author: MR. PRESIDING JUSTICE SULLLIVAN

text:
    Paul Skezas, Plaintiff, v. Safway Steel Products, Inc., a Corporation, and United States Steel Corporation, a Corporation, Defendants. United States Steel Corporation, a Corporation, Defendant and Third Party Plaintiff-Appellee, and Cross-Appellant, v. Universal Delta, a Co-partnership, and The Travelers Insurance Company, a Corporation, Third Party Defendants. Appeal of The Travelers Insurance Company, a Corporation, Third Party Defendant-Appellant, and Cross-Appellee.
    Gen. No. 50,980.
    First District, Third Division.
    June 29, 1967.
    Rehearing denied October 6, 1967.

      Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (William H. Symmes, John M. O’Connor, Jr., and Jon R. Waltz, of counsel), for The Travelers Insurance Company, appellant.
    Hackbert, Rooks, Pitts, Fullagar and Poust, of Chicago (Harlan L. Hackbert, of counsel), for United States Steel Corporation, appellee.
   MR. PRESIDING JUSTICE SULLLIVAN

delivered the opinion of the court.

This involves an appeal and a cross-appeal from a judgment on a third party action for indemnity. The trial court found against third party plaintiff generally, but granted no monetary relief.

To understand the contentions on appeal it is first necessary that we identify the parties and describe the circumstances giving rise to this appeal.

Paul Skezas was an employee of Universal Delta. The latter was a subcontractor on a renovation job at a plant owned by United States Steel Corporation (Steel). The Travelers Insurance Company (Travelers) was the insurer of Universal Delta. On April 2, 1957, Skezas was injured in a fall from a scaffold. For injuries sustained he brought suit against Safway Steel Products, Inc., the owner of the scaffold, and Steel.

Steel, in turn, filed a third party complaint against Universal Delta and Travelers. The third party complaint set out parts of the contract between Steel and Universal Delta. Of particular import was paragraph 16, which read in part as follows:

“16. The safety of all persons employed by Contractor and his subcontractors on Owner’s premises, . . . shall be the sole responsibility of Contractor. Contractor shall at all times maintain good order among his employees and shall not employ on the work any unfit person or anyone not skilled in the work assigned to him.
“Contractor shall take all reasonable measures and precautions at all times to prevent injuries to . . . any of his employees. . . . Such measures and precautions shall includé, but shall not be limited to, all safeguards and warnings necessary to protect workmen . . . against any conditions on Owner’s premises which could be dangerous and to prevent accidents of any kind whenever work is being performed in proximity to any moving or operating machinery, equipment or facilities, whether such machinery, equipment or facilities are the property of or are being operated by, the Contractor, his subcontractors, the Owner or other persons.”

Paragraph 17 of that contract required Universal Delta to procure certain insurance. Travelers issued policies to Universal Delta and a certificate of insurance to Steel. The certificate and endorsement thereon provided that Travelers had issued certain listed policies to Universal Delta. In the actual policy there was a contractual liability coverage endorsement which insured Universal Delta against liability assumed by it under the contract with Steel. The certificate, on its face, stated:

“This is to certify that policies of insurance as described below have been issued to the insured named below and are in force at this time. . . . The insurance afforded is subject to all of the terms of the policy applicable thereto.”

In March of 1961, the main action was settled with Skezas by payment of $75,000. Steel and Travelers each paid one-half that amount. The parties then went to trial on the third party complaint. The parties who had paid the settlement amount entered into a stipulation agreement. That agreement provided that Steel was the owner of the plant and that Universal Delta was the painting contractor for the renovation work. The specific circumstances leading up to and including the accident were set out as follows:

“Paul Skezas, the plaintiff was employed by Universal Delta as a painter. April 2, 1957, the day of his accident, was his first day on the job at the Supply Division plant. The work of Skezas and his crew was to spray-paint the areas on the lower portions of the trusses of the building which the painting crews of Universal Delta had been unable to reach the preceding day.
“(d) The trusses were approximately 32' above floor level. For this purpose the men were using a scaffold which had been rented by Universal Delta from defendant Safway Steel Products, Inc. by order placed April 1, 1957. The parts of the scaffold had been delivered on April 1, 1957, and the scaffold was assembled late that day or early on the morning of April 2, 1957. The scaffold as assembled was 30' high. The scaffold rolled on casters.
“ (e) Skezas and a fellow employee named Cooper were working on a platform at the top of the scaffold. The scaffold had been moved two or three times to reach new locations, being pushed by members of the crew, Skezas and Cooper riding the platform at the top of the scaffold. As the scaffold was being so moved shortly after the noon lunch hour, the scaffold tipped. Skezas fell approximately 30' to the floor, sustaining the injuries for which this suit was brought.”

The case was tried without a jury on the pleadings, the stipulation agreement, and trial briefs of Steel and Travelers. The court found against third party plaintiff Steel and in favor of Universal Delta and Travelers. It refused, however, to order Steel to pay Travelers the amount the latter paid out in settlement.

On appeal Steel seeks judgment in its favor and against third party defendants (either or both of them), in the amount of $37,500. Travelers also appeals seeking reversal only of that part of the judgment which denied it monetary relief from Steel.

Steel contends on appeal that it is entitled to recover from Universal Delta for its breach of paragraph 16 of the contract between them, and that Steel is a named third party beneficiary of the policy of insurance between Universal Delta and Travelers, and is therefore entitled to maintain a direct action against the insurance company. Steel appealed from the judgment as to Universal Delta and Travelers. Universal Delta did not appear in this court. However, the discussion below is applicable to Universal Delta as well as to Travelers.

Travelers contends in its appeal that paragraph 16 of the contract between Steel and Universal Delta does not constitute an indemnity clause; that the certificate of insurance issued to Steel gives rise to no right of action by Steel, and that the court was inconsistent in failing to order reimbursement to Travelers from Steel, when it found against Steel on the issues.

Steel’s appeal will be considered first. Steel first contends that its contract with Universal Delta gives rise to a right of recovery from Universal Delta. Paragraph 16 of that contract, as set out above, is a fairly standard paragraph and has been the subject of prior judicial discourse. The court in Rommell v. United States Steel Corp., 66 NJ Super 30, 168 A2d 437, construed this same clause and found that while it imposed some contractual duties on the contractor, it was not an indemnity clause. It stated on page 443: “We do not regard paragraph 16 as a covenant, express or implied, by Commercial (the contractor) to indemnify Steel.”

Steel contends, however, that even in absence of express language of indemnity Universal Delta is liable to Steel for breach of a duty to perform the work properly. Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346, explained the workings and reasoning of this theory. If the contract sets up a duty to perform work safely or with reasonable care, and that duty is breached, the Illinois courts will recognize a right of recovery by the owner from the contractor. Steel asserts that Universal Delta had an obligation to take all reasonable measures for the safety and protection of the employees and that this duty was not complied with. Steel goes on to add that the only charges of liability against it by the original plaintiff’s complaint and supported by the stipulation of facts were those of vicarious liability of an owner. Steel reasons that in such a situation, under cases like Gannon v. Chicago, M., St. P. & P. By. Co., 22 Ill2d 305, 175 NE2d 785, an owner is not absolutely liable for injuries to employees of a contractor or a subcontractor. An owner who is only passively at fault may recover from a party actively at fault. However, for this rule to be applicable, Steel must set forth proof as to which company was the active cause of the accident. This proof is lacking. There is nothing in the record to indicate that Universal Delta did not fulfill its duty to perform the contract safely or that it was the active cause of the injury. The stipulation of facts about the accident gives no real insight as to how the accident occurred, other than saying that the scaffold tipped. There was no showing of what caused it to tip. Steel cites many cases in which owners have been allowed to recover from the contractors. However, in those cases it was shown that the contractor was actively at fault and the owner, if at fault was so only in a passive manner. In the absence of a clear showing that Universal Delta did not live up to the standards required by the contract with Steel, there can be no right of recovery by Steel for the amount paid by it in settlement of the principal action.

Steel also contends that it was a named beneficiary of the policy of insurance between Travelers and Universal Delta, and, therefore, it had a right of direct action against Travelers. For two reasons this position is untenable. First, the only existing coverage was that set forth in the policy. The certificate was merely a description of that coverage, and did not constitute a contract between Travelers and Steel. The policy covered only liability which was assumed by contract between Steel and Universal Delta, and we have pointed out above that Steel has shown no right of recovery under the contract.

Steel has no right to direct action as a third party beneficiary of the insurance policy either. Jefferson v. Sinclair Refining Co., 220 NYS2d 387, was a case in which the contractor’s insurer had issued a certificate endorsement similar to that issued by Travelers. Sinclair, the owner, alleged it was a third party beneficiary under the policy, and, thereby entitled to sue the insurer directly. The court did not agree and said on page 390: “The policy does not express the obligation of Employers (the insured) to indemnify Sinclair. Sinclair is at best an incidental beneficiary and as such has no right to sue on the policy.”

For the above reasons Steel has no right to recover the $37,500 paid by it from either Universal Delta or Travelers.

Travelers’ contentions on appeal that paragraph 16 of the contract between Steel and Universal Delta does not constitute an indemnity clause and that the certificate of insurance gives rise to no right of action by Steel against Travelers have been answered in favor of Travelers in our discussion of Steel’s contentions.

