed or sold at retail on a prescription of a practitioner. . . (2) such drug bears a label containing the name and address of the dispenser, the serial number and date of such prescription, or of its filling, name of the person for whom prescribed, such directions for use as required by the practitioner, and the name of the practitioner, . . .” (Ill Rev Stats 1963, c 111½, par 417.)

The Hypodermic Syringes and Needles Act (Ill Rev Stats 1963, c 38, par 22-54) states, in part:

“A licensed physician may direct a patient under his immediate charge to have in possession any of the instruments specified . . . which may be dispensed by a registered pharmacist . . . only (1) upon a written prescription of such physician, or (2) upon an oral order of such physician, which order is reduced promptly to writing and filed by the pharmacist, or . . . (4) upon a signed statement of the patient, upon proper identification, . . . provided however, that the registered pharmacists . . . who deliver or sell any instruments . . . shall send a copy of such affidavit to the Division of Narcotic Control by the 15th of the month following the month in which such instruments were delivered or sold. 99

Without dwelling on the point, it is apparent from the Report of Proceedings before us that the drugs and needles involved were sold under circumstances constituting violations of both the foregoing statutes. Such a conclusion was implicit from the numerous admissions in the testimony of both Weinstein and Gumer as well as the positive testimony of Officer Rosanne. The sale was never denied, nor did Gumer deny that the items obtained by the police were the same as that which he had sold to Gato. The existence of a prescription was never established either written or oral. The drugs were shown to have not been labeled. Moreover, Gumer admitted to having substituted tablets for ampules without authorization. Similarly, no written proof of Dr. Esposito’s alleged oral prescription for the hypodermic needles was ever shown.

The entire hearing before the Commission hinged upon the credibility of Gumer’s explanation of his conduct. The witness produced neither the alleged piece of paper nor the purported prescribing doctor to corroborate his version of the events, which account was in contradiction with that of Officer Rosanne. It was not within the province of the lower court to usurp the function of the Hearing Officer who saw and heard the witnesses by reweighing the evidence and reevaluating the credibility of the respective testimony. It is equally apparent that the trial judge was persuaded by matters dehors the record when taking into consideration the fact that plaintiff-Weinstein had been acquitted of the corresponding criminal charges brought against him. That case required a far greater quantum of proof to sustain a conviction.

We do not think that error was committed by the Hearing Officer in barring the introduction into evidence of plaintiffs’ prescription records. Rosanne attested to Sergeant Gill’s inability to find a prescription bearing Gate’s name. Plaintiffs neither produced the alleged piece of paper nor Dr. Esposito to bear out their contentions. Moreover, Gumer’s admitted substitution of drugs without authorization and sale of unlabeled capsules or tablets, could have been held to be a violation of the statutes notwithstanding the existence of the purported prescription. Gumer was, contrary to plaintiffs’ contention, afforded considerable latitude in describing the transaction and the alleged prescription on file.

Next, plaintiffs seize upon the absence of identification of the police informer as grounds for error. In this conjunction, plaintiffs cite numerous criminal cases which, of course, have no application to the proceeding at bar. The contention must fall for the simple reason that Gumer admitted that he knew the informer as William Gato. The sale had been conducted with all the requisite safeguards taken. The alleged prejudice to plaintiffs by being denied the opportunity to cross-examine the informer is again negatived by the admissions implicit in the testimony tendered in their behalf. The principles enunciated in Roviaro v. United States, 353 US 53 (1957), and upon which plaintiffs rely, involve a balancing of the equities in each specific case. Those principles are not so all encompassing so as to apply to the instant factual situation. People v. Hill, 83 Ill App2d 455, 228 NE2d 504.

The sole question that thus remains involves a consideration of the propriety of the action taken by the Commissioner under the guise of the Liquor Control Act. The pertinent sections of that statute provide, in part, as follows:

“Powers of local commissioners. Each local liquor control commissioner shall also have the following powers, . . .
“1. To grant and or suspend for not more than thirty days or revoke for cause all local licenses issued to persons for premises within his jurisdiction; . . .” (Ill Rev Stats 1963, c 43, par 112.)
“Revocation or suspension of local license .... The local liquor control commissioner may revoke . . . any license issued by him if he determines that the licensee has violated any of the provisions of this Act or of any valid ordinance or resolution enacted by the particular city council, ... or any applicable rule or regulations established by the local liquor control commissioner or the State commission which is not inconsistent with law. . . .” (Ill Rev Stats 1963, c 43, par 149.)

