author: CEEBS, J.

text:
    Jacobo Dayan, Plaintiff-Appellant, v. Bertha Dayan, Defendant-Appellee. Bertha Dayan, Plaintiff-Appellee, v. Jack Dayan, Defendant-Appellant.
    Gen. No. 66-101.
    Fifth District.
    September 1, 1967.

      Armbruster & Diaz, of Alton (Eoss Armbruster, of counsel), for appellant.
    Cohn, Cohn and Korein, of East St. Louis (Saul F. Cohn, of counsel), for appellee.
   CEEBS, J.

This is an appeal from a decree granting a divorce to Bertha Dayan. Dr. Dayan, the husband, filed an amended complaint for divorce. Bertha Dayan filed a suit for separate maintenance. The cases were consolidated for trial. At the trial the wife announced her intention to amend her complaint to ask for a divorce. After the hearing, by leave of court, she filed an amended complaint for divorce.

Appellant raises five points and we will discuss them in the order raised. The first questions the sufficiency of the evidence to support the decree. The divorce was granted on the grounds of constructive desertion. Both sides testified to the fact that the parties had lived separate and apart for more than one year, so the only fact question in dispute was whether or not the wife had legal justification for leaving.

This was a contested case. The evidence on many points was in direct conflict. The trial judge having seen and heard the witnesses was in the best position to observe, and his findings of fact will not be disturbed so long as they have sufficient basis in the testimony. There was testimony in this case that the husband was guilty of extreme and repeated cruelty and adultery. Either of these would constitute reason for living apart so there is no question that the record contains ample basis for the decree.

Appellant next contends that the admission of improper evidence requires reversal. At the conclusion of the hearing, the trial court announced its intention to obtain a report as to the living conditions of the children in California. The court’s letter stated: “This request is made so that the Court will be in a position to properly enter its decree as to the care and custody of these children. . . .” The parties acquiesced in such a report being obtained and the report, when obtained, was shown to counsel, filed and entered in the record. The report was made by a deputy probation officer of the County of Los Angeles, Probation Department. This person was not present in court.

There are numerous cases holding it improper for a judge to make an independent investigation or to base a decision on reports or evidence that are not available to the parties or in the record. Counsel cannot dispute such evidence since there is no way of knowing what it is. Nor is it subject to review on appeal. Williams v. Williams, 8 Ill App2d 1, 130 NE2d 291.

We have a different situation here since the report was entered in the record. However, the report still constitutes incompetent evidence. Our only question is whether or not under the circumstances in this case the admission of the report requires reversal.

Ordinarily the failure of counsel to object would waive any error in the admission of incompetent evidence. Here, since rights of minors are involved, we are unwilling to rely on such a technicality. In reviewing the entire record in the case, we find that, without the report in question, the evidence amply supports the award of custody of the three younger children to the mother. The mother’s testimony, if believed by the court, would provide a complete basis for the award of custody of these children to her. Young children are generally awarded to the mother if she is a fit and proper person to care for them. The only testimony to the contrary was by Dr. Dayan and his testimony conflicted with his prior acts. Two witnesses called by Dr. Dayan and admittedly friendly to him would not testify that the mother was unfit, although there was considerable effort by counsel to get them to so testify. The children were not present in court because Dr. Dayan had failed to comply with his agreement to provide funds for their travel expenses. The mother had had full custody and been the sole support of these children for several months preceding the hearing. Appellant’s first objection to the report was after the entry of the decree. Finding, as we do, that the same custody order would have been entered without the report having been used, under all the circumstances in this case, we hold that the use of the report was not reversible error. Oakes v. Oakes, 45 Ill App2d 387, 195 NE2d 840, 35 ALR2d 629, annotated.

Appellant next contends that the removal of the children from Illinois to California by defendant was wrongful and cites Illinois cases to support this contention. However, the record clearly shows that the removal of the children to California was by the appellant; as a result, the cited cases do not apply to the facts in this case. The parties had an equal right to custody of the children until such time as a competent court placed custody in one of them, and when appellant took the children to California, where defendant was, her equal right of custody became effective.

The fourth point is that attorney fees should not have been awarded. This was based on their contention that the decree was improper. However, since we find no error in the decree an award of attorney fees was proper. There is also objection to the amount since it exceeds the hourly rate for the time involved. In addition to the time involved there was testimony as to four court appearances and expenses. The amount allowed is within the range of the testimony and we find it proper.

The final contention is that the evidence does support a decree for plaintiff, Dr. Dayan. There is evidence in the record which, if taken at face value and the contrary evidence disregarded, would support such a decree. As we have previously pointed out, the trial court has the primary duty to determine, when the evidence is in conflict, which way the evidence preponderates. We find no basis to disturb his findings.

Judgment affirmed.

MORAN, P. J. and EBERSPACHER, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE ABRAHAMSON

license: Public Domain

text:
    Patricia B. Green, Plaintiff-Appellant, v. Talmage O. Green, Defendant-Appellee.
    Gen. No. 66-140.
    Second District.
    August 29, 1967.

      R L. Huszagh, of Wheaton, for appellant.
    Talmage 0. Green, pro se, of Glen Ellyn, appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This appeal is prosecuted by the plaintiff from an order entered September 9, 1966, nunc pro tunc as of May 6, 1966, by the Circuit Court of DuPage County that reduced the monthly installments of a lump sum alimony award and the child support payments provided in a previous divorce decree.

The divorce decree was entered on March 7, 1966, after a contested trial and provided, in part, as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the defendant, TALMAGE 0. GREEN, be and he hereby is directed to pay to the Clerk of this Court, the sum of $250.00 per month for the support of the two minor children herein, until the further order of this Court $125.00 per month for each child, payable $125.00 on the 15th day of each month for the first half of the month, and $125.00 on the 30th day of each month for the last half of the month, the first payment of $125.00 due and payable on or before March 15, 1966. Said child support payments are based on defendant’s representation that he receives a take-home pay of $750.00 per month.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the defendant, TALMAGE O. GREEN, be and he hereby is directed to pay to plaintiff, PATRICIA B. GREEN, the sum of $2,000.00, as and for a lump sum alimony settlement, said amount to be payable at the rate of $100.00 per month, commencing on March 1, 1966, and plaintiff be and she is hereby barred from any further rights to alimony, past, present or future.”

The plaintiff subsequently petitioned the court to order the defendant to join in the execution of a Loan Modification Agreement in connection with a mortgage indebtedness on the former marital home and for an increase in child support payments. No written answer to that petition or cross petition from the defendant appear in the record but the transcript of a hearing held on May 6, 1966, does appear. The defendant testified at that hearing that he was unable to continue the payments provided in the decree; that his expenses exceeded his income; and that his job was in jeopardy as a result of his financial difficulties. He requested that the child support be reduced and the monthly alimony installments extended to prevent his total ruin. In support of his contention that he was on the brink of complete financial collapse, the defendant testified that, in addition to his alimony and child support obligations, he was making regular monthly payments on a new car and on overdue accounts at two retail stores for bills incurred by his former wife. He also testified that he was then earning $730 take-home pay every month. At the conclusion of that hearing, the defendant signed the Loan Modification Agreement and an order was entered that reduced the child support payments to $110 a month for each child and the monthly installment of the lump sum alimony to $50. This appeal is from that order.

As is well known, section 18 of the Divorce Act provides, in part, that “The court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody, and support of the children, as shall appear reasonable and proper.” (Ill Rev Stats 1965, c 40, par 19.)

The cases uniformly hold that an alteration will be made only when the conditions and circumstances of the parties have materially changed since the entry of the original decree. Kelleher v. Kelleher, 67 Ill App2d 410, 414, 214 NE2d 139; Gregory v. Gregory, 52 Ill App2d 262, 268, 202 NE2d 139. The court may not “arbitrarily or capriciously” modify the provisions for alimony or child support but can do so after a substantial change is shown to have occurred. Gregory v. Gregory, ibid.

The decree is final as to the circumstances and conditions of the parties as of the date of its entry and the court can, therefore, only consider such changes that have occurred subsequently. Nye v. Nye, 411 Ill 408, 416, 105 NE2d 300.

The record in this case discloses no evidence of a “substantial” or “material” change in the conditions of the parties subsequent to the entry of the divorce decree. The decree recited that the support payments were predicated on the representation of the defendant that his take-home pay was $750 a month. At the hearing two months later, the defendant testified that his take-home pay was $730 a month and explained that the slight reduction resulted from a change in his withholding for Federal income tax as a result of the divorce. It was improper for the court to consider his car payments as a possible change in his financial circumstances since he had purchased the car prior to the divorce decree and, as we have seen, the decree was res ad judicata as to his pecuniary circumstances as of that date. The defendant’s obligation on prior family indebtedness could not be considered a change in condition subsequent to the divorce decree since the decree itself ordered him to make the monthly payments.

The defendant contends that the Loan Modification Agreement itself “materially” affected his financial status. The divorce decree had provided that the marital home be awarded to the plaintiff and it was apparently agreed that she would make all future payments on the mortgage loan. The modification did not increase the amount of the defendant’s obligation on the loan but only extended the time for repayment. Since the defendant was not, in any event, making any of the payments on the mortgage loan, the extension obviously had no present effect on his financial condition.