Travelers’ other contention is that the court, having found against Steel on its third party complaint, should have ordered reimbursement to Travelers by Steel in the amount of $37,500. Travelers asserts that failure to order reimbursement was inconsistent with the findings of the trial court. This is not true. The suit was that of Steel seeking reimbursement from the third party defendants, and Travelers’ only plea for monetary relief came in the stipulation agreement. The only basis one could find therein for relief would be that Travelers had paid out money. Travelers made no showing that Steel was responsible for the accident or liable to Skezas therefor. In absence of this we see no reason why Steel should be made to pay to Travelers the amount paid out by the latter in settlement of the principal claim. As noted above, the only way one who has paid damages for a personal injury may recover that amount from another is by a showing that the one who paid was merely passively at fault while the other was actively or primarily responsible for the injury. On the record before us we feel that the trial court had no reason for which it could have ordered reimbursement of Travelers by Steel. Travelers argues that failure to order reimbursement in cases like these will destroy the efficacy of settlements, in that no one will pay anything until the issue of liability has been established. This reasoning is faulty insofar as neither party presented the question of primary liability or causation to the trial court, and there were insufficient facts presented to have allowed the court to decide the question if it had been presented. The stipulation failed to show any one party to be the primary cause of the injury. The court could not surmise facts not presented to it, and it is well settled that issues not presented to the trial court may not be considered on appeal. Woman’s Athletic Club of Chicago v. Hulman, 31 Ill2d 449, 202 NE2d 528; Benson v. Isaacs, 22 Ill2d 606, 177 NE2d 209. Therefore, the decision of the trial court must be affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.

On Petition for Rehearing

Third party plaintiff, Steel, has filed a petition for rehearing and contends therein that the court misconstrued Steel’s position on appeal and therefore decided the appeal on other grounds. Steel bases this argument on the theory that it sought recovery from Universal Delta only on the ground of breach of contract and that the court did not consider that position. We did indeed examine that theory, but concluded that it was unfounded insofar as a breach of contractual duty was not shown in the record.

Steel, in its third-party complaint, set forth part of the contract between itself and Universal Delta. One section set out therein (section 16) required that contractor (Universal Delta) “take all reasonable measures to prevent injuries to . . . any of his employees. . . .” There were no allegations that Universal Delta did not take such measures. Steel claims that Universal Delta had, by that same section, undertaken the sole responsibility for the safety of all persons employed by it. However, this responsibility must be interpreted in light of the entire section, which section also contains the language quoted above. To recover for a breach thereof, Steel must do more than set forth the contractual language and the occurrence of an accident. To allow recovery otherwise would be to hold the contractor strictly liable for anything that occurred on the job, regardless of the precautions taken by him.

Steel relies heavily on the Moroni case, supra. However, that case is distinguishable insofar as the language therein makes it clear that the allegations set out the activity of the defendant, the contractual duty and breach of that duty by the defendant. Steel’s allegation in its third-party complaint that Universal Delta, by its acts or omissions, caused the injury to plaintiff, is a mere conclusion and is insufficient to bring it within the rule of Moroni.

In other words, Steel, admitting that section 16 of the contract does not give rise to a right of express or implied indemnity, must rely solely on a theory of breach of contract duty to perform work safely. Steel cites the Rommell case, supra, which distinguished this action from one of indemnity. Steel’s complaint alleged the existence of a contract, but made no reference to a breach thereof. The fact that it said an injury occurred does not show that the contractor did not perform his work safely. All of section 16 must be read together. We do not consider that part in which Universal Delta assumes responsibility for the safety of all persons to have application separate and apart from the reasonable measures provision of that section. To show a breach of duty Steel must set forth the acts or omissions which were not in compliance with the contract. In a case such as the one at bar, if the contractor had taken all reasonable precautionary measures, and, due to some extraordinary circumstance, an injury occurred, there would be no breach of contract. The injury must be tied to specific acts or omissions in contravention of the contract provision for this action to lie.

For the foregoing reasons, the petition for rehearing is denied.

Petition for rehearing denied.


source: Caselaw Access Project

author: MR. JUSTICE DEMPSEY

license: Public Domain

text:
    Joan Vysoky, Plaintiff-Appellant, v. Le Roy Vysoky, Defendant-Appellee.
    Gen. No. 51,354.
    First District, Third Division.
    June 29, 1967.

      Albert H. Werner and Crowley, Sprecher, Barrett & Karaba, of Chicago (Robert A. Sprecher, of counsel), for appellant.
    Meyer Weinberg, of Chicago (Meyer Weinberg and Harry G. Fins, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal from an order denying the plaintiff’s petition that a divorce decree be amended to award her permanent custody of the two minor children of the parties.

The plaintiff and defendant, Joan and LeRoy Vysoky, were married in 1958. Two children were born of their marriage, James and Donna. In 1962 the plaintiff filed a complaint for divorce and an uncontested decree was entered in June 1963. The decree incorporated an agreement between the parties which provided that custody of the children was to be in the father for ten months and in the mother for two months of each year, with each having the right of visitation. It also provided that the plaintiff was to quitclaim her interest in the family home in exchange for a cash payment by the defendant. Eighteen months after the decree the plaintiff filed the petition for change of custody and the petition was granted. The defendant moved for a rehearing, his motion was granted and the case was assigned to another judge. After hearing the testimony of witnesses and the arguments of counsel, the judge denied the petition.

Some time after the divorce decree the defendant sold the marital residence and moved with his children to his parents’ house. His younger brother and sister also live there. The house has two floors. On the lower level are a kitchen, a living room, two bedrooms and a bathroom containing a water closet but no facilities for washing. There are two bedrooms and a living room on the upper level, and a bathroom with a tub and water closet but no sink. However, there is a sink in the kitchen on the lower level and another kitchen sink on the upper level. The house, heated by gas space heaters, is well furnished, but the furniture is old and worn.

Donna, three years old, shares a bedroom with the defendant; she sleeps on an upper bunk bed. James, age six, formerly shared the same kind of bed with the defendant. The defendant and his mother testified that James now sleeps alone in a bedroom containing twin beds, a chest of drawers and a child’s desk. The plaintiff testified that he shares a small bedroom with the defendant’s 16-year-old brother, both sleeping on bunk beds. James’ attendance at school is perfect and his teacher says he is doing fine. On Sundays he and his sister accompany their father and grandmother to church.

The defendant has worked for the same employer for 13 years; he works a forty-hour, five-day week, but he is home with his children every night except one night a week when he bowls. He plays with the children, takes them to the park, helps James with his homework, supervises their baths and puts them to bed at night.

While the defendant is away his mother looks after the children. She sees that they are dressed in the morning, prepares their meals, washes their clothes and cleans their rooms, and occasionally disciplines them. She testified that the children are well-mannered and good, and are taught to love and obey their father and mother. She said at times they get mischievous and get her aggravated. One of the plaintiff’s witnesses testified that the grandmother said the children sometimes get on her nerves but that she loved them very much and was willing to care for them. A neighbor of the defendant whose son is James’ playmate testified that the Vysoky children are clean and healthy, happy and well-mannered.

The plaintiff remarried about a year after the divorce and has had a child by her present husband. Their home is in a suburban community. It has three bedrooms, a living room, a kitchen, a dinette area and a full basement. The furnishings are new and complete. Most of the houses in the neighborhood are newly built. The plaintiff testified that if she were awarded custody Donna and James would each have private bedrooms. Her husband, who is steadily employed, testified that he was willing to have the children and that he liked them as much as he did his own. The plaintiff is not employed and would be able to take care of them during the day. The children presently live with her and her husband on weekends and for two months in the summer.

There was some dispute as to the children’s diet and medical requirements. The plaintiff testified that their diet was inadequate and their medical care insufficient. The defendant and his mother testified about the food they ate and the dental and medical attention they received.

The divorce decree, which awarded custody to the defendant, is res judicata of the defendant’s fitness as determined by the known facts in existence at the time of the decree. Kline v. Kline, 57 Ill App2d 244, 205 NE2d 775 (1965); Thomas v. Thomas, 233 Ill App 488 (1924). To justify a modification of the decree and a change of custody, the evidence must establish that the parent to whom the children were originally awarded is unfit to retain custody or that a change of conditions makes a change of custody in their best interest. Stickler v. Stickler, 38 Ill App2d 191, 186 NE2d 542 (1962). The party seeking to alter the custody provisions has the burden of proving that the children’s best interest requires such a change (Hirth v. Hirth, 59 Ill App2d 240, 207 NE2d 114 (1965)) for the paramount concern must always be the welfare of the children. Dunning v. Dunning, 14 Ill App2d 242,144 NE2d 535 (1957).

It is the plaintiff’s position that the evidence showed that the grandmother, due to her age and her responsibilities to her own family, is too busy to give proper attention to the children’s diet, health and welfare. It is suggested that it was the commencement of the judicial inquiry into their custody that spurred her to rearrange the sleeping quarters, take James to the dentist and do whatever else she could to rectify her past slackness. The plaintiff also argues that her home and neighborhood are materially more advantageous for the children, and that she is able to give them the constant attention and love their grandmother has not the time to give.

The record does not show that the defendant failed to provide the children with supervision and love; rather it fully bears out the statement of the trial court that the defendant “. . . is a good father and takes good care of . . . [the children].” The defendant pays the food, clothing, medical and dental expenses of his children. He plays with them, disciplines them, joins them in religious worship, makes sure they are bathed regularly, watches over James’ schoolwork. While the defendant is away his mother takes care of them and the evidence indicates that she conscientiously performs her duties. There is evidence of isolated incidents of minor neglect in her supervision, but such things occasionally happen in the best of families. Moreover, the alleged instances of neglect were denied by the defense witnesses, and the trial judge’s decision on the credibility of the witnesses cannot be said to be against the manifest weight of the evidence.

The trial judge also observed that the children now reside in an older neighborhood which may not be as good as the one in which the plaintiff resides, but he nonetheless concluded that he could not see anything in the evidence which would warrant an order that it would be in the best interests of the children that custody be transferred to the plaintiff. The fact that the plaintiff can offer the children a more modern and perhaps more comfortable residence than can the defendant does not of itself justify the conclusion that their welfare demands that they live permanently with her. And there is no arbitrary rule that requires custody to be awarded the mother in every case in which she is found to be a fit parent. Jenkins v. Jenkins, 81 Ill App2d 67, 225 NE2d 698; Corcoran v. Corcoran, 79 Ill App2d 328, 224 NE2d 611 (1967); Carlson v. Carlson, 80 Ill App2d 251, 225 NE2d 130 (1967). In the present case the court found that the father was also a fit parent and that there were no altered circumstances which justified removing the children from him.

