text:
    Thomas J. Guthrie, Plaintiff-Appellee, v. Allan Van Hyfte, Defendant-Appellant.
    Gen. No. 65-18.
    Third District.
    November 15, 1965.

      Barash & Stoerzbach, of Galesburg, for appellant.
    Bozeman, Neighbour, Patton & Henss, of Moline (Donald A. Henss, of counsel), for appellee.
   STOUDER, J.

Allan Van Hyfte, Appellant herein, claiming to be a passenger in a car driven by Thomas Guthrie, Appellee herein, brought an action against Thomas Guthrie to recover damages caused by the alleged negligence of Appellee. Appellee, Guthrie, claiming that Van Hyfte was the driver and Guthrie the passenger, brought an action against Van Hyfte for damages occasioned by the alleged negligence of Van Hyfte. The two actions were consolidated for trial. The jury rendered a verdict for Appellee in the amount of $35,000 and against Appellant in both actions. Judgments were entered on the verdicts and from the judgment in favor of Appellee, this appeal is taken.

The undisputed evidence shows that on the evening of June 29, 1963, Van Hyfte, then 17 years of age, and Guthrie then 20 years of age, drove in Appellee’s car to Davenport, Iowa from Kewanee, Illinois with two girls. Prior to leaving Kewanee, Appellee had purchased two six packs of beer which were consumed during the trip. In Davenport Appellee purchased two more six packs of beer. The group drove around for a short time and returned to Kewanee. The trip from Kewanee to Davenport and back took place between 7:00 p. m. and 11:00 p. m. during which period 19 cans of beer were consumed, 7 or 8 of them by Appellee by his own testimony. Upon the return to Kewanee the group went into the MOC Club where they remained for about an hour. Guthrie and Van Hyfte then left the club leaving the girls there. Up to this point both parties agree that Guthrie was driving his own car which was a new, 1963 Chevrolet Impala with an oversize engine and 4 speed transmission. After leaving the club Guthrie and Van Hyfte conversed with two other boys for 15 or 20 minutes. The testimony of these other boys fixes the termination of this conversation at no later than 1:00 a. m. and probably 5 or 10 minutes earlier. Guthrie and Van Hyfte then drove off with Van Hyfte driving.

From this point there is a sharp conflict in the testimony. Van Hyfte testified that they drove around Kewanee for about 20 minutes with Van Hyfte at the wheel, that they then returned to the MOC Club where there was a tight parking place in front of the club. Van Hyfte, fearing that he might scratch the car asked Guthrie to park it which he did. After remaining there for approximately 30 minutes they learned that the girls were going to ride home with someone else and the boys left with Guthrie driving. As they turned the corner at Third and Main the tires squealed and they proceeded north on Route 78 out of town. Before they were out of town a spotlight was shown on the car, Van Hyfte said it was the police and Guthrie accelerated. As they kept going faster Van Hyfte shouted to slow down because there was a curve ahead. At 1:30 a. m. they hit a cement abutment on the left side of a curve about a mile and a half north of Kewanee going about 100 miles an hour. Van Hyfte flew across the console and fell out of the car on the driver’s side.

Guthrie testified that after leaving the MOC Club at about 12:45 a. m. they drove across the street to talk with the two boys before mentioned. There Van Hyfte took the wheel. Guthrie states this to be probably 5 or 10 minutes after 1:00 a. m. They then drove to Third and Main street where Guthrie looked for his cigarette lighter and then turned north with the tires squealing. When the spotlight was noticed, Van Hyfte said it was the police and that there was beer in the car. Guthrie told Van Hyfte to stop and let him, Guthrie, drive and Van Hyfte said there wasn’t time and he was afraid of what his father might say if they were caught drinking. Guthrie again asked for the wheel when the car accelerated and told Van Hyfte to slow down before they reached the curve. After the impact Guthrie recalled an exchange of conversation between himself and Van Hyfte, that Van Hyfte asked what they were going to do and that Guthrie answered, “Don’t worry about it. I will take care of everything.” Van Hyfte also recalled that there was some conversation after the accident.

After the accident Guthrie admits having told several people that he was driving at the time of the accident. These people testified at the trial, among them the officer investigating the accident who testified that Guthrie told him, both immediately after the accident and later at the hospital that he was driving. Both boys were seriously and permanently injured.

Appellant argues (1) assuming Van Hyfte to be the driver and Guthrie the owner-passenger, any negligence of Van Hyfte is chargeable to Guthrie and the trial court should have directed a verdict for Van Hyfte or granted his post-trial motions or judgment notwithstanding the verdict or for a new trial; and (2) the verdict and judgment are against the manifest weight of the evidence and the trial court should have granted the motion for a new trial. Appellant relies heavily on Palmer v. Miller 380 Ill 256, 43 NE2d 973, and Staken v. Shanle 23 Ill App2d 269, 162 NE2d 204. Appellee also relies on Palmer v. Miller, supra in support of his contention that the misconduct of a driver cannot be imputed to the owner-passenger.

We do not believe these cases to be controlling in the instant case on the question of imputed negligence. Both cases involved actions by or against a third party. The Palmer case held that in such action the negligence of a driver is not imputed to the owner-passenger in the absence of a master-servant or principal-agent relationship, and the Staken case in re-emphasizing this principle adds to it that the owner-passenger may be chargeable with his own negligence if he fails in his duty to control the vehicle or the driver thereof. This admittedly gives the owner-passenger different duties and responsibilities with respect to the operation of his vehicle than one who is merely a passenger and it is this duty of control in the light of all of the facts and circumstances of this case which we believe to be of assistance.

In view of the sharp conflict in the evidence it is understandable that the parties have devoted much attention to the comparative weight of the evidence supporting identification of the driver of the vehicle. However, in our opinion, this question is immaterial. Attention should have been directed to the evidence supporting the essential allegations of Appellee’s complaint. It is axiomatic that each element of Appellee’s complaint must be supported by sufficient evidence. On Appellant’s motion for a directed verdict, the unimpeached evidence of Appellee should have been accepted by the court as true, with a view to determining whether, under the most favorable interpretation and inference, such evidence supported Appellee’s cause of action. (Rohr v. Cluver 20 Ill App2d 548, 156 NE2d 770 and cases cited therein.) One of the essential elements of Appellee’s case was the allegation and proof of absence of his own willful and wanton misconduct contributing to his injuries, since no one should be permitted to profit from a wrong to which he contributed. (Prater v. Buell 336 Ill App 533, 84 NE2d 676; People v. Maddox 340 Ill App 10, 91 NE2d 107.) What evidence did Appellee produce in support of this element? An exhaustive perusal of the record discloses only Appellee’s own statements which were clearly and admittedly impeached. Appellee admits that both parties were minors, that Appellee was the owner of the vehicle, that he consciously and deliberately participated in the purchase and consumption of substantial quantities of beer during a period preceding the accident, that at one time Appellant took the wheel because he was in “better shape” than Appellee. Appellee admits further that the vehicle came to the attention of the police because of the manner in which it was being operated immediately preceding the accident and that the presence of beer in the automobile together with all of the above facts, resulted in a high speed flight from the police culminating in the accident which produced Appellee’s injuries. Appellee then says that he ineffectually remonstrated with Appellant to stop the car while this flight was in progress. Appellee admittedly stated to many people at many different times that he was driving the car at the time of the accident and testimony of these witnesses clearly and successfully impeached any testimony by Appellee concerning the identity of the driver. Impeachment of Appellee’s testimony identifying the driver must also logically impeach any testimony concerning statements made to such driver. These statements are the only evidence offered by Appellee to prove his freedom from willful and wanton misconduct and his impeached testimony standing alone cannot suffice to support an essential element of his cause of action.

We must therefore conclude that the verdict of the jury was against the manifest weight of the evidence accordingly the judgment of the Circuit Court of Henry County is reversed and the Court is instructed to enter judgment for Appellant on his motion for judgment notwithstanding the verdict.

Reversed and remanded with directions.

ALLOY, P. J. and CORYN, J., concur.


source: Caselaw Access Project

author: ALLOY, P. J.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles R. Gore, Defendant-Appellant.
    Gen. No. 64-72.
    Third District.
    November 16, 1965.