Under the circumstances, we can only conclude that the record is totally devoid of any evidence of a change in the conditions or circumstances of the parties that could justify the alteration of the decree.

In view of our decision we need not consider the plaintiff’s contention that the court could not, under any circumstances, alter the provisions as to the lump sum alimony award. Neither have we considered the plaintiff’s reply brief, since it raises new matters not contained in the original briefs.

For the reasons stated, the order of the trial court that modified the decree of divorce will be reversed.

Reversed.

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


author: CORYN, J.

text:
    The Village of Bourbonnais, Illinois, a Municipal Corporation, Plaintiff-Appellant, v. Leopold Herbert, and Bourbonnais Rural Fire Protection District, a Fire Protection District, Defendants-Appellees. Consolidated With The Village of Bourbonnais, Illinois, a Municipal Corporation, Plaintiff-Appellant, v. H. Glenn Schneider, Sarah H. Schneider, and Bourbonnais Fire Protection District, a Fire Protection District, Defendants-Appellees.
    Gen. No. 66-92.
    Third District.
    August 24, 1967.

      Edward G. Vogt, of Kankakee, for appellant.
    Wayne P. Dyer, of Kankakee, for appellees.
   CORYN, J.

The Village of Bourbonnais has perfected this appeal from a decree entered in a consolidated proceeding dismissing its applications for injunctions to restrain the use of two tracts owned by the individual defendants, and located within the village, for purposes of fire stations by Bourbonnais Rural Fire Protection District, defendant, in alleged violation of a zoning ordinance purportedly enacted March 20, 1962, by said Village of Bourbonnais.

The applicable ordinance is an inclusive one in the sense that at Article V it permits in each of the zoning districts only those uses specifically described as permissible, and prohibits all others. None of the zoning districts described in plaintiff’s ordinance permits a fire station, although at Articles XI and XII, such use may be allowed in “Business Districts” and “Manufacturing Districts” by the devise of a special use permit granted in accordance with the provisions of Article XIV. The evidence establishes that no such special permits have been applied for by defendants with respect to the property in question. Accordingly, it is argued by plaintiff that a writ of injunction to restrain defendants from using said property for fire station purposes in violation of said zoning ordinance is appropriate, and should have been granted by the trial court.

It appears conceded that defendant fire district, as lessee of the subject premises, has no greater rights than can be derived through its lessors, who are private owners, and no claim of governmental immunity from the application of this zoning ordinance is presented. Cf. Annotation: 61 ALR2d 970, 988. Defendants have attacked the validity of the ordinance, however, on several grounds. Ordinarily, where an ordinance provides a means, through special permit proceedings, by which the restriction alleged to be detrimental might be removed, the owners may not, without exhausting administrative remedies, challenge the validity of that restriction. Bright v. City of Evanston, 10 Ill2d 178, 139 NE 2d 270. But the asserted defect in the ordinance here runs to its enactment, and to its validity as a whole, and not merely to the validity of its application to defendants’ property. In this circumstance where the issues run to the validity of the whole ordinance, defendants are not required to pursue the machinery of the ordinance itself for their remedy, and may raise such matters here in defense of an action for its enforcement. Bright v. City of Evanston, supra. Hence, we conclude that the trial court correctly considered the matters raised by defendants in defense of plaintiff’s claim for injunction.

A municipal ordinance ordinarily is regarded as presumptively valid, and the burden is upon the one assailing it to overcome that presumption. Stemwedel v. Village of Kenilworth, 14 Ill2d 470, 153 NE2d 79, and Ill Rev Stats, c 24, § 1-2-6. The primary issues presented by the evidence offered here to overcome that presumption are (1) whether an ordinance prohibiting an otherwise legitimate use (fire stations) from the entire municipality, except by special permit, is beyond municipal zoning powers, and (2) whether this ordinance was validly enacted.

Expressions may be found in People ex rel. Trust Co. of Chicago v. Village of Skokie, 408 Ill 397, 97 NE2d 310 which have been taken to mean that the legislative enabling act does not grant to municipalities the power to wholly restrict otherwise lawful uses from their boundaries. See e. g. McQuillin, Mun Corp, Vol 8, § 25.119b (Rev Ed, 1965); 10 ILP, Cities, Villages, and Other Municipal Corporations, § 1134, p 46. It seems doubtful, however, that the expressions in that case are intended to be read apart from the facts of it. The use involved in that case was one clearly compatible with certain areas of the municipality so that the total exclusion of such use from that municipality was clearly unreasonable. We do not find anything in the case of Builders Supply & Lumber Co. v. City of Northlake, 21 Ill2d 14, 170 NE2d 597, which would lend support to the argument that municipalities must accommodate every legitimate land use, and courts of some other jurisdictions, which have considered the problem, have held to the contrary. See Annotation, 9 ALR2d 683. The rule upheld in the cases cited in said annotation establishes that municipalities, in adopting comprehensive zoning schemes, are not required to set aside portions of territory within their boundaries to accommodate every land use, if some uses are wholly inconsistent with the existing and developing character of the municipality. A different rule seems repugnant to the purposes of zoning. We find support for the suggestion that this rule prevails in Illinois from the case of Kotrich v. The County of Du Page, 19 Ill2d 181, 166 NE2d 601, where the Supreme Court recognized that there are land uses which may be infrequent to a community or area, although legitimate and potentially beneficial, which are nonetheless incompatible with normal uses in existing use districts, and as to these uses approved the special use technique as a permissible means of implementing the zoning powers conferred by statute. While the unlimited application of the special use technique to land uses than can be readily accommodated within ordinary zoning classifications was disapproved, it seems apparent that the various uses which may be appropriately in-eluded within a “residual category” of special uses, may vary from community to community or area to area. In the case at bar, plaintiff is primarily a residential and business oriented community of little more than 3,000 inhabitants, and with very little industry. We do not think, in that circumstance, that the restriction complained of here is unreasonable, or that it bears no substantial relation to public welfare. Moreover, it does not absolutely prohibit defendants’ contemplated use from within the boundaries of the municipality, but provides a means of allowing it in certain areas upon special permit. We think this a reasonable implementation of the special use technique. We also find no merit in defendants’ contention that the ordinance is invalid for failure to specify standards governing the issuance of special permits. Kotrich v. County of Du Page, supra.

The issue as to whether the ordinance was properly enacted is more serious. The certificate of the municipal clerk to the ordinance printed in pamphlet form under the purported authority of the corporate authorities, and under seal of the corporation, is prima facie evidence of the contents, passage, and legal publication of such ordinances, Ill Rev Stats, c 24, § 1-2-6, but this presumption may be overcome by contrary evidence. The contrary evidence here consists of the minutes of the meeting of the village authorities on March 20, 1962, when the ordinance in question was purportedly passed and adopted. Those minutes, in pertinent parts, recite as follows:

“Ronald LaMontague, Chairman of the Village Planning Commission, presented to the Board the Zoning Ordinance for the Village of Bourbonnais as approved by the Commission. After considering the provision t/s [trustee] McClain moved to accept said zoning ordinance, t/s Hudson 2d motion. Motion passed — 5 ays — 1 nay (t/s Cryer voting negative) (Emphasis added.)

The statute is explicit in requiring that for the passage of all ordinances for whatever purpose, the yeas and nays shall be taken upon the question of passage and recorded in the journal of the city or village council. Ill Rev Stats, c 24, §§ 3-11-17 and 1-1-2 (8). The statute makes it clear that this requirement contemplates the entering of the names of those voting “yea,” and of those voting “nay,” and the cases construing this statute have held that nothing short of a record showing a roll call with each individual’s vote will suffice. People v. Chicago & N. W. Ry. Co., 396 Ill 466, 71 NE 2d 701. The minutes here recite that the president and six trustees, giving the names of each, were present with the clerk when the meeting was called to order. It does not purport to show who else was present, although it becomes apparent that sometime during the proceeding, Ronald LaMontague, chairman of the Village Planning Commission, was present. It is not clear that those trustees present at the start of the meeting were present when said vote was taken, nor is it clear that the five ayes recorded in the minutes were votes of village trustees. As was said in People v. Chicago & N. W. Ry. Co., supra, this court will not indulge the speculation that the ayes recorded were the votes of the other five trustees shown as present when the meeting opened. Nor is it clear that a vote on a motion to accept an ordinance is a vote on the “question of its passage.” In this circumstance, the ruling of the trial court refusing the injunction enforcing the ordinance was, in our judgment, proper.

Other issues were raised in this appeal, but in view of our determination that plaintiff’s zoning ordinance was not properly enacted, it is not necessary to herein discuss these issues. The decree of the Circuit Court, dismissing the application for injunctions, is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


author: GOLDENHERSH, J.

text:
    Elizabeth Hoffmann, Plaintiff-Appellant, v. Eugene V. Hoffmann, Defendant-Appellee. Eugene V. Hoffmann, Counter-Plaintiff-Appellee, v. Elizabeth Hoffmann, Counter-Defendant-Appellant.
    Gen. No. 50,624.
    First Judicial District.
    September 6, 1967.