In ruling on an application for a change of custody, the trial court is entrusted with wide discretion. Israel v. Israel, 8 Ill App2d 284, 131 NE2d 555 (1955). The order of the court is adequately supported by the evidence. The fact that there is conflicting evidence does not warrant disturbing the court’s conclusion. Kokotekian v. Kokotekian, 23 Ill App2d 171, 161 NE2d 712 (1950); Bateman v. Bateman, 337 Ill App 7, 85 NE2d 196 (1949).

Another point raised by the plaintiff is that the trial court erred in refusing to permit her to relate the events which led to the divorce and to prove that she was obliged to give up custody of the children, contrary to her intention, because of the mental strain she was under and because she had been told she could not get the divorce unless she did so. The plaintiff failed to include this point in the Points and Authorities in her brief. Appellate Court Rule 5 (2) (k) requires the propositions relied upon in support of the appeal to be included in the Points and Authorities, and her failure to include this point is deemed a waiver. Varap v. Varap, 76 Ill App 2d 402, 222 NE2d 77 (1966).

The order is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


text:
    Winifred Wells, Plaintiff-Appellee, v. Board of Education of Community Consolidated School District No. 64 Cook County, Illinois.
    Gen. No. 51,607.
    First District, Third Division.
    June 29, 1967.

      Ancel, Stonesifer, Glink & Levin, of Chicago (Louis Ancel, Marvin J. Glink and James K. Stucko, of counsel), for appellant.

      Ligtenberg, Goebel & De Jong, of Chicago (John Ligtenberg, Andrew J. Leahy and Mary Lee Leahy, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal pursuant to the Administrative Review Act (Ill Rev Stats, c 110, §§ 264-279 (1963)) to review a judgment of the Circuit Court. The court reversed the decision of the Board of Education of Community Consolidated School District No. 64, Cook County, Illinois, which discharged the plaintiff, Winifred Wells, a teacher in the school district.

In this court the board makes two contentions: its order of dismissal was not contrary to the manifest weight of the evidence and the causes upon which the dismissal was predicated were irremediable. The principal issue in the appeal revolves around this second contention for the trial court found that the causes were remediable, and that the board, therefore, lacked jurisdiction to discharge the plaintiff because it had not complied with the statute requiring that a teacher be given written warning of specific causes which, if not corrected, might result in charges against her.

Prior to the time when the plaintiff was hired by the board she had received extensive training and experience as a teacher of children of retarded intellectual development. In 1961 she applied to the board for assignment to a class of educable mentally handicapped children (whose mental abilities do not extend beyond 4th or 5th grade subject matter). She was hired as a teacher of trainable mentally handicapped children (who generally are incapable of reading or arithmetic computation), commonly called a TMH class. Before her contract expired in 1962 the superintendent of the school district recommended to the board that she be reemployed. The board followed his advice. Early in 1963 the superintendent explained to the board that the plaintiff, having served two years as a probationary teacher, could not be rehired without qualifying her for contractual continued service, or tenure, under the School Code of 1961; and he, the principal of the plaintiff’s school and the assistant to the principal all urged that she not be rehired. The board disregarded their objections and offered her a contract which she accepted. One year later, in February 1964, the superintendent renewed his objection and, at a meeting on March 18, 1964, the board adopted a resolution that the plaintiff’s services be terminated at the end of the school year and that she not be reemployed.

The board listed several reasons for its decision and stated that the causes for the dismissal of the plaintiff were not remediable. Notice of the board’s decision was sent to the plaintiff and she requested a public hearing and a bill of the particulars. The bill was furnished, hearings were conducted and on July 30, 1964, the board passed a resolution setting forth its findings of fact and its conclusions that the plaintiff be dismissed for incompetence, that her incompetence was irremediable and that the best interests of the school district required her dismissal.

Whether or not the causes for dismissal are irremediable is a question of fact whose initial determination lies within the discretion of the board; but a court of review must determine whether the board’s finding is against the manifest weight of the evidence. Hauswald v. Board of Education of Community High School Dist. No. 217, 20 Ill App2d 49, 155 NE2d 319 (1958); Allione v. Board of Education of South Fork Community High School Dist. No. 310, 29 Ill App2d 261, 173 NE2d 13 (1961). A cause for dismissal is irremediable where damage has been done to the students, the faculty or the school itself and the damage could not have been corrected if warnings had been given by the teacher’s superiors when they learned of the cause. Cf. Werner v. Community Unit School Dist. No. 4, 40 Ill App2d 491,190 NE2d 184 (1963).

A board of education may:

“. . . dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause and . . . dismiss any teacher, whenever, in its opinion, he is not qualified to teach, or whenever, in its opinion, the interests of the schools require it. . . .” Ill Rev Stats, 1963, c 122, par 10-22.4.

Before the power of dismissal may be exercised against a teacher with tenure, the board must comply with the statutory procedure specified in section 24-12 of the School Code. Miller v. Board of Education of School Dist. No. 132, Cook County, 51 Ill App2d 20, 200 NE2d 838 (1964). In relevant part that section provides:

“Notwithstanding the entry upon contractual continued service, any teacher may be removed or dismissed for the reasons or causes provided in Section 10-22.4. ... If the dismissal or removal is . . . [for a reason or cause other than the diminishing of the number of teachers or types of teaching services] it shall not become effective until approved by a majority vote of all members of the board upon specific charges and after a hearing, if a hearing is requested in writing by the teacher. . . . Written notice of such charges . . . shall be served upon the teacher. . . . Before service of notice of charges on account of causes that may be deemed to be remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges. . . .” Ill Rev Stats, 1963, c 122, par 24-12.

The notice sent the plaintiff contained a list of seven “reasons for . . . dismissal.” The reasons were:

“(1) The teaching activities carried on in the classroom by Winifred Wells are not designed to promote the growth of the pupils, but are of the ‘baby sitting’ type.
“(2) Winifred Wells has not followed the directions for each pupil as listed in the report of the psychologist.
“(S) Winifred Wells has not been concerned with the educational growth of her pupils. Her journals of the activities of each pupil say in many instances, ‘Had a good day,’ or ‘Had a bad day,’ with no indication of the tasks planned for the pupils nor the reaction of the pupils of these specific tasks.
“(4) Winifred Wells has consistently been unable to profit from all of the attempts to help her improve her program made by those responsible for supervision, including the principal, director of special education, psychologist, superintendent, and state supervisor of TMH rooms. The conferences which were held were pleasant, but there was no evidence that she put any of the suggestions to good use.
“(5) Although Winifred Wells is a veteran teacher with many years experience and training at Columbia University, her classroom and her educational program show no evidence that any of this training or experience is put to use. In other words, her performance is much like that of a beginning teacher.
“(6) That the interests of this School District require her dismissal.
“(7) That by reason of the numerous conferences held with Winifred Wells concerning the dissatisfaction of the administration with her teaching skills and performance, and the unsuccessful efforts made to improve her work, and the warning given her, this Board finds that the causes for the removal of Winifred Wells are not remediable.”

The reasons for dismissal numbered (2), (3) and (6) are inadequate to that purpose. The psychological reports mentioned in the second reason were excluded from evidence and neither the psychologist nor anyone else testified to the nature of his recommendations; hence, there is no evidence that the plaintiff deviated from his instructions, much less of any irremediable deviations. Moreover, the plaintiff testified that she referred to the reports and used them with the children. The unsophisticated content of the behaviour journals which the plaintiff kept for each of her students constituted the basis for the third charge. She utilized the same method of making entries from September 1963 through February 1964, and there is no evidence that during this period she was given a direction, either oral or written, to change her method or that she was shown a prescribed way to make them. Since this part of her teaching duties was ministerial, her failure to perform the task differently could not have harmed the quality of her teaching, and nothing in the record suggests that she would not have complied with a demand from her superiors that the journal entries be more detailed. Insofar as the board relied on this charge to support its conclusions that the plaintiff was irremediably incompetent and that the best interests of the school required her dismissal, its finding is inconsonant with the manifest weight of the evidence. The sixth reason for dismissal is not a specific charge; it merely repeats verbatim one of the causes of dismissal listed in section 10-22.4 of the School Code. Section 24-12 of the code requires that the dismissal of a teacher with tenure be based upon specific charges; the unamplified sixth reason is, therefore, insufficient. Contra, Pearson v. Board of Education, 12 Ill App2d 44,138 NE2d 326 (1956).

The remaining charges generally develop various facets of a single accusation: the plaintiff was unable and unwilling to administer individualized training and discipline which would challenge the children to develop their full potential and instead applied herself solely to their physical care and amusement. The evidence introduced to support the accusation was related to the plaintiff’s alleged failure to mold her teaching to a “Curriculum Guide” published by the Illinois Superintendent of Public Instruction. The purpose of the “Curriculum Guide” is to assist teachers of mentally handicapped children to determine what goals in education, self-care and social adaptability the children can achieve and the ways in which they can be aided in achieving them; consequently, the program outlined in it is quite broad and must be implemented by specific experiences planned by the teacher.

The director of an area program for exceptional children testified that, in her opinion, a classroom schedule or guide prepared and used by the plaintiff was not specific enough to be acceptable as a curriculum for a TMH program.

The superintendent, although stating that he relied primarily upon the principal for his information about how the plaintiff taught, testified that he had several conversations with her and also observed her teaching, that she was not well-organized, that her teaching qualifications had deteriorated and that he could observe little correlation between the teaching program she submitted and the teaching she was doing.