      John E. Walsh, of Rock Island, for appellant.
    William G. Clark, Attorney General, of Springfield (Richard Stengel, State’s Attorney, of Rock Island, and Peter C. Fieweger, Assistant State’s Attorney, of counsel) , for appellee.
   ALLOY, P. J.

Defendant, Charles R. Gore, was tried an,d found guilty by a verdict of a jury, of burglary, and was thereafter sentenced by the Circuit Court of Rock Island County to a term of one to seven years. On appeal in this court, Defendant sets forth a number of grounds for reversal which will be considered in the course of the opinion.

The evidence presented by the People discloses that Defendant Charles R. Gore was indicted on March 19, 1964, by the grand jury along with six other defendants for the burglary of a drug store building known as Doden’s Drug Store in Rock Island on January 1, 1964. An employee of the store had locked the doors and safe prior to closing the drug store but on January 2, 1964, it was found that the back door of the drug store had been forced open. That door had not been used previously for years and is adjacent to a neighbor’s private driveway. There were marks showing the use of tools and splintering on the door and plywood had been forced from its framework. Merchandise and other articles piled behind the door were in a state of disarray. A safe belonging to the drug store was taken from the store with its contents consisting of checks, cash, money orders, fishing and hunting licenses, and a small amount of medicine. Checks and cash totaled $2,808.21, none of which was recovered, and there were about 70 or 71 blank money orders missing.

On trial of the cause, the People introduced as an exhibit a check protector machine which was identified as having been taken from the drug store. The machine was issued by Traveler’s Express Company and had a slug number in it which was the Doden agency number. Other exhibits admitted in evidence consisted of money orders in the amount of $100 each taken from Doden’s and written in at least two cases by certain other individuals indicted for the burglary (not including the Defendant in this cause). One of the participants, Gilbert Banks, Jr., testified that he came to Rock Island on December 24, 1963, bringing with him one other participant (Goss) and that he had a conversation with certain other participants in the burglary (Bell, Huff, Crim, Goss) and the Defendant Charles R. Gore. At that conversation, at which Gore was present, it was stated that four of the participants not including Gore were to go down to the drug store, and in another conversation Defendant Gore said he would go down to the drug store and have a person move a car out of a driveway so that Banks could drive another participant’s (Haywood’s) car up the driveway in order to load the safe from Doden’s into it. The car was actually driven to the drug store as planned.

Earlier in the evening Banks drove past the drug store with Defendant Gore in the automobile, at which time Defendant Gore showed Banks the location of the drug store. Banks testified that he backed the car into the driveway and then helped three other participants (not including Gore) load the safe from the drug store into the car and then drove the car with the safe in it to Haywood’s house. Shortly after he arrived there, Defendant Gore and Bell also arrived there. They then unloaded the safe and took it into the house and proceeded to open it. Gore worked with Goss in opening the safe with a hammer, chisel and crowbar. There was money, money orders and medicines in the safe.

All of the participants including Gore were present when the money was divided and took part in the distribution of the money. After this the safe was dumped in an alley. Banks also stated that he first saw the check protector machine referred to in Defendant Gore’s house after dumping off the safe. All participants were present at that time including Defendant Gore and one of the other participants made out certain checks, which were introduced in evidence in the sum of $100 each, with the check protector. Banks testified he next saw the check protector at Rebecca Gore’s home after that date; that Defendant Gore told him it was there and how to get there and that he picked it up, washed it and threw it along a railroad track in Rock Island. About 1:00 a. m. on January 1, 1964, Defendant Gore and five other participants left for Chicago in an automobile driven by Defendant Gore.. At a motel where they registered, money orders which had been prepared were filled in by two of the other participants.

The record shows that while Gore participated in the conversations preceding the burglary and had an automobile removed from the driveway so that the car driven by one of the participants could use the driveway, Gore did not actually participate in breaking doors and did not enter the drug store. He did, however, participate in the removal of the contents of the safe. Another participant, Columbus Goss, refused to testify in the cause on the ground that it might tend to incriminate him.

Rebecca Gore, wife of Defendant’s nephew, identified the check protector which Charles Gore brought to her house in two paper bags shortly after the burglary. Around January 4 Or 5, 1964, Defendant Gore picked her up after work and told her that he had this check protector from Doden’s at her house and wanted her to get rid of it. He stated that he had brought it to her house because they didn’t know anything about her and he’d send two men to pick it up. He asked her to wash off all the fingerprints and told her how much money he could make with it. That same night, Banks, who similarly testified in the cause, came to Rebecca Gore’s house, washed the machine and took it away. There was “bad blood” between Rebecca Gore and Charles Gore which developed after the check machine incident and by reason of her being subpoenaed to testify against him.

Another witness, Arnold Barnett, who had been convicted, previously, of robbery and burglary, went to Cleveland with Defendant in December 1963. He returned to Rock Island with the Defendant and a participant in the burglary named Columbus Goss. A few weeks before the Doden burglary, he talked with Defendant Gore of having been convicted of burglary and stated he could get in the drug store if Gore wanted him to and they discussed ways of getting in. He told Defendant Gore he knew nothing about opening a safe and Gore stated that he could get someone to open the safe. A few days before the burglary, Barnett was in Doden’s with Defendant during business hours when Gore pointed to an area and told him that was where the safe was. Another witness testified that on December 30, 1963, in the presence of a number of the participants in the burglary, she heard Defendant Gore say: “We will do the job on New Year’s Day on 12th Street.” And another participant stated: “and then we’ll jet from town to town, Chicago, Cleveland, Columbus, Detroit and New York.” Another participant, George Bell, who had pleaded guilty stated essentially the same as the participant referred to although he did not help open the safe and didn’t see Gore do this either.

Each of the persons indicted for the burglary originally entered a plea of not guilty. Defendant Charles R. Gore was granted a severance from the other defendants and Tyson Haywood was granted immunity on the People’s own motion. At the first trial of Defendant Gore which was concluded on July 29, 1964, a verdict of guilty was returned. The court, however, declared a mistrial on the ground that a deal in fact had been made between the State and the accomplices Goss and Banks for certain penalties if the accomplices would testify against Defendant Gore and such witnesses had denied in that trial that such a deal was made. An accomplice named Bell was granted probation.

An attorney who now acts for Defendant Gore entered his appearance as substitute counsel on September 21, 1964, at which time Defendant Gore made a request for a continuance of 30 days. An attorney who had represented Gore had moved to withdraw by reason of the failure of Defendant to compensate him for services in the first trial but the trial court denied the motion and required that such attorney remain in the second trial, so that Defendant was represented by both that attorney and also the substitute cocounsel who entered his appearance on September 21, 1964. Under the facts, it was not an abuse of sound judicial discretion for the court to deny a continuance since there was no showing on the record that Defendant was deprived of an adequate opportunity to prepare and defend his case. In People v. Touhy, 361 Ill 332, 197 NE 849, there had been a mistrial in the first instance and prior to the second trial a motion for continuance was made on the ground that counsel had not been paid for services rendered in the first trial. The court there denied the continuance and refused to allow defendant’s attorney to withdraw from the case. The Court on appeal held that there was no basis of a claim of lack of time to prepare under the circumstances. Similarly, in People v. Quevreaux, 407 Ill 176, 95 NE2d 62, the court reiterated that granting of a continuance for purpose of preparation for trial was a matter within the sound discretion of the Court. In that case the Court was held not to have abused such discretion where continuance was denied to a defendant in spite of the fact that he was appointed as new counsel on the date the trial began. We do not believe there is any reversible error in the action of the trial court in denying the continuance in the instant case.