      Anagnost & Anagnost, of Chicago (Catherine Cook Anagnost, Gerald M. Chapman, and Edmond Mosley, of counsel), for appellant.
    Arthur Abraham, of Goldberg and Goldberg, of Chicago, for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the decree of the Circuit Court of Cook County granting a divorce to her husband, on his counterclaim. This case has been before this court on a prior occasion. (Hoffmann v. Hoffmann, 59 Ill App2d 459, 208 NE2d 579.)

Plaintiff contends, inter alia, that the court erred in denying her petition for change of venue. Defendant argues that the petition was not timely filed, that it was filed solely for the purpose of obtaining a further continuance, and was properly denied. Consideration of the issues presented requires a chronological review of the proceedings prior to trial.

Plaintiff filed her complaint for divorce and other relief on April 13, 1964. On September 16, 1964, after various proceedings and pleadings, her husband, hereinafter referred to as defendant, filed a counterclaim for divorce. On the same date, plaintiff filed her answer to the counterclaim. On October 2, 1964, defendant gave notice of presentation of a motion for immediate trial, and on that date an order was entered setting the case for trial before Judge Robert L. Hunter on October 26, 1964. Plaintiff gave notice of presentation of a motion to remove the case from the trial calendar and on October 26, 1964, Judge Hunter removed the case from the calendar and entered the following order:

“It is hereby ordered that the above entitled cause be set for trial on December 1, 1964 at 9:30 A. M., final continuance.”

On November 27, 1964, Judge George Fiedler entered an order setting for hearing, on January 20, 1965, petitions for arrearage in temporary support payments and for attorney fees.

On December 1, 1964, plaintiff filed a motion for continuance. The supporting affidavit recites the pendency of the prior appeal, and the petitions, and plaintiff’s inability, because of actions of the defendant, to complete discovery procedures. The record does not reflect the disposition of this motion, but the parties are in agreement that it was denied, and Judge Hunter entered an order assigning the case to Judge Felt.

When the case was called for trial before Judge Felt, late in the morning of December 1, 1964, plaintiff renewed her motion for continuance. Judge Felt denied the motion, and at plaintiff’s request, postponed the proceedings until 2:30 p. m.

At 2:30 p. m. plaintiff’s counsel presented a petition for change of venue, in which plaintiff stated that the case had been assigned for trial to Judge Felt, that she feared she would not receive a fair trial because the judge is prejudiced against her, and she learned of this prejudice on December 1, 1964. The petition asked that a judge other than Judge Felt be designated to hear the case. Defendant has not pointed out any deficiency in the petition nor does he contend that it fails to comply with the provisions of the statutes.

Plaintiff’s counsel stated to the court that plaintiff had suggested the filing of the petition and concluded his remarks:

“Now, I think it is well taken, it is properly presented. It is the first opportunity I have had to present it.”

Thereupon the following colloquy ensued:

“THE COURT: You say you think it is well taken. Will you state the reasons why you think it is well taken?

“MR. JARES: By reason of my client’s insistence that there be a change of venue, because of the sudden assigning of this case, your Honor, and the fact we are on trial. We are not ready, we have asked for a continuance and we do not feel we can get a fair and impartial trial.

“MR. ABRAHAM: That statement alone—

“MR. JARES: I am not making this, your Honor, and if you wish to question Mrs. Hoffmann, of course you can.

“THE COURT: Well, counsel, you present a petition, say you will not receive a fair and impartial trial in this court, and I would like to hear the reason why she believes she would not receive a fair and impartial trial.

“MR. JARES: Would you like to call Mrs. Hoffmann?

“THE COURT: Yes.

“MR. JARES: Mrs. Hoffman, will you come forward?

“Swear the witness.”

It is apparent from plaintiff’s testimony that plaintiff had no knowledge of prejudice on the part of the court, and the purpose of the petition for change of venue was to obtain a further continuance.

In Miller v. Miller, 43 Ill App2d 214, 193 NE2d 105, this court said, “The statute gives an absolute right to a change of venue to a petitioner, when his petition asserting the prejudice of the trial judge is duly made, verified, and filed in accordance with the statute. A change of venue is not a matter of practice but is a substantial right of a litigant.”

As to the question of whether the petition was timely filed, the record shows the assignment to Judge Felt on the morning of December 1, 1964, and the filing of the petition at 2:30 p. m. At that stage of the proceedings Judge Felt had not ruled on any substantive issue in the case, but had merely denied plaintiff’s motion for continuance. Under the circumstances here shown, the petition was timely filed. People v. Cohen, 268 Ill 416, 109 NE 259; People v. Chambers, 9 Ill2d 83, 89, 136 NE2d 812; Steiner v. Steiner, 44 Ill App2d 355, 194 NE2d 508.

This brings us to the question of whether, in view of the fact that the petition was clearly filed for the purpose of delay, the trial court erred in its ruling. In Gates v. Gates, 38 Ill App2d 446, 187 NE2d 460, the court, at page 448, said “The judge may not inquire into or determine whether or not the allegation of prejudice is true. Mockler v. Thomas & Co., 273 Ill App 121. It is sufficient that the charge is made. The reason, philosophy and policy justifying the rule has been succinctly stated as follows: ‘It is unthinkable under our system of laws a defendant may be required to submit his liberty and his estate to the disposal of a trial judge who is solemnly charged with prejudice against the accused.’ Daniel Boone Woolen Mills v. Laedeke, 238 Ill App 92 at 100; Wendt v. City of Elgin, 264 Ill App 433 at 441. This record is wholly devoid of the slightest intimation that the instant petition was not made in good faith. We can only conclude that the proceedings here reviewed are abortive of accepted judicial procedures and must be reversed.”

Unlike the record in Gates, this record is not “wholly devoid” of evidence that the petition is not made in good faith. This evidence, however, is in the record because the judge, albeit at the suggestion of plaintiff’s counsel, (not present counsel) inquired into whether the allegation of prejudice was true.

We are of the opinion that situations such as the one here presented evoked the following statement by Mr. Justice McCormick in Howarth v. Howarth, 47 Ill App 2d 177, 180, 197 NE2d 736, “It is well recognized that there is and has been in this County a considerable abuse in the use of petitions for change of venue, particularly in criminal cases. In many lawsuits — and we are not referring to the one before us — the trial judge has had the experience of having a petition for a change of venue presented to him, alleging under oath that the party cannot obtain a fair trial before him because he is prejudiced against such party. The judge before whom the petition is presented is certain in his own mind that he has never heard of the petitioner. The petitioner has sworn falsely to a material fact. Under the statute in the controlling cases the hands of the judge are tied and he must forthwith grant the change of venue.”

We are here confronted with the choice of permitting a litigant to vitiate the proceedings subsequent to the denial of the petition for change of venue, which, in our opinion was filed solely for purposes of delay, or adhering to the long established rule that if the petition for change of venue meets the statutory requirements, the right to a change of venue on account of prejudice of the trial court is absolute. Roherty v. Green, 57 Ill App 2d 362, 206 NE2d 756. We must also give consideration to the rule enunciated in People v. Chambers, 9 Ill 2d 83, 136 NE2d 812, wherein at page 87, the Supreme Court said: “The courts, in construing the venue provisions, have reiterated that they should receive a liberal rather than a strict construction and should be construed to promote rather than to defeat the right to a change of venue, particularly where prejudice on the part of the judge is charged.”

Our choice is dictated by the quotation from Gates v. Gates (supra) “ ‘It is unthinkable under our system of laws a defendant may be required to submit his liberty and his estate to the disposal of a trial judge who is solemnly charged with prejudice against the accused.’ ”

The alternatives presented are to permit a judge “solemnly charged with prejudice” to hear a case, or permit the litigant, by improper means, to obtain a delay. Fortunately, the statute (c 146, § 8, Ill Rev Stats 1965) precludes any repetition of the latter, and the delay, by virtue of immediate reassignment to another judge, might well be a short one.

The proper administration of justice requires not only that a judge be impartial and without prejudice, but also the appearance of such impartiality and freedom from prejudice: This is best maintained by the application of the rule that where the petition is proper in form, no inquiry be made as to the truth of the allegation of prejudice.

For the reasons set forth we hold that the trial court erred in denying the petition for change of venue. All proceedings subsequent to the denial being void, (Johnson v. United Motor Coach Co., 66 Ill App2d 295, 214 NE2d 236,) the decree must be reversed and the cause remanded.

Decree reversed, cause remanded for a new trial.

MORAN and EBERSPACHER, JJ., concur.


text:
    Libby Furniture & Appliance Co., a Corporation, Plaintiff-Appellant, v. Ronald Nabors and Oma Nabors, Defendants-Appellees.
    Gen. No. 51,222.
    First Judicial District.
    September 6, 1967.
    Rehearing denied October 13,1967.