The plaintiff’s principal testified that he visited her classroom almost daily and frequently made suggestions about the contents and manner of her teaching. Some of his recommendations involved classroom discipline. For example, the plaintiff once left her class while the music teacher was there, and she was reminded that this was against school policy. During some activities she sat beside those children who usually misbehaved and had the rest of her class facing her; she was told to keep all the children seated in front of her so that they could easily see her and the objects shown them. She was also advised to “establish a firmer hand” with some of the boys whose conduct disrupted her teaching. The principal testified further that he had numerous conversations with the plaintiff regarding the objectives of the TMH program and that they discussed at some length the things she could do to improve her program. He assigned the school nurse, the music teacher, the art instructor and the physical education instructor as supplemental teachers in the TMH program and urged the plaintiff to use her special knowledge to help these teachers do their jobs, to supplement the skills they were teaching and to instruct the children as she knew how from her years of experience and training. He testified that the plaintiff did not follow the suggestions he made concerning the children’s development, that she stated she disagreed with his suggestions and that she did not comply with the regulations and standards provided by the State. In addition, he testified that she did not follow up the activities of the special teachers and that she did not “establish a firmer hand” as he had asked or teach such basic skills as traffic safety and reading readiness.

The board also heard testimony by the parents of some of the children in the TMH class expressing their dissatisfaction with the progress made by their children.

The board has stressed aspects of the evidence which it contends demonstrate that the plaintiff over a long period of time failed to cooperate with the school administration despite repeated warnings and directions. Her uncooperative attitude, it is argued, caused her incompetence to be irremediable. Very few specific instances exemplifying this alleged attitude in the plaintiff are in the record, and to illustrate her lack of cooperation the board points generally to her failure to embody in her program the norms which her superiors believed it should have contained.

There is no evidence that the plaintiff was given repeated warnings, or even a single warning, that her failure to conform to the teaching program advocated by the superintendent and principal might result in charges against her, and her failure in this regard cannot be viewed as a spirit of hostility and antagonism such as in Robinson v. Community Unit School Dist. No. 7, 35 Ill App2d 325, 182 NE2d 770 (1962). Indeed, the evidence supports the conclusion that the plaintiff, although convinced the views of her superiors were erroneous, attempted to comply. Although she told the principal that the special teachers assigned to the TMH program were of limited assistance to her because they lacked training in the teaching of mentally handicapped children, she nonetheless worked with them throughout the year, helping them with their programs, offering them suggestions and giving them moral support. The weight of the evidence also shows that she patiently and conscientiously worked with the unfortunate and difficult children trying to develop their limited ability, helping them to overcome their handicaps, training them in self-care habits and social adjustment with their classmates and others. She also conferred with the parents frequently, accepted some of their suggestions and made use of A B C books, coloring pictures and other materials supplied by them. That she was not uncooperative is further evidenced by a “teacher evaluation sheet” written by the principal about three weeks before her dismissal. The principal noted that her attitude toward her co-workers, parents, pupils and school policy “continues to be good.” Although he was critical of her teaching techniques he said she had the training and “know how” for teaching TMH children and said her interest, understanding and acceptance of them continued on a high level. He added that he considered her a very likeable person and believed that the parents and children thought fondly of her.

Although her principal and her other superiors testified that they regarded her as a poor teacher and her classroom program was deficient, there is no evidence in the record that the plaintiff could not have corrected her teaching program and changed its orientation if her superiors had given her a firm program and demanded that she adopt it. Nothing suggests that, had she been warned that her refusal or failure to do so might result in charges, her compliance would not have been complete. Moreover, it appears that the dividing line between compliance and noncompliance may not have been too distinct (and the difference between the competency or incompetency of a teacher assigned to a TMH class not too discernible), for the superintendent in a letter written to the board at the .time the reemployment of the plaintiff was being considered stated: “The educational goals for these children are so low and the acceptable skills of performance so weak that it is difficult to know how much better a well-trained, skillful person would perform.” Consequently, it would seem that the modification of the plaintiff’s teaching program would not have had to be so extensive that it can be said that she would be unwilling to undertake it.

Since the plaintiff’s failure to maintain what her superiors thought was proper discipline and control is also of a remediable nature (Smith v. Board of Education of Community Unit School Dist. No. 1, 19 Ill App 2d 224, 153 NE2d 377 (1958)), we agree with the trial court that the finding of irremediability was against the manifest weight of the evidence and that the plaintiff was entitled to a written warning before being dismissed.

The judgment of the Circuit Court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Nicholas Uselding (Impleaded), Defendant-Appellant.
    Gen. No. 51,754.
    First District, Third Division.
    June 29, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a nonjury trial the defendant Nicholas Uselding was convicted of burglarizing an apartment and was sentenced to serve from one to ten years in prison. The only issue is that of reasonable doubt. The facts follow.

Ann Filkins, a resident of the apartment building, testified that on the day in question she saw the defendant, his brother Thomas and Doreen Uselding enter the building which was later burglarized. A short time later she saw all three leaving in a car which the defendant acknowledged belonged to him. Nothing was taken from the apartment at that time. Thomas Uselding testified on behalf of his brother and undertook to explain the presence of Nicholas and Doreen at the crime. He testified that he went to the apartment to see a former employer, known to him only as Frank, for the purpose of getting employment. Since he could not read, he brought Doreen and the defendant along to see if the name “Frank” appeared beneath any of the doorbells in the building. Thereafter he drove defendant to a pool hall and drove Doreen to Irving Park Road and State Street (a nonexistent location). He then returned to the apartment alone and burglarized it.

Thomas and Nicholas were arrested as they approached the defendant’s car at 95th Street and Genoa. In the car police found a wrench containing metal and plastic particles similar in composition to the doorknob of the burglarized apartment. The defendant Nicholas was wearing a ring taken in the burglary and had a glove in his pocket which was also identified as having been taken in the burglary. This was sufficient evidence to warrant a finding of guilty beyond a reasonable doubt.

The only remaining question is whether Thomas Uselding’s testimony that he committed the crime without assistance raises a reasonable doubt as to defendant’s guilt. Defendant contends that the State should not be allowed to rely on the confession to establish the guilt of Thomas Uselding and then reject that portion of it which exonerates the defendant. In support of this, counsel cites People v. Fox, 319 Ill 606, 150 NE 347, in which the court stated (pp 609-610):

“A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers.”

Judicial confessions are accorded high probative value because they are statements which damage the natural interests of the declarant. Nonetheless, a confession is not conclusive proof of every statement therein made. It must be weighed in the same manner as other evidence. The testimony of Thomas Uselding is not necessarily entitled to great weight. His testimony regarding his brother’s whereabouts could as easily have been motivated by self interest or family loyalty as by “the strongest sense of guilt.”

Where a case is tried without a jury, it is the function of the trial court to determine the credibility of the witnesses and to evaluate conflicting evidence, and a conviction based thereon will be reversed on review only where the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt of the defendant’s guilt. People v. Washington, 27 Ill 2d 104, 187 NE2d 739; People v. Smith, 57 Ill App2d 74, 206 NE2d 463. The trial court heard the testimony and observed the witness. The sequence of events described by Thomas Uselding was involved and improbable in many respects. The evidence supports the finding of the trial court that defendant was guilty beyond a reasonable doubt.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE ENGLISH

text:
    First National Bank of Skokie, as Trustee Under Trust No. 530, and Old Orchard Estate Builders, Inc., a Corporation, Plaintiffs-Appellees, v. Village of Skokie, a Municipal Corporation, Defendant-Appellant, and Board of Education, School District No. 68, Intervenor-Appellant.
    Gen. No. 51,162.
    First District, Fourth Division.
    June 30, 1967.

      Harvey Schwartz, of Skokie, for defendant-appellant.
    Arnstein, Gluck, Weitzenfeld & Minow (formerly Kahn, Adsit, Arnstein, Gluck, Weitzenfeld & Minow) of Chicago (Daniel J. Gluck, John F. McClure and Arnold S. Weisler, of counsel), for intervenor-appellant.
    Paul Peter Black, of Chicago, for appellees.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiffs are the owner and the contract purchaser of the property in question. Defendant, Village of Skokie, and Intervener, Board of Education, appeal from a decree which adopted (with one modification to be discussed subsequently) the report of a Master, and restrained enforcement by the Village of its zoning ordinance insofar as it applied an “R-2, R-3” classification to the property and authorized its development with multiple-apartment buildings.

The subject property is vacant land of approximately 13.36 acres in what would be a rectangular shape but for the exclusion of an area in the northeastern corner. As found by the Master, the land is bounded as follows:

North: South side of Simpson Street from the rear lot line of lots on the east side of Lavergne Avenue to a point about 185 feet west of unopened LaCrosse Avenue.
West: Rear lot line of residential lots on east side of Lavergne Avenue.
South: Middle line of Foster Avenue extended, undedicated and unopened for a distance of 654.80 feet, and along the north side of unopened Foster Avenue for a distance of approximately 313 feet.
East: The unopened north and south alley to the east of LaCrosse Avenue to the unopened east and west alley south of Simpson Street.

A small neck of the subject property extends east to the west side of Skokie Boulevard.

Directly across the street and north of the site is the large Old Orchard shopping center of Marshall Field & Co. To the west are the rear lot lines of a row of single-family homes facing onto Lavergne Avenue. To the south of the property are the Village refuse disposal site at the west end and, at the east end fronting on Skokie Blvd., a furniture store. Continuing south along the west side of Skokie Blvd. are a theatre, a second furniture store, a grocery, a discount store and a restaurant. Across the boulevard to the east, beginning at the southeast corner of Skokie Blvd; and Simpson Street and proceeding south, there are a drive-in restaurant, kiddy amusement park and golf driving range, a shopping center, a motel and restaurant and a gasoline station. Beginning on the northeast corner of Skokie Blvd. and Simpson Street and running north along the east side of Skokie Blvd. is the large' Memorial Park Cemetery. Simpson Street and Skokie Blvd. are both heavily trafficked thoroughfares.