Defendant contends that the evidence did not show that his conduct constituted the offense of burglary. The record shows that the other participants by their conduct were guilty of burglary. Defendant Gore aided them before and during the commission of the offense in planning and in the commission of the offense. Under the terms of Chapter 38, Section 5-2, 1961 Illinois Revised Statutes, a person is legally accountable for the conduct of another when either before or during the commission of such offense and with the intent to promote or facilitate the commission of such offense, he solicits, aids, abets, agrees or attempts to aid such other person in the planning or the commission of the offense. As indicated by the court in People v. Washington, 26 Ill2d 207, 186 NE2d 259, at 209, while it is true that mere presence or negative acquiescence is not enough to constitute a person a principal, one may aid and abet without actively participating in the overt act (see also People v. Lacey, 49 Ill App2d 301, 200 NE2d 11). The evidence in this cause tended to show that Charles Gore was planning the burglary prior to the date of the offense; that he gathered the participants at his house before the date of the offense ; that he determined the date for the burglary and instructed participant Banks on the location of the safe earlier in the evening it occurred. A common design among certain persons including Defendant Gore to burglarize Doden’s Drug Store was shown by the record; and this burglary was carried out. Defendant Gore on the record aided other defendants by obtaining removal of a car blocking a driveway and after removal of the safe, Defendant Gore helped open it, shared in the proceeds and drove other participants to Chicago. There is nothing in the record to show a withdrawal from the common design by Defendant Gore. Under this state of facts, Defendant is legally accountable for the commission of the burglary.

A contention is made by defendant that the court erred in denying the admission of a certain exhibit to show the bias and prejudice of the witness Barnett. The exhibit is a statement concerning a pending charge of burglary against Barnett, and it was properly denied on the ground that it was irrelevant and immaterial. Barnett was thereafter made a witness by the Defendant and interrogated by him on this matter of bias. Barnett admitted the pendency of a criminal charge against him, but denied any promise of immunity. On the basis of the record, the act of the trial court did not constitute an abuse of discretion of the court in its rulings on the effort of Defendant to show bias or prejudice of the witness Barnett under the circumstances.

The major contentions of Defendant upon which he seeks reversal are based on the assertion that the accomplice testimony was not sufficient to sustain a conviction and that on the record the verdict of the jury is not justified since the State had not proven the guilt of Defendant Gore beyond a reasonable doubt.

The accomplice testimony in this cause is sufficient to sustain a conviction. While it is true that such testimony should be received with suspicion and acted upon with caution and the jury should be instructed concerning the testimony, the testimony can properly become the basis of a conviction if the triers of fact are convinced of guilt beyond a reasonable doubt (People v. Palmer, 26 Ill2d 464, 469, 187 NE2d 236; People v. McGuire, 18 Ill2d 257, 163 NE2d 832). In the case before us, the testimony of the accomplice Banks was substantially corroborated in a number of areas by testimony of other witnesses. Proper cautionary instructions were given as to such accomplice testimony as well as matters concerning the credibility of the other witness who had been convicted of previous crimes and presently had a charge pending against him. There is nothing in the record to indicate that the testimony of these witnesses was not properly evaluated by the jury. They both testified that they had made no deals with anyone and this was not contradicted in any way.

When the evidence is conflicting on some issues, the credibility of the witnesses and the weight to be given to the testimony is normally for the trier or triers of fact to determine. The question to be determined by us on review is whether the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of Defendant’s guilt. If that were the case, the conviction and sentence would be reversed. We are not justified, however, in reversing a judgment of conviction where evidence is simply conflicting and the credibility of witnesses and the weight to be given to the testimony of witnesses has been passed upon by a jury. The court should not substitute its judgment for that of the jury under such circumstances (People v. Lobb, 17 Ill2d 287, 161 NE2d 325; People v. Galloway, 28 Ill2d 355, 192 NE2d 370). An uncontradicted bit of evidence in the cause before us was the testimony of Rebecca Gore to the effect that Defendant brought the check protector machine which had been taken from Doden’s, to her house after the burglary and told her to wash off the fingerprints. This circumstance of recent and exclusive possession by Defendant of part of the proceeds of the burglary was never explained and operates to sustain the conviction of Defendant Gore and to corroborate other evidence of his participation in the burglary as indicated in the course of this opinion.

Upon review of the entire record, we do not believe that there is a basis for reversal in this cause. The action of the Circuit Court of Rock Island County will, therefore, be affirmed.

Affirmed.

STOUDER and CORYN, JJ., concur.


author: JUSTICE GOLDENHERSH.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Merle Hornstein and Marvin Hornstein, Defendants-Appellants.
    Gen. Nos. 10,616, 10,628.
    Fourth District.
    November 17, 1965.
    Cassidy & Cassidy, of Peoria (John E. Cassidy, Sr., of counsel), for Marvin Hornstein, appellant;
    and Harold Boverman, of Taylorville, for Merle Horn-stein, appellant;
    Raymond L. Terrell, State’s Attorney, of Springfield (Richard A. Hollis, First Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.


author: MR. JUSTICE KLUCZYNSKI

text:
    Opal Cummings, Plaintiff-Appellant, v. Commonwealth Edison Company, Defendant-Appellee,
    Gen. No. 50,002.
    First District, First Division.
    November 1, 1965.
    Rehearing denied January 3,1966.
    Harry R. Booth, of Chicago (David Husman, of counsel) , for appellant.
    Isham, Lincoln & Beale, of Chicago (Charles A. Bane, Arthur C. Gehr, Robert F.-Hanley, and Sharon L. King, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Plaintiff, Opal Cummings, a customer of defendant, Commonwealth Edison Company, filed a class suit on behalf of all customers of Edison, alleging that rates charged by Edison for electricity service are and were excessive to the extent that its plant and property account includes excess sums paid by Edison for electrical equipment as a result of a conspiracy between electrical equipment manufacturers in violation of antitrust laws. The action seeks (1) the refund to such customers of monies repaid to Edison as the result of civil antitrust suits instituted by it in the federal courts to recover such overpayments between 1950 and 1961; (2) an accounting of other damages over and above these payments; and (3) a declaratory judgment to determine the legal rights of Edison’s customers to such monies.

The circuit court sustained Edison’s motion to dismiss for want of jurisdiction of the subject matter on the ground that the Illinois Commerce Commission had exclusive jurisdiction. Plaintiff appeals.

The events giving rise to this „ controversy began on November 1, 1959, when the Department of Justice ordered a series of grand jury investigations for the purpose of determining whether certain electrical equipment companies including General Electric, Westinghouse, and Allis-Chalmers among others, had violated the federal antitrust laws in connection with the manufacture and sale of such electrical equipment. After an indictment was returned on May 25, 1960, judgments of guilt were entered against such companies and a number of individual officers of some of the companies. Thereafter, on August 20, 1961, Edison, the defendant herein, filed a series of civil suits in the United States District Court for triple damages and other relief under the antitrust laws against General Electric, Westinghouse, Allis-Chalmers and numerous other companies from which it had purchased electrical equipment over a period of many years. Edison in such suits charged that these companies engaged in a series of conspiracies and combinations in unreasonable restraint of interstate trade and commerce in sales of electrical equipment to Edison commencing on or about January 1,1950.

Plaintiff commenced this action in the circuit court on July 23, 1963 by filing a complaint which she amended from time to time on behalf of herself and all customers of Edison since January 1, 1950, alleging, inter alia, that the total payments between 1950 and 1960 by Edison to General Electric, Westinghouse and other electric equipment suppliers violating the antitrust laws for electrical equipment were substantially in excess of $150,000,000; that all such overcharges paid by Edison have been included by Edison in its property and plant account; that such property and plant account of Edison constitutes one of the principal factors upon which Edison’s rates and charges from the plaintiff and other customers of Edison are now and have been for many years fixed and determined; and that all such damages have been assumed entirely by Edison’s customers and none of such burdens have been assumed by Edison’s shareholders. On January 13, 1964, plaintiff filed a motion for a temporary injunction seeking to impound $1,000,000 received or to be received by Edison from Westinghouse as part of a settlement agreement wherein Westinghouse agreed to pay Edison $5,000,000 as damages suffered by Edison due to sales of electrical equipment by Westinghouse to Edison in violation of the antitrust laws. This motion was withdrawn by plaintiff in open court on January 13,1964.