      Norton R. Goldberg, of Chicago, for appellant.
    Edward Levett, of Chicago, for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of The Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County, dismissing wage deduction proceedings brought under the provisions of the Garnishment Act. (C 62, Ill Rev Stats § 71, et seq.)

On June 21,1965, plaintiff filed its complaint in which it alleged that the defendants, Ronald Nabors and Oma Nabors, detained from plaintiff a television set, that demand was made upon the defendants for its return, that defendants wilfully and maliciously refused to return to plaintiff the described chattel, and that its value was $182.20. The complaint is on a printed form headed “Complaint — Detinue.”

Service was effected by personal service on defendants of a second alias summons. Defendants defaulted, and on October 7, 1965, the court entered a judgment order which, in part, provides: “ ‘THE COURT FINDS THE DEFENDANTS GUILTY IN DETINUE OF PROPERTY DESCRIBED IN PLAINTIFF’S STATEMENT OF CLAIM.’

“Judgment against defendant for One Cent and damages and costs and that execution issue against defendant, RONALD NABORS, for restoration of certain personal property to plaintiff and if said property cannot be found for value thereof ONE HUNDRED FIFTY AND NO/100 DOLLARS ($150.00) together with said damages and costs.”

On November 18, 1965, plaintiff filed an “Affidavit for Wage Deduction Order” requesting that summons issue directed to the employer of the defendant, Ronald Nabors, hereafter referred to as defendant.

Following service on his employer, defendant filed a motion praying that the summons be quashed on the following grounds:

“1. The wage deduction action is brought prematurely.
“2. The plaintiff has failed to order an execution for the restoration of the property sought in the within cause.
“3. The plaintiff has failed to cause to be served upon the defendant, an execution seeking restoration of the property sought in the within action.”

Plaintiff filed a document styled “Objection to Motion to Quash Wage Deduction Summons” and on December 17, 1965, the court entered an order denying plaintiff’s objection to the motion, and quashing the wage deduction summons. The order further provides: “It is further ordered by the Court that the wage deduction proceedings be and they are hereby dismissed.

“Appeal Bond set at TWO HUNDRED DOLLARS ($200.00).”

This appeal followed.

Defendant’s contentions here are adequately stated in the quoted portion of his motion. Plaintiff contends that it was not necessary that execution be ordered by plaintiff or served on defendant prior to issuance of the wage deduction summons, and the court erred in quashing the summons and dismissing the wage deduction proceedings.

The parties are in agreement that wage deduction proceedings based upon a money judgment may be instituted without execution on the judgment. (C 62, § 74.) The issue here, simply stated, is whether, because the judgment grants plaintiff the return of the property, and if not returned, a judgment for money, execution becomes a necessary precedent to a wage deduction proceeding.

Although the Civil Practice Act abolished the distinctions in the names, forms and pleading of actions (c 110, § 31, Ill Rev Stats 1965), the Municipal Court, for convenience, continued to use the designation “Detinue” for those cases in which plaintiff sought the remedy available in Detinue under the common law, Martin v. Cole, 331 Ill App 597, 73 NE2d 633; Johnson v. Commercial Credit Corp., 339 Ill App 122, 88 NE2d 737. Although now a part of the Circuit Court of Cook County, the Municipal Court has continued to use the same designation.

There are no specific statutory provisions for an action in detinue, therefore, the Civil Practice Act applies. Martin v. Cole, (supra).

Section 50 of the Civil Practice Act provides in part, “(1) The court shall determine the rights of the parties and grant to any party any affirmative relief to which he may be entitled on the pleadings and proofs. Judgments and decrees shall be in the form required by the nature of the case and by the recovery or relief awarded.” Clearly, the judgment entered here is authorized by this section.

Defendant argues that since the judgment is in the alternative, first, for the restoration of the property, and second, if the property cannot be restored, a judgment for the recovery of money, the plaintiff must cause execution to issue for return of the property, and only if satisfaction is not thus achieved, does the judgment for money become operative. He argues further that since Illinois has no statute governing detinue the common-law rule applies. The common-law rule, defendant contends, is that defendant may select which of the alternative methods of satisfying the judgment he will follow, i. e. return of the goods or payment of the money, and he is not required to choose the method until served with execution.

Plaintiff argues that it is plaintiff who may elect between return of the property and recovery of the money. Historically, the choice seems to be defendant’s, and the rule is stated by Blackstone (Cooley’s Blackstone Fourth Edition, Vol 3, p 413) as follows: “In detinue, after judgment, the plaintiff shall have a distringas, to compel the defendant to deliver the goods, by repeated distresses of his chattels: (g) or else a scire facias against any third person in whose hands they may happen to be, to show cause why they should not be delivered: and if the defendant still continues obstinate, then (if the judgment hath been by default or on demurrer) the sheriff shall summon an inquest to ascertain the value of the goods, and the plaintiff’s damages: which (being either so assessed, or by the verdict in case of an issue), (h) shall be levied on the person or goods of the defendant. So that, after all, in replevin and detinue (the only actions for recovering the specific possession of personal chattels), if the wrongdoer be very perverse, he cannot be compelled to a restitution of the identical thing taken or detained; but he still has his election to deliver the goods or their value: (i) an imperfection in the law, that results from the nature of personal property, which is easily concealed or conveyed out of the reach of justice, and not always amenable to the magistrate.”

In our opinion, however, the decision of the issue presented does not rest upon whose prerogative it is to select the means of satisfaction of the judgment.

It is obvious that in enacting the legislation relating to wage deductions, the General Assembly intended that the procedures be simplified, the costs held to a minimum, and the employee given every possible protection against harassment. The amendment to the Garnishment Act enacted in 1953 dispensed with the necessity of issuing execution, and the repeal of section 34 in 1961 dispensed with the need for making a written demand. By providing that the employer shall pay the employee the amount of his exempt wages, the statute imposes upon the employer the duty previously imposed by judicial decisions, (Chicago & Alton R. Co. v. Ragland, 84 Ill 375; Markus for Use of Guditus v. Hart, Schaffner & Marx, 284 Ill App 166, 1 NE2d 699), to ascertain and claim for the employee the benefit of the wage exemption to which he is entitled. The statute also provides that a summons in a wage deduction proceeding be “accompanied by a copy of the underlying judgment or a certification by the clerk of the court issuing the judgment, or by the attorney for the judgment creditor setting forth the amount of the judgment, the name of the court and the number of the case”, (c 62, § 74). No such provision is contained in the sections providing for summons in garnishment proceedings other than those seeking a wage deduction order (c 62, §§33-36).

With the judgment upon which the wage deduction proceeding is based identified in detail as required by section 74, it becomes a simple matter for the employer to advise the employee of the basis upon which his wages are being held. If the employee contends that the judgment creditor is not entitled to a deduction order because the judgment has been satisfied by payment or other means, or that the judgment is not enforceable, he may appear in the proceeding, and defend. Ihorn v. Wallace, 88 Ill App 562.

With regard to defendant’s contention that he is not required to elect the method of satisfying the judgment until execution is issued, we fail to perceive why the choice may not be made as effectively as a matter of defense to the wage deduction proceeding. In our opinion, to require issuance of execution would be to restore a requirement which the General Assembly sought to obviate, and would add nothing whatsoever to the safeguards which the General Assembly intended to provide.

For the reasons herein set forth the judgment of the Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County is reversed and the cause remanded, with directions to vacate the order of dismissal and reinstate the cause, and for further proceedings consistent with this opinion.

Judgment reversed and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


author: MORAN, J.

text:
    Narowetz Heating & Ventilating Company, an Illinois Corporation, Plaintiff-Appellee and Cross-Appellant, v. Solar Sales, Inc., an Illinois Corporation, and Solar Light Manufacturing Co., an Illinois Corporation, Defendants-Appellants and Cross-Appellees.
    Gen. No. M-51,306.
    First District, Fourth Division.
    September 6, 1967.

      Philip D. Goodman, of Chicago (Philip D. Goodman and Kalvin M. Grove, of counsel), for appellants.
    L. Claude Dollahan and Robert A. Sprecher, of Chicago, for appellee.
   MORAN, J.

Both plaintiff and defendants appeal from a judgment of the Circuit Court of Cook County in an action to foreclose a claim for a mechanic’s lien on property owned by defendant Solar Sales, Inc., and used by defendant Solar Light Manufacturing Co., Inc.

The plaintiff filed its complaint to foreclose a mechanic’s lien, alleging that the plaintiff had entered into a contract with Solar Light Manufacturing Co., hereinafter referred to as Solar Light, on January 14, 1963, for the installation of an air makeup system; that the plaintiff did install the system, completing it on April 26, 1963; that Solar Light has paid $13,050, leaving a balance of $4,150 due to the plaintiff. Solar Light filed an answer and counterclaim, alleging that its contract with the plaintiff required completion of the installation fifteen working days after receipt of Solar Light’s purchase order dated January 14, 1963; that the plaintiff failed to complete the work within the time specified; and that Solar Light thereby suffered damages of $10,000. In a Bill of Particulars, Solar Light particularized its damages as (1) labor inefficiency costs; (2) overhead expenses; (3) excessive fuel costs and (4) extra cost for fans.