Old Orchard Estate Builders, Inc., purchased the land from the other plaintiff acting as trustee for Marshall Field & Co., for $1,000,000 under a contract dated March 4, 1963, amended September 30, 1963, limiting the purchaser to application for rezoning of the property to multiple-apartment use and barring it from applying for commercial use. (Cost of the proposed construction would run approximately $5,000,000.) At that time, the property was zoned for single and two-family use within the R-2 and R-3 classifications. Plaintiffs’ proposed multiple-apartment development would require an R-4 classification. They sought and received approval of their plan at four different governmental levels of the Village of Skokie: The Department of Community Planning, the Department of Engineering, the Fire Department, and, finally, the Skokie Plan Commission, which held public hearings on plaintiffs’ application and then, on July 2, 1963, unanimously recommended to the Village Board of Trustees that they approve plaintiffs’ request. This the Trustees refused to do, and on October 7, 1963, plaintiffs filed this action in equity seeking injunctive relief. After extensive hearings, the Master, on October 15, 1965, filed his report which recommended “that the Court enter a decree granting relief to the plaintiffs for four story, multiple apartment buildings.” On October 28, 1965, the Chancellor approved the Master’s report but in his decree modified the Master’s recommendations to allow buildings of five stories.

On October 25, 1965 (between the dates of the Master’s report and the decree), the Board of Trustees adopted an amendatory ordinance which rezoned the subject property to “B-2 Commercial District zoning classification,” in which zone multiple-apartments would also be prohibited. In regard to this action by the Village the Chancellor had the following to say:

With reference to the ordinance of October 25, I would like to make this comment, gentlemen:
That it is a longtime American tradition that I think is embodied in our law, that we just do not change the rules in the middle of the game, and this is a flagrant violation of that law, and in my judgment it is reprehensible conduct. Prepare the Decree.

The first point argued on this appeal by the Village and the Board of Education is that the amendatory ordinance was duly enacted by the Trustees after submission to and approval by the Plan Commission. They contend therefore that, regardless of whether or not the Chancellor should have been bound, he did not consider his decision in light of the ordinance and the case should at least be remanded for a hearing on the validity of the “B-2” classification, since this court is bound by the presently existing law under which the subject property is zoned “B-2” instead of “R-2, R-3” as attacked by the plaintiffs’ complaint.

It is true, as contended by the Board and the Village, that a reviewing court must dispose of a case upon the law as it exists at the time of its decision and not upon superseded law in effect at time of trial when valid amendatory procedures have been followed:

There is no vested right in the continuance of a law, (citation) and it has been held many times that where the legislature has changed the law pending an appeal the case must be disposed of by the reviewing court under the law as it then exists, and not as it was when judgment was entered in the trial court. (Citation.) (Fallon v. Commerce Commission, 402 Ill 516, 526; also see Ward v. Village of Elmwood Park, 8 Ill App2d 37, 39.)

It is also true that a municipality may properly refuse to issue a permit for construction which is permitted under existing zoning classifications if the municipality has already begun statutorily prescribed amendatory procedures (such as public hearings on planning commission recommendations for ordinance amendments) which would prohibit the proposed building development (Chicago Title & Trust Co. v. Palatine, 22 Ill App2d 264, 268, 160 NE2d 699); and provided the municipality has not unreasonably or arbitrarily refused or delayed the issuance of a permit, as was the situation in Phillips Petroleum Co. v. Park Ridge, 16 Ill App2d 555, 565-566, 149 NE2d 344. In that case the court reiterated the Fallon rule (supra), but ordered issuance of a permit to a plaintiff who could have acquired a vested right in the continuance of the zoning ordinance had it not been for the improper action of the city in passing a resolution suspending the issuance of all such permits until a commission created by the resolution reported on an amendment, subsequently enacted, which prohibited the proposed development. It was not questioned that a city or village has the right to amend its zoning ordinances, but to do so they must follow statutory requirements of seeking recommendations of a plan commission and holding public hearings. At the time the plaintiffs in the Phillips Petroleum case applied for their permit, this procedure had not been initiated and was begun only after the permit was received. The court therefore held that it was improper and, hence, a statutorily invalid action on the part of the city to have suspended the issuance of permits until the plan commission might make its recommendations.

In the instant case, if effect were to be given to the October 25, 1965 ordinance amendment, the zoning classification now applicable would be “B-2”, but such was not the case at the time of the decree. Article XIII, § F, p 143, of the 1965 Skokie Zoning Ordinance provides a monetary fine for “[a]ny person, firm, or corporation who violates, disobeys, omits, neglects, refuses to comply with, or resists the enforcement of any of the provisions of this ordinance. . . .” The ordinance therefore falls within Ill Rev Stats 1965, c 24, article I, division 2, § 4, which provides in pertinent part:

All ordinances of cities, villages and incorporated towns imposing any fine, penalty, imprisonment, or forfeiture . . . shall ... (2) be published at least once, within 10 days after passage. . . . No such ordinance shall take effect until 10 days after it is so published. (Emphasis supplied.)

The amendment to the ordinance was enacted on October 25, 1965, but was not published until October 31, so the zoning effective at the time of the decree on October 28 was the “R-2, R-3” classification. Cybulski v. Eagan, 11 Misc2d 251, 173 NYS2d 379, 380 (1958). This was the classification which had been attacked by plaintiffs’ complaint, which had been under consideration at the hearings before the Master, and which the Chancellor properly considered when he restrained enforcement of the Village ordinance as applied to the subject property. The decree also specifically ordered:

3. The Defendant, Village of Skokie, its officers, employees, servants and agents, . . . are hereby enjoined and restrained from enforcing, or attempting or threatening to enforce the Zoning Ordinance, or any amendments thereto, . . . against the Plaintiffs herein, . . . ; and the said Village . . . [is] hereby enjoined and restrained from enforcing or threatening to enforce any other ordinance or amendments thereto, which may hereafter be passed which purports or may prevents [sic] the Plaintiffs . . . from using the said property for apartment use. . . .
4. The Defendant, Village of Skokie, . . . [is] hereby enjoined and restrained from rezoning, or attempting or threatening to rezone, the property of the plaintiffs to another zoning district classification, the effect of which would be to thwart or prevent the Plaintiffs from using their property for multiple dwelling apartment uses, ....

“It is beyond the power of the court to permanently bring to a halt” the legislative function of zoning, but the decree here is not defective on that score since it applies only to the rights of the plaintiffs regarding this specific use and does not affect future exercise by the Village of its legislative rights and duties. Sgro v. Howarth, 54 Ill App2d 1, 10-11, 203 NE2d 173. Although Sgro was factually more similar to Phillips Petroleum, supra, than to the case now before us, in that Sgro had applied for a permit permissible under the existing zoning ordinance, the court found that the rights of the parties had “crystallized” at the time application for the permit was filed. (54 Ill App2d, at page 5.) In the instant case, the rights of the parties in relation to the specific use proposed for the property had crystallized with the entry of the decree, if not before.

The question presented herein is distinguishable from that considered by the decisions in Phillips Petroleum and Sgro in that plaintiffs here did not file suit in reliance upon an existing ordinance under which they would have been entitled to a building permit. Nor is this case controlled by Chicago Title & Trust Co. v. Palatine, 22 Ill App2d 264, 160 NE2d 699, where the court denied mandamus for a permit refused by the village because lawful amendatory procedures had been commenced prior to the time of application. Although apparently more similar but nevertheless distinguishable is Ward v. Village of Elmwood Park, 8 Ill App2d 37, 130 NE2d 287, where subsequent to the filing of a suit to declare an existing ordinance invalid but prior to decision, the village passed an amendatory ordinance which the trial court refused to consider applicable to the controversy. In agreeing with the trial court that under Fallon the old ordinance was no longer valid, this court reversed the trial court’s finding that the new ordinance was inapplicable. (8 Ill App2d, at pp 39-40). In the instant case, the amendment was not yet in effect, as noted above, so we are not controlled by Ward. Instead, we are confronted with a situation where the defendant in effect admitted the invalidity of the existing “R-2, R-3” classification by attempting an amendment, and also by not arguing before the Master, the Chancellor or this court that plaintiffs’ use should be denied because of the terms of the ordinance existing at the time of entry of the decree. As a defense to plaintiffs’ action, the Village argued that a “B-2” commercial use would be the highest and best use for the subject property. The Master exhaustively considered this position and found for the plaintiffs, taking care to note that his decision did not apply the presumption of validity normally accorded existing zoning classifications. In approving this finding and embodying the recommendations in a decree, the Chancellor likewise, and properly, refused to apply such presumptions. We have applied the traditional and well-known considerations of surrounding uses, values and taxes, buffering effects of multiple-apartment developments, community needs, etc., and agree with the findings of the Master and Chancellor that plaintiffs’ proposal would accomplish the highest and best use for the subject property as compared with either “R-2, R-3” or “B-2.”

The amendatory process was begun only after an adverse finding by the Master and was not completed until after the Chancellor’s decree and injunction. While we do not decide that plaintiffs acquired any vested rights to their proposed use merely by filing suit to have the old ordinance declared invalid, we do find the Village was subject to the injunction below restraining interference with the particular use granted plaintiffs by the decree. To hold otherwise would severely weaken the judicial process when it is properly invoked to provide equitable remedy in zoning cases. By repeated eleventh-hour amendments to the zoning ordinance (or thirteenth-hour, as in this case), a resourceful village board could prolong litigation endlessly and utterly deprive an equity petitioner of any meaningful moment at the Chancellor’s ear. We agree that the decision in Ward may be read to have held that the legislative powers include those of amendment while the issue is still under litigation at the trial stage. Nevertheless, we distinguish the application of that case where, as here, the fact-finding stage of the litigation has been completed, a decision reached, and a decree entered.