On February 11, 1964, plaintiff filed an amended complaint. Defendant thereafter made a motion to dismiss the amended complaint which motion included an order of the Illinois Commerce Commission authorizing accounting adjustments due to Edison’s settlements with Westinghouse and other companies. The amended complaint was superseded by the filing of an amended and supplemental complaint in which plaintiff incorporated her complaint and, additionally, alleged inter alia that Edison on February 4, 1964, filed a petition with the Commission requesting that it approve certain accounting adjustments with respect to amounts received or to be received from General Electric or other electrical equipment companies, and that Edison gave no notice thereof to its customers or to the circuit court, and that the Commission by its order on March 10, 1964, approved Edison’s application for accounting adjustments in entirety without a public hearing; that the Commission’s order ignored the claims of the Attorney General (in a petition filed by the Attorney General of the State of Illinois seeking to intervene in the federal antitrust proceedings) that the money should be refunded to Edison’s customers; that in April, 1964 Edison and General Electric agreed to a settlement of Edison’s claims against General Electric for $7,500,000 and that Edison had already disposed of the largest proportion of its antitrust suits; that Edison failed to exercise proper diligence and care in the purchase of such electrical equipment at rigged prices, and recklessly and intentionally misled plaintiff and other customers. Plaintiff’s amendment to her amended and supplemental complaint alleged that Edison committed a fraud upon the circuit court by representing that Edison’s customers were entitled to a hearing and then inducing the Commission to enter ex parte the order of March 10, 1964, and that Edison sought and obtained the order for the purpose of enabling it to retain such funds.

Edison again moved to strike and dismiss and, by order entered June 9, 1964, the circuit court dismissed the action for want of jurisdiction of the subject matter. Appeal is taken from this order.

Plaintiff contends that the trial court decree should be reversed on the grounds that her complaint does not involve the Commission’s rate making functions and that the issues are within the exclusive jurisdiction of the equity courts and beyond the powers of the Commission.

It is well established that the common law right to recover reparations for unreasonable charges by public utilities has been superseded by the Public Utilities Act. See Terminal R. Ass’n of St. Louis v. Public Utilities Commission, 304 Ill 312, 317, 136 NE 797 (1922). The question remains whether plaintiff is, in effect, bringing such an action.

In affirming the denial of the motion of the Attorney General of Illinois to intervene on behalf of the consumers of Illinois in Edison’s federal suit, Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 315 F2d 564, 567 (1963), the United States Court of Appeals for the Seventh Circuit said:

The consumers’ rights, if any, to reparation for their consequential hurt arise from higher rates and charges for services provided by plaintiffs. . . . The impact on them was remote and took the shape of allegedly higher rates paid for utility services— rates established as legal by the Illinois Commerce Commission.

It is apparent that the sole basis for plaintiff’s claim, irrespective of the label she chooses to employ, is that she and other customers were charged excessive rates for which she wants reparations. The fact that plaintiff does not seek to upset a rate schedule or fix utility rates for the future does not bring this matter within the powers of a court of equity and outside the exclusive jurisdiction of the Illinois Commerce Commission. The case of Alton Brick Co. v. Alton Water Co., 42 Ill App2d 451, 192 NE2d 599 (1963), involved a suit to recover for excessive charges by the defendant water company. The water company, after having its rates held by the Commission to be illegally high, posted a supersedeas bond and continued to charge the high rate while the matter was up for rehearing and appeal. The plaintiff there contended that she had a right to a common law action for a refund as well as an action on the bond. The defendant, as in the instant case, relied upon section 72 of the Public Utilities Act which provides that:

When complaint has been made to the Commission concerning any rate or other charge of any public utility and the Commission has found, after a hearing, that the public utility has charged an excessive or unjustly discriminatory amount for its product, commodity or service, the Commission may order that the public utility make due reparation to the complainant therefor, with interest at the legal rate from the date of payment of such excessive or unjustly discriminatory amount . . . (Ill Rev Stats 1963, c 111⅔, §76).

As the court concluded in the Alton case: “Consistently since the Terminal R. R. case [Terminal R. Ass’n of St. Louis v. Public Utilities Commission, 304 Ill 312, 136 NE 797], the courts of this state have . . . held that the common law right to recover reparations for unreasonable charges by public utilities has been superseded by the statutory provisions of said Section 72. . . . It is thus clear to us that said Section 72 provides the exclusive remedy in this state for securing a refund, and bars common law actions such as was instituted under Count II of the Complaint herein.” 42 Ill App2d 464.

It is important to note that, as in the instant case, plaintiff in the Alton case did not seek to change any rate schedules. Moreover, the excessive character of the rates had been conclusively established in the Alton case, and the court was aware of the proper rate that should have been charged, yet the court did not recognize the existence of any equitable trust fund.

Natural Gas Pipeline Co. v. Federal Power Commission, 141 F2d 27 (7th Cir 1944), is another example of the court’s refusal to entertain a common law action for a refund despite the fact that plaintiff did not seek to interfere with any present or future rate schedules. In that case the plaintiff had filed a class action to recover from Peoples Gas Company the savings obtained by it from reductions ordered by the Federal Power Commission in the wholesale price of gas purchased during a definite period. The basis of the contention was that the rates charged by Peoples during the period were excessive and unreasonable to the extent that Peoples failed to reduce its rates pro tanto when its wholesale gas costs decreased. The court held that plaintiff’s only remedy lay in a reparation proceeding before the Illinois Commerce Commission and commented:

What petitioner now asks, is to have this court ascertain that there were excess collections from him and the amount thereof. But the only way that we could do this would be to usurp the functions of the Illinois Commerce Commission by fixing what we consider would have been a reasonable rate for the Peoples Company to charge during the period in question, and the specific class or classes of customers entitled to a refund by reason of the Company’s charges in excess thereof. We refuse to do so because this court has no rate-making powers. . . . Here, no order of the Commission was ever violated because the matter was not even submitted to that tribunal. Thus there was a plain failure to recognize that the Illinois Commerce Commission has exclusive jurisdiction over actions in which reparation is sought for allegedly excessive rates, Medusa Portland Cement Co. v. Illinois Cent. R. Co., 287 Ill App 549, 5 NE2d 782, and that the intent of the legislature was to require an application therefor to be first made to the Commission, thus precluding court action for such reparation until the Commission heard the claim and entered an order . . . (pp 29, 30).

In the case before us, plaintiff seeks damages allegedly incurred by the payment of rates asserted to be excessive because based upon inflated prices paid by Edison for electrical equipment. As the court observed in the Natural Gas Pipeline case, the only way a court could grant this remedy would be to usurp the functions of the Illinois Commerce Commission and make a determination of what would have been a reasonable rate for the Edison Company to have charged during the period in question and the specific class or classes of customers entitled to a refund by reason of the company’s charges in excess thereof.

The court in the Natural Gas Pipeline case also dealt with the contention made here by plaintiff that an equitable trust fund existed:

[Petitioner . . . requests the court, apparently under some strange extension of its ancillary powers as a court of equity, to create another fund out of money collected by Peoples Company after March 31, 1942 until February 5, 1943, under lawful rates prescribed by the Illinois Commerce Commission. Not only was Peoples Company not a party when the original suit began, but, more important, the money collected by Peoples Company has never been in the possession or under the control of this court. The court has no lien upon such money, or any jurisdiction in respect thereto growing out of, or incidential to, the original suit herein or the proceeding ancillary thereto. The “fund” or “trust fund” which petitioner seeks to conjure up is entirely illusory (pp 28, 29).

In the instant case it is also true that the money collected by Edison was never in the possession or under the control of the circuit court so as to support a theory of an equitable trust fund or constructive trust existing on behalf of the customers of the Edison Company. As defendant points out in its brief, the earlier Natural Gas Pipeline case, 128 F2d 481 (7th Cir, 1942), cited by the plaintiff, involved the ancillary jurisdiction of the court to dispose of a fund collected under a stay order previously entered by that court. Likewise, the case of the Federal Power Commission v. Interstate Natural Gas Co., 336 US 577 (1949), relied on by the plaintiff, is not applicable in that it involves the disposition by the Court of Appeals of a fund accumulated under a stay order issued by that court pending review of a rate order. In those cases the court is distributing a fund of its own creation. 336 US 588.