Subsequently, the plaintiff Narowetz filed a third-party complaint against Dravo Corporation, alleging the delivery of the Dravo unit to be used in the system for Solar Light was not made until January 25, 1963, even though Dravo Corporation promised its delivery on or about November 9,1962. The complaint prayed for judgment against Dravo Corporation for the amount of any judgment awarded Solar Light.

On February 9, 1966, the trial judge entered an order to the effect that the material allegations of the complaint are true and that the plaintiff is entitled to have and recover from Solar Light the sum of $4,150 and interest ; that the material allegations of the counterclaim of Solar Light are true and sustained to the extent of $1,250; that the material allegations of the third-party complaint are sustained to the extent of $250 and that, since Dravo Corporation had paid said sum to the plaintiff, it shall be dismissed from the proceedings; and that the plaintiff have a mechanic’s lien on the property owned by Solar Sales, Inc., and used by Solar Light. The trial judge found that “there has been a breach of contract in this case,” but he failed to specify the time of the breach or the time when the installation was completed. He further stated that “the damages shown are nebulous and intangible,” adding that he was “going to allow damages for the breach of contract in the amount of $1,250.00 . . .” Upon objections by the defendants that the court should state the specific basis for the finding of damages, the trial judge stated that the evidence which he heard was “too nebulous and intangible to assess any damages in excess of that amount.” The defendants appeal from this decree, praying that the judgment entered in favor of the plaintiff be reversed and remanded, with instructions to enter a judgment in favor of Solar Light for the full amount of its counterclaim. The plaintiff cross appealed, praying that the decree be affirmed in all respects, except that portion found as damages on the counterclaim. None of the parties have requested a new trial.

The facts are that the plaintiff, an Illinois Corporation engaged in the business of installing air systems, negotiated with a representative of Solar Light, for the installation of machinery which would replenish and warm air used in Solar Light’s plant. On January 14, 1963, Solar Light accepted an offer made by the plaintiff which provided in part:

1. We agree to produce, furnish and install a system in accordance with the factory shop drawings ....
2. The system shall consist of one (1) Dravo Counterflow Gas Fired Furnace.
3. The furnace is identified as Model No. 325 Horizontal Arrangement, with base duct inlet, full modulation on the burner, F.I.A. approved on controls and piping ....
7. ... The system which we will furnish does not include the electrical wiring and starters.
12. We will initiate the work promptly following the receipt of your Purchase Order (dated January 14, 1963), and will complete the installation of the system within fifteen (15) working days thereafter.

There was evidence that Solar Light desired that the system be installed as soon as possible and that, since Dravo Corporation, the supplier of the furnace, had indicated that it would not be able to deliver the required equipment by the date desired by Solar Light, the installation would cost Solar Light an additional $800 because the fans needed for the system would have to be secured from a supplier other than Dravo.

Mr. Newhouse, an estimator and superintendent for the plaintiff, testified that he pulled his men from the job on February 15, 1963, and that there were only minor corrections which remained. Even though there is some conflicting testimony as to the time that a representative of Factory Insurance Association (F.I.A.) was called, it appears that the representative did inspect the system on April 19, 1963, and refused to approve it, finding a malfunctioning switch and an improperly connected vent. There is some conflicting testimony as to whether the corrections were contained in the original F.I.A. approved shop drawings. The representative returned on April 26 and approved the system. There is also conflicting testimony as to whether the system could be operated safely after February 15, and before April 26.

The plaintiff first contends that the trial court erred in finding that it had breached its contract with Solar Light, arguing that it has substantially performed its obligations by February 15, 1963. However, this date was twenty-three working days after Solar Light sent plaintiff a Purchase Order. Furthermore, there was conflicting testimony concerning the time when the air makeup system could be used safely. It has been reiterated many times that, “where the trial court has seen and heard the witnesses and the testimony is contradictory, this court will not substitute its judgment as to the credibility of witnesses for that of the trial court, and will not disturb the findings unless they aré manifestly against the weight of the evidence.” Brown v. Zimmerman, 18 Ill2d 94, 163 NE2d 518. We do not believe that the trial judge’s finding that the plaintiff breached its contract was contrary to the manifest weight of the evidence.

The plaintiff also contends that the trial judge erred in awarding the defendants damages in the sum of $1,250 on its counterclaim, while the defendants contend that the trial judge erred in not awarding the full amount of the prayer.

The defendants alleged four specific types of damage. The first consists of labor inefficiency costs. It appears that Solar Light was required to leave a garage door open during the working day in order to keep a fresh supply of air circulating in the plant. The extent of the opening and the time during which the door was open are subject to conflicting testimony. There was testimony that the door was also required to be open from one to ten times each day for deliveries. As a result of the opening of the door, the defendants claim that the employees of the plant were required to leave their immediate place of work and go to restrooms to warm up or were required to keep their hands in their pockets for varying periods during each hour of every working day from February to May, 1963. The defendants admittedly compiled their data by interviewing the plant employees a year or more after the alleged occurrence. Furthermore, United States Weather Bureau records, introduced by the defendants, indicate that the average monthly temperatures for February, March and April varied from 19 to 52 degrees. The total amount of labor inefficiency costs was allegedly $4,637.

The second type of damage alleged consists of overhead expenses, which includes “such items as heat, light, property taxes, insurance and depreciation of plant and equipment” which were allegedly wasted due to the labor inefficiency. The total amount of overhead expenses claimed was $6,724.

The third consists of excessive fuel costs. The comptroller of Solar Light testified that fuel costs for the period of February 11 through April 30 in 1963 exceeded those for the same period in 1964 by $825.

The fourth consists of an extra cost for fans. There was testimony that, since Dravo Corporation had indicated an inability to deliver a furnace complete with fans by the date desired by Solar Light, the installation would cost Solar Light an additional $800 because the fans would have to be secured from a supplier other than Dravo.

With regard to each element of damage allegedly sustained, except for the extra cost for fans, the plaintiff contends that the extent of the delay in completing the installation of the air makeup system was caused primarily by Solar Light’s failure to complete the electrical wiring which it had contracted to perform. This contention is based upon four reports from Dravo Corporation workmen to the plaintiff, indicating that electrical work had not been performed or had been performed incorrectly.

Defendants argue that these reports were inadmissible for a number of reasons. However, they do not ask for a new trial, but request us to reject this evidence and enter a judgment in the full amount of their counterclaim. Any error in the admission or rejection of evidence by the trial court can be considered by the Appellate Court only when a new trial is requested, and not when the sole request is for an outright reversal. Millikin Nat. Bank of Decatur v. Shellabarger Grain Products Co., 389 Ill 196 at 200, 58 NE2d 892; Gundich v. Emerson-Comstock Co., 21 Ill2d 117 at 128, 171 NE2d 60. Defendants have circumscribed the relief they may obtain in this court and waived any errors in the admission or exclusion of evidence by the trial court. McCottrell v. Benson, 32 Ill App2d 367, 178 NE2d 144; Walden v. Chicago & N. W. Ry. Co., 411 Ill 378, 104 NE2d 240.

We noted earlier that where the trial court has seen and heard the witnesses and the testimony is contradictory, a court of review will not substitute its judgment as to the credibility of witnesses for that of the trial court and will not disturb the findings unless they are manifestly against the weight of the evidence. Brown v. Zimmerman, 18 Ill2d 94, 163 NE2d 518. While it would serve no useful purpose to detail any further the great amount of evidence in this case, it should be emphasized that there was conflicting evidence concerning the question of whether plaintiff breached its contract and concerning each element of damage claimed by defendants on their counterclaim. We believe that the trial judge did an excellent job in sifting out the credible evidence in a complicated case, and we do not believe that his findings are contrary to the manifest weight of the evidence.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


text:
    Pauline Uebelein, Plaintiff-Appellee, v. Chicago Transit Authority, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 50,813.
    First Judicial District.
    September 6, 1967.

      William J. Lynch, Oscar R. Hamlink, Jerome F. Dixon, and Edmund J. Burke, of Chicago, for appellant.
    Steinberg, Polacek & Steinberg, of Chicago (Bradley D. Steinberg, of counsel), for appellee.
   GOLDENHERSH, J.

In this appeal defendant seeks reversal, without remandment, of the judgment of the Circuit Court of Cook County, entered upon a jury verdict in favor of plaintiff in the amount of $11,144.55.

Defendant’s grounds for reversal are summarized as follows: (a) the trial court admitted incompetent testimony (b) that with the incompetent testimony excluded, the evidence was insufficient, as a matter of law, to establish any liability on the part of defendant (c) that if for the purpose of argument the incompetent evidence should be considered competent, the evidence was insufficient, as a matter of law, to establish liability on the part of defendant, and the court should have set aside the verdict and entered judgment in favor of defendant.

In its post-trial motion defendant stated that the verdict is contrary to the law, and contrary to the manifest weight of the evidence, that the evidence is insufficient as a matter of law to establish any liability on the part of the defendant, that the court erred in failing to grant the motion of the defendant for a directed verdict "at the close of the evidence received for and on behalf of the plaintiff,” and that the court erred in its rulings admitting certain specified evidence offered by plaintiff, and excluding evidence offered by defendant.