In the instant case, the Village, in effect, admitted that the “R-2, R-3” classification was unreasonable when it interposed no defense of that classification before the Master and then sought to amend the ordinance. This amendatory action was begun only after the plaintiffs’ proposal to build apartment houses had been approved by four other levels of the municipal government and a Master’s report (representing a careful evaluation of many pages of testimony and exhibits) had found adversely to the Village. We conclude that the decree should be affirmed. We do not find a “naked abuse of municipal power,” as plaintiffs contend on the basis of Massaglia v. Commissioner of Internal Revenue, 286 F2d 258, 262 (10th Cir, 1961), but we do decide that the amendment enacted by the Village had no effect on the rights of the plaintiffs as established by the decree. The existing classification was attacked as unreasonable when applied to prevent the construction of a multiple-dwelling apartment complex, the Master and Chancellor agreed and found for plaintiffs and, after reviewing the evidence and findings below, we agree. As we have indicated, the amendment became effective after the litigation below was concluded, and, under the circumstances of this case, should have no effect on our decision.

However, we find that the modification by the Chancellor of the Master’s recommendation to allow a five-story, fifty-foot height limitation instead of the four-story, forty-foot limitation found in the “R-4” classification established by the Village, was invalid and improper and is hereby reversed. As the Master noted, the existing “R-4” classification of the Village which applies to multiple-apartments permits four-story buildings and, since that is the use sought by plaintiffs, the four-story, forty-foot limitation should apply. The Master (Jacob Shamberg) stated this proposition very well in his report:

While the Court may strike down limitations in the ordinance, it may not introduce new language into the ordinance by adjudging a new height concept not in keeping with the character of multiple apartment development in the Village and permit the construction of five story apartment buildings, ....

We are controlled by this principle even though our own judgment might well coincide with that of the Chancellor on the issue. See National Brick Co. v. County of Lake, 9 I112d 191, 197, 187 NE2d 494, where the Supreme Court said: .

A court cannot substitute its judgment for that of the county board and, in effect, make a zoning classification of its own. The factors or reasons which make appropriate a particular zoning restriction are matters for legislative policy.

Plaintiffs filed a cross appeal from the Chancellor’s order permitting the Board of Education to intervene. We make no ruling on that point as we do not consider such an order to be appealable. The cross appeal is consequently dismissed. Harris Trust & Savings Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 211 NE2d 32.

On the issue raised by the Board of Education, the Master’s report analyzed the extensive evidence presented. Considering it in the light most favorable to the Board, he found that even under the “R-2, R-3” classifications, an expansion of school facilities would probably be required; and that for this purpose the Board already has the land available, as well as untapped bonding and taxing power. Further, the Master and Chancellor held that while the school situation might be a factor to be considered in this kind of case, it cannot be conclusive. We agree, and note that additional burdens on responsible governmental bodies may not properly justify otherwise unreasonable, arbitrary, and discriminatory restrictions on the use of private property. On the simple economics of the issue, it is apparent that if future developments were limited to commercial or industrial enterprises which would produce more tax money without the addition of any school children, the fiscal position of the school board would be strengthened, but only at the cost of circumventing the school’s raison d’etre. As explained by the Illinois Supreme Court in La Salle Nat. Bank v. Village of Skokie, 26 Ill2d 143, 146, 186 NE2d 46, in response to evidence of a school problem offered in opposition to a proposed apartment development:

Because of urban concentration, coupled with the population explosion, practically every school district is beset with the problem of keeping facilities abreast of enrollment, regardless of whether it is developed as a single-family or multiple-dwelling community. (See also Springfield Township v. Bensley, 88 A2d 271, 277, 19 NJ Super 147 (1952); Opgal v. Burns, 189 NYS2d 606, 611 (1959).)

We conclude that "the contentions of the Board of Education in the instant case are untenable.

The decree of the Circuit Court is affirmed except as to the height limitation included therein, and, for the purpose of modifying the decree in that respect (in accordance with the views expressed in this opinion), the cause is remanded.

Affirmed and remanded with directions for modification of decree.

DRUCKER, and McCORMICK, JJ., concur.

       The Master found:
      3. There is no dispute in the record that the existing zoning is not the highest and best use for the subject property. The experts for both sides are in agreement that the subject property does not have the characteristics for single family or two family dwellings.
      6. The inquiry is, therefore, as to the framing of a decree which in terms will strike down the existing zoning but not leave the subject property unzoned, and which will limit the property owner and the Village as to future use, and will end litigation on the subject matter.

       We do not wish to be understood as indicating that the conflict between a B-2 classification and plaintiffs’ proposed development would necessarily be resolved in favor of the Village even if B-2 zoning were clothed'with a presumption of validity. We note that there was voluminous expert testimony in support of plaintiffs’ position that multiple-apartment buildings represent the highest and best use for the subject property as against any other kind of development.


author: CRAVEN, P. J.

text:
    Joe H. Pritchett, Administrator of the Estate of Franklin Gale Bowen, Deceased, Plaintiff-Counter Defendant-Appellee, and Betty L. Bowen and Howard Young, Sr., Plaintiffs-Appellees, v. Steinker Trucking Company, Inc., a Corporation, Defendant-Counter Plaintiff-Appellant, and Mary Jane Miller, Individually, and as Administrator of the Estate of Paul Richard Miller, Deceased, Counter Plaintiff-Appellant.
    Gen. No. 10,777.
    Fourth District.
    July 10, 1967.
    Rehearing denied and opinion modified October 13, 1967.

      Greanias & Owen, of Decatur (Robert D. Owen and Marshall A. Susler, of counsel), for appellants.
    Robert P. Shonkwiler, of Monticello, and Webber & Welsh, of Decatur (Richard J. Welsh, of counsel), for appellees.
   CRAVEN, P. J.

This appeal arises from denial of a post-trial motion following entry of judgments on jury verdicts in favor of plaintiffs. The plaintiff Joe H. Pritchett, administrator of the estate of Franklin Gale Bowen, recovered damages for wrongful death of Bowen; Betty L. Bowen, widow of Franklin, recovered last expenses, and Howard Young, Sr., recovered damages to his tractor and semitrailer which were being operated by Bowen. The defendant Steinker Trucking Company, Inc., was denied recovery on its counterclaim for property damage to its tractor and trailer, and Mary Jane Miller, administrator of its deceased driver, was denied recovery on her intervening counterclaim for damages both for wrongful death of her decedent, Paul Richard Miller, and for his last expenses. The errors alleged are:

1. That the trial court erred in striking defendant Steinker’s affirmative defense that plaintiffs were estopped to try the issue of Miller’s negligence by the verdict and judgment in a former proceeding arising out of the same transaction ;
2. That the verdict of the jury was against the manifest weight of the evidence;
3. That plaintiff’s expert witness improperly was permitted to give an opinion on the manner of the happening of the collisions involved in the proceedings;
4. That the trial court erred in allowing testimony that plaintiff’s decedent was a person of careful habits;
5. That the trial court erred in not granting a new trial on the basis of newly discovered evidence.

Only the first ground of alleged error would end the controversy without the necessity of a new trial.

The collisions out of which the various claims of these parties arise have been before this court before, Miller v. Pillsbury Co., 56 Ill App2d 403, 206 NE2d 272 (4th Dist 1965), and in the Supreme Court of Illinois, 33 Ill 2d 514, 211 NE2d 733 (1965). The collisions occurred on U. S. Route 36 between a tractor-trailer unit full of hogs driven by Miller for Steinker Trucking Company, Inc., in a westerly direction, and two semitrailer trucks leased by Young to Pillsbury Company, being driven east. The first event was a sideswipe collision between Miller’s vehicle and the Pillsbury truck driven by Mack Pargin, followed by a head-on collision between Miller’s truck and the following Pillsbury truck being driven by Bowen. Both Miller and Bowen were killed. Extensive damage was done to Pillsbury cargo in the trailer of Young’s truck which was driven by Bowen and leased to Pillsbury. Young suffered a total loss of the value of that equipment. Steinker, likewise, lost the value of the hogs and the equipment Miller was driving. The center line of Route 36 is the dividing line between Moultrie County on the south and Piatt County on the north. In the former case, tried in Moultrie County, Miller’s administrator sued Pillsbury and Pargin, and recovered a verdict for wrongful death. Also in that case, Pillsbury lost a counterclaim for damage to its cargo in the trailer of the truck driven by Bowen. Because of the Moultrie County verdicts and judgments, defendants contend that Bowen’s administrator is estopped to litigate, in this suit, the issue of Miller’s negligence.

The verdicts in the two suits on that issue are patently in conflict. In Miller v. Pillsbury Co., Miller’s conduct was directly in issue as to whether he was using ordinary care for his own safety at the time of the collisions and as to whether he was negligent with respect to the goods of Pillsbury. In this suit, Miller’s administrator is not a defendant but the theory of recovery against his employer Steinker is based upon respondeat superior only, as Steinker is sought to be held responsible for the same conduct of Miller previously passed upon favorably to Miller’s administrator by the jury in the former case.

More than mere identity of issues is required to impose estoppel. A concomitant part of that doctrine is the requirement that there be such a relationship between the party against whom the estoppel is asserted and a party in the former proceedings that the interests of justice require the result of the former proceedings to control, for all time, a discussion of the particular issue. Situations upon which the doctrine has been held to operate seem to fall into categories, but in the particular area under discussion no label is available which permits summary disposition of this phase of this appeal. Defendants assert that the relationship between Pillsbury and Bowen, its employee, and Pillsbury and Young, its lessor, at the time of these events, was such that the doctrine applies.