We are of the opinion that exclusive jurisdiction with respect to this original action based on allegedly excessive rates charged by an Illinois utility is vested in the Illinois Commerce Commission. Our recent opinion in Adler v. Northern Illinois Gas Company, 57 Ill App2d 210, 206 NE2d 816 (1965) confirms this conclusion. In the Adler case, the plaintiff brought an action for, among other things, an accounting for a large sum of money which, plaintiff alleged, the defendant fraudulently acquired through the sale of natural gas to its customers at large windfall profits. In affirming the circuit court’s dismissal of the action for want of jurisdiction of the subject matter, we stated that:

The Illinois Commerce Commission has exclusive jurisdiction over complaints of excessive rates charged by public utilities, and the courts have jurisdiction over these matters only upon administrative review of the decisions of the Commission, that is, only after utilization and exhaustion of the remedies available before the Commission. Because the plaintiff here has chosen to by-pass the Commission, thus ignoring the procedure prescribed by statute for the prosecution of such claims, the trial court was without jurisdiction to grant him relief. Until plaintiff has utilized or exhausted his remedies before that Commission, the Circuit Court is “without jurisdiction of the subject matter,” save on administrative review. Ill Rev Stats 1963, c 111⅔, ¶ 72; Peterson v. Domestic Utility Services Co., 33 Ill App2d 374, 377-378, 179 NE2d 444 (1961). . . . Public Utility rate-making matters and questions of profits are to be resolved by resort, in the first instance, to the Illinois Commerce Commission, following the administrative procedures prescribed by the legislature. Until these prescribed statutory procedures are exhausted, such matters are not a subject for court action. Ill Rev Stats 1963, c 111⅔, § 72 (pp 218, 220).

Plaintiff’s complaint with its amendments is not sufficient to support its general allegations of fraud. A similar allegation of fraud was made in the Adler case, but there also we found an absence of supporting facts and said:

We are not persuaded that because defendant’s earnings for the 15-month period here involved were in excess of 6% or 6½% on defendant’s original cost of property, less depreciation reserve, these earnings are “tantamount to a fraud upon its customers.” The plaintiff’s allegations that these “excessive and extortionate” rates were “known” to be such by defendant, and that defendant “conspired” to deprive plaintiff and other customers of a hearing to determine the reasonableness of its rates by “inducing” the Illinois Commerce Commission not to hold such hearings, do not and cannot, in the absence of specific supporting facts, sustain plaintiff’s theory that defendant’s earnings and profits are “tantamount to a fraud upon its customers.” (p 219.)

As we observed in the Adler case (p 218), “[a]n allegation of conspiracy, collusion and fraud must show the facts upon which the allegation is based, and a general charge that a party acted fraudulently or was guilty of fraud' is a statement of a conclusion . . . [and] at best, mere vituperation.” Owens v. Green, 400 Ill 380, 393, 81 NE2d 149 (1948). Moreover, we find Midland Trail Bus Co. v. Staunton-Livingston Motor Transp. Co., 336 Ill 616, 168 NE 634 (1929) inapposite. In that case it was not necessary to the decision of the equity court to usurp the exclusive jurisdiction of the Commerce Commission. The only question before the court in Midland involved an adjudication of contractual rights and dealings between parties with respect to an issued certificate of convenience and necessity. More important, the court was presented with specific factual evidence of possible fraud and deceit in that the transportation company to which the certificate had been issued “at no time owned any of the busses, paid any of the expenses or received any of the profits.” There was also evidence that the company to which the certificate had been issued never intended to have anything to do with the operation of the line and, in fact, induced the complaining party to forego having the certificate issued in the latter’s own name. 336 Ill 617.

For the reasons given, the judgment order of the circuit court dismissing plaintiff’s action for want of jurisdiction of the subject matter is affirmed.

Affirmed.

BURMAN, P. J. and MURPHY, J., concur.


author: MR. PRESIDING JUSTICE BURKE

text:
    Reuben Carlson, Plaintiff-Appellant, v. Metropolitan Sanitary District of Greater Chicago, Defendant-Third Party Plaintiff-Appellee, v. J. L. Simmons Company, Inc., a Corporation, Third-Party Defendant.
    Gen. No. 50,094.
    First District, Second Division.
    November 2, 1965.

      Leonard M. Ring and Brusslan, both of Chicago (Leonard M. Ring, of counsel), for appellant.
    George A. Lane and Sidney B. Baker, of Chicago (Herbert C. Loth, Jr., and Kenneth A. Knutson, of counsel) , for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Plaintiff appeals from a summary judgment against him in an action to recover damages for personal injuries occasioned by an alleged wilful violation of the Illinois Structural Work Act, commonly called the Scaffold Act (Ill Rev Stats, 1963, c 48, Pars 60-69). The court found that there was no just reason to delay enforcement of or appeal from the judgment. The facts presented are those well pleaded. The complaint alleges that on March 2, 1960, the defendant, the Metropolitan Sanitary District of Greater Chicago (hereinafter referred to as the defendant), was in the process of constructing a building in Skokie, Illinois; that plaintiff, Reuben Carlson, was an employee of J. L. Simmons Company, Inc. (hereinafter referred to as Simmons), a contractor engaged to perform some of the work in the construction of the building; that plaintiff was performing his work upon a scaffold constructed upon the premises by or on behalf of the defendant; that the defendant wilfully violated or wilfully failed to comply with the Structural Work Act, in that the scaffold upon which plaintiff was working was not safe and that as a proximate result thereof the scaffold fell causing plaintiff to sustain serious and permanent injuries. He asked judgment for $100,000.

Defendant’s answer admitted ownership of the premises, but denied that it owed any duty to plaintiff under the Structural Work Act, and denied all other allegations of the complaint. The defendant filed a third-party complaint against Simmons, plaintiff’s employer, for indemnity, pursuant to a written agreement between defendant and Simmons. Defendant filed a motion for summary judgment in which it alleged that Simmons, plaintiff’s employer, was an independent contractor and that defendant did not retain control nor was it “in charge” of Simmons during the course of its work. The motion was supported by affidavits of certain supervisory employees of Simmons and the affidavit of Leonard Magnusson, senior civil engineer for the defendant. The substance of these affidavits was that the defendant did not erect the scaffold in question and did not control or direct or take charge of the work done by Simmons. Plaintiff filed objections supported by the affidavit of plaintiff in which he stated that at least on one occasion he heard defendant’s employee tell a Simmons’ carpenter to scrape a form used in the work and saw such employee point to the area to be scraped. Plaintiff also filed the discovery deposition of Leonard Magnusson, an engineer employed by defendant. In his written objections filed in opposition to the motion for summary judgment, plaintiff noted that Magnusson in his deposition testified that he was “in complete charge of the supervision and the — seeing to it that these plans and specifications were followed”; that he (Magnusson had 8 employees working under him at the construction site; that all of these men were either engineers or assistant civil engineers or inspectors; that the defendant maintained a trailer at the site which was used by Magnusson and the men working under him as their site headquarters; that he met daily with Chambers, the job superintendent for Simmons, and that the purpose of these meetings was to arrange concrete pour and make general arrangements for the construction schedule.

According to his deposition, Magnusson determined when to pour concrete in certain areas on the construction project; when weather conditions were proper for pouring and the rate of pour; that 60% of all the work on the project concerned the concrete pour; that all his dealings were with Chambers (Simmons’ superintendent) ; that Chambers in turn would direct or deal with the foremen or superintendents of construction of the various subcontractors on the job; that the names of all contractors had to first be submitted to defendant’s engineering department for approval and that it was necessary for such approval to be given in writing by defendant’s chief engineer before Simmons could employ any subcontractors; that the inspection of the work was the function of the defendant’s engineers and inspectors; that during the progress of the work, Simmons submitted to the defendant, force accounts, which showed the number of men employed on the job at different times and the work they performed. In addition to the field inspections, the defendant made prefield inspections of most of the material used in the course of construction. This was done by the defendant at the manufacturer’s premises. Shop drawings had to be submitted by Simmons to the defendant’s engineering department for approval .as well as plans which specified the manner of installing or applying the material or equipment involved in the construction project. Mr. Magnusson further testified that the defendant’s engineers or inspectors examined all forms used for the pour of concrete; that he gave Chambers directions about the cleaning of the forms and that the rate of pour of the concrete was given to Simmons by defendant engineering department and that the defendant’s inspectors checked to see that the recommended rate was followed. In addition to the affidavit and deposition of Magnusson, plaintiff filed as an exhibit to Magnusson’s deposition, the contract between defendant and Simmons, which consisted of 102 pages. It provided, among other things, that the work shall be executed under supervision of the chief engineer of defendant and his properly authorized agents; that the engineer, shall in all cases, decide all questions of an engineering character which may arise relative to the execution of the work; that the contractor had to submit layouts and schedules of his proposed method of conducting the work to the engineer for approval; that the engineer had the right to reject any inadequate or unsafe procedural method (temporary) structures or equipment and that the engineer could disapprove and reject any of the same which to him seemed “unsafe for the work, . . . for the public or for any workmen, engineers and inspectors employed thereon.” The contract further provided that before commencing work the contractor had to submit his proposed order of procedure to the engineer for approval; and further provided that the contractor was at all times to have present at the site a competent foreman, superintendent or other representative with authority to act for the contractor and execute the orders from the engineer; and who would see to it that the work was executed in accordance with the specifications and the orders of the engineer. It further provided that the contractor shall discharge, at the request of the engineer, any incompetent or unfaithful men in his employ.