Defendant did not move for a new trial, but asked only that the court “set aside the verdict and judgment entered herein and enter judgment in favor of the defendant.”

Plaintiff contends (a) that defendant, by its failure to move for a new trial in the circuit court, and by its seeking reversal without remandment in this court, has waived error, if any, in the trial court’s rulings on evidence, and (b) by its failure to renew, in its post-trial motion, its motion for a directed verdict at the close of all of the evidence, has waived any contentions with regard to judgment notwithstanding the verdict, or for a directed verdict at the close of all of the evidence.

Because plaintiff’s first contention is directed to the permissible scope of review, and the latter to whether review has been waived, her second contention must be considered first.

The statutory provisions governing post-trial motions are set forth in section 68.1 of the Civil Practice Act (c 110, § 68.1, III Rev Stats 1965). Paragraph (1) provides: “If at the close of the evidence, and before the case is submitted to the jury, any party moves for a directed verdict the court may (a) grant the motion or (b) deny the motion or reserve its ruling thereon and submit the case to the jury. If the court denies the motion or reserves its ruling thereon, the motion is waived unless the request is renewed in the post-trial motion.” Paragraph (2) provides in part, “. . . Relief after trial may include the entry of judgment if under the evidence in the case it would have been the duty of the court to direct a verdict without submitting the case to the jury, even though no motion for directed verdict was made or if made was denied or ruling thereon reserved. . . .”

In our opinion, although defendant did not comply with paragraph (1), its assertion, in its motion, “that the evidence is insufficient as a matter of law to establish any liability on the part of the defendant,” is sufficient under paragraph (2) to preserve for review the same issues as are presented upon appeal from denials of motions for directed verdict, and for judgment notwithstanding the verdict.

In People v. Washington, 23 Ill2d 546, 179 NE2d 635, the Supreme Court said at page 548, “. . . it has long been the rule in civil cases that a motion for a directed verdict made at the close of the plaintiff’s case is waived when the defendant introduces evidence after the motion has been denied.” Our review, therefore, is limited to those issues reviewable upon appeal from a judgment entered after denial of a motion n. o. v. Under the holding in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, the only question presented on appeal from such judgment is whether “all of the evidence when viewed in its aspect most favorable to the opponent so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

We turn now to the question of whether defendant’s failure to move for a new trial in the circuit court precludes review of its contentions with respect to error in the trial court’s rulings on the admissibility of evidence.

Defendant contends that the court erred in admitting evidence offered by plaintiff because the evidence was not “competent.” Relying upon Knudson v. Knudson, 382 Ill 492, 46 NE2d 1011, and Day v. Barber-Colman, 10 Ill App2d 494, 135 NE2d 231, defendant argues that in reviewing the trial court’s ruling on its post-trial motion, this court may consider only “competent” evidence.

Assuming, arguendo, that this latter contention is correct, the problem presented is to define “competent” evidence. An examination of Wigmore, McCormick, Card and the Model Code of Evidence fails to reveal that the term “competent” evidence is used or discussed. The only effort on the part of an appellate court in Illinois to define the term is found in Wood v. Prudential Ins. Co. of America, 271 Ill App 103, where relying upon Corpus Juris, at page 110, the court said “Competent evidence is that ‘which, in respect to evidence, means the characteristic of being that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case.’ 22 CJ, p 192.” With due respect to our predecessors, we submit that upon reading this definition the reason for Shepard’s Citator’s failure to show subsequent reference thereto is readily perceptible.

Upon the authority of the cases cited by defendant, we agree that in determining the issue presented, a reviewing court may consider only relevant evidence.

In People ex rel. Noren v. Dempsey, 10 Ill2d 288, at 293, 139 NE2d 780, our Supreme' Court said “The basic principle that animates our law of evidence is that what is relevant is admissible. Exceptions to that principle must justify themselves.” In Marut v. Costello, 34 Ill2d 125, at page 128, 214 NE2d 768, the Supreme Court said, “Relevancy is established where a fact offered tends to prove a fact in controversy or renders a matter in issue more or less probable.”

Because defendant did not seek a new trial, assuming the evidence complained of is found to be relevant, we may not inquire as to the trial court’s rulings on its admissibility. This rule is clearly stated in Gundich v. Emerson-Comstock Co., 21 Ill2d 117, 171 NE2d 60, wherein at page 128, the Supreme Court said “Moreover, the issue of the propriety of the admission or rejection of evidence is properly considered on a motion for a new trial, and not on a motion for judgment notwithstanding the verdict, which was involved herein. Millikin Nat. Bank v. Shellabarger Grain Products Co., 389 Ill 196,200.”

The evidentiary errors complained of involve the admission of a statement attributed to defendant’s conductor, and evidence of custom and usage. That statements by an agent are relevant is so clearly apparent as to require no citation of authorities. We do not discuss the authorities cited by defendant other than to say that they pertain not to relevancy, but to admissibility. As to evidence of custom and usage, under the authority of Underwood v. Pennsylvania B. Co., 34 Ill2d 367, 215 NE2d 236, there can be no question of its relevancy.

The discussion of defendant’s final contention requires a review of the evidence. The record shows plaintiff was a frequent rider on defendant’s elevated trains. On September 4, 1957, at about 5:30 p. m., plaintiff boarded defendant’s Jackson “D” train at Washington Street. The weather was good, and she sat next to an open window on the right-hand side, in the third coach from the front of an 8-coach train. At 47th Street, a male passenger left the coach in which plaintiff was riding, walked along the platform to a point near where plaintiff was sitting in the coach, reached in through the open window, and attempted to take plaintiff’s purse. While she was struggling with him for possession of the purse, the train started moving forward, and plaintiff’s arm struck the metal edge of the window and was fractured. Plaintiff testified that the train started moving after a buzzer signal sounded, and when the signal was given, the struggle for the purse had been in progress for approximately 15 seconds. Shortly thereafter she went to the back of the coach and engaged in a conversation with the conductor. She told the conductor that her arm was broken, and he told her to relax, that he had seen the whole thing and he thought that by starting up the train “it would break his grip.” At 63rd Street, plaintiff left the train and went by taxicab to Jackson Park Hospital.

A police officer testified that he talked with plaintiff on the date in question at Jackson Park Hospital, and made out a report of the occurrence. There is evidence that plaintiff was admitted to the hospital on that date, and the history given by plaintiff at the time of admission is in accord with her testimony at the trial.

There is testimony that it was the custom and usage in the operation of defendant’s elevated trains, that prior to giving the motorman the signal to start up a train standing at a station platform, the conductor would extend his head out of an open window of the coach in which he was riding, and watch the loading and unloading of passengers. This was done for the purpose of observing whether any person was in a position of danger and might suffer injury by reason of the train’s being placed in motion. It was the custom and usage to continue in this position until the train departed from the station.

Defendant argues that it cannot be held liable for “the sudden and unexpected assault” upon plaintiff by a third person. It also contends that assuming the conductor actually saw the occurrence evidenced by the statement to which plaintiff testified, there was no way he could have averted it. Relying upon Sue v. Chicago Transit Authority, 279 F2d 416, it argues that it is not liable to plaintiff because there is no evidence of prior similar occurrences, and it is not shown that the incident could have been foreseen and avoided.

In our opinion this case is clearly distinguishable from those cases which involve the question of foreseeability, such as the Sue case (supra) and Schwartz v. Chicago Rys. Co., 208 Ill App 232, upon which the United States Court of Appeals relied in reaching its decision. Here there is no question of the foreseeability of the occurrence — it was in progress — and the issue then became whether the conductor, in signaling for the train to start, was guilty of negligence.

A reasonable inference from the evidence of record is that plaintiff was not injured in the struggle for the purse, and her injuries were suffered as the result of her arm striking the window upon the train’s being put in motion. Admittedly the conductor was confronted with a sudden emergency which required him to make a speedy decision, and this is a factor in determining whether under the circumstances shown, and in view of the duty defendant owed plaintiff, its passenger, his choice of action was reasonable.

In Alton Light & Traction Co. v. Oller, 217 Ill 15, 75 NE 419, the Supreme Court stated that the obligation of a common carrier is to do all that human care, vigilance and foresight can reasonably do, consistent with the mode of conveyance and the practical operation of the road, to convey its passengers to their destinations in safety. Whether, under the circumstances shown, defendant did so, was a question of fact for the jury.

Applying the rule of Pedrick (supra) we are unable to say that the verdict in favor of plaintiff cannot stand, and the judgment of the Circuit Court of Cook County is therefore, affirmed.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


author: MORAN, P. J.

text:
    Olga Workman, Plaintiff-Appellee, v. Dave Goldford, Defendant-Appellant.
    Gen. No. 66-56.
    Fifth District.
    June 16, 1967.
    Modified opinion October 5,1967.

      Wagner, Conner, Ferguson, Bertrand & Baker, of East St. Louis (John B. Gunn, of counsel), for appellant.
    Jones, Ottesen & Fleming, of Belleville (Robert A. Hayes and Patrick J. Fleming, of counsel), for appellee.
   MORAN, P. J.