Cases have been cited which hold that a verdict in favor of a principal bar a later suit against an employee where the employee’s conduct was the basis of the alleged liability of the principal. Chief among these is Spitz v. BeMac Transp. Co., 334 Ill App 508, 79 NE2d 859 (3rd Dist 1948). That doctrine does not apply here because Bowen, while an employee of Pillsbury and involved in the transaction, was not the employee whose conduct imposed liability upon Pillsbury under the doctrine of respondeat superior — the conduct in issue in the former proceeding was that of another Pillsbury employee, Mark Pargin. Also, although Pillsbury would have been required to prove due care of its employees in order to recover damages for its cargo loss as a counterplaintiff in the former action, the loss of that action by Pillsbury does not mean that the verdict in the former case reached a result which passed upon Bowen’s conduct. That verdiet could have resulted from a determination (a) that Miller was not negligent or (b) that Pargin’s negligence was the sole proximate cause of the accident.

Without a showing that the particular issue was passed upon by the former jury, estoppel cannot apply. Voss Truck Lines, Inc. v. Pike, 350 Ill App 528, 113 NE2d 202 (3rd Dist 1953). Although defendant’s contention here is that the adjudication of nonnegligence of its driver in the former trial is binding upon the parties here, that contention is based upon an allegation that these present plaintiffs’ interests were represented by the parties defendant at the former trial. In Voss Truck Lines, Inc., it was contended that a former trial between related parties had settled all the issues between the parties to the second litigation. The facts were that one Curtis owned a tractor unit leased to Voss to pull a semitrailer unit, the rig to be operated by a driver named Price. This unit was involved in a collision with a truck owned by Pike and driven by Howard. The collision resulted in two lawsuits. The first was filed in McLean County wherein Voss’ driver, Price, sued for his injuries naming Pike defendant as the employer of Howard. Pike filed a counterclaim for property damage to his truck, naming Voss Truck Lines, Inc., Price and Curtis as counterdefendants. Both principals, Voss and Pike, admitted the agency of their drivers at the time of the collision. This suit was tried to a verdict in favor of Price, and Pike lost his counterclaim. The second lawsuit was filed in Sangamon County. Voss Truck Lines, Inc., was plaintiff seeking recovery of its property damage to the trailer, and coplaintiff was Curtis seeking recovery of the value of his tractor unit. Defendants were Pike and the personal representative of his driver Howard. Plaintiffs in the second suit, following final judgment in the first, moved for judgment based upon an alleged estoppel of defendants to litigate the second case, having lost the first. In reversing a judgment for plaintiffs granted by the trial court on this theory, it was held that despite the fact that identity of parties was the same in the second suit as the first, the plaintiffs in the second suit could not claim estoppel on the part of Pike to litigate the issue of contributory negligence by Voss on the theory that his driver’s recovery in the former proceeding settled the issue. The court pointed out, . . the lack of contributory negligence on the part of Voss was not even involved in the action in McLean county.” Voss Truck Lines, Inc. v. Pike, 350 Ill App 528, 113 NE2d 202, 206 (3rd Dist 1953). We therefore hold that under these circumstances the presence of Pillsbury as a party in the former proceedings, even admitting Bowen’s agency relationship, did not determine any issue relating to Bowen’s conduct, and therefore his interests were not litigated at the former trial. The same holding and considerations apply to Young’s separate action and, of course, Bowen’s widow, whose action is entirely derivative.

The issue and contentions thus come into focus. Steinker can successfully assert estoppel only if the relationship between the plaintiffs in this suit to Pillsbury or to Pargin, defendants in the former suit, is such that, in law, these plaintiffs are bound by a determination that Steinker’s employee Miller was not negligent. Since Steinker’s liability, if any, arises only because of alleged misconduct of Miller, should such a relationship exist, these plaintiffs would be so bound. However, we fail to find the requisite relationship. We find a close analogy to the kind of bare legal relationship here present between these plaintiffs and the former defendants in Miller and the relationship of the plaintiff in Smith v. Bishop, 26 Ill2d 434, 187 NE2d 217 (1963), to her position in a former suit involving the same automobile collision. In that case Mrs. Smith and her three infant children were passengers in a car driven by her husband. In a collision with a truck, two of her children were killed and she was injured. The children’s administrator unsuccessfully sued her husband under the guest statute and both the truck driver and his employer for negligence. Later she filed an injury action in her own behalf for her injuries against the driver of the truck and his employer. In reversing a judgment in favor of the defendants at her trial, which was based upon the ground she was estopped to litigate the issues of the truck driver’s negligence, or his employer’s liability, the Supreme Court held that estoppel could not be applied in this situation, in the following language:

“. . . The law is clear that one is not estopped or barred by a prior adjudication if he was not a party to such action and does not stand in the relation of privy to one who was a party. Ohio National Life Ins. Co. v. Board of Education, 387 Ill 159, 55 NE2d 163.
“That Mrs. Smith was not a party to the wrongful death action is evident from the fact that she was not named as such therein, did not appear, and had no right to adduce testimony, cross-examine witnesses or otherwise control the prosecution thereof. (See Schafer v. Robillard, 370 Ill 92, 17 NE2d 963; Orthwein v. Thomas, 127 Ill 554, 571, 21 NE 430, 4 LRA 434.) Nor was she in privity with the administrator of the children’s estates, even though she was one of the next of kin and a beneficiary of the cause of action for wrongful death. A privy to a judgment is one whose succession to the rights of property thereby affected occurred after the institution of the particular suit, and from a party thereto. (Schafer v. Robillard, 370 Ill 92, 17 NE2d 963; Orthwein v. Thomas, 127 Ill 554, 21 NE 430.) Privity contemplates a mutual or successive relationship to the same property rights which were the subject matter of prior litigation. (Sweeting v. Campbell, 2 Ill2d 491, 496, 119 NE2d 237.) Mrs. Smith did not acquire her rights in this action from the administrator of the children’s estates, nor is her relationship to such rights either mutual with or successive to that of the administrator. He had no beneficial interest but possessed sole right of action or control over the litigation. Mrs. Smith, as next of kin, had no right of action or control over the litigation but merely possessed a beneficial interest in the proceeds. In the case at bar, the fact that Mrs. Smith was a beneficiary in the wrongful death case did not make her a plaintiff therein. Nor did she succeed to the right of action or in any other manner become privy thereto so as to bring her within the rule of estoppel by verdict.” Smith v. Bishop, 26 Ill2d 434, 438,187 NE2d 217, 219 (1963).

Even stronger, more compelling reasons here exist than in the foregoing case to refuse to apply the doctrine of estoppel. No verdict in favor of Pillsbury in the former suit would have benefited either Bowen’s heirs or Young as would a verdict for Mrs. Smith’s deceased children’s administrator have benefited her as next of kin. There is no mutual or successive interest in a verdict in the former case between Pargin or Pillsbury and these plaintiffs.

We now pass to the question of whether defendant is entitled to a new trial. We conclude that it is, upon the ground of newly discovered evidence. Although interviewed by defendant’s representatives long prior to either trial in Moultrie or Piatt Counties, a person admittedly present at the scene of the wreck disclaimed any occurrence knowledge. Rumors apparently persisted, however, that an eyewitness existed, and subsequent to this second trial, because of statements made by one of the witnesses while on the stand testifying at the trial, defendant’s counsel again interviewed the formerly disclaiming person for the first time under oath. It is obvious now, from the transcript of that interview, that the person claims to have firsthand knowledge of the occurrence events. It appears this potential witness has evidence to give which is not cumulative and which, if credible and believed by a jury, might well affect the outcome of the entire case. This witness was known by name to the defendant, and only his disclaimer prevented access to his now claimed knowledge of occurrence and after-occurrence events. There was no direct evidence available to either party concerning the things about which his testimony will be offered. We think this situation warrants a new trial. Junget v. Aurora, E. & C. Ry. Co., 177 Ill App 435 (1st Dist 1913); Swiney v. Miller, 253 Ill App 81 (3rd Dist 1929). We are not prepared to say, under the peculiar circumstances of this case, that the defendant was negligent or failed to exercise diligence in procuring this testimony. Though we are reluctant to interfere with matters discretionary with the trial judge, we are compelled to hold that he abused his discretion in failing to grant a new trial upon the ground of newly discovered evidence. A jury should weigh this person’s testimony produced in the course of trial, and we so hold.

Since a new trial is required, we shall not pass upon the other alleged errors, except to note that the manner in which plaintiffs’ expert was allowed to testify made it difficult to understand the basis for his opinion. We acknowledge that the record does indicate that he was testifying hypothetically and was confining his opinion to the testimony in the case at bar. However, strict adherence to the system whereby counsel asks hypothetical questions which specifically set forth hypothetical facts upon which the expert may base his opinion will avoid the problem, upon retrial, created by the manner in which this witness was examined at the first trial of this case.

For the above and foregoing reasons, we find the trial court was correct in striking defendant’s affirmative defense of estoppel by verdict, but for the reasons herein stated the case is remanded to the circuit court of Piatt County for a new trial.

Reversed and remanded for a new trial.

SMITH and TRAPP, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Revcor, Inc., Plaintiff-Appellant, v. Fame, Inc., a Corporation, and Rene Marchal, et al., Defendants-Appellees.
    Gen. No. 67-4.
    Second District.
    July 17, 1967.

      Canfield, Canfield and Franks, of Rockford, for appellant.
    Miller, Thomas, Hickey and Collins, and Williams, McCarthy, Kinley and Ruby, of Rockford, for appellees.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

Revcor, Inc., (herein called Revcor), plaintiff-appellant, brought this suit to enjoin the defendants, Fame, Inc., (herein called Fame), Rene Marchal, William Fulton and Charles Wilson from manufacturing and selling strip-type blower wheels. The trial court enjoined Fame, Marchal and Fulton from producing these wheels for a period of three months, but refused to issue an injunction prohibiting Wilson from selling such wheels. Revcor appealed and here contends that the injunction should have been granted for a longer period of time, and that the trial court also should have enjoined Wilson from selling the blower wheels.