Plaintiffs, with reference to numerous authority, steadfastly maintain that the powers of the Local Commissioner are strictly limited to those found within the ambit of the Liquor Control Act. Pointing to article VII, section 5 thereof (Ill Rev Stats 1963, c 43, par 149), they vehemently contend that in the absence of a showing that the sale has violated the Liquor Control Act, a Chicago municipal ordinance, or any applicable rule of the Local Commission, the Local Commissioner is powerless and without authority to enter an order of license revocation. Plaintiffs submit accordingly, that no such violation has or can be shown, hence the Commissioner exceeded the powers delegated to him by the Act.

This court must take exception to plaintiffs’ theory. The contention suffers from its inability to reconcile the wide grant of power available to the Commissioner to revoke “for cause” under the language of Ill Rev Stats 1963, c 43, par 112. Moreover, an analysis of the case law on the subject, indicates that so long as his actions are not arbitrary, the Commissioner is vested with broad discretionary powers in this regard.

Article IV, section 1 of the Act (Ill Rev Stats 1963, c 43, par 110) empowers the respective municipalities by ordinance:

. . to establish such further regulations and restrictions upon the issuance of and operations under local licenses not inconsistent with law as the public good and convenience may require; . .

This proviso, in turn, is treated in the Municipal Code, City of Chicago (1964) under chapter 101, General Licensing Provisions, section 27, which states:

“If at any time after the granting of any license, any licensee shall have violated any of the provisions of this code or any of the statutes of the state in the conduct of his business, the mayor may revoke the license therefor.”

Clearly, there has been a violation of the statutes of the State. We must, hence, answer plaintiffs’ charge that the Commissioner has seized upon powers unlawfully delegated to him by ordinance in excess of powers available to him under the Liquor Control Act.

A license is purely a personal privilege to do what would otherwise be unlawful and hence carries with it no vested property right. Boerner v. Thompson, 278 Ill 153, 115 NE 866 (1917); Nechi v. Daley, supra. The provisions of the Dram Shop Act are to be liberally construed to the end that the health, safety, and welfare of the people of the state shall be protected. (Ill Rev Stats 1963, c 43, par 94.) The privilege of license, accordingly, must subordinate itself to the reasonable exercise of the discretionary powers of the local governing body.

The case law has now well established this principle. Notwithstanding the provisions of the statute upon which plaintiffs rely, there exists a fundamental public policy consideration for vesting the broad power to revoke “for cause” in the Local Commissioner. The widespread retail sale of alcoholic beverages is a business which is said to be fraught with danger, an enterprise which if allowed to proceed unchecked, would place in imminent peril the public health, safety, and very moral fiber of the community. The rather dramatic provisions of the Dram Shop Act, itself, manifest such legislative concern. The question of revocation of a retail liquor license presents a peculiarly local problem which can be best solved by the respective Local Commissioners who, because of their proximity to and familiarity with the situation, have greater access to information from which an intelligent determination can be made. That determination should not be disturbed in absence of a clear abuse of discretion. Daley v. License Appeal Commission, 11 Ill App2d 421, 138 NE2d 73 (1956); Day v. Illinois Liquor Commission, 39 Ill App2d 281,188 NE2d 883 (1963); Daley v. Kilbourn Club, Inc., 64 Ill App2d 235, 211 NE2d 778 (1965).

Plaintiffs next submit that the revocation is arbitrary, devoid of any reasonable relationship between the retail sale of liquors and pharmaceuticals. Taking cognizance of the increasing number of retail establishments which have yielded to competitive pressures and expanded into a multibusiness span of operations, we are of the firm opinion that a reasonable relationship does exist. Inferentially at least, bases for “cause” have been found in circumstances involving: attempted bribery of a police officer, Day v. Illinois Liquor Commission, supra; a bartender’s discharging of a firearm, Daley v. Kilbourn Club, Inc., supra; gambling on the premises, El Patio, Inc. v. Illinois Liquor Control Commission, supra; and lewd conduct on the premises, Cermak Club, Inc. v. Illinois Liquor Control Commission, 30 Ill2d 90, 195 NE2d 178 (1963). While none of these cases bear directly on point, they do evidence, nonetheless, judicial recognition of the public’s increased susceptibility to vice and corruption in the presence of alcoholic beverages.

Plaintiffs have failed to show that the findings of fact by the Hearing Officer and License Appeal Commission were contrary to the manifest weight of the evidence. Nor have plaintiffs adequately demonstrated to this court wherein the action of the Commissioner was either arbitrary or in clear abuse of discretion. Considerable authority, moreover, leads one to a contrary conclusion. Accordingly, it cannot, be said that the provision of the Municipal Code empowering the Mayor to revoke for violation of a State statute is contrary to law as being in excess of the authority delegated to the City Council. Both the liberally construed provisions of the Dram Shop Act and the strong public policy considerations involved can point to no other conclusion.

For the above reasons, the judgment is reversed.

Judgment reversed.

BURKE and BRYANT, JJ., concur.