The defendant points out that the contract is very detailed; that some of the provisions reserve certain rights to the defendant, as the right to inspect and accept or condemn all work, to require the contractor to discharge incompetent or unfaithful employees, etc.; and that the contractor place the responsibility of performing the contract, for taking safety precautions and for determining the manner and method of performing the work upon the contractor, but reserves the right of approval of such performances unto the defendant. The defendant concedes for the purposes of this appeal that its “right to control” can be found to exist in the contract but that actual control of the work is delegated to the contractor and was not, in fact, exercised by the defendant. Defendant says that the affidavits of Simmons’ supervisory personnel and the depositions of the defendant’s engineer show that the defendant inspected the work daily; that defendant’s engineer met with Simmons’ general superintendent, Chambers, each day to schedule concrete pours, make up estimates and progress payments; that there were a number of subcontractors, each of which had its own superintendent and foreman on the job, but that defendant never dealt with any one except Chambers; that defendant’s office did not review any equipment of the contractor in the course of construction; that defendant’s engineers and inspectors just checked the progress of the work and measured the excavations and saw that the plans and specifications were adhered to; that Chambers coordinated the work of the subcontractors; that defendant did not hire or fire any of the men; that defendant approved shop drawings prepared by the people who furnished the material to the contractor; that the contractor furnished all the equipment used on the job, including scaffolds and ladders; that defendant did not inspect any scaffolds on the job; that defendant’s engineer never told any of Simmons’ employees how to do their work; that defendant did not do any carrying out of the work to implement the plans and specifications; that defendant made no suggestions as to the manner that Simmons should use any equipment on the job; that if Simmons failed to use standard procedures, defendant’s engineer was supposed to bring that to Simmons’ attention but was not to remedy the failure himself; that defendant did not pay the wages of any one at Simmons; that the top man in the chain of command was Chambers and the workmen on the job were at the bottom; that at no time did defendant take charge of the work to be done by Simmons or in any way control or direct what was to be done on the job.

In urging reversal plaintiff asserts that one who retains, the right of general supervision or authority over a construction project is deemed to be “in charge” of the work under the Scaffold Act; that the term “having charge of,” as used in the Act, and as it is commonly-understood, is broader in scope than control and supervision and that it is not necessary to be “in charge” that a party have direct contact with the minutiae of detail involved in construction. Plaintiff maintains further that control over the manner and method authorized is but one of many factors to be considered in determining if a defendant is “in charge” and that it is the right to control, not the exercise of control, which should be considered.

Defendant says that the actual control of the manner and method of doing the work, not the mere right to control, is necessary for an owner to be a party “having charge of” the work under the Structural Work Act. The defendant in its contract retained the right to control the manner and method of doing the work and the trial judge not only equated “in charge” as used in the Scaffold Act with control over the manner and method of doing the work but also considered control over the manner and method of doing the work as synonymous with actual control over the minutiae of detail involved in a construction project. We agree with the plaintiff that this is not a proper test. In Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785, the court pointed out that all the construction work, including the bricklaying, assembling and construction of the scaffolds and other operations, was done by Marhoefer & Company and its employees under a contract with the railroad and that although the railroad architect and engineers made frequent inspections of the structural activities, there was no inspection of the scaffolds and ladders or other appliances at any time and they exercised no control over the manner in which the work was being done. On these facts the Supreme Court in Gannon held (p 323) that it was a question of fact whether the owner could be deemed to be in charge of the construction within the meaning of the Act, and that it was the province of the jury, under proper instructions, to make that determination. See also Miller v. B. F. Goodrich Co., 295 F2d 667; Kiszkan v. Texas Co., 22 Ill2d 326, 175 NE2d 401; Blonar v. Inland Steel Co., 57 Ill App2d 99, 207 NE2d 124. Consistent with tenet of liberal construction expressed in Gannon and Kiszkan the courts have uniformally held that as long as there is evidence connecting the owner or any other person named in the Act, with the work, a jury question is presented. More than one person may contemporaneously be deemed “in charge” under the Act. Claffy v. Chicago Dock & Canal Co., 249 Ill 210, 94 NE 551; Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785; Yankey v. Oscar Bohlin & Son, Inc., 37 Ill App2d 457, 186 NE2d 57; Palier v. Dreis & Krump Mfg. Co., 47 Ill App2d 334, 198 NE2d 521; Sleek v. Butler Bros., 53 Ill App2d 7, 202 NE2d 64. Under the trial court’s construction in the instant case, in most instances, only the plaintiff’s employer would come within the orbit of those “in charge of” the work, since almost always, the employer would be the one in control of the manner and method of performing the specific tasks involved. This construction of the Act would frustrate the legislative intent.

Larson v. Commonwealth Edison Co., 48 Ill App2d 349, 199 NE2d 265, affirmed a judgment for defendant-owner based on an instruction to the jury to the effect that the owner, to have had “charge of” the work must have retained “control and supervision of such work being performed” by the contractor. The defendant in the case at bar says that it turned over the responsibility for carrying out the construction of the project' to Simmons, an independent contractor and that the defendant never thereafter assumed that responsibility (though it had the right to do so had it found that the contract was not being properly performed by Simmons). The defendant says that all it did was watch the progress of the work to satisfy itself that the quality of the work done was in accordance with the agreement and that at no time did defendant take charge of the work to be done by Simmons or in any way direct or control what was to be done in the erection of the structure. Defendant insists that there was no genuine issue of fact as to actual control by the defendant and that the trial judge was right in entering a summary judgment for the defendant. Plaintiff agrees with the defendant that merely making inspections from time to time does not place one “in charge.” In contrast to the rights reserved by the contract in Cannon v. U. S., 328 F2d 763, the defendant in the instant case retained control of the hiring and firing of the contractors’ personnel and retained control over the method in which the work was to be carried on. Defendant points out that Magnusson, its chief engineer, did not give direct orders to the contractors’ men on the job. Magnusson stated that workmen must take their orders from their own superintendent in accordance with union regulations. Magnusson dealt with Chambers (Simmons’ superintendent) and he in turn dealt with his subordinates. While Chambers gave the orders to Simmons’ men, Magnusson gave the orders to Chambers. Insofar as the overall project was concerned, Magnusson was at the top in the chain of command. Under defendant’s theory of the law, all a person would have to do to escape liability thereunder is require that the contractor submit to him for approval, each item, detail or phase of the work. The contractor will, of course, fail to win approval unless and until he submits plans, methods, techniques and procedures which conform to the defendant’s views; and if in these circumstances the contractor deviates from the preagreed method, the work will be stopped — and so will the pay. Under such a practice the defendant would not technically be telling the contractor how and what to do, but the end result would be the same. In the one case the defendant tells the contractor what to do while in the other case the contractor obtains defendant’s approval on how to do it. In either case the defendant decides and determines how the work is to be done.