This is an appeal from a judgment of the Circuit Court of St. Clair County, Illinois, in favor of the plaintiff in an action for personal injuries.

The evidence indicates that the plaintiff, Olga Workman, slipped and fell as she was leaving the apartment building in which she and her husband were renting an apartment. The plaintiff’s complaint alleged that the defendant-lessor negligently failed to keep the common hallway leading to the front door lighted properly and that, as a result of his failure, she fell, sustaining the injuries for which suit was brought. The jury returned a verdict for the plaintiff and answered a special interrogatory, finding that she was free from contributory negligence. The trial court entered a judgment on the verdict after denying the defendant’s post-trial motion for a judgment notwithstanding the verdict or for a new trial.

With regard to the liability aspects of this case, the defendant’s sole contention is that the plaintiff was contributorily negligent as a matter of law and that the trial court erred in refusing to grant a judgment notwithstanding the verdict. In the alternative, he contends that the trial court erred in not granting a new trial, since there was an unauthorized communication between the bailiff and the jury.

The plaintiff testified that on the evening the accident occurred, she left her apartment to take her dog outside; that the dog went down the stairs ahead of her; that the stairs and the hallway were not lighted; that when she arrived at the bottom of the stairs, she did not see the dog; that she could see the glass front door since there was a gleam from a wash-house at the rear end of the hallway; that she pushed open the front door with both hands; that she could not see anything on the surface of the porch; and that she then stepped out with her right foot, took a step with her left foot, started to slide, and fell.

The defendant argues that the plaintiff knew the stairs and hallway were not lighted and failed to take any light with her; that she knew the porch surface was wet with drizzle and was icy; that she did not hold onto the grab bar on the front door; and that since she had lived in the building for seven months, she should have been thoroughly familiar with the area.

The question of contributory negligence ordinarily and preeminently presents a question of fact. It can become a question of law only when from the undisputed facts, all reasonable minds, in the exercise of fair and honest judgment, would be compelled to reach the conclusion that there was contributory negligence. (Lasko v. Meier, 394 Ill 71, 67 NE2d 162; Jines v. Greyhound Corp., 33 Ill2d 83, 210 NE2d 562; Simaitis v. Thrash, 25 Ill App2d 340, 166 NE2d 306.) After a review of all the testimony, we do not believe that the plaintiff was guilty of contributory negligence as a matter of law.

Appellant contends that he is entitled to a new trial because of an improper communication between the bailiff and a juror. The testimony of the bailiff, adduced in support of the defendant’s post-trial motion, reveals that the members of the jury “had (the bailiff) come up and they said ‘we have got everything all figured out, the one part is finished, but we are a little confused on the other,’ and the foreman did say ‘come on in, we’re all finished’ ”; that a woman member of the jury then followed him outside and asked something to the effect whether “the jury could sign the special interrogatory ‘yes’ and still give the plaintiff some money?”; and that he then replied, “I don’t know, would that make sense?”

Appellant argues that this case is governed by Sommese v. Haling Bros., Inc., 36 Ill2d 263, 222 NE2d 468, and Swanson v. Chester Johnson Elec. Co., 5 Ill App2d 175, 125 NE2d 304. In Sommese plaintiff’s attorney in his closing argument advised the jury that a special interrogatory had been “slipped in” by defendant and that the jury should conform its answer to the verdict. In Swanson, the trial judge orally told the jury that the “verdict you reach should be compatible with the interrogatories.” We do not believe that the communication complained of in this case, “I don’t know, would that make sense?” necessarily has to be equated with a statement telling the jury that their verdict should be compatible with or conform to the interrogatories.

The trial judge is afforded discretion in the allowance or refusal of a motion for a new trial and his decision in this regard will not be reversed except for a clear abuse of such discretion. Tihay v. Aurora City Lines, 79 Ill App2d 107, 114, 223 NE2d 171. Furthermore, in passing on a motion for a new trial, the trial judge has a greater latitude in passing on questions of fact than on questions of law and a reviewing court will not reverse a ruling on a question of fact unless a clear abuse of discretion is shown. Morelia v. Melrose Park Cab Co., 65 Ill App2d 175, 181, 182, 212 NE2d 106; Buer v. Hamilton, 48 Ill App2d 171, 173, 199 NE2d 256.

The issue in this case is not whether we would set the verdict aside upon the record before us, but rather whether the record shows that the trial judge abused his discretion in not allowing appellant’s motion for a new trial. We do not believe that the failure of the trial judge to grant a new trial in this case was a clear abuse of discretion, inasmuch as he could have determined that the bailiff’s answer to the juror’s question was a noncommittal response which was not calculated to and did not influence the jury. In Loucks v. Pierce, 341 Ill App 253, 93 NE2d 372, at 260 the court considered the applicable law to a communication from a bailiff to the jury during their deliberations and cited the following rule:

Many courts, perhaps the majority, take the view that unless communications from the officer to the jury have a manifest tendency to influence the jury improperly against the unsuccessful party, or were such that prejudice resulted to such party, they furnish no ground for a new trial. 39 Am Jur, New Trial, § 104.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    The Exchange National Bank of Chicago, as Trustee Under Trust No. 17922, and the Pure Oil Company, an Ohio Corporation, Plaintiffs-Appellees, v. The Village of Skokie, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 51,730.
    First District, Fourth Division.
    September 11, 1967.
    Harvey Schwartz, Corporation Counsel, of Skokie (Morton C. Kaplan, Assistant Corporation Counsel, of counsel), for appellant.
    Paul Peter Black, of Chicago, for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant, Village of Skokie, appeals from a judgment which found that its zoning ordinance is null and void as applied to plaintiffs’ property and which enjoined defendant from interfering with plaintiffs’ construction of a gasoline station.

Suit was initiated by the Main Building Corporation and the Pure Oil Company, the latter having purchased the property from Main Building Corporation subject to the condition that it be rezoned to permit the construction of a gasoline station. The complaint prayed that defendant be enjoined from preventing the use of plaintiffs’ property as a gasoline station. The cause was referred to a master in chancery who held hearings and took testimony and made a report of his findings to the court. The court entered its judgment overruling defendant’s objections and exceptions to the master’s report, approving the report and entered the judgment appealed from. During the proceedings before the master, Main Building Corporation was dissolved and its interest transferred to a nominee and then to The Exchange National Bank of Chicago, as Trustee, which was substituted as a plaintiff in lieu of Main Building Corporation.

Plaintiffs’ vacant property consists of about 15,825 square feet and is located on the southwest comer of Church Street and East Prairie Road in Skokie. The property fronts approximately 168 feet on Church Street; has a straight north and south line of 125 feet in length for its west boundary; runs east some 85 feet along the first east-west alley south of Church Street and has its eastern boundary along diagonal East Prairie Road for some 150 feet.

Traffic on Church Street is described as moderately heavy. It is a collector road and funnels traffic into main routes. The speed limit on Church Street is 30 miles per hour. Traffic on East Prairie Road is moderate to light. It has four lanes but narrows to two poorly paved lanes north of its intersection with Church. The intersection has stop signs on all corners but no stoplights. The master described the general area and its zoning as follows:

Starting several blocks to the west of the property, and going east, the streets running north and south are Lawndale Avenue; then Central Park, Drake, Lincolnwood, Forest View, Ewing, Morgan and then McCormick Boulevard in that order. Starting from a point north of the subject property, and going south, the streets are Emerson, Lyons, Church, Arcadia, Davis and Grove. East Prairie Road runs diagonally across the area, from south west to north east.
About in the center of this entire large area, the Village has created a B-l zoning district. This B-l category is designated as a Neighborhood Shopping District and permits various retail or service uses such as book stores, dry goods stores, meat market, parking lot, etc. . . .
Except for this B-l area, the zoning ordinance of the Village of Skokie has designated the entire large area above described as being zoned R-l or R-3. R-l is the Skokie designation which permits only single-family dwellings. R-3 permits construction of two-family units.

Since 1930, the subject property has been part of the area zoned B-l Neighborhood Shopping District from which gasoline stations are explicitly excluded. Main Building Corporation purchased the subject property in 1946 or 1947.

The actual land uses in the B-l area at the time of the decree and immediately thereafter are as follows: Immediately west of the subject property along Church Street is Motive Parts of America (which sells auto parts and has small lathes and other machines for adjusting and fitting the auto appliances). To the west of Motive Parts, across Lincolnwood Drive, and fronting on Church Street are seven townhouses, each containing four living units. Crossing Church Street at this point, on the north side, there is a vacant lot. Proceeding to the east is a building occupied by United Rent-All and A. and W. Lawn Mower Service. United rents trailers and small trucks and party equipment such as tables and dishes. A. and W. fixes trucks as well as lawn mowers. Both use the parking lot for storage purposes. The next use to the east is Haggerty and Associates, commercial artists who also do offset printing. To the east of this, on the northwest corner of the intersection, is a vacant lot comprising 140,000 square feet. On the east side of East Prairie Road, starting at the northeast corner of the intersection, is the Garry Honduras Restaurant. North on East Prairie are the Heinz Landscaping and Evanston Landscaping companies. Further north are Lennox Heating and Air Conditioning and Pelfacs, Inc., an assembler of metal products.