Revcor was in the business of manufacturing air moving components. Marchal and Fulton were the incorporators and owners of United Tool and Engineering Company. They were tool and die makers who were hired by Revcor to produce certain tools and dies to enable Revcor to manufacture strip blower wheels. Fame was a corporation which was formed by Marchal and Fulton to manufacture and sell strip blower wheels in competition with Revcor. Wilson, who had been the sales manager for Revcor, left its employment and established his own business as a manufacturer’s representative. Shortly thereafter, he became a representative of Fame, and sold strip blower wheels which it manufactured.

Revcor first started manufacturing blower wheels in 1953, but did not commence investigating strip-type blower wheels until sometime in 1957, and did not start producing this type of blower wheel until 1960. The strip-type blower wheel involved an entirely different manufacturing process than that utilized by Revcor in the manufacture of its other blower wheels. Initially, Rev-cor obtained the tools for the manufacture of the strip wheels from a Detroit, Michigan company, but these did not perform satisfactorily.

Sometime in 1961, Revcor contacted Marchal and Fulton regarding the tools needed for the manufacture of the strip wheels. Revcor had spent considerable time in making the drawings and designs it needed for this product. It gave its complete drawings to Marchal and Fulton, owners of United Tool and Engineering Company, so that they could construct the tools needed for the manufacture of the strip wheels. These drawings, not available to others, showed the complete details of the strip wheel — including angles, tolerances, dimensions, etc. In addition to the drawings turned over to them, Marchal and Fulton had complete access to the Revcor plant from 1961 to 1964. With this information, Marchal and Fulton manufactured the tools and dies used by Revcor in the production of the strip blower wheels.

In August of 1964, Revcor discovered that Marchal and Fulton, under the corporate name of Fame, were manufacturing strip blower wheels in competition with it. Certain testimony indicated that Fame’s wheels more closely conformed to the Revcor drawings than did the Revcor wheels.

After discovering that Fame had entered into competition with Revcor, the president of Revcor went to the office of Fame and picked up a large number of drawings which belonged to Revcor and related to the strip wheel. The evidence was conflicting as to whether Marchal and Fulton could have duplicated the Revcor wheel from the wheel itself, or whether the use of the drawings and prints were necessary in order for Fame to reproduce the wheel in the period of time within which it started such production.

As to the defendant, Wilson: After leaving Revcor in December of 1964 to become a manufacturer’s representative, he wrote and otherwise contacted a number of companies, including his former employer, Revcor, seeking to represent them. He had access to all information regarding plaintiff’s customers while he was its sales manager, yet there was no evidence that he took any lists with him. Wilson testified that there are published lists of customers for blower products and that there is a directory of heating, air conditioning and refrigeration industries — one of the major purchasers of blower wheels.

The strip blower wheel was not patented. A number of different companies manufactured such a wheel. It also seems apparent from the testimony of several of defendants’ witnesses that the strip wheel could be copied — perhaps with some difficulty — from the wheel itself. .

Revcor contends that its manufacturing plans and processes perfected over an extended period of investigation and development, are trade secrets; and that the defendants, Marchal and Fulton, appropriated these plans and processes unlawfully, by use of the specific and confidential information, the drawings and the designs given them by Revcor for the manufacture of its tools and dies.

The recent case of Schulenburg v. Signatrol, Inc., 33 Ill2d 379, 212 NE2d 865 (1965) controls our determination in this case. In Schulenburg, the plaintiffs were engaged in the business of assembling light flashers, and the defendants — prior employees — set up a competing business. It was conceded that the flasher was not patented and that the method of assembly was not a trade secret. It was contended, however, that the manufacturing “know-how” of plaintiffs was a trade secret. There, as in this case, it appeared that the defendants had utilized plaintiffs’ blueprints and drawings used in the manufacturing process.

The court characterized the question before it as, “how did the defendants go about reproducing the plaintiffs’ flasher? Did they violate the confidence reposed by their employer by appropriating, in an unlawful manner, the trade secrets of the plaintiffs ?”

A trade secret is defined as “a secret plan or process, tool, mechanism or compound known only to its owner and those of his employees to whom it is necessary to confide it.” Schulenburg v. Signatrol, Inc., supra, 385; Victor Chemical Works v. Iliff, 299 Ill 532, 545, 546, 132 NE 806 (1921). A trade secret is something which must be held in secret or confidence by the one who possesses it, and it must relate to the trade or business. Unquestionably, the prints and drawings of Reveor were such a trade secret. They were not something held out for public domain but were treated, rather, as confidential information by Reveor. It appears they were developed by Reveor through both the trial and error process, and by extensive investigation, which had probed the product of Revcor’s leading competitor in the industry — a company which had been making this type of wheel for sometime when Reveor decided to get into this field of manufacturing. The results of Revcor’s labor, its designs and its drawings, were kept confidential, except for their disclosure to the defendants who needed access to this information in order to design the requested tools and dies. Such plan or process was thus a trade secret. Schulenburg v. Signatrol, Inc., supra, 385; Schulenburg v. Signatrol Inc., 50 Ill App2d 402, 408, 200 NE2d 615 (1964).

Apparently, the defendants could have duplicated this product without the use of Revcor’s drawings. This, however, would have been more difficult, and time-consuming. Obviously, it would have been more expensive, and might have resulted in some errors in the finished product. The defendants, Marchal and Fulton, avoided these pitfalls and difficulties by the use of plaintiff’s drawings. The fact that there was a perfectly lawful and legal manner of duplicating the wheels did not relieve them of liability where they have chosen to follow the unlawful route of utilizing the confidential and particularized information given to them by Revcor. Schulenburg v. Signatrol, Inc., supra, 386, 387 (1965); Schulenburg v. Signatrol Inc., supra, 410, 411 (1964).

As in Schulenburg, the real difficulty in this case lies in the determination of whether the scope of the injunction was proper. In Schulenburg, the court, on page 388, defined the proper scope of the injunction as being that period required for the defendants to duplicate the strip wheel by lawful means.

The trial court enjoined the defendants from manufacturing and selling strip wheels for a period of only three months. It appears that Revcor took substantially longer than this to develop its manufacturing plans and processes; however, it concedes that those working on the plans and processes were not devoting their full time to the project. The trial court was aware of the decision of the Supreme Court in Schulenburg and made its determination with the knowledge of the standard there set forth. It also observed the witnesses and their demeanor on the witness stand in its total evaluation of the evidence before it.

We will not reverse the trial court’s findings unless they are palpably contrary to the manifest weight of the evidence. Kropp Forge Co. v. Jawitz, 37 Ill App 2d 475, 483, 186 NE2d 76 (1962); Flynn v. Zimmerman, 23 Ill App2d 467, 477, 163 NE2d 568 (1960). The proof was conflicting and meager relative to the amount of time required to reproduce the plaintiff’s product by lawful means. The record on this phase of the case does not support the plaintiff’s contention that the trial court’s finding as to the time limit of the injunction was palpably contrary to the manifest weight of the evidence. Under these circumstances, we cannot reverse the trial court in this respect. Schulenburg v. Signatrol, Inc., 37 Ill2d 352, 356-359 incl., 226 NE2d 624 (1967).

As to the defendant Wilson, it is conceded that he took no lists with him, and there is no evidence that he departed from the plaintiff’s employment with any confidential information obtained by him as its sales manager. He had no contract with Revcor which prohibited him from entering into a competing business.

Our free economy is based upon competition. One who works for another cannot be compelled to erase from his mind all of the general skills, knowledge, acquaintances and the over-all experience which he acquired during the course of his employment. The success of a person who is engaged in sales depends largely upon his personal friendships and the confidences inherent therein. Absent special circumstances, such person cannot be prevented from seeking out customers of his former employer when he has entered into a competing business or gone to work for a competitor.

If a salesman has agreed to a restrictive covenant in his employment contract, or if he has fraudulently and surreptitiously copied or removed lists of customers from a prior employer, or if the names of actual or potential customers are confidential, not subject to memory, are not publicly listed or otherwise readily obtainable, then, under proper circumstances, such salesman might be enjoined from soliciting business from the customers of his prior employer. Absent such circumstances, however, there can be no such prohibition. Mid-States Vending Service v. Rosen, 77 Ill App2d 83, 86, 87, 222 NE2d 99 (1966); Professional Service Corp. v. Johnson, 316 Ill App 431, 434, 45 NE2d 191 (1942); American Cleaners & Dyers v. Foreman, 252 Ill App 122, 126 (1929); 126 ALR 758. Wilson did not take any customer lists with him. There was no particular difficulty in determining potential customers for the strip blower wheel from available public sources. Under the circumstances, it would not have been proper to enjoin Wilson in any manner.

For the reasons herein stated, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


author: JUSTICE ALLOY.

text:
    Nancy King and James W. Heald, Plaintiffs-Appellees, v. Odie L. Gilland, Defendant-Appellant.
    Gen. No. 67-7.
    Third District.
    July 17, 1967.
    Sidney S. Deutsch, of Rock Island, for appellant;
    Stewart R. Winstein, of Rock Island, for appellees.
   Opinion by

JUSTICE ALLOY.

Not to be published in full.


author: PRESIDING JUSTICE STOUDER.

text:
    City of Geneseo, Plaintiff-Appellant, v. Stanley F. Mirocha, Defendant-Appellee.
    Gen. No. 67-14.
    Third District.
    July 17, 1967.
    Andrews & Andrews, of Kewanee, for appellant;
    Stewart R. Winstein, of Rock Island, for appellee.
   Opinion by

PRESIDING JUSTICE STOUDER.

Not to be published in full.