. On September 29, 1965, the Supreme Court reversed the judgment of the Appellate Court as to both defendants in Larson v. Commonwealth Edison Co., et al., Docket No. 38637, and remanded the cause to the Circuit Court for a new trial. In Larson, the Supreme Court points out that the principle controversy between plaintiff and defendant Edison is whether the trial court erred when, over plaintiff’s objections, it instructed the jury that the plaintiff is not entitled to recovery for damages under the provisions of the Structural Work Act unless he has proven by a preponderance or greater weight of the evidence that the defendant had charge of the work by retaining control and supervision of such work being performed by Paschen Contractors, Inc. The Supreme Court said that there is no need for a definition of the statutory words, “having charge” and that the term is one of common usage and understanding and that further attempt at definition can only lead to confusion and error. The Supreme Court said that consistent with its beneficent purpose “of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.” The court decided that the inclusion in the instructions of the words “by retaining supervision and control of the work” placed a greater burden on plaintiff than the law required and was improper. In the Larson case as in the instant case there were a large number of contracts and contractors. The Supreme Court in the Larson case discussed the legal effect of the right of the owner to control the work. We quote:

“It may be conceded that Sargent, like an owner, must have some direct connection with the construction and alteration operations before it can be deemed to be in charge of the work, and thus subject to duty and liability under the act. But assuming that its contract with Edison, or perhaps the directions issued to Paschen pursuant to the ‘purchase order,’ gave Sargent the right to control the work, we believe it necessarily follows that such right, exercised or not, is sufficient to establish duty under the act.
“Even at common law retention of the right to control the work is sufficient to subject one to duty and tort responsibility, (see: Schwartz v. Gilmore, 45 Ill 455, 457; Best Manufacturing Co. v. Peoria Creamery Co., 307 Ill 238, 241-242; Hartley v. Red Ball Transit Co., 344 Ill 534, 539; Restatement of Torts, § 414 and comment; 57 CJS, Master & Servant, sec 602) and the retention of the right to control must carry with it the same duty and responsibility under the Scaffold Act. Otherwise, the absurd result would be that a statute designed to broaden the common-law duty and to give added protection, would be construed as imposing a lesser duty than the common law. Certainly it was not the legislative intent that those retaining the right to supervise or control the work could be freed from duty by doing nothing, for section 9 imposes liability for a wilful failure to comply with any of the provisions of the act, as well as wilful violation.”

The defendant retained the right to control the manner and method of doing the work. Under the opinion of our Supreme Court in the Larson case the defendant was “in charge” of the construction of the building or project.

The judgment is reversed and the cause is remanded with directions to proceed in a manner not inconsistent with these views.

Judgment reversed and cause remanded with directions.

BRYANT and LYONS, JJ., concur.


author: MR. JUSTICE BRYANT

text:
    Westlake Finance Company, a Corporation, Plaintiff-Appellant, v. Henry Spearmon, Scientific Brake Service and John Doe, Defendants-Appellees.
    Gen. No. 50,114.
    First District, Second Division.
    November 2, 1965.

      William S. Blatt, of Chicago (Elaine Strauschild Blatt, of counsel), for appellant.
    Cohon and Raizes, of Chicago (George A. Cohon, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This appeal is taken from an order entered August 3, 1964, in the Circuit Court of Cook County. The parties to this appeal have entered into a stipulation of facts which we now set out in full.

“Westlake Finance Company, the Plaintiff-Appellant, is the holder in due course of a Retail Installment Sales Contract covering the purchase by Henry Spearmon of a 1958 Pontiac Bonneville two door hard-top. Title to the car was issued to Henry Spearmon and Dorothy Spearmon on September 28, 1962, the title showing a lien in favor of Westlake Finance Company.

“Because Mr. Spearmon failed to make the payments provided for in the Contract, Plaintiff-Appellant commenced this replevin action in the Municipal Court of Chicago in October of 1963. At the time of the commencement of this action, the car was in the possession of the Defendant-Appellee, Scientific Brake Service, it having been delivered there by Mr. Spearmon for repairs.

“Pursuant to the Writ of Replevin, the car was taken from the Defendant-Appellant [sic], Scientific Brake Service, by the Bailiff of the Municipal Court of Cook County. At the time the Bailiff took possession, there was due and owing to the Defendant-Appellee, Scientific Brake Service, the sum of $430.10, consisting of $265.10 for repairs to the car, plus $165.00 for storage of the car.

“Defendant Henry Spearmon defaulted in the replevin action. Defendant-Appellee Scientific Brake Service filed an answer and an affirmative defense, claiming a lien against the car in the sum of $430.10 for repairs to, and storage of, the car. Defendant-Appellee’s defense further recited the filing with the Recorder of Deeds of Cook County of a Notice of Lien on the car in question in the amount of $430.10, the filing being made immediately subsequent to the taking of the car by the Bailiff. Plaintiff-Appellant sold the car to a third party after receiving it from the Bailiff.

“On August 3, 1964, Judge Burton H. Palmer of the Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County, entered an order finding the Defendant-Appellee, Scientific Brake Service, entitled to possession of the car or, in the alternate, to the sum of $430.10 plus costs.”

The basic claim of the appellant in this appeal is that under Illinois law the reservation of title in a conditional sales contract creates a lien superior to a subsequent artisan’s lien. In support of this proposition, the appellant urges chapter 82, secs 40, 43, Ill Rev Stats, 1963. Sec 40 provides for the creation of an artisan’s lien where a person, firm or corporation has expended labor, skill or materials on a chattel. Sec 43 provided:

■ “The lien created by this Act shall be subject to the lien of any bona fide chattel mortgage upon the same chattel recorded prior to the commencement of any lien herein created, but said lien herein created shall be in addition to, and shall not exclude, any lien now existing at common law, and any lien existing by virtue of ‘An Act concerning liens for labor, services, skill, or materials expended upon chattels,’ enacted by the sixty-second general assembly.”

One thing which must be taken note of immediately is that the appellant in this cause did not hold a chattel mortgage on the automobile in question. The appellant was a conditional vendor and was not protected by the express provisions of sec 43. Appellant’s reliance on this section would, therefore, seem to be misplaced.

Decisions construing sec 40 of the Act, however, have held that the holder in due course of a conditional sales contract has a lien superior to that of a garage owner for repairing and storing the automobile. Such was the holding in the recent case of General Motors Acceptance Corp. v. Allen, 52 Ill App2d 114, 201 NE2d 747 (1964) and cases there cited. What appellant fails to note in its brief, however, is that these cases decided the law as it was prior to the passage of the Uniform Commercial Code which went into effect in this State July 1, 1962 — before any of the acts giving rise to this dispute occurred. Sec 9-810 of the Code states:

“When a person in the ordinary course of his business furnished services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.”

This section clearly gives a superior lien to the defendant-appellee. Scientific Brake Service furnished materials and services in the ordinary course of its business, and the automobile was in its possession when this action was instituted. While the Code specifically gives the State Legislature the option to change the priority of liens set forth in this section, the Legislature of this State did not do so until earlier this year when it redrafted chapter 82, sec 43, to read:

“The lien created by this Act shall be subject to the lien of any bona fide security interest as defined in the Uniform Commercial Code upon the same chattel recorded prior to the commencement of any lien herein created, but the lien herein created shall be in addition to, and not exclude, any lien now existing at common law, and any lien existing by virtue of ‘An Act concerning liens for labor, services, skill or materials expended upon chattels.’ ”

That section went into effect July 1, 1965. It can have no application to the case at bar.

The appellant urges on appeal that it perfected its lien by having it recorded on the certificate of title as required by the Illinois Motor Vehicle Law. Chapter 95½, sec 3-202, Ill Rev Stats, 1963. This section, of course, deals with the perfecting of security interests, and is not controlling on the question of which liens are superior to others. The appellant has also cited many cases which were decided on the law prior to the Code. They are not applicable to the case at bar.

At the time the sale of the automobile was made and at the time this cause was tried, the Uniform Commercial Code controlled the matter and the Legislature had not yet acted to make any changes in the priorities set forth in sec 9-310 of the Code. The Court below correctly decided that the lien of Scientific Brake Service was superior to the lien of Westlake Finance Company. The judgment is affirmed.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.


author: JUSTICE BRYANT.

text:
    Westlake Finance Company, a Corporation, Plaintiff-Appellant, v. Alex C. Montgomery, Ajax Service Station, Ajax Storage Garage and John Doe, Defendants-Appellees.
    Gen. No. 50,115.
    First District, Second Division.
    November 2, 1965.
    William S. Blatt, of Chicago (Elaine Strausehild Blatt, of counsel), for appellant;
    Grossman & Grossman, of Chicago (Lester N. Grossman, of counsel), for appellee.
   Opinion by

JUSTICE BRYANT.