Proceeding east from the intersection on the north side of Church Street next to the Honduras Restaurant is the Whitehouse grocery and package liquor store. East of this is a store building recently erected (in compliance with B-l zoning) containing an art studio and a dicta-phone sales and service store. Crossing to the south side of Church Street there is Murphy’s grocery and package liquor store. To the west, on the southeast corner of the intersection, is a shopping center containing a small grocery store, a barbershop, a beauty shop and the Presentation Furniture Store.

The basis of plaintiffs’ complaint is that the land uses in the B-l area were largely inconsistent with B-l zoning and that therefore the B-l classification was unreasonable and discriminatory. Plaintiffs’ expert testified on February 22, 1965, (prior to the effective date of a 1965 amendment to the zoning ordinance) that 87 % of the B-l district was devoted to nonconforming uses and that 13% was devoted to conforming uses. Defendant’s expert (after explaining his strict usage of the word “non-conforming”) testified that 28.7 % was vacant, 13.3% nonconforming residential, 6.5% nonconforming commercial, 30% illegal use and the balance (about 21.-5%) conforming. The master found 28.7% vacant, 14% conforming and the balance (57.3%) nonconforming.

After the master submitted his report, proofs were reopened to permit the introduction into evidence of exhibits showing a disuse of premises formerly used in contravention of the zoning ordinance. Two uses (Acorn Motors and A. & M. Towing) were restrained by court order in another proceeding and the premises comprising 12% of the B-l area were vacated. Another use (Zera Construction) was abandoned and the property vacated; other noncomplying uses were rectified by the removal of stored mechanical equipment. Therefore by taking into account these changes (and the abandonment by Bix Furniture after decree) we find that at least 40% of B-l was unoccupied, 13.3% nonconforming residential, 6.5% nonconforming commercial and about 11% nonconforming.

According to plaintiffs, the principal violator of the zoning ordinance is Motive Auto Parts. It sells auto parts and adjusts automotive parts to specific sizes for its customers. Two small lathes are used. Plaintiffs urge that this use is of the same classification as a gasoline station and that therefore under the finding in Colvin v. Village of Skokie, 54 Ill App2d 22, 203 NE2d 457, it is mandatory that both uses be given equal treatment. In Colvin, the abutting use was a gasoline station and therefore it was held unreasonable to preclude another gasoline station.

In Exchange Nat. Bank v. Village of Skokie, 86 Ill App 2d 12, 229 NE2d 552, we held that a combined automatic car wash, gasoline service station, accessory store and automobile diagnostic center was similar to and compatible with a gasoline service station that washed cars manually and with other uses existing in the area.

In the instant case, one of defendant’s experts testified as to the effect of a gasoline station:

The proposed gasoline station is a heavier use as compared to the existing legal nonconforming uses.
It generates a larger volume of vehicular traffic.
It is a more intensive use, a larger paved area, a greater intensity of lighting, a greater amount of noise generated from the gas station site, a greater amount of exterior displays of pennants, signs, and the general character that is associated with a service station as opposed to a prime retail outlet.

Another stated:

If the subject site is developed for a gasoline station it is my opinion that it would cause a five to ten percent loss in value to the residences on the west side of East Prairie Road that are immediately adjoining. Also, it would result in approximately a five percent loss in value to the homes that are in direct visual view of the service station on the east side of East Prairie Road.
My reasons for that opinion are the noises, the fact that the service station might or might not be open 24 hours a day, the traffic congestion and the smells that are produced by a modern service station.

The testimony of the experts as to uses was based upon visual observation of premises from the exterior. In some instances they peered through windows and in others based conclusions on advertising signs. We do not believe that in an area only 60 % occupied a gasoline station is a use compatible with (1) residences, (2) nonconforming commercial uses such as sale of liquor in a grocery store, a furniture store (Presentation Furniture) which became a B-3 use under a 1965 amendment or (3) noncomplying uses which consist of a printing press in an art and design studio; small lathes in an auto parts store; assembling of metal products; rental of trucks and party equipment; and lawn mower service.

A zoning ordinance is presumed to be valid. In Exchange Nat. Bank of Chicago v. County of Cook, 25 Ill2d 434, 185 NE2d 250, the court said at page 440:

Before a court will intervene it must be established by clear and convincing evidence that the ordinance, as applied to plaintiffs, is arbitrary and unreasonable and has no substantial relation to the public health, safety or welfare. These rules are based upon a recognition that zoning is primarily a legislative function, subject to court review only for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare. [Citing cases.] Where it appears, from all the facts, that room exists for a difference of opinion concerning the reasonableness of a classification, the legislative judgment must be conclusive. [Citing cases.]

In the instant case, the subject property which was purchased 20 years ago has been zoned B-l for over 35 years and although there are some nonconforming residential and commercial uses and some noncomplying uses, the plaintiffs have not proven by clear and convincing evidence that the ordinance is invalid because the land uses are largely inconsistent with B-l zoning.

After pointing out that there was a difference of opinion among the experts as to the highest and best use, the master found that a gasoline station would be the best and highest use, predicating his finding in part “upon the present condition” of the B-l area. He stated:

The defendant Village has permitted the intrusion of non-conforming [sic] uses into the B-l area for some time past. As the area exists today, the present zoning of B-l is incongruous and arbitrary. It is true that the defendant Village has made, and apparently is making, a belated effort to eliminate the nonconforming [sic] uses as evidenced by the decree above noted by the master. However, this effort would appear to be too little too late.

As we have already pointed out, the term “non-conforming” was used by the master to denote both nonconforming and noncomplying or illegal uses. In County of Du Page v. Henderson, 402 Ill 179, 83 NE2d 720, the trial court enjoined defendant from using his property for industrial purposes in a farming zone where estates and residences are permitted. The defense contended that the ordinance was unconstitutional. The evidence showed that defendants had operated a manufacturing business on adjacent property in violation of the ordinance. The Supreme Court in affirming the injunction stated at page 188:

The fact the ordinance permitted a large number of uses within the district, which the appellants deemed mere detrimental to the people and their property, can neither diminish nor enlarge their defense, for those other uses are not theirs. The fact that nonpermissive uses are carried on by others contrary to the ordinance neither fortifies nor weakens the case of appellants, but each alleged violation of the ordinance is a complete case within itself and must stand or fall upon the facts and circumstances of that case alone. The appellants charge in this court that the classification of their property as nonindustrial in the ordinance amounts to a capricious invasion and an unreasonable invasion of their property rights. The presumption of the validity of that classification must be overcome by proof made by defendants which is clear and convincing. (City of Springfield v. Vancil, 398 Ill 575.) The defendants have not supplied the proof required.

We cannot find that the noncomplying uses in this case can be used as a fulcrum for declaring a zoning ordinance arbitrary and void. The defendant has sought to preserve the integrity of its zoning by the enforcement of its ordinance. Since the commencement of this suit it enjoined some noncomplying uses and caused others to be abandoned by threat of court action. By continuing this aggressive attitude it can eradicate all the noncomplying uses. Nor can we be unmindful of the fact that should plaintiffs prevail, the zoning of the vacant property on the opposite northwest corner (140,000 square feet) could be attacked on the basis that a gasoline station is then permitted on the southwest corner.

Finally, defendant contends that the court erred in denying its special defense of “prior adjudication.” The master found that the parties and issues in the two cases were different and that there was no showing that a change in conditions had not occurred. Defendant filed no objections to the finding or conclusions of the master and therefore the finding and conclusions are not subject to further review. Boeder v. Pipe, 235 Ill App 89, 109.

The judgment of the Circuit Court declaring the zoning ordinance null and void and enjoining defendant from interfering with plaintiffs’ construction of a gasoline station is reversed and the cause remanded to the trial court with directions to dismiss the complaint.

Reversed and remanded with directions.

ENGLISH, P. J. and McCORMICK, J., concur.

       The subject property is zoned B-l. A gasoline station is not permitted under a B-l zoning classification but is permissible under a B-3 classification.

       By stipulation after decree one of the noncomplying uses (Bix Furniture) was shown to have been abandoned.

       A nonconforming use is a continuation of a lawful use existing at the time of the adoption of an ordinance though not in conformity with the new ordinance. Jacobson v. Village of Wilmette, 403 Ill 250, 85 NE2d 753. Throughout the master’s reports and appellees’ briefs the term “non-conforming” is applied not only to those uses which are nonconforming under this definition but to uses which are illegal or do not comply with the ordinance.

       In his supplemental report, the master concluded that these changes did not require any modification of his findings. However, in sustaining an objection to the effect of removal of the used car lot (Acorn Motors) the master stated: “If all of these uses were changed, you would have a different zoning case.”
      In ruling on a similar objection to a question as to whether the correction of storage uses by landscaping companies would eliminate one of the influences, the master sustained the objection stating that it clearly would.