Not to be published in full.


author: ABRAHAMSON, P. J.

text:
    Dale Harshman, et al., Plaintiffs-Appellees, v. The City of DeKalb, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 65-11.
    Second District.
    November 5, 1965.

      Edward F. Diedrich, of DeKalb, for appellant.
    John A. Liefheit, of DeKalb, for appellees.
   ABRAHAMSON, P. J.

Plaintiffs-Appellees, hereinafter called the “owners,” brought suit in the Circuit Court of DeKalb County to declare that the existing zoning ordinance of the defendant-appellant, City of DeKalb, hereinafter called the “City,” was unconstitutional and void as it affected their property and to permit them to use the property for business.

The subject property is two adjoining lots on the northeast corner of 13th Street and Sycamore Road in the City of DeKalb. The lots are each improved with single-family frame residences. Together they have a frontage of 194.2 feet on Sycamore Road and a depth of approximately 152 feet. The lots were annexed to the City in 1954 and zoned single-family residential. Sycamore Road is, at this point, a heavily traveled, four-lane highway.

Immediately adjoining the subject lots to the north is a shopping center known as DeKalb Market which in-eludes a Jewel Tea store, a Spiegel’s department store, a drugstore and several other, smaller, retail businesses. The front 120 feet, more or less, of the Market area is used for a paved parking area with the buildings themselves set behind. The Market area was taken into the City in 1958 in accordance with a preannexation agreement whereby the City agreed to zone it for business. North of the Market on the east side of Sycamore Road, the property is all zoned, and largely used, for business for over a mile.

The property on the west side of Sycamore Road is not in the City but commencing immediately opposite the Market and proceeding north it is extensively developed for small businesses.

There is a small alley separating the subject lots and the DeKalb Market and another alley directly across Sycamore Road .marking the present boundary between residential and business uses on that side of the road.

13th Street is known as Hollister Street on the other side of Sycamore Road and continues for approximately a quarter mile before ending at the DeKalb Sanitary District Treatment Plant. There was some testimony that odors from the Plant could occasionally be detected at the intersection.

• Sycamore Road south of the intersection with 13th and Hollister Streets is almost exclusively residential, except for an occasional nonconforming business use, into the heart of the City.

Two real estate experts testified for the owners and stated that in their opinion the property is worth between $27,500 to $29,000 for residential purposes and between $71,000 to $75,000 for business.

The City presented evidence that if the two lots were rezoned for business purposes there would be a significant increase in traffic at the intersection. This traffic increase, they urged, would be a hazard to school children in the area, create parking difficulties and result in a dramatic increase in the number of accidents. They also argued that the alley between the two lots and the DeKalb Market served as an admirable and natural boundary between the business use of the Market and the residences. They offered, as sound planning and a firm policy of the City, the theory that all four corners of any intersection should be similarly zoned. Acting on this theory, the change in the zoning of these lots would inevitably result in a further encroachment of business into the residential heart of the City.

At the conclusion of the hearing the trial court found that the existing zoning restrictions as they affected the owner’s property were void in that they amounted to an unconstitutional confiscation without compensation and, in addition, ordered that they could make any improvements lawfully permitted under the present business classification of the City’s zoning ordinance. A post-trial motion by the City to vacate the judgment order was denied and this appeal results.

It is well established that there is a presumption in the favor of the validity of zoning ordinances which can only be overcome by clear and convincing proof that the ordinance is arbitrary and unreasonable. Bennett v. City of Chicago, 24 Ill2d 270, 273, 181 NE2d 96; Jans v. City of Evanston, 52 Ill App2d 61, 67, 68, 201 NE2d 663.

It is also clear that the mere fact that property would be substantially more valuable if another use were permitted is not, in itself, sufficient reason to invalidate an existing zoning ordinance. Cosmopolitan Nat. Bank of Chicago v. Mt. Prospect, 22 Ill2d 463, 470, 177 NE2d 365. A reviewing court, in determining the validity of a zoning ordinance, will consider a number of factors. The Supreme Court, in the case of Tillitson v. City of Urbana, 29 Ill2d 22, at page 27, 193 NE2d 1, enumerated some of these factors as follows:

“In determining whether or not a particular ordinance serves the public interest, the court may consider the uses and zoning of nearby property, the extent property values are diminished by the restrictions, the benefits sought to be attained by the ordinance, the relative gain to the public as compared by the hardship imposed upon the property owner, and the suitability of the property for the zoned purposes. ... If the public gain is small when compared with the hardship imposed upon the individual property owner, the restriction constitutes an unreasonable exercise of the police power.” (Citations omitted.)

When we use these factors in considering the instant case, we agree with the trial court that the existing zoning restrictions imposed by the City are unreasonablé and arbitrary as they affect the subject property. The proximity of the Treatment Plant, the extensive use of Sycamore Road, the disparity in values between the residential and business uses, the general character of the area and, most important, the recent development of a shopping center immediately adjoining the property, all indicate that the existing restrictions are unreasonable. Furthermore, we are not convinced that an alley is necessarily a natural boundary between residential and business uses and that a street is not.

The power of courts to determine the validity of zoning ordinances, as here, is generally beyond dispute. However, it is equally beyond dispute that courts do not possess the power to zone or rezone property since that function properly belongs to a legislative, not a judicial, body. Treadway v. City of Rockford, 24 Ill2d 488, 493, 182 NE2d 219.

The practical effect of declaring an existing zoning ordinance null and void in regard to a particular piece of property is to leave that piece of property in a condition which, for lack of a better description, has been called unzoned. To avoid the obvious dilemma of such a situation, recent cases have held that the court may frame its order in reference to a specific proposal before it and find that the contemplated use would be a reasonable one. Sinclair Pipe Line v. Village of Richton Park, 19 Ill2d 370, 167 NE2d 406; Franklin v. Village of Franklin Park, 19 Ill2d 381, 167 NE2d 195.

The aim of these decisions is to avoid the possibility of a rezoning of the property to some other undesirable classification and, thus, invite further litigation, and to prevent any exploitation by the owner of the fact that his property is, at least temporarily, unzoned. To those ends, the wisdom of these decisions seems clear.

It is also apparent that the courts must exercise this authority with extreme care to avoid any encroachment into the legislative function of zoning. It is imperative that there be clear evidence before the court of the specific use to which the owner intends to develop his property and the order framed in reference to it. Sinclair Pipe Line v. Richton Park, ibid.

The case of Reeve v. Village of Glenview, 29 Ill2d 611, 195 NE2d 188, involved facts with some similarity to our own. The trial court found the existing residential zoning unreasonable, null and void as it affected plaintiff’s property and found further that the property was subject to an earlier, business use, classification. No evidence had been offered as to a specific use contemplated by the owner. In reversing the trial court, the Supreme Court said, in part, as follows: •

“The court had no authority to impose the business use classification on the subject property. Courts have authority to pass upon the validity of a zoning ordinance, but this does not include the legislative function of determining the ultimate zoning classification of the area. . . . An exception to this rule was laid down in Sinclair Pipe Line Co. v. Village of Richton Park . . . , where we held the court empowered to avoid undesirable results by framing its decree with reference to the record before it. However, the Sinclair case and others following it were cases in which the evidence showed the specific proposed use of the property. Where the record fails to show any evidence of the use proposed, this rule does not apply. . . .” (Citations omitted.)

The record in the instant case discloses nothing of the specific intentions of the owners in regard to the use of their property. In the absence of such evidence, the trial court could not frame a judgment to effectuate its findings as to the rights of the parties and conclude the controversy between them. Under these circumstances, the finding by the trial court that the property could be used for any business use permitted under the existing ordinance, is clearly in error.

The judgment of the trial court will be affirmed as to the declaration that the existing zoning is void as it affects the subject property. It is reversed and remanded insofar as it permits the owners to make any improvements permitted under the business classification of the zoning ordinance. Such remandment is with directions that the trial court hear further evidence relative to the business use to which plaintiffs purpose to devote their property and the compatibility of such use with the residential uses of the surrounding property.

Affirmed in part and reversed and remanded in part.

MORAN and DAVIS, JJ., concur.